January 19-20, 1978 Hearing
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Legislative History January 19-20, 1978 Hearing |
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1 THURSDAY, JANUARY 19, 1978
1 U.S. HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON ENERGY AND THE
ENVIRONMENT, COMMITTEE ON INTERIOR AND INSULAR AFFAIRS,
1 Washington, D.C.
1 The subcommittee met at 9:45 a.m., pursuant to notice, in room 1324
Longworth House Office Building, Hon. Morris K. Udall (chairman of the
subcommittee) presiding.
1 The CHAIRMAN. The subcommittee will be in session. We have a lot of
ground left to cover this morning and I apologize for not starting the meeting
on time. I was one of the many victims of the traffic conditions on the freeway
today. I apologize to those kept waiting.
1 I have an opening statement. I will try to summarize it quickly and
hope our witnesses will do likewise.
1 On August 3 of last year President Carter signed H.R. 2 which became
Public Law 95-87, the Surface Mining Control and Reclamation Act of 1977.
1 After years of controversy and debate the Nation finally put a Federal
law on the books that would stop the worst abuses of coal strip mining, and
require the land to be restored to usable condition, and let us get on with the
job of getting the coal the country needs. The bill, as enacted, included many
compromises between environmental and industry concerns as we in the Congress
recognized the need to guarantee a sure supply of coal.
1 But the controversy that surrounded the writing of the law has not
subsided.
1 The controversy has changed arenas, moving now to the new Office of
Surface Mining Reclamation and Enforcement in the Department of the Interior.
Specifically, interest is now focused on the recently promulgated regulations
addressing the act's interim period.
1 A number of charges have been made. It is asserted in some quarters
that the delays encountered in issuing the regulations, in the appointment of
the Director of the Enforcement Office, and in funding the program all justify
the delay of the act's implementation.
1 Others argue that the regulations have exceeded the scope of the act or
that the act itself is deficient in important respects. We have also heard that
the regulations regarding sedimentation ponds are unnecessarily strict and will
require construction of structures that are simply too big.
2 These and other serious charges have been made. I believe that it is
the responsibility of this subcommittee to look into these assertions through
the exercise of its oversight responsibility. I have therefore convened these
hearings.
2 We have scheduled a number of witnesses today and tomorrow. Our first
witness is a man intimately familiar with the development of the act and with
the regulation of coal mining. He is the Director of the Office of Surface
Mining Reclamation and Enforcement, Mr. Walter Heine.
2 After Mr. Heine's testimony, we will then turn to State regulatory
agencies, coal mining associations, environmentalists, and other interested
parties.
2 A number of other people asked to testify but we were unable to schedule
them although we are happy to accept written statements from any legitimate
source for the record. In exercising oversight jurisdiction the subcommittee
faces the dilemma of carving out the time necessary to listen to all interested
parties or limiting the witness list.
2 Believing that it is better to use the time we have available to receive
a representative cross-section of opinion, I authorized a limited witness list
for these hearings. I believe, however, that today and tomorrow we will be able
to delve into the major issues.
2 The implementation of major national legislation is not an easy job.
The Department of the Interior has performed a yeoman's effort under the
implementation timetable endorsed by the Department last April, and approved by
the Congress in the act.
2 Nevertheless, there may be problems with the regulations, and there have
been problems of delay. Our task here is to determine just how serious those
problems are and whether they present insurmountable hurdles to the effective
implementation of the act.
2 Let me just say two other things. So often Congress passes a law
through that is new and complex and then we charge off to put out the latest
fire, attending to the next crisis. We never go back and rarely do we see how
the old laws are working, whether we acted wisely or see if changes are
necessary. I have determined to make this a different kind of proposition.
2 I hope we can have an annual hearing for the first few years of the law
and focus on how well it works and what is wrong with it. I see that as the
beginning of a continuing process.
2 Second, I wanted to explain the timebox which has been complicated by my
delay. This afternoon this room, and the presence of most of us, will be needed
for action on the important Alaska lands bill. So we simply must work this out
by about 12:30 or around then. We have a long list. Members will undoubtedly
have questions and comments. So I would like to urge all the witnesses this
morning to see if they cannot summarize in 5 or 10 or 12 minutes at the most the
guts of what you want to tell us, what is wrong with the act, what is right with
it, recommendations you have to make, and to the extent that you can summarize
and hit the high points. It would be most helpful to us.
2 With that, we will proceed to Mr. Walter Heine, the Director of the
Office of Surface Mining. We have your statement. You may proceed.
2 [Prepared statement of Walter Heine may be found in the appendix.]
STATEMENT OF WALTER HEINE, DIRECTOR, OFFICE OF SURFACE MINING
RECLAMATION AND ENFORCEMENT, DEPARTMENT OF THE INTERIOR; ACCOMPANIED BY WILLIAM
EICHBAUM, ASSOCIATE SOLICITOR, AND PAUL REEVES, DIRECTOR, OSM TASK FORCE
3 Mr. HEINE. Thank you, Mr. Udall and members of the committee.
3 On my left I have with me today Mr. William Eichbaum, who is the
Associate Solicitor for the Department that is specifically assigned to the
Office of Surface Mining, and on my right I have Mr. Paul Reeves, who is the
task force leader specifically responsible for the early implementation of the
act and the putting together of the regulations, of which he has been highly
commended many times. He did an excellent job.
3 For the sake of brevity, I will summarize my statement, which will
primarily express some of the accomplishments that we have achieved during the
short time that the Office of Surface Mining has been functioning. Specifically
we have issued the final regulations for: The initial regulatory program; the
initial program on Indian lands; and the financial interest of regulatory agency
employees. And we have proposed regulations pending for the initial enforcement
on Federal lands.
3 We have conducted a large number of meetings and are continuing to do
that throughout the country to try to express to mine operators the function of
the act and our interpretation of the act and recommendations for the program.
3 We are proceeding, of course, with recruitment up to the point of
actually hiring people because, as I will mention later, we do not have the
year's appropriations.
3 Most of the changes in the regulations for the initial program are
discussed in the preamble of the revised regulations that were published in the
Federal Register. Both the regulations and the preamble are in the briefing
notebooks that we provided for the subcommittee and you have had this material
since early this week. The comments were extensive and I would like to
summarize those.
3 The regulations for the initial program were written and revised with a
number of concepts in mind, including: Providing additional detail to the
regional, State, and other geographic dimensions of the act; and further
delineating the phasing in of environmental protection standards between the
initial and permanent program as well as within the initial program. This
phasing in pertains not only to the presence or absence of a standard but also
to the scope or degree to which the standard is defined or enforced.
3 There are five principal areas on which we did receive quite a bit of
public comment. First, with respect to sedimentation control the act specifies
that additional suspended solids - sediment - are to be prevented, using best
technology currently available, from entering streamflow or runoff outside
permit areas and in no event should such additions exceed State or Federal water
quality standards.
3 A number of different techniques are used for sediment control. The use
of sedimentation ponds is a common control technique if designed, constructed,
and operated properly, and represents one of the best ways of controlling
sediment pollutants.
4 The proposed regulations required that ponds be designed to handle
maximum flows from a 24-hour 25-year precipitation event with a 24-hour
detention time. Criticism centered on the resulting large size of structure.
4 The revised regulations specify a design standard to handle a maximum
flow from a 24-hour 10-year precipitation event with a 24-hour detention time.
We reduced the proposed standard to a 10-year precipitation event. This reduced
the potential size of these ponds substantially.
4 Pond size can be further reduced by application of other onsite sediment
control practices. Excluded also is the requirement to treat water diverted
around the operation. We estimate that this standard will achieve approximately
95 percent of the efficiency of sedimentation pond capabilities to reduce
suspended solids.
4 Second, concerning blasting provisions, we made changes, all of which I
will not go into, but primarily the area of preblast surveys. We emphasized
more what we thought was the intent of the legislation, to give an opportunity
for the others and citizen groups, who are concerned about blasting, a chance to
get together with the mine operators and to discuss their concerns and to
recognize each other's problems and primarily so citizens can understand how
blasting is conducted and what is involved. Criticism centered on the approach
taken to the technical specifications and the range of content of the preblast
survey.
4 Third, the act requires for all new mining permits which include prime
farmlands, the operator must show that he "has the technological capability to
restore such mined area, within a reasonable time, to equivalent or higher
levels of yield as nonmined prime farmland. * * * " He also has to meet the
soil reconstruction standards.
4 Permits issued prior to date of enactment, or revisions or renewals
thereof, are exempted from this particular test. This provision became
effective upon the date of enactment, that was August 3.
4 The proposed regulations: One, included this provision in the initial
program; two, set criteria for defining the identifying such lands; three,
specified the soil reconstruction standards; and four, detailed the grandfather
clause. Criticism challenged each of these points.
4 The final regulations included special provisions for prime farmland
protection since the act mandates their immediate applicability.
4 Additional guidance was provided concerning the scope of the grandfather
clause so that this provision includes expansions of existing operations that
one, were in the original permit area or in an approved mining plan prior to
August 3, 1977, or two, are contiguous and under existing State regulations or
practice would have normally been considered as a renewal or revision of a
previously approved plan. The revised soil reconstruction standards include an
opportunity for alternative reclamation approaches if the resulting land
productivity meets the standard specified in the act.
4 Fourth, there was concern about underground mines and since our
interpretation of the act is that the impact included in the definition of
surface mining operations does include certain aspects of underground mining, we
made significant revisions in that portion of the initial regulations and set
them forth in a separate section for underground mining.
5 This was emphasized by a number of people and I certainly agree that
there are peculiarities to underground mining that should be addressed
separately. So we set forth a separate section on underground mining.
5 Finally, there was also some concern about preexisting structures and
for reasons of brevity I will not proceed through that.
5 You suggested that we talk briefly about our problems with
implementation of the act. Secretary Andrus sent you, Mr. Chairman, a letter
last week detailing the problems which are rapidly developing due to the lack of
direct appropriations for this program. The full letter is provided here for
the record. I would like to emphasize two points stressed in the letter, and I
quote:
5 Of great concern to me are indications that lack of funding and
enforcement capability is encouraging some segments of the coal mining industry
to take a wait-and-see attitude toward the reclamation regulations. I am also
concerned over the loss of momentum in the States, both with respect to State
enforcement of the interim Federal regulations and the development of State
programs for permanent State assumption of enforcement responsibility. Without
the State grant funds included in the appropriations request, States are holding
off on hiring the additional staff they need.
5 [The letter referred to may be found in the appendix as attachment to
Mr. Heine's prepared statement.]
5 Mr. HEINE. In my opinion, if this condition continues for a substantial
period of time, it will be impossible to meet the entire implementation schedule
included in the act.
5 Further, some individuals have already proposed that the act be amended
to extend the statutory dates for compliance for a 60- to 90-day period to
accommodate for existing and perceived delays. We do not favor this approach
for several reasons:
5 One. During the period of proposing and enacting such a short-term
extension, additional confusion and uncertainty will be created until all
proposals are settled. This would become self-defeating if the process of
change involved as much time as the extension sought.
5 Two. Such an aproach assumes an inflexibility of implementation and
enforcement actions which we do not believe are inherent in the act.
5 For instance, the December 16, 1977, date of applicability of the
initial environmental standards for mines operating on Indian lands has passed.
Specific regulations for such mines were published on that date. Since then,
the response in the industry has been mixed. Some operators have called for the
formal extension of the statutory dates, other operators have undertaken on a
voluntary basis the preparation of a "compliance plan" detailing the actions and
time required to bring their mines into compliance with the regulations.
5 We have been told that these plans will be completed shortly and sent to
us for review. This approach reflects the basic obligation of operators to
comply with the act. The approach also provides a working basis to move forward
in the implementation of this act. As we have previously discussed, the
regulations provide for preparation of compliance plans in limited circumstances
for nonconforming structures.
6 This example points out that sufficient flexibility is inherent in the
act to allow both operators and Government to diligently pursue implementation.
We are prepared to take immediate enforcement action where required, for
example, in those instances of "imminent danger to health and safety of public"
or "significant, imminent harm to land, air, and general environment." I believe
that this combination of the phased and diligent approach to complying with all
standards and the capability to immediately take required enforcement action is
a fair but tough approach.
6 Such an approach requires sustained cooperation among all parties
affected: Citizens, operators, State, and Federal officials. It also requires
continued support from Congress and I look forward to working with you to keep
that support. Thank you.
6 That concludes my prepared statement. I would be happy to answer any
questions and if some of them get into both legal areas and some into the
historic areas of the promulgation of the regulations, Mr. Reeves would be
available to assist on some of those types of questions, and Mr. Eichbaum.
6 The CHAIRMAN. My questions are going to be very brief and my comments
very brief, largely for one reason. My colleagues should understand that we
have structured the format of these hearings so that today we hear from Mr.
Heine at the beginning and then we hear from others. At the close of the
hearing tomorrow we will then recall them to the stand to respond to charges,
accusations, and perhaps some compliments that may have been thrown their way.
6 So it may well be that the members will want to save questions for you
until they have heard from your critics. You will have representatives here
that will attend as much as possible?
6 Mr. HEINE. Yes, throughout the hearing.
6 The CHAIRMAN.I recognize that you have been an innocent bystander who
got caught in the middle of those trying to shoot down the B-1 bomber. I will
try to talk to Chairman Mahon of the Appropriations Committee to see if we can
get this changed. We recognize we have put you in a difficult position. We
tell you to do certain things by a certain date. We give you deadlines and then
we hold the money back that you need and the States need. We are sympathetic to
this and we recognize that difficulty and are going to do what we can.
6 I hope with your great record in Pennsylvania - I think everyone knows
that many times we have pointed to Pennsylvania not only as an example of a good
law but as an example of commonsense administration. You had a very admirable
record according to most people in the industry and I think they would agree
that a good law can be administered fairly.
6 Now you will be tested on a national basis to see if you can do the same
thing in that arena. I wish you well, and want to assure you of all the support
and cooperation that I can give you.
6 I would only raise one other question. It is not a major one, but there
has been a great outcry in this country against lawyers and over technical
regulations and, particularly against language that is not concise, plain, and
simple. I offered an amendment at the time of the writing of the bill which
required that regulations be written in concise, plain, and understandable
language. I must say, reading the regulations in the Federal Register, I think
your performance is a notch or two above the kind of thing we typically get out
of Federal regulators, but there is clearly room for improvement.
7 I just give you one example. Regulations No. 62688, which deals with
definitions, you define ditches - and you are concerned about structures that
drain roads not being blocked. The language outlines ditches as culverts,
drains, drainage racks, debris basins, and other structures, serving to drain
access, should not be constructed in any manner that impedes drainage or
adversely blocks the intended purpose.
7 It seems to me you could have said the same thing, structures which
drain roads should not be blocked to save all the excess verbiage.I asked my
staff to look up some other horrible examples. There is one in No. 6278,
defining roads, meaning access, and all roads constructed, reconstructed for use
in surface coal mining and reclamation operations including use by coal haul
vehicles leaving the transfer process or storage area, when I thought roads
means access haul roads used in surface coal mining operations.
7 As you draft and redraft these things, I hope you will keep in mind the
admonition that there is a simple, plain way of saying things and that we should
not be tempted into the way of trying to use five four-syllable words when one-
or two-syllable words will perform the same function.
7 Mr. SEIBERLING. I would like to be recognized for a minute.
7 The CHAIRMAN.The gentleman is recognized.
7 I want to say, before Mr. Seiberling starts, that he is, probably more
than any other member of the committee over the years, the member that has
played a hand in putting this bill together. If anyone has a right to comment,
or has a right to criticize it, it is the gentleman from Ohio.
7 Mr. SEIBERLING. I appreciate that and the tremendous drive that you put
into this without which we would not have this bill or we would not be sitting
here today and discussing implementation.
7 I must say that I have spent an awful lot of time in trying to shoot
down the colossal boondoggle of the B-1 bomber, and I never thought this would
end up cutting you out of the picture. But it proves that everything is
interrelated.
7 I think the administration is to be commended for its wisdom and
astuteness in selecting for the administrator of this program the one person in
this country who has more qualifications and more experience and more
levelheadedness than any other in this field in administering such a program.
7 He obviously not only knows the problems involved in strip mining
regulations, reclamation, but he knows what the States need to do and he knows
what they are up against. He knows what the industry is up against, because he
administered the pioneering program in this country in the State of
Pennsylvania. So I think we are extremely fortunate in having someone like
Walter Heine as the administrator.
7 Mr. Heine, I just have one question here relating to your comment about
the retaining ponds, sedimentation ponds. You mentioned that you have excluded
the requirement of treating the water diverted around the operation, providing
that the quality is not diminished by diversion. Of course, the quality may not
be diminished, but the quality may not be very good when it gets to the
diversion, and I wonder if you would elaborate on that. How do you equate that
with the requirement that there be no increase in the suspended solids and so
forth of the act?
8 Mr. HEINE. The nondisturbed area above a mine and the whole watershed
above a mining operation will, obviously, when it rains on that area, yield
runoff which may be of good quality. It may contain a certain level of
suspended solids and as this water approaches a mining operation, it is the
responsibility of that operator, therefore, to move that water through his
operation or around his operation so it does not become contaminated and that is
how our regulations read.
8 He cannot add in any way to the contamination of that water.If that
water should be of such poor quality initially because of offsite pollution from
other mines or from whatever source, then it was judged improper and probably
illegal to require that miner to upgrade that water which he did not pollute by
putting it through such sediment ponds or whatever is necessary to upgrade the
quality of that water.
8 He is simply processing it around this operation.
8 Mr. SEIBERLING. It is not in the law, but would there be any point in
recommending a change in the law or regulations to provide some kind of an
incentive for the operator, even though he has no responsibility for the water
that does not originate - or conditions that do not originate in his operation,
upgrading them and running them through his sedimentation system? For example,
we may have a situation where you have an abandoned mine above an acting one.
Of course, we have an abandoned mine reclamation fund, and I presume you will
put that to work. That was to be my next question to you.
8 Is there some way of providing an incentive perhaps through the
abandoned mine reclamation fund, to get an operator to install additional
facilities to improve the quality of water? The provisions of the act, as I
understand them, permit the hiring of outside people to do the reclamation work
and I do not know why that could not be a coal mine operator himself if he is
reclaiming land other than that which he is operating at the time.
8 Mr. HEINE.Yes; Mr. Seiberling, an operator could become part of an
overall reclamation scheme on a watershed where we have an abandoned mine. He
has his equipment there. It may be quite easy for him to move in an abandoned
mine and undertake some reclamation. Of course, all of this will be done on a
bidding basis.
8 If he is right there and if it is prudent for him to get his equipment
moved during slow periods by undertaking such reclamation this might be the
cheapest way for the Government to have it done. So any way that we can
encourage an operator to reclaim old lands or to treat existing pollutant
sources, we certainly will do that.
8 Mr. SEIBERLING. My other question was, what is the status of the
abandoned mine reclamation fund, and have you actually gotten to the point yet
where you have started using any of this money? I realize that appropriations
are required there also, but I just wondered what the status is.
8 Mr. HEINE. You are right. There is a requirement for an appropriation.
Of course, we are waiting for that. Up to this point we have asked the States
to submit to us their identification of critical areas that should be taken care
of with this money, right from the beginning.
9 For instance, mine fires, anything where there is an imminent hazard to
the health and safety of the public. The States are identifying those and we
can, after getting our appropriations, plan to go into those areas, and
undertake some of that kind of reclamation.
9 Mr. SEIBERLING. How does the $2 6,640,000 which is in the budget for
fiscal 1978 compare with the anticipated receipts?
9 Mr. HEINE. I am advised that it is about one-fourth of the anticipated
receipts for 1 year. As you know, first payments are coming in and are actually
due the end of this month for the last quarter of last year.
9 Mr. SEIBERLING. Is it only one quarter, because that is all you felt
you could use in the initial phase?
9 Mr. HEINE. That is initially true. We have to phase into this.
9 Mr. SEIBERLING. Are you in a position to disclose at this point what
the request is for fiscal 1979?
9 Mr. HEINE. I do not have the information immediately with me, but I
know we do intend to greatly expand the program. We hope by that time it will
be in full gear, or at least some gear.
9 Mr. SEIBERLING. Thank you. I consider myself the father of this
concept, so I have a parental interest in its progress.
9 Mr. VENTO. Mr. Chairman, Mr. Heine, I was reading and listening to your
statement. The rules and regulations issued on December 13 are being very much
contested, and of course, obviously, you do have some funding problems before
you can put into effect the other provisions of the act.
9 I suppose that some of the criticism comes about because these may only
be interim regulations that are being contested as if they were being enacted if
they were final. What will happen? What is the time-frame now with regard to
the court case that was entered on the same day?What types of problems does that
present to the implementation of this act?
9 Mr. HEINE. We are going to proceed at the same rate regardless of
whether or not that case is in court. If you want to know specifics of the
status of that case, Mr. Eichbaum could give you those details.
9 Mr. VENTO. I do not want to get into those details. I was just
wondering what obstacles were present in terms of the implementation, other than
the problem of the appropriations. What about that as being a problem in terms
of what you are trying to accomplish?
9 Mr. HEINE. We do not envision that there will be any holdup in our
implementation of the act, unless we get an adverse court decision rapidly out
of this. But we are proceeding with our normal implementation as best we can
without the budget, regardless of that court case.
9 Mr. VENTO. Do you see some operators who are waiting to follow the
provisions of the rules and regulations on the outcome of that case? Are you
finding compliance generally good in any type of monitoring system that you have
to date, inadequate as it may be?
9 Mr. HEINE. We have spoken before about 2,500 operators throughout the
country in the last month during a number of seminars. I have also spoken
privately to a large number of operators plus their association representatives.
As far as I can determine, most operators are planning to move ahead with
complying with this act. They are concerned about meeting some of the deadlines
because of the strike and the weather and other reasons. But I have run into
very few that simply said we are not going to do anything. Most are proceeding,
and that is our concern, that we want to keep that kind of momentum going.
10 Mr. RAHALL. Most of my questions will come following the rest of the
testimony that is to occur before the oversight hearings. I want to first
commend you, Mr. Chairman, for having these hearings. I think it reflects the
concern of the Congress that the law we passed is being administered fairly to
all parties and that the intent of the law as the Congress meant it is carried
out. I am glad to see these hearings.
10 I appreciate your testimony, Mr. Heine. I have not personally met you
before today, but I do know you have been around the country. You have been in
my part of southern West Virginia, and you have heard some of the problems with
the regulations as they are written. I am also concerned about the lack of
appropriations, the problem that has been discussed.
10 You mentioned in your testimony that you are prepared to take immediate
enforcement action where required in those cases where imminent danger of health
and safety of the public is occurring. I am wondering how you are prepared to
do this without the adequate appropriation process? Do you have personnel on
hand, and are they being paid so that you can undertake this?
10 Mr. HEINE. Yes; we have some personnel on hand. The Associate
Solicitor's Office, Mr. Eichbaum's office, does not have 13 attorneys on board.
We do have limited capability, but some capability in technical areas. That is
comprised primarily of the task force that was assembled by the Secretary and
has been functioning for the last 9 or 10 months.
10 So on a case-by-case basis where there are imminent danger situations
brought to our attention we could, first of all, try to work through the States,
and I certainly feel and know that the States do not want imminent danger
situations to exist in their States. They are going to act forthrightly on
those. But in those few cases where perhaps we feel a little more movement
would be necessary, we will try to prod the States to eliminate those.
10 Mr. RAHALL. How many such cases have been brought to your attention?
Would you say a great many, or very few?
10 Mr. HEINE. None that I can really cite to you. Perhaps some of the
staff can think of some. But I cannot really think of any.
10 The CHAIRMAN. All right, Walter. I guess that will do it for now. If
you want to take seats up here so you can look your critics in the eye, we have
a few chairs on the side.
10 Let me also say that the taxpayers here that are standing, these chairs
on the lower level may be filled. If members of the press or witnesses waiting
to testify would like to come forward and take any of these chairs in the lower
level or any of the first five or six on this side, we will be glad to
accommodate you.
10 We are now going to have a panel from the National Governors'
Association. We have Mr. James E. Pitsenbarger, State of West Virginia; Mr. C.
C. McCall, State of Colorado; Mr. Steve Freudenthal, State of Wyoming; Mr.
Robert Bell, State of Kentucky; Mr. Anthony Abar, State of Maryland; and Mr.
Kovacic, State of Missouri.
11 Would you gentlemen come forward? Mr. Pitsenbarger, I understand you
are going to quarterback or MC this presentation for the Governors' Association.
It is apparent that you face a most formidable obstacle in putting this law into
effect. I want to hear as quickly as we can your problems, hopes, frustrations,
and complaints.
11 If you proceed, we will be glad to hear you.
11 [The prepared statements of James E. Pitsenbarger, Steve Freudenthal,
William Kovacic, and Anthony Abar may be found in the appendix.]
A PANEL REPRESENTING THE NATIONAL GOVERNORS' ASSOCIATION, CONSISTING OF:
JAMES E. PITSENBARGER, RECLAMATION DIRECTOR, WEST VIRGINIA; C. C. McCALL,
RECLAMATION DIRECTOR, COLORADO; STEVE FREUDENTHAL, STATE PLANNING COORDINATOR,
RECLAMATION DIVISION, WYOMING; WILLIAM KOVACIC, RECLAMATION SPECIALIST,
MISSOURI; ROBERT BELL, SECRETARY, DEPARTMENT OF NATURAL RESOURCES, KENTUCKY; AND
ANTHONY ABAR, RECLAMATION, MARYLAND
TEXT: 11 Mr. PITSENBARGER. First I would like to read a statement on behalf
of the National Governors' Conference.I greatly appreciate the opportunity to
present testimony this morning on behalf of Gov. Jay Rockefeller, of West
Virginia, chairman of the National Governors' Association Subcommittee on Coal,
and on behalf of Gov. Julian Carroll, of Kentucky, chairman of the NGA Committee
on Natural Resources and Environmental Management.
11 Unfortunately, both Governor Rockefeller and Governor Carroll are
unable to appear this morning because of the press of their State legislative
sessions. After conferring with your committee staff, the NGA agreed to present
this panel of State reclamation officials representative of interested States in
the different coal mining regions of the Nation.
11 Since it was not possible to convene our NGA task force on surface
mining in the short period after we received the invitation to testify, I will
limit my comments to three general observations for the States as a whole. Then
each of us will present our individual State's specific views on implementation
of the new surface mining law.
11 First, the States want to express our full support for Walter Heine,
the Director of the Office of Surface Mining, and his staff. They have done a
creditable job in trying to get the program moving in the face of major
financial and staffing shortages. We share his deep concern over the need to
move as quickly as possible to fully fund OSM's operations. The lack of funds
and staffing has made it impossible for OSM to provide a meaningful presence at
the regional office level and will greatly limit OSM's ability to carry out its
responsibilities once new permitting begins. Moreover, many States are
desperately in need of grant money authorized by the act to develop our programs
and expand our staffs to meet the new responsibilities of the act.
12 Second, we particularly appreciate the openness with which first the
Department of the Interior's task force and now the OSM have approached the
regulation drafting process. Many of our NGA recommendations were adopted and
we feel that generally the regulations for the interim program were improved
significantly over the proposed rules published in September. However, some
problems peculiar to certain State do remain and will be addressed by individual
States on this panel.
12 Third, we would like to point out that a number of the States are faced
with the need to enact legislation giving their reclamation divisions the
authority to implement the interim standards. All of the States facing this
need are not moving to get their legislatures to pass such legislation during
the current session. This is a problem which apparently was unforeseen at the
time of passage of the Federal surface mining bill.
12 We are hopeful that this will not unduly slow down implementation of
the interim standards, but wanted to make this committee aware of the problem.
This concludes my general presentation for NGA. I will not move to the State of
West Virginia's individual views.
12 My name is James E. Pitsenbarger, chief of the division of reclamation,
department of natural resources from the State of West Virginia.Having been
through several amendments and regulation changes concerning surface mining laws
in our State, I wish to compliment the Department of the Interior on the
promulgation of the rules and regulations as a job well done under tight time
constraints. It is a difficult task.
12 At the beginning, I wish to make it very plain that the State of West
Virginia wishes to be the regulatory authority for surface mining in our State.
We have a lot of experience. We have had a law since 1939. Just until a few
years back there was no reclamation law connected with it.
12 In 1967 there came a change. In 1971 there were other changes, and
since that time there have been more changes. We feel today that we have one of
the best laws in the United States, as good a reclamation law as anyone can have
that will not work to have problems. We can work things out without building
some of the ponds that we will discuss later.
12 Section 710.11(d)(2) regarding applicability. This section of the
rules and regulations places a hardship on the regulatory authority in our
State. Our operators cannot begin to construct or reconstruct a sediment basin
by May 4, 1978, because of weather conditions. If we can conform, we are
looking at the snow in most of the parts of our State in that part of the year,
and the heavy rain and everyone knows that when you are working on a foundation
of a house you do not work during the rainy season or when the snow is 3 feet
deep.
12 Section 715.15(b), disposal of soil in valley or head of hollow. The
first sentence in this section states no waste material must be disposed of in
valley or head-of-hollow fills. Where can we put it? It is either the
mountaintop or the valleys. With proper engineering, proper placement, good
drainage control, the waste can be placed in the valleys and kept to an area
that we can use later on and so forth, rather than quit mining.
13 We feel this paragraph should be changed.
13 Section 715.15(b)(6). We in West Virginia have pioneered the area that
is recognized in several parts of the country, even so far as to say that the
people of Russia enjoyed their visit with us so much that they took our
specifications back with them.We are faced with the problem of drainage
control in our valleys, which we disagree with.
13 We have tried this type of valley fill in the regulations and we have
had problems. The drainage criteria under the valley fields we agree with.
There is no problem there. The drains you cannot have under the valley fields
you cannot control. But when we try to divert we end up with ditches filling up
so that sliding off the water goes back to where Mother Nature put it to start
with. We have no control. We have erosion.
13 We build a chimney or a rock drain and all the water is directed to
drain into the natural drainway, and from this - we have been building this
since 1972, early 1973, and we have had no failures. We have started these
around the whole State. We would be glad to show them to you.
13 Mr. SEIBERLING. Are we questioning the witnesses individually or as a
whole?
13 The CHAIRMAN. I would prefer to have the whole panel testify first.
The staff advised me that we can only allocate 2 or 3 minutes to each State.
13 Mr. SEIBERLING. How about a clarifying question?
13 The CHAIRMAN. Go ahead.
13 Mr. SEIBERLING. Are your objections addressed to the proposed
regulations or to the act itself?
13 Mr. PITSENBARGER.Regulations, sir.
13 Mr. SEIBERLING. Thank you.
13 Mr. PITSENBARGER. Section (8) of 715.15 indicates that there will be
50 feet of outslope on the valley field.I understand from OSM that this is a
mistake in typing up the regulations. We hope that can be changed. If it is
not changed, then we will lose several thousand yards in our valley fields and
we will end up building a lot of valley fields instead of just one in order to
get our yardage in these fields. I understand that will be taken care of.
13 Last and not least, the sedimentation control measures. The Federal
bill with few modifications follows along the same lines as the State bill. In
1971 an amendment was passed which said a drainage system must be any place
maintained - where a drain system must be installed prior to mining and
thereafter maintained, which is similar to what Federal law says.
13 We went to the SCS for assessment. Our Department of Natural Resources
said, OK, we have a drain system. They got together all the big heads and they
came up with one type of drain system which was an impoundment. So that is what
our first drain system was. Just a few days down the road we found that there
might be other ways to control sediment.
13 Sure enough, other ways have been developed since 1971. Our first
original book had 65 pages in it. It was a little handbook. You could carry it
in your back pocket. It is now a full-sized book, 168 pages, and those
additional pages are nothing more than the new ways that we have found to
control sediment.
14 Now, along come the Federal regulations saying, you have one way to do
it and that is it. That is, build a big impoundment.
14 I have a couple of things that I could show you.
14 The CHAIRMAN. Go ahead, but make it brief.
14 Mr. PITSENBARGER. The sediment control in our State is in a sharp,
narrow valley. We are up high mining. We built our sediment control and we
built it to the criteria that was set by the U.S. Forest Service. The Bureau
indicates the size which we have in our present law in existence right now.
This indicates what we are to have - what we would have to build in order to
comply with Federal regulations on May 4. It went from 19.5 up to 80 feet high.
14 In our State an impoundment is a scary feature. Since 1972 someone -
they have problems. We feel this will create quite a hardship. This particular
one is sitting about within 400 feet of the skirts of a little town.
Theoretically, this pond could wipe out that little town because we have in that
pond 18,259,759 gallons of water. Our thought to the regulations people is, how
would they like to be living in a house and have to look up for days, for years,
and look at this impoundment hanging over their heads?
14 We feel it is beyond the call of duty to come up with that. They have
told us they may or may not reach the 30 parts per million.
14 The CHAIRMAN. We have to talk to Mr. Heine tomorrow about this
question. He cannot see this chart well. Will you pass that up while we are
listening? There may be some valid point here.
14 Mr. PITSENBARGER. I will finish with our ultimate feeling, which is to
mine our natural resources and leave the environment in as good or better
condition as before mining. This area happens to be one area that has been
mined. I would like to pass this up to you. That pond went to 60 feet from
18.5 feet. It is one area that Congress has looked at and said, this is the way
it should be done.
14 Our next representative on the panel will be Mr. C. C. McCall, from
Colorado.
14 Mr. McCALL. I appreciate the opportunity to be here and work with the
National Governors' Conference. I just learned about this particular meeting
about a week ago, and was really happy that I was able to arrange my schedule to
be here.
14 I do not have any real specific comments in regard to the statutes and
regulations. However, I would like to relate some general observations that I
would have.
14 Having served in my State's reclamation program, the Montana
reclamation program, and now as the director of the Division of Reclamation of
Colorado, I basically agree with the Federal law, and have mixed emotions. But
basically I can say that I am glad there is a Federal law.
14 However, I would echo Pete's comment that I think States should carry
out the administration and upgrade their laws so we can all agree. It is
certainly Colorado's feeling that we want to do that.
14 I would like to tell the committee that many States are faced with
every other year legislative meetings. We are in Colorado having our regular
session next year. I do not want you to think we are dragging our feet, but we
anticipate bringing our law up to equal or greater status at that particular
time.
15 I would also like to point out that I realize there have been
difficulties on the Federal scene with OSM's program having its budget not
funded at this particular time, and that has not been staffed up. It has posed
somewhat of an imposition on the various States in trying to upgrade their
program either this year or now working with the interim program, because there
are really very few people to ask when you call Washington about specific
problems. They do the best they can, and they have treated us with tact and
diplomacy and courtesy.
15 But it has been a detriment to the State in trying to work any Federal
program, the lack of people.When they finally get their funds it will be 6 to 8
weeks before they can get staffed up. So that is still quite a while.So even if
funding were to occur by the end of the month, it will be almost April before we
can get definitive answers to our questions.
15 From a State standpoint, we have all been going through passing State
laws and State regulations and we have sat where Walter sits in defending our
own statutes and regulations. Most assuredly, there are always concerns that
are brought up and exceptions to the law and general criticism. Generally,
however, for the most part, we find, or I have found in my experience, that you
have to give a law a while, a year or two, to try it on for size. The same with
regulations.
15 I would also like to point out to the committee, I firmly believe that
whether it is going to work depends on the interpretation and close coordination
between the two parties that are trying to work with it.
15 I would hope that Walter and his staff, and I feel sure he will, I have
known him for quite some time, will work closely with the States and because the
OSM is off to a slow start they will recognize that has impeded the States'
efforts to try to keep up. I hope they will recognize this.
15 Interpretation is the key to it. Any State law, I might say, any State
law, Colorado, West Virginia, Kentucky, if it were interpreted strictly could
put any operator out of business. I think that is a fact. I would certainly
stand behind that particular statement. I really believe that is all I have to
say.
15 I will be glad to answer any questions. I sure appreciate the
opportunity to be here, commend you for all this oversight hearing, and we will
certainly work with you in Colorado to make this thing work.
15 The CHAIRMAN. Thank you.
15 Mr. PITSENBARGER. Our next speaker will be Steve Freudenthal from the
State of Wyoming.
15 Mr. FREUDENTHAL.I am Steve Freudenthal, Wyoming State Planning
Coordinator, testifying today on behalf of Governor Herschler. We also
appreciate the opportunity to testify here.
15 The comments offered today on behalf of the State of Wyoming will not
address the technical portions of the interim regulations. They address a
question which is as equally, if no more, important, from the viewpoint of the
Western States, and that is the question of the implementation of the
cooperative agreements on Federal land.
15 As members of this committee are well aware, the Federal strip mining
bill provides for continuation of existing cooperative agreements pending the
development of a State regulatory program. Upon the development of a State
regulatory program and further adjustment of the cooperative agreement, a State
containing Federal lands supposedly would have full authority to regulate the
operation and reclamation of all coal mines within its border, subject to review
and monitoring by the Office of Surface Mine Reclamation and Enforcement under
the Federal act.
16 If a State cannot exercise jurisdiction throughout the entire State, a
State regulatory program is a fiction in the Western States. By nature of the
interspersed holdings of Federal land and Federal coal, a State regulatory
program which does not operate on both Federal land and Federal coal, as well as
State and private lands, is a phantom with neither sufficient breadth of
coverage nor sufficient authority to effectively implement the Federal strip
mining bill.
16 I will not go into the entire history of the cooperative agreements.
The written statement does. This background information is to bring up the
problem of development in Wyoming and other Western States that is being caused
by a proposal of the U.S. Geological Survey to amend its 211 under which the
cooperative agreements were developed.
16 These proposed amendments to these regulations are put forth in such a
manner as to defeat or substantially diminish the ability of Western States to
operate under cooperative agreements which will insure a full State regulatory
program applicable to all coal which will State. Furthermore, the proposed
regulations are designed to insure the continued existence of the U.S.
Geological Survey as a massive bureaucracy which will duplicate in large part
the operations of the Office of Surface Mine Reclamation Enforcement, another
Federal agency within the Department of the Interior.
16 In the past, coal operators and environmental interest groups have
frequently criticized the multiplicity of regulations and regulatory authorities
applicable to Federal coal. Prior to the Federal strip mining bill, the U.S.
Geological Survey, the Bureau of Land Management, and the appropriate State
authority exercised varying degrees of jurisdiction. The cooperative agreements
attempted to bring these separate entities together and provide for one
coordinated mechanism under which a reclamation and mining plan would be
developed and approved.
16 The U.S. Geological Survey, through its proposed rules, now attempts to
compound the duplicity which previously existed by adding unauthorized
definitions and requirements and attempting to stake out its bureaucratic
territory in opposition to that which the Federal act confers upon the Office
of Surface Mine Reclamation and Enforcement.
16 Generally speaking, the proposed rules would establish the USGS as a
separate permitting authority with input from the Bureau of Land Management.
The Federal act establishes the Office of Surface Mine Reclamation and
Enforcement as the primary Federal authority.
16 The Federal act also establishes a State regulatory authority, if it
meets the requirements of the Federal act, as the primary regulatory authority
within the State subject to supervision and review by the Office of Surface Mine
Reclamation and Enforcement. Rather than serving to minimize duality in
administration and enforcement, the proposed regulations may effectively destroy
efficient operation of the Surface Mining Control and Reclamation Act of 1977
and preclude most Western States from operating State regulatory programs as
intended by Congress.
17 The written statement goes into four specific technical problems of the
act. I will not go into them at this point.
17 Finally, if these regulations are adopted, they should clearly state,
in each section, that all requirements can and will be delegated to qualified
States by cooperative agreements. Upon first reading, especially by dutiful
U.S. Geological Survey employees in the field, it appears that those
requirements, that is Federal administrative penalties, plans, inspections,
apply irrespective of cooperative agreements.
17 The experience of Wyoming is that Federal employees are thoroughly
versed in the requirements of Federal regulations, but unaware or uninterested
in the fact that the cooperative agreement made these requirements a State
concern.
17 The statute has created an overly cumbersome and complex State
delegation process. Numerous ambiguities exist which allow the Department of
the Interior to either frustrate or encourage State implementation. The first
cut of the Federal lands program - the proposed section 211 regulations - is not
a favorable sign of things to come.
17 The act created a new agency, the Office of Surface Mine Reclamation
and Enforcement, to regulate and administer reclamation on all lands, Federal
and private. The self-injection of other Federal agencies into reclamation
programs, because of their previous role in the area, is unnecessary and totally
unworkable. The States must have one, and only one, Federal agency to deal
with, and receive approval from, in reclamation matters.
17 If the Office of Surface Mining must coordinate its decisions with
other agencies, then it must do so. But in implementing this act, and
delegating authority to the States, the Federal Government must speak with one
voice.
17 Once a delegation occurs, the States should not be constantly
secondguessed. If a State's actions with respect to Federal coal are in
compliance with the minimum standards of the act, Secretary approval should be
automatic. This policy should be established early and clearly stated.
Reclamation is complex and involves numerous exercises of discretion. If the
delegation is to work, the State decision must be reviewed only to determine
compliance with the minimum standards of the act.
17 Basically, it appears that it is necessary to indicate to the States
what the minimum ground rules are. As long as the States operate within those
minimum ground rules, they should be allowed to do so. Without that authority
and assurance there is no incentive to expend the effort and time necessary to
implement the act.
17 In closing, I would like to join with the other State representatives
in complimenting Mr. Heine and members of his staff on the excellent job they
have done in involving the States. We look forward to working with them and we
aim to bring our State in full compliance with the Federal legislation. Thank
you.
17 Mr. SEIBERLING. Mr. Freudenthal, just for clarification, on page 5 of
your statement you say the proposed regulations are unnecessary. I assume you
are talking about the USGS and not the act itself?
18 Mr. FREUDENTHAL. Yes; the proposed USGS regulations.
18 Mr. SEIBERLING. If there had been no strip mining bill or act, would
the USGS have had the authority under the cooperative agreements to issue these
regulations?
18 Mr. FREUDENTHAL. I do not believe there would be any necessity in that
mechanism.
18 Mr. SEIBERLING. I am trying to find out how they got into the act, and
whether that was part of the cooperative agreements or whether they were
continuing their prior activities, regardless of the cooperative agreements. I
am a little confused.
18 Mr. FREUDENTHAL. I share that confusion, because it is a little vague
as to why USGS feels compelled to do this at all, given the existence of the
OSM.
18 Mr. SEIBERLING. This is a very important point, and we need to find
that out, and we will address that to Mr. Heine when he returns to the witness
table, and try to get a better picture. Thank you.
18 Mr. PITSENBARGER. Next we have Mr. William Kovacic, reclamation
specialist from the State of Missouri.
18 Mr. KOVACIC. My name is William Kovacic. I work for the land
reclamation program in the Missouri Department of Natural Resources.
18 My comments today will be divided into three areas: One, a report on
our activities in Missouri to meet the requirements of Public Law 95-87 as
contemplated by Congress for the States; two, our general observations about the
implementation of Public Law 95-87 by the Office of Surface Mining; and three, a
discussion of the prime farmlands provisions which is of special importance in
the Midwest.
18 (1) The performance standards of the initial Federal regulatory program
exceed the authority granted by our legislature in the State reclamation law.
We have prepared legislation that will authorize the Land Reclamation Commission
to participate in the initial program.
18 The legislation has been filed and contains an emergency provision to
become effective upon enactment so we should be on line for the provisions going
into effect on May 3, 1978. The interest groups - environmental, farming,
mining industry, and utilities - are all in support of the State enforcement of
the Federal standards. The only opposition we anticipate is a few very
conservative legislators who are opposed to "another Federal program."
18 We plan to prepare legislation to have introduced in the 1979 session
of the legislature to meet the requirements of the permanent regulatory program.
18 The fact that the Federal funding to the States is maintained at not
lower than 50 percent, and that the State matching share must be made up from
permit fees, will help us gain the legislative support. The requirements for a
system of administrative fines could be an obstacle in gaining legislative
support. We are advised that no State agency currently has this authority in
Missouri State goverment.
18 Since the enactment of Public Law 95-87, the staff of our program has
been immersed in reviewing drafts of Federal rules and plans, mobilizing support
for our State compliance legislation, and transferring information to
constituent groups as well as the individual mining operators.
19 Because of the failure to appropriate moneys to the Office of Surface
Mining, we have been unable to receive grant money to expand our staff to meet
this increased workload.The result has been a cutback in our field
investigations in order to evaluate and stay informed of developments associated
with the Federal law. Also, we have been unable to attend some meetings where
the rules were discussed with OSM, because of out-of-State travel limitations in
our budget.
19 (2) The Office of Surface Mining has been severely handicapped in
implementing this act because of the lack of appropriations. I urge you and
your colleagues to quickly pass the necessary appropriations. The lack of
funding has delayed things at the Federal level and has interrupted the
operation of our agency as well.
19 In spite of this handicap, I must commend OSM and Walter Heine, its
Director, on their openness and accessibility to our States as the
implementation program has developed.
19 We have not changed OSM on every issue we disagreed on, but we feel
that they are taking advantage of our experience in regulating mining, and we
have been able to influence some of the decisions.
19 (3) A performance standard of critical importance to mining in the
Midwest is the prime farmlands provision. The provision was to be effective for
new permits issued after August 3, 1977. We had several application for
amendments pending when this act was signed into law.
19 Also, our permits are issued on a calendar year basis and thus expired
December 31, 1977. We did not have State statutory authority to issue permits
after August 3, 1977, containing the requirements for the prime farmland
provision.
19 Also, the rules developed by OSM were not promulgated until December
13, 1977, and we did not actually receive these rules until an hour after the
Land Reclamation Commission approved the 1978 permits at its meeting on December
23, 1977.
19 I understand that the definition of prime farmlands being developed by
the U.S. Department of Agriculture is at the stage of proposed rules.
Hopefully, we will be able to suggest revisions to USDA to refine their
definition so that it only includes the best farmland in the country. While I
am not technically qualified to comment on the soils aspect of the prime
farmlands determination, we are all under the impression that it is being
construed very broadly and therefore is including land which would hardly be
considered good farmland.
19 If I were to suggest one revision in Public Law 95-87 at this point, it
would be to change the effective date of the prime farmlands provision to May 3,
1978, with the other initial performance standards. Because of the delay in
funding, in the development of the rules, and because of insufficient State
authority, this provision has not been enforced for new permits issued after the
date of enactment.
19 Thank you for the opportunity to comment here, and I will try to answer
any questions you might have.
19 Mr. PITSENBARGER. Next, we have Robert Bell, the secretary of the
Department of Natural Resources from the State of Kentucky.
19 The CHAIRMAN. Let me say to Mr. Bell and Mr. Abar, we are getting into
a time bind. In about an hour we have to be done. I realize there are people
who have come great distances.It is unfair to you to put time constraints on
you, but it is unfair to them also. I wish we had 4 days to do all this. But I
hope all the witnesses will help by trying to summarize the high points and the
main thoughts that you have.
20 Mr. BELL. I am secretary of the Department of Natural Resources from
the State of Kentucky. I do not have a prepared statement. I will speak very
briefly. I represent Gov. Julian Carroll. Our legislature just convened 2
weeks ago, so it is necessary he be there. His presence there might be more
helpful to the implementation of this act than here.
20 I think you would be pleased that he recommended in his budget message
the night before last an increase from our present $3 million in the State fund
for reclamation to an increase of $2 .2 million, which is a sizable increase in
our budget. It will enable us to more than double our entire program with
respect to inspections, geologists, engineers, and all the other skills needed.
20 I think most of the problems that we have been talking about here have
to do with timing. I think the problem with the regulations have their roots in
what I think time has shown now is a very possible mandate that the Congress
gave the Department of the Interior. The mandate to produce these regulations
in 60 days was, I think, impossible on its face.
20 Had that been done, the rulemaking would be in effect, but we would not
have been able to consider all the large volume of comments that we received. I
want to pay tribute to Mr. Heine and his colleagues, also. I think you will all
find all the States are lacking authority and have a good feeling about the task
force in the Department of the Interior. I think what they have done in
producing these regulations, whatever their strength and weakness, has been a
public administration miracle, to have done this in the amount of time they
have. The 60 days created a lot of problems. There was not enough time to
draft the regulations. There was not enough time for review by the State
regulatory authority or by the industry or by environmental groups out in the
country.
20 Once comments were returned I do not think there was enough time for
the Department of the Interior to seriously consider all those comments.
20 But in any event, on December 13 the regulations became final. I think
when the Congress was considering the act there was something that was
overlooked, and it is our fault as much as it is anyone's.There seems to have
been a presumption that the States and the Federal Government would simply move
in a dual inspection and enforcement responsibility, administering the interim
program.
20 It now turns out that there is possibly no State where they can assume
responsibility for administering the interim program without an act of their
legislature. We had a week in Washington of 13 coal producing States, and 11 of
those States said they would, in effect, have to introduce legislation to be
empowered to enforce the interim regulation program.
20 So we are a few days away from the date of February 4, when the curtain
goes up on this place, and at least 11 States out there have to have those
legislatures pass legislation in order to be empowered to enforce the act. We
do not have an Office of Surface Mining. To my knowledge, I believe Mr. Heine
is the only official employee of the Office. There is a task force, and a very
able one. It is a very overworked task force, faced with an impossible
situation.
21 But there really is not an Office of Surface Mining. There are no
field officers, no field employees. I think we are going to embark on a venture
here where the States do not have the power, the legal power, at least for a
short period of time, to enforce the interim program, and there will be no
Federal presence.
21 I realize you have problems that may be unassociated with this
committee, but the fact that these appropriations have not been made to this
agency has created a very horrible situation for everyone concerned. I think it
breeds some additional cynicism with respect to Federal institutions generally.
21 It has been almost impossible to provide any kind of reasonable
information to the industry. We did have one meeting of over 1,000 people.
Federal people came and did a very good job of interpreting the program, but
they only reached maybe a fifth or a sixth of the Kentucky coal industry.
21 Your act holds out the promise that third parties which have grievances
with respect to being damaged by irresponsible mining practices, that there will
be a way to intervene. But without field employees or attorneys out in the
field, I do not think that promise can be achieved.
21 The act has one of its major purposes to bring some uniformity. We
will have the uniformity of performance conditions because section 502 of the
act requires that those conditions be attached. But as we view it now, it will
be many months before there is any enforcement between the States, which is the
problem we have had for all these past years.
21 I am afraid we are entering into a program where there will be a lot of
talk about flexibility and being pragmatic, which is what I thought the
objective was, to get away from that kind of problem. I do not know what can be
done with respect to the implementation dates on the State level. We would
simply get the leadership of the legislatures together with the Governors and
sit around the table, and there will be a bill to change the dates, and there
would be an agreement not to take advantage of that. But that might be
impossible.
21 I hope there could be some short-term delay in the interests of the
program, because I think there is going to be a great deal of confusion and a
great number of problems.
21 Finally, I hope you will consider some amendments to the act later this
year.
21 I thank you for your time.
21 The CHAIRMAN. Thank you.
21 Mr. PITSENBARGER. Next we have Mr. Anthony Abar, reclamation director
for the State of Maryland.
21 Mr. ABAR. My name is Anthony Abar. I am the administrator for the
Maryland Bureau of Mines. Coming last on the panel, some of my comments have
been addressed by previous speakers. But apologizing for it, I will go through
my prepared testimony because I do believe I can read it quicker. To abbreviate
my statement would be filled with pauses just to weed out the redundancy.
22 I also think that repetition for the sake of emphasis is good.
22 My name is Anthony F. Abar. I am the administrator for the Maryland
Bureau of Mines. The Bureau of Mines is the principal State agency responsible
for the control of coal mining and reclamation activities in Maryland.
22 Maryland is a member of the Interstate Mining Compact Commission. Last
week, on January 10 and 11, 1978, the Interstate Mining Compact Commission met
in Washington, D.C. Discussions at that meeting revealed that: one, only 2 or 3
of the 12 coal-producing States within the IMC possess the necessary legislation
to fully implement the initial regulatory program under Public Law 95-87; two,
several States require Federal grant funding as a prerequisite to fully
implementing the initial regulatory program. These States cannot effectively
review (a) mine status maps, (b) small operator exemption requests, (c) requests
for delay in converting nonconforming structures, (d) preexisting, nonconforming
structure designs and plans, and other submissions mandated by Public Law 95-87
without additional personnel, supported by anticipated Federal funding.
22 Three, most of the States regard the preexisting, nonconforming
structures provisions of the section 715.11(d) and the sediment control measures
provisions of section 715.17(e) as dubious environmental protection
requirements.
22 Because of several events, including congressional delay in
appropriating funds for the Office of Surface Mining and a delay in adopting the
regulations pertaining to the initial regulatory program performance standards,
combined with the time required for States to enact legislation and promulgate
regulations, neither the Federal Government nor most of the State governments
will possess the capability to enforce the initial regulatory program on
February 4, 1978.
22 Two alternatives are available: One, informally let deadlines slide and
impose the performance standards of the initial regulatory program on a
case-by-case basis as Federal and/or State capability is developed; or two,
acknowledge the realities of the situation and extend the deadlines across the
broad until the Federal Government obtains the funds and personnel it requires
and the States obtain the funds and statutory/regulatory authority they require
in order to implement the initial regulatory program.
22 The Interstate Compact Commission met and these alternatives were
discussed on January 11, 1978, with representatives of the Office of Surface
Mining and the White House, and urged the Federal Government to adopt the second
alternative. Short-run delays in implementing the initial regulatory program
across-the-board are preferred to a piecemeal approach to implementation of this
program. A piecemeal approach, with no effective Federal presence and limited
State authority, could quickly result in a lack of credibility that would damage
the long-range implementation of an effective surface mining and reclamation
program.
22 Maryland recommends a 120-day extension of the February 3 and May 3
deadlines. Hopefully, such extension of deadlines will be adequate for the
Congress to appropriate funds to staff and operationalize the Federal Office of
Surface Mining and to provide grants to the States to offset the marginal costs
of administering the initial regulatory program.
23 The recommended extension of deadlines would also provide State
legislatures time to authorize full State participation in the initial
regulatory program. Finally, it is hoped that, during the same extension of
deadlines, the Office of Surface Mining will review and consider amendments to
those sections of the regulations it has adopted pertaining to preexisting,
nonconforming structures and sediment control measures.
23 To elaborate on the last point, implementing the standards pertaining
to preexisting, nonconforming structures would require the replacement of
thousands of miles of haul roads and ponds throughout the coal region of
Appalachia. In Maryland, as other States, these ponds were constructed in
accordance with design specifications jointly developed by the U.S. Department
of Agriculture, Soil Conservation Service, and the State Department of Natural
Resources. We seriously question regulations which would require the relocation
and/or reconstruction of these facilities with structures that would serve
mining operations, in some instances, for only a matter of a few months.
23 During the comment period on the proposed regulations for the initial
regulatory program, Maryland recommended that the Office of Surface Mining adopt
regulations that specify the objectives but not the specific means by which the
objectives - protecting the hydrologic balance - are to be obtained.
23 Therefore, we did not provide data which supported design standards for
sediment ponds that were different than the design standards in the proposed
regulations. Since our recommended approach was not adopted, we have
subsequently analyzed and are prepared to submit data which supports different
design standards.
23 Specifically, we reviewed the sampling data collected by the Maryland
Water Resources Administration from ponds constructed under surface coal mining
permits issued by the State of Maryland from January 1974, to the present. We
conclude that ponds constructed to designs currently required in the State of
Maryland will achieve the effluent limitations required by the Federal
regulations. Construction or reconstruction of larger ponds is not necessary to
achieve the water quality objectives. Constructing larger ponds may
unnecessarily adversely impact water courses, and relocation and reconstruction
of existing ponds will unnecessarily adversely impact the environment.
23 In summary, we recommend extending the February 3 and May 3 deadlines
120 days. Our recommendation stems primarily from a motivation to have
effective Federal and State regulatory programs on line in order to insure
compliance with the provisions of the program.
23 We believe the loss of credibility resulting from an alternative,
piecemeal approach would be of greater long-run adverse consequences to the
program than the approach we recommend. However, we also recommend that during
this extension of time, the regulatory standards pertaining to sediment ponds
and particularly nonconforming structures be reevaluated.
23 The CHAIRMAN. Thank you, gentlemen. I have a lot of questions, but in
light of the timeframe we are in, I think I will save most of them until
tomorrow. The common theme here this morning has been the unrealistic timeframe
that we put you all in.I recognize that this poses a great difficulty. On the
other hand, it would be extremely complicated to undertake this task quickly, as
quickly as you would need, the enacting of some kind of extension through the
House and the Senate. There has been a great fear expressed by many people that
if we undertake to do something of that kind there would be demands for a more
general opening of the law. Everyone would have an amendment. This would
complicate things as it would encourage the few operators left - who do not want
to comply and who are now facing deadlines and believe they have to comply - to
stall and keep the act from being effective.
24 I do not want to give anyone a false sense of encouragement. I have a
strong bias against that. Maybe the best thing to do is to do the best we can
and fudge a bit on the timetable.
24 How many of you think we ought to have a 90- or a 120-day extension?
24 How many think we ought to try an extension? How many do not know, or
would be opposed? It is a difficult problem. We will talk about it today and
tomorrow.
24 Mr. ABAR. I would like to simply say, in certain cases we are going to
have this extension whether we acknowledge that fact or not. I do not know
about some of the other States. I know in Maryland if we have a realistic
enforceable program, realistic program, we will get compliance. I venture to
say we will have 100 percent compliance.
24 But we find it very difficult to enforce or even pretend to enforce. I
do think an extension of time, whether passed by Congress or simply made clear
that we are not going to try to piecemeal this approach, or muddle through or
squeeze it in, I think we can get the right kind of compliance.
24 The CHAIRMAN. Mr. Bell made a good point in that there is enough
cynicism and contempt for the Government now without having laws on the books
that we are not prepared to enforce. I recognize this, but I also see the other
side of this dilemma, the difficult problem we would be getting into if we were
to have an extension.
24 Mr. RAHALL. I just have a quick question that refers to the point that
Mr. Pitsenbarger made of increased embankments which you mentioned could be a
valid point. My question is, Mr. Bell in Kentucky, are you experiencing the
same problem as far as the increased height of the embankments and the threat to
people below these embankments?
24 Mr. BELL. Let me say, first of all, that our sediment structures in
Kentucky have not performed satisfactorily and I think the design criteria needs
to be raised. If they are going to hold only an average of an inch or two after
rain they will not serve the purpose they were intended for.
24 However, I think the combination of all the criteria imposed here in
concert is going to create some rather severe problems for a number of
companies, specifically in steep slope areas. I do not think there is any
question about it. I think there will be a large number of situations in which
it will in fact be impossible to mine some of these areas at all, given all
these criteria, and if they are applied across the board.
24 Mr. RAHALL. Do you see possible threats to the health and safety of
the public downstream below these embankments?
24 Mr. BELL. Well, I would be concerned. Of course, sometimes a dam is
safer if it is larger, depending on engineering design. The problem is, if they
are large and if there is property or human beings below this structure, and you
are relying on enforcement and inspection that does not exist, either because
the State does not have the resources or the Federal people are not there, that
would concern us a great deal.
25 The CHAIRMAN. I would like to ask you or Mr. Pitsenbarger both, it
seems to me that maybe we have the phenomenon that we frequently confront in the
air quality standards. You find, to get 90 percent of the stuff you can do it
with $1.But to get that next 5 percent it takes $2 to get the next 1 percent and
then it takes $3 to get the next 1 percent and so on.
25 Is this the situation here, where if we reduced the efficiency
standards, you could reduce in a large way the size of these structures you are
talking about? Is there an attempt to get every bit of the sedimentation out
that causes these very large structures?
25 Mr. PITSENBARGER. They have told us that they will not meet the
criteria when they built these big structures. We say to the people that write
the regulations, do not put us in jail until we have done it. We feel we have
met the criteria. There is the MSPD permit and the Federal Government says, get
out the 30 parts per million. We have been doing this for several years, and
with nobody enforcing it. We think we are doing the right thing.
25 The CHAIRMAN. Sometimes in an attempt to get perfection we cause a
great, great deal of expense whereas if we were to settle for a reasonably
satisfactory result you would save.
25 Mr. PITSENBARGER. I think they explained it with a 10-year 24-hour
retention time we pick up about 95 percent. When we retain it for 24 hours we
retain the same water for 10 hours and we pickup 90 percent. So it takes up 14
hours to pickup the other.
25 The CHAIRMAN. That is it. Thank you. It has been helpful. Stay with
us, if you can.
25 Our next witness is Cloyd McDowell, president of the National
Independent Coal Operators Association.
25 [Prepared statements of Cloyd D. McDowell and Larry Jones may be found
in the appendix.]
STATEMENT OF CLOYD D. McDOWELL, PRESIDENT, NATIONAL INDEPENDENT COAL
OPERATORS ASSOCIATION, ACCOMPANIED BY CHARLES SCHWAB AND LARRY JONES
25 Mr. McDOWELL. Mr. Chairman and members of the committee, I have
with me today an operator and mining engineer, Mr. Charles Schwab of the Hawkeye
Elkhorn Coal Co. and Mr. Larry Jones, of the Crawford Engineering Co.
25 Our association represents about 1,500 small- and medium-sized
operators. The legal responsibility and economic burdens created by any
mandatory regulations fall most heavily upon members of our association.
Therefore, just consideration of our problems and appropriate assistance from
the regulatory authorities are essential to our survival. Not only is the
future of our segment of the industry at stake but so is the very economic life
of the various small communities in which we operate.
25 Our panel, which is composed of two mining engineers, an active coal
operator, and myself, will attempt to point out the concerns of our members in
trying to meet the rigid requirements of those interim regulations. We have
testified at previous hearings on more than one occasion in an attempt to
receive some measure of relief from the timetable approach to the enforcement of
certain provisions of these regulations.
26 Final regulations on the interim regulatory procedure for surface coal
mining and reclamation operations were published by the Interior Department in
the December 13 Federal Register - 6 weeks after November 1, the date mandated
by statutes for their completion.
26 In spite of the delay in publication of these regulations there has
been no extension of the date required for compliance which means that new mines
must meet performance standards by February 3, 1978, and existing mines must
comply with the standards by May 3, 1978.
26 Many State officials, including those of Kentucky, are of the opinion
that they will have no legal authority for granting permits after February 4,
1978. In other States the small operator's exemption will only apply to those
operators whose permits were granted or renewed before August 3, 1977. Many
States issue annual permits, thus forcing the small operator to comply with all
requirements of the interim regulations by August 3, 1978.
26 A number of legal challenges of the interim regulations by various
parties, including the State of Virginia, has created a state of uncertainty
among the members of our association. This situation added to the confusion
that now exists due to strikes, weather conditions, and many other reasons make
it imperative that the effective date for implementing these regulations be
delayed for at least 9 months.
26 We believe that a better understanding of the regulations will have
been achieved by then through the efforts of the Office of Surface Mining in
public meetings with the operators.
26 We greatly appreciate the cooperation of OSM and we feel this is the
best way to achieve the results necessary to meet the requirements of Public Law
95-87.
26 I would like to call on Mr. Schwab to make a statement as an objective
operator.
26 Mr. SCHWAB. I have submitted a prepared statement for the committee
which I will not even summarize in the interest of time. I would like to make a
couple of extemporaneous remarks.
26 First of all, it is obvious from the testimony that has gone forward
that it is totally unrealistic to expect the industry to be able to accomplish
the first requirement when it was not even possible for the OSM to reduce them
within writing set forth by the Congress and something must be done, de facto or
however, to accommodate these time impossibilities.
26 In no way do I mean to criticize OSM. Quite the contrary. I, for one,
would like to compliment them.
26 I have been testifying on behalf of our association throughout the
legislative proceeding, and the development of the interim regulations. In
reviewing my testimony prior to coming here today, I found that the final
regulations as published on December 13 have without exception taken into
account each point on which our association testified.
26 I do not mean to imply that they did it the way we wanted them to. But
the consideration given by OSM is certainly to be commended.
27 We do now have in place a set of regulations. They are certainly not
perfect. They certainly will require considerable interpretation and revision
as they are implemented. It seems to me that their value and their
implementation is totally dependent on personnel that are brought into OSM to
implement these regulations and to oversee the program.I would certainly
encourage the Congress to go forward with the funding of OSM so that we can get
about the business of applying the appropriate people who have the experience
and talent and who can work with the industry in a way that will let us get on
with the job.
27 As we work with the regulations we will find the imperfections and
certainly, if we have the right kind of people in OSM and the right attitude, we
will be able to work out these problems as they arise.
27 The CHAIRMAN. Very good. Thank you.
27 Mr. McDOWELL. This is Larry Jones of the Crawford Engineering Co.
27 Mr. JONES. My name is Larry R. Jones. I represent the
Knott-Letcher-Perry Independent Coal Operators Association in southeast
Kentucky. We greatly appreciate the opportunity to present our suggestions and
views on such an important subject.
27 We live and mine coal in an area where steep slopes are the only things
we see because of the mountains, so you can readily see some of the problems we
face.
27 One major problem I wish to point out is section 710.5, dealing with
soil segregation. Our local SCS official, Mr. Cecil Hensley of Letcher County,
tells us we can expect to find only 3 to 4 inches of topsoil on ridges and a
maximum of 6 to 8 inches of topsoil on the slopes. With the equipment our
operators can afford we will not be able to segregate the topsoil without
contaminating it extensively, even with the best of care being used in the
operation. We hope you will give great thought in providing regulations that
will allow the best possible and feasible substitute.
27 Section 710.12 of the regulations tells the small operator to file an
application for exemption by February 3, 1978. Our operators have not seen or
heard from the regulatory authroities concerning this application. This does
not give the operators time to make plans or seek information requirements. We
feel the entire regulatory system should be given at least 1 year of
transitional allowances to give them enough time to deal with all of the
applications due to the vast number of small operators and their specific
problems.
27 We feel the whole system of enactment should be delayed 1 year to allow
ample time for the regulatory offices to be set up for business.
27 Section 715.12 requires signs for practically every movement or stone.
We feel MESA and State regulatory agencies have already taken care of the job.
The average operator in eastern Kentucky already has his hands full trying to
replace the signs, already required, that are pushed over, shot up, or abused by
hunters, property owners, and the general public - trespassers.
27 I will limit my remarks and skip around.
27 In some regions the standards for mountaintop removal backfilling plans
will not allow enough storage room for spoil or overburden. We feel that in
sparsely populated areas that a safety factor of 1.5 may not be necessary. We
would be able to stack material back on the area without having to disturb
otherwise uninvolved lands.
28 A wide range of problems occur in our area in the subject of sediment
ponds. I, too, want to comment. Due to steep side slopes and valleys, the
surface area mentioned in section 715.17, part (e), subpart (1), cannot be met
without extensive construction measures such as earthmoving and blasting being
done, creating more siltation problems, more problems with the nearby occupants,
and unaffordable construction costs.
28 The State of Kentucky has been using a standard 1.5 feet flood storage
stage requirement on all silt structures in a 100 acre or less watershed. In my
opinion it has worked satisfactorily in the past and we feel it can continue to
work in the future. This may lessen flood water storage in some instances and
create safer conditions for people living downstream.
28 Access roads should be reseeded but not regraded. In most cases the
outslopes are stabilized and vegetated. Any additional disturbance produces
additional silt, a scar that takes longer to heal, and unaffordable costs on the
operator.
28 Roads should also be kept off ridges because of disturbances to
property lines or monuments and additional silt problems to other unaffected
hollows or drains.
28 Blasting notices will be a virtual impossibility because of equipment
breakdowns, weather, other regulatory authority problems, or misfirings.
28 Small operators may have problems taking seismographic readings because
of the possible number required at the same time and the number of personnel
involved.
28 Section 722.14 should require the regulatory authorities to send
notices of noncompliance by registered mail to the president or main stockholder
of the company. Notices may also be hand-delivered requiring a signature of
said person. This will assure the operator that he has or will receive proper
notification of all noncompliances.
28 In closing, let me say on behalf of some of the small operators in
eastern Kentucky mining steep slopes that we face great problems in maintaining
production to meet America's needs. What will help all concerned seems to be
time and understanding of everyone's problems.
28 We definitely want to mine coal in a feasible manner and in an
environmentally protective manner. But we would like to see these changes made.
28 Thank you for the opportunity to speak.
28 The CHAIRMAN. Thank you for a constructive statement. We will
question Mr. Heine on some of these things. It has been very helpful, and I
really appreciate your being here.
28 We will now have Mr. Ben Lusk, who is president of the Mining and
Reclamation Council of America.
28 [Prepared statement of Ben Lusk may be found in the appendix.]
STATEMENT OF BEN E. LUSK, PRESIDENT, MINING AND RECLAMATION COUNCIL OF
AMERICA
28 Mr. LUSK. Mr. Chairman, I realize the time is becoming a
significant factor and most of my comments will echo the comments of the
National Independent Coal Operators Association and there will be two
gentlemen's testimony given after me which I think will adequately cover the
technical aspects of the rules and regulations which we are extremely concerned
about, in particular the size of sedimentation ponds which has already been
covered, and also prime farmlands and adequate protection for small operators.
29 The one area that I want to hit on strongly today which has not been
hit, and I want to get to the deadlines and the timing that the act is calling
for our industry to be in compliance with. By February 3, 1978, just 10 working
days from the end of these hearings, any small operator seeking an exemption
from the Director must have had application into the Office of Surface Mining.
Also, any request for a time extension on upgrading existing structures to the
new requirement of the act must be filed by then. And of course, all new mines
and permits for mining after the February 3 date must incorporate the new rules
and regulations.
29 Although we all were aware of the February date last summer when
Congress was completing its work on the bill, no one could have predicted the
unfortunate events which followed which will make it not only impossible for the
industry to comply with the February 3 date requiring all existing mines to
upgrade their structures to the new law.
29 Consider, for example, the fact that although the President quickly
signed the act just weeks after Congress passed it, he waited over 3 months to
appoint a Director of the newly formed Office of Surface Mining. Then the
Senate waited nearly 2 more months to confirm the President's selection, thus
not giving the Office of Surface Mining an official Director until last month.
29 The situation being that the industry was unsure as to where to turn
for guidance or to get official answers to critical problem areas until nearly 5
months after the act was signed and the industry has to be in compliance in 6
months.
29 I have to stop for a second and echo the comments and our association's
position, that we have nothing but praise for the Office of Surface Mining and
the task force and the fine work they have done. Someone mentioned it was a
minor miracle getting the regulations out in such a short period of time. The
Office has spent a considerable amount of time going to seminars and met with
2,500 operators to explain to them what the rules and regulations are all about.
Our industry is extremely appreciative of all their effort.
29 The proposed regulations were published in the Federal Register on
September 7, 1977, just 4 days late of the 30-day time limit set by the act and
the interim regulations were published on December 13, 1977, 40 days late.
Regardless of how difficult the task was, and how hard and diligently the task
force and the Office of Surface Mining worked, and how genuinely qualified these
individuals are, the industry still has to comply with deadlines while receiving
the regulations late.
29 The act calls for the regulations to be published by November 3, 1977,
giving the industry 90 days to meet the February 3, 1978, deadline. Because the
publication was 40 days, it cut the industry's time by nearly one-half.
30 However, it was an impossible task which was made even more difficult
when Congress failed to approve the supplemental appropriations which would have
given the Office of Surface Mining a budget, a staff, and office space which it
still does not have.
30 Compound all this with two unfortunate situations which no one has
control over. The UMW strike which was a week old when the regulations were
published on December 13 is in its second month and no end is yet in sight.
This prevents the operator from even trying to upgrade his structures to met the
May 3 deadline. However, even if the mines could work, the bad weather we have
been experiencing would prohibit any major activity.
30 Environmentally, for example, it would be a massacre to force the
operators to rush in and upgrade siltation control structure during this wet
period in the East. The earthmoving activity required would cause more
siltation than the structure is planned to prevent.
30 Also, the regulations require small operators desiring an exemption to
the environmental standards to file a request with the Office of Surface Mining
by February 3. Before he can do that, he must advertise for 2 weeks prior,
which means tomorrow. With the regulations published in mid-December, a small
operator had less than 1 month during a strike, bad weather, Christmas and New
Year's to obtain a copy of the regulations, decipher what he has to do, and
advertise what he is planning to do, by tomorrow to be in compliance with the
law.
30 The chairman of this committee has stated many times during the 7 years
of debate on the Hill that the small businessman should be protected. It is our
opinion that not only is the small operator not getting a fair opportunity to
stay in business, but that he will be phased out of business without the special
consideration that Congress agreed to and provided for in the act.
30 If it is possible to compare this act with the 1969 Federal Coal Mine
Health and Safety Act, it is our opinion that of the 2,700 small coal companies
mining under 100,000 tons annually, over 1,000 will be out of business in less
than 5 vears.
30 In conclusion, the Mining and Reclamation Council is requesting that
this committee recommend to Congress that a 6-month delay in the
implementation of the rules and regulations be granted. We feel strongly that
it is necessary in order to: One, prevent further disruption of the Nation's
coal production, which will surely cause severe energy shortages; two, to
prevent unwarranted abuse of the environment through attempts by the industry to
rapidly come into compliance; three, to help bring about an orderly compliance
schedule which the industry and State governments can successfully live under;
four, to give the Office of Surface Mining the opportunity to get a proper
budget, trained staff, and offices in order to properly enforce the act; and
five, give the Surface Mining Control and Reclamation Act of 1977 the proper
opportunity to successfully provide for continued coal production while at the
same time protect the environment.
30 It took 7 years to pass this legislation, and we feel that if it takes
6 extra months to make it work effectively and efficiently and if a 6-month
delay will avoid public criticism because the bill is not being properly
enforced, then we feel Congress should at least give this short delay careful
consideration.
31 Thank you.
31 Mr. Chairman, one final remark as to how we can achieve this, other
than just overlooking it. I think if this committee were to support a delay
through legislation, of course, with your support, I think the Congress would go
along with it. I think it could pass immediately if you act as quickly as
possible to get it done. I think also if the companies were to look at it
strongly they would agree. Thank you so much.
31 The CHAIRMAN. I am doubly glad that we have had these hearings for all
of us to focus on these problems.
31 I think the point has been made that the law ought to reflect
commonsense and fairness in judgment. If it says we have to do something stupid
or impossible, you can only breed contempt for the law. What Mr. Schwab said
earlier about our having to find some way, formal or informal, to get out of
this dilemma is important, because I do not think we have to do what the law
says we have to do.
31 I appreciate your suggestions and I will be talking to different people
on the ways out of this.
31 Mr. RAHALL. Mr. Lusk, I appreciate your testimony here today. I know
how helpful you have been to this committee throughout our entire deliberations,
and your input has been an asset.
31 I have one brief question. If the proposed extension of implementation
dates that you are recommending is indeed granted, do you think there would be a
result that would allow a lot of complexity and uncertainty? Do you think that
this extension would give us ample time to resolve existing uncertainties and
answer a lot of the questions?
31 Mr. LUSK. We heard from the National Governors' Conference that they
would like to have 4 months, and the NICO wanted a 9-month delay, and we have
asked for a 6-month delay. I do not think anybody knows how much time we need.
I think Congress intended the Office of Surface Mining to give the industry 6
months after enactment of the bill to get into compliance.
31 Since the Office has not had sufficient appropriations, I would think
possibly that one thing this committee might consider is waiting until after the
Office has a budget and staff and offices and after they have received
appropriations before this law becomes enacted or before the initial regulations
are promulgated.
31 Mr. RAHALL. Thank you.
31 The CHAIRMAN. Thank you.
31 Next we have the Ohio Mining and Reclamation Association.
31 [Prepared statement of Neal S. Tostenson may be found in the appendix.]
STATEMENT OF NEAL S. TOSTENSON, EXECUTIVE VICE PRESIDENT, OHIO MINING
AND RECLAMATION ASSOCIATION
31 Mr. TOSTENSON. I will deviate from my prepared testimony and try to
summarize quickly some of my concerns. I think in preparing my testimony and
looking at this, I looked at the purposes in the act. There is a strong need
for protection of the environment. But likewise, inone or two sections the act
talks about the national coal supply, its economic and social well-being.
32 So I think Congress had an intent to have a little bit of balance
throughout this thing. I do not come here to praise the task force.I think the
task force had some deficiencies. It was not given all the thought in the world
in the composition of its members.
32 Ohio has probably one of the finest reclamation acts in the country.
It is working well. The administrator who enacted and implemented our State law
is a Bureau of Mines employee and the Bureau of Mines has him out in the West.
He was not even involved in this complex proposal.
32 I think possibly that he had a little different makeup than the others,
and they have been more reasonable in the rulings. Every time you pass a rule,
there is a cost factor. I think we have to look at the cost factor for the
benefits that come out. I brought with me today - there has also been talk
about certain changes in these regulations.
32 In reviewing them with the operators who have to do the operating in
the field, it was the coal man that was hanged. All they did was shorten the
rope.
32 Going further, one of the regulations states that we must have a sign.
I brought this to have a little bit of an example about when you start with
these things. When you store the topsoil you have to have a sign that says
topsoil storage. I question the efficacy of this. Is this to direct the
inspector? If the inspector cannot tell it is topsoil, I do not think he should
be hired in the first place.
32 This is a minor thing, but when you take the full volume of regulations
and the enormity of all their complexity, and the ones we still have coming down
the road, we have to think of the consumer. I think we ought to go throught
these regulations and pull out things such as this that are way out of line and
are a waste of time and money and concentrate on the end product, which is
restoration of the land, which is what we have back in Ohio.
32 One of the hardest problems we have to face is the consumer having to
fight electricity. In Ohio, 98 percent of the electricity is generated from
coal.
32 Another example, and these are small - I only use them as
illustrations. One is that you have to have blasting notices. It says that you
should publish them in the newspaper. Pretty soon there is going to be a
newspaper page full of blasting notices. No one will read them.
32 Another one is send it to the public utilities. I do not know what
Ohio Bell needs to know when we are going to blast in southeastern Ohio. That
is part of the cost factor.
32 I think that is the most important thing that I can leave with this
committee. We have to go back through the rules and regulations, make a
cost-benefit factor for their implementation and pull out the ones that are not
needed and stick with the goals that we wanted to end up with. I do not think
anyone can quarrel with the goals. It is all the details that they are trying
to lead us down, which people have testified to today, which are impractical.
32 West Virginia has developed a lot of good ideas in their State. We
have done the same thing. I think they ought to leave the implementation of
these goals to the States who know the individual problems.
33 I appreciate the time.
33 The CHAIRMAN. You make a very effective spokesman. We will look at
these questions that you raised. You remind me of the story about the old
farmer who had a problem with drunkards coming through his fields and shooting
his cows. He painted on the side of the cows, c-o-w.
33 [Laughter.]
33 The CHAIRMAN. Our last witness is Mr. Donald Donell of Starvaggi
Industries.
33 [Prepared statement of Donald R. Donell may be found in the appendix.]
STATEMENT OF DONALD R. DONELL, PRESIDENT, STARVAGGI INDUSTRIES, WEIRTON,
W.VA.
33 Mr. DONELL. Mr. Chairman, I appreciate the opportunity to appear
here. I have a prepared text. However, as my predecessor, I think I will
deviate from it and kind of share some thoughts that occurred to me during the
testimony of the other persons here this morning.
33 The CHAIRMAN. Sometimes that is the most effective way to use the
time.
33 Mr. DONELL. Thank you. If I had my way, of course, as far as the
implementation was concerned, I would probably want to quote one of your
predecessors and say that the government that governs the least governs best,
and ask that a moratorium of 5 years be declared.
33 But I think we can accomplish what was intended by the Congress and
what OSM wants to accomplish, what the industry wants to accomplish and what the
operators want. We are talking immediately at the present time about the
interim regulations which should reflect the congressional intent. I think we
have gotten enmeshed in what we think might end up being the final regulations
and I certainly do not think that was intended.
33 Also, I think if the OSM, who genuinely attempted to reflect in their
rules and regulations what they believe is the true spirit and intent of the
law, I would say, if they would take in this interim period and go to the
States, since the committee report and the law per se says that each State
varies, there are divergent situations which exist in Pennslyvania which do not
occur in Kentucky or out in Wyoming, and take this interim period within which
to work with the States to make sure that the basic guarantees which you have
built into the law are being enforced.
33 So it is not a delay in implementation but rather the interim rules,
which in the long run may be distorted. So this would enable Walter and Cloyd
and everyone else to talk to Pete down in West Virginia and say, let us really
take a look at this, talk to the gentleman from Wyoming, from Montana, from
Missouri, who has said, we have - we believe we can comply. They would be
complying with the spirit and intent. They would not per se be delaying any
implementation if there in fact was an imminent danger or hazardous condition
that was existing.
33 I would concur with the directors of Maryland, Ohio, or wherever it
would happen to be, and say gentlemen, we have something here and we have to
act. So they can utilize the forces of the State, and at the same time not have
to expend money they do not have. I hope that approach would in some way
alleviate the fears.
34 I was delighted to hear your comments and the gentleman from Ohio
when they praised Mr. Heine. We are a medium-sized operation, small to medium.
We operate in the States of Pennsylvania, Ohio, and West Virginia. We are in
the northern panhandle. So of necessity, when we move about, we are in the
middle, so we come under three sets of rules and regulations. We are quite
impressed, No. 1, with the long history of Pennsylvania and with the praise
justifiably that was given to Mr. Heine. I would think in addition he should be
told now, Walter, if you can make this act work the way it did in Pennsylvania,
this is what we want. We want the commonsense approach.
34 I think that he should be told, if you can go down there to West
Virginia, and they can prove to you that the manner in which they have done this
with the valley fields and the matter of sedimentation control comply with the
law, the mere fact that the Washington job has a life expectancy of 35 years -
that is referred to in the committee report, is of the opinion that the
sedimentation design and control they have is working and working without any
reservations.
34 That should not be set up as the only method in which sedimentation
control should be implemented.
34 Mr. Heine, in response to a question, was asked if there was any
objection or hostility on the part of operators. I believe his response to the
Honorable Congressman Seiberling was, no, he did not know of any.Let me assure
you that our concern is a genuine concern and that we do not know exactly what
we have to do. It is not one of hostility, it is one of frustration.
34 I have brought pictures with me which I would like to submit. I have
met time and time again and they were very gracious.The question is, what is
mountaintop removal? The manner in which we were operating, did it constitute
mountaintop removal, or whether or not it was returned to the approximate
original contour. I found some very serious deficiencies in the dialog going
back and forth. We are of the opinion there is a general area of mining in our
area. The mere fact that we go through a hill, however, now raises a question
as to whether it is or is not mountaintop.
34 The next question that comes up is, once we have gone through it - it
does blend. It in fact complements the area. I will submit this graph. Since
it does blend with it, does that now go with the spirit and intent and so on of
the rules and regulations and therefore, while it may be technically
mountaintop, is it in fact a return to approximate original contour?I do not
know.
34 When I say I do not know, we are confused, and this is what we would
like to have. We did some hurried calculations on these particular areas. Let
me give you an example. In the State of Ohio, they have a land reborn program
where the operator is induced into going in and reaffecting the areas that have
previously been mined, 20, 25, and 30 years ago, and we are given credits in the
form of bond waivings, possibly on particular areas which are an inducement
for us to go in and reaffect and at the same time it accomplishes the fact that
the Government does not have to spend money from its abandoned reclamation fund.
35 Here we are doing two things. But we have a situation there where
there is some mining during World War II. We went in and we reaffected and in
getting our permit it was determined through some dialog that the water should
go in our sediment control pond. We took dialog that the water should go in our
sediment control pond. We took some calculations, which I will be happy to
submit, because we have now diverted that water into it, and because the State
said, can you do this, because you will reduce the suspended solids. We agreed
it would have to be 4 1/2 times its size. We just cannot do it.
35 The unfortunate thing about it is the manner in which the haul roads,
which have the topographical conditions we have, we cannot say, we will now
divert this around. We put topsoil in certain areas, subsoil in other areas.
So it is a physical impossibility.
35 But again, I do not think our inability to do this would in any way
thwart the intent of the implementation as long as they use a commonsense
approach to it and take the rules and the committee report as you have given it.
35 Let me give you another illustration. I have been intimately involved
in this process since it started. In fact, I guess it has been a year now.
There was public comment on siltation. Then all of the studies on the proposed
regulations. They came up with a formula, and we never had an opportunity to
comment. I think that is wrong.
35 Nowhere, at least to my recollections, would the formula that they used
in any way be compensated by the committee that worked with the staff - the
staff members that worked with your committee in the inception and promulgation
of the law that we now have. So I think this committee should be told, no, we
have an interim period and a final period. I think what OSM really needs,
Congressmen, is direction. With that direction I think that a lot of our
problems are going to be solved.
35 I do not think that the OSM wants to get down and tell Tom Jones, you
have to quit your operation because you have not done it right or because you
have not submitted your program if in fact there is not a dangerous problem.
They can do it by talking to the appropriate State agency that has the
expertise, has the knowledge. I am certain Walter Heine knows these people. He
has worked with them from the start, from the State of Pennsylvania.
35 I would submit it is not a matter of wait-and-see attitude, as
Secretary Andrus said. It may be an attitude of wait and see simply because we
do not know. There are many questions which we have proposed to members of the
task force that they honestly could not come out and give us a concrete answer
on and so, we will give you an answer at the end of January, is what they say.
We will be able to meet with you on February 8.
35 I do not mean that critically. It is humanly impossible for them to
visit every State, talk to all the associations, talk to all the operators on a
case-by-case basis. So any reluctance is a reluctance simply because of
frustration and not knowing, not one of hostility. I would venture to say that
those with an attitude of hostility, they long since have been out of the
surface mining business because the State has seen to it that if they are not
doing the job right they are out.
35 I would respectfully request an opportunity, and when I say you will
use commonsense - I would be happy to confer tomorrow afternoon with the staff
to help with any questions.
36 The CHAIRMAN. That was a very effective presentation, and you display
a lot of commonsense and judgment. I have asked Mr. Heine and Secretary Andrus
both to look at the sedimentation thing and maybe out of these hearings we can
at least see if there cannot be some commonsense modification of that.
36 The other point that you make is very good. We appreciate your
presence here today. I think it has been a very good morning.
36 We will continue tomorrow to hear other people. We will be in recess
until 9:45.
36 [Whereupon, at 12:45 p.m. the subcommittee recessed, to reconvene at
9:45 a.m., Friday, January 20, 1978.]
FRIDAY, JANUARY 20, 1978
37 The subcommittee met at 9:45 a.m., pursuant to notice, in room 1324,
Longworth House Office Building, Hon. Morris K. Udall (chairman of the
subcommittee) presiding.
37 The CHAIRMAN. The committee will be in session.
37 We are continuing our hearings this morning on the oversight of the
implementation of the Surface Mining Control and Reclamation Act of 1977.
Yesterday we heard from a variety of interested witnesses; a number of
suggestions, complaints, and comments were made.
37 Today we hope to continue to get some further input from the public on
different aspects of it.
37 Our initial witness is Congressman Santini, who is probably having some
trouble getting here. We will reach him as soon as he arrives.
37 In the meantime, we will go on down the witness list. We have a panel
from the American Mining Congress and the National Coal Association, Mr. Turner,
Mr. Beach, and Mr. Paul.
37 Let me urge everyone, as I did yesterday, we have 2 hours, 2 1/2 hours
at the most for a long list. We want to get to the guts and the heart of your
complaints and suggestions, and so I urge the members to summarize their
statements and to be as brief as possible.
37 [Prepared statements of Robin Turner, Buddy A. Beach, and John Paul may
be found in the appendix.]
PANEL CONSISTING OF:
ROBIN TURNER, VICE PRESIDENT, ADMINISTRATION, NORTH AMERICAN COAL CORP.
BUDDY A. BEACH, MANAGER, ENVIRONMENTAL IMPACT REPORTS, CONSOLIDATION COAL CO.
JOHN PAUL, VICE PRESIDENT, AMAX COAL CO.
37 Mr. TURNER. We have the three of us and we each have about a
5-minute statement that we will go through as rapidly as we can. We are
submitting written copies.
38 I am Robin Turner, vice president, administration, for the North
American Coal Corp. With me today are Buddy Beach, manager, environmental
impact reports for Consolidation Coal Co., and John Paul, vice president of
public affairs for AMAX Coal Co.
38 This panel is appearing on behalf of the National Coal Association and
American Mining Congress Joint Committee on Surface Mining Regulations. The
joint committee is comprised of the coal company members of both of these
national organizations as well as of representatives from the State coal
association and other coal companies. Thus, the joint committee membership
represents every type of coal mining operation as well as every mining region in
the country.
38 Since last July over 170 members of our committee have analyzed and
proposed revisions for hundreds of regulations released to us by the Office of
Surface Mining. Our formal written comments which were filed on October 7
consisted of over 400 pages of text addressing nearly 150 different proposed
regulations. We therefore feel that the joint committee is uniquely qualified
to comment on the interim regulatory program established by OSM.
38 Today I will offer a few broad comments on the interim regulatory
program and conclude by addressing a few specific areas of concern. The other
panel members will also provide additional comments on specific regulations of
concern to industry.
38 In no way are we attempting to offer a complete and detailed analysis
of all of these regulations - at this very time the technical people in our
companies are still trying to accomplish this. Our comments must, of necessity,
be somewhat general; but please know that the joint committee will be pleased to
provide technical and analytical assistance to this committee as it continues
its oversight responsibilities under the Surface Mining Act.
38 At the outset we would like to state for the record our appreciation
for the treatment accorded the joint committee by the OSM task force which put
these regulations together.This group has been courteous and cooperative and
appears to have given close consideration to the comments and proposals of the
joint committee during informal conferences as well as in the formal public
comment proceedings.
38 In view of the extremely tight time constraints imposed upon them by
the act and their limited staff and financial resources, their efforts have been
commendable.
38 Let me pause to make certain that the record is quite clear on one
important issue - the coal industry is making every effort to bring surface
mining operations into compliance with the goals and standards established by
the Surface Mining Act of 1977. However, we believe that the arduous working
conditions facing the OSM task force identify in the final regulations.
38 I would also observe that these regulations are so voluminous and
complex that even the industry experts are not certain of the full operational
impacts of these new rules.
38 There is one thing that is apparent from our initial analysis and that
is that in many significant areas the interim regulations impose requirements
far in excess of those required by the act. Furthermore, they impose extemely
unrealistic performance standards to be imposed on a nationwide basis - without
regard to regional variations and site specific needs - and without adequate
technological or other justification for these inflexible requirements.In
several cases the final regulations published on December 13 introduced entirely
new conceptual approaches which were never subjected to public comment.
39 Finally, even in those areas in which the regulations appear to
accurately track the intent of the Congress, we believe that critical
congressional oversight responsibility is to assure that implementation of the
regulations is not done in a manner that frustrates that intent. For example,
many of our proposed language changes with regard to regs pertaining to alluvial
valley floors were accepted, and as a result, these regs now closely track the
act's language.
39 As we all know, the congressional treatment of this issue was the
product of much debate and many compromises. The final version allowed mining
in alluvial valleys on undeveloped rangelands that were not significant to
farming. It also provided that mining could occur on farmlands when it is
determined that any interruption of that agrarian activity would have negligible
impact on the farm's production. Clearly, such a determination vests
considerable discretion in the regulatory authority.
39 We would urge that this committee remain attentive to these
discretionary actions to make certain that the goals and purposes of the Surface
Mining Act are pursued.
39 With this general introduction, I would now like to address in somewhat
greater detail a few examples of these deficiencies.
39 Manganese monitoring. Unlike EPA regulation, section 715.17(b)
requires operators to monitor water for the presence of manganese even in
alkaline discharges. This approach fails to recognize that alkaline discharges
do not contain sufficient concentration of manganese to warrant separate
monitoring.
39 In spite of our unrebutted comments on this issue when the regulations
were initially proposed, the final rule remained unchanged except to allow
operators to increase pH levels in the tested waters to facilitate meeting the
manganese standards. We continue to perceive no stated basis for this departure
from existing EPA monitoring requirements.
39 Buffer zones near streams. Section 715.17(d)(3) of the regulations
imposes a ban on mining within 100 feet of perennial or intermittent streams.
This protected buffer zone has no justification either by the statute or on any
scientific or technical basis. The act requires operators to minimize the
disturbances to the prevailing hydrologic balance at the minesite and in
associated offsite areas.
39 However, the approach taken by OSM implies that the only way to
minimize disturbances is to require operators to stay 100 feet away from all
intermittent and perennial streams. Under this rule the existence of an
intermittent stream - which is defined by the regs as one which flows for at
least 1 month of the calendar year - would require a 200-foot nonmining buffer
zone regardless of the stream's size or its hydrological significance. The
regulatory requirement thus seriously overreaches the scope of the act's intent.
39 Although we recognize that the regulation provides for a variance to
mine nearer than 100 feet, this provision leaves unaddressed the basic issue we
raise. There is no justification for the buffer zone approach. When the
extensive hydrological protections imposed elsewhere in the act and regs are
considered, this ban amounts to regulatory overkill.
40 Mr. Chairman, you have heard comments about small operators. As we,
as larger corporations, look at the technical problems, we have hundreds of
people working on these regs, and to envision a smaller operator having an
opportunity to survive in this atmosphere is overwhelming.
40 My last comments will refer to underground mines, and then I will defer
to Mr. Beach and Mr. Paul.
40 Underground mines. Of the 6,200 coal mines in the country, 2,300 are
underground mines, and they will soon be confronted with the requirements
imposed by part 717 of the interim regulations to obtain surface mining permits.
For the overwhelming majority of these 2,300 mines, for the State agencies, and
for the Interior Department, this is going to be a totally new experience.
40 We submit that the act does not provide that underground coal mining be
covered by the initial regulatory procedure. The industry recognizes its
responsibility to the Nation for minimizing environmental damages that might be
caused by underground coal mining.
40 We fully realize that section 516 of the act authorizes the Department
to promulgate regulations to achieve this result. However, while there does
exist a vast amount of knowledge on surface mine reclamation, in proposing
environmental standards for underground mines we believe that the Department has
failed to recognize the fact that there does not exist this same organized
knowledge on the installation, operation, and ultimate reclamation of
underground mines. This problem was specifically recognized by the Congress and
was addressed by requiring the Secretary in adopting rules and regulations
directed toward the surface effects of underground coal mining operations