Senate Report No. 93-402
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Legislative History Senate Report No. 93-402 |
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Preamble
Mr. METCALF, from the Committee on Interior and Insular Affairs submitted
the following
REPORT
[To accompany S. 425]
The Committee on Interior and Insular Affairs, to which was referred the
bill (S. 425) 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.
: I. PURPOSE
32 The purpose of S. 425, the "Surface Mining Reclamation Act of 1973",
is to establish an environmentally strong and administratively realistic program
for the regulation of coal surface mining activities and the reclamation of coal
mined lands. More specifically, the purposes of S. 425 as reported by the
Committee, are to assure that surface coal mining operations - including
exploration activities and the surface effects of underground mining - are
conducted so as to prevent degradation to the environment, and that such surface
coal mining operations are not conducted where reclamation is not feasible
according to the terms and conditions of the Act.In addition, S. 425 would
protect the rights of persons with a legal interest in land affected by coal
surface mining operations.
32 Federal legislation regulating surface mining - and particularly surface
mining for coal - is needed at this time. While a number of States do have
surface mining reclamation programs, regulation of surface coal mining is not
uniform, and in many instances is inadequate. S. 425 as reported by the
Committee would provide minimum Federal standards for coal surface mining and
reclamation activities to be administered and enforced by the States, and by the
Secretary of the Interior on public lands. S. 425 would provide assistance to
the States to improve their regulatory and enforcement programs and authorizes
funding to the States for that purpose. In the event that a State fails to
comply with the Act, the bill provides for Federal enforcement of the State
Program, or for establishment of a Federal Program under the authority of the
Secretary of the Interior.
II. NEED
32 In recent years the coal industry has experienced a significant shift
in technology from predominantly underground mining. Although strip mining
first started before World War II, it did not become a significant technology
for mining coal until the early 1960's when, for the first time, over 30 percent
of the country's coal was produced in surface mines. In 1973, over half of the
coal produced came from surface mines.
33 Each week some 1,000 acres of land are disturbed by the surface mining
for coal. As of January 1, 1972, there were 4 million acres of land disturbed
by surface mining, of which 1.7 million acres (43 percent) were disturbed by
surface mining for coal, 1.3 million of these acres in the Eastern coalfields.
Only about half these lands have been reclaimed.
33 Federal legislation is needed now to regulate surface mining and
reclamation, because surface mining has become a national issue and its
regulation a national priority.
33 The Committee has been most concerned for some time with the problems
associated with coal surface mining. The Committee requested and printed a
study on "Coal Surface Mining and Reclamation" (Serial No. 93-8) done by the
Council on Environmental Quality. The Committee also conducted a study of its
own on "Factors Affecting the Use of Coal in Present and Future Energy Markets"
(Serial 93-9). In addition to extensive hearings on the regulation of surface
mining, the Committee also held hearings on the CEQ study in April 1973 and on
"Coal Policy Issues" in June 1973.
33 On September 10, 1973 - the date the Committee reported this bill -
President Nixon in his message to Congress termed passage of such legislation a
matter of "highest urgency" explaining further that:
33 Our most abundant domestic source of energy is coal. We must learn to
use more of it, and we must learn to do so in a manner which does not damage the
land we inhabit or the air we breathe.
33 Surface mining is both the most economical and the most environmentally
destructive method of extracting coal. The damage caused by surface mining,
however, can be repaired and the land restored. I believe it is the
responsibility of the mining industry to undertake such restorative action and I
believe it must be required of them.
33 Coal surface mining activities, in particular, have imposed large social
and environmental costs on the public at large in many areas of the country in
the form of unreclaimed lands, water pollution, erosion, floods, slope
failures, loss of fish and wildlife resources, and a decline in natural beauty.
Uncontrolled surface coal mining in many regions has effected a stark,
unjustifiable, and intolerable degradation in the quality of life in local
communities.
33 If surface mining and reclamation are not done carefully, significant
environmental damage can result. In addition, unreclaimed or improperly
reclaimed surface coal mines pose a continuing threat to the environment, and at
times are a danger to public health and safety, public or private property.
Similar hazards also occur from the surface effects of underground coal mining,
including the dumping of coal waste piles, subsidence and mine fires.
33 Erosion and siltation of streams occur as a result of surface mining. In
the Eastern coalfields, where spoil is pushed downslope of mountain mines,
landslides, erosion, sedimentation and flooding are common hazards of mountain
surface mining. Unstable highwalls are a hazard to life and property.
Highwalls that crumble and erode from weathering, ruin drainage patterns and
significantly add to water pollution. Material falling off the highwall can
retard surface water flow. Erosion increases dramatically when the protective
vegetative cover is removed and the soil is not stabilized. Suspended sediment
concentration in small Appalachian streams draining strip mined areas can be
increased 100 times over that in forest lands. Over 7,000 miles of streams have
been affected by surface runoff from coal stripping operations.
34 In the Western coalfields, many of which are in arid or semi-arid areas,
the environmental problems associated with surface mining are somewhat
different. Erosion rates on Western range lands are among the highest in the
United States for upland areas not under cultivation. The arid climate does not
provide sufficient moisture for a protective vegetal cover. Once this fragile
vegetative cover has been disturbed by mining, erosion increases dramatically.
More important, in areas with little rainfall, restoration of vegetative cover
is virtually impossible without irrigation. Furthermore, in most of the Western
coalfields the coal beds that lie close to the surface are also aquifers. (For
example, the strippable coal seams in the Gillette, Wyo., area serve as an
aquifer.) Removal of the coal by surface mining operations would intersect such
aquifers that are the source of water for many wells. Flow patterns in such
aquifers would be changed and some parts undoubtedly would be dewatered,
resulting in reduced availability of water for other uses.
34 There are also areas which may be totally unsuitable for surface mining
such as wilderness areas, areas of historical importance, parks, and wildlife
refuges. It may be desirable to prohibit surface mining in such areas,
recognizing that it would be incompatible with existing or planned land use
patterns. Of course, under the provisions of the Act, no surface mining may
take place in an area which cannot be properly reclaimed.
34 Because mining conditions, climate, and terrain vary so greatly among the
different coalfields, administration of a coal surface mining regulation and
reclamation program is more properly done by the States. For example, a program
geared to insure proper mining and reclamation in the mountains of Appalachia
must understandably be different from one suited to regulating these activities
in the arid and semi-arid areas of the West.(Similarly, these regional
differences must be reflected in Federal standards promulgated for surface
mining and reclamation on Federal lands.)
34 While many States already do have laws regulating surface mining
operations for coal and other minerals, in many instances these laws are
inadequate, or are not fully enforced. Most existing State laws and Federal
regulations for surface mining and reclamation are inadequate in that they are
tailored to suit ongoing mining practices, rather than requiring modification of
mining practices to meet prior environmental standards.It is the purpose of this
Act to effect changes in those mining practices which result in unacceptable or
permanent environmental damage, and to eliminate those mining operations which
cannot be properly reclaimed.
34 Regardless of the adequacy of a State's mining and reclamation laws, and
assuming good faith on the part of the regulatory agency, problems of enforcing
such laws frequently stem from a lack of funding and manpower to adequately
insure compliance. As a result, violations of the law and regulations are
frequent.
35 Uniform minimum Federal standards are therefore needed to establish
minimum criteria for regulating surface mining and reclamation activities
throughout the country, on both public and private lands, and to assure adequate
environmental protection from the environmental impacts of surface mining in all
States.
35 In order to assure appropriate local administration of these Federal
requirements by the various States, adequate funding and manpower in the State
regulatory agencies are essential. For this reason, financial assistance and
guidelines are needed for the design and enforcement of State surface mining and
reclamation programs in conformance with Federal criteria. It is the purpose of
the bill to provide this necessary assistance.
35 The Committee recognizes that there is an urgent need to balance our
growing demand for energy resources with the increasing stress we place on the
environment in satisfying that demand.
35 Coal, the most abundant of our domestic fuel resources, epitomizes in
many ways this energy-environment dilemma. By all estimates our physical coal
reserves are sufficient to meet our needs, even at greatly increased rates of
consumption, for hundreds of years. Yet the contribution of coal has not kept
pace with increasing overall energy demands, particularly for electricity
generation, and indeed its proportional share of energy supply has been steadily
declining.
35 Now, although coal represents more than three-quarters of our domestic
energy resource base, it supplies barely 20 percent of our total energy needs.
35 The essential requirement for an adequate supply of domestic energy
resources to support the Nation's social and economic well-being is being
increasingly recognized as a major national issue. It is clear, particularly in
the case of coal, that we have ample reserves. We are experiencing short-to
mid-term logistical difficulties in fuel production and distribution - a kind of
liquidity crisis in energy. In coping with this crisis it is difficult to
escape the concluson that coal is a key element.We have an abundance of coal in
the ground. Simply stated, the crux of the problem is how to get it out of the
ground and use it in environmentally acceptable ways and on an economically
competitive basis.
35 Federal legislation to regulate coal surface mining and reclamation is a
crucial measure to insure an adequate energy supply while preserving and
maintaining a satisfactory level of environmental quality.
35 The purpose of this bill is to effect the internalization of mining and
reclamation costs, which are now being borne by society in the form of ravaged
land, polluted water, and other adverse effects, of coal surface mining. The
Committee recognizes that in some instances, compliance with the provisions of
this Act may result in increased production costs for some mine operators. The
cost of the environmental controls and reclamation requirements provided for
under the Act are properly borne by the mine operators, although any resultant
increases in mining costs will almost certainly be passed on to coal consumers.
While numerous estimates of reclamation costs have been made, no precise figure
will be valid for all mines. The range of cost estimates available to the
Committee indicates that the cost of complete reclamation (including backfilling
to original contour) usually will not exceed 60~/ton more than the cost of
mining with no environmental controls during mining or any reclamation
whatsoever.Since virtually all States now require some measure of environmental
protection for mining operations, and some degree of reclamation, incremental
costs per ton for surface mining and reclamation under this Act will therefore
be somewhat less than 60~/ton for most mining operations. Further, this cost
increase must be reviewed in the proper context.
36 About 60 percent of all coal is consumed by electric utilities. Using
conservative figures of 10,000 Btu/lb. coal and a conversion rate of 10,000
Btu/kwhr the rise of 60~/ton in the price of coal results in an increase of only
0.03 mils per kwhr of electricity. In addition, the cost of competing fuels is
also rising rapidly. Most oil is already more costly than coal on a per Btu
basis, and the price of natural gas is expected to rise significantly in the
next few years. Accordingly, it does not appear that compliance with the
provisions of this Act will adversely affect the competitive position of coal as
an energy source, nor that its role as an even greater contributor to domestic
energy supply cannot be fulfilled.
36 This expectation is further reinforced by the fact that strippable coal
reserves are a very small percentage both of the Nation's total coal resources,
and of the low sulfur coal reserves. Strippable reserves are defined as those
reserves under a specified maximum depth of overburden that are economically
recoverable with the strip mining technology and equipment presently available
or that may be available in the foreseeable future. Economic recovery in strip
mining is generally determined by the ratio of overburden to coal, called the
stripping ratio. Strippable reserves in many instances can also be recovered by
deep mining. Thus, to define reserves as strippable does not mean they can only
be recovered by surface mining techniques.
36 Although surface mining accounts for half of current coal production,
most of the Nation's coal resources will have to be deep mined if they are to be
exploited. Only 45 billion tons of the total 1,552 billion tons of mapped
resources, less than 3 percent can now be classified as strippable reserves.
Almost 70 percent of the strippable reserves are in the West, including Alaska.
Only 13 percent are in Appalachia.
36 The total coal resources of the United States amount to more than three
trillion tons, divided into several ranks of coal and distributed in several
fields. Of these total coal resources, some 50 percent, or 1.5 trillion tons
of bituminous coal and lignite, are considered to be recoverable reserves (i.e.,
minable under current economic conditions and with present technology, or
technology that may be available in the foreseeable future.) From a practical
standpoint, for the near and medium term, we need only be concerned with
recoverable reserves, rather than with resources, since these reserves clearly
constitute an ample supply for the foreseeable future.
36 The principal coal fields of the contiguous United States can be roughly
divided into four groups: the anthracite region of eastern Pennsylvania, the
Appalachian bituminous fields, the central bituminous fields (Illinois, Indiana,
western Kentucky, and Kansas) and the western fields, which contain bituminous
and sub-bituminous coal and lignite.
36 The bulk of our recoverable reserves lie in the western coal fields.
Almost half (667,518 million tons) are in Montana, North Dakota, and Wyoming.
About 45 billion tons - mostly in the western and central fields - are
considered to be strippable reserves. More than 1/3 of our reserves are low
sulfur coal (less than one percent sulfur), concentrated largely in the West
(Montana, New Mexico, and Wyomining), with only West Virginia and eastern
Kentucky in-the East having any sizable low sulfur deposits. Most coal in the
central fields (Illinois, West Kentucky, Missouri, and Ohio) is high sulfur coal
(more than 2.0 percent). Relatively little high sulfur coal is found in the
West, while the central fields have very little low or medium sulfur coal; the
Appalachian coals are mixed. About 3% of our low sulfur coal reserves are
strippable.
37 The following table represents a more detailed description of United
States coal reserves, by State, sulfur content and method of recovery.
38
U.S. COAL RESERVES, BY STATE
[Million tons]
Total coal resources (excluding anthracite)
0-3,000' overburden, as Stripping reserves by of Jan. Reserves by sulfur content (Jan. 1, sulfur content (Jan. 1,
1, 1967 1966) 1969)
Recoverable reserve
Recoverable assumin Medium High strippa Medium High
g 50 Low (1 (1.1 to (2.1 ble Low (1 (1.1 to (2.1
percent percent 2 percent reserve percent 2 percent
recover or percent or s Jan. or percent or
y) less) ) more) 1, 1968 less) ) more)
Alabama 33,538 16,711 2,078 10,625 914 134 33 74
Alaska 260,089 130,043 92,503 4, 411 4,411
Arizona 387 387
Arkansas 5,990 2,995 350 1,421 194 174 28 118 28
California 25 25
Colorado 226,637 113,299 80,645 500 476 24
Connecticut
Delaware
District of Columbia
Florida
Georgia 78 39 76
Hawaii
ldaho
lllinois 239,756 119,675 574 7,557 127,758 3,247 80 3,167
lndiana 56,779 28,337 371 8,094 26,577 1,096 293 803
lowa 20,519 10,257 1,040 6,523 180 180
Kansas 22,686 11,340 19,699 375 37 5
Kentucky 117,952 58,600 22,132 5,428 38,950 1,785 532 189 1,037
Louisiana
Maine
Maryland 1,572 782 125 1,055 21 8 13
Massachusetts
Michigan 705 352 205 1 1
Minnesota
Mississippi
Missouri 23,359 11,670 78,760 1,160 1,160
Montana 378,701 189,347 215,438 4,550 1,166 6,897 6,133 764
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico 88,475 44,235 61,421 2,474 2,474
New York
North Carolina 130 65 110
North Dakota 530,680 265,328 2,075 1,678 397
Ohio 43,864 21,779 611 2,488 38,933 1,033 126 907
Oklahoma 23,299 11,645 1,022 1,193 1,087 111 10 44 57
Oregon 432 216 188
Pennsylvania 67,553 33,495 1,198 20,048 36,705 752 225 527
Rhode lsland
South Carolina
South Dakota 3,031 1,515 2,031 160 160
Tennessee 4,652 2,299 164 975 702 74 5 43 26
Texas 26, 926 13,463 6,902 7,978 1,309 625 684
Utah 80,250 40,107 22,135 1,675 3,998 150 6 136 8
Vermont
Virginia 12,710 6,217 8,060 258 154 99 5
Washington 36,178 18,089 5,881 1,637 4,122 135 135
West Virginia 102,034 50,455 41,472 3,511 20,057 2,118 1,138 669 311
Wisconsin
Wyoming 445,710 222,843 120,715 10 13,971 13,377 65 529
Other States 5,721 2,861 4,705 2,872,9 1,429,0 1,008,8
Total 55 10 85 140,060 412,035 44,986 31,787 4,038 9,161
III. MAJOR PROVISIONS
40 1.Coverage of S. 425
40 S. 425 applies to coal surface mining on Federal and non-Federal lands.
This includes all aspects of coal surface mining operations, all surface effects
of underground coal mining operations, exploration activities for coal, and the
disposal of coal mine and processing wastes.
40 Regulation of coal surface mining activities is the most pressing
national need. Of all land disturbed by all types of surface mining, 43 percent
has been disturbed as a result of surface mining for coal. During the last 5
years coal surface mining has accounted for over 50 percent of all surface
disturbance.
40 Open pit mines and surface mining for minerals other than coal are not
subject to this bill. Coal surface mining on Indian lands is also excluded.
The Committee is fully cognizant of the adverse impacts of these mining
operations and intends that these mining operations should be regulated as soon
as possible.Of particular concern to the Committee is the need to regulate sand
and gravel operations, which account for 25 percent of the acreage disturbed by
surface mining, and open pit mining operations. However, in the case of open
pit mining and mining for minerals other than coal, the Committee felt that it
did not have sufficient information or understanding of the available mining and
reclamation technologies for such operations to legislate their regulation in
the best possible manner.
40 In order to assure that appropriate regulations for all surface mining
can be developed, appropriate information must be gathered concerning mining
operations not now covered by S. 425. The bill therefore provides for two
studies to be undertaken by the Council on Environmental Quality in conjunction
with the National Academy of Sciences-National Academy of Engineering. The
first study covers mining and reclamation technologies for minerals other than
coal and for open pit mining. The study report on sand and gravel is due 1 year
after enactment. That part of the study dealing with all other minerals is due
in 18 months. The second study will examine developing resource recovery and
reclamation technologies including recycling to maximize resource recovery with
minimal environmental impacts. It is due in 3 years.
40 In the case of mining operations on Indian lands, the Committee was
requested by representatives of a number of affected tribes, to postpone Federal
regulation of mining on Indian lands until greater consultation could be sought
from the tribes, giving them an opportunity to design mining and reclamation
programs for their own lands. The bill therefore also provides for a study by
the Secretary of the Interior, to examine the question of applying the
provisions of the Act to Indian lands. This study is due no later than January
1, 1975.
40 As the results of these studies are made available to the Congress, the
Committee intends to design appropriate legislation, based on these and other
findings, for the regulation of surface mining for all minerals on all lands.
40 2. State and Federal jurisdiction
40 Because of the diversity of climate, terrain, mining conditions, and land
use patterns in the different areas where coal is mined, the Committee believes
that the States, as the governmental entity closest to the problem, are best
able to design and enforce coal surface mining and reclamation programs on
non-Federal lands within their jurisdiction.
41 However, the Federal Government has a responsibility to protect Federal
lands from the adverse effects of coal surface mining, and to assure a uniform
minimum standard of environmental protection for all persons affected by coal
surface mining operations. In the past, the Congress has reconciled similar
jurisdictional responsibilities by promulgating Federal standards to be used as
a minimum base for Stateadministered programs, as under the Federal Water
Pollution Control Act and the Clean Air Act. This approach largely precludes
the possibility of "industrial blackmail," whereby industries threaten to move
from one State proposing stringent protection standards, to one with more
lenient standards.
41 Similarly, with respect to coal surface mining and regulation, the
Committee has chosen to provide Federal initiative, approval and oversight for a
State-administered program. In order to provide assurances that the minimum
Federal requirements will be satisfied in all cases, the Committee has provided
the Secretary of the Interior with the authority to monitor State enforcement by
inspection, and to enforce the requirements of the Act in the event of failure
of a State to administer or enforce an approved State program, or any part
thereof. Should Federal enforcement of a State program occur, the bill prevents
any confusion arising from overlapping or dual Federal-State jurisdictions, by
carefully defining the extent of the regulatory power of both the Federal and
the State authorities.
41 The bill facilitates coordination of coal surface mining and reclamation
programs on Federal lands with State programs in two ways. First, it requires
the program for Federal lands in any State to include at a minimum the
requirements of the State's approved program. Second, it provides for limited
delegation of authority between the Federal Government and the States,
particularly to allow coordinated regulation of mining and reclamation
operations on checkerboard lands.
41 3. Timing of implementation
41 S. 425 provides that within 6 months after passage of the Act, the
Secretary of the Interior shall promulgate final regulations both for the
development of State programs to meet the requirements of the Act, and for the
regulation of coal surface mining activities on all Federal lands. Within 1
year from such promulgation (18 months after enactment) all States must have
submitted to the Secretary for approval a State program for the regulation of
coal surface mining and reclamation activities to the requirements of the Act.
The Secretary then has 4 months to approve or disapprove the State plans.
Twenty-two months after the date of enactment, all States should be
administering approved State plans.
41 From the date of enactment until 22 months after the Act is passed, no
new coal surface mining operations may be opened without an interim permit from
the appropriate regulatory authority. Similarly, no existing operation can
expand so as to affect an area greater than 15 percent of the area affected by
its activities in the preceding 12 months, unless an interim permit is obtained
from the appropriate regulatory authority. Any surface mines operating under
such an interim permit are subject to the full provisions of this Act. Federal
inspections of all such operations are authorized in this interim period to
determine compliance with the Act's provisions. During this interim period, all
other existing operations continue to be regulated by existing regulatory
programs. The Committee fully expects, however, that such operations will be
conducted in so far as possible to meet the purposes of this Act.
42 After 22 months from the date of enactment, no person may mine without a
permit issued under an approved program, unless an application for a permit has
been filed, but not yet acted upon, or unless a State is prevented by injunction
from enforcing its State program. This latter exception is limited to 1 year.
The Committee anticipates, however, that both mine operators and the States will
work expeditiously and in good faith to effect full implementation of the
provisions of the Act, and that exceptions will be kept to a minimum.
42 The Committee also recognizes that it is possible a hiatus might occur
between the expiration of the interim 22-month period and the initiation of a
State program, which could result in the cessation of coal surface mining
operations in certain States. The Committee expects, however, that with due
diligence on the part of both Federal and State regulatory agencies, such a
hiatus will not occur. The mere existence of the possibility is in itself an
incentive for rapid and timely administration of the requirements of the Act.
42 4. Provisions for reclamation
42 There is general agreement among all those concerned that surface mining,
measured by any criterion, is a drastic environmental change effected by man's
technology. Such complete changes in environmental conditions make total
restoration of the original ecosystem impossible. Rehabilitation can be
accomplished only when planning prior to the actual mining includes the
establishment of desirable and attainable objectives for the use of the land
after mining. Rehabilitation objectives are achieved through careful management
including monitoring of mining and reclamation techniques, reshaping the spoils,
prompt revegetation, control of erosion, and prevention of damage to hydrologic
systems. The rehabilitation of a specific site will depend on the physical
characteristics of the site and the post-mining land use objectives.
42 The selection of the mining technique is most commonly made on the basis
of economics. When rehabilitation is considered part of the mining operation,
extraction techniques may well be expected to change to those which most
economically facilitate rehabilitation.
42 Reclamation plans
42 The Committee believes that submission of a detailed reclamation plan is
an essential element of effective regulation.
42 No surface mining for coal should be permitted on either public or
private lands without the prior development of reclamation plans designed to
minimize environmental impacts, to meet on- and off-site air and water pollution
regulations, and to define a timetable for reclamation concurrent with the
mining operation. The preplanning should be part of an original environmental
impact analysis and should clearly indicate the basis on which conditions at the
proposed mine site are evaluated. It is important that adequate provision for
public participation be a part of the review of the replans.
43 Reclamation criteria
43 The bill reported by the Committee contains reclamation criteria designed
to assure that coal surface mining and reclamation operations are conducted so
as to prevent adverse short- and long-term environmental impacts and be
consistent with State and local land use plans and programs.
43 Two of the most important of these criteria deal with restoration of
surface mined lands to their original contour (213(b)(2)), and the prohibition
against dumping of spoil on the down slope when mining on steep slopes
(213(b)(6)).
43 Original contour
43 This provides that reclamation will include the backfilling, compacting
(where necessary) and regrading of all disturbed areas to restore the land to
approximate original contour, and eliminate all highwalls, spoil piles, and
depressions, except where there is insufficient overburden produced throughout
the mining operation to do so.
43 The Committee believes that this requirement will significantly increase
the range of possible post mining land uses for surface mined areas. It will
eliminate the long useless ribbons of benches in mountainous areas which may be
as much as 200 feet wide and run for miles along mountain sides. In both area
and contour mining, the retention of highwalls results in the isolation of land
- usually land above the mining operation and not otherwise affected by mining.
Such isolated land, surrounded by a highwall of 30 to 200 feet, is preempted
from any future land use, and is inaccessible to wildlife as well as to man. In
heavily surface mined areas, such isolation has caused severe problems not only
by precluding use of the land, but also by denying access in case of fire.
There have been instances in which forest fires have burned unchecked because
the forest was surrounded by highwalls and could not be reached by firefighters.
43 The Committee does not intend to preclude such current practices as
creation of a reservoir for recreational purposes, or the creation of flat land
by "mountain-top" mining. Under the definition of "back-filling to approximate
original contour," the regulatory agency has the discretionary authority to
permit retention of water for creation of a reservoir or recreation area.
"Mountain-top" mining is surface mining on steep slopes in which the entire top
of a mountain is removed in a process similar to area mining. This can result
in the creation of flat land, which can be used, for example, for airports.
Housing developments or industrial parks can also be built on such land if the
necessary services (electricity, water, gas, and so forth) can be provided to
these more remote areas. Since this mining method does not leave highwalls, no
backfilling is needed. Further, in such instances there is usually sufficient
overburden to restore the approximate original contour of the mountain top if
flat land is not needed for the planned post-mining use of the land.
44 Recognizing these problems, States which have experienced heavy surface
mining have taken steps to eliminate the highwalls. Ohio, Pennsylvania, and
West Virginia have legislatively and administratively limited the retention of
highwalls.Ohio and- Pennsylvania usually require complete backfilling of all
highwalls. West Virginia limits the permissible height of highwalls left after
mining. However, restricting the height of highwalls, while it does
significantly reduce the adverse esthetic impacts of surface mining, does not
deal adequately with the problem of isolation. The Committee therefore feels
strongly that backfilling to original contour as required in this bill is
essential to good reclamation.
44 This practice is not new to the mining industry. In recent years, the
industry trade journals have reported mining operations in West Virginia,
Pennsylvania, and Tennessee that have completely eliminated the highwall, using
a number of different mining and reclamation techniques. Since the passage of
the 1971 West Virginia surface mining law, a number of mining companies in that
State have voluntarily adopted the policy of placing no spoil on outslopes, and
totally eliminating highwalls.
44 Although costs vary according to mining technique, many operators who do
restore to original contour report that overall costs are not much different
from those incurred for lower levels of restoration. In cases where mining
techniques were altered to minimize the handling of overburden, total mining
costs have been reported to decline.
44 It has been suggested that in adopting this provision, the Committee is
applying nationwide a standard used by the State of Pennsylvania and which, for
reasons of geology and terrain, is not applicable beyond that State. There are
a number of errors in this assumption.
44 First, while inclusion of this provision in this bill was supported by
the Pennsylvania Department of Environmental Resources and by both Senator
Schweiker and Senator Scott of Pennsylvania, the language adopted is not
identical to the Pennsylvania law.
44 Second, although there are some variations in the geology of different
coal seams and fields, there are also certain geological constants: sandstone,
slate, and shale are found wherever there is coal. This same basic geology of
sandstone and slate overburden is common not only to Pennsylvania and West
Virginia, but also in the West.
44 Third, the degree of slope on which a mine is located is immaterial to
the feasibility of backfilling to original contour. In West Virginia complete
backfilling is required now on all slopes up to 30 degrees. As reported in the
trade journals of that State at least two large West Virginia mining companies
have adopted a policy of restoring the mined land to approximate original
contour regardless of slope. Surface mine operators in Pennsylvania have adopted
similar policies to meet that State's requirement that all highwalls be
backfilled to approximate original contour.
44 Finally, and most important, implicit in these arguments is the
assumption that the requirement of "regrading to approximate original contour"
is a requirement to use a particular mining technique widely used in
Pennsylvania called the modified block-cut. This is not the case. The
Committee is prescribing performance standards to achieve a certain degree of
reclamation - the Committee has no intention of dictating how these standards
are achieved. In fact, surface mines in West Virginia and Tennessee are
reclaiming to approximate original contour, backfilling all highwalls, not using
the modified block cut, but retrieving overburden from the spoil pile on the
downslope. Obviously, this technique requires more handling of the spoil, and
may be more costly than the block-cut technique, but it is being done.
45 The Committee does not intend to place undue hardship on surface mine
operators by this requirement. For this reason they have included a provision
that where overburden produced is insufficient, even allowing for volumetric
expansion, backfilling to approximate original contour will not be required.
45 Spoil on downslopes
45 This standard provides that, when mining on steep slopes, no soil, spoil,
debris, or other waste material be placed on the natural downslope below the
bench or mining cut, except that the spoil from the initial cut may be placed in
a limited and specified area of the downslope if the permittee can demonstrate
that it will not slide, and that the other environmental requirements of the
bill can still be met.
45 This provision is crucial to assuring that the environmental impacts of
mining are minimized, and confined to the permit area. Most of the damage that
occurs as a result of surface mining on steeper slopes, such as landslides,
erosion, sedimentation, and flooding results from placing spoil on the
downslope. In areas with both steep slopes and significant rainfall, these
problems are further aggravated. The least environmental damage usually results
when the deposition of overburden on otherwise undisturbed outslopes is
minimized.
45 Recognizing the importance of spoil management to environmental
protection, most Appalachian States do restrict spoil placement on the downslope
and prohibit fill benches on the steepest slopes (over 30 degrees in West
Virginia; over 33 degrees in Maryland; and over 28 degrees in both Kentucky and
Tennessee). Most contour surface mining in the Appalachian States occurs on
steep slopes between 14 and 33 degrees. West Virginia has recently adopted
administrative regulations that require total spoil management. The Committee
did not attempt to specify the precise definition of "steep slopes" in terms of
degrees. The Committee intends that the Federal regulations promulgated by the
Secretary will define the term so as to make this provision applicable to any
slope on which spoil cannot be easily controlled.
45 Under the requirements of S. 425, the only spoil that may be placed on
the downslope of the mining operation is that from the initial cut. In adopting
this provision, it was the clear understanding of the Committee that this
initial cut consisted only of that original excavation made to gain first access
to and first expose the coal. In most instances this initial cut should be less
than 100 feet along the contour of the slope - enough room simply to install the
first set of equipment and remove the first cut of coal. The Committee does not
intend or expect that "initial cut" could be construed to mean the entire
first contour cut into a seam.
45 The purpose of the Committee in adopting this measure was to assure that
spoil would only be deposited on already mined and disturbed areas, and not on
otherwise undisturbed land. The exception allowing for spoil placement from the
initial cut in a specified spoil disposal area is a recognition of the fact that
at the outset of a new mining operation, there is no undisturbed land except for
the access road, which would not likely be suitable for spoil disposal.
46 It must be understood a mine operator need not necessarily use the
downslope for spoil disposition if, for example, the permit area includes flat
land which may be used, if approved by the regulatory authority, as a spoil pit
for the spoil from the initial cut. Particularly in areas where slides on steep
slopes mining operations have been common occurrences, the operator must
demonstrate what different practices he will use to prevent such slides and
erosion in the new operation.
46 Other criteria
46 In addition to the two criteria described above, the Act also requires
that the affected land be returned to a nonhazardous and useful condition.
Further, all disturbed terrain must be stabilized, protected from erosion and
revegetated.
46 All offsite areas are to be protected from the adverse impacts of the
mining operations. No surface waters may be disturbed by mining operations
unless their relocation has been previously approved by the regulatory
authority; and all such waters must be protected from acid drainage, siltation,
and other adverse impacts of water runoff from the areas disturbed by coal
surface mining operations. In addition, all shafts, voids, and tunnels from
underground coal mines are to be sealed.All waste from underground coal mining
and from coal processing operations must be carefully disposed of underground;
or, if this is not feasible, in a safe and stable and environmentally acceptable
manner compatible with the surrounding terrain. Any disposal of such wastes in
contact with surface waters, or use of such wastes as water retention
facilities, must be done in compliance with State and Federal water quality
requirements, and, so as not to endanger public health and safety, with the
requirements for safe impoundment construction set forth under Public Law 566.
46 5. Prohibition of mining under certain conditions
46 It is the express intent of the Committee that coal surface mining
operations should not be conducted where reclamation (as required by this Act)
is not feasible. The mining and reclamation requirements in S. 425 have been
designed to accomplish this purpose.
46 In addition to this general standard, the bill provides a vehicle for
designating certain lands unsuitable for mining, under both Federal and State
jurisdiction. Under this program States are authorized to designate as
unsuitable for mining areas: (1) which economically or technologically cannot be
reclaimed according to the requirements of the Act; (2) where coal surface
mining would be incompatible with existing land uses, plans, or programs; and
(3) which are of critical environmental concern. A similar designation is
directed for Federal lands.
46 This provision does not require that States designate any land at all as
unsuitable for mining. It does require each State to review the lands within
its boundaries to determine if any should be designated unsuitable. It would
allow a State to declare all land within its jurisdiction as unsuitable for
surface mining, should it so choose.
47 The bill does explicitly define certain areas as unsuitable for mining.
These include national parks, national wildlife refuges, the National System of
Trails, the National Wilderness Preservation System, the Wild and Scenic Rivers
System, National Recreation areas, and any area which will adversely affect a
publicly owned park, unless-approved by both the regulatory agency and the
agency having jurisdiction over the park.
47 6. Protection of surface owner rights
47 When the surface estate and the mineral estate are separate, primacy has
frequently been accorded to the rights of the mineral owner over those of the
surface owner. But given the adverse nature of the impacts of coal surface
mining it is the intent of the Committee that the rights of the surface owner be
protected as well.To this end, in cases where the mineral rights are owned
separately from the surface rights, the bill provides that no coal surface
mining may take place without the express written consent of the surface owner
to allow surface mining, unless a bond separate from the reclamation bond has
been posted to pay for all damages suffered by the surface (owners) as a result
of the coal surface mining operation. This provision applies to all cases
involving separate estates, whether the mineral rights are held by the Federal
Government or whether the mineral and the surface rights are both privately
owned. It follows the rule used for many years where the Federal Government
owns the minerals.
IV. COMMITTEE RECOMMENDATION
47 The Committee on Interior and Insular Affairs recommends that S. 425
as amended, be approved by the Senate.
V. LEGISLATIVE HISTORY
47 Surface mining has been the subject of legislation for several years.
The first hearings were held by the Committee on Interior and Insular Affairs in
the 90th Congress. No bills were reported during the 90th and 91st Congresses.
During the 92d Congress, the Subcommittee on Minerals, Materials, and Fuels held
4 days of hearings. The Committee unanimously reported a bill (S. 630) in
September 1972 with the understanding that Committee members reserved the option
to offer amendments on the Senate floor.
47 The House of Representatives passed a bill (H.R. 6482) in October 1972.
The 92d Congress adjourned before the Senate considered either bill.
47 The surface mining bills pending before the Committee this year are:
47 S. 425 (Jackson, Buckley, Mansfield, Metcalf, and Moss); S. 923 (Jackson
and Fannin - administration proposal); S. 1163 (Baker); S. 1185 (Case), S. 1612
(Metcalf), S. 946 (Stevenson) which deals with demonstration projects.
47 The Full Committee held hearings on bills then before it on March 13, 14,
15, and 16. On April 30 the Subcommittee on Minerals, Materials, and Fuels held
a hearing on the report prepared by the Council on Environmental Quality
entitled "Coal Surface Mining and Reclamation-An
48 Environmental and Economic Assessment of Alternatives."
48 In addition, as part of the study of National Fuels and Energy Policy,
the Full Committee and ex-officio members held 3 days of hearings on coal policy
issues, which included discussion of the potential impact of Federal surface
mining legislation on coal development.
48 The Committee agreed to mark up S. 425 and met in public mark-up session
for 10 days to consider amendments to the bill.On September 10, 1973, the
Committee completed action on the bill and ordered S. 425 favorably reported to
the Senate with the recommendation that the bill as amended be passed.
VI. SECTION-BY-SECTION ANALYSIS
48 SECTION 1
48 This section states the official citation of the Act as the "Surface
Mining Reclamation Act of 1973".
SECTION-BY-SECTION ANALYSIS TITLE I - STATEMENT ON FINDINGS AND POLICY
48 SECTION 101. FINDINGS
48 This section sets out congressional findings relating to surface mining
of coal and other minerals. These include the fact that (1) surface mining is
only one of various methods of mining; (2) surface mining is a significant
activity in our national economy; (3) surface mining has numerous adverse
economic environmental and social effects; and (4) surface mining and
reclamation technology are developing so that effective and reasonable
regulation of surface coal mining is appropriate and necessary to minimize these
adverse effects.
48 These findings conclude that (1) because of the diversity of terrain,
climate, biologic, chemical, and other physical conditions, the States should
have the primary responsibility for regulating surface mining and reclamation
and (2) while there is a need to regulate surface mining operations for minerals
other than coal, more data and analyses are needed to provide a basis for
effective and reasonable regulation.
48 SECTION 102.PURPOSES
48 Section 102 states that the long-term goal of Congress is to prevent the
adverse effects to society and the environment resulting from surface mining.
It sets out nine specific purposes as steps toward achieving that goal.These
recognize that, while all adverse effects of surface mining cannot be prevented
immediately and that coal is an essential source of energy, a strong nationwide
regulatory program based on minimum Federal standards should be implemented
rapidly. This program would assure that coal surface mining operations are not
conducted where reclamation which meets these minimum standards is not feasible.
The Federal Government would assist the States in developing and implementing
such a program. If and when a State manifests a lack of desire or an inability
to participate in or implement that program and to meet the requirements of the
Act, the Federal Government is to exercise the full reach of Federal
constitutional powers to insure the effectiveness of that program.
49 Another significant purpose of the Act is to provide a means for
development of the data and analyses necessary to establish effective and
reasonable regulation of surface mining for all minerals other than coal.
SECTION-BY-SECTION ANALYSIS TITLE II - EXISTING AND PROSPECTIVE SURFACE
MINING AND RECLAMATION OPERATIONS
49 SECTION 201. GRANT OF AUTHORITY: PROMULGATIONOF FEDERAL REGULATIONS
49 This section places authority for the administration of the Act with the
Secretary of the Interior. The Secretary's initial responsibilities are to
prepare and publish within 6 months, regulations concerning coal surface mining
and reclamation operations and a detailed description of actions to be taken by
a State to develop an acceptable State program to regulate such operations.
49 This section also provides procedures for publication of the proposed
regulations and for public hearings on them.
49 Subsection 201(c) provides that the Administrative Procedure Act (APA) is
to be applicable to the administration of the Act.
49 Throughout the Act are provisions which insure due process not only for
surface mine operators, but also for State and local governments, surface
owners, persons with interests which are or may be adversely affected, and local
citizens. Due process is insured through numerous reporting and notice
provisions, burden of proof provisions, public hearing provisions, and
administrative and judicial review provisions. Where the provisions of the Act
depart from or are more specific than the APA, the provisions of the Act will
prevail.
49 SECTION 202. OFFICE OF SURFACE MINING, RECLAMATION, AND ENFORCEMENT
49 To insure administration of the program by an independent agency with
neither a resource development (the promotion of mining, marketing, or use of
minerals) or resource preservation (pollution control, wilderness, or wildlife
management) bias or mission, this section establishes the Office of Reclamation
and Enforcement in the Department of the Interior. This Office will be separate
from any of the Department's existing bureaus or agencies. It is intended that
the Office exercise independent and objective judgment in implementing the Act.
49 To insure sufficient authority to administer the Act the Office will have
a Director to be compensated at the rate provided for in level V of the
Executive Pay Schedule. Officers and employees of the Office are to be
recruited on the basis of their professional competence and capacity to
administer the Act objectively. The Act specifically states that there cannot
be transferred to the Office any legal authority which has as its purpose,
promoting the development or use of coal or other minerals.
50 The duties of the Secretary, acting through the Office, include:
Administering the various grant-in-aid programs provided in the Act;
administering research and development projects provided in the Act; reviewing
and approving State programs for surface mining and reclamation operations;
developing and administering any Federal program for surface mining and
reclamation operations for States which do not have or are not enforcing State
Programs; maintaining a Surface Mining and Reclamation Information and Data
Center; cooperating with States in dissemination of relevant data and in
standardizing methods of collecting and classifying such data; providing
technical assistance to the States to enable them to undertake responsibilities
provided for in the Act; monitoring all Federal and State research programs
dealing with coal extraction; and recommending research projects designed to
improve the feasibility of underground coal mining or develop improved surface
mining and reclamation techniques.
50 SECTION 203. SURFACE MINING OPERATIONS NOT SUBJECT TO THIS ACT
50 This section provides specific exemptions for two types of coal surface
mining which would otherwise be subject to the Act.
50 These are (1) the extraction of coal by a landowner for his own
noncommercial use from land owned or leased by him, and (2) the extraction of
coal where surface mining affects 2 acres or less.
50 The Committee felt that these two classes of surface mining cause very
little environmental damage and that regulation of them would place a heavy
burden on both the miner and the regulatory authority. The exemption for
"noncommercial" use does not include coal surface mining done by one unit of an
integrated company which uses all of the coal in its own manufacturing plants
(e.g., surface mining of metallurgical coal owned by a steel company for use in
the company's steel mills, or surface mining for coal owned by an electric
utility for use in its own powerplants).
50 SECTION 204. STATE AUTHORITY; STATE PROGRAMS
50 Subsection (a) establishes the six prerequisites for any State to
continue to obtain financial assitance and to assume full responsibility for all
regulation of surface mining and reclamation operations within the State. The
State is required to:
50 (1) Have appropriate legal authority to regulate surface mining and
reclamation operations in accordance with the Act's requirements;
50 (2) Provide sanctions, including civil and criminal sanctions, bond
forfeitures, and cease and desist orders for violations of State laws,
regulations or permit conditions concerning surface mining and reclamation
operations which meet the requirements of the Act;
50 (3) Have sufficient personnel, interdisciplinary expertise, and financial
resources to enable the State to regulate surface mining and reclamation
operations in accord with the Act's requirements;
50 (4) Submit to the Secretary for his approval a State program for the
effective implementation and enforcement of a permit system for surface mining
and reclamation operations for coal;
51 (5) Include in its State program a process for coordinating issuance of
surface mining permits with any other applicable Federal or State permit
process; and
51 (6) Have established a process for designation of areas as unsuitable for
surface mining in accordance with Section 216 and to be conducting a review of
potential surface mining areas.
51 Subsections (b), (c), and (d) set out the time periods and procedures for
the Secretary's approval or disapproval of State programs and for revisions and
resubmittals of disapproved State programs. Prior to approving a State program,
the Secretary is directed to hold a public hearing within the State and solicit
the views of the Administrator of the Environmental Protection Agency, the
Secretary of Agriculture, and the heads of other Federal agencies with relevant
expertise.
51 Subsection (c) requires the Secretary to approve or disapprove a State
program within 4 months after its submission. The Secretary is directed to
approve a State program which meets or exceeds the requirements of the Act.
51 Subsection (d) requires the Secretary, when he disapproves a State
program, to notify the affected State and allow the State 60 days to resubmit a
revised program. The notification is to be in writing and is to contain the
reasons for disapproval. It is intended that the Secretary's notification be
very specific. Only with such specificity will a State know how best to revise
its State program so it will meet with the Secretary's approval.
51 Subsection (e) provides that States that are prevented from preparing,
submitting, or enforcing a State program because of a court injunction remain
eligible for financial assistance under the Act.
51 This subsection further provides that, despite the provision of Section
205, no Federal program shall be initiated for a State under the circumstances.
This bar on imposition of a Federal program ends when the injunction terminates
or after 1 year, whichever comes first. The Committee did not want to penalize
States which were making a good faith effort to comply with the Act but were
prevented from doing so by court action. On the other hand, the Committee does
not want to have any undue delay in establishment of a regulatory program which
meets the requirements of the Act.
51 SECTION 205.FEDERAL PROGRAMS
51 This section provides for Federal regulation of surface mining and
reclamation operations in any State which proves unwilling or unable to do the
job itself. In accord with the purposes and findings in Title I, Federal
regulation is to occur only if a particular State wishes to forego or fails to
assume primary responsibility for regulating surface mining operations within
its boundaries.
51 Subsection (a) directs the Secretary to prepare, promulgate, and
implement a Federal program covering surface mining and reclamation operations
for any State which (a) fails to submit a State program within 12 months of the
promulgation of the Federal regulations required by Section 201, (b) fails to
resubmit an acceptable revised State program after the Secretary's disapproval
of the original submission, or (c) fails to enforce its approved State
program.
52 If an Act of the State legislsture is required to enable the State to
comply with the Act, the Secretary is authorized to extend the deadline for
submission of a State program up to an additional 6 months.
52 All State legislatures will meet no later than 1975, so the 6-month
extension should give the State adequate time to adopt acceptable State
programs.
52 Promulgation of a Federal program gives the Secretary exclusive
jurisdiction for regulation of surface mining operations in the State. Surface
mine operators need to know which regulations - Federal or State - they must
follow at any given point in time.
52 In preparing and implementing a Federal program, the Secretary is
directed to take into account the affected State's terrain, climate, and other
physical conditions.
52 Subsection (b) requires that a public hearing must be held in the
affected State prior to promulgation of the Federal program.
52 Subsection (c) provides that all permits issued under an approved State
program remain valid after implementation of a Federal program. However, the
Secretary is directed to undertake a review of such permits and where such
permits fail to meet the requirements of the Act, to afford the permittee
reasonable time to conform his operations with those requirements or to submit a
new permit application.
52 Subsection (d) provides procedures and timetables for the lifting of the
Federal program in any State when a new State program receives the Secretary's
approval. It provides that permits issued under the Federal program remain
valid under the State program but are subject to review and revision by this
State regulatory authority. It further provides that any State laws or
regulations regulating surface mining are preempted by the Federal program.
This preemption is designed to make it clear to surface mine operators which
laws and regulations they must comply with. Other State laws applicable to the
operation, such as those relating to air and water quality would not be
affected.
52 Subsection (e) provides that any Federal program shall contain a process
for coordinating issuance of permits with any other applicable Federal or State
permit process.
52 The assumption of regulatory authority over surface mining operations in
any State by the Secretary through promulgation of a Federal program for that
State is regarded as a "last resort" measure. It is certainly preferable that
the State regulate such operations through State programs which meet the
requirements of the Act. The Committee hopes and expects that the States, in
good faith, will develop and implement strong State programs. However, if they
fail to do so, the purpose of the Act and this section in particular is to
insure that the full reach of the Federal constitutional powers will be
exercised to achieve the purposes of the Act.
52 SECTION 206. SURFACE MINING OPERATIONS PENDING STATE COMPLIANCE
52 This section establishes an interim surface mining permit program, which
would be in effect from enactment of the Act until the deadline for approval of
a State program, which is expected to be no later than 22 months after enactment
of the Act. (The Secretary has 6 months to promulgate regulations (Section
201), the States have 12 months after that to submit State programs (205(a)) and
the Secretary has 4 months to approve or disapprove the State program (204(c).)
53 During the 22-month period an interim permit, issued by the appropriate
State regulatory authority, would be required to open or develop any new or
previously mined and developed site for coal-surface mining or to expand by a
surface mining operation in existence on the date of enactment of this Act so as
to affect an area greater than 15 percent of the area affected by that operation
in the preceding 12 months. The interim permit application and the terms of the
interim permit would have to meet the requirements of the Act, which are set out
in Sections 208, 210, and 213.
53 As introduced, this section of S. 425 provided a moratorium on new
starts, or the reopening of abandoned mines, or the acceleration of existing
activities in or for the surface mining of coal until permits for the surface
mining and reclamation of coal are obtained under an approved State program.The
Committee felt that this was too stringent a step which might lead to shortages
of coal, particularly for generation of electricity. At the same time, the
Committee did not want to multiply the social and environment costs of surface
mining by encouraging new and accelerated operations before the State programs,
provided for in the Act, to regulate surface mining and reclamation operations
for coal can take effect.
53 The interim permit program was designed to allow new supplies of coal to
be made available pending full implementation of the Act, subject to the
reclamation standards and requirements of the Act.
53 The Committee recognizes that if approved State programs are not in
effect at the time when the interim permit program terminates, that there may be
a hiatus before a Federal program could be implemented. Such a hiatus would
preclude new operations and could shut down existing ones. However, this
possibility should serve as an incentive to the States to take the initiative to
exercise State responsibility and assure State, rather than Federal, regulation.
53 It should also serve as an incentive to surface mine operators to
support, rather than block, efforts to develop effective State programs which
meet the requirements of the Act.
53 SECTION 207. PERMITS
53 This section provides a timetable for obtaining permits to conduct
surface mining and reclamation operations pursuant to the Act from either the
State regulatory authority under a State program or the Secretary under a
Federal program. (Hereafter, the words "regulatory authority" will be used to
mean the State regulatory authority where the State is administering the Act
under State programs or the Secretary where the Secretary is administering the
Act under Federal programs.)
53 Under subsection (a) no person can engage in surface mining without a
valid permit under an approved State program or a Federal program beginning 22
months (plus any extension granted under 205(a)) after the enactment of the Act.
There is one exception to this rule. Where there is an approved State program
or a Federal program an operation existing on the date of enactment of the Act
may continue without a permit if a permit application has been filed but the
initial administrative decision has not been rendered. The Committee did not
want to force current operations to shut down simply because of administrative
delay. However, the Committee believes that a firm deadline must be established
to serve as an incentive to the Secretary, the States and the operators to
comply with the Act.
54 This deadline provides the States with a reasonable period of time after
the Secretary promulgates his regulations to prepare their State
programs.(Federal regulations for coal are due 6 months after enactment, State
programs are due 12 months after that, and the Secretary must approve or
disapprove a State program within 4 months after its submission.) The Committee
urges the States to develop acceptable programs as rapidly as possible to avoid
a hiatus after the deadline. It also expects the Secretary to issue regulations
rapidly and actively assist the States to develop acceptable programs.
54 The exception for operations existing on the date of enactment recognizes
that there may be delays in the processing of applications which are not the
fault of the applicant and for which he should not be penalized. The applicant
would be subject to the requirements of the State or Federal program during this
period.
54 Subsection (b) provides that the term of permits issued under State
programs shall not exceed 5 years and shall be for 5 years if issued under a
Federal program. The Committee believes that 5 years is a reasonable time
period but since many States have 1-or 2-year permits it wishes to allow these
to continue. The permit includes the right to successive renewals if the
permittee has complied with the State or Federal program. As part of the
renewal process the regulatory authority may require new conditions or
requirements needed to deal with changing conditions.
54 In order to avoid the possibility of a permit lapsing because of
administrative neglect or delay this subsection provides that if an application
for renewal has been timely filed before expiration of the existing permit, but
not acted upon, permits are renewed by operation of law unless prior to the
expiration of the permit term the regulatory authority finds, after notice and a
hearing, that the renewal requirements have not been met.The burden of proof is
on the permittee to demonstrate compliance. If the regulatory authority fails
to act timely but finds that there is a violation, it can, of course, proceed to
revoke the permit pursuant to Section 212 of the Act.
54 To assure that no one will be locked into outdated reclamation
requirements because permits are taken out and renewed without operations being
undertaken, subsection (c) provides that permits will terminate if the permittee
has not begun operations within 3 years of the issuance of the permit.
54 SECTION 208. PERMIT APPLICATION REQUIREMENTS: INFORMATION, INSURANCE,
AND RECLAMATION PLANS
54 Section 208 describes the three principal submissions necessary for a
complete application for a permit for surface mining and reclamation operations
under a State or Federal program or for an interim permit under Section 206: (1)
administrative information; (2) a certificate of public liability insurance; and
(3) a reclamation plan.
55 Subsection (a) specifies the minimum administrative information including
names and addresses of the applicant and its officers, of any property owners or
holders of lease hold interest in the property to be mined, and of owners of all
surface areas within 500 feet of the proposed mining and reclamation site;
statement of any permits held or bonds posted by the applicant which have been
suspended or revoked since 1960; maps and topographical information; the acreage
to be affected, watersheds and streams into which drainage will be discharged,
climatic factors; and a copy of the applicant's advertisement in the local
newspaper (which must appear at least once a week for 4 successive weeks).
These requirements insure public notice, particularly to local governments and
citizens, and sufficient information to insure a meaningful hearing on the
permit application, as required in Section 209.
55 Subsection (b) requires the applicant to submit either a certificate
issued by an insurance company certifying that he has a public liability
insurance policy for the proposed surface mining and reclamation operations or
appropriate evidence that he has satisfied other State or Federal self-insurance
requirements which meet the requirements of the regulations promulgated pursuant
to the Act.
55 This insurance must be maintained in full force and effect during the
term of the permit and all renewals until reclamation operations are complete.
55 The most important submission which an applicant must make is the
reclamation plan required by subsection (c).The reclamation plan must establish
that reclamation of all affected lands in a manner which will fully meet the
detailed requirements set forth in Section 213 can be accomplished.
55 The elements of the reclamation plan are set out in Section 213(a).
55 SECTION 209. PERMIT APPLICATION APPROVAL PROCEDURES
55 This section establishes the procedures for review and approval or
disapproval of a permit application under a State or Federal program.
55 Subsection (a) provides for time limits for initial approval or
disapproval of the permit application by the regulatory authority.
55 It specifies that no permit will be issued until the performance bond
required by Section 210 has been filed. It gives the applicant a right to a
hearing on the reasons for disapproval, and requires the regulatory authority to
issue a written decision if a hearing is held.
55 Under subsection (b) no permit will be issued unless the regulatory
authority finds that (1) all the requirements of this Act and the State or
Federal program have been complied with and (2) the applicant has demonstrated
that the required reclamation can be accomplished. The Committee believes that
the burden of proof is appropriately on the applicant First, the applicant
either already possesses or is in the best position to obtain any and all
information necessary to meet the burden of proof.Second, to place the burden of
proof upon the regulatory agency would only frustrate the purposes of the
Act.Such a step would administratively and financially burden the regulatory
authority and could foster either endless delays in processing permit
applications or pro forma approval of applicants.
56 Subsection (c) provides that no operator can obtain a new or revised
permit or have an existing permit renewed if the regulatory authority finds that
he is failing to comply with any State or Federal program. This additional
sanction for noncompliance should encourage compliance by responsible operators
and prevent irresponsible ones from starting new operations.
56 Subsection (d) gives any person having an interest which is or may be
adversely affected by a proposed surface mining operation or any Federal, State,
or local government agency affected the right to file objections to any permit
application. If objections are filed, the regulatory authority must hold a
public hearing in the locality of the proposed operation.
56 Subsection (e) entitles any person adversely affected or aggrieved by the
decision of the regulatory authority to judicial review. State courts would
review decisions under State programs while Federal courts would review Federal
program decisions.
56 This entire section is designed to insure full public information about
and review of applications and to provide due process to all interested parties.
56 In determining who should have standing to participate in the
administrative and judicial review process, the Committee adopted the test
established by the Supreme Court in Sierra Club v. Morton, 405 U.S. 727 (1972).
56 SECTION 210. PERFORMANCE BONDS
56 This section sets out the requirements for one of the most important
aspects of any program to regulate surface mining and reclamation - the
performance bond. The requirements of this section will apply to interim
permits as well as State and Federal programs.
56 Subsection (a) provides that once an application is approved a
performance bond must be filed before a permit is issued. The amount of bond
must be sufficient to assure completion of the reclamation plan if the work had
to be performed by a third party at no expense to the public. The regulatory
authority sets the amount of the bond on the basis of at least two independent
estimates of these costs.
56 The bond covers the area to be mined during the initial term of the
permit. As additional land is mined the bond is increased.
56 Subsection (b) requires that bond liability extend for a period of 5
years after completion of reclamation including revegetation or for 10 years in
areas where the average annual rainfall is 26 inches or less. This extension is
necessary to assure that the bond will be available if revegetation or other
reclamation measures fail after initial accomplishment. The longer time period
for liability in arid areas recognizes that permanent reclamation, particularly
revegetation, is more difficult and uncertain in such areas. This subsection
also permits the deposit of cash and negotiable Government bonds or
certificates of deposit in lieu of posting a bond. These meet the objectives of
the bond, i.e., having a fund available to accomplish reclamation, just as
effectively as a bond.
56 Subsection (c) recognizes that some applicants can satisfy the objectives
of the bond requirement through self-insurance or bonding.
56 Subsection (d) provides that the bond or deposit may be adjusted upward
at any time if as a result of experience or changed circumstances, it is
determined to be inadequate.
57 SECTION 211. RELEASE OF PERFORMANCE BONDS OR DEPOSITS
57 This section establishes the procedures for release of all or part of the
performance bond or deposit.
57 Subsection (a) is designed to assure that there is public notice of the
release application by requiring publication of a newspaper advertisement and
letters to adjoining property owners, local government bodies, and water and
sewer agencies.
57 Subsection (b) authorizes release of all or part of the bond or deposit
if the regulatory authority is satisfied that the required reclamation has been
accomplished. No bond can be fully released until all reclamation requirements
are met and an authorized representative of the regulatory authority inspects
the surface mining and reclamation operations covered by the bond.
57 Subsection (c) provides for written notice to the permittee of reasons
for denial of release and recommended corrective actions.
57 Subsection (d) provides for a hearing when a request is made by any
person having an interest which is or may be adversely affected by the failure
of the permittee to have complied with the requirements of the Act or by a
governmental body.The hearing must be scheduled in a manner so as not to unduly
burden the permittee with continuous hearings when a bond is released in phases,
but so as to insure public participation before so much of the bond is released
as to make forfeiture of the remainder, rather than full accomplishment of
reclamation, inviting. Therefore, the section requires that the hearing be held
after 50 percent but before 90 percent of the bond is released.
57 SECTION 212. REVISION AND REVOCATION OF PERMITS
57 This section describes procedures and time limits for revision and
revocation of permits by the regulatory authority.
57 Subsection (a) spells out revocation procedures including written notice
detailing the reasons for revocation, a reasonable time for the permittee to
take corrective action, and a hearing, if requested by the permittee.
Violations of permit conditions, the State program, or the Federal Program are
sufficient to invoke revocation. Consistent with the "due process" concern
throughout the Act, revocation is regarded as a last resort, after cease and
desist orders and other procedures have failed.
57 Subsection (b) provides that the permittee can request a revision of the
permit. The regulatory authority is to establish guidelines for the scale or
extent of a revision request for which all permit application information and
procedural requirements, including notice and hearing, will apply. However, (1)
any revisions which propose a substantial change in the intended future use of
the land (such as from a residential development to a shopping complex) or
significant alterations in the Reclamation Plan (e.g., changes in treatment of
surface and ground water) must, at a minimum, be subject to the permit
application notice and, hearing requirements, and (2) any extensions to the area
covered by the permit, other than incidental boundary revisions (such as
additional footage to permit the better siting of an access road), may be
accomplished only through application for new permits, not through revision
applications.
58 Revisions will not be approved unless the regulatory authority finds that
reclamation required by the Act and the State or Federal program can be
accomplished under the revised reclamation plan. This is the same requirement
that applies to approval of the original permit.
58 Subsection (c) provides that no transfer, assignment, or sale of the
rights granted under a permit may be made without the written approval of the
regulatory authority.
58 SECTION 213. CRITERIA FOR SURFACE MINING AND RECLAMATION OPERATIONS
58 Section 213 is the substantive heart of the bill. It contains the
criteria which would be required to be met by all surface mining and reclamation
operations under a State program (section 204), a Federal program (section 205),
the Federal Lands Program (section 217), or the State or Federal interim permit
(section 206 and 217). These requirements are set out in two general
categories.
58 Subsection (a) enumerates the information which, as a minimum, would be
required to be set forth in any reclamation plan submitted as part of an
application for a surface mining permit. Subsection (b) enumerates the minimum
requirements which would be required to be placed upon any permittee by
regulations promulgated by the regulatory authority. The Committee expects the
regulations for this section promulgated by the Secretary and the State
regulation authorities will expand on these provisions.
58 Subsection 213(a). Reclamation plans. There is general agreement that,
since careful preplanning is the key to successful reclamation, submission of a
reclamation plan prior to issuance of a mining permit is an essential element of
effective regulation. This subsection enumerates the minimum items of
information required in any reclamation plan submitted by an applicant for a
permit to conduct surface mining operations. A reclamation plan is required by
subsection 208(c) as part of the permit application. The plan is the basis by
which the regulatory authority determines the feasibility and adequacy of
reclamation which is proposed to be done by the applicant under the terms of his
permit. It also provides that information provided in the reclamation plan be
in the degree of detail necessary to demonstrate that reclamation can be
accomplished. The burden or proof is on the applicant. The following specific
items of information are required.
58 213(a)(1). A description of the condition of the land area which will be
effected by the proposed mining and reclamation must be provided.This
description is intended to include general topography, vegetative cover, the
cultural development. If the area has been previously mined, the description
should cover both the uses of the land existing at the time of the application
and those which existed prior to any mining at the site. The description must
also include an evaluaton of the capability of the site to support a variety of
uses prior to any mining disturbance. This description should give
consideration to soil and foundation characteristics, topography, and vegetative
cover.
58 The description is to serve as a benchmark against which the adequacy of
reclamation and the degradation resulting from the proposed mining may be
measured. It is important that the potential utility which the land had for a
variety of uses be the benchmark rather than any single, possibly low value, use
which by circumstances may have existed at the time mining began.
59 213(a)(2). A similar description is also required of the use to which
the land affected by the proposed mining is to be put following reclamation and
its capacity to support a variety of alternative uses. The relationship of the
proposed use to land use policies and plans existing at the time the reclamation
plan is filed must also be prescribed. The comparison of this description with
that required by 213(a)(1) will provide an evaluation of the net impact which
the proposed mining and reclamation will have upon the usefulness of the area
affected.
59 213(a)(3). This section requires a statement of the techniques and
equipment which will be used in the mining and reclamation operations. This
should be a complete statement adequate to insure that the reclamation proposed
to be accomplished is capable of achievement and that each of the requirements
set forth in subsection 213(b) and any regulations promulgated pursuant to that
subsection can be complied with.
59 A cost estimate for the reclamation is also required as a basis for
review of the adequacy of the performance bond required by section 210.
59 213(a)(4). The techniques and procedures which will be used by the
applicant to insure compliance with all applicable air and water quality laws
and regulations, and health and safety standards must be described in sufficient
detail to permit an evaluation of their adequacy and probable effectiveness.
59 213(a)(5). The reclamation plan must set forth a description of the
particular considerations which have been given to the conditions found at each
site: for example, the effect of precipitation, temperatures, wind, and soil
characteristics upon revegetation at the site. Furthermore, there must be a
statement of the consideration which has been given to new or alternative
reclamation technologies.
59 It is probable that a number of surface mining and reclamation
operations, particularly those in the same general locality, will be similar in
terms of general problems and technologies. The purpose of this requirement is
to insure that reclamation plans do not become stereotypes and ignore the unique
conditions of specific sites.
59 213(a)(6). There must be a discussion of the potential recovery of the
mineral resources of the site to be mined. To the extent that any portion of
the resource will not be recovered, the reasons and justification for
nonrecovery shall be set forth.
59 213(a)(7). A detailed time schedule for the completion of the
reclamation which is being proposed is to be provided.
59 213(a)(8). A statement is required demonstrating that the permittee has
considered all applicable State and local land use plans and programs.
59 213(a)(9). A disclosure to the regulatory authority of all rights and
interests in lands held by the applicant which are contiguous to the lands
covered by the permit application is required. The purpose of this disclosure
is to provide the regulatory authority with information on the prospective
long-term plans of the applicant in the immediate vicinity. The bill would not
require public disclosure of this information, however, it does not preclude
State law from requiring disclosure of part or all of it.
60 213(a)(10). A disclosure to the regulatory authority of the results of
test borings made by the applicant in the area covered by the permit and the
results of chemical analyses of the coal or other minerals and overburden is
required. This information is essential for the critical evaluation of the
adequacy of the reclamation plan by the regulatory authority and the interested
public. Because of its proprietory nature, information about the mineral (not
the overburden) will be kept confidential if requested by the applicant.
60 213(b). Reclamation criteria. This subsection sets forth the minimum
criteria which must be required by State or Federal programs, the Federal Lands
Program, and the interim permit programs regulating surface mining and
reclamation operations for coal.
60 In this subsection and elsewhere in the bill, the Committee has used the
term "practicable" to modify certain requirements. It is the intent of the
Committee that this term not be considered solely in the context of economic
feasibility. Profitability does not determine practicability. Although
economics is a consideration in determining practicability, at least equal
concerns here are those of technical feasibility and environmental protection.
60 213(b)(1). The basic criterion for reclamation is to require all surface
areas to be returned to a condition at least fully capable of supporting the
uses which they were capable of supporting prior to any mining. In other words,
the original utility of the site for a variety of purposes is to be maintained
or enhanced. There is provision for return of the surface to a condition
capable of supporting alternative uses suitable to the locality. This can be
done where approved by the regulatory authority pursuant to the permit
application approval process.
60 Section 213(b)(2). This provides that reclamation will include the
backfilling, compacting (where necessary) and regrading of all disturbed areas,
to restore the land to approximate original contour, and eliminate all
highwalls, spoil piles, and depressions, except where there is insufficient
overburden produced throughout the mining operation to do so. This provision is
crucial to achieving the goal of S. 425, namely, to insure restoration of
surface mined land to a condition useful for a range of postmining land uses.
60 In both area and contour mining, the retention of highwalls results in
the isolation of land - usually land above the mining operation and not
otherwise affected by mining. Such isolated land, surrounded by a highwall of
30 to 200 feet, is preempted from any future land use, and is inaccessible to
wildlife as well as to man. In heavily surface mined areas, such isolation has
caused severe problems not only by precluding use of the land, but also by
denying access in case of fire. There have been instances in which forest fires
have burned unchecked because the forest was surrounded by highwalls and could
not be reached by firefighters.
60 Recognizing these problems, States which have experienced heavy surface
mining have taken steps to prevent the isolation of land by mining operations.
Ohio, Pennsylvania, and West Virginia have legislatively and administratively
limited the retention of highwalls. Ohio and Pennsylvania usually require
complete backfilling of all highwalls.West Virginia limits the permissible
height of highwalls left after mining. However, restricting the height of
highwalls, while it does significantly reduce the adverse esthetic impacts of
surface mining, does not deal adequately with the problem of isolation. The
Committee therefore feels strongly that backfilling to original contour as
required in this bill is essential to good reclamation.
61 This practice is not new to the mining industry. In recent years, the
industry trade journals have reported mining operations in West Virginia,
Pennsylvania, and Tennessee that have completely eliminated the highwall, using
a number of different mining and reclamation techniques. Since the passage of
the 1971 West Virginia surface mining law, a number of mining companies in that
State have voluntarily adopted the policy of placing no spoil on outslopes, and
totally eliminating highwalls. Although costs vary according to mining
technique, operators who do restore to original contour report that overall
costs are not much different from those incurred for lower levels of
restoration.In cases where mining techniques were altered to minimize the
handling of overburden, total mining costs have been reported to decline.
61 The Committee believes that this requirement will significantly increase
the range of possible post mining land uses for surface mined areas. It will
eliminate the long useless ribbons of benches in mountainous areas, which may be
as wide as 200 feet and run for miles along mountainsides. In addition, it will
not preclude such current practices as creation of a reservoir for recreational
purposes, or the creation of flat land by "mountain-top" mining. Under the
definition of "backfilling to approximate original contour," the regulatory
agency has the discretionary authority to permit retention of water for creation
of a reservoir or recreation area. "Mountain-top" mining is surface mining on
steep slopes in which the entire top of a mountain is removed in a process
similar to area mining. This can result in the creation of flat land, which can
be used, for example, for airports. Housing developments or industrial parks
can also be built on such land if the necessary services (electricity, water,
gas) can be provided to these more remote areas. Since this mining method does
not leave highwalls, no backfilling is needed. Further, in such instances there
is usually sufficient overburden to restore the original contour of the mountain
top, if the planned postmining use of the land does not require flat land.
61 It has been suggested that in adopting this provision, the Committee is
applying nationwide a standard used by the State of Pennsylvania and which, for
reasons of geology and terrain, is not applicable beyond that State. There are
a number of errors in this assumption. First, while inclusion of this provision
in this bill was supported by the Pennsylvania Department of Environmental
Resources and by both Senator Schweiker and Senator Scott of Pennsylvania, the
language adopted is not identical to the Pennsylvania law. Second, although
there are some variations in the geology of different coal seams and fields,
there are also certain geological constants: sandstone, slate, and shale are
found wherever there is coal. This same basic geology of sandstone and slate
overburden is common not only to Pennsylvania and West Virginia, but also in the
West.
62 Third, the degree of slope on which a mine is located is immaterial to
the feasibility of backfilling to original contour. Testimony to this effect
was presented this summer to the West Virginia Legislature.In West Virginia,
complete backfilling is required now on slopes up to 30 degrees. As reported in
the trade journals of that State at least two large West Virginia mining
companies have adopted a policy of restoring to approximate original contour
regardless of slope. Surface mine operators in Pennsylvania have adopted similar
policies to meet that State's requirement that all highwalls be backfilled to
approximate original contour.
62 Finally, and most important, implicit in these arguments is the
assumption that the requirements of "regrading to approximate original contour"
is a requirement to use a particular mining technique widely used in
Pennsylvania called the modified block-out. This is not the case. The
Committee is prescribing performance standards to achieve a certain degree of
reclamation - the Committee has no intention of dictating how these standards
are achieved. In fact, surface mines in West Virginia and Tennessee are
reclaiming to approximate original contour, backfilling all highwalls, not using
the modified block cut, but retrieving overburden from the spoil pile on the
downslope. Obviously, this technique requires more handling of the spoil, and
may be more costly than the block-cut technique, but it is being done.
62 The Committee does not intend to place undue hardship on surface mine
operators by this requirement.For this reason they have included a provision
that where overburden is insufficient, even allowing for volumetric expansion,
backfilling to approximate original contour will not be required. Expansion of
overburden varies somewhat with mining technique and overburden characteristics:
in most operations a "swell factor" of 30 to 50 percent can be expected. This
means that all mines with a stripping ratio of 3:1 or higher (which covers most
mines) will likely be able to backfill to original contour as required by this
section. In those instances where overburden is not sufficient for complete
restoration of approximate original contour, the highwall must be backfilled and
reduced to a stable angle of repose and otherwise reclaimed to an
environmentally sound condition. Highwall reduction and access to the land
above the highwall in these instances could be greatly facilitated by including
in the mining and reclamation plan, plans for angle blasting of the last cut, to
achieve a sloping rather than vertical highwall. Such possibilities only serve
to emphasize the need for integrated preplanning for all mining and reclamation
activities to minimize the environmental impacts of surface mining operations.
62 213(b)(3). All areas affected by the mining and reclamation operations
shall be stabilized by means of compaction where advisable and by means of
vegetation which will control erosion both immediately after the reclamation is
completed and permanently in the long term.A stable and self-regenerating
vegetative cover is to be established where cover existed prior to mining.
Whenever possible native vegetation is to be employed.
62 There are situations (such as heavy clay soils) in which compaction of
surface soils may be inadvisable or detrimental to the success of revegetation
and should not be required. In some situations non-native species of
vegetation may be required to achieve successful revegetation or they may be
preferable to native species for environmentally productive or esthetic reasons,
and should be permitted. There may be a need for establishment of vegetation
where none existed prior to mining to control erosion.
63 213(b)(4). The topsoil to be removed from the mined area is required to
be regregated and preserved so that it will be available to be used for
reclamation purposes. The topsoil need not be stored and replaced on the same
area from which it was removed if it is replaced on the top layer of another
part of the mined area as part of an ongoing reclamation process.
63 Other methods of soil conservation are permitted if the regulatory
authority determines that another method of soil conservation would be at least
equally effective for revegetation.
63 213(b)(5). Offsite areas must be protected from damages caused by slides
which might occur during mining and reclamation operations. Furthermore, all
waste accumulations and damages must be contained within the permit area. This
provision not only serves to protect landowners not associated with the mining,
it also insures that the permit will encompass an area which covers the entire
mining activity, including the storage or disposal of spoil and waste.
Therefore, the entire activity will be subject to all of the terms of the
permit. The Committee intends that permits be limited to the minimum area
necessary to accommodate the operation.
63 Section 213(b)(6). This section provides that, when mining on steep
slopes, no soil, spoil, debris, or other waste material be placed on the natural
downslope below the bench or mining cut, except that the spoil from the initial
cut may be placed in a limited and specified area of the downslope if the
permittee can demonstrate that it will not slide, and that the other
environmental requirements of the bill can still be met. This is a crucial
provision to assuring that the environmental impacts of mining are minimized,
and confined to the permit area. Most of the damage that occurs as a result of
surface mining on steeper slopes results from placing spoil on the downslope:
landslides, erosion, sedimentation, flooding, and so forth. In areas with both
steep slopes and significant rainfall, these problems are further aggravated.
The least environmental damage usually results when the deposition of overburden
on otherwise undisturbed outslopes is minimized.
63 Recognizing the importance of spoil management to environmental
protection, most Appalachian States do restrict spoil placement on the downslope
and prohibit fill benches on the steepest slopes (over 30 degrees in West
Virginia; over 33 degrees in Maryland; and over 28 degrees in both Kentucky and
Tennessee). West Virginia has recently adopted administrative regulations that
require total spoil management.
63 Under the requirements of S. 425, the only spoil that may be placed on
the downslope of the mining operation is that from the initial cut. In adopting
this provision, it was the clear understanding of the Committee that this
initial cut consisted only of that original excavation made to gain first access
to and first expose the coal. In most instances this initial cut should be less
than 100 feet along the contour of the slope: enough room simply to install the
first set of equipment and remove the first cut of coal. The Committee does not
intend or expect that "initial cut" could be construed to mean the entire first
contour cut into a seam.
64 The purpose of the Committee in adopting this measure was to assure that
spoil would only be deposited on already mined and disturbed areas, and not on
otherwise undisturbed land. The exception allowed for spoil placement from the
initial cut in a specified spoil disposal area is a recognition of the fact that
at the outset of a new mining operation, there is no undisturbed land except for
the access road, which would not likely be suitable for spoil disposal.
64 The downslope site for disposition of the spoil from the initial cut, is
to be a limited and specified area: the entire downslope or immediate downslope
cannot be considered suitable disposal areas for this spoil. The Committee
expects that soil disposal at a specified site will be done in such a manner as
to prevent slides and erosion, including compaction and vegetation if necessary.
64 It must be understood a mine operator need not necessarily use the
downslope for spoil disposition if, for example, the permit area includes flat
land which may be used, if approved by the regulatory authority, as a spoil pit
for the spoil from the initial cut. In fact, the burden of proof rests with an
operator to demonstrate why he should be allowed to dispose of any spoil on the
downslope. Particularly in areas where slides on steep slope mining operations
have been common occurrences, the operator must demonstrate what different
practices he will use to prevent such slides and erosion in the new operation.
64 Wherever this spoil is placed, it must be in such a manner that, should
it begin to slide or erode heavily, the spoil material can be removed by the
mine operator, and replaced elsewhere.
64 213(b)(7). The quality of surface and groundwaters in the area is to be
protected and the quantity of such waters is to be considered both during and
after the term of the mining and reclamation operations. Specifically:
64 (A). Acid mine drainage must be prevented from entering surface and
groundwater sources by preventing the contact of water with acid forming
materials, retaining acid waters, or treating acid waters to acceptable
standards of acidity and iron content before releasing them to water courses.
Whichever means are adopted, the reclamation plan must provide for continuation
of the protection after the completion of reclamation for so long as may be
required.
64 (B). During the course of mining and reclamation activities at the site,
regulations shall insure that effective practices are observed which will
minimize to the extent practicable the adverse effects of water runoff from the
disturbed area both during and after mining. It should be noted that this
provision recognized the practical impossibility of preventing all silt runoff
during earth moving operations. Reclamation standards require, however, that
remaining reclaimed surfaces be graded and otherwise protected to prevent
further erosion.
64 (C). Bore holes, shafts, and wells are to be appropriately treated to
prevent acid mine waters from draining out of them or into groundwater bodies by
means of them.
65 (D). Surface waters may not be removed, interrupted, or destroyed during
mining and reclamation. Surface waters may be relocated if consistent with the
reclamation plan.
65 (E). The regulatory authority may prescribe other practices or methods
to protect water quality and quantity.
65 Section 213(b)(8). The purpose of this paragraph is to regulate the
surface operations incident to underground coal mining so as to eliminate the
serious adverse impacts they have on both the human and natural environment,
including subsidence, air pollution and land disturbance from mine fires, and
unsightly and unsafe disposal of mine and processing plant wastes.
65 This provision requires that mine shafts, tunnels, and entryways be
properly sealed, and that exploratory holes be filled. It also requires that
all mine and processing waste and tailings be disposed of by stowing or
backfilling in the mine excavation to the maximum extent practicable. Where,
for some reason, such disposal by back-filling mine voids is not possible,
wastes are to be disposed of in a stable and environmentally sound manner,
compatible with surrounding terrain, and without polluting surface or ground
waters. This section further provides that where processing wastes are used as
water impoundments, these impoundments must be located such that a failure would
not endanger public health and safety, and be stably constructed in accordance
with the standards for construction of impoundment structures issued under
Public Law 566.
65 213(b)(9). The disposal of debris from mining and reclamation operations
must be done in a manner which will prevent contamination of surface or ground
waters.
65 213(b)(10). Explosives are to be used in conformance with existing State
and Federal law and regulations of the regulatory authority.
65 213(b)(11). Reclamation efforts are to proceed as contemporaneously as
practicable with the mining both to avoid the situation where large unreclaimed
areas would be permitted to exist for the duration of adjacent mining operations
and to provide experience with the results of reclamation procedures and
opportunity for improvements as the work progresses.
65 213(b)(12).Such other regulations may be promulgated as are found to be
necessary to achieve the objectives of the bill, particularly to insure that
where surface disturbance is sustained, the maximum practicable recovery of the
mineral resource is achieved, with minimal environmental damage.
65 SECTION 214. INSPECTIONS
65 This section establishes the minimum information requirements which a
permitee must fulfill - either through reporting, monitoring, or affording
rights of entry to the regulatory authority's inspectors - once a permit is
granted.
65 Subsection (a) directs the Secretary of the Interior to make whatever
inspections are necessary to evaluate the administration of State programs or to
develop and enforce any Federal program. The section provides that authorized
representatives of the Secretary are to have a reasonable right of entry to
permitee's operations. "Reasonable" is to be interpreted so as not to overly
burden the permittee but also provide the inspectors with the best possible
opportunities to evaluate the operations in relation to the requirements of the
Act.
66 To insure that the requirements of this Act are met, subsection (b)
directs the regulatory authority to require the permittee to keep records, make
reports, install and maintain monitoring equipment, and provide other necessary
information which will assist the authority to carry out the purposes of the
Act. For example, the permittee might be required to report periodically on
acres mined; acres reclaimed; deviations, if any, from the reclamation plan, in
particular, its time schedule.
66 This subsection also establishes the right of entry to and inspections of
the surface mining and reclamation operations, premises where records are kept,
and the records themselves by the regulatory authority.
66 Subsection (c) provides that the inspections are to occur on a random
basis averaging not less than one per month. They must be conducted without
prior notice, and need not be during normal working hours. However the operator
must be given an opportunity to accompany the inspector. Inspection reports
must be filed upon their conclusion. Copies of these reports must be available
for public review and to the permittee. The "irregular basis" and "without
prior notice" requirements are to insure that the permittee is not capable of
making merely "cosmetic" or momentary changes in an operation which otherwise
would not meet the requirements of the Act because he has been forewarned of an
inspection. Inspections are the heart of any regulatory program and when they
become either too "friendly" or too "infrequent" the regulatory program
inevitably suffers a loss of effectiveness.
66 Subsection (d) requires that permits and permittees' reclamation plans
must be filed on public record with appropriate officials in each county or
other appropriate subdivision of the State in which the operations covered by
the permits will be conducted. The purpose of this provision is to insure
readily accessible information to concerned citizens and affected local
governments so that their participation, as provided for throughout the Act,
will be meaningful and effective.
66 Subsection (e) requires each permittee to conspicuously maintain at the
entrances to his operations a clearly visible sign showing his name, business
address, and phone number, and his permit number.The purpose of this provision
is identical to the one directly above.
66 SECTION 215. FEDERAL ENFORCEMENT
66 This section outlines the Federal sanctions under a Federal program or
for violations of the Act under a State program.
66 Subsection (a) provides that if the Secretary has reason to believe that
a violation exists in a State with an approved State program he notifies the
State regulatory authority. The regulatory authority is directed to take
corrective action pursuant to the State program. This carries out the Act's
basic concept that the States should be responsible for regulation.
66 Subsection (b) provides that when a violation which creates a danger to
life, health, or property or would cause significant harm to the environment is
discovered by Federal inspection the Secretary or his inspectors may issue an
immediate cease and desist order. Where such an order is issued a hearing must
be held within 3 days if requested by the alleged violator.
67 Subsection (c) provides for Federal enforcement when the Secretary
determines violations of an approved State program are so widespread as to
indicate a failure of the State program are so widespread Time limits are
provided for the State to take corrective action. A public hearing is also
required before Federal enforcement would occur. Under Federal enforcement, the
Secretary must enforce all permit conditions required under the Act either by
issuing an order for compliance or bringing a civil or criminal action. Of
course, if the State's unwillingness to enforce its program continues for any
length of time, the Secretary is expected to promulgate and implement a Federal
program pursuant to Section 205 rather than to enforce those aspects of the
State program and those requirements of permits issued under the State program
which are required by the Act. In such cases the State would no longer be
eligible to receive financial aid under sections 503, 504, and 505 of this Act.
67 Subsection (d) describes in greater detail the contents of any order
issued by the Secretary.
67 Subsection (e) provides for the institution of civil action for
restraining orders, injunctions, or other appropriate remedies, by the Attorney
General, at the request of the Secretary of the Interior. All civil actions are
to be in the United States district court for the district in which the affected
operation is located.
67 Subsection (f) provides for a civil penalty to be assessed against any
person who after notice of failure to comply and the expiration of any period
allowed for corrective action, continues to fail to comply with the Act, any
Federal program, or any permit condition required by the Act. The penalty must
not exceed $1 ,000 per day. It also provides for a criminal penalty for anyone
who knowingly or willfully violates the requirements of the Act, any Federal
program, or any permit condition required by the Act, or falsifies or tampers
with any records required to be maintained by the Act. The criminal penalty is
to consist of a fine of not more than $10,000 or imprisonment for not more than
6 months or both.
67 Subsection (g) provides for application of this section's penalties when
the person in violation is a corporation or other entity.
67 Subsection (h) states that this section's remedies may be exercised
concurrently and are in addition to any other remedies afforded by the Act or
any other law or regulation.
67 SECTION 216. DESIGNATION OF LAND AREAS UNSUITABLE FOR SURFACE MINING
67 This section sets out the guidelines for one of the required elements of
a State or Federal program - the establishment of a process for designation of
areas as unsuitable for surface mining. The process is designed to develop the
technical data needed to enable the regulatory authority to make objective
decisions as to which, if any, land areas of a State are unsuitable for all or
certain types of surface mining.
67 The Committee wishes to emphasize that this section does not require the
designation of areas as unsuitable for surface mining. The States could
determine that no lands should be so designated.On the other hand, a State could
prohibit all or some forms of surface mining entirely. This section recognizes
that surface mining is a very significant use of land which even with
stringent reclamation requirements has a severe impact on the resources
involved. The fact that a strippable coal deposit exists in a particular tract
of land does not mean that strip mining is the most appropriate use of that
tract. For this reason, the bill calls for close coordination of the
designation process with existing land use plans and programs. ("Existing"
refers to those plans and programs in existence at the time the review takes
place.) It is the intent of the bill that the review will be a continuing
process, and requires that the initial review be completed within 3 years after
implementation of the State or Federal program.The designation process also
serves to let surface mine operators know in advance whether and under what
conditions lands may be surface mined. This gives them a better basis for
planning future operations.
68 Subsection (a)(2) sets out three types of areas that may be designated
unsuitable for all or certain types of surface mining. These are (1) areas
where reclamation is not physically or economically possible, (2) areas where
surface mining would be incompatible with existing land use plans and programs,
and (3) areas of critical environmental concern. The definition of "areas of
critical environmental concern" is identical to the definition in S. 268 - The
Land Use Policy and Planning Assistance Act of 1973 - as passed by the Senate
earlier this year. In order to preclude duplication of effort or inconsistent
designations, the bill specifies that if a State land use plan which designates
such areas is in effect, the designations in that plan are conclusive for
purposes of this Act.
68 Enactment of the bill would place all coal owners and surface mine
operators on notice that there is a possibility that lands may be designated as
unsuitable for surface mining.
68 However, to preclude shutdowns of existing operations, this subsection
does provide that no area may be designated unsuitable for surface mining (1) on
which surface mining is being conducted on the date of enactment of the Act; (2)
where a permit has been issued pursuant to this Act, and (3) or where firm plans
and financial commitments for such operations are in existence prior to the
enactment of the Act. Mere ownership of the coal resource with the intent to
surface mine would not qualify for the exemption from designation as unsuitable
for surface mining based on "firm plans for and substantial legal and financial
commitments". In order to preclude designation, it must be established that
specific plans and specific contracts for sale of coal and purchase of necessary
equipment for an actual mining operation were in existence on the date of
enactment.
68 Subsection (a)(2) also provides that the designation process must include
an appeals process concerning the designation of areas as unsuitable for mining
or the termination of such designations. This provision, together with
subsection (a)(4) which provides a right to petition the regulatory authority to
have an area designated as unsuitable or to terminate such a designation,
assures that both surface mine operators and those wishing to preclude surface
mining have an opportunity to present their case for or against designation.
68 Subsection (b) directs the Secretary of the Interior to review the
Federal lands to determine whether areas of Federal lands are unsuitable for all
or any types of surface mining. The Secretary's review is subject to the same
criteria and procedures as the review for non-Federal lands.If the Secretary
determines that an area of Federal lands is unsuitable for all forms of
surface mining, he is directed to withdraw it from coal leasing. If the
Secretary determines that certain types of surface mining should not be allowed,
he is authorized to condition any mineral leases to so limit surface mining.
69 Subsection (c) sets out two categories of surface mining operations which
will not be permitted unless they were in existence on the date of enactment of
the Act. The first category includes all operations on lands within the
boundaries of units of national systems established to preserve special values
of the lands involved such as the National Park, Wildlife Refuge, and Wilderness
Preservation Systems.
69 The second category includes operations which will adversely affect any
publicly owned parks unless approved jointly by the regulatory authority and the
agency with jurisdiction over the park. This includes operations involving coal
underlying park lands and operations outside the park boundaries which would
adversely affect the park. The Committee expects the regulatory authority and
the park agency to maintain close coordination to assure proper protection of
all parks.
69 SECTION 217. FEDERAL LANDS
69 This section requires the Federal Government to "put its own house in
order" at the same time that, through this legislation, it requires the States
to establish strong regulatory programs.
69 Subsection (a) requires the Secretary of the Interior to promulgate and
implement a Federal Lands Program applicable to all surface mining and
reclamation operations taking place pursuant to any Federal law on any Federal
lands no later than six months after enactment of the Act. The Federal Lands
Program must, at a minimum, incorporate all of the Act's requirements and where
the Federal lands are in a State with an approved State program, the
requirements imposed by the State. Thus, while the Secretary could, for
example, impose more stringent reclamation requirements on Federal lands than
were required on non-Federal lands in the State, he could not permit less
stringent requirements.
69 Subsection (b) provides that the requirements of the Act and the Federal
Lands Program are to be incorporated in all Federal mineral leases, permits, or
contracts issued by the Secretary involving surface mining and reclamation
operations.
69 Subsection (c) provides for joint Federal-State Programs covering permits
on land areas which contain State and Federal lands either interspersed or
checker-boarded within the scope of a single permit or more than one permit for
essentially a single operation and which, for conservation and administrative
purposes, should be regulated as single management units. The purpose of this
provision is to alleviate a significant problem in Western mining.Where Federal
and non-Federal lands are checker-boarded, mining operators could find
themselves working under two separate permits, two separate bonds, and two
entirely different regulatory systems - Federal and State. The joint
Federal-State programs should allow the operator to conduct his operation under
a single regulatory system. In order to implement joint Federal-State programs
the Secretary is authorized to enter into agreements with the States, to
delegate authority to the States, or to accept a delegation of authority from
the States.
70 Subsection (d) makes it clear that except as provided in subsection (c)
the Secretary is not to delegate to the States his primary authority or
jurisdiction to regulate or administer mining or other activities on the Federal
lands.
70 Subsection (e) provides that on Federal lands no new surface mines will
be started or existing operations expanded by more than 15 percent of the area
affected in the previous 12 months until the Secretary has implemented the
Federal Lands program or unless the operator obtains an interim permit.
70 The Committee feels very strongly that stringent reclamation requirements
must be developed before any new or expanded coal surface mining operations are
permitted on Federal lands. The Committee expects the Secretary to meet the
6-month deadline for implementation of this program established by subsection
(a). However, it is possible that unforeseen delays may prevent timely
compliance. In order to avoid locking up Federal coal deposits because of these
delays, this section authorizes the Secretary to issue interim permits for new
and expanded operations for 22 months after enactment of the Act. As is the
case with interim permits on non-Federal lands issued under section 206, Federal
interim permits must comply with all requirements of the Act, particularly
Sections 208, 210 and 213.
70 SECTION 218. PUBLIC AGENCIES, PUBLIC UTILITIES, AND PUBLIC CORPORATIONS
70 This section applies the requirements contained in the Act to public
corporations, public agencies, and publicly owned utilities, including, for
example, the Tennessee Valley Authority, which engage in surface mining.
70 SECTION 219. CITIZEN SUITS
70 Section 219 provides for citizen participation in the enforcement of the
Act by civil law suits (1) against any person who is alleged to be in violation
of the Act or an order of the regulatory authority or (2) against the regulatory
authority for alleged failure to perform a nondiscretionary act or duty.
70 Suits may be brought by "any person having an interest which is or may be
adversely affected". The Committee intends that this includes persons who meet
the requirements for standing to sue set out by the Supreme Court in Sierra Club
v. Morton (405 U.S. 727 (1972)).
70 Subsection (b) requires that no action for violation of the law may be
started for 60 days after notice of the alleged violation to the alleged
violator, the Secretary, and the State in which the violation occurs. If the
regulatory authority begins a civil action against the violation, no court
action could take place on the citizen's suit. The 60-day waiting period does
not apply when the violation or failure to act constitutes an imminent threat to
the plaintiff's health or safety or would immediately affect a legal interest of
the plaintiff.
70 Under subsection (c) actions for violations of the law or regulation may
be brought only in the judicial district in which the surface mining operation
involved is located.
71 Subsection (d) provides that the court may award costs of litigation to
any party and require a bond where a temporary restraining order or
preliminary injunction is sought.
71 This section is not intended to override the specific provisions of
Sections 209 and 211 of the bill which provide more precise requirements for
citizen participation in the permit application and performance bond release
proceedings.
71 The Committee believes that citizen suits can play an important role in
assuring that regulatory agencies and surface operators comply with the
requirements of the Act and approved regulatory programs. The possibility of a
citizen suit should help to keep program administrators "on their toes."
SECTION-BY-SECTION ANALYSIS TITLE III - ABANDONED AND UNRECLAIMED MINED
AREAS
71 While Title II deals with existing or future surface mining
operations, Title III is addressed to the correction of the worst effects of
previous surface mining operations.The increasing national awareness of the need
for surface mining regulation has been based upon observation of the past
adverse impacts of surface mining. The past surface mining which presents the
greatest reclamation problem and to which this Title is directed is that
associated with lands which were never adequately reclaimed and are now
abandoned.
71 SECTION 301. ABANDONED MINE RECLAMATION FUND
71 There is created in Section 301 an "Abandoned Mine Reclamation Fund." The
Fund will have an initial appropriations authorization of $1 00 million. In
addition the Fund will be augmented by moneys derived from the sale, lease, or
rental of land reclaimed pursuant to Section 302, from any user charge imposed
on or for land reclaimed pursuant to Section 302, and miscellaneous receipts
accruing to the Secretary through the administration of the Act which are not
otherwise encumbered.
71 SECTION 302.ACQUISITION AND RECLAMATION OF ABANDONED AND UNRECLAIMED
MINED AREAS
71 This Section authorizes the Secretary to use the moneys of the Fund to
reclaim abandoned land which has been subjected to the worst ravages of past
surface mining activities or has suffered subsidence from past underground
mining activities.
71 Subsection (a) establishes that acquisition of any interest in land or
mineral rights for reclamation purposes is a public use or purpose, even if the
Secretary plans to hold the reclaimed land as open space or for recreation or to
resell it.
71 Subsection (b) authorizes the Secretary to acquire abandoned and
unreclaimed land or any interest therein by purchase, donation, or otherwise.
Prior to making any acquisition, the Secretary is required to make a thorough
study of the available tracts. Based upon the study, the Secretary is to select
lands for purchase according to the priorities of subsection (i).
71 Subsections (c) and (d) establish the procedures for condemnation of
abandoned and unreclaimed land for land for which title cannot be established.
Immediate taking procedures are authorized when the Secretary determines that
time is of the essence because of the likelihood of continuing or increasingly
harmful effects upon the environment which would substantially increase the cost
or magnitude of reclamation, or of continuing or increasingly serious threats t