Legislative History

House Report No. 95-493

Following is the July 12, 1977, Congressional Report from the Conference Committe on H.R. 2. The text below is compiled from the Office of Surface Mining's COALEX data base, not an original printed document, and the reader is advised that coding or typographical errors could be present.

CONFERENCE COMMITTEE REPORT
HOUSE OF REPRESENTATIVES REPORT
NO. 95-493; Senate Report No. 95-337;
123 CONG.REC. H6938; 95TH CONGRESS 1st Session;
H.R. 2; Conference Report.
JULY 12, 1977. - Ordered to be printed

PREAMBLE

Mr. UDALL, from the committee of conference, submitted the following

CONFERENCE REPORT

[To accompany H.R. 2]

The committee of conference on the disagreeing votes of the two Houses on the amendment of the Senate to the bill (H.R. 2) to provide for the cooperation between the Secretary of the Interior and the States with respect to the regulation of surface coal mining operations, and the acquisition and reclamation of abandoned mines, and for other purposes, having met, after full and free conference, have agreed to recommend and do recommend to their respective Houses as follows:

JOINT EXPLANATORY STATEMENT OF THE COMMITTEE OF CONFERENCE

97 The managers on the part of theHouse and the Senate at the conference on the disagreeing votes of the two Houses on the amendment of the Senate to the bill (H.R. 2) to provide for the cooperation between the Secretary of the Interior and the States with respect to the regulation of surface coal mining operations, and the acquisition and reclamation of abandoned mines, and for other purposes, submit the following joint statement to the House and the Senate in explanation of the effect of the action agreed upon by the managers and recommended in the accompanying conference report:

INTRODUCTION

97 This is the third time in each of the last three Congresses that House and Senate conferees have met to resolve differences in federal legislation to control the impact of surface coal mining. Due to the continued consideration by Congress over the last five years both H.R. 2 and 7 were structurally similar and substantively similar in most provisions. Differences were focused on specific provisions which represented different approaches on selected issues considered by the House and Senate.

97 H.R. 2 as introduced was a modified version of H.R. 25, vetoed in June, 1975. The modifications which were embodied in H.R. 13950, 94th Congress, reflected the continued effort on the part of the House to shape a bill which would provide the essential protection to the land and water resources while still trying to meet the concerns which led to the last veto. The Senate bill, S. 7, as introduced was a streamlined version of H.R. 25. Committee action this year in both Houses focused on procedural simplification as well as specific environmental protection provisions. While the bills as they emerged from the House of Representatives and U.S. Senate had a large number of specific differences, most of these were minor and approximatly only ten issues emerged for significant attention by the Conferees. The Conference attention was focused on: the funding of mineral research institutes, coal research laboratories, and energy fellowships; the requirements for surface owner consent over both Federal and privately owned coal; specific environmental standards pertaining to mountain mining standards in the eastern United States specifically the requirement to backfill all highwalls completely and the appropriate phase-in period for small coal operators; the protection of alluvial valley floors in the western United States; the range of program alternatives pertaining to Indian land and resources; the scope and jurisdiction of the abandoned mine reclamation program; and the nature of the protection of prime agricultural lands.

98 Following is an Overview of Conference Decisions which present a brief description of the House bill, the Senate amendment and the resolution of the differences.

OVERVIEW OF CONFERENCE DECISIONS

98 Title I. - Sets forth the findings and policy of the legislation which were melded by the conferees.

98 Title II. - Establishes an Office of Surface Mining Reclamation and Enforcement with the Department of Interior and delineates the duties of its Director. The House Bill included authorization for the Civil Service Commission, after consultation with the Secretary, to determine the necessary number of supergrade positions required to meet the functions of the office and to allocate such positions to the Secretary. The Senate receded to this provision. The Senate amendment provided greater administrative flexibility to the Secretary in locating the Office within the Department. The House receded to this provision.

98 Title III. - Establishes the State Mining and Mineral Resources and Research Institutes. It is identical to the title contained in H.R. 2, as passed by the 94th Congress and subsequently vetoed by President Ford. The only significant difference between the House bill and the Senate amendment was that the Senate amendment would have restricted the purposes of the research institutes to coal research. The Conferees' agreement on the House version also included adoption of Title VIII (Title V of S. 7) which establishes University Coal Research Laboratories, and Title IX (Title VI of S. 7), authorizing a program of Energy Resource Graduate Fellowships.

98 Title IV. - Contains the Abandoned Mine Reclamation program. The Senate amendment, which was generally adopted throughout title IV, provides for establishment of State abandoned mine reclamation programs with somewhat broader jurisdiction than was proposed in the House bill. Provisions which differ from either version are noted below.

98 Section 401. The Senate amendment provided that a State fund is to be established for each approved State abandoned mine reclamation program, and fund moneys are to be used for various purposes connected with reclamation of orphan lands, including subsidence control. The House bill required one-fifth of the funds collected to be earmarked for use by the Secretary of Agriculture for a rural lands reclamation program. The Conferees agreed to both provisions.

98 Section 402. Both the House bill and the Senate amendment imposed a reclamation fee of 35 cents per ton on surface mined coal and 15 cents per ton on underground mined coal. The conferees agreed to the imposition of a reclamation fee for lignite coal at the lesser rate of 10 cents per ton or two per cent of the value of the coal, whichever is less. The compromise reached on the reclamation fee for lignite reflects the conferees balancing two factors. First, lignite generally has had a lower value than coal and thus a 10 percent fee could be onerous. Second, many recent long term contracts for lignite have had prices in the same range as subbituminous coal.

98 The Conferees intend that 50 percent of the reclamation fee must be allocated to the state or Indian reservation in which the coal was mined, if there is an approved State or reservation reclamation program. Once all the eligible lands in a State or reservation have been reclaimed, all voids filled, and all tunnels sealed, the Secretary has discretionary authority to allow use of all or part of this 50 percent for construction of public facilities in communities impacted by coal development. This can only be done if certain specified Federal payments are inadequate to meet the needs.

99 The additional 50 percent is to be spent by Secretary through the State program if he determines that is the best means of achieving the purpose or, on his own or by other Federal agency after consultation with the State.

99 The Conferees limited this "impact" provision which originated in the Senate amendment in recognition of the increase in the State share of Federal coal and other mineral leasing revenues and the impact loan fund enacted in the 94th Congress as part of the Federal Coal Leasing Amendments Act and the Federal Land Policy and Management Act.

99 Section 403. The Senate amendment set forth somewhat more detailed and specific objectives of the Abandoned Mine Reclamation Fund, such as the conservation of various natural resource values and the development of public owned lands adversely affected by past coal mining operations. The House receded.

99 Section 404. Provisions of the House bill were adopted, covering both land and water resources which are adversely affected by past coal mining activities.

99 Section 405. This section is a melding of both bills in nearly equal proportions. Under the Senate amendment the Secretary was required to promulgate rules and regulations covering State abandoned mine reclamation programs, within 180 days after the date of enactment. Also, he was barred from funding such programs in the absence of an approved State regulatory program, he was to grant exclusive authority to a State to implement its aproved abandoned mine reclamation program, reserving the right to withdraw his approval upon noncompliance by the State with the requirements of this title, and he was to monitor the progress and the quality of the State program. The House receded to these provisions.

99 Under the House bill, to which the Senate receded, States may submit for the Secretary's approval a reclamation plan which shall meet certain informational specifications as to reclamation areas, projects, costs, and other planning elements. When the Secretary approves a reclamation plan, it then becomes the approved program for that State and is to be funded as such. Indian tribes are to be considered as "States" for purposes of this title.

99 Section 406. The provisions of this section were identical in that both bills would establish a program for rehabilitation of small land-holdings, except for one proviso. The Senate amendment which contained this proviso allowed the Secretary of Agriculture, in administering the rural lands program, to exercise his discretion to exceed the eligibility limit of 120 acres of land for up to 320 acres, if the grant to the landowner in such cases is reduced proportionately. The Senate proviso was agreed to. 100 Section 407. In combining the two versions in this section, the Conferees clarified the State role throughout by insuring that equal authority may be exercised by the Secretary or by the State under its approved State program. The Senate version as adopted required a finding of fact as to certain preconditions having been met, prior to entry upon or acquisition of land or water resources adversely affected by past coal mining practices. It contained various authorizations, including those for the construction of treatment facilities and the acquisition of coal refuse dumps, the resale of land after reclamation at not less than fair market value, and the transfer of such lands by the Secretary for use in projects to construct or rehabilitate housing for persons displaced, disabled, or dislocated as a result of past coal mining activities or natural disasters.

100 Section 407(b) authorizes the Secretary to acquire eligible lands and then, after reclamation, transfer them to state or private ownership, if he determines that acquisition and reclamation is an element of an economically feasible plan for a project to construct or rehabilitate housing for several classes of persons set out in the bill. The land acquisition authorization includes authority to acquire any improvements on the lands. The value of such lands or improvements is to be determined without regard to any damage from past mining, such as subsidence.

100 For example, the Secretary could acquire lands and improvements thereon damaged by subsidence, and the owners then could use the funds to buy a new residence.

100 Also lands damaged by mining could be acquired, reclaimed, and used as site for housing for people displaced by a natural disaster, such as a flood.

100 Section 408. The Senate amendment was adopted in its entirety but was modified by the Conferees so as to empower both the Secretary and the States, pursuant to an approved State program, to act to recover the costs of reclaiming privately owned lands. Retained from the House bill, which was similar to the Senate amendment, was a requirement that the lien shall have priority second only to real estate taxes imposed upon the land in question.

100 Section 409. There were no differences between the House and Senate bills in this section, with the exception of a provision authorizing State regulatory agencies to carry out this type of reclamation, which was agreed to by the Conferees. The section relates to non-coal mine reclamation of abandoned or orphan lands.

100 Section 410. This section accords certain power to the Secretary to act where an emergency constituting danger to the public health and safety exists and where no other remedy is available. It has no counter-part in the House bill and the House receded. The Conferees deleted covered in full from the landowner involved.

100 Section 411. The House bill and the Senate amendment were identical with respect to the reporting requirements on reclamation fund activities.

100 Section 412. The House bill contained no comparable language. The House receded and agreed to adopt the Senate version.

101 Section 413. This section was taken from the Senate amendment. The Conferees deleted a paragraph requiring consultation by the Secretary with certain other Federal agencies. There was no equivalent provision in the House bill.

101 Title V. - Contains the most critical portion of the two bills: the authority to regulate surface mining; the procedures to be used by all parties - Federal, State and local governments, and operators and citizens; the environmental protection standards; bonding; enforcement and penalty provisions; and the judicial remedies available to all participants.

101 Section 501. The House bill and the Senate amendment were quite similar and the melded provision provides for the issuance of regulations for the interim and permanent regulatory programs. This provision also excludes the issuance of regulations for the interim program from being a major Federal action under the National Environmental Policy Act of 1969.

101 Section 502. The House bill provided for an interim regulatory program which would apply to existing mines 9 months after the date of enactment, and new mines 6 months after date of enactment. The interim program consisted of a number of environmental protection standards: planning, regrading to approximate original contour, topsoil segregation, revegetation, water resources protection, mine waste disposal, surplus spoil disposal, blasting, and steep slope mountain mining standards of no spoil on the downslope and complete back filling of all high-walls. The intermim program also provided for backup Federal inspections after a series of State inspections showed failure to comply with the interim environmental standards.

101 The Senate amendment provided for a similar interim program, however with the following differences: The interim standards did not include blasting provisions, the backup Federal inspection program mandated Federal inspection of every operator every 3 months, and a specification that small mine operators (up to 100,000 tons annual production) would not have to meet requirements of interim program (excepting the steep-slope provision regulating downslope placement of spoil immediately below the bench) for a 24 month period after the date of enactment.

101 The Senate receded to the House in the range of environmental standards (the conference report includes surplus spoil disposal areas by reference through inclusion of section 515(d) and (e)). The House receded to the Senate by agreeing to a more complete back-up Federal inspection system. A compromise provision stating that surface mine operations permitted in a State prior to date of enactment of this Act, having total annual production from surface and underground mines not exceeding 100.000 tons, do not have to meet the interim Federal standards (excepting the prohibition of pushing spoil on the downslope below the bench) until January 1, 1979.

101 In accepting the concept of the Senate amendment the Conferees modified it in two ways. First, they made the 100,000 ton per operator (not per mine) ceiling qualification for the additional time to comply with the interim standard applicable to the combined total production from all mines - both surface and underground.

102 Second, the extension expires on January 1, 1979. The conferees want to stress that the individual states have complete authority to require full compliance at an earlier time if they so choose.

102 The conferees expect the Secretary to promulgate regulations establishing procedures under which operators may demonstrate that they are eligible for the extension of time for compliance with the interim standards.

102 The conferees also wish to note that the extension applies only to permits issued on or before six months after enactment of H.R. 2. It does not apply to renewal of such permits. The permit term is, of course, established by state law.

102 Section 503. Both bills were virtually identical and this section establishes the porcedure for the development, submission and approval of a permanent State regulatory program meeting all of the minimum requirements set forth in the Act. The conferees agreed to clarify the language of the bill dealing with the consistency of state laws and regulations with the Federal laws and the Secretary's regulations. They adopted the principle of the Senate amendment that an approved state program requires (1) a State law consistent with the Federal law and (2) state rules and regulations consistent with the Secretary's regulations. The Conference Report retains the basic principle that the Federal law and regulations are minimum standards which may be exceeded by the States.

102 Section 504. Both bills were virtually identical. This Section of the Conference Report sets forth the procedure by which the Secretary of Interior implements a Federal program for regulating coal surface mining in the absence of an approvable State program. Procedures are also established to provide for the transition from State to Federal programs, or vice-versa, in order to assure that coal operations can continue in an orderly manner.

102 Section 505. Both bills were identical.This section stipulates that States may have regulatory laws more stringent than provisions in Federal legislation.

102 Section 506. The House bill and the Senate amendment set forth a timetable for obtaining permits to conduct surface coal mining operations under the permanent regulatory program. The provisions of both bills were similar. The agreed upon meld includes the following provisions combined from both bills: all mines must have valid permits no later than 8 months after the implementation of the State or Federal regulatory program; permits are for an area to be mined in a term not to exceed 5 years, however a longer term permit may be issued if necessary for financial reasons; termination requirements in the absence of commencing operations with provisos for extension for specified reasons; the right of successive renewal for areas within a valid permit with the burden of nonrenewal upon objectors to renewal or the regulatory authority finds that certain specified conditions are not being met by the operator; and that any new areas included in such a permit renewal requires meeting full standards applicable to new permits.

102 H.R. 2 included a specific provision pertaining to the renewal of permits for mines eligible under the "proviso" pertaining to operations on alluvial valley floors [Sec. 510(b)(5)]. Existing permits for eligible mines may cover only a portion of the planned life of the mine on file with the regulatory authority. In such instances, the House provision stipulates that appropriate new areas identified in the long term mine plan on file with the regulatory authority but not under existing permit, also are eligible under the provision.The Senate amendment had no such provision and the Senate receded.

103 Section 507. Both bills detailed the information to be included in an application for coal surface mine operations. Such information included: identification of the operator and lands to be mined; past mining record; method of operation; accurate maps showing cultural, physical, and pertinent geologic data; hydrologic information; a reclamation plan and certificate of insurance. HR2 included the provision to waive certain test boring or core sampling analysis if the data were already available and therefore unnecessary with respect to a specific application. The Senate receded.

103 The Senate amendment included the stipulation that the determination of hydrologic consequences with respect to cummulative impacts of all anticipated mining would not be required unless data were available. The House receded with the further stipulation that the mine permit would not be approved until such information was available and incorporated into the application.

103 Section 508. This section details the reclamation plan requirements. The provisions of both bills were similar and specified that a wide range of information and analysis be included in the plan. The following data, for example, were included in both bills: an identification of the entire areas to be mined over the life of the operation and smaller areas for individual permits; land capability prior to mining; postmining land uses, and how they are to be achieved; the mine plan including the engineering techniques, technology to be used, and timetable of operations; and methods of protecting water resources. H.R. 2 also included specific provisions concerning productivity of prime agricultural lands and the Senate receded after such provisions were made applicable to prime farmlands.

103 Section 509. This section sets forth the requirements for performance bonds. Both bills included such requirements. The Senate amendment included discretionary authority for allowing applicants to bond themselves. The House receded.H.R. 2 included discretionary authority for alternative bonding approaches providing the objectives and purposes of this bonding program are met. The Senate receded.

103 Section 510. This section includes the provisions from both bills which set forth the standards by which permit applications are to be approved or disapproved in the permanent regulatory program. Both bills placed the burden-of-proof upon the applicant to show that the provisions of the act will be met and the regulatory authority must make such a finding in writing. Specific tests are included: the permit application is complete and accurate; the applicant has demonstrated that reclamation requirements can be met; the assessment of cumulative hydrologic impacts has been made; the area is not under consideration for "designation unsuitable for surface mining" and the imposition of certain constraints if located on an alluvial valley floor.

103 Several of the significant differences between H.R. 2 and S. 7 were included in this section and pertain to alluvial valley floors, prime farm land, and consent of surface landowners to mining operations.

104 Alluvial valley floors

104 H.R. 2 stipulated that no mines were to be located on "alluvial valley floors" in the west, nor were such mines to materially damage the quantity or quality of water in grounds surface systems which supply the valley floors. However, surface coal mine operations producing coal in commercial quantities in the year preceding enactment of this Act and were located on or adjacent to an alluvial valley floor were exempt from this constraint. Similarly, those mines which already obtained specific permit approval to conduct mining in an alluvial valley floor were also excluded.

104 The Senate amendment provided for new mine operations on alluvial valley floors under limited circumstances. Mines that would interrupt, discontinue or prevent farming on alluvial valley floors when such farming is part of the farm's agricultural production would not be approved. Undeveloped rangelands are not included in this constraint as well as those developed or farmed lands which are so small as to have a negligible impact on the farm's agricultural production. The exemption to this provision for existing or permitted mines is essentially the same as that in H.R. 2.

104 The Senate amendment also provided authority for the Secretary of Interior to lease Federal coal deposits as an exchange relinquishment of a Federal coal lease for coal affected by this alluvial valley floor constraint. Such an "exchange" would be limited to those operators who had made a "substantial legal and financial" commitment to mine such coal prior to January 1, 1977. Similar exchange authority under section 206 of the Federal Land Policy and Management Act of 1976 was granted the Secretary with respect to "fee" coal owned in alluvial valley floors. Both of these authorities were discretionary on the part of the Secretary.

104 The House receded to the Senate provision with few changes. The phrase "not interrupt, discontinue or prevent farming" was modified to "not interrupt, discontinue or preclude farming" in order to assure coverage of those lands which may be taken out of agricultural production in order to qualify for a new mine start on an alluvial valley floor.The conferees did not want this type of change in land-use to qualify an alluvial floor for mining. The phrase "not adversely affect" with respect to off-floor operations was changed to "not materially damage". The conferees also stipulated that the Secretary develop and carry out a coal exchange program for fee coal located in alluvial valley floors under the provisions of section 206 of the Federal Land Policy and Management Act of 1976. If developed lands on alluvial valley floors were of "such small acreage as to be of negligible impact on the farm's agricultural production" they may be included in a mine plan. The conferees recognize that farming on the mine site must be interrupted during the mining and reclamation process. Therefore, the language quoted above is not intended to apply to such temporary onsite interruptions but is limited solely to such interruptions of offsite farm activities.

104 The language added by the Conferees to the "Wallop Amendment" of the Senate version is designed to make it clear that the Secretary should actively implement the coal exchange program. This program would apply to all those private coal deposits, regardless of any previous financial or legal commitments, which the Secretary determines cannot be mined because of the provisions of Section 510(b)(5). The program would not apply to privately owned coal which might have been mined in the same operation but which can still be mined. 105 Prime farmlands

105 The Senate amendment contained a special test, effective on the date of enactment, with respect to the protection of prime farmlands. Any mine application whose area in prime farmlands exceeded 10 percent of the total area included in the application would have to demonstrate that such lands would be restored to full productivity. The granting of such a permit would be discretionary on the part of the regulatory authority. Permits and coal surface mine operations existing on the date of enactment would not have to meet this test.

105 The House bill had no such provision.

105 Conferees agreed to a revised provision which stipulates that such a permit shall be granted if the regulatory authority finds that the applicant has "the technological capability to restore such mined area, within a reasonable time, to equivalent or higher levels of yield as nonmined prime farmland soils in the surrounding area under equivalent levels of management." The exclusion for existing mines, permit or renewals thereof after the date of enactment was also agreed to by the Conferees who desired to assure continued operation of ongoing mines. It is the intention of the Conferees that the written finding that the regulatory authority is required to make before a permit is granted to mine on prime farmland can be based in part on the expert opinion of the regulatory authority, the operator has the technological capability to perform the soil reconstruction standards of section 515(b)(7) and the performance of those standards will result in the restoration of the mined area to equivalent or higher levels of agricultural yield as nonmined prime farmland in the surrounding area under equivalent levels of management. This does not mean that mining and restoration must have taken place in the surrounding area, but simply that the operator can show by agricultural school studies, or other data for comparable areas that equivalent yields can be obtained after mining.

105 The Conferees agreed that the protection for prime farmland should apply to all permits issued after enactment. The Conferees expect that the Secretary will issue regulations to implement this section as soon as possible.

105 The term "prime farmland" is defined in Section 701(33). The definition by the Secretary of Agriculture was set out during the Senate debate (May 20, 1977 - page S8109).

105 Surface owner consent

105 H.R. 2 required consent of the surface landowner for stripmining if both the surface and mineral estates were in separate private ownerships.The applicant would have to show: (a) written consent; (b) a conveyance expressly granting the right to stripmine; or (c) other evidence establishing that the conveyance authorized stripmining. It was presumed that in the absence of such evidence the conveyance was intended to limit coal mining to the practices in general use at the time of conveyance.

106 The Senate amendment had no such provision.

106 The matter was resolved by providing that in those cases in which there is no written consent of the surface owner or no express coverage of the right to mine coal by surface methods in the relevant legal instruments that (1) the determination of whether or not the private mineral estate owner or a successor-in-interest has the right to mine the coal by surface methods shall be made in accordance with applicable state law, and (2) jurisdiction to make that determination under applicable State law shall remain in the body - most probably the State courts - given that jurisdiction by the state in question. In those cases in which the applicant has neither the written consent of the surface owner nor a legal instrument expressly providing for surface mining, the applicant would be able to furnish the regulatory authority with any appropriate evidence of its right to engage in surface mining, including the original severance instrument and legal authority under applicable State law that the language in such instrument gives it the right to mine coal by surface methods.

106 If there is any legal question, the body designated by State law to determine property rights will resolve the issue.

106 Section 511. The House bill and the Senate amendment were quite similar and set forth procedures for revision of permits during the same term of the permit. H.R. 2 stipulated that the regulatory authority could require reasonable revision or modification of the permit during its term. The Senate amendment stipulated that the regulatory authority within time limits prescribed in regulations review outstanding permits for identification of necessary revisions or modifications. The House receded with respect to this provision.

106 Section 512. This Section prescribes the procedures and standards that apply to exploration activities for coal. The provision was the same in both bills except for a 250 ton limit on coal removal without specific written authority which was included in H.R. 2. Senate conferees receded on this limitation.

106 Sections 513 and 514. These two sections pertaining to Public Notice and Hearings and Decisions of the Regulatory Authority and Appeals were similar in the House bill and Senate amendment and were considered jointly by the Conferees.

106 Both the House Bill and the Senate amendment set forth statutory guidelines for public notice and hearings on permit applications. The House Bill and Senate amendment both require the applicant for a surface mining permit to give public notice of his pending application through local newspaper advertisement and the regulatory authority is required to notify local governmental agencies of the pendency of the application. Under the Senate amendment, such agencies were obligated to submit comments on the application to the regulatory authority.The House Bill makes the submission of comments optional. The Conferences adopted the House approach.

106 The House Bill provides that "any person having interest which is or may be adversely affected," or appropriate governmental officials may intervene in the permit process by filing written objections to the permit.The House Bill authorizes the regulatory authority to hold an informal conference on the objections prior to the decision on the permit. The Senate Amendment allows appropriate government officials or any person "with a valid legal interest" to intervene by written objections, and conferers the right to a public hearing if the objections are not frivolous. The conferees adopted the House approach both as to standing to intervene and informal procedures in lieu of a formal public hearing. The conferees further provided for a full public hearing after the decision on the application to be governed by 5 U.S.C. section 554 if the Secretary is the regulatory authority. If the State is the regulatory authority, the hearing is to be of record and adjudicatory in nature. The conferees rejected the Senate provision that the Secretary may not prescribe hearing procedures as a condition of approval of a State program.

107 The requirement in 513(b) for a newspaper advertisement of an informal conference "at least two weeks" prior to the conference date is to be interpreted in accordance with applicable state law. For example, where weekly newspapers are used, state laws frequently interpret "2-week notice" to be satisfied by publication in two consecutive weekly issues.

107 This section also requires that a public record of an informal conference be maintained. The conferees believe that records of informal conferences do not have to be as complete and formal as would be required for records of formal hearings.

107 Section 515. This Section contains the specific environmental protection performance standards for surface mine operations. The structure and general content of this section was similar in the two bills. The section has a number of subsections, however, there are three main subsections concerning: (1) general standards for all mines, (2) additional standards for mountain top operations and (3) additional standards for steep slope contour mine operations.

107 General standards

107 The general standards common to both bills include: restoration objectives; regrading to "approximate original contour"; topsoil segregation; revegetation and time periods for operator responsibility; water impoundment controls; water resources protection; control of blasting; mine waste disposal and control of access roads.

107 H.R. 2 provided a general standard for surplus spoil disposal in lieu of practices of pushing the spoil downslope from mining benches. The Senate amendment included similar standards for the various types of mining.Conferees melded the provisions into one provision (515(b)(22)).

107 H.R. 2 provided for special soil reconstruction standards for prime farmlands. The Senate amendment had no comparable provision and the Senate receded.

107 H.R. 2 provided that surface mine operations could mine closer than 500 feet active underground mines as long as the regulatory authorities for both (1) underground mine health and safety and (2) surface mines approved the coincidence of operations. The Senate amendment prohibited outright surface operations from coming within 500 feet of an active underground mine. Based on the possible large number of combinations of mining occurrences, geologic factors and health and safety parameters, and the apparent inflexibility of the stipulated 500 foot prohibition, the Senate conferees receded to the H.R. 2 provision. The conferees adopted the House version with the addition of language from the Senate amendment which makes it clear that surface mines can be permitted to mine completely or partially through abandoned underground mines. This practice will be particularly significant in mountain top removal mining.

108 The Senate amendment included a short-term limited and temporary variance to the approximate original contour grading standard when underground mining is to immediately follow stripmining and when backfilling the highwall and regrading to the approximate original contour is inappropriate. Such may be the case for "punch mining" from a contour stripmine bench. Such variance would be for only those portions of the highwall and related bench area required for entryways, et cetera of the punch mine. At the completion of underground mining, the deferred regrading to the approximate original contour with all highwalls backfilled would be required and the operator's performance bond would be held for the duration of both operations and until the full requirements of regrading to approximate original contour are met. H.R. 2 had no such provision and House Conferees receded.

108 The Senate amendment provided environmental standards and policy guidance with respect to auger mining as part of surface mine operations. House conferees receded on this provision.

108 The Senate amendment included specific standards to minimize disturbances to and protect fish and wildlife resources and related environmental values. House conferees receed on this provision.

108 Mountaintop mining

108 The second major subsection pertains to mountaintop mining and stipulates special specific land-use assurances for a wide range of past mining land uses. Excess spoil is to be disposed of in accordance with the general spoil disposal standards. Conferees melded the two provisions.

108 Contour mining 108 The third major subsection concerns contour mining on steep slopes.Both bills provided for regrading to approximate original contour including complete backfilling of the highwall. H.R. 2 stipulated that no spoil was to be pushed or placed downslope of the bench while S. 7 allowed that spoil from the first short initial cut to be placed downslope below the bench. Senate conferees receded to the House provision.

108 The Senate amendment provided a variance to the approximate original contour and backfilling highwalls completely for a wide range of post mining land uses. In addition, if "sound engineering technology" indicated that the highwall could not be completely backfilled, then the operator would have been required to reduce the highwall to the maximum extent consistent with "sound engineering technology" and develop a revegetation plan that is "reasonably calculated" to screen the remaining highwall within 5 years. H.R. 2 included no such provisions.

108 Conferees agreed on a modified variance to the approximate original contour standard which requires that all highwalls are to be completely backfilled in every instance. This amounts to a variance from the "configuration" aspects of the regrading standard [See the definition, Sec. 701(2)]. This gives an opportunity for a broad range of postmining land uses on those operations which would result in a very wide bench accommodating both the stable and complete backfilling of the highwall as well as additional areas for the planned land uses. Conferees did not adopt the "sound engineering technology" provision of S. 7.

109 Section 516. This section establishes environmental standards for the surface impacts of underground mine operations. The provisions of both bills were similar and the melded version include environmental standards covering: subsidence, exploratory activities, surface disposal of mine wastes, revegetation, protection of offsite areas from damage, elimination of fire hazards, protection of water resources, the design of new mines to prevent gravity discharge of mine drainage, and the protection of fish, wildlife and related environmental values. The implementation of these standards is to be coordinated with MESA in order to assure that health and safety standards are not abridged. The House conferees receded to the Senate with respect to the standards pertaining to gravity water discharges from mine openings and protection of fish and wildlife resources.

109 Section 517.This section sets forth the authority for inspection of coal surface mine operations and monitoring the impacts of such operations including the effectiveness of reclamation activities. The general provisions in both bills were virtually identical. However, the House receded to the following additional provisions in the Senate amendment: (1) mine identification at entrance to operation; (2) written notice of violations to operators; (3) availabilility of inspection reports to the public; (4) conflict-of-interest provision concerning inspectors; and (5) Secretarial responsibility for issuance of citations for violations and performance of adequate and complete inspections.

109 Section 518. This section of the conference report sets forth the penalty scheme to be applied under the act and the procedures to be followed in the imposition of penalties. Any violation may lead to a civil penalty but if a cessation order is issued then the penalty is mandatory.

109 A major issue was presented by the House bill's inclusion of language in section 518(e) that would allow the Secretary to take civil penalties owed by the operator from the performance bond posted to assure reclamation of the area upon default. The Senate amendment had no similar provision. The House receded to the Senate on this issue.

109 The Senate amendment included a provision for the assessment of a penalty of $7 50 for each day an operator fails to comply with an order to correct a violation within the period permitted for correction. H.R. 2 had no such provision and the House receded.

109 The Senate amendment explicitly stated that the enforcement section of the Federal bill will not prevent a State from adopting additional enforcement mechanisms. The House receded.

109 Section 519. This section sets forth procedures for release of performance bonds. Both bills provided for phased release depending on amount of reclamation accomplished and for public notice and hearings.

110 The House bill provided a 60-day period for site inspection after the request for bond release. The Senate amendment provided for a 30-day period and this was adopted by the conferees in order to provide for expeditious action on the part of the regulatory authority. The conferees intend that site inspections be made, where necessary, prior to action on the release.

110 The House bill included a special test for partial bond release geared to restoring productivity of prime farmlands. The Senate conferees receded.

110 The Senate amendment included a provision pertaining to maintenance of silt dams as a condition of partial bond release. The House receded.

110 Section 520. This provision of the conference report pertains to citizen suits.

110 The House bill and the Senate amendment thereto had similar citizen suit provisions. The conferees adopted a blend of these two sections including the House language vesting jurisdiction in the Federal courts without regard to citizenship or jurisdictional amount (the Senate amendment is silent on this point) and a rewritten version of the Senate amendment's subsection (f) that establishes a right of action for injuries resulting from an operator's violation of any rule, regulation or order or permit issued under the act (the House bill contained no similar provision).

110 Section 521.This section of the conference report sets forth the procedures to be followed by the Secretary in the enforcement of the Act.

110 The House bill and Senate amendment presented different treatment of procedures leading to a cessation order and permit suspension. Section 521(a)(4) of the House bill requires that the finding of three "serious violations" within a 90-day period would automatically trigger a cessation order mandating correction of the violation and an automatic cessation order for every violation noticed six months thereafter. An order to show cause why the permit should not be suspended or revoked must issue under the House bill after the third cessation order.The companion provision of the Senate amendment requires the issuance of an order to show cause why the permit should not be suspended or revoked upon the finding of a "pattern of violation" either willfully caused by the permittee or as a result of an "unwarranted failure" to comply. The House receded to the Senate on this point and the conference report contains the provisions of the Senate amendment. 110 Another issue presented in the Enforcement section of the legislation is the differing procedures by which the Secretary can enforce part of a State program. The House receded from its position that the Secretary could exercise this authority upon the finding of a State's effective failure to enforce, and the conference adopted the Senate amendment's requirement for a public hearing prior to such action by the Secretary. 110 Section 522. The House bill and the Senate amendment had similar provisions pertaining to the designation of lands unsuitable for surface coal mining. State regulatory programs must include a responsible process to respond to petitions for designating areas unsuitable for all or certain types of surface coal mine operations and criteria and procedures for designation are set forth. 111 With respect to such designation of Federal lands by the Secretary, the House bill required consultation with local and State agencies. The Senate amendment was silent as to consultation and the Senate conferees receded. 111 Both the Senate amendment and the House bill contained similar provisions barring strip mining in national forests with limited exceptions. The House bill provides that such exceptions were not applicable to the Custer National Forest, while the Senate amendment extended this limitation to all national forests in Alaska. The Senate receded so that the conference report does not ban the application of the exceptions to the general prohibition on mining to national forests in Alaska. 111 Section 523. The House bill and the Senate amendment directs the Secretary to promulgate a program regulating coal surface mine operations on Federal lands and which incorporates all of the provisions of the act. 111 The House bill required that this be accomplished in 6 months while the Senate amendment established a

12 month time period. The House receded.

111 The Senate amendment required that the provisions of an approved State regulatory program be made part of Federal permits, leases or contracts. The House receded stipulating that such inclusion was linked with the authority for State regulation of Federal lands.

111 The House bill required the Secretary to develop a program to avoid unreasonable denial of Federal coal to any class of purchasers. The Senate amendment did not include such a provision and the Senate conferees receded.

111 Section 524. This provision stipulating that public agencies, public utilities and public corporations must comply with title V of the conference report was an identical provision in each bill.

111 Section 525. The House bill and its companion section of the Senate amendment were very similar. The House bill allows the Secretary to award costs in an administrative proceeding. The Senate amendment contained no similar provision. The conferees adopted a version of the House provision modified to clarify responsibility for awarding such costs.

111 Section 526. The House bill and Senate amendment are similar in their treatment of judicial review. The House bill provides for judicial review of the Secretary's decisions regarding approval or disapproval of a State program in the U.S. Court of Appeals in the circuit in which the State is located while regulations were subject to review in the District Court for the District of Columbia. Under the House bill, other orders are subject to review in the U.S. District Court in the district in which the surface coal mine is located. The Senate amendment established jurisdiction in the U.S. Court of Appeals for the areas in which the operation is located.

111 The conferees agreed to language vesting jurisdiction in the appropriate District Courts and established that review of the Secretary's action to approve or disapprove State programs, promulgate a Federal program, promulgate regulations and any action constituting rule making shall be based on an arbitrary or capricious standard.

111 Section 527. The House bill authorized the Secretary to issue separate regulations for specified environmental protection standards for special bituminous coal mines located in the West which meet certain criteria. Existing operations as well as potential new mines adjacent to such eligible operations are covered. State laws, regulations and decisions made by State regulatory authorities are to be protected.

112 The Senate amendment mandated the Secretary to issue such separate regulations only for existing eligible mines. The Senate receded to the House provisions.

112 Section 528. The House bill and the Senate amendment exempted certain small noncommercial coal mining operations from the provisions of this act.

112 The Senate amendment also included an exemption for all construction. The conferees agreed to a modified version of the Senate amendment which limits the exemption to extraction of coal as an incidental part of government-funded construction only, rather than all construction as originally provided in the Senate language.

112 Section 529. The House bill included a provision requiring the Secretary to issue special regulations for anthracite coal mine operations which are especially regulated by the State in which they are located.

112 The Senate amendment had no such provision and the Senate conferees receded to the House provision.

112 Title VI. - The House bill establishes a process for designating certain lands unsuitable for all or certain types of mining of minerals other than coal. The Senate Amendment contained no such title.

112 Conferees agreed to adopt a modified provision identical to that contained in H.R. 25, 94th Congress, which was approved by the Congress but vetoed.

112 Title VII. - The House bill and Senate amendment included similar titles containing definitions, authorizations for appropriations, and miscellaneous provisions.

112 Section 701. All the definitions contained in the House and Senate bills were identical except for the following instances:

112 (1) "Alluvial valley floors." Additional clarifying language taken from the definition colluvial deposits composed chiefly of debris from sheet erosion deposits, by unconcentrated runoff or slope wash, together with talus, other mass movement deposits and windblown deposits.

112 (3) "Approximate original contour." The House version as agreed to by the Conferees allows terracing and the retention of access roads within the mined area after back-filling to the approximate original contour, but requires complete elimination of all highwalls and spoil piles.

112 (4) "Federal lands." A modification of the proviso contained in the Senate amendment was included so as to exempt coal deposits of the Tennessee Valley Authority from the effect of surface owner protection and Federal lessee protection provisions of the act.

113 The conferees adopted a version of the definition of Federal lands in the Senate amendment to make it clear that coal owned by the Tennessee Valley Authority would not be subject to the surface owner and Federal lessee protection requirements applicable to other coal owned by the United States.

113 This definition retains the House bill provision which gives the Secretary of the Interior certain authority to set guidelines for mining of coal owned by TVA. (See Sections 522 and 523).

113 In granting this authority to the Secretary, the conferees recognize that the coal reserves entrusted to or managed by the Tennessee Valley Authority are needed for it to carry out its responsibilities under the Tennessee Valley Authority Act of 1933. In view of the importance of the availability and use of such coal reserves in conjunction with the proper operation of TVA's power program, it is the Conferees' intent that the Secretary recognize and give due regard to the needs and responsibilities of the Tennessee Valley Authority when carrying out the provisions of this act.

113 (8) "Imminent danger to the health and safety of the public." Language taken from the House bill was added to the definition, relating to reasonable expectation of death or serious injury.

113 (20) "Prime farmlands." The Senate amendment was adopted (the House bill defined "prime agricultural lands"). The Conferees agreed that the Senate definition was technically preferable with the addition of a requirement taken from the House bill to the effect that the historical land uses must be considered by the regulatory authority in determining the eligibility of lands under this definition.

113 (28) "Surface coal mining operations." The Senate amendment's reference to the provisions of section 512 which concerns underground coal mining performance standards, and the House bill's inclusion of the use of explosives and blasting were both incorporated into the definition by the conferees.

113 (30) "Lignite coal." This definition was taken from the Senate amendment, originally provided by the U.S. Bureau of Mines. The Conferees deemed it to be necessary because lignite coal would be subject to a lesser reclamation fee under the provisions of title IV.

113 (31) and (32) "coal laboratory" and "institution of higher learning." These terms refer to titles VIII and IX respectively. They were adopted from the Senate amendment.

113 Section 702. The Adopted Senate amendment added the Mineral Leasing Act of 1920, as amended, to the list of Federal laws which would not be superceed, amended, modified or repealed by the act.

113 Section 703. The House bill required the Secretary to conduct an evaluation of potential losses or shifts of employment resulting from enforcement of the act. The Conferees deleted this requirement as being unnecessary. In all other respects, the House and the Senate versions were identical with respect to this provision of protection of employees.

114 Section 704. Protection of Government Employees.

114 The House and Senate versions were identical.

114 Section 705. Grants to the States.

114 The House receded to the more liberal Senate amendment establishing a ceiling on annual grants made by the Secretary to the State and setting these at 80 percent of the total costs in the first year of implementation, 60 percent in the second year, and 50 percent thereafter. The House bill would have established a 50 percent ceiling throughout.

114 It is expected that the higher levels of reimbursement will provide better incentives for timely State participation in the various aspects of implementation of the Act.

114 Section 706. Annual Report.

114 The House bill and the Senate amendment were the same.

114 Section 707. Severability.

114 There were no differences between the House and Senate versions.

114 Section 708. Alaskan Surface Coal Mine Study.

114 The compromise arrived at in this section includes a requirement from the House bill that funds for studies contracted by the Secretary must be provided in appropriation acts, and a Senate authorization under which the Secretary may issue special interim rules and regulations modifying environmental protection performance standards as applied to the unique physical and other conditions existing in Alaska.

114 Section 709. Both the House bill and the Senate amendment included study authority for reclamation of noncoal surface mined minerals. Conferees accepted the House provision since it contained budget specifications.

114 Section 710. The House bill was adopted by the Conferees. It was identical to the language reported by the Senate Energy and Natural Resources Committee. However, the Senate had replaced this section with a new title VIII which would have treated Indian tribes in much the same way as States are treated under the Act, in particular by allowing tribal authorities to submit regulatory programs for approval by the Secretary. The Conferees rejected this Senate approach, agreeing instead to the House bill in requiring that a study be carried out by the Secretary and that operations on Indian lands comply with the performance standards of the act.

114 One reason that the Conferees agreed to the House version of the Indian lands provision was that they did not want to change the status quo with respect to jurisdiction over Indian lands both within reservations and outside reservation boundaries.Nothing in the study provision or any other part of H.R. 2 is intended to make any such change.

114 Section 711. The modifications of the experimental practices section adopted by the Conferees are intended to permit the states to allow the specified post-mining land uses where such uses require a modification of the basic reclamation standards of Section 515 and 516. Approval by the Secretary is required as a safeguard against abuses, but the Conferees fully expect that the Secretary will allow such practices to facilitate beneficial post-mining land uses.

115 Section 712. The House bill agreed upon by the Conferees would authorize the funding of interim enforcement and the Indian lands study at an annual rate of $1 0 million through 1980, rather than establishing a ceiling of $1 0 million for each year through 1979, as in the Senate amendment. Also included by the Conferees was authorization taken from the House bill for an additional $1 0 million annually for 15 years to enable regulatory authorities to provide assistance to small operators in making a determination of the probable hydrologic consequences of surface mining operations, as required in their permit applications.

115 For funding grants to the States and for other administrative or general purposes, the more generous House authorization of $2 0 million for the fiscal year ending September 30, 1978, and $3 0 million for each of the next 2 fiscal years, and as much from then on as would be required, was adopted by the conferees.

115 While the funds authorized under section 712(c) are primarily for grants to States, they can be used by the Secretary for his administration costs. The conferees intend that the Secretary use these funds only if there are authorized appropriations still available after State grants are made.

115 Section 713. The Senate amendment contained a provision pertaining to the coordination of regulatory and inspection activities. The House conferees receded.

115 Section 714. The Conferees agreed to the House bill. It would require the Secretary to obtain the written consent of the surface owner (as defined) before leasing any Federal coal deposits underlying the surface owner's land for surface mining. The Senate amendment allowed the Secretary to override the surface owner's objection to leasing Federal coal under his land, if the Secretary found that such leasing was in the national interest.

115 Section 715. Federal Lessee Protection.

115 Section 716. Alaska Coal.

115 Section 717. Water Rights and Replacement.

115 There were no significant differences between the House bill and the Senate amendment in these sections.

115 Section 718. Advance Appropriations.

115 Section 719. Certification and Training of Blasters.

115 The Senate amendment contained no such provisions and the Senate receded in each instance.

115 Title VIII. - University Coal Research Laboratories.

115 Title IX. - Energy Resources Graduate Fellowships.

116 These titles were adopted in their entirety from the Senate amendment. No similar provisions were contained in the House bill.

116 The only revision made by the conferees was the placement of responsibility for administering the provisions of both titles with the Administrator of Energy Research and Development Administration rather than with the Director of the National Science Foundation. This was done at the request of the Administration.

116 MO UDALL, PHILLIP BURTON, TENO RONCALIO, JONATHAN BINGHAM, JOHN SEIBERLING, PAUL E. TSONGAS, NICK RAHALL, JOE SKUBITZ, PHILIP E. RUPPE, Managers on the Part of the House.

116 HENRY M. JACKSON, LEE METCALF, HOWARD M. METZENBAUM, WENDELL H. FORD, SPARK M. MATSUNAGA, CLIFFORD P. HANSEN, JAMES A. MCCLURE, PETE V. DOMENICI, Managers on the Part of the Senate. on the Part of the Senate.

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