[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
THE SURFACE MINING CONTROL AND RECLAMATION ACT OF 1977: A 30\TH\
ANNIVERSARY REVIEW
=======================================================================
OVERSIGHT HEARING
before the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
Wednesday, July 25, 2007
__________
Serial No. 110-36
__________
Printed for the use of the Committee on Natural Resources
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COMMITTEE ON NATURAL RESOURCES
NICK J. RAHALL II, West Virginia, Chairman
DON YOUNG, Alaska, Ranking Republican Member
Dale E. Kildee, Michigan Jim Saxton, New Jersey
Eni F.H. Faleomavaega, American Elton Gallegly, California
Samoa John J. Duncan, Jr., Tennessee
Neil Abercrombie, Hawaii Wayne T. Gilchrest, Maryland
Solomon P. Ortiz, Texas Chris Cannon, Utah
Frank Pallone, Jr., New Jersey Thomas G. Tancredo, Colorado
Donna M. Christensen, Virgin Jeff Flake, Arizona
Islands Stevan Pearce, New Mexico
Grace F. Napolitano, California Henry E. Brown, Jr., South
Rush D. Holt, New Jersey Carolina
Raul M. Grijalva, Arizona Luis G. Fortuno, Puerto Rico
Madeleine Z. Bordallo, Guam Cathy McMorris Rodgers, Washington
Jim Costa, California Bobby Jindal, Louisiana
Dan Boren, Oklahoma Louie Gohmert, Texas
John P. Sarbanes, Maryland Tom Cole, Oklahoma
George Miller, California Rob Bishop, Utah
Edward J. Markey, Massachusetts Bill Shuster, Pennsylvania
Peter A. DeFazio, Oregon Dean Heller, Nevada
Maurice D. Hinchey, New York Bill Sali, Idaho
Patrick J. Kennedy, Rhode Island Doug Lamborn, Colorado
Ron Kind, Wisconsin Mary Fallin, Oklahoma
Lois Capps, California Kevin McCarthy, California
Jay Inslee, Washington
Mark Udall, Colorado
Joe Baca, California
Hilda L. Solis, California
Stephanie Herseth Sandlin, South
Dakota
Heath Shuler, North Carolina
James H. Zoia, Chief of Staff
Jeffrey P. Petrich, Chief Counsel
Lloyd Jones, Republican Staff Director
Lisa Pittman, Republican Chief Counsel
------
CONTENTS
----------
Page
Hearing held on Wednesday, July 25, 2007......................... 1
Statement of Members:
Duncan, Hon. John J., Jr., a Representative in Congress from
the State of Tennessee..................................... 5
Pearce, Hon. Stevan, a Representative in Congress from the
State of New Mexico........................................ 3
Rahall, Hon. Nick J., II, a Representative in Congress from
the State of West Virginia................................. 1
Statement of Witnesses:
Bandy, Earl, Chief, Applicant Violator System Office, Office
of Surface Mining Reclamation and Enforcement, U.S.
Department of the Interior, Washington, D.C................ 9
Prepared statement of.................................... 10
Conrad, Gregory E., Executive Director, Interstate Mining
Compact Commission, Herndon,Virginia....................... 23
Prepared statement of.................................... 26
Additional information submitted for the record.......... 34
Corra, John, Director, Wyoming Department of Environmental
Quality, Cheyenne, Wyoming................................. 85
Prepared statement of.................................... 87
Fry, Eric, Director of Regulatory Services, Peabody Coal
Company, St. Louis, Missouri, on behalf of the Illinois
Coal Association........................................... 202
Husted, John F., President, Deputy Chief, Division of Mineral
Resources Management, Ohio Department of Natural Resources,
Columbus, Ohio............................................. 68
Prepared statement of.................................... 70
Loomis, Marion, Executive Director, Wyoming Mining
Association, Cheyenne, Wyoming............................. 207
Prepared statement of.................................... 210
Lovett, Joe, Executive Director, Appalachian Center for the
Economy and the Environment, Lewisburg, West Virginia...... 127
Prepared statement of.................................... 128
Morris, Walton D., Jr., Attorney-at-Law, Charlottesville,
Virginia................................................... 115
Prepared statement of.................................... 116
Response to questions and attachments submitted for the
record................................................. 121
Owens, Glenda H., Deputy Director, Office of Surface Mining
Reclamation and Enforcement, U.S. Department of the
Interior, Washington, D.C.................................. 9
Pfister, Ellen, Shepherd, Montana, on behalf of the Northern
Plains Resource Council and the Western Organization of
Resource Councils.......................................... 141
Prepared statement of.................................... 143
Quinn, Harold P., Jr., Senior Vice President and General
Counsel, Legal & Regulatory Affairs, The National Mining
Association, Washington, D.C............................... 158
Prepared statement of.................................... 161
Raney, William B., President, West Virginia Coal Association,
Charleston, West Virginia.................................. 167
Prepared statement of.................................... 168
Additional information submitted for the record.......... 172
Roberts, Cecil E., President, United Mine Workers of America,
Fairfax, Virginia.......................................... 101
Prepared statement of.................................... 103
Timmermeyer, Stephanie R., Cabinet Secretary, West Virginia
Department of Environmental Protection, Charleston, West
Virginia................................................... 63
Prepared statement of.................................... 65
Wright, Brian, Coal Policy Director, Hoosier Environmental
Council, Indianapolis, Indiana............................. 132
Prepared statement of.................................... 135
Additional materials supplied:
Bird, Cathie, Chair, Save Our Cumberland Mountains, on behalf
of the members of SOCM Stripmine Issues Committee, Letter
submitted for the record................................... 218
Blumenshine, Joyce, Peoria, Illinois, Letter submitted for
the record................................................. 222
Bonds, Julia, Rock Creek, West Virginia, Letter submitted for
the record................................................. 225
Braverman, Beverly, Executive Director, Mountain Watershed
Association, Letter submitted for the record............... 229
Haltom, Vernon, Co-Director, Coal River Mountain Watch,
Letter submitted for the record............................ 285
Johnson, Robert L., PE, Collinsville, Illinois, Letter
submitted for the record................................... 288
Loucks, Clarence, Hillsboro, Illinois, Letter and attachments
submitted for the record................................... 292
Wall Street Journal article entitled, ``Coal's Doubters Block
New Wave of Power Plants'' submitted for the record by
Congressman Pearce......................................... 6
Webb, David, Naoma, West Virginia, Letter submitted for the
record..................................................... 303
Yarbrough, Ronald E., Ph.D., PG, Professor Emeritus, Earth
Sciences, Southern Illinois University, Comments submitted
for the record............................................. 305
Yingling, Mark R., Vice President of Environmental Services
and Conservancy, Representing Peabody Energy and the
Illinois Coal Association, Statement submitted for the
record..................................................... 204
OVERSIGHT HEARING ON ``THE SURFACE MINING CONTROL AND RECLAMATION ACT
OF 1977: A 30\TH\ ANNIVERSARY REVIEW''
----------
Wednesday, July 25, 2007
U.S. House of Representatives
Committee on Natural Resources
Washington, D.C.
----------
The Committee met, pursuant to call, at 10:01 a.m. in Room
1324, Longworth House Office Building, Hon. Nick Rahall, II,
[Chairman of the Committee] presiding.
Present: Representatives Rahall, Holt, Grijalva, Bordallo,
Sarbanes, Kind, Inslee, Baca, Shuler, Duncan, Pearce, Shuster,
Heller, Sali, and Lamborn.
STATEMENT OF THE HONORABLE NICK J. RAHALL, II, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF WEST VIRGINIA
The Chairman. The full Committee on Natural Resources will
come to order.
Before the Chair proceeds this morning, I know we are
celebrating an anniversary, but there is one other celebration
I would like to note, and it has to do with age, as well. And
that is the birthday of one individual sitting to my immediate
left, who has been with me for, well, he doesn't like me to say
ages any more, not only how long he has been with me nor his
actual age, because he wants all the certain individuals in the
crowd to know that he is single once again, so I won't mention
any ages.
But I do want to wish my Chief of Staff on the Committee,
and long-time confidante, and a man for whom I deeply
appreciate his loyalty and dedication and work on behalf of the
people of West Virginia, and serving me for over 27 years, Jim
Zoia. Happy Birthday, Jim.
[Applause.]
The Chairman. I didn't want to ruin his day by singing.
[Laughter.]
The Chairman. OK. The Committee is meeting today to conduct
an oversight hearing on the implementation of the Surface
Mining Control and Reclamation Act of 1977, as we approach the
30th anniversary of its enactment on August 3.
I have had a long relationship with this law, having served
on this committee and on the Conference Committee on H.R. 2 as
a freshman Member of this body back in 1977, for the
legislation that was enacted as SMCRA. Today, 30 years later,
of those Members of the House of Representatives who signed
that conference report, I am the only one still in office.
Senator Pete Domenici remains as the only Senator who signed
the conference report still in office.
I recall very well standing on that hot day in the Rose
Garden of the White House with coal field activists,
representatives of the coal industry, and elected officials,
when President Jimmy Carter signed H.R. 2 into law. After years
of struggle, highlighted by the disaster that took place in
1972 at Buffalo Creek in Logan County, West Virginia, and two
Presidential vetoes, the Nation finally had a surface mining
control and reclamation law.
As with most laws, this law was a compromise. President
Carter pointed out and expressed some misgivings in his remarks
on that hot August day. But at the same time, Chairman Mo Udall
noted, and I quote, ``And by getting this bill passed today, we
are showing this nation loves its land and respects it, and is
going to protect the land, while at the same time we increase
the production of coal.''
On a personal note, I am indeed honored to hold this
hearing today as Chairman of the Committee that Mo Udall once
chaired, as I look up and gaze at his portrait, in a room named
after him, and with his son, Mark Udall, as a member of this
committee.
Just as it was a struggle to get SMCRA enacted into law, it
has been a 30-year struggle to implement and properly enforce
it. The rapid progress made during the very early years by the
first Director of the Office of Surface Mining Enforcement,
Walter Hines, and his staff, was squashed with the advent of
the Reagan Administration under the banner of regulatory
relief. I am not so certain the agency ever fully recovered.
While I salute the many hardworking employees at the Office
of Surface Mining Reclamation and Enforcement, on too many
occasions the agency has been a rudderless ship lacking strong
leadership. This morning, for instance, its director will not
present testimony before this committee, because the agency
lacks one. My sense is that the agency is once again adrift,
floating in a sea of coal-field citizen unrest and industry
desire to have regulatory stability.
It was the intention of SMCRA to dovetail the needs of the
environment and the need for coal production. Today,
regrettably, I believe that goal remains elusive.
While there are successes, primarily in the area of
reclaiming abandoned coal mines, much remains wanting. The rise
of mountaintop-removal coal mining during the late 1990s was
directly related to the enactment of stronger Federal Clean Air
Act legislation, which placed an even greater premium on low-
sulfur coal reserves, such as in my district in southern West
Virginia, eastern Kentucky, and southwestern Virginia.
SMCRA explicitly allows this type of mining to take place
by giving it an exemption from the overall requirement that
mine lands be returned to their approximate original contour,
provided--and I stress provided--that post-mining land use be
implemented that gives rise to developments which help the
people and sustain the coalfield economy, be it industrial,
commercial, residential, or agricultural.
And I recall very well that spring of 1977, my first year
in this body, when at my invitation then-Chairman Mo Udall
visited mine sites in southern West Virginia. And he agreed
that with flatland at such a premium, that we should not
totally abolish the practice of mountaintop mining; but that we
should have an exemption, an exemption that would allow for
better post-mining uses of that land.
The question today is whether this is truly taking place;
whether it is the rule, or whether it is the exception.
There is no doubt in my mind that the enforcement of the
Surface Mining Control and Reclamation Act has and continues to
be an issue in virtually all areas, including blasting and
control of acid-mine drainage; the disposal of coal combustion
waste into mines; the conflicts in the western states between
surface coal mining and other land uses; and certainly, there
are water quality issues.
I am well aware of the concerns and criticisms of those
coalfield residents whose homes and way of life are being
disrupted by surface coal mining operations. And I am equally
aware of the pressing need for the production of coal, for the
jobs, for the contribution to the coalfield economies. And I am
also aware of the need for regulatory stability, so that all
interested parties know what is expected.
Earlier I noted that SMCRA's goal of dovetailing the
interests of the environment and coal production remains
elusive, but it must not remain so. We can do better. Those of
us here gathered today in this room and those watching this
proceeding on the Internet, working together can make that goal
a reality.
Today this committee will hear from a well-represented list
of people who have a stake in the Surface Mining Control and
Reclamation Act. I have endeavored to have each panel--
representatives from the states, citizen groups, and the
industry--reflect the geographical areas of mining in this
country. As well, I am particularly honored and pleased that
coal labor is represented with us today, in the presence of its
International President of the United Mine Workers Union, Cecil
Roberts.
This will be a lengthy hearing, and the subject matter is
deserving of it. I would remind the witnesses as I conclude to
limit their oral presentations to five minutes so that we have
ample time for further discussion and interaction during the
questioning period.
With that, I recognize the Ranking Member, Mr. Pearce of
New Mexico.
STATEMENT OF THE HONORABLE STEVE PEARCE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEW MEXICO
Mr. Pearce. Thank you, Chairman. I know that the Surface
Mining Act has been very important in West Virginia; it has
also been very important in New Mexico. Coal has been mined in
New Mexico since the time of Spanish settlement.
In the 1860s the Army and railroads further developed the
resource. However, significant development of New Mexico's
coalfields did not occur until after the enactment of the
Surface Mining Act passed in 1977.
Coal resources underlie 12 percent of New Mexico. Most of
these resources lie under Indian tribal lands in northern New
Mexico. In 2004, 1,697 people were employed at seven coal
mines, with an annual production value of more than $650
million. That coal is used to generate electricity for fellow
New Mexicans and our neighbors in Arizona.
Nationally, coal provides 52 percent of our electricity,
energy, and specifically energy produced from coal is the fuel
that drives this nation's economic engine, currently the most
robust in the world. This electricity is used to heat and cool
our homes, run our computers, cook our dinners, communicate
with one another, keep abreast of local and world events, and
provide a healthy living environment.
Nevertheless, fear of human-caused climate change has led
many to call for radical reductions in coal consumption and
other fossil fuels until we can successfully sequester the
CO2 that is released by burning these resources.
In May the Energy and Parks Subcommittees held a joint
oversight hearing entitled, ``The Future of Fossil Fuels,
Geological and Terrestrial Sequestration of Carbon Dioxide.''
At that hearing witnesses testified that the technology to
sequester CO2 was not ready for commercial use, and
would not be ready for years into the future, even with
sequestration study programs such as the one in the Chairman's
H.R. 2337.
We also heard testimony that sequestering the
CO2 would add as much as 25 percent to the cost of
energy produced from coal-fired power plants, if not more. In
today's Wall Street Journal there is an article which points
out the increase in cost. A hearing judge of the Minnesota
Public Utilities Commission concluded it would cost $472
million in 2011 dollars to make the power plant that is
proposed capable of capturing about 30 percent of its carbon
dioxide emissions, and it would cost another $635 million to
build a pipeline to move the greenhouse gas to the nearest deep
geologic storage in Alberta, Canada.
Thus, $1.1 billion in additional costs for that power
plant, adding $50 per megawatt hour, making that energy twice
as costly as energy from other plants.
We see in that same article that 150 new coal generating
plants were contemplated as late as May of this year, but now
plans for many of those are being pulled off of the shelves
because of the increased cost, and because of the discussions
that we are having here.
I fear for the future of coal, based on the discussions
that we are having in Washington today. I fear that if we act
on climate-change legislation before the sequestration
technology has become economic, well-meaning but misguided
individuals will force our nation to dramatically reduce its
coal consumption. This will force mines to close, cost jobs,
cause rural mining communities to face high unemployment, major
tax and royalty revenue loss, and force electricity prices to
skyrocket for Americans and American businesses.
These policies, the Surface Mining Act, and climate change
legislation, caps and trade on carbon or carbon taxes are
directly linked. To look at them in a separate vacuum would be
misleading.
For example, if we reduce our use of coal and do not use
this abundant natural resource, where and who will pay the
abandoned mine land fee that is used to clean up the many
abandoned coal mines that had operated prior to the enactment
of a SMCRA in 1977?
In New Mexico, more than $8 million has been spent from
monies collected from coal operations to clean up and secure
high-priority abandoned mine land reclamation projects, since
the program was approved in 1981.
I thank the witnesses for their time and testimony, and
look forward to hearing from you all. Thank you, Mr. Chairman,
for this hearing.
The Chairman. Thank you, Mr. Pearce. Before I recognize, do
other members wish to make statements?
Mr. Duncan of Tennessee.
STATEMENT OF THE HONORABLE JOHN J. DUNCAN, JR., A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF TENNESSEE
Mr. Duncan. Well, thank you very much, Mr. Chairman, and
thank you for calling this hearing. This is a very important
topic, and I am sure that a lot of good things have come out of
this law. But I am glad that you are holding this hearing,
because I am not going to be able to stay for very much longer
because of so many other things on my schedule.
But I did want to come here to express my concerns about
what I believe was an unintended consequence, maybe unintended,
at least on the part of some people. And that is, I was told a
few years ago that in 1978 there were 157 small coal companies
in east Tennessee, and now there are none. And the coal
production in east Tennessee, or in the whole State of
Tennessee, is a fourth of what it was, and has been at that
level for many years.
And maybe not all of those companies should have been in
existence, but I also know that what happened, we opened up an
Office of Surface Mining in Knoxville at that time. And it is
much easier for a Federal bureaucrat to deal with one large
company instead of 100 little ones. But I think it is kind of
sad that so many small businesses went out of business because
of the activities of that office, and really regulatory
overkill, based on the people I think taking, some regulators
taking this law further than what I am sure some of the authors
intended.
And just to show you, a few years ago I saw a sad sight
that I never thought I would see. I came back from lunch at a
restaurant in Knoxville, and I saw 125 miners demonstrating in
front of the Office of Surface Mining there in Knoxville with
signs saying please let us work, please let us mine. And I
thought, you know, that is a sad sight to see Americans who
want to work, but their government is not allowing them to do
so. And what was the saddest part was that some of the Federal
regulators there at that time were looking out of their windows
in this old hotel which had been converted into an office
building, laughing at these poor, unemployed miners. And so a
lot of people lost their small businesses, and a lot of people
lost employment in my area.
And so I hope that as we look at these laws in the future,
that we will keep the poor and the lower income and the working
people in mind. Because you have to have balance and common
sense in these things. If you go too far in one direction, you
destroy jobs and you drive up prices. And it helps the big
giants in these industries, but it sure hurts the little guy.
Thank you, Mr. Chairman.
The Chairman. Thank you, gentlemen. Before recognizing the
panel, I do want to note the presence in the room of another
individual that was behind President Jimmy Carter, besides
myself, 30 years ago on that hot August day in 1977. And that
is Louise Dunlap, who is standing in the back of the room here,
and who was noted by President Jimmy Carter in his comments
when he signed the law, I might add, when he said, and I quote,
``I think all of you know that Louise Dunlap has in the last
six years organized and worked and been persistent in the face
of diversity and disappointment.'' Welcome, Louise.
Let us proceed with the panel.
Mr. Pearce. Mr. Chairman, if I may.
The Chairman. Oh, I am sorry. The gentleman from New
Mexico.
Mr. Pearce. Yes. I would make a unanimous consent request
to enter into the text of today's hearing the Wall Street
Journal article that I referred to.
The Chairman. Without objection, so ordered.
[The Wall Street Journal article follows:]
Coal's Doubters Block New Wave of Power Plants
By REBECCA SMITH
July 25, 2007
From coast to coast, plans for a new generation of coal-fired power
plants are falling by the wayside as states conclude that conventional
coal plants are too dirty to build and the cost of cleaner plants is
too high.
If significant numbers of new coal plants don't get built in the
U.S. in coming years, it will put pressure on officials to clear the
path for other power sources, including nuclear power, or trim the
nation's electricity demand, which is expected to grow 1.8% this year.
In a time of rising energy costs, officials also worry about the long-
term consequences of their decisions, including higher prices or the
potential for shortages.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
LUMPS FOR COAL
Dwindling Fleet: A new generation of power plants is
stalling due to concerns over their fuel: coal.
Cheap and Dirty: Coal is plentiful in the U.S. but is a
major source of emissions that contribute to global warming.
The Long Term: Blocked plants could prompt power
officials to try to quell consumption or advance other sources.
As recently as May, U.S. power companies had announced intentions
to build as many as 150 new generating plants fueled by coal, which
currently supplies about half the nation's electricity. One reason for
the surge of interest in coal was concern over the higher price of
natural gas, which has driven up electricity prices in many places.
Coal appeared capable of softening the impact since the U.S. has deep
coal reserves and prices are low.
But as plans for this fleet of new coal-powered plants move
forward, an increasing number are being canceled or development slowed.
Coal plants have come under fire because coal is a big source of carbon
dioxide, the main gas blamed for global warming, in a time when climate
change has become a hot-button political issue.
An early sign of the changing momentum was contained in the $32
billion private-equity deal earlier this year to buy TXU Corp. To gain
support for the deal, the buyers decided to trim eight of 11 coal
plants TXU had proposed in Texas. Recent reversals in Florida, North
Carolina, Oregon and other states have shown coal's future prospects
are dimming. Nearly two dozen coal projects have been canceled since
early 2006, according to the National Energy Technology Laboratory in
Pittsburgh, a division of the Department of Energy.
It's hard to say how many proposed plants will never be built. Some
projects suffer public deaths when permits are denied. Many more simply
wither away, lost in the multiyear process of obtaining permits,
fending off court challenges and garnering financing.
In the wake of the fading coal proposals, and others that are
expected to follow, Citigroup downgraded the stocks of coal-mining
companies last week, noting that ``prophesies of a new wave of coal-
fired generation have vaporized.'' On Monday, Steve Leer, chief
executive of Arch Coal Inc., said some of the power plants he had
expected to be built ``may get stalled due to the uncertainty over
climate concerns.''
For now, coal companies haven't taken steps to ratchet back
production or big projects because of coal-plant delays. They believe
that in a time of global energy concerns, U.S. coal supplies will be
seen as too important to dismiss. The U.S. has the world's largest coal
reserves and is sometimes called ``the Saudi Arabia of coal'' by
energy-industry observers.
``It would be quite foolish and quite unthinkable not to have coal
play an important role,'' says investor Wilbur Ross, who has increased
his coal holdings and is nonexecutive chairman of International Coal
Group Inc. He predicts cleaner-coal technology will improve enough to
become viable.
Roadblocks for coal put greater attention on other sources. The
U.S. power industry is exploring building more nuclear power plants.
But those plans are several years away, and nuclear power currently
provides only about a fifth of U.S. needs. Other sources, like wind,
don't provide around-the-clock energy, while solar is relatively
expensive and isn't yet capable of producing large amounts of
electricity.
That puts the focus on natural gas. ``Gas is the bridge fuel'' that
will step in if coal stumbles, says Marc Spitzer, a member of the
Federal Energy Regulatory Commission, regulator of the nation's
wholesale gas and electricity markets.
Currently, clean-burning gas provides roughly a fifth of the
nation's power needs. But the nation's gas production has been flat,
and other industries are increasingly using it as a fuel or raw
material. Mr. Spitzer says that the nation needs more facilities to
accept liquefied natural gas, which is gas cooled into a liquid that
can be imported from overseas.
The rapid shift away from coal shows how quickly and powerfully
environmental concerns, and the costs associated with eradicating them,
have changed matters for the power industry. One place where sentiment
has swung sharply against coal is Florida. Climate change is getting
more attention there because the mean elevation is only 100 feet above
sea level, so melting ice caps would eat away at both its Atlantic and
Gulf of Mexico coasts.
In mid-July, Florida Gov. Charlie Crist convened a climate-change
summit to explore ways the state could improve its environmental
profile. In June, he signed into law a bill that authorizes the Florida
Public Service Commission to give priority to renewable energy and
conservation programs before approving construction of conventional
coal-fired power plants.
The law was bolstered by a recent report from the nonprofit
American Council for an Energy Efficient Economy that found Florida
could reduce its need for electricity from conventional sources, like
gas and coal, by 29% within 15 years if it implemented aggressive
energy efficiency measures.
On the eve of the governor's summit, backers of a major power-plant
proposal said they would suspend development activities for an 800-
megawatt coal-fired plant proposed by four city-owned utilities
including the one serving the state capital, Tallahassee. (One megawatt
can power 500 to 1,000 homes.) The backers cited environmental issues.
That decision followed the rejection by the utility commission of a
proposal by Florida Power & Light Co., a unit of FPL Group Inc., to
build a 1,960-megawatt coal plant in Glades County, Fla. The commission
found that the plant was cost effective in fewer than half the
scenarios examined. One reason for its poor showing is uncertainty
about the future cost to curb carbon dioxide pollution. Coal plants
emit more than twice as much carbon dioxide per unit of electricity
produced as natural-gas-fired plants, but there's no cheap, easy way to
capture and dispose of the greenhouse gas.
Even proposals to build so-called ``clean coal'' plants have been
met with skepticism. This new technology, which primarily involves
converting coal into a combustible gas for electricity generation, has
been touted as a solution to coal's global-warming problems.
A hearing judge at the Minnesota Public Utilities Commission is
urging commissioners to reject a plan for Northern States Power Co., a
unit of Xcel Energy Inc., Minneapolis, to buy about 8% of its
electricity from a coal-gasification power plant that was proposed by
Excelsior Energy Inc., Minnetonka, Minn. The judge concluded the 600-
megawatt Excelsior plant wouldn't be a good deal for consumers.
The judge concluded it would cost an extra $472.3 million, in 2011
dollars, to make the power plant capable of capturing about 30% of its
carbon dioxide emissions, and another $635.4 million to build a
pipeline to move the greenhouse gas to the nearest deep geologic
storage in Alberta, Canada. Thus, $1.1 billion in pollution controls
had the potential to inflate the cost of power coming from the plant by
$50 a megawatt hour, making electricity from Excelsior twice as costly
as power from many older coal-fired plants that simply vent their
carbon dioxide. The recommendation will be considered by the commission
on Aug. 2.
In the West, Washington has followed California in prohibiting
utilities from entering into arrangements to obtain electricity from
plants that aren't as clean as modern gas-burning plants. The intent is
to discourage construction of conventional coal-fired plants anywhere
in the region.
In January, Oregon utility regulators blocked PacifiCorp., a unit
of Berkshire Hathaway Inc., from a plan to charge Oregon consumers for
part of the cost of building new coal plants outside the state, saying
Oregonians didn't need the power.
Even in states where coal projects are going forward, they are
happening more often with a nod to environmental concerns. Xcel Energy,
through its Public Service of Colorado unit, has agreed to obtain 775
megawatts worth of wind power to supplement the power that will come
from a 750 megawatt coal plant it is building near Pueblo, Colo. It
also has agreed to install more pollution controls at existing units,
and to cut energy demand by more than 300 megawatts in coming years.
``It will change their portfolio in a fundamental way,'' says
Vickie Patton, senior attorney for environmental group Environmental
Defense in Colorado.
Rising construction costs are another reason that the future looks
murky for big coal burners. Duke Energy Inc. created a stir eight
months ago when it announced that the expected cost of a new twin-unit
power plant in North Carolina had ballooned to about $3 billion, up 50%
from about 18 months earlier. That run up in cost and other factors
compelled the North Carolina Utilities Commission to nix one of the two
proposed units.
The coal industry is looking for ways to make its product more
palatable. Earlier this week, Peabody Energy and ConocoPhillips said
they are exploring the possibility of constructing a coal-gasification
plant at a mine in Illinois, Indiana or Kentucky that would convert
coal into 50 billion to 70 billion cubic feet of pipeline-quality
synthetic gas a year. It said it would have its analysis completed in
early 2008. It would be cost competitive at $5 to $6 per million
British thermal units, which is less than today's prices.
--Kris Maher contributed to this article.
Write to Rebecca Smith at [email protected]
______
The Chairman. Our first panel is composed of Glenda H.
Owens, the Deputy Director, Office of Surface Mining
Reclamation and Enforcement, the U.S. Department of Interior,
Washington, D.C., and Earl Bandy, the Chief, Applicant Violator
System Office, Office of Surface Mining Reclamation and
Enforcement, U.S. Department of Interior, Washington, D.C.
We welcome you both to the panel. Glenda, would you like to
proceed first?
Ms. Owens. Thank you.
The Chairman. And as I said earlier, we have your prepared
testimonies. They will be made part of the record as if
actually read, and you are encouraged to summarize.
You may proceed.
STATEMENT OF GLENDA H. OWENS, DEPUTY DIRECTOR, OFFICE OF
SURFACE MINING RECLAMATION AND ENFORCEMENT, U.S. DEPARTMENT OF
THE INTERIOR, WASHINGTON, D.C.
Ms. Owens. Thank you, Mr. Chairman. Good morning, Mr.
Chairman and members of the Committee.
I am pleased to appear before you today, along with Mr.
Earl Bandy, on behalf of the Office of Surface Mining
Reclamation and Enforcement on the occasion of the 30th
anniversary of the enactment of the Surface Mining Control and
Reclamation Act of 1977, or SMCRA.
I have been Deputy Director of the Office of Surface Mining
Reclamation and Enforcement since 2001. Before that, I was an
assistant solicitor for surface mining in the Solicitor's
Office at the Department of the Interior, where I worked on
various legal issues associated with the Surface Mining
Program.
Over the 30 years since SMCRA was enacted, OSM has
confronted many challenges in implementing the Act. Mr. Bandy
is here today to share his experience in effectively addressing
issues that threaten OSM's ability to ensure the reclamation
which SMCRA envisioned: coal company bankruptcies.
Mr. Bandy has been integrally involved in these and other
issues. He has worked at OSM for 28 years. He has been an
inspector, an investigator, manager, head of the Applicant
Violator System Office, and he is soon to be Director of OSM's
Knoxville, Tennessee field office. I would like to ask Mr.
Bandy to share some of his experiences in implementing SMCRA.
STATEMENT OF EARL BANDY, CHIEF, APPLICANT VIOLATOR SYSTEM
OFFICE, OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT,
U.S. DEPARTMENT OF THE INTERIOR, WASHINGTON, D.C.
Mr. Bandy. Thank you, Ms. Owens. Mr. Chairman and members
of the Committee, I am honored to be here today to discuss
SMCRA, a law that I have spent nearly 30 years enforcing.
I was born and raised in a coal camp in Harlan County,
Kentucky. My father and my grandfather were coal miners.
Today's industry is not the same as it was 30 years ago. As
Mr. Duncan pointed out, most of the mom-and-pop operations are
gone. Nearly 80 percent of the industry is publicly owned.
Although ownership of the industry has changed, the goal
remains the same: to make a profit. Our goal as regulators also
remains the same as it was in 1977: to achieve reclamation.
I want to share a few examples of how OSM and our state
partners have adapted enforcement strategies in just the last
four years to achieve reclamation in this changing economic
environment.
Lodestar Energy held 75 permits in three states. The owners
worked on Wall Street. When the company failed to produce a
profit, they filed bankruptcy. Some of the coal operations were
sold, and they planned to abandon 20 remaining unreclaimed
sites. To further complicate matters, the surety company that
guaranteed the bonds was in receivership.
Rather than give up, the state and Federal regulators
combined efforts. Federal enforcement actions were issued, and
we persuaded the owners that achieving total reclamation was
the best solution. In the end, over $12 million was distributed
among the three states to complete reclamation.
Horizon Natural Resources was the largest coal bankruptcy
case in U.S. history. The regulators were faced with how to
reclaim 300 abandoned sites in five states, at an estimated
cost of $350 million. Although the surety bonds were viable,
they were not sufficient to achieve reclamation on a permit-
specific basis. Working together, the regulators developed a
strategy to keep the assets with the liabilities, to utilize
alternative enforcement, and to insist that no permit be left
behind.
The result was a settlement agreement that created a
reclamation-only company with sufficient assets to cover
reclamation costs. I am happy to report the job is nearly
three-quarters done. Reclamation liability decreases daily.
The final example is a case where the abandoned mines and
permits were in Virginia, but the assets to reclaim the sites
were in Texas. OSM again used enforcement to assist the state,
and persuaded the owners to fund the reclamation. The savings
to the Virginia bond pool was $1.5 million.
In all three cases I have described, regulators used the
tools available in SMCRA to bring about reclamation. Although
these were mainly state issues, OSM used its national presence
to help the states reach beyond their borders to achieve
reclamation.
I am proud of what we have accomplished in 30 years. I am
not here to say SMCRA is without flaws, or our decisions were
always correct. But I do believe SMCRA was good for the
country, and one of the best things Congress has done for the
environment.
I know what life was like before SMCRA. I have lived the
changes. They are good. SMCRA was the right thing to do.
Thank you, Mr. Chairman. I would be happy to answer any
questions that you or the Committee members may have.
[The prepared statement of Mr. Bandy follows:]
Statement of Earl Bandy, Chief, Applicant Violator System Office,
Office of Surface Mining Reclamation and Enforcement (OSM), Introduced
by Glenda Owens, Deputy Director, OSM, U.S. Department of the Interior
Mr. Chairman and Members of the Committee, it is a great honor to
appear before you today as a witness for the Office of Surface Mining
Reclamation and Enforcement (OSM) on the Surface Mining Control and
Reclamation Act (SMCRA) of 1977.
August 2007 will mark the 30th Anniversary of SMCRA, and September
2007 will mark my own 28th anniversary working for OSM. I have served
OSM as an inspector, investigator, and manager and, in a few weeks, I
will begin a new position as Director of OSM's Knoxville Field Office
with responsibility for the Tennessee Federal Program and with
oversight responsibility for Virginia. In my various positions, I have
inspected mine sites in at least a dozen states and visited coal mines
in nearly every state in this nation with active operations.
For nearly three decades, I have seen how SMCRA works on the
ground, and the evolution of its implementation. I have had the
opportunity to personally witness many of OSM's greatest successes as
well as some of its failures.
Like many of my colleagues in OSM, I grew up with coal. My late
father and grandfather were coal miners in Harlan County, Kentucky. I
was born in the company hospital and lived in a company-owned house. As
a child, I learned that our existence revolved around coal. Not only
did coal heat our house, it also put the groceries on the table,
clothes on my back, and toys in my stocking. I also remember learning
that the coal company made the rules and that was the final word.
I spent my childhood hunting, fishing, gardening, climbing trees
and climbing mountains. My great appreciation for nature led me to
study earth sciences and, specifically, reclamation in college. My
first job was as an inspector for the State of Kentucky.
The Need for SMCRA
During the mid 1970s, most counties in the Appalachian coal fields
were dotted with hundreds of small surface mines. Small operators were
often heavily in debt and light on experience. One unanticipated event
could easily lead to a total business failure. In contrast, large
operators supported local economies by providing large numbers of jobs,
related infrastructure, and a local revenue stream.
From both the small and large operations I saw streams choked with
sediment, and spoil and rocks dumped on the downslope in steep terrain.
I witnessed the results of unpredictable blasting events and saw the
exposed highwalls and abandoned entries that were left behind. These
failures to reclaim the land resulted from many failures in the system
that existed then--under-capitalized operators and highly variable
regulatory standards and inconsistent enforcement from one state to the
next. This created an economic advantage for operations in states with
low reclamation standards or lax enforcement. In short, the reclamation
principles now embodied by Congress under SMCRA were not used in a
consistent way by state regulators or by the industry prior to its
passage.
It was these conditions that were to be addressed by SMCRA, which
was enacted by Congress in 1977. Mr. Chairman, you were there, and you
don't need to be reminded that SMCRA was hotly debated, vetoed twice
and remained controversial for years. There were those who thought that
enacting SMCRA was the end of the world. A great many disparaging
things were said then about SMCRA and about OSM. Given this tense
environment, it is amazing to me that the authors of the SMCRA had the
foresight to see so far into the future and give us such a coherent
framework in a very complex document. I can say that now, having
witnessed three decades of SMCRA's development.
Implementation of SMCRA
SMCRA leveled the playing field in a number of ways. It
standardizes coal mining and reclamation regulations from State to
State. It assures that coal mining operations in one State do not have
an economic advantage over operations in another State. It requires the
companies to take responsibility for the impacts of their operations.
Perhaps most importantly, it requires that citizens have a voice in the
permitting process, enforcement of regulations, and rulemaking.
During the early years of SMCRA's implementation, I believe the OSM
inspector was the most unpopular person in the coal fields. The State
agencies just could not imagine someone telling them how to permit or
inspect operations within their boundaries. The coal operators disliked
OSM even more and often attempted to play us and the states against
each other. Finally, there were the citizens. They were upset because
they thought we should put an end to all surface coal mining
operations.
Despite the resistance to change, OSM inspectors marched on. If
someone threatened us, we figured they were just having a bad day; if
our tires were flattened, we simply changed the tire; if we were
refused entry at the mine, we returned with the U.S. Marshall. We did
not go away, and slowly, we began to see a change.
In those early years, OSM experienced one of its first course
corrections. Initially, each violation carried a mandatory civil
penalty that increased daily if operators did not comply. Very soon,
using our enforcement authority, OSM had issued thousands of violations
and assessed millions of dollars in unpaid federal civil penalties.
However, OSM was doing little to compel compliance beyond requiring
cessation of operations, and basically nothing was done to collect
outstanding penalties from the under-capitalized small operations that
found it easier to quit than to comply, particularly when facing
penalties that were increasing each day. Further, some of those same
individuals that abandoned sites created new companies and came right
back in business under a new name. Citizens groups sued OSM because of
the huge backlog of unpaid fines that had developed.
In 1980, OSM revised its rules to place a cap on penalties for
unabated violations and required the use of one or more alternative
tools to achieve compliance. Soon after, my job changed from being an
inspector to being an investigator for a task force created
specifically to deploy one of those alternative tools from the tool bag
Congress gave us in Section 521(c) of SMCRA. This provision authorizes
OSM to compel individuals who own or control coal mines to correct
violations attributable to a corporate permittee.
Members of the task force worked closely with the Solicitors Office
to determine if owners or controllers had sufficient corporate or
personal assets for us to compel them to reclaim the land. That Task
Force and resulting case law established the principle that the ability
to control a coal mine creates the duty to comply with environmental
aspects of SMCRA. I investigated a number of these cases and when it
was all said and done the result was thousands of acres of land
reclaimed and collection of many outstanding penalties. This concept,
known as alternative enforcement, has continued to gain momentum in
getting land reclaimed and, more importantly, serves as a powerful
deterrent for companies who consider abandoning a site without
conducting proper reclamation.
Another problem in the early days was the two-acre exemption, a
loophole in the law by which large mining companies avoided regulation
by working through contractor companies to mine along a string of
operations, which individually could qualify for the two-acre
exemption. Congress eventually closed the two-acre exemption loophole,
but that did not eliminate all abuses that were associated with coal
mining through contract operators.
I investigated many instances in which well-heeled coal operators
who used contractors (who had to deliver the coal they mined to them)
were claiming they had no responsibility for complying with SMCRA at
these contract operations. OSM and the States had to start paying
attention to the ability of larger coal companies to control those
contractors and hold the controlling companies responsible under
appropriate circumstances. In response to a 1985 Court case settlement
involving civil penalty collections, OSM developed the Applicant/
Violator System (AVS) to track control of mining operations and hold
controlling companies and individuals responsible for mining within the
regulations, paying fees, and reclaiming the land.
Since 1990, I have served as investigator, team leader and manager
of the AVS Office. The AVS implements another tool Congress supplied in
Section 510(c) of the Act. Under this provision of SMCRA permittees
know that if they control a site with outstanding violations or unpaid
penalties or fees, they cannot obtain additional permits until the
outstanding issues are resolved. In my opinion, this has been SMCRA's
most effective tool in changing the behavior of coal companies.
AVS has been very effective in making sure those companies and
individuals interested in remaining in the coal mining business take
care of past problems they can be linked to. The AVS has given us a
means of resolving unabated state and federal environmental violations
and civil penalty assessments without resorting to court action to
compel reclamation. Since the AVS was created we have resolved hundreds
of cases attributable to past operations of the major producers. One of
those accounted for reclamation of nearly 500 contract mining
operations in three states. The reclamation alone was valued at over
five million dollars. The AVS has produced thousands of settlement
agreements resulting in considerable reclamation and millions of
dollars of payment in fees and penalties for both OSM and the State
Regulatory Authorities.
In the 1990s, the hostile relationship between States and OSM began
to fade. This began with the effort by Director Robert Uram to refocus
OSM's oversight role on results and to involve the states more directly
in the evaluation process. Rather than spend days pointing out each
others shortcomings, the States and OSM began working as partners to
find resolutions to problems. That relationship, the true ``cooperative
federalism'' envisioned in SMCRA, has continued to build to this day.
More recently, the State Regulatory Authorities and OSM have added
a new meaning to cooperative federalism. Beginning in 2002, we saw
several entities file bankruptcy in an attempt to evade reclamation
obligations. These were multi-state operations where the mines and
liabilities are located in one state and the assets and ultimate
controllers are located in another. One case involving 425 SMCRA
permits located across five states was the largest coal bankruptcy case
in history. By utilizing duel enforcement and combining legal
resources, the States and OSM together sent a clear message that it was
unacceptable to socialize reclamation liabilities. The result was
reclamation activities and assurances valued at nearly 400 million
dollars.
The Continuing Legacy of SMCRA
I cannot imagine what our nation's land and water resources would
be today if it were not for SMCRA. Congress' enactment of such a
forward-thinking law was an awakening and recognition of the
potentially dangerous and harmful cumulative effects of coal mining on
the land and water. After years of resistance, coal companies
acknowledge that reclaiming the land benefits them as well as the
communities in which they operate. I believe that these companies now
approach reclamation thoughtfully, with a businesslike attitude and an
awareness of environmental impacts that did not exist before SMCRA.
This is the true success of SMCRA.
About 29.5 billion tons of coal have been mined while SMCRA has
been in place. Most of that, about 90 percent, was used to generate
electrical power. During this same time, the coal mining industry has
successfully reclaimed more than 2 million acres (2,238,560) of mined
lands. The reclamation accomplishments at many of these mines are truly
impressive, exceeding all State and Federal regulations. Millions of
trees have been planted for both commercial forestry and wildlife
habitat, trees that recreate or extend the hardwood or pine forests
native to the area. Wetlands, often part of mine drainage control, also
have been reclaimed and restored. Mines that have been reclaimed for
farmland show high levels of productivity. In re-mining operations,
similar results occur with the added benefit of cleaning up abandoned
surface, as well as underground mines.
In addition to ensuring that active mines operate in an
environmentally-sustainable manner, the other daunting task assigned to
OSM under SMCRA was to restore mined lands that were abandoned before
the law was passed. Today, almost 240,000 acres of high-priority mine
lands abandoned before 1977 have been reclaimed. The Abandoned Mine
Land Program has eliminated safety and environmental hazards on a total
of 314,108 acres. As with the active mining operations, the reclamation
accomplishments are extensive and can now be done to a standard barely
imaginable when the law passed. Useful buildings have been saved from
collapse, sheer highwalls turned to rolling grassland, streams where
fish could not live now support thriving wildlife populations. Forests
are beginning to grow.
The credit for these accomplishments belongs largely to the people
working in the regulatory and reclamation programs for the coal States
and Indian Tribes. There are about 2,400 people in this country
responsible for implementing the Surface Mining Act. Only a little over
500 of them work for OSM. That's the way Congress envisioned things
working when it gave us SMCRA. We try to set the standards and solve
the problems at the federal level, but it's the States and Tribes and
their citizens who know their own issues best.
The first 30 years of SMCRA have shown that we can balance the
nation's need for domestic coal energy with protection for the
environment. Mining should be a temporary use of the land and when
mining is done, the land should be put back the way it was or put to
some good use.
The Next 30 Years of SMCRA
Over the next 30 years, I expect that vibrant debate will continue
over provisions of the law or how it's implemented. Many citizens are
opposed to mining techniques like longwall mining or mountaintop
mining. Some oppose the use of coal ash in reclaiming abandoned mines.
Ongoing litigation continues between OSM and the mining industry over
issues like ownership and control.
As someone who has lived through and participated in many of the
debates in SMCRA's history, I have confidence that eventually these
questions will be settled, and the discussion will move on to new
issues. When we experience failures, as in the examples I have cited
today, we should do our best to turn them into successes. SMCRA will be
better for it, as will the coalfields, communities, and the States.
My generation--SMCRA's first generation--is getting to be
retirement age. In the next five or six years we're going to be
replaced by a new generation. These new folks coming up bring with them
new ideas and new technological tools my generation could not have
dreamed possible. For example, technology continues to provide us with
new ways to measure and mitigate environmental impacts. One of the
challenges we face now is how to combine what my generation has learned
with what the next generation can discover and use it to benefit
Americans living and working in the coalfields.
Conclusion
I appreciate this opportunity to provide my personal insight into
30 years of the Surface Mining Control and Reclamation Act. I am not
here today to say SMCRA is without flaws or has always been perfectly
implemented. But I do believe that SMCRA has been good for the country.
It may well be one of the best things Congress has done for the
environment.
So, as a boy who grew up in the old coalfields, who has devoted his
career to OSM, and who has seen dramatic changes for the better because
of what Congress did back in 1977, I am here to say thanks. It was the
right thing to do.
Mr. Chairman, I would be happy to answer any questions that you or
members of the Committee may have.
______
The Chairman. Thank you both for being with us this
morning. And Mr. Bandy, thank you for your testimony.
Mr. Bandy. Thank you.
The Chairman. I appreciate the manner in which you gave it.
It was from the heart, and so much so that I have to question
whether OMB actually heard it. Or whether they cleared it or
not would be a better question. Do you happen to know?
Mr. Bandy. Mr. Chairman, I know it was submitted to OMB.
[Laughter.]
The Chairman. Deputy Director Owens, what is the status of
your implementing the National Research Council's
recommendations on the use of coal power plant waste in mine
reclamation?
Ms. Owens. Mr. Chairman, OSM published an advanced notice
of proposed rulemaking in March of 2007. The comment period of
that notice closed in June. We are currently reviewing
comments, and our plan is to get a proposed rule out by the end
of the year.
The Chairman. Is this going the way of your agency's
reaction to the National Academy's Coal Waste Empowerment
Study? The number of National Academy assigned studies? The
Office of Surface Mining is ignoring or starting to stack up,
it appears, like building blocks.
Ms. Owens. We have no intention of ignoring it, sir. In
fact, as I said, our every intention is to have the rule
published by the end of the year.
The Chairman. OK. You spoke of the cooperative Federalism
with respect to a relationship between the agency and the
states. My fear is that this may have evolved into cooperative
cronyism. Enforcing SMCRA is not about winning a popularity
contest.
For instance, does deferring to a state's 10-day notice
response constitute independent oversight that the Act
envisioned?
Ms. Owens. Sir, I think that the Act requires, because of
the way that the Act is constructed, and that is what the
state's taking primacy and having primary regulatory
responsibility, and OSM functioning in an oversight capacity,
it is our responsibility to allow the states to take the
corrective action that is necessary, which is why the Act
provides for the 10-day notice process.
The Chairman. But that does not preclude Federal
enforcement. Is that correct? Would you agree with that
statement?
Ms. Owens. Certainly not, sir, it does not. In the event
where the determination is made that the state has not taken
appropriate action, OSM will take necessary action.
The Chairman. OK. Deputy Director Owens, in 1998 I publicly
expressed concern with a report that the majority of
mountaintop removal mines in West Virginia were given permits
without AOC variances. A great deal of litigation and policy
changes have taken place since that time. However, my concern
remains. And I touched upon this in my opening remarks. And
that is, to what extent are mining operations that are viewed
as mountaintop removal technically not categorized as such?
They may use a combination of point removal, area mining,
and contour cuts. And for all intents and purposes have the
character of a mountaintop removal operation, but have not
received an AOC variance, and have not submitted a post-mining
land use plan that includes those higher uses that would
benefit the economies of coalfield communities, the better
post-mining uses to which I referred.
I would expect your agency has looked into this matter as
part of its oversight. Would you care to comment?
Ms. Owens. Mr. Chairman, that is, in fact, correct. OSM is
very much aware of the issues associated with mountaintop
mining. As you mentioned, there has been litigation on the
issue since 1998. We have engaged in rulemaking, and in fact
currently we are working cooperatively with state and Federal
regulators in the development of guidance on certain issues
related to mountaintop mining, such as AOC, the variances, the
post-mining land uses, and return of mined land to useful and
productive hardwood forestry.
We have also engaged in a national rulemaking on two of the
issues associated with mountaintop mining: extreme buffer zone
and excess spoiled fuel rule. We have a proposal that is in
final review, and it should be published in the near future.
The Chairman. Well, I would only respond that it has been a
little over 10 years I think since we last had our oversight
hearing, where I asked a similar question and got a similar
answer.
Ms. Owens. Well, I wasn't here 10 years ago. But I can tell
you that I was in the Solicitor's Office at that time, and I
was involved in the litigation on mountaintop mining. I know
that it has been a struggle getting through these issues
because of the controversies and the confusion that the
regulation has wrought, which is why OSM now feels that a
national rulemaking on these issues is appropriate.
The Chairman. But does OSM have a definition of AOC,
approximate original contour?
Ms. Owens. We do not have a definition at this point. We
are, in fact, working on a definition, looking into whether the
definition at this time is appropriate.
The Chairman. Thirty years, and we are still looking for a
definition of AOC.
Ms. Owens. I am sorry. Yes, sir. I thought that was a
statement.
The Chairman. And your response is yes. OK. Let me ask one
more question.
Turning to the recently enacted amendments to the Abandoned
Mine Reclamation Program, is it the agency's view that as a
result of those amendments, the states cannot use their AML
grants for non-coal mine reclamation.
Ms. Owens. That is an issue that we are currently working
with our solicitors on, to make sure that we follow the law as
written. So we are, a decision has not been made, but we are
working with our solicitors on that issue.
The Chairman. Continuing on this issue, and I have already
taken issue with Brent Wahlquist on this when he was Acting
Director, the Office of Surface Mining has taken the position
that the minimum program states will not receive the full $3
million minimum program amount until Fiscal Year 2010. This is
a great injustice; it is not how I read the law. And I would
appreciate if you would elaborate on how this position is being
taken.
Ms. Owens. Again, Mr. Chairman, that issue, we understand
the position of the Chair. We are looking at and working with
our solicitors to make sure that we follow the written law.
The Chairman. That you follow, I am sorry, the written law?
Ms. Owens. Written law. The law as it is written.
The Chairman. Are you talking about the amendments that we
enacted end of last session?
Ms. Owens. Yes, I am, sir.
The Chairman. Have you perhaps not read them yet?
Ms. Owens. I have read them.
The Chairman. Perhaps we have a disagreement of the intent
of that legislation, then.
My time is up. I will yield to the Ranking Member, Mr.
Pearce.
Mr. Pearce. Thank you, Mr. Chairman. Ms. Owens, what is the
legal foundation for the regulations under the SMCRA of surface
mining on non-Federal lands? What is the legal foundation?
Ms. Owens. I am sorry, sir, could you--I am not
understanding your question.
Mr. Pearce. The legal foundation for the national
regulations for those non-public, non-Federal lands.
Ms. Owens. Non-public, non-Federal lands?
Mr. Pearce. Yes, the mining----
Ms. Owens. The legal foundation for all of our regulations
are the Surface Mining Act.
Mr. Pearce. OK. But the underlying foundation of those
regulations, I understand it comes from the Act. I am asking
about the legal foundations.
Ms. Owens. The Act does provide the legal foundation,
unless I am missing something, sir. I apologize.
Mr. Pearce. Have any of the foundations been challenged in
court?
Ms. Owens. Of regulation?
Mr. Pearce. The legal foundations for the regulation. In
other words, has a court looked at the legal foundation for the
regulatory basis of SMCRA?
Ms. Owens. Mr. Congressman, as I am sure you are aware,
most of, or I should say a large percentage of regulations that
are promulgated and that have been promulgated under SMCRA over
the years and currently are challenged in court.
Mr. Pearce. And generally what is the finding of the court?
Supporting the regulatory basis, or are they not?
Ms. Owens. We have had instances, because of the breadth of
the challenges to the regulations, we have prevailed in some
cases and not in others. And when we have not, we have taken
action accordingly with the courts' decisions.
Mr. Pearce. Do you think that Congress can effectively
preempt states' regulation of oil and gas production on non-
Federal lands? Do you think that we can do that here in
Congress?
Ms. Owens. Well, Congress has the power to write the laws.
I would assume that if you write them in that way, you could.
Mr. Pearce. OK. Do you know, Mr. Bandy, you had mentioned
that you kind of confirmed the statements made by Mr. Duncan,
that we have evolved from the mom-and-pop operations to 80
percent publicly traded. Is that healthy for the industry? Has
that been a good change?
Mr. Bandy. Well, the industry has changed a lot in 30
years. The amount of work that goes into obtaining a permit is
very expensive. There is a lot of engineering and design work
that goes into that, and a lot of equipment cost. It is
expensive.
It is being approached more as a business approach. And I
see maturity in the industry, and likewise in the state
programs.
Mr. Pearce. As a regulator looking at it, is it a healthier
industry now? Is it safer, cleaner, everything that regulators
look at?
Mr. Bandy. Yes, sir. We have looked at numbers, and one of
the things I currently do is the applicant violator system,
which looks at violations, companies with violations. And we
see a decreasing number of non-forfeitures and a decreasing
number of cessation orders when you compare back to previous
years.
The industry as a whole has consolidated, and you see quite
a bit of consolidation of the industry today.
Mr. Pearce. I wonder how many people were employed in the
coal mining industry.
Mr. Bandy. I think it is about 250,000, but I am not
positive of that, nationwide.
Mr. Pearce. And an average coal miner might make what?
Mr. Bandy. I would say $100 a day.
Mr. Pearce. A thousand dollars a week then, more or less.
Mr. Bandy. I guess so.
Mr. Pearce. So it is pretty good, high-paying jobs,
compared to New Mexico scale. And the contribution to the GDP?
Ms. Owens, would you know that?
Ms. Owens. No, sir, I am sorry, I don't.
Mr. Pearce. I think it is about $100 billion. A lot of
those are union jobs. I think what we do here has a great
effect on the economy, the cost of our energy, and on the jobs
in the coal industry.
Thank you, Mr. Chairman. I see my time is about to elapse.
The Chairman. Jim, let us see. Let me recognize in order in
which you came in. Mr. Grijalva, Mr. Inslee.
Mr. Inslee. Yes. A few months ago I talked to a lady from
Marsh Fork Hollow. And she told me about the destruction of her
community by mountaintop mining. And as someone who is not
personally familiar with it, it was really distressing. She
told about her son going out; the first time it really got bad
is in the creek behind their house, a place that they had
played for generations, becoming just, the water just looked
threatening. Not a place where a kid could play any more.
Then they started talking about the dust. Then they talked
about the dam, that she couldn't sleep at night because they
all had to sleep in one room. They were worried it was going to
collapse. And they eventually had to leave. And this whole
community basically, not on the land that was owned by the
mine, but adjacent to it. And they all left.
And listening to her, it was apparent to me that Federal
policy had failed to protect Americans from some of the
devastation caused by this particular kind of mining.
I am not as familiar with the specifics as the Chairman and
the other members of the Committee. I am concerned when I hear
that there has apparently been a violation of a failure by the
Federal government to protect against the destruction of
streams by this, by issuing permits, if you will, at the same
time that we are destroying these stream beds.
It seems to me like there needs to be some significant
review of the performance of the Executive Branch, and/or a
change in the law, given the destruction that at least I have
been told is occurring. Could you both comment on that?
Ms. Owens. Mr. Congressman, as I mentioned earlier, OSM is
painfully aware of the issues associated with mountaintop
mining. And in an effort to address many of those issues, we
have been and continue to work cooperatively with the state and
Federal regulators.
One of the things that we are currently doing is working
with the EPA, the Corps of Engineers, the Fish and Wildlife
Service, to come up with ways to ensure that we issue better
permits; that there is coordination between those agencies--in
particular, the Corps of Engineers--that have responsibility to
ensure that the Clean Water Act requirements are met.
In the stream buffer zone regulation that we are proposing,
one of the issues we are addressing is to clarify the
conditions under which mining activities can occur in or near
streams. So we are looking at those issues and attempting to
address them.
Mr. Inslee. What is the status of this? At one time there
was litigation, I think last year, where the Administration was
allowing mining that they were aware were filling in stream
beds, and actually physically destroying the stream bed. And my
understanding is that the Administration allowed that to occur.
There was litigation, and my understanding is the court issued
an injunction or stopped the Administration somehow from doing
that. What is the status of that?
Ms. Owens. Well, I think you are referring to a District
Court decision, which the District Court Judge did not allow
the decision; said that there could be no placement of spoil in
perennial streams. However, the Fourth Circuit Court of Appeals
overturned that.
Notwithstanding that fact, we recognize that there are
issues, and we have begun to address them in the proposed
rulemaking.
Mr. Inslee. Well, maybe you can tell me. Do you think it
should be the law that mountaintop mining could result in
destroying these streams? Do you think that should be the law?
Ms. Owens. No, I don't.
Mr. Inslee. And under the current law, are they allowed to
do so?
Ms. Owens. The law does not allow for destroying of the
streams. In fact, one of the issues associated with the stream
buffer zone rule is some of the confusion we realized through
the course of the litigation over this is that there was
confusion over the interpretation of the rule, which is why we
have----
Mr. Inslee. Do we need a statutory change to clarify that?
I mean, if you are telling me that you think they shouldn't be
destroyed, but the Fourth Circuit Court allowed the mining to
go through, which dumped spoils in a stream bed and literally
destroyed it, does that suggest we need a statutory change? Or
is the Executive just not applying the statute correctly?
Ms. Owens. I think our regulations have attempted to apply
the law correctly. We have, however, as I said, as a result of
litigation and the different results that came out of that
litigation, our regulation now attempts to add some clarity to
the confusion that exists.
Mr. Inslee. And have those then issued? Is there a proposed
regulation out?
Ms. Owens. No. The proposed regulation is in final review,
and we expect that it will be issued soon. In the near future.
Mr. Inslee. Well, we hope to see it. Thank you.
The Chairman. The gentleman from North Carolina, Mr.
Shuler?
[No response.]
The Chairman. The gentlelady from Guam, Ms. Bordallo?
[No response.]
The Chairman. The gentleman from Maryland, Mr. Sarbanes?
[No response.]
The Chairman. OK. Oh, I am sorry.
Mr. Shuster. You forgot me over here.
The Chairman. The gentleman from Pennsylvania, Mr. Shuster.
I am sorry, Bill.
Mr. Shuster. Thank you very much, Mr. Chairman. I am
equally concerned about what has happened in mining and to the
environment. But I have seen in my district communities
destroyed, not necessarily because of what has happened to the
environment, but because of what has happened to coal mining,
and the burden and the regulatory burden that the government
has placed on it now.
I certainly think that we have to have laws in place to
protect the environment, but we also have to make sure that we
protect this industry so that it can create the jobs that are
so necessary to get the coal out of the ground, to be able to
use it for power in this country.
As I have said, I have seen a number of communities that
have been destroyed and are trying to rebuild themselves,
trying to open up mines that were at one time very productive
mines, closed down for various reasons. But the process they
have to go through is very burdensome. It takes a long period
of time, it is very expensive. And I hope that we can
streamline some of this, so that we can open some of these
mines that, as I have said, had been mined in the past in
western Pennsylvania, and are important to this nation,
important to my district, important to regular people.
I think somebody mentioned about the kind of money a miner
makes today. One of the, I guess it is a good problem we have,
is we can't get enough miners in western Pennsylvania to mine
the coal. So I am very concerned about the regulatory burden
that we place on these companies.
One question I wonder if you might be able to comment on,
on lands that have been reclaimed. What is the record on their
productivity once they have been reclaimed, that you have
found?
Ms. Owens. I couldn't answer across the board, but I can
say that one of the initiatives that OSM is engaged in now is
ARRIs, our Appalachian Regional Reforestation Initiative. And
that is an effort to return mined lands to productive hardwood
forests. And of course, that has all the benefits of the
reforestation creating natural habitat for wildlife and carbon
sequestration possibilities.
The goal of the Surface Mining Act and the regulatory
program is to ensure that post-mining land uses return the land
to at least as good, if not better, uses than prior to mining.
Mr. Shuster. And do you have any statistics, any records on
if that has been the case?
Ms. Owens. I can get statistics. I don't have any with me.
Mr. Shuster. But it has been my, in traveling throughout my
district--of course, mining is important, but also hardwoods.
Pennsylvania has some of the greatest hardwood forests in the
world. And when I have been talking to folks that timber, they
say the productivity in cases has exceeded what it was before
mining went there. But again, I would like to see some
statistics on your department, if you keep that and track those
kinds of things. I think it would be very important to us as we
craft legislation, as we go through this Act.
The other question that I have is concerning the fees that
are collected from the operators. They are done on a voluntary
basis. What is your feeling? Do you feel as though they are
being collected? Are we getting 100 percent, or close to 100
percent, of what we think should be collected, to be able to do
these recommendations?
Ms. Owens. Fees assessed against coal produced?
Mr. Shuster. Yes.
Ms. Owens. Well, that is not voluntary. That is required
under the Act.
Mr. Shuster. I know that. But the reporting, I guess, is
voluntary, is that correct?
Ms. Owens. I am sorry?
Mr. Shuster. The reporting on the production, is that
voluntary, or is there an auditing process in place?
Ms. Owens. That is required, as well. And I believe we have
99 percent compliance with that requirement.
Mr. Shuster. OK. The other thing that I wanted you to
comment on was that in recent years they have increased the
flexibility of how those monies can be used. A portion of it,
or it seems to be an increasing portion of it is going into
water systems, which of course is important. But I am concerned
that the money is not being spent on reclaiming the land, and
then down the road somewhere we need to figure out how to get
money in to improve those water systems.
What do your numbers show as far as that? Are we seeing a
significant increase in those monies being used for water
treatment facilities instead of the reclamation?
Ms. Owens. I am sorry, I don't have the statistics on that.
I do know that the monies, the fees that are collected on the
coal produced go into the Abandoned Mine Land Fund, and the
projects that that fund finances are those that come from our
Abandoned Mine Land Inventory System. And those are high-
priority projects that the Act established and requires us to
require states with abandoned mine land programs to clean up.
Mr. Shuster. Well, at some point, you probably have
statistics on that, also. Again, my question was because of the
flexibility we put in the law, more of that money is going into
cleaning the water systems instead of the reclamation projects.
Sometimes that goes hand in hand, but I wonder if you could
give me some statistics on that and see where that money is
flowing.
Ms. Owens. To the extent that we can get those, I will.
Mr. Shuster. Thank you very much. Thank you, Mr. Chairman.
The Chairman. The gentleman from Idaho, Mr. Sali.
Mr. Sali. Thank you, Mr. Chairman. Ms. Owens first, and
then Mr. Bandy. And just a short answer.
Do you feel like your office has been able to do a good job
of regulating coal mining and reclaiming land, and protecting
the environment through the Surface Mining Act?
Ms. Owens. I think that we have, what we have done is done
a good job. We are in the process of--and Mr. Chairman alluded
to this earlier--establishing a regulatory framework that
allows for the states and tribes to regulate under the surface
mining programs.
Ninety-seven percent of the coal that is produced in this
nation is permitted and regulated under the state regulatory
programs. And it is in our interest to make sure that those
states succeed. And the way----
Mr. Sali. Do you believe they are succeeding in taking care
of the environmental concerns and whatnot with regulating coal
mining in this country today?
Ms. Owens. I think they are improving. As you know, this
has been a 30-year effort. We have had some successes, we have
had some challenges. We have had some failures. But we have not
ceased to work on the improvement of our effort, and to
continue to work cooperatively with the states.
What we have found is that our increased cooperative effort
with the states is yielding better results than when we were in
a confrontational mode with them. So it can----
Mr. Sali. Mr. Bandy, do you feel like your office has been
able to do a good job of regulating coal mining in this country
and protecting the environment, all those goals that are set
out in the Surface Mining Act?
Mr. Bandy. Yes, sir, I do. I don't think we have been
perfect, but I would hate to see what it would have been like
without us 30 years ago, in 30 years. I see a lot of maturity
and a lot of dedicated people.
The problem with, or the issue with being a regulator is
you kind of straddle the fence. And nobody is ever really happy
with your decision, neither the industry or the citizens. But
you try to find that balance, as laid out in the purposes of
the Act, to balance our country's energy needs with their
environmental concerns.
Mr. Sali. And along those lines, I guess the point I am
trying to get to is this. I know you have new regulations that
have been promulgated and will guide the future, I guess is
probably the best way to say that.
Is there any authority that you lack in your office, under
the Surface Mining Act, that you need to be able to go out and
protect the environment in ways that it is not being protected
today? And I recognize, Mr. Bandy, that you use judgment;
sometimes you don't use the full extent of your authority. But
is there a place where you run up against a lack of authority
from your office to be able to regulate for the environment? To
be able to punish people who offend? To be able to come up with
regulations that will take care of any issues that have come
up? And I say that, tempering, knowing that the courts get
involved and sometimes interpret things differently.
But do you lack authority to deal with the issues that are
supposed to be taken care of under the Surface Mining Act?
Mr. Bandy. No, sir. One of the things that inspectors and
regulators have dealt with for years, how to deal with
bankruptcies. And pretty much, we figured, and when they file
bankruptcy, it is all over; everybody loses.
But the cases I have pointed out in my oral testimony is it
is an example of how we tweak and reused what SMCRA gave us 30
years ago in today's economy, in today's environment, to get
favorable results.
Mr. Sali. Ms. Owens, would you respond to that question? Is
there any place where you lack authority to act that you would
need Congress to engage?
Ms. Owens. Nothing that comes to mind immediately, Mr.
Congressman. As Mr. Bandy said, we have been able to, through
the years, adapt to the needs of the Surface Mining Program.
The challenge that we have, as he also stated, is striking that
balance. And I think that we have done a pretty good job of
attempting to do that.
Mr. Sali. You would agree that striking that balance
generally means that you would exercise less authority than you
have under the Act?
Ms. Owens. No, not at all. It just means that we exercise
the authority that is given us, recognizing the need; the need
for coal by the nation. But then also to make sure that it is
done in an environmentally sound manner. And I think SMCRA
gives us the tools to do that. And I think we are doing a
pretty good job of utilizing those tools to that result.
Mr. Sali. Thank you, Mr. Chairman.
The Chairman. The gentleman from Nevada, Mr. Heller.
Mr. Heller. No questions. Thank you.
The Chairman. The gentleman from New Jersey, Mr. Holt.
Mr. Holt. I pass, Mr. Chairman.
The Chairman. OK. Before we let you go, let me just go back
one more time to the definition of AOC. You are saying 30 years
now, we still don't have a definition of approximate original
contour. I would seriously, seriously ask you, how do you
expect anybody to comply with the law if 30 years later you
still don't have a definition of what one of the basic tenets
of that law, return to AOC, approximate original contour?
Ms. Owens. Mr. Chairman, I think you are aware that there
is a statutory definition of approximate original contour, and
that is the definition that we follow.
The Chairman. I have in front of me the original SMCRA Act,
1977. My copy. My notes I wrote on it 30 years ago. I wish I
still had a picture of what I looked like at that time to put
in here, as well.
[Laughter.]
The Chairman. But here are my notes. ``Strong bill.'' And
``requiring return to approximate original contour.'' My
eyesight is not as good as it was 30 years ago, either. Well,
my handwriting has gotten worse, that is for sure.
The bottom line is I wrote on here, ``approximate original
contour and better post-mining uses of the land.'' This bill
was supposed to address the problems of small operators and
permits, the states' rights if the states meet Federal
guidelines. This is a note I must have written for a press
interview or something. But anyway, approximate original
contour. And we still don't have a definition.
Ms. Owens. Well, Mr. Chairman, unfortunately we didn't have
the benefit of your handwritten notes. We only have the
statutory definition, which we have attempted to follow over
the years.
The Chairman. Well, I would hope we could get something
more definite than a statutory definition, so that we know what
is legal and how to comply, the operators know how to comply
with the law. I think the agency must have a definition.
Ms. Owens. Well, we are, in fact, now working with the
state and Federal regulators to provide guidance. We are
working to develop guidance on AOC and the variances and post-
mining land uses.
The Chairman. OK. Thank you both for your testimony today.
Ms. Owens. Thank you, Mr. Chairman.
Mr. Bandy. Thank you.
The Chairman. Thank you. Our next panel is composed of
Gregory E. Conrad, Executive Director, Interstate Mining
Compact Commission, Herndon, Virginia; Stephanie R.
Timmermeyer, the Cabinet Secretary, West Virginia Department of
Environmental Protection, from Charleston, West Virginia; John
F. Husted, Deputy Chief, Division of Mineral Resource
Management, Ohio Department of Natural Resources, Columbus,
Ohio; Mr. John Corra, the Director of the Wyoming Department of
Environmental Quality, Cheyenne, Wyoming.
The Chair would like to welcome the panel for being with us
this morning, some of whom have traveled long distances. And
again, I commend you for your work. Stephanie, it is good to
see you again, and thank you for what you do in our home state
of West Virginia. I hope the baby is doing well.
We have your prepared testimony; it will be made part of
the record as if actually read. And I understand, Mr. Conrad,
you will be the lead-off witness.
Mr. Conrad. Mr. Conrad, if you would give me a moment here
while we set up.
The Chairman. OK.
STATEMENT OF GREGORY E. CONRAD, EXECUTIVE DIRECTOR, INTERSTATE
MINING COMPACT COMMISSION, HERNDON, VIRGINIA
Mr. Conrad. Good morning, Mr. Chairman, members of the
Committee. I appreciate the opportunity to appear before you
this morning, and to introduce the perspective from the states
concerning the Surface Mining Control and Reclamation Act, as
we reflect on 30 years of its implementation.
I will present a general overview of state regulation under
SMCRA, and then my colleagues from West Virginia and Wyoming
will share a more regional perspective, followed by a viewpoint
from those who operate abandoned mine land programs for the
states and tribes.
As one of the original framers of SMCRA, Mr. Chairman, you
are very familiar with the state lead concept that underpins
the implementation of the Act. In designing a regulatory model
that would be both effective and efficient, Congress decided
that the states should be authorized to regulate surface mining
and reclamation operations within their borders.
Due to the diversity of terrain, climate, and other
conditions related to mining operations, it simply made sense
to rely upon the states to implement programs based on national
standards. The other part of the equation was financial. It was
anticipated, and indeed has proven true, that the states would
be able to operate their programs at significantly lower cost
than the Federal government.
We are happy to report today, Mr. Chairman, that the
regulatory regime established by SMCRA is a success, and is
working notably well. The purposes of the Act are being
accomplished, and the overall goal of establishing a nationwide
program to protect society and the environment from the adverse
effects of past and present coal mining operations has been
achieved.
Drainage and runoff controls are in place to ensure that
downstream waters are not filled with sediment or otherwise
polluted. Blasting operations are controlled to prevent damage
to nearby property. Final grading and reshaping of mine lands
are undertaken to ensure that they are stable and approximate
their original contour. Topsoil is preserved and then replaced
to accomplish high levels of productivity, and mine lands are
reclaimed to a variety of beneficial uses, and then returned to
local landowners in equal or better condition than before
mining. And all of these statutory requirements are being
accomplished while maintaining a viable coal mining industry
that is essential for meeting our nation's energy needs.
Examples of some of the excellent reclamation that is
occurring under the Act, along with some of the various post-
mining land uses, can be seen in our two exhibits, which
highlight area state and national reclamation award winners. I
would request permission to submit these two exhibits for the
record. Thank you.
As we look to the future, Mr. Chairman, the states faced
several challenges, perhaps the most crucial being adequate
funding for state regulatory programs. Pursuant to Section 705
of SMCRA, OSM is authorized to make annual grants to the states
of up to 50 percent of the total costs incurred for the
purposes of administering and enforcing their programs. This
percentage has increased for states regulating on Federal
lands.
As you know, these grants are essential to the full and
effective operation of state regulatory programs. For the past
several fiscal years, the amounts for state Title V grants has
been flatlined, as you will note in this graph. What this does
not show is that these grants have been stagnant for over 12
years.
Looking at the graph once again, another disturbing trend
is evidenced, and that is that the gap between the state's
requests and what states are receiving in annual grants is
widening. In the end, this increasing gap is compounding the
problem caused by inflation, and uncontrollable costs is
undermining our efforts to realize needed program improvements
and enhancements, and jeopardizes our efforts to minimize the
impact of coal extraction operations on people and the
environment.
Should the Federal government be faced with operating these
programs, the impact on their budget will be significant. So
for all of these reasons, we have urged Congress to increase
funding for state Title V grants in OSM's 2008 budget to $67
million. We are encouraged that both the House and the Senate
are moving in this direction.
Let me turn briefly to some of the key successes and future
challenges facing the states. Over the past 20 years, state
programs have improved to the point that implementation is
highly successful. The overall programmatic emphasis under
SMCRA has shifted from structural and administrative issues to
specific technical issues that are encountered as reclamation
technology and science are advanced.
This is where OSM serves a valuable support mechanism for
the states, particularly through their TIPS program and the
agency's technical training program, both of which undergird
the states' efforts to operate efficient and effective
programs.
On another front, the states have worked cooperatively with
OSM and others to address acid-mine drainage issues through the
Acid Drainage Technology Initiative. The states have made
significant strides in advancing reforestation efforts on
reclaimed lands through the Appalachian Regional Reforestation
Initiative. And through a partnership among the states' OSM and
EPA we have achieved momentum in the remaining area, where
thousands of acres of abandoned mine lands have been restored
as part of active mining operations.
Among the future technical and regulatory challenges facing
the states are those related to adequate financial assurance
for long-term impacts beyond normal reclamation, prime farmland
productivity, and underground mine mapping. In each of these
instances, and in others, such as subsidence control, blasting,
and hydrologic protection, the states are actively engaged in
seeking technical solutions, as well as regulatory program
enhancements, that will fully and adequately address the
concerns associated with these issues.
Much progress has been made over the past 30 years to
accomplish the purpose and objectives of SMCRA. At this point
in the Act's implementation, we believe that it is most
relevant for OSM to focus its energies and resources on
assisting and supporting the states through adequate funding
for state grants, sound technical assistance, and opportunities
for the states to actively participate in the agency's training
program. The overall result will be excellence in state program
implementation and enhancement of the Federal/state
partnership, and better on-the-ground performance by the
regulated industry.
Thank you very much.
[The prepared statement of Mr. Conrad follows:]
Statement of Gregory E. Conrad, Executive Director,
Interstate Mining Compact Commission
Good morning Mr. Chairman and Members of the Committee. My name is
Greg Conrad and I serve as Executive Director of the Interstate Mining
Compact Commission. The Compact is comprised of 24 states throughout
the country that together produce some 90% of our Nation's coal, as
well as important non-fuel minerals. The Compact's purposes are to
advance the protection and restoration of land, water and other
resources affected by mining through the encouragement of programs in
each of the member states that will achieve comparable results in
protecting, conserving and improving the usefulness of natural
resources and to assist in achieving and maintaining an efficient,
productive and economically viable mining industry. Participation in
the Compact is gained through the enactment of legislation by the
member states authorizing their entry into the Compact and their
respective Governors serve as Commissioners. We appreciate the
opportunity to participate in this oversight hearing on ``A 30th
Anniversary Review of the Surface Mining Control and Reclamation Act of
1977''. I will present a general overview of the states' experience
with SMCRA's implementation and will then turn to my colleagues from
West Virginia and Wyoming to provide insights into the operation of
state programs in two important coal mining regions of the country.
Finally, John Husted of Ohio, who serves as President of the National
Association of Abandoned Mine Land Programs, will share the state and
tribal perspective on the AML program under SMCRA.
The Surface Mining Control and Reclamation Act is one of several
laws passed in the environmental decade of the 1970s that provided for
a unique blend of federal and state authority for implementation of its
provisions. As one of the original framers of this landmark law, Mr.
Chairman, you know that one of its key underpinnings was that the
primary governmental responsibility for developing, authorizing,
issuing and enforcing regulations for surface mining and reclamation
operations subject to the Act should rest with the states, due to the
diversity of terrain, climate, biologic, chemical and other physical
conditions related to mining operations. We are here to report on our
role and experience as primary regulatory authorities under SMCRA.
By almost all accounts, the implementation of SMCRA by the states
has been a resounding success. The anticipated purposes of the Act have
been or are being accomplished and the overall goal of establishing a
nationwide program to protect society and the environment from the
adverse effects of past and present surface coal mining operations has
been achieved. Drainage and runoff controls are in place to ensure that
downstream waters are not filled with sediment or otherwise polluted by
mining activity. Blasting operations are controlled to prevent damage
to nearby buildings and other property. Final grading and reshaping of
mined lands are undertaken to ensure that they are stable and
approximate their original contour. Topsoil is preserved and then
replaced on mined lands to accomplish high levels of productivity.
Mined lands are reclaimed to a variety of beneficial uses within a few
years after the completion of mining. Once reclaimed lands are fully
bond released, they are returned to local landowners in equal or better
condition than before mining began. All of these statutory requirements
are being accomplished while maintaining a viable coal mining industry
that is essential for meeting our Nation's energy needs. Examples of
some of the excellent reclamation that is occurring under the Act can
be seen in our two exhibits, which highlight various state, IMCC and
OSM reclamation award winners.
As we reflect back on the past 30 years since the enactment of the
Surface Mining Control and Reclamation Act (SMCRA), much has changed
and yet some things remain the same. In the early years, we were
focused on the development of a comprehensive federal regulatory
program that would serve as the baseline for SMCRA's implementation.
Many of these initial rules faced legal challenges as being arbitrary,
capricious or inconsistent with law and took many years to resolve. A
few, like the definition of valid existing rights and the procedural
rules concerning ownership and control that underpin the Applicant/
Violator System, are still unsettled. However, the majority of the
federal rules are in place and working effectively. This is not to say
that we are out of the woods with respect to significant future
rulemakings. Two examples of rules currently before the Office of
Surface Mining, Reclamation and Enforcement (OSM) are stream buffer
zones and mine placement of coal combustion by-products, both of which
the agency will soon be proposing. However, in general, the regulatory
program is more stable and certain than it was even 10 years ago, which
benefits both coal operators and citizens.
One of the key components of SMCRA when first enacted was its
reliance on a unique and challenging arrangement of state and federal
authority to accomplish its intended purposes and objectives. Pursuant
to the state primacy approach embodied in SMCRA, the states serve as
the front-line authorities for implementation of the public protection
and environmental conservation provisions of the Act, with a supporting
oversight role accorded to OSM. It has taken a good portion of the past
thirty years to sort out the components of these often competing roles,
but the result has been a balance of authority that generally works.
During the past ten or so years, the working relationship between
the states and OSM has been particularly productive and non-
contentious. We have moved beyond the second-guessing of state
decisions that predominated the early years of state program
implementation and instead are engaged in more cooperative initiatives
where OSM strives to support the states through technical advice and
training and where the states and OSM work together to solve difficult
policy and legal questions. OSM's oversight program is more focused on
results, looking at on-the-ground reclamation success and off-site
impacts, which better reflect the true measure of whether the purposes
of SMCRA are being met. In fact, over the years, both OSM's oversight
program, as well as several state performance-based regulatory
programs, have received national recognition for their effectiveness
and efficiency.
This is not to say that there are not several challenges ahead of
us as we look to the future. Perhaps the most crucial at this juncture
is adequate funding for state regulatory programs. Pursuant to section
705 of SMCRA, OSM is authorized to make annual grants to the states of
up to 50 percent of the total costs incurred by the states for the
purposes of administering and enforcing their programs. This percentage
is increased for those states that regulate on federal lands. As you
know, Mr. Chairman, these grants are essential to the full and
effective operation of state regulatory programs. For the past several
fiscal years, the amount for state Title V grants has been flat-lined.
(See figure 1) What this graph does not show is that these grants have
been stagnant for over 12 years. The appropriation for state Title V
grants in FY 1995 was $50.5 million. Essentially, we have attempted to
operate effective, high performance programs with a meager $6 million
increase spread over 12 years. By most standards, this is remarkable,
and clearly a bargain for the federal government. Over this same period
of time, coal production has risen substantially and OSM's own budget
for federal program costs has increased by over $25 million. Given the
fact that it is the states that operate the programs that address the
environmental impacts of coal mining operations, a similar increase
would have been expected. But instead, state regulatory grants have
remained flat-lined.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
For Fiscal Year 2008, in an attempt to reverse this trend, OSM has
proposed a modest increase for state Title V grants. However, it may be
too little too late, especially for some states such as Virginia and
Utah. In Virginia, for instance, coal production and operating costs
have increased, while federal funding for state-based coal regulatory
programs has consistently decreased. The rise in costs associated with
wages, employee benefits, and transportation fuels have risen
approximately 15% over the past four years. Due to the loss of federal
funds, Virginia is unable to fill many staff postings, including that
of the critical field inspector. Without a full staff of reclamation
inspectors, Virginia may not meet federal inspection guidelines.
Virginia is also unable to fill technical support staff positions. This
will limit the assistance the Commonwealth can offer to coal companies
and significantly delay the review and approval process for surface
mining permits. Virginia's situation is symptomatic of what other
states are facing--or will soon face--if the debilitating trend for
Title V grant funding is not reversed.
It must be kept in mind that state coal regulatory program
permitting and inspection workloads are in large part related to coal
mine production. In general, as coal production increases, the need for
additional permitting and operational inspections also increases. State
programs must be adequately funded and staffed to insure that
permitting and inspection duties are both thorough and timely as states
experience the reality of accelerating coal mine production and
expansion activities. As program funding shortfalls continue, states
risk the possibility of delayed production and negative impacts to the
environment. The situation in Colorado exemplifies this reality. From
2002 to 2006, Colorado production increased approximately 10%. Permit
revision activity increased nearly 50% during the same period. This
reality has stressed existing program resources and caused the delay or
elimination of lower priority program functions.
Just as with the federal government, state regulatory programs are
personnel intensive, with salaries and benefits constituting upwards of
80 percent of total program costs. And, just like the federal
government, state personnel costs are increasing. (See figure 2) States
must have sufficient staff to complete permitting, inspection and
enforcement actions needed to protect citizens of the coalfields. When
funding falls below program needs, states may struggle to keep active
sites free of offsite impacts, reclaim mined areas, and prevent
injuries.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Looking again at figure 1, another disturbing trend is evident. The
gap between the states' requests, which are based on anticipated
expenditures, and what states are receiving in annual grants, is
widening. The numbers in this chart are taken from OSM budget
justification documents, OSM's website, and estimates provided to OSM
from the states. Please note that these numbers have not been adjusted
for inflation--which means the situation is actually more bleak. There
is no disagreement about the need demonstrated by the states. In fact,
in OSM's own budget justification document, OSM states that: ``the
states have the unique capabilities and knowledge to regulate the lands
within their borders. Providing a 50 percent match of Federal funds to
primacy States in the form of grants results is the highest benefit and
the lowest cost to the Federal government. If a state were to
relinquish primacy, OSM would have to hire sufficient numbers and types
of Federal employees to implement the program. The cost to the Federal
government would be significantly higher.'' (Page 71 of OSM's Budget
Justification)
The enormity of this funding challenge will become increasingly
clear as the federal government is faced with the dilemma of either
securing the necessary funding for state programs or implementing those
programs (or portions thereof) themselves--at significantly higher
costs. In Virginia alone, for instance, the cost of OSM running the
program would likely amount to $8-10 million based on what it currently
costs OSM to run the comparable federal program in Tennessee. For
perspective, in Fiscal Year 2007, Virginia has been offered $3.175
million in federal funding to operate its program (although actual
needs amount to $3.6 million--an overall shortfall of nearly $1 million
when the state match is factored in). If this analysis was expanded to
all of the 24 state programs, the overall savings to the federal
government would be dramatic. In addition, as anticipated by SMCRA's
framers, the states are closer to the action, are able to account for
local conditions and circumstances and can be more responsive.
In the end, the increasing gap between the states' anticipated
expenditures and actual Federal funding is compounding the problem
caused by inflation and uncontrollable costs, undermines our efforts to
realize needed program improvements and enhancements, and jeopardizes
our efforts to minimize the impact of coal extraction operations on
people and the environment. For all these reasons, we have urged
Congress to increase funding for state Title V regulatory grants in
OSM's FY 2008 budget to $67 million, as fully documented in the states'
estimates for actual program operating costs. A resolution adopted by
IMCC at its recent annual meeting addressing this matter is attached to
our testimony (Attachment No. 1). At this point, the House has approved
an additional $2 million over the Administration's request of $60.2
million and the Senate Appropriations Committee has approved a $6
million increase over that request. This is very encouraging and we
trust that in the end, Congress will approve the full $66.2 million for
state Title V grants.
It must be kept in mind that where there is inadequate funding to
support state programs, some states will be faced with turning all or
portions of their programs back to OSM (as in the case of Virginia) or,
in other cases, will face potential lawsuits for failing to fulfill
mandatory duties in an effective manner (as has occurred in Kentucky
and West Virginia in the past). Of course, where a state does, in fact,
turn all or part of its Title V program back to OSM (or if OSM forces
this issue based on an OSM determination of ineffective state program
implementation), the state would be ineligible for Title IV funds to
reclaim abandoned mine lands. This would be the height of irony given
the recent reauthorization and revitalization of the AML program.
Speaking of the Title IV AML program, the states were greatly
encouraged by the passage of the 2006 Amendments to SMCRA, which
culminated over 12 years of work by the states and others to
reauthorize this vital program. The AML program has been one of the
hallmarks of SMCRA and has accomplished much over the years, as you
will hear from Mr. Husted. With the infusion of new life and funding,
the program holds out great promise for the future. The states have
been working closely with OSM to design rules that will appropriately
implement the provisions of the 2006 amendments and allow the states to
put money into projects that meet the purposes and objectives of the
new law. Among the key issues we have addressed in our discussions with
OSM are the following:
Use of the grant mechanism to distribute payments from
the U.S. Treasury
Funding for minimum program states
Use of unappropriated state share balances for noncoal
reclamation and the acid mine drainage set aside
The effective date of certain payments under the new law
Adjustments to the current grants process
We look forward to pursuing these issues in greater detail with OSM
over the coming months. Should the Committee desire a copy of our more
detailed comments on the draft proposed rules, please let us know.
With regard to funding for state Title IV Abandoned Mine Land (AML)
program grants, recent Congressional action to reauthorize Title IV of
SMCRA has significantly changed the method by which state reclamation
grants are funded. Beginning with FY 2008, state Title IV grants are to
be funded primarily by permanent appropriations. The only programs that
continue to be funded through discretionary appropriations are high-
priority federal reclamation programs, state and federal emergency
programs, and OSM operations. As a result, the states will receive
mandatory funding in FY 2008 of $288.4 million for AML reclamation
work. OSM also proposes to continue its support of the Watershed
Cooperative Agreement program in the amount of $1.6 million, a program
we strongly endorse.
Assuming that permanent appropriations for state AML grants do, in
fact, become a reality (and we trust they will), there are three
remaining discretionary funding priorities for the states: minimum
program funding; federal emergency programs; and Clean Streams funding.
With respect to minimum program states, under the new funding formula
provided by OSM, all of the states and tribes will receive immediate
funding increases except for minimum program states. Under OSM's
interpretation of the 2006 Amendments, those programs remain stagnant
for the next two fiscal years at $1.5 million, a level of funding that
greatly inhibits the ability of these states to accomplish much in the
way of substantive AML work. Many of these states have pending high
priority AML projects ``on the shelf'' that cost several million
dollars. The challenge for these states is putting together enough
moneys to address these larger projects given minimum funding. It is
both unfair and inappropriate for these states to have to wait another
two years to receive any funding increases when they are the states
most in need of AML moneys. We have therefore urged Congress to fund
these states at the statutorily authorized level of $3 million in FY
2008 so as to level the playing field and allow these states to get on
with the critical AML projects that await funding.
We have also urged Congress to approve continued funding for
emergency programs in those states that have not assumed these
programs. Funding the OSM emergency program should be a top priority
for OSM's discretionary spending. This funding has allowed OSM to
address the unanticipated AML emergencies that inevitably occur each
year in states without state-administered emergency programs. Without
this funding, it will be up to the states to address the emergencies
that occur. In states that have federally-operated emergency programs,
the state AML programs are not structured or staffed to move quickly to
address these dangers and safeguard the coalfield citizens whose lives
and property are threatened by these unforeseen and often debilitating
events. Finally, we have urged Congress to approve continued funding
for the Clean Streams Initiative. OSM has chosen to eliminate funding
for this worthwhile program in FY 2008. We believe this is a mistake.
Significant environmental restoration of impacted streams and rivers
has been accomplished pursuant to this program, to say nothing of the
goodwill that the program has engendered among local communities and
watershed groups. For the small investment of money that is
appropriated for this program each year (approximately $3 million), the
return is huge.
Future challenges for the AML program include the perpetual
operation and maintenance costs associated with acid mine drainage
treatment; assuring that maximum flexibility is provided to the states
to determine their respective AML project priorities; and enhancing
opportunities for economic development (including recreation and
tourism) in depressed areas of the coalfields.
As mentioned earlier, one of OSM's primary missions under the
Surface Mining Act is evaluating the states' administration of their
programs, otherwise known as oversight. This process has undergone a
significant metamorphosis, the result of which has been a more credible
and useful program for informing Congress and others about the status
of state program administration. The first attempt at designing a
meaningful oversight program in the mid-1980's was merely an exercise
in data gathering or output measurement. We were concerned then with
numbers of inspections, numbers of permit reviews and numbers of
enforcement actions. OSM also tended to look behind state permitting
decisions to determine whether OSM would have handled them the same way
the states did. This type of ``second guessing'' generated significant
conflict and even resentment between the states and OSM. In addition,
the numbers that were collected into oversight reports told us little
or nothing about whether the objectives of SMCRA were being met (i.e.
what was happening on the ground? how effectively were state programs
actually protecting the environment? how well was the public being
protected and how effectively were citizens being served? how well were
we working together as state and federal governments in implementing
the purposes of SMCRA?).
Following an effort by OSM and the states in the late 1980's to
fashion a more effective state program evaluation process based on a
goal-oriented or results-oriented oversight policy and another review
of the process in the mid-1990's, a performance measurement approach
was adopted, based in large part on the requirements of the Government
Performance and Results Act (GPRA). The new outcome indicators now
focus on the following: the percentage of coal mining sites free of
off-site impacts; the percentage of mined acreage that is reclaimed
(i.e. that meets the bond release requirements for the various phases
of reclamation); and the number of federal, private and tribal land and
surface water acres reclaimed or mitigated from the effects of natural
resource degradation from past coal mining, including stream
restoration, water quality improvement, and correction of conditions
threatening public health or safety. These new measurements are
intended to provide Congress and others with a better picture of how
well SMCRA is working and how well the states are doing in protecting
the public and the environment pursuant to their federally approved
programs. Much of this can also be told in pictures of reclaimed mined
areas like those shown in our exhibits, many of which reflect winners
of IMCC's and OSM's national reclamation awards. Effective program
implementation by the states and compliance by the coal industry are
resulting in the reclamation and restoration of both active and
abandoned sites that meet the objectives of SMCRA and benefit both
people and the environment.
Over the past twenty years, state regulatory programs have improved
to the point that implementation is highly successful. Due to this
success, the overall programmatic emphasis under SMCRA has shifted from
structural and administrative issues to specific technical issues that
are encountered as reclamation technology and science are advanced.
These issues tend to manifest themselves as environmental challenges
unique to particular regions or states, many of which must be resolved
during the permitting process. They may also arise as a result of state
inspections at mining sites. In any event, due to constraints on
existing state resources, states may be unable to undertake the type of
technical analyses that attend these issues. This is where OSM serves a
valuable support mechanism for the states (as anticipated by Section
705 of SMCRA) by providing technical assistance. In addition to
meaningful and properly focused assistance, the states also look to
OSM's Technical Innovation and Professional Services (TIPS) program.
This has been one of OSM's most valuable and effective initiatives and
serves as the cornerstone of the states' computer capability,
particularly now that many states are utilizing electronic permitting.
We trust that OSM and Congress will continue their support for TIPS and
for the hardware and software upgrades that are required to assure the
system's integrity and usefulness. TIPS training is also critical.
One of the key successes of SMCRA over the years has been its
training program. Through a combination of both state and federal
agency instructors, OSM's National Technical Training Program (NTTP)
assures that newly hired state and federal employees, especially
inspectors and permit writers, receive adequate and credible training
both on basic elements of program implementation and on cutting-edge
technical and policy subjects. The NTTP has also allowed more seasoned
employees to fine tune their skills and update their knowledge on
important topics. OSM's training program is especially important for
smaller states that do not otherwise have access to such resources. In
addition to NTTP classes, IMCC (working in cooperation with NTTP) has
developed and facilitated a series of benchmarking workshops for both
state and federal agency personnel that has allowed them to improve and
enhance their respective regulatory programs and skills in such areas
as blasting, subsidence, bonding, underground mine mapping, and
permitting related to hydrologic balance. OSM has also sponsored
several interactive forums on a variety of subjects of mutual interest
to the states and we urge the agency to continue this practice, again
with state input. All of these training components will become
increasingly more critical as OSM and the states face a retiring
workforce and the attendant succession planning that follows.
There have been other notable successes in SMCRA's implementation,
in both the regulatory and policy areas. The states have worked
cooperatively with OSM and others to address acid mine drainage issues
through the Acid Drainage Technology Initiative, which focuses on
prediction, prevention, avoidance, remediation and treatment. Again
working cooperatively with OSM, the states have made significant
strides in advancing reforestation efforts on reclaimed lands,
particularly through the Appalachian Regional Reforestation Initiative.
Through a partnership among the states, OSM and the Environmental
Protection Agency (EPA), we have also seen major strides in the
remining arena, where thousands of acres of abandoned mine lands have
been restored as part of active mining operations, thereby saving
valuable AML Trust Fund dollars and returning the land to productive
use. We have also been working with EPA and OSM to revisit the current
effluent limitation for manganese so as to reduce or prevent the
adverse effects and potential hazards arising from some of the
treatment technologies related to control of manganese.
In its 1990 monograph on ``Environmental Regulation of Coal Mining:
SMCRA's Second Decade'', the Environmental Policy Institute identified
and commented on several challenges facing the states and OSM, as
follows:
The issues facing regulators today are more difficult than they
were in 1977. Many of the easier and more blatant problems have
been addressed [such as the two acre exemption]....The
regulatory issues today include the prevention of hydrologic
damage, the control of subsidence and subsidence damage, the
establishment of adequate reclamation bond amounts, the use of
permit-based enforcement, and the improvement of federal
oversight. Also of concern is the massive shortfall in the
federal fund meant to reclaim areas abandoned prior to 1977
without reclamation. [Page3]
Throughout SMCRA's third decade, many of these issues have been
addressed and resolved. Congress has addressed the shortfall of moneys
in the AML Trust Fund with the 2006 Amendments to SMCRA and OSM and the
states are well on their way to implementing those adjustments and
putting more money on the ground to restore AML sites. Federal
oversight (and the attendant state/federal relationship under SMCRA)
has advanced by significant degrees and is no longer the flashpoint
that it once was. Through advances in electronic permitting and the use
of tools available through OSM's TIPS program, state permitting actions
are timely, comprehensive and accurate, thereby insuring more effective
compliance with the law.
That being said, given the nature and scope of today's mining and
reclamation operations and attendant environmental impacts, we continue
to face challenges as regulatory authorities under SMCRA. A few
examples follow:
Bonding--one of the larger challenges concerning the
bonding provisions of SMCRA is with regard to post closure issues.
While SMCRA originally envisioned the bond as a guarantee of
performance during mining, it did not anticipate the challenges
associated with postmining concerns such as long-term treatment
associated with acid mine drainage or long-term impacts from
subsidence. For instance, OSM's current rules on bonding require that
the bond amount be adjusted for potential subsidence damage repairs.
However, nothing is said about how the bond release procedure will
apply in these situations. The result is that surety companies are
reluctant to write bonds for reclamation because of the long term
nature and unknown extent of the liability. The states have been
working with OSM to address this matter through the use of other
financial assurance mechanisms, such as trust funds. There are also
issues associated with bond release in general. Given that the
procedures attending release are so cumbersome and expensive, coal
operators simply choose not to apply for them. This further impacts the
availability of bond capacity in the market and results in unnecessary
expenses for states related to continued inspection and enforcement on
these essentially completed reclamation sites.
Prime farmland--the requirements related to proof of
productivity (five year minimum) prior to termination of jurisdiction
and before the land can be returned to the owner are cumbersome. The
mid-continent states are currently undertaking research through a major
Midwestern agronomy/soil science university to determine proper testing
techniques to ensure soil capabilities are present, in the hope that an
alternative method for demonstrating productivity can be attained, thus
returning land much sooner back to the owner of record.
AVS--over the past twenty years, the states have worked
diligently with OSM to develop the Applicant/Violator System (AVS),
which assists us in implementing section 510(c) of SMCRA, particularly
the issuance of permits. Early in the development of AVS, the states
focused on designing a system that would allow them to identify and
block violators and other scofflaws without bogging down the database
with useless or unproductive information. While we have made progress
in this regard, we continue to examine ways to improve and enhance
overall system effectiveness. For example, a critical aspect of AVS is
the rules that define ownership and control; permit and application
information requirements; and the transfer, assignment or sale of
permit rights. These rules have been under a constant state of flux
since their original promulgation in 1988 and a recent OSM rulemaking
attempts to bring closure to several key issues that remain unresolved
or problematic.
Underground mine mapping--another continuing challenge
that we face concerns accurate and readily available underground mine
maps, which are essential for protecting the public, the environment
and infrastructure from the threats posed by unknown underground mines.
Events such as the Quecreek incident in Pennsylvania and the Martin
County Coal Company impoundment failure in Kentucky were high profile
demonstrations of the kinds of incidents that can occur when mine maps
are inaccurate or unavailable. IMCC has sponsored a series of national
and regional benchmarking workshops that have focused on the
collection, handling, scanning, georeferencing and validation of mine
maps. While the expertise and technology is available to tackle this
issue and accomplish these tasks, our biggest challenge is the lack of
funding for personnel, hardware, software upgrades and database
development to move the initiative forward.
In each of these instances, and in others such as subsidence
control, blasting and hydrologic protection, the states are actively
engaged in seeking technical solutions, as well as regulatory program
enhancements, that will fully and adequately address concerns
associated with these issues. As an example, over the past several
years, IMCC has sponsored benchmarking workshops on subsidence impacts,
blasting, financial assurance, electronic permitting and hydrologic
balance, all of which have provided state and federal regulators with
an opportunity to examine these issues in detail with an eye toward
regulatory program improvements. IMCC is currently preparing for its
next workshop on surface and ground water database development and use
as part of the permitting process. The overall goal is to continually
assess and enhance our performance as regulatory authorities in an
effort to achieve ever higher levels of program effectiveness.
Much progress has been made over the past 30 years to accomplish
the purposes and objectives of SMCRA. From our perspective, the basic
organization of OSM is working well. At this point of SMCRA's
implementation, neither the states nor OSM are dealing with the same
types of issues or problems that attended the early years of program
formation and administration. We have moved away from questions of
adequate state program components and state implementation techniques
to more substantive issues associated with technical, on-the-ground
problems or with thorny legal and policy questions associated with
interpretation of our programs. We therefore believe that it is most
relevant for OSM to focus its energies and resources on assisting and
supporting the states through adequate funding for state grants, sound
technical and legal assistance, and opportunities for the states to
actively participate in the agency's excellent training program. The
overall result will be less federal intrusion in the states'
administration of their programs, a concomitant enhancement of the
federal/state partnership, and better on-the-ground performance by the
regulated industry.
We appreciate the opportunity to present this testimony today and
welcome the opportunity to work with your Committee, Mr. Chairman, to
insure the effective implementation of SMCRA in the 21st century.
attachment no. 1
Resolution
interstate mining compact commission
BE IT KNOWN THAT:
WHEREAS, the Surface Mining Control and Reclamation Act (SMCRA)
provides for the assumption of authority by state governments to
regulate surface coal mining and reclamation operations within their
borders following approval by the federal Office of Surface Mining
(OSM) of state programs; and
WHEREAS, section 705 of SMCRA requires the federal government to
provide annual grants up to 50 percent for costs incurred by the states
for the purpose of administering and enforcing their approved
regulatory programs; and
WHEREAS, over the past 25 years the states have been led to
believe, based on actual practice and OSM policy, that the federal
government would base annual grants on the states' estimated costs for
implementing their regulatory programs, pursuant to the principles of
primacy and partnership embedded in SMCRA; and
WHEREAS, in recent years federal funding for state regulatory
grants has stagnated, resulting in a $10 million gap between the
states' estimated program costs and actual grant funding; and
WHEREAS, this debilitating funding trend is severely impacting the
states' ability to run efficient and effective regulatory programs that
meet the purposes and objectives of SMCRA, with some states having to
overmatch federal grants dollars and other states being forced to
seriously consider turning all or portions of their programs back to
the federal government; and
WHEREAS, the costs for the federal government to operate regulatory
programs in primacy states will, by OSM's own admission, be
significantly higher than what the states currently spend; and
WHEREAS, there is strong, widespread support for increases in state
regulatory grants from both the regulated industry and citizen groups
so as to preserve the quality and integrity of state programs;
NOW THEREFORE BE IT RESOLVED:
That the Interstate Mining Compact Commission (IMCC) strongly urges
Congress, the Office of Management and Budget, the Department of the
Interior and OSM to shore up and support state regulatory programs
through full funding of state grants so that states can effectively
meet the objectives and mandates of SMCRA; and
BE IT FURTHER RESOLVED:
That IMCC specifically requests that funding for state regulatory
grants in OSM's proposed FY 2008 budget be increased by $7 million for
a total of $67 million.
Issued this 2nd day of May, 2007
ATTEST:
_________
Executive Director
______
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July 31, 2007
The Honorable Nick J. Rahall II
Chairman
Committee on Natural Resources
U.S. House of Representatives
Room 1324 LHOB
Washington, DC 20515
Dear Mr. Chairman:
DurIng the course of an oversight hearing on the 30th Anniversary
of the Surface Mining Control and Reclamation Act (SMCRA) on July 25,
several allegations were leveled at the States of Virginia, Indiana and
Illinois concerning implementation of various aspects of their
regulatory programs. You specifically requested that I follow up on a
situation in Virginia where a citizen had filed a complaint against A
and G Coal Company for mining without a permit. There were also
allegations concerning groundwater protection standards and adequate
public participation in the states of Indiana and Illinois. I contacted
each of these states and they have provided the following information
regarding the allegations raised during the hearing.
Virginia--in his testimony, Mr. Walt Morris alleged that ``the
state regulatory authority in Virginia continues to refuse to
investigate citizen allegations that a coal operator is conducting
mining operations without a permit--on the incredible theory that the
state has no obligation to inspect because it has not issued a permit
for the mine.'' Mr. Morris went on to allege that ``OSM's Virginia
field office continues to ignore a citizen request for inspection and
enforcement in the same matter, even though the time for responding
under OSM's regulations has long since expired.'' Since the hearing on
July 25, Mr. Morris has sent a formal apology to OSM's Virginia field
office indicating that, indeed, a timely response by OSM to the citizen
request for inspection and enforcement had been made. What he fails to
mention is that OSM also found that Virginia's response to a Federal
Ten Day Notice regarding the matter was appropriate and that Virginia
has ``shown good cause for not taking enforcement actions in this
case.'' As indicated in the attached documents, it is very clear that
all of the activity at the alleged mining site was related to logging
operations, oil and gas well development activity and two completed and
fully reclaimed coal exploration sites. Because of his lack of first
hand knowledge concerning the situation at the site, Mr. Morris misled
the Committee concerning activity at the site, the citizen complaint,
and Virginia's and OSM's handling of the complaint. Mr. Morris also
impugned the integrity of the Virginia program and its handling of this
matter. The Virginia Department of Mines, Minerals and Energy makes
extraordinary efforts to work with and assist its citizens and has
received national recognition for those efforts. Unfounded allegations
such as those leveled by Mr. Morris do little to support the excellent
work being done by the states under SMCRA. We believe that he not only
owes OSM an apology, but the Commonwealth of Virginia as well.
Indiana--in his testimony, Mr. Brian Wright made several inaccurate
and misleading statements regarding the Indiana regulatory program,
particularly with respect to protection of groundwater resources and
mine placement of coal combustion wastes. An explanation from the state
of Indiana addressing these matters is attached to this letter.
Illinois--in his statement, Mr. Wright also mischaracterized or
made false accusations regarding several aspects of the Illinois
program, including groundwater protection standards, longwall mining
and subsidence protection requirements, lands unsuitable petitions and
citizen participation. An explanation from the state of Illinois
addressing each of these matters is attached.
Pennsylvania--Mr. Wright also mentioned that the Commonwealth of
Pennsylvania is preparing a report on coal combustion waste. To
clarify, no such report is in the works. What Pennsylvania is
developing are updated and expanded policy guidelines regarding mine
placement of coal combustion waste in light of the NRC report. Once
prepared, these guidelines will be available for public review and
comment.
Thank you for the opportunity to address and clarify these
inaccuracies, misrepresentations and allegations. Many of them are very
serious and we trust that the record will reflect the corrections and
explanations offered by the states. Should you have any questions or
require additional information, please do not hesitate to contact me.
And once again, our sincere appreciation for holding the oversight
hearing and for the opportunity to participate.
Sincerely,
Gregory E. Conrad
Executive Director
Attachments
______
The Indiana Department of Natural Resources, Division of
Reclamation (DOR) is the regulatory authority for coal mining in the
State of Indiana. We take issue with the manner in which our program
was mischaracterized in the testimony of the Hoosier Environmental
Council on July 25, 2007 before the House Natural Resources Committee
concerning the implementation of the Surface Mining Control and
Reclamation Act of 1977. The testimony contained inaccuracies
concerning Indiana's coal regulatory program and its alleged lack of
adequate protection for groundwater resources and the public, along
with other misconceptions. We appreciate the opportunity to clarify
these matters.
Staff of the DoR include hydrogeologists with decades of experience
in coal mine regulation. Not only do regulations contain numerous and
extensive hydrology related requirements but, as will be discussed
below, the State of Indiana has a groundwater standards rule which has
been implemented within Indiana's surface coal mining regulations.
Contrary to some testimony, the DoR's regulatory framework and
implementation of the surface coal mining regulations does provide
adequate protection and safeguards to citizenry and the environment
living in and near the coalfields of Indiana.
As discussed in the Hoosier Environmental Council testimony,
regulations require that coal mines minimize disturbance of the
hydrologic balance within the permit and adjacent areas, prevent
material damage to the hydrologic balance outside the permit area, to
assure the protection or replacement of water rights, and to support
approved post mining land uses, 30 CFR 816.41. It was stated these
regulations have been applied inadequately to protect the water of
coalfield residents. In actuality, the groundwater standards
regulations within Indiana's surface coal mining regulations were
developed and implemented on the precise premise that requires the
state to follow the federal law and regulations as it pertains to
minimizing impacts within the permit area and preventing material
damage outside the permit area. Coal mining operations must implement
groundwater protection measures including proper handling, treatment,
and disposal of any coal refuse and any acid and/or toxic forming
earthen materials. Further, specific protective measures are employed
such as proper sealing of boreholes, auger holes, etc....,as well as
special handling provisions to prevent formation of acid mine drainage
(measures to minimize disturbance of the hydrologic balance within the
permit and adjacent areas) and to ensure that mineralization of the
water which recharges within the spoil mass does not migrate off-site
and adversely impact residential wells or groundwater resources
(prevent material damage to the hydrologic balance outside the permit
area).
Indiana's groundwater standards were developed by the Water
Pollution Control Board of the Indiana Department of Environmental
Management as a part of a public process including a workgroup made up
of academia, industries, the public, environmental groups, and state
regulatory personnel. An outcome of that regulation was a requirement
that other state regulatory authorities would develop regulations
within their frameworks to implement the groundwater standards. That is
exactly what the DoR did with the groundwater standards promulgated for
ensuring protection at coal mine sites. The surface coal mining
regulations were developed with input from the Indiana Department of
Environmental Management who endorsed the final regulations (see report
at end). It should be noted that the groundwater standards are state
regulations above and beyond the federal Surface Mining Control and
Reclamation Act (SMCRA). Federal SMCRA regulations do not contain
specific groundwater standards. Rather, the states develop and
implement groundwater standards by choice. Indiana chose to provide
protections, beyond that required within federal SMCRA, to groundwater
resources and groundwater users by not only ensuring compliance with
federal SMCRA but also to provide additional protections through state
groundwater standards regulation. An Informational Bulletin, adopted in
May 2003, explaining the rationale behind this regulation follows the
narrative at the end of this document. Both of these were approved at a
public meeting by the DoR's ultimate state authority, the Natural
Resources Commission. The public testimony at this meeting is included
following the policy document.
Another inaccuracy to the testimony is the claim that Indiana does
not characterize pre-mine hydrologic conditions. Each application for a
mining permit contains groundwater quantity and quality information
gathered over many months in order to characterize any seasonal
variation. Moreover, aquifer testing (contrary to the claims in the
written testimony) is conducted to determine hydraulic characteristics
such as permeability and rate of flow. Groundwater availability in the
coal region of Indiana is typically very low with exception of those
areas along major river systems. The rock overlying the coal is simply
not conducive to large amounts of water movement and thus the pits
during mining are most often quite dry. For this reason, the citizens
using water wells typically drill them to depths ranging up to 300 feet
and normally much deeper than the lowest coal seam to be mined by
surface mining techniques. The reason citizens construct wells in this
fashion is due to the lack of a reliable, shallow groundwater source,
thus they take advantage of a deep well with adequate storage capacity.
Monitoring well installations for the purpose of monitoring aquifer
characteristics (both quantity and quality) are developed in a similar
fashion. Should wells in an area be developed in a single geologic unit
then monitoring wells are installed in a single unit. But, typically
monitoring wells are constructed over the entire bedrock interval due
to the fact that is the manner most citizen wells are installed.
Indiana's surface mining regulations require the replacement of the
water supply in the unlikely event of interruption or adverse effects
to a user of groundwater. Replacement can occur by many methods
including hook ups to a municipal water supply, drilling a new well, or
any other method acceptable that will provide an equivalent water
delivery system. The permittee of the mining operation must also
provide payment of operational and maintenance costs in excess of
customary and reasonable delivery costs for premining water supplies.
Hoosier Environmental Council testimony also indicates that Indiana
rules eliminate any incentive to minimize impacts to groundwater
quality. Indiana's statute and regulations provide numerous hydrology
related operational and performance standards that must be adhered to
or face enforcement action and potential permit revocation and
exclusion from future mining nationally which is certainly incentive to
comply.
One area of agreement with the Hoosier Environmental Council
testimony is in regard to the statement that ``It would be unrealistic
to assume ground water in mined areas will remain in pristine
condition''. As was mentioned by an industry representative in the oral
testimony, the mineralization of groundwater is an unavoidable result
of any surface mining due to the breaking of rock and the additional
surface area available for groundwater to contact. These constituents
were present in the rock prior to mining. It would be unrealistic to
place a qualitative, numeric standard within the spoil or refuse areas
and regulate a coal mine operator with unreasonable or potentially
unattainable expectations. A mine operator can comply fully with all
aspects of law and regulation and mineralization of groundwater will
still occur. To what extent is dependent on conditions beyond the
control of the mine operator. For that reason, the rule writers of
SMCRA thirty years ago set forth regulations calling for minimization
within the mined area and prevention of material damage beyond. We
believe these provisions were put in place by a group of very wise
individuals with great understanding of groundwater issues related to
coal mining. Indiana's regulations, both for coal mining and
groundwater standards concerning coal mines, are based on this exact
premise and do provide adequate protection to the citizens and the
environment of the coal region of Indiana.
Another issue Indiana wishes to clarify is that of the volume of
coal combustion wastes permitted for disposal as described by the
Hoosier Environmental Council testimony. It was stated that 125 million
tons of coal combustion waste has been approved for disposal in Indiana
mines. This figure has been frequently misrepresented. In reality,
numerous coal combustion waste disposal applications contain a request
to dispose of the same waste from the same generator. Sometimes a part
of the bidding for a coal contract with a major utility contains a
provision to return a quantity of coal combustion waste to the mine
site. Numerous applications contained a request to dispose the same
material. This has been explained many times to the Hoosier
Environmental Council and others, but the Hoosier Environmental Council
continues to misrepresent the actual amount of material that could be
disposed or has been disposed. The State of Indiana generates 5 to 7
million tons of coal combustion waste annually. Disposal at coal mines
has been permissible since 1988. In that 19 years period the State of
Indiana has produced well over 100 million tons while less than 9
million tons has actually been disposed at Indiana coal mines.
NATURAL RESOURCES COMMISSION
Information Bulletin #38 (First Amendment)
SUBJECT: Implementation of the Indiana Ground Water Quality Standards
at Coal Mines Regulated under IC 14-34
I. HISTORY
A technical amendment is made to this information bulletin adding
the Indiana Register publication citation for LSA Document #02-104(F)
to facilitate historical research of amendments to 312 IAC 25. This
document supersedes Information Bulletin #38 published at 27 IR 1665.
II. PURPOSE
The purpose of this nonrule policy is to provide guidance and added
explanation of rules adopted by the Natural Resources Commission for
implementation by the Department of Natural Resources, Division of
Reclamation. These rules were given final adoption by the Commission on
May 20, 2003, as amendments to 312 IAC 25 and are more particularly
described as Legislative Services Document #02-104(F) (26 IR 3860).
They help implement the Indiana ground water standards established
through the rules adopted by the Water Pollution Control Board that
became effective March 6, 2002.
As required by IC 13-18-17-5, an agency with jurisdiction over an
activity must adopt rules to apply the ground water quality standards
adopted by the Water Pollution Control Board. As described in 327 IAC
2-11-2(b), when adopting rules an agency shall ``...ensure that
facilities, practices, and activities are designed and managed to
eliminate or minimize, to the extent feasible, potential adverse
impacts to the existing ground water quality by applying preventative
action levels, design standards, a monitoring framework, or other
regulatory methods.'' The amendments to 312 IAC 25 were developed in
this context.
The amendments to 312 IAC 25 assist in the implementation of IC 14-
34 (the Indiana Surface Mining Control and Reclamation Act or ``Indiana
SMCRA'') governing surface coal mining and reclamation activities. The
rules contain criteria for ground water classification, monitoring, and
compliance that apply at sites regulated under Indiana SMCRA. This
information bulletin has been developed to provide information
concerning procedures and issues regarding the implementation of the
rule amendments.
The following sections include a discussion of the background for
the rulemaking, a section that describes the mines and associated
activities that are subject to the rules, ground water classification,
standards to be met, the establishment of a ground water management
zone (or ``GMZ''), the location at which the standards must be met,
requirements for additional monitoring wells to serve as early
detection wells, and the plans or actions that must occur if a standard
is exceeded.
III. REGULATORY FRAMEWORK
The rules and their interpretations were developed within the
context of existing state and federal mandates concerning coal mining.
The existing program requires compliance with state water quality
standards (IC 14-34-10-2(13), 312 IAC 25-6-12(c), and 312 IAC 25-6-
76(c)). Coal mine operations are required to minimize disturbances to
the prevailing hydrologic balance on the mine site and associated off
site areas (IC 14-34-10-2(13)). Further, surface and underground coal
mining activities must be planned, conducted, and designed to minimize
changes to the prevailing hydrologic balance in the permit area and
adjacent areas, to prevent material damage to the hydrologic balance
outside the permit area, in order to prevent long term adverse changes
in that balance that could result from those activities (312 IAC 25-6-
12(a) and 312 IAC 25-6-76(a)). It is clear that this language
recognizes the possibility of impacts beyond the permitted area. It is
also clear that any such impacts, should they occur, must be minimized
and must not materially damage the hydrologic balance outside the
permit boundaries.
Indiana SMCRA and rules developed under Indiana SMCRA recognize the
potential for impacts to occur beyond the permit area or to
uncontrolled properties within the permit area. Existing standards
already require replacement of any water supply when used for any
legitimate purpose is diminished, contaminated, or interrupted by
mining activities. The rules do not grant anyone a right to cause
impacts to adjacent or uncontrolled properties. Rather, Indiana SMCRA
and rules developed under Indiana SMCRA recognize that a permittee may
follow its approved plan, comply with all legal mandates, conduct
operations in accordance with best management practices, and yet still
have an impact on ground water off-site. Wide-scale off-site impacts in
Indiana are very uncommon and, consequently, the rule amendments are
not being developed to correct a problem. The rule amendments require
that a specific standard be met at a specific distance or location.
Although impacts to water wells off the permitted area do
occasionally occur, existing standards at 312 IAC 25-4-33, 312 IAC 25-
4-78, 312 IAC 25-6-25, and 312 IAC 25-6-88 adequately address these
problems. When an impact does occur, an alternate source of water is
provided by the permittee. Moreover, the rule amendments in LSA
Document #02-104(F) (26 IR 3860) do not impart a permittee with any
additional rights to intentionally or unintentionally cause impacts to
adjacent areas and uncontrolled properties. The rights of property
owners to take action against a permittee as a result of an impact to
their property, beyond requirements imposed by these rule amendments,
remain unaffected.
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312060445NRA Page 1
IV. APPLICABILITY
The rule amendments apply to coal extraction areas where surface
and underground coal mining and reclamation permits are issued under
Indiana SMCRA. For the purposes of the rule amendments, coal extraction
areas include augering, coal processing, coal processing waste
disposal, spoil deposition, or underground development waste deposition
that occurs after the effective date of the amendments or on which a
disposal activity subject to IC 13-19-3-3 has occurred and the area is
not fully released from the performance bond required by IC 14-34-6.
V. GROUND WATER CLASSIFICATION
Ground water must be classified according to 327 IAC 2-11-4 to
determine the appropriate narrative and numeric criteria and level of
protection that applies to the ground water. The classification of the
ground water at the boundary of the GMZ is drinking water class unless
it has been classified as limited class ground water or impaired class
drinking water by 327 IAC 2-11. It should be noted, the limited class
ground water classified according to 327 IAC 2-11-4(d) must meet the
requirements found at 327 IAC 2-11-7(b), which include only the
constituent concentrations attributable to coal mining, not those
associated with the disposal of coal combustion waste. See 327 IAC 2-
11-5 through 327 IAC 2-11-8 for further information on the criteria for
all ground water, drinking water class ground water, limited class
ground water, and impaired drinking water class ground water.
Should a permittee wish to propose a reclassification of ground
water, the IDEM Ground Water Section should be contacted to discuss the
IDEM procedures, specific information requirements, and the criteria
for limited class ground water and impaired drinking water class ground
water.
VI. STANDARDS
Surface and underground coal mining and reclamation operations must
be planned and conducted to prevent violations of the ground water
quality standards found in 327 IAC 2-11. Mining and reclamation
operations are to be performed to minimize the effects of mining and
reclamation on the hydrologic balance in the permit area and adjacent
areas and to prevent material damage to the hydrologic balance outside
the permit area. Once the ground water has been classified, the
monitoring framework has been established, and a plan has been included
in the permit application to indicate the location the standards will
be met, a demonstration including the measures that will be taken to
ensure the protection of the hydrologic balance is to be made.
The standards found in 327 IAC 2-11 are point specific. The rules
require that a specific standard be met at a specific distance or
location. An exceedance at one point, even if that point is outside the
permitted area, may not constitute material damage to the hydrologic
balance, a concept that by definition at 312 IAC 25-1-67 involves a
hydrologic system existing in an area. Both the rules and this
information bulletin have been developed in this context.
VII. GROUND WATER MANAGEMENT ZONE (the ``GMZ'')
The point of compliance in 327 IAC 2-11 is the boundary of the
ground water management zone (``GMZ''). The standards established by
327 IAC 2-11 must be met at and beyond the GMZ as established in 312
IAC 25-6-12.5(d) and 312 IAC 25-6-76.5(d). The boundary of the GMZ will
be established during initial permit review and may be modified in
response to changes in operations plans or alterations of permit
boundaries throughout the life of the mine. Ground water monitoring
plans included in the permit application will provide the manner in
which water quality at the GMZ boundary will be measured. The location
of the boundary of the GMZ will be based on the location of drinking
water wells or a distance from mining related activities identified in
subdivision (1) of 312 IAC 25-6-12.5(d) or 312 IAC 25-6-76.5(d) of the
rules. In general, the GMZ boundary will be established three hundred
(300) feet from the edge of:
(1) coal extraction areas;
(2) coal mine processing waste disposal sites if not within coal
extraction areas;
(3) areas where coal is extracted by auger mining methods;
(4) locations at which coal is crushed, washed, screened, stored,
and loaded at or near the mine site unless the locations are within the
coal extraction areas; or
(5) spoil deposition areas.
An exception to this condition will occur when the permit boundary
or the extent of property controlled by the permittee is located at a
distance less than three hundred (300) feet from areas requiring a GMZ.
While the standards will apply at the boundary of the GMZ, ground water
monitoring wells will be required at locations within the control of
the mining company that are within the GMZ (i.e., less than 300 feet
from the mining activities that define the GMZ). To minimize confusion,
DOR will refer to those wells established within the GMZ as
``interception wells.'' Likewise, in the event a drinking water well is
located within three hundred (300) feet of areas requiring a GMZ, and
there is a likelihood of impact, a monitoring well (interception well)
may be required between the drinking water well or wells and the
activities that define the GMZ.
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312060445NRA Page 2
For underground mines, the GMZ boundary will normally be
established at a distance of three hundred (300) feet from the edge of
the area containing the surface effects of the mining operation. These
include:
(1) coal mine processing waste disposal sites;
(2) locations at which coal is crushed, washed, screened, stored,
and loaded at or near the mine site; or
(3) underground development waste and spoil deposition areas.
As with the surface mines, a monitoring well will be required
within the GMZ when the GMZ boundary falls on uncontrolled properties.
When coal refuse is disposed in the underground works, the GMZ boundary
will be modified to incorporate any area in which this activity
occurred.
Posted: 10/11/2006 by Legislative Services Agency
An html version of this document.
Indiana Register Date: Jul 26,2007 2:24:30PM EDT DIN: 20061011-IR-
312060445NRA Page 3
Consideration of Recommendation of Hearing Officer to the Natural
Resources Commission with Report of Public Hearing and Written Public
Comments, Responses by the Division of Reclamation, and Presentation
for Final Adoption of SMCRA Water Quality Amendments (312 IAC 25) to
Implement 327 IAC 2; Administrative Cause Number 02-160L (LSA #02-
104(F))
Stephen Lucas, Hearing Officer, introduced this item. He explained
that this was a proposition for an important set of rule proposals. ``I
think they are all important, but this one is perhaps more noteworthy
than some and drew more attention than some.'' Lucas stated that, as
Hearing Officer, he did not make certain recommendations, but the
``parties did a particularly good of expressing their perspectives and
providing important information on the rule proposal. I do want to
publicly thank those who participated in the very helpful way in which
they worked with me as the hearing officer. This is the kind of issue
that could be very difficult and unpleasant, because feelings are
sometimes are very strong. But in this instance the staff, the public,
and the regulated community were extremely helpful in delineating this
report.'' Lucas then deferred to Marvin Ellis of the Division of
Reclamation.
Marvin Ellis, Hydro-geologist in the Technical Services Section of
the Division of Reclamation, addressed the Commission. Ellis explained
that the rules would amend 312 IAC 25, the Indiana Surface Mining
Control and Reclamation Act. Ellis stated that the rule amendments
implement the ground water quality standards established by IDEM's
Water Pollution Control Board and include classification criteria for
ground water, numeric standards and narrative criteria that must be
met, and ground water management zones.
Ellis explained that the Indiana coal mining and land reclamation
programs already include extensive groundwater protection measures, and
said that they are being updated to incorporate these added provisions.
He said the amendments do not replace existing program criteria, but
further define and strengthen the coal and land restoration programs
for the citizens of the State of Indiana. Ellis said that the proposed
rule is based upon the IDEM rule which became effective March 6, 2002.
He explained that the rule applies the IDEM groundwater classification
scheme and numeric standards. The rule also establishes a management
zone with specific compliance points from a mining activity based upon
default criteria within the IDEM rule. Ellis reported that Division of
Reclamation staff met with staff of IDEM's Office of Water Quality
Drinking Water Branch on several occasions to ensure they were applying
the rule consistent with the intent of the statute. ``We wish to
express our appreciation to the staff of IDEM who have provided us
valuable input while drafting this rule.'' Ellis said that the Division
of Reclamation also met with the Hoosier Environmental Council and coal
industry regarding the rule and extended appreciation for their input
and ``well thought out written comments throughout the public comment
period.''
Ellis explained that in response to written comments provided by
members of the public, the Hoosier Environmental Council, the Indiana
Coal Council, and other organizations, the rule amendments have been
revised to reflect many of the suggestions. He said that the Department
responses to all comments were included in the report provided by the
Hearings Officer.
Ellis noted that in addition to the proposed rule, the Division of
Reclamation also developed a nonrule policy for the implementation of
the ground water quality standards at mines. He said that the purpose
of the nonrule policy was to provide support guidance and added
explanation of the proposed rule. He informed that the nonrule policy
document contains a discussion of the ground water management zone and
how its location is determined. The policy document also addresses the
installation of monitoring wells, termed interception wells, that will
be located between the mining activities and drinking water wells or
property boundaries, for the purposes of early detection and added
level of protection. In order to assist in understanding the rule and
the policy Ellis provided a visual aid that depicted an example for the
establishment of the groundwater management zone and the locations at
which monitoring would occur.
Ellis thanked the Commission for their consideration of the
proposed rule, package and non-rule policy document.
Ray McCormick said, ``In the example you give here, we have one
contiguous block of land that is represented by the permitted area.
However, in my area, the tunnels and the mine areas extend out for five
miles in different directions, and it's a matrix of people that are
leased at that particular coal company. There are some that are leased
at different coal companies, and some that are not leased. McCormick
referenced the example map and asked whether the permitted area and
each one of the farmsteads would be monitored or well identified out to
the 300-foot zone from each of the 40-acre tracts or 100-acre tracts
that occur underground from the center of the mine.
Ellis said, ``When you get out in the areas that are leased and
they are mining deep underground, we refer to that often times as
shadow acres.--He explained that in the permitting process the
applicant has to identify all the groundwater users that are within the
surface effect area and within the shadow area, whether it's a 1,000-
acre shadow area or multi-thousand acre shadow area. Ellis explained
that the process can identify owners, their uses and a sampling occurs
as part of the establishment for base-line purposes prior to issuance
within the permit area.
McCormick continued, ``So you're saying that this example is for
activities above surface and during low ground water, but for areas
outside of the surface activity, these standards do not really apply?''
Ellis said the standard would apply at the drinking water wells,
but the management zone is going to be drawn based on the proposed
activities. ``Focus is on surface effects area. That is where the
management zone will initially be drawn.'' However, ``depending on the
nature activity if there are some waste returned to the underground
works, then that would influence its location.'' He said sampling
occurs throughout the entire permit process for baseline purposes,
prior to permit issuance and also later when the active mining
operations are occurring. Ehret interjected that the Department treats
surface and underground mines differently, because of the ``nature of
problems are somewhat different. Historically, if we have problems in
proximity to underground mine work, which I think Ray is talking about,
it usually has to do with a potential loss of water quantity as opposed
to water quality. We don't have those happen a lot, but the Surface
Mining Act outside the requirements of this particular amendment has a
protection for restoration of the loss of water due to mining.'' He
explained that if a person lost a domestic well or an agricultural
well, the coal operator would be responsible for the replacement of
that source of water.
Martha Clark, Chief of the Watershed Branch, Indiana Department of
Environmental Management, submitted written comments to the Commission.
Clark said she was the previous Chief of the Groundwater Section and
was ``intimately involved for many years'' in the development of the
Groundwater Quality Standards rule, which the DNR, Division of
Reclamation is trying to pull into their rule to meet the requirement
of those standards.
Clark stated, ``We believe at IDEM that these amendments, coupled
with existing regulatory controls, meet the goals of groundwater
quality standards rule and demonstrate as required in Section 2 of the
groundwater quality standards rules that DNR will ensure that
facilities practices and activities are designed and managed to
eliminate and minimize potential adverse impacts to the existing
groundwater quality.'' She said IDEM wanted to ``emphasize'' the
importance that DNR staff implement the revised regulations to ensure
that the goals of the groundwater quality standards. ``We support the
final adoption of the rule by the Commission.''
Nat Noland, President of the Indiana Coal Council addressed the
Commission. He said, ``I appreciate the opportunity to be here today to
testify on this rule of proposal before you. Noland stated that he
represented the Indiana Coal Council, which is a trade association that
represents approximately 90% of the Indiana's coal operators throughout
southwest Indiana. He said, ``As we debate this rule today, I think
it's important that we all remember that this rule is not a requirement
of any federal law, and particularly the Federal Surface Mine and
Control Reclamation act. Noland explained that the rule proposal was a
result of a separate and independent state statute that was passed in
1988 to ensure groundwater quality protections throughout Indiana. He
noted that IDEM promulgated the groundwater rule as indicated and
``your job today is to implement that rule today as part of the surface
mine program. Staff has proposed a rule that does just that. It
implements IDEM's rule; that is all that is required. Any concerns that
have been raised by others about the standards or the place where the
standards should apply are more appropriately addressed to IDEM, who
proposed and adopted the original groundwater rule.'' Noland said, that
although coal mining is ``one of the heaviest regulated industries in
Indiana, we do support this rule today.'' He stated that the nonrule
policy does a ``good job'' of explaining to the ICC and the regulated
community, and to others how this rule will be implemented.''
Noland stated that coal mining has been conducted in Indiana for
over 100 years. ``Throughout that time, and particularly since the
passage of the federal law in 1977, there had been virtually no
significant effects on groundwater quality outside what will be the
groundwater management zone after this rule is adopted today.'' He
supported and ``confirmed'' his statement by citing an informal study
that IDEM completed at the Peabody Linnville Mine years ago.
He said that third parties, as well as the coal industry
participated in the development of the IDEM rule and the rule proposal
before the Commission. Noland said that IDEM's Task Force and their
Rule Workgroup had discussed coal mine issues ``specifically and
exhaustively several times.'' ``While the IDEM rule does not address
nondrinking water wells that some in the public were concerned with,
the changes made today proposed by staff will offer protection for
nondrinking water wells and drinking wells.'' Noland noted that third
parties had raised concerns about the location of the groundwater
management zone. ``IDEM directed other implementing agencies, such as
DNR, to establish groundwater management zones for their regulatory
program as this rule reflects.'' Noland said the proposed nonrule
policy does a ``good job'' explaining how the groundwater management
zone will be created and how monitoring will occur throughout the
mining activities. Noland said that the Indiana public already has
protection for drinking water wells that no other state or federal
government has provided. He said the coal industry proposed legislation
a few years ago before the Indiana General Assembly to expand a post-
1977 reclamation fund to be used to provide monies to replace drinking
water wells that may be affected by past mining practices. ``Monies in
the fund come solely from civil penalties paid by coal operators.'' He
said the proposed rule, with the Indiana surface mining laws and
statutes and the fund provide ``more than adequate protection to
property owners.''
Noland said that third parties also commented that certain
groundwater standards should apply within the mined area. ``That notion
was completely contrary to IDEM's rule, and no further changes should
be made in a proposed rule. He noted that Reclamation staff indicated
in their response to comments, ``mineralization of groundwater within a
mined area will occur, but the extent of that mineralization cannot be
predicted. Groundwater in a mined area will not be used for drinking
water and does not need monitoring by these rules. The purpose for the
Groundwater Management Zone is to ensure that the effects will not
occur outside the boundaries of the groundwater management zone.''
Noland said the proposed rules ``are not required by Indiana Surface
Mining law or the federal law as previously indicated. In fact,
groundwater standards are not a part of regulatory program in many
coal-mining states; however, we will support the rule today. Coal mine
operators can implement the rule and we urge you to go forward with the
document that has been presented by the staff.''
Rae Schnapp represented the Hoosier Environmental Council. Schnapp
thanked the DNR for amending the rule to change the groundwater
management zone so that it does not extend beyond the property
boundaries. ``That is a very important aspect of the rule. Schnapp
expressed that the groundwater management zone is essentially a
``sacrifice zone where no standards apply, and that zone is 300 feet
deep.'' She stated that HEC did not ``believe'' the proposed rule was
``not consistent'' with federal SMCRA rules. Schnapp explained that
federal SMCRA requires operators to focus first on prevention. The
SMCRA approach is to view mining as a temporary activity, a temporary
land use, and full capability of land use is to be restored.'' She
stated that groundwater contamination is ``likely to be permanent.''
Schnapp stated that the proposed rule ``only protects existing
wells and allows the ambient groundwater to be contaminated.'' She
added that the proposed rules also allow for wells used for livestock
or irrigation to be contaminated ``up to a point.'' Schnapp said that
HEC does ``appreciate'' the change in the rule that puts the
interceptor wells between the mining activity and an existing drinking
water well, but ``we feel that really is not enough.'' She said that
HEC had submitted comments and suggestions about language that would
define minimizing pollution that have not been incorporated into the
rule. ``We urge you to seriously consider that, because we think that
the rule needs to have more focus on prevention.
Director Goss commented, ``I think we all, at least the people who
have been on this committee, know the importance of this. We've
anxiously awaited IDEM's guidelines.'' He stated the DNR may be the
first state agency to propose these detailed regulations, and may be
``even ahead of up IDEM's other divisions in adopting this.'' Goss
thanked the Division of Reclamation for the amount of effort put into
the rule proposal, and also thanked the private industry, Indiana Coal
Council, and the Hoosier Environmental Council and other citizen
groups. ``We have had literally dozens and dozens of conversations this
year, and it's all been positive and friendly on how to improve this
and make it work. I think this has been a very good process.''
Jerry Miller moved to approve for final adoption of SMCRA Water
Quality Amendments in 312 IAC 25 to implementing 327 IAC 2. Damian
Schmelz seconded the motion. Upon a voice vote, the motion carried.
Jerry Miller moved to adopt the Nonrule Policy Document
(Information Bulletin #38) implementing the Indiana groundwater
standards at coalmines regulated under IC 14-34.
Damian Schmelz seconded the motion. Upon a voice vote, the motion
carried.
The Wright testimony, on page 4, misrepresents groundwater
protection standards in Illinois and the regulatory provisions provided
under SMCRA. The testimony reveals the author has a lack of
understanding of the mining process and how the local geology
influences groundwater after the commencement mining operations. Mr.
Wright requests that SMCRA establish numeric standards to determine
when contamination occurs. While we agree with Mr. Wright's statement
that it would be unrealistic to assume groundwater in mined areas will
remain pristine, the establishment of nationwide, numeric groundwater
standards would be unrealistic considering the varying geologic
conditions of each region of the nation.
Illinois has statewide groundwater protection standards for offsite
impacts as provided by Illinois Environmental Protection Agency's
groundwater rules at 35 IAC 620. Mining related constituent standards
are set at the existing concentrations in the groundwater within the
permit boundary at the time of reclamation. Constituents outside the
permit boundary must comply with the applicable class standard for the
groundwater. These rules were implemented to protect the groundwater
supply surrounding a mining operation and provide a numeric standard
for determining when contamination does occur. The use of regional
groundwater protection standards is a much more practical approach than
trying to establish national standards for groundwater.
Mr. Wright has obviously been misinformed concerning the ``high
levels of arsenic'' mentioned on page 6. The wells with ``high levels
of arsenic'' are not in the same aquifer as that being addressed at the
mine site. And, the so-called ``high levels'' of arsenic are within
state standards. Mr. Wright fails to acknowledge that the company is
addressing its environmental responsibility in a professional manner
while under the jurisdiction of the state regulatory agencies using
existing regulations.
On page 6 of his testimony, Mr. Wright states that ``Illinois DNR
ignored the request for a Public Hearing about the high hazard dams
that contain waste. In 2003, the DNR granted a public hearing on the
reclamation plan, but refused to answer any of the public's questions
on the plan.''
The request of a public hearing concerning high hazards dams is
a provision of a law not related to SMCRA and not enforced by
the division of DNR that is the regulatory authority for
Illinois' Permanent Program. The public hearing held in 2003
was held according to the regulations. The purpose of such
hearings is to receive public comments, but once the hearing
record closed agency officials were available to answer
questions. All comments received at the hearing were addressed
in the permit decision document issued concerning this
application. In addition, the Illinois DNR in 2006 held a
lengthy public informational forum to discuss questions from
the public. Among the issues raised were design, maintenance
and use of the ``high hazard dam'' as refuse retention
structures at the reclaimed mine site in question.
Mr. Wright goes on to state on page 6 that ``In 2003, the
reclamation plan was approved despite the fact that the mining company
did not tell where the monitoring wells on the site were located.
Illinois DNR itself admitted in its own evaluation that this made it
impossible to determine whether any possible contamination was
migrating off site....The reclamation plan has been under appeal for
over 4 years. The appeal is now at the federal level.''
These statements are untrue. The application for the permit
revision in question contained the location of the monitoring
wells, and the admission referred to is a total fabrication.
The permit revision referred to was issued on March 3, 2004.
Local citizens requested administrative review of the decision
to issue the revision. The final administrative ruling on the
decision to issue the revision was handed down on May 25,
2005--approximately two years after the review was requested--
not four years. The ruling was in DNR's favor.
This permit revision approval is not the subject of a federal
appeal. The federal appeal deals with a notice sent to DNR by
OSM alleging violations of performance standards. DNR's
response to OSM concerning these allegations was deemed
appropriate and no federal enforcement action was taken. A
local citizen is now appealing OSM's decision to not take
enforcement action, not DNR's decision to issue the revision.
In referring to a pipeline to the Kaskaskia River, on page 6 Mr.
Wright's testimony alleges that DNR sent legal arguments to the OSM for
review, ``who found that the mine arguments were not valid. In December
2006, Illinois DNR nevertheless changed their position in favor of the
mine.''
DNR forwarded the legal rationale of the mine operator to OSM
requesting their solicitor's opinion. The solicitor did not
find the arguments invalid as Mr. Wright claims. The DNR's
decision to approve the pipeline is the subject of
administrative review requested by the citizen. A recent ruling
by the administrative hearing officer presiding over this
review found the citizen's ``pleadings grossly mis-characterize
both the Illinois Department of Natural Resources and the
federal Office of Surface Mining analysis''.
On page 7 of his testimony Mr. Wright makes several statements
concerning Illinois' regulation of longwall mining. All of these
statements are misrepresentations of the facts. Mr. Wright obviously
accepted verbatim the positions of an anti-longwall mining group in
Montgomery County without bothering to confirm whether the information
provided was factual.
``Illinois DNR has claimed that it has no authority over longwall
mines even though SMCRA regulates the surface impacts of underground
mining.''
This statement is blatantly false. In Illinois, longwall mining
has been performed in 11 different mining operations located
within 6 counties. To date, over 240 modern longwall panels
have been extracted in Illinois. Since 1983, Illinois
regulations have required the mitigation of all subsidence
impacts, resulting from all types of underground mining, to
both land and structures. There are currently two longwall
mines operating in Illinois. Land and structures impacted by
subsidence from these mines are routinely repaired and
landowners are paid for crop losses incurred until repairs are
completed.
``The Illinois DNR has repeatedly refused to address citizen
concerns about possible damage to their homes and farms on the grounds
that SMCRA does not give them authority to regulate underground
mines.''
This statement is false. DNR personnel have met numerous times
with citizens as part of Farm Bureau sponsored meetings to
discuss the issue of underground mining and subsidence repair.
``Illinois DNR has denied the [lands unsuitable petition]
repeatedly on the grounds it cannot accept such petitions for
underground mines, but this would appear to directly contradict their
own regulations, which declare `An area shall be designated as
unsuitable for all or certain types of mining operations.'''
The regulations state at 30 CFR 762.11, and the Illinois
counterpart 62 Ill. Adm. Code 1762.11, that lands unsuitable
petitions may be submitted for surface coal mine operations.
The definition of surface coal mine operations states that
``Such activities include excavation for the purpose of
obtaining coal, including such common methods as contour,
strip, auger, mountaintop removal, box cut, open pit, and area
mining, the uses of explosives and blasting; in situ
distillation or retorting; leaching or other chemical or
physical processing; and the cleaning, concentrating, or other
processing or preparation of coal.''
This regulatory definition of ``surface coal mining
operations'' describes activities conducted on the surface of
lands in connection with a surface coal mine or surface
operations. Such surface mining extraction activities have been
interpreted to include excavation for the purpose of obtaining
coal including such common methods as contour, strip, auger,
mountaintop removal, box cut, open pit, and area mining....and
all areas on which such activities occur or where such
activities disturb the natural land surface. These surface coal
mining activities are distinguished from underground coal
mining activities. Underground coal mining activities include
the standard mining methods known as room and pillar
excavation, high extraction retreat mining, and longwall
mining.
The petition referred to sought a lands unsuitable for mining
designation based upon longwall mining operations. Longwall
mining is not a surface coal mining extraction method; it is an
extraction method used for underground coal mining operations.
Longwall mining extraction is not conducted on the surface of
the land, and as such, it is not a surface coal mining
operation. DNR determined that it is not authorized to review
lands unsuitable for mining petitions that do not relate to
surface coal mining operations.
``The Illinois DNR seems to be completely unwilling to take any
sort of regulatory action in regards to longwall mining. This situation
leaves citizens with no recourse for protecting their homes and their
property from possible damage from longwall mines.''
As indicated above this accusation is simply not true. Illinois
has over 24 years of experience in regulating longwall mining
and the affects to both land and structures resulting from
subsidence caused by longwall mining. All underground mine
operators are required to repair subsidence damage resulting
from underground mining, whether it be conventional room and
pillar mining or longwall mining.
______
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
STATEMENT OF STEPHANIE R. TIMMERMEYER, SECRETARY, WEST VIRGINIA
DEPARTMENT OF ENVIRONMENTAL PROTECTION, CHARLESTON, WEST
VIRGINIA
Ms. Timmermeyer. Mr. Chairman and members of the Committee,
thank you for the opportunity to speak on behalf of West
Virginia to commemorate this, the 30th anniversary of SMCRA.
To say that this legislation is important to the Mountain
State would be an understatement. Fortunately, as mining
practices have evolved, so has SMCRA. To illustrate that point,
in my travels here I have brought two permits. This permit was
issued in 1977. This permit was signed this week. Both allow
for surface mining on similar acreage.
This permit basically just outlines the boundaries of the
mining area and the number of acres to be mined. This one is
clearly far more comprehensive. It includes a surface water
runoff analysis, a community impact statement, baseline water
quality data, a stability analysis, a sediment control plan,
among many other additions. Clearly, SMCRA and our correlating
state regulations have come a long way since 1977.
Our agency continues to work every day to find new ways to
reduce mining's impact on the environment and keep folks in
business. Both mining and environmental protection are big
business in our state.
West Virginia has had a long-time relationship with the
coal industry. In 1939, long before SMCRA was contemplated,
West Virginia was the first state in the Nation to enact
environmental laws to regulate coal mining. As the coal boom
continued and as companies walked away from sites, leaving a
legacy of environmental damage, an energetic freshman
Congressman from West Virginia helped craft and build support
for landmark legislation that would require responsible mining
and reclamation across the country.
SMCRA created Federal oversight for mining activities, and
empowered the states to protect human health and the
environment. I am humbled by the great strength of character
and great leadership that you showed, Mr. Chairman, to take
such a bold step as the member of a coal state's delegation.
Your actions helped propel West Virginia into the forefront as
a leader in environmental protection issues.
Through SMCRA and a solid state mining regulatory program,
coal operators are far more responsible in mining activities.
Planned reclamation has become a given in coal mining today.
Industry has progressed from claiming that SMCRA and any
changes to it would put them out of business, to vying for
reclamation awards and showcasing successful reclamation sites.
Too often that wasn't the case in years past. West Virginia
is still riddled with pre-law mine sites that continue to
pollute our streams and pose safety hazards to residents.
Thanks to SMCRA, West Virginia has a means to tackle that
problem.
I won't spend a lot of time on this issue, because I know
others will address it later, but I could talk all day about
how important the recent AML fund reauthorization is to West
Virginia. I will just quickly note that West Virginia Governor
Joe Manchin has announced that $58 million of the nearly $1
billion that West Virginia will receive will go to create
valuable water infrastructure to the old mining communities
that need it the most.
The industry, government, and citizens have become more
sophisticated since 1977. Decisions on mining matters are far
more deliberative and comprehensive. Now more than ever, permit
decisions are inclusive of the public. The DEP prides itself in
its progressive approach to public participation. Individuals
can subscribe to an online email notification system. Citizens
are in our DEP offices every day reviewing permit files to make
informed comments on draft permits. Public hearings are
commonplace. And the agency makes itself available for
question-and-answer sessions and citizen inspections. Without
the groundwork of SMCRA, this may not have been possible.
Post-mining land uses are a very important component of
SMCRA. Due in part to the steep topography of West Virginia,
many new commercial developments are on previously mined and
reclaimed land, particularly in the southern coal fields.
Shopping malls, schools, wood product plants, golf courses, and
athletic complexes have sprung up on old mine sites.
One of the most significant projects in the state is the
King Coal Highway, which will enable residents of once-isolated
communities to travel farther in shorter timeframes. The
highway will spur economic development along the route,
providing the critical travel infrastructure that West Virginia
needs. It is by no means the D.C. Beltway, but it sure is a far
cry from the twisting, winding, narrow roads that we West
Virginians are used to.
West Virginia Governor Joe Manchin realizes the importance
of post-mining land use requirements and the development
opportunities that they present. An Executive Order is being
drafted that sets in motion a framework for future industrial,
commercial, and agricultural projects that will tap into the
experience of the state's economic development and science
leaders.
Coal won't be here forever, so West Virginia is looking to
diversify its economic development and growth options, so that
it can keep its residents employed and living in the Mountain
State.
I hope that SMCRA will continue to evolve and mature, in
order to take into consideration the states' infrastructure
needs, environmental protection needs, and development needs on
mine lands that might otherwise lie dormant. Instead of a
legacy of problems, today's legacy is this: Thanks to SMCRA,
mining companies are held to a high standard. They have
recognized that there is an inherent wealth in a community's
heritage and well-being.
Mining is also a part of our state's social fabric, and it
provides an integral part of West Virginia's well-being in
culture, as well as the nation's economy. With forward-thinking
legislators like Congressman Rahall and our Governor, Joe
Manchin, West Virginia will continue to lead in mining and
reclamation regulation, while seeking out new ways to provide
energy and fuel the nation's economy.
Thank you for providing this opportunity to speak. It is
truly an honor to be able to provide West Virginia's
perspective on this issue.
[The prepared statement of Ms. Timmermeyer follows:]
Statement of Stephanie R. Timmermeyer, Cabinet Secretary,
West Virginia Department of Environmental Protection
Mr. Chairman and members of the committee,
Thank you for the opportunity to speak on behalf of West Virginia
to commemorate the 30th anniversary of the Surface Mining Control and
Reclamation Act of 1977. The measure has been hugely important to the
Mountain State as coal mining practices have evolved over the past 30
years. Natural resource extraction and regulation has quite a history
in West Virginia.
In 1939, West Virginia was the first state in the nation to enact
environmental laws to regulate coal mining. The legislation required
that companies obtain a permit, post a bond and reclaim the land. The
environmental protection movement for mineral extraction was born.
Over the next few decades, coal mining became more prevalent, and
the boom of the northern underground coal mines prompted companies to
explore the southern coalfields and burrow underground for the resource
that would propel the United States into the forefront of industrial
production and electricity supply.
An incredible amount of wealth was leaving West Virginia. Mining
companies not only took the valuable coal out of the state, but also
destroyed the heritage and fabric of communities. They often left
nothing behind but unsafe sites, open mine portals and dead streams.
Despite early legislation, little was being done to stem the tide of
destruction from mining. During World War II, the demand for energy
peaked, and millions of tons of coal were mined quickly. Before long,
more than 102,000 acres were disturbed with no reclamation.
That prompted West Virginia legislators to again take action to
strengthen the surface mining law. In 1959, lawmakers required
vegetation on disturbed areas, though the law was fairly weak, and it
did little to fix the reclamation problem.
A new surface mining law was enacted in 1967 that gave what we now
call the West Virginia Department of Environmental Protection the
responsibility for all phases of mining. The 1967 act was considered to
be one of the toughest surface mining laws in the U.S. The act required
prospecting permits, surface mining permit fees, bonds for disturbed
acres, basic preplanning responsibilities, and monthly inspections. All
of these requirements were precursors to our modern-day rules and
regulations governing mining operations, and, I might say, a
foreshadowing of what was to come in 1977.
In that decade to come, West Virginia was in the limelight for a
couple of reasons. In 1972, a coal dam burst on Buffalo Creek, killing
125 people and wreaking havoc on families and communities in the wake
of the rushing water. That incident put a renewed focus on the mining
industry through the creation of dam safety laws.
Momentum continued to build, and an energetic freshman congressman
from West Virginia helped craft and build support for landmark
legislation that would require responsible mining and reclamation
across the country. The birth of SMCRA, thanks to Congressman Rahall
and his colleagues, has leveled the playing field for mining companies
through federal oversight and it empowered states to protect human
health and the environment. It took incredible leadership for
Congressman Rahall to take such a bold step as part of a major coal
state's delegation, and it thrust West Virginia into the forefront
again as a leader in environmental protection issues.
No law has had a bigger impact on mining in West Virginia than
SMCRA. Above all, SMCRA greatly reduced mining's impacts through
minimum requirements and an emphasis on reclamation. No longer could
coal companies take the valuable coal and leave behind a legacy of acid
mine drainage and dangerous land formations. Although there are still
impacts from mining, the practice is now carefully planned and
permitted with extensive scientific, regulatory and public input.
To illustrate that point, I have brought, on my travels here, two
permits. This permit was issued in 1977. This permit was signed
yesterday. Both allow for surface mining on similar acreage. This
permit basically outlines the boundaries of the mining area and the
number of acres to be mined. This one is far more comprehensive. It
includes a surface water runoff analysis, a community impact statement,
baseline water quality data, a stability analysis, and a sediment
control plan, and many other additions.
Clearly, SMCRA and our correlating state regulations have come a
long way since 1977. Our agency works every day to find new ways to
reduce mining's impact on the environment and keep folks in business.
Both mining and environmental protection are big business in our state.
The DEP combines the administration of the SMCRA and Clean Water
Act 401 and 402 programs to regulate active mining. The integrated
program for coal mining in West Virginia processed permitting
transactions and inspection/enforcement activities at over 1,900
permitted sites that together produced 159 million tons of coal in
2006. That resource generated over 90% of the state's electricity
consumption and helped fuel a state economy that supplies products and
services essential to the welfare of the nation.
Through SMCRA and a solid state mining regulatory program, coal
operators are far more responsible in mining activities. Planned land
reclamation has become a given in coal mining today. Industry has
progressed from claiming that SMCRA and any changes to it would put it
out of business to vying for reclamation awards and showcasing
successful reclamation sites.
Too often that wasn't the case in years past. West Virginia is
still riddled with pre-law mine sites that continue to pollute our
streams and pose safety hazards to residents. Thanks to SMCRA, West
Virginia has a means to tackle the problem. The Abandoned Mine Land
Fund created by SMCRA uses industry dollars to fund mine cleanup
projects from old rogue operations.
In West Virginia, the Abandoned Mine Land program has eliminated
and reclaimed tens of thousands of acres of abandoned mine sites by
abating hazards and restoring land and water to beneficial uses. Many
miles of streams, such as the Blackwater and Middle Fork rivers have
been restored to viable fisheries. Public water systems have been
installed where past mining destroyed potable water supplies. The
recent reauthorization of the program, thanks in part to the leadership
of West Virginia's congressional delegation, will provide the
opportunity to accelerate the program. Earlier this year, Governor
Manchin announced that $58 million of the nearly $1 billion West
Virginia will receive will go to creating valuable water infrastructure
to the old mining communities that need it most.
The West Virginia AML program has received in excess of $617
million over the past 30 years to achieve the mission of the program.
In the past 30 years, DEP eliminated 49 miles of highwalls, sealed
2,688 portals, abated 439 acres of residential and urban subsidence
areas, and eliminated 739 impoundments, all of which posed significant
public health and safety hazards. Through the AML program, there are
over 12,215 West Virginia families, churches, schools, and businesses
that have clean, safe, and reliable drinking water. Since 1988, more
than 779 emergency projects have been completed, in some cases saving
the lives of people at risk of an impending impoundment failure or
landslide. Despite all of our work, there is much more to do. West
Virginia has documented over $1.8 billion in reclamation needs in the
Office of Surface Mining's inventory.
The West Virginia Special Reclamation Fund to reclaim coal mined
lands abandoned after 1977 is another example of how SMCRA has led the
regulated community to take responsibility for environmental legacy
costs. The fund, in part, is based on the early landmark West Virginia
statute that required funds be paid by the operator to address land
reclamation and water pollution. The program is funded by forfeited
bonds, civil penalties and a reclamation tax on mined coal. Since its
inception, DEP's Office of Special Reclamation has reclaimed 1,592 bond
forfeited coal-mining permits totaling 26,691 acres at a cost of over
$101 million. In addition, DEP has constructed and maintains 105 water
treatment sites at a capital cost of $17 million, and an additional $26
million in operating and maintenance costs.
The permitting process under SMCRA has afforded opportunities to
avoid and minimize potential problems, thus providing some direction
for mining operations. For example, improvements in the prediction and
prevention for modeling acid mine drainage has contributed to the fact
that since 1999, only 3.2% of permits have developed acid mine
drainage. This represents a continual downward trend since the passage
of SMCRA.
The realization of ownership and control requirements through SMCRA
and the corresponding state programs and maintenance of nationwide
databases like the Applicant Violator System imposed accountability and
made possible the removal and blocking of irresponsible operators. A
challenge is maintaining the level of accountability requirements in
light of the changes in ownership structures of coal companies,
especially the multitude of ownership forms (e.g. investment groups,
limited liability corporations) and bankruptcy law protections used by
some coal operators.
SMCRA has been effective in preventing and remediating offsite
impacts that can occur with coal mining. In West Virginia, water
replacement is now the rule rather than the exception. Also, a blasting
program insisted upon in SMCRA provides neighbors of mining operations
with protections in advance of blasting and avenues for redress in the
event of damages.
The industry, government and citizens have become more
sophisticated since 1977. Decisions on mining matters are far more
deliberative and comprehensive. Now, more than ever before, permit
decisions are inclusive of public comment and participation. The DEP
prides itself in its progressive approach to public participation.
Individuals can subscribe to an online e-mail notification system to
see public notices for any county in the state. Citizens are in our DEP
offices every day reviewing permit files and arming themselves with
information to make informed comments on draft permits or to provide
testimony in mining permit appeals. Public hearings are commonplace,
and the agency attempts to make itself available for question and
answer sessions and citizen inspections. Without the groundwork of
SMCRA, this may not have been possible.
The permitting process, in fact, has become a planning tool for
companies and communities. The SMCRA requirement to reclaim mined lands
and return them to uses equal or better than those which existed before
mining has become an important economic development component for West
Virginia.
In 2006, approximately 75% of all surface mine applications
approved in West Virginia set forth forestland as the post mining land
use. This equates to approximately 8,000 acres. Over the past three
years, 6 million seedlings were planted on mined lands. This sets the
stage for a future viable forestry industry in the years to come.
Due in part to the steep topography of West Virginia, many new
commercial developments are on previously mined and reclaimed land.
Particularly in the southern coalfields, shopping malls, schools, wood
products plants, golf courses, and athletic complexes have sprung up on
old mine sites. One of the biggest up and coming projects in the state
is the King Coal Highway, constructed as a post mining land use. The
highway will enable residents of once isolated communities to travel
farther in shorter time frames. The highway will spur commercial
development along the route, providing the critical travel
infrastructure West Virginia needs. It is by no means the Washington,
D.C. beltway, but it sure is a far cry from the twisting, winding,
narrow roads West Virginians are used to.
West Virginia Governor Joe Manchin realizes the importance of post
mining land use requirements and the development opportunities they
present. An executive order is being drafted that sets in motion a
framework for future industrial, commercial and agricultural projects
that will tap into the know-how the state's economic development and
science leaders. Coal won't be here forever, so West Virginia is
looking to diversify its economic development and growth options so
that it can keep its residents employed and living in the Mountain
State. I hope that SMCRA will continue to evolve in order to take into
consideration states' infrastructure, environmental protection, and
development needs on mined lands that might otherwise lie dormant.
It has taken decades of science, expertise and diplomacy to get
where we are today in mining and regulating coal. The changes have been
drastic and have led to a dramatic improvement from the old days of
digging coal and leaving behind a legacy of problems.
Instead of a legacy of problems, today's legacy is this--thanks to
SMCRA, mining companies are held to a high standard. They have
recognized that there is an inherent wealth in a community's heritage
and well being. Mining is also a part of the state's social fabric, and
it provides an integral part of the nation's economy and West
Virginia's well being and culture. With forward-thinking legislators
like Congressman Rahall and our Governor, Joe Manchin, West Virginia
will continue to lead in mining and reclamation regulation while
seeking out new ways to provide energy and fuel the nation's economy.
Thank you for providing this opportunity to speak. It is truly an
honor to be able to provide West Virginia's perspective on such
important legislation.
______
The Chairman. Mr. Husted.
STATEMENT OF JOHN HUSTED, DEPUTY CHIEF, DIVISION OF MINERAL
RESOURCES MANAGEMENT, OHIO DEPARTMENT OF NATURAL RESOURCES,
COLUMBUS, OHIO
Mr. Husted. Greetings, Mr. Chairman and members of the
Committee. I am the Deputy Chief of the Ohio Division of
Mineral Resource Management, and also the President of the
National Association of Abandoned Mine Land Programs. And I
have been working with Title IV and Title V programs since
1979.
I am submitting the testimony on the behalf of the National
Association of Abandoned Mine Land Programs. The Association is
an organization consisting of 30 states and Indian tribes with
a history of coal mining and coal mining-related hazards, which
is overseen by the Office of Surface Mining Reclamation and
Enforcement.
I would like to present the member states' and tribes'
views and sentiments related to the implementation of Title IV
AML reclamation program under SMCRA.
Since the enactment of SMCRA, the AML program has reclaimed
thousands of dangerous sites left by abandoned coal mines,
resulting in increased safety for millions of Americans.
Unfortunately, three billion priority-one and two problems
still threaten the public's safety and remain unreclaimed.
The Association is extremely pleased over the passage of
the 2006 amendments to SMCRA. The 15-year extension, coupled
with the increased off-budget funding, will provide the states
and tribes with the ability to be able to carry out the
remaining AML reclamation work.
Included in your testimony is a copy of the AML booklet
called Safeguarding, Reclaiming, and Restoring, which
highlights the various AML projects across the United States
that have protected the public's health and safety. It is
important to remember that the AML program is, first and
foremost, designed to protect the public's health and safety.
The majority of the state and tribal AML projects specifically
correct AML features that threaten someone's personal safety or
welfare.
While state and tribal AML programs do complete significant
projects that benefit the environment, the primary focus has
been on eliminating health and safety hazards first. The OSM
inventory of completed work reflects this task.
The following quotes and excerpts are from the Association
members that I believe are representative of many of the
members' views, and are intended to address the effectiveness
of Title IV of SMCRA.
Number one, comments from Montana's AML program. From the
Montana perspective, the AML program has been a huge success.
Montana's program is a success from the aspect of protecting
human health and safety, and protecting the environment. From
the program management perspective, Montana's AML program is a
success because of the manner in which the AML program is
managed by OSM. Montana's experience with OSM's oversight in
the AML program is one of collaborative assistance that focuses
on accomplishments, the goals of the AML.
In addition, OSM sponsors training through the National
Technical Training Program in subjects such as subsidence
control, mine fire abatement, mine hydrology, and project
management.
Comments from North Dakota's AML program. Overall, I
believe the AML program has been very successful in identifying
abandoned mine sites and eliminating safety hazards associated
with many of them. As you know, much more AML work remains to
be done, and in most states, reauthorization of the program
will allow most of the remaining work to be completed over the
next 15 years.
However, for the minimum program states, one of the
failures has been the lack of full funding for minimum program
states over the past 15 years.
In closing, as President of the Association, I would like
to commend OSM for their efforts to work with the states and
tribes in the rulemaking process for the implementation of the
2006 amendments to SMCRA.
Several issues still have not been resolved; thus, the
states and tribes have serious concerns about how effectively
the 2006 amendments will be implemented.
Number one. Funding for minimum program states. The minimum
programs should receive $3 million per fiscal year, commencing
in 2008, and not wait until Fiscal Year 2010.
Number two. Distribution of payments from the U.S.
Treasury. The states and tribes would like the option of
receiving the payments using the current grant system, or
payments directly by the Treasurer, similar to mineral
royalties paid to states under the Mineral Leasing Act.
Number three. Use of unappropriated state's share balances.
The states and tribes assert that these monies should also be
available for non-coal reclamation, and for the 30 percent AMD
set-aside.
These issues are very important, and we request the
Committee to urge OSM to address these problems, as we believe
they will lay the foundation for successful implementation for
the AML program for the next 15 years.
The Association would like to submit for the record a copy
of a May 2007 letter to OSM which provides significant detail
and rationale behind our concerns over these listed topics and
other important issues.
Thank you for the opportunity to provide testimony, and
your strong support for the AML program.
[The prepared statement of Mr. Husted follows:]
Statement of John F. Husted, President, National Association of
Abandoned Mine Land Programs, and Deputy Chief, Ohio Department of
Natural Resources, Division of Mineral Resources Management, Columbus,
Ohio
Greetings Mr. Chairman and Members of the Committee. My name is
John F. Husted and I am the Deputy Chief of the Ohio Department of
Natural Resources, Division of Mineral Resources Management and also
the President of the National Association of Abandoned Mine Land
Programs (NAAMLP). I started my career in 1979 with the State of Ohio
and have worked exclusively in Title IV and Title V programs under the
Surface Mining Control and Reclamation Act of 1977. I have represented
the Ohio Department of Natural Resources as a member of the NAAMLP
since 1993 and have been proudly serving as President of the
Association since September 2006.
I am submitting this testimony on behalf of the NAAMLP. The NAAMLP
is a tax-exempt organization consisting of 30 states and Indian tribes
with a history of coal mining and coal mine related hazards. These
states and tribes are responsible for 99.5 percent of the Nation's coal
production. All of the states and tribes within the NAAMLP administer
abandoned mine land (AML) reclamation programs funded and overseen by
the Office of Surface Mining Reclamation and Enforcement (OSM) pursuant
to Title IV of SMCRA, P.L. 95-87.
The Association appreciates the opportunity to participate in this
oversight hearing on ``The Surface Mining Control and Reclamation Act
of 1977: A 30th Anniversary Review''. I would like to present the
member states' and tribes' views and sentiments related to
implementation of the Abandoned Mine Land Reclamation Program (Title
IV) under SMCRA.
Since the enactment of the SMCRA by Congress in 1977, the AML
program has reclaimed thousands of dangerous sites left by abandoned
coal mines, resulting in increased safety for millions of Americans.
Specifically, more than 285,000 acres of abandoned coal mine sites have
been reclaimed through $3.5 billion in grants (administration and
construction) to states and tribes under the AML program. This means
hazards associated with more than 27,000 open mine portals and shafts,
2.9 million feet of dangerous highwalls, and 16,000 acres of dangerous
piles and embankments have been eliminated and the land reclaimed.
Despite these impressive accomplishments, $3 billion Priority 1 and 2
problems threaten public health and safety and remain unreclaimed.
These hazardous sites require safeguarding by the states and tribes AML
programs.
The Association is extremely pleased over the passage of the 2006
Amendments to SMCRA. The 15-year extension coupled with increased
funding will provide the states and tribes with the ability to carry
out the remaining AML reclamation work. It is the intention of the
states and tribes to focus on the protection of the public health and
safety to ensure restoration in the coalfields of America. The
Association would also like to thank the Congress for reauthorizing the
AML Program and for taking the AML funding to states and tribes ``off-
budget''. With the funding off-budget, this will finally allow the
states and tribes to make staffing decisions and in turn begin planning
for long range design and reclamation activities. Included with our
testimony is a copy of an AML booklet called ``Safeguarding,
Reclaiming, Restoring'' for your review. The booklet was developed by
the Association and OSM to highlight the various AML projects across
the United States that have protected the public's health and safety.
It is important to remember that the AML program is first and
foremost designed to protect public health and safety. The majority of
state and tribal AML projects specifically correct AML features that
threaten someone's personal safety or welfare. While state and tribal
AML programs do complete significant projects that benefit the
environment, the primary focus has been on eliminating health and
safety hazards first. The OSM inventory of completed work reflects this
fact.
This committee has asked the NAAMLP to comment on the 30th
Anniversary Review of SMCRA. The following quotes and excerpts are from
some of the Association members that I believe are representative of
many of the members views and are intended to address the effectiveness
of Title IV of SMCRA:
1. Montana: ``From the Montana perspective the Abandoned Mine
Reclamation Program under Title IV of SMCRA has been a huge success.
Montana's AML program was approved in 1980 and the program has had a
high approval rating ever since. Montana's program is a success from
the aspect of protecting human health and safety, protecting the
environment, and from the perspective of creating jobs and putting
people to work. Acceptance of the AML program has run high because AML
results in on the ground accomplishments that are immediately visually
apparent.
From the program management perspective Montana's AML program is a
success because of the manner in which the Abandoned Mined Lands
program is managed by Office of Surface Mining. Montana's experience
with OSM oversight in the AML program is one of collaborative
assistance that focuses on accomplishing the goals of AML. OSM provides
the oversight and assistance necessary to keep the AML program on track
without creating unnecessary or confusing paperwork or reports.
OSM provides important training in the areas of computer software
and modeling geographic information systems, and data systems. This
focused training gets staff trained using software packages that would
not be available through State computer systems. In addition, OSM
sponsors training through their National Technical Training Program in
subjects such as subsidence control, mine fire abatement, mine
hydrology and project management. This specialized training is just not
available from other sources and without it Montana AML would not have
the necessary problem solving tools.
2. North Dakota: ``Overall, I believe the AML program has been very
successful in identifying abandoned mine sites and eliminating safety
hazards associated with many of them. As you know, much more AML work
remains to be done in most states and re-authorization of the program
will allow most of this remaining work to be completed over the next 15
years. However, for the minimum program states, one of the failures has
been the lack of full funding for the minimum program states over the
past 15 years. SMCRA amendments in 1992 set the minimum program funding
level at 2 million dollars per year, but Congress typically
appropriated only enough funds for 1.5 million per year. If the other
0.5 million dollars had been appropriated each year, the backlog of AML
work in these states would be much less and hazards would have been
eliminated sooner and at lower costs. Since there is nothing that can
be done about past actions, we shouldn't dwell too much on that and
move forward instead. With re-authorization now in place, it's time for
OSM to ensure that funding for minimum program states is at the 3
million dollars per year authorized in that legislation. The increased
funding to that level for the minimum program states needs to begin in
FY 2008.''
In closing, I would like to commend OSM for their efforts to work
with the states and tribes in the rulemaking process for the
implementation of the 2006 Amendments to SMCRA. OSM has spent
considerable time and effort meeting and responding to questions and
concerns from the Association regarding rule development. Although much
has been done to address problems identified by the states and tribes,
there are still significant shortcomings that need to be addressed.
Several issues still have not been resolved, thus the states and tribes
have serious concerns about how effectively the 2006 Amendments to
SMCRA will be implemented. The issues are:
1. Funding for Minimum Program States.
The Minimum Program States are Alaska, Arkansas, Iowa,
Kansas, Maryland, Missouri, and Oklahoma.
OSM has indicated that the minimum program states will
not receive the full $3 million allocation until FY 2010. The states
believe that this is a misinterpretation by OSM and that the minimum
programs should receive $3 million per year beginning in FY 2008.
2. Use of Grant Mechanism to Distribute Payments from the U.S. Treasury
for both the prior unappropriated state/tribal balances and
payments in lieu of future state and tribal share to certified
states and tribes.
The states and tribes would like the option of receiving
the Treasury payment by the current grant process or by direct payment
from the Treasury similar to mineral royalties paid to states under the
Mineral Leasing Act.
The states and tribes want flexibility and discretion
with regard to the types of mechanisms that are available for
distributing and expending Treasury payments.
3. Use of Unappropriated State Share Balances for Noncoal Reclamation
and AMD Set-Aside.
In its most recent interpretation of the 2006 Amendments,
OSM has stated that the funds returned to the states and tribes from
the unappropriated state share balance cannot be used for noncoal
reclamation or for the 30 percent AMD set-aside.
Pursuant to Section 411(h)(1) of the 2006 Amendments, the
states and tribes assert that these moneys should also be available for
noncoal reclamation under Section 409 and for the 30 percent AMD set-
aside. There is nothing in the new law that would preclude this
interpretation. Policy and practice over the past 30 years confirm it.
These three items represent some of the unresolved issues between
OSM and the States and Tribes on the 2006 Amendments to SMCRA. These
issues are very important and we request that this Committee urge OSM
to address these problems, as we believe they will lay the foundation
for successful implementation of the AML Program for the next 15 years.
The Association can provide this committee a copy of a letter to OSM
dated May 21, 2007 which provides significant detail and rationale
behind our concerns over these listed topics and other important
issues. We can also provide a copy of the response letter from OSM
dated June 14, 2007.
Thank you for the opportunity to submit this statement and provide
comments. Please contact me if the NAAMLP can provide more information
or assist the Committee in any way.
______
[NOTE: The AML booklet entitled ``Safeguarding, Reclaiming,
Restoring'' has been retained in the Committee's official files.]
May 21, 2007
Brent Wahlquist
Acting Director
Office of Surface Mining
1951 Constitution Avenue, N.W.
Washington, DC 20240
Dear Mr. Wahlquist:
This letter represents the comments of the National Association of
Abandoned Mine Land Programs (NAAMLP) and the Interstate Mining Compact
Commission (IMCC) regarding draft rules (proposed and interim final)
developed by the Office of Surface Mining (OSM) to implement the
provisions of the Surface Mining Control and Reclamation Act (SMCRA)
Amendments of 2006 (P.L. 109-432). OSM provided both the NAAMLP and
IMCC with copies of the draft rules in April and also attended a
meeting of both organizations on May 2 and 3 in Indianapolis to discuss
the rules. We appreciate the opportunity to submit comments on the
draft rules as OSM prepares to move forward with their promulgation
later this year.
There are several key sections of the draft rules that we will
address in these comments, as noted below. However there are a few
over-arching issues related to the interpretation of the new law that
we will discuss first, as they set the stage for some of our
recommended changes to the rules. All of these issues grow out of OSM's
``Major Policy Issues'' paper that was also shared with the states in
April.
I. GENERAL OVERVIEW COMMENTS
Use of Grant Mechanism to Distribute Payments from the U.S. Treasury
Pursuant to the 2006 Amendments to SMCRA, two new types of payments
from the U.S. Treasury are established: 1) distribution of the prior
unappropriated state/tribal share balances over a seven year period
(Section 41 l(h)(l)) and 2) payments in lieu of future state/tribal
shares formerly paid out of the AML Trust Fund pursuant to section
401(g)(l) (Section 41 l(h)(2)). Section 402(i)(2) requires the
Secretary of the Treasury to transfer to the Secretary of the Interior
``such sums as are necessary to pay the amount'' described above, but
no specific payment mechanism is prescribed. OSM prefers to distribute
these payments via grants to states and tribes, based on its reading of
the law and on past practice, rather than via direct distribution of
cash from the Treasury. The states and tribes posit that the new law
does not directly address this matter and therefore the Secretary has
the discretion to design a payment mechanism that meets the needs of
the states and tribes. In line with this discretionary authority, the
states and tribes prefer an approach that will provide them with
immediate access to those moneys that are due and owing from the
Treasury. This can be accomplished through a traditional grant process
for those who desire the ``protection'' and guidance that such a
process affords these monetary distributions. However, there is also
flexibility to design either a grant or a direct payment mechanism that
provides more unrestricted and immediate access to these moneys for
states who desire maximum discretion with regard to the use of these
moneys in line with the language in Section 41 l(h)(l)(D)(i) and (ii).
In the latter circumstance, the state legislatures will exercise their
fiduciary responsibility to insure that the funds are spent legally and
appropriately in accordance with the dictates of the 2006 Amendments
and state contracting law. Federal audits will also provide a measure
of scrutiny and review of project selection and expenditures. There are
also other mechanisms available for tracking and facilitating these
payments, one example being the management of mineral royalties paid to
states under the Mineral Leasing Act and another being a general
statement of work detailing how the money will be spent. The states and
tribes therefore urge OSM to incorporate significant flexibility and
discretion with regard to the types of mechanisms that are available
for distributing and expending Treasury payments for both the prior
unappropriated state/tribal balances and payments in lieu of future
state/tribal share to certified states and tribes.
Funding for Minimum Program States
The 2006 Amendments include several provisions that govern the
award of grant funds by OSM to states. Section 402(g) has three
paragraphs that bear on that topic. Section 402(g)(I) directs that;
``50 percent of the reclamation fees collected annually in any State''
be distributed to that state. Under section 402(g)(5)(A), ``[t]he
Secretary shall allocate 60 percent of the amount in the fund after
making the allocation referred to in paragraph (1)'' for additional
grants to states. And section 402(g)(8) states that ``In making funds
available under this title, the Secretary shall ensure that the grant
awards total not less than $3,000,000 annually to each State and each
Indian tribe...'' (emphasis added). This latter provision provides OSM
the justification for insuring annual minimum program grant funding in
excess of the base $3 million level as long as OSM does not contribute
more than $3 million from its own discretionary funds.
Section 401 of the bill also has relevant provisions. Sections
401(f)(l) and (2) direct OSM to distribute grant funds to states
annually, including the amount needed for the adjustment under section
402(g)(8) (i.e., the ``minimum program'' adjustment up to $3.0
million). Section 401(f)(3) has a similar provision:
``IN GENERAL.--...for each fiscal year, of the amount to be
distributed to States and Indian tribes pursuant to paragraph
(2), the Secretary shall distribute--
(i) the amounts allocated under paragraph (1) of section
402(g), the amounts allocated under paragraph (5) of
section 402(g), and any amount reallocated under section 41
l(h)(3) in accordance with section 41 l(h)(2), for grants
to States and Indian tribes under section 402(g)(5); and
(ii) the amounts allocated under section 402(g) (8).''
This again makes it clear that the legislation requires OSM to provide
minimum program states at least $3.0 million annually, under section
402(g)(8), commencing October 1, 2007.
In its restrictive reading of the bill, OSM depends upon a single
provision in section 401(f)(5)(B) to reduce the amounts of annual
grants to minimum program states from the minimum $3.0 million annual
required grant amount. That provision reads (with emphasis added):
``(B) EXCEPTIONS.--Notwithstanding paragraph (3), the amount
distributed under this subsection for the first 4 fiscal years
beginning on and after October 1, 2007, shall be equal to the
following percentage of the amount otherwise required to be
distributed:
(i) 50 percent in Fiscal Year 2008.
(ii) 50 percent in Fiscal Year 2009.
(iii) 75 percent in Fiscal Year 2010.
(iv) 75 percent in Fiscal Year 2011.''
OSM's reliance on this provision ignores the fact that by its own
terms (i.e. the ``notwithstanding'' phrase), it only overrides the
requirements of section 401(f)(3). Yet other provisions of the bill
independently require the distribution of the minimum amount of $3.0
million. See sections 401(f)(l) and (2) and section 402(g)(8). The
provision cited by OSM does not override the clear requirements of
those other parts of the bill.
The phase-in schedule of section 401(f)(5) only applies to such
additional funds as might otherwise be provided by OSM to the minimum
program states above the guaranteed distributions required elsewhere in
the statute. This means that OSM cannot contribute more than $1.5
million in additional funding to each minimum program state in Fiscal
Years 2008 and 2009, and not over $2.3 million in additional funding in
each of Fiscal Years 2010 and 2011, and not over $3.0 million in
additional funding in each subsequent year through Fiscal Year 2024.
This debate goes much deeper than the interpretations of the two
sections mentioned above. Congressional intent and history in the
passage of P.L. 95-87, the original ``Surface Mining Control and
Reclamation Act of 1977,'' deserves merit in the interpretation debate.
In the 95th Congress, the late Morris K. Udall (considered by many as
the ``father'' of P.L. 95-87) worked tirelessly with government
agencies, industry, and other organizations to make sure this law
became a reality. With regard to the reclamation of abandoned mine
lands, Title IV of P.L. 95-87 has been the guiding light for both OSMRE
and the States/Tribes for almost 30 years. During this time, AML
funding issues have overshadowed Congressman Udall's intent as outlined
in Section 403 of P.L. 95-87 ``Objectives of the Fund.'' Section 403
set specific priorities as to the expenditure of moneys from the AML
fund. The number one priority is ``the protection of public health,
safety, and property from extreme danger of adverse effects of coal
mining practices,'' It is significant that the Surface Mining Control
and mandated annual $2 million was ``budget deficits.'' Then under the
Clinton administration, there was a ``budget surplus,'' but the annual
allocation remained at $1.5 million. For the last 13 years, Minimum
Program States have been critically underfunded in respect to the
number of Priority 1 and Priority 2 AML hazards that need to be
reclaimed. Respective Administration budgets and Congressional budgets
continued to hold the AML Fund ``hostage,'' while unappropriated
balances continued to rise.
In early December 2006, much to the surprise of both OSMRE and
States/Tribes, the 2006 Amendments took AML funding off budget. No
longer would Congress appropriate AML funds on an annual basis. The
pressure was now on OSMRE to develop a method(s) to distribute the AML
funds to States and Tribes. OSMRE began to develop future funding
projections under the new law. Since December 2006, OSMRE has
distributed four different funding charts. With each successive chart,
the funding numbers for the States and Tribes would change. But in all
four of these OSMRE charts, there was one constant--the Minimum Program
States (Alaska, Arkansas, Iowa, Kansas, Maryland, Missouri, and
Oklahoma) would receive no funding increases for FY 2008 and FY 2009.
Not until FY 2012 would Minimum Program States receive an annual $3
million.
In the last OSMRE Funding distribution chart (Chart 4), the
following funding increases are reflected when comparing FY 2007 AML
funding to FY 2008 AML funding, as well as the amount of Priority 1 and
Priority 2 coal hazards in the AML Inventory for each state:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Reclamation Act Amendments of 2006 removed the words ``general
welfare'' from the original wording of Section 403(1). In their
infinite wisdom, the 109th Congress wanted to further strengthen
Section 403(1) by placing a special emphasis on public health, safety,
and property.
There are no specific provisions in P.L. 95-87 or the 2006
Amendments that discuss in detail the specific State/Tribe AML funding
formulas that embrace historic coal production, state share (present
coal production), and federal discretionary expenses. However, in the
2006 Amendments Congress did single out states and tribes specifically
in Section 402(g)(8)(A) stating, ``In making funds available under this
title, the Secretary shall ensure that the grant awards total not less
than $3,000,000 annually to each State and each Indian Tribe having an
approved abandoned mine reclamation program pursuant to section 405 and
eligible land and water pursuant to Section 404, so long as an
allocation of funds to the State or tribe is necessary to achieve the
priorities stated in paragraphs (1) and (2) of section 403(a).'' The
fact that Congress has always (and in the 2006 Amendments continues to)
dedicate a section of the law to states and tribes traditionally known
as those with ``Minimum Programs'' solidifies the Congressional intent
that these states and tribes annually receive not less than $3,000,000.
In the late 1980s the Mid-Continent Coal Coalition was formed
because the Minimum Program States and Tribes had several hundreds of
millions of dollars worth of Priority 1 and Priority 2 AML hazards that
posed, and continue to pose, a very high public health and safety risk.
AML funding had fallen to an annual $1 million level that would not
allow the efficient operation of a State/Tribal AML Program. This
Coalition gathered Congressional support through letters, resolutions,
testimony at Congressional committee hearings, etc. As a result, the
budget reconciliation bill passed by the 101st Congress in the fall of
1990 required that the Secretary allocate annually not less than
$2,000,000 to Minimum Program States and Tribes. The passage of this
bill inl990 was definitive proof that Congress supported an increase in
funding for the Minimum Program States and Tribes.
For three years (FY1992, FY 1993, and FY 1994) the Minimum Program
States received $2 million annually. Since that time the Minimum
Program States have been limited to an annual allocation of only $1.5
million. The primary reason given for not allocating the statutorily
could be used to help fund the Minimum Programs at the annual $3
million level Furthermore, in its News Release of February 5, 2007, OSM
noted that it has off-budget funds in its FY 2008 budget that could
fully fund AML minimum programs at not less that the $3 million level.
This money was provided to OSM for the purpose of, and should be used
for, fully funding the minimum programs at the $3 million level. The
bottom line is the Minimum Programs have been ignored for too many
years. With the passage of P.L. 109-432, Congress has sent a message to
OSMRE that Minimum Programs should be funded at an annual rate of $3
million, starting with the FY 2008 budget. The sad part of this impasse
is the fact that those living near or visiting these Priority 1 and
Priority 2 AML sites are exposed on a daily basis to the possibility of
death and/or injury.
Congress gave OSMRE the authority to develop the AML funding
distribution numbers for the states and tribes. The NAAMLP and IMCC
urge that during the development of proposed rules and regulations for
the 2006 Surface Mining Control and Reclamation Act Amendments, OSMRE
``look outside the box'' and consider the real reason that Title IV was
enacted almost 30 years ago.
Use of Unappropriated State Share Balances for Noncoal Reclamation and
AMD Set-Aside
Since the inception of SMCRA in 1977 and the approval of state/
tribal AML programs in the early 1980's, the states and tribes have
been allowed to use their state share distributions under section
402(g)(l) of the AML Trust Fund for high priority noncoal reclamation
projects pursuant to section 409 of SMCRA and to calculate the set-
aside for acid mine drainage (AMD) projects. Under the new amendments,
states and tribes will receive their unappropriated balances in seven
equal payments beginning in FY 2008. In its most recent interpretation
of the 2006 Amendments, OSM has stated that these moneys cannot be used
for noncoal reclamation or for the 30% AMD set-aside. OSM also
initially stated that the historic coal distribution to non-certified
states and tribes would also not be available for noncoal reclamation,
but the agency appears to have relented on this issue and will allow
these moneys to be used for both noncoal reclamation and the 30% AMD
set-aside. With regard to the unappropriated state and tribal share
balances that will be distributed pursuant to Section 41 l(h)(l) of the
2006 Amendments, the states and tribes assert that these moneys should
also be available for noncoal reclamation under section 409 and for the
30% AMD.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
It should be noted that the term ``minimum program'' does not refer
to lack of AML hazards that a state or tribe has to address, but rather
with the lack of funding being generated by active coal mines within
the state or tribe for purposes of remediating hazards associated with
past coal mining. For example, Oklahoma has an AML inventory of
priority 1 and 2 sites that will cost between $125 and 130 million to
reclaim using today's cost figures. Kansas has an AML inventory of
priority 1 and 2 sites that will cost over $200 million to remediate.
However, funds generated by current coal mining activities in these two
states generate around $25,000 annually for Kansas and around $100,000
annually for Oklahoma. For perspective, states like Kentucky and West
Virginia receive between $6,800,000 and $8,300,000 annually to perform
remediation of hazardous AML sites. Interestingly (and in some
respects, unfortunately), Oklahoma has an AML inventory of priority 1
and 2 hazards that will cost more to remediate than 14 of the states
and tribes listed above and Kansas has an AML inventory of priority 1
and 2 hazards that will cost more to remediate than 16 of the above-
listed states and tribes. Therefore, even though the ``minimum
program'' states may get minimum funding, they certainly have their
fair share of AML priority 1 and 2 hazards.
From December 2006 through February 2007, OSMRE continued to change
their funding distribution charts, using factors such as historic coal
production, state share fund balances, and present coal production.
During this three month process, each time a new chart was developed
OSMRE failed to put emphasis on the real problem; How much is the
public affected by Priority 1 and Priority 2 AML hazards? Ignoring AML
project sites that are an eminent danger to the health and safety of
the public is not what Congress intended.
OSMRE can find the funds in their FY 2008 budget to fond AML
Minimum Programs. OSMRE is phasing out the Clean Streams Initiative
Program and the Watershed Cooperative Agreements Program. This money
set-aside. There is nothing in the new law that would preclude this
interpretation. Policy and practice over the past 30 years confirm it.
The unappropriated state and tribal share balances consist of past
moneys collected from coal producers in these states and tribes that
were never distributed due to restricted and under-funded
appropriations. This money has always been ``colored'' as state/tribal
share money, available for expenditure in accordance with the
provisions of SMCRA and now 30 years of experience. The fact that the
money is being paid out of Treasury funds does not change the ``color''
or operation of that money--it has been and will always be state/tribal
share money allocated pursuant to section 402(g)(l) of SMCRA.
OSM's new interpretation of SMCRA based on the 2006 Amendments is
without support in the law when read as a whole. In interpreting the
meaning of section 411, the entire statute must be read in context.
Section 403 (which OSM points to) is modified by Section 409, which
provides for the expenditure of AML funds at any priority 1 or 2 site,
regardless of the commodity that was mined. Section 409(b) indicates
that the 50% state share (from 402(g)(l)) and the historic production
distribution (402(g)(5)) can be used for noncoal reclamation. If
Congress had intended to limit the use of the unappropriated state/
tribal share balances (or historic production distributions) that are
now finally being returned pursuant to section 41 l(h)(l), it could
have easily done so. However, no changes were made in section 411 to
accomplish this. Nor was Section 409 amended in any way.
OSM's new interpretation is also a dangerous policy choice. OSM
claims that once a state has completed all of its coal projects, it can
then use all of its grant funds for noncoal projects. This will require
that states spend years working on high-cost, low-priority coal
projects that present little threat to public health and safety, while
numerous highly hazardous abandoned noncoal mines remain unattended. In
many western states, the AML programs have employed their AML grants to
protect people and property threatened by noncoal abandoned mines. In
New Mexico, for instance, the state estimates that over 10,000 mine
openings remain. The overwhelming majority of these openings are at
abandoned noncoal mines. All of the fatalities at abandoned mines in
New Mexico over the past few decades have occurred at noncoal mines.
With urban growth pushing into undeveloped areas and recreational uses
increasing, the danger to public health and safety from abandoned
noncoal mines throughout the country is increasing
Much of the above reasoning also holds true for the availability of
the unappropriated balances for purposes of calculating the 30% set-
aside for AMD abatement. Again, this work falls within the clear
purposes of section 403 of SMCRA and thus any type of restriction on
the use of these funds for AMD remediation is inappropriate. Section
403(g)(6)(B)(ii)(I) establishes and defines the use of AMD set-aside
funds. That section states that a qualified hydrologic unit destined
for AML abatement must have land and water that ``...include any of the
priorities described in Section 403.'' Obviously, this passage provides
a clear nexus to section 403 of the Act. The 2006 Amendments at section
41 l(h)(l)(D)(ii) state that non-certified states must use amounts
provided from Treasury funds in place of the unappropriated balances
for ``...purposes described in Section 403.'' Again, a clear nexus to
section 403 is stated. Actually, the references in sections 402 and 411
to section 403 are identical. Therefore AMD abatement is a purpose
under section 403 and Treasury funds should not be artificially
excluded for use in the set-aside for AMD. Finally, we should note that
each appropriation bill over the past several years has included
language that supports the use of funds made available under Title IV
of SMCRA for the purpose of environmental restoration related to
treatment or abatement of AMD without restriction. Based on the above,
the NAAMLP and IMCC request that OSM reconsider its interpretation on
the use of unappropriated state and tribal share balances for noncoal
reclamation and the AMD set-aside. Adjustments to the draft rules based
on these arguments appear below.
Reduction of the Treasury l/7th payments for the unappropriated balance
by the amount of the export tax lawsuit loss
The relevant citations:
411(h)(l)(A)(i)ofP.L. 109-432
In General--Notwithstanding section 401(f)(3)(B), from funds
referred to in section 402(i)(2), the secretary shall make payments to
States or Indian tribes for the amount due for the aggregate
unappropriated amount to the State or Indian tribe under subparagraph
(A) or (B) of section 402(g)(l)
41l(h)(l)(B) of P.L. 109 432 (emphasis added)
Amount Due--In this paragraph, the term ``amount due'' means the
unappropriated amount allocated to a State or Indian Tribe before
October 1, 2007 under subparagraph (A) or (B) of section 402(g)(l).
As a part of our discussion on the unappropriated balance, OSM has
stated that should the export tax lawsuit ultimately be lost on appeal,
the loss shall be paid out of the trust fund and the l/7th payments out
of the Treasury to each State or Tribe shall be reduced by the like
amounts each State or Tribe owed for the lawsuit.
Section 41l(h)(l)(B) of P.L. 109-432 states that the amount due
each State or Tribe is the amount allocated to each State or Tribe
(State Share) before October 1, 2007. Unless the export tax lawsuit is
resolved prior to October 1, 2007, then the amount paid out of the
Treasury in l/7th installments to each State or Tribe for the
unappropriated balance should not be reduced due to the lawsuit.
Although the trust fund would ultimately be reduced by the amount of
the export tax lawsuit loss, the payments out of the Treasury should
remain unchanged since the amount the payments will be based upon will
be established as of October 1, 2007. Further, we do find any language
in P.L. 109-432 that can be interpreted to give OSM the authority to
reduce payments from the Treasury for the unappropriated balance.
Effective Date of In-Iieu Payments
There has been some confusion about when in-lieu payments from the
U.S. Treasury begin under the 2006 Amendments. OSM has stated that they
begin in FY 2009, and that payments to certified states and tribes of
their 50% share in FY 2008 are made from the AML Trust Fund. Our
reading of the 2006 Amendments is that the in-lieu payments from the
Treasury begin immediately in FY 2008. The relevant citations are:
Section 401 (f)(3)(B) of P.L. 109-432:
(B) EXCLUSION. ``Beginning on October 1, 2007, certified States
shall be ineligible to receive amounts under section 402(g)(l).
Section 411 (h)(l)(B & C) of P.L. 109-432:
(B) AMOUNT DUE.--In this paragraph, the term ``amount due'' means
the unappropriated amount allocated to a State or Indian tribe before
October 1, 2007 under subparagraph (A) or (B) of section 402(g)(l).
(C) SHEDULE.--Payments under subparagraph (A) shall be made in 7
equal annual installments, beginning with Fiscal Year 2008.
Section 411 (h)(2)(A) of P.L. 109-432:
(A) IN GENERAL.--Notwithstanding section 401(f)(3)(B), from
funds referred to in section 402(i)(2), the Secretary shall pay
to each certified state or Indian tribe an amount equal to the
sum of the aggregate unappropriated amount allocated on or
after October 12, 2007, to the certified State or Indian tribe
under subparagraph (A) or (B) of section 402(g)(l).
OSM has advanced the following explanation to support its current
declared intention to pay state share funds to the certified states
under section 402 (g)(l) in FY 2008 (emphasis added):
``Certified states and tribes will receive distributions under
section 401(f) only in FY 2008 because the bill adds a new section
401(f)(3)(B), which provides that certified states and tribes are
ineligible to receive their state-share or tribal-share allocations
with respect to fees collected after FY 2007. However, FY 2008
distributions consist of FY 2007 fee collections, so certified states
and tribes are eligible to receive 50% of their state or tribal share
allocation of fees collected for that year.
Beginning with FY 2009, certified states and tribes will receive
annual payments from the Treasury in lieu of the amount of fee
collections during the previous year that would otherwise have been
allocated to their state or tribal share accounts in the AML fund in
the absence of new section 401(f)(3)(B) of SMCRA. Section 4U(h)(2)
ofSMCRA. \1\
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\1\ Major Provisions of P.L. 109-432: SMCR.A Amendments Act of
2006. page 3. Distributed to NAAMLP members at its business meeting
February 28 - March 1. 2007.
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Section 401(f)(3)(B) of P.L. 109-432 states that beginning October
1, 2007, certified states shall not be paid under 402(g)(l). This
provision is a complete exclusion. It prohibits certified States or
Indian tribes from receiving grants funded by the reclamation fee
effective October 1, 2007. There is no language in this section to
support an interpretation that a certified State or Indian Tribe can
receive after October 1, 2007 grants funded by reclamation fees
collected prior to October 1, 2007.
In order to support the position that the exclusion established by
Section 401(f)(3)(B) does not apply to grants issued in Fiscal Year
2008 if funded by reclamation fees collected during Fiscal Year 2007,
OSM staff have explained that the term ``received'' as used in Section
401(f)(3)(B) means ``allocated''. This interpretation is contrary to
the normal and ordinary usage of the term ``received'' and is contrary
to standard principles of statutory construction. Unless the context
clearly indicates otherwise, or the word has been given a specific
definition, words in a statute are to be given their normal meaning.
Relying on this interpretation, OSM has developed a distribution
chart dated February 22, 2007, showing that $41.6 million will be paid
to the certified States or Indian tribes under 402(g)(l) in FY 2008.
This distribution represents FY 2007 fee collections. This approach is
correct for distributions to non-certified states as required by
401(f)(2) and (3). However, Section 401(f)(3)(B) prohibits certified
States or Indian tribes from receiving payments of funds under 401(f)
beginning on October 1, 2007. The fees collected and allocated in FY
2007 are to be included in the amounts due to the states that are
allocated but not appropriated under Section 41 l(h)(l)(B). These funds
are then paid over seven years, beginning in FY 2008 under 41
l(h)(l)(C).
The effect of this misinterpretation of Section 401(f)(3)(B) and 41
l(h)(l)(B) is that $41.6 million would be paid to certified States or
Indian tribes with fee collections instead of Treasury funds as
required by Section 41 l(h)(l)(A)(i). The funds so paid will then not
be available to be reallocated as historic share funds available for
grants under Section 41 l(h)(4)(A). Furthermore, the interest that
should be earned annually on this $41.6 million and paid to the
Combined Benefit fund would not be earned and available to be paid.
The draft language in the Proposed and the Interim-final
regulations on this subject is consistent with the statutory language
in P.L. 109-432 and so does not need to be changed. However OSM's
interpretation of P.L. 109-432 is flawed. Based on the above arguments,
the NAAMLP and IMCC urge OSM to revise the proposed AML funding
distribution chart to show that:
(a) no state share funds are distributed to the certified States
or Indian tribes in FY 2008; but,
(b) the $41.6 million should then be included in the calculation
of the amount due to certified States and Indian tribes under Section
411(h)(1)(B).
Adjustments to the Grants Process
There is a fair amount of concern by the states and tribes about
how the grants process will work under the 2006 Amendments. With the
increased amount of money that will be flowing to the states, it will
be incumbent on both OSM and the states and tribes to be particularly
sensitive to the impacts on the grants process--especially with regard
to the length of grants, rollovers, tracking of grant amount
(especially by account), recapture, and paperwork reduction. We assert
that the timing is ripe for revisiting the existing simplified grants
process to consider additional streamlining and simplification. There
is some concern that the 2006 Amendments could unnecessarily complicate
the paperwork demands associated with annual grants, especially if we
are required to track various kinds of moneys that are received. It
will be particularly important to clarify that moneys are ``expended''
once they are obligated, encumbered or otherwise committed for
projects. Even with this, deobligation could become a problem if we are
unable to roll grants over from year to year. We understand that OSM
will be considering various adjustments to the Federal Assistance
Manual and to its AML directives and we request an opportunity to
review those revisions once they are available. This may present an
ideal opportunity for further clarifications to address the above
concerns.
Annual Distribution Charts
It will be critical for the states and tribes to receive the annual
distribution charts for AML grants as soon as practicable after the
beginning of each fiscal year (i.e. by no later than November 15). This
will be particularly true in the first few years as the states and
tribes attempt to forecast how the distribution will impact their
respective programs. In this regard, we have attached a chart that, in
simplified terms, demonstrates our understanding of the gross
distribution formula as presented by OSM to date. It should be noted
that the states and tribes do not agree with this distribution formula,
as indicated by our comments on the proposed and interim rules. In
fact, we have argued in these comments for various adjustments to the
formula and to the use of the distributed funds based on our reading of
the new 2006 AML amendments. Nonetheless, we would appreciate OSM's
comments on our attempt to capture OSM's distribution formula under
their interpretation of the 2006 Amendments and any additional
explanations (flowcharts) that OSM can share with us regarding their
interpretation of the distribution formula under the new law.
Training
It will be very important for the states and tribes to receive the
necessary training to implement the provisions of the new rules, once
they are in place--especially as they impact the grants process. We
urge OSM to keep this in mind as they consider implementation plans for
the future.
Preamble Language
We recognize that one mechanism OSM has available to clarify
certain aspects of the proposed and interim final rules is through the
use of preamble language. We would encourage OSM to do so. One example
is the need to adjust the priority matrix contained in the Federal
Assistance Manual (FAM) to reflect regional differences in land use
patterns. Given that much of SMCRA's history was predicated on land use
patterns and experience with hazards in the Eastern United States,
there are unintentional gaps that fail to recognize the uniqueness of
circumstances in other regions of the country. Whereas residents of
Eastern states, for instance, may have residences or other structures
that were built adjacent to known hazards, residents of Western states
(and non-resident recreational users of Western lands) are exposed to
AML features that consist of largely unknown hazards that are equally,
if not more, dangerous than ``known'' features. Thus, as we consider
what would be defined as an ``extreme danger'', we need to be cognizant
of the fact that unknown hazards in remote or rural areas can be even
more dangerous than known dangers as the unsuspecting public encroaches
on these areas through occasional use or through urban sprawl.
Recognizing the exposure of the populace to the hazards associated with
abandoned mine sites will assist the states, tribes and the federal
government in fully implementing the objectives of the AML program
under SMCRA.
II. PROPOSED REVISIONS TO OSM'S DRAFT PROPOSED AND INTERIM RULES
The NAAMLP and IMCC recommend the following changes to OSM's draft
proposed and interim final rules based on the above commentary.
Section 870.5--Definitions
``Adjacent''--change to read as follows:
``Adjacent means adjoining, in proximity to or contiguous with
eligible lands and waters.''
Justification: OSM's draft rule implies that a Priority 1 or 2
project must be undertaken in order for a Priority 3 project to be
considered ``adjacent to'' the Priority 1 or 2 problem. This is not
what the law requires. It is not a matter of priority; it is a matter
of proximity. As long as the Priority 3 project is geographically
connected to the Priority 1 or 2 site, the test is satisfied.
Furthermore, OSM's proposed language conflicts with statutory
provisions in sections 403(a)(l)(B)(ii) and (2)(B)(ii) that eligible
lands include those that ``are adjacent to a site that has been or will
be remediated. (emphasis added). In its proposed language, OSM is
implying that for a priority 3 feature to be eligible, it has to be
reclaimed in order to access or remediate the priority 1 or 2 feature.
This simply cannot be the case if the priority 1 or 2 feature has
already been reclaimed or may be so in the future, as anticipated by
the 2006 amendments. We recommend use of the common dictionary
definition of ``adjacent''. We also oppose the concept of tying the
definition to a monetary determination. There is nothing in the law to
support this criterion and we believe it would be difficult to
determine and apply. The use of a proximity criterion will also allow
us to take into consideration public rights of way, roads, etc, that
may be present at or near the site. Finally, to define the term
otherwise would be to severely limit the number and types of Priority 3
projects that could be addressed, which is contrary to the intent of
the law.
``In conjunction with''--change to read as follows:
``In conjunction with means reclamation of priority 3 features in
phases or through a combination of contracting and construction with
priority 1 and/or 2 features.''
Justification: It is important to recognize that Priority 3 work
cannot only be done in conjunction with a Priority 1 or 2 feature
through a combined contracting or construction effort, but in phases of
construction with a Priority 1 or 2 project, especially where the
project is particularly large or the AML program is small (as with the
minimum program states). We recommend deletion of the phrase ``would
have provided significant savings to the AML fund'' for the same reason
we recommend deletion of the last sentence in the definition: these
terms are elusive and difficult to define and quantify. The law does
not specify this type of monetary criterion and it would be challenging
to implement. We assert that it is best to focus on the administrative
aspects of project work, which are easier to define. Finally, to define
the term otherwise would be to severely limit the number and types of
Priority 3 projects that could be addressed, which is contrary to the
intent of the law.
``Qualified Hydrologic Unit''--change to read as follow:
Change the word ``and'' to ``or'' between subparagraphs (b)(l) and
(2), as in the existing regulations.
Justification: We realize that OSM's new definition is consistent
with the statutory language, but actual practice over the past 25 years
has been that hydrologic units are defined as containing lands and
waters that are either eligible OR the subject of bond forfeitures, but
not both. To define the term otherwise would be to severely limit the
scope of this important provision of the law. With the new emphasis on
allowing states to set aside upwards of 30% of their AML funds for the
abatement of acid mine drainage projects, to limit the definition in
this way would emasculate the purposes and intent of the program.
Section 872.1 l(b)(l)--Abandoned Mine Reclamation Fund
Delete section 872.1 l(b)(4)(ii)(E).
Justification: Based on the arguments articulated above with
respect to the use of the states' and tribes' unappropriated share
balances, this section should be deleted. There is no basis to restrict
the use of these moneys for noncoal reclamation.
Section 872.13--Other Treasury Funds for Abandoned Mine Reclamation
Programs
Change the reference in the introductory phrase of subparagraphs
(a) and (b) to read: ``872.1 l(b)(l)(vi) and (b)(2)(vi)''--NOT
``(vii)''.
Change Subparagraph (a) and (b) to read as follows:
``Notwithstanding Sec. 872.1 l(b)(l)(vi) and (b)(2)(vi), from funds in
the Treasury not otherwise appropriated and transferred to the
Secretary of the Interior pursuant to section 402(i)(2) of the Act,
effective October 1, 2007, OSM shall make payments to States and Indian
tribes....'' Also, in subparagraph (a), change the reference to ``prior
balance funds'' to ``prior balance payments''.
Change section 872.13(a)(3) to read as follows: ``States and Indian
tribes may apply for and receive these annual installments in grants,
following the provision of Section 886. Unless a certified State or
Indian tribe specifically requests that OSM disburse funds due the
State or Tribe in whole or in part through a grant or grants, payments
referred to in Section 41 l(h)(l)(A) (prior balance payments) shall be
made in one lump sum payment to the State or Tribe no later than 90
days after the start of the federal fiscal year in which the payment is
due.''
Change section 872.13(b)(3) as follows: delete the current language
and insert the following: ``Unless a certified State or Indian tribe
specifically requests that funds be disbursed through a grant or grants
following the provisions of section 886, payments referred to in
Section 41 l(h)(2)(A) (in lieu of payments) shall be made annually in
one lump sum payment to the State or Tribe no later than 90 days after
the end of the federal fiscal year in which the collections are made.''
Change section 872.1 l(b)(4) by striking the word ``shall'' and
inserting ``may''.
Justification: All of these changes are intended to reflect the
discretionary authority vested in the Secretary to make payments to
states and tribes through either grants or direct payments, depending
on the preference and needs of the respective state or tribe. Section
411 (h) uses the term ``payments'' which appears to embrace a wider
degree of flexibility regarding distribution of funds other than just
grants. See also the discussion on this topic above.
Change subparagraph 872.13(a)(5) to read as follows:
``(5) States and Indian tribes that are not certified under section
41 l(a) of the Act shall use any amounts available under this paragraph
to achieve the priorities described in sections 403(a)(l),(2) and (3)
of the Act, for water supply restoration under sections 403(b)(l) and
(2) of the Act, for AMD abatement under section 402(g)(6) and for
noncoal reclamation under section 409 of the Act.''
Justification: The 2006 Amendments at Section 41 l(h)(l)(D)(ii)
state that the unappropriated prior state and tribal share funds must
be used as described at section 403. In interpreting the meaning of
sections 411 and 403, the entire statute must be read in context. When
doing so, it is clear that section 403 is modified by section 409.
Section 409 provides for expenditure of funds at any priority 1 or 2
site, regardless of commodity mined. Furthermore, section 409(b) states
that the 50% state and tribal share can be used for noncoal reclamation
(referencing section 402(g)). The unappropriated state and tribal
shares are in fact the balance of the 50% shares referenced in section
402(g) that have been held in abeyance over the years. There should be
little ambiguity that this money is available for noncoal reclamation
(as well as for the 30% AMD set-aside). If Congress had intended to
somehow qualify or restrict the use of the unappropriated balances, it
could easily have done so in section 411. However, it failed to do so
and thus we can only assume that the traditional funding mechanism that
has prevailed over the past 30 years remains intact. Such an
interpretation is also consistent with the purposes and objectives of
Title IV of SMCRA, which are to protect citizens from the adverse
impacts of past mining practices--both coal and noncoal.
Add a new subparagraph 872.13(b)(5) as follows: ``Payments referred
to in section 872.13(b)(3) to certified States and Tribes shall be used
with priority given to abandoned coal mine reclamation needs until the
State or Tribe and OSM determine that abandoned coal mine reclamation
is substantially complete. Thereafter, current in lieu payments will be
used for purposes established by the state legislature or tribal
council.''
Justification: The law and draft rules are unclear as to how
certified states and tribes may use current in lieu funds when the
state or tribe has completed abandoned coal mine reclamation. Current
in lieu funds in excess of those required for completion of abandoned
coal mine reclamation should be used for purposes established by the
state legislature or tribal council with priority given to addressing
the impacts of mineral development.
Section 873.12--Future set-aside program criteria
In subparagraph (a), change the last phrase to read as follows:
``...are expended by the State or Indian tribe solely to achieve the
priorities stated in Sections 403(a) and 409 of the Act, 30 U.S.C. 1233
and 1239, after September 30, 1995''.
Justification: This adjustment is needed to clarify that funds set-
aside by the states prior to December 12, 2006 are available for both
coal and noncoal work.
Section 875.15--Reclamation priorities for noncoal program.
Delete Subparagraphs (c) - (f)-
Justification: These subparagraphs must be deleted in order to be
consistent with the new provisions in the 2006 Amendments at section 41
l(h)(l)(D)(i) regarding use of AML funds by certified states and
tribes. Pursuant to this section of the 2006 Amendments, certified
states and tribes are allowed to use their AML funds ``for the purposes
established by the State legislature or tribal council of the Indian
tribe, with priority given for addressing the impacts of mineral
development''. Thus those provisions in OSM's existing regulations that
provide for a concurrence role by the OSM Director are no longer
applicable and should be removed. Furthermore, as we argue above, the
payment mechanism that will attend the distribution of these funds will
likely be different than what has occurred in the past, and therefore
the provisions in subparagraphs (c), (e) and (f) will likely no longer
be applicable.
Section 876--Acid Mine Drainage Treatment and Abatement Program
Section 876.12 Eligibility--add the following: ``or up to 30% of
the funds received pursuant to Section 412 l(h)(l) of the Act.''
Justification: this language clarifies that up to 30% of the prior
unappropriated state and tribal share balances distributed form
Treasury funds may be deposited into state and tribal AMD set-aside
funds.
Section 886.12(b)--Coverage and amount of grants.
Change subparagraph (b) to read: ``Grants shall be approved for
reclamation of eligible lands and water in accordance with sections 404
and 411 of the Act and 30 CFR 874.12, 875.12 and 875.14, and in
accordance with the priorities stated in sections 403, 409 and 411 of
the Act....''
Justification: We have added section 409 as part of the priority
reference to be consistent with the above changes regarding noncoal
reclamation and to specifically reference noncoal lands.
Section 886.13 (b)--Grant period
Change subparagraph (b) to read as follows: ``The Director shall
approve a grant period on the basis of the information contained in the
grant application. The grant period should normally be for 3 years, and
may be extended. Grants of funds distributed in Fiscal Years 2008, 2009
and 2010 shall be awarded for 5 years.''
Justification: We understand that OSM will not require specific
projects to be listed in the grant application, so this phrase has been
removed. We also Understand that OSM will allow extensions of the
normal 3 year grant period and that those extensions may be for more
than one year, which we believe is appropriate. Finally, we assert that
the 2006 Amendments specifically call for a 5 year grant period for
Fiscal Years 2008-2010 and that this is a mandatory requirement.
One further note: it does not appear that the section 41 l(h)(l)
Treasury funds are subject to any of the grant period timelines
established by section 402(g)(l)(D). Nor does there appear to be any
authority in the Act to establish timelines for the use of 411 funds.
Thus, an annual distribution payment in the full amount due under
section 411 should be available as an option for grants to each state/
tribe, which in turn could be deposited into a separate state account
and considered state funds and used without restriction for any section
403 priority (including AMD abatement).
Section 886.16(a)--Grant agreements.
Change subparagraph (a) to read as follows: ``OSM shall prepare a
grant agreement that includes a general statement of the types of work
to be covered by the grant.''
Justification: We assert that the grant agreement need only contain
a general statement of the types of work to be covered by the grant,
not a listing of specific projects. This change is intended to clarify
that intent.
Section 886.26--Unused Funds
Delete subsections 886.26 (a)(iii) and (iv). Also, delete
subparagraph 886.26(b) and add the following: ``Deobligation
requirements do not apply to certified States and Tribes.''
Justification: No treasury payments should be subject to
deobligation requirements. OSM should work with the states and tribes
to insure that funds do not revert back to the Treasury. With maximum
flexibility in designing payment protocols and with appropriate grant
periods and applicable requirements, there should be no need for
reversion of these payments, especially if OSM and the states/tribes
are working together to closely monitor the situation.
We appreciate the opportunity to submit these comments and trust
that OSM will give them serious consideration as the agency moves
forward with the development of the proposed and interim final rules.
We would welcome the opportunity to meet with OSM to further discuss
the draft rules, should you so desire. Should you have any questions or
require additional information, please do not hesitate to contact us.
Sincerely,
John Husted Gregory E. Conrad
President, NAAMLP Executive Director, IMCC
Attachment
cc: NAAMLP Member States and Tribes
IMCC Commissioners
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
______
The Chairman. Mr. Corra.
STATEMENT OF JOHN CORRA, DIRECTOR, WYOMING DEPARTMENT OF
ENVIRONMENTAL QUALITY, CHEYENNE, WYOMING
Mr. Corra. Good morning, Mr. Chairman. I wish to thank you
and the members of the Committee for inviting the State of
Wyoming to testify today.
I am here to speak about the successful implementation of
SMCRA, and to express a few concerns over the implementation of
the recently passed amendment to that Act.
Wyoming is the nation's leading producer of coal, providing
fuel for over 35 percent of the nation's coal-fired electric
power, and by far the largest contributor to the Abandoned Mine
Land Account. Clearly, the success of SMCRA and how well it
functions in the future is of critical importance to my state.
Although my remarks are somewhat Wyoming-centric, they are
shared by the other western states and the Reclamation
Committee of the Western Interstate Energy Board. Over half the
nation's coal production comes from our sister states in the
West.
Over the years, 134,000 acres have been disturbed by coal
mining in Wyoming. A true measure of the success of SMCRA is
that almost half of those acres have already been reclaimed. An
example of successful reclamation is the Dave Johnson Mine in
Wyoming, where the land has been reclaimed to the point where
the untrained eye cannot tell the difference between the native
undisturbed land and the reclaimed land. I have posters behind
me that demonstrate that.
The photographs illustrate some of these lands. Notice the
abundance of shrubs, a feat that can be extremely challenging
in the arid West, particularly in Wyoming, where many areas
have annual rainfall of less than 15 inches.
Another example is the designation of part of the
reclamation at the Jacobs Ranch Mine as crucial winter habitat
for elk. And that declaration was made by the Wyoming Game and
Fish Division.
Another success of SMCRA is the maturation of the
relationship between the states and the Office of Surface
Mining. Initially there was a high level of confrontation and a
lack of trust. This relationship has changed for the better.
There is a desire to assist the states and be responsive to the
states' needs, as evidenced by several technical assistance
programs now available. These programs help the states because
of their ability to marshal resources far greater than what the
individual states can afford.
These programs also contribute to the development of state
staffs. This has allowed Wyoming to respond to ever-increasing
coal production while reducing the number of staff due to
shortfalls in the Federal grant. I have a couple of exhibits
behind me, Mr. Chairman, that demonstrate those trends.
Another success story is the cooperative relationship with
the industry that we regulate. Over the years we have come to
understand the value of being responsive to each other's needs.
To be effective and efficient, we have learned that open and
honest communication is essential. We are truly partners in
protecting the environment.
The biggest challenge facing the states is funding. State
regulatory programs provide an incredible return on the
investment of Federal dollars. In Tennessee, where the OSM has
the responsibility to administer SMCRA, the cost to the Federal
government is $1.13 a ton of coal mined. In contrast,
neighboring Virginia has primacy, and the cost to the Federal
government is a mere 11 cents a ton. The difference is
remarkable.
The other important part of SMCRA that I want to discuss is
Title IV, abandoned mine lands. Although much success has been
experienced, this success is spotty. The Act requires that 50
percent of the abandoned mine land fees be returned to the
states to deal with the environmental consequences and legacy
of past mining.
In Wyoming, the closure of 1,500 hazardous mine openings
and the reclamation of over 32,000 acres of land are just a
couple of examples of success. With respect to AML non-coal
work, I want to point out that over the past 20 years, OSM has
recognized the importance of providing support to western
states to clean up the overwhelming number of abandoned non-
coal sites.
Speaking for Wyoming, we have been very pleased with the
balance of support from OSM. At this time, however, we cannot
predict that the future will be as productive as the past,
primarily due to current rulemaking that will implement the
changes to SMCRA. Although OSM has been very kind in allowing
the states to provide their viewpoints on rulemaking, I am
compelled to express some very serious concerns.
Much of the state share of the fee collected was never
returned. Using Wyoming as a case-in-point, over $500 million
has been withheld over the years. The amendments, in part, are
intended to rectify that, as well as other problems associated
with the funds flow to the states.
From Wyoming's perspective, the OSM appears to be using old
tools to implement the requirements of the new Act, primarily
in the form of the existing grant process, to manage and
distribute fee collections. The new language in the recent
amendments requires that certified states, such as Wyoming,
will receive their unappropriated balance in seven equal
payments, beginning in Fiscal Year 2008. It further requires
that the state's share of annual fee collections going forward
be in the form of a payment from the U.S. Treasury in lieu of
an actual distribution from the current fees collected.
The traditional administrative process, which consists of
the states applying for, and the OSM approving and authorizing,
projects and grants does not serve the intent of the Act, and
would be seriously flawed.
I conclude by reinforcing the key variables to ensure that
we build on our past successes and avoid the mistakes. First is
to ensure that the professional relationships that have been
built between the regulated community, the states, and the
Federal government continue to be nurtured.
Second, the serious funding shortfalls must be addressed to
ensure that we maintain efficiency and not lose effectiveness.
Last, we need to take great care in drafting the rules that
will implement the amendments to SMCRA. This is an opportunity
to truly leverage what we have learned over the years, and
ensure that the pressing reclamation needs across the country
are addressed.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Corra follows:]
Statement of John Corra, Director,
Wyoming Department of Environmental Quality
Good morning Mr. Chairman. My name is John Corra. I am the Director
of the Wyoming Department of Environmental Quality. I wish to thank you
and the members of the U.S. House of Representatives Committee on
Natural Resources for inviting the State of Wyoming to testify at this
hearing today.
I am here to speak about the excellent history and successful
implementation of The Surface Mining Control and Reclamation Act of
1977 (SMCRA) and to express a few concerns over the implementation of
the recently passed Amendment to that Act. Wyoming is the nations
leading producer of coal, and by far the largest contributor to the
Abandoned Mine Land reclamation program. Clearly the success of SMCRA
and how well it functions in the future is of critical importance to my
State.
Although my remarks are somewhat Wyoming centric, they are shared
by the other western states and the Reclamation Committee of the
Western Interstate Energy Board which is associated with the Western
Governor's Association.
With the passage of the Clean Air Act in 1970, Wyoming coal
production started a steady increase. Today, Wyoming is the country's
largest producer of coal with production approaching 450 million tons
per year; more than double that of any other state. Wyoming coal is
used to generate over thirty five percent of the county's coal
generated electrical power. Over half the nation's coal production
comes from the western states.
Coal mining is by far the most stringently regulated mineral
extraction industry and yet has seen tremendous growth since the
passage of SMCRA. The biggest success of SMCRA has been the ability to
accommodate this growth while still achieving compliance with the
regulatory requirements. For example, over 134,000 acres have been
disturbed by coal mining in Wyoming (an area that is nearly three and a
half times the size of the District of Columbia). A true measure of
success is the reclamation, and almost half of those acres have been
reclaimed. Several innovative approaches to creative reclamation have
been developed and implemented in Wyoming and at other western coal
mines, resulting in better and more cost effective reclamation. These
include the use of variable topsoil replacement depths to achieve
specific vegetation goals; the creation of bluff features to replace
natural features removed by mining; and the replacement of alluvial
valley floors. Coal operators in Wyoming and the western states have
won numerous reclamation awards as a result.
An example of successful reclamation is the Dave Johnston Mine in
Wyoming where the land has been reclaimed to the point where the
untrained eye cannot tell the difference between the native-undisturbed
land and the reclaimed land. The attached Photographs 1 thru 4
illustrate some of these reclaimed lands. Notice the abundance of
shrubs, a feat that can be extremely challenging in the arid West,
particularly in Wyoming where many areas have annual rainfall of less
than 15 inches. These shrubs provide important habitat for sage grouse
which was considered for listing under the Endangered Species Act.
Another example is the designation of part of the reclamation at the
Jacobs Ranch Mine in Wyoming as Elk Crucial Winter Range by the Wyoming
Game and Fish Department (see attached Photograph 5).
Another success of SMCRA is the maturation of the relationship
between the states and the Office of Surface Mining (OSM). Wyoming, as
with many other states, had a coal regulatory program in place prior to
the passage of SMCRA. Initially, there was a high level of
confrontation between the state regulatory agencies and OSM. The states
felt that OSM's attitude was ``we're here to tell you how to do it
right'' and the states' attitude was ``we know what we're doing as we
were doing it long before you were created.--There was also a lack of
trust as the states felt OSM was primarily interested in catching the
states doing something wrong. This relationship diverted energy and
resources from the true purpose of SMCRA--that of protecting citizens
and the environment from the impacts of coal mining.
This relationship has changed for the better. Most within OSM truly
have a desire to assist the states and be responsive to the states'
needs. Programs that have exemplified this attitude include the Western
Regional Office of Technology Transfer, OSM's National Technical
Training Program and the Technical Innovation and Professional Services
Program. These programs provide great assistance to the states because
of their ability to marshal resources far greater than what individual
states could afford. Wyoming has used this assistance to improve our
technical capabilities in the area of Global Positioning Systems to
track reclamation progress and problem areas in the field. The OSM's
technical assistance and training programs have also contributed to
staff development. This has allowed Wyoming to respond to ever
increasing coal production while reducing the number of staff devoted
to coal due to shortfalls in the federal grant.
The heart of any program and the key to its success or failure is
the people who implement it. With the maturation of the coal regulatory
program is a corresponding maturation of the staff, both in the states
and in OSM. The states have been successful in attracting and retaining
well-educated staff, many of whom have been with the program for more
than 20 years. This experience is a key ingredient in the success of
the regulatory program. Many of the environmental issues that we face
are long term issues and retaining and developing an experienced staff
is therefore a high priority.
The science of reclamation is still young and progress takes time
and people who are willing to devote their time and energy to the work.
When SMCRA was passed 30 years ago, achieving successful revegetation
in arid and semi-areas with less than 15 inches of average annual
precipitation was considered to be nearly impossible. The mines have
demonstrated revegetation is possible. Over the past 30 years,
dedicated individuals with the state and the mines have developed new
reclamation techniques and seed mixes to enhance reclamation. Not only
to achieve success at the end of the ten year bond liability period,
but beyond.
Another of the key elements in our maturing programs is the
development of a cooperative relationship with the industry that we
regulate. In the early years of our program there was a great deal of
distrust, animosity and a generally adversarial relationship all
around. Over the years we have come to understand the value of being
responsive to each other's needs. In order for our programs to be
effective and efficient we have learned that open and honest
communication is essential. The industry needs to understand the
regulators' concerns and vice versa. The industry and the agencies have
learned that we are truly partners in protecting the environment.
Partnership is founded on mutual trust and respect. An adversarial
relationship is not generally effective for either side. This
partnership has been crucial as our staffing levels have decreased.
The biggest challenge facing the states is funding and this is also
the biggest failure of SMCRA. Section 705 authorizes the Secretary to
make annual grants to states with approved State Programs for 50% of
the cost of the program. This amount is increased for states with
cooperative agreements for federal lands by an amount not to exceed the
amount the Federal Government would have expended if the state had not
entered into a cooperative agreement. This has not happened and Title V
Grants to the states have not kept pace with inflation.
Attached Figure 1 shows the rise of western production along with
the level of Title V grants to the western states. The grants have been
adjusted to constant 1994 dollars to account for inflation. The chart
shows that, adjusted for inflation, grants to western states have
actually decreased. Western programs are typically small in size even
though coal production is equal to or greater than eastern or mid
continent states. For example, Wyoming has the largest staff with 24
employees, while other states have less than 20 people. And, there are
some state staffs with fewer than ten people. A small shortfall in
funding can have a huge impact on our programs.
States are faced with two choices. One is to use state funds to
make up the shortage in the federal grant. While this has occurred,
states at times are faced with budget constraints of their own. Even
for states with robust economies, there is little desire by state
legislatures to accept unfunded federal mandates. The other option is
to reduce the size of their programs and operate at lower levels of
service. Vacancies go unfilled and staff is transferred to other
programs. The loss of one or two staff positions due to grant shortages
can mean a five to ten percent reduction in the program effectiveness.
This can be devastating to a small program. Montana, Utah and Wyoming
have all experienced a reduction in coal program staffing levels due to
grant shortfalls. This trend cannot continue without significant
impacts to the quality of the programs, i.e., permitting and compliance
responsibilities and mine site reclamation. In Wyoming, coal production
is soon expected to reach 500 million tons per year. We will not be
able to maintain our permitting, inspecting and enforcement
capabilities at current levels if the downward trend in staffing
continues (see Figure 2). Building on the success of SMCRA over the
past 30 years will be very difficult, perhaps impossible, unless
federal funding policies are changed.
The experience in Tennessee highlights the importance of OSM
adequately funding state programs. Tennessee relinquished its state
program and it is now a federal program state where OSM is the
regulatory authority. In FY 2005, 2.98 million tons of coal was
produced in Tennessee. OSM spent $3.37 million on this program for a
regulatory cost of $1.13 per ton. For the same year, coal production in
neighboring Virginia was 29.64 million tons. The total cost of
Virginia's program was $6.8 million or $0.23 per ton. OSM's grant share
of that cost is a mere 11 cents per ton! There is a huge difference
between the cost of OSM implementing a coal program and the states
doing so. By extrapolation, it is estimated the cost of running federal
programs in the western states would be $56 million. By contrast the
western states are only asking for $9 million in their grants for the
federal cost share of their programs. SMCRA anticipated issuing grants
to the states to pay for implementing the coal program as if OSM were
to implement the program. The states are requesting an amount far less
than that. The federal government is getting a fantastic return for the
money spent on state grants, but the ability to sustain high quality
programs into the future is jeopardized. For the continued success of
SMCRA, the shortfall in the federal grants to the states must be
addressed.
The other important part of SMCRA that I want to discuss is Title
IV--Abandoned Mine Lands. Although much success has been experienced,
this success is spotty. The intent of SMCRA not only was to address the
impacts from active mines but also pre-law mined areas that were never
reclaimed. Many of these sites not only severely impact the environment
but posed dangerous risks to human health and safety. To address these
issues, SMCRA imposed a fee on coal production to fund the intent of
Title IV. The Act requires that 50% of all abandoned mine land fees
collected by the federal government be returned to the states for use
in reclaiming abandoned mines, and to deal with the environmental
consequences and legacy from mining conducted prior to enactment of
SMCRA in 1977.
State level Abandoned Mine Land Programs have had great success as
evidenced by the large amount of work completed. This has been possible
through the excellent efforts of state personnel and the cooperation
from OSM over the years. In Wyoming, since 1983, AML has closed 1,500
hazardous mine openings, reclaimed over 32,000 acres of disturbed land,
abated or controlled 25 mine fires and thirty eight miles of hazardous
highwalls have been reduced to safer slopes. Additionally, over $80
million has been spent to mitigate and prevent coal mine subsidence in
residential and commercial areas of five Wyoming communities, and $84
million have been invested in infrastructure projects in communities
impacted by past mining. We also maintain an active partnership with
federal agencies to eliminate mine-related hazards on federal lands.
The AML program's failure is that much of the state share of the
fee collected was never returned to the states, thus postponing the
important work that was intended to be completed by Congress at the
time of passage of SMCRA. Using Wyoming as a case in point, over $500
million has been withheld over the years. Meanwhile, impacts to the
environment continue and lives continue to be lost in old mine
workings.
With respect to AML non-coal work, I want to point out that over
the past 20 years OSM has recognized the importance of providing
support to western states to clean up the overwhelming number of
abandoned non-coal sites. Speaking for Wyoming, we have been very
pleased with the balance of support from OSM. At this time, however, we
cannot predict that the future will be as productive as the past,
primarily due to current rulemaking that will implement the changes to
SMCRA from the recently passed Surface Mining Control and Reclamation
Act Amendments (Amendments). Although OSM has been very kind in
allowing the states to provide their viewpoints on the rulemaking, I am
compelled to inform this Committee of some very serious concerns.
From Wyoming's perspective, the OSM appears to be using old tools
to implement the requirements of the new Act, primarily in the form of
the existing grant process, to manage and distribute fee collections.
The Amendments specifically state otherwise. The new language in the
recent amendments requires that certified states such as Wyoming will
receive their un-appropriated balance in seven equal payments beginning
in FY 2008. It further requires that the state's share of annual fee
collections going forward be in the form of a payment from the U.S.
Treasury in lieu of an actual distribution from current fees collected.
The traditional administrative process which consists of the state
applying for and the OSM approving and authorizing projects and grants
does not serve the intent of the Act and would be seriously flawed. The
Act does not specify a grant process, and very clearly does say that
payments will be made. Indeed, Sec. 401(f)(3)(B) excludes certified
states from receiving grants. The Act also specifies that these funds
are to be used for purposes as established by the state legislature
with priority given to addressing the impacts of mineral development.
Our legislature has already moved to position itself to take on this
task. A law creating an abandoned mine land funds reserve account was
passed earlier this year. All funds received from the federal
government from the Surface Mining Control and Reclamation Act
Amendments of 2006 must flow into this account and remain there until
appropriated by the legislature. The Wyoming Legislature has a long
history of successfully fulfilling its fiduciary responsibilities and
competently managing funds distributed from federal accounts. The
capability exists to do the same with the fee payments that the Act
calls for.
Western states are committed to completing the abandoned coal mine
reclamation work, and fulfilling the original intent of SMCRA. But they
are also faced with significant threats to the environment and to human
health and safety from abandoned non-coal mines. Current rulemaking
efforts by OSM must allow discretion to these states so that this
serious problem can be addressed. Each state is unique, and the OSM
should be flexible and provide a regulatory framework that meets the
needs of each state. We believe that the core Mission of OSM, and the
original intent of SMCRA will not be compromised by doing so.
I conclude by reinforcing the key variables to ensuring that we
build on our past success and avoid the mistakes. First is to ensure
that the professional relationships that have been built between the
regulated community, the states and the federal government continue to
be nurtured. Second, the serious funding shortfalls must be addressed
to ensure that we maintain efficiency and not lose effectiveness. Last,
we need to take great care in drafting the rules that will implement
the Amendments to SMCRA. This is an opportunity to truly leverage what
we have learned over the years, and ensure that the pressing
reclamation needs across the country are addressed.
______
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you. Thank you for your testimony this
morning.
Let me begin by asking you, Secretary Timmermeyer--first,
thank you for your kind comments. I appreciate it. And before I
ask the panel the questions I have, let me ask the audience, is
there anybody from the Office of Surface Mining that has
remained with us? Anybody here representing the Office of
Surface Mining even taking notes to send to them?
Well, I guess they are closely glued to their tubes
watching the internet, then. I hope they are.
Madame Secretary, you noted that about 75 percent of all
surface mining applications in West Virginia set forest land as
a post-mining land use. This shows that the state is stepping
up to the plate in terms of creating natural carbon sinks to
capture greenhouse gases.
But at the same time, continuing with the theme that I
started in my opening remarks and in a question to OSM, to what
extent are mountaintop removal operations in West Virginia
being granted an AOC exemption in providing those post-mining
land-use plans that the law requires--commercial, et cetera--as
opposed to timberland?
Ms. Timmermeyer. Well, I know that we recently went through
rulemaking in West Virginia to do what we could to spur
companies to choose forestland as a post-mining land use. And
there was a lot of deliberation and thought and discussion with
scientific and technical folks that went into that.
And so I think that we are just beginning to see that
choice of a post-mining land use to continue to be used more.
And certainly, as you said, that is very significant when you
talk about climate change issues, because a growing forest
actually uptakes more carbon dioxide than even an old-growth
forest. So that is something that is sort of a co-benefit of
that.
And post-mining land use is one of the most important parts
of SMCRA. And certainly it is our job as regulators to continue
to assure that the land is being used for a higher and better
purpose. And as I said, we have several examples in West
Virginia of where that is being done.
The Governor right now is working on, as I mentioned in my
comments, an Executive Order to continue to take that a step
further and make sure that the industry understands that when
that variance is obtained, that those post-mining land uses
should be for development purposes, and that there should be
things left behind for the communities to be used into the
future.
The Chairman. Let me ask you a little further on that last
point about this Executive Order. As I recall, the Underwood
Administration and the Legislature created what is called the
Coal Field Development Office, that was supposed to have done
just to what you refer. More with the framework of these
activities is already set forth in section 515[c] of the Act,
established 30 years ago. And I am just wondering, could you
elaborate just a little more on that framework? On what this
new framework is going to be?
Ms. Timmermeyer. Well, there is a Coal Field Community
Development Office that has been working with communities on
master plans, but this really is going to take it a step
further. And we are bringing in people who haven't typically
been working on this issue. We are bringing in many of the
state's economic development leaders and science leaders to
work on the issue, to try to promote more economic development
opportunities on post-mining land use sites.
The Chairman. Thank you. I was aware that this is going a
little further than previous efforts, as far as being more
inclusive of those that are involved in not only post-land use
planning, but also economic development and the new
technologies and the new businesses we are seeking as we seek
to diversify our economy.
It does involve much more. We are involved with it at the
Rahall Transportation Institute, for example, with Marshall,
and working with these economic development planners in
developing better post-mine uses of the land. So I appreciate
that effort that you and the Governor are making.
Deputy Chief Husted, let me ask you. I note the three
unresolved issues the states still have with OSM, with respect
to implementing the changes in the law that Congress passed
last year, this is a concern. But I think overall most of the
states are pretty flush as a result of these amendments, which
made the states' grants mandatory, no longer subject to the
whims, the caprices, the annual appropriation process.
My question is, to what extent are the states prepared to
now spend those funds for on-the-ground reclamation? Are
contracts, for example, being expeditiously entered into?
Mr. Husted. Mr. Chairman, to answer your question across
the board, for all the 30 states and tribes, I would have a
difficult time saying what collectively was being done. I can
give you an example of what is happening in Ohio.
For the last six months we have been working on a
reorganization plan to be able to structure our organization to
be able to handle the increased funds that will be made
available to the state for the purposes of being able to do
abandoned mine land reclamation. My assumption is that you will
be seeing the same sort of efforts taking place in other states
and tribes.
We won't be seeing the large increase come for about
another two to three years. But if Ohio is any example, you
have states and tribes out there looking at their programs and
trying to organize themselves in such a way so that they can
efficiently and effectively spend that new money.
The Chairman. Any others wish to comment on that question?
Mr. Conrad. I might add, Mr. Chairman, that part of the
case that we attempted to make to Congress over the course of
the last several years regarding the need for reauthorization
for increased funding was the fact that there are several of
these projects on the shelf, ready to go. And I believe that
the states are preparing now to move forward with many of
those.
The bigger frustration continues to be with some of the
minimum program states, who also have these larger projects
that sometimes take multi-millions of dollars to actually
effectuate the project. And hence, their concern about moving
that funding forward.
The Chairman. OK. Madame Secretary?
Ms. Timmermeyer. Mr. Chairman, yes, I would say that it is
an interesting and uncommon problem to have in environmental
protection that we have more money than we can spend right now.
Certainly what we want to do is have a plan for spending that
money responsibly.
I think that the real test will be 15, 25 years from now,
if people look back and say did this agency have a plan in
place, and did they use the monies appropriately and
responsibly for not only reclaiming the land, but also for
making sure we don't have a legacy of acid mine drainage
problems in the state, and also to get water to those folks who
had their water infrastructure affected by these pre-law sites.
So we are certainly working feverishly to be able to get a
program together as well in West Virginia to spend the money
appropriately.
The Chairman. Great. Glad to hear that. The gentleman from
New Mexico, Mr. Pearce.
Mr. Pearce. Thank you, Mr. Chairman. I appreciate the
testimony that each one of you have given.
Director Corra, there is discussion right now here in
Congress about climate change. And on the cutting edge of that
discussion is the coal industry, because there are people
saying we can't use coal to produce that.
If we experience a decrease in production based on
something that we might do here in Congress, what happens to
the AML program, the Abandoned Mine Land Program? If production
drops, how drastically is the AML affected?
Mr. Corra. Mr. Chairman, speaking for the State of Wyoming,
the amount of money that we presume will be sent to us by OSM
is sufficient to take care of our problems going forward. As
coal production is impacted by any Federal legislation, it is
our sense that the impacts will be gradual rather than abrupt,
and fees will continue to be paid.
I might add that Wyoming is a certified state, and so what
we receive actually is a payment in lieu of the fees that are
collected from Wyoming, from the Treasury.
The Chairman. Thanks. Secretary Timmermeyer, I appreciate
your observation, and I really appreciate the balance in the
comment that we are to reduce the impact, and yet keep people
in business. I think that that is an evolved point of view that
is very productive, and I appreciate that.
You were mentioning the companies that were walking away
since we implemented SMCRA. The companies that would walk away
probably started before that, but of the start-ups after SMCRA,
do you find the walk-away occurring at all, or very limited?
How does that compare to before?
Ms. Timmermeyer. I think it certainly occurs less because
of the program we have in place about companies, once they have
walked away, cannot mine again, those types of issues.
But as with any business, it really trends. And we have
seen throughout the years since SMCRA, there will be a lot of
bankruptcies. And that just sort of goes with coal production,
up and down.
I think the issue that you raised with the smaller
companies going out of business, and now that we have larger
companies doing business is an important point. Because now
when companies do walk away, we have a lot larger sites and
multiple sites on our hands to deal with in our special
reclamation program, which deals with those post-law, post-
SMCRA bankruptcy sites.
And so that has been an interesting twist on the way that
we have to deal with that program. But fortunately we have a
process in place in West Virginia, as the Chairman is well
aware, the recently authorized seven-up tax that was put on
coal to help deal with the older special reclamation sites. And
we are continuing to work into the future with dealing with
ones that are current.
Now that really is evolving into thinking about what to do
with those facilities which have perpetual AMD treatment
issues. And so now we are talking about the next generation of
how to deal with those sites, which may be water trusts and
those types of things.
Mr. Pearce. Now, your testimony, to me--in fact, the
testimony of all four of the participants--came across pretty
positive that we are moving our way to protecting our
environment, and yet still providing a significant energy
resource for the country.
Has your office, Secretary, done anything, any research
about the coal-to-liquid discussion? In other words, that is
another thing that is very highly politically charged. People
saying it is absolutely not possible. And yet if it were
possible, then coal could be really a tremendous help to us
providing energy. Has your department done anything on studies
about the safety of coal to liquids?
Ms. Timmermeyer. Yes, sir, really at the request of
Governor Manchin, along with my fellow agencies in the state.
We have been working on that issue. We have all had folks in
our agencies actually do site visits for other states that are
trying to introduce this technology.
And really, the first stage of that obviously is
gasification before you liquefy. And so we are working
diligently right now on a potential facility that will come
into West Virginia to start that first stage of it, and then
possibly move to that next stage.
So certainly it is a technology that many feel has been in
place in other countries. And to the extent that that will help
with our energy independence in West Virginia, our Governor is
certainly very interested in that, and we continue to work on
that issue.
Mr. Pearce. And that conversion can be done with an
environmentally safe impact?
Ms. Timmermeyer. That would be the key to making it happen.
Yes, sir.
Mr. Pearce. OK. Well, thank you, Mr. Chairman. I see my
time is up.
The Chairman. The gentleman from Pennsylvania, Mr. Shuster.
Mr. Shuster. Thank you, Mr. Chairman. And thank all of you
for being here today.
First of all, a point of clarification. Are all six or
seven of those binders one permit?
Ms. Timmermeyer. Yes, sir, this is one permit that was
signed this week.
Mr. Shuster. All of them, OK.
Ms. Timmermeyer. And this is a separate 1977 one.
Mr. Shuster. OK. I just wanted to be sure of that. A
question that I have is concerning the funding. And the debate
over the last couple years in Congress has been certainly to
try to get increased funding for abandoned mines, but the
debate has raged. Does the money go to the West, where now most
of the coal is produced, and that is where most of the fees are
coming from? Or does the bulk of it stay in the East, where for
the last half of the 1800s and the first half of the 1900s,
coal was, for the most part, coming out of West Virginia,
Pennsylvania, which fueled the engine of America? So that is
the debate.
So I wondered if each of you can comment. I can probably
guess by where you are from, where you are going to come down.
But I am especially interested, Mr. Corra, what your view is,
and what your argument is as to why the West should get--and I
know on the surface what you are going to say, but give me your
argument. Why don't we start with you first?
Mr. Corra. Well, Mr. Chairman, there was a bargain struck,
if you will, when the Act was passed. And the Act clearly
describes that funds are to be returned to the states, in a
specific proportion. And that has never happened. And we just
have that as a matter of principle, and that is our view.
I might add, though--I think it gets to your question,
also--the recent amendments to the Act does provide for the
actual fee collections which Wyoming coal miners will continue
to pay on into the future, which will probably amount to about
$125 million a year. Those actual fee collections are now going
to be sent to other states where there are significant needs,
such as Pennsylvania and West Virginia and some of the others.
My personal feeling about that is that is reasonable.
In return, what we get is, for our fee share is we will get
payments from the Treasury. And quite honestly, Mr. Chair, we
are still not sure how that is going to happen, and if we will
get those payments. But we do believe, and we appreciate the
efforts of Congress in recognizing the western states,
particularly Wyoming, in terms of returning those state shares.
Mr. Shuster. Secretary Timmermeyer, if you might respond to
that.
Ms. Timmermeyer. Well, you are right in your statement that
the eastern states, like Pennsylvania and like West Virginia
and also Virginia, made sacrifices years ago. And really, to be
able to fuel the nation's economy back during that time. And so
it was very important to us that that be taken into
consideration as the fund was reauthorized.
That said, I think that the result of the reauthorization
was a compromise, and a very good compromise. And we are
certainly excited about the prospects of the monies that we are
going to receive over the next 15 years. And I think that that
is our focus at this point.
Mr. Conrad. One thing I might add, Congressman, is when we
were first looking at potential accommodation of everyone's
interests to find a piece of legislation that would work to
address this issue, there was a meeting, an attempt of the
meeting of the minds. And some of the states represented at
this table came together early on to try to resolve those
eastern and western differences and concerns. And the result of
that, from my perspective, was a reauthorization bill that does
do that, and will allow us to address the high-priority coal
issues in the East, as well as the concerns in the West.
Mr. Husted. Yes, Mr. Chairman, Mr. Congressman, I believe
that the amendments passed in 2006 to SMCRA do address the
historic coal mining problems that have plagued many of the
eastern states. With regards to the fairness between the East
and the West, I believe that Director Corra addressed that as
well as it could be. But I am very satisfied with the
reauthorization of SMCRA that took place in 2006.
Mr. Shuster. And I wonder if you could comment--could I ask
one more quick question--on productivity of reclaimed land.
What have you found? I saw the pictures there, and you turn
them into schools. But I am talking more about when you are
turning them back into forests or other agricultural lands. How
has the productivity been on reclaimed land, as compared to
land that has not been mined?
Mr. Conrad. With regard to trees, reforestation----
Mr. Shuster. Trees, anything. Growth, agriculture, anything
that----
Mr. Conrad. Yes, there are statistics that are gathered on
that. Several of the universities, like Virginia Tech, Indiana
University for the mid-continent, for prime farmland
productivity, Southern Illinois University, they have been in
the forefront of gathering those kinds of productivity numbers
and doing those kinds of analyses in terms of particularly the
restoration of the soil to allow those kind of productivity
numbers to get where they are today.
And in almost every instance, they are in higher, better
condition than would have been expected, and in some cases
higher and better than before the land was mined. So we are
seeing that we are able to accomplish that with some of the new
technologies and techniques that are being used in the
reclamation process.
Mr. Shuster. OK. Does anybody else care to comment?
Mr. Corra. Mr. Chair, very quickly I would just say in
Wyoming, we have seen very good productivity. And one of the
things that was integral to that was some flexibility on the
part of OSM in working with us, for example on topsoil
replacement, which, in the arid parts of our state, was pretty
significant enabling us to do that. But we have seen good
productivity.
Mr. Shuster. And when good productivity, is that close to,
as good, or better than before it was mined? That states a
general question.
Mr. Corra. Sure. Mr. Chairman, for the most part, better
than it was before.
Mr. Shuster. Thank you. Thank you, Mr. Chairman.
The Chairman. Thank you, Mr. Shuster. All of you have
commented on Congress's action in the end of last session,
reauthorizing the AML program and how it was a compromise. You
have saluted many people, and certainly it was a coalition that
had to come together to produce this legislation. The United
Mine Workers deeply involved, the coal industry deeply
involved, the Bituminous Coal Operators Association. All of you
were involved in it, and many across the Appalachian coal
fields were involved in putting together this compromise. And
finally we were able to secure the approval in the Congress.
I would also like to add and compliment a former member of
this committee on what was then the majority side, Barbara
Cubin, from your home state of Wyoming, who was instrumental on
this effort, as well. We introduced the original Cubin-Rahall
language, a bipartisan legislation that started us down this
road to where we are today, in a successful piece of
legislation.
Ladies and gentlemen, thank you for being with us today.
Did you have any further questions? OK. Thank you.
Mr. Conrad. Thank you, Mr. Chairman.
The Chairman. Our next panelist is Mr. Cecil E. Roberts,
President, United Mine Workers of America. It says on the
agenda Fairfax, Virginia, but I know him to be Cabin Creek,
West Virginia. And the Chair would like to compliment Cecil for
his efforts not only on behalf of our working men and women in
our coal mines in West Virginia and across the coal fields, but
in so many legislative efforts. Whether it is reauthorization
of the AML or whether it is the safety and health of our
nation's coal miners, Cecil is a true leader. And we are
honored to have you here this morning.
STATEMENT OF CECIL E. ROBERTS, PRESIDENT, UNITED MINE WORKERS
OF AMERICA, FAIRFAX, VIRGINIA
Mr. Roberts. Let me thank you, Mr. Chairman, for the
invitation to be here today. And I would also like to thank you
for your years and years of service, particularly to the coal
miners of this nation. You give me much too much credit with
respect to the health and safety fights that we have been
through.
I want to thank you for your efforts last year, when we
faced a tremendous crisis, where 47 miners lost their lives in
the nation's coal mines. You and other Members of the House and
Senate took the leadership position that we needed stronger
health and safety laws, and you led that fight. And I want to
thank you for that.
I want to thank you for the passage of SMCRA back in 1977.
You mentioned the Buffalo Creek disaster, which I think was
probably the impetus for the passage of this law.
I just want to point out that many UMWA members lived on
Buffalo Creek. Many UMWA members actually worked for the
Pittston Company that constructed the impanelment that failed.
It was a devastating time for all of us. And for you to be able
to come to Congress as a freshman House Member and pass this
law was truly a remarkable feat.
And I would just say to all of us, as we reflect on the
benefits of SMCRA over the past 30 years, there is certainly a
lot of criticism that could be offered, obviously, and it has
been offered today. But I would just suggest to everyone that
we would have had many more Buffalo Creeks had we not passed
this law 30 years ago.
I come today as a representative of coal miners. The United
Mine Workers have been in the coal mines for 117 years. Our
original fights obviously were for better working conditions in
the coal mines, fewer working hours underground, more health
and safety, higher wages and benefits. Miners were originally
paid by the ton, and that is the only way they got paid. If
they didn't load any coal, they didn't get paid.
But we have been involved in the early fights over housing
for coal miners, and the company houses and the company towns,
fighting over fights dealing with the company store and being
treated fairly by the company store and their employers. We
have been in these communities; that is where our people live.
With respect to the mountains and the hills of West Virginia
and Kentucky and all across this nation, coal miners do a
couple different things. They hunt and they fish, and they mine
coal, for sure. So it is important to our members that they
have these opportunities available to them on a recreational
basis, and also a safe and healthful place to work.
I think I should just say to this committee that Congress
stepped forward to aid coal miners in 1946 and 1947 with the
passage or the signing of a contract that was signed by the
Federal government to provide healthcare to retirees. And one
of the main reasons I wanted to be here today is to speak to
that issue.
In 1946 the government seized the coal industry, and John
L. Lewis and the United Mine Workers went on strike. And the
government signed a contract with John L. Lewis saying that
retirees would have lifetime health coverage.
We talk about abandoned mines. We had abandoned people back
in 1992. And through your leadership, particularly in the
House, Mr. Chairman, we were able to pass the Coal Act. And of
course, with Senator Rockefeller and Senator Byrd in the
Senate, we provided legislation that protected coal miners'
healthcare.
That promise fell apart also as time went on, because some
of the mechanisms that were put in the original law by Congress
collapsed.
I have just come today to say thank you to you. And I also
want to mention Representative Cubin from Wyoming; she was very
helpful with respect to trying to see and deal with the
problems of retirees from the industry.
Someone mentioned Horizon Natural Resources here earlier. I
would just point out that those people who worked for Horizon
Natural Resources, a huge company, when it went out of business
they dumped like 5,000 or so pensioners. The UMWA paid their
healthcare for eight months while this legislation was pending.
Now they are covered by healthcare that is funded by the
interest money that was set up in 1992 originally.
And then I want to commend you and this committee for the
work that you did last year. It is so hard to bring all the
parties together. And I think I should publicly thank everyone
that was involved in this. All the states looked at these
retirees and said they should be taken care of. Every state
said that. The environmental community said that, and I thank
them. And the coal industry said we realize that we can't pass
legislation without dealing with these people who gave their
lives to this industry.
I will just correct one thing that was said here earlier,
when the question was posed about how many coal miners are
there in the United States. And the answer was about 250,000.
That is incorrect. There are less than 100,000 coal miners in
the United States. I think that number varies somewhere between
65,000 to 75,000 nationwide.
But I would point out, and then I will take any questions
that you have, that there are many people who make their living
supporting the coal industry. And just to give you an example
of that, there are 700,000 people that have a job in West
Virginia. One hundred thousand of them are tied somehow to the
coal industry, and there are only approximately 14,000 to
17,000 coal miners in West Virginia. So the remainder of those
people are supporting the coal industry. So there is a lot of
jobs indirectly tied to this industry that provides good wages
and good benefits, and I thought it would be helpful to correct
that error from previous testimony.
I would be glad--I know I went over a bit, and I apologize
for that. But I will take any questions that you might have.
[The prepared statement of Mr. Roberts follows:]
Statement of Cecil E. Roberts, President,
United Mine Workers of America
Chairman Rahall, members of the Committee, I am Cecil E. Roberts,
President of the United Mine Workers of America (UMWA). The UMWA is a
labor union that has represented the interests of coal miners and other
workers and their families in the United States and Canada for over 117
years. We appreciate the opportunity to appear before the Committee to
celebrate the thirtieth anniversary of the Surface Mining Control and
Reclamation Act of 1977 (SMCRA), an historic piece of legislation that
continues to be of vital importance to mining communities across this
nation.
When enacting the Surface Mining Control and Reclamation Act in
1977, Congress found that ``surface and underground coal mining
operations affect interstate commerce, contribute to the economic well-
being, security, and general welfare of the Nation and should be
conducted in an environmentally sound manner.'' That statement is as
true today as it was in 1977. Coal mining contributes significantly to
our national economy by providing the fuel for over half of our
nation's electricity generation. Coal miners are proud to play their
part in supplying our nation with domestically-produced, cost-
effective, reliable energy. We also live in the communities most
affected by coal mining and support the intent of Congress that coal
mining must be conducted in an environmentally sound manner.
Throughout our 117 year history, the UMWA has been in the forefront
of bringing social, economic and environmental justice to our members
and the nation's coal fields. Our members toil in the nation's coal
mines to provide domestically-produced energy that helps fuel our
economy. The UMWA's goal is to protect the interests of our members on
the job and when they return home to their families after a hard day's
work. The UMWA has led the fight throughout our history to enact tough
mine health and safety laws to protect miners on the job.
Unfortunately, advancements in health and safety too often happen only
after miners are killed on the job, as we all witnessed again last
year. We have fought for compensation laws to assist those who are
injured and occupational disease laws to provide for those whose health
has been taken from them. The UMWA has also been in the forefront of
providing health care and pensions to workers, establishing one of the
first industry-wide multiemployer benefit plans. Through the historic
1946 Krug-Lewis Agreement--signed in the White House between Secretary
of the Interior Julius Krug and UMWA President John L. Lewis--the UMWA,
the coal industry and the federal government created the UMWA Health
and Retirement Funds. Over the last 60 years the UMWA Funds has
provided pensions and health care to hundreds of thousands of our
nation's coal miners and helped to modernize the delivery of health
care in coal field communities across the nation.
Indeed, years ago the Funds established ten regional offices
throughout the coal fields with the direction to make arrangements with
local doctors and hospitals for the provision of ``the highest standard
of medical service at the lowest possible cost.'' One of the first
programs initiated by the Funds was a rehabilitation program for
severely disabled miners. Under this program, more than 1,200 severely
disabled miners were rehabilitated. The Funds identified disabled
miners and sent them to the finest rehabilitation centers in the United
States. At those centers, they received the best treatment that modern
medicine and surgery had to offer, including artificial limbs and
extensive physical therapy to teach them how to walk again. After a
period of physical restoration, the miners received occupational
therapy so they could provide for their families.
The Funds also made great strides in improving overall medical care
in coal mining communities, especially in Appalachia where the greatest
inadequacies existed. Recognizing the need for modern hospital and
clinic facilities, the Funds constructed ten hospitals in Kentucky,
Virginia and West Virginia. The hospitals, known as Miners Memorial
Hospitals, provided intern and residency programs and training for
professional and practical nurses. Thus, because of the Funds, young
doctors were drawn to areas of the country that were sorely lacking in
medical professionals. A 1978 Presidential Coal Commission found that
medical care in the coal field communities had greatly improved, not
only for miners but for the entire community, as a result of the UMWA
Funds. ``Conditions since the Boone Report have changed dramatically,
largely because of the miners and their Union--but also because of the
Federal Government, State, and coal companies.'' The Commission
concluded that ``both union and non-union miners have gained better
health care from the systems developed for the UMWA.'' Federal funds
have substantially improved the overall quality of medical care in
these previously under-served communities.
Mr. Chairman, you know America's coal miners about as well as
anyone I know. I think you would agree that they value the natural
resources that God has given us. In their free time, you will find many
of them fishing in the streams and hunting in the forests throughout
the coalfields. Because of their love of the land, they are strong
defenders of the need for responsible reclamation laws. Because they
work in a vital energy industry, they also know that the nation needs
the product of their labor. Perhaps more than most, they understand the
need for responsible policies that balance our need for energy with our
need to protect the environment. We believe the 1977 Surface Mining Act
struck the right balance and the authors and supporters of that effort
should be proud of their accomplishments. I know that Chairman Rahall
was a member of the Committee at that time and a strong supporter of
SMCRA during the Congressional debates of the 1970s and ever since. We
are proud to say that the UMWA has been a steadfast supporter of SMCRA
throughout its 30 year history.
While more than $5.7 billion has been appropriated for mine site
reclamation since 1978, there are still many more sites requiring
attention. With the reauthorization of the AML program as part of the
Tax Relief and Health Care Act last December, Congress extended the AML
Fund for 15 years. States and tribes will finally start to receive the
resources they need to take care of the reclamation projects within
their respective jurisdictions. The 2006 AML reauthorization also
provided the long term financial solution for the health care of the
thousands of abandoned retired coal miners and their dependents whose
employers went out of business and ceased fulfilling their contractual
promises to pay for their retirees' health care.
Coal miners especially appreciate the substantial financial support
SMCRA has provided through the Abandoned Mine Land Fund (AML) to
reclaim abandoned coal mines in the coal field communities. Through the
AML Fund, mining communities across this country have received billions
of dollars--monies collected through fees imposed on a per ton basis
for all coal that is mined in the United States--to clean up abandoned
coal mines. While the overwhelming majority of these funds has paid for
the reclamation of abandoned mines, with the passage of the 1992 Coal
Act, interest earned on the AML principal since 1995 has been used to
help support the health care needs of abandoned retired coal miners. In
other words, the Surface Mining Control and Reclamation Act has
provided essential support for both the needs of abandoned coal mines
and abandoned retired miners and their dependents. Once again, Chairman
Rahall and other members of this Committee played a vital role in
ensuring that the needs of abandoned coal miners were not forgotten.
When Congress authorized the use of AML interest to help finance
the cost of health care for retired coal miners, it was a logical
extension of the original intent of Congress when the AML Fund was
established. Congress joined these two programs together for a specific
reason--they both represent legacy costs of the coal industry that
compelled a national response. When Congress created the AML Fund in
1977, it found that abandoned mine lands imposed ``social and economic
costs on residents in nearby and adjoining areas.'' When Congress
enacted the Coal Act in 1992, it also was attempting to avoid
unacceptable social and economic costs associated with the loss of
health benefits for retired coal miners and widows. Moreover, as the
U.S. Government Accountability Office (GAO) found in its 2002 report on
the Coal Act entitled ``Retired Coal Miners' Health Benefit Funds:
Financial Challenges Continue,'' CBF beneficiaries traded lower
pensions over the years for the promise of their health benefits and
engaged in considerable cost sharing by contributing $210 million of
their pension assets to help finance the CBF.
Although some criticized the use of AML interest money to help
cover the cost of coal miners' retiree health care, this marriage
proved to be the catalyst for last year's reauthorization of the AML
program which successfully addressed the varied--and sometimes
conflicting--needs of the many interested parties. With all parties
having a stake in the SMCRA debate--states and tribes, coal companies,
environmental groups, and UMWA members--working together for the
passage of the Tax Relief and Health Care Act last year, Congress was
able to forge a political consensus that had eluded us for many years,
allowing us to achieve goals that many of us have been pursuing since
the passage of SMCRA in 1977 and the Coal Act in 1992. Not only did
that legislation succeed in securing the long term financial support
for retired coal miners' health care, but it modified the AML formulas
to provide historic production states that have the most serious
reclamation problems with higher allocations, provided relief to
operators by reducing the AML fees by 20%, and also mandated that
minimum program states are guaranteed at least $3 million each year for
reclamation efforts. In addition, the legislation took a portion of the
AML fees collected off budget and, over a seven year period, all states
and tribes will receive from the General Treasury an amount equivalent
to their unappropriated balances in the AML fund. The end result of the
legislation is that it resolved many longstanding and contentious
disputes that had blocked AML reform for several years. More
importantly, the legislation will mean more funds will be available to
address vital reclamation needs in the coal fields.
In terms of abandoned retiree health care, the passage of the Tax
Relief and Health Care Act has addressed the financial problems that
have plagued the Coal Act since its passage in 1992. As many are aware,
adverse court decisions and an unanticipated series of bankruptcies in
the coal and steel industries had eroded the original financial
mechanism Congress intended to fund Coal Act health care obligations.
As a result, on three separate occasions Congress had to provide
emergency appropriations, using unused AML interest money, to keep
health care benefits from being cut. With passage of last year's AML
reauthorization, these and many other issues have been resolved.
Mr. Chairman, the UMWA and its members are grateful that Congress
forged a bi-partisan consensus to reauthorize the AML Program and
provide a long-term solution to the coal industry retiree health care
financial crisis. We have in previous appearances before the Committee
provided the historic context for the government's unique promise of
health care to coal miners. You know all too well that over their
working lives, these retirees traded lower wages and pensions for the
promise of retiree health care that began in the White House in 1946
when the Krug-Lewis agreement was signed. In 1992, miners willingly
contributed $210 million of their pension money to ensure that the
promise would be kept. Everything that this nation has asked of them--
in war and in peace--they have done. They are part of what has come to
be called the ``Greatest Generation'' and deservedly so. They have
certainly kept their end of the bargain that was struck with President
Truman. In 2006 we were delighted that Congress forged the political
consensus that allowed the federal government to keep its promise once
again.
Today, we appreciate having this opportunity to thank every Member
of Congress for remembering the plight of our retired miners and
widows. I come before you to convey a heartfelt thank you from all the
retirees including the original 112,000 beneficiaries for the hard work
of this Committee in keeping that promise.
I would be happy to answer any questions you may have.
______
The Chairman. Thank you, Cecil. You have referred to the
original legislation in 1992, in which I was heavily involved,
as well. It did allow for the first time the interest on the
unappropriated balance in the AML to be used for coal miner
healthcare. You refer to that and the ensuing amendments of
last year, and all the individuals and groups involved. I
certainly commend you for your leadership, as well.
Mr. Roberts. Thank you.
The Chairman. It would not have happened if the United Mine
Workers had not been there and deeply involved on a daily
basis, especially the individual sitting right behind you in
the name of Bill Bannick. We appreciate the professional and
respected team you have working for you here.
So I guess I would just ask one simple question. And you
referred to the promise of healthcare that goes back to John L.
Lewis days. Have we kept the promise? Has Congress kept the
promise of cradle-to-death healthcare for our nation's coal
miners?
Mr. Roberts. I can report to you, as of the end of
December, every retiree that had the requisite years of
service--20 years, age 55--and whose company was gone, went
bankrupt, abandoned them, as you will; as of the end of
December, every one of those retirees had their healthcare. And
this Congress I think should feel good that they kept the
promise that this government made.
Now, as time goes on, people will retire. There will be
some dispute, debate about the eligibility requirements. But
when we finalized this bill at the end of December, every
single retiree who was pension-eligible or had that promise
made to them was getting their healthcare. And I just feel that
I should say thank you to this Congress for that.
The Chairman. Well, I am glad to hear that. And you
mentioned it, and I mentioned it throughout these
deliberations. As we seek to address the problems of abandoned
mine lands, it is most important that we not forsake the
abandoned coal miner, him or herself.
Mr. Roberts. That is true. And one of the things I would
point out, more often than not when a mine site is abandoned,
that company has probably gone into bankruptcy; probably left
people without their wages, without their benefits, without
their healthcare.
And so we have two types of problems here with respect to
this. It is abandoned mines and the communities that are
adversely affected by that. But we also have abandoned human
beings who gave their lives to this industry.
The Chairman. Thank you. Let me ask you one final question.
Thomas Jefferson once wrote, and I quote, ``I much prefer the
dreams of the future than the history of the past.'' And I
applaud that sentiment. Yet the past of your union is so
clearly grounded in places like Paint Creek, Cabin Creek, Blair
Mountain, where the struggle for dignity, the struggle for
workers' rights were fought with blood. That while we can
prefer the dreams of the future, the past certainly cannot be
ignored. Equally with the history of surface mining.
So as we look to the future, do you see a time in the hills
and hollows of the Appalachian coalfields where we can have a
dovetailing, as I referred to in my opening statement, of the
interests of environment with that of surface mining?
Mr. Roberts. As has been properly pointed out here today,
it is a difficult struggle. But I happen to believe, as we came
together last year with so many competing interests, and sent
together people from Wyoming and people from Pennsylvania and
West Virginia, and all across this nation--quite frankly,
Republicans and Democrats, conservatives and liberals--and came
to grips with this extremely, extremely complex problem of how
to re-fund and reauthorize AML, and we did it. It wasn't easy,
but it took your leadership and others, and Representative
Cubin's leadership also. I would like to think that people of
good mind and good heart and common objectives can do that.
The Chairman. Thank you. Mr. Pearce?
Mr. Pearce. Thank you, Mr. Chairman. I appreciate your
testimony, Mr. Roberts.
As I listened to Secretary Timmermeyer's on the last panel,
she talked about the companies that are more sophisticated,
that was from her environmental point of view that they are
more geared for today's regulatory environment in our culture.
What about from the worker's point of view? Are the
companies more sophisticated? Give me a little bit of insight
on that.
Mr. Roberts. Well, companies, I am sure the industry might
have a different perspective on this, on any given day I am
either up here working with the industry or fighting with the
industry. And that is just the nature of what I do.
But I think there are many sophisticated companies out
there, and then there are some companies that are not too
sophisticated, and quite frankly are living way, way in the
past, just to be quite honest about it. But many of the
companies that we deal with, we have disagreements, for
instance, with Council and Peabody, but we find a way to work
out our differences. And generally when they have a good labor
relations program, they don't necessarily leave the environment
in a mess, either.
But it is the companies that want to have bad labor
relations, that takes you to bad environmental record. There
are some companies--and you can look at the statistics and see
who they are--that have horrendous environmental records in
West Virginia.
Mr. Pearce. Talking about environmental things, you heard
my questions earlier about coal to liquids. Has the UMWA taken
a position on coal to liquids?
Mr. Roberts. Absolutely. We have supported this. It seems
ironic to me, if you read the history of World War II, the Nazi
war effort was fought with fuel made from coal because the oil
supplies were bombed by the Allies. But they found a way back
in the 1940s to convert coal to liquid and jet plane fuel, and
fueled artillery pieces, and transported them by fuel made from
coal.
There is a picture, I am sure Congressman Rahall has seen
it, of former Senator Jennings Randolph. It must have been
taken I guess in the late fifties, mid-fifties. He was in a
plane that he was flying that someone had made fuel from coal,
and he was flying in that plane. It is a very famous picture
back in West Virginia.
We are extremely supportive of this program.
Mr. Pearce. OK. So I have an online petition that was
submitted to us that basically says, I think, that liquid coal
would be a disaster in our fight against the climate crisis;
Congress should vote against tax breaks and substitutes for
coal. So I suspect that I would clearly understand that you
would ask that I not respond in a positive way to this
particular online poll?
Mr. Roberts. Oh, I am not going to sign that petition, if
that is what----
[Laughter.]
Mr. Pearce. What about the, there is a move in Congress to
have the coastal states be allowed to prevent coal mining in
inland states. Has your UMWA taken a position on that?
Mr. Roberts. We have not. When you talk about the inland
states, very little coal--and I might stand to be corrected
when I give this a little bit of thought--is mined from inland
states. But I guess----
Mr. Pearce. New Mexico does have----
Mr. Roberts. Yes. And I think, I don't know if Louisiana
has a coal mine now or not. But New Mexico does. We have UMWA
members mining coal in New Mexico.
Mr. Pearce. But the discussion is that we would allow those
states on the coast to dictate, to actually shut down mining in
the----
Mr. Roberts. Oh, you are saying that coastal states could
dictate to anyone.
Mr. Pearce. Yes, yes.
Mr. Roberts. No, we would not be supportive of that.
Mr. Pearce. That actually is a provision.
Mr. Roberts. I misunderstood your point.
Mr. Pearce. I appreciate that. It was actually a provision.
It was in H.R. 2337 that we passed out of here, that would
allow that to occur. It is a provision that concerned me quite
a lot, and we actually spoke about that and tried an amendment,
unsuccessfully.
But the stakes are very high right now for the coal
industry. The climate-change argument has coal exactly in its
bomb sites, and there are people who would shut down the entire
production of electricity from coal, who we have had testimony
in this room that would say stop coal, use wind and solar. And
you produce 52 percent of the nation's energy; wind and solar,
1 percent producers. I personally don't see how we could get
from 1 percent wind to let 50 percent of our power be produced
by wind.
Have you got any comments about that focus that is on you
all as an industry?
Mr. Roberts. Well, our analysis of removing coal from the
energy mix would be impossible. If you passed a law today and
said you couldn't burn coal, why, I think you would be
revisiting that issue pretty rapidly, because many people would
lose their lights, their heat, their air conditioning.
Let me make another comment about that, if I might. We
approach this from another direction. There are 36 or 37
million people in this country living in poverty, as we speak.
Coal provides the cheapest form of electricity in the United
States, and we have benefitted from that for many, many years.
And there isn't enough natural gas, by the way, to substitute
for coal. And if there was enough natural gas to substitute for
coal, people's electric bills would either double or triple,
more likely triple. Although the BTU cost right now is about
twice as much as the BTU cost from coal.
When you start talking about taking coal out of the
competition, then natural gas prices are going to go through
the roof. So people probably could not afford to pay their
electric bills if that happened.
With respect to wind, there is no way to generate enough
electricity from wind to substitute what coal does.
I think the answer here, and we have been an advocate of
this for many, many years, and we have been here to Congress to
advocate that we invest in technology to find a way to remove
carbon from the burning of coal. The issue about coal to
liquids is that particular issue: you do generate more carbon
when you do this than with just gasoline that we use today.
But it seems to me that we invest an awful lot of money,
Congressman, to figure out how to fight wars, and all the
technology that goes into smart bombs and all this. I would
like to see us invest some of that money in smart energy and
how to burn coal more cleanly, so we maybe wouldn't need all
those weapons that we invest in, and our economy could thrive,
and people in West Virginia could have jobs, and people all
across this country could have jobs. That seems like a pretty
good idea to me.
Mr. Pearce. Well stated. Thank you, Mr. Chairman.
The Chairman. Thank you. The Chair would just like to
respond to the statement the gentleman from New Mexico just
made in regard to this committee's energy bill, something to
the effect that we allow coastal states to prohibit coal
development through our energy bill. And I am just totally
flabbergasted. I am not sure what provision to which the
gentleman refers.
I do recall that we set up, or we voted a couple times, and
our language does allow the coastal states, through their
coastal management plans, to come together and coordinate and
make sure and decide that what they do as far as offshore OCS
drilling is not in violation of any Federal laws or state plans
that they have. I don't interpret that as, in any way, saying
that these states could, coastal states, could join together to
prohibit the development of coal on inland states.
Mr. Pearce. And with the Chairman's permission, we would
like to get the testimony that occurred in that hearing, if you
don't mind, and see if we can connect those dots, and see if my
memory is correct or not.
The Chairman. Testimony. But I am looking for the language
in the bill.
Mr. Pearce. The testimony that the language in the bill
actually does that, and there appear to be deep consensus. But
let me see if our staff can find that. I do appreciate that
question, thanks.
The Chairman. The gentleman from Pennsylvania, Mr. Shuster.
Mr. Shuster. Thank you, Mr. Chairman. And Mr. Roberts,
great to have you here with us today.
Mr. Roberts. Thank you.
Mr. Shuster. I hail from western Pennsylvania, which is, I
have a lot of coal in my district. And as I mentioned earlier
in questioning, coal is coming back strong. One of the problems
I hear from coal companies is we don't have enough, we can't
train enough people to get into the mines. So that is a good
problem to have, to employ more people.
And it is good to hear that you report that at the end of
December, that 100 percent of the retirees had healthcare.
Mr. Roberts. A lot of them in your state, by the way.
Mr. Shuster. Yes, sir, I do know that. And certainly one of
my goals here in Congress is to seek coal production, coal
employment rise in western Pennsylvania and across this
country, because I think it is a large part of the answer to
our energy situation. And mining it, and figuring out ways to
liquefy it naturally, I believe about $100 million was
appropriated to a coal liquefication plant in eastern
Pennsylvania. I certainly wanted it in western Pennsylvania,
but you don't always win those fights. But I am very pleased
that the money is there to try to move forward on that.
My question to you is that it seems to me that, and as the
Ranking Member mentioned, the coal industry is under attack by
groups in this country. And I think, as I said, it is good for
workers, it is good for communities. And many communities in my
district felt the effects of the decline in coal. And now we
are struggling to reopen mines, and it is very difficult, very
costly to get them open. In fact, one company made a big
announcement they were going to try to open a mine, and it was
going to take five or six years. And they have decided to
abandon that idea.
So I just wanted your thoughts on how do we move forward?
What do you see are the hurdles, the stumbling blocks to
mining, to creating these jobs? Because in the end, the best
thing I think we can do for coal miners is create more jobs for
them. So what are the hurdles? What are the things that you see
out there in the regulatory arena that we need to change or
streamline?
Mr. Roberts. Let me just harken back to testimony I gave I
guess three or four years ago on another committee, and I was
asked that very question.
I think the biggest challenge for coal miners, and you talk
about well, you can't find enough coal miners, there are a lot
of people who are not certain that they would like to work in
this industry. Not because the industry doesn't pay well, and
not because there isn't an excellent benefit plan available,
particularly at union mines, but because of the uncertainty.
I would suggest to you, Congressman--I could perhaps go for
another 30 minutes talking about this--the uncertainty about
this industry. And it has probably been this way for 40 or 50
years, but it is probably more so right now.
Two years ago or thereabouts, there was a lot of investment
in the industry. If you have read the financial pages recently,
there are many analysts suggesting that coal is not a good
investment, or at least is not as good an investment as they
have been recommending, because of the uncertainty of what is
going to happen.
That is true I think in any type of mining, in any state of
the Union right now, and on a national basis. I think a number
of coal companies, a number of investors, and for that matter
young people trying to decide if this is an industry that they
want to spend their future in, whether or not this industry is
going to exist. And if it is going to exist, at what level, and
what are the rules they must play by going into the future.
That is a summary pretty much.
One word is uncertainty, both to coal miners and the
industry itself, as to what the future might hold.
Mr. Shuster. And what is the key component of that
uncertainty, in your view?
Mr. Roberts. Well, I think if you read, it is not secret
that for a number of years now there has been a huge debate,
not just in this country but around the world, about global
warming, and rightfully so.
We opposed the Kyoto Treaty not because we didn't think
that greenhouse gases existed, and not because we had some
belief that earth wasn't warming. The Kyoto Treaty did not
require what was known then, and I assume they still call
themselves this, the G-67 plus one. The plus one was China, and
the 77 were the developing nations of the world, to be bound by
this treaty.
Part of the problem we fight with over every day in the
labor movement is the trade deficit. And that trade deficit is
climbing rapidly, as we speak here, to billions of dollars, as
we speak. And it gets higher and higher and higher every year.
The question is, if China doesn't have to comply with what
we do here, and Mexico doesn't have to comply, and India
doesn't have to comply, how are we going to control the
emissions in the atmosphere? It doesn't mean we shouldn't do
anything. It does mean we should compel others to do something
correspondingly with what we do.
We went on record, and some of my friends in the coal
industry would tell you that I shouldn't have, supporting the
Bingaman approach. But the Bingaman approach requires the
developing countries of the world to participate in anything
that we are doing here to control emissions into the
atmosphere.
So that is part, probably the biggest question mark as we
move forward. What is going to happen with respect to what
Congress may do with respect to that.
Mr. Shuster. Well, I see my time has expired, but I agree
with your 100 percent. And not only were they not going to
comply, but it was really a drop in the bucket.
And again, I agree. Is there global warming? Yes, probably.
But 96 percent, 97 percent of it is not caused by plants that
are burning coal, or even the cars that are burning gasoline.
So if we are going to move forward, you are absolutely right;
everybody ought to have to get on the same playing field. Fair
trade is what we try to achieve in the world. Free trade
doesn't exist anywhere, but on Main Street USA, when you can
decide which store you are going to buy, or which car
dealership you are going to buy a car from.
So I appreciate your testimony today. Thank you, Mr.
Chairman.
The Chairman. Thank you. The gentleman from Washington, Mr.
Inslee.
Mr. Inslee. Thank you. Mr. Roberts, thanks for being here.
I am a person who has been active. Excuse me, I turned that
off. Excuse me.
Mr. Roberts. I heard you, but it was a little hard.
Mr. Inslee. Thank you. And coal is obviously an enormous
potential for us to get hundreds of years of supply, but
obviously it puts out prodigious amounts of CO2. And
I have been one who has supported the concept of doing vigorous
research in trying to figure a way to burn coal cleanly.
I have recently reviewed the MIT study that suggests that
there is at least a good chance of being able to find some
economic way to sequester CO2. And I support a
Federal investment on that in an accelerated way, to do as much
as we can to figure out what that capacity is.
Now, that is not a unanimous opinion, because some folks,
because of coal's history, have just failed to be able to
envision a way to burn it cleanly. And my view is we need to
try to find a way to do that.
But there are issues about the environmental issues
regarding to mining, particularly the amount and type of mining
issues that we have. And I thought that if we were going to
build support, broad-based support for clean coal technology,
it would be helpful to be able to give people confidence that
the mining process will not extract unacceptable environmental
consequences. All energy sources have environmental
consequences. There is no totally benign energy source. Solar-
cell energy creates mining issues for the rare minerals we use.
Wave-power technology interferes with some fishing issues. Wind
power has a visual impact. Everything has some environmental
consequence.
But I think it would be helpful to build confidence in a
potential clean-coal future if we can find a way to tell
Americans we are trying to move forward to reduce the
environmental consequences of mining, particularly this
mountaintop mining that is contentious.
Do you have any thoughts in that regard, how we could try
to build that confidence to help us in those efforts?
Mr. Roberts. I would consider that along the same lines as
the Chairman's question about whether or not people of good
heart and mind and objectives could sit down and find a way to
come to grips with some of these difficult problems.
I think, from my perspective, one of the things that I have
seen, particularly on this mountaintop mining situation, I know
there are some folks who are adamantly opposed to it and want
to abolish it. I respect that. There are others on the other
side who might be making their living doing that.
I find myself, quite frankly, in a unique position. In one
week about a month ago, two coal company executives wrote
letters to the editor criticizing me, and one environmentalist,
for being too close to the coal companies. So in a week I ran
the entire gauntlet. So that tells me I must be somewhere in
the middle here.
But coal miners, just to make a point, they don't get to
decide what type mining the company does. The company decides
that.
One of the issues has been let us stop mountaintop mining,
and let us do deep mining. Well, if you can convert those jobs
that the people have right into that, that would be a good
point. The problem we have is we live in a competitive economic
environment. If a coal company shuts down any mine, whether it
is a deep mine or a mountaintop mine or a contour mine,
whatever it might be, long-wall mining, miner sections, they
close it down. What happens is it is like a jump ball in
basketball. Those jobs don't belong to West Virginia. They
don't belong to Kentucky. They don't belong to Wyoming. That
marketplace doesn't belong to West Virginia. That marketplace
doesn't belong to Wyoming.
The utility, once someone who is supplying to coal to them,
now say OK, who wants to fill this order. And the truth is, if
you go back and look from the passage, you talk about
unintended consequences, I would suggest to you the 1990 Clean
Air Act had some unintended consequences here. We lobbied here
to require technology to be placed--and it was available on
every utility in the United States. And we lost that fight.
But what happened is coal mines in northern West Virginia
closed. Coal mines in western Kentucky closed. All the mining
industry in Illinois shut down. The mining in Indiana shut
down. Did mining stop? No. The mining shifted from traditional
deep mines in those areas to the Powder River Basin. And it is
good for Wyoming, but it is not very labor-intensive in
Wyoming, because it is low-sulfur coal. So we displaced all
those coal miners who used to belong to our union. We didn't
get as good a result with respect to reducing sulphur nitrite,
which we were attempting to do with the passage of the Clean
Air Act. And we lost all these jobs. And then we had the
problem that Congressman Rahall and I have been trying to deal
with since the late eighties and early nineties, is what do we
do with all these people who lost their jobs and lost their
healthcare in the Appalachian communities.
So one of the things we have to be very careful with, the
mentality, if we close some type of mining down, we are just
going to shift that from Boone County over to Logan County, and
we will all still have these jobs. It won't happen. Those
markets will be made available. And what has happened here,
there is more coal being mined, as we speak, west of the
Mississippi River than east of the Mississippi River. And for
the first couple hundred years of our history, that wasn't the
case. But that is a direct, unintended consequence of shifting
markets and shifting jobs from West Virginia, Ohio,
Pennsylvania, Indiana, Illinois, and western Kentucky to west
of the Mississippi River with the passage of the Clean Air Act.
And if you can show me, or if somebody can have a
conversation with me on how we are going to keep these people
working. One of the things that happens to me, put yourself in
my position, I have been around a long time. I started mining
coal in 1971. I hate to be this long, but I have to make this
point. I apologize.
I started mining coal in 1971. People don't call me
President that is in our union; they call me Cecil. Because we
have known each other for 30 years. And I get a call from
somebody I have known for 30 years, been in our union 30 years,
and say hey, they are closing our mine down. Which side am I
supposed to be on in that fight? I have to be on the side of
the union members that I have known for 30 years.
I don't want to fight with somebody else. I mean, a lot of
the people are on the other side of this issue, and I have
great respect for them. But when you start saying well, we are
going to put your members out of a job, there is only one place
for the union president to be. If you get a union president who
is not there, he is probably a person who shouldn't be
representing workers.
So to answer your question in short, I think it is a
difficult proposition. That is utopia, and that is what we
would like to do, but it is hard, because we have all been
through this for the last 30 years. This is not a new issue for
us, trying to figure out how to keep jobs and dealing with the
environment.
We predicted this, by the way, when we were up here--we
were much younger then--when we were up here in 1990, saying we
think there is going to be a tremendous job shift here. We
think these jobs going west of the Mississippi River, and all
these communities are going to be devastated. And guess what,
they were. We have tried to recover from that, but it has made
it more difficult.
Mr. Inslee. Thank you.
The Chairman. Mr. Pearce?
Mr. Pearce. Mr. Chairman, in response to your question, and
I appreciate that, section 472 is where I drew the comments
from that amends the Coastal Zone Management Act of 1972 by
allowing for climate change. And specifically, as we go through
the wording, in paragraph one it provides the assistance on
down to a state that, to minimize the contributions to climate
change and to prepare for and reduce the negative consequences
that may result from climate change in the coastal zone, in our
attempt to amend the Act and take this provision or somehow
limit it, that was our point. That this section is going to
allow the coastal states to go to the non-coastal states in
saying that you are affecting us, you are affecting our
management zone by your output of carbons. And we will then
effect those negative consequences--line 21.
I still feel like that with your question, that this does
have a serious impact and a serious implication. I understand
what your questions are, but the bill nowhere mentions, in this
section, simply limiting to offshore production. It is a very
broad application. And that is then the reason that we then
submitted the amendment, to tighten it up or avoid the adverse
impacts. Because I think that we all want to protect the
environment, but we do need to be aware of what is taking place
here.
The entire State of Florida is defined as a coastal zone,
and so that gives us some understanding of the broadness of
this. And I would yield to questions from the Chairman, but
appreciate his observations.
The Chairman. The Chair will respond to the language that
the gentleman just read from our energy bill that came out of
our committee.
We in no way are granting the coastal zone states any
regulatory authority. It does say in the coastal zone, those
decisions are to be made. It is bootstrapping to arrive at the
conclusion that any regulatory authority is in that provision.
So the Chair would respond in that manner to the
gentleman's concerns.
Cecil, thank you.
Mr. Roberts. Well, thank you. I am sorry I got so----
The Chairman. This particular point did not involve you.
Mr. Roberts. I am sorry I got--two things I didn't
understand. The Ranking Member's original question, I apologize
for that. And I apologize for being so--I have been accused of
this--long-winded with the answer.
But I want to make sure before I leave here that you and
this committee and all Members of Congress, on behalf of the
original 112,000 retirees whose healthcare was at risk, that we
appreciate so much what you have done for us. Thank you.
The Chairman. Thank you for being with us. We do have a
series of votes on the House Floor at this time, probably 30
minutes at least worth of votes. So with the concurrence of the
minority, it would be the Chair's idea, and the patience and
forbearance of the panels yet to be heard from, and I
appreciate that, that we recess and come back at 1:30. I am
sorry, 12:30. What is that, 11:30?
Mr. Pearce. It is 12:30.
The Chairman. It is 12:30 now. We will come back at 1:30.
The Committee stands in recess.
[Recess.]
The Chairman. The Committee will resume its hearing, and
call to the witness table panel number four, composed of Walton
D. Morris, Jr., of Charlottesville, Virginia; Joe Lovett, the
Executive Director, Appalachian Center for the Economy and the
Environment, Lewisburg, West Virginia; Brian Wright, Coal
Policy Director, Hoosier Environmental Council, Indianapolis,
Indiana; and Ellen Pfister, Shepherd, Montana, on behalf of the
Northern Plains Resource Council and the Western Organization
of Resource Councils.
Lady and gentlemen, we have your prepared testimony. It
will be made part of the record as if actually read. And you
may proceed as you desire. Mr. Morris, you want to start first?
STATEMENT OF WALTON D. MORRIS, JR.,
CHARLOTTESVILLE, VIRGINIA
Mr. Morris. Good afternoon, Mr. Chairman. Thank you for the
opportunity to speak here today.
I am Walton Morris, an attorney based in Charlottesville,
Virginia. For the past 17 years I have practiced law on behalf
of environmental organizations and the residents of America's
coalfields in matters arising under the Surface Mining Act.
Earlier in my career, I served for nine years in the
Solicitor's Office of the Department of the Interior. During
that time I litigated, or supervised other lawyers who
litigated, most of the important early cases involving the
Surface Mining Act.
Today I wish to address the history, current status, and
future of the Surface Mining Act's public participation
provisions.
The Committee's report on the bill that became the Surface
Mining Act correctly concluded that the success or failure of a
national coal surface mining regulation program will depend, to
a significant extent, on the role played by citizens in the
regulatory process. With that conviction in mind, Congress
established a broad range of public participation procedures
meant to empower coalfield citizens, to supplement governmental
regulatory efforts, and ensure effective oversight of state
programs.
Soon after Congress enacted the Surface Mining Act,
coalfield citizens actually began to use these provisions; to
play precisely the role that Congress expected. Citizen efforts
led to important successes in rulemaking, the maintenance of
state programs, on-the-ground enforcement actions, and
designation of lands as unsuitable for coal mining. These
successes demonstrated the wisdom and practicality of
Congress's plan for vigorous public participation.
However, even as citizens successfully invoked the Surface
Mining Act's public participation provisions, obstacles began
to appear. Rather than valuing the help that citizens provide,
OSM grew hostile to public prodding, and has remained so, even
to the point of stonewalling or unreasonably delaying response
to the public's requests for basic information. As a result,
the inspection and enforcement requests on both the state and
Federal level are now turned aside for entirely unjustified
reasons, or ignored altogether.
To compound matters, a host of misguided administrative and
judicial decisions have curtailed the public's ability to
compel inspection or enforcement action, or to correct state
program deficiencies through actions in Federal Court. As a
result, public participation under the Surface Mining Act has
become so hobbled that, as a practical matter, citizens can no
longer play the important supporting role that Congress
envisioned.
For example, today OSM continues to withhold copies of
permit application materials from New Mexico citizens despite a
January 11, 2007, administrative decision directing OSM to make
the requested documents available no later than 20 days from
the date of that decision.
Today OSM, as the regulatory authority in Tennessee,
routinely delays citizen requests to review permit applications
and inspection documents. And the agency refuses to allow
citizens to speak to mine inspectors regarding conditions that
the mine inspectors have seen on the ground.
Today the state regulatory authority in Virginia continues
to refuse to investigate citizen allegations that a coal
operator is mining without a permit on the incredible theory
that the state has no obligation to inspect, because it hasn't
issued a permit yet for the mining operation in question.
Today Virginia's field office continues to ignore a citizen
request for inspection and enforcement in the very same manner,
even though the time for responding, under OSM's own
regulations, has long since passed.
Today coalfield citizens in West Virginia face the
crippling expense and uncertainty of a second round of
administrative hearings in two appeals before a so-called
multiple interest board, solely because the testimony of state
and industry witnesses in the first round of hearings does not
support legal arguments that the state regulatory authority
subsequently dreamed up in a desperate attempt to prevail in
the case.
Today citizens throughout America's coalfields are
compelled to address environmental problems caused by surface
coal mining operations under such statutes as the Clean Water
Act, or the Resource Conservation and Recovery Act, because
courts have foreclosed the use of the Surface Mining Act's
citizen suit provision against state regulators who fail to
perform mandatory duties that the Surface Mining Act imposes on
those officials.
To restore public participation as an effective supplement
to governmental regulatory efforts, and as a means for securing
effective oversight of state programs, I urge this committee,
and the Congress as a whole, to investigate and then counteract
agency stonewalling of citizen requests for information,
unwarranted deference to state regulators by Federal officials
who are charged with oversight of state programs, the injustice
of administrative review before state multiple-interest boards,
and recent judicial misinterpretations of the statute.
I have addressed these problems more specifically in my
written statement, and so I will now yield to my colleagues on
this panel.
Thank you again, Mr. Chairman, for the opportunity to
speak.
[The prepared statement of Mr. Morris follows:]
Statement of Walton D. Morris, Jr., Attorney-at-Law
I am Walton Morris, an attorney based in Charlottesville, Virginia.
For the past seventeen years, I have practiced law on behalf of
environmental organizations and residents of America's coalfields in
cases arising under the Surface Mining Control and Reclamation Act of
1977 (``the Surface Mining Act''). Earlier in my career, I served for
nine years in the Solicitor's Office of the Department of the Interior.
During that time I litigated, or supervised other lawyers who
litigated, most of the important early cases involving the Surface
Mining Act.
Introduction
This Committee's report on the bill that became the Surface Mining
Act concluded that:
The success or failure of a national coal surface mining
regulation program will depend, to a significant extent, on the
role played by citizens in the regulatory process. The State or
Department of Interior can employ only so may inspectors, only
a limited number of inspections can be made on a regular basis
and only a limited amount of information can be required in a
permit or bond release application or elicited at a
hearing....Thus in imposing several provisions which
contemplate active citizen involvement, the committee is
carrying out its conviction that the participation of private
citizens is a vital factor in the regulatory program as
established by the act.
With that conviction in mind, and mindful also that ``increased
opportunity for citizens to participate in the enforcement program are
necessary to assure that the old patterns of minimal [state]
enforcement are not repeated,'' Congress established a broad range of
public participation procedures meant to empower coalfield citizens to
supplement governmental regulatory efforts and ensure effective
oversight of approved state programs. These procedures implement the
public's statutory rights:
(1) to comment on proposed regulations and obtain judicial review
of final rulemaking;
(2) to comment on proposed state program provisions and to obtain
judicial review of decisions to approve them;
(3) to review and obtain copies of permit applications, inspection
materials, and other information obtained or developed by the
regulatory authority;
(4) to comment on permit applications and obtain administrative
and judicial review of permitting decisions;
(5) to notify federal officials of violations of the Surface
Mining Act or its implementing regulations, to participate in
inspections conducted as a result of such notices, and to obtain review
of adverse inspection or enforcement decisions; and
(6) to bring civil actions to compel coal operators to obey the
law or to compel regulatory officials to perform any of the mandatory,
non-discretionary duties the statute imposes on them.
Soon after Congress enacted the Surface Mining Act, coalfield
citizens began to use the statute's public participation provisions to
play precisely the role that Congress expected. Citizen comments on
OSM's initial and permanent program regulations helped shape those
rules into effective tools which ended many of the abuses that
bedeviled America's coalfields. In litigation challenging rules that
OSM improperly adopted, coalfield citizens further ensured that federal
surface mining regulations accurately reflected Congress's intent.
In other litigation coalfield citizens reached settlements with OSM
which led to correction of the coal industry's gross abuse of the so-
called ``two acre'' exemption and to creation of OSM's Applicant/
Violator System Office, which began the process of holding major coal
producers accountable for environmental violations committed by
business entities that those producers owned or controlled--generally,
their ``contract miners.'' Additionally, citizens prosecuted civil
actions that ultimately caused State officials to strengthen state
regulatory programs that had fallen far short of ``minimum floor'' that
Congress meant the Surface Mining Act to establish.
In the administrative sphere, citizens filed inspection and
enforcement requests and appeals to the Interior Board of Surface
Mining Appeals (later the Board of Land Appeals) that ultimately led
OSM and state regulators to compel major coal producers to reclaim
mines that their contract miners had abandoned and to pay delinquent
abandoned mine land fees associated with those mines. These and many
other citizen successes proved the wisdom and practicality of
Congress's plan to supplement governmental enforcement of the Surface
Mining Act with the efforts of empowered coalfield citizens.
The Current Impairment of Public Participation Under the Surface Mining
Act
Even as citizens used the Surface Mining Act's public participation
provisions to achieve numerous successes, obstacles to effective public
participation began to appear. Rather than valuing the help citizens
provide, OSM became hostile to public prodding and has remained so--
even to the point of stonewalling or unreasonably delaying response to
the public's requests for basic information in instances where OSM is
the regulatory authority. Inspection and enforcement requests on both
the state and federal level are turned aside for entirely unjustified
reasons or ignored altogether. To compound matters, a host of misguided
administrative and judicial decisions have curtailed the public's
ability to compel inspection or enforcement action or to correct state
program deficiencies through actions in federal court. As a result,
public participation under the Surface Mining Act has become so hobbled
that, as a practical matter, citizens can no longer play the important
supporting role that Congress envisioned. For example:
Today, OSM continues to withhold copies of permit
application materials from New Mexico citizens despite a January 11,
2007, administrative decision directing OSM to make the requested
documents available no later than twenty working days from that date;
Today, OSM, as the regulatory authority in Tennessee,
routinely delays citizen requests to review permit applications and
inspection documents, and the agency refuses to allow citizens to speak
to mine inspectors regarding the conditions they have observed on the
ground;
Today, the state regulatory authority in Virginia
continues to refuse to investigate citizen allegations that a coal
operator is conducting mining operations without a permit--on the
incredible theory that the State has no obligation to inspect because
it has not issued a permit for the mine;
Today, OSM's Virginia field office continues to ignore a
citizen request for inspection and enforcement in the same matter, even
though the time for responding under OSM's regulations has long since
expired, and OSM continues to question in other proceedings whether the
agency must make any response at all to a citizen complaint that OSM
deems insufficient--even a response that simply informs the complainant
of OSM's view;
Today, coalfield citizens in West Virginia face the
crippling expense and uncertainty of a second round of administrative
hearings in two appeals before a so-called ``multiple interest'' board,
solely because the testimony of State and industry witnesses in the
initial hearings did not support legal arguments that the state
regulatory authority subsequently dreamed up in a desperate attempt to
prevail;
Today, citizens throughout America's coalfields are
compelled to address environmental problems caused by surface coal
mining operations under the Clean Water Act, the Resource Conservation
and Recovery Act, or other federal statutes because the courts have
foreclosed the use of the Surface Mining Act's citizen suit provision
against state regulators who fail to perform mandatory duties that the
Surface Mining Act imposes on them.
To restore public participation as an effective supplement to
governmental regulatory efforts and a means for securing appropriate
oversight of state programs, I urge this Committee and the Congress as
whole to investigate and then counteract agency stonewalling of
information requests, unwarranted deference to state regulators by
federal officials charged with oversight of state programs, the
injustice of administrative review before state ``multiple interest''
boards, and judicial misinterpretation of the statute. I address each
of these problems in turn.
Stonewalling Information Requests
Without ready access to permit applications, inspection reports,
enforcement citations, and other documents generated in the regulatory
process, the public cannot effectively participate in the regulatory
scheme. For the most part, state regulatory authorities provide
documents on request without significant delay and in convenient
formats for the public's use. In marked contrast, OSM currently appears
engaged in a puzzling effort to hamper citizen participation by denying
information requests that state regulatory authorities fulfill
routinely as a matter of ordinary business. As mentioned above, the
agency continues to ignore its clear duty to produce permitting
materials for New Mexico citizens concerned about mining operations on
Indian lands in that State, where OSM is the regulatory authority.
In Tennessee, where OSM also is the regulatory authority, the
agency has imposed an arbitrary two-day waiting period before it will
allow any citizen to review permitting, inspection, or enforcement
materials. Far worse, the agency has refused to allow citizens to speak
with mining inspectors regarding on-the-ground conditions at mines that
may adversely affect the citizens' interests. Conversations between
citizens and mine inspectors employed by state regulatory authorities
are commonplace and highly beneficial to all concerned, because mine
inspectors often correct misunderstandings and, in other instances,
confirm facts on which citizens subsequently rely in making inspection
or enforcement requests.
The only conceivable reason for OSM's stonewalling of citizen
requests for information about specific mining operations is to curtail
or misdirect efforts by the public to participate in the regulatory
scheme in the manner Congress expressly intended. In the interest of
effective public participation, I ask this Committee to investigate the
marked differences between OSM's performance in this area and that of
state regulatory authorities and then to take appropriate action to
cause OSM to provide requested information without undue delay or
restriction.
OSM's Unwarranted Deference to State Regulators
After noting that ``[e]ffective enforcement is central to the
success for the surface mining control program contemplated by H.R.
2,'' this Committee's report on the bill that became the Surface Mining
Act emphasized that ``a limited Federal oversight role as well as
increased opportunities for citizens to participate in the enforcement
program are necessary to assure that the old patterns of minimal
[State] enforcement are not repeated.'' The essence of both effective
Federal oversight and citizen supplementation of governmental
enforcement is a thorough, independent assessment by OSM of whether a
violation exists and whether prescribed remedial measures are adequate
to correct it.
To oversee a state enforcement program effectively in the context
of a citizen's request for inspection and enforcement, OSM must take a
critical, independent look at the State's response to each ten-day
notice. Where any doubt remains whether an alleged violation actually
exists or whether prescribed remedial action is sufficient to correct a
violation, OSM can meet the Surface Mining Act's enforcement mandate
only by conducting a federal inspection and deciding the matter on the
basis of OSM's independent evaluation of the facts and the law. If OSM
merely defers to the State in resolving doubts about the validity of a
citizen complaint, the agency will, for that reason alone, overlook a
multitude of violations that an independent assessment of the facts and
the law would detect.
Despite this straightforward principle, OSM in 1988 formally
adopted the ``arbitrary or capricious'' standard for evaluating the
responses of state regulatory authorities to ten-day notices that OSM
issues in response to citizen requests for inspection and enforcement
action. From that point forward, OSM has systematically relied on the
``arbitrary and capricious'' standard as a basis for preferring a
State's paper denial that a violation exists over a citizen's assertion
to the contrary. In such situations OSM refuses to conduct the federal
inspection necessary to a make a thorough, fully informed, and
independent assessment of whether the citizen's complaint is valid.
Indeed, under OSM's current standard for evaluating state responses to
citizen complaints, the agency rarely, if ever, permits the complaining
citizen to rebut the State's assertions. As a result, citizen efforts
to supplement or strengthen enforcement of the Surface Mining Act are
often stymied without the federal inspection that Congress intended OSM
generally to make.
Section 521(a) of the Surface Mining Act, which prescribes the ten-
day notice process, contains not one word authorizing OSM to defer to
the response of a state regulatory authority where doubt remains
regarding the existence of a violation or the effectiveness of remedial
action that a State has ordered where the violation is not in doubt.
The statute authorizes OSM to decline to inspect only where a State's
response to a ten-day notice firmly establishes either that the State
has taken appropriate action to cause the violation to be corrected or
that the State has ``good cause'' for failing to take such action.
Deference to the views of state regulatory officials is inherently
incompatible with the vigorous, independent oversight process that
Section 521(a) prescribes. This is so because deference requires OSM to
accept a State's ten-day notice response even where, on balance, OSM
would decide the matter differently. Both OSM's role as watchdog of
America's coalfields and the need for effective citizen participation
in enforcing the Surface Mining Act demand that OSM inspect in such
circumstances and respond based on conditions on the ground rather than
simply defer to whatever view State officials may express on paper.
To revive effective public participation in overseeing state
efforts to enforce the requirements of the Surface Mining Act, I urge
this Committee and Congress to consider and enact an amendment to the
statute which forbids OSM from deferring to the responses of state
regulatory authorities to ten-day notices. The Committee and Congress
should require instead that OSM conduct a federal inspection wherever a
State's response does not demonstrate to a certainty that an alleged
violation does not exist or that there is no need for additional
remedial measures.
The Injustice of Administrative Review Before State ``Multiple
Interest'' Boards
Where OSM is the regulatory authority or acts in its oversight
capacity, citizens may obtain administrative review of adverse agency
decisions before full-time administrative law judges who are free of
any conflict of interest in matters that come before them and who
generally have sufficient training and resources to provide effective
review consistent with the due process of law. In marked contrast,
administrative review of the decisions of many state regulatory
authorities occurs before ``multiple interest'' boards whose members
are not ``employees'' of the regulatory authority for conflict-of-
interest purposes and who, in fact, own coal mines or are employed by
those who do. Although such boards typically have one or more members
drawn from environmental protection organizations, State multiple
interest boards are generally, if not uniformly, dominated by
majorities drawn from the coal industry, consultants to the coal
industry, and other pro-development interests. As a result, citizens
are compelled to seek administrative review of adverse permitting or
enforcement decisions before tribunals that are manifestly biased
against them.
Wholly apart from pro-industry bias, State multiple interest boards
typically do not have a majority of members who have the necessary
training or experience to conduct evidentiary hearings or to issue
review decisions in a manner consistent with the requirements of
applicable administrative procedure statutes. Consequently, citizens
who seek review before these boards are often prohibited from
introducing vital evidence or else see the board wholly ignore
citizens' evidence in reaching a decision. The procedural errors that
these boards routinely commit in conducting hearings and issuing
decisions trigger judicial review in an inordinately large number of
cases, no matter who prevails before the board. Judicial review in such
circumstances results only in remand to the multiple interest board for
yet another hearing and decision, with no promise that the second round
will not end up as procedurally flawed as the first.
For all these reasons, state multiple interest boards are where
public participation in state regulatory programs comes to die. The
substantial financial expense and time investment necessary to pursue
administrative review in the first place becomes overwhelming to
citizens where review results in procedurally flawed decisions that
must be reviewed again once they are overturned on judicial review. As
mentioned earlier, one multiple interest board has recently ordered a
second round of hearings in two appeals for the sole stated reason that
the record made in the first round of hearings did not support
arguments that the State's lawyers later decided to make. Add to all
this the fatal anti-citizen bias of these boards and it is easy to see
why citizen participation in States that have multiple interest boards
does not accomplish what Congress hoped.
To secure the benefit of meaningful public participation in all
state regulatory programs, I urge this Committee to investigate the
role of multiple interest boards in stifling effective citizen
involvement. Based on that investigation, I urge the Committee and the
Congress to amend the Surface Mining Act to prohibit multiple interest
boards from conducting administrative review of the decisions of state
regulatory authorities and to require instead that administrative
review occur before administrative law judges who are free of conflicts
of interest and who are adequately trained to conduct hearings in
accordance with state administrative procedure requirements.
Judicial Misinterpretation of the Surface Mining Act's Citizen Suit
Provision
In reporting the bill that became the Surface Mining Act, this
Committee found that ``providing citizens access to administrative
appellate procedures and the courts is a practical and legitimate
method of assuring the regulatory authority's compliance with the
requirements of the act.'' Accordingly, the Surface Mining Act includes
a provision authorizing any adversely affected person to bring an
action in federal court to compel ``the appropriate State regulatory
authority'' to perform any act or duty under the statute which is not
discretionary.
From enactment of the statute until 2003, citizens brought actions
under the Surface Mining Act's citizen suit provision which resulted in
settlements or court orders that corrected a host of shortfalls on the
state level and strengthened overall administration of the statute.
Beginning in 2003, however, a string of judicial decisions has
misinterpreted the scope of the citizen suit provision and rendered its
authorization of actions against state regulatory authorities virtually
a dead letter.
These decisions mistakenly construe state regulatory programs that
implement the Surface Mining Act as purely state law rather than as
both state law and federal law by virtue of the Secretary's approval of
them and their codification in the Code of Federal Regulations. Based
on the misinterpretation of state regulatory programs as purely state
law, the pertinent judicial decisions reason that the Eleventh
Amendment bars actions that the Surface Mining Act expressly authorizes
citizens to bring against State officials. Accordingly, these decisions
close the federal courts to citizen suits that would otherwise identify
regulatory lapses on the part of State officials and compel them to
correct those lapses.
To restore the ability of citizens ``keep regulators on their
toes'' and ensure implementation of state regulatory programs in
accordance with the requirements of the Surface Mining Act, I urge this
Committee and Congress as whole to consider and enact appropriate
amendments to correct, in any one of several possible ways, the
judicial misinterpretation of statute I have just described. The
viability of public participation in the oversight of state programs
depends on the enactment of such an amendment as soon as possible.
Conclusion
I thank the Committee for the opportunity to address these issues,
and I look forward with hope to the Committee's response. If I may
provide additional information, I will be pleased to do so on request.
______
[Additional information submitted for the record by Mr.
Morris follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Joe.
STATEMENT OF JOE LOVETT, EXECUTIVE DIRECTOR, APPALACHIAN CENTER
FOR THE ECONOMY AND THE ENVIRONMENT, LEWISBURG, WEST VIRGINIA
Mr. Lovett. Good afternoon, Mr. Chairman, and thank you for
the opportunity to appear here today.
First of all, after listening to OSM and state regulators
here this morning, one would think that all is well with
environmental regulation of coal mining in the Appalachian
coal-bearing regions. Sadly, nothing could be further from the
truth.
Bureaucratic double-speak and sugar-coating reclamation
failures, and a few carefully chosen pictures, cannot change
the facts. Mountaintop removal is destroying a huge swath of
Appalachia forever, and the regulators are complicit in this
disaster.
The Surface Mining Act is an imperfect, but useful, law.
The problem is that the Bush Administration's OSM has
completely refused to enforce that Act. The outright failure of
OSM to carry out its duties is devastating our region. In fact,
I believe that if OSM disappeared tomorrow, there would be no
negative impact to the environment. OSM has become a useless
agency, and as such, has rendered SMCRA itself useless.
Appalachian coal mining has worldwide effects. Burning coal
from only three Appalachian states--West Virginia, Kentucky,
and Virginia--accounted for approximately 15 percent of total
CO2 emissions generated in the entire United States
from all fossil fuels in 2001. Burning coal produces more CO-2
per BTU than any other energy source, and now accounts for more
than 50 percent of U.S. electricity consumption.
If you care about the future of our planet's climate, you
must care about burning coal. Coal to liquids would be an added
insult to our region. CO-2 produced from coal to liquids is
tremendous, but it would also exacerbate mountaintop removal
mining.
The coal-rich mountains of central Appalachia are home to
generations-old communities, and contain beautiful hollows
through which thousands of miles of pristine and ecologically
rich mountain streams flow. Mountaintop removal mining
carelessly lays waste to our mountain environment and
communities.
This deforestation is not only an ecological loss, but is a
permanent blow to a sustainable forest economy in a region in
desperate need of long-term economic development. Mountaintop
removal has already transformed huge expanses of one of the
oldest mountain ranges in the world, into a moonscape of barren
plateaus and rubble.
Appalachian coal is cheap only because OSM and other
agencies ignore their duty to enforce the Act, and allow the
coal industry to pass its costs on to workers, communities, and
local and state economies, as well as the environment. The
mining industry naturally takes advantage of the Federal
regulators' failure to enforce the law. One of the worst
consequences of OSM's disregard of the law is the prevalence of
these mountaintop removal mines, and the attendant large valley
fills.
Mountaintop removal mines are changing the landform of our
region in a way more profound than any change occurring in the
United States. A recent study singles out mountaintop removal
and valley fills in West Virginia and adjacent states as by far
the greatest contributor to earth-moving in the United States.
Mountaintop removal and other large surface mining
operations have been authorized by permitting authorities that
have allowed the destruction of over 2,000 miles of our
streams, and have allowed the destruction of over a million
acres of our forests. These headwater streams and forests, the
most productive and diverse tempered hardwood forests in the
world, are valuable long-term economic assets that are being
lost forever. Future generations will not forgive us for what
we are now doing to the Appalachian Mountains.
In a few decades we have destroyed mountains and forests
that have taken hundreds of thousands of years to create.
Appalachian mining may cumulatively impact 1.4 million acres,
or 11.5 percent of the area being mined, according to a Federal
EIS.
I will just touch on one big problem with the OSM's
regulation, and that is its failure to enforce the rules
requiring restoration to approximate original contour. The Act
requires that the post-mining land generally resemble the
surface configuration of the pre-mining land. Anybody can look
at these mines and know that is not the case. The valley fills
that are part of these operations look like no landscape on
earth, much less like our Appalachian Mountains.
The agency's continued issuance of these permits is a clear
violation of the Act. There are several other violations of the
Act cited in my statement, written statement, and I won't
bother to go through them here.
I will just summarize by saying that what we heard about
reclamation here today is also a sham, and I would like to take
the opportunity to invite members of this committee and its
staff to come to West Virginia to witness the devastation
caused by these mountaintop removal mines, and appreciate the
incalculable harm that OSM's failure to enforce the Act has
done to our region.
Contrary to what we heard OSM say here today, and what you
will undoubtedly hear from the industry, reclamation, to put it
kindly, is a joke in our state. You need to see it to believe
it.
Thank you for your time.
[The prepared statement of Mr. Lovett follows:]
Statement of Joe Lovett, Executive Director,
Appalachian Center for the Economy and the Environment
Introduction
Good morning Chairman Rahall and members of the Committee. Thank
you for the opportunity to testify today. My name is Joe Lovett and I
am the Executive Director of the Appalachian Center for the Economy and
the Environment, a law and policy center located in Lewisburg, West
Virginia. I am also a lawyer who has been attempting to enforce surface
coal mining and other environmental laws that federal and state
regulators refuse to enforce in Appalachia.
From its inception in 2001, the Appalachian Center has been at the
forefront of the battle to end the abuses associated with the
devastating method of coal mining known as mountaintop removal. The
Center serves low-income citizens, generations-old communities, and
local and grassroots groups of central Appalachia.
Unfortunately, it is necessary for us to direct much of our work to
rein in federal agencies, whose refusal to enforce environmental laws
in our region permits the environmental devastation and community
destruction that results from mountaintop removal coal mining.
In the abstract, the Surface Mining Control and Reclamation Act is
an imperfect but useful law. Since at least 2001, however, the Office
of Surface Mining Reclamation and Enforcement has refused to enforce
the Act. The outright failure of OSM to carry out its duties has had
devastating impacts on Appalachia.
Appalachian coal has world-wide effects: burning coal from only
three Appalachian states (West Virginia, Kentucky, and Virginia)
accounted for approximately 15% of the total CO2 emissions
generated in the entire United States from all fossil fuel sources
(including petroleum) in 2001. Burning coal produces more
CO2 per BTU than any other energy source and now accounts
for more than 50% of U.S. electric consumption.
The local impacts of coal mining, particularly mountaintop removal
mining, are just as devastating to the environment of the Appalachian
region as coal burning is to the global climate.
The coal-rich mountains of central Appalachia are home to
generations-old communities and contain beautiful hollows through which
thousands of pristine and ecologically rich mountain streams flow.
Mountaintop removal mining carelessly lays waste to our mountain
environment and communities. The deforestation is not only an
ecological loss, but a permanent blow to a sustainable forest economy
in a region in desperate need of long-term economic development.
Mountaintop removal has already transformed huge expanses of one of the
oldest mountain ranges in the world into a moonscape of barren plateaus
and rubble.
Appalachian coal is ``cheap'' because OSM ignores its duty to
enforce the Act and allows the coal industry to pass its costs onto
workers, communities, local and state economies, and the environment.
The mining industry naturally takes advantage of federal regulators'
failure to enforce the law. One of the worst consequences of OSM's
disregard for the law is the prevalence of mountaintop removal mines,
large strip mines with attendant valley fills.
Mountaintop Removal Coal Mining
Disregarding human and environmental costs, mountaintop removal
coal mining as currently practiced in Appalachia eradicates forests,
razes mountains, fills streams and valleys, poisons air and water, and
destroys local residents' lives. Toxic mine pollution contaminates
streams and groundwater; hunting and fishing grounds are destroyed.
Because the large-scale deforestation integral to mountaintop removal
takes away natural flood protections, formerly manageable storms
frequently inundate and demolish downstream homes.
Mountaintop removal mines are changing the landform of our region
in a way more profound than is occurring in any other area. A recent
study singles out mountaintop removal mining and valley fills in West
Virginia and adjacent states as by far the greatest contributor to
earth moving activity in the United States. Hooke, R.L. 1999, ``Spatial
distribution of human geomorphic activity in the United States:
Comparison with rivers, Earth Surface Processes and Landforms 24: 687-
92. In other words more earth is moved in this region than in
intensively developed areas like southern California or the Northeast
corridor.
Mountaintop removal and other large scale surface mining operations
have been authorized by permitting authorities that have allowed the
destruction of over 2,000 miles of Appalachian streams and more than
1,500 square miles of forested mountain terrain. These headwater steams
and forests (the most productive and diverse temperate hardwood forests
in the world) are valuable long-term economic assets to the local
communities and to the Nation and are being forever lost.
Environmental Impact Statement on Mountaintop Removal
Because of litigation that I brought in 1998, a programmatic
Environmental Impact Statement on mountaintop removal was performed by
EPA, the Army Corps of Engineers and OSM. The EIS found that present
and future mining in Appalachia may cumulatively impact 1.4 million
acres, or 11.5% of the study area, and that the destruction of these
nearly 1.5 million acres of forest is profound and permanent because
``unlike traditional logging activities associated with management of
hardwood forest, when mining occurs, the tree, stump, root, and growth
medium supporting the forest are disrupted and removed in their
entirety.''
The EIS also determined that mountaintop removal mining causes
``fundamental changes to the terrestrial environment,'' and
``significantly affect[s] the landscape mosaic,'' with post-mining
conditions ``drastically different'' from pre-mining conditions.
Further, mining impacts on the nutrient cycling function of headwaters
streams ``are of great concern'' and mining impacts to habitat of
interior forest bird species could have ``extreme ecological
significance.''
The EIS further concluded that mining could impact 244 terrestrial
species, including, for example, 1.2 billion individual salamanders,
and that the loss of the genetic diversity of these affected species
``would have a disproportionately large impact on the total aquatic
genetic diversity of the nation.'' Finally, the EIS observed that
valley fills are strongly associated with violations of water quality
standards for selenium, a toxic metal that bioaccumulates in aquatic
life. All 66 selenium violations identified in the EIS were downstream
from valley fills, and no other tested sites had selenium violations.
OSM's response to these devastating conclusions was to further
weaken its enforcement of the Act in Appalachia.
In 2001 and 2002, the federal agencies responsible for regulating
mountaintop removal weakened the EIS and did not proceed with necessary
scientific studies when they realized that the science was showing that
mountaintop removal could not be practiced without devastating the
environment and economy of our region. The agencies simply halted the
economic study that was crucial to the EIS when it became apparent that
the results were not what OSM wanted them to be.
In sum, the EIS was supposed to demonstrate the environmental and
economic impacts of large scale strip mining on Appalachia and propose
ways to protect the environment and mitigate the impacts of mining on
the region. In spite of the fact that the environmental studies that
were performed all showed significant harm to the environment, OSM
guided the other agencies involved to make permits easier for mining
operators to receive. OSM ignored the science and turned the EIS on its
head.
Because of OSM's role in this process, we still desperately need an
adequate and impartial EIS to be performed to demonstrate the far
reaching impacts this form of mining is having on the Appalachian
region.
Approximate Original Contour
The heart of the Surface Mining Control and Reclamation Act is the
requirement that mining companies must restore surface mines to
approximate original contour, or AOC. If mines are restored to AOC, the
disturbed area is smaller, valley fills and stream impacts are reduced.
The Act provides that approximate original contour is the surface
configuration achieved by backfilling and grading of the mined area so
that the reclaimed area closely resembles the general surface
configuration of the land prior to mining and blends into and
complements the drainage pattern of the surrounding terrain.
Remarkably, there are few, if any, large surface mines in
Appalachia that comply with this basic requirement. Instead, mining
operators, with the acquiescence of OSM, thumb their noses at the law
and create monstrous valley fills and sawed off mountains that more
closely resemble the surface of the moon than our lush, green hills.
Mountaintop removal mines are not required to restore the post
mining site to AOC. The Act sanctioned mountaintop removal mining, but
only in very limited circumstances. The Act requires that all mines be
restored to AOC unless the mining company shows that it will restore
the site to an industrial, commercial, agricultural, residential, or
public facility (including recreational facilities) use.
Almost no postmining land in Appalachia is put to any of these
uses. The post mining land is in isolated mountain areas, the land is
unstable for building and it will no longer support native vegetation.
There is no surface or groundwater available on the post mining sites
because the mountain has been blown to bits. In short, mountains and
valleys have been changed dramatically in contour so that they resemble
no surface configuration on Earth and the land is useless for future
development. Whether the mines are technically ``mountaintop removal
mines'' or not (and OSM has so bent the definition of ``mountaintop
removal'' that not all mines that have the affect of mountaintop
removal mines are classified as such), almost all Appalachian surface
mines fit this description. OSM has not lifted a finger to stop this
complete abuse of the most important provision of the Act.
Stream Buffer Zone
Another of the most important provisions of the Act requires that
no mines be permitted unless they prevent material damage to the
hydrologic balance off site and minimize disturbance on site. OSM
promulgated the stream buffer zone rule in 1983 to carry out the
Congressional mandate to protect the hydrologic balance.
The buffer zone rule, 30 C.F.R. 816.57, states that no land within
100 feet of a perennial stream or an intermittent stream may be
disturbed by surface mining unless the regulatory authority
specifically authorizes surface mining activities closer to, or
through, such a stream. The regulatory authority may authorize such
activities only upon finding that surface mining activities will not
cause or contribute to the violation of applicable State or Federal
water quality standards, and will not adversely affect the water
quantity and quality or other environmental resources of the stream.
On its face, this rule prohibits valley fills in intermittent and
perennial streams and, in 1999, a federal judge in West Virginia agreed
that this is what the rule means. That decision was reversed on appeal
for purely procedural reasons--the Court of Appeals did not reach the
merits.
To protect the coal industry, OSM is in the process of trying to
promulgate a new and weaker rule to override this 25 year old rule. It
is absurd to allow, as OSM has, more than 2,000 miles of mountain
streams to be permanently buried beneath mining waste and still claim
to be protecting the hydrologic balance. Rather than weakening the rule
to accommodate the mining industry, a responsible agency would force
the industry to conform to the law.
Cumulative Hydrologic Impacts
OSM is also charged with protecting the cumulative hydrological
integrity of the mining region. Again, OSM utterly fails to discharge
its duty to assure that states are performing adequate cumulative
hydrological impact analyses as the Act requires. For example,
according to information released by the Corps, by 2001 as much as two
percent--1,208 miles--of streams in Appalachia had been buried or
directly harmed by valley fills and over 1.5 million acres of forest
had been destroyed. This amounts to 11.5 percent of the land area in
the region encompassing eastern Kentucky, southern West Virginia,
western Virginia, and areas of eastern Tennessee. As a result of this
destruction of headwater streams, mountaintop removal mines
cumulatively devastate aquatic ecosystems. OSM has not attempted (and
has not forced the states to attempt) to analyze and minimize the
environmental harm of past, present, and reasonably foreseeable future
surface mining operations in Appalachia. These impacts include total
elimination of all aquatic life in buried streams, negative impacts on
the proper functioning of aquatic ecosystems (including fisheries
located downstream of mountaintop removal mining operations), and
impairment of the nutrient cycling function of headwater streams.
For example, in the Coal River watershed in West Virginia, existing
and pending surface mining permits cover 12.8% of the watershed. In the
Laurel Creek of the Coal River watershed, existing and pending surface
mining permits cover 28.6% of the watershed. Surface mining permits
including valley fills cover 14.5% of first order streams and 12% of
all streams in the Coal River watershed and surface mining permits
including valley fills cover 37.3% of first order streams and 27.9% of
all streams in the Laurel Creek watershed.
The United States Fish and Wildlife Service recognizes that
mountaintop removal mining results in forest loss and fragmentation
that is significant not only within the project area, but also
regionally and nationally. In particular, the mines cause a fundamental
change in the environment from forestland to grassland habitat, cause
significant adverse impacts to the affected species, cause loss and/or
reduced quality of biodiversity, and cause loss of bird, invertebrate,
amphibian, and mammalian habitat.
When Congress passed the Surface Mining Control and Reclamation Act
in 1977, it thought that it was enacting a law to protect the
environment and citizens of the region. OSM has used, and has allowed
the states to use, the Act as a perverse tool to justify the very harm
that Congress sought to prevent. The Members of Congress who voted to
pass the Act in 1977 could not have imagined the cumulative destruction
that would be visited on our region by the complete failure of the
regulators to enforce the Act.
Higher and Better Use and Topsoil
The Act requires that all postmining sites be restored either to
conditions that are capable of supporting the uses they were capable of
supporting before any mining or to higher or better uses. The Act also
requires operators to save and replace the topsoil found on the mining
site.
Again, OSM's record here is dismal. Our mountains have been reduced
to scrubland that will not support native hardwood tree species. Far
from requiring a higher or better use of that land, OSM has acquiesced
to allowing operators to turn the most productive temperate hardwood
forests in the world into useless and unproductive grasslands. One of
the reasons for the sham reclamation practices that are common practice
on Appalachian surface mines is OSM's failure to assure that operators
save and reuse the topsoil. Very few, if any operators, save the
topsoil as the law requires. Instead, they are permitted to use
``topsoil substitutes'' and dump the irreplaceable topsoil into the
bottoms of valley fills.
Economics
Mountaintop removal is also devastating the economy of the coal
bearing regions of Appalachia. In 1948, there were 125,669 coal mining
jobs in West Virginia and 168,589,033 tons of coal mined. In 1978,
there were still 62,982 coal mining jobs in West Virginia with only
84,696,048 tons mined. By 2005, however, only 17,992 of these jobs
remained despite the fact that coal production had again risen to
159,498,069 tons mined.
So, although coal production today is roughly the same as it was
sixty years ago, the number of coal mining jobs has decreased by more
than 85%. This job loss has been driven not by environmental production
or decreased production, but by coal operators themselves who have
replaced workers with machines and explosives. McDowell County, which
has produced more coal than any other county in West Virginia, is now
one of the poorest counties in the Nation. Far from being an economic
asset to communities, mountaintop removal devastates economies wherever
it occurs.
Summary
With increasing global demands for energy, the oppressive influence
of ``big coal'' has not weakened in our region since 1977. As the price
of coal increases and so-called ``clean coal'' and coal conversion
technologies are promoted, the pressure to evade the law and recklessly
permit mines will increase. The peak of world oil production, the
political vulnerability of the world's oil supply, and the increased
price of oil has quickly transformed the economics of the ``coal to
liquids'' industry. The United States has the largest coal reserves in
the world and we must control ourselves to protect the Earth and our
region.
There is no such thing as ``clean coal.'' Increased burning or
liquefying of coal will produce unsustainable levels of carbon dioxide.
Mountaintop removal mining destroys forever central Appalachia's
communities, forests, streams, and wildlife. The region is a ``hot
spot'' for migratory birds and the giant holes now being opened in the
forest canopy by mountaintop removal mining are devastating important
populations of migratory birds. To compound the problem, as the price
of coal rises, coal operators are today mining coal that until now was
too expensive to recover in the past. As the price of coal increases or
as mining technology becomes more ``efficient,'' coal seams that were
off limits in the past are coming on line. Mining those more
``marginal'' seams is even more environmentally harmful as coal
operators are able to blow up more mountains and move more earth to get
at ever thinner and deeper coal seams. The nation is at a tipping point
on energy and climate change policy and the impacts of coal mining on
Appalachia are an essential consideration in the development of an
environmentally responsible energy policy.
Conclusion
I am pleased to see that this Committee is conducting this hearing
on the thirtieth anniversary of the Act. I hope that it will actually
take action to compel OSM to discharge its duties. The absence of
energetic oversight invariably leads to problems, particularly with
agencies like OSM that have close ties with the industries that they
regulate.
Finally, I would like to take this opportunity to invite members of
the Committee and its staff to travel to West Virginia to witness the
devastation caused by mountaintop removal to help you appreciate the
incalculable harm that OSM's failure to enforce the Act has done to our
region. We would be pleased to provide flyovers of mountaintop removal
areas and to arrange meetings with community members whose lives and
property are severely impacted by the illegal mountaintop removal mines
that OSM refuses to regulate.
______
The Chairman. Mr. Wright.
STATEMENT OF BRIAN WRIGHT, COAL POLICY DIRECTOR, HOOSIER
ENVIRONMENTAL COUNCIL, INDIANAPOLIS, INDIANA
Mr. Wright. Thank you for this opportunity to speak. My
name is Brian Wright; I am the Coal Policy Director for Hoosier
Environmental Council, a statewide organization in Indiana that
represents over 25,000 members.
In the nine years that I have worked for the Council, I
have spent thousands of hours reviewing mining permits, ground-
to-surface-water monitoring records, and scientific studies and
government reports on the disposal of coal combustion waste in
mines. I have also spoken with numerous citizens in Indiana and
across the country on the impacts of mining on their homes,
quality of life, and environment.
I have come here to speak on behalf of residents in the
Illinois coal basin, which stretches from Illinois into
southwest Indiana.
While SMCRA has addressed some of the most damaging mining
practices within the coal basin, coalfield residents must still
contend with contamination, loss of local groundwater, lasting
damage to homes, unresponsive regulatory agencies, large-scale
open dumping of coal combustion waste in the mines, and growing
concern about damage from longwall mining.
In 1977, the U.S. Congress decided that it would no longer
allow the coalfields of this country to be treated as sacrifice
zones, and coalfield residents to be treated as second-class
citizens. So has SMCRA lived up to these intended purposes in
the Illinois coal basin? It has the skeleton of a good law, but
in many areas SMCRA still lacks the muscles and teeth needed to
adequately protect coalfield communities and their environment.
For example, SMCRA lays the groundwork for good groundwater
protection, but the language in SMCRA remains too vague to
offer meaningful protection for this vital resource.
As you brought up earlier with the language of the
approximate original contour and the fact that it has never
been clearly defined in the law, SMCRA and Federal regulations
have never defined the provisions and requirements for
groundwater protection.
SMCRA requires mines to minimize disturbance within the
mined area to the hydrologic balance, and prevent material
damage outside of the mine to groundwater, but has never
defined either of these terms. As a result, state agencies have
been given too much wiggle room in how to interpret these
standards.
Illinois and Indiana groundwater rules are written in such
a way as to turn mine areas into sacrifice zones once again.
During the mining process, no standards actually apply within
the mined area. In the case of Indiana, any contamination that
occurred in the mine would have to migrate 300 feet beyond the
mine area and all the mine operations before any regulatory
action would be applied. By that time, the contamination would
be so well established that it would be extremely difficult to
take any meaningful action.
Once bond release occurs, in both states the groundwater
receives a permanent designation as impacted by the mines, and
the groundwater standard within those mine permit areas becomes
the amount of contamination caused by the mining. There is no
numeric standard holding them to minimizing contamination
within the mine area, or preventing material damage outside.
Both of these rules were given full approval by the Office
of Surface Mining, despite their clear contradiction to the
regulations and intent of SMCRA.
Coalfield residents are supposed to receive help from their
state agencies when they have a complaint about blasting, water
loss, or other damage from the mine. And regardless of the area
of the country, the mining agency or official or the mining
company involved, I have heard the same consistent story time
and time again from coalfield residents. No matter how well
they can document the damage to their property, both the
agencies and the mining companies continue to dismiss their
complaints, or perform token actions which truly don't address
the damage.
Citizens consistently find themselves placed in an
adversarial relationship with the very agencies that are
supposed to be protecting their interests.
In addition to all of these existing problems, coal mines
in the Midwest and throughout the country are now being used as
open dumps for vast quantities of coal combustion waste. SMCRA
was never designed to regulate these types of dumping
operations, and coalfield residents have been forced to fight
an unjust double standard when it comes to dumping in
minefields. Disposal practices that would not be allowed
anywhere else--for example, mass dumping in direct contact with
groundwater--are allowed in the coalfields, strictly on the
basis the dumping is occurring in mines.
While OSM has called for a rulemaking on this practice,
based on my experience with the Office of Surface Mining and
state mining agencies coming from years of being involved in
public forums, OSM conferences on mine disposal, and other
rulemakings, state rulemakings throughout the last nine years,
I can say with complete confidence that coalfield residents
will not get meaningful protection for their health and their
water unless you step in to demand that protection.
The very recommendations given in National Research
Council's report on mine disposal are almost word-for-word
regulations that citizens have been struggling for years to try
and get in their own states, only to have OSM and state
agencies fight them at every step of the way and oppose those
types of safeguards. To now expect them to immediately do a
180-degree turn and turn around and support those
recommendations from the National Research Council I found
somewhat unbelievable.
Concern has come up that is not being taken care of in any
way, shape, or form by the local agencies is underground
longwall mining. This is a serious concern to the citizens I
contacted in Illinois, getting prepared for this testimony.
Unlike traditional coal mining, longwall mines are allowed
to completely collapse. This can lead to subsidence that can
drop the ground as much as four to five feet on the surface. In
Pennsylvania, subsidence from longwall mines has damaged homes,
destroyed streams, and ruined farmland. The Illinois DNR
refuses to accept any sort of regulatory authority over the
surface impacts of these mines.
We ask that you please consider taking the following steps
to give SMCRA the muscles and teeth it needs to adequately
protect coalfield communities and their environment.
Number one. Defining what it means to minimize disturbances
and prevent material damage to the hydrologic balance.
Create better oversight of the state agencies.
Require national regulations on mine disposal that at a
minimum incorporate the recommendation of the National Research
Council's report, managing coal combustion residues in mines.
And pass requirements to minimize surface impacts from
longwall mining.
Thank you.
[The prepared statement of Mr. Wright follows:]
Statement of Brian Wright, Coal Policy Director,
Hoosier Environmental Council
Members of the Natural Resources Committee:
Thank you for this opportunity to speak on this important issue. My
name is Brian Wright. I am the Coal Policy Director for Hoosier
Environmental Council, a statewide environmental organization in
Indiana that represents over 25,000 members. In the 9 years I have
worked for the Council, I have spent hundreds of hours reviewing permit
applications and ground and surface water monitoring records for
Indiana coal mines. I have spoken with numerous citizens in Indiana and
across the country about the effects of mining on the property rights,
quality of life, health, and environment, and witnessed first hand
damage to homes that coalfield citizens assert is from blasting at
nearby coal mines. I have also played a central role in national
campaigns to create national regulations on the disposal of power plant
wastes in coal mines.
Introduction
My comments are presented on behalf of coalfield residents and
citizen advocacy groups in the Illinois coal basin. The basin stretches
through southern Illinois and southwest Indiana. Mining in the area is
mostly done by surface mining, but the number of underground mines is
growing in both states. While SMCRA has addressed some of the most
egregious mining practices, coalfield residents must still contend with
contamination and loss of local ground water, blasting damage to homes,
unresponsive regulatory agencies, large scale open dumping of
industrial wastes into mines, and growing concern about subsidence from
longwall mining.
In 1977, the U.S. Congress decided that it would no longer allow
the coalfields of this country to be treated as sacrifice zones and
coalfield residents to be treated like second class citizens. SMCRA was
passed with the goal that the mined land be returned to original or
better uses instead of being reduced to moonscapes, that ground and
surface water quality and quantity be protected instead of being
rendered too acidic to support life, and that the homes and quality of
life of coalfield residents would be protected instead of damaged or
destroyed in the name of extracting the coal. In order to ensure that
SMCRA was carried out properly, requirements for public participation
were put into place in order to ensure citizens could hold mining
companies and state and federal agencies accountable when mining laws
and regulations were not followed.
So how effective has SMCRA been in protecting the property rights,
quality of life, and environment of the residents of the Illinois coal
basin from modern day mining operations? SMCRA has the skeleton of a
good law, but in many areas it lacks the muscles and teeth needed to
adequately protect coalfield residents and the environment. In the
rural areas where these mines are located, ground water most often
makes up the only reliable source of water for residents. SMCRA lays
the ground work for good ground water protection. However, the language
in SMCRA remains too vague to offer meaningful protection to this vital
resource.
The law contains protections for homes from blasting damage, but I
have visited many homes and received many complaints from coalfield
residents who watch as large cracks appear in their walls and their
foundation after the mines move in. When they bring these damages to
the attention of the state mining agency, the damage to their homes is
dismissed as the house settling. In our experience, coalfield residents
are left feeling despair and hopelessness as no amount of documentation
or evidence seems to change the state agencies explanation to the
damage to their homes.
Regardless of the area of the country, the mining agency or
official, or the mining company, I have heard the same consistent story
time and time again from coalfield residents: agencies and mining
companies dismiss the complaints of citizens no matter how well they
can document damage to their property. Whether it is an issue on
blasting damage to homes, harm to wells, or a rulemaking issue,
citizens consistently find themselves placed in an adversarial
relationship with the very agencies that are supposed to be protecting
their interests.
Citizens seeking relief through the permit appeal process find the
deck stacked against them. Even in instances where citizens can clearly
document where a permit application fails to meet state and federal
requirements, the state agencies still consistently side with the
mining company. Citizens are then forced into devoting scarce resources
into fighting the uphill legal battle of convincing the agency's own
judges that their agency has acted in error in granting a deficient
permit.
Beyond these threats and challenges posed to coalfield residents,
there are two practices never envisioned by the writers of SMCRA that
are becoming increasingly common in the Illinois coal basin. Coal mines
in the Midwest and throughout the country are being used as open dumps
for vast quantities of power plant wastes. SMCRA was never designed to
regulate these types of dumping operations. Coalfield residents have
been forced to fight an unjust double standard when it comes to dumping
in mines. Disposal practices that would not be allowed anywhere else
such as disposal into direct contact with groundwater are allowed in
the coalfields. The National Research Council, in their 2006 report
``Managing Coal Combustion Residues in Mines'', found that national
regulations are needed to prevent harm to the health of coalfield
residents and their environment.
Based on my experience with the Office of Surface Mining (OSM) and
state mining agencies, I say with complete confidence that coalfield
residents will not get meaningful protection for their health and their
water unless you step in and demand that protection. For years, OSM and
state agencies have fought against citizen requests for regulations
similar to the recommendations made in the OSM report.
Mining companies in the Midwest are increasingly turning to
underground mining. If these companies decide to use the longwall
mining method, there are no federal laws or regulations in place to
protect coalfield residents from the surface impacts of longwall
mining. Unlike traditional coal mining, which leaves pillars in place
to prevent collapse, longwall mines are allowed to collapse. This can
cause the ground to drop as much as 4-5 feet. The subsidence from
longwall mines has damaged homes, destroyed streams, and ruined
farmland. The Illinois and Ohio Farm Bureaus have passed resolutions
calling for regulations on longwall mining out of concern over the
damage this mining method could cause to prime farmland and historic
farms in the Midwest. SMCRA must be amended to regulate all surface
impacts from underground mines. Otherwise, citizens are helpless
towards protecting their property and their environment from the
impacts of longwall mining.
Ground Water Protection
Federal mining regulations require that coal mines ``minimize
disturbance of the hydrologic balance within the permit and adjacent
areas, prevent material damage to the hydrologic balance outside the
permit area, to assure the protection or replacement of water rights,
and to support approved postmining land uses.'' (30 CFR Sec. 816.41)
The regulations also require that the mine conduct a thorough, site
specific analysis of the local ground and surface water resources, the
cumulative hydrological impact assessment (CHIA). If the water source
of a landowner does become contaminated, the mine owner is required to
replace it. These requirements create the good framework for protection
of ground water resources in the coalfields, but in reality these
regulations have been inadequately applied in order to protect the
water of coalfield residents in the Midwest.
SMCRA and its associated regulations have never defined what it
means to minimize disturbance within the permit area or prevent
material damage. As a result, state programs are given too much
latitude in deciding when a problem actually occurs. The Indiana ground
water rule (327 IAC 2-11) makes it almost impossible to properly
enforce these regulations. While the mine operation is occurring, a
ground water management zone is established that extends 300 ft. from
the mined area in all directions. Ground water standards are only
applied at the boundary of the ground water management zone or beyond.
No standards apply within the ground water management zone. This means
that any contamination must migrate 300 ft. from the mine or the mine
property boundary before any standards would be applied, meaning that
any ground water pollution will be well established by the time it is
subject to regulation.
Once the mine has achieved bond release, the permit area of the
mine becomes designated as limited class ground water (327 IAC 2-11-
4(d) (1)). The standards for this area become the existing levels of
contamination within the mined area at the time of bond release. This
rule runs completely counter to the requirements and intent of SMCRA.
Instead of setting standards and requirements to prevent the
contamination, the state allows existing levels of contamination to
lower the bar and water quality.
Federal and state mining law require that mined land be reclaimed
to original or better uses. 30 U.S.C.A. Sec. 1265; Ind. Code Sec. 14-
34-10-2. However, the adopted ground water rule will automatically
designate all ground water in mined areas damaged by the mining
activities. Under this Rule, no mine can return an area to original or
better uses if those uses relied on ground water, in violation of the
federal and state SMCRA requirements.
Under SMCRA, all mining operations must also ``minimize the
disturbance to the prevailing hydrologic balance at the mine-site and
in associated offsite areas and to the quality and quantity of water in
surface and ground water systems both during and after surface coal
mining operations and during reclamation.'' 30 U.S.C.A. Sec. 1265(b)
(10); Ind. Code Sec. 14-34-10-2 (13). Indiana's rule eliminates any
incentives to minimize impacts to ground water quality because the area
will be designated as limited upon bond release. Furthermore, Section 4
of the Rule contemplates that the limited classification may apply to
an undefined zone of influence around a coal mine area, outside the 300
ft. limit.
The Indiana Department of Natural Resources has stated that the
limited use designation will not change the requirements for
reclamation, but Section 4 of the Rule clearly states that the limited
use designation will have an impact on Ind. Code Sec. 14-34-4-7, coal
mine permit or approval. Section 7 states what is expected of the mine
operator in terms of protecting ground water in order for the permit to
be approved. The fact that this section of mining law is affected by
the limited use designation would seem to indicate that a lesser
expectation of ground water protection would result. It is reasonable
to expect some impact upon ground water within the mined area, but this
rule would make mined areas permanent sacrifice zones in regards to
ground water.
Indiana is not the only state that seems to remove mines from any
accountability to ground water standards. The Illinois ground water
rule (35 IAC 620) is similar to the Indiana rule. No ground water
quality standards apply for inorganic constituents and pH within the
area covered by the cumulative hydrologic impact area while the mine is
in operation (35 IAC 620.450). Once bond release occurs, the ground
water for mined areas is classified as ``other groundwater''. The
standard for this classification is the existing level of contaminants
present in the mine area. This classification is also extended to coal
mine refuse disposal areas not contained within an area from which
overburden has been removed, a coal combustion waste disposal area at a
surface coal mine, or an impoundment that contains sludge, slurry, or
precipitated process material at a coal preparation plant (35 IAC
620.240).
It would be unrealistic to assume ground water in mined areas will
remain in pristine condition. There should be a qualitative, numeric
standard in place that establishes a clear line when an unacceptable
amount of contamination occurs. SMCRA only creates a narrative standard
and gives no real clarification on this issue. Without any real measure
of when mines violate the ground water protection provisions of SMCRA,
there is no accountability toward protecting the water of coalfield
communities. When the drinking water of coalfield communities is at
stake, the decision of when action needs to be taken should not be left
to opinion. SMCRA needs to be amended to provide a clear, defined point
where enforcement is needed.
In order to determine how to go about minimizing the damage to
water resources within the mine area and preventing material damage
outside the permit area, each mine is expected to complete a cumulative
hydrological impact assessment (CHIA), which evaluates the probable
impacts to the area's ground and surface water due to mining. The CHIA
should examine site specific information in order to accomplish this
task.
HEC reviewed five CHIAs prepared by the Indiana regulatory agency
that covered mines in five separate counties across a large
geographical area. In all five, almost identical boiler plate language
was used to describe the geologic conditions, the geochemistry of sites
and effects on groundwater after mining. None contained the detailed
site-specific analysis required before a responsible determination can
be made of the possible impacts on the ground and surface water and how
to best minimize these impacts. All five CHIAs assumed that the mine
had a clay layer to prevent downward migration of water. Not one
contained any analysis--much less acknowledgement--that water moves
sideways and downgradient.
There is little if any aquifer specific information in Indiana's
strip mining permits; The state does not require that different
aquifers be sampled individually for quality, or that bale tests or
pump tests be performed on aquifers individually to determine their
permeability, rate of flow or connections with other aquifers. The
state is not requiring that recharge rates be calculated for individual
aquifers or cumulatively for all aquifers in the area to be mined. The
state assumes that the direction of ground water flow is according to
the structural contour of the layers of earth, or simply quotes the
U.S. Geological Survey's estimate for general flow of ground water for
the entire region. Indiana does not require that static water levels be
mapped from individual aquifers to determine direction of flow. Without
this aquifer specific information, a proper analysis of the possible
impacts of the mining on nearby wells is not possible.
All five assessments also made the statement that the mine area had
very little ground water regardless of the number of ground water users
in the area. For example, the CHIA for the Farmersburg mine, permit #
S-287-1, made this declaration despite the presence of hundreds of
households within 5 miles of the northern end of the mine that used
ground water as their primary source of drinking water.
The CHIA was supposed to be a valuable tool in addressing site
specific ground water concerns at each mine. Instead, these assessments
have become boiler plate reports used to belittle ground water concerns
rather than address them. Without numeric standards in place or
adequate site characterization, the drinking water supply for numerous
coalfield communities is not being adequately protected.
Citizen Participation
When SMCRA passed in 1977, it included ground breaking language on
citizen participation. Citizens were given the right to actively
participate in the permitting process, the right to file a Lands
Unsuitable for Mining Petition (LUMP), the ability to hold agencies
accountable when the law is not properly enforced, and the ability to
recover legal costs when they are forced to take legal action to ensure
proper enforcement. Citizens were given tools including pre-blast
surveys in order to protect their homes from blasting damage. The
rights granted to citizens are one of the most important parts of
SMCRA.
These rights are not being upheld by the state agencies. I spoke
with a number of Illinois residents while doing research for this
testimony. They have all encountered stonewalling, refusal to accept
citizen petitions, refusal to hold a public hearing, and long delays in
the administrative appeals process that can last for years by the
Illinois DNR. The citizens of Indiana have encountered similar tactics
from the Indiana DNR. In fact, lack of good public participation was
the most consistent complaint I have heard from Illinois residents.
For example, at the closed Monterey Mine 2, ExxonMobil refused to
place an impermeable cap over their 30 million cubic yard coal waste
pile, claiming the pile wasn't contaminating the groundwater off-site
even though high levels of arsenic were being detected in nearby
drinking water wells. In 2002, Illinois DNR ignored the request for a
Public Hearing about the high hazard dams that contain the waste. In
2003, The DNR granted a public hearing on the reclamation plan, but
refused to answer any of the public's questions on the plan.
In 2003, the reclamation plan was approved despite the fact that
the mining company did not tell where the monitoring wells on the site
were located. Illinois DNR itself admitted in its own evaluation that
this made it impossible to determine whether any possible contamination
was migrating off site. Without this data, there is no way to address
whether the reclamation plan adequately addressed possible ground water
contamination at the site. The reclamation plan has been under appeal
for over 4 years. The appeal is now at the federal level. Meanwhile,
the first off-site sampling of the groundwater by the mine was
performed in 2006 and showed contamination.
In August 2005, Illinois DNR found that the pipeline the mining
company had been operating to pump diluted contaminated groundwater
into the Kaskaskia River was an on-going regulated activity. As a
result, the public had a right to a public hearing on the pipeline.
Illinois DNR had agreed to hold a hearing, but backed down when
ExxonMobil filed extensive legal briefs arguing against the need for a
hearing and designation of the pipeline as regulated under mining law.
DNR sent the legal arguments to the OSM for review, who found that the
mine arguments were not valid. In December 2006, Illinois DNR
nevertheless changed their position in favor of the mine. The appeal of
that decision is still underway.
In a recent case in Indiana, citizens appealed the issuance of the
mining permit for Vigo Coal Company's Chili Pepper Mine. The appeal was
based on the fact that the mine permit application did not have all
necessary documents required for approval of the permit. Indiana
regulations (312 IAC 25-4-23) clearly require that the mine list the
permit numbers or permit application numbers for other necessary
permits. Even though the language of the regulation is clear and
unambiguous, the Indiana Natural Resources Commission ruled in favor of
the Indiana DNR on the grounds that the Commission always defers to
agency interpretation of the regulations. The Natural Resources
Commission is supposed to be the rulemaking body over the Indiana DNR,
and is the final step in the administrative appeal process. Yet, they
admitted in the public hearing on this appeal that they will always
defer to agency opinion.
The citizens filing the appeal did not have the resources to appeal
the case to the state's courts so the precedent is established that
agency interpretation of regulations will be a deciding factor in
appeal cases. This has the effect of making any citizen appeal of a DNR
decision a lost cause from the state unless they have the resources
available to pursue the multi-year appeal process through the state and
possibly federal courts. In short, the appeal process in Indiana is
broken.
For the sake of brevity, I have only included two examples of how
the permit appeal process has been skewed against citizens. More can be
provided to the committee upon request. Coalfield residents wishing to
appeal a permit must fight the uphill battle of convincing the agency's
own judges to rule that their agency has acted in error. Before they
can reach any truly independent court, they must spend a large amount
of time and money going through the administrative process. This system
does not provide true oversight.
Power Plant Waste Disposal
Coal mines across the country are increasingly used as dump sites
for coal power plant wastes (PPW). The disposal of millions of tons of
PPW raises unique problems and issues that are very different from
those created by mining. SMCRA is simply not written with the intent of
ever regulating such disposal operations. State regulations and
policies on mine disposal of these wastes consistently fail to enact
the most basic environmental safeguards needed to adequately protect
human health and the environment. Disposal practices that would be
forbidden under solid waste laws for the same wastes are approved in
mines.
The National Research Council (NRC) did a thorough study of the
placement of PPW in mines throughout the country, ``Managing Coal
Combustion Residues in Mines'' (2006). The study found that
``enforceable federal standards are needed for the disposal of [coal
combustion residues] in minefills to ensure that states have specific
authority and that states implement adequate safeguards.'' The report
found major deficiencies in existing state regulations on mine
placement including inadequate waste and site characterization and the
lack of enforceable performance standards.
The focus of SMCRA and the regulatory agencies in regards to
protecting water quality is preventing acid mine drainage, which
results from the oxidization of sulfur and iron deposits in the mine
overburden. PPW, on the other hand, presents completely different kinds
of concerns and thus requires very different solutions. The major
concern with PPW is that wastes have the potential to produce toxic
levels of a number of different pollutants when they come into contact
with water.
The NRC's report found that ``high contaminant levels in many [coal
combustion residues] leachates may create human health and ecological
concerns at or near some mine sites over the long term.'' PPW contains
concentrated levels of different pollutants including arsenic, cadmium,
lead, selenium, boron, and sulfates. Dozens of scientific studies have
found that contamination from PPW can cause deformities, reproductive
problems, and death in mammals, fish, and reptiles. Despite all the
available evidence of contamination problems from PPW, most state
mining agencies refuse to admit that any threat is posed to ground and
surface water quality by these wastes.
The OSM has announced that it will be conducting a rulemaking on
the placement of PPW in mines. We are thankful to OSM for starting the
process of developing these regulations, but we have serious concerns
whether the OSM will develop regulations that offer a sufficient level
of protection to citizens beyond the status quo. For many years, OSM
and state agencies have vehemently opposed citizen requests to enact
regulations similar to the recommendations made in the NRC report. In
order to ensure that the proposed federal regulations adequately
protect human health and the environment, HEC believes the following
elements must be included into the rule:
The proposed rule must include the basic requirements of the
Resource Conservation and Recovery Act (RCRA). The disposal of large
quantities of PPW raises unique problems and issues that are very
different from those created by mining. The proposed rule must include
the basic safeguards laid out in the federal waste rule, the Resource
Conservation and Recovery Act (RCRA), such as separation of the wastes
from ground water, long-term ground water monitoring, and corrective
action standards in order to ensure that these disposal operations are
managed properly. Incorporation of RCRA into the rule will also ensure
that citizens will receive a consistent level of protection for their
health, water, and environment regardless of what kind of disposal
facility they live next to.
The current system of some disposal sites being regulated under
RCRA and some under SMCRA has resulted in a double-standard for
citizens living next to mine disposal sites in violation to their right
of equal protection under the law. Coalfield citizens have been exposed
to disposal practices at mines that would be in violation of RCRA such
as open dumping into direct contact with groundwater. We therefore ask
that OSM choose its recommended options of either a joint SMCRA and
RCRA rule on mine disposal or a RCRA Subtitle D rule that is
enforceable through SMCRA permits. These options are necessary to
ensure a rule that provides adequate and equal protection to coalfield
citizens.
The regulations should include at a minimum the basic environmental
safeguards recommended by the National Research Council study. These
safeguards include waste characterization, site characterization,
monitoring, standards for clean ups, and public input requirements. The
study also recommends that contact between the wastes and water be
minimized. We believe this would be best achieved by a requirement to
prohibit disposal of the wastes below the pre-mining ground water
table. These requirements should be enforced regardless of whether the
PPW is being dumped or used for ``reclamation'' in active or abandoned
mines.
OSM should adhere to the Federal Advisory Committee Act (FACA)
process in order to ensure that all stakeholders are brought to the
table for an open discussion of the proposed rule. Coalfield residents
and citizens groups have been underrepresented at numerous OSM forums
on the issue of mine placement of PPW. These stakeholder groups deserve
adequate representation in discussions of the proposed rule. We ask
that regional public hearings be held on the proposed rule to ensure
citizens have adequate opportunity to voice their concerns.
Longwall Mining
In Illinois and Ohio, homeowners and farmers are very concerned
about the increased use of longwall mining. Unlike traditional room and
pillar mining, longwall mining removes the entire coal seam in thousand
foot long panels beneath an area that can extend for tens of thousands
of acres. The mines are allowed to subside, which can cause the surface
to sink as much as four to five feet. Illinois DNR has claimed that it
has no authority over longwall mines even though SMCRA regulates the
surface impacts of underground mining (30 USC 1266).
The subsidence from longwall mining has caused a number of serious
problems in Pennsylvania. Houses have suffered severe damage including
being pulled off their foundation, fallen chimneys, broken window and
door frames, and broken water and gas pipes. Longwall mining can also
have a serious effect on ground and surface water. The subsidence can
cracks to form in aquifers, which leads to dried up wells and springs.
On the surface, it can alter the flow of streams, turning the waterways
into isolated pools.
The major concern for residents of Montgomery County Illinois will
be the impact on farmland. Many of the farms in the area are centennial
farms that have been owned by families for generations. In
Pennsylvania, longwall mining has altered drainage patterns and
rendered farmlands too wet to be farmed. Over 27,000 acres of the
farmland in this county is in bottomlands and subsidence of four feet
would most likely disrupt drainage ways, and lead to more flooding of
the farms. Subsidence from longwall mining has also opened up cracks
and deep fissures in crop and pasture land that pose serious hazards to
livestock and farm equipment.
The Illinois DNR has repeatedly refused to address citizen concerns
about possible damage to their homes and farms on the grounds that
SMCRA does not give them the authority to regulate underground mines.
Citizens in Montgomery County have filed a petition to designate the
area as lands unsuitable for mining. The Illinois DNR has denied the
permit repeatedly on the grounds that it cannot accept such petitions
for underground mines, but this would appear to directly contradict
their own regulations, which declare the ``An area shall be designated
as unsuitable for all or certain types of mining operations.'' (225
ILCS 720/7.02)
The Illinois DNR seems to be completely unwilling to take any sort
of regulatory action in regards to longwall mining. This situation
leaves citizens with no recourse for protecting their homes and their
property from possible damage from longwall mines. Coalfield residents
in Pennsylvania have also experienced the same resistance from their
state agency. Congress must take action to protect the property rights
and environment of citizens potentially impact by these mines.
Currently, mines are given a green light to damage peoples' property.
Conclusion
While SMCRA is at its core a good law, the language needs to be
strengthened in many places in order to adequately protect coalfield
communities and their environment. The need for coal is not going away
anytime soon, but that need must not grant companies a license to
damage homes, quality of life, and drinking water.
We ask that you please consider taking the following steps to give
SMCRA the muscles and teeth it needs to adequately protect coalfield
communities and their environment:
Define what it means to minimize disturbances and prevent
damage to the hydrologic balance
Create better oversight of the state agencies
Require national regulations on mine disposal that at a
minimum incorporate the recommendations of the National Research
Council's report Managing Coal Combustion Residues in Mines
Adopt requirements to minimize surface impacts from
longwall mining
Thank you for the opportunity to testify on this important law.
______
The Chairman. Ms. Pfister.
STATEMENT OF ELLEN PFISTER, ON BEHALF OF THE NORTHERN PLAINS
RESOURCE COUNCIL AND THE WESTERN ORGANIZATION OF RESOURCE
COUNCILS, SHEPHERD, MONTANA
Ms. Pfister. Mr. Chairman, members of the Committee, thank
you for the opportunity to testify today on the 30th
anniversary of this landmark legislation.
I am Ellen Pfister, a rancher from the Bull Mountains North
of Shepherd, Montana. Unlike most, if not all, of you here
today, I own property that is the subject of an ongoing coal
permit.
I first testified before this committee in September 1972
in support of Representative Kenneth Heckler's bill for a
temporary ban on strip mining. At that time, strip mining was
proposed for the north end of our ranch. Like many others who
were involved in the passage of SMCRA, I was naive enough to
believe that the law would be enforced, and that I could go on
about my life.
From 1988 through 2007, I have been involved with the
permitting process for a speculative longwall mine that will
undermine part of my property. Right now it is shut down for
lack of money, but, like cancer, it has not gone away yet.
SMCRA is a good law as far as it goes. It has resulted in
the regarding of a great many spoils areas and revegetation of
those areas, with varying degrees of success.
But the three biggest failures in SMCRA are the failure to
include the reclamation of surface effects of longwall mining
beyond the mine adit areas, the failure to anticipate the
expansion of mountaintop removal, and the failure to reclaim
underground water resources by minimizing damage to them. The
first two are omissions from the law, and the third is a
failure to adequately enforce the law.
In the West we don't have mountaintop removal, but we have
aquifer removal, because surface mining in the West is mining
the aquifer. The damage mountaintop removal does is
spectacular, like beheading a person. Longwall and aquifer
mining are like dying of pancreatic cancer. One death is much
more spectacular and visual, but one is just as dead from
cancer.
The failure to protect our water resources is connected to
overall reclamation rates in the West that are abysmal. OSMRE
data shows only about 6 percent as much acreage reclaimed as
mined in the West over the last 10 years.
Western Organization of Resource Councils and the Natural
Resource Defense Council will be releasing a report next
Friday, the 30th anniversary of the Act, with this and other
findings about the status of reclamation and enforcement under
the Act in the West. We will provide copies of this report to
the Committee, and ask that it be made part of the record.
One of the reasons for this low level of bond release is
the way the permit plans have been approved. Decker and Spring
Creek Mines in Montana were allowed to mine for years before
regrading any appreciable acreages, let alone beginning
revegetation. We believe the permits which allowed that were
granted in violation of SMCRA's standard that reclamation be as
contemporaneous as possible. Twenty years does not meet that
standard. The State of Montana should not have allowed it, and
OSMRE should have held the state responsible.
This situation presents a good opportunity for further
oversight by Congress. There is another phrase that has no
definition after 30 years of the law.
Additional reasons for low levels of final bond release
detailed in my written statement are the attitudes of company
managers, which are reflected in the revegetation on the
ground, and do very significantly. The use of rolling bonds and
the failure to reclaim the water resource, which is required
before final bond release, water replacement in Montana is
euphemistically termed opportunistic. This means no positive
action is taken to prevent the destruction of aquifers, and no
plan exists to replace or protect the damaged water.
Mining companies are allowed simply to keep their eyes open
for opportunities to replace destroyed wells and springs as
they mine along. However, they do seem to overlook
opportunities.
I do not believe there is anything especially wrong with
SMCRA, with the exception of not covering longwall mining and
mountaintop removal. But I do believe that as an agency, OSMRE
has long been lacking the intent and resources to enforce SMCRA
as it should be enforced.
The inspectors are the face of OSMRE and the states to
protect the citizens from the effects of coal mining. SMCRA was
well drawn, with two enforcement agencies, state and Federal,
because it is all too easy to co-opt one or the other. It is a
little harder to co-opt both, although I am now beginning to
wonder.
Essentially, OSMRE inspection personnel are constables on
patrol, and if a state has primacy, their inspectors have the
same mandate.
In closing, Congress could pass more laws and see them
twisted or ignored. It is better to seek enforcement of the law
you have. When the agency charged with enforcing laws you have
passed attempts to withdraw from enforcement and hide from the
public, who believed in the law you have passed, the agency
causes the public, both industry and citizens, to hold the law
in contempt.
Mr. Chairman and members of the Committee, you should be
angry that SMCRA is being administered in this fashion. We
appreciate your action in holding this hearing, but you need to
do closer oversight on OSMRE, in Washington and in the field,
to hold OSMRE accountable for its enforcement of the Act, and
for adopting regulations and policies consistent with the
intent of Congress, and for ensuring that state agencies do
likewise.
We urge you to use your oversight authority to impress upon
OSMRE the importance of improving reclamation, with a special
attention to reclamation of water resource within the mine
permitted areas. Whether the issue is acid mine drainage, the
impacts of mountaintop removal and longwall mining, and the
routine aquifer removal we see in western strip mines.
We also suggest that you demand improved reporting from
OSMRE, and urge you to support more funds to OSMRE and state
agencies. The agencies can do a much better job with the amount
of money they have, but it is also clear that lack of funds and
personnel is part of the problem.
I am submitting some pictures showing some of the coal mine
sites I have visited over the years, as well as a copy of a
document from the Western Interstate Coal Board, called an
impending crisis for coal supplies, which deals with funding to
the coal programs of the western states.
Mr. Chairman, before I close I would like to thank you for
your leadership on the 1872 Mining Law Reform, as well. Western
Organization of Resource Councils and Northern Plains also
strongly support your legislation that is being heard tomorrow.
Thank you.
[NOTE: The pictures contained on a CD have been retained in
the Committee's official files.]
[The prepared statement of Ms. Pfister follows:]
Statement of Ellen Pfister, Shepherd, Montana,
on behalf of the Northern Plains Resource Council
I am Ellen Pfister, a rancher from the Bull Mountains North of
Shepherd, Montana. I own property that is the subject of an ongoing
coal mining permit. I am testifying today for the Northern Plains
Resource Council and the Western Organization of Resource Councils.
Northern Plains is a grassroots conservation and family agriculture
group that organizes Montana citizens to protect our water quality,
family farms and ranches, and unique quality of life. WORC is a
regional network of seven grassroots community organizations, including
Northern Plains, which have 9,500 members and 45 local chapters in
seven states, including the coal-mining states of Montana, Wyoming,
Colorado, and North Dakota.
In the early 1970s, huge energy corporations threatened the homes
and livelihoods of ranch families near Colstrip and in the Bull
Mountains. Those families and other Montanans formed Northern Plains in
1972. Northern Plains' early efforts led to passage of a state strip
mine law, and Northern Plains was also a national leader in securing
passage of the historic federal strip mine law in 1977.
I first testified before this committee in September 1972 in
support of Representative Kenneth Heckler's bill for a temporary ban on
strip mining. Little did I know that I was about to get involved with a
sideline project that would occupy the rest of my life. At that time,
strip mining was proposed for the north end of our ranch. There were no
safeguards for the surface property owner at all. On the third attempt
at passage, the Surface Mining Control and Reclamation Act of l977 was
passed by Congress and signed by President Carter.
30 Years of SMCRA
SMCRA is a good law as far as it goes. It has resulted in the
regrading of a great many spoils areas and revegetation of those areas
with varying degrees of success. There has been little success in
reforesting areas which were previously hardwood forests. Most of the
mountaintop removal areas are denuded of trees. The western prairies
have vegetation ranging all the way from weed patches to some pretty
good looking mixed grasslands. The spoils are being regraded to
approximate original contour to a greater or lesser extent.
The three biggest failures in SMCRA are the failure to include the
reclamation of the surface effects of longwall mining beyond the mine
adit areas, the failure to anticipate the expansion of mountaintop
removal and the failure to reclaim underground water resources. The
first two are omissions from the law, and the third is a failure to
adequately enforce the law.
Underground coal mining, whether room and pillar or longwall or any
other kind of underground extraction, should be included within the
purview of SMCRA. When the strippable coal is gone the coal industry
will turn to other methods for coal recovery. The surface damages and
damage to water will not abate with a change in the method of mining.
These surface impacts of underground mining should be clearly included.
When it passed SMCRA, Congress did not foresee the damages that
large scale longwall mining can do or the potential for explosion in
size of mountaintop removal. In the West, surface mining removes the
underground water aquifer--the coal seam. All of these mining methods
are extremely damaging to water regimes. All of these damage the
surface, but in different ways. Mountaintop removal is like beheading a
person, and longwall mining and surface mining are like dying of liver
or pancreatic cancer. Beheading is much more spectacular and visual,
but one is just as dead from cancer.
OSM has permitted the States to approve permits that I believe
violate mandates within SMCRA itself, such as the standard for
reclamation to follow behind mining as contemporaneously as possible.
Permits that allow a mine to wait 20 years before beginning regrading
and other reclamation procedures certainly have no element of
contemporaneous reclamation. SMCRA is bent to the mine operator's
complete convenience. Certain pits that are left open for years on the
chance that the mine may need that coal to blend fall short of
contemporaneous reclamation as well.
The practice seems to be that the terms of permits will be enforced
even if the permit does not comply with SMCRA, as long as the permit is
complete by dealing with every section of the state regulations.
Granting the permit gives an easy out on enforcement of the standards
of SMCRA to the permittee and the agencies.
As a subject and participant in the permitting process in Montana,
I have come to the conclusion that it can be summed up as ``Promise her
anything, but give her Arpege''...or maybe, dime store perfume. Any
remediation in the permit can be relaxed or voided if the permittee
cries economic hardship. As someone who will suffer economic harm if
remediation measures are not enforced and successfully implemented, I
really do not know what the final remediation will look like. I suspect
the permittee's economic hardship will trump my economic hardship. The
permit is supposed to be a promise of reclamation and repair by the
State to its citizens, because the State approved the reclamation plan
and accepted the promise from the permittee. I have grave doubts as to
how binding that promise is on the permittee.
Speculative Mine Permitting
From my personal experience, application of SMCRA's mine permitting
procedures by state and federal agencies does not deter application for
permits by speculative ventures. I hope that what I have dealt with for
the last 18 years is not common nationwide.
Like many others who fought for passage of SMCRA, I was naive
enough to believe the law would be enforced, and that I could go about
my life. Coal entered my life again at Christmas l988, when two boys
from Pikeville, Kentucky, came around wanting to start a coal mine that
would affect the north end of our place. Then a bigger fish, Burlington
Resources, came around with the idea of a longwall mine and a proposal
to trade Federal coal for some of their land. It would be a large block
of coal and would support a 3 million ton a year mine. I knew
Burlington Resources would never mine a lump of coal on their own.
Their ambition was to be gentlemen royalty collectors, but the
permitting process began, and regardless of how speculative a mine plan
is, a landowner or party adjacent to a mine cannot afford to ignore it.
The permitting process grinds on regardless of the economic feasibility
of a project. This speculative mine has occupied my time and the
Montana Coal Program's time for 18 years with no sign of economic
success for the mine.
Burlington Resources put the permit on the market as soon as it was
issued in l992 and finally found a buyer in John Bauges, Jr. of
Tennessee in l995. He began mining then, but in l998, the permit was
permanently revoked for mining with a pattern of violations, and the
bond forfeited. Two years later the state of Montana had barely begun
to clean up Baugues' mess, when John Baugues showed up again, striking
a deal with the State of Montana to reduce his fines by about two-
thirds and requesting that the State of Montana resurrect the
permanently revoked permit. OSMRE was brought in to rule on whether a
permanently revoked permit could be resurrected. OSMRE ruled that there
was one precedent for doing so from West Virginia; however, no permit
number or mine name or location was ever cited. No one that I met from
West Virginia had ever heard of it. OSMRE enabled the resurrection of a
mine that is a pure speculation.
Once the permit was resurrected in 2000, Baugues et al came back
with a bigger and better plan to mine 12 million tons a year, which
would take out the whole coal reserve in our area in 30 years and leave
the entire heart of the Bull Mountain recharge area with deeply damaged
water. In addition to the mine, the Baugues consortium proposed a 700
MW merchant power plant, which has now morphed into a 300 MW power
plant and a 22,000 barrel a day coal to liquid fuels plant, which in
turn needs an additional 150 million tons of strippable coal to be even
remotely feasible.
The Bull Mountain Mine shut down again in March 2007, as it was
being sued in foreclosure by bond holders, North Carolina and Florida
churches and retirees, who were promised 11% return on their investment
bonds. While Baugues et al were defaulting on their bonds, they were
running around our country trying to buy ranches, some of which they
lost their earnest money on, not being able to make the final payment.
In January 2007, Montana DEQ finally approved the permit amendment
to the Bull Mountain Mine, which takes in the north end of our place.
They claim our high springs will not be damaged. Our springs are in the
vicinity of 500 feet above the coal. Aside from the property owned by
the coal company, our ranch will be the second property to be damaged
when the second longwall panel begins operation. I am not optimistic
about the future of our water; ``no damage'' does not jibe with what I
have seen in other areas of the country. The primary authority relied
upon by the state is a consultant paid by the permittee in l992, who
cited no specific instances in western longwall mining similar to the
geologic conditions in the Bull Mountains in finding that there would
be little or no damage to our water.
Since the mine was first permitted in l992, it has never operated
on the schedule shown on the permit. They are months and years behind
schedule. The mine would eventually take out a subdivision in the Bull
Mountains, if it proceeds as planned. Those homeowners are hoping the
threat will go away, and don't want to face the problem of what and
when will something happen to their property. The town of Roundup no
longer holds its breath with anticipation when the mine makes an
announcement promising jobs and economic development, and payment terms
in Roundup are cash only for the mine. The permit is the only thing
that holds this speculation together.
Longwall Mining
Most of the longwall mines in the West are under public lands; the
people are gone. The effects are hidden underground, known only to the
regulators and the mining companies. Since the U.S. Bureau of Mines was
closed in 1996, there have been and still are no studies being done on
the effects of longwall mining. The only studies I could find were
scientists putting their sensors down well holes in the east, and
bewailing the fact that after the longwall machine passed, they
couldn't get anymore readings on where the water went. They had no
money to pursue the information, and probably no way to access legally
the land that was mined. That is a failure in SMCRA. The entire area in
an underground permit should be included in SMCRA, because the affects
of longwall coal removal go to the surface miles away from the adits
and processing plants. Unless there is jurisdiction through government
action, there is no way for follow-up studies to be done of water
damage in longwall mine areas, and no one with the resources to find
the lost water.
Since l989 when longwall mining came to the Bull Mountains, I have
tried to find out what has happened in longwall areas across the
country. The water buffalo--a plastic above-ground cistern, usually set
on the road in front of a house, which mining companies use to deliver
replacement water to homes and farms--is the indicator species for the
health of water in longwall areas. Where has the original water gone
that was once in wells and springs? No one seems to know, and
landowners are powerless to force a search. I cannot think that water
stored for home use in water buffaloes is healthy for families.
I met a dairyman in Western Pennsylvania whose farm dated back to
l795 who was ultimately forced out of dairying because the water hauled
to his cows was chlorinated, and they could not thrive on it. I have
been visiting by e-mail with a farmer, Floyd Simpson, in Southeastern
Ohio whose land lies about 500 feet over the coal seam being
longwalled, who lost springs going back to the late 1700's, and old
wells. It took about three weeks for the water to fail after
undermining. The coal company has been very slow to deal with the
promises it made him prior to undermining. He has had trouble with
water haulers after undermining, and his historic farm buildings were
severely damaged. He has a website, www.countrymilefarm.com, with a
diary of the damage that occurred when he was undermined in late 2003.
He does not know where his water went. He knows he does not have the
water he had.
Southwestern Pennsylvania has been devastated by longwall mining;
it is a land of leaning chimneys, damaged homes, and water buffaloes.
Interstate highways as well as county roads have been undermined. I
have seen half a county road slipped 40 feet down the hill from where
it had been, thanks to subsidence.
Acid Mine Drainage
Permits that allow acid mine drainage are still being issued. I do
not find that a failure in the law, but in the administration of the
law. Acid mine drainage from Eastern mines seems to be the norm. Save
Our Cumberland Mountains fought for 10 years to get Fall Creek Falls
State Park in Tennessee declared unfit for mining due to the certainty
that mining in that watershed would cause acid mine drainage over the
falls. I doubt if many permits have been denied on the grounds that
mining would cause acid mine drainage. Although SMCRA allows the
designation of areas unsuitable for mining, very few areas have that
designation, and it is difficult to get.
Save Our Cumberland Mountains did a study in l989 on acid mine
drainage on reclaimed sites in Tennessee and found a lot of it, despite
the promise we saw in SMCRA to end it. I have watched over the years as
OSMRE tried different things to mitigate the improvidently granted mine
permits that were discharging acid mine drainage. There was the
Appalachian Clean Streams Initiative that tried to dip into USDA funds
to help out, as well as waylay any other money that could be found.
There was AMD and ART, which was an attempt to show how acid mine
drainage treatment areas could be turned into a community enhancement.
That, too, used funds other than funds from the party who caused the
damage in the first place. OSMRE has not had the guts to face down the
companies to make them internalize the costs of their actions, and fix
the damage that is occurring on permitted mine sites.
Since the passage of SMCRA in l977 the size of Eastern mines,
particularly longwall and mountaintop removal, is increasing and
beginning to approach the size of some Western mines. The Eighty-four
longwall mine at Washington PA was permitted to undermine 22,000
suburban acres initially. The mountaintop removal mines are up to 5,000
acres and above. The mountaintop removal mines are depopulating the
towns and settlements that are unlucky enough to reside below them.
The Western mines depopulate areas as well. The practice has been
to buy out the rancher and give them an option to buy back at some time
in the future. If the mine is on public lands, the public is excluded
from the mining area. Both East and West are depopulating coal bearing
areas. If one becomes a tenant of the company when he had previously
been a landowner, he is no longer independent or in a position to speak
his own mind. The company regards the permit as being between the
company and the agency and no one else should have anything to say. If
the people are gone, there is no one to see or to tell how badly the
mines reclaim the mined lands.
Water Damage
We don't have mountaintop removal in the West, but we have aquifer
removal. The mining companies and regulatory agencies regard water in
the western mines as fair game for damage and diminution. Water from
disrupted aquifers comes into the pit, with no attempt to insulate the
water from contact with the spoils materials. Experimental practices
have been suggested from outside the agencies and industry, but those
practices would take planning at the permit issuance stage. That has
not been done in the past, and there are no plans to do it in the
future. Some of the Western mines are dry in the pit, but others have
quite a lot of water that pours into the pit. The flushing that does
occur within the pit is unpredictable and uncontrolled. Now, to add
insult to injury, OSMRE is considering a new regulation that would
allow the dumping of fly ash in the strip pits in the East. I do not
believe that Congress meant to allow the dumping of industrial wastes
in surface mining pits when it passed SMCRA.
The Colstrip, Montana, electric generating plants offer a good
preview of what can happen when fly ash is mixed with water. The fly
ash pond at Colstrip was constructed in about 1974 to a depth of eighty
feet, but only the top 40 feet were lined with impermeable material.
Water began leaking from the bottom of the fly ash pond shortly after,
contaminating the wells on the Kluver Ranch downstream. Thirty years
later, the pollution has advanced downstream to contaminate the wells
on the McRae Ranch. The ranch wells were drilled deeper to get below
the pollution, but there is nothing to keep the pollution from
eventually reaching the deeper water as well. The company has been
pumping the surface water from the toe of the pond back into the pond,
but the water keeps traveling underground. I do not think OSMRE has the
will to enforce anything that might approach safe storage of fly ash
underground in a wet mine, and I know the State of Montana does not.
Recently the Rosebud Mine at Colstrip cut into an area called Lee
Coulee, which was a new mining area. They hit a tremendous vein of
water which they pumped on down the coulee, ruining 90 acres of hay
land. It drained the springs above the mine cut. They are no more. Don
Bailey's hay ground is ruined, and the water is gone. He had to sue the
mine to recover his damages. The waste of water from Lee Coulee is an
act of extravagance like lighting cigars with thousand dollar bills.
The Rosebud mine also had a twenty mile highwall open for a number
of years--10 miles on the north side of the hill, and 10 miles on the
south side of the hill, and the mine is moving in a direction which has
the potential to create even longer highwalls. The mine was keeping the
mine road at the base of the highwall open to have a loop road on which
to haul coal.
The State of North Dakota issued a permit to turn Kenney and Gwen
Thompson's farm land into a dump for an adjacent mine that was mining
on the farm. The farm couple didn't know about it until diesel fuel
turned up in the well at their house. OSMRE was no help to them. They
eventually sold to the mine due to the farmer's ill health. Miners at
the mine told the couple about all the hazardous waste the mine dumped
in the mine pit on their land.
Now there is a lawsuit filed in Denver over dumping fly ash in the
Navajo Mine in New Mexico and leaving it open, blowing ash in the wind.
OSMRE is responsible for mining on Indian lands. OSMRE allows dumping
fly ash in the mine pit, which is not clearly authorized by SMCRA. The
mine operator is not even covering it in a prompt manner, which should
be required even if SMCRA authorized dumping fly ash in a mine. I saw
fly ash being dumped in that mine in a flyover in l992. There is a lot
more fly ash there now.
When we were in the permitting stage of the initial Bull Mountain
Mine, we were told by state agency personnel that water replacement
would be ``opportunistic''. This means that the mine operator would
develop sources of replacement water when they run across them, in the
course of mining--as opposed to having a plan for replacing the water
up-front, in the permit, before mining begins. A Colstrip area rancher
watched one of the mines bury a spring that could have been developed
with a little care--so much for opportunistic development.
The Jacobs Ranch Mine in Wyoming is finally putting in for bond
release on the areas against the Rochelle Hills, which were mined about
1980 when the mine opened, because water is finally beginning to
infiltrate into the mine areas from the undisturbed areas toward the
hills, starting to re-establish the groundwater that was there before
mining. As it advances west, the mine is also dewatering the coal in
advance of its mining area to get the coalbed methane out before it
removes the coal. The combination of surface mining and coalbed methane
development may result in an area devoid of any water for a very long
time.
Water loss in the East is typically dealt with by either a water
buffalo or connecting people to a pipeline from somewhere else. I have
always wondered what will happen when that ``somewhere else'' is also
damaged by coal mining, and that water disappears as well.
The Citizen: Regulation and the Law: State and Federal
To the ordinary person, of the 4 sets of documents that can govern
coal mine reclamation, SMCRA is the plainest to read and understand.
The language is generally set in terms of ``shall'' and ``will'', which
most people understand, whether they like it or not. Going back about
the last 25 years at least, OSM has been in the business of putting out
regulations to bend ``shall'' and ``will'' into something else, if
possible. I don't know of any proposals to strengthen SMCRA regulations
during that time.
Neither the states nor OSMRE have any programs to educate citizens
about their rights under SMCRA, the law's citizen enforcement
provisions, or the standards of reclamation established by SMCRA on
other than an ad hoc basis. There is no easy reading document for
citizens. The text of SMCRA itself is the plainest of the materials
available.
The federal regulations are long and a lawyer's joy. When the state
laws and regulations are added on top of that, which is the case when a
state has primacy, the amount of material to digest becomes nearly
overwhelming. Montana's education for citizens about what the law says
was to give them a copy of the state regulations, but even that seems
to have gone by the wayside in recent years.
The Montana law has gone from a law which said ``shall'' and
``will'' to one which says ``may'' and ``should'' to favor the newly
fashionable tenses in legal writing. ``Shall'' and ``will'' are clearly
defined in court cases and English classes. The Department of
Environmental Quality, acting at the direction of the Montana
legislature, is attempting to conceal the mandatory effect of SMCRA,
and OSMRE has gone right along with this, although SMCRA requires state
programs to be no less effective than the federal program. Essentially,
OSMRE inspection personnel should act as constables on patrol, and if a
State has primacy their inspectors have the same mandate. Montana is
trying to obscure that mandate and to remove the sense of immediacy of
enforcement under the law changes of 2003 and 2005. OSMRE tried to
obscure the sense of immediacy with its Reg. 8.
Reg 8, in its latest, 1999 incarnation, is an internal OSMRE
directive that has functionally eroded the independence and ability of
the agency's field staff in overseeing state programs. Much like
``Catch-22'', Reg 8 effectively allows state agencies a veto over what
part of their programs can be evaluated and corrected by OSMRE, and
prohibits evaluation of off-site impacts by OSMRE if the state program
doesn't define them as off-site impacts.
It takes years for OSMRE to approve or disapprove changes to
Montana's law and regulations. In the meantime, the Montana agency
enforces changes made by the legislature to the law and its own changes
to implementing regulations, regardless of whether they comply with
SMCRA or have been approved by OSMRE. I wonder what happens when
Montana approves actions under its law while waiting for OSMRE to rule,
and later it is found that the approved action was not in compliance
with SMCRA.
OSMRE's budget for ``environmental protection,'' which includes
funding for state program evaluation, fell by almost 18 percent,
adjusted for inflation, between 1997 and 2005. The number of state
program evaluation staff also fell. This may explain why OSMRE is so
slow in processing regulatory packages. It takes so long, that if one
has commented on a package, by the time the ruling comes out, one has
almost forgotten about it. If the non-compliant action is ensconced in
the permit, will Montana enforce that rather than an action which would
comply with SMCRA?
Regulation and Money: State and Federal Relationship
OSMRE was a victim of the Clinton balanced budget drives. The first
people cut were the inspectors, and the first of those to go were women
and minorities. The cuts have not slowed down under subsequent
administrations. It is no wonder that now, as its personnel ages and
retirees, OSMRE is running into a shortfall of qualified people to move
up.
The inspectors are the face of OSMRE and the states. They protect
the citizens from the effects of coal mining. OSMRE has tried to
withdraw itself from direct enforcement and contact with possible on
the ground enforcement. SMCRA was well-drawn with two enforcement
agencies, state and federal,
because it is all too easy to co-opt one or the other. It is a
little harder to co-opt both, although I am now beginning to wonder.
OSMRE has further tried to reduce its presence by refusing to consider
offsite impacts from mining unless the states report the offsite damage
in state statistics.
The Western Area Office of OSMRE is not even listed as tenant in
the Denver office building in which it is located on the 33rd floor.
Not only has OSMRE tried to withdraw from direct enforcement by way of
Regulation 8, but apparently the Western District Office of OSMRE is
trying to physically hide.
In passing SMCRA, Congress intended that the regulating agency keep
a presence in the coalfields and that the permits be available for
inspection in the coal fields. Montana is just barely in compliance
with SMCRA on that point, with the Billings Office having only a
generalist and a secretary. The generalist employee is also an
inspector. All the other inspectors in Helena are also specialists in
other fields, and every specialist is an inspector. The question is
whether academic specialists also have the temperament to make the
kinds of decisions that an inspector must make. Billings is about 90
miles from the closest big surface mine. The rest are hundreds of miles
further. Helena is 250 miles from Billings. Inspecting from Helena will
be difficult, and I think the amount of travel time will render the
coal program less effective.
The Montana Coal Program has been losing employees, and the money
to hire replacement employees has been declining, especially from
Federal sources. The Federal Government was obligated to fund the
Western States to the extent that the coal in the state belonged to the
United States. The Western Interstate Energy Board says that the
Federal Government is saving money with the states accepting primacy,
because the state pay levels are so much lower. Yet the Federal
Government still keeps cutting real dollars from OSMRE and state
budgets.
Montana has been saving money by paying wages for people with
advanced degrees that are significantly below what they could earn in
industry. Either the people who chose to work for Montana are dedicated
to something other than top dollar, or they are short on competence, or
they have reached a certain age in industry where industry no longer
wants to hire them. I do know that the State has been a revolving door
for hydrologists of all types. They get a little experience from the
State to show on their resume, and then move on. The Montana Coal
Program has been defunded and short changed on personnel, and it is no
wonder it is teetering on the brink of someone requesting a 731--asking
OSMRE to take over a state program because of the state's failure to
meet the requirements of SMCRA. The Montana legislature found $250,000
additional temporary funding this year, but now it appears that only
part of the money will be available to alleviate the employment
problems at DEQ.
If there is not better funding forthcoming, it is possible that the
United States will have to pick up the tab for regulating the damage
that will come from its appetite for coal. Funding less today will cost
you more tomorrow.
Bond Release
OSMRE data shows that 22,905 acres have been reclaimed and achieved
final (Phase III) bond release in the West over the last ten years;
meanwhile, 400,000 acres were disturbed by new mining. I think there
are several reasons for this low level of bond release (about six
percent as much acreage reclaimed as mined).
The first is the way the permit mine plans were approved by the
agencies. Decker and Spring Creek in Montana were allowed to mine for
years before treating any appreciable acreages for regrading, let alone
revegetation. We believe the permits which allowed that were granted in
violation of SMCRA's standard that reclamation be as contemporaneous as
possible. Twenty years does not meet that standard. The State of
Montana should not have allowed it, and OSMRE should have held the
state responsible. This situation presents a good opportunity for
further oversight by Congress.
The second reason is that some companies do not want to comply with
the revegetation standards. Westmoreland has been head butting Montana
over that for some years now. Westmoreland lobbied successfully for
significant changes to revegetation and postmining land use standards
in the 2003 Montana legislature--just as another mine in the state
showed that it was possible to meet Montana's the previous, standard
for revegetation. The difference was the attitude of company
management. The mine which did a good job was a Rio Tinto mine, and its
company managers had decided it was cheaper to comply with
environmental laws than to constantly be hauled into court. The
attitude of the managers was reflected in the quality of reclamation on
the ground.
Revegetation is possible in most of the northern high plains, given
the right company attitudes, but water resource reclamation is much
more problematic, and is the third reason why final bond release is
low. Water resource reclamation has had the lowest priority in the
permitting and reclamation process. There are promises in the permits
to replace individual water resources, but it is unclear whether and
how those promises have been kept. Replacing individual resources
depends on having a resource that can be found and depended upon to be
potable, at the very least. I don't know how the states are going to
meet the standard of not degrading and diminishing the water resource
in the mine area. The practice today--leaving up to time and fate to
clean up water quality and quantity--is not satisfactory to those of us
who live in the coal fields. There is no research in the area, and the
regulators are accepting time and fate instead of requiring specific
actions to restore pre-mining hydrology.
Until the water is reclaimed, there should not be bond release. The
States and OSMRE are coupled in ignoring this problem. If the States
and OSMRE accept any more permits or permit amendments that ignore
reclamation of the total water resource, a fine would be in order
again.
Montana has been doing what is called rolling bond release, which
is a fourth reason why final bond release is so low. In Montana, Stage
IV bond release is the final stage indicating that the water resource
has been reclaimed, and the state retains a small amount of bond money
until Stage IV release. 9/11 raised the costs of bonds across many
industries, including coal. The Stage IV bond money is now mounting up,
and there are fears that if large amounts of acreage are suddenly up
for bond release, there will be great pressure on the state to release,
regardless of quality of reclamation, because if something should cause
a bond forfeiture, there would not be enough money left to fix the
problem.
Self bonding is allowed in some states. The State of Colorado
allowed the Mid-Continent Mine to self bond with a limestone plant as
collateral. The sole market for the limestone plant was Mid-Continent
mine. Korea cancelled its marketing agreement with Mid-Continent. The
mine closed. The bond was forfeited, the limestone plant now a
worthless property that had lost its market. Meanwhile, the family that
owned Mid-Continent had invested in Colorado mountain real estate.
OSMRE had the authority to pursue that money, but did not with any
vigor. The taxpayers have picked up the tab for what reclamation has
been done on the Forest Service land where Mid-Continent operated.
Citizen Action
Citizens can file complaints in writing under SMCRA, but there are
informal ways to make one's voice heard. The regulators see industry
people on a regular basis. They develop a familiarity with each other.
They drink beer together in the hotel bar, if they are at an away
meeting. If there is a regulatory office in a reasonably convenient
location, citizens should stop by when they don't have a complaint. If
there is a basis of familiarity, perhaps relations would be a little
better. Such visits also help inform the citizens about conditions
within their regulatory agency.
In Montana, it would be helpful if more of the state regulatory
agency were closer to the mines. Because of the travel distances
involved, most of the contact between the Montana state agency and
citizens near the Eastern Montana mines consists of more formal
meetings, and because of the turnover of regulatory personnel in
sensitive areas, frequently the sacrificial agency lamb at such
meetings is the newest and most inexperienced of Montana personnel.
The Casper Field Office of OSMRE, which regulates the highest
producing coal area in the United States, has the most area to cover,
and probably the fewest inspectors. Distance operates against a citizen
getting a clear idea of how that office operates. It is 379 miles from
Casper to Billings, 629 miles from Casper to Helena, and God knows how
far to North Dakota. For quite a while last year, the Casper Office
operated without a field office director. The Field Office Director
from Albuquerque filled in. I would say that is hardly effective
administration. Getting acquainted with the regulators will not solve
all the problems relating to SMCRA enforcement, but it is a small step
that citizens can take.
Conclusion: Congress' Responsibility for the Enforcement of SMCRA
Some of the agency actions are in effect, actions in contempt of
Congress, as evidenced by Congress' intention expressed in SMCRA. I do
not believe there is anything especially wrong with SMCRA, with the
exception of not covering longwall mining and not coping with
mountaintop removal, but I do believe that as an agency OSMRE has long
been lacking intent to enforce SMCRA as it should be enforced. The
agency has been a great hand to not want to take action on something
unless it is immediately hazardous to human life. That is a judgment
call, and the agency is not prescient. The process to pass SMCRA began
with the disaster at Buffalo Creek, WVA. Fortunately, a similar tragedy
for human life has not happened again, but how much luck was involved
with the Kentucky River flood through Louisa, KY or the water break out
at the AEP mine in Ohio? There are a number of sludge ponds throughout
the East that are known by the agency to be unstable, but they remain
unremediated, and the locations are not known to the public. Is OSMRE
prescient as to which one will break first? Where are the states and
OSMRE on this? Both are negligent and trying to hide out from that
unpleasant policeman's task.
Congress could pass more laws and see them twisted and ignored. It
is better to seek enforcement of the law you have. When the agency
charged with enforcing laws you have passed attempts to withdraw from
enforcement and hide from the public who believed in the law you have
passed, the agency causes the public--both industry and citizens--to
hold the law in contempt.
Mr. Chairman and members of the Committee, you should be angry that
SMCRA is being administered in that fashion. We appreciate your action
in holding this hearing, but you need to do closer oversight on OSMRE.
We respectfully suggest you hold more such hearings both here and in
the field, to hold OSMRE accountable for its enforcement of the Act,
for adopting regulations and policies consistent with the intent of
Congress, and for ensuring that state agencies do likewise.
We also suggest that you demand improved reporting from OSMRE. You
also have the power to issue contempt citations, and I believe that you
should seriously consider doing so. If you cannot get OSMRE to respect
and enforce the law which it is paid to administer, then perhaps you
should consider housecleaning in the agency.
We urge Congress to provide more funds to OSMRE and state agencies.
The agencies can do a much better job with the amount of money they
have, but it is also clear that lack of funds and personnel is part of
the problem.
OSMRE and the states should require vastly improved reclamation at
all phases, from regrading to water resource reclamation, revegetation,
and final bond release. The percentage of mined acres reclaimed in the
West is abysmal, and does not meet any definition of ``contemporaneous
reclamation,'' as the Act requires. A critical first step is for OSMRE
to define contemporaneous reclamation, a job that has been pending for
years now. OSMRE should also make clear in its regulations that mine
permits will not be issued for areas in which a mine plan does not
allow for and require contemporaneous reclamation, and consider
increasing bond amounts to provide an adequate incentive for companies
to apply for bond release, but also to do better reclamation in the
first place. We urge you to use your oversight authority to impress
upon OSMRE the importance of addressing these problems, with special
attention to reclamation of the water resource within mine-permitted
areas--whether the issue is acid mine drainage, the impacts of
mountaintop removal and long wall mining, or the routine aquifer
removal we see in Western strip mines.
Finally, OSMRE should adopt a policy prohibiting the issuance of
new mine permits or expansions in areas where stripmined land remains
unreclaimed after more than ten years.
NOTE: A report entitled ``An Impending Crisis for Coal Supplies:
Demand Rises, Regulatory Grants Fall Short'' prepared by the Western
Interstate Energy Board dated November 30, 2006, is available at http:/
/www.westgov.org/wieb/reclamation/2006/12-01finalrpt.pdf.
______
The Chairman. Before the Chair asks its first questions, it
is going to ask a question of the audience that he asked
earlier. Is anybody from OSM here? Did they reappear? Anybody
representing OSM taking notes in any way?
[No response.]
The Chairman. Well, let the record show that unlike OSM,
our West Virginia State Regulatory Authority, in the form of
our Secretary of DEP, Stephanie Timmermeyer, is still with us.
And I appreciate very much her being here to listen to the
panels.
Mr. Morris, let me go back to something you mentioned about
a mining operation taking place in Virginia, I believe it was,
that is not permitted, and the state regulatory authority will
not take any actions or inspect because it is not a permitted
operation?
Mr. Morris. That is my understanding. This is not my case,
it is Mr. Lovett's case, and perhaps he can give you some more
detail.
But the claim by the citizens----
The Chairman. Did I have the state right? In Virginia?
Mr. Morris. It is in Virginia. The claim by the citizens is
that a mining operator, in advance of approval of a mining
permit for which the operator has applied, has already begun to
conduct preliminary operations, which are surface coal mining
and reclamation operations, without the permit.
According to OSM's regulations, and the regulations in
Virginia as well, that constitutes an imminent danger to the
environment. It is supposed to be addressed in the most
expeditious and forceful way that either agency can possibly do
it. And Virginia is refusing to take, as I understand it, to
allow the citizens, to take the citizens and even inspect the
area because it hasn't issued a permit yet.
And of course, the long and short of that is that any
operator who goes forward without a permit in Virginia would be
immune from action by the regulatory authority. They would
never go out and look for it because they haven't issued a
permit for it yet. It is absurd.
The Chairman. Mr. Lovett, can you expound on that?
Mr. Lovett. I agree with what Mr. Morris said. That is
exactly what has gone on.
In addition to that, because the state refused to take the
citizens up, we asked OSM to take the citizens up. And that has
been more than two weeks, OSM still has not done so. The people
are being just completely disregarded by both agencies in
Virginia.
The Chairman. It is reminiscent, in my opinion, of the old
days of the two-acre exemption and the chain of pearls. And we
thought we had closed that exemption, and evidently we have
not.
Mr. Morris. Well, Mr. Chairman, in this situation it not a
small chain-of-pearls-type operation. This is a huge mining
permit, and the operations that are going on, according to the
citizens' allegations, are extensive.
The Chairman. All right. Mr. Lovett, everybody we have
heard from so far today seem to be the most negative of
everybody. I mean, you state our future generations will not
forgive us. You know, I take that as an affront. I go to bed at
night and sleep soundly, and think I am doing all I can to
protect our environment and provide for jobs. But there is an
insinuation there that I am not.
You stated that we would be just as well off if OSM would
disappear, and not be around. Let me ask, then, would we be
just as well off if SMCRA were not ever enacted?
Mr. Lovett. Mr. Chairman, first let me address your first
point. I certainly didn't mean to cause affront to you
personally; I am complicit in this, as well.
I think that our generation is currently decimating central
Appalachia, and I believe my children will look back to me and
ask me questions about it, as well. I use coal as well as
anyone else. I don't mean to exempt myself from that, and I
don't mean to cause you personal affront.
But I do take this as a very serious issue facing our
region. And I think that all of us need to act to change it.
Second, in response to your question about OSM, I think
that SMCRA has good provisions in it. It is a good law in many
ways, if the agency would enforce them.
One of the questions you raised earlier was the question
about approximate original contour. If the state agency or the
Federal agency would enforce the requirement that the land
look, after mining, like it did before mining, these mines
wouldn't be occurring. Because very few of them are put to any
productive use.
In fact, there are a handful of examples. Now, don't forget
there have been over a million acres stripped in this region
since the passage of the Act. And yet there are a handful of
projects. There aren't golf courses--I think there is one golf
course. There aren't schools. Those are exaggerations of what
is going on. These are very isolated mines, and there is really
almost no development on them at all.
So yes, I do believe that OSM's failure to enforce the Act
has rendered it meaningless right now. I hope that we have a
better Administration that will be willing to enforce the Act
in the future.
The Chairman. OK. SMCRA requires its sediment ponds be
constructed to control runoff from mining operations, including
mountaintop mining operations in valley fields. Do you agree
with that statement?
Mr. Lovett. I do.
The Chairman. Mr. Morris, let me ask you then. Your
experience in the Solicitor's Office lends great credence to
what you have to say. Would you expand on what you termed as a
judicial misinterpretation of the Act's citizen supervision?
Mr. Morris. Well, the decision of the Fourth Circuit in
West Virginia Coal Association v. Bragg, or actually I think it
is Bragg v. West Virginia Coal Association, proceeded on the
theory that approved state programs under the Surface Mining
Act are purely state law; that they are not a hybrid Federal
and state law, even though Federal approval of those statutes
is necessary before they can take effect, and even though those
statutes are codified, state statutes are codified in the
Federal rules, the Code of Federal Regulations.
Using that theory, that judicial misinterpretation, the
Court went on to say that the provision that this committee and
the Congress put in the Surface Mining Act authorizing
adversely affected persons to sue state regulators in Federal
Court to compel compliance with mandatory non-discretionary
duties was unconstitutional, under the 11th Amendment, because
the 11th Amendment will not allow private citizens to sue state
officials for violations purely of state law.
But when Mr. Lovett brought the case that became Bragg v.
West Virginia Coal Association, he was suing state officials to
comply with the state program itself, which is, in our view,
and in the view of the Department of Justice, stated to the
Fourth Circuit in the very case, both Federal and state law,
and thus the citizen supervision, is entirely constitutional
and doesn't offend the 11th Amendment in any respect.
What we have here is a judicial misinterpretation of the
nature of state programs under the statute, that is repeated in
a ruling of the Third Circuit, and which the Department of
Justice is no longer willing, as I understand it, to challenge
in other circuits, that needs Congressional correction.
There are several ways, it seems to me, that the statute
might be quickly and readily amended, but that correction needs
to happen because without it, citizens cannot use the Federal
forum to compel state officials to carry out mandatory duties
under the statute, even where it is clear that the state
officials are failing to do their job. As it was, as Judge
Haden pointed out in Mr. Lovett's case, in the Bragg case, it
was clear. And the Fourth Circuit did not have any quarrel with
the merits, didn't even reach the merits.
So I repeat my urging for the Committee to take a very
serious look at correcting that problem.
The Chairman. Very interesting. I appreciate that. I do
have a couple more questions, but I am out of time, and I want
to yield to the, or excuse me, recognize the Ranking Member for
his questions.
Mr. Pearce. Thank you, Mr. Chairman. I appreciate each one
of you for testifying today.
Mr. Wright, do you think that coal has a place in today's
energy portfolio?
Mr. Wright. I believe it is not going to be feasible any
time soon to remove it completely out of the portfolio. I do
believe we need to further diversify our electricity portfolio
to include more renewable sources, such as wind and solar. I
think it is easily achievable, given today's technology, to
have a renewable electricity standard of 10 percent or 20
percent, have that achieved.
Mr. Pearce. What level could we achieve, in your opinion?
Mr. Wright. Ten to 20 percent.
Mr. Pearce. Mr. Lovett, you, in the opening part of your
statement--it is not actually part of the written statement,
but your oral testimony--you were trying to distance yourself
from the views in the second panel, and said that you would
like to contrast that.
Now, I heard a balance of views there that were reassuring,
but I think most reassuring was Secretary Timmermeyer's
testimony. And so you would describe her testimony as rose-
colored? What would you--because I had commented walking out
that I was greatly reassured that they were achieving a balance
of regulation and business interests. How would you
characterize that testimony?
Mr. Lovett. Well, I have had long-running disputes with the
West Virginia Department of Environmental Protection. I do not
believe that it is discharging its duties under the Surface
Mining Act to require reclamation.
It may be true that trees can be grown on these sites after
mining. Professor James Burger at Virginia Tech has done
significant research--I think it would probably be fair to call
him the foremost reclamation specialist in the country--that
shows that trees can be grown after mining.
But it requires a couple things. It requires that the
topsoil be saved, as the Act requires. And it requires that the
next layer, the brown, weathered sandstone, part of that be
saved, as well.
Mr. Pearce. Excuse me, I was asking for you to reflect on
her testimony.
Mr. Lovett. OK, I will make it quicker. The DEP refuses to
require operators to save that topsoil, even though it is
required by the Act. And because it does so, there is no
indication that trees will grow on any of these sites.
So to the extent that we are saying that reclamation is
being achieved by state regulations----
Mr. Pearce. Excuse me, we are right back where we were. I
was just asking you to characterize her testimony.
Mr. Lovett. Oh. I disagree.
Mr. Pearce. And so you find it to be false. You find her
testimony to be false.
Mr. Lovett. I disagree with it, yes.
Mr. Pearce. Would you shut down all coal mines?
Mr. Lovett. No, of course not. My lights would go off like
everyone else's if that happened.
Mr. Pearce. So you think that coal--in your testimony you
say that there is no such thing as clean coal.
Mr. Lovett. I believe that. That is why I tell my kids to
turn the lights off.
Mr. Pearce. So you are content with global warming effects
that are attributed to coal, because you say there is no such
thing as clean coal. You are satisfied with those effects into
the future. If you don't have clean coal, and sequestration is
a dream that is probably 40 years in the future, frankly, so
you either shut down the mines, or you understand that we don't
have clean coal.
Mr. Lovett. I misunderstood your question. I thought you
were asking me if we should shut down the mines today. The
answer to that is no. I do believe that we need to start making
a transition away from a coal-based energy economy to more
renewables and to more conservation.
Mr. Pearce. Do you think Mr. Wright was correct, that we
can achieve 20 percent right now?
Mr. Lovett. I don't know the answer to that. I believe that
we need to make a serious effort as a country to wean ourselves
from coal. I don't see that happening.
Mr. Pearce. Do you think that the lack of preserving of the
topsoil that you are bringing up, do you think that is because
of just bad corporations? Or do you think it is feasibly
impossible?
Mr. Lovett. I don't think it is because of bad
corporations. I think that corporations do what agencies allow
them to do. I think that the Act clearly requires that topsoil
be saved, unless it can be shown that there is a substitute
that would be better than the topsoil for the use.
I think that growing trees, growing our native trees, our
Appalachian trees requires a slightly acidic soil, like the one
we have.
Mr. Pearce. Do you see any countries around that do have
the correct standards? I mean, like the Chairman, I find you to
be somewhat disappointed maybe in the environment that exists
today, the environment and the regulatory agencies.
Do you find a country where that is carried out more
properly?
Mr. Lovett. I don't know what happens in other countries. I
have great hopes for our country. And all I can do, of course,
is try to work in my state and in my country to make it as good
as I can.
I don't mean to be a negative person. Generally I don't
think of myself that way, and I apologize if that is the
impression here.
Mr. Pearce. So you could not, in other words, you do a
pretty good job of absolutely ripping every regulator, every
department that is engaged in this. I think many times I am
like the Chairman; I find that very strong.
So if you have an opinion, then it would be productive for
us to see good examples. If those good examples don't exist in
the world, it just might be that you are not the only one
correct; that maybe the regulators are doing the best they can
with a very bad situation. And in fact, maybe those trees might
grow.
Mr. Chairman, I would like to finish. I have some more
questions, too.
Mr. Lovett. May I answer the question? I do think that the
previous Administration was making an effort, the Clinton
Administration was making an effort to change these things. I
think that I am negative about the Administration that is
currently in office, because it has gone out of its way, I
think, to help weaken enforcement in our region. I think that,
and I hope that we will get the next Administration, whether
Republican or Democrat, that will take more seriously the
concerns that we have.
Mr. Pearce. Would any of the four of you, I will just go
down the row, would you favor nuclear energy? Mr. Morris?
Mr. Morris. That is out of my field, Congressman.
Mr. Pearce. Or are all of us going to have to turn on the
switch and get electricity? I understand. Mr. Lovett?
Mr. Lovett. I am the same. I don't know the answer.
Mr. Pearce. Mr. Wright?
Mr. Wright. Well, as I said earlier, I am in favor of
diversifying our electricity portfolio. I think there is
cheaper options out there than nuclear.
Mr. Pearce. Which options would that be?
Mr. Wright. Wind is comparable with the modern-day coal
plant. It would have to be built today and beat all the modern
environmental requirements.
Mr. Pearce. Are you aware that coal, I mean that wind
places a tremendously large footprint on the environment? That
the footprint left by one wind generator is maybe--I forget
exactly, they testified in here--about six or eight times the
size of an oil well. And that an oil well can be drilled out
this way, so you get one footprint. The wind generators have to
be multiplied. And do you think that wind, then, is a
satisfactory environmental solution?
Mr. Wright. Yes. And I have talked with farmers who are
putting wind turbines onto their own property, and they are
going to be able to farm right up to the base of that wind
turbine.
Mr. Pearce. No, believe me, I agree. I think we should have
energy, and I think we should have renewable. And the wind, the
testimony is pretty far into the distant future. And unlike
you, the specialists in the industry say that it is not as
economic; that in fact, we are actually subsidizing it quite
heavily. Wind is subsidized.
We want to shut off coal, and we think that it is not
suitable for the environment. But we, frankly, the industry has
testified that your 20 percent threshold is not achievable in
the near future, and it might be 20 or 30 years away. That in
fact it is 1 percent that it produces today. And converting
from a 52 percent producer of energy to a 1 percent, and
causing that 1 percent to expand geometrically 50 times, is
technologically not capable.
But also, there is no transmission to and from. That is one
of my problems with the bill that we just passed out of here,
that we tried to encourage transmission corridors for the
renewables, wind and solar. But those transmissions corridors
were deeply harmed in H.R. 2337.
And so I do wonder at some point what we are going to do
for energy. I think that Mr. Roberts testified on the previous
panel that we are going to see 30 percent and 40 percent
increases. And it is the low-income people in our population
that are going to really suffer those increases.
Mr. Chairman, I think I have finished. Thank you very much.
Mr. Wright. If I could respond to that. I have heard
similar industry claims. We have just gone through this debate
in our own state, and we did a comprehensive rate base analysis
of what the impact of a 10 percent renewable electricity
standard would be on Indiana electricity rates. And based on
the data we gathered, we only found a 1 percent to 2 percent
cost increase from that 10 percent renewable electricity
standard.
Meanwhile, the industry came back and was claiming anywhere
from 5 percent to 10 percent, but they refused to release any
of the data on where they received, were able to calculate
those figures from.
So you will excuse me if our publicly available data comes
up with one result, but I am somewhat skeptical when industry
comes back with a completely different result, and refuse to
release any of the data on how they reached it.
The Chairman. Thank you. Before proceeding with my last
questions, I see that Mr. Conrad is still with us in the back
of the room, with the Interstate Mining Compact Commission. And
I understand Virginia is a member of your organization.
And if you could help us get to the bottom of this
unpermitted mining issue that Mr. Morris brought up, I know
this committee would appreciate it.
Mr. Conrad. I had thought of it, Mr. Chairman.
The Chairman. Thank you. I take that as an affirmative
answer, for the record. Thank you.
Mr. Wright, let me ask you to expand, if you would, on the
coal power plant combustion waste issue. As you know, I am the
one who requested the National Research Council study to which
you referred.
For instance, to what extent are you aware that these waste
residues are being employed in mine reclamation?
Mr. Wright. First of all, thank you for calling for that
report. I can't say nationwide. I know, just for example,
Indiana. We have calculated the total permitted tonnage
currently existing, and it is 125 million tons just for Indiana
mines. That is about as much as produced nationwide in one
year.
And I believe in Pennsylvania and West Virginia, there is
even more large-scale dumping. So we are talking on the order
of hundreds of millions of tons being planned to be shipped to
these mines.
The Chairman. Over what time period is that?
Mr. Wright. Again, I can't answer that off the top of my
head. There is going to be a report coming out on the
Pennsylvania program soon that should have a little bit more
details on that.
The Chairman. Would you share those----
Mr. Wright. Yes.
The Chairman.--results with this committee?
Mr. Wright. Yes.
The Chairman. Thank you. Ms. Pfister, certainly you have a
great deal of experience with SMCRA; you stated that in your
testimony, and you have a long and dedicated history. This
committee certainly appreciates that.
From the perspective of the West, what is the single
largest issue of concern? Is it the aquifer removal issue that
you noted in your testimony?
Ms. Pfister. I would say that it is, sir, because the water
that lies within the mine permit area is basically considered,
it is just like it is not there. Whatever time and fate does to
it, that is what is going to be. There is no attempt to
protect. There is water in some places that comes in on one
side of the pit, goes into the spoils material, and then goes
on down out the other way. There is no attempt to conduct that
water to protect it from touching the soils materials, or
completely absorbing and becoming a mud in the bottom.
And in the West, where you don't have a whole lot of
streams, which is typical of eastern Montana and Wyoming, that
groundwater is the resource. For instance, at Colstrip,
Montana, they have disturbed around 22,000 acres. So you have
basically got 22,000 acres of unpredictable water quality in
that area. And of course, eventually the pollution in the mine
moves as a plume down the country.
So what you are trying to do in the mine would be to
minimize the amount of water quality degradation that you get
as a result of mining.
There is no thought, no experiments, no technical studies
on how to do this. It is just mine it and dump it back in. And
I would say that is the worst problem. Because if we don't have
water in the West, we don't have anything.
The Chairman. So you have Clean Water Act issues here, as
well.
Ms. Pfister. You certainly would if you threw in some coal
combustion waste. But with what you have, I don't know if it is
clean water, but you are just not supposed to make it so
terrible that you can't use it.
And of course then you have your water quality standards,
your Class I, your Class II, and your Class III. But eventually
there comes a point when a cow won't drink it, either.
The Chairman. OK, thank you. Do you have any further
questions?
[No response.]
The Chairman. Thank you very much for being with us today.
Mr. Morris. Thank you, sir.
The Chairman. Our next panel, number five, is composed of
the following individuals: Harold P. Quinn, Jr., Senior Vice
President, Legal and General Counsel, National Mining
Association, Washington, D.C.; William B. Raney, President,
West Virginia Coal Association, Charleston, West Virginia; Eric
Fry, Director of Regulatory Services, Peabody Coal Company, St.
Louis, Missouri, on behalf of the Illinois Coal Association;
and Marion Loomis, Executive Director, Wyoming Mining
Association, from Cheyenne, Wyoming.
Gentlemen, we welcome you to the Committee. We appreciate
the sacrifices you made to be with us today, the travel and
being with us for close to five hours now. So we appreciate
your patience.
Hal, you may go first. Good to see you again. And Bill, it
is always good to be with you, as well.
STATEMENT OF HAROLD P. QUINN, JR., SENIOR VICE PRESIDENT LEGAL
AND GENERAL COUNSEL, NATIONAL MINING ASSOCIATION, WASHINGTON,
D.C.
Mr. Quinn. Thank you, Mr. Chairman. Good afternoon, and
good afternoon, Congressman Pearce. I appreciate your
attendance today.
We appreciate the opportunity and the invitation to be here
to speak about our SMCRA experience on this 30th anniversary.
Let me begin by an observation that I suspect that among
those on hand when President Carter signed Public Law 95-87 on
a summer morning 30 years ago, only a few perhaps would have
forecasted the successes of this coal industry and the state
and Federal regulators in both responding to the nation's
increasing demand for more energy and improved environmental
performance.
In the 30 years since SMCRA's enactment, the coal industry
has supplied over 29 billion tons of coal to fuel our nation's
energy requirements and prosperity. This is the equivalent of
115 billion barrels of oil, and is five times our proven
domestic oil reserves.
In the meantime, over 2.2 million acres of land supplying
this coal resource have been restored to a wide variety of
productive uses, including farmlands, as we see here in
Indiana, pasture lands, wildlife refuges, gold courses--a
stunning and challenging gold course, Twisted Gun in West
Virginia--as well as wetlands and timberlands, recreational
areas, and areas for even commercial development.
These achievements of the first order in energy production,
environmental stewardship, and reclamation are the product of
collective efforts of the coal industry and state and Federal
governments. They underscore the underlying strength of
America's coal resource as a foundation of our nation's
prosperity and energy security.
Now, SMCRA was the culmination of a sustained effort
throughout the 1970s to enact a comprehensive Federal
regulatory program for coal mining. I recall that in the 1970s,
our nation was in the throes of an economic turmoil related to
its vulnerable dependence upon foreign sources of energy. SMCRA
attempts to strike a balance between our nation's need for coal
as an essential energy source, and our need to protect the
environment.
This balance rests upon several key principles. First, coal
is an indispensable and prominent part of our nation's energy
requirements and prosperity.
Second, coal mining should serve as a temporary use of the
land.
Third, coal mine development and resource management must
be integrated to successfully restore mine lands to support
future uses.
And finally, given the diversity in terrain and other
physical conditions among our coal mining regions, states are
best positioned to develop and administer programs designed to
meet those objectives.
SMCRA is an ambitious law. Its protracted and contentious
legislative history caused some of your colleagues to predict
that the law's implementation would meet with regulatory delays
and endless litigation. Unfortunately, the early SMCRA
experience would not disappoint them.
The first attempt to implement the permanent regulatory
program produced 150 pages of regulatory text to flesh out what
was already a fairly descriptive 90-page statute. This
regulatory text was accompanied by another 400 pages explaining
what that regulatory text actually meant. The detail and the
complexity of the regulations defy comprehension by those
charged with complying with it, the industry, as well as those
who are tasked to implement it, the states. I suspect that it
even challenged the comprehension of the legal minds that
produced the product itself.
Several years later the program was revised to substitute
performance-based approach for inflexible design standards, and
to empower the states to tailor more suitable versions to
accommodate their regional differences.
Not surprisingly, based on this experience, SMCRA
implementation has proven a fertile ground for litigation.
About a little past a decade into its implementation, one court
observed this history or captured aptly this history with the
following metaphor beginning its opinion on a rules challenge.
``As night follows day, litigation follows rulemaking under
this statute.''
But from there, the program also experienced a difficult
transition from its initial phase of shared Federal and state
responsibilities to the permanent phase that vested day-to-day
regulatory authority with the states. The coal industry
expected to find, during this permanent phase, only one
regulatory master in the field: the state. Both for purposes of
inspections, as well as permitting. Instead, the coal industry
often found itself positioned between conflicting state
directives and Federal demands.
Further complicating the regulatory transition were
structural changes the coal industry was, upon the coal
industry by both market forces and public policy choices. These
changes included rapid consolidation within the industry driven
by falling prices in coal, which required a powerful and
sustained increase in mine productivity to cope with these
decreasing margins.
At the same time, public policy choices and the Clean Air
Act created a dramatic shift in coal production on the eastern
coalfields to the western United States.
As we have already mentioned, it was through perseverance
and innovation that the coal industry has mastered the demands
of the law. We have made a substantial investment, and we can
report some impressive successes. As I previously indicated, we
restored 2.2 million acres of land to productive uses. We have
provided wildlife habitat for a diverse variety of species,
created recreational areas, paid over $8 billion in abandoned
mine land taxes to restore unreclaimed lands, mines, prior to
SMCRA, and we have developed innovative reclamation and
technology practices.
These accomplishments have all occurred while the coal
industry continues to supply the fuel that accounts for one
third of our primary energy production, and over half of
electricity produced in the United States.
Tomorrow's successes will depend largely upon the lessons
we have learned from our 30-year experience under SMCRA. At
this point, I would like to just mention a few that we find
particularly instructive.
First, when it comes to regulatory approach, design
standards versus performance standards, we find that the early
reliance on successfully prescriptive design standards
compounded the complexity and detail of the statute.
Performance standards have been far more effective and
responsive to the very conditions under which mining operations
operate. We believe the switch to performance standards in the
1980s has contributed greatly to the mine land reclamation
successes we see today.
On state primacy, each state and region has different
conditions and needs and interests when it comes to land use.
Mr. Chairman, as our mutual friend, Ben Green, former President
of West Virginia Mining and Reclamation Association, once
advised, a perfectly good hunting dog in Wyoming may not hunt
in West Virginia, and vice-versa.
SMCRA recognizes this. Indeed, state primacy is the
cornerstone law because good ideas and practices in one state
for meeting a national goal may not be a good one in another.
However, right now it appears that state primacy may be
threatened by fiscal constraints to some of these states that
jeopardize their continued retention of their programs. The
time may be coming to consider adjusting the laws matching the
Federal funding formula in order to support the continuation of
state primacy.
Regulatory duplication and efficiency is still a remaining
legacy of SMCRA. While SMCRA established a comprehensive
program for regulating the effects of coal mining, it did not
displace all existing laws that address the specific resources
coal mining affects.
A prominent example is the Clean Water Act, which overlaps
SMCRA's extensive requirements for hydrologic analysis and
measures to protect water quality. We believe that by relying
more upon the regulatory benefits of SMCRA, we can avoid the
unnecessary duplication, and achieve greater regulatory
efficiencies.
Let me close with this one observation. When President
Carter signed SMCRA three decades ago, energy independence was
a national imperative. It is no less so today. Since SMCRA's
passage, our energy use has jumped 23 percent, but our energy
production has increased by only 7 percent. Meanwhile, energy
imports have climbed by 70 percent.
There is no question that our nation will require more
energy in the future; the only question is where we will find
it.
Not surprisingly, it is expected that coal will remain a
vital national resource. Coal consumption is projected to
increase by 50 percent through 2030 just in order to meet our
future electricity requirements.
Meeting these demands will be a challenge, but a challenge
that can be met with policies that enhance the role of all our
energy sources, including coal. SMCRA will continue obviously
to play a major role in that effort.
Thank you, Mr. Chairman. Thank you, Mr. Pearce, for your
attention today.
[The prepared statement of Mr. Quinn follows:]
Statement of Harold P. Quinn, Jr., Senior Vice President &
General Counsel, The National Mining Association
My name is Hal Quinn, senior vice president, legal and regulatory
affairs, and general counsel for the National Mining Association (NMA).
I am appearing on behalf of the NMA to testify about the coal mining
industry's experience and success under the Surface Mining Control and
Reclamation Act (SMCRA) of 1977. I suspect that among those on hand
when President Carter signed Public Law 95-87 on a summer morning 30
years ago, only a few would have ventured to predict the many successes
of America's coal industry in responding to the nation's increasing
demand for more energy and improved environmental performance.
NMA represents producers of over 80 percent of America's coal--a
reliable, affordable, domestic fuel that is the source of more than 50
percent of the electricity used in America. NMA's members also include
the producers of metals and non-metal minerals, manufacturers of mining
equipment and supplies, transporters of coal and mineral products, and
other firms serving the mining industry.
General Introduction
In the 30 years since SMCRA's enactment, the coal industry has
supplied over 29 billion tons of coal to fuel our nation's growth and
prosperity. This is the equivalent of 115 billion barrels of oil and is
five times our proven domestic oil reserve. Over 2.2 million acres of
the lands supplying this coal resource have been restored to a wide
variety of productive uses including farmlands, pastures, wildlife
refuges, parks, recreational areas, wetlands, and commercial
development. These achievements of the first order in energy
production, environmental stewardship and reclamation are the product
of the collective efforts of the coal industry, and state and federal
governments. They underscore the underlying strength of America's coal
resource as the foundation of our nation's prosperity and energy
security.
SMCRA Legislative History
SMCRA was the culmination of a sustained effort throughout the
1970's to enact a comprehensive federal regulatory policy for coal
mining. Unlike environmental legislation directed at the impacts of
many industries upon one natural resource--e.g., Clean Water Act, Clean
Air Act--SMCRA focuses upon one industry and its effect upon various
natural resources. As the legislation proceeded through successive
congressional sessions, the product transformed from a 17-page version
passed by the House of Representatives in 1972 to a 90-page bill
reported by the conference committee and signed by President Carter on
the morning of August 3, 1977.
Throughout the protracted legislative process, one theme emerged to
become the central purpose of the law: strike a balance between our
nation's need for coal as an essential energy source and protection of
the environment. Recall that in the 1970's, this country was in the
throes of economic turmoil related to its vulnerable dependence upon
foreign sources of energy. The oil embargo in October of 1973 focused
attention on domestic energy security and the ability of our domestic
coal resources to meet increasing energy requirements. At the same
time, concerns existed about the potential environmental consequences
of increased coal mining.
The balance SMCRA intends to strike between meeting our energy
needs and environmental protection rests upon several principles.
First, coal is an indispensable and prominent part of our nation's
energy requirements and prosperity. Second, coal mining should serve as
a temporary use of the land. Third, coal mine development and resource
management must be integrated to successfully restore mined lands to
support future uses. And, fourth, given the diversity in terrain and
other physical conditions among our coal mining regions, states are
best positioned to develop and administer programs designed to meet
those objectives.
Industry's SMCRA Experience
The protracted and contentious legislative history of SMCRA caused
some lawmakers to predict that the law's implementation would meet with
regulatory delays and endless litigation. See H.R. Rep. No. 218, 95th
Cong., 1st Sess. 193 (1977). The early SMCRA experience would not
disappoint them. The first attempt to implement the entire range of
permanent program requirements produced 150 pages of regulatory text to
``flesh-out'' an already prescriptive 90-page statute. An additional
400 pages were required to explain what the regulations meant. Several
years later, a comprehensive review of the rules converted some of the
unyielding design standards to more flexible performance standards and
empowered states to tailor more suitable versions to accommodate
regional differences.
Not surprisingly, SMCRA implementation has proven fertile ground
for litigation. The battles waged over SMCRA implementation have
extended from the most fundamental questions about the jurisdictional
reach of the law to the more arcane, such as the permissible
conservation and husbandry practices to demonstrate successful
reclamation. One court aptly characterized this early regulatory
history with the following metaphor: ``As night follows day, litigation
follows rulemaking under this statute.'' National Wildlife Federation
v. Lujan, 950 F.2d 765, 766 (D.C. Cir. 1991).
Apart from the turmoil accompanying efforts to establish the basic
regulatory framework, the program experienced difficulty in its
transition from the initial phase of shared federal and state
responsibilities to the permanent phase that vested day-to-day
regulatory authority with the states. In the field, the coal industry
expected to see only one regulator, the state, for both permit and
inspection tasks. The states shared a similar expectation since SMCRA
declared that they would assume ``exclusive'' regulatory jurisdiction
upon approval of their laws and regulations, and that the Federal
Office of Surface Mining (OSM) would recede to a secondary role of
overseeing state performance. In practice, the coal industry found
itself positioned between conflicting state and federal applications of
the law. States saw their exclusive role undermined with little
deference or respect accorded to their applications of the law by OSM.
Serving two regulatory masters further compounded the difficulties
coal companies confronted in complying with changing regulations.
Uncertainty becomes especially frustrating to a regulated industry that
operates under a statute that places a premium upon the principles of
planning and sound resource management. The absence of a stable
regulatory framework undermines the planning imperative. Changing
standards and inconsistent application compromise the integrity of any
planned strategy.
Changes in Industry Structure
In the midst of this regulatory transition, the coal industry
experienced structural changes as a result of a combination of market
forces and public policy choices. The number and size of coal mines and
companies changed substantially. When SMCRA was debated, economic
analysts predicted that coal prices would soon exceed $50 a ton. These
forecasts proved well off the mark. The average price of coal in real
terms declined $10 per ton in just 10 years (1975-1985), and by 1988 it
fell to $22 a ton.
These market conditions forced a rapid consolidation within the
industry. Between 1976 and 1986 the number of producing coal mines
dropped by 32 percent (from 6,161 mines to 4,201 mines) while
production increased by almost the same percent (from 685 million tons
to 886 million tons). The remedy for the diminishing margin between
increasing mining costs and decreasing coal prices was a powerful and
sustained increase in productivity, i.e., more production from fewer
and larger mines and companies. The trend in consolidation continued,
and the coal industry today produces 40 percent more coal (1.2 billion
tons) from 75 percent fewer mines than it did just before SMCRA's
enactment.
Perhaps the most significant development related to coal markets
over the past 30 years is the shift in coal production from the Eastern
coalfields to the Western United States. Coal demand in the United
States is driven by the electric power sector, which consumes 90
percent of annual coal production. The policy choices arising over the
last two decades under the Clean Air Act substantially influenced the
fuel choices made by the electric power industry. The increasingly more
stringent limits on emissions of sulfur dioxide at power plants made
low-sulfur coal in the Western United States a cost-effective
compliance strategy for many power plants. Favorable geologic
conditions and economies of scale off-set the disadvantages some
Western mines confront due to their distance from markets. As a result,
coal produced from mines west of the Mississippi--which accounted for
only 25 percent of the annual production in 1977--comprises almost 60
percent of production today.
SMCRA Successes
Both the industry and the SMCRA program have evolved over the past
30 years. Through persistence and innovation and aided in part by
maturation in the administration of the regulatory programs, the
industry has mastered the demands of the law. We are hopeful the
program has turned the corner where conflict has given way to
cooperation, and litigation has been replaced by innovation. The
investment to date has been substantial, and we can continue to report
impressive returns:
Restoration of 2.2 million acres of land to productive
uses--three times the size of Rhode Island;
Farmland with crop yields that exceed their pre-mining
capabilities;
Pasture lands that support grazing of more livestock per
acre than pre-mining capabilities;
Wildlife refuges providing new habitats for a diverse
variety of species;
Recreational areas to support fishing, hunting and other
leisure activities;
Forest lands;
Sites in steep slope terrain that will support
commercial, residential and economic development in areas where land
suitable for such purposes is limited or unavailable;
Payment of over $8 billion in Abandoned Mine Land (AML)
taxes to restore unreclaimed mined lands abandoned prior to SMCRA;
Restoration through remining of more abandoned mined
lands than the AML program--at no cost to the AML program; and
Innovations in reclamation technology and practices
including post mining landscape design and land use planning, water
management and treatment technology, and ground control and subsidence
mitigation measures.
These accomplishments have all occurred while the coal industry
continues to supply our nation annually with the fuel that:
Generates over half of all the electricity in America;
Affordably furnishes the power to support over 151
million Americans in all activities of their daily life;
Reliably provides the power to support employment of
almost 127 million Americans; and
Accounts for one-third of our primary energy production--
the largest portion of any energy source.
Lessons Learned
It would be imprudent to simply praise these collective
achievements without drawing any lessons from the 30 years of
experience in the implementation of SMCRA. Tomorrow's successes will
depend largely upon whether we learn anything from our past.
Design vs. Performance Standards: Some have observed that the
excessive complexity and detail of the statute, compounded by the zeal
of the federal agency to outdo the legislators with even more detailed
regulatory design standards, defied comprehension--let alone
implementation--by the industry and states, and even by the legal minds
that produced the regulatory product. Design standards are inherently
inflexible and counterintuitive for national goals whose success will
require the accommodation of diverse physical and geological
conditions. A design standard approach to regulation stymies
innovation. By contrast, a performance-based approach can accommodate
new technology and advancements in mining and reclamation practices and
is therefore more responsive to the diverse conditions found in the
mining regions and an evolving industry. The switch to performance
standards in the 1980's contributed greatly to the mined land
reclamation successes we see today.
State Primacy: The regulation of land use, a historically local
prerogative, on a national basis is difficult at best, and all but
impossible if local, state and regional differences cannot be accounted
for in the implementation of statutory goals. Each state and region has
different needs and interests when it comes to land use. As our good
friend, Ben Greene, the former president of the West Virginia Mining
and Reclamation Association, once advised, ``a perfectly good hunting
dog in Wyoming may not hunt in West Virginia, and vice versa.'' But
SMCRA recognizes this: indeed, state primacy is the cornerstone of the
law precisely because good ideas and practices in one state for
achieving a national goal may not be good ones in another. State
primacy needs to be supported culturally and financially to assure
continued success. For the most part, the earlier distrust of state
capabilities has receded and has been replaced by respect and
cooperation between the federal and state agencies. However, fiscal
constraints in some states may jeopardize the continued retention of
their programs. Consideration should be given to altering the law's
matching federal funding formula, which is capped at 50 percent of
program costs, particularly as one considers that some of the increased
costs have arisen from new federal mandates imposed by OSM regulatory
initiatives. The OSM experience in Tennessee is ample proof that
investing a greater share of federal dollars into state primacy will
save the federal government substantially, since the state programs
have been dollar-for-dollar more cost-effective than a federal program.
Regulatory Duplication and Efficiency: SMCRA established a
comprehensive program for regulating the effects of coal mining upon a
wide array of natural resources. Nonetheless, it did not displace all
existing laws that address specific resources, for example the Clean
Air Act or Clean Water Act. In the past, this overlap has caused
confusion and, at times, conflict for the industry in meeting
overlapping program goals. The Clean Water Act is a prominent example
of this overlap. SMCRA contains extensive requirements for hydrologic
analysis, monitoring and protection requirements for coal mines. In
some cases, federal and state agencies have strived to reconcile these
programs and minimize duplication. Nonetheless, more can still be done
to rely upon the regulatory benefits of SMCRA, avoid unnecessary
duplication, achieve regulatory efficiencies and reap the attendant
environmental benefits as envisioned by both the Clean Water Act and
SMCRA.
Looking Ahead
As we reflect today upon SMCRA's 30th anniversary in light of
today's energy picture, I cannot help but think of the film Back to the
Future. When President Carter signed SMCRA that Wednesday morning in
the Rose Garden, ``energy independence'' was a national imperative. It
is no less so today, but it now goes by the name ``energy security.''
Today, we import about 60 percent of our petroleum needs, a share that
the Energy Information Agency (EIA) projects will grow to 75 percent by
2030. By that time, we will consume 28 percent more oil and 19 percent
more natural gas. Yet the United States has only 3 percent of the
world's oil reserves and not much more of its gas reserves. Since
SMCRA's passage, our energy use has jumped 23 percent, but our energy
production has increased by only 7 percent. Meanwhile, energy imports
have climbed by 70 percent.
We sometimes forget that the United States is a growing country.
Our population grew by almost 3 million people in 2005 and now exceeds
300 million. Our economic growth has eclipsed most mature economies.
So, there is no question that our nation will require more energy in
the future, just as it did 30 years ago, to sustain our economic
growth. We will use energy more efficiently due to technological
advances, conservation and increased efficiency. But, we will still use
more energy. Not surprisingly, therefore, coal consumption is projected
to increase from 22.9 quads in 2005 to over 34 quads in 2030,
reflecting the 156 gigawatts of new coal-based generating capacity that
are projected to be needed by the end of the EIA forecast period.
Meeting this demand with reliable, affordable and secure sources
will be a challenge, but a challenge that can be met with the correct
policies that enhance the role of all domestic energy sources,
including policies that ensure that our coal resources can continue to
play the critical role in our energy future.
Conclusion
Thank you for the opportunity to share with you the mining
industry's experience under SMCRA and to express its views on the
critical role of our domestic coal resources to our nation's energy
security and prosperity.
______
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STATEMENT OF WILLIAM B. RANEY, PRESIDENT, WEST VIRGINIA COAL
ASSOCIATION, CHARLESTON, WEST VIRGINIA
Mr. Raney. Mr. Chairman, members of the Committee, I am
Bill Raney, and I am representing the West Virginia Coal
Association, whose members collectively produce more than 85
percent of West Virginia's coal. And as was said earlier, we
were the first state to gain primacy in 1979, under SMCRA.
I am also pleased and equally proud today to represent the
associations from seven states of the Appalachian region of
this country, in addition to West Virginia. Those would be
Virginia, Maryland, Pennsylvania, Ohio, Kentucky, that all
surround us, and our southern neighbor, Alabama.
When you think about all those who are mining the coal and
protecting the environment in those seven states, I am very
fortunate to be representing more practicing environmentalists
than any organization in this country, and I suggest in this
world. More than 20,000 of them in West Virginia are digging
coal every day. More than 13,000 of them belong to Cecil
Roberts' organization across the seven states.
There are more than 54,000 coal miners in these seven
states, and that comprises more than 70 percent of all the coal
miners in this nation. And every one of them, as I say, is a
practicing environmentalist. Along with the thousands of
specialty contractors, every day they are practicing mining
stewardship. They are constructing ponds, backfilling, watering
roads, maintaining ditches, protecting water quality, planting
trees and native grasses.
They are protecting the land like it is their own, because
they want their children and their grandchildren to hunt the
same mountains and fish the same streams that they did when
they were growing up. They are practicing environmental
protection. They are not marching about it, nor are they
preaching about it. They make it happen every day. And they are
proud of their work, and we are extremely proud of what they do
each day.
But we are concerned, Mr. Chairman, about them and their
future, and we are here to ask for some help. We were
supportive of SMCRA in 1977, upon its passage. And because of
the changes you made, Mr. Chairman, so that the bill would be
workable in the East. It provided for valley fills, it provided
for mountaintop mining, and it provided for the reasonable
regulation of steep-slope mining. It intended for OSM and SMCRA
to be the one and only regulatory program for coal mining
throughout the country. And we need to return to that solid
foundation of 30 years ago. We need your attention to remove
the conflicts and the overlaps that we see today.
The states and OSM continue to make professional progress,
but other agencies are frustrating that process, as they have
over the years. But more frustrating is the continued filing of
opinion-based lawsuits attacking the very foundation of this
Act by exploiting these overlaps between SMCRA and the Clean
Water Act.
Lawyers and opponents who seem to offer no real alternative
continue to file suit after suit, and threaten our people's
jobs, despite each of those suits getting overturned on appeal
every time.
Looking back, the purpose of the original legislation of
striking a balance between the protection in the environment
and the nation's need for coal as an essential source of energy
has been accomplished, and continues to be accomplished today.
With all the attention being given to global warming today,
being the sexy topic of the day it seems, the world has
overlooked our leadership: West Virginia's leadership,
Appalachian Region's leadership, and America's leadership, and
the continued mining of coal, and the continued protection of
our environment. We literally in America are the best in the
world at mining stewardship, and no one seems to be paying any
attention.
The Abandoned Mine Land Program created by SMCRA has been
remarkably successful, with the reclamation of pre-law sites,
the protection of healthcare for the United Mine Worker miners,
and the installation of drinking water systems in many areas of
rural America.
However, without new permits, expanded operations and
continued mining, the benefits of the AML program and the UMWA,
to the UMWA and to the mining states, will cease. And
remarkably, we have judges in West Virginia who don't seem to
make that connection.
Since 1977, SMCRA has provided for valley fills, drainage
control, and mountaintop mining. And for 30 years the states
and the industry have proven that those work. With consistent
refinement, reclamation has been exceptional. The coordination
of mining with highway construction and development has
provided benefits thought impossible 30 years ago. It is the
persistence of the industry and its vendors. It is the
dedicated professionalism of our coal miners, the unique
oversight of OSM, and the flexibility of the states that have
combined with the solid platform of SMCRA to better protect the
environment than ever before, as we continue to mine coal for
our energy independence.
So, Mr. Chairman, you are to be complimented, because we
are better today than we were yesterday. In 1996, as you may
recall, Secretary of the Interior Bruce Babbitt stood on a
mountaintop operation with valley fills in Boone County, West
Virginia, and stated that this is what was intended when the
law was passed in 1977. It is that way today. The intent of the
law is being carried out, and we are proud of that.
However, there are judges and redundant lawsuits attempting
to alter the 30-year-old wisdom of Congress, at the expense,
and most concerning at the expense of our people in the East. A
strong alliance for 30 years between the states, OSM, and
industry has served this country well. And we hope you will
help us, Mr. Chairman, preserve our future as we go through the
next 30.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Raney follows:]
Statement of William B. Raney, President,
West Virginia Coal Association
Good morning, Mr. Chairman, members of the Committee, I am Bill
Raney, President of the West Virginia Coal Association.
First, let me thank you, Mr. Chairman, as well as the members and
staff of the Committee for the opportunity to participate in this
oversight hearing regarding the 30th Anniversary of the Surface Mining
Control & Reclamation Act (``SMCRA'') of 1977. I am very proud to be
here on behalf of the Coal Association's membership, which accounts for
over 85 percent of the Mountain State's underground and surface coal
production. Today's coal industry in West Virginia directly employs
more than 20,000 miners and more than 25,000 contractors whose
specialty skills and services are required to keep mines operating
everyday.
For purposes of today's hearing, I am most proud to have been asked
to also represent the Coal Associations from the states that
collectively make up this country's Appalachian coal basin. In addition
to West Virginia, those include Kentucky, Virginia, Maryland,
Pennsylvania, Ohio and Alabama. In 2005, these states produced more
than 37% of this nation's coal while employing more than 54,000 coal
miners, nearly 70% of the country's total mining workforce. Again,
using 2005 Energy Information Administration statistics, more than 62%
of the miners in Mr. Roberts' United Mine Workers of America
(``UMWA''), are working in one of these seven states. As you can see,
this region is absolutely critical to sustaining this nation's energy
production and the employment of a majority of America's coal miners
(see generally attachments ``A'' and ``B'').
I am honored to represent the proud heritage of mining in this
region that fueled the industrial revolution and made the United States
the most powerful nation in the world. The Appalachian coal basin
fueled the furnaces, foundries and mills that built the enduring
infrastructure of this country, it powered the nation's railroad system
and it helped America achieve victory in two world wars. The proud
miners of today continue that legacy so they can raise their families
and provide a future for their children in the same area where they
were raised, the states of Appalachia. Continued coal mining in West
Virginia and the eastern states is absolutely critical to this future.
That, Mr. Chairman, accentuates the importance of what you did
thirty years ago. Your influence and involvement, recognizing the
challenges of mining coal in the eastern United States, with provisions
for steep slope and mountain top mining as well as the use of valley
fills, allowed the bill to be passed and signed into law, after two
previous vetoes and a difficult time in Congress. The passage of HR2
and the signing of Public Law 95-87 was important to the continued
viability of mining in the Appalachian region as it proposed national
standards for permitting while allowing states the flexibility to
specifically tailor their regulatory programs to meet their unique
needs through the innovative concept of primacy. These thirty years
have not been without difficulty, conflict and heated exchanges, but
the original platform of SMCRA remains in place and has been
successful. It is important that this continue because the needs of the
eastern U.S. industry are quite different from those of the industry in
the Midwest and the Western states.
While the practicality of SMCRA has matured over the years through
interpretation and regulatory implementation, it was the amazing
foresight of its purposes that makes it more pertinent today than ever
before. As you will recall, Mr. Chairman, thirty years ago the framers
of this legislation stated one of the purposes of the Act was to
...assure the coal supply essential to the Nation's energy
requirements, and to its economic and social well-being is
provided and strike a balance between protection of the
environment and agricultural productivity and the Nation's need
for coal as an essential source of energy.
When one considers the tremendous progress our society has made
over the past three decades, most of which is energy-dependent, with
the fact that America's coal production has nearly doubled in that same
period, the relevance of that 30-year-old purpose is evident.
Deliberate pursuit of that purpose is more important today than it was
in 1977.
It is imperative that U.S. coal production increases so as to
contribute to America's energy security and it is equally critical that
production from the Eastern states be sustained in order to ``keep
America's lights on'' and to provide Americans with a comfortable,
convenient, electrically-dependant, lifestyle. In so many ways, the
modern-day American dream is one that is coal-fired and it requires all
of our coal, whether it comes from the East, the Midwest or the West.
OSM's demonstrated ability to run SMCRA's national regulatory program
while recognizing the needs of different regions is critical to this
sustainment and America's continued growth as a model for reclamation
and environmental protection throughout the world.
SMCRA has provided the ``baseline'' of legislation and regulation
that has allowed our industry to answer the changing energy needs of
this country and we have accomplished that with professional
stewardship. It is SMCRA's solid foundation that has afforded our
people the opportunity to ``set the pace'' for reclamation and
environmental protection. No one ever gives credit to the states, OSM,
Congress, the coal industry or our people for the fact that we are
leading the world in mining stewardship. It is a fact and thereby,
perhaps, not newsworthy! It is, however, something we point to with
pride and is ever more important so as to preserve the jobs and
professions of our more than 54,000 miners and thousands of specialty
contractors.
Because all of our employees are ``practicing environmentalists'',
working every day to insure their environment, the environment around
the mine, is protected, preserved and maintained. Every time I get the
chance I tell people I am proud to represent more ``practicing
environmentalists'' than any other organization in the world. That is
especially true today since I am speaking for the other six Appalachian
coal-mining states. You see, each one of these miners or contractors is
protecting the environment while they are mining or helping to mine our
coal. They may be protecting water quality, restoring original land
contours or providing for future developments, planting trees,
constructing ponds and doing the myriad tasks required to insure that
their children and grandchildren can hunt the same mountains and fish
the same streams as they once did. These coal miners and practicing
environmentalists are proud of their work to both fuel this country and
protect its social and natural environment, and we are, of course,
proud of them and their enormous contribution to the economy, security
and social fabric of their native states and this great country and I
am honored to speak on their behalf today.
While the reasonable implementation of SMCRA has provided a
platform for these demonstrated achievements, it remains under constant
attack by lawyers, groups and other federal agencies attempting to
detract from its original purposes and intents. Congress intended,
thirty years ago, for SMCRA to be the ``brace'' of protection as the
primary environmental enforcement structure for coal mining throughout
the federal government and to standardize the complications of
permitting and regulation among the states and Indian reservations.
SMCRA was to literally ``level the field'' of requirements among the
states and other federal agencies for permitting, operating and
reclaiming mine sites throughout the country.
Despite this intent for SMCRA to be the ``federal baseline'', some
30 years after its passage there remains conflict and uncertainty.
SMCRA encouraged and, in some cases, directed other federal agencies,
i.e., EPA, the Corps of Engineers and other Department of Interior
offices and services, to cooperate with OSM. SMCRA's regulatory
requirements were to become the platform for evaluating and permitting
mining operations, no matter where they were or what type of operations
they proposed. Here we are thirty years later and that still has not
happened. That ``overlapping redundancy'' provides fertile ground for
harassing lawsuits and judicially inspired regulatory confusion, which
is typically overturned at the appeal court level.
Since 1997, there have been scores of federal lawsuits challenging
the very foundation of the mining regulatory structure sanctioned and
approved by Congress in 1977. Most of these challenges centered on the
practice of valley fill construction. All coal mining, surface and
underground, in the steeply sloped terrain of Appalachia is dependent
on the ability to construct valley fills, a practice that was started
in West Virginia and recognized by Congress in SMCRA as the best
possible way to safely and permanently store the excess dirt and rock
not needed to restore the approximate original contours of the land
following the completion of mining (see attachment ``C'', relevant
pages from OSM's implementing regulations, attachment ``D'', relevant
pages from a decision from the U.S. Court of Appeals for the Fourth
Circuit decision regarding SMCRA and the practice of valley fill
construction and attachment ``E'', photographs of active and reclaimed
valley fills). As you may recall, Mr. Chairman, this was one of the
issues that was addressed before the bill was approved in 1977.
However, time and time again federal judges, reacting to the claims of
extremist environmental groups, have interpreted the Clean Water Act to
outlaw the very activities that Congress approved in SMCRA.
For example, SMCRA mandates the installation of ponds below valley
fills. These sediment ponds were recognized by Congress as the best
technology available to control runoff and meet water quality standards
from mining operations (see attachment ``F'', photographs of valley
fills and in-stream ponds, attachment ``G'', relevant pages from an
OSM-published Handbook for Small Mine Operators and attachment ``H'',
relevant pages from OSM's implementing regulations). In June of this
year, a federal judge, reacting to an extremist lawsuit, ruled that
these ponds cannot be constructed because they are illegal under the
Clean Water Act. So, we have a federal judge using one statute to
outlaw another agency's regulations, despite 30 years of outstanding
experience and accomplishment through OSM's interpretation and
implementation of SMCRA.
All of that frustrates the development of mining operations in
Appalachia and needs Congressional attention. The overlaps that exist
between SMCRA and the other federal environmental laws and programs
need to be addressed with the same intent as expressed in 1977 that
SMCRA was and is to be the ``federal baseline'' for permitting and
enforcement of mining operations throughout the country. While some
agencies have perpetuated this confusion, the U.S. Army Corps of
Engineers through its Assistant Secretary for Civil Works and its
Huntington and Pittsburgh District offices have done as much as
possible to reduce and eliminate conflicting program requirements under
SMCRA and section 404 of the Clean Water Act. Despite the cooperative
efforts of these two agencies pursuant to SMCRA, lawyers continue to
attempt to stop mining in West Virginia and take the jobs of our miners
and disrupt their lives and the lives of their families. These lawyers,
which usually end up being paid by the federal government, are
exploiting these ``redundant overlaps'' among the programs. We hope you
and the Committee will give this matter your prompt attention because
the original intent of SMCRA was clear in 1977 and has typically
withstood many legal tests.
As mentioned earlier, the 1977 Act showed great foresight and
vision relative to America's importance as a leader in balancing the
world energy needs and protecting its environment. SMCRA is also unique
in that it provided not only the structure for regulation of future
coal mining activities, it also established the Abandoned Mine Lands
(AML) program, funded entirely by a tax collected on active coal
production, to address the environmental, social and infrastructure
problems presented by older sites that had been mined prior to the
passage of SMCRA. It is important to emphasize the fact that this
entire program is paid for completely with industry money because many
Americans are not aware of the benefits of this program and the fact
that it is funded entirely by the industry. This successful program
continues to reclaim ``pre-law'' mine sites, install much-needed
infrastructure in rural mining areas, address emergency situations from
past mining and provide medical benefits for thousands of the retired
coal miners and their dependents. Again, the foresight and vision of
SMCRA, as expressed in 1977, is evidenced in the successful AML
Program. However we feel more credit needs to be given to the fact that
this program is funded with money from today's coal production and how
important it is for coal mining to continue so the AML program can be
sustained at the same level of funding. Lawyers and judges need to
recognize the implication of diminished domestic coal production on
this notably successful program of environmental remediation,
infrastructure development and social rescue.
Back in 1977 West Virginia's pre-SMCRA mining environmental program
served as the model for this federal legislation and West Virginia was
the first state to obtain primacy under the cooperative federalism
structure established by Congress that recognized not only the need for
a level playing field of regulation for the sake of interstate commerce
and environmental protection but also acknowledged the expertise of the
individual states to regulate activities occurring within their own
borders.
We believe that SMCRA and the administration of its implementing
regulations by the Office of Surface Mining have been largely
successful. Again relying on Congress' stated purpose that the
country's need for energy must be balanced with environmental
protection, one only has to realize that coal production has increased
since the passage of the Act in 1977 at no sacrifice to the natural
environment.
Sure, there have been growing pains over the years, where industry
and sometimes even state regulators have disagreed with OSM but, by and
large, we believe that SMCRA has achieved the environmental goals
envisioned by this Congress 30 years ago, just as former Secretary of
the Interior Bruce Babbitt observed when he and Chairman Rahall marked
the 19th Anniversary of SMCRA in West Virginia in 1996 (see attachment
``I''). On August 3, 1996, then Secretary of Interior Bruce Babbitt
visited a reclaimed mountain top mining operation with valley fills in
Boone County, West Virginia and observed, among other things, ``the
landscape is better in many ways''. If former Secretary Babbitt was to
return to the this site or any site in any of the Appalachian states he
would be even more impressed today with the resiliency of SMCRA and the
tremendous achievement of the miners and operators, all of whom are
``practicing environmentalists''.
Mr. Chairman, your attention and amendments in 1977 allowed this
bill to be passed because those changes recognized the significance of
coal production in the Appalachian region of this country and the need
to sustain that production and protect the jobs of our people. Your
amendments relevant to this Act and the Clean Water Act that have been
passed since 1977 were also important to that sustainment and
protection. Your continued leadership is equally important today to be
sure those same protections are in place for the operations and the
miners of Appalachia. You and your Committee's vision, as demonstrated
30 years ago, is critical today to eliminate the ``redundant overlap''
between Congressional intent as expressed in SMCRA and the Clean Water
Act.
This ``overlap'' dilemma casts a long shadow over the coal industry
in Appalachia, creating regulatory uncertainty that discourages new and
continued investment in the very region that serves as the basis for
the country's industrial and electrical fuel supply. Perhaps most
disturbing, it questions the future of our more than 54,000 coal
miners, our ``practicing environmentalists'', who continue to work,
live and raise their families in their native Appalachia. Those workers
are threatened by these frivolous lawsuits and continued attacks. (See
attachment ``J'', affidavits filed by four coal miners in a related
court case).
Mr. Chairman and members of the Committee, we believe that these
miners are owed a stable future as they work to provide the energy for
the rest of the country. As we stated previously, SMCRA was a
critically important step in providing that stable future. It
established that federal baseline, that brace of regulation that
leveled the playing field among the coal producing states. It provided
protection for the natural and social environmental, allowing the
diverse environmental setting of Appalachia to maintain and flourish.
SMCRA protects our communities and our people, preserving the social
fabric of the Appalachian coal mining communities where our coal miners
live and work. But, there is still some work to be done. Removing the
judicially-inspired regulatory confusion that flourishes because of
these ``redundant overlaps'' between SMCRA and section 404 of the Clean
Water Act will firmly re-establish Appalachia as a source of domestic,
industrial and consumer energy, allowing our miners, our practicing
environmentalists, to continue to work and live uninterrupted as they
mine the coal which not only powers the economic engines of this
country, but provides the revenue stream for the AML program and is the
economic lifeline for our seven Appalachian states.
Mr. Chairman, once again, I express our appreciation for the
opportunity to appear before your Committee. You set the stage 30 years
ago and have diligently protected our people and their jobs ever since
then. We are, however, threatened today. Our people are threatened. We
turn to you, as we did in 1977, to protect us and bring peace of mind
to the miners and companies in the coalfields of Alabama, Kentucky,
Maryland, Ohio, Pennsylvania, Virginia and West Virginia, the proud
states of America's Appalachian basin.
______
ATTACHMENT ``A''
Overview of Eastern Coal 2007
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Production Trends
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Employees
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Reserves
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Research Needs
Safety
Production
Thin seam mining
Environmental
Carbon Capture
______
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Congressional action needed
Research needs
Coal-tp-liquids incentives
Greenhouse gas policies
______
Attachment ``B''
sustaining eastern coal production
The Coal Industry is well poised to capitalize on the high growth
opportunities as the country pursues energy independence and economic
wealth from a strong domestic energy industry.
On balance, the industry has great capacity, committed management
teams, aggressive business plans and a strong will to succeed.
Consequently, from a big picture or macro view, the industry is well
situated to meet the demands of tomorrow but not without major
challenges. Global climate change, national energy policy and the coal-
to-liquids program are at the forefront of these challenges and coal's
future depends largely on the manner in which these policy questions
are answered.
From a regional standpoint, particularly the east and mid-west
portions of the country, where overall market share has fallen in
recent years, we have additional, unique challenges--some
technological, some political--which must be overcome if we are to
remain viable and retain our place in domestic and world energy
markets.
It has been widely reported that the eastern region is particularly
confronted with labor shortages, ongoing environmental challenges, a
diminishing reserve base and overall tougher geology. Geology that
requires deeper, more difficult and more expensive mining with thinner
seams and lower recovery ratios. The future of the coal industry in the
states east of the Mississippi River will depend on how these issues
are addressed.
Operating in today's highly competitive global markets, where
contracts are won and lost on pennies per ton, additional cost burdens
are a tremendous obstacle to overcome. The Illinois and Appalachian
basins are blessed with the highest quality coal in the world, mined by
the world's best coal miners, with technology second to none. The
region has nearly one-half (47.7%) of this nation's mineable reserves
remaining with all the ingredients to succeed for the next 200 years,
but we are threatened!
On April 19, 2007, the New York investment firm, Stifel,
Nicolaus & Co., Inc., observed: ``...We expect total Appalachian
volumes to fall from 390 million tons in 2006 to 354 million tons in
2008...We expect increased coal production from the western U.S. (+44
million tons 2006 to 2008), imports, and other U.S. regions to offset
the Appalachian declines and allow for some growth in demand.''...
Central Appalachian coal production has been inelastic
and resistant to price triggers during the rally of 2004, with mining
companies straining to make the most of depleting reserves at existing
sites and constrained from developing new mines by permitting
delays.... Nowhere is this more true currently than in West Virginia.
(Coal Daily--3/4/05)
We are threatened and we need your help to sustain our production
for tomorrow. With the threat of increased pressures from foreign and
western coal, we must ``tool-up'' to meet the demands of today's
market..
Production and Demand
National energy demand is on the rise. Increasing oil prices and a
national desire to decrease American dependence on foreign oil have
brought coal to the forefront of energy production. We hope the strong
market will continue, but history and world turmoil brings a sense of
unpredictability. To prepare for this uncertainty we need to encourage
investment to be sure we are ready to competitively meet the world's
demands.
Installing and expanding modern, ``state-of-the-art'' capital
projects today will help alleviate the negative pressures of an
unpredictable regulatory atmosphere that is more restrictive than any
other nation and geologic conditions that are ever more challenging
that puts the Appalachian coal industry at a competitive disadvantage.
For the last several years, the United States has produced and
consumed more than one billion tons of coal. That level of national
consumption is predicted to continue. Eastern coal contributes 40% to
the nation's needs, down from 55% ten years ago.
Production next year will probably equate to 1.15 billion
tons, an increase of over 4% over the 2004 levels. The National Mining
Association expects that the bulk of this total, some 650 million tons
will come from Western production. Permitting problems are a factor in
constraining production in Central Appalachia... (Coal News, December
2004)
According to the Energy Information Administration (EIA),
total U.S. production is 2.1% less than last year. However, production
west of the Mississippi River is 1.7% more than last year while
production east of the Mississippi is 7.1% less.
For the month of February ``07, imported coal exceeded
exported coal. 2.656M tons imported versus 2.649M tons exported.
Although year-to-date ``07 (January ``07 and February ``07) totals
indicate more exported than imported (6.955M tons exported v. 5.501M
tons imported) the trend is concerning since eastern production
accounts for the majority of exported coal in the US.
COAL PRICES
Since Q404, the price of Appalachian steam coal has
dropped from $62-$64 per ton to a price in Q107 of $38-$40 per ton
(based on NYMEX pricing of 12,500 BTU <1%S coal).
As evidenced above coal prices from the Appalachian Basin have been
falling rapidly over the past two years. In fact, notwithstanding the
past couple of years, coal prices were on a downward spiral for years
amidst increasingly competitive markets which effectively inhibited the
development of the infrastructure needed to take full advantage of the
current demand for coal.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
mining difficulties that threaten eastern production
Today's Appalachian coal seams are more difficult to
access, require more sophisticated preparation and are further from the
transportation points of rail and barge. Developing infrastructure,
i.e., shafts, slopes, rail sidings and loading facilities, today will
help the coal ``flow'' tomorrow.
Mining costs, i.e., fuel, engineering, permitting and
reclamation, personnel, equipment and supplies have all turned sharply
upward. As always, the costs increase when prices increase, but the
costs do not decrease when the prices drop!
The entire industry is facing the problems of an aging
workforce and an overall shortage of workers. It is, however, most
critical for our region since 79.2% of the miners are working in the
eastern and mid-western coal industry. Human infrastructure must be
developed today.
Legal challenges and continuing unpredictability in the
permitting process have further inhibited the ability of the industry
to maximize its production opportunities. Acknowledgement of
advancements in applied technology and environmental expertise are
immediately needed.
We need help in addressing these challenges and uncertainty. We
must take full advantage of today's ``optimistic atmosphere.'' It is an
``once-in-a-lifetime'' opportunity!
Domestic Competition
Aside from severe competition from countries that do not have the
environmental, health and safety standards of the U.S. industry, we
must also compete with coal from western states with more inviting
geology. For instance, in Wyoming, the coal seams can be greater than
80 feet in thickness while the typical seams found in eastern mines
average from 3 to 6 feet thick.
Output from the PRB has continued to make inroads into
regions traditionally supplied by Central Appalachian, Illinois Basin
or other origins, with the low-sulfur product in demand from fuel
buyers facing increasing environmental regulation. (Coal Daily--3/4/05)
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
It is a tribute to the quality of Appalachia and Illinois Basin
coals, to the expertise of its workers and to the efficiencies of its
industry that this region has been able to maintain its production of
42.3% of this nation's coal That requires proper equipment, skilled
manpower, modern infrastructure, and a stable, predictable regulatory
climate. The use western coal in our traditional eastern is increasing.
A West Virginia utility is taking steps to blend western
coal with its traditional fuel mix. (State Journal--3/11-17/05)
It is critical to maintain market share if the eastern states are
to continue to share in the economic prosperity of the U.S. coal
industry. To do this, we must have regulatory predictability, a fair
level of regulatory controls with achievable standards and an
aggressive program to encourage future development. This is the ideal
time for the federal government to encourage the ``re-tooling'' and
expansion of the Appalachian industry's infrastructure to take
advantage of the tremendous opportunity offered by current energy
market demands.
Frankly, many say there is not enough coal being mined in this
country to supply its needs! However, that demand is so price sensitive
that the attractiveness of western coal, where the seams are thick and
mining costs are low, will overwhelm the higher cost Appalachian coals,
found east of the Mississippi River. Without immediate attention to the
challenges facing our eastern and mid-western coals, imported coals,
typically mined with less environmental, safety and human regulation,
pose the same threat. So, yes, it may be true that there is not enough
American coal being mined to supply America's needs, but you may be
certain that the coal will be found from some source, someplace. We
want to maintain our market share!
Governmental Actions
It cannot be emphasized too strongly that the actions of government
have a very real statistical impact on coal production. Yearly
production totals can be charted with the implementation of major
government regulatory acts.
History indicates that each significant action of government was
accompanied by an immediate and negative effect on production. However,
the reverse can also be true. That is, positive governmental
encouragement will likely result in the capital investment necessary to
sustain future production at or above current levels.
Partnership
Given that coal production from the states east of the Mississippi
River makes up a significant portion of overall domestic energy
production (42.3%), it is incumbent on State and federal governments
and the coal industry to act in partnership to ensure the continued
economic viability of our industry In the Appalachian region. We must
be competitive and prepared for the uncertainty of tomorrow. We need
your help if the eastern states are to remain competitive.
We have a ``once in a lifetime'' opportunity for the eastern coal
industry. In these times of a robust energy market with strong pricing,
we must raise the confidence of all companies to invest in this region.
Recommendations:
1. Increase Congressional funding for coal extraction research.
2. Continue funding for miner training programs.
______
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Mr. Fry.
STATEMENT OF ERIC FRY, DIRECTOR OF REGULATORY SERVICES, PEABODY
COAL COMPANY, ST. LOUIS, MISSOURI, ON BEHALF OF THE ILLINOIS
COAL ASSOCIATION
Mr. Fry. Good afternoon, Mr. Chairman, Committee members.
My name is Eric Fry; I work with Peabody Energy. I am here
today representing the Illinois Coal Association, and pinch-
hitting for Mark Yingling, who was supposed to be here, but
couldn't make it today.
Prior to SMCRA being enacted in 1977, many states, trade
associations, and coal operators had already established
private-public partnerships to address mine reclamation by
working with local legislatures. These groups developed
regulations for regrading, soils replacement, and revegetation.
Programs like Peabody's Operation Green Earth and the early
state programs provided much of the basis for SMCRA, which in
turn has guided the mining industry to the current high level
of excellence and environmental stewardship.
Mine reclamation has been advanced from what was once
identified as one of this nation's major environmental
challenges to being a story of success. Now, through
initiatives like the Asian Pacific Partnership, many
requirements of SMCRA are being used as examples of best
practice across the globe.
SMCRA provides for open involvement from stakeholders,
regulators, and the public. The permit application, review, and
approval and modification process allow for full
characterization of the pre-mine resources, consistent mining
and reclamation plans, public input, and dependable bright
lines. The applicant violator system, financial assurance
requirements, and bond release performance standards assist in
maintaining a high degree of industry credibility.
The ever-present inspection and enforcement provides for
ongoing dialogue in planning and performance requirements.
Reclamation of prime farmland, water resources, fish and
wildlife resources, forestry and rangeland once thought to be a
major challenge is now routinely accomplished. These ongoing
successes support the realization that mining is a temporary
use of the land, and that value creation can extend well beyond
mineral extraction.
A large part of the success of SMCRA is attributable to the
singular focus on mining, as opposed to programs that address
multiple industries. SMCRA is a mature program, administered by
experienced and knowledgeable mining professionals in both
Federal and state programs. This level of professionalism helps
to provide the consistency and regulatory certainty needed by a
dynamic coal industry.
While SMCRA has proven to be a successful program, there is
always room for improvement. A concerted effort should be made
to fully utilize existing resources. Examples include items
such as the AML Fund, where remaining projects should be
finished as soon as practical.
Sections 401 and 404 of the Clean Water Act are, for the
most part, addressed in SMCRA requirements. This triple-overlap
of regulation is confusing, inefficient, costly for both
operators and regulators, and blurs the bright lines.
Additionally, while SMCRA provides solid guidance, a one-
size-fits-all approach is not always appropriate. Coal regions
span the U.S. and have wide ecological, hydro-geological, and
climatological differences. SMCRA needs to allow for
flexibility in the use of local proven practices, such as
grading diversity, that creates wildlife protection zones,
small depressions that supplement the landscape, topsoil
substitutes that improve plant diversity, and partial highwall
retention that improves wildlife habitat and aesthetics.
I have some time left. I have a few slides. Go to the third
one, active research. No, no, back. I think you picked the
wrong one.
There we go. Now to the third one. Peabody engages in
active research programs. Some examples in the Midwest are the
American Chestnut Foundation. That is a study of adaptability
of chestnut trees on reclaimed land. We have a study with the
University of Kentucky to study the growth rates for trees on
reclaimed land. We work with the Indiana Division of
Reclamation to study soil handling techniques.
Go to the next one. No. No. This isn't working very well.
Sorry. Back. There we go.
Community outreach is important. Several ways that we do
this are to hold open houses, field days that invite exchange
between industry, agencies, and academia. The Sierra Club has
come to these field days before.
Also, educational workshops that are, that take place on
the mines. OK, the next one. There we go.
Large wildlife areas are sometimes created. In this example
in Illinois, the River King Fish and Wildlife Area, 1800 acres
of water and wetlands. And this is just one example of many.
Next one.
Ongoing wildlife research. This isn't in the Midwest, but
this is a research project that North Antelope Rochelle, a
three-year research project on greater sage grouse. Next one.
Arizona Best Practices and Reclamation recognized at the
International Global Awards. Next one.
The Asia Pacific Partnership promotes sustainable
practices. This is an international agreement between
Australia, India, Japan, China, and Korea, and involves the
development and transfer of technology on environmental issues.
That is good.
That is what I have got. Thank you very much.
[The statement submitted for the record by Mr. Fry on
behalf of Yingling follows:]
Statement of Mark R. Yingling, VP of Environmental Services and
Conservancy, Representing Peabody Energy and the Illinois Coal
Association
Mr. Chairman, my name is Mark Yingling. I am the Vice President of
Environmental Services and Conservancy for Peabody Energy and a member
of the Executive Board for the Illinois Coal Association and I am
committed to the proper utilization and sustainability of this
country's natural resources.
According to the U.S. Energy Information Administration, the United
States currently imports 59 percent of its oil requirements. This
dependence is expected to grow 70 percent by the year 2025.
Additionally, natural gas accounts for 16 percent of America's energy
imports.
Even with our current dependency on foreign energy supplies, we
need to celebrate the enormous American coal resource that has added to
the security of energy in the United States. Coal mining shoulders half
of this Country's electricity generation while lessening the dependence
on foreign oil and, increasingly, our dependence on imported natural
gas.
Prior to SMCRA being enacted in 1977, many State Agencies, Trade
Associations and Coal Operators, in conjunction with local
Legislatures, had already established private/public partnerships to
address mine reclamation. These groups developed regulations for re-
grading, soils replacement, and revegetation. Programs like Peabody's
Operation Green Earth and the early State regulation provided much of
the basis for SMCRA which, in turn, has guided the mining industry to
its current high level of excellence in environmental stewardship. Mine
reclamation has advanced from one of this Nation's major environmental
challenges in the 70's to being a success story of private/public
partnership. Through initiatives like the Asian Pacific Partnership,
many requirements of SMCRA are now being used as examples of best
practice across the globe.
SMCRA provides for open involvement from stakeholders, regulators,
and the public. The permit application, review, approval and
modification processes allow for full characterization of the pre-mine
resources, consistent mining and reclamation plans, public input, and
dependable ``bright lines''. The Applicant Violator System, Financial
Assurance requirements and Bond Release performance standards assist in
maintaining a high degree of industry credibility. The ever present
inspection & enforcement provides for ongoing dialogue on planning and
performance requirements. Reclamation of prime farmland, water
resources, fish & wildlife resources, forestry, and rangeland, once
thought to be a major challenge, now is routinely accomplished. These
on-going successes support the realization that mining is a temporary
use of the land and that value creation can extend well beyond mineral
extraction.
A large part of the success of SMCRA is attributable to the
singular focus on mining as opposed to programs that address multiple
industries. SMCRA is a mature program administered by experienced and
knowledgeable mining professionals in both the Federal and State
programs. This level of professionalism helps to provide the
consistency and regulatory certainty needed by a dynamic coal industry.
While SMCRA has proven to be a successful program, there is always
room for improvement. The ingenuity that has given confidence to
achieving many sensitive and difficult performance standards now needs
to be used to become more efficient in meeting and even exceeding these
same requirements. A concerted effort should to be made to fully
utilize existing resources. A prime example includes the AML fund where
remaining projects should be finished as soon as practical.
Another area that should be fully promoted are the benefits of
reduced grading which includes lower soil compaction, reduced erosion,
higher soil moisture retention, better water quality and lower fuel
consumption. An associated benefit of reduced grading is increased
vegetation production both above ground and within the rooting media
which all leads to greater uptake and retention of atmospheric carbon
dioxide.
An ongoing source of permitting inefficiency is Section 401 and
Section 404 of the Clean Water Act. These requirements are, for the
most part, addressed in the SMCRA requirements. This triple overlap of
regulation is confusing, inefficient, costly (for both Operators and
Regulators), and blurs the ``bright lines''.
Additionally, while SMCRA provides solid guidance, a ``one-size-
fits-all'' approach is not always appropriate. Coal regions span the
U.S. and have wide ecological, hydro-geological, and climatological
differences. SMCRA needs to allow for flexibility in the use of local
proven practices such as grading diversity that creates wildlife
protection zones, small depressions that supplement the landscape,
sinuous drainage patterns that improve drainage stability, topsoil
substitutes that improve plant diversity and partial highwall retention
that improves wildlife habitat and aesthetics.
Thank you for allowing me to provide these comments. Following is a
brief set of slides on a few of the many successes during the past 30
years of SMCRA.
______
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
STATEMENT OF MARION LOOMIS, EXECUTIVE DIRECTOR, WYOMING MINING
ASSOCIATION, CHEYENNE, WYOMING
Mr. Loomis. Mr. Chairman, Congressman Pearce, thank you for
inviting us to come back today. I am Marion Loomis, the
Executive Director of the Wyoming Mining Association.
The Wyoming Mining Association represents bentonite coal,
trona, and uranium producers in Wyoming. I am sure that you are
aware that Wyoming leads the Nation in production of coal, but
you may be interested to know that Wyoming also leads the
Nation in the production of bentonite, trona, which is
converted into soda ash and is a primary ingredient in the
manufacture of glass, and we lead the Nation in the production
of uranium.
Wyoming coal mines now produce almost 450 million tons of
coal annually, which is 38 percent of this nation's coal
production. Wyoming coal is shipped to 36 states, from New York
to Washington and Texas to Minnesota.
Mr. Chairman, some feel that Wyoming just started producing
coal after the Clean Air Act passed in 1970, and indeed, that
was one of the reasons for the tremendous growth in coal
production in Wyoming. But Wyoming started producing coal in
1869, with the completion of the Trans-Continental Railroad. At
our peak prior to 1970, Wyoming produced 9.8 million tons of
coal in 1945, and our peak employment came in 1922, with 9,000
miners. So Wyoming has had a long history of providing coal to
fuel this country's energy needs.
After the railroad switched from coal to diesel, Wyoming
reached a low in production in 1958, with 1.6 million tons, and
a low of employment in 1967, with only 332 miners. However, the
industry turned around in the 1960s, with the construction of
several coal-fired power plants. By the time the Surface Mining
Control and Reclamation Act passed, Wyoming mines were
producing 44 million tons per year, with employment of 3300
miners.
The late 1960s, the mining industry in Wyoming recognized
that mine lands needed to be returned to a productive use after
mining. The industry and the Wyoming Mining Association worked
with legislators to pass a reclamation act in 1969, called the
Open Cut Land Reclamation Act, and it applied to all minerals,
not just coal. All mined minerals.
Granted, that first act was rather weak by today's
standards, but it shows that the industry recognized the need
for a reclamation law that applied to everyone, so no one
company had an advantage over another. The 1969 Act was
replaced with a much more comprehensive act in 1973, which
addressed not only land reclamation, but air quality, water,
and solid waste issues.
The industry has struggled to make the provisions of SMCRA
work in the arid West, where a lack of water and topsoil much
different than in the East, where there is abundant rainfall
and plenty of topsoil. It is difficult to make the one-size-
fits-all mandates of the Federal law work in all the areas.
SMCRA and the Federal regulations do recognize the difference
between these areas that receive less than 26 inches of
precipitation, and those that receive more. Currently this is
reflected in an extended bond liability period, but we feel
this is an area that should be explored to expand and enhance
reclamation options.
Congress also recognized differences in mining areas of the
country, when Representative Roncalio from Wyoming was
successful in including a provision that recognized the unique
features of a special bituminous mine. If that provision had
not been inserted, one of the truly remarkable mines in Wyoming
would have not been able to operate.
The Kimmler Mine, located in southwest Wyoming, has
multiple coal seams, with the bottom seam over 100 feet thick.
The Act recognized that the backfill provisions of the Act
would not work for the Kimmler Mine, and a special provision
was written into the Act to allow for a different reclamation
procedure to be used. That mine opened in 1897, and is still
operating. To date, the Kimmler Mine has produced over 148
million tons of coal.
We have seen a growing understanding of the differences in
the mining areas by those administering the Federal Act. One of
the concerns of our companies was the ability to restore
wildlife habitat. In many cases, the pre-mining wildlife
habitat is eroded gullies and arroyos, which cannot be part of
a successful reclamation effort. Our reclamation has to be
erosionally stable.
But we can take part in the reclaimed highwall and create
an erosionally stable wildlife feature that will provide
protection, diverse vegetation, and the ability to store water.
We are pleased that OSM is now working with the industry to
allow us to create these features in the post-mine topography
as a replacement for natural habitat removed by mining.
We encourage the Committee to support OSM's efforts to
design and implement policy which will facilitate mining
companies to create wildlife habitat.
You are very aware of the Abandoned Mine Land Reclamation
fund, and there has been a lot of talk about it here today. We
are very pleased that Congress will fund the balance of the AML
fees owed to the states. And thank you, Mr. Chairman, and we
want to also express our thanks to Congresswoman Cubin, for all
of her efforts and your efforts in this regard.
Wyoming producers have paid well over $2.3 billion in AML
fees over the last 30 years, and we are very appreciative that
the portion owed to Wyoming will now come back for the many
uses the state has to address mineral-impact issues.
We are, however, somewhat concerned that OSM seems to
believe that the money will only be released when projects are
identified. Our understanding of the Act that you passed last
year requires that the back balance be paid in equal
installments. The Wyoming Legislature passed legislation this
year to hold those back payments until the Legislature decides
how to allocate those monies. It is our hope that the back
payments would come to the state without any strings attached.
In summary, we feel the industry, OSM, and the states have
come a long way in the past 30 years. We are producing more
coal, reclaiming more land, and providing a reliable,
affordable energy resource for this nation. As we go forward,
it is our hope that we will continue to work together to
address the many issues that will face us to allow the industry
to continue to provide a secure source of energy for our
nation, and still restore the land to a beneficial use after
mining is completed.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Loomis follows:]
Statement of Marion Loomis, Wyoming Mining Association
Mr. Chairman, my name is Marion Loomis. I am the Executive Director
of the Wyoming Mining Association. The Wyoming Mining Association (WMA)
represents bentonite, coal, trona and uranium producers in Wyoming. You
know that Wyoming leads the nation in production of coal, but you may
be interested to know that Wyoming also leads the nation in the
production of bentonite, trona (which is converted into soda ash for
use in glass and chemical manufacturing) and uranium.
Wyoming coal mines now produce almost 450 million tons of coal
annually which is 38% of this nation's coal production. Wyoming coal is
shipped to 36 states from New York to Washington and from Texas to
Minnesota.
Mr. Chairman, some feel that Wyoming just started producing coal
after the Clean Air Act passed in 1970 and indeed that act was one of
the reasons for the tremendous growth in coal production in Wyoming,
but Wyoming started producing coal in 1869 with completion of the
transcontinental railroad. At our peak prior to 1970 Wyoming produced
9.8 million tons in 1945, but our peak employment was in 1922 with
9,192 miners, so Wyoming has had a long history of providing coal to
fuel this country's energy needs. After the railroads switched from
coal to diesel, Wyoming reached a low in production in 1958 with 1.6
million tons and a low in employment in 1967 with only 332 miners.
However, the industry turned around in the 1960's with the construction
of several coal fired power plants. By the time the Surface Mining
Control and Reclamation Act (SMCRA) passed, Wyoming mines were
producing 44 million tons per year with employment of 3,300 miners.
In the late 1960's the mining industry in Wyoming recognized that
mined lands needed to be returned to a productive use after mining. The
industry and the Wyoming Mining Association worked with legislators to
pass a reclamation act in 1969 called the Open Cut Land Reclamation Act
and it applied to all mined minerals, not just coal. Granted that first
act was rather weak by today's standards, but it shows that the
industry recognized the need for a reclamation law that applied to
everyone so no one company had an advantage over another. The 1969 act
was replaced with a much more comprehensive act in 1973 which addressed
not only land reclamation, but air quality, water, and solid waste
issues.
The industry struggled to make the provisions of SMCRA work in the
arid west where the lack of water and topsoil make reclamation much
different than in the east where there is abundant rainfall and plenty
of topsoil. It is difficult to make the one size fits all mandates of
the federal law work in all areas. SMCRA and the federal regulations do
recognize a difference between those areas that receive less than 26
inches of precipitation and those that receive more. Currently this is
reflected in an extended bond liability period but we feel this is an
area that should be explored to expand and enhance reclamation options.
Congress also recognized differences in mining areas of the country
when Representative Roncalio from Wyoming was successful in including a
provision that recognized the unique features of special bituminous
mines. If that provision had not been inserted, one of the truly
remarkable mines in Wyoming would not have been able to operate. The
Kemmerer mine located in Southwest Wyoming has multiple coal seams with
the bottom seam over 100 feet thick. The Act recognized that the back
fill provisions of the Act would not work for the Kemmerer mine and a
special provision was written into the Act to allow for a different
reclamation procedure to be used. That mine opened in 1897 and is still
operating. To date the Kemmerer mine has produced over 148 million tons
of coal.
We have seen a growing understanding of the differences in the
mining areas by those administering the federal act. One of the
concerns of our companies was the ability to restore wildlife habitat.
In many cases the premining wildlife habitat is eroded gulleys and
arroyos which cannot be part of a successful reclamation effort. Our
reclamation must be erosionally stable. But, we can take part of the
reclaimed highwall and create an erosionally stable wildlife feature
that will provide protection, diverse vegetation and the ability to
store water. We are pleased that OSM is now working with the industry
to allow us to create these features in the post mine topography as
replacement for natural habitat removed by mining. We encourage the
Committee to support OSM's efforts to design and implement policy which
will facilitate mining companies creating wildlife habitat.
You are very aware of the Abandoned Mine Land Reclamation fund. We
are very pleased that Congress will fund the balance of the AML fees
owed to the states and thank you, Mr. Chairman and Representative Cubin
for your efforts in this regard. Wyoming producers have paid well over
$2.3 billion in AML fees over the last 30 years and we are very
appreciative that the portion owed to Wyoming will now come back for
the many uses the state has to address mineral impact issues. We are,
however, somewhat concerned that OSM seems to believe that the money
will only be released when projects are identified. Our understanding
of the act that you passed last year requires that the back balance be
paid in equal installments. The Wyoming legislature passed legislation
this year to hold the back payments until the Legislature decides how
to allocate those monies. It is our hope that the back payments would
come to the state without any strings attached.
In summary, we feel the industry, OSM and the states have come a
long way in the past 30 years. We are producing more coal, reclaiming
more land, and providing a reliable, affordable energy resource for
this nation. As we go forward, it is our hope that we will continue to
work together to address the many issues that will face us to allow the
industry to continue to provide a secure source of energy for our
nation and still restore the land to a beneficial use after mining is
completed.
Thank you for allowing me to provide these comments.
______
Mr. Pearce. The Chair thanks the panel for their testimony.
Bill, let me say first to you, I really appreciate your
testimony. It was right on target, in my opinion. Your
membership is a practicing environmentalist. And I have known
many of your members, not just as constituents and good
corporate citizens of the Congressional District I am honored
to represent, but also as lifelong friends. And I know that
what you said was from the heart, because your membership--we
all are environmentalists, let us face it; each and every one
of us are environmentalists.
And the jobs that your membership provides are appreciated
by all of West Virginia, and by this nation. And many of your
membership just finished involving themselves with the most
successful Friends of Coal Auto Show since you have been
putting that on. And it was a great performance, a great
turnout this past weekend in my hometown. Congratulations on
that.
I want to ask my first question, though, to Hal, who I must
say I am pleased to finally get before this committee, because
we go way back, as well. Your experiences on mining issues are
well known, and I certainly look forward to working with you on
reforming the Mining Law of 1872. And we are working together
on that.
Mr. Quinn. Yes, we are.
The Chairman. And people can say what they want about
mountaintop removal mining, or they can say what they want
about me, a coal miner from the East, trying to do, as they put
it, what I am trying to do to the hardrock mining industry in
the West. They can say what they want about it. But at least,
at least our surface mining coal mining industry has some
Federal standards on the books governing their mining and the
reclamation. And at least our mining industry pays a royalty
when it comes to mining on Federal lands.
So Bill, let me go back to you and ask you my first
question, I guess. No, Hal, would you wish to comment on that?
Mr. Quinn. Mr. Chairman, as you stated, we welcome the
opportunity to work with you on the mining law, as we have
discussed in the past.
The Chairman. Which would kick off tomorrow, by the way.
Our first hearing.
Mr. Quinn. You will hear from a representative of our
organization tomorrow, and I appreciate that invitation for
that. We are looking forward to working with you in trying to
find the balance, just like SMCRA struck a balance, but find
some balance in how to make some changes to the mining law that
served the country, served the industry, and move us forward on
those issues, and keep us competitive.
The Chairman. Bill, let me ask you. Has SMCRA truly leveled
the playing field? Now, I am not trying to create regional
rivalries, because, as we all know, one of the purposes of
SMCRA was to eliminate state competition, state versus state,
or trying to undercut each other in order to sell more coal.
But is the regulation of surface mining in the Commonwealth
of Kentucky, for example, the same as it is in the State of
West Virginia?
Mr. Fry. You know, as far as from a SMCRA standpoint, Mr.
Chairman, I think it very much has leveled the field. And this
is a perception from me, sitting in West Virginia not doing a
great deal of study of other states. But my perception of that
is that SMCRA clearly has leveled it.
And where we run into disparity of, either on operations or
enforcement regulation lawsuits being riled, are these eternal
conflicts with the Clean Water Act and the interpretation that
is given to them in different states, as compared to what we
have in West Virginia. And that seems to be where we have the
most difficult.
And insofar as a framework created by SMCRA, I think it has
very much leveled the playing field. When you think about where
you were in 1977, and all the things that were going on in the
different states then, then I think it very much has brought
consistency to regulation along the line.
The Chairman. So we don't have one state trying to undercut
a neighboring state now in order to sell their coal.
Mr. Fry. That is certainly not my perception, no. There is
not enough coal being mined in this country to take care of
this country's needs right now, which is a very fortunate
position to be in. But, and we hope that condition continues,
unlike some of those that came before us on testimony. We hope
we continue to can't mine enough coal to meet America's needs.
The Chairman. Let me continue to ask you to comment on one
of the themes of the hearings today, which is the issue of
whether mountaintop removal operations are indeed complying
with the letter and the intent of SMCRA. With respect to the
AOC variances and those more beneficial post-mine land-use
plans.
Mr. Fry. Absolutely they are. In our opinion, Mr. Chairman,
they clearly are. And I think it is demonstrated, we are always
in someone's front window in West Virginia, it seems like. And
those are clearly being done, and approximate original contour
is being achieved. And if it is not being achieved, then there
is a post-mining land use that is in the plan to be
accomplished following the mining.
Is every site being developed? No, it isn't. But what site
is not being developed is being restored to the approximate
original contour.
We do have a definition in West Virginia, a very clear
definition. And it has come as a result of the agencies joining
together, the initiative of the state, as well as the
initiative of the industry. And we know what it is. It is spoil
minimizations. Very complicated. A bunch of engineers put it
together. I mean, you have to work your way through it. We know
what that is in West Virginia, and we are doing that. And we
are very pleased about it.
It is a little bit aggravating to have everybody come in
and disparage the fact that it is not working, because we have
a whole gang of people every day that show up making sure it is
working. And I think it clearly is working, and it is thanks to
the cooperation of a whole lot of people in West Virginia.
The Chairman. So you believe we can have a dovetailing of
the interests of protecting our environment and mining coal at
the same time.
Mr. Fry. Absolutely. And the real benefit, the thing that
we have lost in all this tale of lawsuits that runs around, is
what a rare commodity and a valuable commodity level ground is
in southern West Virginia in your district, Mr. Chairman. And
in order to--we are finally getting smart enough to coordinate
mining and highway construction, and those kinds of things.
But just to leave the ground in a more moderate slope than
what it was naturally there is a tremendous opportunity for an
economic development in the future.
Well, we pretty much have forgone that, thanks to all these
lawsuits and everything, where you have to stack and build that
mountainside back up now, unless you have a very specific plan.
So we are trying to do a better job of coordinating mining with
the economic development, thanks to the agency that was created
under Governor Underwood you referenced and all of those
things.
So we are getting a little smarter about that. But the
travesty is that there is a lot of level ground that is being
stacked back up to 60 percent slopes.
The Chairman. Thank you, Bill. The gentleman from New
Mexico.
Mr. Pearce. Thank you, Mr. Chairman. Mr. Quinn, what I read
from H.R. 2337, Title IV, subtitle D, Chapter 2, it talks about
having the Secretary really to assist, to develop policies that
will assist wildlife populations and their habitats in adapting
to and surviving the effects of global warming. That is kind of
a theme that runs through this entire, of the section 42, and
in the pages around that.
Have you had a chance to take a look at that? And can you
give some idea of what that is going to mean to miners?
Mr. Quinn. Congressman, I have not looked at that section.
And I will give my attention to that and try to respond to the
question. But from what you read, I really don't know what it
would mean, or how we would go about doing it, to be quite
honest with you.
In terms of trying to study the effects of----
Mr. Pearce. No, it is not to study. It is to assist
wildlife populations and their habitats in adapting to and
surviving the effects of global warming.
Mr. Quinn. Well, it would certainly add a new and very
large wrinkle to our resource planning, under SMCRA or any
other law that I am aware of at this point in time. But I am
not familiar with the section, sir.
Mr. Pearce. OK. If you get a chance to review that, you
might give me your input.
Mr. Quinn. Thank you.
Mr. Pearce. Mr. Raney, I appreciate your testimony. Now,
you heard testimony from Mr. Lovett, who is also from West
Virginia, and he was unimpressed with the state and their
oversight, and with the OSM and their oversight. And maybe
even, I don't know if he actually said it, but I kind of got
the idea that it might just be a bunch of a wink and a nod, and
send them on their way, as the regulators looked at the
companies.
Do you have a particular perspective? Do you see any of
that looking the other way, where the law is just not enforced?
Mr. Raney. No, sir. Mr. Lovett and I ride on different
sides of the bus, I guess. So no, absolutely not. And I mean, I
represent a whole bunch of companies that are full of engineers
and mine managers that absolutely would argue incessantly that
that is patently untrue.
And it is one of those babbling allegations that comes from
those opponents to the industry, I think, that has absolutely
no substance whatsoever behind it.
Mr. Pearce. Mr. Fry, we have also the allegation that, in
the testimony that I was referring to, that they just are
allowed not to say the topsoil, very few say the topsoil is
exact quote. And yet I see things growing. I see crops, and I
see grass, and I see things like that.
Do you all not see the topsoil? Is that fair? Is that an
accurate allegation?
Mr. Fry. Well, I can't really respond to that definitely in
West Virginia. But in the----
Mr. Pearce. No, I am talking about in general. In general.
I mean, the reclamation, the Surface Mining Act is going to
apply everywhere, so surely you have to----
Mr. Fry. Yes, if you go to the mines in the Midwest and out
west, you will find large piles of topsoil that are put back
to----
Mr. Pearce. Talk to the microphone. I flew jets for an
awful long time.
Mr. Fry. Sorry. The answer to your question is yes, that
most mines you go to you will find large piles of topsoil that
are put back. They are vegetated to prevent erosion, and there
is a requirement to put them back during the reclamation
process.
Mr. Pearce. Now, in Mr. Wright's testimony, he claims on
page two that he can say with complete confidence that
coalfield residents will not get meaningful protection for
their health and their water unless we step in and demand that
protection. Do you all find the OSM to be that functionless? In
other words, do you find them to be an easy touch for a company
to go into and just move right on past? That was kind of the
feel; that they are toothless, that they do not do their job
very well in providing for protection. Can you talk about that
just a bit?
Mr. Fry. Yes. You are mostly dealing with the state
programs, and then most of the states that I am familiar with,
if someone has an issue with water, there is a requirement that
the company provide the water before it is known that the
company is at fault.
No, there are very strict rules to make sure that water is
replaced, and that best management practices are practiced in
order to prevent water contamination to the degree possible.
Mr. Pearce. Mr. Chairman, I have some other questions if
you have a second round. Thanks.
The Chairman. Go ahead.
Mr. Pearce. Thanks. OK. Similarly, on this testimony of Mr.
Wright, the, page four, he has a fairly long section where he
is talking that Indiana test seems to remove mines from any
accountability to groundwater standards. Do you all mine in
Indiana?
Mr. Fry. Yes.
Mr. Pearce. Do you find that Indiana does not, do they not
have--tell me about the enforcement mechanisms you all have had
to go through on groundwater standards.
Mr. Fry. Groundwater standards are set by the states. And
some states don't have groundwater standards, and other states
do have groundwater standards, and they differ in each state as
to----
Mr. Pearce. And you have to comply. I mean, do you have to
do clean-ups? You have to make sure it is not contaminating, it
is not having the aquifers contaminated, or whatever?
Mr. Fry. Yes, there are specific standards that have to be
met. As you probably know, that in a spoil aquifer, that there
is some mineralization that takes place, and there is not
anything you can do about that. And that is taken into effect
in the groundwater standards of some states.
Mr. Pearce. Mr. Fry, the 2262, the Hard Rock Mining Act,
has a section in it which asks that the permits be reviewed
every three years. From a mining point of view and working with
bankers, my experience with oil and gas is that you are not
going to get a project funded if you only have three years
worth of approval.
Can you address whether or not your financing is going to
be facilitated or made more difficult if you have a permit
review process that is only three-year windows, and then is up
for review? At which point it could be declined, or maybe
approved again. Could you address the financing possibilities
that that will affect?
Mr. Fry. I am not sure that I understand that question.
Mr. Pearce. OK, that is a little out of your area. But
just, if you have--mines are basically the same sort of
financial structure. And I am asking a permit process. Now, I
know you are not hardrock mine, you are a coal mine. But if a
mine only had a window of three years, at which time it would
have to come up for review for its permit again, I am asking is
that going to be a process that the banks look on with favor?
Or is that going to penalize you and give you a higher rate, or
maybe limit capital?
Mr. Fry. I would certainly guess the latter. And as you
gentlemen know, mining is very capital-intensive; you have to
lay out a lot of money at the front end of it. And regulatory
uncertainty certainly is a big issue.
Mr. Pearce. Mr. Raney--this will be my last question, Mr.
Chairman. Mr. Raney, you have mentioned the lawsuit after, suit
after suit that threatened your jobs. Do you find, when those
suits are filed, that they have a justifiable outcome? Or do
they appear to be simply a stalling mechanism, or may be a
mechanism to try to stop the mine from actually going forward?
Or can you, even if you disagree with it, look at the suit and
say well, it is not my approach, but I understand what they are
getting at; or do they appear to be frivolous?
Mr. Raney. In my opinion, they are frivolous. They file the
same suit after, and after they just get a little different
approach to it, file the same suit. We go to Richmond, to the
Fourth Circuit. Thank goodness the Fourth Circuit overturns it.
And we made two or three trips down there already; they have
done that. And we come back, and then we are confronted with
another suit very similar to, questioning the very same thing.
Find another judge, and you get the decision at the District
Court level that just absolutely paralyzes the permitting
process. And not so much at the state level with the SMCRA
permits, but it just paralyzes the issuance of the Corps of
Engineer 404 permits and the Clean Water Act.
So it is that almost, you don't see the effect of it, but
what happens is they are just tying the hands and the minds of
those permit-issuing authorities with the confusion that is
created in the courts. I sort of think that they are frivolous,
and I think they are an effort to delay, and just trying to
disrupt the coal industry of particularly our state. And they
reach across state lines every once in a while and do the same
thing to Kentucky.
Mr. Pearce. I find the same thing in New Mexico, not
necessarily with miners, but with forestlands or whatever, that
the same objection is filed over and over. So if they were
trying to find factual evidence or an answer, they would get
that and then say OK, we disagree with the opinion. But instead
it is filed and filed, and then injunctions or whatever.
Thank you again. A great panel, and a great hearing, Mr.
Chairman. Thank you very much.
The Chairman. Let me say to the gentleman from New Mexico,
if he was referring to my hardrock mining law reform bill, is
that the bill----
Mr. Pearce. Is this yours, Mr. Chairman?
The Chairman. That is my name on it, yes.
Mr. Pearce. Oh. I was just reading it in big print, sir.
The Chairman. Well, read the fine print there; you will
find my name on it.
Mr. Pearce. OK.
The Chairman. If you are referring to the three-year
permitting review process, I would just remind the gentleman we
in this body are up for review every two years.
Mr. Pearce. We also don't finance, Mr. Chairman.
The Chairman. Oh, we spend a lot of finances every two
years.
Let me say to the panel and to all the witnesses that were
before us today, we certainly appreciate you being with us.
There were a number of issues discussed, specifically the Clean
Water Act, for example, concern to many in the industry, an
issue over which this committee does not have jurisdiction. We
discussed CTL today, as much as this gentleman is in favor of
it, again an issue over which this full committee has no
jurisdiction, but rather, other committees of the Congress.
I am going to ask the panel in toto, give them a chance,
that is, since they have been so patient with us, and one of
the advantages, I guess you might say, of being last in a long
day, is I am going to give each of you a chance to respond to
anything you have heard during the course of the day. I believe
most of you, if not all of you, have been here during the
course of the day. Have a free shot at anybody. Go ahead.
Mr. Loomis. Well, you know, my daddy said not to say
anything bad about people if you can't say something good.
You know, one thing I want, to invite the gentleman from
New Mexico to come see some reclamation. I know you, as a
panel, were invited to come see what Attorney Lovett suggested
you need to come look at. And you, Mr. Chairman, have, of
course, many times been on reclamation sites in West Virginia.
And I would encourage you to bring any member of the Committee,
all of the Committee, and certainly the staff, to come and look
at West Virginia, and see what we are truly doing. We are very
proud of it, and the people that are there every day doing it
are very proud of it, as you well know, Mr. Chairman.
But to you, sir, from New Mexico, I would certainly invite
you to West Virginia and to Kentucky. I think any of the states
that I mentioned would welcome you to come and look, and see
that we are proudly mining coal, and meeting, we think, the
energy needs of this country in a very professional manner.
I notice, it is not up there now, but you, Mr. Chairman,
are aware of Twisted Gun. And I promised the Buckskin Council
that I would let you know today that the Buckskin Council is
conducting their annual fund-raising golf tournament on Twisted
Gun today in Mingo County, which is just full of valley fills,
and happens to be one of those dreaded mountaintop operations
that other testifiers have spoken so harshly about today.
But I don't have any particular problem with anybody that
appeared here today. They have all got their own opinions. We
appreciate very much the opportunity, and we like to parade
what is going on in West Virginia because we are very, very
proud of it. So thank you, Mr. Chairman.
The Chairman. Thank you, Bill. Anybody else?
Mr. Quinn. If I could just supply the Committee----
The Chairman. Yes, Hal.
Mr. Quinn.--with some facts. Congressman Pearce was asking
some questions at the outset of the hearing this morning.
The amount of the production annually is about 1.2 billion
tons. You wanted to know how many miners; I think Mr. Roberts
answered that correctly. But the full employment directly is
about 123,000 nationwide. Average wages annually is about
$64,000 for a coal miner, and we know many a coal miner who
will make plenty more than that once they do their overtime. It
could go up to 80 or more thousand dollars a year.
And the value of our product is about $28 to $30 billion
annually, not including once it has passed upstream through
electricity.
Mr. Chairman and Congressman Pearce, I would also like to
say a word. Thanks for your support on issues related to the
development of a coal-to-liquids industry. And just to mention
that, as you know, Mr. Chairman, there will be a symposium that
we are co-sponsoring with other groups in your district next
month.
And thank you for your invitation today again.
The Chairman. Thank you, Hal.
Mr. Loomis. Mr. Chairman, I would echo what Mr. Raney said,
too. We would welcome you and your committee to come to Wyoming
and look at some of the reclamation that we have been able to
accomplish, some of the wildlife habitat that we have been able
to create.
I grew up on a ranch and hated prairie dogs all my life.
But one of the crowning achievement of one of the mines is
reestablishment of a prairie dog colony on some of their
reclamation, and creating habitat for the mountain plover,
which is a threatened species. So we are doing some innovative
things there that the industry is very proud of, and we would
love to show it off to you.
Mr. Fry. I am going to pass. Thank you very much.
The Chairman. Gentlemen, thank you. Thank you for your
patience and being with us today.
As I conclude this oversight hearing on the 30th
anniversary of SMCRA, let me say, Moe, this one is for you.
Committee adjourned.
[Whereupon, at 3:12 p.m., the Committee was adjourned.]
[Additional material submitted for the record follows:]
[A letter submitted for the record by Cathie Bird, Chair,
Save Our Cumberland Mountains, on behalf of the members of SOCM
Stripmine Issues Committee, follows:]
SAVE OUR CUMBERLAND MAMMALS
224 S. Main Street, Suite 1 * PO Box 479
Salt Lake City, TN 37769 * http://www.socm.org
865-426-9455 * FAX 865-426-9289
August 3rd, 2007
Jim Zoia, Staff Director
Committee on Natural Resources
U.S. House of Representatives
1324 Longworth House Office Building
Washington, DC 20515
http://www.house.gov/resources
Dear Mr. Zoia and Members of the Committee,
Thank you for the opportunity to comment on SMCRA at its 30-year
anniversary. A reading of the original SMCRA legislation makes it clear
that coal extraction for U.S. energy supply was, at the time, to be
supported by the Act. It is interesting to note that the majority of
paragraphs specify the intention of Congress to protect citizens and
the environment from known effects of surface mining that disturb
surface areas in ways that ``burden and adversely affect commerce and
the public welfare'' [30 USC 1201 Sec. 201(c)].
Save Our Cumberland Mountains (SOCM), a member-run organization
that encourages civic involvement among Tennessee people so that they
may have a greater voice in determining their future, was very involved
with other grassroots organizations in the initial SMCRA legislative
process. When the Act became law in 1977, SOCM members hoped that it
would bring destructive surface mining practices under control in their
Appalachian homelands, but realized that coalfield citizens would have
to stay involved and alert to potential shortcomings of the Act. At
this 30th Anniversary of SMCRA, many coalfield residents are not secure
in the belief that their homes, communities and mountains are being
protected as this law envisioned.
Problems with enforcement
SMCRA was designed to protect private property from water
pollution, blasting, and other damage by surface mining, and to give
citizens a way to seek recourse if such damage occurred. In too many
cases this is not happening. People are left with cracked foundations,
caked coal dust on their houses, and hot and cold running black sludge
from their faucets. A recent study of violations and complaints about
Zeb Mountain Mine in Campbell and Scott counties in Tennessee revealed
that blasting has caused thousands of dollars in damage to several
homes. In one of these homes, the water is no longer fit to drink.
Citizens are given ridiculous explanations for their cracked walls such
as ``closing windows, rocking in a rocking chair or jumping rope.'' The
residents get little help from OSM enforcement personnel who are
supposed to be protecting them, and. have had to shoulder the burden of
responsibility for fixing the damage. We hope that members of the
Committee will be as outraged as we are here in the coalfields, and
that you will investigate why such things are still happening under
SMCRA 3D-years after its adoption. Unfortunately, enforcement problems
also allow damage to water, wildlife and forest resources.
According to a SOCM enforcement case study at Zeb Mountain, located
in Elk Valley, 1N. From the start of surface mining in 2003 to the
present, a total of 31 violations have been issued. For seven of the
violations, the federal office of surface mining has granted
extensions. Of the seven violations, four of those violations had over
12 extensions translating into 3-years of extension per violation. This
is of grave concern to citizens who's homes and water have been damaged
as a result of these violations.
OSM has granted large numbers of numerous violations incurred by
coal operators. In addition, the mine operator has filed many permit
revisions, some of which were intended to fix situations created by
illegal operations at the mine, In other words, it is commonplace for
mining companies to mine outside the parameters of their permits, and
then retroactively allow for a permit revision with little to no
repercussions. These extensions by OSM and foot-dragging on required
revision data by the operator have allowed environmental damage to
remain unabated several years after the fact. Again, we would hope that
the Committee would be outraged that this is happening 30 years post-
SMCRA.
Antiquated programmatic EIS
OSM, the regulatory authority in the non-primacy state of
Tennessee, still measures its assessments of surface mining impacts on
the environment with a document that was adopted in 1985. Since then a
number of changes have influenced surface mining practices, and a large
body of scientific research has informed state-of-the-art consensus on
the impact of mining activity on headwater streams, and even entire
regions downstream from major coal-producing states. It is time for
this PElS to be updated, an opinion supported by SOCM as well as the
Tennessee Department of Environment and Conservation. Currently the
Department of Interior has, on two occasions, denied requests from the
State of Tennessee to revise the state's 1985 programmatic EIS.
Destruction of headwater streams by mountaintop mining
The arrival of mountaintop mining to the coal industry's repertoire
of extraction techniques has drastically changed the skyline of the
Appalachians, it is estimated that over 2500 peaks in Appalachia have
significantly altered forever as a result of mountaintop mining. In
addition to its assaults on the homeland security of coalfield
residents, this practice has eliminated hundreds of ephemeral,
intermittent and perennial streams whose functioning is critical to
water quality downstream, far from the .uplands where these
environmental assaults are committed. The federal government's own
Programmatic Mountaintop Removal and Valley Fill EIS speaks to the
horrendous impacts of this practice, even though more conclusive
research was aborted when the inconvenient truth of headwater losses
began to emerge. We fail to understand why this destructive practice is
still allowed. We urge the Committee to consider abolishing any mining
practices that dumps mining wastes into streams, allows valley fills,
or mines through streams.
Inadequate assessment of cumulative impacts
In reviewing mining permit applications we are consistently
disappointed in the inadequate attention to cumulative environmental
impacts of surface mining, especially mountaintop mining. OSM has
failed to protect cumulative hydrologic integrity of the Appalachian
coalfields by allowing valley fills that buried more than 1200 miles of
streams and 1.5 million acres of forest vegetation that is inextricably
involved in maintaining hydrologic balance. These activities have
destroyed the functioning of whole aquatic ecosystems, including
destruction of nutrient cycling services that headwater streams provide
for downstream fisheries and other aquatic and riparian species.
Problems with public participation
Public participation in the control of surface mining is a core
element of SMCRA, and, at the time, offered more opportunities for
public involvement than perhaps any other environmental legislation.
Under SMCRA, citizens are allowed to comment on proposed regulations,
to obtain judicial review of final rulemaking, to comment on proposed
state program provisions and obtain judicial review of decisions to
approve them. They can review (and get copies of) permit applications,
inspection materials, and other information held by the regulatory
authority. Citizens can comment on permit applications and request
administrative and judicial review of permitting decisions. If SMCRA is
violated, coalfield citizens can initiate complaints to federal
authorities and accompany inspectors who investigate their complaints.
If not satisfied with inspection results, citizens can call for a
review of inspection and enforcement decisions. Until court decisions
in the past four years discouraged such, citizens were allowed to bring
civil actions to force coal operators to obey the law or to make
regulatory officials do their jobs under the law.
Citizen participation since adoption of SMCRA has helped create a
better system than the one originally on the books. But those of us on
the front lines 30 years later still encounter delays in getting access
to material, in some cases being required to file for information under
FOIA. People seeking reparation for damage to their homes or water
supplies have to negotiate the system with little assistance, and the
results (as noted above) are often unjust and burdensome. SOCM and
other coalfield groups have sought legal relief from intolerable
environmental damage through NEPA and the Clean Water Act when it
appears that no avenue is open via SMCRA. We would suggest that this in
itself is a red flag and that the Committee needs to investigate how
user-friendly SMCRA really is from the point of view of coalfield
residents.
Coal: Poverty or Prosperity?
In the past, rural Appalachian communities were dependent on coal
mining for jobs, and often dependent on the coal companies for
virtually all economic activity. The advent of mountaintop removal
mining has shifted the equation. Mountaintop removal is a mining
technique designed, from the very start, to take the labor force out of
the mining operation. What used to take hundreds of miners employed for
decades, now takes a half dozen heavy equipment operators and blasting
technicians a couple of years. According to the bureau of labor
statistics, in the early 1950's there were between 125,000 and 145,000
miners employed in West Virginia; in 2004 there were just over 16,000.
During that time, coal production has increased. This decline in the
workforce continues today. Draglines and other advances in technology
resulted in a 29% decline in mining jobs during 1987 and 1997, while
coal production rose 32 percent during the same period.
All of this translates into profits for mining companies, all of
which are headquartered outside of the region. Massey Energy, for
example, is headquartered in Richmond, Virginia. As of January 31,2007,
Massey Energy operated 33 underground mines and 11 surface mines in
West Virginia, Kentucky, and Virginia. In 2006 Massey earned $2.14
billion in revenue, and CEO Don Blankenship received more than $10
million in compensation. Arch Coal, based in St. Louis, operates 21
mines in Appalachia and the West. In 2006, Arch brought in $2.5 billion
in revenue. Peabody, also based in St. Louis, operates 40 coal mines in
the U.S., Australia and Venezuela, and brought in $5.22 billion in
revenues in 2006. A relatively new company, founded in 2002, Alpha
Resources, has 27 active ``surface'' mines in Appalachia, as well as
underground mines and road building operations to facilitate moving the
coal out. Alpha is based in Abingdon, Virginia and brought in $1.96
billion in 2006 -all based on Appalachian coal. Despite these profits,
particularly the wealth accruing to top executives, coal companies are
quick to label property damage resulting from their activities ``an act
of God,'' thus avoiding any financial responsibility to the people who
suffer the consequences.
To add insult to injury, in addition to the loss of jobs and
exportation of profits, mountaintop removal effectively destroys the
potential for many alternative economic growth options. In North
Carolina and Tennessee mountain counties without coal mining, tourism
income far outpaces the coal income in coal counties -an option
unavailable to counties whose mountains and streams have been
destroyed. Traditional wild ginseng gathering and small-scale
agriculture are also obliterated when mountains are blown up. Not only
must mountaintop removal be stopped, aggressive alternative,
sustainable economic development options must be pursued. People of the
coalfields need alternative means of livelihood that do not leave them
dependent on the very coal companies that are destroying their
communities, health and the land they need for long-term survival.
History demonstrates that long-term sustainable economic well-being
eludes local economies tied to the one-time windfall of resource
extraction, particularly coal. Coal producing counties are among the
poorest in the nation. In a review of more than 300 studies of the
economic impacts of mining industries on non-metropolitan communities,
university researchers found that .roughly half of all published
findings indicate negative economic outcomes in mining communities and
the remaining half are split roughly evenly between positive and
neutral/indeterminate outcomes. Positive outcomes are also more likely
to come from the Western United States. Moreover, over half of all
positive findings come from years prior to 1982. In virtually all other
categories, the majority of the findings were negative. \1\
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\1\ Freudenburg, William, University of Wisconsin-Madison, and
Wilson, Lisa, University of California Santa Barbara, ``Mining the
Data: Analyzing the Economic Implications of Mining for Non-
Metropolitan Regions,'' Sociological Inquiry, Vol. 72, No. 4, Fall
2002.
-----------------------------------------------------------------------
Given both the negative economic track record and the severe
ecological impacts of surface mining, it is critical that government
fully evaluate the expected local benefits and local costs to determine
if mining in fact brings sufficient benefits to merit the decision to
approve a mine.
The future of coal as a workable energy source
As discussion of a climate legislation moves onto the national
political agenda, citizens groups-particularly citizens who have
generations of experience with the true costs of coal are working to
frame extraction issues as part of the larger debate. The SOCM
Stripmine Issues Committee believes that those coalfield communities
where coal is currently or has been extracted deserve the right to
secure, sustainable jobs and energy sources. The committee further
believes that while coal has provided a source of income and
opportunity for generations, the price of coal does not expose the true
costs of damage to the land, water and people of Tennessee.
Additionally, as stated above, it is strongly held that failure of
enforcement for thirty years has shown a not only a weak link in the
system, but that it is also evidenced, that mountaintop mining can not
occur without immensely devastating impacts to coalfield communities.
The SOCM Stripmine Issues committee concludes that ``alternative''
coal technologies--such as so called ``clean coal'', IGCC, and coal to
liquids--are incompatible with a sustainable federal energy policy and
a step backwards for the coalfield communities of Tennessee. Therefore
every possible immediate action must be taken by the House Natural
Resource Committee, in their review of SMCRA, to ensure that
mountaintop mining and other forms of steep slope mining be immediately
abolished, and more stringent enforcement be put in place.
Cumulatively, while we agree that some things are working, we also
harbor a fair amount of discontent with how SMCRA is actually
functioning, especially since the 25 th anniversary review in 2002. We
believe that coalfield citizens have gone above and beyond the call of
duty to keep OSM and coal companies true to the intent of SMCRA. There
are many of us here in the coalfields who would be glad to share our
experiences in more detail. We are interested to see how the Committee
responds to our concerns.
Sincerely,
Cathie Bird, Chair
For the members of the SOCM Stripmine Issues Committee
______
[A letter submitted for the record by Joyce Blumenshine,
Peoria, Illinois, follows:]
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[A letter submitted for the record by Julia Bonds, Rock
Creek, West Virginia, follows:]
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[A letter and exhibits submitted for the record by Beverly
Braverman, Executive Director, Mountain Watershed Association,
dated August 3, 2007, follow:]
Mountain Watershed Association
P.O. Box 408
Melcroft, PA 15462
August 3, 2007
Chairman Nick Rahall
House Natural Resources Committee
1324 Longworth House Office Building
Washington, D.C. 20515
Dear Chairman Rahall:
We appreciate the opportunity to submit formal comments for
inclusion in the record in response to the House Natural Resources
Committee hearing concerning the SMCRA held by you on July 25, 2007.
White SMCRA was written to answer the promise of protection in the
coalfields, implementation has fallen short. Some of the successes have
been restoration of some abandoned mine lands, provision for running
state programs under Title IV, and Appalachian Clean Streams Initiative
grants to watershed groups doing reclamation in their communities.
These successes, however, are overshadowed by the lack of
enforcement of the purpose and intent of the Act. The gradual erosion
of the Act by State programs refusing to follow the laws set forth
about blasting, strip mining, and public participation has created a
situation where those who supported passage barely recognize ``the
promise'' they were given in the Rose Garden those many years ago.
The lack of implementation and enforcement of SMCRA by the federal
and state government has seriously weakened the needed benefits and
controls that led to its passage in the first place. The dearth of
oversight of state promulgated coal-friendly regulations that fly in
the face of the law has contributed to the failure of the Act to
protect our environment, our quality of life, and our communities.
Enclosed for inclusion in the record is a booklet (Exhibit A)
called the True. Cost of Coal, which shows the degradation and
destruction resulting from weak enforcement of SMCRA and passage of
regulations that add to the emasculation of the law. This pictorial
record includes subsided streambeds, which have occurred as a result of
surface-effects of underground mining, an area that SMCRA was meant to
control. Also, included are pictures of mountain top removal, which is
totally outside the realm of the law. Many valley fills are in complete
violation of the Act. Home, highway, water line impacts caused by
longwall mining are also surface effects of underground mining that the
Act was meant to control.
In addition to these surface impacts of underground mining, OSM has
allowed the destruction of homes on the Historic Registry. The tragic
story of the Thralls House is a shameful abrogation of federal control
over the coal industry.
The promulgation of coal-friendly regulations have upheld the
further weakening of the Act. States like Pennsylvania now permit the
allowance of unacceptable mitigation of surface effects, such as in
Exhibit B, a picture of a dry streambed and pipes carrying the water,
will not be overthrown through federal oversight under SMCRA. So far,
they have been correct in this analysis. OSMRE has been MIA.
There is a belief that citizens in the coalfields can bear the
burden of continued damage to their homes 'from strip mining. SMCRA was
passed in major part to shift the burden of coal mining from citizens
living in the coalfields to the people responsible for the burden and
profiting from the burden, the coal companies. This burden has not been
shifted. Living in coalfield communities means that any day a permit
may be issued beside your home that will cause excessive amounts of
dust and noise to become part of your daily life. It means that any
day, you may wake up and not have water sufficient in quantity and
quality to get you through the day OR you may not have water at all.
You are then at the mercy of the coal company to provide you with this
most precious resource.
Blasting damage continues to plague citizens despite the position
in SMCRA that NO DAMAGE, NOT EVEN COSMETIC DAMAGE, is to be allowed. In
Pennsylvania you are expected to believe that blasting did not cause
the damage to your home despite the reality that the damage was not
there prior to mining as shown in your pre-blast survey but is there in
the post blast survey--You are told that the problem of blasting damage
is a civil matter between the homeowner and the coal company. The PA
Department of Environmental Protection states ``it has no authority to
require the company to compensate the homeowner for damage.'' Where is
federal oversight under SMCRA at this point? The burden of blasting
damage caused by strip mining has not been lifted from the citizens of
the coalfields. Most of the communities where mining takes place are
economically struggling and underserved. To expect the people living
there to hire an attorney to protect their interests or pursue a
lawsuit for damages from blasting is totally unacceptable and
unreasonable. They cannot afford to hire an attorney. But, then, that
is the idea, is it not?
Another purpose of SMCRA was to improve disbursement of
information, particularly accessibility of permit applications. This
would be a great idea if OSM's website were not opaque, that is, if it
was up to date with pertinent information. Further, if OSM oversaw the
state's provision of information to citizens, it would see that they
are being charged for copies at a high rate; permit applications are
deemed complete even if they are only administratively complete, not
technically complete; and permit information is submitted in a
piecemeal fashion, which makes citizen review an ordeal.
Inadequate bonding is another ongoing nightmare for communities. On
August 2, 2007 the United States Court of Appeals for the Third Circuit
gave a victory to Pennsylvania's environment and economy by ruling in
favor of a coalition represented by Citizens for Pennsylvania's Future
(PennFuture) that the Commonwealth of Pennsylvania must require the
state's coal operators to post bonds to cover the entire cost of
environmental cleanup. The case began in December 2003 FOR THE SECOND
TIME, when PennFuture filed a lawsuit on behalf of Pennsylvania
Federation of Sportsmen's Clubs, Pennsylvania Council of Trout
Unlimited (formerly PA Trout), the Pennsylvania Chapter of the Sierra
Club, the Tri-State Citizens Mining Network (now known as the Center
for Coalfield Justice) and the Mountain Watershed Association against
both the federal and state governments for their failure to protect
Pennsylvania's environment from damage caused by mining operations,
including acid stream pollution.
I am enclosing this decision (Exhibit C), which indicates another
serious problem with how SMCRA is enforced. It is disheartening that
our government officials had to be taken to court and forced to do the
right thing. With an existing $15 billion backlog of old mine damage,
it is crystal clear we need to take action to stop the problem from
getting any worse. But the state adopted policies that slashed the
amount of revenue generated by its reclamation fee, and has even
proposed to eliminate that fee entirely. The court's ruling makes clear
that those decisions took the state in the wrong direction.
We thought the recognition of citizen suit provisions and public
participation by Congress was a-great step forward. But, how much
damage has gone uncorrected in the years our bonding suit struggled
through the courts? It certainly is much better for citizens and the
environment if the law is enforced in the first place.
Public participation provisions in the Act have been emasculated by
state practice. Attached is an exchange of letters between citizens and
the PA Department of Environmental Protection concerning the practice
of holding public meetings in the middle of the day when most working
citizens cannot attend. (Exhibit D) Further, public notice has become a
farce as notices are placed in papers where few people in the proposed
affected area are among the paper's circulation, the meeting is held in
a neighboring township and the township supervisors of the proposed
affected township are not notified. The request for evening meetings
(even those requests made by the township supervisors) are rejected by
the state regulatory agency based according to them on budgetary
constraints. The Congressional provision for public participation has
fallen victim to the budgetary concerns of the state. Somehow, I do not
think that is what Congress had in mind when they provided for this
right.
There are numerous other concerns. However, I am certain that my
comments are not the only ones that will be submitted for inclusion in
this record. I leave it to others to continue my lament.
Very truly yours,
Beverly Braverman
Executive Director, Mountain Watershed Association
Home of the Youghiogheny Riverkeeper
Member, WaterkeeperTM Alliance Chair,
Center for Coalfield Justice Pennsylvania Board Representative,
Citizens Coal Council
(724) 455-4200
on behalf of:
Jim Kleissler, Executive Director,
Center for Coalfield Justice
(724) 229-3550
Krissy Kasserman
Youghiogheny Riverkeeper
(724) 455-4200
______
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[A letter submitted for the record by Vernon Haltom, Co-
Director, Coal River Mountain Watch, dated August 6, 2007,
follows:]
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[A letter submitted for the record by Robert L. Johnson,
PE, Collinsville, Illinois, dated August 3, 2007, follows:]
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[A letter and attachments submitted for the record by
Clarence Loucks, Hillsboro, Illinois, follow:]
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[A letter submitted for the record by David Webb, Naoma,
West Virginia, dated August 4, 2007, follows:]
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[Comments dated August 1, 2007, submitted for the record by
Ronald E. Yarbrough, Ph.D., PG, Professor Emeritus, Earth
Sciences, Southern Illinois University, follow:]
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