Testimony of Robert J. Uram Director Office of Surface Mining Reclamation and Enforcement U.S. Department of the Interior before the Subcommittee on Forests and Public Lands Committee on Energy and Natural Resources U.S. Senate May 2, 1996 Mr. Chairman and Distinguished Members of the Subcommittee: I appreciate the opportunity to appear before you today to discuss S. 1401, a bill to amend the Surface Mining Control and Reclamation Act. The Administration strongly opposes S. 1401, and my statement today sets forth the reasons why. Before discussing the specific provisions of S. 1401 to which we object, I would like to provide some historic context for your consideration of this legislation. The relationship of the States, the coal industry, coal field citizens, and the Office of Surface Mining has frequently been a rocky one in the 18 years since enactment of the Surface Mining Act. Some States resisted OSM's efforts to assure a level regulatory playing field as required by the Act, even unsuccessfully suing the Federal government over its constitutionality. The coal industry has legally challenged almost every major regulation proposed by OSM to implement the Act, as has the environmental community. To state that implementation of SMCRA has been contentious and litigious is to state the obvious. In fact, legal challenges by the States, industry, and environmental groups to OSM's regulatory program were so frequent that one attorney reviewing the title of the litigation in Federal District Court -- In re: Permanent Surface Mining Program -- facetiously stated that he understood the term to mean that the litigation itself was permanent. But, despite the strife and turmoil, over the past few years a more important reality has begun to emerge, one frequently overlooked in this contentious history. And that is simply this: the Surface Mining Control and Reclamation Act is generally working. And it is working in large measure, I think, because of the regulatory stability that has gradually come to the Federal/State relationship which is so integral to the Act. That relationship has been a difficult one but it is a relationship that nonetheless is working. It is working to assure that coal surface mining takes place in an environmentally safe manner, that all mines are properly reclaimed, that the States have primary enforcement and permitting authority, and that Americans who reside in West Virginia hollows have the same legal protections from abusive coal mining practices as Americans who reside in the Powder River Basin of Wyoming. This evolving Federal/State partnership is based roughly on the following premise set forth in the Act: the States are the primary regulatory authorities, while the Office of Surface Mining assures that there is a basic, level regulatory playing field, and the Act is enforced in a uniform manner across State lines to assure all Americans equal protection of the law. This Administration has articulated the nature of this relationship as our Shared Commitment with the States to assure the integrity of that protection. OSM promotes the concept of Shared Commitment so that, ultimately, State regulatory authorities can independently seek to carry out the requirements of SMCRA. We are in the business of seeing that lands are reclaimed, and we want on-the-ground success at the least possible cost. OSM and the States have been working together as teams to achieve these results. What have we done together? Our Federal-State teams have redesigned and reengineered oversight from a process-driven system to a results-oriented system. We have substituted performance agreements worked out by consensus with each State for the Washington-driven mandates we used to use. We have remolded the contentious ten-day notice process into a system that will truly respect State judgments and end once and for all improper OSM second-guessing. We also have spent considerable time exploring with States (and the coal industry and various environmental and coal field citizen groups, as well) the ways in which OSM might come together with the States to reach consensus on the issue of Federal backup enforcement authority in primacy States. While we have been unable to reach such an agreement at this time, we are neither disheartened nor all that surprised, given our nearly 15-year history of disagreement on the subject. But our current disparity in this one area has not affected the strength of our Federal-State Shared Commitment to reclamation. We have learned much from this process, which we bring to many other important areas. We continue to work with States to find state-specific solutions for individual state problems -- a Utah solution for a Utah problem, a Virginia solution for a Virginia problem. Although many States may find the provisions of S. 1401 attractive because of the promise its proponents in the coal industry advertise of less interference from OSM, I believe that S. 1401 would instead undermine the progress made to date in the development of quality State programs. For the simple fact is that were it not for OSM having the ability to use the enforcement tools which S. 1401 seeks to abolish, we would not see the quality State programs we have today, and the coal field citizens would lose what they believe is their single most important protection under the surface mining law - Federal backup enforcement authority. Instead, if S. 1401 were enacted, it would adversely affect the lives of the people who live, work, and raise families in America's coal field communities. Moreover, a potential and ironic unintended consequence of enactment of S. 1401 could be more Federal takeovers of State programs or portions of State programs where deficiencies are documented. Under the Act, OSM uses a graduated Federal response to deficient State compliance with the Surface Mining Act to insure basic compliance with the Act. OSM's authority to issue Notices of Violation, ability to make inspections and investigations, and investigate citizens' complaints are necessary components of that compliance scheme. However, if the ability of OSM to insure State compliance with the Act is confined to Federal takeovers authorized by Sec. 521 (b), it is likely that Federal takeover actions will be used more frequently than has been the case in the past. In summary, then, we oppose S. 1401 because: it is unnecessary; it is likely to lead to the unraveling of effective State programs which have taken years to develop; it will abrogate guarantees provided coal field citizens that no matter which State they reside in, they will have the same basic protections and legal rights; it will lead to regulatory instability and more litigation; and it could ultimately result in more instances of Federal takeovers of State program components. Backup Federal enforcement authority lies at the heart of the Surface Mining Control and Reclamation Act. Many coal field citizens tell us that OSM's presence in the coal fields is one of the most important benefits they derive from the Surface Mining law, and they are right. The American people value clean air, clean water, land reclamation and strong, fair environmental protection laws like the Surface Mining Act. The law works, and its guardianship of the land and its people must be preserved. Our section-by-section analysis follows, and I will be happy to answer any questions you may have. ANALYSIS OF S. 1401 SECTION 1. Short Title This section provides the short title by which the bill, if passed, would be cited. SECTION 2. Statement of Findings and Policy This section would add two new findings to section 101 of the Surface Mining Control and Reclamation Act of 1977 (SMCRA). The first states that a majority of States have environmentally-sound regulatory programs, while the second specifies that duplication in regulatory programs should be avoided and that the States should have exclusive responsibility for permitting and enforcement. The proposed language suggests that OSM duplicates regulatory programs in primacy States. The proposed section is duplicative and unnecessary. Section 101(f) of SMCRA already provides that the primary governmental responsibility for developing, authorizing, issuing, and enforcing regulations for surface mining and reclamation operations subject to SMCRA rests with the States. Section 503(a) already empowers States to assume exclusive jurisdiction over the regulation of surface coal mining and reclamation operations. Further, section 201(c)(12) already requires the Secretary to cooperate with other Federal agencies and State regulatory authorities to minimize duplication of inspections, enforcement, and administration of the Act. OSM does not duplicate State regulatory programs. In States with primacy, only the approved State program is enforced. SECTION 3. Functions of OSM The revision to section 201(c)(1) of SMCRA would appear to limit OSM's investigation, inspection, and enforcement authority. The changes seem to authorize the Secretary to take such measures only in situations in which there is no approved State regulatory program. The proposed language, in setting forth OSM functions, does not include the authority to "issue cease-and-desist orders" and may jeopardize OSM's authority to issue "failure-to- abate" cessation orders. The amendment seems intended to restrict OSM's conduct of inspections and its ability to take enforcement action in States with approved programs, even if citizens are unable to obtain relief from the States. If adopted, the proposed language could render OSM ineffective in protecting society and the environment from the adverse effects of surface coal mining. Further, the language might not merely restrict inspections of coal mines; it could preclude investigations of alleged conflicts of interests, compliance with provisions of section 703 for employee protection, any kind of performance or financial audit, and evaluation of AML program requirements. Also, it leaves ambiguous the scope of the Secretary's authority to evaluate the adequacy of a State's implementation and administration of its approved program. SECTION 4. State Programs This section would add a new paragraph (e) to section 503 of SMCRA, the first part of which provides that it is now mandatory to apply the State program (in lieu of SMCRA) to surface coal mining and reclamation operations in the State. In most cases, OSM already adheres to this interpretation. However, some SMCRA requirements have an explicit effective date that is tied to the enactment of SMCRA itself (or to other Federal laws) and is unaffected by the date a State adopts them, e.g. the August 3, 1977, effective date of provisions governing the abandoned mined lands reclamation program. Applying the language of this proposed legislation could result in requirements with widely varying effective dates among the States, thus delaying protections in some States, and could lead to confusion and interpretational disputes over whether such portions of SMCRA are in effect if only the approved State program is applied. Also, there are other important requirements of SMCRA (directly applicable to mining operations) which have no State counterparts and are directly enforced by the Secretary, even in primacy States, e.g., the employee protection provisions of section 703. Passage of this bill could invalidate the enforcement authority for such SMCRA requirements, and also could cause confusion and possible interpretational disputes. The second portion of the proposed revision provides, in part, that no changes in Federal laws or rules may take effect in a primacy State prior to amending the State program. The proposed language is unnecessary because OSM, for the most part, already operates in this manner unless otherwise directed by Congress, such as in the Energy Policy Act of 1992 which mandated an October 24, 1992, effective date for revised subsidence protection provisions. SMCRA's regulations already provide that State surface mining law and regulations apply in States with approved programs, and the Federal rules at section 732.17 of Title 30 of the CFR provide that changes in State programs to implement changes to Federal law and regulations must be approved before they can take effect for the purposes of a State program. The language also provides the permittee with a "reasonable time as determined by [each] regulatory authority" to revise the permit to conform ongoing operations with revised or additional requirements. Since regulatory authorities could have differing interpretations of the term "reasonable time," this could result in wide State-by-State variation for permittee compliance with these new requirements. It also could present even greater problems where permit revisions become necessary to implement new performance standards not typically included in permits. SECTION 5. Federal Programs In the event that a primacy State is not enforcing any part of its approved program, the language of the proposed legislation appears to restrict OSM's available enforcement options solely to the provisions allowing for Federal takeover under section 521(b). This certainly appears to eliminate OSM's authority to issue notices of violation in primacy States except by following the section 521(b) procedures to revoke State program approval or to withdraw State enforcement authority. The proposed language may force the Secretary into a choice between two options - do nothing or initiate the drastic and disruptive procedures for Federal takeover under section 521(b). Neither is an effective method for addressing most program violations. SECTION 6. Permits This section would add a new paragraph (e) to section 506 of SMCRA. The new paragraph provides that compliance with the terms and conditions of a permit shall be deemed compliance with all SMCRA-related environmental protection standards, subject to reasonable permit revisions in accordance with the procedures contained in section 511(c) of SMCRA. In other words, the permit, not the approved State program, would establish the criteria by which to measure compliance with the performance standards. This provision could preclude any direct State or Federal enforcement of environmental performance standards and could prevent enforcement of any performance standard not addressed in the permit. Only revision of the permit, a process which can take several months, would be left to correct flawed or obsolete permits. While the bill language appears to allow for permit revision to ensure compliance with all performance standards, it does not seem to allow for immediate permit revision or other measures by the regulatory authority to correct newly discovered deficiencies. Thus, such serious occurrences as failure of a reclaimed hillslope or a sediment pond that fails to meet effluent limitations could not be addressed immediately (unless the environmental harm is significant or imminent). Instead, the regulatory authority would be precluded from initiating enforcement action and apparently could consider requiring any revision of the permit plans, terms, and conditions only at mid-term review. The addition of this provision also could increase the burden on regulatory authorities and the permittee by requiring more information and increasing the time for permit review. It also could result in greater permit preparation expense to the coal industry. SECTION 7. Enforcement This section certainly appears to revise section 521(a)(3) and 521(a)(4) of SMCRA to eliminate OSM's authority to issue a notice of violation, or to suspend or revoke permits on a mine-by-mine basis, in a primacy State except by following the procedures of 521(b) to revoke State program approval or withdraw State enforcement authority. The section adding new paragraph (a)(6) apparently would establish that State regulatory authorities have sole responsibility for issuing notices of violation and for suspending or revoking permits, subject to administrative and judicial review in accordance with State law. As stated earlier, this proposed change seems to ensure that the Secretary cannot take enforcement action in a State that fails to properly administer its approved program and leaves the Secretary with only the option of doing nothing or of initiating the drastic and counterproductive procedures for Federal takeover of a State program under section 521(b). This paragraph also appears to preclude Federal appeal of the State regulatory authority's enforcement determinations or its decisions to suspend or revoke permits. New subparagraph (a)(6)(B) clarifies that enforcement of Clean Water Act-related requirements and other Federal water quality laws is solely the responsibility of the NPDES permitting or other regulatory authority approved by the U.S. Environmental Protection Agency under the pertinent water quality law. With passage of this bill, operators would no longer be subject to OSM and State SMCRA enforcement authority of the daily maximum discharge limitations under the Clean Water Act, which could result in degradation of water quality. We believe that inspection under SMCRA provides an incentive for operators to maintain discharges in compliance. Removal of this incentive could result in operators receiving the much larger fines assessed under the Clean Water Act, i.e., up to $25,000 per day for each day of violation, as opposed to a $5,000 per day per violation fine under SMCRA. More important are the impacts upon the environment. The prohibition on enforcing compliance with water quality standards will seriously cripple the regulatory authority's ability to protect water quality during the mining and reclamation process. The amendment could be interpreted to negate SMCRA's provisions protecting the hydrologic balance and preventing water pollution. SECTION 8. Judicial Review This proposed revision of section 526(a) of SMCRA is apparently intended to eliminate the appellate level of administrative review of agency actions, i.e., the Interior Board of Land Appeals (IBLA). Thus, a decision or order of an administrative law judge (ALJ) in a formal adjudicatory proceeding would be a final decision of the Secretary subject to judicial review. The proposal could undermine consistent enforcement of SMCRA and subject both appellants and OSM to ad hoc, non-precedential decision-making that could differ from ALJ to ALJ, location to location, and even from time to time. The IBLA is the entity within the Department now authorized to exercise the Secretary's review function and ensure the Department's uniform interpretation of SMCRA. By precluding appeals to the IBLA, a level playing field for OSM, the States, operators, and coal field citizens would be eliminated. It will force parties, including coal field citizens, to pursue more time-consuming and costly relief in Federal district court. The resulting additional cases would burden the courts and the Department of Justice with work, much of which could be done in the Department through the administrative review process. In addition, it proposes deletion of the clause in section 526(e) stating that the availability of judicial review (in State courts) of a State regulatory authority's actions will not limit a person's right to file suit in Federal District Court under section 520 of the Act. The result of this change would certainly appear to limit citizen suits outside State courts and thus restrict the public's role in enforcing SMCRA and ensuring consistent enforcement. Finally, this section would revise section 526 by adding a new paragraph (f), which provides that the Federal District Court of the district that includes the State capital has jurisdiction over any action to revoke State program approval or withdraw State enforcement authority. SMCRA currently is silent on the proper venue for judicial review of actions to revoke State program approval or withdraw State enforcement authority. Therefore, the impact of this change is uncertain. SECTION 9. Time Limitation This new section appears to provide that an administrative or judicial action concerning all enforcement or alternative enforcement measures under SMCRA will not be allowed unless commenced within three years from the first occurrence of the violation. It is often difficult, if not impossible, however to determine when a violation first occurs. Using the "first occurrence" date, instead of the date a violation is discovered, could leave many violations completely unaddressed. In addition, the proposed change would prevent the States and OSM from going back more than three years and holding operators, owners or controllers responsible for past violations, including bond forfeitures. It could significantly limit or eliminate the States' and OSM's ability to take enforcement action for violations or conditions or practices that may exist, but which do not become manifest for some time - often more than three years - such as slides, subsidence, water loss, hydrologic degradation and loss of productivity. In addition, some citizen suits could be precluded because more than three years would pass before it becomes clear that the regulatory authority is not going to take appropriate action to abate a violation. The proposed change also could result in operators attempting to hide violations until effective action by the regulatory authority is precluded. Finally, the proposed amendment could be interpreted to restrict OSM from initiating action to recover AML reclamation fees more than three years from the time they were due. This will be far less time than the Federal government is afforded for recovery of other debts. As a result, collection of fees for the AML Fund, which funds the AML program for both emergencies to protect coal field citizens and the States to operate their programs, could be restricted severely. SECTION 10. Definitions (Roads Exclusion) S. 1401 proposes to eliminate the phrase "or the improvement or use of existing roads" from the definition "surface coal mining operations" [section 701(28)(B)]. This proposed change to the definition, viewed in combination with the addition of subparagraph (C) to section 701(28), would remove regulation of the improvement or use of private and public existing roads from the definition of surface coal mining operations, thereby rendering them unable to be regulated under section 515. In addition, new section 701(28)(C) exempts roads designated as public roads and roads maintained under the authority of a governmental entity from regulation under SMCRA as surface coal mining operations. This could allow coal haulroads to be constructed without regard to prudent engineering design and construction specifications or inspection and enforcement requirements of approved regulatory programs. Road construction, location, and maintenance can have significant impacts on the environment, particularly upon streams and wildlife; and the nuisance factor associated with road dust is a major source of irritation and citizen complaints in coal field communities. Especially in mountains and remote areas, road construction can cause more environmental impacts than the mining operation itself. Finally, this provision appears to address issues from a now-resolved roads dispute in Utah and could, in other States, disturb settled policies, practices, and established case law concerning SMCRA. It could also require massive permit and bonding changes which, in turn, could result in major environmental problems.