Senate Report No. 92-1162
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Legislative History Senate Report No. 92-1162 |
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Preamble
Mr. JACKSON (for Mr. Moss), from the Committee on Interior and Insular
Affairs, submitted the following
REPORT
[To accompany S. 630]
The Committee on Interior and Insular Affairs, to which was referred the
bill (S. 630) to provide for the cooperation between the Secretary of the
Interior and the States with respect to the regulation of surface mining
operations, and the acquisition and reclamation of abandoned mines, and for
other purposes, having considered the same, reports favorably thereon with an
amendment and recommends that the bill as amended do pass.
Voting on the bill was unanimous with the understanding that members of the
committee reserve the option to offer amendments to the bill on the floor of the
Senate.
I. INTRODUCTION
14 1. GENERAL
14 As the legislative history in Part III of this report shows, a growing
concern on the part of the Public and the Congress has culminated in action by
the Senate Interior and Insular Affairs Committee in reporting a bill to
regulate surface mining operations.
14 The center of the controversy over surface mining has, in many respects,
focused on coal production in Appalachia States, although many areas in the West
have also been focal points of controversy.
14 The Appalachian Region has 22.5 percent of the coal that can be strip
mined in the United States. Although strip mining has increased less in
Appalachia (where the topography is rugged) than it has in flat areas, such as
Illinois and in many Western States, it has increased enough to cause extreme
concern among Appalachian citizens. n1
14 n1 Appalachia, vol. 5, No. 4, February, March, 1972.
14 The problem clearly is not a regional problem: it is national in
character and is not confined to any one area of the country, nor, in the view
of the Senate Interior Committee, is it confined to one mineral.
14 According to a report made for the Public Land Law Review Commission,
coal seams indicated thick enough for exploitation underlie 34 million acres of
the 11 far-western States. These deposits constitute a source of low-sulfur
fuel that electric utilities anticipate will meet environmental standards for
air pollution control. The Nation's soaring demand for electrical energy
indicates that these coal reserves will be necessary as a power source until
breeder-type nuclear power reactors become a reality. Accordingly, it is
expected that Western coal production will rise from 29 million tons in 1970 to
about 338 million tons by 1990. More than 665,000 acres of Federal lands were
leased for coal mining in nine Western States as of June 30, 1970.
15 The States of Idaho, Montana, Utah and Wyoming contain 42 percent of the
known and 41 percent of the potential phosphate rock deposits in the United
States. Annual production of this important mineral, mostly from surface mines,
is 6 million tons with estimates at three times this level by the year 2000.
15 One of the few major undeveloped energy resources left in this country is
oil shale. The richest deposits lie in eastern Utah, southern Wyoming, and
northwestern Colorado. In that region there are potentially commercial deposits
underlying 11 million acres.
15 It should not be assumed that all of the western coal, phosphate, oil
shale and other minerals will be mined by surface methods. But pressures for
vastly expanded development of western mineral resources are mounting rapidly
and surface mining, because of its favorable cost-to-production ratio, is
certain to play an important role.
15 Annually, over four billion tons of mineral raw materials - including
crude oil, natural gas, coal, ores of the metals, and a wide variety of
nonmetallics are now extracted by all extractive methods from the 3 1/2 million
square miles of the United States. Minerals and energy in adequate quantities
are indispensable to modern industrialized society. Without them there can be
no economic and social progress. The United States uses, according to the
Secretary of the Interior, n2 annually 20 tons per person to sustain our
economy.
15 n2 First annual report of the Secretary of the Interior under the Mining
and Minerals Policy Act of 1970 (P.L. 91-631).
15 Contemporaneous with the need for raw minerals to be processed into
energy and materials for the industrial society, we are faced with mounting
costs of environmental damage.
15 Harry Caudill put the case starkly when he said:
15 America is so abundantly endowed with ores and fuels, world demand for
them is so great, and earth-moving technology is so efficient that strip mining
- until recently associated primarily with coal and Appalachia - has become as
reality or an imminent prospect for every state and nearly all counties. An
ecological nightmare of unimaginable dimensions suddenly looms everywhere. n3
15 n3 Nation, April 19, 1971.
15 Mr. Peter Borrelli, Eastern Representative of the Sierra Club, in a
speech presented to the Seminar on Conservation and Coal Mining at Ohio
University held on August 14 through 18, 1972, stated:
15 It is not illogical, in the face of this absence of any rein on the coal
companies, to ask that strip mining be stopped - now. Perhaps not stopped for
all time and in all places, but stopped until we can create even the most
rudimentary means of making strip miners accountable for a broader public
standard of care and caution. Would anyone object if there were selected strip
mining, in non-mountainous areas, consistent with a comprehensive land use plan,
with provisions for the reconstruction of the wasted land? I think not. But we
must face the fact that it is the companies and not the government nor the
people that now make the decisions affecting the land and the lives of
Americans.
16 Proposals for totally banning surface mining operations for already
depressed areas even in the face of immediate economic plight reveal the
heightened and compelling concern of environmentalists.
16 Spokesmen for the American mining industry state that surface mining -
which includes both strip mining with giant earth mover machines and auger
mining with huge power drills - is more efficient, less costly and much safer
than underground, or deep mining. In addition, they say strip mining is vital
to ensure that the nation has a sufficient supply of coal to generate electric
power during the impending "energy crisis."
16 Although the prime arguments over legislation to regulate surface mining
are economic and environmental, there are a number of additional points of
controversy. These include the need for continuing supplies of minerals,
particularly coal because of the current concern over energy supplies; the
effectiveness of reclamation procedures, the question of who shall administer
regulation programs, and the nature of provisions to insure the safety of mine
workers. Briefly, the contentions over these matters are as follows:
16 The Senate Interior Committee has been particularly cognizant of the
mounting public concern over the continued availability of adequate energy
supplies. The continued prosperity and progress of an industrial society is
impossible without adequate supplies of mineral and surface resources. Problems
related to surface mining and use of surface-mined land and how they can be
solved must be brought into perspective in considering balanced resource
utilization. Without a realistic perspective in balancing the equities, neither
wise nor effective policies or actions are likely to result.
16 Estimates of major energy sources in the period beyond the year 2000
indicate that fossil sources will decline in importance. Until that time,
however, fossil fuels must be considered our primary energy sources. Of those
fossil fuels - coal, oil and gas - coal is the most abundant and the most
accessible.
16 The 1970 edition of Mineral Facts and Problems published by the Bureau of
Mines notes:
16 Increasingly, environmental and social considerations can be expected to
constrain the supply and limit the use of direct fuels to those that are
nonpollutant. Land use and ecological considerations may restrict strippable
coal supply.
16 The capability adequately to restore surface mined lands using available
technology is a matter which is still under debate. While industry has returned
to productive use some thousands of acres of mined land, opponents claim that,
in the main, these are simply "showcase" projects which are not representative
of the vast majority of reclamation efforts.
16 Senator Allott arranged for a presentation to members of the full
Committee concerning the experience of the Brown Coal Surface mines in West
Germany, southwest of Cologne, to illustrate reclamation feasibility. These
mines are among the largest and most efficient in the world, with the largest
mine producing 100,00 tons of lignite per day. As much as 150 million tons of
coal and overburden are moved each year through the use of bucket-wheel
excavators having a capacity of as much as 130,000 cubic yards per day. The
coal (lignite) is from 200 to 800 feet below the surface, which must be removed
prior to mining.
17 The significance of the West German mines lies in the restoration
techniques employed. The use of gaint spreaders (equal in size to the bucket
wheel excavators) permit a quality of "relandscaping" not possible without such
equipment.
17 "Relandscaping" is not used in the sense of returning the land to
precisely its former configuration; rather, it is used in the sense of restoring
the land to not less than its former productivity, and returning it to
equivalent or superior aesthetic quality.
17 By employing such mining and restoration techniques, surface mining is
reduced to a temporary disruption of the use of the surface and to a temporary
disfigurement of the landscape. The face of the land is restored just as a
plastic surgeon may correct a natural imperfection while repairing the
disfigurement of the damaged face of an accident victim.
17 The West German experience demonstrated that lands can be mined and
restored to an attractive and aesthetically pleasing landscape, perhaps even
improved. As Senator Allott remarked:
17 If the West Germans can do it, certainly we can do it. I've seen their
success in mined land reclamation and it is outstanding but we must have control
of our surface mining to achieve these results.
17 A major question concerning the regulation of surface mining has been
whether the Federal or State government should establish and operate the
program.
17 State regulation has been favored by the mining industry on the grounds
that local unique conditions could be more easily recognized and built into the
regulatory program. An overall Federal program, it was claimed, would be too
inflexible and would work a disadvantage on some surface mining operations.
17 Proponents of a Federal program criticize the lack of strong regulations
and enforcement under State management. They cite as an additional argument
that, with uniform nationwide standards and requirements, surface mine operators
would not be able to move from State to State, in effect, "shopping" for the
lowest standards of environmental protection.
17 Several of the bills before the Committee combined Federal and State
roles in regulating surface mining. The Federal responsibility lies in
formulating general guidelines within which the States are to develop and
enforce reclamation programs. In the event a State does not do so, the Federal
government is empowered to develop and/or administer a program deemed
satisfactory by the Secretary of the Interior.
2. THE ISSUES FROM THE HEARINGS
17 The hearings held by the Subcommittee on Minerals, Materials and Fuels
on November 16, 17 and December 2, 1971 and February 24, 1972 developed a useful
record on surface mine regulations. Witnesses provided new documentation of
previously identified issues. In addressing the various legislative proposals
before the Committee, witnesses raised additional questions and points of view.
18 In order to review and analyze the issues, representative statements from
the hearings have been selected and grouped in this section.
18 Surface mining was defended on economic grounds by Cannelton Coal Company
president Paul Morton:
18 I sincerely believe that the surface mining method of extracting our
Nation's coal resources is more nearly in accord with rational conservation of
natural resource policy than is the deep mining for coal. By surface mining we
are presently able to make a total recovery of the resource while this is not
possible through deep mining. For example, in my own opoperations, Cannelton
Coal can and will recover all 14 million tons of coal reserves presently held in
fee and covered by our present 2,000-acre permit. Through the best in
underground methods, we are able to extract less than 4 million tons from that
same reserve. Hence, more than two-thirds of our coal would be non-recoverable
if not surface mined.
18 Representative Kenneth Hechler of West Virginia cited the environmental
costs which stand in contrast to efficiency:
18 Watertables are destroyed, depriving the earth of its channels of
nourishment. The delicate surface fabric of life-supporting earth is cast to
the bottom. Deep strata of rock and shall are pulverized and exposed to the
elements, where they will leach acids and toxic minerals into the surrounding
streams for generations. Mountains, now unstable, crack, slip and slide. Rains
wash mud, sand and toxic substances down into the streams and rivers, filling
their channels and poisoning their waters.
18 These two basic positions - economics versus environment - were heard
from many witnesses who detailed various aspects of the controversy.
18 Underground mining
18 A useful corollary to the environmental damages of surface mining was
contained in the testimony of several witnesses on underground mining.
18 Russell Train, Chairman of the Council on Environmental Quality, noted
the extent of subsidence:
18 * * * land undermined by underground mining alone probably exceed 7
million acres - with 2 million acres already suffering some subsidence and
another two-thirds of a million acres expected to subside by the year 2000. The
Bureau of Mines estimates that new underground mining will affect 4 million more
acres of land in the meantime. Our actions now can prevent those 4 million
acres from becoming a burden on future generations.
18 Train added, "environmental consequences of underground mining, such as
subsidence and acid mine drainage, can be very serious without adequate
controls".
19 He was speaking in support of the administration proposal, S. 993 and S.
1176, which along with a number of other pending measures would impose
environmental controls on underground mines as well as surface mines.
19 John R. Quarles Jr. of the Environmental Protection Agency cited the
extent of damages from mining operations, then added, "a major portion of the
damages which I have just mentioned results from inadequately planned and
unregulated underground mining and mineral processing".
19 Energy needs and coal
19 The conservationist point of view on the widely discussed energy crisis,
and the need for coal to resolve it, is typified by this testimony of the
Wilderness Society representative, A.T. Wright:
19 We doubt that there is an energy crisis of serious enough proportions
which demands that coal be strip mined at its present rate or, indeed that it be
strip mined at all. The experts tell us that we have adequate coal reserves for
the indefinite future.We are not forced to resort to stripping. Why, then, must
coal be stripped at all in view of the staggering social and environmental costs
which attend it? * * * Deep mining on an almost exclusive basis seems to be the
only sane answer to the catastrophic alternative of strip mining.
19 Cannelton Coal's Morton offered a starkly different view:
19 Deep mining simply does not provide the Nation with a viable alternative
to surface mining.
19 National Coal Association President Carl Bagge said:
19 It is not realistic to expect that surface mined coal could be replaced
by production from underground mines. While there are ample underground
reserves, to produce the 264 million tons of surface coal mined last year would
require 132 additional underground coal mines of 2 million tons annual capacity,
a capital investment of $3.2 to $3 .7 billion, three to five years before full
production could be anticipated and an additional 78 thousand trained
underground miners.
19 Later, pointing out the contribution of surface-mined coal to the
national energy supply, Bagge added, "* * * it is reasonable to assume that
about one-fourth of the total electric energy generated in 1970 was produled
from surface mined coal".
19 Senator Howard H. Baker testified also on this point:
19 * * * the power grids of the nation, especially those of the Southeast,
are dependent to a remarkable degree on the production of coal from surface
mines and this dependence cannot be withdrawn suddenly without unacceptable
economic and social consequences.
19 Wright in his statement questioned the existence of any real overall
energy crisis, testifying:
19 Aside from the fact that the crisis, if indeed there is one, has been
induced by high pressure sales tactics and overpromotion, a part of the picture
has to be the 52 million tons of coal exported annually.
20 Extensive testimony on the matter of promotion of the use of electrical
energy was presented in this committee's hearings on power generation and
associated problems in the Southwest.
20 Reclamation feasibility
20 Opponents of surface mining contend that the technology is not available
to provide for the adequate reclamation of lands following mining. Much of
their effort to ban such mining has been based on that contention.
20 Hollis Dole, Assistant Secretary for Mineral Resources of the Department
of Interior discussed at some length the means available to counter adverse
environmental effects of both surface and underground mining. "Reclamation of
mined areas," he said, "not only reduces pollution, but returns land to
subsequent productive use."
20 Dole further stated:
20 The growing conviction that environmental damage caused by mining
operations can be controlled and minimized through adequate safeguards and
proper surveillance has led in recent years to the formulation of new
environmental protection measures by several Federal Agencies having land
management responsibilities. Mineral operations on these lands now must be
conducted in accordance with the best available practices, and the lands
disturbed reclaimed to a condition compatible with current standards.
20 Interestingly, the witness who followed Dole was John Quarles of the
Environmental Protection Agency who said:
20 We do not have adequate technology to deal with all of the environmental
problems that are created by mining and mineral processing activities.
20 A.T. Wright of the Wilderness Society stated:
20 * * * reclamation is at best a myth and at worst a hoax if we delude
ourselves into believing that we can re-establish anything but a shaky
monoculture on strip mined areas.
20 It seems fair to state that the prompt restoration of surface mined land
to its original natural state is impossible. The restoration of the same land
to some useful state is more likely and in some situations could make the mined
land more valuable. Representatives of both the coal and stone industries
testified that the use of surface mined land after mining should be left to the
decision of the operator-owner, or local government. Thus, they oppose Federal
statutory language requiring restoration of mined land to the original contour,
or the filling of all cuts.
20 Federal or State administration
20 The 1971 hearings revealed a significant change in the position of the
mining industry from that expressed in the 1968 hearings.
21 On page 97 of the printed hearings on "Surface Mining Reclamation", 90th
Congress, 2nd Session, Mr. Joseph Abdnor, representing the American Mining
Congress testified:
21 Based on the mining industry's awareness of the economic factors
involved, its experience in the diversity of the problem and the engineering
techniques of land restoration, and its analysis of the problem on a national
basis, the American Mining Congress is opposed to the legislation before you
today.
21 He further noted on page 98 of the 1968 hearings:
21 We do not believe Federal legislation is called for; we oppose it as
unnecessary, undesirable, and impractical.
21 It is unnecessary because no plausible case exists for global Federal
regulation producing a confict of jurisdiction over the myriad local conditions
which apply to the reclamation of surface-mined lands.
21 In the 1971 hearings, Abdnor once again represented the American Mining
Congress. His recent testimony illustrates the change in the mining industry's
approach:
21 Let me say at the outset that the American Mining Congress endorses the
concept embodied in a number of the legislative proposals pending before this
Committee - namely, that it is appropriate for the federal government to have
and exercise the authority to establish guidelines for the regulation of surface
mining. While urging that the states have a responsible role, we recognize that
when federal guidelines are thus set, it is incumbent on a state to satisfy
those federal guidelines; and if it does not, then the federal government will
come into a state and do the job itself.
21 In 1968, conservationists found acceptable the proposition of Federal
guidelines for the States to use in the development and administration of their
own programs - the approach now supported by a large segment of the mining
industry.
21 The conservationist position has also undergone a shift. Based on their
observations of State programs to regulate surface mining and reclamation,
conservationists find State control unsatisfactory, in many instances. As a
result, their request is now for a Federally administered program.
21 Assistant EPA Administrator John Quarles criticized the existing
situation, noting:
21 Many of the State statutes are inadequate and ambiguous; some do not
admit of equitable enforcement. States enforcement has been hampered by lack of
funds and personnel. In addition, most of the State laws * * * are too limited
in coverage to provide a comprehensive remedy for the problem.
21 United Mine Workers of America representative Joseph Brennan, speaking in
support of S. 2777, said:
21 S. 2777 contains a provision for State control over stripping under
certain circumscribed conditions. We have some misgivings on this section
because of many State failures in the past to adequately control stripping or to
effectively enforce proper statutes.
22 Other critics of the State programs were more outspoken. Peter Borrelli
of the Sierra Club testified:
22 There are two basic reasons for the failure of regulation. One is lack
of enforcement. The feeble regulatory efforts of West Virginia and Kentucky are
just no match for the immense political and economic power of the coal industry.
* * * Pennsylvania can at least balance the scale with some real enforcement,
but blatant violations of the law abound.
22 The second reason for the failure of regulation is that regulations in
all three States prescribe procedures to be followed, rather than results to be
achieved.
22 Norman R. Williams, former official in the West Virginia surface mining
regulatory program concluded, "the surface mining industry in Appalachia is not
amendable to social control". He charged that in West Virginia:
22 * * * the entire regulatory apparatus of the State is geared to protect
the surface mine operator's profits as against protecting the environment and
downstream residents.
22 In contrast, two active State reclamation officials, William Guckert of
Pennsylvania and Sanford Carby of Georgia testified in support of an overall
Federal program but for a State role. Guckert, for instance, called for Federal
legislation which "should set the standards, requirements and penalties, but the
responsibility for enforcement should be with the individual States".
22 S. James Campbell of the National Crushed Stone Association cited the
historic role of State and local government in determining land use patterns.
He said:
22 Blanket federal rules respecting reclamation would conflict with and
undermine efforts of state and local authority to provide rational growth and
land development.
22 Administering Federal agency
22 There was a strong difference of opinion apparent in the hearings as to
which agency should lead the Federal effort in establishing guidelines and
administering the program.
22 Department of Interior Assistant Secretary Hollis Dole testified:
22 The Department of the Interior, whose function is the formulation and
administration of programs relating to management, conservation, and development
of our natural resources, is the logical agency to administer the proposed act.
22 His position was supported by industry spokesmen and others who
acknowledged the expertise of the Department of the Interior.
22 Carl Bagge stated that Interior was best qualified to administer the
Federal program, particularly in light of the fact that, "the Mining and
Minerals Policy Act of 1970 charges the Secretary of Interior with the
responsibility of carrying out the policy of that Act".
23 Joseph Brennan testified for the United Mine Workers that, "the
Department of Interior is the logical place for enforcement * * * ". He added:
23 On the other hand, there is a great deal of knowledge about the impact of
strip mining and the damage done to the environment by strip mining, outside the
Department of Interior.To bring this knowledge to the fore, S. 2777 provides for
the use * * * of experts from other governmental agencies.It also establishes a
strip mining advisory commission, with membership appointed by three somewhat
diverse governmental departments.
23 The Secretary of Interior would appoint three members. * * *
23 The Secretary of Agriculture would appoint three members. * * *
23 Finally, the responsibility for the Federal anti-pollution law rests with
the Administrator of the Environmental Protection Agency * * * [who would also
appoint three members of the advisory commission].
23 In general, conservation and environmental groups favored vesting primary
Federal authority in the Environmental Protection Agency.
23 Malcomb Baldwin, testifying for the Conservation Foundation, said:
23 We believe that the Environmental Protection Agency, which is responsible
for enforcing most of the nation's Federal environmental protection laws, is in
the best position to enforce strip mine legislation. This separation of
enforcement duties from the Department of the Interior's development and
management function is consistent with the theory behind the Administration's
environmental reorganization proposals. Conflicts of interest historically
apparent within the Department of the Interior can be resolved by giving EPA
enforcement authority over coal strip mining.
23 Among others sharing this position were the Black Mesa Defense Fund, and
the Sierra Club. Senators Cooper and Baker advocated EPA as the lead agency for
the Federal effort. Senator Cooper noted:
23 Senator Baker and I have concluded that the proper agency for control
would be the Environmental Protection Agency, cooperating with the Department of
the Interior's Bureau of Mines, and with the Forest Service and Soil
Conservation Service of the Department of Agriculture, and others.
23 The case for the Department of Agriculture as lead agency was made by
David Unger, of the National Association of Conservation Districts:
23 The Federal responsibility for dealing with the impacts of mining on the
land surface should be exercised by the Department of Agriculture. USDA is the
recognized authority in dealing with erosion, land reclamation, and land
conservation. Working in cooperation with our conservation districts, the
Department has built up a network of technical, financial, and educational
arrangements which are already being utilized in mined-land reclamation and
which would be available for an accelerated and expanded program.
24 Virtually all of the research being conducted on reclamation of mined
lands is being done by USDA and cooperating Agricultural Experiment Stations. .
. .
24 The Soil Conservation Service of the Department of Agriculture has nearly
40 years of experience in the scientific planning of land reclamation and
conservation work * * *
24 SCS has available a corps of nearly 8,000 trained technicians across the
country who are experienced in the application of technology to land problems of
this kind.
24 Additional issues
24 Several points, not previously discussed in this Committee Print,
appeared in the hearings a number of times. These are the special
characteristics of some mineral operations; the problem of previously mined
lands including questions of ownership; a severance tax on surface mined
minerals; a timetable for the implementation of surface mining regulation; and
other suggested additions or deletions with regard to the then pending
legislation. The contentions on these points are outlined in the following
sections.
24 Special characteristics of some mineral operations
24 Rather broad support was made for the point that surface mining for
different minerals creates different problems - and that any Federal reclamation
law should recognize those differences.
24 Malcomb Baldwin of the Conservation Foundation said:
24 However, many of the bills now being considered would legislate for all
forms of surface mining. We believe these bills to be inadequate, because they
do not recognize the problems peculiar to each form of strip mining.
24 Georgia reclamation official, Sanford Darby, noted:
24 I know from experience in writing the Georgia rules and from
administering and enforcing the provisions of this law many of the problems
involved. I can assure you that if you delegate complete responsibility to the
Secretary of the Interior or to any one specific government official the
responsibility of developing regulations which will apply to the entire United
States, he is going to have an almost impossible task to accomplish.
24 S. James Campbell, of the National Crushed Stone Associated, said:
24 With regard to the requirements of several of the bills this Committee is
now considering, I would call to your attention the unique character of our
industry. Quarries have to be located in or near urban areas because of the
high cost of transporting heavy stone materials. Consequently, our industry is
already subject to heavy local regulation through zoning and area growth plans.
Again, a quarrying operation disturbs very little land - the average quarry
encompasses less than 30 acres. Because almost 85% of the materials excavated
from a quarry is sold, there is virtually nothing left for land fill. Moreover,
typical types of quarries have a life expectancy of about 81 years.
25 With the exception of being located near urban centers, these same
arguments are also applicable to the mining of iron ore.Tom Binger said of his
company's experience in Minnesota:
25 It is the numerous inactive mines and lean ore stockpiles that can be
relied upon to provide the demands of the increased steel production in times of
national emergency. If all the pits in Minnesota had been "reclaimed" and the
lean ore piles dumped back in the open pits, I do not believe the production
requirements of World War II or the Korean War could have been so easily
fulfilled.
25 * * * My company's operations have always involved the adoption of new
techniques to gain mineral values from mines that have though to have been
exhausted of economic ore by a previous operator. Had the previous operator
contaminated the mine by the reintroduction of surface materials or had he not
carefully segregated the lean ore materials brought to the surface in his
operations, it seems certain to me that most of the iron ore we have been able
to produce would not have been possible.
25 Previously mined lands
25 There are about two million acres of land which have been disturbed by
surface mining but never reclaimed. Provisions for treatment of these "orphan
lands" are included in some - but not all - of the pending bills.
25 Senator Clifford Hansen said of S. 1160, which he introduced:
25 The Subcommittee has devoted much time and effort to several bills
pending in the Congress concerning strip mining and underground mining and the
restoration and reclamation of mined lands. I am deeply concerned however, that
these bills do not provide for restoration and rehabilitation of areas which
have been mined in the past and have been long since abandoned.
25 The bill would provide nationwide application of a program presently
limited to Appalachia whereby the Secretary of Interior makes grants to seal and
fill voids in abandoned coal mines. Abandoned oil and gas wells would also be
covered by S. 1160.
25 Assistant Interior Secretary Dole testified in opposition:
25 * * * preventing the annual additions of new problems is relatively more
important than initiating broad new programs to ameliorate the affected lands of
the past. We must bring under control today's and tomorrow's potential damages
to the environment before we can make reasonable headway against those of
yesterday.
25 * * * Our second reservation concerning S. 1160 is centered quite simply
on the basis of cost. It is truly a very substantial expense which will be
involved in repairing past mining damages. It is not one that can be imposed
readily on its perpetrators, as too many of the former mine operators and
landowners no longer control or own the mined property. And because our
knowledge of what really needs to be done is incomplete, the potential for
costly mistakes is large.
26 Senator Jennings Randolph testified that in West Virginia:
26 The principal remaining concern is acid mine drainage from abandoned and
orphaned surface mined lands.
26 The Conservation Foundation, referring to coal, stated:
26 We recommend a joint State-Federal program, in which initially the states
should catalogue and establish reclamation plans and priorities for these lands
and the Federal government should provide the funds and special expertise. Then
the states and/or the Federal government should proceed selectively to reclaim
or rehabilitate.
26 We recognize that there are problems of windfall profits to private
owners benefitting from the enhanced value of their lands. However, liens could
be applied by states, to assure that an owner of reclaimed land would repay the
state for any increment in value resulting from reclamation, at least up to and
including the resulting increment in fair market value of the land. We
recommend that new legislation require a thorough study of the "revolving fund"
mechanism whereby public acquisition and resale of subsequently reclaimed land
can fund the purchase of more such land.
26 Severance tax on surface mined minerals
26 Senator Howard Baker testified:
26 We should consider the establishment of a severance tax on all coal and
on other fuels at the Federal level to insure uniformity and make the proceeds
thereof available to the states or locality if they elect so that the benefits
of this resource can accrue in the area in which it is located.
26 In later questioning, he indicated that he would make such a tax
applicable to all surface mined minerals, not only fuels.
26 Norman Williams also supported a tax on coal to facilitate reclamation:
26 * * * a Reclamation Trust Fund should be established, based on a per-ton
tax of all coal mined, the money to be devoted exclusively to purchasing and
restoring lands inadequately reclaimed from surface mining or deep mining of
coal, and also for funding workshops and other organized efforts to train
citizens in monitoring techniques.
26 Peter Borrelli, of the Sierra Club, offered as one method by which the
"federal government might affect partial prohibition" of surface mining of coal:
26 A tax of $2 .50 per ton, on strip-mined coal to remove the competitive
advantage of strip mining over deep mining. The tax could be used for federally
administered reclamation.
27 A timetable for surface mining regulation
27 The administration surface mining proposal allows two years for the
States to develop requirements for mining operations and reclamation. Another
proposal, S. 1498, would abolish surface mining for coal within six months of
enactment. The timing of controls for surface mining thus remains an active
question.
27 Administration spokesmen defended the two year time allowance to the
States on the grounds that some State legislatures met only every two years, and
thus would need the time allowed by the administration proposal.
27 Senator John Sherman Cooper proposed a more compressed schedule:
27 This procedure, establishing a system of primary State regulations,
backed up if necessary and enforced by the EPA, would require 16 or 18 months to
develop - 6 months from enactment for the EPA to issue comprehensive guidelines
and criteria to the States, 6 months for the State to develop its plan based
upon the Federal criteria and guidelines, and then 4 to 6 months for the action
of the EPA in approving or amending State plans.
27 Noting the problems that unregulated mining could cause during even the
18 month period, Senator Cooper added:
27 I therefore propose that during this interim period, surface mining be
conducted only under Federal authority, with the approval of the EPA.
27 Our proposal would establish an iterim Federal program, under Federal
authority of the Environmental Protection Administration. Any person currently
operating a surface mine, or proposing to initiate operations at a new site,
would be required to file a plan with the EPA describing the method of operation
and the restoration program. The Administrator of EPA would have to approve the
plan if the operator is to continue operations, or initiate new operations. The
Administrator would approve the plan only if he were assured that restoration is
adequately provided for. Six months after enactment no person could operate a
surface mine except in compliance with the interim Federal controls and EPA
approval.
27 A similarly compressed timetable was proposed by Baldwin of the
Conservation Foundation, who said:
27 * * * we recommend that Federal law should give the states a regulatory
role, but that it should allow them not more than six months to develop
Federally-approved laws, regulations, and implementation procedures. Failing
such approval, Federal standards and enforcement should apply.
27 Given the general condition of state law and the urgency of radical
changes, it may well be that the foregoing proposal might result in direct
Federal control over coal strip mining in many states, through Federal permits,
regulations, and inspection programs. Such a direct Federal role would find
some precedent in Federal enforcement of the Coal Mine Health and Safety Law.
28 As part of the Federal program, Baldwin also recommended that, "all
contour stripping cease within six months of the date of enactment of the Act."
28 Other proposed additions and deletions
28 The hearings elicited numerous suggestions as to additions, deletions and
changes in language of the several bills. Several witnesses, such as HELP and
the League of Women Voters of Scranton, Pennsylvania, and the National Coal
Association provided detailed reviews of the pending legislation.
28 Among the suggestions offered were these:
28 The American Mining Congress expressed concern that any legislation
approved by the Committee, "include an appeals procedure, including the right to
judicial review by the courts". The Mining Congress also declared, "that
criminal sanctions in a federal surface mining statute would be most
inappropriate".
28 The National Coal Association said that, with regard to any federal
guidelines, or regulations, "public notice and the right to comment should be
required".
28 The deletion of control of underground mining was proposed by E. R.
Phelps, President of Peabody Coal Company, who said:
28 The coal industry believes the legislation should not include the
environmental regulation of underground mining.
28 R. W. Hatch added in this regard:
28 * * * no practical technology has yet been developed to control
subsidence in underground coal mining, so there is no way that that part of the
statute could be enforced.
28 The Crushed Stone Association offered this suggestion:
28 We propose that such legislation define the term "reclamation" to specify
that flexible land reuse is the will of Congress. The failure to make this
clear will, we submit, invite "guidelines" ordering a return to as near original
condition as possible irrespective of possible alternative uses that would
result in a higher use of such land.
28 The Association also offered a suggestion that was repeated by other
mineral industry witnesses:
28 That any Federal guidelines or state standards should be required to be
consonant with the Mining and Minerals Policy Act of 1970.
28 These are, of course, but a few of the many suggestions offered during
three full days of testimony. The selection is not meant to be encyclopedic,
but only to provide an indication of the concerns expressed. While it is
hoped that this review of the hearings is balanced, overall, the full hearing
record must be examined as the final source on what transpired.
3. SUMMARY OF MAJOR PROVISIONS
29 (a) Committee Action. - During the more than a year and a half of this
Congress the Subcommittee on Minerals, Materials and Fuels conducted numerous
hearings, field investigations and studies of surface mining operations
throughout the country.
29 On June 1972, the Subcommittee reported its bill to the full Committee
with the unanimous and bi-partisan support of the Subcommittee.
29 On September 13, 1972, on motion of Senator Frank E. Moss, Chairman of
the subcommittee, the full Committee on Interior and Insular Affairs voted to
report out the Subcommittee's bill (S. 630) with the understanding that Members
may wish to offer amendments to the measure on the floor.
29 In commenting on the reporting of S. 630, Senator Moss said:
29 The satisfactory reclamation and rehabilitation of surface mined areas is
one of the nation's great conservation charges, and the intelligent use of the
materials of this earth in the betterment of mankind a special charge. This
bill is an attempt to meet that challenge.
29 In seconding the motion to report the Subcommittee bill, Senator Len B.
Jordan of Idaho, ranking minority member of the Subcommittee, pointed to the
hours of hearing time and the field trips undertaken by the Subcommittee in
consideration of the legislation. The bill reported by the Subcommittee, he
added, is a reasonable, effective measure, designed to protect the environment
without advesely affecting essential mining activity and conforming to the now
generally accepted policy that the costs of the mineral developed should reflect
the cost of adequate reclamation.
29 Senator Henry M. Jackson, Chairman, said that if this bill is passed, S.
630 will provide the first Federal regulation of strip mining since the method
was first used in the early 1900's. He went on to state that the bill is a
"great step forward for conservation in America."
29 Senator Gordon Allott, the ranking minority member of the full committee,
agreed, saying that "restoration of land affected by strip mining must be a part
of the mining process and a cost of doing business. Controls must be
implemented as soon as possible to prevent further damage to our precious land
resource without adequate restoration."
29 (b) Purpose . - The purpose of the legislation is to proivde Federal
guidelines, technical assistance and a grant-in-aid program to States with
respect to the regulation of surface mining operations and surface operation
incident to underground mining operations for all minerals.
29 (c) Authorization. - The grant-in-aid program authorizes annual grants to
States in an amount not to exceed 80% of the total costs incurred during the
first year and 50% of the total costs incurred during the succeeding years, and
authorizes an appropriation of $10 million for the fiscal year ending June 30,
1973 and $2 0 million for each of the next two succeeding fiscal years. An
additional $1 00 million revolving fund is authorized to acquire title to and
for the reclamation of abandoned and unreclaimed mined lands.
30 (d) Administration. - The Act would be administered by the Secretary of
the Interior and he is authorized to promulgate Federal guidelines, approve
State plans in consulation with the Secretary of Agriculture on reclamation
matters, and obtain the views of other agencies principally concerned with such
State plan.
30 (e) Requirements for Permit. - A permit is required for all new
operations, or any significant increase of operations, for surface mining of
coal. The effect is a 90 day moratorium during the period within which the
Secretary must prepare guidelines for surface mining of coal. Operators of
on-going operations for coal must obtain permits under either a State or Federal
plan within one year of enactment. Permits for all other minerals must be
obtained after two years.
30 No permit will be issued unless the technology exists to reclaim the
land.
30 (f) Prohibition. - The regulating authority under either a Federal or a
State plan may deny issuance of a permit and thus prohibit mining operations
where the surface cannot be reclaimed or where an area of critical concern or
significant historical or cultural value would be destroyed by any proposed
mining operations.
30 (g) Federal-State Cooperation. - The Act places the initial
responsibility for developing, authorizing and enforcing regulations with the
States. The Secretary of the Interior is required to prepare a Federal plan for
any State which does not adopt an acceptable State program meeting the
requirements of the Act or if the State fails to enforce its plan.
30 (h) Role of the Federal Government. - The Secretary is required to
publish guidelines for the Federal and State plan which would include:
environmental protection standards; and require a reclamation plan, mining
permit and bonding sufficient to assure reclamation and provide adequate
provisions for enforcement. Specific Federal guidelines for the surface mining
of coal would include requirements for handling waste and spoil materials,
revegetation, bench widths and highwalls, terracing and water impoundments.
30 (i) Role of the States. - States which now have effective laws governing
reclamation of surface mining operations which meet the requirements of the Act
would continue such operations as an approved interim plan. Those States
without such provisions must enact a State plan which includes a permit system
for coal operations within one year of enactment and develop a State plan which
includes a permit system for all other minerals within two years of enactment.
(See (e) above.)
30 (j) Minerals and Lands Covered. - All minerals are covered except those
minerals which naturally occur in a liquid or gaseous state and al lands are
covered except lands which are subject to exclusive Federal jurisdiction and
Indian lands. n4 All mines, the products of which directly or indirectly affect
commerce are included in the bill.
30 (k) Sanctions. - The bill provides sanctions for violation of Federal or
State laws including issuance of stop orders, withholding of permits, forfeiture
of bonds and initiation of civil and criminal actions.
31 Civil and criminal provisions are provided with willful violations
subject to fines up to $10,000 and imprisonment for up to six months or both.
31 n4 The intent of the committee was to exclude only those lands over which
a State could not exercise its police power, such as Indian lands and military
enclave properties of the United States.
4. NEED
31 The area disturbed by surface mining annually climbed from 50,000 acres
in 1965 to nearly 100,000 acres in 1970, according to the Bureau of Mines. The
Council on Environmental Quality, in its report of August, 1972, put the 1971
estimate at 241,800 acres and said at least 4,650 acres are being stripped each
week. Only about a third of the land disturbed by surface mining had been
reclaimed.
31 Only through positive legislative action will the destructive aspects of
surface mining be successfully overcome. When this is accomplished, lands that
are now in useless condition, devoid of vegetation and potentially dangerous as
causes of floods, contamination, pollution and other catastrophes may be
restored once again to natural or a much needed productive state, suitable for
agriculture, livestock, recreation and scenic enjoyment.
31 In its 1972 annual report to the President, the Council on Environmental
Quality stated that it will cost $2 87.1 billion from 1971 to 1980 to improve
and restore the environment.The report estimated the 1971-80 expenditure for
land reclamation and water purification from surface mining for all minerals
will total $5 .7 billion. If the costs to the environment were included in the
price of fuel, the cost of deep mined coal would rise 30 percent, strip-mined
coal 32 percent, domestic oil 26 percent and imported oil 23 percent.
31 A balancing of the needs of the nation in its requirements for minerals
and the economics and industrial growth weighed against the environmental needs
is not an impossible equation. To achieve this balance, federal action is
necessary to establish uniform guidelines for the States to follow and in
approving and enforcing uniform State plans which will meet these basic
requirements.
31 Federal action is also necessary to aid the States in enforcement of
existing State laws which meet Federal requirements and where no such State laws
exist, Federal action is necessary to provide assistance to the States in the
preparation and enforcement of a State plan and in research and training of
personnel for the implementation of State and Federal laws.
31 A series of reports issued by the Comptroller General during 1972 point
up the need for legislation. These reports are as follows:
31 Improvements Needed in Administration of Federal Coal-Leasing Program,
B-169124, March 29, 1972
31 Opportunities for Improvements in Reclaiming Strip-mined Lands Under Coal
Purchase Contracts, B-114850, August 9, 1972
31 Administration of Regulations for Surface Exploration, Mining and
Reclamation of Public and Indian Coal Lands, B-148623, August 10, 1972.
II. BACKGROUND - FROM THE LITERATURE
31 For a period of 30 years the Congress has had before it legislative
proposals bearing on the recovery of various minerals by surface mining.
A history of these bills was contained in a Committee Print issued earlier
this year by this Committee. n1
32 n1 Legislative Proposals Concerning Surface Mining of Coal. 92d
Congress, 1st Session, Committee on Interior and Insular Affairs, United States
Senate, September 1, 1971.
32 Surface mining refers to the process of removing the soil, rock and other
material which covers the mineral, e.g., strip mining, open cast mining, placer
or hydraulic mining, quarrying, and dredging.
32 A related method, used in the recovery of coal, is auger mining, a
process in which large drills are used to bore horizontally into coal seams on
hillsides.
32 An Interior Department study, "Surface Mining and Our Environment", has
identified these advantages of surface mining methods:
32 It makes possible the recovery of deposits which, for physical reasons,
cannot be mined underground; provides safer working conditions; usually results
in a more complete recovery of the deposit; and, most significantly it is
generally cheaper in terms of cost-per-unit of production.
32 Suface mining in 1969 accounted for 94 percent of all industry, as
illustrated by recent remarks of Interior Secretary Morton to the Interstate
Mining Compact Commission in which he noted:
32 Surface mining in 1969 accounted for 94 percent of all domestic
production of crude metallic and nonmetallic ores: 2.45 billion tons compared
with 165 million tons from underground mines.
32 Approximately 38 percent of all coal in 1969 came from surface mines.
Preliminary data for 1970 indicates that this figure has risen sharply to 44
percent.
32 On a comparison basis, surface mines in 1969 produced 218 million tons
and 269 million tons in 1970. Underground mines produced 347 million tons in
1969 compared with 338 million tons in 1970. Only the sharp increase in
surface-mined coal enabled the industry to meet demand last year.
32 A more detailed picture is presented by the tables in the Committee Print
noted above which show the production of various commodities by surface mining.
Tables are included under the heading of Natural Resource and Energy
Requirements.
32 Another study has recently noted these characteristics of coal surface
mining operations:
32 In strip mining, output per man-day is roughly 100 percent higher than in
underground mining, average recovery is 60 percent higher, and operating costs
are 25-30 percent lower.
32 This report, "Stripping Coal Resources of the United States," by Paul
Averitt of the U.S. Geological Survey shows the increased efficiency of recovery
made possible by strip mining methods. A Pennsylvania anthracite field, for
instance, saw only one-third recovery by underground mining years ago. In the
1920's and 1930's strip mining with small shovels increased the recovery. Now
partly mined coal is being recovered by surface mining methods in pits as much
as 400 feet deep.
33 Averitt indicates that by 1980 the pits may reach a depth of 1,000 feet.
33 Despite the magnitude and value of surface mining operations many
concerned citizens feel the adverse environmental effects of surface mining are
so severe in the case of coal that they seek a total ban on all coal strip
mining. Others have sought to develop a nationwide system of State, Federal or
a combination of State and Federal control of surface mining which would, among
other things, require the restoration of lands to be disturbed by surface
mining. Some of the proposed bills provide reclamation of lands already
disturbed.
33 It has been estimated that some 3.2 million acres had been disturbed by
surface mining as of January 1, 1965. Of this total, some "two-thirds of the
acreage (about 2.0 million) still require some remedial attention", according to
the 1967 Interior Department report.
33 One serious deficiency in working with the problem of land reclamation is
the lack of adequate current statistics on the amount of land disturbed and
restored since the 1965 information was published. The Bureau of Mines, which
compiles national mineral industry statistics, has released the following
figures only for 1969 and only for coal, although it is understood that later
figures are being gathered and will be made available:
SALIENT STATISTICS ON SURFACE MINING OF COAL IN THE
UNITED STATES IN 1969 n1
State Production Surface mined land
Percent of
disturbed
Quantity land
Number of (thousand Acreage Acreage reclaimed
mines short tons) disturbed reclaimed during year
Alabama 65 8,169 n(2) n(2) n(2)
Alaska n2 3 667 15
Arkansas 6 167 n(3) n(3) n(3)
Colorado 9 1,915 n(3) n(3) n(3)
Illinois 37 34,640 6,711 5,479 81.6
Ind iana 32 17,976 3,335 3,118 93.5
Iowa 11 534 120 40 33.3
Kansas 4 1,313 1,176 250 21.3
Kentucky:
Eastern 262 17,082 12,200 9,600 78.7
Wester 51$'2m,632
Maryland 38 1,045 261 459 175.9
Missouri n3 8 3,299 n(5) n(5) n(5)
Montana 5 995 31 33 106.5
New Mexico n3 3 3,636 250 100 40.0
North Dakota 20 4,704 330 140 42.4
Ohio 276 32,616 10,629 7,902 74.3
Oklahoma 8 1,722 1,674 1,441 86.1
Pennsylvania:
Bituminous 602 22,592 11 ,774 9,298 79.0
Anthracite 174 4,579 534 539 100.9
Tennessee 73 3,609 n(2) n(2) n(2)
Virginia 158 5,182 2,258 2,331 103.2
Washington 2 5 n(2) n(2) n(2)
West Virginia 340 19,388 15,711 17,117 108.9
Wyoming 8 4,481 154 51 33.1
Total n4 2,195 217,952 67,163 57,898 86.2
33 n1 Data on acreage and acreage reclaimed compiled from Bureau of Mines
Form O.M.B. No. 42-s70014.
33 n2 Data not reported.
33 n3 No State regulation on surface mining.
33 n4 Data may not add to totals shown because of rounding.
33 On the unreclaimed surface mined site there is destruction of the
vegetative cover; the overburden is strewn upon adjacent lands; and surface and
subsurface drainage patterns are altered.The 1967 Interior Department report
notes these additional offsite damages:
34 Stream and water-impoundment pollution from erosion and acid mine water;
isolation of areas by steep highways; and, the impairment of natural beauty by
the creation of unsightly spoil banks, rubbish dumps, and abandoned equipment.
34 An important loss from unreclaimed lands is the fish and wildlife which
the affected area would have supported in its natural condition.
34 Only seven commodities have been identified as being responsible for 95
percent of the 5,000 square miles which have been disturbed by surface mining.
They are:
Percent
Coal 41
Sand and gravel 26
Stone 8 percent, gold 6 percent
phosphate 6 percent, iron
5 percent 28
All others 05
34 These figures explain, perhaps, the prominence given to coal in the
public discussion of problems related to surface mining. A contributing factor
must also be the fact that coal mining is conducted largely in the East where it
is visible to a larger portion of the population than is the case with Western
mines which are primarily for metallic ores.
34 Although the prime arguments over legislation to regulate surface mining
are economic and environmental, there are a number of additional points of
controversy. These include the need for continuing supplies of minerals,
particularly coal because of the current concern over energy supplies; and the
effectiveness of reclamation procedures. The question of who shall administer
regulation programs, and the safety of mine workers are also of concern.
Briefly, the contentions over these matters are as follows:
34 The energy crisis
34 The Senate Interior Committee has been particularly cognizant of the
mounting public concern over the continued availability of adequare energy
supplies. Recent evidences of action in this matter are the establishment of a
National Fuels and Energy Policy Study pursuant to Senate Resolution 45 of the
92nd Congress, action by the Committee on legislation to develop an accelerated
program of coal gasification, and a review of the Department of Interior's
prototype leasing program for oil shale.
34 Environmentalists have advocated constraint in the use of energy
generally, and strip mined coal in particular, on the theory that our current
level of electrical power use is needlessly high. Power companies have also
been criticized for extensive advertising to generate additional consumer demand
for power. Major portions of the U.S. coal reserves are recoverable only by
surface mining techniques. Satisfaction of electric power demands without
access to these coal deposits would add a new and significant dimension to the
energy crisis.
34 Our need for non-fuel minerals has been presented as largely a choice
between surface mining for domestic reserves or dependence on foreign sources of
supply. Interior Secretary Morton in his remarks to the Interstate Mining
Commission declared:
34 It is the surface mining industry that, in the future, will provide a
strong domestic mineral supply base and prevent our dependence on foreign
sources of mineral raw materials from becoming dangerously large or
prohibitively expensive.
35 Reclamation feasibility
35 The capability to restore surface mined lands using available technology
is a matter which is still under debate. Although existing State laws require
land rehabilitation, opponents of surface mining have claimed that the
requirements are not rigid enough to provide environmental protection, or that
there is little or no enforcement of the provisions.
35 Federal or State regulation
35 A major question concerning the regulation of surface mining is whether
the State or Federal government should establish and operate the program.
35 Wayne Davis wrote in his article "The Stripmining of America":
35 As the acceleration of stripmining proceeds, attempts to regulate it are
frustrated. Although Kentucky has a fairly good mining reclamation law and some
honest, conscientious people in the Division of Reclamation, law enforcement has
broken down. An employee of the Division told me that during the summer of 1970
permits were issued to over 100 new operators. Since anyone who can borrow
enough to get a bulldozer into operation can go into business and get rich now,
there is a flood of new people into stripmining. The enforcement officer said
that some of these inexperienced operators could not operate within the law even
if trying to do so and spills of spoil into public highways and into the streams
are the result.
35 Davis added:
35 * * * we must have federal regulations of mining practices.
35 Any local efforts to regulate this or any other industry encounter the
standard and somewhat justified reply that regulation would put them at a
disadvantage with their competitors in other States.
35 Edmund Faltermayer has examined the strip mine reclamation requirements
and operations in Pennsylvania, and in Life magazine expressed a strongly
contrary opinion.After commenting on the several State and Federal proposals to
ban strip mining of coal he writes:
35 * * * It costs $1 .50 a ton less, on the average, to strip coal than to
send men into the bowels of the earth for it. That cost advantage is so great
that strip-mining companies can afford to do some pretty fancy regrooming if
they are made to do it.I know this is so, because I've been to Pennsylsania, a
state which rigorously enforces its reclamation law, the toughest in the land.
A lot of Pennsylvania companies are now going beyond what the law requires -
replacing topsoil, for example. "They've really got religion on reclamation
now," says William E. Guckert, who runs the state's enforcement program. "But,"
he quickly adds, "they didn't get religion until we put the screws to them."
36 Cynics will greet with disbelief the news that there is a state
government anywhere that puts the screws to the stripmining industry. How it
happened is worth telling. With more scarred acreage than any other state,
Pennsylvania also has the country's biggest constituency of outdoorsmen to
notice all the ruined terrain - 1.1 million licensed hunters and 800,000
fishermen - and they know how to lobby.
36 Both of these articles appear in their entirety in the later pages of
this committee print.
36 Worker safety
36 An important social issue which had been discussed with regard to the
relative merits of underground and surface mining is the health and safety of
the miners.
36 Mrs. Harry Perry, Senior Specialist for the Congressional Research
Service, has stated:
36 * * * The fatality and injury rate in underground mines is much higher
than for strip mines. In 1970 the fatality rate in underground mines was 1.17
per million man hours of exposure while it was only .64 for strip mines. If all
coal stripping were banned and the fatality rates remained as they now are the
conversion to all underground mining would indicate statistically 90 additional
men killed in mining for 1970.
36 Strip mine opponents have contended that rigorous enforcement of the 1969
Mine Health and Safety Act would do much to reduce the hazards of underground
mining.
IV. COST OFTHE BILL
37 In accordance with subsection (a) of section 252 of the Legislative
Reorganization Act of 1970, the Committee estimates that the new obligational
authority which would be incurred in carrying out S. 630 for administration and
inspection, State grants and research would be as follows:
37 For the first year, 7.9 million; the second year, 14.4 million; the third
year, 17.3 million; the fourth year, 18.8 million; and the fifth year, 19.8
million.
37 In addition Section 303 of Title III of the bill authorizes an
appropriation of $100 million for the Abandoned Mine Reclamation Fund.
V. SECTION BY SECTION ANALYSIS OF THE BILL SHORT TITLE
38 The short title of the Act is "Surface Mining Reclamation Act of 1972."
38 To provide for cooperation between the Secretary of the Interior and the
States with respect to regulation of surface mining operation and acquisition of
abandoned mines.
SECTION-BY-SECTION ANALYSIS OF THE BILL TITLE I
38 Sec. 101. Definitions. - This section contains the definitions of
terms used in the Act. Some of the more unusual terms follow.
38 "Reclamation" is defined as the reconditioning or restoration of an area
disturbed or affected by surface mining operations or surface operations
incident to underground mining operations.
38 "Surface area" means an area of land from which minerals are extracted by
surface mining operations of surface operations incident to underground mining
operations, and includes private ways, roads, etc.
38 The term "mining operation" means activity conducted on the surface of
lands in connection with surface mine or underground operations after the
effective date of the Act.
38 The term "any mine subject to this Act" means mining operations the
products of which enter commerce or directly or indirectly affect commerce.
38 The term "other minerals" means all minerals other than coal and minerals
in a liquid or gaseous state extracted by means of a well or pipe.
38 The term "area of critical concern" means areas where mining activities
could cause irreparable environmental damage.
38 Sec. 102. Congressional Findings. - Extraction of minerals is a
significant and essential industrial activity in the balanced economy of the
nation.
38 Some mining operations destroy the land and its bounties, impair citizen
rights and create dangerous hazards.
38 Federal regulation and State cooperation is necessary on a nationwide
basis to protect the environment.
38 Initial responsibility rests with the States because of the diversity of
terrain, claimate, and other physical characteristics.
SECTION-BY-SECTION ANALYSIS OF THE BILL TITLE II
38 Sec. 201. Permit Requirements. - No new coal operations or
significantly increased existing operations may go forward without a permit
either State or Federal. Ongoing coal operations must obtain a permit within
one year, and a permit for mining for all other minerals must be obtained within
two years of enactment.
38 Sec. 202. Publication of Federal Guidelines. - Within ninety days after
enactment the Secretary must promulgate Federal guidelines for coal. The
Federal guidelines will be published in the Federal Register and interested
persons may submit written comment. Provision is made for public hearing
followed by a published report of findings.
39 Proceedings are subject to the requirements of the Administrative
Procedures Act with regard to public participation and the right to appeal.
Within one year of enactment, the Secretary must promulgate guidelines for all
other minerals.
39 Sec. 203. General Federal Guidelines. - The guidelines provide
requirements for reclamation, operating procedures and material handling
techniques. Each State or Federal plan must require a permit, a reclamation
plan, including specific standards for environmental quality, health and safety,
sufficient bond to insure reclamation, authority to prohibit mining under
certain circumstances, and provision for enforcement of the reclamation
requirements. Consideration must be given to the use to be made of the surface
after mining. No permit will be issued except where the reclamation plan shows
technology exists to reclaim for the approved use.
39 Each applicant for a permit must submit a reclamation plan for the mining
operation. The guidelines set out specific provisions to be included in the
plan such as protection of ground and surface water; sealing tunnels; protection
from flooding resulting from silting; provision to prevent debris slides and
slope failures; dust, smoke and noise abatement, provisions for suppression of
fires, protection of surface areas, control of mine refuse; and provision for
regrading and revegetation.
39 Each permittee is required to provide a bond of not less than $500 per
acre.
39 The regulating authority has authority to prohibit mining by denying a
permit where an area of critical concern would be destroyed. Any person
aggrieved by such a prohibition may petition the U.S. District Court to
determine whether the prohibition amounts to an unconstitutional taking.
39 The regulating authority is authorized to issue stop orders and bring
civil and criminal actions for violations.
39 The guidelines detail the information to be filed by the applicant for
the proper administration of his permit application.
39 Sec. 205. Federal and State Interim Plans. - This section required to be
set forth in the guidelines, and provides authority to issue stop orders,
initiate civil and criminal actions, and provide training programs for
enforcement of reclamation.
39 Sec. 204. Specific Guidelines for Coal. - This section provides for
covering coal seams, disposal of debris, revegetation, control of bench widths,
highwalls and spoil peaks; allows acceptable alternative methods to achieve the
planned use.
39 Sec. 205. Federal and State Interim Plans. - This section requires a
State plan for coal within one year of enactment (either an existing State law
which qualifies or a newly adopted plan) unless the State notifies the Federal
authority otherwise; and provides for a Federal interim plan for any State which
does not promulgate or properly qualify a State plan. Federal interim plans
remain in effect until terminated or superceded by a permanent State or Federal
plan.
39 Sec. 206. State Plans. - This section provides Federal assistance for
State plans which qualify under the guidelines. Provision is made for notice
and public hearings on the proposed plan. The Secretary's approval of State
plans is undertaken in consultation with the Secretary of Agriculture, under
detailed provisions for reclamation, a showing of financial adequacy for
enforcement, training programs, reports, permit, reclamation plan, bond,
authority to prohibit permit requirements, inspection, sanctions (both
administrative and court actions) and provides for Federal takeover if the State
fails to adopt or enforce a plan meeting the requirements of the Act. State
plans may conform to Federal guidelines or exceed them.
40 Appeals may be filed when applications for permits are denied and
hearings held. Provision is made for revocation and revision of permit
applications under State plan and hearing upon request.
40 A State plan must provide for inspection, reports and sanctions for
violation including stop orders, withholding of permits, forfeiture of bonds and
initiation of civil and criminal actions.
40 Permittees are held responsible for any violation under the Act unless
reclamation has been accomplished and bond released.
40 The Secretary continually reviews State plans, holds public hearings on
State plans [14(d)] and may withdraw his approval of State plans and take over
administration and enforcement of the plan.
40 Copies of permit application and permits are to be public information.
40 Sec. 207. Federal Plan. - The Secretary must publish a Federal plan for
a State if the State after one year fails to enact a State plan for coal which
meets the requirements of this Act or if the plan is not revised or enforced
as required by the Secretary.
40 Public hearings will be held on any such Federal plan for a State. The
Federal plan becomes inoperative when an acceptable State plan has been
promulgated.
40 Sec. 208. Inspections and Investigations. - The Secretary shall inspect
as necessary to evaluate a State's administration of its plan. Federal agencies
are authorized to issue right of entry permits for State officials on lands
within the jurisdiction of the agency.
40 As a tool in enforcement, the Secretary shall require records to be kept,
reports to be prepared, and monitoring of operations.
40 States' representatives may be delegated this Federal responsibility for
inspection.
40 Records and other information shall be kept confidential.
40 Sec. 209.Federal Enforcement. - The Secretary, upon notice of a violation
of provisions of a State plan is authorized to notify the individual involved
and the State and publish his findings. Failure to correct the violation
subjects the permittee to an administrative order for compliance and possible
civil action.
40 If violations within a State appear to be because of the State's failure
to enforce, the Secretary shall give public notice of such finding and the
Secretary is required to assume the responsibility for and enforcement of the
State plan.
40 Orders issued under this section shall specify the time in which
compliance with the order must be had (considering the seriousness of the
violation and any irreparable harmful effect upon the environment).
40 The Attorney General may be requested to initiate a civil action for
noncompliance or injunction proceeding.
40 Penalties of $1 ,000 for each and every day of violation for a civil
action may be imposed and $1 0,000 in a criminal action, or imprisonment for six
months or both.
41 Officers of corporations knowingly allowing violations of the provisions
of this Act shall be subject to the same fines.
41 Sec. 210. Advisory Committee. - This section authorizes the Secretary to
appoint a Committee of not more than seven nor less than five persons
representing a balance among local, Federal and State officials and taking
cognizance of the viewpoint of operators of mines and conservation and public
interest groups, and fixes the rate of compensation.
41 Sec. 211.Grants to States. - This section authorizes the Secretary to
make annual grants to States to assist States in developing, administering and
enforcing a State plan. The grants shall not exceed 80% of total costs the
first year and 50% during succeeding years.
41 The section calls upon the Secretary and all Federal agencies to provide
assistance to the States in the form of:
41 (1) technical assistance and training of personnel,
41 (2) inventorying mining operations in the State, and
41 (3) evaluating State plans and future needs.
41 Sec. 212. Authorization of Appropriations. - This section authorizes
appropriations to the Secretary for the fiscal year ending June 30, 1972, the
sum of $10,000,000 and $2 0,000,000 for each of the next two succeeding fiscal
years, and thereafter as Congress deems necessary.
SECTION-BY-SECTION ANALYSIS OF THE BILL TITLE III
41 This title addresses itself to the problem of repair of past damage
from surface mining operations and is consistent with the special report to the
nation by the U.S. Department of the Interior, n1 recommending acquisition of
such lands.
41 n1 U.S. Government Printing Office 1967-0-258-263.
41 Sec. 301. Acquisition of Abandoned and Unreclaimed Mined Areas. - This
section is a finding by the Congress that acquisition of such lands to
construct, operate or manage reclamation facilities is a public purpose and
authorizes the Secretary to acquire by purchase or donation or condemnation land
or any interest therein which has been abandoned and not reclaimed. It provides
that title to such land shall be taken in the name of the United States, title
to be approved by the Attorney General pursuant to existing law and requires
that the price to be paid shall consider the unrestored condition.
41 Conditions under which condemnation actions are permitted are set forth
in subsections (d) and (e). States are encouraged (by grants up to 90%) to
acquire abandoned and unreclaimed lands within their boundaries and to donate
such lands to the United States for the purpose of reclamation.States are given
a preference right to purchase back reclaimed lands at fair market value.
41 The Secretary is authorized to administer lands reclaimed under this
title and to use moneys in the Fund (see Sec. 303) for such purposes.
41 Reclaimed lands my be sold by the Secretary pursuant to the Surplus
Property Act, of 1949, provided the lands are sold at fair market value. Moneys
from such sales are to be deposited in the Fund.
41 Sec. 302.Filling Voids and Sealing Tunnels. - This section meets a
problem of voids and open and abandoned tunnels, shafts and entryways which
create a hazard to public health and safety and provides that at the request of
a Governor, the Secretary, is authorized to fill the voids and seal the
abandoned openings.
42 The Secretary is authorized to acquire by purchase, donation or
otherwise, any such interest in land necessary to accomplish this purpose.
42 Sec. 303. Abandoned Mine Reclamation Fund. - This section establishes a
revolving Fund and an initial appropriation of $1 00,000,000 for purposes of
this Title. Fees and bond forfeitures from failure of permittees to reclaim
augment the fund, except that States with acceptable State plans are authorized
to retain such fees and apply them first to reclmation of the instant land
covered by the bond or deposit. Moneys from sale, lease or rental of land are
deposited to the Fund.
SECTION-BY-SECTION ANAYLSIS OF THE BILL TITLE IV
42 Sec. 401. Research. This title recognizes the need for continuing
research and study in reclamation and mining technology and authorizes the
Secretary to make grants and enter into contracts for such purposes.
42 Sec. 402. Other Federal Laws. - This section sets out the savings
clauses and provides that this act shall not be construed to supercede, amend,
modify or repeal any existing State or Federal law relating to mine health and
safety and air and water quality.
42 In order to achieve uniformity of regulation among lands of differing
ownership, subsection (b) of this section affirms the authority of the Secretary
or heads of other Federal agencies under other Federal laws to include
conditions appropriate to regulation of surface mining and reclamation with the
provision that any such condition shall be consistent with any Federal plan or
an approved State plan in which the lands are located.
42 Sec. 403. Separability. - This section provides that the invalidity of
any one section hereof shall not invalidate the remainder.
VI. COMMITTEE RECOMMENDATION
42 The Committee
42 The Commiton Interior and Insular Affairs by unanimous vote in executive
session on September 13, 1972, recommends that S. 630, as amended, be enacted.
42 Pursuant to subsection (b) of section 133 of the Legislative
Reorganization Act of 1947, as amended, the following is a tabulation of votes
of the members of the Committee on Interior and Insular Affairs on a motion to
report S. 630, as amended, favorably to the Senate:
42 Yeas, 16:
Jackson Gravel
Anderson Allott
Bible Hatfield
Church Bellmon
Moss Fannin
Burdick Hansen
McGovern Jordan
Metcalf Buckley
VII. EXECUTIVE COMMUNICATIONS
43No Executive communications were requested or received on Committee
Print No. 3 reported as S. 630 since the bill was drafted by the Subcommittee in
executive session and based upon the bills before the Committee. Executive
communications for the bills on which the Committee held hearings follows:
43 U.S. DEPARTMENT OF THE INTERIOR, OFFICE OF THE SECRETARY, Washington,
D.C., November 12, 1971.
43 Hon. HENRY M. JACKSON,
43 Chairman, Committee on Interior and Insular Affairs, U.S. Senate,
Washington, D.C.
43 DEAR MR. CHAIRMAN: This responds to your request for the views of the
Department on S. 77, S. 1498, and S. 2455 dealing with the adverse environmental
aspects of mining operations.
43 We recommend against enactment of all of the above listed bills and
recommend that S. 993, the Administration's proposal "To provide for the
cooperation between the Federal government and the States with respect to
environmental regulations for mining operations, and for other purposes" be
enacted instead.
43 All of the listed bills contain aspects of similarity to the
Administration's proposal, S. 993.That bill would encourage through Federal
grants the States to regulate all types of mining activity including surface and
underground, coal and most other minerals. (It excludes oil and gas.) If the
States fail within two years to propose a regulatory program which is approved
by the Secretary of the Interior, the Secretary will promulgate and administer
mined area protection regulations for that State.
43 S. 77 and S. 2455 differ from the Administration's proposal in that they
cover only surface and strip mining and divide responsibility between the
Secretaries of Interior and Agriculture (S. 77), or the Administrator of the
Environmental Protection Agency (S. 2455).
43 S. 1498 differs from the Administration's proposal in that it vests
Federal administrative responsibility in the Environmental Protection Agency,
applies to coal mining only and gives sole regulatory responsibility to the
Federal Government with respect to existing surface mines. It would prohibit
altogether the opening of any new, inactive or abandoned surface coal mine.
43 Section 8 of S. 1498 prohibits all future coal mining in areas
established as wilderness pursuant to the Wilderness Act. If further provides
that underground coal mining on lands within the National Forest System shall be
conducted only under regulations "which will assure that there will be no
adverse effects" either on-site or off-site.
43 Titles II, IV and V of S. 77 and section 9 of S. 1498 provide for Federal
assistance to reclaim and conserve areas damaged by past coal mining operations.
Both bills require that such areas be owned by State or local governments, and
authorize Federal funding. The Administration's bill applies only to damage
caused by existing and future mining operations.
43 S. 1498 and S. 2455 provide for citizen suits to mandamus government
officials who neglect or refuse to enforce the Act and allow suits against any
person alleged to be in violation of the Act or the regulations.
44 Section 14 of S. 1498 directs Federal agencies through contracts or
assistance programs to effectuate the purpose and policy of the Act and
specifically prohibits contracting for coal from a mine where a condition giving
rise to a conviction under the Act has not been corrected.
44 The following major differences between the bills are the basis for our
recommendations stated above.
44 (1) Limited Coverage
44 Each region of the country has its own particular environmental problems
from mining.In many areas coal mining is the most troublesome, particularly open
pit or strip mining. Other types of mining, however, also pose a substantial
threat to the environment. Underground coal mines can constitute a major source
of water pollution and underground coal fires both contaminate the air and waste
a valuable resource.
44 The Administration's bill is truely national in its scope, dealing with
the entire range of mining related environmental problems. We feel that the
regulatory machinery to be created under these bills should deal with all these
problems, and not simply those related to a particular type of mining.
44 (2) Federal Administration
44 The basic premise of the Administration's proposal is that environmental
protection and reclamation can be accomplished most economically by building it
into the mining operation rather than by patching up afterwards.It attempts to
substitute careful advance planning for costly control devices. Achieving this
objective requires intimate knowledge of mining operations and the physical
environment in which they are conducted. The Bureau of Mines, the Geological
Survey, and the Bureau of Land Management of this Department possess paramount
expertise in these areas and are best suited to guide State efforts in mined
area protection and reclamation.
44 For this reason we oppose S. 1498 which places the program under the
Environmental Protection Agency. That agency would, of course, under the
Administration's proposal, retain its responsibility for enforcement forcement
of air and water standards against mining operators. It would also participate
with the Departments of Agriculture and Commerce, the Tennessee Valley
Authority and the Appalachian Regional Commission on an advisory committee
created under the Act.
44 (3) Primary Responsibility to States
44 The environmental problems stemming from mining operations are
essentially land use problems. Such problems are, under the Federal
Constitution, primarily the responsibility of the States. Because of this and
in keeping with the President's broad effort to return decisionmaking
responsibility to State governments, the Administration's bill encourages the
States to accept the responsibility for regulating mining operations within
their borders. It offers Federal grants to cover up to 80% of the cost to the
States of developing a program and a percentage of the costs of administering it
during the first four years.
44 We oppose, therefore, S. 1498 which recognizes no State responsibility
for surface mine regulation.
45 (4) Restoration of Past Mining Damage
45 As stated in the letter transmitting the Administration's proposal, the
solution to the problem of healing damage inflicted in the past is largely one
of spending taxpayers' dollars, since the party responsible is typically not
available for legal action and the value of the land reclaimed does not
generally justify the cost. All available remedies must be exhausted before tax
revenues are spent and care must be taken to avoid windfalls to private owners.
45 We feel that the first priority in mined area protection must be to
arrest the damage presently being inflicted on the land and that Federal funding
to restore lands damaged in the past cannot be justified at this time.
45 (5) Prohibition of Surface Coal Mining
45 This Department strongly opposes the blanket prohibition in S. 1498 of
surface mining of coal. This country is facing a crisis in mineral supply,
particularly in the fuels area. Known reserves of oil and gas are being rapidly
depleted. The potential of nuclear energy, while a hopeful long-term solution,
has not been developed sufficiently to carry us through the critical period of
the next 5 or 10 years. Domestic coal must supply a heavy share of the Nation's
fuel needs both now and in the future.
45 Fortunately, this Nation is endowed with vast coal deposits, many of them
lying at relatively shallow depths where underground mining is economically
ludicrous if not physically impossible.
45 We do not mean to minimize the potential adverse environmental
consequences of surface mining nor to imply that environmental degradation is
necessary to maintain our standard of living. The letter transmitting the
Administration's proposal unequivocally condemns those surface mining practices
which have wasted the land and scarred the landscape, poisoned and choked the
streams and fouled the air. This country cannot tolerate such abuses of the
environment any longer.
45 The answer, however, is not a flat prohibition of surface coal mining but
to find ways to avoid or reduce to acceptable levels the environmental damage.
The technology is presently available for environmentally safe surface mining in
many areas, particularly in the more arid, western States. The Administration's
proposal calls for further research to expand the technology for mined area
protection and reclamation. Moreover, the Administration's proposal contains
authority to prohibit surface mining where the areas affected cannot be
adequately reclaimed. The regulations adopted by the State under the
Administration's proposal must contain requirements designed to insure that the
mining operation will not result in a violation of applicable water or air
quality standards and will control or prevent specified types of environmental
damage. We believe that the Administration's proposal provides a constructive
method for meeting the needs of the environment without sacrificing
unnecessarily our ability to acquire mineral resources on which this Nation's
prosperity depends.
45 (6) National Forests
45 S. 1498 makes special reference to National Forests requiring that
underground coal mining operations in them be conducted with "no adverse
effects". The Administration's proposal requires that all mining on all Federal
lands be conducted under regulations which assure at least the same degree of
environmental protection and regulation as is required by the State in which the
land is situated. It is essential that the Federal Government itself practice
what it preaches to the States and we see no reason to limit this practice to
National Forest lands.
46 (7) Citizen Suits
46 As a matter of general policy, we support citizen participation in
enforcement of laws to protect the environment and the repudiation of defenses
to environmental actions based on standing to sue and sovereign immunity.We have
supported citizen suits in specific instances such as the Clean Air Amendments
of 1970 (Public Law 91-604) and the Administration's proposed amendment to
section 10 of the Federal Water Pollution Control Act (S. 1014 in this
Congress).
46 The citizen suits which we have supported are limited to enforcement of
specific environmental requirements which are capable of objective definition or
precise measurement.
46 The Administration's proposed Mined Area Protection Act will result in a
variety of types of environmental standards. Those designed to assure that air
and water quality control standards are met may, as stated above, be enforced
through existing or proposed provisions allowing citizen suits. Those
regulations pertaining to the approval of a reclamation plan will require the
judgment of a State official familiar with the mining operation and the local
mining conditions. We do not feel that the courts should become involved in
this area except to review, in the normal manner, abuses of administrative
discretion.
46 (8) Federal Procurement
46 Section 14 of S. 1498 parallels section 306 of the Clean Air Act, as
amended, which prohibits Federal agencies from contracting with persons in
violation of the Act until the condition is corrected. We agree with the
principle embodied in this section, that the Federal government should not
support through its procurement of goods a person's activities in violation of
the Act. We feel, however, that if the operator in accordance with the
applicable law is in the process of correcting a condition which has given rise
to a conviction, under an approved schedule of compliance that he should not
suffer the added penalty of being prohibited from selling to the Federal
Government. Therefore, we would have no objection to including this section in
the Administration's proposed "Mine Area Protection Act of 1971" provided the
words "coal mine" in subsection 14(a) are changed to "mined area", the words "or
any law or regulation promulgated pursuant thereto" are added after "Act" on
line 16, and lines 20 and 21 are revised to read "administering agency certifies
that the operator is operating in compliance with the applicable law and
regulations".
46 Also, subsection 14(b) should be deleted as unnecessary and to assure
maximum flexibility for the administrative promulgation of government wide
procedures coordinated with those being developed to implement section 306 of
the Clean Air Act.
46 The Office of Management and Budget has advised that there is no
objection to the presentation of this report and that enactment of S. 993 would
be in accord with the Administration's program.
46 Sincerely yours, HOLLIS M. DOLE, Assistant Secretary of the Interior.
47 EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF MANAGEMENT AND BUDGET,
Washington, D.C., November 15, 1971.
47 HON. HENRY M. JACKSON, Chairman, Committee on Interior and Insular
Affairs, U.S. Senate, New Senate Office Building, Washington, D.C.
47 DEAR MR. CHAIRMAN: This is in response to your requests for the views of
the office of Management and Budget on the following legislation:
47 S. 77, a bill "To provide for the regulation of present and future
surface and strip mining, for the conservation, acquisition, and reclamation of
surface and strip mined areas, and for other purposes."
47 S. 630, a bill "To provide for the cooperation between the Secretary of
the Interior and the States with respect to the future regulation of surface
mining operations, and for other purposes."
47 S. 1160, a bill "Relating to the rehabilitation of areas damaged by
deleterious mining practices, and for other purposes."
47 S. 1498, a bill "To provide for the control of surface and underground
coal mining operations which adversely affect the quality of our environment,
and for other purposes."
47 S. 2455, a bill "To regulate the practice of strip mining, to protect the
environment, and for other purposes."
47 The Department of the Interior has submitted a related bill, S. 993 - the
"Mined Area Protection Act of 1971", for Congressional consideration, and as
stated in the Department's reports on the legislation cited above, it recommends
enactment of S. 993 in lieu of these bills. Enactment of S. 993 would be in
accord with the program of the President.
47 Sincerely, WILFRED H. ROMMEL, Assistant Director for Legislative
Reference.
47 DEPARTMENT OF AGRICULTURE, OFFICE OF THE SECRETARY, Washington, D.C.,
November 17, 1971.
47 Hon. HENRY M. JACKSON, Chairman, Committee on Interior and Insular
Affairs, U.S. Senate.
47 DEAR MR. CHAIRMAN: This is in response to your letter of October 6, 1971,
requesting the views of this Department on S. 77, a bill "To provide for the
regulation of present and future surface and strip mining, for the conservation,
acquisition, and reclamation of surface and strip mined areas, and for other
purposes."
47 This bill generally provides for the conservation and improvement of
lands affected by surface mining operations.
47 The President's Environmental Message to the Congress, dated February 8,
1971, proposed a Mined Area Protection Act, S. 993, to establish Federal
requirements and guidelines for State programs to regulate the environmental
consequences of surface and underground mining. This proposal was submitted to
Congress by the Secretary of the Interior and introduced on February 25, 1971,
as S. 993. We recommend that the Administration's proposal be enacted.
48 The Office of Management and Budget advises that there is no objection to
the presentation of this report from the standpoint of the Administration's
program.
48 Sincerely,
48 J. PHIL CAMPBELL, Washington, D.C., January 4, 1972.
48 OFFICE OF THE DEPUTY ATTORNEY GENERAL, Washington, D.C., January 4,
1971.
48 Hon. HENRY M. JACKSON, Chairman, Committee on Interior and Insular
Affairs, and U.S. Senate, Washington, D.C.
48 DEAR SENATOR: This is in response to your request for the views of the
Department of Justice on S. 77, a bill "To provide for the regulation of present
and future surface and strip mining, and for the conservation, acquisition, and
reclamation of surface and strip mined areas, and for other purposes."
48 Although we defer to the Departments of the Interior and Agriculture and
to other interested Federal agencies concerning the desirability of the policy
embodied in this bill, we do point out several technical problems.
48 We note that the bill fails to accommodate the Attorney General's
authority to conduct litigation on behalf of the United States. No provision is
made for service of process or petitions for review upon the Attorney General or
the local United States Attorney. See Rules 4(d)(4) and (5), Federal Rules of
Civil Procedure.
48 Subsection 2(b)(7) of the bill states that one of the purposes of the
proposed legislation is "the elimination of competitive disadvantages for firms
operating in a given market area which interfere with the orderly and fair
marketing of minerals in commerce." This purpose is apparently based on the
subsection 2(a)(10) finding that present state regulation "creates, because of
the diversity of State regulations, or the lack thereof, competitive
disadvantages for firms operating in a given market area and thereby interferes
with the orderly and fair marketing of minerals in commerce."
48 These references to competitive conditions and the intent to correct them
raise antitrust problems. Although no immunity provisions are contained in the
bill, the possibility remains that states could use the regulatory authority
over surface and strip mining afforded to them by section 103, to limit
production of minerals or otherwise affect the competitive marketing of these
products under the protection of the "state action" instrument provided by the
doctrine of Parker v. Brown, 317 U.S. 341 (1943). See Hecht v. Pro-Football,
Inc., 444 F.2d 931 (D.C. Cir. 1971). Accordingly, the Department recommends
that subsections 2(a)(10) and 2(b)(7) be deleted from the bill.
48 Sections 104 and 105 authorize the Secretaries of the Interior and
Agriculture to inspect and investigate a surface or strip mine or previously
surfaced or strip mined area to determine whether there has been compliance with
the appropriate laws. Recent decisions have imposed limitations upon the course
of action which the investigator may take in the event he is refused entry. See
Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970); Camara v.
Municipal Court, 387 U.S. 53 (1967); See v. City of Seattle, 387 U.S. 541
(1967).
49 Section 503 of the bill would permit the owners of property acquired
under Title V of the bill to reserve for themselves and their successors a
qualified right of use and occupancy. We believe that this provision could lead
to much litigation over whether an area the Government sought to acquire under
Title V and the landowner sought to reserve is "required for reclamation
measures." Also, it could be quite cumbersome to value the fee subject to such
reserved interests rather than the fee itself. Traditionally the estate in
property sought by the Government has not been subject to judicial inquiry.
Berman v. Parker, 348 U.S. 26 (1954); United States v. Twin City Power
Company, 350 U.S. 222 (1956).
49 The Department of Justice notes that the Committee's favorable
consideration of the Administration's proposal, S. 993 - the Mined Area
Protection Act of 1971, would obviate the need for dealing with the problems
noted above.
49 The Office of Management and Budget has advised that there is no
objection to the submission of this report from the standpoint of the
Administration's program.
49 Sincerely,
49 RICHARD G. KLEINDIENST, Deputy Attorney General.
49 U.S. DEPARTMENT OF THE INTERIOR, OFFICE OF THE SECRETARY, Washington,
D.C., September 17, 1972.
49 Hon. HENRY M. JACKSON, Chairman, Committee on Interior and Insular
Affairs, U.S. Senate, Washington, D.C.
49 DEAR MR. CHAIRMAN: This is in response to your request for the views of
this Department on S. 630, a bill "To provide for the cooperation between the
Secretary of the Interior and the States with respect to the future regulation
of surface mining operations, and for other purposes."
49 We recommend that the bill not be enacted but that S. 993, the
Administration's proposal, "To provide for the cooperation between the Federal
government and the States with respect to the environmental regulations for
mining operations, and for other purposes", be enacted instead.
49 Both bills are designed to combat the adverse environmental effects of
mining operations. These effects have been well documented and include
unsightly spoil heaps, clogged and polluted streams, wasted land and scarred
landscapes, mine fires and unintentional cave-ins causing surface subsidence.
49 There are many similarities between the two bills. Both would encourage
States to establish a regulatory program which, if it met the statutory criteria
and was approved by the Secretary of the Interior, would make the State eligible
for Federal grants. Under both bills, if a State fails after two years to
produce a regulatory program meeting the standards of the Act, the Secretary of
the Interior is directed to issue Federal regulations governing mining
operations in that State.
50 Both bills contain provisions for advisory committees, Federal
inspections, penalties, and federally-sponsored research or training programs.
50 There are four major differences between the two bills which constitute
the basis for our recommendation that S. 993 be enacted and not S. 630.
50 (1) Scope
50 The Administration's bill is broader in scope. It covers underground
mines as well as surface mines, while S. 630 covers only the latter. The
potential environmental hazards of underground mines are serious and, while the
technology for dealing with them may not be as advanced as it is with respect to
surface mines, it is important that the framework be established so that
improvements in mining technology can be developed and applied to underground
mining as rapidly as possible.
50 (2) Regulatory Criteria
50 The Administration's proposal contains certain criteria for approval of a
State program not contained in S. 630. It contains provisions designed to
control two major adverse effects of underground mining, fires and subsidence,
and it requires that maps of underground mines be kept on file so that the
danger of unintentional subsidence can be avoided. It requires that a permit be
obtained by all mine operators. It requires provisions to avoid waste of
mineral resources and to require that reclamation be made a part of the mining
cycle. The Administration's bill specifically requires that the program be
administered by a single State agency unless the Secretary approves an
interstate agency. The State agency must coordinate with State agencies
responsible for air, water and other environmental quality standards.
50 The Administration's bill further provides that State regulations be
developed with full participation of all interested groups, that they be subject
to regular review and updating and that they be compatible with regulations of
adjacent States.
50 The Administration's proposal provides that the statutory criteria will
be further elaborated by the Secretary through guidelines which will attempt to
provide the operator of a mining operation sufficient flexibility to choose the
most economically efficient means of meeting the requirements of the Act.
50 We feel that these provisions of the Administration's bill which spell
out the criteria in greater detail and allow maximum latitude to the operator to
select the best way for his particular operation to meet the environmental
objectives is essential, particularly in those areas where the technology for
environmentally safe mining is still being pioneered.
50 (3) Funding
50 Both bills authorize appropriations as necessary. Under S. 630, Federal
grants may not exceed 50 percent of the cost of developing, administering and
enforcing the regulations. Under the Administration's proposal, the Federal
assistance may cover up to 80% of the cost of developing the program during the
year prior to its approval and a share of the costs of administering and
enforcing the program during the four years following its approval. That share
may be up to 60% the first year, 45% the second year, 30% the third year and 15%
the fourth year. By that time it is expected that the heavy initial costs will
have been met and that the program would become self-sustaining through permit
fees if the State chooses to impose them. The Administration bill provides that
if the Federal Government is obliged to administer a program for a State the
cost will be recovered from permit fees.
51 (4) Federal Lands
51 Neither bill would place Federal lands under the control of the State
program although both would require that mining regulations on Federal lands be
at least as stiff as those on State lands.The Administration's proposal states
explicitly that Federal agencies are authorized to impose environmental
regulations on all lands under their jurisdiction.
51 In view of the differences between the two bills and for the reasons
discussed above, we prefer the Administration's proposal to S. 630.
51 The Office of Management and Budget has advised that there is no
objection to the presentation of this report and that enactment of S. 993 would
be in accord with the program of the President.
51 Sincerely yours,
51 W. T. PECORA, Under Secretary of the Interior.
51 DEPARTMENT OF AGRICULTURE, OFFICE OF THE SECRETARY, Washington, D.C.,
September 20, 1971.
51 Hon. HENRY M. JACKSON, Chairman, Committee on Interior and Insular
Affairs, U.S. Senate, Washington, D.C.
51 DEAR MR. CHAIRMAN: This is in response to your request for a report on S.
630, a bill "To provide for the cooperation between the Secretary of the
Interior and the States with respect to the future regulation of surface mining
operations, and for other purposes."
51 The President's Environmental Message to the Congress, dated February 8,
1971, proposed a Mined Area Protection Act to establish Federal requirements and
guidelines for State programs to regulate the environmental consequences of
surface and underground mining. This proposal was submitted to Congress by the
Secretary of the Interior on February 10, 1971.
51 The proposed Mined Area Protection Act is somewhat broader in scope than
S. 630, encompassing underground as well as surface aspects. Accordingly, we
recommend that the Administration's proposal be enacted.
51 The Office of Management and Budget advises that there is no objection to
the presentation of this report from the standpoint of the Administration's
program.
51 Sincerely,
51 J. PHIL CAMPBELL, Under Secretary.
52 OFFICE OF THE DEPUTY ATTORNEY GENERAL, Washington, D.C., January 4,
1972.
52 Hon. HENRY M. JACKSON, Chairman, Committee on Interior and Insular
Affairs, U.S. Senate, Washington, D.C.
52 DEAR SENATOR: This is in response to your request for the views of the
Department of Justice on S. 630, a bill "To provide for cooperation between the
Secretary of the Interior and the States with respect to the future regulation
of surface mining operations, and for other purposes."
52 This bill is designed to induce the States to promulgate regulations
protecting the environment insofar as it is threatened by surface mining
operations. To this end, the States are allowed, by Section 7, a maximum of
three years to submit proposed regulations to the Secretary of the Interior for
his approval, relating to planning, regulation, inspection and reporting,
control of erosion, flooding and pollution of water, isolation of toxic
materials, the prevention of air pollution by dust, the reclamation of surface
mined areas, maintenance of access through mined areas, the prevention of land
or rockslides, and the protection of fish and wildlife and their habitat and the
public health and safety. Section 8 provides that if a State fails to obtain
approval of its plan within the allotted time, the Secretary must after
appropriate notice and hearing issue Federal regulations for the operation of
surface mines and for the reclamation of surface mined area in such State.
Under certain circumstances set forth in Section 7(b), the Secretary, after
having approved a State plan, may withdraw his approval, and issue Federal
regulations. Enforcement of an approved State plan is delegated to the State.
52 In the event the Secretary issues regulations applicable to a State, he
may request the Attorney General to institute a civil action for appropriate
injunctive relief, or may impose a civil penalty of up to $1 00 daily for
violation of the regulations. Also, the knowing violation of any such
regulation is a criminal offense punishable by a fine of not more than $2,500,
by imprisonment for up to one year, or both.
52 Although we defer to the Department of the Interior and other interested
agencies concerning the desirability of the policy embodied in this bill, we do
point out several technical problems.
52 In the event that Federal regulations are issued under section 8, the
Secretary is empowered, by section 12, to request the Attorney General to
enforce these regulations by way of an injunction to prevent any person from
engaging in mining operations in violation of these regulations. On the other
hand, in the event that State regulations are issued and approved, section 12(b)
empowers the Secretary to prevent a person from placing in commerce the minerals
produced by a mining operation in violation of any approved State regulations.
However, should the Secretary exercise his discretionary authority under section
7 and withdraw approval of a State's regulations, he has no enforcement
authority under section 12 until Federal regulations become effective. Since
the Secretary must comply with the hearing requirements of section 8, including
a 60 day notice period, prior to the establishment of effective Federal
regulations, a hiatus is created.
53 The procedures for the issuance of Federal environmental regulations for
State mining operations set forth in section 8 differ in various respects from
the Federal rulemaking procedures in 5 U.S.C. 553.
53 Section 10(a) authorizes the Secretary to enter any mining operation and
mined area to inspect and investigate. Recent decisions have imposed
limitations upon the course of action which the investigator may take in the
event he is refused entry. See Colonnade Catering Corp. v. United States, 397
U.S. 72 (1970); Camara v. Municipal Court, 387 U.S. 53 (1967): See v. City of
Seattle, 387 U.S. 641 (1967). In addition, we call attention to section 12(c)
which empowers the Secretary, through the Attorney General, to enforce the right
of entry under section 10, as we are uncertain what form of enforcement is
contemplated.
53 Section 12(a), page 14, lines 10-12, contain a provision whereby a civil
action may be commenced "to prevent a person from engaging in surface mining
operations without a permit from the Secretary required under section 8 of this
Act. . . . " Section 8 refers only to regulations, and impliedly these
regulations could require a permit similar to that which a State program would
require as indicated in section 7(a)(1)(B).
53 The Department of Justice notes that the Committee's favorable
consideration of the Administration's proposal, S. 993 - the Mined Area
Protection Act of 1971, would obviate the need for dealing with the problems
noted above.
53 The Office of Management and Budget has advised that there is no
objection to the submission of this report from the standpoint of the
Administration's program.
53 Sincerely,
53 RICHARD G. KLEINDIENST, Deputy Attorney General.
53 THE WHITE HOUSE, Washington, D.C., April 24, 1972.
53 Hon. HENRY M. JACKSON, Chairman, Committee on Interior and Insular
Affairs, U.S. Senate, Washington, D.C.
53 DEAR MR. CHAIRMAN: There are three legislative proposals pending before
your Committee I consider particularly important in this Nation's comprehensive
effort to protect our environment. They are: the National Land Use Policy Act
(S. 992), the Mined Area Protection Act (S. 993), and the National Resource
Lands Management Act (S. 2401).
53 The first two proposals were among those which I set out in my
environment message to the Congress of February 8, 1971; the National Resource
Lands Management Act was submitted by the Interior Department later in 1971. In
my environment message in February of this year, I proposed amendments to
strengthen the National Land Use Policy Act. I am encouraged by the facts that
hearings have been held by your Committee on all three bills and that all three
have received strong public support. I am also pleased to note that the
Committee has held several executive sessions on the Land Use Bill. However,
none of these bills has yet been reported out of the Committee.
54 Over the past several years your Committee has consistently played an
important role in this country's environmental awakening. I know, therefore,
that you share my sense of the significance of this legislation.
54 As a Nation we have taken our land resources for granted too long. We
have allowed ill-planned or unwise development practices to destroy the beauty
and productivity of our American earth. Priceless and irreplaceable natural
resources have been squandered. These three proposed laws are aimed at changing
all this. Their common objective is to place decisions regarding land use in
the broader perspective of environmental protection, and to assure maximum
foresight and comprehensive planning in the utilization of our physical
resources.
54 The proposed National Land Use Policy Act would restructure the
institutions which govern land use in this country to better reflect regional
considerations in those land use decisions - the great majority - whose impact
spills over local jurisdictional boundaries. It would require States to control
large scale development; to control development in areas of critical
environmental concern and in areas impacted by such key growth-inducing
facilities as highways, airports, and major recreation facilities; to guide the
siting of highways and airports; and to insure that development of regional
benefit is not unfairly excluded by local regulation.
54 The proposed Mined Area Protection Act would make land reclamation and
environmental protection an integral part of all mining operations. States
would be required to establish a permit program based on approval of a mining
and reclamation plan in advance of operations.
54 The proposed National Resource Lands Management Act would establish a
comprehensive policy, based on multiple use and environmental protection, for
the management of 450 million acres of public land by the Bureau of Land
Management in the Department of the Interior. It would give the Secretary of
the Interior broad authority to implement the policy.
54 The country needs these bills urgently. And as you well know the time
for action by the 92nd Congress is growing short. I urge your Committee to move
ahead rapidly on this important legislation. The staff of the Department of the
Interior and the Council on Environmental Quality will continue to cooperate
with your Committee in every way possible.
54 I am taking the liberty of forwarding a copy of this letter to Senator
Allott.
54 Sincerely,
54 RICHARD NIXON.
54 U.S. DEPARTMENT OF THE INTERIOR, OFFICE OF THE SECRETARY, Washington,
D.C., November 12, 1971.
54 Hon. HENRY M. JACKSON, Chairman, Committee on Interior and Insular
Affairs, U.S. Senate, Washington, D.C.
54 DEAR MR. CHAIRMAN: This responds to your request for the views of this
Department on S. 1160, a bill "Relating to the rehabilitation of areas damaged
by deleterious mining practices, and for other purposes."
55 We recommend that this bill not be enacted but favor instead the
enactment of S. 993, the Administration's proposed "Mined Area Protection Act of
1971".
55 S. 1160 would authorize the Secretary of the Interior to make grants to
the several States to rehabilitate areas damaged by deleterious mining
practices. Grants would be made for the purpose of sealing and filling voids in
abandoned coal mines and abandoned oil and gas wells, and to reclaim and
rehabilitate lands affected by strip or surface mining. Grants would be
restricted to 75 percent of the total cost of any project, and the bill would
authorize necessary appropriations for three years.
55 There are two distinct problems involved in meeting the challenge which
mining operations can present to the environment:
55 (1) requiring ongoing and future mining activities to be conducted in a
way as to minimize the environmental impact, and (2) healing the wounds that
have been inflicted by past mining operations.
55 The Administration's proposed bill deals only with the first problem, the
solution to which is largely a matter of developing regulations which will
require environmental considerations to be built into the mining operation. An
integral part of this effort will be research programs promoted by the Secretary
of the Interior with Federal funds.
55 The Administration's proposed bill recognizes that the initial
responsibility for developing and enforcing regulations should rest with the
States. It also recognizes, however, that the effort must be nationwide and
based, to the fullest extent possible, on national standards, so that industry
will be placed on an equal footing in every State.
55 The Administration's proposed bill therefore gives the States the
opportunity to develop and submit regulations for approval by the Secretary of
the Interior in accordance with certain specific criteria set forth in the bill.
55 If a State fails to develop an acceptable program within two years after
enactment, the proposed bill authorizes the Secretary to promulgate regulations
for mining operations within the State.
55 The problem of healing damage inflicted in the past is more complicated.
Typically, the party responsible is not available for legal action to require
him to repair the damage he has caused.Consequently the solution is largely a
matter of spending taxpayers dollars. In order to justify a massive Federal
grant program to clean up past mined-areas, a detailed cost-benefit analysis
must be undertaken to assure that this problem deserves top priority among the
great number of other environmental problems the solution to which requires
Federal funds. The tools for such an analysis are in the formative stages.
Until they have been further refined, it is felt that a restoration program is
premature.
55 The Office of Management and Budget advises that there is no objection to
the presentation of this report and that enactment of S. 993 would be in accord
with the President's program.
55 Sincerely yours,
55 HOLLIS M. DOLE, Assistant Secretary of the Interior.
56 DEPARTMENT OF AGRICULTURE, OFFICE OF THE SECRETARY, Washington, D.C.,
November 17, 1971.
56 Hon. HENRY M. JACKSON, Chairman, Committee on Interior and Insular
Affairs, U.S. Senate.
56 DEAR MR. CHAIRMAN: This is in response to your request for a report on S.
1160, a bill "Relating to the rehabilitation of areas damaged by deleterious
mining practices, and for other purposes."
56 This Department recommends that the bill not be enacted.
56 The President's Environmental Message to Congress, dated February 8,
1971, proposed a Mined Area Protection Act, S. 993, to establish Federal
requirements and guidelines for State programs to regulate the environmental
consequences of surface and underground mining. This proposal was submitted to
Congress by the Secretary of the Interior on February 25, 1971. In transmitting
that proposal, attention was called to the fact that there are two different
problems involved in meeting the challenge which mining operations can present
to the environment: (1) requiring ongoing and future mining activities to be
conducted in a way as to minimize the environmental impact, and (2) healing the
wounds that have been inflicted by past mining operations.
56 We recommend enactment of the Administration's proposal which deals only
with the first problem, the solution to which is largely a matter of developing
regulations that will require environmental considerations to be built into the
mining operation.
56 The problem of healing damage inflicted in the past is more
difficult.Most of the lands now in need of reclamation were mined when there
were no statutory requirements that they be reclaimed or where such statutory
requirements were ineffective. Consequently, to relieve the adverse impacts on
the environmental treatment of these lands may well require a considerable input
of public funds. The investment of Federal funds will require a detailed
cost-benefit analysis to determine the priority of this problem in comparison
with other environmental problems requiring Federal funds.
56 This Department has a long history of conducting research and giving
technical and financial assistance to private landowners in protecting land
surface areas against erosion and runoff. Many of the lands on which we have
provided assistance were surface mined. At such time that proposals for
reclaiming lands affected by past surface mining may be submitted, this
Department will anticipate aiding in the development of proposals for
consideration by the Congress.
56 The Office of Management and Budget advises that there is no objection to
the presentation of this report from the standpoint of the Administration's
program.
56 Sincerely,
56 J. PHIL CAMPBELL, Acting Secretary.
57 EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF MANAGEMENT AND BUDGET,
Washington, D.C., November 15, 1971.
57 Hon. HENRY M. JACKSON, Chairman, Committee on Interior and Insular
Affairs, U.S. Senate, New Senate Office Building, Washington, D.C.
57 DEAR MR. CHAIRMAN: This is in response to your request of May 28, 1971,
for the views of the Offi