Congressional Record May 20, 1977
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Legislative History Congressional Record May 20, 1977 |
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May 20, 1977
The ACTING PRESIDENT pro tempore. Under the previous order, the Senate
will now resume consideration of S. 7, which the clerk will state by title.
S8083 Te assistant legislative clerk read as follows:
S8083 A bill (S. 7) to provide for the cooperation between the Secretary of the Interior and the
States with respect to the regulation of surface mining operations, and the acquisition and
reclamation of abandoned mines, and for other purposes.
S8083 The Senate resumed the consideration of the bill.
S8083 The ACTING PRESIDENT pro tempore. The pending amendment is the Hart substitute
for the Johnston amendment No. 275, as modified.
S8083 The Senator from New Mexico.
S8083 Mr. SCHMITT. Mr. President, I ask unanimous consent that Dick Burdette and Jim
Hinish, of my staff, be granted privilege of the floor.
S8083 The ACTING PRESIDENT pro tempore. Without objection, it is so ordered.
S8083 Mr. SCHMITT. Mr. President, as we seem to not have debate on the pending business
ready to start, I wonder if the distinguished Senator from Wyoming would be willing to answer a
couple of questions pertaining to S. 7.
S8083 Mr. HANSEN. I observe to my friend from New Mexico that Senator HART is in the
Chamber, Senator MELCHER is here, and Senator METCALF is also here. So I imagine we would
follow right on.
S8083 Mr. SCHMITT. I think the Senator.
S8083 AMENDMENT NO. 282, AS MODIFIED
S8083 Mr. HART. Mr. President, a parliamentary inquiry.
S8083 The ACTING PRESIDENT pro tempore. The Senator will state it.
S8083 Mr. HART. What is the pending business?
S8083 The ACTING PRESIDENT pro tempore. The clerk will state the pending business.
S8083 The assistant legislative clerk read as follows:
S8083 Amendment No. 282, as modified, the Hart substitute for the Johnson amendment No.
275, as modified.
S8083 The amendment (No. 282, as modified) is as follows:
S8083 In lieu of the language proposed to be inserted by the Senator from Louisiana, insert the
following.
S8083 "(5) the proposed surface coal mining operation if located west of the one hundredth
merdian west longitude, would -
S8083 "(A) not be located within an alluvial valley floors, or
S8083 "(B) not materially demage the quantity or quality or water in surface or underground
water systems that supply these valley floors referred to in (A) of subsection (B)(5):
{S8084} Provided, That this paragraph (5) shall not apply to those surface coal mining
operations located within or adjacent to alluvial valley floors which in the year preceding the
enactment of this Act were engaged in the commercial production of coal or which had obtained
prior to January 4, 1977, specific permit approval by the State regulatory authority to conduct
surface coal mining operations within said alluvial floors.".
{S8084} Mr. HART. Mr. President, the amendment I am proposing today with my colleague
from South Dakota (Mr. ABOUREZK) as a substitute for the Johnston amendment regarding the
subject of strip mining on alluvial valley floors is identical to the language contained in the House
version of this bill, H.R. 2, which was passed on April 29, 1977, and which would strengthen the
bill's provisions dealing with surface mining on alluvial valley floors.
S8084 This amendment is strongly supported by the administration, and a copy of a letter from
the Secretary of the Interior, Cecil Andrus, strongly affirming the administration's poing, had been
placed on each Senator's desk.
S8084 In addition, this amendment is supported by a wide range of agricultural and
environmental and conservation organizations.
S8084 Mr. President, alluvial valley floors are critical to the arid and semiarid Western States,
especially in periods of drought such as the one we are now experiencing. These valley floors
contain unconsolidated aquifers and streambeds, and are important for natural irrigation and
subirrigation of crops and grazing lands in periods of low rainfall.
S8084 Mr. President. I ask for the yeas and nays on this substitute amendment.
S8084 The ACTING PRESIDENT pro tempore. Is there a sufficient second? There is a
sufficient second.
S8084 The yeas and nays were ordered.
S8084 Mr. HART. I thank the Chair.
S8084 Mr. President, the reason for my concern with surface mining in these areas is that, to date,
there is little information to show that these areas can be reclaimed adequately to protect the
underground water table.
S8084 My amendment would change the committee language by prohibiting new surface mining
operations from taking place in these important areas, including underveloped range lands.
S8084 Mr. President, while I commend the members of the Energy Committee for the attention
they have given this subject, I believe the committee language is too weak in a number of areas.
S8084 First, by "grandfathering" those surface mining operations where "substantial legal and
financial commitments" have been made, the committee has opened up the possibility of endless
litigation and a legal nightmare for the State and Federal enforcement agencies as they attempt to
define just what this language means.
S8084 Second, and more importantly, the committee's exemption of undeveloped rangelands from
the surface mining prohibition ignores the complex nature of the underground hydrologic network.
Surface mining of these areas could concelvably result in the permanent disruption of this
hydrologic netowrk and the permanent loss of productive lands in an area far larger than just the
minesite itself. According to a National Academy of Sciences report, the offsite consequences of
surface mining on alluvial valley floors could be far greater than the effects on the mined lands.
S8084 My amendment would, therefore, include these undeveloped rangelands in the bill's
prohibition against new surface mining in alluvial valley floors, and it would also provide the
authority to make case-by-case determinations on whether proposed surface mining on lands
adjacent to alluvial valley floors could substantially harm the quantity or quality of the alluvial
valley water aquifer.
S8084 Mr. President, many of my colleagues may be concerned that my amendment to tighten the
ban on alluvial valley floor strip mining might effectively keep much of the coal in Western States
from being developed. I want to reassure them that this is simply not so. Recent studies indicate
that only 2 1/2 to 3 percent of the coal in the West is found in these areas.
S8084 At issue, Mr. President, is a critical and unique water supply which we cannot afford to
endanger. The Western States do not have much water in good years, and this year the problem is
nearing disaster. What the West does have is an abundance of coal, which is found in many areas
less critical than these alluvial valleys. What my amendment would do is lock up a small amount of
the West's huge coal reserves so that important agricultural activities can continue unthreatened by
the increased salinity or loss of water that strip mining could cause. As we begin to develop
information on how to reclaim these areas adequately and safely, we in Congress can always reverse
our decision on this subject. But until then, Mr. President, I think we can and should produce our
coal elsewhere.
S8084 In closing, I should like to read briefly frm Secretary Andrus' letter to me on this
amendment:
S8084 This Nation has abundant supplies of coal and we can afford to be particular about where
and how we mine it. Alluvial valleys can be defined geologically and are critical to the water
systems on which many of our citizens depend. Determination of effects of mining in alluvial
valleys is, however, particularly uncertain and the possibility of serious harm is substantial. It is
essential therefore that adequate protection be provided.
S8084 Your amendment will be this and I urge the Senate to adopt it.
S8084 Mr. HANSEN. Mr. President, I appreciate the Concern of the Senator from Colorado.
S8084 This certainly is an issue that has been discussed many, many times. It is my considered
judgment that the language contained in the bill as reported by the Energy and Natural Resources
Committee strikes the most reasonable balance and makes the best sense.
S8084 Obviously, no one wants to take an action whihc would be damaging and irreversible. I
think the language contained in the bill provides those assurances and insures that we can proceed in
a manner conforming with the language in the bill and achieve the goals that the Senator from
Colorado has in mind.
S8084 I shall read what those provisions are:
S8084 The rpoposed surface coal mining operation, if located west of the one hundredth meridian
west longitude, would not have a substantial adverse effect on alluvial valley floors underlain by
unconsolidated stream laid deposits where farming can be practiced in the form of irrigated, flood
irrigated, or naturally subirrigated hay meadows or other crop lands (excluding undeveloped range
lands), where such valley floors are significant to the practice of farming or ranching operations,
including potential farming or ranching operations if such operations are significant and
economically feasible: Provided, That this subparagraph (5) shall not affect those surface coal
mining operations which in the year preceding the enactment of this Act (1) produced coal in
commercial quantities, and (2) were located within or adjacent to alluvial valley floors or had
obtained specific permit approval by the State regulatory authority to conduct surface coal mining
operations within said alluvial valley floors or for which substnatial financial and legal
commitments, as determined by the Secretary, had been made prior to January 1, 1977.
S8084 Mr. President, later, I shall offer an amendment for consideration by the Senate which I
think does address one possible shortcoming in this section.
S8084 However, my point is that we labored long and hard, trying to understand, first, what the
concerns are of all persons intersted in these lands; second, to try to come up with a solution which
would deal fairly with everyone, first insuring that there would not be permanent damage to alluvial
valley floors. I think that with the language that has been gone over a number of times, and to which
attention has been given by all the experts we could call upon, we have come up with a pretty good
answer.
S8084 I hope the Senate will reject the amendment proposed by the Senator from Colorado.
S8084 Mr. HART. Mr. President, I should like to respond briefly to the Senator from Wyoming.
S8084 First, with respect to the provisions contained in the committee bill. I note that the National
Farmers Union, the Grange, the National Farmers Organization, the Rocky Mountain Farmers
Union, and a variety of other agricultural interests are strongly in support of the substitute
amendment I have offered, whihc I think indicates the breadth and depth of the concern on the part
of those engaged in agriculture, particularly in the Western part of this country, about the damage
which the committee language would do to their operations and to the water upon which they are
dependent, if the bill is enacted.
S8084 I think the same concern was evidenced by the House in its adoption of the language which
I am proposing. This language, if it were adopted, would conform the Senate bill to the provisions
passed by the House.
S8084 I also note, Mr. President, in response to the suggestion - not made by the Senator from
Wyoming but by others - that this would do substantial harm to our efforts to mine more coal,
particularly in the Western States, that not only is Secretary Andrus strongly in favor of this
language, but also, I am informed, the President's energy adviser, Dr. Schlesinger, supported the
same language as offered by REPRESENTATIVE BAUCUS in the House and supports the
language contained in my amendment as a substitute.
{S8085} With regard to the committee provisions, although I am sure the Senator from Wyoming
is correct in his suggestion that the committee made every effort to reach a balance and to take into
consideration all the interests, the language in the bill as it now stands grandfathers in those
operations having made substantial legal and financial commitments to mining. Secretary Andrus
says the following with respect to this provision in his letter of May 19 to me, a copy of which is on
the desk of each Senator:
S8085 A grandfather clause of this breadth holds real danger of environmental harm and would
be particularly difficut to administer. In any event, there appears to be no justification for the
open-ended possibility of new mining in these fragile areas provided by the reported bill, particularly
under such an uncertain test as "substantial financial and legal commitments."
S8085 Obviously, this language would leave open the possibility of those who have been
speculating in coal lands in the past to make a real killing here, on the ground that, last year or in
some prior years, they had made a "substantial financial and legal commitment."
S8085 In addition, with regard to the committee language, by allowing mining on undeveloped
rangelands and areas not significant to farming or ranching operations at the present time, the
committee provision opens a loophole that could be extremely far-reaching in effect.
S8085 Secretary Andrus complains in the same letter to which I have referred that it would be
extremely difficult to determine administratively what "undeveloped rangeland" or "significant"
farming and ranching are.
S8085 More important, this language neglects the extremely intricate interrelationship of the
various surface and subsurface water networks in the arid and semiarid West. As with the
grandfather clause on which I have commented, this language leaves open a real administrative and
legal nightmare for the people who have the obligation of administering this law.
S8085 Also, the committee language does not recognize the potentially damaging effects of
mining adjacent to alluvial valley floors which may have the same effect as the actual mining
operation on the valley floor itself.
S8085 So I think that in a number of very important respects, which Secretary Andrus has
outlined in his letter, the committee language is deficient.
S8085 For some of the reasons I already have indicated and some which I will indicate later, I
think the amendment offered by the Senator from Louisiana (Mr. JOHNSON), to which my
amendment is offered as a substitute, does not cure defects in the committee bill but, rather,
exacerbates a number of them.
S8085 It is extremely important, in connection with these interests, to tighten up this bill and to
provide some more particular definition of what we are talking about here than the bill which the
committee has offered to the Senate or the amendment of the Senator from Louisiana.
S8085 Mr. MELCHER. I thank the Senator for yielding.
S8085 On February 4, in a rather detailed letter to the committee. Secretary Andrus addressed
this very particular and critical point of alluvial valley floor treatment in the bill. He advocated the
language we developed last year, which was in H.R. 13950, and now the Senator tells us that
Secretary Andrus is very much enthused and enthralled with the language he is presenting today.
S8085 Does he elaborate; were there public hearings held by the Department of the Interior that
led to this change of position? Was there clear exposure to all of the people, public bodies, that are
involved? How about all of the environmental groups that have had an opportunity in this bill, all of
the companies that might be involved in mining? What is the background of the proposed
amendment?
S8085 Mr. HART. Well, the Senator's questions, I think, would better be directed to the
administration and Secretary Andrus himself because I am not privy to any reasoning that may have
gone on. The Secretary, on behalf of the President and the administration, would have to explain to
the Senator from Montana whether his support for my amendment reflects any yielding to pressure
from any organizations. That I do not know and I cannot account for. But I do konw the Secretary
in his letter to me, and for distribution to the Senate, has indicated very strongly present approval
and support on behalf of the administration for the language which we have proposed here as a
substitute.
S8085 Mr. SCHMITT.Mr. President, will the Senator yield for a question?
S8085 Mr. HART. I yield.
S8085 Mr. SCHMITT. The Senator from Colorado has put his finger on a very important
problem, and I also must compliment the committee for having struggled with this and reached some
form of compromise. I think the debate will determine just how adequate that compromise has been.
S8085 Would the Senator from Colorado define for me and our colleagues what he conceives an
alluvial valley floor to consist of, and what other kinds of materials might be included in that and
other kinds of services?
S8085 Mr. HART. Well, the best approach I can make is an attempt as a layman's - and I
underline layman's - definition of what this geological phenomenon is.
S8085 These floors consist of unconsolidated deposits of gravel and porous rock and silt, and they
consist of either surface or underground aquifers under them, depending on the topography of the
area and the time of year.
S8085 They are usually, in our part of the country, as the Senator from New Mexico knows
lowland areas, where crops or hay are grown.
S8085 In the bill itself there is the definition. I think, on page 290 where alluvial valley floors are
defined as meaning the unconsolidated stream laid deposits holding streams where water availability
is suffucient for subirrigation or flood irrigation agricultural activities. That is the committee's
definition the formation we are talking about.
S8085 Mr. SCHMITT. Well, the definition on page 290 is somewhat imprecise.
S8085 I would ask the Senator would he conceive of the alluvial land, very often lying between a
mountain range and a flood plain of a stream, as being included in this definition of alluvial valley
floors? The Senator is aware of what I am speaking in these very broad unconsolidated gravels and
sands that come out of the mouths of streams that issue from mountain ranges at the edges of
agriculturally productive valleys.
S8085 One can conceive of alluvial plains, and in some cases they are plains where agricultural
water may be dumped from these same deep aquifers that are fed from the valley itself.
S8085 Would the Senator include those as part of his definition?
S8085 Mr. HART. Well, I think to the degree they conform with the other narrow aspects as
outlined by the committee, the answer is, yes.
S8085 I do note that in the letter which Secretary Andrus wrote, the letter of May 19, directed to
me by him that he is of the belief, I think in the last paragraph of that letter, that alluvial valleys can
be defined geologically and are critical to water systems.
S8085 The other observation I would make is that any deficiencies in the definition of the areas
we are talking about, alluvial valley floors, would probably be best addressed to the committee and
to the bill language itself, and I would be more than willing to cooperate with the Senator from New
Mexico, who has a great deal more expertise in geological areas than I and, perhaps, anyone on the
committee, with the purpose of clarifying that definition and perhaps, even broadening it.
S8085 But, specifically on the areas which the Senator has mentioned, to the degree they conform
to all of the aspects of the definition which I have suggested, particularly consisting of surface waters
or ground waters, aquifer formations where agricultural activities are taking place or could take
place, I think the answer to this question is probably yes.
S8085 Mr. SCHMITT. So the Senator would see the possibility in a test of this particular
definition in the courts, in the absence of a geological definition in law, that we might see a very
broad application of the general definition of alluvial valley floor as on page 290. That is, it could
conceivably be extended to include all materials between mountain ranges, any area where a gravel
or unconsolidated material overlays coal with water availability coming from aquifers associated
with an alluvial valley or the main flood plain itself.
S8085 Mr. HART.I think to a degree the Senator has identified the problem. The problem is
whether this body accepts the bill as the committee proposes, accepts the Johnston amendment,
accepts my substitute amendment or accepts any other attempt to outline what strip mining will be
permitted in an alluvial valley floor, that is to say, if there is a problem with respect to specificity of
definition, it prevails in all the approaches to that problem. I would be more than willing to have the
representatives of the committee, majority or minority, address themselves to whether the definition
is specific enough or is too vague.
{S8086} All I am saying is that to the degree the Senator from New Mexico has identified the
problem, the problem pervades all these discussions.
S8086 Mr. SCHMITT. I concur with the Senator that it is a problem in both cases.
S8086 The Senator's amendment, however, would exacerbate the problem; that is, it would
certainly tighten up the overall area of the mining of alluvial valleys. Therefore, a very precise
definition of what we mean by alluvial valley floor is even more critical if the Senator's amendment
were to be accepted by the committee.
S8086 I also wonder if members of the committee would like to enter into this colloquy and to
discuss whether the definition of alluvial valley floor is precise enough.
S8086 Mr. METCALF. Whoever has the floor, will he yield to me?
S8086 Mr. SCHMITT. The Senator from Colorado has the floor.
S8086 Mr. HART. I yield to the distinguished floor manager of the bill.
S8086 Mr. METCALF. The Senator from Wyoming has already expressed the opinion of the
committee. This matter was thoroughly discussed. The technical amendments that were proposed,
that are being proposed by the Senator from Colorado, and the rather technical definitions, were
considered in the committee.
S8086 Counsel for the committee and members of the committee felt that such things as
substantial, legal problems would give greater flexibility to the Secretary in making his orders with
respect to the alluvial valley floors.
S8086 In the course of my discussion with the Senator from Louisiana yesterday, I expressed
some of my views and I think I expressed the committee's views on this bill. I join with the Senator
from Wyoming in urging that we adopt the view, the language, and the concept that is in the
committee bill, so that we do have some not too precise, not too specific suggestions, but something
that the Secretary can write some regulations around and that will give some guidance to the court in
interpretation of the law.
S8086 The language of the Senator's amendment is in the House bill, and inevitably no matter
what we agree to we are going to have to go to the House tof Representatives and again thrash this
proposition out. I am not for the Johnston amendment. I am supporting the committee bill. I think
that we are sufficiently precise, that the Secretary can write the necessary regulations. I think we are
sufficiently precise that a competent court can interpret it in the event of an appeal. I would hope
that, unless there is a special thing that the Senators want to bring up, we do not try to take away
from the Secretary of the Interior the flexibility that we tried to give him on the committee.
S8086 Mr. SCHMITT. Mr. President, will the Senator yield?
S8086 Mr. HART. I yield, but I shall first make this observation:
S8086 I appreciate the remarks of the distinguished floor manager, but the Secretary of the
Interior indicated he does not want the kind of authority that the committee is trying to force on him.
He has already indicated to us that he thinks the committee provision is much too broad to write the
kind of regulations necessary to implement this act. He has indicated to us that he hopes we will
take away that vagueness and take away that potential for arbitrariness and give him a specific law
that he can implement. So I think the best argument against the committee position here is the
Secretary's own words that he does not want the authority which the committee is trying to give him.
S8086 Mr. METCALF. The Secretary of the Interior probably does not want a whole lot of
obligations that sometimes we delegate to him by an act of Congress, but I have great confidence in
the Secretary of the Interior. If he gets this delegation I am sure he will do a good job of it.
S8086 Mr. HART. I yield to the Senator from New Mexico.
S8086 Mr. SCHMITT. I hope that the distinguished floor manager of this bill understands that
my question about the definition of "alluvial valley floor" is not to indicate that I prefer the Hart
amendment over the committee language. I am not completely happy with the committee language,
but I must say I prefer it over any tightening of that language. My concern about definition is
simply to illustrate that without a more precise definition we will, in fact, potentially remove even
more coal from available production, particularly coal on private lands, by the adoption of the Hart
amendment.
S8086 I am almost as equally concerned about the language that the committee proposes for the
same reason. There is considerable impreciseness in that definition which the Senator, I believe, sees
as an advantage but I see as a disadvantage because of how far and how sweeping the interpretation
that they be made either by the Department of the Interior, the Secretary of the Interior or by the
courts.
S8086 And as a matter of fact, this is another question that I was going to ask the Senator from
Colorado. Does he have any views concerning the amount of federally and privately owned coal in
alluvial valleys defined either very precisely as only the flood plain or imprecisely as the entire area,
say, between mountain ranges and in basins that as underlain by consolidated gravel?
S8086 Mr. HART. Let me respond again. I think it is a very important point. My amendment
does not make this language any more vague. My amendment does not tamper with the committee's
definition of what alluvial valley floor is at all. If anything, my amendment would prevent the kind
of latitude which the Senator is concerned about in that it tightens up what activities can and cannot
be carried out in these areas and removes from the Administrator's discretion what kinds of
commitments qualify for an exemption from the act.
S8086 So if the Senator is concerned about arbitrariness or vagueness, he would be well advised,
I think, to support an amendment which more narrowly and carefully defines the activities, if not the
areas concerned, to prevent an administrator or bureaucrat, or someone, from getting into a hornet's
nest from which they cannot get themselves extracted.
S8086 I shall simply try to specifically respond on the question of how much coal we are talking
about, citing the following information. It is my understanding there have been three studies which
address themselves to the question of the alluvial valley floors and their relation to the strip mining
of coal. And the following information is taken from those studies, one by Mr. Malde and Mr.
Boyles, in 1976, who mapped alluvial valley floors and strippable coal in a number of counties in
Montana for the U.S. Geological Survey. They found that, of the surface area within the study area
underlain by strippable coal, only 2.67 percent of the land surface studied overlay surface minable
coal which falls within the figure which I have already indicated in my opening remarks of some 2.5
or 3 percent of strip minable coal which is in the area which we are talking about here.
S8086 Also, an EPA study in 1977 on the same subject found that, of land presently leased for
coal mining in eight Western States, meeting the alluvial valley floor criteria contained in this bill,
2.88 percent of the area of the leased lands was in alluvial valley flloors.
S8086 Then I noticed the third study is attributed to Jack Schmitt, 1977, EPA from Denver, Colo.
S8086 Mr. SCHMITT. If the Senator will yield. I do not believe he is any kin of mine.
S8086 Mr. HART. I hope we can clarify that for the record.
S8086 Of the alluvial valley floor areas studied in east central Montana, including all coal
deposits in that area, 2.8 percent of the strippable reserves in that area was in what are defined as
alluvial valley floors.So we are talking, I think, under the three studies and the literature that we
have, about 2.5 to 3 percent of all of the known deposits of coal available.
S8086 Mr. MELCHER.Mr. President, will the Senator yield?
S8086 Mr. HART.I yield to the Senator from Montana.
S8086 Mr. MELCHER. I think it should be borne in mind that this is an old issue and that the
studies that the Senator from Colorado referred to were in the concept of what was intended to be
excluded as alluvial valley floors. It was not intended to just go on the definition that is contaiend
here on page 290 and which has been mentioned earlier today, which is a very limited definition. It
does not say anything about farming. It really does not get into the question of whether the
irrigation water that is available eiher surface or subsurface is adequate for farming.
{S8087} So what we have presented now is a different situation because the Senator from
Colonado, Senator HART, is presenting an amendment that says there will not be any coal mining
on any of the areas that are unconsolidated stream laid deposits holding streams where water
availability is sufficient for subirrigation or flood irrigation agricultural activities.
S8087 Mr. HART. Except for the grandfather provision.
S8087 Mr. MELCHER. There is no question but that definition, if that is all that is going to
guide the courts, will probably invite litigation on every mining plan that is proposed in the West.
S8087 We have gone over the ground so often; what are we trying to project in alluvial valley
floors?
S8087 Mr. HART. Again let me say if the Senator is unhappy with the definition, I will be more
than happy to work with him and the committee in improving it.
S8087 I did not arrive at this definition; it is one the committee itself came up with after months
and years of deliberation. If it is faulty, and it may be, I do not think that should be laid at the
doorstep of the amendment I am offering.
S8087 I think a strong argument can be made, and has been made, that in fact my amendment
will produce less litigation than the committee's bill, which suggests that if you make any what they
call substantial legal or financial commitment, you are entitled to an exception, which invites
speculators to attempt to qualify under that vague definition, which gives the Secretary a discretion
he does not even want.
S8087 My amendment tightens up the language of the committee bill, but I do not want to assume
responsibility for any vagueness of geological definitions contained in the bill.
S8087 Mr. BURDICK and Mr. SCHMITT addressed the Chair.
S8087 Mr. HART. I yield first to the Senator from North Dakota.
S8087 Mr. BURDICK.Mr. President, does this amendment apply to private as well as public
lands?
S8087 Mr. HART. It applies to all the lands the bill affects.
S8087 Mr. BURDICK. The alluvial valley floor provisions apply equally to both under the
Senator's amendment?
S8087 Mr. HART. And in the bill itself, yes.
S8087 Mr. BURDICK. To what extent does it take care of rights already vested?
S8087 Mr. HART.There are two provisions in my amendment pertaining to so-called grandfather
provisions. For areas where a State permit was granted prior to January 4, 1977, or where they were
producing in commercial quantities in 1976, those two types of operations would be permitted to
continue.
S8087 Mr. BURDICK. Suppose I am in the position of a valid leaseholder from a private party,
and I have not gotten a mining permit, but I have had a lease for several years. I will not be able to
use that lease, will I?
S8087 Mr. HART. Not if you were not producing prior to 1976. But I think you will also have
the same problem with the committee bill.
S8087 Mr. BURDICK. I am talking about both measures.
S8087 Mr. HART. Yes.
S8087 Mr. BURDICK. What provision does the Senator have to take care of that vested right?
Does he just lose it?
S8087 Mr. HART. Well, first of all, he would be given -
S8087 Mr. BURDICK. He has paid money for this mineral lease, you understand.
S8087 Mr. HART. I think that the Senator from New Mexico and the Senator from North
Dakota are identifying a problem that will prevail whether my amendment passes or not, in that the
same difficulties will apply to a person if the committee bill passes.
S8087 Mr. BURDICK. I would like to have the difficulty removed. What are we going to do
about that? Is there not a constitutional question involved?
S8087 Mr. HART. I think the floor manager may be in the best position to address himself to
that. The committee, as I understand, considered constitutional issues.
S8087 Mr. BURDICK. May I have the attention of the manager? What did the committee do
about this vested right question?
S8087 Mr. METCALF. As the Senator from North Dakota knows, the was one of the problems
extensively debated in last year's bill. When the bill was introduced in the Senate, we had
substantially the language that was in last year's bill. As I understand it, my colleague from
Montana is supporting substantially that same language.
S8087 In the course of the debate this year, we changed the language somewhat, as has been
pointed out by the Senator from Colorado.
S8087 I wish to say to the Senator from New Mexico and the Senator from Colorado that if I
were writing the bill all by myself, sitting down and doing it, we might have different legislation. A
committee wrote this bill, a committee that was knowledgeable and concerned about the various
mining operations on alluvial debate we had last year, aware of Secretary Andrus' letter, and aware
of what happened in the House of Representatives.
S8087 I think that we have a definition which has some flexibility. As my colleague from
Montana suggests, we might have some lawsuits about this, but we are within the confines of
constitutional zoning and constitutional prohibitions, and I believe that we can defend this position
before the Secretary and before the courts.
S8087 Mr. BURDICK. All right; let me ask the question again. I have no problem with the
prospective application of the amendment or the bill itself, but where I have acquired, as a lease, a
right either by lease or by a mineral interest that existed prior to January 1 -
S8087 Mr. METCALF.We put a grandfather clause in.
S8087 Mr. BURDICK.Well, the grandfather clause begins, as I understand, under the Hart
amendment, on January 1, 1977.
S8087 Mr. METCALF. And the committee bill as well.
S8087 Mr. BURDICK.Yes. So I have a valid lease or a valid interest in that land.
S8087 Mr. METCALF. How much of a valid lease? I do not know, and neither does the
Senator.
S8087 Mr. BURDICK. Well, somebody has given me the lease.
S8087 Mr. METCALF.The Senator says a valid lease, and I will accept that. Let us go on from
there.
S8087 Mr. BURDICK. All right. Mr. A, the owner of the land, has given me the lease 5 years
ago, and I own it. I do not have a permit from the State. Now the Senator is saying I cannot use that
any more?
S8087 Mr. METCALF. That is correct.
S8087 Mr. BURDICK. And that is not taking property without compensation?
S8087 Mr. METCALF. No, it is not. The Senator, who is an extremely able lawyer, is well
aware of the various zoning provisions that we have in the statutes, the various public interest
provisions that we have in the statutes.
S8087 The whole concept of this bill, I will say to the Senator from North Dakota, is based on the
proposition that certain areas cannot be mined. Certain areas can only be mined where they can be
reclaimed; other areas that cannot be reclaimed because of either aquifers, historic sites, or
something, no matter how much coal you own under that land you cannot mine it.
S8087 Mr. BURDICK. My good friend from Montana knows that under the zoning ordinances
you are limited in your use of property, but if you have a lease to mine coal, you have no other use
for it.
S8087 Mr. METCALF. You can mine it underground.
S8087 Mr. BURDICK. That disturbs the surface, too, does it not, in some degree?
S8087 Mr. METCALF. No, this is a surface mining, strip-mining bill, intended to protect the
surface of the land of the United States.
S8087 We are not saying you cannot mine coal by any other method. In some areas perhaps you
cannot find any other way. That is part of the risk of the lease.
S8087 Mr. BURDICK. Do we not have a provision in this bill that takes care of, in some way,
somehow, rights that are are vested in this minner?
S8087 Mr. METCALF. If a person has gone to the State and secured a permit, made an
environmental impact statement, and invested in the various exploratory activities required by this
legislation, expended substantial sums - and that is relative; a sum invested by Exxon Oil Co. would
be negligible, as compared to a sum invested by a small coalminer - if he has done those various
things, he can go forward and mine. But if he has not done those various things, and he has, as the
Senator said in his hypothetical example, purchased leasable coal as a subsurface right, and comes
under the provisions of this bill, he cannot mine that coal except by underground methods.
{S} 8088 Mr. BURDICK. And does the Senator think that has met the test of the Constitution?
S Mr. METCALF. I certainly do. If that does not meet the provisions of the Constitution, then
the whole concept upon which this bill is baesd, which says we can protect the surface of the land of
the United States of America, is not constitutional.
S Mr. BURDICK.I do not quarrel with the Senator's objectives.
S Mr. METCALF. I understand that.
S Mr. BURDICK. I am asking legal questions about what we may face in the future. That is all.
S Mr. METCALF. There is the concept we have had for years and years and years, that we do
have the right to protect our land from exploitation and depravation that are unnecessary, and to
preserve the public interest in that land.
S Mr. BURDICK. And the man who has the vested right loses without recourse to anybody?
S Mr. METCALF. Yes. People lose vested rights all the time without recourse to anybody, if it is
in the public interest.
S Mr. BURDICK. I thank the Senator.
S Mr. HART. It is my understanding that Secretary Andrus, the Secretary of the Interior, has
been interested in some possibility of land exchanges or leasing sites, something of that sort.
S Mr. BURDICK. If this could be exchanged for land of equal value, I think the constitutional
test might he met.My friend from Montana is an excellent lowyer, but I still have doubts.
S Mr. HART. Voting against my amendment would not solve those doubts, because the
committee bill still has that problems.
S Mr. SCHMITT. If the Senator will yield, the problem of the constitutionality is a problem
which will continue relative to the bill, particularly since one of the purposes of the bill as stated on
page 151 is:
S 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.
S If we are really looking to exercise the full reach, we must consider whether we have reached
too far in some cases.
S At this moment, I want to be certain that my concern about the Hart amendment is clear. Given
a very loose definition of an alluvial valley floor, the Hart amendment, if adopted, would have a
great potential of withdrawing all lands in the western United States which are underlain by
unconsolidated gravel and which could be irrigated using water associated with a particular
floodplain area.
S I believe we not only must look to add some precision to the definition of alluvial valley floors,
but we must recognize that if we enact the Hart amendment we will be eliminating, or potentially
eliinating, from coal production at areas of the West, in my State of low Mexico as well as almost all
other Western States.
S Mr. HART. I take issue with what the Senator has said based upon the studies I have already
cited. Again, my amendment shouldnot be confused with any vagueness the Senattor feels about the
definition of the language.
S Mr. SCHMITT. I do not attribute the vagueness of the definition to the Senator's amendment.
S Mr. HART. My amendment would not remove vast amounts of land otherwise available. The
studies I cited are the best evidence we have, and they say 2.5 to 3 percent.
S Mr. SCHMITT. But wit the looseness in the definition of alluvial valley floor, that could be
extended to include all those materials I have just described, areas of coal overlain by
unconsolidated gravel.
S Mr. HART. Not according to the experts who conducted the study, who assumed the definition
contained in the bill.
S Mr. SCHMITT. But that definition is very imprecise. They may have just included the flood
plains which are relatively level and are presently available for agricultural use. As the Senator well
knows, vast parts of this State as well as mine are underlain by unconsolidated gravel at the edges of
the flood plain and they could conceivably, and very possibly would, fall under this definition of
alluvial valley floor.
S Mr. METCALF. Will the Senator from Colorado yield?
S Mr. HART. I yield.
S Mr. METCALF. I feel compelled to insist that the estimate of the amount of land affected by
these alluvial valley floor proposes, whether it is Senator JOHNSTON'S amendment, the Senator's
amendment, the committee proposition, or the amendment which may be offered by my colleague
from Montana, is not more than 3 percent of the land. Every study we have had made, utilizing the
definitions we have in this bill, under the definitions we have under the Senator's amendment, and
other definitions, say that the alluvial valley floor impact of this type of legislation is 2.5 to 3 or
maybe a little more than 3 percent, but not over 3.5 prcent.
S Mr. SCHMITT. If the Senator will yield, as a geologist, I do not know how I would draw a line
on a map defining alluvial valley floor according to the definition in the committee print. That is
what I am concerned about.
S Mr. METCALF. People have done mapping for us in the Soil Conservation Service and in the
special service organizations that have made these studies.
S Mr. SCHMITT. Then they have done it with a definition that is much more narrow than what
could come from the interpretation of the committee's definition of alluvial valley floor. I would
hope that maybe we could find out how these studies defined the line within which they included
only 2 to 3 percent of the available coal lands. That is an extremely small number. It does not relate
at all to the amount of area in the western United States underlain by unconsolidated gravel that
would come under this definition. That is my concern.
S If the committee staff would be willing to work with my staff to try to find out just how that line
was defined, maybe at a later time today or tomorrow we can come to grips with that definition.
S Mr. METCALF. I would be delighted to have the committee staff work with the Senator, his
staff, or anyone else. As I understand it, the Senator from Colorado is going to ask unanimous
consent to put this vote off until 11:15. I hope the debate on this amendment will not run until
11:15 because there are other matters under consideration to be taken care of. In the interval I
would be delighted to have anybody on my staff duscuss this matter with the Senator.
S Mr. SCHMITT.If the Senator from Montana will yield further, I am concerned about the
definition of alluvial valley floor with respect to the committee print as well. I am particularly
concerned about it with respect to the amendment of the Senator from Colorado.
S Mr. METCALF. The Senator from Montana has no illusions about the concern of the Senator
from New Mexico under the committee amendment or the amendment of the Senator from
Colorado.
S Mr. SCHMITT. The point is that the impact of that looseness of definition is much more severe
in the Hart amendment than in the committee amendment. I will in fact, support the committee in
opposing the Hart amendment for that reason.
S Mr. HART. Mr. President, I do not intend to carry the discussion of this amendment too much
further since there are a large number of amendments and the leadership does want to try to get this
bill passed today. I am more than happy to answer any questions. Questions of definition can be
worked out. They are technical in nature. Those are concerns between the Senator from New
Mexico and the floor manager.
S I ask unanimous consent, Mr. President, that a vote on this amendment in the nature of a
substitute occur at 11:15, with the understanding that the Senator from Montana may be heard
further on the amendment, and that other amendments may be taken up and debated in the
meantime.
S Mr. HANSE. Reserving the right to object, and I shall not object. I quite agree with the
Senator from Colorado that it would be helpful to Senators to be able to leave here for other
important engagements armed with the assurance there shall be no votes occurring until then. I
gather this is what the Senator is saying, his being the first amendment to be voted upon, and the
unanimous-consent request being that the vote would not occur earlier than 11:15.
S Mr. HART. That is my request.
S Mr. HANSEN. I do not object.
S Mr. ALLEN. And that will be the first vote.
S Mr. HANSEN. That is correct.
S The ACTING PRESIDENT pro tempore. Without objection, it is so ordered.
S The Senator from Montana is recognized.
S Mr. CULVER. Will the Senator yield for a unanimous-consent request?
S Mr. MELCHER. Who has recognition, Mr. President?
S The ACTING PRESIDENT pro tempore. The Enator from Montana.
S Mr. MELCHER. I yield.
{S} 8089 Mr. CULVER. Mr. President, I ask unanimous consent that George Gilbert, of my
staff, be granted the privilege of the floor throughout the debate and votes on the pending legislation.
S The ACTING PRESIDENT pro tempore. Without objection, it is so ordered.
S Mr. MELCHER. Mr. President, the concern that has been expressed by the Senator from New
Mexico as to what is an unconsolidated stream-laid deposit holding streams where water availability
is sufficient for subirrigation or flood irrigation argicultural activities is a concern that will involve
almost every mining plan submitted to a State regulatory authority or to the Secretary of the Interior
for approval before strip mining can be done. If we are just to look at those four lines in the bill and
say that the mining plan had to conform to that, without any interpretation of another section of the
bill, I think there is a question of how much strip mining would be done in the West.
S I would ask Secretary Andrus and all the other backers of this amendment if they want to
prohibit strip mining on some dry creeks.
S Who has made a survey of the dry creeks in Montana or Wyoming to find out whether or not
they have unconsolidated stream laid deposit holding streams where water availability is sufficient
for subirrigation or flood irrigation agricultural activities? Certainly not the studies that have been
referred to, because they have looked at the concept of what the committee and what Congress
intended in those bills by "alluvial valley floors". They did not look at all of the geology that might
be involved on these dry gulches, on these dry streams that may flow some years when there is snow
to be melted off, or heavy rains of sufficient quantity to let them run. They have not looked at it
from the concept of all of those dry streams and, surely, the committees that have worked on this
bill, in this Congress as well as in previous Congresses, was not referring to all the dry streams or all
the dry gulches in West.
S What we sought to do was protect such valleys as the Yellowstone Valley, where there is
irrigation, where there is farmining. We sought to protect the integrity of that valley and th Tongue
River Valley, the Powder River Valley, the Rosebud Creek Valley, and many others, where there
was farmining - that was being farmed becuase of either surface irrigation or subsurface irrigation.
That is what we were trying to do, because those thin ribbons of irrigated land, surface or
subirrigated, are extremely important to the miles upon miles and millions and millions of acres of
western land that flow out from either side of those narrow stream beds.
S So we had the question of this definition of alluvial valley floors. There has always been some
question in my mind whether we should seek to use that definition. We were really talking about
valley floors where you can farm, and where there is irrigation water, either on the surface or
subsurface, that helps that farming.That is what we are talking about. Yet we keep having to rely on
this geologic definition of what we are talking about.
S Well, I have not quarreled with striking the geologic definition. What I have quarreled about is
what we are trying to protect in saying to the Secretary of the Interior or to the regulatory authority
of each State, "When are you going to say no to strip mining if it involves farmland where it is
irrigated or subirrigated?"
S So we get to this other section of the bill, which is on page 207 of S. 7.
S I am not really fond of, and I join with the Senator from Colorado in not really liking that
section of the bill. I join with the Senator from New Mexico in saying, just what is this referring to?
How loose is this? I think it is pretty loose in the bill. I think it is pretty loose.
S I think when we are talking about laying on this added definition on line 4, page 207, "have a
substantial adverse effect on alluvial valley floors underlain by unconsolidated stream laid deposits
where farming can be practiced" - now we put in another element. We start out with a definition on
page 290 of what an alluvial valley floor is. Then we get to this key section where we are going to
ban strip mining on those alluvial valley floors.
S Then we lay on this language, which seems to me to compound ambiguity.
S Perhaps, if we were pushed far enough and we had a Secretary of the Interior who wanted to
mine on the valley floors, or a regulatory authority in a State such as Montana or Wyoming that
wanted to mine on the valley floors, we might make an endangered species out of the Yellowstone
Valley, the Tongue River Valley, or the Powder River or the Rosebud, if there were loose
construction of this section, coupled with the definition.
S The Senator from Colorado tried to get around that. I think what his definition does is just
about ban strip mining in the West if somebody wants to press the issue on what are all the areas
where thee are unconsolidated stream laid deposits becuase, where there is a question, what about
"where water availability is sufficient for subirrigation or flood irrigation agricultural activities?"
S Is that to mean every time a dry stream runs some water, after a good snowfall in the winter or a
good snow pack or a heavy rain in the spring, which could be captured and used for irrigation, even
though that irrigation would be for a farming operation that is as intermittent as just starting up now,
with the idea that this was to prevent strip mining in that area? I do not know. I do not think the
Secretary of the Interior, Mr. Andrus, knows.
S On February 4, he wrote a very detailed letter saying to the committee that the alluvial valley
floor section was most important in the bill and that those fragile lands - talking, I think, about the
Yellowstone Valley and the Tongue River Valley and the Powder River and Rosebud Creek - where
there was farming dependent upon irrigation, should be protected. Then he opted for and
recommended the specific language, word for word, that we had agreed upon last summer.
S What has happened between February 4 and now? Have there been any hearings on this
language? No; neither committee has beld hearings on this particular language.
S Has the Secretary gone out and held hearings on this particular language? No; he has not.
S What has been the origin of this amendment? He does not advise us. His letter to Senator
HART, dated, I think, May 19, does not not explain why he changed his view, what input he had to
guide him to change his mind from February 4. No; he just says, let us have this amendment.
S I think it goes too far. I do want to protect these stream beds where there is farming. I do want
to do that. But we have, long ago, decided that we arenot trying to ban strip mining on the dry
creeks where there is not any farming. We use such words as "undeveloped rangeland" so there will
not be any doubt, by a Secretary or a regulatory authority of a State or by the courts.
S (At this point, Mr. CULVER assumed the Chair.)
S Mr. MELCHER. We said in the section of the bill dealing with this that it had to be farm. The
had to depend on irrigation water, either on the surface or subirrigated, and that those were the areas
we were trying to protect.
S Now, I have a printed amendment, it is No. 292.
S The situation we are in right now is that Senator HART's amendment is a substitute for Senator
JOHNSTON's amendment. The vote will occur first on the substitute, Senator HART''s amendment.
I think his amendment goes too far, with all due consideration to the Secretary of the Interior, and to
his leadership of a department I think is going to be more dynamic than it has been in the past.
S It does seem odd that on February 4, he can take a very explicit, a very definite view, go word
for word over language we have developed over a year ago that has had a hundred or perhaps a
thousand attorneys examine it, involved in the Department of the Interior, coal company attorneys,
attorneys from various States, the States where mining would be done and practiced in the area we
are talking about, in that area, and then come up on the floor of the House a week or two ago with a
recommended amendment that is accepted on the floor, then apprach Senator HART and say, "Let's
have the same amendment in the Senate."
S Mr. HART. Will the Senator yield?
S Mr. MELCHER. And then he should give us an explanation of why this has been.
S I am delighted to yield.
S Mr. HART. First of all, I do not, as I indicated before, presume to speak for the Secretary of the
Interior. Those questions are best addressed to him.
S I would only note that February 4 was some 2 weeks after the President of the United States
took office. I think that is not a very long period of time to take a position on an issue of this sort.
S The other thing that has transpired since then is the passage of the House bill and the passage of
a great deal of time.
S As the Senator from Montana well knows, the Secretary of the Interior took a position on
certain water projects at one point and has since, together with the President of the United States,
changed his position on that somewhat.
{S8090} So I think any administration coming into authority, particulary within the first few
days, may tend to take positions it later wants to change.
S8090 The Secretary of the Interior can, of course, explain twhy he did that. I suspect a lot had to
do with the debate and discussion of this bill and these provisions in the House and Senate
committees and in the House of Representatives and the ferment that accompanied this discussion.
S8090 Mr. MELCHER. I think those observations by my friend from Colorado are nice
observations, but Secretary Andrus was the Governor of Idaho. We have been discussing the strip
mining bill here in the Congress I think for the past 5 years.
S8090 The Governor of Idaho, like other Western Governors, has examined the strip mine bill
over all that time. While he was only the Secretary of the Interior for a few weeks on February 4, I
can assure the Senator that Secretary Andrus was well exposed to the issue involved here.
S8090 But the parliamentary situation we are in now is to vote first on Senator HART'S
amendment, which I think goes much too far, and I hope it is defeated. Then I hope that the
amendment of the Senator from Louisiana (Mr. JOHNSTON) is also defeated because it does not
improve what is in the committee bill.
S8090 If the votes take place and both amendments are defeated, I hope to offer amendment No.
292 at an appropriate time because it is a midde ground on this issue for the valley floor protections.
S8090 If we had the Hart amendment adopted, the Senate would go to conference with the House
locked into a position on this most sensitive issue.
S8090 If it is defeated, we then, of course, have the option of accepting the Johnston amendment
or my amendment or other amendments.
S8090 Mr. METCALF. If the Senator will yield, or the committee bill.
S8090 Mr. MELCHER. Or the committee bill, and, of course, the committee section as it now
exists in the bill.
S8090 Mr. METCALF.Yes.
S8090 Mr MELCHER. I will not seek to prolong this discussion this morning, but I think that we
really want to narrow the scope of understanding of what the Congress is trying to do in protection
of alluvial valley floors.
S8090 We could do very well with accepting the language we worked out last year and now is
before us at the appropriate time in amendment No. 292, which I will offer.
S8090 Mr. SCHMITT. Will the Senator yield?
S8090 Mr. MELCHER. I am delighted to.
S8090 Mr. SCHMITT. Is it the Senator's feeling, and I direct this also to the manager of the bill,
that the legislative intent that alluvial valley floors apply to types of similar examples such as the
Senator described so eloquently, Yellowstone, Rosebud, and so on. Is that the intent of the language
of the bill?
S8090 Mr. MELCHER.Is the Senator asking me?
S8090 Mr. SCHMITT. I will ask the Senator if he believes that is the intent and then I would ask
the committee if they concur.
S8090 Mr. MELCHER. I believe the intent of the previous bills, and I think the intent of the
committee bill that we have before us, is to limit strip mining on valley floors where there is farming
done, either by surface irrigation or sub-irrigation, and that, indeed, if that is a limitation and the
effect of this bill is carried out as intended, that it would be about 2.5 percent of the area in the West.
S8090 Now, I think the Hart amendment would extned that considerably, depending upon the
interpretation of the regulatory authorities and the courts.
S8090 Mr. SCHMITT. I concur with the Senator from Montana.
S8090 I think he has stated the intent and the intent which I can support. I suspect that is the
generalized definition of alluvial valley floors that was used to get, say, 3 percent, the number 3
percent of the area affected.
S8090 I ask the committee, should that be the legislative history, roughly or maybe even
precisely, as described by the Senator from Montana?
S8090 Mr. METCALF. Will the Senator yield?
S8090 Mr. MELCHER. I am glad to yield to the Senator.
S8090 Mr. METCALF. In the last Congress the bill was extensively discussed in probably on eof
the longest conferences we ever had. We have the conference report and it says that "alluvial valley
floors do not include upland areas which are generally underlain by a thick veneer of colluvial
deposits composed chiefly of debris from sheet erosion, deposits by unconcentrated runoff or slope
wash, together with talus, other mass movement accummulation and wind blown deposits."
S8090 That kind of language is discussed specifically and was specifically adopted by the Senator
from Montana who was on the conference committee at the conference of this legislation last year
when we had the extensive discussion on alluvial valley floors which appears in the House report.
S8090 So, substantially, we in the Senate have adopted the definition in the concept that was
written into H.R. 25, the conference report, in the last wear's bill.
S8090 The bill was vetoed by the President except for adding the grandfather clause which was
added at the end of the committee hearings, providing for a special protection for those people who
were grandfathered in. So with respect to the Yellowstone and the Tongue and the Rosebud and
those other wonderful names for rivers in southeastern Montana, in the opinion of experts who
talked about alluvial valley floors and the kind of doubletalk I have just read to the Senator and in
the opinion of the Members of the Senate who have asked us to put that in layman's language, we
have taken care of the problem that my distinguished colleague from Montana raises. It is the same
problem he raised in conference last year, and we agreed to it.
S8090 Mr SCHMITT. Will the manager of the bill consider attempting to find a definition of
"alluvial valley floor" that incorporates the gist of what he just referred to as doubletalk, which made
perfect sense to me?
S8090 Mr. METCALF. I would be delighted to put in that language. I really did not mean it as
doubletalk. It is professional soil conservation Ianguage, rather than the kind of talk we farmers use
- gravel and soil composition.
S8090 I think it was our intent to have that language as a part of this bill. It is part of our
discussion.
S8090 Mr. Harvey, of my staff, will meet with anybody, and we will specifically put that in the
statute as a definition.
S8090 Mr. SCHMITT. If we could leave this matter at this point and if my staff and the Senator's
staff could work together, perhaps we could find a way to make that definition of alluvial valley
floor correspond to the well-stated intent of both Senators from Montana. I think that would relieve
a great deal of concern I have about this fairly open-ended definition at the present time.
S8090 Mr. METCALF. The distinguished junior Senator from Montana, who was a Mmeber of
the House of Representatives when this bill, H.R. 25, was taken up, worked very long and hard in
conference on this subject. It was the opinion of the seniro Senator from Montana that we had
accommodated his concepts and his ideas in the committee bill.
S8090 However, if we can work out something more precise and at the same time carry out the
intent of Congress, I will be very pleased and privileged to work with the Senator from New Mexico.
S8090 Mr. SCHMITT. Let us attempt to do that and defer this matter to later in the day.
S8090 Mr. HANSEN. Mr. President, who has the floor?
S8090 Mr. MELCHER. Mr. President, I yield to the Senator from Wyoming.
S8090 Mr. HANSEN. Mr. President, I appreciate the observations made by the distinguished
junior Senator from Montana. I think this debate has been helpful in trying to clarify and help each
of us better understand what is contained in the bill.
S8090 Earlier this morning, the distinguished Senator from North Dakota raised some issues with
the floor manager of the bill, and I should like to follow up on that and make some observations.
S8090 Section 422 of the bill contains language which deals with the designation of areas
unsuitable for surface coal mining. On page 93 of the report is found this language:
S8090 As a condition of having a State program approved by the Secretary of Interior, subsection
(a) requires States to establish a planning process enabling decisions on the unsuitability of lands for
all or any type of surface coal mining but not for exploration.
S8090 Lands must be so designated if reclamation ad required by this Act is not economically or
physically possible.
S8090 Lands may be so designated if: (1) Surface coal mining world be incompatible with
existing State land use plans; (2) the area is a fragile or historic land area; (3) the area is in
"renewable resource lands" - those lands where uncontrolled or incompatible development could
result in loss or reduction of longrange productivity, and could include watershed lands, aquifer
recharge areas, significant agricultural or grazing areas; (4) the area is in "natural hazard lands" -
those lands where development could endanger life and property, such as unstable geological area.
{S8091} Each study for designation is made only on a case by case basis upon specific petition.
In additions, S. 7 contains specific requirements for petition.
S8091 The point I wish to make is that the committee was sensitive to the particular kinds of
hazardous or the possibilities that could result from surface mining in these areas. I think most of us
will agree that, insofar as Federal lands are concerned, where the coal is owned by the Federal
Government and the surface is owned by the Federal Government, Congress certainly would have
far wider latitude in bringing about zoning or any other kind of restriction, even a prohibition, if, in
its wisdom, it chose ot make such a prohibition.
S8091 However, having in mind the questions raised by the distinguished Senator from North
Dakota, I say this: Where fee lands have been patented and where there was no mineral reservation
made by the Federal Government, then I think we have to look at the ability of a developr who
proposes to extract those minerals and to ask ourselves, as seems to me to be inherent in this
language, can these lands that would be designated as "unsuitable" be reclaimed, and is the sort of
reclamation that would be required economically or physically possible?
S8091 If the answer is, "No," that it is not physically possible or economically possible to reclaim
it, then I assume that we are viewing a situation in which we say that if the coal is recovered by
surface mining and it is not physically or economically possible to reclaim the lands, this would be a
situation where permanent, irreparable damage could be done.
S8091 The reason why I am concerned about this is that, while people who may own those fee
lands and may own the coal would like to have the lands developed - I think we will find that there
are people in this category who live in an alluvial valley floor and who have a ranch or farm
operation that has been going on for a long time - they may choose, if they were given the option, to
say that they want to have that coal developed.
S8091 However, we say in this language, it seems to me, that unless it can be demonastrated that
it is both economically and physicially possible to reclaim, we may say no anyway. There may be a
man downstream who depends upon the water, whether it is a surface flowing stream or an
underground aquifer; and if the removal of the coal would do damage downstream to somebody
else, then I think it is entirely proper and ppropriate that unless the person who proposes to develop
the coal can assure his downstream neighbor or others that irreparable damage will not be done, we
should not permit that kind of coal removal.
S8091 On the other hand, if the operator or the owner of the fee lands is able to demonstrate to the
satisfaction of either the State agency or the secretary that there can be full restoration or there will
be no permanent damage left, then it narrows the issue down to what may be the damages that would
occur to a downstream landowner during the mining operation, and in that instance, while I am no
lawyer, it would seem as though a person who might be temporarily damaged or inconvenienced for
a short period of time certainly would be entitled to damages, but he should not be permitted, in my
judgment, to say, "You cannot cause me any inconvenience at all."
S8091 I should think he would be entitled to damages, that is, the downstream man, but he should
not be able to prevent the fee simple owner of the surface and all the minerals under that surface
from exercising his property rights.
S8091 Undoubtedly this situation can result in court cases. I would make that sort of prediction,
and I would say we ought not to be able cavalierly to say to a fee simple owner, "You cannot do
certain things that normally would go with the exercise of the ownership of property that you have,"
without some sort of compensation.
S8091 I have to believe, as I think the Senator from North Dakota indicated, that that would be a
taking.
S8091 Now, again, I do not know where to draw these boundary lines, but I think there can be
actions taken and, indeed, in past times there have been, when a taking does occur. Zoning is an
example.
S8091 There is a whole body of law, case law, that has been written on individual cases, where a
subdivision of Government, either a city or a county or the State has said, "We want to achieve
certain social objectives." Maybe we want to have open space, or whatever, and you can find all
sorts of cases where if, in the opinion of the court a taking has occurred, it has been generally held in
favor of the owner of private property. If a subdivision of Government has said, "There are certain
things that you cannot do because we think they are socially not desirable or esthetically desirable
and you will be entitled to damages," and I do not make the point that the Government has the
exclusive right to protect the health and safety of individuals, and I am not raising that issu, but I am
raising the broader issue of where it may be in the interest of a community or of a county or of a city
to say, "We do not want certain things to occur," and that is the sort of situation I think which has
resulted in cases going to court where a judge or a jury listens to the evidence and makes a
determination that in the eyes of the court fairly reflects the interests of the various individuals who
are affected.
S8091 I wanted to make that observation because I think that was part of the concern expressed
by the Senator from North Dakota when he raised the issue of how far can we go. We do not try to
make that sort of determination in this bill.
S8091 I think what we have done here is to look at the broader issues and to come down as fairly
and as unequivocally as we could in setting forth guidelines that I believe will be helpful.
S8091 It seems to me that these are the sorts of issues that ought to be determined on a
case-by-case basis.
S8091 I know full well the concern that the junior Senator from Montana has. I think he, along
with all the rest of us who live in the West, appreciates the beauty and the natural characteristics of
these important valley areas. But I agree with him that the amendment offered by the distinguished
Senator from Colorado, I believe goes too far in just plain, flat out saying, "You cannot mine there."
I do not think we should go that far, and I hope that particular amendment would not be adopted by
the Senate because, as was pointed out by the distinguished seniro Senator from Montana, we are
assured that a ban will be before the conference anyway. It is in the House bill.
S8091 I think the wiser course for the Senate to take is to adpt the language in the Senate bill in
order that we will have the full opportunity to consider all of the ramifications of this issue, to
consider the interests of the public as well as of individuals, and to then be given the sort of latitude
that is afforded by the Senate bill in making the kind of determination that will, first, protect the
public interest and insure, second, the protection of the private personal interest. There is language
in the bill on page 267, section 422, which deals specifically with the designation of areas unsuitable
for surface coal mining.
S8091 If Senators will read pages 267, 268 and 269 they will see the requirements that are
imposed upon the State. On page 269, as an example, is found this language:
S8091 To comply with this section a State must demonstrate -
S8091 As it draws up its land use plan, and so forth -
S8091 it has developed or is developing a process which includes -
S8091 (A) a State agency responsible for surface mining lands review;
S8091 (B) a data base and an inventory system which will permit proper evaluation of the
capacity of different land areas of the State to supports and permit reclamation of surface coal
mining operations;
S8091 That language, and earlier language, I think, is intended to insure that there will be
adequate consideration given to these issues, and that a State, even a State, may not arbitrarily take
an action if it can be demonstrated to the satisfaction of the Secretary that the laudable objectives of
reclamation can insure a restoration of lands so as not to impair either the quality or the quantity of
water and will not, at the same time, undermine or deprive a fee simple owner of the right to do
those things which, absent this language, he would be permitted to do.
S8091 Mr. HART. Mr. President, will the Senator yield?
S8091 Mr. HANSEN. I would be happy to.
S8091 Mr. HART. The Senator talked about preserving the beauty of these areas. That is not the
principal purpose of my amendment. The principal purpose of my amendment is to preserve
agricultural lands in the West, which are scarce as it is, and the water necessary to develop those
agricultural lands.
S8091 It is not accidental that most major farm organizations I know of are in support of this
amendment. They supported it in the House, and the administration supports it.
S8091 This is not a preservation-of-beauty amendment; this is apreservation of western water and
agricultural lands.
{S8092} } Mr. HANSEN. Well. I would say to my friend from Colorado that on page 268, at
line 17 - maybe I should start a little earlier and read this section beginning on line 7:
S8092 (3) Upon petition pursuant to subsection (c) of this section, a surface area may be
designated unsuitable for certain types of surface coal mining operations if such operations will -
S8092 (A) be incompatible with existing State land use plans or programs; or
S8092 And I would assume that that deals more with the esthetics
S8092 (B) affect fragile or historic lands in which such operations could result in significant
damage to important historic, cultural, scientific, and esthetic values and natural systems; or
S8092 (C) affect renewable resource lands in which such operations could result in a substantial
loss or reduction of long-range productivity of water supply or of food or fiber products, and such
lands to include aquifiers and aquifier recharge areas; or
S8092 I think that that deals specifically with the agricultural concern, if I understand what my
friend from Colorado said.
S8092 Mr. HART. I appreciate the Senator's citation of that paragraph. But unfortunately, it
does not deal with the problem, or the amendment would not have been offered in the first place or
would not have been adopted in the House of Representatives and would not have the support of the
national farm organizations. I think the farmers of the West and people who grow crops and graze
their cattle on these lands are extremely concerned about the vagueness of that language. That is
why there is more specific language in the House bill and why they are supporting the language
which I have offered as a substitute.
S8092 Mr. HANSEN. I am not sure exactly how many farm organizations have endorsed the
language to which the Senator refers. I happen to belong to a couple of them, and I do not think I
have been polled.
S8092 Mr. HART. The National Farmers Organization, the Grange, the Farmers Union, a
number of others.
S8092 Mr. HANSEN. What about Farm Bureau? What about the Stock Growers Association
and National Cattlemen's Association?
S8092 Mr. HART. I will check on the cattlemen's support of it.
S8092 Mr. HANSEN. I would be interested in the result.
S8092 Mr. HART. My amendment.
S8092 Mr. MELCHER. Mr. President, I inject in this colloquy at this point because the Senator
from Colorado has made reference to farmland, making it clear that his amendment dealing with
restrictions on mining on alluvial valley floors strips from the bill the reference to farmlands and to
croplands. His amendment strips that language referring to farming. I wonder if I could have the
attention of the Senator from Colorado.
S8092 I wonder if I could have the attention of the Senator from Colorado.
S8092 The Senator's amendment strips from the section all reference to farming and to croplands
and just says that there will be no mining located within an alluvial valley floor. It does not refer to
farming or to cropland and does strip from the section of the bill all reference to farming or cropland.
S8092 Mr. HART. It does create a presumption that in these valleys with their ground water
supplies or surface water supplies in almost all cases there is agricultural activity of some kind or
even grazing. There is with regard to areas adjacent to alluvial valley floors a presumption that
those should also not be strip mined, but it does give the Secretary discretion where it can be
demonstrated that mining would not materially affect the quality or quantity of the water in the
alluvial valley floors to permit strip mining activities there. The reason even that could be prohibited
is because of the interconnected hydrology of the water systems in the West of which the Senator
from Montana is well aware.
S8092 But there is very definitely a presumption here in favor of either existing or potential
agricultural activities in these areas. But again, we are only talking about 2 1/2 to 3 percent of the
strippable coal.
S8092 Mr MELCHER. Mr. President, I think we have come full circle on this. We have
continuous reference on this particular amendment by the Senator from Colorado as to how it is
going to protect farming and cropland by stripping from the bill the reference to protecting farming
and croplands.
S8092 We have a question of how we are going to protect the underground water, which is
handled in a different section of the bill and which I think needs reference to in this particular
protection. We have clearly demonstrated all morning how we want to protect farming operations
where it is irrigated or subirrigated but what we run up against is how best do we do that. I think
that the Senator from Colorado tries to oversimplify the problem and that his language fails to
identify the problem completely enough to guide the Secretary of the Interior, the State regulatory
authority, or the courts to protect the vital valleys that I have mentioned like the Yellowstone,
Powder River, the Tongue, the Rosebud, and the Sparpy so they cannot continue to farm and use
irrigation, either surface or subsurface, in those areas.
S8092 So I hope we can defeat this amendment, get onto the Johnston amendment, defeat it, and
see whether we want to refine the committee treatment of this.
S8092 I yield to my distinguished colleague, the senior Senator from Montana.
S8092 Mr. SCHMITT. Will the senior Senator from Montana yield for a question on the
definition of "alluvial valley floor"?
S8092 On page 290, S. 7 as amended now reads in part:
S8092 "alluvial valley floors" means the unconsolidated stream laid deposits holding streams
where water availability is sufficient for subirrigation or flood irrigation agricultural activities.
S8092 Is it the intent of the legislation that the water available for irrigation come only from the
streams and aquifers within the alluvial valley in question?
S8092 Mr. METCALF. Yes.
S8092 Mr. President, are we through with the debate on this amendment? The vote on this
amendment will take place at 11:15. So, we can call up some other amendments.
S8092 Mr. HART. Mr. President, with permission of the distinguished floor leader, I wish to
preserve 3 minutes prior to the vote for summary argument, if possible. But I have no further
arguments on this amendment.
S8092 Mr METCALF. Mr. President, I ask unanimous consent that we have 5 minutes of debate
at 11:10 a.m. The Senator from Montana has 2 minutes and the Senator from Colorado has 3
minutes. And we vote at 11:15 a.m.
S8092 Mr. MELCHER. It certainly is very agreeable.
S8092 The PRESIDING OFFICER. Without objection, it is so ordered.
S8092 Mr. HART. With the floor leader's permission, I also wish to correct the statement I made
earlier to the Senator from Wyoming. The Cattlemen's Association has taken no position on this.
S8092 I thank the Chair.
S8092 Mr. METCALF. The Senator from Pennsylvania had an amendment that I was prepared
to accept.
S8092 Mr. HANSEN. Mr. President, I also, am prepared to accept it.I think very briefly what the
Senator from Pennsylvania was saying was - he is here now.
S8092 For the benefit of the Senator from Pennsylvania, may I observe that the floor manager of
the bill has just indicated his willingness to accept the Senator's amendment.
S8092 Mr. METCALF. Mr. President, I ask unanimous consent, despite the previous
unanimous-consent order for Senator FORD to bring up his amendment, we be permitted to
recognize the Senator from Pennsylvania.
S8092 The PRESIDING OFFICER. Without objection, it is so ordered.
S8092 Mr. HEINZ. I thank the distinguished chairman.
S8092 UP AMENDMENT NO. 255
S8092 Mr President, I call up my amendment and ask for its immediate consideration.
S8092 The PRESIDING OFFICER. The amendment will be stated.
S8092 The legislative clerk read as follows:
S8092 The Senator from Pennsylvania (Mr. HEINZ) proposes unprinted amendment No. 255.
S8092 Mr. HEINZ. Mr. President, I ask unanimous consent that the reading of the amendment
be dispensed with.
S8092 The PRESIDING OFFICER. Without objection, it is so ordered.
S8092 The amendment is as follows:
S8092 On page 226, between lines 15 and 16, insert the following new subparagraph (D):
S8092 "(D) provide that upon the request of a resident or owner of a man-made dwelling or
structure within one-half mile of any portion of the permitted area the applicant or permitee shall
conduct a pre-blasting survey of such structures and submit the survey to the regulatory authority
and a copy to the resident or owner making the request. The area of the survey shall be decided by
the regulatory authority and shall include such provisions as the Secretary shall promulgate."
S8092 Mr. HEINZ. Mr. President, I offer an amendment that would require a preblast survey be
conducted, only upon the re[*] est of a resident or property owner.
{S8093} Thin one-half mile of any portion of the permitted surface mining operation area.
Surface mine blasting has inflicted numerous hardships on citizens in Pennsylvania, Ohio, West
Virginia, Kentucky, Indiana, Illinois, Tennessee, Virginia, and many other States. An estimated
75,000 people have suffered damages during the last 10 years.
S8093 This amendment will not only protect homeowners and residents, but also protects surface
mine operators from fraudulent claims since the results of the preblast survey will be on record with
the regulatory authority.
S8093 Mr. President, this amendment is consistant with the House position and would make S. 7
a better bill. I urge the support of my colleagues.
S8093 Mr. President, I discussed the amendment with the distinguished chairman of the
committee and ranking minority member. I understand they have no objection to it.
S8093 The amendment is identical to section 515 of the House bill. It amends paragraph (15),
and it simply adds to that paragraph which has to do with blasting that a property owner who might
be affected by such a blast within a radius of one-half mile would have a right to ask for preblast
survey of his structures. I understand, further, that this is something that both the owners and
operators and, also, the people who might be affected wish to have, because it protects [*] oth the
operator as well as the resident, or the owner, of the structure.
S8093 Mr. METCALF. I have heard absolutely no objections from anyone on the amendment
the Senator offers, and as the ranking minority member, the Senator from Wyoming, has indicated
he is willing to accept the amendment, and unless there is objection, Mr. President, I have nothing
further.
S8093 Mr. ALLEN. Mr. President, I am pleased to be a cosponsor of the amendment offered by
our distinguished colleagues, Senator HEINZ of Pennsylvania and Senator RANDOLPH of West
Virginia, which would address a great and growing need to develop the technology and manpower to
meet pressing coal research and coal industry needs throughout our country.
S8093 Mr. President, legislation that would have established similar institutes has been enacted
by the Congress three times since 1972. Each time the bill was vetoed; once when the Congress
passed the law on its own merits, and twice as part of comprehensive legislation that would regulate
surface mining. In each instance, the legislation failed to become law.
S8093 The amendment now being offered reduces the scope of the previous suggestions and
focuses entirely on research activities related to coal.
S8093 Naturally, the State of Alabama has a particular interest in the amendment, because we
have the ability to qualify for such an institute in the great University of Alabama system. In order
for a State to be eligible to have a State coal mine and coal resources and research institute, a college
or university must meet the following criteria:
S8093 First. It must "have an eligible school of mines or division or department conducting a
program of substantial instruction and research in coal mining and preparation and related research."
S8093 Second. It must have existed for 2 years.
S8093 Third. The division or department must employ at least four full-time faculty members.
S8093 Fourth. The institution must be able to match the Federal contribution.
S8093 Mr. President, in the event that each of the 50 States became eligible for Federal support -
an event which is unlikely - and in the event Congress appropriates all of the money authorized in
the project grant section, the program would cost $25 million in fiscal year 1978 - $10 million for
sustaining grants and $1 5 million for research grants.Total authorized expenditures for 1978,
would be in the amount of $25 million. That would rise to $45 million in 1984.
S8093 Mr. President, in light of the crisis facing our Nation regarding future energy supplies, and
in light of the President's heavy emphasis on coal taking up the slack to meet future energy needs, it
appears to me that the price of providing for new technology and new coalrelated manpower
expertise, is modest indeed and I urge the adoption of the amendment.
S8093 The PRESIDING OFFICER.The question is on agreeing to the amendment.
S8093 The amendment was agreed to.
S8093 Mr. METCALF. Mr. President, I move to reconsider the vote by which the amendment
was agreed to.
S8093 Mr. HEINZ. I move to lay that motion on the table.
S8093 The motion to lay on the table was agreed to.
S8093 Mr. METCALF. Mr. President, as I understand it, the next order of business is for the
amendments of the Senator from Kentucky to be called up.
S8093 The PRESIDING OFFICER. The Senator from Kentucky is recognized.The Senate will
be in order.
S8093 Mr FORD. Mr. President, a parliamentary inquiry.
S8093 The PRESIDING OFFICER. The Senator will state it.
S8093 Mr. FORD. When my amendment is called up, I believe we have unanimous consent to
vote at 11:15 on a previous amendment.
S8093 The PRESIDING OFFICER. The Senator is correct.
S8093 Mr. FORD.Then the debate on my amendment would cease at that time, and would
continue after the 15-minute roll-call?
S8093 The PRESIDING OFFICER. It would be suspended from 11:15 until the completion of
Johnston amendment No. 275.
S8093 Mr. FORD. And will that complete, then, all of the Johnston amendments?
S8093 The PRESIDING OFFICER. It would represent the disposition of one of the pending
Johnston amendments.
S8093 Mr. FORD. Well, then -
S8093 The PRESIDING OFFICER. The Chair would like to complete his statement. It would
result in the completion of one of the two pending Johnston amendments, amendment 275. The
Senator from Lousistana has indicated that he might not call up the second amendment.
S8093 (At this point Mr. FORD called up his amendment No. 280 and addressed the Senate
thereon. Pursuant to the following unanimous-consent order, these proceedings on Mr. FORD'S
amendment No. 280 are printed in the RECORD following the rollcall vote No. 152.)
S8093 Mr. ABOUREZK. Will the Senator yield? I have a nuanimous-consent order which was
entered last night to offer two amendments, whcih have been agreed to by the committee, to follow
the Senator's amendment. Since they will be accepted, I wonder if I might, before the deadling of
11:10, offer those two amendments now.
S8093 Mr. FORD. That will be perfectly all right, Mr. President, if it is all right with the
chairman of the committee. I have no problem with that.
S8093 I just ask unanimous consent that the acceptance of the two amendments and the colloquy
that may occur will not interrupt debate on my amendment No. 280, and that it be placed at an
appropriate position in the RECORD.
S8093 Mr. METCALF. Mr. President, I ask unanimous consent that the amendment of the
Senator from Kentucky and our discussion follow the rollcall vote.
S8093 The PRESIDING OFFICER (Mr. SARBANES). Without objection, it is so ordered.
S8093 Is there objection to the unanimousconsent request of the Senator from South
Dakota?Without objection, it is so ordered.
S8093 AMENDMENT NO. 281
S8093 Mr. ABOUREZK.On amendment 281, which was laid before the Senate last night and on
which there was some discussion, we have straightened out a problem with that amendment. I
understand everyone involved is satisfied in that respect. I would like to ask for a vote, if the
manager of the bill is ready.
S8093 The PRESIDING OFFICER.The clerk will state the amendment.
S8093 The assistant legislative clerk read as follows:
S8093 The Senator from South Dakota (Mr. ABOUREZK) proposes an amendment No. 281.
S8093 The amendment is as follows:
S8093 On page 305, delete lines 19 through 21 and insert a new section 515(f) to read: "This
section shall not apply to Indian lands.".
S8093 Mr. METCALF. The Senator from South Dakota offered this amendment. My
distinguished colleague from Montana had some questions about it, as to its impact and as to the
language which was changed. Our staffs have been working on the amendment
S8093 As I understand it, and perhaps my colleague will correct me if I am in error, we have met
all of the questions he posed last night.
S8093 Mr. MELCHER. Will the Senator yield?
S8093 Mr. ABOUREZK. I yield.
S8093 Mr. MELCHER. Yes. We have had the opportunity since last evening to go over what
the effect of the amendment is. I have been reassured by the author of the amendment and by the
committee staff that the amendment is right to the point of an agreement that we had previously in
this bill in the last Congress. It is effectively a restatement of the same position arrived at in H.R.
25, the bill in the last Congress. I am satisfied with it.
{S8094} Mr. METCALF.The Senator from Wyoming and I have discussed it. We have
discussed it with the minority committee staff and our staff. Unless there is objection, I am prepared
to agree to the amendment.
S8094 The PRESIDING OFFICER. The question is on agreeing to the amendment.
S8094 The amendment was agreed to.
S8094 Mr. ABOUREZK. I move to reconsider the vote by which the amendment was agreed to.
S8094 Mr. METCALF. I move to lay that motion on the table.
S8094 The motion to lay on the table was agreed to.
S8094 AMENDMENT NO. 310
S8094 Mr. ABOUREZK. Mr. President. I call up my amendment No. 310 and ask unanimous
consent that the reading of the amendment be dispensed with.
S8094 The PRESIDING OFFICER. The amendment will be stated.
S8094 The assistant legislative clerk read as follows:
S8094 The Senator from South Dakota (Mr. ABOUREZK) proposes an amendment No. 301.
S8094 The PRESIDING OFFICER. Without objection, the unanimous-consent request is agreed
to.
S8094 The amendment is as follows:
S8094 On page 230, line 19, strike "and".
S8094 On page 230, line 23, delete the period and insert in lieu thereof the following: ":and",
S8094 On page 230 between lines 23 and 24, insert the following new subsection:
S8094 "(23) to the extent possible using the best available technology currently available,
minimize disturbances and adverse impacts of the operation on fish, wildlife, and related
environmental values, and achieve enhancement of such resources where practicable."
S8094 Mr. ABOUREZK. Mr. President, there appears to be an inconsistency in this bill. In
section 416, which deals with the surface effects of underground mining, section 10 states
reclamation should -
S8094 to the extent possible using the best available technology currently available, minimize
disturbances and adverse impacts of the operation on fish, wildlife, and related environmental
values, and achieve enhancement of such resources where practicable;
S8094 The language does not appear in section 415 with regard to surface mining. When we
have it for underground mining, I believe it ought to be included so far as surface mining is
concerned. It has already been accepted by the committee.I have discussed this with both the
majority and minority managers of the bill.
S8094 Mr. HANSEN. Yes.
S8094 Mr. METCALF. Our staffs and the Senator's staff have gone over this since it was offered
last night. It is acceptable to the committee.
S8094 The PRESIDING OFFICER. The fquestion is on agreeing to the amendment.
S8094 The amendment was agreed to.
S8094 Mr. ABOUREZK. I move to recosider the vote by which the amendment was agreed to.
S8094 Mr. METCALF. I move to lay that motion on the table.
S8094 The motion to lay on the table was agreed to.
S8094 Mr. FORD. Mr. President. I suggest the absence of a quorum.
S8094 The PRESIDING OFFICER. The clerk will call the roll.
S8094 The assistant legislative clerk proceeded to call the roll.
S8094 Mr. METCALF. Mr. President, I ask unanimous consent that the order for the quorum
call be rescinded.
S8094 The PRESIDING OFFICER. Without objection, it is so ordered.
S8094 AMENDMENT NO. 282
S8094 The PRESIDING OFFICER. The time of 11:10 having arrived, the question recurs on
amendments No. 282 as modified.
S8094 The Senator from Montana has 2 minutes of debate time. The Senator from Colorado has
3 minutes of debate time.
S8094 Mr. FORD. Weill the Senator yield at this time for a unanimous-consent request?
S8094 The PRESIDING OFFICER. Who yields time?
S8094 Mr. MELCHER. I yield time.
S8094 Mr. FORD. Without his losing any time, I ask unanimous consent that Tim Dudgeon of
Senator HUDDLESTON'S staff be allowed the privilege of the floor during consideration and vote
on S. 7.
S8094 The PRESIDING OFFICER. Without objection, it is so ordered.
S8094 Mr. MELCHER. Mr. President, the Senator from Colorado is offering an amendment that
seeks to correct some of the language in S. 7, the committee bill. He does it on behalf of the
Secretary of the Interior and points out that the House has adopted the same language.
S8094 While I agree with the Senator from Colorado and others that this section of the bill, to
protect farming on irrigated valley floors, could be improved and should be improved.I think the
Senator from Colorado goes much too far. I think that the Secretary of the Interior is entitled to
change his mind on language he wants in a bill that he will have a great deal of authority in
administering. But on February 4 of this year, the Secretary wrote a letter, and he discussed at
length, in public hearing, this section of the bill and opted for language that is, word for word,
amendment 292, the amendment that I am sponsoring.
S8094 If the amendment of the Senator from Colorado goes too far, as I think it does, and would
ban some strip mining in land that has nothing to do in the West with farming, and if the committee
version needs improving and it is the will of the Senate to do so, then we shall have that option in my
amendment 292.
S8094 I hope that we defeat Senator HART's amendment and get on with the question, then, of
whether or not the Senate wishes to refine the language in the current bill, S. 7, or whether or not we
want more clearly to demonstrate our intent to protect the farming operations on the valley floors
that are so significant to us in Western States.
S8094 Mr. HART. Mr. President, the language of the amendment presently beforce the Senate is
identical in nature to that contained in the House strip-mining bill.It has the support of the
administration, as evidenced by a letter which Senators have from the Secretary of the Interior,
indicating strong support across the board by the administration for this language. It also has the
support of the President's energy adviser, Dr. Schlesinger, and indicates that the administration does
not feel that the adoption of this amendment will in any way jeopardize, even in a minor way, the
efforts of this country to meet its energy obligation.
S8094 This is an amendment directed at the western part of this country. It is an amendment
directed at protecting agricultural interests and water necessary to promote those agricultural
interests. That, I think, is the primary reason that a large number of the farm organizations across
this country have supported this language. Tis language in this amendment clarifies what kind of
mining activities can and cannot take place on alluvial valley floors. If the definition of what an
alluvial valley is is unclear to some Senators, that, I think, is a charge laid at the bill itself, rather
than at this amendment, since this amendment is premised upon the existing definition contained in
the bill.
S8094 This language which this amendment contains would prevent arbitrariness on the part of
administrators of this legislation in terms of applyin git. It tightens the language up instead of
making it looser. I think it would make the bill much more certain. It would, as I have indicated,
conform the Senate's version of this bill with that of the House. It does have the support of both the
energy and resource sides of the administration.
S8094 Therefore, Mr. President, I urge my colleagues to give this amendment serious
consideration. I think it will substantially help solve a serious problem for agriculture and water
resource administration in the western part of this country.
S8094 The PRESIDING OFFICER. The question is on agreeing to the amendment as modified.
The yeas and nays have been ordered. The clerk will call the roll.
S8094 The assistant legislative clerk called the roll.
S8094 Mr. MUSKIE. Mr. President, on this vote I have a a live pair with the distinguished
Senator from Louisiana (Mr. JOHNSTON). If he were present and voting, he would vote "nay." If I
were permitted to vote I would vote "yea." I withhold my vote.
S8094 Mr. ROBERT C. BYRD.I announce that the Senator from Iowa (Mr. CLARK), the
Senator from California (Mr. CRANSTON), the Senator from New Hampshire (Mr. DURKIN), the
Senator from Missouri (Mr. EAGLETON), the Senator from Hawaii (Mr. INOUYE), the Senator
from Louisiana (Mr. JOHNSTON), the Senator from Arkansas (Mr. McCLELLAN), the Senator
from South Dakota (Mr. McGOVERNr, the Senator from Rhode Island (Mr. PELLr, and the
Senator from Michigan (Mr. RIEGLE) are necessarily absent.
{S8095} I further announce that the Senator from Tennessee (Mr. SASSER) is absent on official
business.
S8095 I also announce that the Senator from Arizona (Mr. DECONCINI) is absent because of
death in the family.
S8095 I further announce that, if present and voting, the Senator from Michigan (Mr. RIEGLE),
the Senator from Iowa (Mr. CLARK), and the Senator from Rhode Island (Mr. PELL) would vote
"yea."
S8095 Mr. BAKER. I announce that the Senator from Kansas (Mr. DOLE), the Senator from
Oregon (Mr. HATFIELD), the Senator from California (Mr. HAYAKAWA), and the Senator from
Texas (Mr. TOWER) are necessarily absent.
S8095 I also announce that the Senator from Alaska (Mr. STEVENS) is absent on official
business.
S8095 I further announce that, if present and voting, the Senator from Oregon (Mr. HATFIELD)
and the Senator from Alaska (Mr. STEVENS) would each vote "nay."
S8095 The result was announced - yeas 37, nays 45, as follows:
S8095 [Rollcall Vote No. 152 Leg.]
S8095 YEAS - 37
S8095 Abourezk
S8095 Anderson
S8095 Bayh
S8095 Biden
S8095 Brooke
S8095 Bumpers
S8095 Case
S8095 Chafee
S8095 Chiles
S8095 Church
S8095 Culver
S8095 Gravel
S8095 Hart
S8095 Haskell
S8095 Hathaway
S8095 Humphrey
S8095 Javits
S8095 Kennedy
S8095 Leahy
S8095 Mathias
S8095 McIntyre
S8095 Morgan
S8095 Moynihan
S8095 Nelson
S8095 Nunn
S8095 Packwood
S8095 Percy
S8095 Proxmire
S8095 Ribicoff
S8095 Roth
S8095 Sarbanes
S8095 Stafford
S8095 Stevenson
S8095 Stone
S8095 Weicker
S8095 Williams
S8095 Zorinsky
S8095 NAYS - 45
S8095 Allen
S8095 Baker
S8095 Bartlett
S8095 Bellmon
S8095 Bentsen
S8095 Burdick
S8095 Byrd, Harry F., Jr.
S8095 Byrd, Robert C.
S8095 Cannon
S8095 Curtis
S8095 Danforth
S8095 Domenici
S8095 Eastland
S8095 Ford
S8095 Garn
S8095 Glenn
S8095 Goldwater
S8095 Griffin
S8095 Hansen
S8095 Hatch
S8095 Heinz
S8095 Helms
S8095 Hollings
S8095 Huddleston
S8095 Jackson
S8095 Laxalt
S8095 Long
S8095 Lugar
S8095 Magnuson
S8095 Matsunaga
S8095 McClure
S8095 Melcher
S8095 Metcalf
S8095 Metzenbaum
S8095 Pearson
S8095 Randolph
S8095 Schmitt
S8095 Schweiker
S8095 Scott
S8095 Sparkman
S8095 Stennis
S8095 Talmadge
S8095 Thurmond
S8095 Wallop
S8095 Young
S8095 PRESIDENT AND GIVING A LIVE PAIR, AS PREVIOUSLY RECORDED - 1
S8095 Muskie, for.
S8095 NOT VOTING - 17
S8095 Clark
S8095 Cranston
S8095 DeConcini
S8095 Dole
S8095 Durkin
S8095 Eagleton
S8095 Hatfield
S8095 Hayakawa
S8095 Inouye
S8095 Johnston
S8095 McClellan
S8095 McGovern
S8095 Pell
S8095 Riegle
S8095 Sasser
S8095 Stevens
S8095 Tower
S8095 So Mr. HART's amendment (No. 282),
S8095 as modified, was rejected.
S8095 Mr. METCALF. The vote now recurs on to reconsider the vote by which the amendment
was rejected.
S8095 Mr. HUMPHREY. I move to lay that motion on the table.
S8095 The motion to lay on the table was agreed to.
S8095 Several Senators addressed the Chair.
S8095 The PRESIDING OFFICER (Mr. ZORINSKY). The Senator from Vermont is
recognized.
S8095 Mr. LEAHY. Mr. President, I ask unanimous consent that Judy Hefner, of my staff, have
the privilege of the floor throughout the consideration of the strip mining bill.
S8095 The PRESIDING OFFICER. Without objection, it is so ordered.
S8095 Mr. HUMPHREY. Mr. President, I ask unanimous consent that Martha Rogers, a
member of my staff, have the privilege of the floor during the consideration of this measure.
S8095 The PRESIDING OFFICER. Without objection, it is so ordered.
S8095 Mr. GRAVEL. Mr. President, I make the same request with respect ot Deming Cowles, a
member of my staff.
S8095 The PRESIDING OFFICER. Without objection, it is so ordered.
S8095 The METCALF. Mr. President, a parliamentary inquiry.
S8095 The PRESIDING OFFICER. The Senator will state it.
S8095 Mr. METCALF. The vote now recurs on the Johnston amendment?
S8095 The PRESIDING OFFICER. As modified - No. 275.
S8095 Mr. METCALF. May we have a vote?
S8095 The PRESIDING OFFICER. The yeas and nays have not been ordered.
S8095 The question is on agreeing to the amendment.
S8095 The amendment was rejected.
S8095 Mr. METCALF.Mr. President, I move to reconsider the vote by which the amendment was
rejected.
S8095 Mr. HANSEN. I move to lay that motion on the table.
S8095 The motion to lay on the table was agreed to.
S8095 Mr. HANSEN. May we have order, Mr. President?
S8095 The PRESIDING OFFICER. The Senate will be in order.
S8095 UP AMENDMENT NO. 256
S8095 Mr. METCALF. Mr. President, I have an amendment to the committee language with
respect to "alluvial valley floors." This language was worked out while we were talking to the
Senator from Montana (Mr. MELCHER), the Senator from Pennsylvania (Mr. HEINZ), and the
Senator from New Mexico (Mr. SCHMITT). I send the amendment to the desk.
S8095 The PRESIDING OFFICER. Unanimous consent is required to set aside the Ford
amendment.
S8095 Mr. FORD. Mr. President, reserving the right to object, what is the situation?
S8095 Mr. METCALF. I understand that Senator SCHMITT wants to offer the amendment.
S8095 Mr. FORD. I will be glad to do anything the chairman wishes.
S8095 The PRESIDING OFFICER. Is there objection? The Chair hears none, and it is so
ordered.
S8095 The amendment will be stated.
S8095 The assistant legislative clerk read as follows:
S8095 The Senator from Montana (Mr. METCALF), for himself and others, proposes an
unprinted amendment numbered 256.
S8095 Mr. METCALF. Mr. President, I ask unanimous consent that reading of the amendment
be dispensed with.
S8095 The PRESIDING OFFICER. Without objection, it is so ordered.
S8095 The amendment is as follows:
S8095 On page 290, line 17, strike the semicolon and insert: "but does not include upland areas
which are generally overlain by a thin veneer of colluvial deposits composed chiefly of debris from
sheet erosion, deposits by unconcentrated runoff or slope wash, together with talus, other mass
movement accumulation and windblown deposits."
S8095 Mr. METCALF. Mr. President, this amendment was prepared in response to the inquiries
that were directed to the committee and to the various people who were participating in the debate,
including the Senator from Colorado and the Senator from Montana, with respect to the definition of
alluvial valley floors.
S8095 I understand that the Senator from New Mexico wanted to offer the amendment. I
apologize for offering it.
S8095 Mr. President, I ask unanimous consent that the name of the Senator from New Mexico
(Mr. SCHMITT) be added as a cosponsor of the amendment.
S8095 The PRESIDING OFFICER. Without objection, it is so ordered.
S8095 Mr. SCHMITT. Mr. President, will the Senator yield?
S8095 Mr. METCALF. I yield.
S8095 Mr. SCHMITT. The language we have agreed to is basically language previously agreed
to in other discussions. It fits directly into the colloquy we had earlier this morning. I believe it adds
greatly to the specificity of the definition of "alluvial valley floor" and should relieve many of the
difficulties that others, including myself, had with respect to the very general definition that was
contained in the committee print.
S8095 I thank the distinguished manager of the bill for his cooperation in working out this
language, and I recommend that it be accepted by the Senate.
S8095 Mr. METCALF.The Senator from New Mexico has made a genuine contribution here, not
only with respect to this amendment but also in the course of the debate on the bill.
S8095 Mr. CURTIS. Mr. President, will the Senator yield for a question?
S8095 Mr. METCALF. I yield.
S8095 Mr. CURTIS. Does this amendment cover the same proposition or similar proposition as
the amendment just voted upon, offered by the distinguished Senator from Colorado (Mr. HART)?
S8095 Mr. METCALF.Directed to the same subject matter - that is, alluvial valley floors.
S8095 However, this is the language, or substantially the same language, adopted last year in the
H.R. 25 conference report, rather than to go -
S8095 Mr. CURTIS. It is in the nature of a definition?
S8095 Mr. METCALF. Yes. It is a definition that was worked out last year.
S8095 Mr. CURTIS. Does it contain the element that was in the Hart amendment, in the nature
of a prohibition?
S8095 Mr. METCALF. Yes. It is in the nature of a prohibition against mining on alluvial valley
floors as defined here.As we discussed the matter, we came to the conclusion that the Hart
amendment may have had more of a prohibition against mining on alluvial valley floors than either
this definition or the Johnston definition. But they are directed at the same subject matter and
prohibit mining on alluvial valley floors as defined by the amendment.
{S8096} Mr. CURTIS. What is the difference between the two? What is the practical
difference?
S8096 Mr. HANSEN. Mr. President, will the Senator yield? If I could respond, I think what this
does is to exclude by definition areas that otherwise might be interpreted to have been included.
S8096 I should think, if I could be so presumptuous as to say this, that the Senator from
Nebraska, I believe, knowing his feelings and conviction in this area would find this amendment to
his liking and would want to support it.
S8096 Mr. SCHMITT. Let me assure the Senator that the definition as worked out would not in
any way subvert the intent as we discussed it earlier today. As so eloquently described by the junior
Senator from Montana, the intent is that areas of present or potential farmland along the valley
floors of various river and stream systems in the West would be contained in the definition of
alluvial valley floors and, therefore, be subject to the provisions of this bill.
S8096 The portions excluded are those on the margins of valleys between, say, mountain ranges
and the valley floors that are unconsolidated gravel and debris that have no agricultural purpose
other than potential grazing purposes.
S8096 Mr. CURTIS. I will state my question another way: What did the amendment do that was
just rejected that the Senator's amendment does not do?
S8096 Mr. SCHMITT. The amendment just rejected was directed toward the regulations that
would apply to alluvial valley floors. This amendment merely defines alluvial valley floors in a
more precise manner so that through regulation or through court action we will not have open or a
very, very broad and general definition of alluvial valley floors. Specifically, the present
amendment does not relate directly to the amendment we have just rejected.
S8096 Mr. CURTIS. In other words, the amendment we just considered contained the ban on
strip mining which the Senator's amendment does not; is that right?
S8096 Mr. SCHMITT. My amendment does not. It is merely a definition of the term "alluvial
valley floors."
S8096 Mr. CURTIS. I thank the Senator.
S8096 The PRESIDING OFFICER (Mr. ZORINSKY). The Senator from Montana is
recognized.
S8096 Mr. METCALF. I yield to the Senator from Oklahoma.
S8096 Mr. BARTLETT. Mr. President, will the Senator from New Mexico yield?
S8096 Mr. SCHMITT. I yield.
S8096 Mr. BARTLETT. I notice in the definition that this does not deal with upland areas. Does
this mean then that the alluvial valleys that are not upland, that any part of the valley area between
the mountains that is not upland, would be part of the alluvial valley?
S8096 Mr. SCHMITT. I think not, and I will let the distinguished senior Senator from Montana
comment on this question also.
S8096 The definition still includes the material that is presently on page 290 of the committee
print in which it says that "alluvial valley floors means the unconsolidated stream laid deposits
holding streams where water availability is sufficient for subirrigation or flood irrigation agricultural
activities."
S8096 Then the amendment takes off but does not include these items that are listed in the
amendment, alluvial deposits and other things.
S8096 Mr. BARTLETT. So the Senator's interpretation of the definition is that the areas
excluded would be areas in addition to upland areas?
S8096 Mr. SCHMITT. In addition to upland areas that would in no way meet the existing
definition of alluvial valley floors, which is based primarily on irrigation. In a sense, that is an
additional exclusion. It is a geologic exclusion in addition to the exclusion that is implicit in the
standing definition of alluvial valley floors.
S8096 Mr. BARTLETT. In other words, the Senator is including as a part of the definition of
"alluvial valley" certain ground water conditions, and if those are not met by other lands in the
valley they would not be alluvial valleys even though they were not upland.
S8096 Mr. SCHMITT. I think that is absolutely corret, but we would have to get the committee
to agree to that interpretation.
S8096 Could the manager of the bill reply to that question? There has been a question asked, and
I would ask the distinguished Senator from Oklahoma to repeat his question for the manager of the
bill.
S8096 Mr. BARTLETT. I would say to the Senator from Montana that it has been stated by the
Senator from New Mexico that there are in the definition of alluvial valley floors certain conditions
of subterranean water. If those conditions are not met by lands that would not be considered upland,
but that would be considered on pretty much the same level as the alluvial valley land where the
water conditions were met, then my question is, would these areas where the subterranean water
conditions are not met but yet would be in the valley, be included or are they excluded?
S8096 Mr. METCALF. In the modification that was submitted, that was agreed to, in conference
last year we said it does not include upland areas.
S8096 But that would mean that the marginal areas as described by the Senator from New
Mexico would be excluded. However, also excluded are the areas that were raised by the Senator
from Montana, the dried creeks, the areas that do not have regular water courses on alluvial valley
floors themselves.
S8096 Mr. BARTLETT. But as the Senator from Mew Mexico said in the dialog we had, there
is a geological definition of alluvial valley which consists of certain subterranean water conditions
on that land.
S8096 Mr. SCHMITT. Mr. President, if the Senator from Oklahoma will yield for a clarification
on that, there are two new components of the definition of alluvial valley floors: One, specifically,
which is now in the committee print, relating to flood irrigation and agricultural activities, and in
that context the dry water courses, without subirrigation capability, would be excluded from the
definition of alluvial valley floors.
S8096 The other definition has to do with the geological definition of areas of sufficient deposits
that are also excluded, and those are the ones treated in the amendment before the Senate at this
time.
S8096 Mr. McCLURE. Mr. President, will the Senator yield?
S8096 Mr. BARTLETT. Yes.
S8096 Mr. McCLURE. First of all, I think the definition being suggested by the Senator from
New Mexico would not affect the problem you are concerned with unless those who are construing
the statute would assume that our attempt to further define was intended to include within the
definition those things which are not specifically excluded.I think that is your concern.
S8096 My answer would be that the definition which is contained in the bill, together with the
exclusion as defined in the bill, will still be subject to the interpretation of those sections, and the
amendment being offered by the Senator from Montana and the Senator from New Mexico is only
intended to increase the definition of areas excluded. It should not be read then to include areas not
specifically excluded under this other language of the bill.
S8096 Mr. SCHMITT. I would agree with that statement.
S8096 Mr. BARTLETT. I would hope the Senator from Idaho -
S8096 Mr. MELCHER. Mr. President, will the Senator from New Mexico yield?
S8096 Mr. SCHMITT. The Senator from Oklahoma has the floor.
S8096 Mr. BARTLETT. I was saying to the Senator from Idaho I think that the amendment puts
certain emphasis on upland areas, any my concern is that those areas that are definitely not upland
areas would still be excluded if they did qualify for exclusion for reasons of water, subterranean
water, and so forth, as outlined in other places in the bill.
S8096 Mr. McCLURE. I think the Senator from Oklahoma is correct, they would be excluded
under the other definition of the bill.
S8096 Mr. SCHMITT. I would agree with that statement, and I will defer to the seniro Senator
from Montana.
S8096 Mr. METCALF.I concur.
S8096 Mr. MELCHER. Mr. President, will the Senator from Oklahoma yield?
S8096 Mr. BARTLETT. I yield.
S8096 Mr. MELCHER. I think that statement is correct. I think the inclusion of this language of
the origin of this language was to clearly identify a certain mining operation in Montana. It was to
demonstrate that the definition of alluvial valley floor was not to cover that operation or similar
ones. The one I am referring to is the Westmoreland mine in the Sarpy Basin, Treasure County,
Mont., where the mining operation is out of the Sarpy Valley upland from the valley but what is
identified geographically as the Sarpy Basin. The language of fered by Senator METCALF and
Senator SCHEMITT is to say that the alluvial valley floor definition simply does not apply to those
upland areas and, therefore, the exclusion that is contained in the different section of the bill
therefore would not apply to any.
{S8097} Mr. METCALF. Mr. President, let us have the vote.
S8097 The PRESIDING OFFICER. The question is on agreeing to the amendment.
S8097 The amendment was agreed to.
S8097 Mr. SCHMITT. Mr. President, I move to consider the vote by which the amendment was
agreed to.
S8097 Mr. METCALF. I move to lay that motion on the table.
S8097 The motion to lay on the table was agreed to.
S8097 (The following proceedings which occurred earlier in the day are printed in the RECORD
at this point by unanimous consent.)
S8097 AMENDMENT NO. 280
S8097 Mr. FORD.Mr. President, I call up my amendment No. 280, and ask for its immediate
consideration.
S8097 The PRESIDING OFFICER. The amendment will be stated.
S8097 The legislative clerk read as follows:
S8097 The Senator from Kentucky (Mr. FORD) proposess an amendment numbered 280.
S8097 Mr. FORD. Mr. President, I ask unanimous consent that further reading of the
amendment be dispensed with.
S8097 The PRESIDING OFFICER. Without objection, it is so ordered.
S8097 The amendment is as follows:
S8097 On page 235, between lines 3 and 4, insert the following:
S8097 "(d)(1) Each State program may and each Federal program shall include procedures
pursuant to which the regulatory authority may permit variances for the purposes set forth in
paragraph (3) of this subsection.
S8097 "(2) Where an applicant meets the requirements of paragraphs (3) and (4) of this
subsection a variance from the requirement to restore to approximate original contour set forth in
subsection 415(b)(3) or 415(c)(2) of this section may be granted for the surface mining of coal
where the owner of the surface requests in writing, as a part of the permit application, that such a
variance be granted so as to render the land, after reclamation, suitable for an agricultural,
industrial, commercial, residential, or public use (including recreational facilities) in accord with the
further provisions of (3) and (4) of this subsection.
S8097 "(3)(A) After consultation with the appropriate land use planning agencies, if any, the
potential use of the affected land is deemed to constitute an equal or better economic or public use,
and (B) designed by a registered professional engineer in conformance with professional standards
established to assure the stability, drainage, and configuration necessary for the intended use of the
site.
S8097 "(4) In granting a variance pursuant to this subsection the regulatory authority shall
require that all other requirements of this Act will be met.
S8097 "(5) The regulatory authority shall promulgate specific regulations to govern the granting
of variances in accord with the provisions of this subsection, and may impose such additional
requirements as he deems to be necessary.
S8097 "(6) All exceptions granted under the provisions of this subsection shall be reviewed not
more than three years from the date of issuance of the permit, unless the permittee affirmatively
demonstrates that the proposed development is proceeding in accordance with the terms of the
approved schedule and reclamation plan.".
S8097 On page 235, line 4, by renumbering "(d)" as "(e)".
S8097 Mr. FORD. Mr. President, I ask unanimous consent that the Senator from Kentucky (Mr.
HUDDLESTON), the Senator from Virginia (Mr. HARRY F. BYRD, JR.), and the Senator f