April 24, 1978 Hearing
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Legislative History April 24, 1978 Hearing |
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1 MONDAY, APRIL 24, 1978
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 10:10 a.m., in room 6226,
Dirksen Office Building, Hon. Dale Bumpers, presiding.
1 Present: Senators Bumpers, Ford, Melcher, Hansen, and McClure.
1 Also present: Norm Williams, professional staff member.
OPENING STATEMENT OF HON. DALE BUMPERS, A U.S. SENATOR FROM THE STATE OF
ARKANSAS
1 Senator BUMPERS. This is an oversight hearing to review the
implementation of Public Law 95-87, the Federal Surface Mining Control and
Reclamation Act. It was signed into law August 3, 1977. The Subcommittee on
Public Lands and Resources of the Energy and Natural Resources Committee has
oversight responsibility in this case.
1 We have invited the heads - or their representatives - of four Federal
agencies which share statutory authority under the law to testify this morning
regarding the problems and progress they are experiencing in carrying out their
respective responsibilities.
1 We are aware of the unfortunate delay resulting from the failure to
appropriate funds to the Department of the Interior for establishing the Office
of Surface Mining Reclamation and Enforcement and for taking other essential
actions to bring the new law into effect. On a previous occasion members of
this subcommittee have questioned whether the Office of Surface Mining would be
ready to enforce compliance with the performance standards within the deadlines
set forth in the law. Since then, the funds have been made available, but there
may be further discussion of this question today.
1 In addition to the oversight concerns, there are two bills now pending
before the subcommittee which are intended to increase funding levels for the
Office of Surface Mining. S. 2762
1 Senator FORD. I still remember it as 1863.
1 Senator BUMPERS [continuing]. Introduced by Senators Ford and Huddleston,
would authorize increased funding for the small operator assistance program
under section 401(b) of the act. The other bill was introduced by Senator
Jackson on behalf of the administration, S. 2463. It would authorize increased
funding for State grants and Federal interim program enforcement. We are
interested in learning the Department's position on this legislation.
2 I will ask the Interior Department to lead off, followed by the
Department of Agriculture, the Department of Energy, and the Council on
Environmental Quality.
2 Senator Hansen.
STATEMENT OF HON. CLIFFORD P. HANSEN, A U.S. SENATOR FROM THE STATE OF
WYOMING
2 Senator HANSEN. Mr. Chairman, if you wouldn't mind, I would like to
make an opening statement that may possibly be of some help to the Secretary and
Mr. Heine.
2 I welcome this opportunity to hear from the respective agencies the
status, the problems, and implementation in Surface Mining Reclamation Act. I
note that many sections are under litigation, and I have glanced at this 30-page
brief - if the law is constitutional.
2 In anticipation of these hearings, I have asked several people if they
have questions for you. I asked - Department of Environmental Ecology - with
the agency which is enforcing an amendment to the Federal law in Wyoming. I
asked the mining industry, along with the Powder River Basin Resource Council.
These questions are now submitted, and answers may be provided for the record.
I would hope the responses would be made promptly. I am appreciative of Mr.
Heine's and Secretary Andrus' assurances that this law indeed gives the State
the right and responsibility of carrying out the many purposes of the act.
2 I was happy to see Wyoming adjust its strip mining law this last session
to be ready to assume this role. Wyoming may very well be the first State to
have an approved program fully operational and staffed.
2 I was privileged to work closely with the late Senator from Montana, Lee
Metcalf, in helping to assure that the bill reflected the State's desire to run
its own program.
2 Finally, Mr. Heine, let me repeat, has your agency gone West? Have you
selected persons in decisionmaking levels who have knowledge of questions, strip
mining, and reclamation?
2 Mr. Chairman, I do have a number of questions. I shall hold them until
later. I appreciate the opportunity to say these words. Thank you.
2 Senator BUMPERS. Secretary Davenport, welcome back. Please proceed.
2 Ms. DAVENPORT. Thank you, sir.
2 Senator BUMPERS. Mr. Heine, why don't you go ahead and testify. and then
we will take on both of you with questions.
STATEMENT OF HON. JOAN M. DAVENPORT, ASSISTANT SECRETARY FOR ENERGY AND
MINERALS, DEPARTMENT OF THE INTERIOR, ACCOMPANIED BY WALTER N. HEINE, DIRECTOR,
OFFICE OF SURFACE MINING
2 Ms. DAVENPORT. Thank you, Mr. Chairman. Mr. Chairman and members of
the committee, I am pleased to be here with you this morning to discuss the
surface mining program initiated by Public Law 95-87, the Surface Mining Control
and Reclamation Act of 1977. As Assistant Secretary of the Department of the
Interior for Energy and Minerals, I have general oversight of the Office of
Surface Mining and its programs. I am accommpanied today by Mr. Walter Heine,
the Director of the Office of Surface Mining, who will present a more detailed
statement of accomplishments to date. We also have key members of the Surface
Mining Office with us as well as our Associate Solicitor for Surface Mining,
should any legal questions arise.
3 As you know, the Surface Mining Control and Reclamation Act was signed
by President Carter on August 3, 1977. The Department was active in preparing
for the initiation of this new program even before enactment of the legislation.
In February of 1977, we created an interdisciplinary task force within the
Department to work with Congress as it considered this important legislation and
to make preparations for implementation as it became apparent the bill would be
enacted. Actual staffing of the Office of Surface Mining was, as the chairman
has noted, delayed as funding was not available until early 1978. However, we
did achieve many important steps between August 1977 and February 1978. Among
these were:
3 1. The issuance of regulations for the interim program as required by
section 502 of the law. These regulations were promulgated on December 13,
1977, after extensive public input and comment. A compatible set of regulations
were issued by the Bureau of Indian Affairs for Indian lands also in December.
3 2. The Office of Surface Mining has had extensive discussions with all
interested parties including States, industry, and public interest groups,
relating to the implementation of the regulations. Public hearings were held in
Denver, Colo., Charleston, W.Va., St. Louis, Mo., and Washington, D.C.
3 3. During this period of time, the Office of Surface Mining developed
close working relationships with several agencies and groups throughout the
country to facilitate implementation of some key provisions of the program. For
example, with the aid of the Appalachian Regional Commission, the States, the
Bureau of Mines, and citizens groups, we were able to compile an initial list of
areas which may meet the first priority for expenditure of the Abandoned Lands
Funds. We have also begun negotiations for a number of key studies, such as the
Alaska study required by section 708 of the law.
3 4. The Office of Surface Mining has identified and recruited many key
personnel needed to operate the program. Even though we were delayed in
obtaining permanent staff, we were able to obtain the services of many
individuals through loans from other agencies and departments or through
consulting contracts.
3 5. The Office of Surface Mining has established working relationships
with the major coal-producing States to try to facilitate the inclusion of
Federal mining standards into State regulatory programs.
3 Upon receipt of our appropriations, the Office of Surface Mining has moved
forward quickly and purposefully. Four Assistant Directors have been named and
appointed. The first group of Federal inspectors have been recruited. These 29
individuals have recently completed a training program at Madisonville Community
College in Kentucky. We have designated the locations of our five regional
offices, and the inspection personnel will be stationed in those regions. We
are moving rapidly to fully staff these regional offices.
4 The Office of Surface Mining has been working closely with the States to
assist them in improving their inspection capacity. More than two-thirds of the
States which have coal mining have submitted applications for grants to cover
the costs they will incur in applying the Federal surface mining standards.
This upgraded capacity will contribute directly to the States' ability to assume
prime responsibility for design and implementation of permanent State programs
for enforcement. The first grant for this purpose was awarded to North Dakota 2
weeks ago, and more grants will be awarded in the coming weeks.
4 In the abandoned lands area, we expect to be able to identify the first
projects within the next weeks. We have given priority to those situations
where abandoned minesites constitute serious threats to public health and
safety. This is, of course, required by the legislation itself. Teams are
today in the field assessing the extent of such danger and identifying the most
practical means of abating it. The sites under active consideration are from
the list submitted by public and private organizations.
4 The next few months will witness the buildup of the Office of Surface
Mining to its approved strength. Through the able guidance and administration
of Director Heine, we expect the Office to be fully operational by the end of
the summer. We believe we are attracting individuals with strong management
capabilities and necessary skills to effectively and efficiently implement this
program.
4 The Office of Surface Mining is facing a number of key deadlines in the
next year. The statute requires that the final program regulations be
promulgated by August 3, 1978. Although we are making every effort to come
close to this date, realistically it does not appear that we will meet it. We
are actively working on those regulations and on the environmental impact
statement which must accompany them through the decisionmaking process. I would
expect promulgation of the final regulations in the fall.
4 While we have and will continue to make every effort to meet the dates
required by the law, the lateness of our funding has retarded our efforts.
Under the terms of the statute, all new mines were required to conform to the
regulations promulgated in December 1977 by February 4, 1978. All existing
mines are under the obligation to comply with those regulations by May 4, 1978.
4 We and the States are committed to the inspection program which will be
needed to achieve compliance with those regulations. Any lateness in the
promulgation of the final program would not justify delays in implementation of
the interim program which, by itself, abates much damage caused by noncomplying
mining practices.
4 Our implementation of title III is now progressing on an expedited
schedule. We anticipate that 20 State Institutes will be designated by the end
of this fiscal year and that we will have dispensed the grant moneys available
to those institutes.
5 We are grateful that the Congress has given us the tools to protect our
land and water from unacceptable mining practices. We are firmly committed to
orderly implementation of this program securing broad public input at all
appropriate phases. We are also committed to working with the States to enable
them to take over primary responsibility for enforcement of the new standards.
Our task is great. However, we believe the implementation of this program is
vital if coal is to take its proper place in meeting our nation's energy needs.
5 Senator BUMPERS. Do any other members of the committee have opening
statements? In that case, you may proceed, Mr. Heine.
5 Mr. HEINE. Thank you, Senator Bumpers. I would like to submit the
complete text of my testimony for the record and summarize some of its
highlights.
5 Senator BUMPERS. Mr. Heine, the microphone you are talking into is not a
public mike. You have to get pretty close to the microphone to be heard.
STATEMENT OF WALTER N. HEINE, DIRECTOR, OFFICE OF SURFACE MINING,
DEPARTMENT OF THE INTERIOR, ACCOMPANIED BY PAUL REEVES, RICHARD HALL, DR. DAVID
MANEVAL, AND TONY HEAD, ASSISTANT DIRECTORS; AND WILLIAM EICHBAUM, ASSOCIATE
SOLICITOR, OFFICE OF SURFACE MINING
5 Mr. HEINE. I have with me today four Assistant Directors, Paul
Reeves, Richard Hall, Dr. David Maneval, and Tony Head. Incidentally, Senator
Hansen, I know Oklahoma doesn't count as a Western State. Mr. Reeves is from
Oklahoma.
5 We also have with us today William Eichbaum, who is our Associate
Solicitor assigned to the Office of Surface Mining. As my statement indicates,
which I am submitting for the record, we were late in getting started and have
tried to make up for lost time. We analyzed our tasks and gave first priority
to what we understood were the priorities of the Congress. Our initial
regulatory program is now in place and should serve to reduce further damage to
the land and water.
5 Our first wave of senior inspectors have been recruited and trained, and
are in the field as of this morning.They are going to spend the first few weeks
working in teams with State inspection officials so that the two groups of
inspectors can get a better understanding of how each works and avoid frictions
and misunderstandings.
5 We have worked very closely with the States in developing our regulatory
programs and have made the first State grant - to North Dakota for the duties it
is assuming under our initial program.More State grants will be made in the
coming weeks. On the basis of newer information, we have concluded the full
funding of these costs being imposed on the States will require that the funding
authorization in section 712(a) of the act will have to be raised from its
present $10 million for fiscal year 1979 to $2 5 million. Legislation has been
introduced in both Houses of the Congress to achieve this.
6 This small operating program will be run in conformity with the
congressional desire. It appears likely that we will need additional funds next
year but cannot determine how much of a shortfall to expect. We suggest that
the Congress wait until we have more information before increasing the
authorized level of funds for this activity. The reduction of costs involved in
this work will be an important goal for us.
6 Our work program provides that the Minerals Institute under title III of
the Act would meet the congressional targets, We expect to be able to designate
20 such institutes and allocate all of the funds made available to us by the
Congress by the end of this fiscal year.
6 Our mineland reclamation efforts are concentrated on the most serious
hazards.Our evaluation teams are out in the field and will, by the end of this
week, make a preliminary recommendation to OSM for a decision. We anticipate
making the first firm project identification within a month or so.
6 Our relations with the States and with our sister Federal agencies are
very good. I am confident that we will not have any significant gaps or
duplications of effort. For example, we will believe that our program will
complement the efforts of the Appalachian Regional Commission fairly well.
6 We should also be able, through the help of States, to make the best
target selections to guide their share of the reclamation fees. We believe that
the Office of Surface Mining, the Soil Conservation Service and the States can
move forward effectively to capitalize on the opportunity to restore water and
land resources injured by past mining practices. I thank you very much and will
be very happy to answer your questions.
6 [The prepared statement of Mr. Heine follows:]
6 STATEMENT OF WALTER N. HEINE, DIRECTOR, OFFICE OF SURFACE MINING,
DEPARTMENT OF THE INTERIOR
6 Mr. Chairman, Members of the Committee. I am pleased to be able to be
with you today to describe how the Office of Surface Mining has proceeded thus
far and our proposed future course of conduct. This presentation parallels the
structure of the statute. With this format, I have singled out information
pertinent to the questions which the Chairman posed to us in his letter.
6 TITLE II - ORGANIZATION OF OSM
6 Obviously, the first task before us was to organize the Office created by
Section 201. As Secretary Davenport has indicated, we were late in securing
permanent staff and it has been less than two months since more than the nucleus
of our permanent complement has been on board. However, we did have many of our
key leaders in place somewhat earlier and the buildup of staff is going
reasonably smooth as a result. Many of our key people have either reported
within the last month or are only now signing on. We expect to be up to full
strength by early fall.
6 TITLE III - MINING AND MINERAL RESOURCES AND RESEARCH INSTITUTES
6 Title III authorizes creation of Mineral Institutes and a Research
Advisory Committee. As you know, the statute identifies some members of the
Advisory Committee but requires the Secretary to name four additional people,
one of whom must represent working miners. We have started the process of
allocating the remaining three slots, bearing in mind the de facto need to
include representation from universities which have mining institutes already in
operation.
7 We are actively reviewing a third draft of proposed regulations to
implement the Institute program and should have them ready for the Federal
Register in the next few weeks. At the same time, we are preparing a charter
and procedural guideline for the Advisory Committee.
7 Our present timetable calls for these preliminary actions to be complete
and the first Committee members to be selected by July 1. All Regulations and
the actions of the Committee should be completed in time for OSM to designate
approximately 20 institutes by September 30, 1978 and award all the grant funds
we have available for this fiscal year. Our present plan calls for these
institutes to concentrate on problems which are important to our program. These
would include better reclamation techniques and the quest for the least
expensive ways to do the hydrologic and test bore studies required for the small
operators.
7 TITLE IV - RECLAMATION OF ABANDONED MINE LANDS
7 Title IV is the abandoned mine reclamation program. Funds for this
program are derived from fees on coal produced after October 1, 1978. As of the
end of March, about $3 5 million has been collected. Fifty percent of the fees
are reserved for State programs in the State where they are collected, but no
State reclamation plan can be approved until a State has secured approval for
its enforcement program. Accordingly, these funds will not actually begin to be
expended by any State until late in fiscal year 1979.
7 The remaining fifty percent of the fees is available when appropriated for
various Federal programs. Thirty-six point six million has been appropriated
for the current fiscal year. Five million has been allocated to the Soil
Conservation Service for its use to reclaim rural lands. Ten million is
available for the assistance to small operators. The balance of $2 2 million is
dedicated to inventories, fee collection and reclamation projects by the Office
of Surface Mining.
7 We have canvassed the States, Federal agencies and citizens' groups for
identification of abandoned sites which, in their present condition, are active
hazards to public health and safety. This is our highest priority for project
funds available this year. We have complied a list of about 350 identified
sites from which we have selected about 33 prime candidates. We have sent teams
to some of these sites to evaluate them to determine both the dimension of the
hazard and the means to abate them. Within the next three weeks, we should be
announcing the first few projects we will undertake. This will start the
rehabilitation phase of our work and we look forward to it.
7 In this effort, we have received the help of many of our sister Federal
agencies, both within and outside the Interior Department. We have worked with
the Appalachina Regional Commission so that its prime list and ours would be
complementary. We are also working closely with the Corps of Engineers, the
Soil Conservation Service and the EPA as well as the Geological Survey and the
Bureau of Mines.
7 TITLE V - ENVIRONMENTAL REGULATORY PROGRAM
7 Title V is designed to reduce the pace of destruction of land and water by
poor mining practices and ultimately to abate such undesirable practices
altogether. Regulations for the intial regulatory program were published in the
Federal Register last December. On December 16, the Bureau of Indian Affairs
issued compatible regulations for mining operations on Indian lands.
Enforcement activities are now being performed by the Geological Survey and BIA
but will be transferred to OSM supervision as our staff capacity increases.
7 We have been meeting with State officials as well as with the industry and
citizens groups for nearly a year so that our regulations for the initial
program contain many of their suggestions and insights. We have worked closely
with the agencies of State governments identified by the Governors to help them
develop their own plans for inspection and enforcement. As a result we are
fairly confident that the work of the Federal and State inspectors will be
mutually reinforcing.
7 Our first group of Federal inspectors - the senior inspectors and the
corps of supervisory inspectors - were carefully recruited and they all
underwent a specially prepared training program at a community college in
Madisonville, Kentucky. As of this morning, these 29 have been deployed among
our five regional offices.
8 Simultaneously, many States have been giving effect to our new
Regulations.Where State legislatures acted promptly, State permits issued since
February 3 do include requirements of conformity with our December 13
Regulations.
8 TITLE VII - ADMINISTRATIVE AND MISCELLANEOUS - STATE GRANTS
8 By the end of March, we had applications for grants from more than
two-thirds of the States where coal is mined. These applications are for the
incremental costs that the States anticipate they will incur as a result of
enforcement of our standards.The grants cover recruitment of additional
inspectors, training for new, as well as, existing State inspection personnel,
equipment and technical capacity to support the inspectors and the officials who
review permit applications. The first grant was awarded to the State of North
Dakota on April 13 and we anticipate additional grants fairly soon.
8 It might be more orderly to break with the approach this testimony has
taken thus far and discuss the problems we have encountered with Section 712(a)
of the Act which authorizes the Federal interim inspection program and grants to
cover the incremental State inspection system costs. As passed, the Act
authorizes ten (10) million dollars a year to support these efforts. The amount
is simply inadequate for fiscal year 1979. For fiscal year 1978 by
reprogramming other funds which have become available because we started later
than expected and personnel was hired later than expected.
8 We have come to realize that we may be short of funds for FY 1979. The
Federal inspection program will exceed 11 million dollars by itself (actually,
the total cost is 13 million but 2 million can be attributed to administrative
expenses which are covered by other provisions in Section 712). Back in
December, we estimated State needs and made a preliminary judgment that they
could be accommodated if Section 712(a) were increased to 19 million. However,
higher than anticipated grant requests from the States indicate that full
funding for the State efforts may require a total sum closer to 25 million
dollars: 13 million for grants. The Administration now supports an
authorization increase to 25 million dollars in fiscal year 1979. We are
reviewing our current budget request in light of recently received State grant
applications.
8 I cannot exaggerate the importance of providing full funds to the States.
We are making certain that their applications reflect only reasonable
incremental costs. These are real needs and the credibility of the Federal as
well as the State effort may turn on our ability to make sure that the State
enforcement during the initial program is diligent and effective and serves to
expedite the States' transition toward permanent program operation. Most State
agencies (and we confidently expect more than 20 of the potential 26 States will
participate) are dependent on these grants. Their legislatures have concluded
their sessions and have not appropriated funds beyond what the State effort
minus Federal grants will require. Accordingly, we support S. 2463 with an
amendment to raise this sum to 25 million dollars.
8 In addition to a moral obligation for the Federal government to cover
these costs to be incurred by the States, there are two additional reasons for
providing adequate grants assistance. The statutory scheme provides that the
States are to be the prime enforcement mechanism in the surface mining control
field. The skills and adequacy of this work force will ultimately be a crucial
factor in the quality of the national effort. Finally, as I indicated in my
discussion of Title III, the State reclamation effort is conditioned on an
adequate enforcement program. Thus, the sooner we can certify State permanent
program, the sooner can we release half of the national funds dedicated to
reclamation of abandoned mine lands. Accordingly, it is imperative that we
provide no impediment to a State program. We should not need any change in
funding levels for the initial program beyond fiscal year 1979 because several
permanent programs will be in place.
8 REGULATION ON FEDERAL LANDS
8 One of the questions posed by the Chairman of this Subcommittee referred
to controls on Federal lands. As we advised the Committee, mining on Federal
lands is covered at this time by the initial program regulations of December 13.
A further proposal amending 30CFR211 also relating to Federal lands was
published in the Federal Register. We are now considering what final form these
proposals should take.
9 ALLUVIAL VALLEY FLOORS
9 The problem described in Chairman Bumpers' letter regarding Section 510 is
particularly vexing. The statute calls for a trade of mining land from the
Federal government to the owner of coal rights in alluvial valley floors where
the mining of such coal would do major damage to the alluvial valley or
interrupt intensive farming on such lands. Compounding the hydrologic and
geological problems is a lawsuit which was filed prior to passage of this bill.
Under the terms of the decision in Hughes v. N.R.D.C. , There is a moratorium on
Federal coal leasing until a better environmental impact statement has been
completed.
9 A stipulation made recently between the Department and the plaintiff in
that case would allow leasing of certain Federal coal deposits to operators with
rights in the alluvial valleys if the owner of those rights could have received
a permit for mining. The theory of the stipulation is that the permit might
be so encumbered with requirements to protect the water system that it would be
more economical for the owner to develop another deposit.
9 Effectuation of this stipulation is primarily between the Bureau of Land
Management and the operator-owners of coal mining rights in alluvial valleys.
At such time as the Department of Interior coal environmental impact statement
has been successfully concluded, we will develop procedures for implementation
of the statute as passed by the Congress.
9 SMALL OPERATORS ASSISTANCE
9 The problem of small operators is a serious one and we have given careful
consideration to S. 2672. The Congress clearly did not intend to leave them
outside the scope of the program but, at the same time, the Congress did not
want to impose onerous burdens on them. They will have to secure permits and
will have to prepare mining plans. The statute provides that the regulatory
authorities will absorb the costs of the hydrologic and test boring studies
required to prepare the mining plan and, further, authorizes Federal funding for
this purpose.We intend to honor the commitment.
9 We face the problem of not knowing how much it will cost to pay for these
studies. Indeed, we do not, at this time, know how many eligible small
operators there are. We know that there are about 3,000 small operations but
some are associated with other operations that, in totality, make them
ineligible. Based on studies of date from Mine Safety and Health Administration
and the Bureau of Mines, we are using a working estimate of about 2,500 eligible
small operators. The next question is: how much will each study cost?
9 We have tried a number of scenarios to determine the range of unit costs.
The Congressional Budget Office estimated that the unit cost would be about $2
8,000 per small operator. Some of our estimates exceed this figure while others
are significantly lower. If we can aggregate small operators in the same
geological formation and in the same watershed, we can reduce the per operator
cost.Another cost reduction could be achieved if some of the data could be
captured from other sources such as applications from larger operators or
studies done by the Geological Survey and EPA. Other techniques to lower unit
costs will be a priority research effort for us.
9 It is likely that we will not be able to do all the studies for small
operators within the level of funds authorized under Section 712(b) of the Act.
However, availability of assistance is not critical until the State programs are
within six months of probable approval stage. This means that we will have the
ten million appropriated for fiscal year 1978 and added to the 10 million
dollars for fiscal year 1979 available for the latter year. If there is a
shortfall for fiscal year 1979, it will probably not manifest itself until the
second half of fiscal year 1979, about a year from now. Before that time, we
will have much better information. If additional funds are needed, we could
come back to the Congress for an amendment to the authorization and a
supplemental budget. We would have the advantage of knowing with certainty how
much will be needed and the time frame in which additional sums are required.
Accordingly, we suggest that the Committee defer action on proposed legislation
to amend Section 712(b) until we have that additional information.
10 SMALL OPERATORS' EXEMPTION
10 The Chairman's letter also asks for some discussion of the end of small
mine exemptions to most of the initial environmental standards on January 1,
1979. We do not think that this will have a very significant impact on the
industry at that time. The statute provides that the exemption applies only to
permits in effect when the statute was passed. The legislative history makes it
clear that renewals of permits would not be covered by the exemption. In view
of the fact that most permits are annual, there will be a small percent of all
permits in January, 1979 that will still be covered by the exemptions. Only two
States, Virginia and Kentucky, took advantage of the statutory authority to
extend permits by legislation and even in these cases, the dates for extension
were so late that many of them had expired before the date of enactment of State
statutory extension date.
10 ALASKA
10 The Alaskan study called for in the statute will be performed by the
National Academy of Sciences under contract to OSM. It is a working procedure
of NAS that the sponsor of a study cannot name people to the study panel. We
are in the process of completing the negotiations with NAS and have recommended
three people to them for the panel. These are names suggested to us by the
State government. In any event, we have been assured that the NAS panel will
hold public hearings in Alaska and that State and Federal officials will have
an opportunity to be heard.
10 INDIAN LANDS
10 The Indian Lands study required by Section 710 has been the subject of
preliminary negotiations between OSM, BIA and tribes and inter-tribal
organizations to try to outline the nature and methodology of the study. We
believe it to be crucial that the nature of the study be agreed upon before it
is undertaken if the study is to be used for permanent regulations for mining on
Indian lands. In the meantime, BIA and GS are applying the regulations issued
on December 16 which are based on OSM's December 13 initial program for
non-Indian lands. While this study will not be completed by this fall, I have
directed by staff to make every effort to have the study results available by
the beginning of the 96th Congress.
10 Titles VIII and IX are under the direction of the Department of Energy
which can give the Committee more detail than we could.
10 Senator BUMPERS. Secretary Davenport, on the last page of your testimony
I see where it says under the terms of the statute, all new mines were required
to conform to the regulations promulgated in December 1977 by February 4, 1978.
10 Now, that was not possible, was it?
10 Ms. DAVENPORT. There are actually two answers to that question, Senator.
For new mines on public lands, which the Department has to approve, we have been
working with the operators to bring those mine plans into compliance with these
regulations.
10 Senator BUMPERS. But the regulations were not drafted at that time, at
least they were not in any final, definitive form on February 4, were they?
10 Ms. DAVENPORT. The interim program was, sir.
10 Senator BUMPERS. They were?
10 Ms. DAVENPORT. The interim program. Our first set of regulations were
promulgated in December. Those include the first standards required by the act
and where we have an approval responsibility for mines on public lands, we
have been working with the operators to include those standards in mine
plans.Elsewhere, since we haven't had inspectors in the field, we don't know how
many new mines comply. I would like to make one point. The implementation date
in the statute has two separate effects. First, it clearly signals the date on
which all operators know they must comply with certain standards. Second, it
should have been the time OSM would have had its inspection force in the field,
but we didn't because of the appropriations process.
11 The fact that the establishment of an inspection force is late means
that new mines have had a grace period between February 4 and today, and
probably a few more weeks, before being inspected to see if they met their
obligation, which was their obligation on February 4.
11 Senator BUMPERS. How much grant money are you going to have to give out
to these institutes? You state here in your statement: We anticipate the 20
State institutes will be designated by the end of this fiscal year and that we
will have dispensed the grant moneys available to those institutes.
11 Mr. HEINE. The total for this fiscal year 1978 is $5 .4 million. For
the 20 institutes, that comes to $270,000 each.
11 Senator BUMPERS. What are we going to get for that?
11 Mr. HEINE. For that we hope to get, first, the establishment of a mining
institute. The funds must be matched by the institute, by the university, to
set up a group of persons that are expert in mining and who undertake mine
research that is pertinent to our program. Second, fellowships and scholarships
will be made available to deserving students to get more persons into the mining
and into the energy field.
11 Senator BUMPERS. Will your office determine what kinds of research these
institutes are to undertake?
11 Mr. HEINE. There is an advisory committee established by the act that is
to guide the research. However, we will basically be the persons who determine
the type of research. We think it is very important that we get very specific
research that will assist us in the promulgation of regulations and get the high
technology necessary to get this program going forward.
11 Senator BUMPERS. Secretary Davenport, you mentioned five regional
offices. Where are those regional offices going to be set up?
11 Ms. DAVENPORT.Let me see.
11 Senator BUMPERS. Are these offices of the Office of Surface Mining?
11 Ms. DAVENPORT. They are regional offices of the Office of Surface
Mining. They will be located in Charleston, W.Va.; Knoxville, Tenn.;
Indianapolis, Ind.; Kansas City, Mo.; and Denver, Colo.
11 The regional offices were chosen both by the number of mines which fall
under regulation and the number of States in each area that are considered major
coal producing States. There will be a series of district offices at which
inspectors will be stationed. But that is the next step of staffing output.
11 Senator BUMPERS. How far is it from Kansas City to Denver and what is
the distance between those two cities?
11 Does anyone here know? They are rather close, aren't they?
11 Senator FORD. I think it is only 100 miles.
11 Senator BUMPERS. What area would Kansas City serve, would it include
Illinois?
11 Ms. DAVENPORT. Kansas City serves Missouri, Oklahoma, Iowa, Arkansas,
Louisiana, Kansas, Oklahoma, and Texas.
12 Senator BUMPERS. Why don't you submit a map to the members of the
committee, showing the area that each regional office is designed to serve.
12 Is that all right with everyone?
12 Senator MELCHER. I think they have a map right there.
12 Senator BUMPERS. Oh, you have a map?
12 Ms. DAVENPORT. We will submit that to you by this afternoon.
12 [The map referred to follows:] [SEE ILLUSTRATION IN ORIGINAL]
12 Senator BUMPERS. What is the total appropriations you have received so
far for your office, $10 million?
12 Mr. HEINE. The Office of Surface Mining has a total of $6 7.5 million
appropriated.
12 Senator BUMPERS. Appropriated?
12 Mr. HEINE. That is correct. That was for 1978. This includes about $3
6.6 million for the abandoned mine reclamation fund. It also of course includes
moneys for grants to States.
12 Senator BUMPERS. How much of that is for administration, operation of
the office?
12 Mr. HEINE. I am informed that it is about $6 million for administration.
12 Senator BUMPERS. How much?
12 Mr. HEINE. $6 million.
12 Senator BUMPERS. Why was this funding delayed?
12 Mr. HEINE. It was delayed because it was part of a supplemental
appropriations bill which included primarily -
12 Senator BUMPERS. It was part of what?
12 Mr. HEINE.A supplemental appropriations bill which included the B-1
bomber, primarily, and the Clinch River Breeder Reactor, and such other
"noncontroversial" things.
12 Senator BUMPERS. Senator Hansen.
13 Senator HANSEN. Thank you, Mr. Chairman. I have some statements and
some questions, if I may, just to let me read through them, and then I will
submit them to you, Secretary Davenport, and Mr. Heine. And I think it might be
helpful for you to have them and then provide answers for the record. Our first
concern is the Surface Mining Control and Reclamation Act - talks about
regulation of mining and reclamation of all Federal lands. There are currently
other reclamation requirements found in regulations promulgated by the 1920
Mineral Leasing Act. It is necessary to determine whether the 1977 act
supersedes all previous attempts to regulate mining and reclamation wherever
those matters are addressed in the 1977 act; specifically, when will the final
regulation for the permanent regulatory program be promulgated.
13 Section 523 of the Surface Mining Control and Reclamation Act requires
that a secretary promulgate regulations for the development of a Federal lands
program by August 3, 1978. By that time, the State of Wyoming will be operating
an interim regulatory program which will also be addressing itself to Federal
lands.
13 The question of Wyoming is whether, upon promulgation of the regulations
for implementation of the Federal lands program, the Office of Surface Mining
intends to supersede the regulation of those Federal lands being done by the
State of Wyoming.
13 The position of the State of Wyoming is that once we are regulating
Federal lands under an interim program, we should also be allowed to continue to
regulate those Federal lands even after promulgation of the Federal lands
regulations until the Secretary's office determines that, while this program
does not adequately enforce the Surface Mining Control and Reclamation Act, the
use of the Abandoned Mine Reclamation Fund, title IV of the act, is regulated in
the act by a set of priorities. Section 40232 of the act seems to pose an
obstacle to the State's exercising flexibility and using these funds in the
areas where the most serious impact from mining is felt.
13 In Wyoming, the most serious need is to provide construction of public
facilities in the areas impacted by full development. The question is: Will the
Office of Surface Mining work with the State in applying the act and the funds
available under it to address the most serious problems facing the State?
Second: What kind of regulations or guidelines are being developed by the Office
of Surface Mining in order that such a flexible policy can be implemented?
13 With respect to section 510B5A on the alluvial valley floors, what
specifically are the undeveloped rangelands which are not significant to farm
and what specifically is of such small acreage as to be of negligible impact on
the farms' agricultural production?
13 With respect to section 515, they can ask: Are the quotas essential for
our hydrological functions to be preserved, relating to agricultural activities,
geology or alluvial systems?
13 With respect to section 515E, in some cases, leaving the high wall in
part will result in less surface disturbance and provide additional wildlife
habitat. Can a provision be provided for a variance to permit leaving part of a
high wall, when justified as more desirable, for reclamation?
14 And with respect to section 515E20, liability for revegetation for 10
years seems to me to be totally unreasonable in most cases. Can a variance to 5
years be provided when justified?
14 With respect to 701, alluvial valley floors have not been defined
precisely enough to prevent its application to areas that Congress did not
intend to be included. Miner - which are dry most of the year have been
proposed for inclusion by Federal agencies. Can this definition be clarified to
describe exactly what was intended by Congress?
14 And with respect to section 701 again, a precise definition of
subirrigation is needed. This term has been interpreted by some Federal
employees to include the driest desert that has a flat on it. This is totally
ridiculous. Can a definition be provided?
14 A suitable definition may be as follows: Subirrigation means irrigation
of plants with water delivered to the roots from underneath. The source of this
water is from stream/lake deposits which are semisaturated or saturated with
water derived from the stream to an extent that the plants are able to maintain
growth through most of the growing season without depending upon precipitation
except indirectly through stream recharge. I will submit those questions to our
distinguished participants, Mr. Chairman, and I should think maybe if they would
at an appropriate time have their answers to me included in the hearing record
it will be helpful.
14 Ms. DAVENPORT. Senator Hansen, one, I would compliment the person who
drew up those questions because some of them are the toughest and most difficult
questions we are facing.For some of them, we can get answers to you by the close
of this record.
14 On the other hand, for example, we have a technical committee working to
more precisely define alluvial valley floors and to produce a guidance document
to be used by both Federal agencies and State agencies. I don't expect that
that document will be complete by the time this record is closed. However, as
soon as it is complete, we will be very happy to submit it to you and to the
chairman and other members if they desire.
14 Senator HANSEN. Thank you very much, Secretary Davenport. If I may, let
me say to you and Mr. Heine I have a number of other questions I would like to
submit for the record. And instead of taking time this morning to pursue those
questions, I will hand them to you and, hopefully, you may be able to provide
answers for the record.
14 Thank you, Mr. Chairman.
14 [The document referred to follows:]
14 [340-01]
14 Title 7 - Agriculture
14 SUBTITLE A - OFFICE OF THE SECRETARY
14 PART 2 - DELEGATION OF AUTHORITY BY THE SECRETARY OF AGRICULTURE AND
GENERAL OFFICERS OF THE DEPARTMENT
14 Surface minining control and reclamation; implementation
14 Agency: Office of the Secretary, USDA.
14 Action: Final rule.
14 Summary: This rule concerns the delegation of authority of the Secretary
relating to his responsibilities in the implementation of the Surface Mining
Control and Reclamation Act of 1977, to the Assistant Secretary of Agriculture
for Conservation, Research and Education. This rule also contains a
redelegation to the Administrator, Soil Conservation Service to administer the
Abandoned Mine Reclamation Program for Rural Lands and certain other
responsibilities assigned under the Surface Mining Control and Reclamation Act
of 1977, except as to certain responsibilities assigned to the Forest Service
and the Agricultural Research Service.
15 Effective date: October 13, 1977.
15 For further information contact: Victor H. Barry, Deputy Administrator
for Programs, Soil Conservation Service, USDA, Washington, D.C. 20250,
(202-447-7245), or Bob Bergland, Secretary of Agriculture, Washington, D.C.
20250.
15 Supplementary information: On August 3, 1977, President Carter signed the
Surface Mining Control and Reclamation Act of 1977. (Pub.L. 95-87, 91 Stat.
445). This act, among other things, directs the Secretary of Agriculture to
take certain actions relating to the control of surface mining and surface mined
areas in the United States. This rule provides the delegation of
responsibilities to administer the Abandoned Mine Reclamation Program for Rural
Lands and other responsibilities of the Secretary of Agriculture under the Act.
15 The signature of the Secretary of Agriculture appearing hereunder is
approval of the delegation in 7 CFR 2.19(j). The signature of the Assistant
Secretary for Conservation, Research and Education is approval of the
redelegation in 7 CFR 2.62(a)(9).
15 Dated: September 23, 1977.
15 BOB BERGLAND, Secretary of Agriculture.
15 M. R. CUTLER, Assistant Secretary of Agriculture for Conservation,
Research and Education.
15 September 21, 1977.
15 1. Section 2.19 is amended by adding paragraph (j) as follows:
15 @ 2.19 Delegations of authority to the Assistant Secretary for
Conservation, Research, and Education.
15 (j) Related to Surface Mining Control and Reclamation, Administer
responsibilities and functions assigned under the Surface Mining Control and
Reclamation Act of 1977, Pub.L. 95-87, 91 Stat. 445 to the Secretary of
Agriculture.
15 2. Section 2.62(a) is amended by adding paragraph (a)(9) as follows:
15 @ 2.62 Administrator, Soil Conservation Service.
15 (a) * * *
15 (9) Administer Abandoned Mine Reclamation Program for Rural Lands and
other responsibilities assigned under the Surface Mining Control and Reclamation
Act of 1977, Pub.L. 95-87, 91 Stat. 445 except as to responsibilities assigned
to the Forest Service and the Agricultural Research Service.
15 [FR Doc. 77-29943 Filed 10-12-77; 8:45 am]
15 Senator BUMPERS. Senator Ford.
15 Senator FORD. I notice that both of you are included - in your prepared
statements, that both of you excluded the inability to arrive at the permanent
regulations on August 3.
15 What impact will this have on the ability of States to submit their plans
for State programs to the Secretary if your permanent regulations cannot be
published by the required time of August 3?
15 Either can answer.I think both of my questions will be directed to both
of you.
15 Mr. HEINE. Senator Ford
15 Senator FORD. Is this doctor
15 Mr. HEINE. This is William Eichbaum. He is our associate solicitor.
15 Senator FORD. Any help you can get is all right with me.
15 Mr. EICHBAUM. Senator, this is a difficult area.
16 Senator FORD. It is difficult on the other end, too.
16 Mr. EICHBAUM. That is true. I will assume that we will miss the date.
Then the question is -
16 Senator FORD. Well, both of the participants - I guess your bosses said
you would miss the date.
16 Mr. EICHBAUM. The major problem there is to try and leave adequate time
in the time frame the Congress set for the States to go through the process of
enacting legislation and whatever work they may have to do. I think - and we
have preliminarily studied this - that we can, through rulemaking and I think,
obviously, appropriate consultation with the Congress, reflect in that
rulemaking additional time frames so that the States are able to have the amount
of time that they would have had if we had hit August 3 precisely.
16 Senator FORD. What happens to those who are trying to solve the coal in
that time frame? Do you just go back to the interim standards? You don't have
any permanent standards? What happened to them?
16 They are standing out there in a state of limbo, you know.
16 Mr. EICHBAUM. The way the statute is worded, is that the interim program
continues in a State until the State has either received approval for status as
a regulatory authority, at which time then it would implement the permanent
standards.
16 If that never happens, then the Federal Government would come in and
implement the permanent standards. So there is a contemplation that there would
be as much as 30 months - 28 months I guess, but the interim program would
remain in effect and it is a function of how quickly a State acts.
16 Senator FORD. There is no way for a State to act, until such time as the
permanent regulations are published, is there?
16 Mr. EICHBAUM. I think that is right although the schedule that we are
working on will have a draft fairly well out to the States this summer and to
other people, that would be the kind of draft that States could begin to design,
whatever legislative changes they had to make this fall, so that they could move
to their legislatures in early 1979 with a caveat that there would be a
possibility of some last-minute adjustments late in 1978, if the final regs did
not reflect that proposal for the summer.
16 Senator FORD. To August 3.It will not be met according to the testimony
by the two witnesses this morning. Until such time you are just going to send
out a proposed list of rules. Then the State is supposed to start adjusting or
getting prepared.
16 When do you think the permanent regulations will be published?
16 Mr. HEINE. It appears, based upon a schedule we have now formed, that we
will now be about 11 weeks late, to be precise.
16 Senator FORD. About 11 weeks late. So that is roughly 12 weeks and - is
3 months. In August plus 3
16 Mr. HEINE. About the first of November, I guess.
16 Senator FORD. It seems to me that the delay of the promulgation of
permanent regulations will severely impact the ability of the State to submit
State programs in the time required by the Act. I guess there is really no way
to solve the problem. If I understood your assistant right, the interim
regulations would apply until such time as permanent regulations.
17 If you are 11 or 12 weeks late, you are extending the time of the State
to comply or do they still have to comply within the statutory limit?
17 Mr. EICHBAUM. The State does not have to implement the permanent
regulatory program and operators don't have to follow the permanent program
until such time as a State is approved as the regulatory authority.
17 Senator FORD.Or turned down.
17 Mr. EICHBAUM. Or turned down. So there could be an 11- or 12-week shift
in what that date would be and that would just result in the interim regulatory
program being, in fact, an additional 11 or 12 weeks.
17 Senator FORD. Can you inform the committee as to which State, in your
opinion, will be able to gain the Secretary's approval of State programs and
which States will likely have Federal programs imposed as a result of failure to
meet statutory regulatory requirements for State programs?
17 Ms. DAVENPORT.Senator, at this time, we hope that all major
coal-producing States will take the Federal program. We are still optimistic.
As we get further down the line into this 30-month period, we may reassess that.
But we certainly have the strongest commitment and, again, whatever assistance
and aid is necessary to the States to have them take over the primary
enforcement for this program.
17 Senator FORD. Let's look at another problem that a lot of you face. I
believe it was late March - or maybe the early part of April - I think it was in
late March when the President signed the Executive Order 12044, entitled
"Improving Government Regulations."
17 Are you aware of that?
17 Ms. DAVENPORT. Yes, sir.
17 Senator FORD. With this aim - and I support it firmly - at simplifying
regulations and in reducing their burden on the American public, would you tell
us what the Office of Surface Mining plans and procedures are for complying with
this Executive order and the promulgation of the final, permanent regulations?
17 Mr. HEINE. Yes, Senator.We have on board at the present time persons who
are working with our regulation writers. There are two teams who are working
with our regulation writers.
17 One, they are conducting the regulatory analysis which used to be called
economic impact statement, which is alined with the President's announcement.
17 In addition, we have an environmental impact group that is also working
with our regulation writers as the regulations are written. This is also
required by Federal law. The important thing is that both of these two teams
working with our regulations writers are and will continue to look at
alternatives as each regulation is written, to see that best alternative, both
from a cost standpoint and from environmental protection standpoint, is included
in the regulation:
17 We think that is the intent of the President's message, and we think that
it is very important.
17 Senator FORD. How do you plan to comply with the Executive order's
requirement - I believe it says the public will be afforded at least 60 days to
comment on the regulations.
18 Won't that extend it an additional 60 days or could it extend it an
additional 60 days if you comply with that?
18 Mr. HEINE. We have that all worked into the schedule that I gave you.
18 Senator FORD. That is the 11-weeks schedule?
18 Mr. HEINE. That is correct. We intend to have, not only public hearings
on the published draft of the regulations
18 Senator FORD. Where are you going to have the public hearings, here in
Washington?
18 Mr. HEINE. We will have them and I would judge at this point that they
will be in Denver, Charleston, Kansas City, and Washington.I believe that is
what we did in our interim regulations. So there will not only be public
hearings at the time the regulations are drafted and in the Federal Register.
In addition we will attempt to have a seminar, which may be a 1- or 2-week
seminar, allowing persons from the outside to come in and participate in the
rulemaking process, to give us guidance on drafting regulations.
18 Senator FORD. Is that section 3 where you have the public in? Is that
section 3? Maybe section 3 is the one that requires the regulatory analysis of
the regulations. I think more specifically it is the compliance with the
procedure. So I guess what you are saying to me is you have already plowed that
time for a procedural effort as it relates to public comment on regulatory
analysis.
18 Mr. HEINE. That is correct.
18 Senator FORD. I just have a couple of more questions, Mr. Chairman.For
Senator Huddleston I have a bill which we are discussing today, S. 2672. And
your testimony indicates that you are working on an estimate of about 2,500
small operators that will be eligible for assistance in the preparation of mine
plans. That is in your statement I think. I had the 100,000 operator exemption
amendment on the floor May 20 of last year. It was strongly opposed by members
of this committee who used these figures on me, I think.
18 It would cover 23 percent of the production and 83 percent of the mines.
Do you believe that your 2,500 estimate is realistic? The figures that were
used in opposition to my amendment was one thing, and then your estimate today
indicates it is somewhat less. It is so much smaller.
18 Mr. HEINE. The estimate that we have in the opening statement is based
upon data that the Mining Enforcement Safety Administration, which now has had
its named changed, MESA's information to us, as well as some data that we have
gotten from the Bureau of Mines.
18 The weakness in the data, Senator, is that we suspect that the number of
small operator that would qualify will actually be smaller than that because we
are finding there are some small operators who are affiliated with larger
corporations and larger companies, so therefore they really would not qualify.
18 Senator FORD. And some of them just give up. They just go out of
business.
18 Mr. HEINE. Though at the present time we admit that the 2,500 figure for
a number of small operators is just an estimate. But it is the best we have at
this time.
19 Senator FORD. You say in your statement that $1 0 million carryover
from fiscal 1978 plus the $1 0 million for fiscal 1979 probably - that is the
word you use - probably will be sufficient. If not - and I think I quote
reasonably from your statement - additional authorization could be requested
late in fiscal 1979. Now, let me ask you this question: Why not pass the
authorization now set down in Senator Huddleston's bill and mine, 2672, and
handle the appropriations later if you need them?
19 Mr. HEINE. I think I would have very little argument with that logic.
19 Senator FORD. While I am on a positive note, I think I will move on. In
your statement before Congress last year you stated that Federal law, in you
ropinion, would in no way inhibit coal production.
19 Do you still feel that this could be achieved?
19 Mr. HEINE. I am sure that there will be a transition period as there
always has been when a State law is passed or any law that regulates somebody.
There is a period of confusion and gearing up, and as you are aware, there can
be a temporary slowdown, in this case, of coal production. It may be hard to
measure that or separate it from losses of production because of other reasons.
19 I think - and I continue to think - that over the long run, within
several years, if not less than that, production will be normal.
19 Senator FORD. What is several years, a bunch?
19 Mr. HEINE. Once the permanent program is in effect, a great number of
questions that are now puzzling miners and others, and ourselves, will be
answered. And once the road is cleared by having permanent enforcement programs
in States, then I think everyone will understand better what his obligations are
and the companies will be able to proceed rapidly to keep up volume.
19 Senator FORD. You made a statement awhile ago that the new economic
impact statement had a new name called economic analysis.
19 Is that what you said?
19 Mr. HEINE. Regulatory analysis.
19 Senator FORD. The Office of Surface Mining and the Department of the
Interior has determined at various times that the economic impact statement
was not necessary, that the rules and regulations are not inflationary.
19 Do you feel today that the rules and regulations are still not
inflationary and the Office of Surface Mining should not have to prepare an
economic impact statement?
19 Mr. HEINE. I think the best way to answer that, Senator, is that we are
conducting the regulatory analysis or the economic analysis.
19 Senator FORD. You are conducting it.
19 Mr. HEINE. We are conducting it, and we think that good management
practice dictates we do that, whether or not we had a Presidential directive to
do so. It was in the interim program where we made a determination that we did
not think that economic assessment was necessary. But we are doing it now for
the permanent program, and we think it will be very helpful to us.
19 Senator FORD. What about the inflationary effect?
19 Mr. HEINE. I frankly am not much of an economist. I think I would have
a difficult time explaining whether or not - how inflationary this will be.
20 Will it be lost in many of the other matters that affect coal
products? I think the studies that have been done up to now, as you probably
know, have a broader range of costs.
20 Senator FORD. Let's get down to the rules and regulations. I am not
talking about transportation and other things. I am talking about the
regulations that are required for that operation.
20 Now, up until today, the statements have been that the rules and
regulations would not be inflationary. Now you are saying there are so many
things you can't tell whether it is or not. But it looks like the cost to the
operator would be something you could determine because you are the fellows who
set the regulations. There will be a difference in what he has been doing and
what he will be doing.
20 Is there a cost? Will it be inflationary?
20 Mr. HEINE.I think there certainly will be a cost associated with
complying with the act.
20 Senator FORD. So there will be an inflationary cost, and the consumer
can expect to pay more for his coal as the result of the regulations.
20 Mr. HEINE. There will be some cost.
20 Senator FORD. One question that has been brought to my attention. I
think maybe we ought to get it out today if we can and solve it for our friends
in West Virginia. You may be aware of this. The law and regulations require
that construction work be in accordance with the plans designed by professional
engineers.
20 My staff has conferred several times with the West Virginia surveyors in
which State surveyors for some time think they have been licensed to do this
work. We have also heard from those two Senators about this matter. It does
appear that, after looking at what they are doing and what the law says, that an
injustice probably has been done. Hopefully, you can correct it, or maybe we
need to correct it.
20 What is your reaction to adding the eligibility coverage - I believe it
is sections 507 and 515 - to the effect that "these professionals registered,
tested, and licensed to perform such services in the State or States where a
permit is being applied for"?
20 Could you buy that sort of inclusion into the bill?
20 Mr. HEINE. I would have to look at that language. It is very hard to
envision what that all means off the top of my head.
20 Senator FORD. Well, surveyors have been used. And these professionals
are registered, tested, and licensed to perform such services in the State or
States. I am just trying to find language, though the State has apparently been
doing a pretty decent job like West Virginia - and these people are part of that
continuing improvement over there - that we should not exclude them from the
ability to be used and their profession to be called upon in the reclamation
process and the design phase, and so on.
20 Can you give me an answer on that so that we might get it in this record
for that question? It doesn't have to be today.
20 Mr. HEINE. Oh, certainly.
20 Senator FORD. So we can get it for the record before the record closes.
20 Mr. HEINE. Yes, certainly, Senator.
21 Senator FORD. I think that we did them an injustice. I have several
other questions, Mr. Heine, that I want to submit to you for the record.
21 Regulations require mandatory Federal inspection of every surface mine
twice a year beginning May 3. I don't know how many surface mines there are in
this country, but I have good information that there are about 4,000 active
mines in Kentucky alone, and we know that with 29 inspectors you are not going
to get close to that twice a year beginning May 3.
21 Is there any time frame in which you can tell us when you would be in a
position to inspect the mines twice a year?
21 Mr. HEINE. We hope by the end of the fiscal year - that will be by the
end of September - that we will have most of our inspection crews in the field.
And those numbers were developed with the intent of making that mandate of two
inspections per year plus inspections resulting from complaints of citizens.
21 So it should be in late fall, Senator, I think we should be making that
frequency.
21 Senator FORD. What about your acceptance of State inspectors if they
become the regulatory agency?
21 Will they be doing inspections in lieu of Federal inspectors, or are we
expecting Federal inspectors - that is, State inspectors - also to be on the
site at various times?
21 Mr. HEINE. During the interim program, we are relying very heavily upon
State inspectors and, of course, as you know, that is why there is a provision
in the act to reimburse the States for gearing up their programs during the
initial program.
21 And, as I have indicated in my testimony, in the beginning, our
inspectors will be in fact going out with the State inspectors to become
acquainted with the operators and the territory. So we will expect the States
to continue their enforcement work as well as we will. Then, of course, once
the permanent programs are approved in each State, then we will proceed to an
oversight mode.
21 Senator FORD. Will there be any monitoring by your agency as small
operators go out of business as a result of regulations?
21 Mr. HEINE. We haven't formally proposed anything of that nature. It is
difficult to determine exactly why someone went out of business.
21 Senator FORD. They could just say because of regulations I have gone out
of business.That ain't necessarily so, I understand, but you might want to
monitor that a little bit. You might give it some consideration.
21 How many small operators' exemptions have been filed with your office?
21 How many have been processed, and how many have been approved?
21 Mr. HEINE. Senator, Richard Hall, our Assistant Director for
Enforcement, can properly respond to that best.
21 Senator FORD. All right.
21 Mr. HALL. Senator, about between 1,100 and 1,200 have been received. I
would like to - rather than give you estimates of the numbers because I was out
of town last week training these inspectors - I would like to supply the exact
number to the staff if I may.
22 Senator FORD. Do you have a ball-park figure now and an exact figure
later?
22 Mr. HALL. About 50 percent have been or are about to be rejected. The
rest will be either approved, or will be, or are pending further information.
The numbers are not complete, and we have not received full reports from the
operators.
22 Senator FORD. There was no desire on my part to have companies split up
so they could get into the 100,000 or less. And I want very close scrutiny.
Will the 50 percent that you will deny be in that category?
22 Mr. HALL. No. A very small percentage are in the category that you just
mentioned.Most of them are because they are operating on permits issued after
the date of enactment.
22 Senator FORD. I just wanted to make that point. I read somewhere in a
news report that the fraudulent applications for small operators - so you were
telling me that a very, very small percentage of that falls under your denials
and that your denials will not fall in that category.
22 Mr. HALL. So far that is correct.
22 Senator FORD. Of the 1,200.
22 Mr. HALL. That is correct.
22 Senator FORD. Thank you very much.
22 Senator Melcher.
22 Senator MELCHER. Most of the responsibility in the act deals with strip
mining. Isn't that correct?
22 Mr. HEINE. Yes.
22 Senator MELCHER.But we do have some involvement in underground mining.
22 Mr. HEINE. Yes; surface effects of underground mining.
22 Senator MELCHER. But 90 percent of the act and 90 percent of your
responsibility is for strip mining.Is that correct?
22 Mr. HEINE. I don't know about the percentage exactly. I am not quite
clear how you are trying to separate them. I could respond better if I
understand what you mean.
22 Senator MELCHER. You are going to have to develop - what? How many
inspectors are you going to have designated to look at underground mining?
22 Mr. HEINE. What we will be looking at, sir, is not entering the
underground mines.
22 Senator MELCHER. I understand that, but I am trying to find out whether
you think strip mining is overwhelmingly the responsibility under your program.
22 Mr. HEINE. We would say that our total responsibility would roughly
follow the review because of the number of underground mines and the number of
surface mines. So I guess the correct answer to your question is that, since
there are a lot more individual surface mines, it has to move in that direction.
22 Senator MELCHER.You are not going to go underground, I expect. Isn't the
inspection almost all the inspection that you have to do to fulfill most of the
titles of the act? Doesn't that have to do with surface mines, strip mines?
23 Mr. HEINE. Yes. But in the surface effects - I just want to make it
clear that in the surface effects of deep mining where there would be coal
refuse piles and discharges of deep mines and other surface effects, this will
require some work. But I agree with your statement.
23 Senator MELCHER. The last I knew, about 50-50 of our coal production, 50
percent of our coal production, was strip mining. Is that still about right?
23 Mr. HEINE.I think the surface mining is higher now. It is slightly
higher.
23 Senator MELCHER. Slightly higher. The last time I talked to you, Joan,
we were talking about the hung-up appropriation. Now, I find that you have set
up a series of offices. It is my understanding that the Colorado Basin has more
of a coal reserve by far than any other coal.
23 Is that correct, or have we found some more coal reserves?
23 Ms. DAVENPORT. No, Senator, that is correct.
23 Senator MELCHER.The last figure that I relied on for coal reserve in
Montana was 106 billion tons which, if using the same criteria that was used by
the USDS at that time, was about 20 to 25 percent of the total reserves of the
United States. I have seen some figures since then that seem to indicate that
we have 200 billion tons of coal in Montana. Now, I would assume that if that
latter figure is correct, then the criteria that was used would show that we
have more than 450 billion tons or 500 billion tons of reserve in the United
States.
23 Our neighbor to the south of us, Wyoming, has a big part of the Powder
River Basin, the Powder River Reserve. And our neighbor to the east of us,
North Dakota, has another significant part of the Powder River Basin.
23 Now, if the responsibility under this act and the reason for your office
being in place is primarily to regulate strip mining of coal, how do we arrive
at a situation where the regional office to serve this vast area, the greatest
coal reserve we have in the United States, and the district office to serve this
vast area, is in what many of us consider in my part of the country a remote
city, a nice city but remote from us, called Denver?
23 Ms. DAVENPORT. Senator, let me make a few comments and then ask Director
Heine to elaborate.In establishing regional cities, we are required to present a
justification for deviating from the standard regional cities. I concur with
you that much of our future mining will be done in the Powder River Basin. The
trend which Director Heine mentioned - and it appears to be a trend, is largely
in the West. In setting up the regional offices, we reviewed each regional
office as to the location, the distance and the number of mines which would have
to be covered by that regional office. At that time, we did not feel that we
could request an alternate site from the standardized region. But perhaps
Director Heine can add to that.
23 Mr. HEINE. Senator, I have some statistics here which were partially
used, at least, in determining where that regional office should be. Denver is
the normal location for the Federal office. Colorado has about 39 mines of the
surface type - and this is purely mines, not production; I will grant you that -
Wyoming and Montana combined have about 35 mines.
24 In addition, of course, there are some 38 deep mines located in
Colorado - excuse me, more like 50, 50 out of the 54 deep mines. So looking at
the overall problem of inspecting and how often to inspect and how to reach
these mines, it was the number of mines that was largely determinant, as opposed
to the production of mines.
24 Senator MELCHER. I hate to respond abruptly, but I don't think that in
any way bears on the question, I mean your response. First of all, I get a
response that we have to go wherever the regional center is, unless we deviate.
I don't know who has imposed these very rigid standards around here, but I am
not aware of them being that rigid. I want to point out that you have got five
areas, five regions, and one of those regions has apparently about four times
the amount of coal in it that the other four have, or at least three of the
other four have.
24 It doesn't make any sense to me.Now, I don't want to spend my time here
in Congress having to lobby agency people to please, please, look at our area to
locate some of your employees. What I want to do is see an agency, especially a
new one that comes along, who has commonsense in the location of their
activities.
24 I would hope that before we have another oversight hearing on this, a
year from now, we will see something located in the Powder River Basin. And if
we are really going to have a balance in how this office works, I might point
out that, while I don't think there is much production in North Dakota at
present, that it is very difficult to reach North Dakota from Denver. I am
saying that hopefully to remind you that you will have some balance a year from
now in where these offices are located.
24 One of the responsibilities under the act is to have an Indian lands
study. Mr. Heine, you have referred to that and told us, as I knew would be the
case - and this isn't your fault - but I don't know how you, Joan, or Walter,
either one, could do anything without any money on this Indian lands study.You
got your money when, March or was it February?
24 Mr. HEINE. March.
24 Senator MELCHER. At what stage are you in this study?
24 Mr. HEINE. We have been talking to the tribal organizations,
specifically the Council on Energy Research Tribes, that has CERT as their
acronym. This is to carry out the study so as to provide -
24 Senator MELCHER. When were they formed? When was that organization
formed?
24 Mr. HEINE. About 2 years ago.
24 Senator MELCHER. Two years ago?
24 Mr. HEINE. Yes.
24 Senator MELCHER. Peter MacDonald is heading it up, isn't he?
24 Mr. HEINE He is their chairman.
24 Senator MELCHER. Do you have list of the tribes that are involved?
24 Mr. HEINE. We can get that to you, sir.
24 Senator MELCHER. As far as many of the tribes are concerned in our area
- and that would include our neighboring State of Wyoming - it is extremely
important that Indian tribes should be developed. some that want to be
developed, such as the northern Cheyennes and the - are looking at some
development on their reservation. And their reservations are joined, they are
neighbors. What do you envision to do beyond talking to the tribes in this
organization?
25 Mr. HEINE. Carl Close, who is our acting director in that area, is
sitting right next to me. I think he could get into that much quicker than I
could.
25 Senator MELCHER. All right, Carl.
25 Mr. CLOSE. In addition to talking with CERT, we have also had extensive
contacts with the northern Cheyenne and with several other major tribes. It is
our hope to have direct input from them, perhaps either through subcontracting
with them or working with them directly and have them prepare portions of the
study, including their own assessment of the best way to regulate on their own
tribal lands, their capabilities and other matters which are particularly
important to those major tribes.
25 Senator MELCHER. How much money have you got for a grant to a tribe, to
all the tribes?
25 Mr. CLOSE. We have a total of $7 00,000 available for all the tribes.
We have not yet attempted to split it up among individual tribes.
25 Senator MELCHER. That won't go very far.
25 Mr. CLOSE. We suspect it will be sufficient for the study but of course
-
25 Senator MELCHER. The $700,000 is just for the tribes.
25 Mr. CLOSE. It is to cover the total cost of the study and could cover
some internal policies. At this time, we have reserved it for the tribes.
25 Senator MELCHER. You have reserved the full $7 00,000. There is no way
- I think the bill said you were supposed to get that done in a year, right?
25 Did the act give you more than a year or not?
25 Mr. CLOSE. It didn't even give us that much time. It actually said
January 1, 1978.
25 Ms. DAVENPORT. Excuse me, Senator.
25 Senator MELCHER. Well, we were already late.
25 Ms. DAVENPORT.Mr. Hatuey may want to correct me, but Congress discussed
the date of January 1979, but when the bill was printed it came out "1978."
25 Senator MELCHER. The point is you can't complete the study as of this
year. You could complete it by January 1, 1979 if there is much of a study.
25 Mr. CLOSE. We believe we can complete it by January 1.
25 Senator MELCHER. Is hate to pass judgment in advance, but I would be
very skeptical that that is a very balanced study between now and the end of the
year.
25 Are you thinking of contracting out any portion of this?
25 Mr. CLOSE. Yes. in fact, we had planned to contract with the tribes.
That would be how we intend to give them the money.
25 Senator MELCHER. You mean that $700,000?
25 Mr. CLOSE. Yes, sir.
25 Senator MELCHER. You would contract individually with them or is some
entrepreneur going to band together about six tribes, and it would be a major
portion of that?
26 Mr. CLOSE. We are looking at several options right now.
26 Senator MELCHER.I want you to keep me advised of all those options and
particularly anybody who is asking you to be considered for those contracts.
26 Mr. CLOSE. Yes, sir.
26 Senator MELCHER. Would that be possible?
26 Mr. CLOSE. Yes.
26 Senator MELCHER.Walter, you said something that this would be a good
study, that these are going to become permanent regulations. My understanding
of the bill - and I don't understand this section of it quite well - this study
is not to be anything but a recommendation to Congress for further legislation.
26 Is that correct?
26 Mr. HEINE. That is correct.
26 Senator MELCHER. So no regulation will come from this at all.
26 Mr. HEINE. That is correct, sir.
26 Senator MELCHER. Frankly, we are a long way from an understanding with
most of the tribes. There are exceptions. But most of the tribes in Wyoming
and Montana are a long way from accepting just what type of reclamation program
they want on a particular reservation.
26 Do you find that to be correct or is this going to change?
26 Mr. HEINE. Yes, we don't know how much they have addressed it or how
many of them have not addressed it.
26 Senator MELCHER. I think that is the case. I am going to follow up on
my neighbor's comments on alluvial valley floors, and this question I will
propose to you. I think all of the questions were very pertinent, but I think
the test will come on alluvial valley floors on applying the regulations to
specific drainages. And I refer from memory on this that, when we looked at the
Sarpe Basin where the Westmoreland Mine is, it is in the basin and it is also
the alluvial valley floor, we used that as an example. The Westmorelan Mine and
the Sarpe Basin was approved in Montana, and we envisioned that would meet the
test here in the alluvial valley floors; and it would not be counter to the
alluvial valley floor, but that mining in the farming area that was
subirrigated, Sarpe Lake, would be prohibited, as provisioned in this bill.
26 That is the clear intent of that language. The language was gone over
for years, as we both well know. So I caution you to apply whatever regulations
are going to be to a specific western alluvial valley floor where there is some
mining. And I hope it comes out that way. We put a lot of time into that. It
was one of the more divisive points of the bill as far as those of us in the
west are concerned. So I will be interested to follow very closely.
26 I know the regulation is a draft, but I think the whole test of it will
be - is - does it follow through the Westmoreland Mine which is in the basin
area that is permitted, but a mine in the actual valley floor where there is
farming and is subirrigated will be prohibited. It is not simple but that is
the test we use in writing the language.
26 Mr. HEINE. I appreciate your concern about that. The group that we have
that is putting together some basic concepts on alluvial valley floors should be
and must have representation in that group of a person who is familiar with the
act and its history. We will certainly make sure that is the case.
27 Senator MELCHER. I have just one final comment, Senator Hansen. We
have a lot of people who are working, and it is necessary to do that. Don't
forget some westerners in there. There are some basic differences in the
problems that occur in regulating. Don't forget we need some westerners in
there, not because we are trying to get them jobs but because we think we have
some specific problems in revegetation and water problems, that they may have a
little broader background and be more adaptable.
27 Mr. HEINE. Yes, I am committed to have, as Secretary Andrus has
indicated, a deputy to me who is a westerner and is familiar with those issues
and also, of course, our Denver regional office will be staffed with persons who
are intimately familiar with all of those issues.
27 Senator MELCHER. Thank you very much.
27 Senator HANSEN. Just let me say that I will have a follow-on question -
I have it right now.May I have one other observation before I ask the question.
You were speaking about your role in monitoring the surface effects of
underground mining.
27 Will that include monitoring subsidence or the likelihood of subsidence?
27 Mr. HEINE. In the permanent program it is clear by the act that
subsidence will be included in considerations in approving these mines.
27 Senator HANSEN. My final question, Mr. Chairman, is: The Department's
settlement of NRVC versus Hughes, which Judge Pat signed 60 days ago, included a
stipulation relating to the trading auhority for alluvial valley floors in
section 510 of the act. The stipulation limits trading of coal under alluvial
valley floors for coal off of alluvial valley floors to those operators who have
a right to mine coal under alluvial valley floors, the so-called grandfather
mines. This directly contravenes the congressional interests of the provision
for two reasons. One, the trading authority was specifically put into the bill
by Senate conferees to be used in nongrandfather mines where a substantial
legal and financial commitment has been made; and, two, the trading authority
language specifically includes the statement; "notwithstanding any other
provisions of law", which would seem to provide a basis for using this authority
without the constraints of the leasing laws, Federal land planning laws, and
perhaps NEPA.
27 Why did the Department voluntarily constrain its capability to trade
lands during the early stages of program development?
27 Ms. DAVENPORT. Senator, I would ask Mr. Eichbaum, our solicitor, to
address that. I think we will have to provide you with a full statement for the
record by the members of the solicitor's office who are negotiating the
settlement.
27 Senator HANSEN. That will be fine. We would attempt to make a response
now because it just seems to me that you have limited and restricted the
authority that we clearly intended to give you. I am surprised and dismayed.
28 Mr. EICHBAUM. I think you are right. The limitation did occur on
those negotiations and that does raise serious concerns. I think that the
rationale that took place during the bargaining was that the plaintiffs in that
- in the Hughes case - clearly felt that they, by virtue of the Judge's order,
had attained the limitation completely on any exchange of leases,
notwithstanding the congressional language. The Department, in an attempt -
28 Senator HANSEN. May I interrupt? Are you saying that the plaintiffs
felt that the judge's ruling had clearly vitiated the intent of the Congress.
28 Mr. EICHBAUM. That is correct. That was the plaintiff's position. I am
not saying whether or not the Department agreed with it but I think the
Department felt that, number one, it was very important to open up some of that
judge's orders or that some leasing on a short-term basis could go
forward.Second, I think that the Department felt that as a practical matter the
time frame for processing an exchange would be such that it would fit within the
limitation of the stipulation. That is to say, let's assume - and as far as I
know there have not yet been any requests for an exchange but if one came in -
28 Senator HANSEN. You say they have not been?
28 Mr. EICHBAUM. As far as I know, that is right, sir.
28 Senator HANSEN. You mean under the grandfather clause or under the
so-called Wallop amendment?
28 Mr. EICHBAUM. That is correct, sir.
28 Senator HANSEN. I can provide you with some specifics that were - where
your department has had such a request for some time, in Wyoming, and I am just
amazed that you are not aware of that.
28 Mr. EICHBAUM. Mr. Lovell, from the assistant secretary - for lands and
waters, may be able to address that.
28 Senator HANSEN. Are you aware of the request by the Cooksleys in
Wyoming? Are you not aware of that?
28 Mr. LOVELL. I am not aware of that.
28 Senator HANSEN. Maybe you are not aware of that, but it has been down
there 2 years, I think; maybe not quite that long.
28 Mr. EICHBAUM. If a request came in tomorrow, the processing of that
request would take some period of time. Much of the work on that processing can
go forward within the department now, notwithstanding the limitation of the
stipulation that was entered into, the final event, which does have to take
place - is the approval or the appropriation by the department of a programmatic
EIS for coal leasing.
28 That, within the department, is scheduled to be done next year and that
would support then the exchange of lease plan after the preliminary work - with
respect to that particular exchange had been done. So it was also felt that as
a practical matter that there was not a major time delay impact and that some
work could be done.
28 The final point they make is that that stipulation does not affect at all
the provision in the Wallop amendment, which would allow exchanges for feed
coal. So there is room to implement that section.
28 Senator HANSEN. You mean under your stipulation there is room to
implement that?
28 Mr. EICHBAUM. Yes, and only upon the feed coal.
29 Senator HANSEN. Maybe I misunderstand what the stipulation provides
for. But my understanding was that the stipulation limits the trading of coal
under alluvial valley floors for coal outside of the alluvial valley floors to
those operators who have a right to mine coal under alluvial valley floors, the
so-called grandfathered mines.
29 Now, are you saying that, despite the fact that a person may not have had
mining operation approved in an alluvial valley floor where the coal was feed
coal, that your stipulation would not deny that feed coal owner the right to
exchange coal outside of an alluvial valley floor?
29 Mr. EICHBAUM. That is my understanding, Senator.
29 Senator HANSEN. I am interested in that because that is precisely the
question that I address here. What would be your response to that? Would that
person have the right?
29 Mr. EICHBAUM. It is my understanding that the interpretation in the
solicitor's office, that the people who negotiated that - the stipulation is
that it does not affect feed coal.
29 Senator HANSEN. I see. Well, we will follow up.
29 Mr. EICHBAUM. I will be happy to provide a detailed statement to you,
Senator.
29 Senator HANSEN. The question has been asked, who would it affect?
29 Mr. EICHBAUM. Operators who have leased coal who would want to exchange
for a new lease. And the whole Hughes decision went to the leasing process.
But the authority that the Secretary has to exchange feed coal was not subject
to the Hughes litigation.
29 Senator HANSEN. My information is that, in the checkerboard pattern of
coal ownership in the West, there are instances wherein an operator would be
mining up to and adjacent or contiguous to coal that is not under lease.
29 I think there is a further provision, is there not, that if an additional
amount of acreage is granted to a lease, then the mineral royalty increases on
all of the coal mine to whatever may have been the fee on this newly acquired
tract.
29 Am I right on that?
29 Mr. EICHBAUM. Senator, I apologize. But the leasing program of the
department is primarily the responsibility of another area of the solicitor's
office, and I don't think I should attempt to answer that.
29 Senator HANSEN. I see.
29 Mr. EICHBAUM. I might be wrong, but I will attempt to obtain an answer
for you.
29 Senator HANSEN. If I could, let me just state the rest of my problem
then, and maybe that would be helpful to you, the problem in resolving what I
think is an important obstacle to orderly development of coal.
29 In the case of a person who has fee coal, exchanges could be made if the
Department were of a mind to make them, which I thought we clearly mandated the
Department to do in the bill. And if that isn't the case, then I would be
interested in knowing what the Department and the Solicitor's opinion is on that
because I thought that was what you were all supposed to be doing.
29 Coal could be exchanged for federally owned coal outside the lease. In
some of these instances, it might be under a surface that was leased out to
someone else or could even be under fee-owned surface only, in which case, of
course, the provisions of the surface mining consent come in; that is another
part of it.
30 Where there is Federal coal outside that could be exchanged and could
be made available and would be part of a logial leasing tract, it would seem to
be in the public interest to remove whatever coal might be so situated while
the mining operation was going forward.
30 Obviously, the reclamation requirements would make it far more expensive
to go back and pick up small tracts later on, once the reclamation work has been
completed. So I should think it would be clearly in the public interest to help
perfect those kinds of trades. And that is what one of my constituents is
interested in doing now. We have had inquiries from two or three different coal
companies who are bypassing coal that could be mined. They can't mine now.
There has been sort of a ban on the leasing of any more coal, as you know, and
yet here is feed coal in an alluvial valley floor, the title of which could pass
to the Federal Government fully implementing the thrust of the surface mining
law if the exchange could be made, if they have just had no luck at all in
trying to get that sort of trade implemented.
30 I will be glad to give you more detail on that.
30 Ms. DAVENPORT. Senator, we will be happy to get a full answer for you.
The matter of trading coal for coal, whether it be leased coal or fee coal,
falls primarily within the auspices of the Assistant Secretary for Land and
Water. We will also check - if you can provide us with a little more
information as to where that request of 2 years ago is.
30 Senator HANSEN. I must admit that I think I am guilty of hyperbole bole
when I say 2 years ago; it was not that long, it just seems that it was that
long. We have had a lot of phone calls and correspondence, but it was not that
long. Secondly, the other problem that I think is of importance is the matter
of the royalty fee. No one objects as far as I know to a revised royalty being
applied. But when you look at a small tract of land containing coal which could
be removed and you try to work out the economics of the situation, if you must
include in the cost of that tract the increased royalty that would have to be
paid on coal that was mined with a lower royalty, in effect it does change the
formula. And again, in my judgment, it would seem not to be in the public
interest to have the operator be able to acquire this new lease only if he were
able to bring back the extra royalty on coal that had been mined or leased under
a different arrangement.
30 Obviously, what I am saying is that whatever it costs us to mine coal,
ultimately it would have to be paid for by the users of energy. So let's not
delude ourselves - as I think many of us earlier were inclined to do - in
thinking that we can do lots of things and it won't hurt anybody; it will just
be the coal companies that are going to have to pay the bill.
30 The people, of course, who are going to have to pay the bill are those
who turn on their lights switches. They may be in Arkansas or St. Louis, or
they may be in San Antonio, Tex. But wherever they are, if the coal is mined
they are going to have to pay the bill. And I should think it is clearly in the
public interest to remove what coal logically ought to be removed, under an
arrangement that makes sense, without adding extra difficulties or impediments
to the operation so as to result in a decision being reached that, despite the
fact that the coal is there and could be mined, it could be mined now while
mining operation is ongoing.
31 The impact of it financially would be such as to dissuade an operator
from going forward with it. We will supply you with the information. Thank you
very much. I have no further questions, Mr. Chairman.
31 Senator FORD. If there are no further questions, we thank both the
Secretary and the Director for being with us this morning. There are some
questions that were left pending, particularly Senator Hansen's. And I have
some other answers to questions that you will give us this afternoon, and you
will keep Senator Melcher advised of your proposal on the Indian lands.And we
will be in touch with you from time to time. Thank you very much for your
patience and your answers this morning.
31 [Subsequent to the hearing, the Department of the Interior supplied the
following:]
31 U.S. DEPARTMENT OF THE INTERIOR, OFFICE OF THE SOLICITOR, Washington,
D.C. July 17, 1978.
31 HON. HENRY M. JACKSON, U.S. Senate, Washington, D.C.
31 DEAR SENATOR JACKSON: I recently obtained a copy of my testimony before
your committee on April 27, 1978. In reviewing the transcript, I have noted one
statement which is incomplete and I would like to ensure that the committee has
a comprehensive answer to the question that was asked.
31 Senator Ford asked (Transcript, p. 25): "If you are 11 or 12 weeks late,
you are extending the time of the State(s) to comply or do they still have to
comply within the statutory limit?" I responded: "The State does not have to
implement the permanent regulatory program and operators don't have to follow
the permanent program until such time as a State is approved as the regulatory
authority."
31 My answer was incomplete to the extent that it omitted any reference to
the implementation of a Federal program for a State. Under Section 504(a) of
the Surface Mining Control and Reclamation Act, the Secretary is required to
promulgate and implement, no later than 34 months after enactment (June 3,
1980), a Federal program for a State that does not have an approved State
program. This provision means that, if a State program has not been approved,
the permanent regulatory program will be implemented and enforced through
promulgation of a Federal program for the State at the latest by June 3, 1980.
As a result, industry will have to comply with the performance standards of the
permanent program by that date, regardless of whether the States have all been
approved as regulatory authorities.
31 I hope that this supplemental statement will clarify any misunderstanding
caused by my testimony. I will be glad to provide any further information that
you may need.
31 Sincerely yours,
31 WILLIAM M. EICHBAUM, Associate Solicitor, Division of Surface Mining.
32 @%United States Department of the Interior @%OFFICE OF SURFACE MINING
@%Reclamation and Enforcement @%WASHINGTON, D.C. 20240 @%MAY 25 1978 @%Honorable
Dale Bumpers @%Chairman, Subcommittee on @%Public Land and Resources @%of the
Committee on Energy @%and Natural Resources @%United States Senate @%Washington,
D.C. 20510 @%Dear Mr. Chairman:
32 Attached is a set of Senator Hansen's questions and OSM's answers
thereto. These questions were submitted to us during the Subcommittee oversight
hearings on April 24, 1978. I am submitting these responses for that record
as per discussions at that time.
32 Two questions proposed in the course of the hearing on April 24, 1978
prompted further review by our Office. I would like to submit this statement to
amplify the record on these subjects.
32 Senator Ford asked about the effect of the Act on surveyors. OSM has
prepared a draft study of that question. We have discussed the draft with a
State surveyors' organization. This study should be started in early June and
will run for a few months. As soon as the results are in, we will advise the
Congress of the results and any recommendation we may have at that time.
32 Senator Ford also asked about OSM experience with small operators'
exemptions.As of May 17, 1978, we have received 1,030 applications for small
operators' exemptions. Five hundred and eighty five were approved and 250 were
pending (because the application was incomplete or additional information was
being reviewed). A total of 195 were rejected. Of this total, 40 were late in
applying; 130 involved permits issued or renewed after August 3, 1977; and, 25
involved operations with tonnage exceeding the legal limit.
32 I appreciate the interest and the cooperation shown by the Committee and
the staff. If there are any additional inquiries, please let me know.
32 Sincerely,
32 Walter N. Heine, P.E. Director
32 Attachment
33 OSM Answers to Senator Hansen's Questions
33 1. What is OSM doing with respect to Alluvial Valley Floors?
33 A. We are in the process of developing a set of guidelines that can be
used to identify the existence of alluvial valley floors, their characteristics
and the other information pertinent to mining and reclamation. It is
anticipated that these guidelines will be specific and thorough enough so
skilled individuals from industry, State or Federal agencies or other groups can
apply them and reach the same conclusions for any specific sites.
33 For instance, the first step of this effort is to setforth
"rules-of-thumb" and evaluation criteria that individuals could use in a
reconnaissance of a site to quickly determine if there is a reasonable potential
for an alluvial valley floor or little or no potential for their existence.
These "rules-of-thumb" would allow quick separation of possible alluvial valley
floor areas from other areas by a series of field observations. These
observations include for instance: presence of flood irrigation or water
spreading structures; georgraphology; vegetation differenes across streams and
upland; land-use (hay cropping, etc.).
33 When a draft of this initial paper becomes available and has been
reviewed by the States, I will forward a copy to the Committee.
33 2. Do the Interim Regulations address Alluvial Valley?
33 A. Yes. The regulations include standards for protecting the "essential
hydrologic functions" of alluvial valley floors pursuant to the inclusion of
Sec. 515(b)(10) in the initial regulatory program. The regulations also
included the Sec. 510(b)(5) test for new mine starts on alluvial valley floors
since its exclusion would jeopardize any such mines with the approval of a
permanant State regulatory program or the imposition of Federal program at the
end of 34 months after enactment (Sec. 504(a)).
33 3. Why wasn't this Alluvial Valley Floor Task Force started earlier?
33 A. OSM did not have the resources to specifically address alluvial
valley floors in depth during the preparation of the interim regulations. These
regulations were prepared by a group composed primarily of individuals from
other agencies because no funds had been appropriated for OSM activities.
33 In addition, some of the same individuals required for larger effort (the
interim regulations) are those also working on the "alluvial valley floor"
guideline effort.
34 4. Who is on the Task Force?
34 The first meeting of the OSM State and other Federal agency members was
April 7th. An attendance list of these meeting is attached.
34 5. Any industry members?
34 A. No, but neither are there representatives from any other interest
group. It seemed best to limit the initial effort to the States and OSM in
order to see if we could quickly develop and agree on some guidelines. The
smaller the group, the better the chance for success. Obviously, when the
States and OSM agree on guidleines, these will be released to the public and
comments solicited. Eventually, such guidelines may be issued as part of the
Federal regulations governing the program and at that time formal comments from
all parties would be forthcoming.In the meantime, we have made available to
anyone who has so requested, copies of the materials circulated at the April 7th
meeting and I anticipate we will do so for future meetings of this group.
34 6.What technical references will be utilized by the Task Force?.
34 A. Such references will be noted in the technical materials prepared by
this group. A copy will be sent to the Committee when completed.Some are
included in the enclosed materials from the April 7th meeting.
34 7. Western State proposals?
34 A. Several of the Western States have either set forth proposals or
commented on materials provided to them by OSM.
35 8. Q. and A. A copy of these proposals, as well as the materials
distributed prior to and at the April 7th meeting are enclosed for the
Committee.
35 9. When do you expect to reach full staffing with OSM personnel?
35 A. We now anticipate that we will be at full strength by September 30.We
have approximately 100 people on board now, and expect to add about that many
again in the next four to five weeks.By early summer we should have close to
half our total strength of 800, with the remainder coming on board in the last
quarter of the fiscal year.
35 10. How are you approaching the problem of preparing an environmental
impact A statement?
35 A. Basically, we are relying on a team of specialists being borrowed
from other agencies because we do not yet have people in-house for this work.
The EIS team is being assembled now. A timetable has been developed for
completion of the EIS in concert with the final publication of the permanent
regulations about November 1. Their first task will be to assemble information
from the personnel who are drafting the regulations. They will then begin the
environmental analysis of all the viable alternatives based on each section of
the regulations.
35 11. Don't you need to have the permanent regulations in draft form to
assess this impact?
35 A. Yes, but we will begin to work based on our preliminary in-house
drafts of the regulations.
35 12. Is an economic impact analysis being prepared?
35 A. Yes. A Regulations Analysis Study Group has been assembled and is
currently working closely with the drafters of the permanent program regulations
in the development and analysis of the economic consequences of significant
alternatives for implementing performance standards, permits and bonding
requirements, and certification and training of blasters requirements of P.L.
95-87.
35 13. How many people have been assigned to this effort?
35 A. The Regulatory Analysis Study Group consists of five professional
experts in the fields of mining economics, reclamation, environmental
protection, national economics, and writing-editing and one administrative
assistant for a total of six. Additional personnel will be added as required to
accomplish the regulatory analysis.
36 14. On alluvial valley floors, what specifically are "undeveloped
range lands which are not significant to farming" and what specifically is "of
such small acreage as to be of negligible impact on the farm's agricultural
production?" Are the essential hydrological functions" to be preserved relating
to agricultural activities, geology, or fluvial systems?"
36 A. With respect to the questions addressed to Alluvial Valley Floors,
the Office of Surface Mining is presently conducting a detailed analysis of
these and related questions in conjunction with other agencies of the Federal
Government and the States. We anticipate that that analysis will answer many of
these questions and we will forward a copy of the working paper to the Senate
upon its completion.
36 15. Specifically, when will the final regulations for the permanent
regulatory program be promulgated.
36 A. Our present schedule calls for issuance of final regulations by the
first week of November. Our schedule also calls for informal seminars in late
June and public hearings in four different places in the United States in early
September.
36 16. In some cases leaving the high wall in part will result in less
surface disturbance and provide additional wildlife habitat. Can a provision be
added for a variance to permit leaving part of a high wall when justified as
more desirable for reclamation?
36 A. As you know, the leaving of highwalls was extensively debated by
Congress over the years the Act was being developed. As a result of this
debate, more flexibility was incorporated into the bill to permit variances from
approximate original contour reclamation provided the operator documents the
proposed use of the mined land (515(c) and (e)).These variances provide a means
to meet wildlife habitat and most other land use needs while eliminating
highwalls.
36 17. Liability for revegitation for ten years is totally unreasonable in
most cases. Can a variance to five years be provided when justified?
36 A. The Act requires that operators retain responsibility for success of
their revegetation efforts five full years except where rainfall is twenty-six
(26) inches or less annually; then the responsibility extends to ten full
years.It appears clear that Congress intended no shortening (by regulation) of
the time below ten years in the lesser rainfall areas of the country
(515(b)(20)).
37 18. The use of the Abandoned Mine Reclamation Fund under Title IV of
the Act is regulated in the Act by a set of priorities. Section 402(g)(2) of
the Act seems to pose an obstacle to the States exercising flexibility in using
these funds in the areas where the most serious impact from mining is felt. In
Wyoming the most serious need is to provide construction of public facilities in
areas impacted by coal development. The question is, will the Office of Surface
Mining work with the States in applying the Act and the funds available under it
to address the most serious problems facing the State? Second, what kind of
regulations or guidelines are being developed by the Office of Surfacing Mining
in order that such a flexible policy can be implemented?
37 A. Section 402(g)(2) of the Act authorizes use of the State's share of
the Abandoned Mine Reclamation Fund for assistance to areas impacted by current
coal development under specified conditions. The conditions include a
requirement that the objectives of Section 403 of the Act, with respect to lands
previously mined for coal, and section 409(a), with respect to previous mining
for other mineral and materials, be met. Further, funds available under the
Federal Mineral Leasing Act of 1920, as amended, or the Act of October 20, 1976,
P.L. 94-565, must be inadequate to meet the needs of the impacted area for
construction of specific public facilities. While we will work with the States
to assure that these requirements are interpreted reasonably, we have no choice
but to require that they be met before the Fund is used for impact assistance.
38 OUTLINE FOR GUIDELINES ON IDENTIFYING AND PROTECTING ALLUVIAL VALLEY
FLOORS DURING INTERIM PROGRAM
38 Background
38 A. Legislative history.
38 1. House, Senate, and Conference reports.
38 2. Concerns of Western members of Congress.
38 B. Provisions of Act.
38 C. Interim OSM regulations.
38 Structure of guidelines
38 A. Based on administrative process for permits, approval of plans,
supervision of mining and reclamation process, and release from bond.
38 B. Sequence of use of guidelines reflects changes in information needed
during administrative process.
38 Part 1. Initial determination
38 A. Rules of thumb for permittee.
38 B. Criteria for evaluation.
38 Part 2. Determination when there is disagreement
38 A. Site-specific requirements for permittee.
38 B. Criteria for making final determination.
38 Part 3. Provisions under Section 510 of Act
38 A. Surveys and data to be collected by permittee.
38 1. Based on Part 715.17 of OSM regulations.
38 B. Criteria for permit approval.
38 1. Significance to farming.
38 2. Negligible impact on farming.
38 3. Material damage to water supply.
38 Part 4. Provisions under Section 515 of Act
38 A. Requirements for plans and baseline data by permittee before mining.
38 B. Criteria for supervising mining and reclamation process.
38 C. Criteria for release from reclamation bond.
39 GUIDELINES ON IDENTIFYING AND PROTECTING ALLUVIAL VALLEY FLOORS DURING
THE INTERIM PROGRAM
39 Background
39 Legislative consideration by the Congress of the effect of surface coal
mining on alluvial valley floors in Western valleys was prompted by a statement
in a report issued in 1974 by the National Academy of Sciences:
39 In the planning of any proposed mining and rehabilitation it is essential
to stipulate that alluvial valley floors and stream channels be preserved. The
unconsolidated alluvial deposits are highly susceptible to erosion as evidenced
by the erosional history of many Western valleys which record several periods of
trenching in the past several thousand years . . . Removal of alluvium from the
thalweg of the valley not only lowers the water table but also destroys the
protective vegetation cover by draining soil moisture. Rehabilitation of
trenched valley floors would be a long and expensive process and in the interim
these highly productive grazing areas would be removed from use.
(Rehabilitation Potential of Western coal lands:
39 Ballinger Publishing Company, Cambridge, Mass., 198 p., see p. 44-45;
1974.)
39 In considering alluvial valley floors, the Congress recognized the
speical role of such areas in maintaining agricultural activities, and it
ultimately defined alluvial valley floors and provided for their protection.
The role of alluvial valley floors in Western agriculture was expressed as
follows:
39 Of special importance in the arid and semiarid coal mining areas are
alluvial valley floors which are the productive lands that form the backbone of
the agricultural and cattle ranching economy in these areas. For instance, in
the Powder River Basin of eastern Montana and Wyoming, agricultural and ranching
operations which form the basis of the existing economic system of the region,
could not survive without hay production from the naturally subirrigated and
flood irrigated meadows located on the alluvial valley floors. (House Report
No. 95-218, p. 116; 1977.)
40 In deciding on a definition of alluvial valley floors, the Congress
indicated its understanding that these necessary agricultural activities in
alluvial valley floors were made possible by a combination of geological and
hydrological features. These were discussed as follows:
40 Alluvial valley floors refers to those unconsolidated deposits formed by
streams (including their meanders) where the ground water level is so near the
surface that it directly supports extensive vegetation or where flood stream
flows can be diverted for flood irrigation. . . . In more technical terms,
alluvial valley floors are the upper, near-horizontal surface of the
unconsolidated stream-laid deposits which border perennial, intermittent, or
ephemeral streams. The alluvium that makes up the stream-laid deposits is
composed of clay, silt, sand, gravel, or similar detrital material that has
been, or is being, transported and deposited by streams. Alluvial valleys
within this definition are traversed by perennial or intermittent streams or by
ephemeral stream channels; are irrigated in most years by diversion of natural
flow or ephemeral flood flow on the modern flood plain and adjacent low
terraces, or by subirrigation of the flood plain by underflow; and are used for
the production of hay and other crops that are an integral part of an
agricultural operations. (House Report No. 95-218, p. 118-119; 1977.)
40 Such considerations were condensed in the definition adopted in the Act
(Section 701(1) of P.L. 95-87):
40 For the purposes of this Act . . . "alluvial valley floors" means the
unconsolidated stream laid deposits holding streams where water availability is
sufficient for subirrigation or flood irrigation agricultural activities but
does not include upland areas which are generally overlain by a thin veneer of
colluvial deposits composed chiefly of debris from sheet erosion, deposits by
unconcentrated runoff or slope wash, together with talus, or other mass movement
accumulation and wind-blown deposits.
41 This brief definition established the existence of a sufficient water
supply as a means of identifying an alluvial valley floor, but the Congress did
not give criteria by which the adequacy of this supply for agricultural
activities could be determined. The exclusion of upland areas resolved
confusion that at one time clouded the question of how much land would be
affected by being classified as alluvial valley floors (House Report 93-, p. ).
The nature of upland areas was described in terms of the presence of colluvial
and wind-blown deposits, but the existence of such materials in an alluvial
valley floor, as a place characterized by stream-laid deposits holding streams,
was not logically excluded.
41 Hydrologic considerations were also emphasized in the two parts of the
Act (Sections 510 and 515) that deal directly with protection of alluvial valley
floors, namely:
41 Sec. 510(b) No permit or revision applications shall be approved unless .
. . the regulatory authority finds . . . that . . .
41 (5) the proposed surface coal mining operation . . . would -
41 (A) not interrupt, discontinue, or preclude farming on alluvial valley
floors that are irrigated or naturally subirrigated, but, excluding undeveloped
range lands which are not significant to farming on said alluvial valley floors
and those lands as to which the regulatory authority finds that if the farming
that will be interrupted, discontinued, or precluded is of such small acreage as
to be of negigible impact on the farm's agricultural production, or
41 (B) not materially damage the quantity or quality of water in surface or
underground water systems that supply these valley floors.
42 Sec. 515(b)(10) minimize the disturbances to the prevailing hydrologic
balance at the mine-site and in associated offsite areas and to the quality and
quantity of water in surface and ground water systems both during and after
surface coal mining operations and during reclamation by . . .
42 (F) preserving throughout the mining and reclamation process the
essential hydrologic functions of alluvial valley floors in the arid and
semiarid areas of the country.
42 Section 510 excludes mining on alluvial valley floors significant to
farming and excludes mining that would materially damage the water supply of
such alluvial valley floors.Section 515 provides, more generally, for protection
and reclamation of alluvial valley floors irrespective of their significance
to farming. In Section 510, the Congress did not give definitions or criteria
for the terms, "farming," "undeveloped range lands," "significant to farming,"
"small," "negligible impact," and "material damage." In Section 515,
preservation was understood as meaning that:
42 Under site-specific circumstances it is possible to mine on valley floors
and still be able to assure the maintenance of the hydrologic functions of the
area. Where mining is proposed on alluvial valley floors the methods of ground
and surface management would have to be designed for the specific
characteristics of the site. (House Report No. 95-218, p. 118.)
42 Preservation of the hydrologic functions was explained as follows:
42 Preserving the essential hydrologic functions during the mining process
includes assuring that the water balance both upstream and downstream of the
mine is maintained so that natural vegetation cover is not destroyed and the
erosional balance of the area is not seriously disrupted. In addition, upon the
completion of mining, the backfilling, placement of material, and grading, must
assure that the hydrologic function of the area prior to mining is continued and
that the operation does not become a barrier to water movement and availability
in the valley deposit. (House Report No. 95-218, p. 118.)
43 Further, to the extent that alluvial valley floors are part of area
affected by mining, whether on-site or off-site, the Congress provided for their
protection under the general provisions on minimizing disturbances to the
prevailing hydrologic balance, as required under Section 515(b)(10). An
assessment by the regulatory authority of the probable cumulative impact on the
hydrologic balance was required to be one of the findings for approval or denial
of an application for a mining permit under Section 510(b). The particular
kinds of data to be collected and analyzed for this assessment were specified in
Section 507(b)(11), as follows:
43 Sec. 507(b) The permit application . . . shall contain . . .
43 (11) a determination of the probable hydrologic consequences of the
mining and reclamation operations, both on and off the mine site, with respect
to the hydrologic regime, quantity and quality of water in surface and ground
water systems including the dissolved and suspended solids under seasonal flow
conditions and the collection of sufficient data for the mine site and
surrounding areas so that an assessment can be made by the regulatory authority
of the probable cumulative impacts of all anticipated mining in the area upon
the hydrology of the area and particularly upon water availability.
43 The standards pertinent to the hydrologic balance were understood to be
as follows:
43 Principal environmental standards pertaining to the hydrologic balance
focus on preventing toxic drainage, prevention of sedimentation and siltation
using the best technology available, avoidance of channel-deepening and
enlargement, restoration of recharge capability of the mine site, and preserving
the functions of alluvial valley floors. (House Report No. 95-218, p. 114.)
44 In preparing interim regulations on alluvial valley floors, the
Department of Interior adopted performance standards that reflect the
requirement of the Act to minimize disturbances to the prevailing hydrologic
balance by preserving the essential hydrologic functions of alluvial valley
floors (Federal Register, vol. 42, no. 239, p. 62656). That is, the regulations
stem from the mandate of the Congress to protect the water supply that is
necessary for the kinds of agricultural activities carried on in alluvial valley
floors. More generally, the regulations reflect the understanding of the
Congress that the existence of a water supply is implicit evidence that certain
associated geologic and hydrologic conditions, which cause an alluvial valley
floor to function as a place for agricultural activites, are also present. The
regulations address the geologic and hydrologic conditions by providing further
definitions and by expressing the hydrologic functions of alluvial valley floors
in terms of certain measurable physical features and properties.
44 With respect to the hydrology of alluvial valley floors, the pertinent
definitions in the regulations - other than those in the Act - are: "aquifer,"
"essential hydrologic functions," "flood irrigation," "ground water,"
"hydrologic balance," "hydrologic regime," "intermittent or perennial stream,"
"recharge capacity," "subirrigation," "surface water," and "water table" (Part
710.5).
45 The features and properties of alluvial valley floors by which their
hydrologic functions can be characterized are expressed in the regulations in
conventional terminology, namely: longitudinal profile and cross-sectional shape
of the stream channel; aquifers, capillary zones, perched water zones, and
confining beds; quantity and quality of surface and ground water that supply
alluvial valley floors; depth to and seasonal fluctuations of ground water
beneath alluvial valley floors; configuration and stability of the land surface
of alluvial valley floors; and moistureholding capacity o