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Alan S. Tenenbaum Marcello Mollo

National Bankruptcy Coordinator Senior Trial Attorney

Environmental Enforcement Section Environmental Enforcement Section

Environment and Natural Resources Division Environment and Natural Resources Division

U.S. Department of Justice U.S. Department of Justice

P.O. Box 7611, Ben Franklin Station P.O. Box 7611, Ben Franklin Station

Washington, D.C. 20044 Washington, D.C. 20044

601 D Street NW 601 D Street NW

Washington, D.C. 20004 Washington, D.C. 20004

(202) 514-5409 (voice) (202) 514-2757 (voice)

(202) 514-0097 (fax) (202) 514-0097 (fax)

alan.tenenbaum@usdoj.gov marcello.mollo@usdoj.gov

Counsel for the United States of America

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

In re: ) Chapter 11

)

ALPHA NATURAL RESOURCES, INC., et al., ) Case No. 15-33896 (KRH)

)

Debtors. ) (Jointly Administered)

RESERVATION OF RIGHTS OF UNITED STATES OF AMERICA IN RESPONSE TO 

MOTION OF THE DEBTORS, PURSUANT TO BANKRUPTCY RULE 9019, FOR 

ENTRY OF AN ORDER CONCERNING RECLAMATION BONDING OF THEIR 

SURFACE COAL MINING OPERATIONS IN WEST VIRGINIA

The United States of America (“United States”), on behalf of the U.S. Department of the 

Interior, Office of Surface Mining Reclamation and Enforcement (“OSMRE”), hereby files this 

reservation of rights in response to Debtors’ Motion for Entry of Stipulation and Order 

Concerning Reclamation Bonding of their Surface Coal Mining Operations in West Virginia (the 

“Motion”), and to the proposed Order a attached thereto (the “Consent Order”) [Docket 

No.1049].

RESERVATION OF RIGHTS

1. The United States, through OSMRE, oversees the protection of public health and 

the environment under Surface Mining Control and Reclamation Act of 1977 (“SMCRA”), 30 

U.S.C. §§ 1201 et seq. SMCRA is designed, inter alia, to ensure that coal mine permittees 

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throughout the United States take the necessary steps to protect the public from serious 

environmental and health risks that could arise from surface coal mining operations.

2. SMCRA is designed to “establish a nationwide program to protect society and the 

environment from the adverse effects of surface coal mining operations.” Hodel v. Va. Surface 

Mining & Reclamation Ass’n, 452 U.S. 264, 268 (1981) (quoting 30 U.S.C. § 1202(a)). In 

enacting SMCRA, Congress found that: 

many surface mining operations 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 landslides, by contributing to floods, 

by polluting the water, by destroying fish and wildlife habitats, by impairing natural 

beauty, by damaging the property of citizens, by creating hazards dangerous to life 

and property by degrading the quality of life in local communities, and by 

counteracting governmental programs and efforts to conserve soil, water, and other 

natural resources.

Id. at 277-78 (quoting 30 U.S.C. § 1201(c)). SMCRA deters environmental irresponsibility by 

holding regulated entities responsible for environmental harm. See, e.g., Safety-Kleen, Inc. v. 

Wyche, 274 F.3d 846, 866 (4th Cir. 2001). 

3. SMCRA establishes a program of cooperative federalism that allows the states to 

enact and administer their own regulatory programs within limits established by federal 

minimum standards and with prescribed backup enforcement authority by the Department of the 

Interior. 30 U.S.C. § 1253; see Hodel, 452 U.S. at 289. State programs must consist of elements 

that are no less stringent than SMCRA and no less effective than its implementing regulations. 

30 U.S.C. § 1253; 30 C.F.R. § 730.5. The State of West Virginia initially submitted a permanent 

program on March 3, 1980, which after resubmissions OSMRE conditionally approved effective 

January 21, 1981. The program is administered by the West Virginia Department of 

Environmental Protection, Division of Mining and Reclamation. See 30 C.F.R. Part 948.

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4. States with an approved regulatory program must implement, administer, enforce, 

and maintain the program in accordance with SMCRA, federal implementing regulations, and 

the provisions of the approved state program. 30 C.F.R. § 733.11. SMCRA gives OSMRE

ongoing authority to oversee the effectiveness of the state’s implementation of its program. 

OSMRE’s responsibilities in this area include inspection and enforcement duties in primacy 

states. 30 U.S.C. §§ 1254(b), 1267(a) and (h), 1271. SMCRA also provides for federal 

inspections where a state, after notification from OSMRE of “any information” providing reason 

to believe that a violation exists, fails to respond appropriately within ten days, or for immediate 

inspection, without state notification, where adequate proof of an imminent danger of significant 

environmental harm is presented and the State has failed to take appropriate action. Id. § 1271(a).

In addition to inspection authority, SMCRA provides the Secretary of the Interior with authority 

to pursue direct federal enforcement in primacy states when necessary to ensure the SMCRA and 

federal standards are being met. See id. §§ 1254(b), 1271.

5. Like all operators, Debtors may not engage in surface coal mining operations 

without first obtaining the required SMCRA permits from the relevant regulatory authority, as 

applicable, either OSMRE or a state authority under the oversight of OSMRE. Id. § 1256. As a 

condition precedent to issuing a surface mining permit, SMCRA requires an operator to post a 

performance bond payable to the regulatory authority in an amount sufficient “to assure the 

completion of the reclamation plan if the work had to be performed by the regulatory authority in 

the event of forfeiture.” Id. § 1259. Liability under the bond must be for the duration of the 

surface coal mining and reclamation operation. Id. SMCRA’s requirement for contemporaneous 

reclamation during ongoing surface mining operations, 30 U.S.C. § 1265(b)(16), is in addition to 

the requirement for full reclamation bonding, 30 U.S.C. § 1259. Moreover, enforcement of 

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requirements for financial assurance under environmental laws fall within the police and 

regulatory exception to the automatic stay, 11 U.S.C. § 362(b)(4). Safety-Kleen, 274 F.3d at 865-

66.

6. The United States is not a party to the Consent Order. The United States hereby 

expressly reserves all of its rights under SMCRA and its implementing regulations and other 

applicable law, and may exercise such rights at any time in accordance with the police and 

regulatory exception to the automatic stay. The United States further notes that, notwithstanding 

the Motion or Consent Order, Debtors must at all times during this Bankruptcy Case act 

expeditiously to bring themselves into full compliance with the valid laws of the State, which 

include SMCRA’s reclamation bonding requirements, as required by 28 U.S.C. § 959(b) and 

Safety-Kleen, 274 F.3d at 865-66.

FOR THE UNITED STATES:

DANA J. BOENTE

United States Attorney

 

Robert P. McIntosh

Assistant United States Attorney

JOHN C. CRUDEN

Assistant Attorney General 

Environmental and Natural Resources Division

s/Alan S. Tenenbaum

ALAN S. TENENBAUM

National Bankruptcy Coordinator

Environmental Enforcement Section

U.S. Department of Justice

P.O. Box 7611, Ben Franklin Station

Washington, D.C. 20044

601 D Street NW

Washington, D.C. 20004

(202) 514-5409 (voice)

(202) 514-0097 (fax)

alan.tenenbaum@usdoj.gov

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s/Marcello Mollo

MARCELLO MOLLO

Senior Trial Attorney

Environmental Enforcement Section

U.S. Department of Justice

P.O. Box 7611, Ben Franklin Station

Washington, D.C. 20044

601 D Street NW

Washington, D.C. 20004

(202) 514-2757 (voice)

(202) 514-0097 (fax)

marcello.mollo@usdoj.gov

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CERTIFICATE OF SERVICE

I hereby certify that on December 14, 2015, I caused a copy of the foregoing to be served

by electronic mail upon all parties receiving notice through the Court’s CM/ECF Noticing 

System.

s/ Marcello Mollo 

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