February 7, 1977 and March 1, 2, and 3, 1977 Hearing
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Legislative History February 7, 1977 and March 1, 2, and 3, 1977 Hearing |
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MONDAY, FEBRUARY 7, 1977
1 U.S. SENATE, SUBCOMMITTEE ON PUBLIC LANDS AND RESOURCES, OF THE
COMMITTEE ON ENERGY AND NATURAL RESOURCES, Washington, D.C.
1 The subcommittee met, pursuant to notice at 11:30 a.m., in room 1202, Dirksen Office
Building, Hon. Lee Metcalf presiding.
1 Present: Senators Metcalf, Jackson, Church, Johnston, Bumpers, Hansen, Melcher, and
Hatch.
1 Also present: D. Michael Harvey, special counsel; Norman Williams, professional staff
member; and Ted Orf, deputy minority counsel.
OPENING STATEMENT OF HON. LEE METCALF, A U.S. SENATOR FROM
THE STATE OF MONTANA
1 Senator METCALF. The subcommittee will be in order. This is a hearing of the
Subcommittee on Public Lands and Resources to get the views of the Carter administration on S.
7, the Federal Surface Mining Control and Reclamation Act of 1977. S. 7 is a modified version
of H.R. 25, 94th Congress, the bill which President Ford vetoed in May 1975.
1 President Carter has consistently voiced support for a strong Federal strip mine bill. He
repeated this pledge most recently during his nationwide fireside talk last Wednesday evening.
1 For those of us who have been struggling over the years - for over 6 years - to enact
legislation which will meet the need for preserving our land and water resources, for stabilizing
our coal industry, and for taking the first step toward a rational energy policy for this Nation, the
President's words of encouragement have come like proverbial music to the ears.
1 I have a telegram from the West Virginia Surface Mining and Reclamation Association,
reminding me this is the sixth straight year Congress has attempted to pass a bill to regulate
surface mining for coal in the United States.
1 Secretary of the Interior Andrus made some general observations on surface mining at his
confirmation hearings. I must sav we were agreeably impressed by his comments at that time,
particularly with reference to protection of agricultural lands from the ravages of strip mining.
2 In view of the urgent need to move S. 7 to the White House as soon as possible and in a
form which is acceptable to the President, we have asked Secretary Andrus and FEA
Administrator O'Leary to give us detailed assessments of the legislation today. We have also
invited statements for the record from the Environmental Protection Agency and the President's
Council on Environmental Quality.
2 Before I will call on you, Mr. Secretary, and you, Mr. Administrator, I will ask the
chairman of the full committee, the distinguished Senator Jackson, for his statement, and I will
insert the departmental report in the record at this time.
2 [The report referred to appears on the following page.]
3
United states Department of the Interior
OFFICE OF THE SECRETARY
WASHINGTON, D.C. 20240
FEB. 4, 1977
Dear Mr. Chairman:
3 This responds to your request for the views of this Department concerning S. 7, the
"Surface Mining Control and Reclamation Act of 1977."
3 We strongly support enactment of such legislation. A new law to control surface mining of
coal and provide for reclamation of mined lands is badly needed and the legislation your
Committee has before it is well conceived to meet that need. Its expeditious passage is a high
priority of President Carter.
3 S. 7 would provide for a cooperative surface coal mining regulatory program with
responsibility for implementation being shared between the States and the Secretary of the
Interior. Strong reclamation performance standards and permit requirements would assure that
both State and Federal mined land would be fully reclaimed and that the environment would be
protected. On the other hand, under mechanisms provided by the bill, the production of needed
coal could continue under national standards in a reasonable manner. Public participation in
decisions about surface coal mining would be provided for. Full development of needed
information would be required or encouraged to serve as a basis for effective and reasonable
regulation of surface mining operations. Through S. 7's bonding and enforcement provisions,
actual compliance with the standards and requirements would be assured.
3 In addition to the reclamation regulatory program, the bill provides for reclamation of lands
already damaged by past mining. Financed in S. 7 through a fee levied against Federal coal, the
bill provides both for reclamation of rural lands through the Department of Agriculture and for
acquisition and reclamation of abandoned and unreclaimed mined lands and for alleviation of
problems related to mining.
3 The effects of inadequately controlled surface coal mining are well known. Among them
are destruction or diminution of the utility of land, erosion and land slide, flooding, water
pollution, destruction of fish and wildlife habitat, loss of natural beauty, property damage, health
and safety hazards, and adverse social impacts.
4 Increasingly in the future, the Nation's energy needs will depend on coal mining. Current
trends indicate that more and more of this mining will be by surface methods. Federal and other
western lands will be called on to supply surface-mined coal, in many instances for the first time.
Against this background, the need for legislation such as S. 7 is urgent.
4 In developing and carrying out an effective and efficient surface coal mining control and
reclamation law, the Department will work closely with the Congress. President Carter has
indicated that he would have signed the surface mining legislation passed by the last Congress,
but vetoed. The President is prepared to approve similar legislation and has directed us to work
with Congress in resolving remaining major issues and developing whatever changes in
introduced bills may appear advisable to improve them.
4 Protection of surface owners of land where the Federal Government owns and proposes to
rease coal was a particularly difficult issue for the last Congress. Section 423(e) of S. 7 changes
the surface owner consent provision finally developed and included in the vetoed bill. That
provision afforded a right to consent to specified individuals and limited the amount that could
be obtained by such an individual if he does consent. The amount specified had three
components to be determined by appointed appraisers: (1) the fair market value of "the surface
estate," (2) certain specified losses and damages, and (3) an additional reasonable amount limited
to the lesser of the item (2) losses or $1 00 per acre. If this provision were adopted, the language
of item (1) should be clarified so that it would apply to the fair market value of the "surface estate
based on its use for agricultural purposes and exclusive of the value of minerals or the right to
consent under this section." Clarified in this way, that type of provision is preferable to Section
423(e) of S. 7 which prohibits surface mining of Federal coal where the surface is owned by a
non-Federal party.
4 The bill will place on small mine operators a heavy administrative and operating burden.
Several changes may be desirable to limit this burden, including:
4 - directing the regulatory authority to undertake the development of some of the
information required to obtain a mining permit
4 - financing this work in part from the reclamation fee collected pursuant to section
301(b)(3)
4 - permitting reduced application fees
4 - omission of certain permit application date as determined by the regulatory authority and
in some instances requiring less data - modifying the bond release administrative provisions by
limiting the scope of the notice to be given and providing an informal procedure for release
5 Departmental staff can work with your Committee in providing specific amendments to
accomplish these changes.
5 A related matter concerns the schedule provided by the bill for implementation of the
program. We recommend application of performance standards to new mines beginning six
months after enactment and to existing mines beginning after one year. In addition, it appears
desirable to have applications for permanent permits made only after a State or Federal program
is approved. The regulatory authority's determination whether to issue a permit could not be
delayed longer than six months after application is made (or a specified time after enactment of
the bill). Tying the permanent permit application procedure to approval of a State or Federal
program in this fashion is administratively preferable to provisions of S. 7 which require permit
applications twenty months after enactment, whether or not a program has been approved.
5 A related matter concerns the requirement of Federal inspections of non-Federal mines
beginning 135 days after enactment. While we recognize the desirability of Federal "back-up"
enforcement of reclamation requirements principally intended to be a State responsibility, we are
concerned that State incentives to carry out that responsibility not be weakened. A full program
of regular Federal inspections might weaken those incentives and encourage States to withdraw
from the regulatory program. To reduce this possibility, we suggest that Federal "back-up"
inspections be provided only where there is an indication of specific need - that is, when the
Secretary receives information giving reason to believe that there are violations of the Act's
requirements.
5 With respect to the abandoned land reclamation program set forth in Title III, we
recommend that the fees assessed against currently mined coal be made applicable to all coal -
not merely coal derived from Federal land and should be in addition to royalties now received
from Federal land.In addition, the Administration would like to work further with the Congress
to determine whether the provisions of section 305 relating to secondary impacts of mining are
best suited to meeting problems posed by abandoned mine lands. It is important that resources of
the abandoned land reclamation program be directed to matters of highest priority and that past
environmental damage be remedied effectively and expeditiously. To this end, consideration of
the requirement that fifty percent of the fees collected for the fund be initially allocated to the
State from which they are derived may warrant modification to allow more flexibility in directing
resources to areas of greatest need.
5 An important purpose of this legislation is to protect fish, wildlife and other ecological
values. In developing and implementing this program we intend to assure that these values are
appropriately recognized.
6 Section 410(b)(5) recognizes the need for special protection of alluvial valley floors.These
areas are essential to the agricultural base of the Nation and the economic life of many parts of
the West. We support this protection. Some modification appears desirable, however, to clarify
the provision and to provide for the continued operation of mines currently producing coal. To
accomplish this we recommend amending section 410(b)(5) to read:
6 (5) the proposed surface coal mining operations, if located west of the one hundredth
meridian west longitude would -
6 (A) not interrupt, discontinue, or prevent farming on alluvial valley floors that are irrigated
or naturally subirrigated but, excluding undeveloped rangelands which are not significant to
farming on said alluvial valley floors and those lands that the regulatory authority finds that if the
farming that will be interrupted, discontinued, or prevented is of such small acreage as to be of
negligible impact on the farm's agricultural production, or,
6 (B) not adversely affect the quantity or quality of water in surface or underground water
systems that supply these valley floors in (A) of subsection (b)(5):
6 Provided, this paragraph (5) shall not affect those surface coal mining operations which in
the year preceeding the enactment of this Act (1) produced coal in commercial quantities, and (2)
were located within or adjacent to alluvial valley floors or had obtained specific permit approval
by the State regulatory authority to conduct surface coal mining operations within said alluvial
valley floors.
6 We believe that administration of provisions of S. 7 relating to judicial matters may also be
improved. With respect to citizen suits seeking to compel the Secretary or a regulatory authority
to perform any act or duty under the Act which is not discretionary, it may be appropriate to
specify that the citizen suit provision shall constitute the exclusive remedy to assure that the
Secretary or regulatory authority will receive sixty days notice except for situations involving an
imminent threat to the health or safety of the plaintiff or would immediately affect a legal interest
of the plaintiff.This will allow the Secretary opportunity to remedy any failure that may in fact
exist without the necessity for suit.In addition, a provision of the Clean Air Act similar to section
426(a)(1) of S. 7 has been the subject of much needless litigation concerning the specification of
"the appropriate" United States Court of Appeals. We recommend that this be clarified by
providing that review of actions relating to State programs for a State shall be by the Court of
Appeals for the Circuit in which the State is located. Review of orders or decisions of national
scope under section 426(a)(2) should be in the U.S. Court of Appeals for the District of
Columbia.
7 Finally, we endorse the provision of section 423(d) which contemplates the application of
State programs to Federal lands. This should, however, be carried out by agreement between the
States and the Secretary of the Interior rather than at the sole election of a state. To this end,
several changes appear desirable. It should be clarified that States with cooperative agreements
will be permitted to retain their regulatory function, with appropriate modification, prior to the
approval of a State program, that the Department retain its statutory duty to receive and approve
mining plans, and that the designation of lands unsuitable for mining will continue to be an
Interior responsibility. It should also be specified that the election of the State will be subject to
the Department's review and approval as are other aspects of the State program.
7 This Administration is firmly committed to the prompt enactment of good surface mining
control and reclamation legislation. To accomplish this we are prepared to work closely with the
Congress, both with respect to the modifications outlined above and to other improvements that
may appear advisable as the Congress acts on the measure. More importantly we will continue
that close relationship in implementing an effective program. The harm left in the wake of past
surface mining must be ended promptly. Enactment of legislation such as S. 7 in the near future
is a high priority both of President Carter's energy policy and his environmental policy.
7 The Office of Management and Budget has advised that enactment of legislation
conforming to the views set forth above would be in accord with the program of the President
and it has no objection to the presentation of this report.
7 Sincerely,
7 CECIL D. ANDRUS
7 SECRETARY
7 Honorable Henry M. Jackson
7 Chairman, Committee on Interior and Insular Affairs
7 United States Senate
7 Washington, D.C. 20510
STATEMENT OF HON. HENRY M. JACKSON, A U.S. SENATOR FROM THE
STATE OF WASHINGTON
8 The CHAIRMAN. Today we begin what will hopefully be the last chapter in the long
effort by the Congress to develop Federal legislation governing the surface mining of coal in our
country. I will not recite the long history of hearings, committee markups, floor debate, and
Senate-House conference committee meetings which have gone into this legislation. Suffice it to
say that both the 93d and 94th Congresses passed surface mining bills by overwhelming margins.
Unfortunately, President Ford saw fit to veto both bills and in 1975 the House of Representatives
failed by a mere three votes in its attempt to override the veto.
8 I firmly believe that this legislation will be enacted this year. We have a President who has
repeatedly stated his support for it. Responsible representatives of the coal industry have
indicated that they can live with it. Recent studies by outside experts have demonstrated that the
exaggerated claims of adverse impacts made by the Ford administration and some industry
representatives are nonsense.
8 The United States is truly the Saudi Arabia of coal. Development of coal is the key to
meeting our energy needs for the rest of this century.
8 One of the major inhibiting factors to coal development in all of the coal regions of the
country - East and West - is the failure to establish Federal surface mining standards. Our coal
industry must know what the guidelines are in order to be able to plan their investments and
proceed with mining.
8 I think it is important to keep in mind that our domestic reserves of coal are so large that we
can afford to establish standards which provide protection for water quality, prime agricultural
lands, and esthetic values even if in some instances this means that certain coal deposits will not
be mined.
8 Once we have established the rules for digging the coal, then we must insure that we can
burn it without impairing the quality of our air. While the question of air quality standards will
be considered by another committee of the Senate, our committee will be encouraging the
necessary research and development to find ways of solving the air quality problem. For
example, better methods of removing the sulfur from the coal before burning should be given a
high priority on our R. & D. agenda.
8 In closing, I want to pay tribute to Senator Lee Metcalf who has led the fight for Federal
surface mining legislation for the last 4 years. He has done the work of chairing hearings,
leading the committee markups, and managing the legislation on the floor. The Senate has
repeatedly endorsed his efforts by overwhelming votes. Indeed, the last Senate rollcall on surface
mining was 84 to 13. That kind of vote reflected the convictions of Senators from all parts of the
country that Senator Metcalf had brought before them legislation which struck an appropriate
balance between the need to develop our coal reserves and to protect our lands and waters. It
further reflected their feeling that the legislation was flexible enough to be applicable to the
mountainsides of Appalachia, the fertile agricultural areas of the Midwest and the arid, fragile
lands of the West, and that it recognized the interest of the individual States by giving them the
principal responsibility for regulation of mining within their borders.
9 I am sure that Senator Metcalf has been even more frustrated than I over the failure to enact
a Federal law. I am equally sure that such a law will be enacted within the next few months.
When it is, Senator Metcalf will have the satisfaction of knowing that his efforts have, at long
last, borne fruit.
9 Finally, Mr. Chairman, I think the spirit and the attitude on the part of the administration
here to really do something about it is exemplified by the presence of our new Secretary, Mr.
Andrus, and the new head of the Federal Energy Administration, Mr. O'Leary. Here we have the
two keys to the problem we face. I am delighted both of them are present here this morning to
participate in these hearings.
9 Senator METCALF. Mr. Chairman - and I say Mr. Chairman because you are chairman of
our full committee - it has been your cooperation and participation that has permitted us to get
this bill this far along. I appreciate your kind words and your cooperation which has always been
exemplary. I share your optimism: We are going to pass some legislation in this session.
9 The leading minority member has also been very cooperative in participation in the
discussions - I am not going to endorse everything the distinguished Senator from Wyoming has
made.
STATEMENT OF HON. CLIFFORD P. HANSEN, A U.S. SENATOR FROM THE
STATE OF WYOMING
9 Senator HANSEN. I appreciate these richly deserved accolades, both from you, Mr.
Chairman, and the chairman of our subcommittee. I have never been more persuasive among my
Republican colleagues than when I teamed up with you, the chairman of this subcommittee.
9 As you know, I have supported surface mine legislation as it has come down through the
legislative process in times past. It is my intention to support it again, if the final version
adequately protects the rights of States, landowners, and the public in general. The protection of
our environment, our land resources, and agricultural way of life, and our water, is of the highest
importance.
9 I certainly want to do everything I can to see whatever is passed here takes full recognition
of these values.
9 I am also concerned because my State of Wyoming has taken a very active role in passing
laws that address the problems that are incident to the development of energy through coal. A
Federal strip mining bill enters the area of Federal/State jurisdiction and touches upon the police
power that normally has been under the jurisdiction of the State, or of the States I should say, and
my concern reflects that of the Governor of Wvoming in taking note of the fact the Secretary of
the Interior and the Governor of Wyoming entered into an agreement prompted by a lawsuit
brought by the State of Wyoming, which marks out areas of State authority, recognizing among
other things the adequacy of the laws passed by the State of Wyoming insofar as reclamation and
mining processes generally are concerned.
9 I hope this legislation will recognize this very worthwhile cooperative effort between the
Federal Government, on the one hand, and the States on the other, recognizing the continuing
validity of the kind of agreement your predecessor, Mr. Secretary, and my Governor entered into.
10 My second concern is for an adequate energy supply for this country. We all know we
have become more dependent upon foreign sources of petroleum supply that are uncertain at
best. We import more than 40 percent of the petroleum we use in this country. And I think that
impinges not only on the viability and good health of our industry as a Nation, but even more
importantly, under certain conditions, upon our national defense posture.
10 It has been pointed out on many occasions that during the oil boycott back in 1973, we
had to transport fuel to the Sixth Fleet in the Mediterranean by tanker, taking those supplies from
the eastern coast of the United States all the way into the Mediterranean.
10 As my good friends from Montana and Washington know, we are having a very unusual
winter in the West. The reports on water indicate we may have perhaps a little more than a third
of the amount of runoff that we might have anticipated.
10 I have not had a chance to talk to the chairman of the full committee, but we are going to
get only about a third.
10 The CHAIRMAN. That is correct.
10 Senator HANSEN. The Columbia River and the Snake River as well are important
sources of energy.
10 The CHAIRMAN. If it goes on for a little bit longer, and I think the Secretary will agree -
we will have the greatest shortage in a hundred years. I mean we are having a drought. There
has been no snow or rain. If you look at the Olympics and the Cascades, there is no snow at all.
It was 54 degrees in Seattle yesterday.
10 Senator METCALF. There is a shortage in most of the area, and in eastern Montana they
have very little snowfall. That is the upward drainage to take care of all of the Missouri drainage,
from Fort Peck right down to New Orleans.
10 Senator HANSEN. I appreciate the points you have underscored here for me, Senators
Jackson and Metcalf. As our good friends at the witness table know so well, coming from
Wyoming we are at the head of the creek; we are at the headwaters of the Columbia, at the
headwaters of the Colorado, the headwaters of the drainage that goes into the Great Salt Lake.
We supply water through the Platte into Nebraska.
10 So water runs out of Wyoming in every direction. We are well aware of the points you
both make. I am glad you made the observations you did because it underscores one important
fact; that is, while we have been fortunate this winter, both in terms of a mild winter and in terms
of generally adequate energy supplies, when you consider the impact that this shortfall in water is
going to have upon the hydropower for the Pacific Northwest, it bodes nothing but real trouble.
10 As Senator Jackson pointed out the indications are this will be the shortest we have been
in - 100 years, did you say, Senator?
10 The CHAIRMAN. Yes. In the Columbia Riversystem.
10 Senator HANSEN. That is extremely serious. My good friend, one of the Congressmen
from the State of Washington, Mr. McCormack, has a background in nuclear power. I think he
speaks with real authority, and he said if we have a real shortfall in power or even if we were to
try to take off on a national program of zero, increased usage, it would have a disastrous effect
upon the United States.
11 I think I am quoting him fairly accurately although I am paraphrasing what he said. He
pointed out people who need work the most, those with few work skills, minorities, are the first
to suffer when there is inadequate power.He knows, as we all do, for each man-hour of work on
the farms and ranches - and our distinguished Secretary understands very well, having served as
Governor of Idaho for three terms - that for each man-hour we burn 1.2 gallons of fuel.
11 These are some of the considerations that we will be faced with as we consider this very
important piece of legislation and I join in welcoming you two distinguished representatives to
the witness table.
11 Senator METCALF. Thank you very much, Senator. The Senator from Louisiana.
STATEMENT OF HON. J. BENNETT JOHNSTON, A U.S. SENATOR FROM
THE STATE OF LOUISIANA
11 Senator JOHNSTON. Thank you, Mr. Chairman. Mr. Chairman, I was just reading
here on page 2 of the Secretary's statement about the so-called compromise over surface
ownership that we worked out in the last hours of the conference committee last year. I well
remember those weeks, and it may have been months, while we considered the Surface Mining
Act in conference, and at the last minute it appeared the bill was going down to defeat because of
inability to agree on that surface ownership.
11 I had a hand in putting together that compromise. The point I am making is I felt then,
and I feel now, it is important that we come up with a bill for surface mining that is reasonable,
that will protect the surface. I believe that can be done.
11 At the same time, Mr. Chairman, the energy shortage is finally ripening into the energy
crisis. So it is more important than ever that we be very careful in what we do, that we don't
"lock up the coal," that we don't make a bill that is so onerous in its operation either as to cost the
country too much money or to get the country too little coal.
11 I believe we did the right thing last year. I believe we can again this year.
11 One thing we have not addressed ourselves to in this Congress - well, the Senate has
addressed itself to it, but the Congress has not - is the question of coal slurry pipelines. I believe
these two issues are inextricably related and interwoven. We have got to have a way to get this
coal down to the South, indeed, to Louisiana, which is the biggest gas-producing State, I guess,
in the country, at least when you include OCS gas. Yet we are burning coal there and we need
coal, yet we can't get it down in sufficient quantities. If that is true in Louisiana, it is even more
true in States throughout the country, that we need a source of coal.
11 As Jimmy Carter said the other day, coal is the key to the solving or the dealing with the
energy crisis. I agree. I don't think a strip mining bill is inconsistent with having coal the key to
that crisis, but I do think while we are about the question of surface mining we also need to
address the question of coal slurry pipelines.
12 I am introducing a bill in the next day or two which I hope, Mr. Chairman, we will
consider in conjunction with this strip mining bill. I am for the strip mining bill in any event.
But I think we ought to have a coal slurry pipeline bill so we can transport that coal which we
mine with such high environmental standards.
12 Senator METCALF. Ithank my friend from Louisiana. He knows I am going to resist
anything - and that means coal slurry pipelines or environmental protection for other areas or
scientific institutes in our universities, anything that gets in the way of the basic strip mining bill.
12 These other matters, as far as this Senator is concerned, will be taken up later, when we
consider such problems as the water involved in the coal slurry pipelines. But I assure the
Senator from Louisiana that early in this session or after we pass the strip mining bill, there will
be adequate consideration of the problem of coal slurry, of problems of research and
development centers, and those other things that were in the strip mining bill before.
12 One of the problems we have, Mr. Secretary, is we have 18 new Senators who were not
involved in strip mining legislation before.Of course, one of these new Senators is the Senator
from Utah, Mr. Hatch. I am delighted to have him here this morning.I will call on you for an
opening statement before we hear from the Secretary.
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE
STATE OF UTAH
12 Senator HATCH. The only opening statement I care to make is that I am very
pleased to see both of you here and I do have some questions about the strip mining proposal. I
am a great believer in States' rights, I strongly believe that the States can manage their own lands.
Many of my questions will be in that area.
12 Frankly, I have real questions about whether a strip mining bill is what this country needs.
I think it means more Federal controls and more domination by the Federal Government, less
production and sometimes, I think, more costly production to both the producers and the
consumers. So I have some real questions about it. I will keep an open mind, and hopefully you
can answer my questions to everybody's satisfaction.
12 Senator METCALF. I thank the Senator from Utah very much.The Senator from
Arkansas.
STATEMENT OF HON. DALE BUMPERS, A U.S. SENATOR FROM THE
STATE OF ARKANSAS
12 Senator BUMPERS. Mr. Chairman, first of all I want to say I appreciate the
chairman's remakrs regarding the coal slurry lines. The Senator from Louisiana and I have talked
about it for a little bit. It just so happens the major proposal is one from Gillette, Wyo., to
Pinewell, Ark., and as of this moment I don't know what anybody proposes to do - certainly I
don't know what my State proposes to do - with the waste water that is necessary to haul that coal
in slurry pipelines.
13 It is my understanding the line, or whatever the dimension might be, would be half water
and half coal. I have seen some of the studies on it but nobody has said what we in Arkansas are
supposed to do with that water. You can imagine what the chemical content of it would be once
it gets there.
13 If they want to build two lines so they can send the water back to Wyoming, then I have
no objection. But I have told the Senator from Louisiana I recognize there are economic benefits.
He advises me the cost of shipping coal from Wyoming to Arkansas can be done by slurry line at
about one-third of the cost of shipping it by unit train and that makes it attractive.
13 Of course, if the environmental considerations could be satisfactorily worked out.
13 The second thing is, I watched Governor Andrus on one of the talk shows yesterday, "Face
the Nation." I call him Governor because I notice in the latest poll they rank fourth in competence
levels of the opinions of the people and the Congress is eighth, so I try to get them to call me
Governor around here, too.
13 I was pleased to hear him say something I have always argued about the necessity of the
strip mining bill, and that is, if I were a coal operator and if I anticipated getting into the business
because of the obvious demand for coal that is going to be generated in the next few years, I
would want guidelines. I would not want to make a sizable investment at this time with this
hanging over my head knowing it is going to happen at some time but not knowing in what
precise form or what the economic cost to me would be as a coal operator.
13 Governor Andrus made this point yesterday. I think it is one of the most cogent points
that needs to be made. I thought the President last year in vetoing this bill on the grounds
production would be lost was erroneous, totally specious, and in the hearings held subject to the
veto was shown to my satisfaction rather conclusively that those figures were erroneous.
13 I hope we will move expeditiously to pass a bill. I thought the one last year was a very
good one. Most of us here on this committee and Senator Melcher, who was on the Interior
Committee of the House at the time, was familiar with it; I thought it was a perfectly good one,
and I will be happy with one just like it. Also perfectly happy to go through the hearings again
and if there are any improvements that can be made, certainly I will be amenable to them.
13 Senator METCALF. I thank the Senator from Arkansas, or I could say, I thank you,
Governor. We can also refer to the ex-Governor of Wyoming.
13 I appreciate your mentioning my colleague from Montana. Among the 18 new Senators,
of course, is Senator Melcher. He is as well acquainted with strip mining legislation as anybody
in America, and has been active in getting it through the House of Representatives. I think we
should be reminded he came within three votes of overriding the veto. I believe we could have
overridden the veto in the Senate if we had received the bill.
14 I welcome the Senator from Montana to the committee. We have just finished
organization of the various committees of the Senate in accordance with the Stevenson resolution
last week. So we have not had any appointments to any of the committees. Senator Melcher has
shown an interest, a deep concern in this legislation, and I would like to call on him at this time.
STATEMENT OF HON. JOHN MELCHER, A U.S. SENATOR FROM THE
STATE OF MONTANA
14 Senator MELCHER. Thank you very much, Mr. Chairman. I want to first of all
compliment you, Lee, for introducing S. 7, and I note first of all, S. 7, like the vetoed bills,
carries with it the prerogative for a State to run the reclamation program within their boundaries,
not just on private and State lands but also on Federal lands. That is a key part of S. 7 as it was a
key part of the vetoed bills.
14 On surface owners' rights, if there is going to be some modification of existing law, and I
think there should be, it has to be done by Congress and it is one of the key issues that must be
faced up to in S. 7 as it was faced up to in the vetoed bill.
14 I would offer the suggestion at this time that the surface owners' rights agreement, the
stipulations carried in S. 7, be modified to be the same as was ironed out and hammered out in
the conference committee, referred to by Senator Johnston. To accomplish that purpose and to
allow this committee to consider that I shall offer such an amendment.
14 Therefore, it will be in order to consider it here at the appropriate time.
14 I think a cornerstone of developing western coal depends on an enactment of this bill, for
the reason of solving surface owners' rights, for the reason of directing the States, the opportunity
and the prerogative of running the reclamation program, not just on private and State owned land
but on Federal lands, that we must have enactment of this bill.
14 When that is enacted, then I think we can see the development, prudently and wisely and
selectively, of western coal. It is true, as Senator Jackson has said, that this country is rich in
coal. Much of it is in the West. Probably most of the strippable coal is in the West and about half
of it is federally owned.
14 Until we have the firm delegation of authority from the Congress to the States to run the
reclamation program, firm guidelines and directions from the Secretary of the Interior on how to
lay out the procedures for the development of this coal, I think we are seriously lacking. It is also
worthy of note that enactment of S. 7 will set the minimum Federal guidelines for each of the
States to follow in their own statutes in order to run the reclamation programs themselves within
the boundaries of their States.
14 I believe this is also essential, or else we are going to remain in a position of States for
economic gain being tempted to have weak reclamation laws, and therefore, attract coal company
operations to their States away from other States that have tougher laws.
14 One of the basic reasons we have recognized in the Congress for the past 6 years the
national strip mine legislation was needed and it is needed just as much today as during those 6
years and even more so now.
15 Finally, I would like to commend Senator Metcalf and the other sponsors of this
legislation for providing money for abandoned, orphaned, strip mined lands that were abandoned
years ago and never reclaimed, for providing funds for that; and second, for providing funds for
the social impacts that occur in areas where coal development is undertaken.
15 I think both points are essential and needed of recognition of the Congress to strip mined
land that has never been reclaimed and looking ahead to recognize there are also social impacts
where Federal coal development does occur and it is a Federal responsibility to assist in those
areas.
15 I find S. 7 a very fine bill. I would only modify it to the one issue of surface miners' rights
and recognizing the difficulty we had in obtaining final agreement on that, returning to the
position we hammered out in conference a couple of years ago.
15 Senator METCALF. Thank you, Senator Melcher. Secretary Andrus - despite the
admonition given to me by Governor Bumpers, I am going to address you as Mr. Secretary from
now on - I am pleased you are here this morning and I know the problems you had at the Cabinet
meeting with Governor Carter - I should say President Carter. Your admonition carries through
Governor Bumpers; how did the Presidents rank in that poll?
15 Senator BUMPERS. I just looked at Congress and Governors; that is as far as I got.
15 Senator JOHNSTON. You can be assured it is above us. [Laughter.]
15 Senator METCALF. Anyway, I am delighted, with all of the problems that the Secretary
of the Interior has, that you have recognized as we have the high priority and great urgency for
passage of strip mining legislation in order to stabilize the basic and pivotal part of the coal
industry as part of our overall energy program. We are delighted to have you here this morning.
I am pleased we are going to be able to work with you, Mr. Secretary, in the years ahead and I
look forward to a very fruitful relationship.
15 At this time I am going to ask you, and then Mr. O'Leary, to testify, and then you will be at
the mercy of this subcommittee.
STATEMENT OF HON. CECIL D. ANDRUS, SECRETARY OF THE INTERIOR
15 Secretary ANDRUS. Mr. Chairman, members of the committee, my opening
statement will be brief. I will read it, Mr. Chairman, because I think it will answer some of the
questions that have been raised by members of your committee here this morning. The
legislative report I will refer to, but I will not cover that at this time.
15 Senator METCALF. The departmental report has been incorporated into the record, prior
to our opening statements and other necessary unanimous consent requirements will be made.
15 Secretary ANDRUS. Thank you, Mr. Chairman.
15 The Department of the Interior strongly endorses the enactment of comprehensive surface
mining control legislation.Your committee has worked on, and the Congress has passed, such
legislation during the past two Congresses. A Presidential signature on it is long overdue and I
am glad to see it placed at the top of your agenda. Drawing on your past efforts and expertise,
this administration looks forward to a new law under which an effective surface mining control
program can be carried out.
16 Increasing this Nation's ability to produce and use coal in order to decrease our reliance
on imported oil and scarce natural gas is essential.With sound environmental safeguards, surface
mining will be an acceptable way to produce much of this coal.
16 Fortunately, coal is abundant in this country. We can afford to be particular about where
and how we mine it, consistent with conservation of the resource. We can afford to declare
certain areas off limits to strip mining because of other important resource values, and we can
insist on ending the abuses which historically have been associated with coal strip mining.
16 Prompt establishment of new ground rules for surface coal mining is essential both for a
sound environmental policy and a sound energy and economic policy.Despite recent
improvements in State and Federal programs, a uniform approach, approved by the Congress,
needs to be adopted:
16 - To assure a high level of environmental protection;
16 - To provide for sound management of our land resources;
16 - To eliminate competitive economic pressures on States to lower their reclamation
standards; and
16 - To provide the coal industry with firm guidelines for its future development.
16 In reaffirming my support of this legislation, I would like particularly to mention some of
its fundamental components, which have been developed in the last few years of debate and
compromise on this legislation:
16 First: That reclamation is required to fully restore strip mined land to at least its original
productivity.
16 Second: That the burden is on the operator, not the Government or the citizen, to
demonstrate affirmatively that reclamation according to the law will be achieved.
16 Third: That certain areas will be off limits to strip mining because of other important
resource values, preserving the option for society later to determine whether the coal is worth the
sacrifices associated with mining by surface methods.
16 Fourth: That citizens will have meaningful opportunities to participate in the
implementation of the law - through availability of information, hearings, and opportunities for
citizen suits.
16 Last: That abandoned, unreclaimed mines will be reclaimed using money from production
fees.
16 Mr. Chairman, in approaching this legislation, I want to see a bill which will make for an
effective and efficient program without an undue burden on the economy. More specifically, the
following principles should govern:
16 No arbitrarily imposed losses of coal production should result from the program.
16 It should not result in significant unemployment.
16 No substantial consumer impacts should result. It should not adversely affect competition.
17 No unreasonable administrative burdens and governmental costs should be imposed.
17 In general, I believe the legislation before you meets these tests.
17 I hope you will agree with me, however, that if we can improve the bill, we should not be
deterred from this by past history, and, in any event, several issues remain to be resolved, many
of them touched upon by your committee this morning. I would like to touch upon several of
them now.
17 How to protect the owners of surface interests in lands where the Federal Government
owns and might lease coal for surface mining is an issue of central concern. Some recognition is
certainly appropriate to protect the interests of individuals who have in many instances, created
by their own labor a working ranch or farm and who may be faced with serious losses if Federal
leases are issued.I am not prepared to support a blanket prohibition of surface mining in the split
ownership situation, however.
17 Many hours of your time were spent in the last Congress trying to resolve this difficult
issue. It has been discussed here this morning in the opening remarks of your members.
17 The bill which finally passed conferred a right to consent on a specified class of surface
owners. To avoid large windfalls, it also specified compensation which could be paid for
consent. The concept of this provision in the vetoed bill would appear preferable to an outright
prohibition.At this point, I can only suggest that we remain open to reaching the most reasonable
possible solution of the problem and our Department stands ready to work with you to this end.
17 A second question is the protection of alluvial valley floors. I fully support such
protection.My staff advises me, however, that it would be desirable to clarify the alluvial valley
floor prohibition somewhat and to make specific allowance for the continued operation of
approved mines already producing coal.
17 As I mentioned, a basic feature of S. 7 which I support is its provisions for remedying the
historical environmental neglect of lands already mined and now abandoned. Some estimates are
that 1 1/2 million acres of land have been disturbed by all coal mining.I am frank to admit, I do
not believe we have an accurate inventory on that.
17 As you consider the bill's provisions for abandoned land reclamation, however, let me
urge you to focus on highest priority needs. A tremendous amount of reclamation work must be
done to repair the scars and correct the continuing environmental harm from mines where
responsibility for reclamation has ended and we must assure that our limited resources will be
used to produce the greatest possible results from a reclamation program.
17 Another issue of concern is the assignment of responsibility for the surface mining
reclamation program on Federal lands between the States and the Federal Government. S. 7 is
directed toward the accommodation of arrangements worked out in the last year. I would urge
that you make those arrangements, like other portions of State programs, subject to review and
approval by the Secretary, rather than election by the States. Other issues will also need
resolution.The Department's legislative report, which you have, addresses most of these
specifically and I will be happy to answer any questions about them you may have.
18 Our Department will also work with you in making whatever changes will improve the
bill. As we plan and undertake preparation for implementation of the program, we will keep you
fully advised and remain open to your advice as to the best possible way to accomplish this.
18 Coal constitutes over 85 percent of our hydrocarbon energy reserves and there can be no
question that coal will provide a significant proportion of our energy needs for years to come.
But as coal production increases, the environmental and land use problems it entails will also
increase. We just cannot afford to permit historical mining practices to continue, particularly
since environmentally sound mining can meet the Nation's energy and economic needs.
18 The pollution of some 11,000 miles of streams by acid mine drainage, extension siltation,
the loss of forest and agricultural lands from productive capacity, the destruction of wildlife
habitat, burning mine waste dumps, and health and safety hazards, must and can be controlled.
Major impacts on land use and water resources are associated with many surface mines and these
must be dealt with very, very carefully.
18 The framework you have provided by S. 7 to deal with surface coal mining reclamation is
sound. I want to work with you to make needed improvements you were discussing this morning
expeditiously and produce a bill for President Carter to sign. I assure you that the administration
is committed to helping you pass such legislation and to careful administration of the program
the legislation provides.
18 Senator METCALF. Thank you, Mr. Secretary. Before I call on Mr. O'Leary, I want to
remind the people at the press table that the report of the Department of the Interior expands on
some of the matters that the Secretary talked about, such as the protection of the surface owners'
rights. We will have detailed testimony from the Kentucky operators at the next hearing,
regarding their concerns about implementation of the program, as to time involved, and so forth.
The Secretary has made a suggestion for modifying provisions for alluvial valley floors.
18 These are, in my opinion, relatively minor. They are matters that can be taken care of as a
result of discussion and markup.
18 I simply want to point out some of these questions touched on by the Secretary are dealt
with in greater detail by the departmental report.
18 You will probably be interrogated, Mr. Secretary, on some of these matters. You
understand the Senate is in the same position you are. We regard the proposed bill containing
145 pages as a skeleton program that we can put some flesh on as we proceed to implmentation.
18 Secretary ANDRUS. Excuse me, Mr. Secretary, I don't want to preempt my colleague's
testimony, but I think that is a point we do have to speak to. The implementation is broad and
again I assure you and this committee the Department of Interior wants to work with you to bring
about the implementation of the many facets that are enumerated in your legislation.
19 Senator METCALF.Thank you. We are delighted to have our new Administrator of the
Federal Energy Administration, the Hon. John F. O'Leary, who will make a statement. Then I
will call on my colleagues for their comments and interrogation.
STATEMENT OF HON. JOHN F. O'LEARY, ADMINISTRATOR, FEDERAL
ENERGY ADMINISTRATION
19 Mr. O'LEARY. Before getting into my prepared remarks, I would like to again
thank you for having this hearing and for the tenacity you have shown over the last few years in
getting us to this point. I share the view of the chairman of the full committee that this is the year
in which finally, after a good deal of enormous effort on the part of many people, we are going to
enact legislation in this area.
19 My personal involvement with this, Mr. Chairman, began more than 10 years ago with the
first study of surface mine damage done by the Department of Interior. In that instance, insofar
as my knowledge and recollection goes, we did the first landmark study of, and I think the only
phrase for it is, the national disgrace that had been associated with unregulated surface mining
over 75 to 100 years in this country; now to see 10 short years - or long years, as the case may be
- we are going to come to a resolution of this must be extremely satisfying to you. It certainly is
to me.
19 Mr. Chairman, I appreciate the opportunity to appear today to discuss the pending Federal
surface mining legislation. The need for tough surface mining regulations is long overdue. The
lengthy debate on this issue has obscured the important environmental goals which can and must
be achieved. The President has repeatedly stated his position that Federal surface mining
legislation is essential and that the time for its adoption is now. I am personally in complete
agreement with this view.
19 Coal is one of our oldest and most plentiful sources of energy. Unfortunately, in many
parts of our country its production and use has occurred without proper regard to its impact on
our environment. Scenic areas have been lost. Our air and water have been fouled by failure to
act in an environmentally responsible manner. We must put these days behind. The cost of
reclamation is not high, Mr. Chairman, and we should not be misled to believe that concern for
our environment and the production of energy are incompatible.
19 The winter of 1976-77 has dramatically pointed out the Nation's need for sound, well
reasoned, energy programs. Senate bill S. 7, along with the similar legislation which has been
introduced in the House of Representatives - H.R. 2 - is in my judgment, an important step in the
right direction of balancing environmental and energy objectives.
19 The urgency of our energy situation dictates that the American people establish priorities
and move rapidly toward adopting new goals and standards. The Surface Mining Control and
Reclamation Act of 1977 reflects this national commitment. The task now is to enact legislation
which will guarantee that our growing energy needs are not pursued at the expense of our natural
environment.
19 The need for minimum national performance standards is further illustrated by recent
State actions. Some coal producing States have adopted new surface mining legislation. Others
have recently improved their laws. Those States which have enforced stringent reclamation
standards have been able to maintain a viable coal mining industry. But competitive pressures
among States have sometimes resulted in the failure to enact more stringent laws and have often
led to less vigorous enforcement.
20 Time has come to establish national performance standards and to establish an
enforcement program to make sure these standards are met.
20 Traditional reliance on oil and gas for most of our energy requirements must change to
reflect the realities of our current energy situation. We need to establish a firm basis for coal to
play an expanded role in meeting our Nation's energy needs. Coal producers must be able to
proceed with a clear understanding of their responsibilities.
20 Coal represents the most important domestic source of energy for the United States in the
near term. U.S. coal production in 1976 was 665 million tons and is expected to increase to over
1 billion tons by 1985. Our coal reserves, used wisely and in conjunction with environmentally
sound standards, will provide us with reliable domestic energy source for many years to come.
20 The Federal Energy Administration is committed to the timely passage of this needed
legislation. We have carefully reviewed the proposed legislation, and there are just a few areas
of concern, which merit attention.
20 First, S. 7 would prohibit surface mining of Federal coal where private surface ownership
exists.
20 The purpose of this feature is to protect legitimate surface owner interests. I believe that
the protection of such interests is essential, but I would urge you to consider an approach which
would adequately safeguard owners' rights without enacting an overall ban.
20 A second provision of the Senate version which warrants further review is the alluvial
valley floor section. We recognize the importance of alluvial valley floors to the economic
viability of farming and ranching operations in the West and, therefore, to traditional western
lifestyles.Those areas which are conducive to agricultural activities should be protected and,
therefore, sources of water to such areas need to be maintained.
20 It is our view that mining operations located adjacent to or in proximity of alluvial valley
floors which will not have a significant adverse impact on water sources supplying alluvial valley
floors, and meet other requirements of the legislation, should be permitted. We believe that the
provision dealing with this matter could be subject to unintended misinterpretation. We would,
therefore, prefer an alluvial valley floor provision which is unambiguous and would not lead to
needless and lengthy litigation.
20 We strongly favor enactment of tough surface mining and administrative changes that may
be necessary in order to improve the workability of the regulatory structure to be implemented
under such legislation. These matters, of course, should be discussed between the agencies
charged with administering such legislation and the appropriate committees of Congress.
20 Your reference to S. 7, representing a framework upon which the legislation can be built,
is a case in point.
21 I would be pleased to answer any questions.
21 Senator METCALF. Thank you very much, Mr. Administrator. I was a lawyer, and the
people of Montana and God willing I will probably be a lawyer in Montana again one of these
days. I have regarded this legislation as an initial pleading, the vehicle to get prompt and early
consideration from a new administration and from some of the new members of the committee
who are involved. I feel it is the beginning and the pivotal part of an energy program for
America, a full energy program, which we must get underway. Then we can take up such things
as coal slurry pipelines, exotic sources of energy and things of that sort that are so necessary but
are not the things we are going to have to face in the immediate future.
21 As chairman of this subcommittee, I welcome every suggestion and every proposal you
have to make, or that my colleagues as Members of the Senate, or that Members of the House
have to make - in order to work out a piece of legislation that will get us moving forward.
21 So I am just delighted that you are here. Your proposals for the bill are well taken and I
feel sure we can continue to work together until we get President Carter's signature on this
legislation.
21 I will call on my very distinguished colleague from Idaho, who came in just after you
started to talk, Mr. Secretary, Senator Church.
STATEMENT OF HON. FRANK CHURCH, A U.S. SENATOR FROM THE
STATE OF IDAHO
21 Senator CHURCH. Thank you very much, Mr. Chairman, and Mr. Secretary. First
of all I would like to say everyone in the Senate who knows the work the Senator from Montana,
Senator Metcalf, has put in on this legislation not only credits him with the enactment of the
legislation in the last session, which was met finally by veto, but honors his work in this field.
21 Mr. Secretary, you are off to running start. You have hardly had a chance to get your seat
warm down at the Interior Department and you are up with major legislation very early which is a
very good sign.
21 The question that I have relates to one part of your prepared testimony, and you refer to
certain areas which will be off limits to strip mining because of other important resource values,
preserving the option for society later to determine whether the coal is worth the sacrifice
associated with mining by surface methods.
21 I don't know if this question has been looked at carefully by your Solicitor, but I am
wondering whether the Federal Government possesses the authority to prohibit coal mining of
Federal lands. I think without question it has the right to regulate under the commerce clause,
but whether it would have the right on private property is a question I have never researched, and
I don't know if it has come up during the course of deliberations of this committee.
21 Offhand, Mr. Secretary, do you have a response to that?
21 Secretary ANDRUS. Mr. Chairman, and Senator, depending on State law, in some States
they can prohibit now on private land. My remarks in that prepared text were, obviously - I was
trying to make a point - but just because there is coal there or some other mineral we should not
rush out and grab it until we consider the other resource values that are there.
22 I cannot with certainty respond to your question as to whether the Federal Government
does have the right on private land to prohibit it, but some States have it in their laws.
22 Senator CHURCH. I think the States would have that right under the exercise of police
powers. But whether the Federal Government can go that far is what I would like answered. If
you can have that researched, I would appreciate that.
22 Secretary ANDRUS. In response to Senator Church's question I will research that and
write to him. But if the Federal Government sets the right example, others will follow. Within
24 hours, I will have a legal response to that.
22 Senator METCALF. That will be incorporated into the record.
22 Senator CHURCH. I think that would be helpful to have it incorporated into the record.
22 [Subsequently Secretary Andrus supplied the information appearing on the following
pages.]
23
THE SECRETARY OF THE INTERIOR WASHINGTON
January 26, 1977
Honorable Lee Metcalf
Senate Committee on Interior and Insular Affairs
United States Senate
Washington, D.C. 20510
Dear Senator Metcalf:
23 During the course of my confirmation hearing you submitted a number of questions to be
answered in writing. My responses to those questions are enclosed.
23 Copies of the questions and answers have been forwarded to Senator Henry M. Jackson
for inclusion in the official record of the hearing.
23 If I can be of further assistance, please let me know.
23 Sincerely,
23 Cecil D. Andrus
23 Secretary of the Interior
23 Enclosure
24 Questions Submitted by Senator Metcalf
24 Q. 1.
24 The Department recently granted a one-year suspension of operations in the case of all
four outstanding oil shale leases. Suspension was granted on the basis of conservation of the
resource. However, at a hearing held last November by the Subcommittee on Materials,
Minerals and Fuels, it became apparent that there were economic factors which figured
prominently in the lessees' applications for suspension.
24 This has raised serious doubts about the true reasons for granting the suspensions.
24 My question is this: Do you plan to review the record on these suspensions? In addition,
can you give us an indication of the Department's policy in future, if the lessees should request
extension of the suspensions when they expire?
24 A. 1.
24 I do intend to review the issuance of the suspensions of oil shale leases. I also understand
that the suspensions have been challenged in court.It appears that no actual operations were
suspended, but rather that only the bonus bid payments were suspended. If that proves to be the
case, I would not support extending the suspensions when they expire.
25 Q. 2.
25 With reference to the strip mining bill, one of the changes which I incorporated into S. 7,
the bill I introduced last Monday, would allow State regulation of surface mining of coal on
Federal lands, under an approved State program. I understand the Department has been actively
soliciting similar types of agreements with western States, three of which have reportedly signed
so far.
25 While I would endorse this effort in principle, I have been given to understand that the
motive behind it may be to undercut support of the western States for the Federal strip mining
bill. If this is so, I must tell you that I would have very serious reservations about continuing to
back this provision for State regulation of Federal coal lands in S. 7.
25 We must have a strong Federal strip mining bill. We need such a bill because State
environmental protection performance standards in most cases are quite inadequate and because,
frankly, Federal standards are not nearly stringent enough, either. We need such a bill because
orphaned lands are lying neglected, and for other reasons.
25 Now I recognize that States like Wyoming and Montana have strong environmental
protection standards for strip mining. But, unfortunately, these States are the exception rather
than the rule.
25 Let me ask you this: Can I count on you to make it crystal clear to the States which have
signed or are about to sign this agreement with the Department, that it is in no way to be
construed as a substitute for Federal strip mining control legislation now under consideration by
Congress? I would very much appreciate having such an assurance.
25 A. 2.
25 I can assure you that I am as anxious as you for passage of a strong federal strip mine bill.
I will therefore make it clear to the states that any agreement they may have made with the
Department about regulating strip mining on federal lands is in no way a substitute for the strip
mining bill.
26 Principal Issues for Resolution
26 1. Surface owner protection - where Federal coal/private surface
26 (a) Mining prohibited - Mansfield amendment (S. 7 - @ 423(e))
26 (b) Surface owner consent - (H.R. 2 - @ 714) - limited class of individual; limited
compensation
26 2. Compliance deadlines
26 (a) S. 7 @@ 401-404
26 (i) Federal regulations - 6 months
26 (ii) State programs submitted - 18 months (possible 6 months extension for legislative
action)
26 approve/disapprove - 6 months later resubmit 60 days/reconsider 60 days Federal program
for State not having approved program - 30 months
26 (iii) Permanent Federal lands program - 6 months @ 423
26 (iv) Application to mines
26 Interim:
26 *new mines - require permit with specified performance standards
26 *existing mines - performance standards apply after 135 days
26 Permanent:
26 *all mines - apply for permits 20 months after enactment, must be acted on within 6
months of State program approval or no later than 30 months after enactment
26 (v) Federal back-up enforcement on all lands after 135 days (quarterly inspections)
26 Question: Will this reduce State incentive to assume enforcement responsibility in
interim?
27 (b) H.R. 2- @@ 501-505
27 (i) Federal regs - 6 months
27 (ii) State programs submitted - 18 months
27 Secretary approve/disapprove - 6 months later State resubmit 60 days/Secretary acts 60
days Federal program for States not having approved program - 30 months
27 (iii) Permanent Federal lands program @ 523 - 6 months
27 (iv) Application to mines
27 Interim:
27 *new mines - require permit with specified performance standards apply after 6 months @
502(b)
27 *existing mines - performance standards apply after one year
27 Permanent:
27 *all mines - apply for permits within 2 months after approval of State or Federal program,
must be acted on within 8 months after approval of State or Federal program (but not more than
38 months after enactment)
27 (v) Federal back-up enforcement on all lands after 6 months (inspection when indication
of violations)
27 3. Abandoned land reclamation program
27 (a) Funding: S. 7 (Title III) - Fee 35c ton surface/15c ton underground applies only to
Federal coal and is credited against royalties.
27 H.R. 2 (Title IV) - Fee 35c ton surface/15c ton underground (up to 10% value of coal or
5% of legnite) applies to all coal
27 (b) Allocation: 50% in State or Indian reservation from which collected subject to
reallocation if not used in 3 years
28 (c) Distribution: to Interior for orphan land program except up to one-fifth of Fund to
Secretary of Agriculture for rural land reclamation
28 H.R. 2 also provides 20% of Fund to regulatory authority for small mine information
gathering
28 (d) Reclamation programs
28 *rural lands - @ 404 - Agriculture enters agreements up to 10 years for reclamation and
provides grants up to 80% of reclamation costs. (120 acre limit)
28 *land acquisition program - @ 405(a) - Interior authorize to acquire land at price based on
unrestored condition or to enter land based on certain findings and reclaim to eliminate fires,
pollution, etc. Secretary may charge costs to owner and file lien on property. Secretary can make
90% grants to States for same purpose. Land may be resold competitively at fair market value to
private parties or at lower value to State or local governments.
28 *funding of developments for impacted areas, including construction of public facilities -
@ 405(b) - Also applies to area experiencing rapid development of coal resources filling voids
and sealing tunnels @ 406
28 ISSUES: (1) Should authority to use funds for impacted areas be withdrawn? Note
subsequent passage of legislation directing payment in lieu of taxes, increased State share of
Federal mineral revenues and advance financing.
28 (2) Should reclamation purposes be clearly limited to demonstrable economic harms
rather than unquantifiable injury such as aesthetic damage? Note OMB staff believes abandoned
land program is bad precedent for Federal financing of non-point source pollution. EPA is
developing mine source regulations. TVA views purchase program as wasteful. CEQ indicated
some support of this view.
28 4. Mining and Mineral Institutes
28 H.R. 2, Title III
28 S. 7 - omitted
29 5. Alluvial valley floors
29 S. 7 - @ 410(b)5 (p. 59) - No grandfather clause and apparently looser language regarding
definition of alluvial valley floors
29 H.R. 2 - @ 510(b)(5) (p. 75) - Grandfather clause and greater specificity of alluvial valley
floor prohibition.
29 ISSUE: Should grandfather clause require actual production of commercial quantities in
year preceding enactment or should it extend to mines which have permits or approved
reclamation plans?CEQ argues only mines in actual production should be grandfathered. CEQ
also urges additional protection for prime or unique farmlands.
29 6. National forests - Surface mining is prohibited under both H.R. 2 ( @ 422(e)(2)) and S.
7 ( @ 522(e)(2)) (p. 131). This provision affects substantial reserves in the Custer National
Forest.
29 7. Small mines - Several provisions of H.R. 2 represent changes in vetoed bill designed to
accommodate concerns for small mines.
29 401(d) - part of reclamation fee supports regulatory authority development in application
information
29 507(c) - directs regulatory authority to perform water and core analyses for operator under
250,000
29 507(a) - application fee can be reduced below administration and enforcement costs
29 507(b)(14), (15) - permits omission of certain data if regulatory authority OKs
29 507(b)(2), (3) - less information required concerning adjacent landowners and previous
permits of operator
29 519 - easier administrative requirements for bond release
29 8. Judicial and administrative.
29 Justice Department urges:
29 (a) specific exemptions from NEPA Environmental Impact Statement requirement for
specific actions:
30 *regulations for State programs
30 *approval of State programs
30 *promulgation of Federal lands program
30 (b) Harmonization with other statutes:
30 (i) Air and water quality - EPA permits should be issued as part of mining permit based on
determination by EPA
30 (ii) Corps of Engineers permits should be issued under Federal Water Pollution Control
Act @ 404 should be issued by Interior with concurrence of Corps.
30 (c) Citizen suit provision - S. 7 @ 420; H.R. 2 @ 520
30 Use of provision against Secretary of the Interior should be made the exclusive remedy.
Effect: to assure that Secretary gets 60 days notice for suits against him for performance of
mandatory duties.
30 (d) Judicial review - S. 7 @ 426; H.R. 2 @ 526
30 Provision of (a)(1) for review of Secretarial action by "the appropriate" U.S. Court of
Appeals is causing needless litigation under the Clean Air Act over what is appropriate.
Provision should refer to Court in which the State is.
30 Also (a)(2) review of orders or decisions of national scope should be in the U.S. Court of
Appeals for D.C.
30 CEQ proposed and Justice opposed:
30 (e) mandatory payment of lawyer's fees for citizens suits
30 9. State-Federal enforcement arrangements for Federal lands
30 S. 7 @ 423(d) appears to allow cooperative arrangements. To adopt Interior practice it
should be modified to authorize agreements rather than provide for State elections.
30 H.R. 2 - no provision
30 10. Indian lands - unresolved issues of
30 - jurisdiction
30 - treatment under abandoned lands program
30 - definition of Indian lands
31
UNITED STATES
DEPARTMENT OF THE INTERIOR
OFFICE OF THE SOLICITOR
WASHINGTON. D.C. 20240
FEB 23 1977
Honorable Lee F. Metcalf
Chairman, Subcommittee on Minerals, Materials and Fuels
Senate Committee on Interior and Insular Affairs
Washington, D.C. 20510
Dear Senator Metcalf:
31 On February 7, 1977, Secretary Andrus testified before your committee on S. 7 "A bill to
provide for the cooperation between the Secretary of the Interior and the States with respect to
the regulation of surface mining operations, and the acquisition and reclamation of abandoned
mines and for other purposes." Secretary Andrus was asked to obtain from the Solicitor of the
Department of the Interior and submit for the record, an opinion on two questions:
31 (1) Whether the Congress may delegate to a state the authority to requlate reclamation of
coal mining activities on federal lands; and
31 (2) Whether Congress has the authority, under a federal program, to designate certain state
and private lands as off limits to coal mining?
31 This letter briefly responds to these questions.
31 Congressional Delegation of Authority to State to Regulate Federal Lands. Section 423(d)
of S. 7 allows a State to "elect" to regulate reclamation on federal lands. The Department of the
Interior in its legislative report on S. 7 supported this principle and suggested that several
amendments were needed to have the election work properly. At the February 7, 1977, hearing,
Senator Metcalf inguired about the constitutionality of state regulation of federal lands.
(According to section 501(8) of S. 7, federal lands includes both lands where the United States
owns the surface and mineral estates, and lands where the United States owns only the mineral
estate.)
31 The Property Clause of the United States Constitution says that, "Congress shall have the
power to dispose of and make all needful Rules and Regulations respecting the Territory or other
property belonging to the United States." U.S.Const., Art. IV, Section 3, Cl.2.The property
Clause gives the Congress the power, without limitation, to determine how the property of the
United States will be used and administered Kleppe v. New Mexico, U.S. , 96 S.Ct. 2285
(1976); United States v. San Francisco, 310 U.S. 16, 29 (1940); Utah Power & Light v. United
States, 243 U.S. 389, 405 (1917). However, this clause does not automatically place the
exclusive power to regulate federal property in the United States Government. Unless the
exercise of a state police power conflicts with a federal statute or identifiable federal policy, the
police power of the states extends over federal lands unless and until Congress has determined to
deal exclusively with the topic. State of Colorado v. Toll, 268 U.S. 228 (1925); McKelvey v.
United States, 260 U.S. 353 (1922); see Texas Oil & Gas Corp. v. Phillips Petroleum Co., 406
F.2d 1303 (10th Cir. 1969), cert. denied, 396 U.S. 829 (1970) As the Supreme Court recently
stated, "* * *[A] state undoubtedly retains jurisdiction over federal lands within its territory, but
Congress surely retains the power to enact legislation respecting those lands pursuant to the
property clause.[Citations omitted] And when Congress so acts, the federal legislation
necessarily overrides conflicting state laws under the Supremacy Clause." Kleppe v. New
Mexico, supra at , 96 S.Ct. at 2293.
32 In summary, state police powers consistent with federal law and policy apply to federal
lands unless Congress acts or authorizes a federal agency to act to displace those laws. In
addition, Congress may pass legislation which exercises exclusive jurisdiction over federal lands,
or it may pass legislation which permits a state to retain jurisdiction over federal lands under
certain conditions.
32 I conclude that the Congress may delegate to a state the authority to regulate reclamation
of coal mining activities on federal lands.
32 Congressional Authority to Designate State and Private Lands as Unsuitable for Surface
Coal Mining
32 Section 403 of S. 7 allows a state to regulate reclamation on State and private lands if it
adopts a regulatory program that meets the requirements of the bill. The bill requires each state
that wishes to regulate reclamation of lands mined for coal to adopt a program that meets
specified reclamation performance standards and inspection, penalty and enforcement, and
funding requirements. That section requires a state to establish a process for the designation of
lands unsuitable for mining, S. 7, @ 403(a)(6) and to refuse to allow mining on certain types of
land. S. 7, @ 410(b)(5). If a state fails to submit a qualifying program in the time period
allowed by the bill, state laws and regulations that govern coal mining are preempted and the
Secretary of the Interior is required to implement a Federal reclamation program for that state. S.
7, @ 404(a). As part of the Federal program under section 404, the Secretary has to assume the
responsibility to ban mining under @ 410(b)(5) and (after one year), to designate whether state
and private lands are unsuitable for surface mining. S. 7, @ 404(a), @ 422(a). During the
hearing on February 7, 1977, Senator Church inquired whether the exercise, by the federal
government, of the power to ban mining on certain areas of state and private lands was
constitutional, or whether this power could only be exercised by a state, under its police powers.
33 The Commerce Clause, Art. I, @ 8, cl. 3, United States Const. gives Congress the power
to regulate commerce among the several States. The power of Congress to regulate interstate
commerce under the Commerce Clause is plenary and encompasses not only regulation of
interstate commerce, but also necessary and proper measures to regulate intrastate commerce.
Houston & Texas Ry. v. United States, (Shreveport Rate Case), 234 U.S. 342, 351, 353 (1941).
The necessary and proper test is met if the regulated conduct might have a "substantial economic
effect" on interstate commerce. Wickard v. Filburn, 317 U.S. 111, 125 (1942). Commerce that
concerns more than one state and that has a real and substantial relationship to the national
interest meets this test. E.g. Heart of Atlanta Motel v. United States, 379 U.S. 241, 255 (1964).
The Courts give a high degree of deference to a Congressional determination that an activity
affects interstate commerce, and will defer to that judgment if there is a rational basis for finding
that a chosen regulatory scheme is necessary to protect interstate commerce. Katzenbach v.
McClung, 379 U.S. 294, 303-04 (1964). In South Terminal Corporation v. Environmental
Protection Agency, 504 F.2d 646, 677 (1st Cir. 1974), the Court upheld a determination by
Congress that regualtion of air pollution was permitted by the Commerce Clause. See also
United States v. Bishop Processing Co., 287 F.Supp. 624 (D.Md. 1968). In section 101(d) of S.
7, Congress has made the required determination that, "Surface and underground coal mining
operations affect interstate commerce, [and] contribute to the economic well-being, security and
general welfare of the Nation * * *."
33 If a subject matter has been found to be within Congress's power under the Commerce
Clause, Congress may adopt means to regulate that area, even though the means "may have the
same incidents which attend the exercise of the police power of a state." Federal Power
Commission v. Natural Gas Pipeline Co., 315 U.S. 575, 582 (1942); Hoke v. United States, 227
U.S. 308, 323 (1913). For example, the Courts have specifically upheld the right of Congress to
limit parking spaces to regulate air pollution through land use planning and other means even
where the regulations reduced the number of parking places in a city below that level authorized
by local zoning ordinances. South Terminal Corporation v. Environmental Protection Agency,
supra, at 677. n1
34 I conclude that Congress has the power under the Commerce Clause to allow the Federal
government to designate some types of state and private lands as unsuitable or off-limits to
surface coal mining. n2
34 n1 Congress may not have the power under the Commerce Clause to require state officials
to pass and enforce laws or appropriate money to carry out certain governmental functions
required under regulations issued under the Clean Air Act. E.g., Brown v. Environmental
Protection Agency, 521 F.2d 827 (9th Cir. 1975), cert. granted, 44 L.W. 3685.
34 n2 The allowable extent of the prohibition must also be consistent with the due process
requirements of the Fifth Amendment. E.g., Goldblatt v. Hempstead, 369 U.S. 590 (1962).
34 Sincerely yours,
34 Frederick N. Ferguson
34 Acting Solicitor
35 Senator CHURCH. In strip mining we started with coal. Obviously it was the greatest
need and it formed a part of the energy package that occupies the new administration and has
occupied the Congress for some time, and we have had problems enough getting a strip mining
bill for coal enacted into law. But beyond that, there are other forms of strip mining.
35 In our own State, Mr. Secretary, you know about the phosphate mines. We once had a
problem when a molybdenum open pit mine was threatened at the base of a very beautiful
mountain in Idaho. What view do you take with regard to strip mining legislation of this kind as
it may be applied to other minerals in the future?
35 Secretary ANDRUS. Mr. Chairman, I hope that it will be applicable to other minerals in
the future, Senator. But I believe as far as we can say with certainty here this morning, and
hopefully the legal research you requested will clarify another portion of it, that there are some
areas that have other values including Castle Peak, as you pointed out. Some of your colleagues
are aware of that area, some are not, but here is a situation where I believe simply because coal or
a mineral happens to be geographically located there does not mean that we should extract it.
You have to have a balanced resource program that will protect some of this.
35 If you choose you can utilize the terminology to let somebody else make that decision 50
years from now or 100 years from now. It is not a lockup. It is saving for somebody else to
make that determination.
35 Right now, Senator, we have vast amounts of coal, both in the East and the West. They
are in such quantity I don't think we have to destroy the beauty that you have so well described
here this morning and in the past.
35 Senator CHURCH. If we manage to enact this strip mining bill for coal and our
experience with it proves it to be workable and highly desirable legislation, then will you work
with this committee to extend the regulation of open pit and strip mining to other minerals?
35 Secretary ANDRUS. Yes, sir; I will.
35 Senator CHURCH. I think that is all, Mr. Chairman.
35 Senator METCALF. May I say to the Senator from Idaho, the chairman of this committee
is certainly aware of the problems that he raised. I remind the Senator from Wyoming, we held a
hearing in Wyoming on uranium, and the problems of surface owners' rights and so forth were
considerable.
35 We have problems under the mining law of 1972 and each of these areas may present
different solutions.In fact, it is my intention before this Congress adjourns to also hold hearings
on what happens in quarries, in borrow pits, et cetera. Some of the greatest scars left on the
American landscape are there because we failed to take care of those seemingly nonessential
programs.
35 But surface mining is most urgent. I don't think we consider we are setting any precedent
for hard rock mining, for molybdenum and copper, for example. I don't know what we are going
to do about the Berkeley pit, something like that gnawing away at the city of Butte. But we will
take those up after we have solved this problem. I am delighted you have brought this up. I
know Secretary Andrus will cooperate with us.
36 Senator Hansen.
36 Senator HANSEN. Thank you, Mr. Chairman. Mr. Secretary, let me express my pleasure
with your appearance here this morning and particularly note the background you bring to this
very important national post you hold, that is, having served as Governor of the sovereign State
of Idaho for three terms.
36 My first question deals with the State versus Federal responsibility in this area. As you
know, four States, including Wyoming, North Dakota, Utah, and New Mexico, have entered into
agreements with the Department whereby the State laws will apply, and I think it would be fair to
note the State of Wyoming has probably gone farther in this regard than the other States although
I have not had the opportunity personally to examine those agreements. But would it be your
thought that this approach recognizes the diversity of conditions and situations and is the kind of
cooperative agreement you might want to promote and continue?
36 Secretary ANDRUS. In response to the Senator's question, the concepts are certain, as
mentioned by Senator Hatch, I would like to see the States have the ability and then the right to
participate in the regulatory measures in this regard.
36 I have not personally looked at those documents that were signed the last week or the
week prior to my coming into office, but the concept I concur with. As I mentioned in my
testimony rather than just a blanket situation where they can request to have the program, I think
it would be well if the Department of Interior had the opportunity to enter into a contract with
them, because of the very point you bring out, the diversity of the various States.
36 If I may enlarge upon this and also answer the question posed by your colleague from
Utah, one of the reasons we have to have a national strip mining bill is so that one State will not
be in a position to take economic advantage over another State.But I would prefer to provide
States with the capacity to handle the regulatory portion.
36 It was pointed out by Senator Bumpers, Senator Johnston, and Senator Melcher, if we do
not have national guidelines, we do not protect the operators, where one would have an economic
advantage over another.
36 Senator HANSEN. Your concern -
36 Senator METCALF. I want to interrupt here, Senator.Mr. O'Leary, if you want to
comment or have any additions to the statements, please do so. The questions are addressed to
both of you at the same time.
36 Senator HANSEN. Thank you very much, Mr. Chairman. The chairman is quite right. I
would welcome it, in case you think additional observation by either of you may be indicated at
any time to make that observation.
36 I think the concern you expressed in your prepared statement was that competitively there
may be later on an effort made by one State to lower its standards, to reduce its requirements, and
the performance that might be expected so as to gain an economic advantage over another State.
My question to be precise is this: If a State equals or exceeds the requirements in the Federal law,
then would you be willing to leave with that State the administration and enforcement of the law?
37 Secretary ANDRUS. Mr. Chairman, yes, sir. And I concur it should be on Federal lands
as well as other lands, all lands with coal in the State with the single proviso the Department of
Interior enters into that contract and makes certain those standards are upheld. We don't intend to
have two, one following the other.
37 Senator METCALF. Do you envisage any constitutional problems involved with
delegation of authority over Federal lands to the administration of State agencies?
37 Secretary ANDRUS. No, sir; I do not.But I would yield to my colleague.
37 Mr. O'LEARY. Senator Metcalf, I was instrumental in the New Mexico agreement in my
capacity as Director of Energy Resources there. We carefully reviewed that situation. There was
no problem. Indeed, it was contemplated the regulations issued by the Secretary of the Interior,
following the August 4 amendments to the Mineral Leasing Act. In our view, there simply is no
conflict.
37 Senator METCALF. If the Senator from Wyoming would continue to yield for just a
moment.
37 Senator HANSEN. I would be happy to.
37 Senator METCALF. Under the constitution, the control and administration of any Federal
land is vested in the Congress.Congress has traditionally delegated that administration and that
control to the Secretary of the Interior and other people. We had never delegated it until we
passed the Coal Leasing Act last year, over the President's veto when we did delegate
considerable control to the States, and that is why I wanted the record to show it is a
constitutional precedent to delegate that control to the administration of the various State
agencies, provided they meet the standards established by the congressional act.
37 Mr. O'LEARY. Mr. Chairman, there is a prior precedent. Under the Atomic Energy Act
there was constructed the so-called State agreements plan. Under those State agreements there
could be delegation of the responsibilities of the Atomic Energy Commission - now, of course,
the Nuclear Regulatory Commission - on the basis of comparability. It was precisely that
precedent that we cited in the discussions that led to the congressional approvals for the
delegations to the States.
37 I think the principle we have to note there, both with regard to activity on the Federal
lands under the Mineral Leasing Act and under this statute, when it is passed, is one of
comparability. I don't think we can stand a situation in which the responsibility is passed off to
the States without very careful audit of State activities.
37 Senator METCALF. I am not sure your second analogy is completely in point. I think the
analogy in the coal leasing act is in point. I wonder if you, Mr. Secretary, and you, Mr.
Administrator, would include a brief summary of your opinion when you supply the material for
Senator Church? I think this is a very important matter to both Senator Hansen and to me, this
business of setting a precedent to give the States control of the administration and supervision of
Federal as well as non-Federal and private lands.
37 Secretary ANDRUS. Mr. Chairman, it shall be done.
37 Senator METCALF. Thank you, Senator, for yielding.
37 Senator HANSEN. You are welcome, Mr. Chairman. My next question has to do with
abandoned mine reclamation. Two proposals have been discussed. One is to establish a fund
from Federal royalties and the other proposal would establish the fund by levying fees on all
mined coal. As you know, last year one of the bills that was passed was the BLM Organic Act
and it contained a provision that was directed to bring relief to those hard-hit communities where
an explosion of activity occurred in the development of energy which we know quite a lot about -
all too well in my State of Wyoming - to provide front-end money so the towns that are called
upon to provide extra services, extra facilities, and to do planning, can afford it. Under the bill as
it first passed the Senate, 60 percent of those royalties would have been given back to the States
for the social and economic impact problems. Finally, out of the compromise of the House and
Senate, it was scaled down to 50 percent. Those funds come from Federal royalties.
38 What way do you think the reclamation of abandoned mines should be paid for? Do you
think from royalties or from a tax on the coal or a fee on the coal?
38 Secretary ANDRUS. Mr. Chairman, in response, there is room for discussion in that area.
If you are asking which one I would prefer, it is a fee on the coal. Then you are in a position
where the people who are actually profiting from the extraction of that coal are building a fund
for the reclamation and I think that is the fairest way to guarantee the funds will be available for
that purpose.
38 Senator HANSEN. Would you care to comment?
38 Mr. O'LEARY. Yes, Mr. Chairman. I would like to support that. We have taken a look,
of course. There is a commitment of 50 percent. We think it would be unfortunate if that were
to be diluted. All in all, this is a matter of internalizing some costs that have not so far been
borne by the coal operations. We think the tax approach is appropriate.
38 Senator HANSEN. I appreciate your comments. With respect to reclamation, one of the
most severe programs we had, at least in Wyoming, as we contemplate the damage that has
resulted and continues to result from abandoned coal operations, both surface mining operations
and underground mining operations, is the subsidence that occurs in several Wyoming towns.
Rock Springs, for example. We have had some very critical problems develop out there. As a
consequence, the Bureau of Mines undertook a pilot project to see what could be done in
back-filling these mine voids under the city with slurries.
38 The problem has many dimensions. It may result in gaslines being disrupted with the very
great unlikelihood of an explosion occurring, with people being killed by fumes, it may result in
sewerlines being broken and the pollution that would result, waterlines being broken, and
powerlines also being broken, to say nothing of the more obvious effects which subsidence
brings, with one side of a house going down, the foundations cracking, and this sort of thing.
38 Would it be your thought or how do you assess - let me ask it this way - what do you
assess to be the most important first priority we should consider in land reclamation? On the one
hand, if I could take an additional moment, it is the obvious desolation that results from the
surface mine operation where the land has been torn up and left in a very unpleasing state that
often times results in unproductivity and in the East has resulted in some other problems as well,
and the problem of subsidence in cities.
39 We have a little taste of it in the West. It is a very common problem. The eastern towns,
Pennsylvania, West Virginia, as examples.
39 Mr. O'LEARY. Mr. Chairman, I, of course, have been exposed to this problem for a long
time. The pilot program Senator Hansen referred to was one he and I worked out when I was
Director of the Bureau of Mines. It seems to me past coal mining operations have done a variety
of community damage. We have had coal mine fires by the hundreds in Appalachia. Now a
growing number in the West that ought to be controlled. We have a very expensive fill we built
outside the city of Scranton, something approaching the size of the Panama Canal, 600 feet
across, 300 feet deep, which we filled with fire retardant material to literally save the city of
Scranton. I think that must be addressed. Burning calm banks, both in the East and in the West
are a problem that has to be addressed. We really can't take the narrow focus of strip mining to
cure coal mining ills.
39 It seems logical we ought to take a look at the full sweep of environmental damage
attributable to past coal mining operations and attack it on the basis of priorities. Where, for
example, public health and safety is in danger, as it is in the case of an underground fire in the
substrata underlying a town. It seems to me those things call out for priority.
39 Senator HANSEN. You share those views?
39 Secretary ANDRUS. Mr. Chairman, in response I would agree and add to the point. You
have a situation where some of the reclamation money is to be distributed within the States and
the States will be involved in that decisionmaking process as to where they choose to spend it. It
does not revert to the other fund for 3 years.
39 There are two bills that are generally discussed and I don't want to discuss the wrong one
in this chamber, but the State would have a say-so in that fund.
39 Senator HANSEN. I have one question that relates to the first one. That is, as I
understand the provision in S. 7, is there shall be levied a fee of 35 cents a ton on coal surface
mined and 15 cents a ton on coal extracted by underground mining operations. I would observe
in addition to the possibility of fire, which always is an always present danger - any time there are
mine voids left in underground mines, sooner or later the likelihood is it will cause a fire - in
addition to destroying a finite resource, there is the immediate and personal danger that
asphyxiation can occur and lots of things can happen. With that additional thought in mind, and
also with the concern we have for victims of certain occupational diseases such as black lung,
and there have been bills introduced which would place the responsibility on the government to
conclude, first, anyone who has worked in an underground mine for a certain period of time
would have black lung and would be eligible for benefits under that bill, does it seem fair and
appropriate that there should be a differential in the contribution that coal mined underground
would make, as compared with surface-mined coal?
39 Mr. O'LEARY. I will give you my view, Mr. Chairman. I think the results of
underground mining, over time, are more pernicious than are the results of strip mining. The ills
of strip mining in most situations can have a 100-percent cure, given time. Underground mining
poses a different problem, however. In your own town of Rock Springs, the cause of damage
that is occurring now was created by actions taken 4 years ago. In time, when you disturb the
subsurface it will go back to resonance after a long period of crumbling and falling. It seems to
me that to make the distinction that is in the legislation is something we ought to look at very
carefully before we cast it in concrete.
40 Senator HANSEN. Mr. Chairman, I have some other questions. I realize I am taking a lot
of time. I will yield to some of the other Senators present so they can go ahead with their
questions and then we will come back.
40 Senator METCALF. Thank you. The Senator from Louisiana.
40 Senator JOHNSTON. Thank you, Mr. Chairman. First, Mr. Secretary, let me say on one
detail of the bill, you say we ought to amend section 410(b)(5) with respect to alluvial valley
floors. Let me suggest the provision which we had in the bill, on page 59 of the bill, was
hammered out after a great deal of thought and I would suggest is a great deal tighter than the
proposed language.I simply mention that is suggested.
40 If what we are going to do is protect the existing mines, I think we could do that without
that language. I simply mention that so we can get the lawyers to go back and see that it is the
most tight.
40 I wonder, Mr. Secretary, if the administration has a position yet on coal slurry pipelines?
40 Secretary ANDRUS. Mr. Chairman, Senator, the answer is no for some of the reasons
brought up here by some of your colleagues. Frankly, Mr. Chairman, my feet have not touched
the ground that frequently to have that opportunity to get into that because of preparation for this.
40 I will tell you in response to the question you have the water problem, as Senator Bumpers
was talking about, but the input at the other end as to where you would extract it, and those items
have to be looked at. The answer to your question is no, sir, we have not yet taken a position on
that as yet.
40 Senator JOHNSTON. When I suggested it, I thought this issue and that were related. I
certainly don't want to kill this bill. I think last Congress it was my amendment that saved the
bill. I don't want to take that much credit for it. It could have been killed. I am no more anxious
to be a stumbling block now than I was then. But it seems to me these issues are related. I think
we have plenty of votes. We passed the coal slurry pipeline in the Senate handily last time. We
passed this bill handily. We had the votes to override the veto in the Senate.
40 I would hope the administration would take a look at that issue.I think it is much more
vital now than ever. We have got to get that coal down to where it is going to be burned.
Notwithstanding the fact that some people say we have got plenty of gas, I would suggest the
evidence is clear: We are running out. We don't have enough right now and we are running out of
that which we had and we better find an alterative fuel. To have that alternative fuel, I think our
only choice is coal.
41 I don't believe trains can handle the whole job. I think we need all we can build. But
even that is not going to be enough. We are going to have pipelines and trains, and I think we
can do it in an environmentally sound manner.
41 I would hope the chairman would look at this bill as appropriate for that and recognize we
could pass both, I think, with substantial margins.
41 Senator METCALF.I hate to disabuse the distinguished Senator from Louisiana, but this
Senator is opposed to putting prohibitions against mining phosphates in National Parks,
prohibitions or proposals for research and development centers in institutions throughout the
United States, or surface mining controls in other minerals, as a part of this legislation. I would
hope the Senator from Louisiana would take the assurances of the Senator from Montana that
those matters would be carefully and thoroughly considered in separate legislation. He will have
his opportunity, as he did in the last Congress, to have his views expressed in legislation.
41 I am concerned about putting additional material into the bill. I am prepared to make a
point of order on the floor if we can hold it in committee, against any legislation that is
amendatory to this bill, insofar as it relates to anything other than coal.I understand his concern,
and I give assurances to the Senator from Louisiana that we will get on with some of these other
issues just as soon as we can get rid of this legislation.
41 I am delighted to have Senator Hatch with us today and have him participate in a first
hearing of this subcommittee. I know the State of Utah is very much concerned. I will be
pleased to have you question our new Secretary of the Interior.
41 Senator HATCH. I do have some questions, Mr. Secretary and Mr. O'Leary. When
President Ford vetoed the Mining Act of 1975, he gave, among other things, a number of
statements. Let me just read a few of them.Then I would like to ask questions.
41 He said:
41 I am returning today without my approval the Surface Mining Bill and Reclamation Act of
1975. I am unable to sign this bill because, one, as many as 36,000 people would lose jobs while
unemployment is already too high; two, consumers would pay higher costs, particularly for
electric bills when consumer costs are already too high; three, the nation would be more
dependent on foreign oil when we are already overly dependent and dangerously vulnerable;
four, coal production would be unnecessarily reduced, and our domestic resources needed more
than ever.
41 Then he said this:
41 The Department of the Interior and the Federal Energy Administration now advises me if
this bill were to become law, a production loss of 40 to 162 million tons would result in 1977.
This would mean that six to 24 percent cent of expanded 1977 coal production would be lost.
Actually production losses resulting from this bill could run considerably higher because of
ambiguities in the bill and uncertainties of many of its provisions.
41 Such strong language, considering the dramatic impact suggested, irrespective or agencies,
have you made any analyses which disprove President Ford's assertions which he stated came
from your agency?
41 Secretary ANDRUS. Mr. Chairman, I would like to respond to that by referring to its
context and then addressing the substance of the question of the Senator from Utah. In all
fairness, I think we have to recognize that those statements were made as arguments about a bill
which was being vetoed. In past history, when I was Governor, I vetoed a few of them and I used
the strongest possible language I could get my hands on. I think that has to be taken into
consideration.
42 But it is not this administration's feeling that it will decrease coal production or that it will
increase unemployment. My colleague here, I know, has figures he will give you in a moment. I
would also point out that testimony notwithstanding - I can't bring you back the date, but I can
procure it for you - the testimony of the Secretary of the Interior in the previous administration
testified before this committee, or the House committee, pointing out the passage of this bill
would not cause substantial or any increase in unemployment or decreases in production. I yield
to my colleague for some figures on unemployment.
42 Mr. O'LEARY. Mr. Chairman, I have a copy of a report that was prepared by ICF, Inc.,
for the Council on Environmental Quality, which will be available to the committee if the
committee does not have it already in draft form. It is my understanding this was rushed in
preparation for this hearing.
42 Senator METCALF. Do you want this report in the record?
42 Mr. O'LEARY. It is useful.
42 Senator METCALF. It will be incorporated into the record.
42 Senator HATCH. We have not only the one of February 1, 1977, but also the draft of
January 24, 1977.
42 Senator METCALF. That will also be incorporated.
42 [The material referred to above appears on the following pages.]
43 DRAFT FINAL REPORT
43 ENERGY AND ECONOMIC IMPACTS OF H.R. 13950
43 ("SURFACE MINING CONTROL AND RECLAMATION ACT OF 1976," 94th
CONGRESS)
43 Submitted to the Council on Environmental Quality and Environmental Protection Agency
43 Contract No. EQ6AC016
43 January 24, 1977
44 INTRODUCTION
44 The Environmental Protection Agency (EPA) and the Council on Environmental Quality
(CEQ) have expressed concern about the environmental damage that occurs when land is surface
mined without adequate reclamation. Thus, EPA and CEQ have continually supported the need
for uniform national surface mine legislation. EPA and CEQ are also aware of the potential
impact that strip mine legislation could have on the coal industry and on the Nation's program to
become less dependent on foreign sources of energy. For these reasons, EPA and CEQ
contracted with ICF to develop a methodology to quantify the economic and energy impacts of
strip mine legislation. Although most of the analysis in this report focuses upon the specific
provisions of the Surface Mining Control and Reclamation Act of 1976 (H.R. 13950), the
analytical framework has been structured in a manner that would allow the analysis of the
impacts of alternative surface mining reclamation provisions.
44 In several parts of this analysis, complete and accurate data did not exist. Further, the
methodologies developed were often only approximate in the accuracy of the results rendered.
Accordingly, the findings of this analysis should be interpreted; no undue weight should be given
to any particular n number.
44 When judgments were necessary in conducting the analysis, we believe they were
objectively made. However, when a range of judgments was possible, values were selected that
would tend to exacerbate the adverse impacts. Hence, if a bias exists, we believe it is toward
overstating impacts.
44 This bill contains many sections which do not directly affect the coal mining industry,
such as those sections relating to State Mining and Mineral Resources and Research Institutes,
various administrative provisions, and Designation of Lands Unsuitable for Non-Coal Mining.
Since this analysis is concerned primarily with impacts to the coal industry, the focus is directed
toward provisions which could result in increased coal mining costs, coal price increases, coal
production impacts and coal reserve base impacts.
44 SUMMARY OF MAJOR CONCLUSIONS
44 The findings of this analysis indicate that the costrelated impacts due to H.R. 13950 are
generally not great. These cost impacts are not likely to significantly affect national coal
production, coal consumption, coal prices, employment, or electricity prices. However, there are
numerous provisions in H.R. 13950 not directly related to costs which could create major
difficulties. Such impacts include (1) substantial production impacts that could result from
possible interpretations of the alluvial valley provisions, (2) delays in permitting due to inability
to comply within established timetables and/or insufficient administrative funding, (3) extensive
litigation resulting from ambiguous and undefined terms, (4) unintended effects due to
mismatches between the apparent intent and the actual wording, and (5) losses to the coal reserve
base.
45 H.R. 13950 would establish surface mining and reclamation requirements applicable
throughout the Nation. However, many of these requirements already exist in state laws and
regulations in the coal mine operating regulations for federal coal leases.Accordingly, the
incremental law presented by H.R. 13950 varies among states, and in some states, is quite small.
45 Since many of the performance standards of H.R. 13950 are often found in existing state
laws and regulations, the cost impacts in many states are not great. In most non-Appalachian
states, the incremental costs are less than $0 .75 per ton (1978 dollars). In Appalachia, cost
increases are generally between $0.50 and $2 .00 per ton except in Alabama and Virginia, where
costs for some mine-types could increase by over $4 .00 per ton. For purposes of this analysis, it
was assumed the bill was enacted in January 1977. Hence, it was assumed these cost increases
would first be incurred in 1978.
45 The production and energy impacts associated with these cost increases are not great. If
there were no increase in market prices in 1978, net production curtailments in 1978 are
estimated to be 22.0 million tons, all in Appalachia. If the market prices increased by $1 per ton
in Appalachia in 1978, the net production curtailments would be reduced to about seven million
tons. However, these production curtailments would not affect overall coal consumption in
1978, since consumers could meet the shortfall by drawing down existing coal stocks. There
would be no net production curtailments in 1979 or thereafter, because market prices would
increase by 1979 to stimulate the required additional production.
45 Another production imapct of H.R. 13950 would be to change the regional distribution of
production. Production in areas with relatively large additional reclamation costs would either
fall or not increase as rapidly as production in areas with small projected increases.
45 The projected price impacts resulting from the performance standards of H.R. 13950 are
projected to be about $1/ton by early 1979 in Appalachia and the Central West, and $.5 50/ton in
the rest of the Nation. These increases would increase the average residential consumer's
electricity bill by a maximum of one percent per year.
46 The net direct employment impacts (i.e., lost jobs due to production curtailments minus
new jobs due to increased reclamation) in 1978 could be a loss of about 1,400 jobs in surface
mining in Appalachia, if the net production curtailments were 22 million tons. If the
curtailments were lower, the net direct employment impacts would be lower. However,
additional jobs would be created in both government and industry to implement the legislation
and conduct the studies required for permit applications. In 1979, when there would be no net
production curtailments, direct surface mine employment would be increased due to the
increased reclamation activities.
46 Although the cost-related provisions of H.R. 13950 do not appear substantial, the
imprecise wording of other provisions do present potentially significant impacts.These impacts
are generally not related to cost, but could serve to restrict production and reserves under certain
conditions.For example, while a moderate interpretation of the alluvial valley floor provisions
could affect four mines with an additional production in 1978 of 12 million tons, a worst case
interpretation could impact up to 51 million tons of western production by 1978 and 211 million
tons by 1985.
46 In addition there are several other non-cost provisions in H.R. 13950 in which the wording
of the provisions could have effects quite different from the apparent Congressional intent. In
most cases, the intent of the provision would have little cost or production impact. However, the
actual wording could result in unnecessary restrictions, administrative inflexibility, and/or
additional litigation. Examples of these provisions include the amount of time allowed for
compliance with permit requirements and performance standards, the grandfather clause for
mining on alluvial valley floors, specification of the technology to control sedimentation, and the
provision for declaring lands unsuitable for mining.
46 The reserve impacts of H.R. 13950 could range between 8.5 and 28.3 billion tons, or
between 2.0 and 6.5 percent of total reserves. These impacts are equivalent to between 6.2 and
20.7 percent of strippable reserves. It should be noted that these impacts would not affect the
cost or regional distribution of coal production until the mid-1980's at the earliest.
46 These findings will now be presented in greater detail.
47 DRAFT FINAL REPORT
47 ENERGY AND ECONOMIC IMPACTS OF H.R. 13950
47 ("SURFACE MINING CONTROL AND RECLAMATION ACT OF 1976," 94th
CONGRESS)
47 Submitted to the Council on Environmental Quality and Environmental Protection Agency
47 Contract No. EQ6AC016
47 February 1, 1977
48 INTRODUCTION
48 The Environmental Protection Agency (EPA) and the Council on Environmental Quality
(CEQ) have expressed concern about the environmental damage that occurs when land is surface
mined without adequate reclamation.Thus, EPA and CEQ have continually supported the need
for uniform national surface mine legislation. EPA and CEQ are also aware of the potential
impact that strip mine legislation could have on the coal industry and on the Nation's program to
become less dependent on foreign sources of energy. For these reasons, EPA and CEQ
contracted with ICF to develop a methodology to quantify the economic and energy impacts of
strip mine legislation. Although most of the analysis in this report focuses upon the specific
provisions of the Surface Mining Control and Reclamation Act of 1976 (H.R. 13950) n1, the
analytical framework has been structured in a manner that would allow the analysis of the
impacts of alternative surface mining reclamation provision.
48 n1 The complete text of H.R. 13950 (as reported August 31, 1976), is reproduced in
Appendix G.
48 In several parts of this analysis, complete and accurate data did not exist.Further, the
methodologies developed were often only approximate in the accuracy of the results rendered.
Accordingly, the findings of this analysis should be interpreted; no undue weight should be given
to any particular number.
48 When judgments were necessary in conducting the analysis, we believe they were
objectively made. However, when a range of judgments was possible, values were selected that
would tend to exacerbate the impacts. Hence, if a bias exists, we believe it is toward overstating
impacts.
48 This bill contains many sections which do not directly affect the coal mining industry,
such as those sections relating to State Mining and Mineral Resources and Reserch Institutes,
various administrative provisions, and Designation of Lands Unsuitable for Non-Coal Mining.
Since this analysis is concerned primarily with impacts to the coal industry, the focus is directed
toward provisions which could result in increased coal mining costs, coal price increases, coal
production impacts and coal reserve base impacts.
48 SUMMARY OF MAJOR CONCLUSIONS
48 The findings of this analysis indicate that the costrelated impacts due to H.R. 13950 are
generally not great. These cost impacts are not likely to significantly affect national coal
production, coal consumption, coal prices, employment, or electricity prices.
49 However, several provisions in H.R. 13950 are subject to varying interpretations. In the
event that these terms are given very stringent interpretations, the impacts could be substantially
higher.
49 H.R. 13950 would establish surface mining and reclamation requirements applicable
throughout the Nation. However, many of these requirements already exist in state laws and
regulations in the coal mine operating regulations for federal coal leases. Accordingly, the
incremental law presented by H.R. 13950 varies among states, and in some states, is quite small.
49 Since many of the performance standards of H.R. 13950 are often found in existing state
laws and regulations, the cost impacts in many states are not great. In most non-Appalachian
states, the incremental costs are less than $0 .75 per ton (1978 dollars). In Appalachia, cost
increases are generally between $0.50 and $2 .00 per ton except in Alabama and Virginia, where
costs for some mine-types could increase by over $4 .00 per ton. For purposes of this analysis, it
was assumed the bill was enacted in January 1977. Hence, it was assumed these cost increases
would first be incurred in 1978.
49 The production and energy impacts associated with these cost increases are not great. If
there were no increase in market prices in 1978, net production curtailments in 1978 are
estimated to be 22.0 million tons, all in Appalachia. If the market prices increased by $1 per ton
in Appalachia in 1978, the net production curtailments would be reduced to about seven million
tons. However, these production curtailments would not affect overall coal consumption in 1978,
since consumers could meet the shortfall by drawing down existing coal stocks. There would be
no net production curtailments in 1979 or thereafter, because market prices would increase by
1979 to stimulate the required additional production.
49 Another production impact of H.R. 13950 would be to change the regional distribution of
production. Production in areas with relatively large additional reclamation costs would either
fall or not increase as rapidly as production in areas with small projected increases.
49 The projected price impacts resulting from the performance standards of H.R. 13950 are
projected to be about $1 per ton by early 1979 in Appalachia and the Central West, and $.50 per
ton in the rest of the Nation. These increases would increase the average residential consumer's
electricity prices by less than one percent per year.
50 The net direct employment impacts (i.e., lost jobs due to production curtailments minus
new jobs due to increased reclamation) in 1978 could be a loss of about 1,400 jobs in surface
mining in Appalachia, if the net production curtailments were 22 million tons. If the
curtailments were lower, the net direct employment impacts would be lower. However,
additional jobs would be created in both government and industry to implement the legislation
and conduct the studies required for permit applications. Although the net employment impacts
are small, there could be significant impacts within some narrow geographical areas. In 1979,
when there would be no net production curtailments, direct surface mine employment would be
increased due to the increased reclamation activities.
50 Although the cost-related provisions of H.R. 13950 do not appear substantial, some key
provisions may be interpreted differently. In the event that these provisions receive a very
stringent interpretation, production impacts may be greater. These impacts are generally not
related to cost, but could serve to restrict production and reserves under certain conditions. For
example, while a moderate scenario of the alluvial valley floor provisions could affect four mines
with an additional production in 1978 of 12 million tons, a high impact interpretation could
impact up to 25 million tons of western production by 1978 and 104 million tons by 1985.
50 In addition there are several other non-cost provisions in H.R. 13950 in which the wording
of the provisions could result in additional restrictions, administrative inflexibility, and/or delays.
In most cases, the intent of the provision would have little cost or production impact. Examples
of these provisions include the amount of time allowed for compliance with permit requirements
and performance standards, the grandfather clause for mining on alluvial valley floors,
specification of the technology to control sedimentation, and the provision for declaring lands
unsuitable for mining.
50 The reserve impacts of H.R. 13950 could range between 8.1 and 24.0 billion tons, or
between 1.9 and 5.5 percent of total reserves. These impacts are equivalent to between 5.9 and
17.6 percent of strippable reserves. It should be noted that these impacts would not affect the
cost or regional distribution of coal production until the mid-1980's at the earliest.
50 These findings will now be presented in greater detail.
51 Mr. O'LEARY. I have the draft report of February 1. We will see you get all of the
material here.The conclusion is there will be some but very small unemployment impacts, but
very small loss of production.
51 I think a lot of these estimates have to do with impact on price. There are some who feel,
to the extent you increase the price, that some of the utilities now using coal will drop off the
vine, so to say. In all likelihood, when you recognize that in Appalachia coal competes with coal,
there will probably be some mix from point to point where the coal comes from. But I really
doubt we are going to find a measurable drop in employment as a result of passage of this
measure.
51 Senator HATCH. Gentlemen, I have not read the draft of the final report, but an
independent company, which was called in to make an analysis of the energy and economic
reports of House report of H.R. 13950, which is virtually the same as S. 7, that is dated January
24, 1977, page 1, a summary of conclusions - I realize you don't have this, maybe I could just
make these points - various conclusions were reached.
51 I a