Senate Report No. 28
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Legislative History Senate Report No. 28 |
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Preamble
(a) No person shall open or develop any new or previously mined or
abandoned site for surface coal mining operations on
Mr. METCALF, from the Committee on Interior and Insular Affairs, submitted
the following
REPORT
together with
MINORITY AND ADDITIONAL VIEWS
[To accompany S. 7]
The Committee on Interior and Insular Affairs, to which was referred the
bill (S. 7), to provide for the cooperation between the Secretary of the
Interior and the States with respect to the regulation of surface coal mining
operations, and the acquisition and reclamation of abandoned mines, and for
other purposes, having considered the same, reports favorably thereon with an
amendment and recommends that the bill, as amended, do pass.
The text of S. 7 as reported follows:
2 A BILL
2 To provide for the cooperation between the Secretary of the Interior and
the States with respect to the regulation of surface coal mining operations, and
the acquisition and reclamation of abandoned mines, and for other purposes.
2 Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled, That this Act may be cited as the
"Surface Mining Control and Reclamation Act of 1975".
I. PURPOSE
172 The purpose of S. 7, the "Surface Mining Reclamation Act of 1975", is
to establish an environmentally strong and administratively realistic program
for the regulation of coal surface mining activities and the reclamation of coal
mined lands. More specifically, the purposes of S. 7 as reported by the
Committee, are to assure that surface coal mining operations - including
exploration activities and the srface effects of underground mining - are
conducted so as to prevent or minimize degradation to the environment, and that
such surface coal mining operations are not conducted where reclamation is not
feasible according to the terms and conditions of the Act.
172 Federal legislation regulating surface mining - and particularly surface
mining for coal - is needed now. While a number of States do have surface
mining reclamation programs, regulation of surface coal mining is not uniform,
and in many instances is inadequate. S. 7 as reported by the Committee would
provide minimum Federal standards for surface coal mining and reclamation
activities to be administered and enforced by the States, and by the Secretary
of the Interior on public lands. S. 7 would provide assistance to the States to
improve their regulatory and enforcement programs and authorizes funding to the
States for that purpose. In the event that a State fails to comply with the
Act, the bill provides for Federal enforcement of the State Program, or for
establishment of a Federal Program under the authority of the Secretary of the
Interior.
172 The bill also provides for the creation of State mining institutes, and
of an abandoned mine land reclamation fund for the reparation of past damages.
II. NEED
172 In recent years the coal industry has experienced a significant shift
in technology from predominantly underground mining. Although strip mining
first started before World War II, it did not become a significant technology
for mining coal until the early 1960's when, for the first time, over 30 percent
of the country's coal was produced in surface mines. In 1974, over half of the
coal produced came from surface mines.
172 Each week some 1,000 acres of land are disturbed by the surface mining
for coal. As of January 1, 1972, there were 4 million acres of land disturbed
by surface mining, of which 1.7 million acres (43 percent) were disturbed by
surface mining for coal, 1.3 million of these acres in the Eastern coalfields.
Only about half these lands have been reclaimed.
172 Federal legislation to regulate surface coal mining is long overdue.
The coal industry can afford the cost of reclaiming surface mined land. What it
cannot afford is the continuing uncertainty created by failure to resolve this
issue. Enactment of the Surface Mining Control and Reclamation Act will enable
the coal industry to proceed with development of our Nation's vast coal
resources in a manner which will assure that the other natural resources of our
country will not be unnecessarily damaged.
173 Congress has been actively considering surface coal mining legislation
for the past 4 years. During the 93d Congress the Senate passed a bill in
October of 1973 by a vote of 82 to 8. The House passed its amendment to the
Senate bill in July of 1974 by a vote of 291 to 81. The conference committee
met almost 30 times for over 100 hours to resolve the differences between the
Senate and House versions of the bill.
173 In December 1974, after 4 years of intensive congressional debate,
Congress believed that it had resolved the surface mining issue by sending to
the President a bill, S. 425, identical to S. 7, as introduced. Unfortunately,
the end product of all this intensive study and debate did not become law
because the President pocket-vetoed that bill without even giving the Congress a
chance to override the veto by returning it before adjournment.
173 It is also worth recalling today that industry has in the past fought
strip mining bills far less stringent measures than the legislation before
Congress today. The delay in enacting legislation, caused largely by industry's
opposition, has brought the nature and scope of the strip mining problem more
sharply into focus. The need for strong regulation of strip mining practices is
more apparent - to more people - than ever before.
173 Surface coal mining activities have imposed large social and
environmental costs on the public at large in many areas of the country in the
form of unreclaimed lands, water pollution, erosion, floods, slope failures,
loss of fish and wildlife resources, and a decline in natural beauty.
Uncontrolled surface coal mining in many regions has effected a stark,
unjustifiable, and intolerable degradation in the quality of life in local
communities.
173 If surface mining and reclamation are not done carefully, significant
environmental damage can result. In addition, unreclaimed or improperly
reclaimed surface coal mines pose a continuing threat to the environment, and at
times are a danger to public health and safety, public or private property.
Similar hazards also occur from the surface effects of underground coal mining,
including the dumping of coal waste piles, subsidence and mine fires.
173 Erosion and siltation of streams occur as a result of surface mining.
In the Eastern coalfields, where spoil is pushed downslope of mountain mines,
landslides, erosion, sedimentation and flooding are common hazards of mountain
surface mining. Unstable highwalls are a hazard to life and property.
Highwalls that crumble and erode from weathering ruin drainage patterns and
significantly add to water pollution. Material falling off the highwall can
retard surface water flow. Erosion increases dramatically when the protective
vegetative cover is removed and the soil is not stabilized. Suspended sediment
concentration in small Appalachian streams draining strip mined areas can be
increased 100 times over that in forest lands. Over 7,000 miles of streams have
been affected by surface runoff from coal stripping operations.
174 In the Western coalfields, many of which are in arid or semi-arid areas,
the environmental problems associated with surface mining are somewhat
different. Erosion rates on Western range lands are among the highest in the
United States for upland areas not under cultivation. The arid climate does not
provide sufficient moisture for a protective vegetal cover. Once this fragile
vegetative cover has been disturbed by mining, erosion increases dramatically.
More important, in areas with little rainfall, restoration of vegetative cover
is virtually impossible without irrigation. Furthermore, in most of the Western
coalfields the coal beds that lie close to the surface are also aquifiers. (For
example, the strippable coal seams in the Gillette, Wyoming, area serve as an
aquifier.) Removal of the coal by surface mining operations would intersect such
acuifiers that are the source of water for many wells. Flow patterns in such
aquifiers would be changed and some parts undoubtedly would be dewatered,
resulting in reduced availability of water for other uses.
174 There are also areas where surface coal mining is totally inappropriate,
such as wilderness areas, areas of historical importance, parks, and wildlife
refuges. In other areas, it may be desirable to prohibit surface mining because
it would be incompatible with existing or planned land use patterns. Of course,
under the provisions of the Act, no surface mining may take place in an area
which cannot be properly reclaimed.
174 Because mining conditions, climate, and terrain vary so greatly among
the different coalfields, administration of a coal surface mining regulation and
reclamation program is more properly done by the States. For example, a program
geared to insure proper mining and reclamation in the mountains of Appalachia
must understandably be different from one suited to regulating these activities
in the arid and semi-arid areas of the West. (Similarly, these regional
differences must be reflected in Federal standards promulgated for surface
mining and reclamation on Federal lands.)
174 While many States already do have laws regulating surface coal mining
operations, in many instances these laws are inadequate, or are not fully
enforced. Most existing State laws and Federal regulations for surface mining
and reclamation are inadequate in that they are tailored to suit ongoing mining
practices, rather than requiring modification of mining practices to meet
established environmental standards. It is the purpose of this Act to effect
changes in those mining practices which result in unacceptable or permanent
environmental damage, and to eliminate those mining operations which cannot be
properly reclaimed.
174 Regardless of the adequacy of a State's mining and reclamation laws, and
assuming good faith on the part of the regulatory agency, problems of enforcing
such laws frequently stem from a lack of funding and manpower to adequately
insure compliance.As a result, violations of the law and regulations are
frequent.
174 Uniform minimum Federal standards are therefore needed to establish
minimum criteria for regulating surface mining and reclamation activities
throughout the country, on both public and private lands, and to assure adequate
environmental protection from the environmental impacts of surface mining in all
States.
175 In order to assure appropriate local administration of these Federal
requirements by the various States, adequate funding and manpower in the State
regulatory agencies are essential. For this reason, financial assistance and
guidelines are needed for the design and enforcement of State surface mining and
reclamation programs in conformance with Federal criteria. It is the purpose of
the bill to provide this necessary assistance.
175 The Committee recognizes that there is an urgent need to balance our
growing demand for energy resources with the increasing stress we place on the
environment in satisfying that demand.
175 Much emphasis is being placed today on greater utilization of our
domestic coal resources as a means for achieving greater energy selfsufficiency.
President Ford, in his most recent energy message to the Congress called for a
doubling of coal production in the next decade.
175 The essential requirement for an adequate supply of domestic energy
resources to support the Nation's social and economic wellbeing is thus being
increasingly recognized as a major national issue. It is clear, particularly in
the case of coal, that we have ample reserves. By all estimates our physical
coal reserves are sufficient to meet our needs, even at greatly increased rates
of consumption, for hundreds of years. We have an abundance of coal in the
ground. Simply stated, the crux of the problem is how to get it out of the
ground and use it in environmentally acceptable ways and on an economically
competitive basis.
175 Federal legislation to regulate coal surface mining and reclamation is a
crucial measure to insure an adequate energy supply while preserving and
maintaining a satisfactory level of environmental quality.
175 The Committee is aware that representatives of the coal industry and the
Administration have expressed great concern about possible "production losses"
which enactment of S. 7 might cause. The figures given vary so widely as to
render them basically meaningless. For example, the Administration has, at
various times, indicated "losses" ranging from 14-141 million tons per year.
175 The Administration's latest estimates are based on four assumptions:
175 "(1) Coal prices would not increase.
175 "(2) Mining technology would remain at its present state.
175 "(3) New mining areas would not be opened in the West.
175 "(4) Capital investments would not increase in mining and related
industries."
175 It is important to note that the Administration expressly states that
"If the reverse of any of the above assumptions occurred, the overall coal
production could increase."
175 In view of the rapid and continuing increase in coal prices and the
large number of proposed new coal mines in the West, it appears very unlikely
that there would be any significant losses of production.
175 The fact is that at current production levels, this country has more
than 500 years of coal reserves. It is ridiculous to talk about a diminition in
production at present prices, must less those anticipated in the future, and it
is even more ridiculous, given the massive amount of our coal reserves, to
refuse to assume the relocation of mining operations, for example, to areas
which can be prudently mined - in estimating the impact of this bill.
176 The purpose of this bill is to effect the internalization of mining and
reclamation costs, which are now being borne by society in the form of ravaged
land, polluted water, and other adverse effects, of coal surface mining. The
Committee believes that this can be done without significant losses in coal
production, under the provisions of S. 7.
III. MAJOR PROVISIONS
176 (1) SURFACE MINING AND RECLAMATION STANDARDS
176 The informational and environmental requirements of this bill are its
most vital provisions. The purpose of the bill is to end the present
environmental degradation from surface coal mining and to prevent it in the
future. To this end the bill sets forth a series of minimum uniform
requirements for all coal surface mining operations on both federal and state
lands. These standards deal with three basic issues: preplanning, mining
practices, and post-mining reclamation. The first requires that an operator
applying for a permit has done certain research regarding adjacent land uses,
the characteristics of the coal and the overburden, and hydrologic conditions.
He must include in his application the planned methodology and timetable for the
operation in a reclamation plan. The second set of requirements provide that
mining methods be used which will minimize or obviate environmental damage or
injuries to public health and safety. These include restrictions on the
placement of overburden, blasting regulations, water pollution control
requirements, and waste disposal standards. The third group of standards regard
reclamation and restoration of the mined land to its pre-mined condition. These
requirements include backfilling and regrading to approximate original contour,
restoration of water quality and quantity, revegetation to pre-mining conditions
and elimination of erosion and sedimentation.
176 It is the Committee's understanding that certain States may wish to
impose more stringent requirements than those minimum standards set forth in the
bill. Some States in fact are already contemplating such measures. However, it
was felt that some minimum uniform floor had to be established for the
protection of the environment at a time when the growth of surface coal mining
is projected to double over the next decade, often in environmentally delicate
areas.
176 (2) PROTECTION OF WATER RESOURCES
176 There are a number of provisions in this bill which are designed to
protect the quality and quantity of water in areas where surface coal mining
operations are being conducted. While coal is in abundant supply in the United
States in certain areas, water is frequently a scarce or precious commodity
which must be protected during the course of mining. Of course, the Committee
recognizes that hydrology conditions vary from region to region. In the East,
for example, heavy rainfall or high sulfur content of the coal in certain areas
result respectively in heavy sedimentation and acid mine drainage. In the West,
where coal seams are frequently aquifers, and rainfall is infrequent, mining
results in loss of water sources and requires years, perhaps decades, for proper
reclamation.
177 In addition, where water is so scarce, competing land uses can
complicate the regulatory agency's decision to allow mining. For example, at a
time when the world is facing an acute food shortage, some of the coal in the
West underlays alluvial valley floors, which are the only arable lands in such
areas.
177 For these reasons, the bill incorporates a number of carefully drawn
provisions for the protection of any area to be mined. The provisions are not
restrictive, but they are fully intended to protect the hydrological integrity
of any area to be surface coal mined or impacted by such mining. The Committee
fully recognizes that there is likely to be some temporary disturbance to water
quality and quantity during the actual mining process, and the language of the
bill reflects this understanding. Thus, the permit application requirements,
reclamation standards, and provisions for designation of areas unsuitable for
mining provide for the protection of scarce and vital water resources.
177 (3) DESIGNATION OF AREAS UNSUITABLE FOR MINING
177 A decision to permit the surface mining of coal is a land use decision,
and as such may at times conflict with other demands on scarce or valued land
resources. For this reason the bill provides for a mechanism - on both State
and Federal lands - for citizens to petition that certain areas be designated as
unsuitable for surface coal mining. Such designation is only temporary, and
always subject to review and revision, but it is designed to minimize land use
conflicts with regard to surface coal mining. However, in order to prevent a
state regulatory authority from conducting an indefinite review, and thus
locking up production needlessly, the bill requires a one year deadline on all
decisions as to designation.
177 In addition to this designation process, the Committee has made a
judgment that certain lands simply should not be subject to new surface coal
mining operations. These include primarily and most emphatically those lands
which cannot be reclaimed under the standards of this Act and the following
areas dedicated by the Congress in trust for the recreation and enjoyment of the
American people: lands within the National Park System, the National Wildlife
Refuge System, the National Wilderness Preservation System, the Wild and Scenic
Rivers System, National Recreation Areas, National Forests, and areas which
would adversely affect parks or National Register of Historic Sites.
177 In addition, for reasons of public health and safety, surface coal
mining will not be allowed within one hundred feet of a public road (except to
provide access for a haul road), within 300 feet of an occupied building or
within 500 feet of an active underground mine.
177 Finally, Title VI of the bill provides for a process for the designation
of Federal lands unsuitable for the mining of minerals other than coal. This
provision was included in the bill, again, as a mechanism for facilitating and
legitimizing land use decisions in areas which have inadequate zoning procedures
to deal with such problems.
177 Since mining has traditionally been accorded primary consideration as a
land use there have been instances in which the potential for other equally or
more desirable land uses has been destroyed. The provisions discussed in this
section were specifically designed and incorporated in the bill in order to
restore more balance to Federal land use decisions regarding mining.
178 (4) VARIANCES
178 The Committee was adamant that there should be no broad exceptions to
the vital mining and reclamation standards of this bill. To provide for
unlimited exceptions would render the bill meaningless, since it would then be
likely that the exceptions would become the rule. On the other hand, the
Committee did recognize that there are some valid and important reasons for
allowing limited variances to the prescribed standards of the bill, where such
variances provide equal or better protection to the environment, and result in a
higher post-mining land use. For this reason, there are three provisions in the
bill which permit variances to the mining-reclamation standards of the bill.
The first permits mountain top mining by granting a variance to the requirement
for restoration to approximate original contour and the prohibition of placing
spoil on the downslope. Rigid criteria are specified for the granting of such a
variance. The second applies to existing surface coal mines in Alaska, which,
after a study by the Department of the Interior, may be granted variances from
certain revegetation standards. The third permits variances from any of the
mining and reclamation standards of the Act, at the Secretary's discretion, for
experimental practices that show potential for improved environmental protection
over prescribed or currently accepted practices.
178 (5) PROTECTION OF SURFACE OWNER RIGHTS
178 Since the mining of coal became a profitable enterprise, there have been
numerous instances in which the mineral estate and the surface estate were
separated, both on public and private lands. State laws govern the resolution
of any disputes about property rights which might arise from such separations,
and this Act does not attempt to tamper with such state laws. The Committee
firmly believes that all valid existing property rights must be preserved, and
has no intention whatsoever, by any provision of this bill, to change such
rights.
178 However, with regard to lands where the Federal government owns the
coal, but not the surface estate, the bill does provide for some departure from
existing practice.
178 When vast areas of public lands were transferred to private interests in
the early part of this century, the mineral rights were withheld for the people
of the United States, as a then revolutionary conservation measure. Over time
and aggravated by the current wish to develop Western coal, this situation has
led to a serious land use confrontation between surface users such as farmers
and ranchers and federal coal lessees. In an effort to mitigate such rivalries
the bill provides for limited and circumscribed surface owner consent as a
condition of issuing a new Federal coal lease. (Existing leases are not
affected by this provision.) It requires that all damages, including lost
income, be repaid, and that limited additional compensation be paid to surface
owner.
179 In order to preclude "blackmail tactics" and "side deals" on the part of
surface owners, all negotiations for damages and compensation are to be carried
on with the Secretary of the Interior, and not with the coal company.
179 (6) ABANDONED LAND RECLAMATION
179 The bill provides for a fund to be used to reclaim "orphaned" or
abandoned mined lands. The fund is to be derived from a reclamation fee to be
levied on every ton of coal mined: 35~/ton for surface mined coal and 25~/ton
for all coal mined by underground methods, or 10% of the value of the coal at
the mine, whichever is less.
179 It is estimated that a million and a half acres of land have been
directly disturbed by all coal mining and over 11,500 of streams polluted by
sedimentation or acidity from surface or underground mines.
179 Estimates for the cost of repairing these continuing damages run from
$6- $10 billion.
179 Although some feel that today's operators should not be required to pay
for their precursor's damages, the Committee strongly believes that the burden
of paying for this reclamation is rightfully assessed against the coal industry,
and, by extension, the consumers of coal. Furthermore, the use of the fund is
not limited to past damages. The bill provides that 50% of all fees collected
in any one state be returned to that State for the purposes of alleviating the
impacts of coal development in the area. Thus, in the West, where there is
relatively little damage from past mining, reclamation fee revenues can be used
to build the appropriate infrastructure to support a rapidly burgeoning surface
coal mining industry. Provisions are made in this title for the rehabilitation
of both publicly acquired and private lands, under the jurisdiction of the
states, the Secretary of the Interior, or the Secretary of Agriculture.
179 (7) RESEARCH INSTITUTES
179 Within the next decade, it is anticipated that coal production will
double, requiring not only a massive influx of capital and equipment, but also
of trained personnel and improved, more efficient and safe mining
techniques.Mining of other minerals will also become increasingly important and
complex. In anticipation of this problem, the bill provides for grants to state
mining schools to train mining engineers, technicians and other personnel, and
to foster and promote research in improved mining, reclamation and health and
safety practices, all of which is to be made available to the public.
179 (8) ENFORCEMENT
179 S. 7 contains comprehensive provisions for inspections, enforcement
notices and orders, administrative and judicial review, and penalties. These
requirements are of equal importance to the provisions of the bill regarding
mining and reclamation performance standards since experience with state surface
mining reclamation laws has amply demonstrated that the most effective
reclamation occurs when sound performance standards go hadn in hand with strong,
equitable enforcement mechanisms.
180 Generally the enforcement provisions of this bill have been modeled
after the similar provisions of the Federal Coal Mine Health and Safety Act of
1969. Where the enforcement provisions of this bill depart of the 1969 Health
and Safety Law, they do so to accomodate the fact that this bill encourages the
states to retain or develop regulatory authority over surface coal mining and
reclamation operations, and seeks to protect the environment and the public
health and safety as opposed to the protection afforded the coal miner on coal
mine property by the Coal Mine Health and Safety Act.
180 Inspections and enforcement: Federal-State Relationships. - The role of
the Federal Government has been carefully delineated in this bill, particularly
in regard to its activities in those situations where the State is the prime
regulatory authority. During the interim period, section 501(f) provides that
beginning no later than one hundred and thirty five days from the date of
enactment and continuing until a State program has been approved or a federal
program has been implemented, the Secretary is required to carry out a federal
enforcement program which includes inspections and enforcement actions in
accordance with the provisions of section 521. The intent of this provision is
to place the Secretary in the role of assuring compliance with the interim
standards during the time of the initial regulatory procedure. The Committee
recognizes that this may to some extent duplicate State activity, however it is
the view of the Committee that this sort of federal presence at the most crucial
time of the administration of this Act will result in uniform, equitable
enforcement of the interim standards and will assure that the requirements of
the Act get off to a good start.
180 Since practically all surface coal mining operations covered by the
initial regulatory procedure are presently regulated by existing State
regulatory authorities (the major exception being operations on federal and
Indian lands), it is not the purpose of this interim federal enforcement program
to place the Secretary of the Interior in the business of issuing mining permits
for operations on lands within the jurisdiction of the States. The bill imposes
a duty upon the States to review and revise existing permits to insure
compliance with the interim standards of section 501, and obliges the States to
issue new permits in accordance with those standards. It is the view of the
Committee, however, that the Secretary would be required to assure State
performance of these duties and obligations, pursuant to the federal inspection
and enforcement provisions of section 501(f).
180 Once State programs or Federal programs replace the initial regulatory
procedure, section 517 requires that federal inspections must be made for
purposes of developing, administering, or enforcing any Federal program, and
assisting or evaluating the development, administration, or enforcement of any
State program.
180 In those situations in which the Secretary is the regulatory authority,
federal inspections must occur on an irregular basis averaging not less than one
inspection per month for the operations covered by each permit. In those
situations where the State is the regulatory authority and the Secretary carries
out inspections for assistance and evaluation purposes, federal inspections
should take place in sufficient frequency to carry out properly these compliance
functions. In addition to normally programmed inspections, section 521(a)(1) of
the bill also provides for special inspections when the Secretary receives
information giving him reason to believe that violations of the Act or permit
have occurred. Of course an inspection, federal or State, must occur without
prior notice to the permittee or his agents or employees.
181 By mandating primary enforcement authority to field inspectors, this
bill recognizes, as does federal mine health and safety legislation, that
inspectors are in the best position to recognize and control compliance
problems. The bill establishes three strong but flexible enforcement mechanisms
which provide inspectors with the tools necessary to respond to the most minor
and the most serious violations.
181 Cessation Order (section 521(a)(2) ). - During any federal inspection if
the inspector determines that any violation of the Act or permit condition or
any other condition or practice exists which creates an imminent danger to the
health or safety of the public, or is causing or can reasonably be expected to
cause significant, imminent environmental harm to land, air, or water resources,
the inspector must order a cessation of the mining operation causing or
contributing to the danger or harm. The cessation order may apply to all or a
portion of the surface coal mining or reclamation operation in question. The
imminent danger or environmental harm closure provision is so critical that it
is the only place in the bill where the federal inspctor is required to act even
if the inspection is being made for the purposes of monitoring a State
regulatory authority's performance.To provide otherwise would be to perpetuate
the possibility of tragedies such as the Buffalo Crook Flood, which can be at
least partially attributed to the sad fact that Government regulation of the
collapsed mine waste banks fell between the cracks of the not quite meshed
functions of various State and federal agencies.
181 Two other points are necessary to fully explain this provision. Since
neither the Congress or any regulatory authority can totally predict the public
and environmental hazards arising from such a complex endeavor as surface coal
mining, the bill does not restrict the closure authority of section 521(a)(2) to
violations of the Act or permit. Instead any condition or practice giving rise
to imminent danger or environmental harm is sufficient to invoke the authority.
Lastly while section 701 (28) provides a definition of "imminent danger to the
health or safety of the public," there is no definition in the bill for the
phrase "significant, imminent environmental harm to land, air, or water
resources." This phrase may be undefinable in the abstract, although relatively
easy to identify in the concrete; however it is crucial to point out that not
only must the environmental harm be imminent but it must also be significant .
Since surface coal mining operations by their very nature cause s some degree of
environmental harm to land, air, or water resources, even when in full
compliance with standards such as are contained in this bill, the immediate
cessation order based on significant, imminent environmental harm must not be
invoked in cases where only permissive, controlled, or temporary environmental
harm is occurring.
182 Notice of Violation (section 521(a)(3)) . - Where the Secretary is the
regulatory authority and a federal inspector determines that a permittee is
violating the Act or his permit but that the violation is not causing imminent
danger to the health or safety of the public or significant, imminent
environmental harm, then the inspector must issue a notice to the permittee
setting a time within which to correct the violation. If the violation has not
been corrected, in the opinion of the inspector, within the established time,
the inspector must immediately order a cessation of the mining operation
relevant to the violation. The enforcement mechanism of section 520(a)(3) will
be utilized by the inspector in the great majority of compliance problems. It
not only enables the inspector to gain immediate control of the problem, but
also provides him with essential flexibility to appropriately deal with minor as
well as major violations.
182 In order to prevent federal-state overlap, the federal inspector is only
to use his authority under section 521(a)(3) where the Secretary is the
regulatory authority. However in other circumstances the Secretary must insure,
in accordance with the provisions of section 521(a)(1), that the State is
notified of the compliance problem so that it may act under the terms of the
approved state program.
182 Show Cause Order (section 521(a)(4) ). - Where the Secretary is the
regulatory authority and a federal inspector determines that a pattern of
violations of the Act or permit exists or has existed and that such violations
are caused by the unwarranted failure of the permittee to comply or are
willfully caused by the permittee, the inspector must issue an order to the
permittee to show cause as to why his permit should not be suspended or revoked.
If the permittee fails to show cause as to why the permit should not be
suspended or revoked, the inspector must immediately suspend or revoke the
permit.
182 This provision requires that suspension or revocation of a mining permit
be preconditioned upon conduct which demonstrably fails to meet the standards of
care and diligence which are to be expected of permittees who seek to comply
with the law. This is a sound approach particularly in light of the stringency
of the closure authority previously discussed.
182 While the bill grants a great deal of authority to federal inspectors,
it is important to remember that adequate protection must be afforded the
regulated parties against the possibility of abuse of this authority. To this
end, formal internal administrative review and judicial review of inspectors'
decisions are permitted by sections 525 and 526 respectively. Furthermore
section 521(a)(5) insures that due process will begin at the field level and
provides the opportunity to modify, vacate, or terminate a clearly erroneous
notice or order without the burden of more formal administrative review.
182 Finally it should be noted that while section 521 speaks in terms of
federal enforcement, section 521(d) provides that as a condition of approval of
any state program submitted pursuant to section 503 of this Act, the enforcement
provisions thereof shall at a minimum incorporate sanctions no less stringent
than those set forth in section 521 and shall contain the same or similar
procedural requirements relating thereto. The Committee expects that the
Secretary will use the format of section 521 as the basis for measuring whether
state enforcement mechanisms are sufficiently strong and flexible to warrant
approval of that portion of submitted state programs.
183 Administrative Review. - In order to assure expeditious review and due
process for persons seeking administrative relief of enforcement decisions of
Federal inspectors under the provisions of section 521, section 525 of the bill
establishes clear, definitive administrative review procedures. Those persons
having standing to request such administrative review include permittees against
whom notices and orders have been issued pursuant to section 521 and persons
having an interest which is or may be adversely affected by such notice or
order. Any person with standing may request a public hearing which must be of
record and subject to the Administrative Procedure Act. Pending review the
order or notice complained of will remain in effect, except that in narrowly
prescribed circumstances temporary relief may be granted from a notice or order
issued under section 521(a)(3). In no case, however, will temporary relief be
granted if the health or safety of the public will be adversely affected or if
significant, imminent environmental harm will be caused. This provision will
insure that the mining and reclamation performance standards will continue to
protect the public health and safety or the environment during any
administrative proceeding in which their validity is challenged, until the issue
is determined on the merits.
183 In all cases where a section 521(a)(4) show cause order has been issued
a public hearing must be held. The Secretary must issue a decision within sixty
days following the completion of the hearing as to whether or not to suspend or
revoke the permit. Pending this decision, the permittee may continue to operate
if he is otherwise in compliance with the Act or his permit. The alternatives
of suspension or revocation are within the discretion of the Secretary. It is
expected that the degree of seriousness of the types of violations and kinds of
conduct giving rise to the show cause order will be the dominant factor
considered by the Secretary in making his decision. These factors should also
be considered by the Secretary in his determination of the lengths of suspension
periods. On the other hand, in determining the period following revocation
within which reclamation must be completed, weight should also be given to the
practicalities of the reclamation which needs to be performed. The Committee
also expects that the Secretary will give highest priority to administrative
review of section 521(a)(4) show cause orders.
183 Judicial Review. - Section 526 of the bill establishes specific
provisions for judicial review of Secretarial actions. Because of the
thoroughness and degree of due process afforded judicially reviewable actions by
the Secretary, judicial review is to be based on the record made before the
Secretary. The courts should render their decisions on the basis of whether or
not the Secretary's decision was arbitrary and capricious or supported by the
record. Temporary relief from Secretarial decisions may be granted only under
the same kind of narrowly prescribed circumstances as discussed above in the
context of administrative review.
184 Penalties. - Where the Secretary is the regulatory authority, section
518 of the bill provides that civil penalties will be mandatory for violations
leading to a cessation order under section 521. The Secretary has discretionary
authority to assess civil penalties for other violations. The Secretary is
required to make findings of fact and issue a written decision as to the
occurrence of a violation and the amount of the penalty which is warranted only
where the person charged has availed himself of the opportunity for a public
hearing and the hearing has, in fact, been held. The bill also provides that
approved State programs must contain criminal and civil penalties no less
stringent than the Federal provisions with the same or similar procedural
requirements relating thereto. Aside from the aforementioned points, the civil
and criminal penalty provisions of the bill are generally identical to those of
the Federal Coal Mine Health and Safety Act of 1969.
IV. RELATIONSHIP OF S. 7 AS REPORTED TO ADMINISTRATION'S RECOMMENDED
CHANGES
184 On February 6, President Ford transmitted to Congress the
Administration's proposed surface coal mining bill which was introduced as S.
652. In his transmittal letter (reprinted in Part X of the report) the
President set out the eight "critical" and 19 "important" differences between
the Administration's proposal and S. 7.
184 The Committee reviewed the President's letter very carefully. On
February 19, representatives of the Department of the Interior explained the
proposed changes to the Committee at a public meeting.A number of the changes
recommended by the President are included in amendments recommended by the
Committee. The President's recommendations (in the order they appear in his
February 6 letter) are set out below together with the Committee's comments and
recommendations.
184 CRITICAL CHANGES
184 1. Citizen suits. Administration Recommendations: "S. 425 would allow
citizen suits against any person for a 'violation of the provisions of this
Act'. * * * Citizen suits are retained in the Administration bill, but are
modified * * * to provide for suits against (1) the regulatory agency to enforce
the act, and (2) mine operators where violations of regulations or permits are
alleged."
184 Committee Comment: Section 520 of S. 7 is identical to the citizen suit
provision in the Deepwater Port Act of 1974, which the President signed into law
one day after his pocket-veto of S. 425. The Committee does not believe that
this provision will lead to undue harrassment of operators.
184 Committee Recommendation: No amendment.
184 2. Stream siltation. Administration Recommendation: "S. 425 would
prohibit increased stream siltation - a requirement which would be extremely
difficult or impossible to meet and thus could preclude mining activities. In
the Administration's bill, this prohibition is modified to require the maximum
practicable limitation on siltation."
185 Committee Comment: This recommendation is based on an interpretation of
Section 515(b)(10) of S. 7 which is inconsistent with the entire legislative
history. Both the Senate and House recognize that surface mining involves at
least temporary disruption of the environment. S. 7 accepts this fact and is
not a "ban" bill.
185 The Administration fears that some court will interpret "prevent" on
page 84, line 13, as a ban despite the overriding language on page 83, lines
20-25 stating the standard as "minimize the disturbance to the prevailing
hydrologic balance at the mine site and in associated off-site areas and to the
quality and quantity of water in surface and ground water systems. * * * "
Adding a reference to "maximum extent practicable" introduces economic tests
which are not appropriate to environmental protection and not necessary to
permit surface mining.
185 Committee Recommendation: Amend 515(b)(10)(B) by modifying "prevent"
with the phrase "to the maximum extent possible, using the best available
technology".
185 3. Hydrologic disturbances. Administration Recommendations: "S. 425
would establish absolute requirements to preserve the hydrologic integrity of
alluvial valley floors - and prevent offsite hydrologic disturbances. * * * In
the Administration's bill, this provision is modified to require that any such
disturbances be prevented to the maximum extent practicable so that there will
be a balance between environmental protection and the need for coal production."
185 Committee Comment: See comment on 2. above.
185 Committee Recommendation: Amend 515(b)(10)(F) by modifying "preserving"
with the phrase "to the maximum extent possible, using the best available
technology".
185 4. Ambiguous terms. Administration Recommendation: "In the case of S.
425, there is great potential for court interpretations of ambiguous provisions
which could lead to unnecessary or unanticipated adverse production impact. The
Administration's bill provides explicit authority for the Secretary to define
ambiguous terms so as to clarify the regulatory process and minimize delays due
to litigation."
185 Committee Comment: The Administration's proposal is a very unusual
provision. The Secretary has general rulemaking authority to define terms. The
courts normally look to administrative interpretations of the law to resolve
ambiguities.
185 The Administration believes that this provision would force the courts
to give very special weight to the Secretary's interpretation of the law. As
far as the Committee can determine, this would be a unique provision, at least
in Federal law.
185 Committee Recommendation: No amendment.
185 5. Abandoned land reclamation fund.Administration Recommendation: "S.
425 would establish a tax of 25~ per ton for underground mined coal and 35~ per
ton for surface mined coal to create a fund for reclaiming previously mined
lands that have been abandoned without being reclaimed, and for other purposes.
* * * The Administration bill would set the tax at 10~ per ton for all coal * *
* which should be ample.
186 "Under S. 425 funds accrued from the tax on coal could be used by the
Federal government (1) for financing construction of roads, utilities, and
public buildings on reclaimed mined lands, and (2) for distribution to States
to finance roads, utilities and public buildings in any area where coal mining
activity is expanding. * * * The Administration bill does not provide authority
for funding facilities."
186 Committee Comment: The amount of the fee is a carefully worked out
compromise. The Administration has done no estimates or calculations on the
adequacy of the 10~/ton figure nor on the anticipated cost or scope of the
reclamation program. The Bureau of Mines estimates the cost of orphan land
rehabilitation to be almost $7 billion.
186 The broad scope of the program is particularly important in the West,
where there are relatively few "orphan lands" but the anticipated social,
economic, and environmental impacts of proposed coal development are large.
This program would also create a large number of jobs.
186 Committee Recommendation: No amendment.
186 6. Impoundments. Administration Recommendation: "S. 425 could prohibit
or unduly restrict the use of most new or existing impoundments, even though
constructed to adequate safety standards.In the Administration's bill, the
provisions on location of impoundments have been modified to permit their use
where safety standards are met.
186 Committee Comment: The concern of the Administration in recommending
this change is a fear that S. 7 could be interpreted to require the relocation
of existing in-use dams, which are structurally sound.This is not intended.
186 Committee Recommendation: No amendment.
186 7. National forests. Administration Recommendation: "S. 425 would
prohibit mining in the national forests - a prohibition which is inconsistent
with multiple use principles and which could unnecessarily lock up 7 billion
tons of coal reserves. * * * In the Administration bill, this provision is
modified to permit the Agriculture Secretary to waive the restriction in
specific areas when multiple resource analysis indicates that such mining would
be in the public interest."
186 Committee Comment: The Administration indicated that it has no plans to
lease Federal coal within national forests. This ban on mining in national
forests represents a careful compromise between last year's House bill which
banned surface mining in national forests and national grasslands and the Senate
bill which did not contain any such ban. The national grasslands also contain 7
billion tons of coal reserves.
186 Committee Recommendation: No amendment.
186 8. Special unemployment provisions. Administration Recommendation:
"The unemployment provision of S. 425(1) would cause unfair discrimination among
classes of unemployed persons, (2) would be difficult to administer, and (3)
would set unacceptable precedents including unlimited benefit terms, and weak
labor force attachment requirements. This provision of S. 425 is inconsistent
with Public Law 93-567 and Public Law 93-572 which were signed into law on
December 31, 1974, and which significantly broaden and lengthen general
unemployment assistance. The Administration's bill does not include a special
unemployment provision."
187 Committee Comment: The two public laws referred to by the Administration
tie benefits to general trends in the economy and not to the possible impacts of
S. 7. The Committee believes that few, if any, coal mine workers will lose
their jobs because of enactment of S. 7.However, it seems only fair to provide
special benefits to anyone who does become unemployed because of the imposition
of new requirements.
187 Committee Recommendation: No amendment.
187 "OTHER IMPORTANT CHANGES"
187 1. Antidegradation. Administration Recommendation: "S. 425 contains a
provision which, if literally interpreted by the courts, could lead to a
non-degradation standard similar to that experienced with the Clean Air Act. *
* * Changes are included in the Administration bill to overcome this problem."
187 Committee Comment: The Administration view is based on a very unlikely
interpretation of S. 7. Adoption of the Administration's language for Section
102(a) would not weaken S. 7.
187 Committee Recommendation: Adopt Administration amendment.
187 2. Reclamation fund. Administration Recommendation: "S. 425 would
authorize the use of funds to assist private landowners in reclaiming their
lands mined in past years. Such a program would result in windfall gains to the
private landowners who would maintain title to their lands while having them
reclaimed at Federal expense. The Administration bill deletes this provision."
187 Committee Comment: This provision is patterned after the present Soil
Conservation Service programs. The original Senate provision was authored by
Senator Baker. The Committee recommends adoption of a further amendment
proposed by Senator Baker.
187 Committee Recommendation: Expand coverage to 100 acres and give
discretionary authority to increase Federal matching share in specific
situations.
187 3. Interim program timing. Administration Recommendation: "Under S.
425, mining operations could be forced to close down simply because the
regulatory authority had not completed action on a mining permit, through no
fault of the operator. The Administration bill modifies the timing requirements
of the interim program to minimize unnecessary delays and production losses."
187 Committee Comment: A potential moratorium on surface mining beginning
two years after enactment was originally and deliberately included in last
year's Senate bill (S. 425) to provide an action-forcing mechanism, by putting
operator pressure on states to develop their programs in a timely way. As
introduced S. 7 extends this to 2 1/2 years. There is no reason why a
moratorium should take place. If the Secretary of the Interior sees that a
State is not developing an acceptable regulatory program, he can implement a
Federal program.
187 Committee Recommendation: Amend Sections 504 and 506 to avoid
possibility of shutdown.
187 4. Federal Preemption Administration Recommendation: "The Federal
interim program role provided in S. 425 could (1) lead to unnecessary Federal
preemption, displacement or duplication of Stateregulatory activities, and (2)
discourage States from assuming an active permanent regulatory role. * * * In
the Administration bill, this requirement is revised to limit the Federal
enforcement role during the interim program to situations where a violation
creates an imminent danger to public health and safety or significant
environmental harm."
188 Committee Comment: The interim program set out in S. 7 represents a
compromise which moved the House away from a Federally-run program.Lack of State
enforcement of programs which looked good on paper has been a major problem in
the past.
188 Committee Recommendation: No amendment.
188 5. Surface owner consent. Administration Recommendation: "The
requirement in S. 425 for surface owner's consent would substantially modify
existing law by transferring to the surface owner coal rights that presently
reside with the Federal government. S. 425 would give the surface owner the
right to "veto" the mining of Federally owned coal or possibly enable him to
realize a substantial windfall. In addition, S. 425 leaves unclear the rights
of prospectors under existing law. The Administration is opposed to any
provision which could (1) result in a lock up of coal reserves through surface
owner veto or (2) lead to windfalls. In the Administration's bill surface owner
and prospector rights would continue as provided in existing law."
188 Committee Comment: The Administration's position is the same as that of
the original Senate bill.This provision, the major bone of contention in the
Conference, is a delicate compromise which is best left untouched.
188 Committee Recommendation: No amendment.
188 6. Federal lands. Administration Recommendation: "S. 425 would set an
undesirable precedent by providing for State control over mining of Federally
owned coal on Federal lands. In the Administration's bill, Federal regulations
governing such activities would not be preempted by State regulations."
188 Committee Comment: This provision stems from last year's Senate bill.
The Committee believes it is desirable to require surface mining on Federal
lands to meet standards at least as stringent as those established by the State
in which the mine is located.
188 Committee Recommendation: No amendment.
188 7. Research centers.Administration Recommendation: "S. 425 would
provide additional funding authorization for mining research centers through a
formula grant program for existing schools of mining. This provision
establishes an unnecessary new spending program, duplicates existing authorities
for conduct of research, and could fragment existing research efforts already
supported by the Federal government. The provision is deleted in the
Administration bill."
188 Committee Comment: The Administration's objection ignores the important
training aspects of the provision, (Title III). This provision was in both
the Senate and House bills. It stems from a bill vetoed by President Nixon in
the 92nd Congress.
188 Committee Recommendation: No amendment.
188 8. Prohibition on mining in alluvial valley floors. Administration
Recommendation: "S. 425 would extend the prohibition on surface mining involving
alluvial valley floors to areas that have the potential for farming or ranching.
This is an unnecessary prohibition which could close some existing mines and
which would lock up significant coal reserves. In the Administration's bill
reclamation of such areas would be required, making the prohibition
unnecessary."
189 Committee Comment : Last year the House bill banned surface mining in
alluvial valley floors. The language of S. 7 as introduced (Section 510(b)(5)
is a compromise. Alluvial valley floors in the West frequently have highly
significant agricultural values. In view of the world food situation, some
special protection of such valley floors which are significant to farming or
ranching operations seems justified.
189 Committee Recommendation : Amend 510(b)(5) to make it more precise and
somewhat more limited in application.
189 9. Potential moratorium on issuing mining permits. Administration
Recommendation : "S. 425 provides for (1) a ban on the mining of lands under
study for designation as unsuitable for coal mining, and (2) an automatic ban
whenever such a study is requested by anyone. The Administration's bill
modifies these provisions to insure expeditious consideration of proposals for
designating lands unsuitable for surface coal mining and to insure that the
requirement for review of Federal lands will not trigger such a ban."
189 Committee Comment : Section 510(b) of S. 7 bars the issuance of surface
mining permits for lands under study for designation, until such time as the
study has been completed at which time the ban is lifted if the area is not
designated as unsuitable for mining. This ban is necessary since the section
also precludes the designation as unsuitable for mining of any area in which
mining is already ongoing. The Administration's proposal could lead to having
all reviews precluded by the granting of permits prior to a determination being
made on designation.
189 The fear that blanket moratoria will occur is unfounded for two reasons.
First, each study for designation is made only on a case by case basis upon
specific petition. Second, S. 7 contains specific requirements for petition.The
Secretary is required to issue regulations defining those petitions to be
considered valid, to preclude frivolous requests.
189 With regard to Federal lands, Section 522(b) requires the Secretary to
conduct a review of all Federal lands to determine areas unsuitable for
mining.But in order to avoid locking up Federal coal in the case of a protracted
study (such as the wilderness study), there is no moratorium on leasing during
the period of review under the provisions of S. 7.
189 Committee Recommendation : 1. Amend 522(a) to require the regulatory
authority to render a decision on a petition for designation as unsuitable
within one year. 2. Amend 522(b) to state specifically that Federal coal
leases may be issued during the review period.
189 10.Hydrologic data. Administration Recommendation : "Under S. 425, an
applicant would have to provide hydrologic data even where the data are already
available - a potentially serious and unnecessary workload for small miners.
The Administration's bill authorizes the regulatory authority to waive the
requirement, in whole or in part, when the data are already available."
190 Committee Comment : The Administration's proposal appears to be based on
a misinterpretation of S. 7 (Section 507(b)(11)). There is nothing to preclude
the applicant from using already available data in his permit application. The
language proposed by the Administration permits waivers of the "determination of
the hydrologic consequences of mining and reclamation" not just data
submissions. This determination is very important, particularly in arid and
semi-arid areas.
190 Committee Recommendation : No amendment.
190 11. Variances. Administration Recommendation: "S. 425 would not give
the regulatory authority adequate flexibility to grant variances from the
lengthy and detailed performance specifications. The Administration bill would
allow limited variances - with strict environmental safeguards - to achieve
specific post-mining land uses and to accommodate equipment shortages during the
interim program."
190 Committee Comment : The Committee believes that unlimited variances
would greatly weaken the bill by possibly becoming the rule rather than the
exception.
190 A provision allowing variances because of equipment shortages in the
interim period was in the House bill last year. It is not included in S. 7
because of testimony and information that interim standards could be compiled
with using existing equipment, so such variances were not needed.
190 Committee Recommendation : No amendment.
190 12. Permit fee. Administration Recommendation : The requirement in S.
425 for payment of the mining fee before operations begin could impose a large
'front end' cost which could unnecessarily prevent some mine openings or force
some operators out of business. In the Administration's bill, the regulatory
authority would have the authority to extend the fee over several years."
190 Committee Comment : There is nothing in S. 7 as introduced to explicitly
preclude a regulatory authority from doing this. The Joint Statement of
Managers on S. 425 expressly stated that annual payments would be acceptable.
190 Committee Recommendation : Adopt Administration amendment.
190 13. Preferential contracting. Administration Recommendation : "S. 425
would require that special preference be given in reclamation contracts to
operators who lose their jobs because of the bill. Such hiring should be based
solely on an operators reclamation capability. The provision does not appear in
the Administration's bill."
190 Committee Comment : S. 7 (Section 707) provides a preference only to
operators "who can demonstrate that their * * * operation, despite good faith
efforts to comply with the requirements of this Act, have been adversely
affected" by regulation. The Secretary would incorporate the preference into
his regulations.
190 Committee Recommendation : No amendment.
190 14.Any Class of buyer. Administration Recommendation : "S. 425 would
require that lessees of Federal coal not refuse to sell coal to any class of
buyer. This could interfere unnecessarily with both planned and existing coal
mining operations, particularly in integrated facilities. This provision is not
included in the Administration's bill."
191 Committee Comment : This provision (Sec. 523(e)) was included in S. 7 to
protect rural electric cooperatives and other small purchasers. It is not
intended to abrogate existing contracts. S. 7 prohibits only "unreasonable"
denials, not any and all denials.
191 Committee Recommendation : No amendment.
191 15. Contract authority. Administration Recommendation : "S. 425 would
provide contract authority rather than authorizing appropriations for Federal
costs in administering the legislation. This is unnecessary and inconsistent
with the thrust of the Congressional Budget Reform and Impoundment Control Act.
In the Administration's bill, such costs would be financed through
appropriations."
191 Committee Comment : The provision for contract authority (Sec. 714(a))
is designed to permit the Secretary to begin to implement the Act rapidly
without waiting for appropriations. This seems necessary in light of the
specific statutory timetable.
191 Committee Recommendation : No amendment.
191 16. Indian Lands. Administration Recommendation : "S. 425 could be
construed to require the Secretary fo the Interior to regulate coal mining on
non-Federal Indian lands. In the Administration bill, the definition of Indian
lands is modifified to eliminate this possibility."
191 Committee Comment : S. 7 is not intended to require Federal regulation
of non-Federal Indian lands.
191 Committee Recommendation : Adopt Administration amendment.
191 17. Interest charge. Administration Recommendations: "S. 425 would not
provide a reasonable level of interest charged on unpaid penalties.The
Administration's bill provides for an interest charge based on Treasury rates so
as to assure a sufficient incentive for prompt payment of penalties."
191 Committee Recommendation : Adopt Administration amendment.
191 18. Prohibition on mining within 500 feet of an active mine. "This
prohibition in S. 425 would unnecessarily restrict recovery of substantial coal
resources even when mining of the areas would be the best possible use of the
areas involved.Under the Administration's bill, mining would be allowed in such
areas as long as it can be done safely."
191 Committee Comment : There are serious safety problems involved,
particularly from blasting near "gassy" mines.
191 Committee Recommendation : No amendment.
191 19. Haul roads. Recommendation : "Requirements of S. 425 could
preclude some mine operators from moving their coal to market by preventing the
connection of haul roads to public roads. The Administration's bill would
modify this provision."
191 Commitee Comment : This was not the intent of S. 7.
191 Committee Recommendation : Adopt Administration amendment.
V. COMMITTEE RECOMMENDATION
191 The Committee on Interior and Insular Affairs recommends that S. 7,
as amended, be approved by the Senate.
VI. LEGISLAT IVE HISTORY
192 Surface mining has been the subject of legislation for several years.
The first hearings were held by the Committee on Interior and Insular Affairs in
the 90th Congress. No bills were reported during the 90th and 91st
Congresses.During the 92d Congress, the Subcommittee on Minerals, Materials, and
Fuels held 4 days of hearings. The Committee unanimously reported a bill (S.
630) in September 1972 with the understanding that Committee members reserved
the option to offer amendments on the Senate floor.
192 The House of Representatives passed a bill (H.R. 6482) in October 1972.
The 92d Congress adjourned before the Senate considered either bill.
192 The 93d Congress gave intensive consideration to surface coal mining
legislation. The Interior Committee held hearings on bills then before it on
March 13, 14, 15, and 16. On April 30 the Subcommittee on Minerals, Materials,
and Fuels held a hearing on the report prepared by the Council on Environmental
Quality entitled "Coal Surface Mining and Reclamation - An Environmental and
Economic Assessment of Alternatives."
192 In addition, as part of the study of National Fuels and Energy Policy,
the Full Committee and ex-officio members held 3 days of hearings on coal policy
issues, which included discussion of the potential impact of Federal surface
mining legislation on coal development.
192 The Committee met in public mark-up session for 10 days to consider
amendments to S. 425. On September 10, 1973, the Committee completed action on
the bill and ordered S. 425 favorably reported to the Senate with the
recommendation that the bill as amended be passed.After 2 days of debate S. 425
was passed by the Senate on October 18, 1973, by a vote of 82-8. The bill as
amended passed the House on July 25 by a vote of 291-81.
192 Conferees met for more than 100 hours to reconcile the differences
between the House and Senate revisions of S. 425. On December 5, 1974, they
reported a conference report to their respective houses, which was approved by
both bodies. However, the President pocket vetoed the bill, after the Congress
had adjourned, thus precluding the opportunity for an override.
192 S. 7 as introduced was identical to the conference report on S. 425.
Despite the fact that the Committee had already scrutinized exhaustively the
provisions of the bill, on February 19, 1975, the Committee heard Administration
witnesses discuss proposed changes in S. 7. On February 27 and 28, 1975, the
Committee marked up S. 7 in open sessions, and on February 28, ordered the bill
favorably reported to the full Senate by a vote of 12-2.
VII. SECTION-BY-SECTION ANALYSIS
193 TITLE I - STATEMENT ON FINDINGS AND PURPOSES
193 SECTION 101. FINDINGS
193 This section sets out congressional findings relating to surface mining
of coal and other minerals. These include the fact that (1) surface mining is
only one of various methods of mining; (2) surface and underground coal mining
are significant activities in our national economy; (3) surface mining has
numerous adverse economic, environmental and social effects; and (4) surface
mining and reclamation technology are developing so that effective and
reasonable regulation of surface coal mining is appropriate and necessary to
minimize these adverse effects.
193 These findings conclude that (1) because of the diversity of terrain,
climate, biologic, chemical, and other physical conditions, the States should
have the primary responsibility for regulating surface mining and reclamation,
but that a Federal-State cooperative effort is essential to the success of this
program and (2) while there is a need to regulate surface mining operations for
minerals other than coal, more data and analyses are needed to provide a basis
for effective and reasonable regulation.
193 SECTION 102. PURPOSES
193 This section states that the purpose of Congress in passing this Act is
to establish a nationwide program to protect society and the environment from
the adverse effects of surface coal mining operations as well as the surface
impact of underground coal mining operations. It sets out thirteen specific
purposes as steps toward achieving that goal. These recognize that, while all
adverse effects of surface mining cannot be prevented immediately and that coal
is an essential source of energy, a strong nationwide regulatory program based
on minimum Federal standards should be implemented rapidly. This program would
assure that surface coal mining operations are not conducted where reclamation
which meets these minimum standards is not feasible. The Federal Government
would assist the States in developing and implementing such a program. If and
when a State manifests a lack of desire or an inability to participate in or
implement that program and to meet the requirements of the Act, the Federal
Government is to exercise the full reach of Federal constitutional powers to
insure the effectiveness of that program.
193 Another significant purpose of the Act is to provide a means for
development of the data and analyses necessary to establish effective and
reasonable regulation of surface mining for all minerals other than coal, and to
establish mining research and training institutes at state schools of mines.
194 Under certain circumscribed circumstances, the rights of land owners
over Federally owned coal are protected from surface mining operations and
appropriate procedures established for public participation in the development,
revision, and enforcement of regulations, standards, reclamation plans or
programs established by any regulatory authority under this Act. The bill also
establishes a program for the rehabilitation of lands previously mined and left
unreclaimed which continue to substantially degrade the quality of the
environment or endanger the health or safety of the public.
SECTION-BY-SECTION ANALYSIS TITLE II - OFFICE OF SURFACE MINING
RECLAMATION AND ENFORCEMENT
194 To insure administration of the program by an independent agency with
neither a resource development (the promotion of mining, marketing, or use of
minerals) or resource preservation (pollution control, wilderness, or wildlife
management) bias or mission, this title establishes the Office of Reclamation
and Enforcement in the Department of the Interior. This Office will be separate
from any of the Department's existing bureaus or agencies. It is intended that
the Office exercise independent and objective judgment in implementing the Act.
194 To insure sufficient authority to administer the Act the Office will
have a Director to be compensated at the rate provided for in level V of the
Executive Pay Schedule. Officers and employees of the Office are to be
recruited on the basis of their professional competence and capacity to
administer the Act objectively. The Act specifically states that there cannot
be transferred to the Office any legal authority which has as its purpose
promoting the development or use of coal or other minerals.
194 The duties of the Secretary, acting through the Office, include:
Administering the various grant-in-aid programs provided in the Act;
administering research and development projects provided in the Act; reviewing
and approving State programs for surface mining and reclamation operations;
developing and administering any Federal program for surface mining and
reclamation operations for States which do not have or are not enforcing State
Programs; maintaining a Surface Mining and Reclamation Information and Data
Center; cooperating with States in dissemination of relevant data and in
standardizing methods of collecting and classifying such data; providing
technical assistance to the States to enable them to undertake responsibilities
provided for in the Act; monitoring all Federal and State research programs
dealing with coal extraction; and recommending research projects designed to
improve the feasibility of underground coal mining or develop improved surface
mining and reclamation techniques.
194 In order to assist in getting the office established and underway
expeditiously, authority is granted to borrow on a reimbursable or other basis
personnel from within the Department or from other Federal agencies. Such
utilization of personnel might result in a delegation of authority to them, but
in these instances, responsibility for those aspects of the program are to
remain within the newly created office.
195 Concern has been expressed that the establishment of a new office at the
Federal level implicitly requires a similar entity in every State in order to
manage the State program. This is not the case. It should be noted that many
States already have a particular governmental unit regulating surface coal
mining industry. Some aspects of the regulatory program might be carried out on
the State level by more than one agency, especially where States with surface
coal mining agencies have another agency which regulates surface impacts of
underground mines.
SECTION-BY-SECTION ANALYSIS TITLE III - STATE MINING AND MINERAL
RESOURCES RESEARCH INSTITUTES SECTION 301. AUTHORIZATION OF STATE ALLOTMENTS TO
INSTITUTES
195 SECTION 301. AUTHORIZATION OF STATE ALLOTMENTS TO INSTITUTES
195 This Section authorizes appropriations to assist States in carrying on
the work of mineral resources research institutes. Funds are to be distributed
by the Secretary of Interior at the rate of $200,000 for fiscal year 1975, $3
00,000 for fiscal year 1976, and $4 00,000 for each fiscal year thereafter for
five years, to a public college or university, having a qualified school,
division or department of mines in each participating State.
195 An advisory Committee created under this title will determine the
eligibility of colleges or universities under guidelines requiring that the
public college or university have a school, division or department of mines
which must have been in existence for at least two years and must have at least
five fulltime faculty members. Matching non-Federal funds must be available on
a dollar for dollar basis, with the Governor of the State deciding between
qualifying colleges or universities within a State, and the Advisory Committee
selecting an eligible private college or university in a State which has no
qualifying public college or university.
195 Research carried out at qualifying institutes will cover a wide range of
investigations, demonstrations and experiments in mining and minerals resources
problems. However, the major thrust of the program would be the training of
mineral engineers and scientists.
195 SECTION 302. RESEARCH FUNDS TO INSTITUTES
195 This section authorizes an annual appropriation of $1 5,000,000 to the
Secretary of Interior for fiscal year 1975, to be increased by $2 ,000,000
annually for six fiscal years thereafter, to assist institutes in carrying out
projects of industrywide application which could not otherwise be undertaken or
which are especially alloted to the mission of the Department of the Interior.
Grants must be approved by the Secretary on the basis of merit and need under
criteria which incorporate a prohibition against the use of grant money for the
acquisition of land or the rental, purchase, construction or upkeep of
buildings.
195 SECTION 303. FUNDING CRITERIA
195 This section requires that each institute designated to receive funds
under sections 301 and 302 must set forth a plan showing its curriculum, its
plans for training, its policies and procedures and its fiscal responsibility
for ensuring that purposes of this title are implemented. If the Secretary
finds that Federal monies received by an institute are improperly diminished,
lost or misapplied, further allotments to the State concerned will be suspended
until such funds have been replaced. Appropriated funds under this title may be
used for printing and publishing the results of the authorized research, and
cooperative endeavors between institutes and other agencies and individuals are
encouraged.
196 SECTION 304. DUTIES OF THE SECRETARY
196 This section charges the Secretary of Interior with administering the
title, prescribing rules and regulations, consulting with, assisting and
coordinating research with other Federal agencies. In his annual report to
Congress, the Secretary will indicate whether the allotment to any State has
been withheld, based on a determination as to compliance with provisions of
section 303, made by him on or before July 1 of each year following enactment of
the title.
196 SECTION 305. AUTONOMY
196 This section disclaims any intent to interfere with the legal
relationship between participating colleges and universities and related State
governments, or to authorize Federal control of education at such colleges and
universities.
196 SECTION 306. MISCELLANEOUS PROVISIONS
196 This section instructs the Secretary of Interior to cooperate with other
Federal agencies, private institutions and individuals in order to avoid
duplication of effort and to stimulate research in otherwise neglected areas as
part of a comprehensive nationwide program of mining and mineral research. He
is to make available to the general public information on projects planned, in
progress, or completed. The Secretary at the same time is specifically barred
from assuming any authority over mining and mineral research or related
responsibilities of other Federal agencies.
196 Provisions of section 3684 of the Revised Statutes relating to advances
of funds may be waived by the Secretary in arranging for mining and mineral
resources research work under this title. No appropriated funds may be expended
unless all information, patents and other developments resulting from the
activity will be made public. Appropriations not to exceed $1 ,000,000 annually
are authorized for this purpose. However, the existing rights of patent owners
will be protected.
196 SECTION 307. CENTER FOR CATALOGING
196 This section directs the Secretary of Interior to establish a center for
cataloging, current and projected scientific research in all fields of mining
and mineral resources which will classify for public use such information as is
provided by all Federal and non-Federal agencies, colleges, universities,
private institutions, firms and individuals. Federal agencies are required to
cooperate.
197 SECTION 308. INTERAGENCY COOPERATION
197 This section authorizes the President to clarify agency responsibility
and foster interagency coordination in mining and mineral resources research,
including review of Governmentwide research, elimination of duplication,
identification of technical needs, recommendations as to allocation of technical
effort, review of manpower needs and actions to facilitate interagency
communication.
197 SECTION 309. ADVISORY COMMITTEE
197 This section provides for the appointment of an Advisory Committee on
Mining and Mineral Research by the Secretary of Interior, to be composed of the
Director of the Bureau of Mines, the Director of the National Science
Foundation, the President of the National Academy of Sciences, the President of
the National Academy of Engineering, the Director of the United State Geological
Survey, and not more than four other persons knowledgeable in the field of
mining and mineral resources research. The Chairman will be designated by the
Secretary, who will consult with and consider recommendations of the Committee
in conducting research and making grants under this title. Members of the
Committee will be compensated at a rate fixed by the Secretary but not to exceed
maximum rate of pay under pay grade GS-18 for time spent on committee business
or travel time, unless they are Federal, State, or local government employees or
officers.
SECTION-BY-SECTION ANALYSIS TITLE IV - ABANDONED MINE RECLAMATION
197 SECTION 401. ABANDONED MINE RECLAMATION FUND
197 This section establishes in the U.S. Treasury an Abandoned Mine
Reclamation Fund which derives its dollars from: funds from the lease, sale,
rental of lands reclaimed under this Act; user charges on reclaimed lands; and
from a reclamation fee collected over a period of 10 years of 35~/ton for
surface mined coal and 25~/ton for all coal mined by underground methods, or 10%
of the value of the coal at the mine, whichever is less.
197 The differential fee was adopted recognizing the differing costs in
meeting various health and safety objectives mandated by law.
197 The purpose of the 10% provision is to prevent an undue economic burden
on low cost, lower grade western coal.
197 It is estimated that the reclamation fee would yield approximately $1 65
million per year based on the most recent annual coal statistics concerning
tonnage, method of mining and average value at the mine. The fee is quite small
relative to the current prices of coal. When translated into power cost per
kilowatt hour (assuming conservative figures of 10,000 BTU/lb and a conversion
rate of 10,000 BTU/kwh) it is less than 0.015 cents per kwhr of electricity.
For consumers utilizing from 250 to 750 kwhr per month, this represents an
increase of 4-12 cents per month on their utility bill. Such a small increase
would not be a burden on current coal consumers or inflationary in nature.
197 The Committee takes the position that the Federal government has a
responsibility to remove this longstanding blight from regions which fueled the
industrial growth of America prior to the advent of the internal combustion
engine. The cost of rehabilitation is estimated at $7 to $10 billion.
198 In all, it is estimated that a million and a half acres of land have
been directly disturbed by all coal mining and over 11,500 miles of streams
polluted by sedimentation or acidity from surface or underground mines.
198 Estimates of program costs for correcting these problems have been made
by several Federal agencies during the past four years total nearly $10 0
billion and are consolidated and summarized as follows:
198 Cost estimates
198 Environmental impact: Millions
198 1. Stabilization, reshaping and revegetation of strip mined lands - - -
$2,040
198 2. Controlling acid mine drainage, clearing heavily silted streams,
sealing of mineshafts - - - 6,600
198 3. Stabilization of mine waste banks and removal of fire and flood
hazards - - - 220
198 4. Control of subsidence under urbanized areas - - - 1,000
198 5. Extinguishment of underground and outcrop mine fires - - - 50
198 Total - - - 9,910
198 These estimates provide a basis for identifying the order of magnitude
of funds required to correct these problems.
198 The burden of paying for reclamation is rightfully assessed against the
coal industry. The bill adopts the principle that the coal industry, and by
extension the consumers of coal, must bear the responsibility for supporting
special rehabilitation programs to recover and reclaim areas which have been
severely impacted in the past by coal mining operations.
198 Fifty percent of the revenues derived from a county, school district or
lands of an Indian tribe are to be returned to that county, school district or
Indian tribe for use in accomplishing the purposes of this title.
198 The Act specifies that the Secretary of Interior must use the money in
the Fund for certain purposes and must make available to the Secretary of
Agriculture up to one-fifth of the Fund for purposes set forth under section
405.
198 SECTION 402. OBJECTIVES OF FUND
198 According to this section, the Fund is for the reclamation of previously
mined areas. Reclamation projects are to be given a priority on the following
basis: (1) protection of health or safety of the public; (2) protection of the
environment from continuing degradation and conservation of land and water; (3)
the protection, construction, or enhancement of public facilities and their use;
(4) improvement of lands and waters to a suitable condition useful in the
economic and social development of the area affected; and (5) research and
demonstration projects relating to reclamation and water quality control
programs.
198 SECTION 403. ELIGIBLE LANDS
198 This section specifies that only those lands which were mined for coal
or affected by such mining, waste banks, coal processing, or other mining
processes and abandoned or left in an inadequate reclamation condition prior to
the enactment of this Act are eligible for expenditures under the Fund. In
addition, there must be no continuing responsibility for reclamation under State
or other Federal laws for such lands to be eligible.
199 The inclusion of lands "affected by" coal mining means that in various
areas the fund could be used to repair public facilities which have been damaged
by activity relating to coal mining. In Eastern Kentucky, for example, public
roads have suffered extensive damage from coal-hauling. This is especially true
of roads which serve mines that are otherwise inaccessible.
199 SECTION 404. RECLAMATION OF RURAL LANDS
199 This section establishes a program to provide small rural landowners
technical and financial resources to reclaim lands affected by coal surface
mining operations which were left unreclaimed or inadequately reclaimed.
199 Any one landowner (including owner of water rights), resident, or tenant
is limited to a total of 100 acres of land on which reclamation can be conducted
under this section, and the Federal share of such work shall not exceed 80% of
the costs. The Secretary has discretionary authority to increase the Federal
share where he determines that (1) the main benefits from the project are
related to off-site water quality or other off-site benefits, and (2) the
landowner cannot participate in the program if required to put up 20% of the
cost.
199 This program is administered by the Secretary of Agriculture and the
reclamation work is to be accomplished according to a mutually-agreed-upon plan
through contracts with the landowner, for periods of not more than ten years, to
accomplish the land stabilization conservation work required in order to reclaim
the affected lands. This program is to be implemented through the Soil
Conservation Service. While the Soil Conservation Service may want to integrate
such projects on a watershed or drainage area basis in order to enhance program
effectiveness, it is not intended that such an approach and its planning process
slow down reclamation or deny work in those areas or instances where the
landowners are willing to participate but the watershed planning is not
completed. It is also intended that the rural lands program will be coordinated
with the reclamation program implemented by the Department of Interior.
199 Up to one-fifth of the money available in the Abandoned Mine Reclamation
Fund during any one year shall be made available to the Secretary of Agriculture
for the purposes of this section.
199 SECTION 405. ACQUISITION AND RECLAMATION OF ABANDONED AND UNRECLAIMED
MINED LANDS
199 This section establishes a program, administered by the Secretary of
Interior, for th ereclamation of abandoned mine lands or lands affected by
surface coal mining operations which are large tracts, or lands to be developed
for specific purposes such as commercial, industrial, residential, and other
intensive land uses. This program complements the rural lands program provided
in Section 404.
200 Four basic steps are required under this program: land identification,
land acquisition, land reclamation, and post-reclamation land use including
disposition.
200 Prior to initiating reclamation programs on particular tracts of land,
the Secretary shall make a thorough study of the areas involved, identifying
those lands needing reclamation and establishing projects according to the
priorities established in Section 402 above and with costs and benefits
computed.
200 Land acquisitions for those parcels on which work will be done can be
accomplished by either the Secretary of Interior or the States involved. If a
State acquires such land and transfers it to the Federal Government, up to 90%
of the acquisition costs may be Federally funded. For those projects which
because of public health or safety or environmental damages require quick and
easy acquisition, specific authorities for condemnation and quick land and
mineral acquisition are provided to the Secretary of Interior.
200 The reclamation of these acquired lands is to be conducted under Federal
control. Contracts for reclamation are to be entered into on a competitive
basis. Costs of reclamation are to be borne entirely by the fund.
200 The Secretary of the Interior is given authority to reclaim lands to be
used for the purposes of housing for miners, mining related employees or persons
displaced by natural disasters or catastrophic failures. Reclamation work in
this instance includes the construction of on-and off-site public facilities
necessary to support such housing. For the purposes of this section, the term
public facilities includes those public works needed for supporting housing
(on-and off-lands developed for housing sites), including roads, water, sewers,
education, health or other municipal facilities; supporting services and
equipment required. Such facilities, works and services may be temporary or
permanent. Through this program, the Secretary may provide aid to communities
undergoing rapid growth due to the opening of coal mines and coal related
operations such as power plants and coal conversion facilities. Employment in
all such activities is considered to be coal related. In carrying out this
work, the Secretary may contract with other Federal or state agencies, including
the Regional Commissions, established under Federal statute for developmental
purposes. The Secretary is also given authority to contract for plans,
technical assistance and demonstrations. Existing applicable Federal standards
for the design and construction of such facilities should, in general, be
followed by the Secretary where appropriate, however, the Secretary may fund
innovative projects meeting the identified needs.
200 After reclamation, land may be retained in Federal ownership, made
available to States or local governments, or disposed of to parties in the
private sector. If such land was originally made available to the Federal
Government through State acquisition, such State may have a preference to
purchase lands after reclamation. The Secretary has the authority to sell land
to State or local governments at a price less than fair market value, providing
that it is used for valid public purpose and that the cost to the State and
local governments shall be no less than the cost to the Fund for the purchase
and reclamation of the land. Disposition of the land to the private sector is
allowed in those instances for industrial, commercial, residential, or other
intensive private uses. Such disposition shall be under a system of competitive
bidding, accepting not less than fair market value of such lands and under other
such regulations as the Secretary may require to assure lands are put to a
proper use and that the reclamation work is not obviated. The Secretary is also
authorized to acquire, develop and transfer land to any project, public or
private, for housing sites for persons employed or disabled by mining or
dislocated by natural disasters or catastrophic failures. Areas experiencing
rapid development of coal reserves qualify for assistance of this type.
201 The Secretary is directed to hold a public hearing in each county in
which lands to be reclaimed are located in order to afford local citizens and
governments the maximum opportunity to participate in decisions concerning the
use of lands once reclaimed.
201 SECTION 406. FILLING VOIDS AND SEALING TUNNELS
201 This section specifically establishes programs for subsidence control
and sealing those tunnel shafts and entryways resulting from mining which
constitute a hazard for public health or safety. The Secretary is to acquire
such interest in lands as he determines necessary to carry out provisions of
this section.
201 SECTION 407. FUND REPORT
201 This section requires the Secretary to make an annual report to Congress
beginning in January 1976 on reclamation activities accomplished and underway
which are supported by the Fund along with recommendations as to future uses of
the Fund.
201 SECTION 408.TRANSFER OF FUNDS
201 This section authorizes the Secretary of the Interior to transfer funds
to other Federal agencies to accomplish the purposes of this title. It was
recognized that this authority might be desirable since such agencies have
appropriate program responsibilities and expertise, such as reducing sediment
and other pollution from entering reservoirs, navigable waterways as well as in
acid mine drainage control.
SECTION-BY-SECTION ANALYSIS TITLE V - CONTROL OF THE ENVIRONMENTAL
IMPACTS OF SURFACE COAL MINING
201 SECTION 501 ENVIRONMENTAL PROTECTION STANDARDS
201 This section requires that within 6 months of the date of enactment of
the Act, after due notice, consultation with the Administrator of EPA, and
public hearings, the Secretary promulgate and publish in the Federal Register
regulations for the establishment of State and Federal programs for the
implementation of this Act.
201 SECTION 502 INITIAL REGULATORY PROCEDURES
201 Subsection 502(a) requires that, after the date of enactment of this
Act, no person shall conduct any surface mining operations on non-Federal lands
without a permit from the appropriate State regulatory agency.
202 Subsection 502(b) requires that, after the date of enactment of this
Act, all new mines must be required to comply with 7 key environmental
standards.
202 One of these standards pertains to the use of mine waste impoundments to
dispose of wastes from both underground and surface mines and coal processing
plants. The balance of the standards represent other key provisions of the
permanent program pertaining to surface coal mining operations: post-mining land
use objectives, regrading to approximate original contour, steep slope
requirements including limitation of spoil placement on downslopes, segregation
and preservation of topsoil, protection of the hydrologic balance, and
revegetation requirements. One hundred thirty-five days after enactment of this
Act, Subsection 502(c) applies these same standards to mines in operation prior
to the date of enactment of this Act. The standards are applicable to lands
from which overburden and the coal seam being mined have not been removed.
202 The application of these standards to existing mining operations will
remedy much of the environmental degradation resulting from current coal surface
mining practices and provide a fair basis for transition into the full range of
requirements in the program. This appears to the committee to be a practical
mechanism for assuring compliance without raising the possibility of unwarranted
hardship on the operator.
202 Subsection 502(d) allows requests to be made in a permit application for
variances from the requirement to restore to approximate original contour.
202 Subsection 502(e) requires all operators to file for permits under an
anticipated approved state program. Such permits must be granted or denied
within 6 months of the approval of a state program, but in no case later than 30
months from the date of enactment of this Act.
202 Subsection 502(f) requires, within 90 days of the date of enactment of
this Act, the establishment of a Federal enforcement program to carry out
inspections and enforce the provisions of the Act, until such time as an
approved State program or a Federal program has been established. Under this
oversight function, Federal inspectors shall have the authority to order
correction of violations.
202 Subsection 502(g) allows existing operations to continue in the interval
between disapproval of a State program and implementation of a Federal program.
202 All surface coal mining operations, which include, by definition,
impacts incident to underground coal mines, are subject to the initial
regulation procedures of section 502 of this bill, but only to the extent that
they are located on lands on which operations are regulated by a State. This
means that surface coal mining operations located in the four States (Alaska,
Arizona, Texas, and Utah) which presently have no regulatory programs directed
toward the environmental control of surface coal mining operations are not
subject to section 502. Neither are the surface effects of underground coal
mining operations subject to section 502, unless the existing State regulatory
program is directed at the effects of these operations. This policy is entirely
consistent with the State-lead philosophy of this legislation. However, it
should be noted that States which do not have a regulatory program established
by statute may still participate in the interim program through administrative
action of a suitable State agency. Certification of this fact by the Governor
of a State to the Secretary of the Interior is sufficient to qualify that State
for the interim funding provided in section 502.
203 SECTION 503. STATE PROGRAMS
203 In order for any State to assume its primary role in adminstering
surface mining regulations, this section requires submission to the Secretary of
Interior, within 18 months after the passage of the Act, of a State program
which demonstrates that the State has legal, financial, and administrative
capability for carrying out the provisions of the Act.
203 The State program must specifically show that the State has a law
providing for the regulation of surface mining and reclamation in accordance
with all provisions of the Act and subsequent regulations. The State program
must provide for sanctions or penalties for all violations of State laws,
regulations, or conditions of permits concerning surface mining, must meet the
minimum requirements of this Act, must provide sufficient administrative and
technical personnel with funding to fully implement and enforce provisions of
this Act, must show that a process for designating areas unsuitable for surface
coal mining has been established and that a process exists for coordinating
review of any mine permit with any other Federal or State permit issued under
this Act.
203 The Secretary of the Interior is directed to approve or disapprove each
State program in whole or in part within 6 months after submission. Prior to
such decision he must hold at least one public hearing within the State on the
program, disclose views of all Federal agencies having special expertise
pertinent to the proposed State program, obtain the written concurrence of the
Administrator of the Environmental Protection Agency for those aspects of the
State program relating to federal air and water quality laws.
203 If the Secretary disapproves a State program in whole or in part, the
State shall have sixty days to resubmit a revised State program or appropriate
portion thereof. No State may resubmit a proposed program after 30 months after
the date of enactment of the Act. The Secretary must approve or disapprove a
resubmitted State program within 60 days of its resubmittal. It is the
intention of the committee that any notification of disapproval be in writing
and contain the reasons for disapproval. It is intended that the Secretary's
notification be very specific. Only with such specificity will a State know how
best to revise its State programs so it will meet with the Secretary's approval.
203 Subsection (d) provides that States that are prevented from preparing,
submitting, or enforcing a State program because of a court injunction remain
eligible for financial assistance under the Act.
203 This subsection further provides that, despite the provision of Section
502, no Federal program shall be initiated for a State under these
circumstances. This bar on imposition of a Federal program ends when the
injunction terminates or after 1 year, whichever comes first. The Committee did
not want to penalize States which were making a good faith effort to comply with
the Act but were prevented from doing so by court action. On the other hand,
the Committee does not want to have any undue delay in establishment of a
regulatory program which meets the requirements of the Act.
204 SECTION 504. FEDERAL PROGRAMS
204 This section provides for Federal regulation of surface mining and
reclamation operations in any State which proves unwilling or unable to do the
job itself. In accord with the purposes and findings in Title I, Federal
regulation is to occur only if a particular State wishes to forego or fails to
assume primary responsibility for regulating surface mining operations within
its boundaries.
204 Subsection (a) directs the Secretary to prepare, promulgate, and
implement no later than 30 months after enactment of this Act, a Federal program
covering surface mining and reclamation operations for any State which (a) fails
to submit a State program within 12 months of the promulgation of the Federal
regulations required by Section 201, (b) fails to resubmit an acceptable revised
State program after the Secretary's disapproval of the original submission, or
(c) fails to enforce all or any part of its approved State program.
204 Promulgation of a Federal program gives the Secretary exclusive
jurisdiction for regulationof surface mining operations in the State in those
areas not being adequately enforced by the State. Surface mine operators need
to know which regulations - Federal or State - they must follow at any given
point in time.
204 In preparing and implementing a Federal program, the Secretary is
directed to take into account the affected State's terrain, climate, and other
physical conditions.
204 If an Act of the State legislature is required to enable the State to
comply with the Act, the Secretary is authorized to extend the deadline for
submission of a State program up to an additional 6 months.
204 Subsection (c) requires that a public hearing must be held in the
affected State prior to promulgation of the Federal program.
204 Subsection (d) provides that all permits issued under an approved State
program remain valid after implementation of a Federal program. However, the
Secretary is directed to undertake a review of such permits and where such
permits fail to meet the requirements of the Act, to afford the permittee
reasonable time to conform his operations with those requirements or to submit a
new permit application.
204 Subsection (e) provides procedures and timetables for the lifting of the
Federal program in any State when a new State program receives the Secretary's
approval.
204 Subsection (f) provides that permits issued under the Federal program
remain valid under the State program but are subject to review and revision by
this State regulatory authority.
204 Subsection (g) further provides that any State laws or regulations
regulating surface mining are preempted by the Federal program.This preemption
is designed to make it clear to surface mine operators which laws and
regulations they must comply with. Other State laws applicable to the
operation, such as those relating to air and water quality would not be
affected.
205 Subsection (h) provides that any Federal program shall contain a process
for coordinating issuance of permits with any other applicable Federal or State
permit process.
205 The assumption of regulatory authority over surface mining operations in
any State by the Secretary through promulgation of a Federal program for that
State is regarded by the Committee as a "last resort" measure. For this reason,
no Federal program shall include a process for designation of non-Federal lands
as unsuitable for surface mining for one year after imposition of a Federal
program. The Committee hopes this will be an incentive to the States to develop
acceptable programs. It is certainly preferable that the State regulate such
operations through State programs which meet the requirements of the Act. The
Committee hopes and expects that the States, in good faith, will develop and
implement strong State programs. However, if they fail to do so, the purpose of
the Act and this section in particular is to insure that the full reach of the
Federal constitutional powers will be exercised to achieve the purposes of the
Act.
205 SECTION 505. STATE LAWS
205 This section contains the standard savings clauses protecting the States
rights to have or develop laws and regulations providing more stringent or
different controls of surface mining and reclamation operations.
205 SECTION 506. PERMITS
205 This section provides a timetable for obtaining permits to conduct
surface mining and reclamation operations pursuant to the Act from either the
State regulatory authority under a State program or the Secretary under a
Federal program. (Hereafter, the words "regulatory authority" will be used to
mean the State regulatory authority where the State is administering the Act
under State programs or the Secretary where the Secretary is administring the
Act under Federal programs.)
205 Under subsection (a) no person can engage in surface mining without a
valid permit under an approved State program or a Federal program after six
months after approval of a State program or implementation of a Federal program.
There is one exception to this rule. Where there is an approved State program
or a Federal program an operation with a valid permit from the State regulatory
authority may continue operations if a permit application has been filed but the
initial administrative decision has not been rendered. Conscious of the need
for increased coal production, the Committee did not want to force current
operations to shut down simply because of administrative delay. However, the
Committee believes that a firm deadline must be established to serve as an
incentive to the Secretary, the States and the operators to comply with the Act.
205 This deadline provides the States with a reasonable period of time after
the Secretary promulgates his regulations to prepare their State programs.
(Federal regulations are due 6 months after enactment, State programs are due 18
months after that, and the Secretary must approve or disapprove a State program
within 6 months after its submission.) The Committee urges the States to develop
accptable programs as rapidly as possible to avoid a hiatus after the deadline.
It also expects the Secretary to issue regulations rapidly and actively assist
the States to develop acceptable programs.
206 The exception for operations with valid permits recognizes that there
may be delays in the processing of applications which are not the fault of the
applicant and for which he should not be penalized. The applicant would be
subject to the requirements of the State or Federal program during this period.
206 Subsection (b) provides that the term of permits or permit renewals or
extensions issued under State programs shall not exceed 5 years. The Committee
believes that 5 years is a reasonable time period but since many States have 1 -
or 2-year permits it wishes to allow these to continue.
206 To assure that no one will be locked into outdated reclamation
requirements because permits are taken out and renewed without operations being
undertaken, subsection (c) provides that permits will terminate if the permittee
has not begun operations within 3 years of the issuance of the permit unless
otherwise provided in the permit.This flexibility recognizes the longer start-up
times required for coal liquefaction and gasification projects.
206 Under Subsection (d), a valid permit includes the right to successive
renewals if the permittee has complied with all the requirements of the State or
Federal program and has notified the regulatory agency at least 120 days prior
to the expiration of his valid permit. As part of the renewal process the
regulatory authority must hold a public hearing and may require new conditions
or requirements needed to deal with changing conditions. Any application for
renewal beyond the original permit boundary areas must be considered as a new
permit application.
206 SECTION 507. APPLICATION REQUIREMENTS
206 Subsection (a) requires payment of an application fee designed to cover
the actual or anticipated cost of reviewing, administering, and enforcing the
permit. The cost of the fee may be paid over the term of the permit.
206 Subsection (b) lists the basic information required in the permit
application. The information required here is a key element of the operator's
affirmative demonstration that the environmental protection provisions of the
Act can be met and includes:
206 (1) identification of all parties, corporations (with their major
stockholders), and officials involved to allow identification of parties
ultimately responsible for the operation as well as to cross-check the mining
application with other applications in the same State and other States;
206 (2) names and addresses of adjacent surface owners;
206 (3) summary listing of past mining and reclamation permits including
those suspended or revoked;
206 (4) a copy of the applicant's advertisement published in a local
newspaper;
207 (5) a plan for the entire mining operation for the life of the mine
including identification of the subareas anticipated to be included on a permit
by permit basis, their sequencing, and mining and reclamation activities and a
description of method of mining, starting dates, location, termination dates and
schedule of activities;
207 (6) evidence of compliance with section 716;
207 (7) evidence of the applicant's legal right to mine;
207 (8) a full description of the on- and off-site hydrologic consequences
of mining and reclamation, including the impact on the quality and quantity of
water in ground and surface water systems; and
207 (9) maps and data sufficient to fully describe the surface and
subsurface features of the area to be mined, the chemical and physical
properties and geologic setting, so that basic information is available to the
regulatory authority in order to determine the impact of the mining operation
and to be able to verify the conclusions reached by the operator with respect to
the environmental protection measures proposed in the mining and reclamation
plan. Such information shall also include all relevant legal documents, test
borings, keyed to the appropriate maps, and independent laboratory analysis of
such borings (with certain data regarding the coal seam to be held
confidential).
207 Subsection (c) requires the applicant to submit either a certificate
issued by an insurance company certifying that he has a public liability
insurance policy for the proposed surface mining and reclamation operations or
appropriate evidence that he has satisfied other State or Federal self-insurance
requirements which meet the requirements of the regulations promulgated pursuant
to the Act.
207 This insurance must be maintained in full force and effect during the
term of the permit and all renewals until reclamation operations are complete.
207 Subsection (d) makes the reclamation plan an integral part of the
application.
207 Under subsection (e) the applicant must file a complete copy of the
application with the local court house of the county in which mining is proposed
at the time of submission to the State, so that this application will be
available for public review.
207 SECTION 508. RECLAMATION PLAN REQUIREMENTS
207 There is general agreement that since careful preplanning is the key to
successful reclamation, submission of a reclamation plan prior to issuance of a
mining permit is an essential element of effective regulation. This subsection
enumerates the minimum items of information required in any reclamation plan
submitted by an applicant for a permit to conduct surface mining operations. A
reclamation plan is required as part of the permit application. The plan is the
basis by which the regulatory authority determines the feasibility and adequacy
of reclamation which is proposed to be done by the applicant under the terms of
his permit. It also provides that information provided in the reclamation plan
be in the degree of detail necessary to demonstrate that reclamation can be
accomplished. The burden of proof is on the applicant. The following specific
items of information are required.
208 508(a)(1). A description of the condition of the land area which will
be effected by the proposed mining and reclamation must be provided. This
description is intended to include general topography, vegetative cover, the
cultural development. If the area has been previously mined, the description
should cover both the uses of the land existing at the time of the application
and those which existed prior to any mining at the site. The description must
also include an evaluation of the capability of the site to support a variety of
uses prior to any mining disturbance. This description should give
consideration to soil and foundation characteristics, topography, and vegetative
cover.
208 The description is to serve as a benchmark against which the adequacy of
reclamation and the degradation resulting from the proposed mining may be
measured. It is important that the potential utility which the land had for a
variety of uses be the benchmark rather than any single, possibly low value, use
which by circumstances may have existed at the time mining began.
208 508(a)(3). A similar description is also required of the use to which
the land affected by the proposed mining is to be put following reclamation and
its capacity to support a variety of alternative uses. The relationship of the
proposed use to land use policies and plans existing at the time the reclamation
plan is filed must also be prescribed. The comparison of this description with
that required by 508(a)(1) will provide an evaluation of the net impact which
the proposed mining and reclamation will have upon the usefulness of the area
affected.
208 508(a)(5). This section also requires a statement of the techniques and
equipment which will be used in the mining and reclamation operations. This
should be a complete statement adequate to insure that the reclamation
proposed to be accomplished is capable of achievement and that each of the
requirements set forth in subsection 515(b) and any regulations promulgated
pursuant to that subsection can be complied with.
208 The techniques and procedures which will be used by the applicant to
insure compliance with all applicable air and water quality laws and
regulations, and health and safety standards must be described in sufficient
detail to permit an evaluation of their adequacy and probable effectiveness.
208 The reclamation plan must also set forth a description of the particular
considerations which have been given to the conditions found at each site: for
example, the effect of precipitation, temperatures, wind, and soil
characteristics upon revegetation at the site.Furthermore, there must be a
statement of the consideration which has been given to new or alternative
reclamation technologies.
208 There must be a discussion of the potential recovery of the mineral
resources of the site to be mined. To the extent that any portion of the
resource will not be recovered, the reasons and justification for nonrecovery
shall be set forth.
208 A detailed time schedule for the completion of the reclamation which is
being proposed is to be provided.
208 A statement is required demonstrating that the permittee has considered
all applicable State and local land use plans and programs; and disclosure to
the regulatory authority of all rights and interests in lands held by the
applicant which are contiguous to the lands covered by the permit application is
required. The purpose of this disclosure is to provide the regulatory authority
with information on the prospective long-term plans of the applicant in the
immediate vicinity. The bill would not require public disclosure of this
information; however, it does not preclude State law from requiring disclosure
of part or all of it.
209 A disclosure to the regulatory authority of the results of test borings
made by the applicant in the area covered by the permit and the results of
chemical analyses of the coal or other minerals and overburden is required.
This information is essential for the critical evaluation of the adequacy of the
reclamation plan by the regulatory authority and the interested public. Because
of its proprietory nature, information about the mineral (but not the
overburden) will be kept confidential if requested by the applicant.
209 SECTION 509. PERFORMANCE BONDS
209 This section sets out the requirements for one of the most important
aspects of any program to regulate surface mining and reclamation - the
performance bond. The requirements of this section will apply to interim
permits as well as State and Federal programs.
209 Subsection (a) provides that once an application is approved a
performance bond must be filed before a permit is issued. The amount of bond
must be sufficient to assure completion of the reclamation plan if the work had
to be performed by a third party at no expense to the public. The regulatory
authority sets the amount of the bond on the basis of at least two independent
estimates of these costs.
209 The bond covers the area to be mined during the initial term of the
permit. As additional land is mined the bond is increased.
209 Subsection (b) requires that bond liablity extend for a period
coincident with the operator's liability (5 years after completion of
reclamation including revegetation or for 10 years in areas where the average
annual rainfall is 26 inches or less). This extension is necessary to assure
that the bond will be available if revegetation or other reclamation measures
fail after initial accomplishment. The longer time period for liability in arid
areas recognizes that permanent reclamation, particularly revegetation, is more
difficult and uncertain in such areas. This subsection also permits the deposit
of cash and negotiable Government bonds or certificates of deposit in lieu of
posting a bond. These meet the objectives of the bond, i.e., having a fund
available to accomplish reclamation, just as effectively as a bond.
209 Subsection (c) recognizes that some applicants can satisfy the
objectives of the bond requirement through self-insurance or bonding.
209 Subsection (d) provides that the bond or deposit may be adjusted at any
time if as a result of experience or changed circumstances, it is determined to
be inadequate.
209 SECTION 510. PERMIT APPROVAL OR DENIAL
209 This section provides for the basic requirements for a permit
application, outlines the quidelines for permit approval and denial. The
section requires that the regulatory authority make a written finding prior to
approving a permit, that the following conditions have been met:
210 (a) all conditions of this Act have been met;
210 (b) reclamation will be accomplished according to this Act;
210 (c) all hydrology requirements have been adhered to;
210 (d) the area is not incorporated in an area designated unsuitable for
mining;
210 (g) the operation would not adversely affect farming or ranching
operations on alluvial valley floors west of the 100th meridian;
210 Subsection 510(c) requires that any applicant for a permit file with the
regulatory agency a schedule of any violations of federal law for one year prior
to the application.
210 PERMIT APPROVAL OR DENIAL (SECTION 510(C))
210 It prohibits issuance of a mining permit if the application indicated
the applicant to be in violation of the Act or a wide range of other
environmental requirements. It is not the intention of the Committee that an
operator who is charged with the types of violations described in section 510(c)
be collaterally penalized through denial of a mining permit if he is availing
himself, in good faith, of whatever administrative and judicial remedies may be
available to him for the purpose of challenging the validity of violations
charged against him. However, the Committee also does not intend that a
permit applicant can avoid the purpose of section 510(c) simply by filing an
administrative or judicial appeal. It is expected that the regulatory authority
will carefully examine those situations where an administrative or judicial
appeal is pending in order to ensure to the fullest extent possible that such
appeals are not merely frivolous efforts to avoid the requirements of section
510(c).
210 SECTION 511. REVISION OF PERMITS
210 This section establishes a process for the revision of a permit during
its term as well as review by either a State regulatory authority or the
Secretary of existing permits issued prior to the assumption of regulatory
jurisdiction by the current regulatory authority.
210 An operator may submit an application for a permit revision to the
regulatory authority and within a period of time established by that agency, the
application shall be approved or disapproved.The regulatory authority is to
establish guidelines for procedures which may vary depending upon the scale and
extent of the proposed revision. In all events, however, the process will be
subject to the Act's notice and hearing requirements and a proposed revision
which would extend the area covered by existing permit (other than incidental
boundary revisions) is to be made through the normal permit application process.
210 The regulatory authority may require revision of a permit during its
term provided that it follows the State or Federal program's notice and hearing
requirements.
210 SECTION 512. COAL EXPLORATION PERMITS
210 This section requires that all coal exploration operations be subject to
regulation under a State or Federal program, and be required to obtain a permit
prior to the beginning of exploration activities, by submitting an application
similar to, but simpler than, that for a mining operation, which application is
to be accompanied by a fee.
211 SECTION 513.PUBLIC NOTICE AND PUBLIC HEARINGS
211 This section assigns the responsibility for giving public notice,
holding hearings and submitting comments to the mining permit applicant, the
regulatory authority, and interested third parties.
211 The applicant is required to -
211 (a) place an advertisement identifying the ownership, precise location,
and boundaries of the land to be affected in a local newspaper of general
circulation in the locality of the proposed new surface mine. This
advertisement must appear at least once a week for four consecutive weeks;
211 (b) submit, along with the mining permit application, a copy of this
advertisement;
211 (c) cooperate with the regulatory authority concerning the inspection of
the proposed mine area;
211 (d) assume, if a public hearing is held, the burden of proving that the
application is in compliance with State and Federal laws (including provisions
of this Act).
211 The