February 7, 1977 and March 1, 2, and 3, 1977 Hearing
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Legislative History February 7, 1977 and March 1, 2, and 3, 1977 Hearing |
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MONDAY, FEBRUARY 7, 1977
1 U.S. SENATE, SUBCOMMITTEE ON PUBLIC LANDS AND RESOURCES, OF THE
COMMITTEE ON ENERGY AND NATURAL RESOURCES, Washington, D.C.
1 The subcommittee met, pursuant to notice at 11:30 a.m., in room 1202, Dirksen Office
Building, Hon. Lee Metcalf presiding.
1 Present: Senators Metcalf, Jackson, Church, Johnston, Bumpers, Hansen, Melcher, and
Hatch.
1 Also present: D. Michael Harvey, special counsel; Norman Williams, professional staff
member; and Ted Orf, deputy minority counsel.
OPENING STATEMENT OF HON. LEE METCALF, A U.S. SENATOR FROM
THE STATE OF MONTANA
1 Senator METCALF. The subcommittee will be in order. This is a hearing of the
Subcommittee on Public Lands and Resources to get the views of the Carter administration on S.
7, the Federal Surface Mining Control and Reclamation Act of 1977. S. 7 is a modified version
of H.R. 25, 94th Congress, the bill which President Ford vetoed in May 1975.
1 President Carter has consistently voiced support for a strong Federal strip mine bill. He
repeated this pledge most recently during his nationwide fireside talk last Wednesday evening.
1 For those of us who have been struggling over the years - for over 6 years - to enact
legislation which will meet the need for preserving our land and water resources, for stabilizing
our coal industry, and for taking the first step toward a rational energy policy for this Nation, the
President's words of encouragement have come like proverbial music to the ears.
1 I have a telegram from the West Virginia Surface Mining and Reclamation Association,
reminding me this is the sixth straight year Congress has attempted to pass a bill to regulate
surface mining for coal in the United States.
1 Secretary of the Interior Andrus made some general observations on surface mining at his
confirmation hearings. I must sav we were agreeably impressed by his comments at that time,
particularly with reference to protection of agricultural lands from the ravages of strip mining.
2 In view of the urgent need to move S. 7 to the White House as soon as possible and in a
form which is acceptable to the President, we have asked Secretary Andrus and FEA
Administrator O'Leary to give us detailed assessments of the legislation today. We have also
invited statements for the record from the Environmental Protection Agency and the President's
Council on Environmental Quality.
2 Before I will call on you, Mr. Secretary, and you, Mr. Administrator, I will ask the
chairman of the full committee, the distinguished Senator Jackson, for his statement, and I will
insert the departmental report in the record at this time.
2 [The report referred to appears on the following page.]
3
United states Department of the Interior
OFFICE OF THE SECRETARY
WASHINGTON, D.C. 20240
FEB. 4, 1977
Dear Mr. Chairman:
3 This responds to your request for the views of this Department concerning S. 7, the
"Surface Mining Control and Reclamation Act of 1977."
3 We strongly support enactment of such legislation. A new law to control surface mining of
coal and provide for reclamation of mined lands is badly needed and the legislation your
Committee has before it is well conceived to meet that need. Its expeditious passage is a high
priority of President Carter.
3 S. 7 would provide for a cooperative surface coal mining regulatory program with
responsibility for implementation being shared between the States and the Secretary of the
Interior. Strong reclamation performance standards and permit requirements would assure that
both State and Federal mined land would be fully reclaimed and that the environment would be
protected. On the other hand, under mechanisms provided by the bill, the production of needed
coal could continue under national standards in a reasonable manner. Public participation in
decisions about surface coal mining would be provided for. Full development of needed
information would be required or encouraged to serve as a basis for effective and reasonable
regulation of surface mining operations. Through S. 7's bonding and enforcement provisions,
actual compliance with the standards and requirements would be assured.
3 In addition to the reclamation regulatory program, the bill provides for reclamation of lands
already damaged by past mining. Financed in S. 7 through a fee levied against Federal coal, the
bill provides both for reclamation of rural lands through the Department of Agriculture and for
acquisition and reclamation of abandoned and unreclaimed mined lands and for alleviation of
problems related to mining.
3 The effects of inadequately controlled surface coal mining are well known. Among them
are destruction or diminution of the utility of land, erosion and land slide, flooding, water
pollution, destruction of fish and wildlife habitat, loss of natural beauty, property damage, health
and safety hazards, and adverse social impacts.
4 Increasingly in the future, the Nation's energy needs will depend on coal mining. Current
trends indicate that more and more of this mining will be by surface methods. Federal and other
western lands will be called on to supply surface-mined coal, in many instances for the first time.
Against this background, the need for legislation such as S. 7 is urgent.
4 In developing and carrying out an effective and efficient surface coal mining control and
reclamation law, the Department will work closely with the Congress. President Carter has
indicated that he would have signed the surface mining legislation passed by the last Congress,
but vetoed. The President is prepared to approve similar legislation and has directed us to work
with Congress in resolving remaining major issues and developing whatever changes in
introduced bills may appear advisable to improve them.
4 Protection of surface owners of land where the Federal Government owns and proposes to
rease coal was a particularly difficult issue for the last Congress. Section 423(e) of S. 7 changes
the surface owner consent provision finally developed and included in the vetoed bill. That
provision afforded a right to consent to specified individuals and limited the amount that could
be obtained by such an individual if he does consent. The amount specified had three
components to be determined by appointed appraisers: (1) the fair market value of "the surface
estate," (2) certain specified losses and damages, and (3) an additional reasonable amount limited
to the lesser of the item (2) losses or $1 00 per acre. If this provision were adopted, the language
of item (1) should be clarified so that it would apply to the fair market value of the "surface estate
based on its use for agricultural purposes and exclusive of the value of minerals or the right to
consent under this section." Clarified in this way, that type of provision is preferable to Section
423(e) of S. 7 which prohibits surface mining of Federal coal where the surface is owned by a
non-Federal party.
4 The bill will place on small mine operators a heavy administrative and operating burden.
Several changes may be desirable to limit this burden, including:
4 - directing the regulatory authority to undertake the development of some of the
information required to obtain a mining permit
4 - financing this work in part from the reclamation fee collected pursuant to section
301(b)(3)
4 - permitting reduced application fees
4 - omission of certain permit application date as determined by the regulatory authority and
in some instances requiring less data - modifying the bond release administrative provisions by
limiting the scope of the notice to be given and providing an informal procedure for release
5 Departmental staff can work with your Committee in providing specific amendments to
accomplish these changes.
5 A related matter concerns the schedule provided by the bill for implementation of the
program. We recommend application of performance standards to new mines beginning six
months after enactment and to existing mines beginning after one year. In addition, it appears
desirable to have applications for permanent permits made only after a State or Federal program
is approved. The regulatory authority's determination whether to issue a permit could not be
delayed longer than six months after application is made (or a specified time after enactment of
the bill). Tying the permanent permit application procedure to approval of a State or Federal
program in this fashion is administratively preferable to provisions of S. 7 which require permit
applications twenty months after enactment, whether or not a program has been approved.
5 A related matter concerns the requirement of Federal inspections of non-Federal mines
beginning 135 days after enactment. While we recognize the desirability of Federal "back-up"
enforcement of reclamation requirements principally intended to be a State responsibility, we are
concerned that State incentives to carry out that responsibility not be weakened. A full program
of regular Federal inspections might weaken those incentives and encourage States to withdraw
from the regulatory program. To reduce this possibility, we suggest that Federal "back-up"
inspections be provided only where there is an indication of specific need - that is, when the
Secretary receives information giving reason to believe that there are violations of the Act's
requirements.
5 With respect to the abandoned land reclamation program set forth in Title III, we
recommend that the fees assessed against currently mined coal be made applicable to all coal -
not merely coal derived from Federal land and should be in addition to royalties now received
from Federal land.In addition, the Administration would like to work further with the Congress
to determine whether the provisions of section 305 relating to secondary impacts of mining are
best suited to meeting problems posed by abandoned mine lands. It is important that resources of
the abandoned land reclamation program be directed to matters of highest priority and that past
environmental damage be remedied effectively and expeditiously. To this end, consideration of
the requirement that fifty percent of the fees collected for the fund be initially allocated to the
State from which they are derived may warrant modification to allow more flexibility in directing
resources to areas of greatest need.
5 An important purpose of this legislation is to protect fish, wildlife and other ecological
values. In developing and implementing this program we intend to assure that these values are
appropriately recognized.
6 Section 410(b)(5) recognizes the need for special protection of alluvial valley floors.These
areas are essential to the agricultural base of the Nation and the economic life of many parts of
the West. We support this protection. Some modification appears desirable, however, to clarify
the provision and to provide for the continued operation of mines currently producing coal. To
accomplish this we recommend amending section 410(b)(5) to read:
6 (5) the proposed surface coal mining operations, if located west of the one hundredth
meridian west longitude would -
6 (A) not interrupt, discontinue, or prevent farming on alluvial valley floors that are irrigated
or naturally subirrigated but, excluding undeveloped rangelands which are not significant to
farming on said alluvial valley floors and those lands that the regulatory authority finds that if the
farming that will be interrupted, discontinued, or prevented is of such small acreage as to be of
negligible impact on the farm's agricultural production, or,
6 (B) not adversely affect the quantity or quality of water in surface or underground water
systems that supply these valley floors in (A) of subsection (b)(5):
6 Provided, this paragraph (5) shall not affect those surface coal mining operations which in
the year preceeding the enactment of this Act (1) produced coal in commercial quantities, and (2)
were located within or adjacent to alluvial valley floors or had obtained specific permit approval
by the State regulatory authority to conduct surface coal mining operations within said alluvial
valley floors.
6 We believe that administration of provisions of S. 7 relating to judicial matters may also be
improved. With respect to citizen suits seeking to compel the Secretary or a regulatory authority
to perform any act or duty under the Act which is not discretionary, it may be appropriate to
specify that the citizen suit provision shall constitute the exclusive remedy to assure that the
Secretary or regulatory authority will receive sixty days notice except for situations involving an
imminent threat to the health or safety of the plaintiff or would immediately affect a legal interest
of the plaintiff.This will allow the Secretary opportunity to remedy any failure that may in fact
exist without the necessity for suit.In addition, a provision of the Clean Air Act similar to section
426(a)(1) of S. 7 has been the subject of much needless litigation concerning the specification of
"the appropriate" United States Court of Appeals. We recommend that this be clarified by
providing that review of actions relating to State programs for a State shall be by the Court of
Appeals for the Circuit in which the State is located. Review of orders or decisions of national
scope under section 426(a)(2) should be in the U.S. Court of Appeals for the District of
Columbia.
7 Finally, we endorse the provision of section 423(d) which contemplates the application of
State programs to Federal lands. This should, however, be carried out by agreement between the
States and the Secretary of the Interior rather than at the sole election of a state. To this end,
several changes appear desirable. It should be clarified that States with cooperative agreements
will be permitted to retain their regulatory function, with appropriate modification, prior to the
approval of a State program, that the Department retain its statutory duty to receive and approve
mining plans, and that the designation of lands unsuitable for mining will continue to be an
Interior responsibility. It should also be specified that the election of the State will be subject to
the Department's review and approval as are other aspects of the State program.
7 This Administration is firmly committed to the prompt enactment of good surface mining
control and reclamation legislation. To accomplish this we are prepared to work closely with the
Congress, both with respect to the modifications outlined above and to other improvements that
may appear advisable as the Congress acts on the measure. More importantly we will continue
that close relationship in implementing an effective program. The harm left in the wake of past
surface mining must be ended promptly. Enactment of legislation such as S. 7 in the near future
is a high priority both of President Carter's energy policy and his environmental policy.
7 The Office of Management and Budget has advised that enactment of legislation
conforming to the views set forth above would be in accord with the program of the President
and it has no objection to the presentation of this report.
7 Sincerely,
7 CECIL D. ANDRUS
7 SECRETARY
7 Honorable Henry M. Jackson
7 Chairman, Committee on Interior and Insular Affairs
7 United States Senate
7 Washington, D.C. 20510
STATEMENT OF HON. HENRY M. JACKSON, A U.S. SENATOR FROM THE
STATE OF WASHINGTON
8 The CHAIRMAN. Today we begin what will hopefully be the last chapter in the long
effort by the Congress to develop Federal legislation governing the surface mining of coal in our
country. I will not recite the long history of hearings, committee markups, floor debate, and
Senate-House conference committee meetings which have gone into this legislation. Suffice it to
say that both the 93d and 94th Congresses passed surface mining bills by overwhelming margins.
Unfortunately, President Ford saw fit to veto both bills and in 1975 the House of Representatives
failed by a mere three votes in its attempt to override the veto.
8 I firmly believe that this legislation will be enacted this year. We have a President who has
repeatedly stated his support for it. Responsible representatives of the coal industry have
indicated that they can live with it. Recent studies by outside experts have demonstrated that the
exaggerated claims of adverse impacts made by the Ford administration and some industry
representatives are nonsense.
8 The United States is truly the Saudi Arabia of coal. Development of coal is the key to
meeting our energy needs for the rest of this century.
8 One of the major inhibiting factors to coal development in all of the coal regions of the
country - East and West - is the failure to establish Federal surface mining standards. Our coal
industry must know what the guidelines are in order to be able to plan their investments and
proceed with mining.
8 I think it is important to keep in mind that our domestic reserves of coal are so large that we
can afford to establish standards which provide protection for water quality, prime agricultural
lands, and esthetic values even if in some instances this means that certain coal deposits will not
be mined.
8 Once we have established the rules for digging the coal, then we must insure that we can
burn it without impairing the quality of our air. While the question of air quality standards will
be considered by another committee of the Senate, our committee will be encouraging the
necessary research and development to find ways of solving the air quality problem. For
example, better methods of removing the sulfur from the coal before burning should be given a
high priority on our R. & D. agenda.
8 In closing, I want to pay tribute to Senator Lee Metcalf who has led the fight for Federal
surface mining legislation for the last 4 years. He has done the work of chairing hearings,
leading the committee markups, and managing the legislation on the floor. The Senate has
repeatedly endorsed his efforts by overwhelming votes. Indeed, the last Senate rollcall on surface
mining was 84 to 13. That kind of vote reflected the convictions of Senators from all parts of the
country that Senator Metcalf had brought before them legislation which struck an appropriate
balance between the need to develop our coal reserves and to protect our lands and waters. It
further reflected their feeling that the legislation was flexible enough to be applicable to the
mountainsides of Appalachia, the fertile agricultural areas of the Midwest and the arid, fragile
lands of the West, and that it recognized the interest of the individual States by giving them the
principal responsibility for regulation of mining within their borders.
9 I am sure that Senator Metcalf has been even more frustrated than I over the failure to enact
a Federal law. I am equally sure that such a law will be enacted within the next few months.
When it is, Senator Metcalf will have the satisfaction of knowing that his efforts have, at long
last, borne fruit.
9 Finally, Mr. Chairman, I think the spirit and the attitude on the part of the administration
here to really do something about it is exemplified by the presence of our new Secretary, Mr.
Andrus, and the new head of the Federal Energy Administration, Mr. O'Leary. Here we have the
two keys to the problem we face. I am delighted both of them are present here this morning to
participate in these hearings.
9 Senator METCALF. Mr. Chairman - and I say Mr. Chairman because you are chairman of
our full committee - it has been your cooperation and participation that has permitted us to get
this bill this far along. I appreciate your kind words and your cooperation which has always been
exemplary. I share your optimism: We are going to pass some legislation in this session.
9 The leading minority member has also been very cooperative in participation in the
discussions - I am not going to endorse everything the distinguished Senator from Wyoming has
made.
STATEMENT OF HON. CLIFFORD P. HANSEN, A U.S. SENATOR FROM THE
STATE OF WYOMING
9 Senator HANSEN. I appreciate these richly deserved accolades, both from you, Mr.
Chairman, and the chairman of our subcommittee. I have never been more persuasive among my
Republican colleagues than when I teamed up with you, the chairman of this subcommittee.
9 As you know, I have supported surface mine legislation as it has come down through the
legislative process in times past. It is my intention to support it again, if the final version
adequately protects the rights of States, landowners, and the public in general. The protection of
our environment, our land resources, and agricultural way of life, and our water, is of the highest
importance.
9 I certainly want to do everything I can to see whatever is passed here takes full recognition
of these values.
9 I am also concerned because my State of Wyoming has taken a very active role in passing
laws that address the problems that are incident to the development of energy through coal. A
Federal strip mining bill enters the area of Federal/State jurisdiction and touches upon the police
power that normally has been under the jurisdiction of the State, or of the States I should say, and
my concern reflects that of the Governor of Wvoming in taking note of the fact the Secretary of
the Interior and the Governor of Wyoming entered into an agreement prompted by a lawsuit
brought by the State of Wyoming, which marks out areas of State authority, recognizing among
other things the adequacy of the laws passed by the State of Wyoming insofar as reclamation and
mining processes generally are concerned.
9 I hope this legislation will recognize this very worthwhile cooperative effort between the
Federal Government, on the one hand, and the States on the other, recognizing the continuing
validity of the kind of agreement your predecessor, Mr. Secretary, and my Governor entered into.
10 My second concern is for an adequate energy supply for this country. We all know we
have become more dependent upon foreign sources of petroleum supply that are uncertain at
best. We import more than 40 percent of the petroleum we use in this country. And I think that
impinges not only on the viability and good health of our industry as a Nation, but even more
importantly, under certain conditions, upon our national defense posture.
10 It has been pointed out on many occasions that during the oil boycott back in 1973, we
had to transport fuel to the Sixth Fleet in the Mediterranean by tanker, taking those supplies from
the eastern coast of the United States all the way into the Mediterranean.
10 As my good friends from Montana and Washington know, we are having a very unusual
winter in the West. The reports on water indicate we may have perhaps a little more than a third
of the amount of runoff that we might have anticipated.
10 I have not had a chance to talk to the chairman of the full committee, but we are going to
get only about a third.
10 The CHAIRMAN. That is correct.
10 Senator HANSEN. The Columbia River and the Snake River as well are important
sources of energy.
10 The CHAIRMAN. If it goes on for a little bit longer, and I think the Secretary will agree -
we will have the greatest shortage in a hundred years. I mean we are having a drought. There
has been no snow or rain. If you look at the Olympics and the Cascades, there is no snow at all.
It was 54 degrees in Seattle yesterday.
10 Senator METCALF. There is a shortage in most of the area, and in eastern Montana they
have very little snowfall. That is the upward drainage to take care of all of the Missouri drainage,
from Fort Peck right down to New Orleans.
10 Senator HANSEN. I appreciate the points you have underscored here for me, Senators
Jackson and Metcalf. As our good friends at the witness table know so well, coming from
Wyoming we are at the head of the creek; we are at the headwaters of the Columbia, at the
headwaters of the Colorado, the headwaters of the drainage that goes into the Great Salt Lake.
We supply water through the Platte into Nebraska.
10 So water runs out of Wyoming in every direction. We are well aware of the points you
both make. I am glad you made the observations you did because it underscores one important
fact; that is, while we have been fortunate this winter, both in terms of a mild winter and in terms
of generally adequate energy supplies, when you consider the impact that this shortfall in water is
going to have upon the hydropower for the Pacific Northwest, it bodes nothing but real trouble.
10 As Senator Jackson pointed out the indications are this will be the shortest we have been
in - 100 years, did you say, Senator?
10 The CHAIRMAN. Yes. In the Columbia Riversystem.
10 Senator HANSEN. That is extremely serious. My good friend, one of the Congressmen
from the State of Washington, Mr. McCormack, has a background in nuclear power. I think he
speaks with real authority, and he said if we have a real shortfall in power or even if we were to
try to take off on a national program of zero, increased usage, it would have a disastrous effect
upon the United States.
11 I think I am quoting him fairly accurately although I am paraphrasing what he said. He
pointed out people who need work the most, those with few work skills, minorities, are the first
to suffer when there is inadequate power.He knows, as we all do, for each man-hour of work on
the farms and ranches - and our distinguished Secretary understands very well, having served as
Governor of Idaho for three terms - that for each man-hour we burn 1.2 gallons of fuel.
11 These are some of the considerations that we will be faced with as we consider this very
important piece of legislation and I join in welcoming you two distinguished representatives to
the witness table.
11 Senator METCALF. Thank you very much, Senator. The Senator from Louisiana.
STATEMENT OF HON. J. BENNETT JOHNSTON, A U.S. SENATOR FROM
THE STATE OF LOUISIANA
11 Senator JOHNSTON. Thank you, Mr. Chairman. Mr. Chairman, I was just reading
here on page 2 of the Secretary's statement about the so-called compromise over surface
ownership that we worked out in the last hours of the conference committee last year. I well
remember those weeks, and it may have been months, while we considered the Surface Mining
Act in conference, and at the last minute it appeared the bill was going down to defeat because of
inability to agree on that surface ownership.
11 I had a hand in putting together that compromise. The point I am making is I felt then,
and I feel now, it is important that we come up with a bill for surface mining that is reasonable,
that will protect the surface. I believe that can be done.
11 At the same time, Mr. Chairman, the energy shortage is finally ripening into the energy
crisis. So it is more important than ever that we be very careful in what we do, that we don't
"lock up the coal," that we don't make a bill that is so onerous in its operation either as to cost the
country too much money or to get the country too little coal.
11 I believe we did the right thing last year. I believe we can again this year.
11 One thing we have not addressed ourselves to in this Congress - well, the Senate has
addressed itself to it, but the Congress has not - is the question of coal slurry pipelines. I believe
these two issues are inextricably related and interwoven. We have got to have a way to get this
coal down to the South, indeed, to Louisiana, which is the biggest gas-producing State, I guess,
in the country, at least when you include OCS gas. Yet we are burning coal there and we need
coal, yet we can't get it down in sufficient quantities. If that is true in Louisiana, it is even more
true in States throughout the country, that we need a source of coal.
11 As Jimmy Carter said the other day, coal is the key to the solving or the dealing with the
energy crisis. I agree. I don't think a strip mining bill is inconsistent with having coal the key to
that crisis, but I do think while we are about the question of surface mining we also need to
address the question of coal slurry pipelines.
12 I am introducing a bill in the next day or two which I hope, Mr. Chairman, we will
consider in conjunction with this strip mining bill. I am for the strip mining bill in any event.
But I think we ought to have a coal slurry pipeline bill so we can transport that coal which we
mine with such high environmental standards.
12 Senator METCALF. Ithank my friend from Louisiana. He knows I am going to resist
anything - and that means coal slurry pipelines or environmental protection for other areas or
scientific institutes in our universities, anything that gets in the way of the basic strip mining bill.
12 These other matters, as far as this Senator is concerned, will be taken up later, when we
consider such problems as the water involved in the coal slurry pipelines. But I assure the
Senator from Louisiana that early in this session or after we pass the strip mining bill, there will
be adequate consideration of the problem of coal slurry, of problems of research and
development centers, and those other things that were in the strip mining bill before.
12 One of the problems we have, Mr. Secretary, is we have 18 new Senators who were not
involved in strip mining legislation before.Of course, one of these new Senators is the Senator
from Utah, Mr. Hatch. I am delighted to have him here this morning.I will call on you for an
opening statement before we hear from the Secretary.
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE
STATE OF UTAH
12 Senator HATCH. The only opening statement I care to make is that I am very
pleased to see both of you here and I do have some questions about the strip mining proposal. I
am a great believer in States' rights, I strongly believe that the States can manage their own lands.
Many of my questions will be in that area.
12 Frankly, I have real questions about whether a strip mining bill is what this country needs.
I think it means more Federal controls and more domination by the Federal Government, less
production and sometimes, I think, more costly production to both the producers and the
consumers. So I have some real questions about it. I will keep an open mind, and hopefully you
can answer my questions to everybody's satisfaction.
12 Senator METCALF. I thank the Senator from Utah very much.The Senator from
Arkansas.
STATEMENT OF HON. DALE BUMPERS, A U.S. SENATOR FROM THE
STATE OF ARKANSAS
12 Senator BUMPERS. Mr. Chairman, first of all I want to say I appreciate the
chairman's remakrs regarding the coal slurry lines. The Senator from Louisiana and I have talked
about it for a little bit. It just so happens the major proposal is one from Gillette, Wyo., to
Pinewell, Ark., and as of this moment I don't know what anybody proposes to do - certainly I
don't know what my State proposes to do - with the waste water that is necessary to haul that coal
in slurry pipelines.
13 It is my understanding the line, or whatever the dimension might be, would be half water
and half coal. I have seen some of the studies on it but nobody has said what we in Arkansas are
supposed to do with that water. You can imagine what the chemical content of it would be once
it gets there.
13 If they want to build two lines so they can send the water back to Wyoming, then I have
no objection. But I have told the Senator from Louisiana I recognize there are economic benefits.
He advises me the cost of shipping coal from Wyoming to Arkansas can be done by slurry line at
about one-third of the cost of shipping it by unit train and that makes it attractive.
13 Of course, if the environmental considerations could be satisfactorily worked out.
13 The second thing is, I watched Governor Andrus on one of the talk shows yesterday, "Face
the Nation." I call him Governor because I notice in the latest poll they rank fourth in competence
levels of the opinions of the people and the Congress is eighth, so I try to get them to call me
Governor around here, too.
13 I was pleased to hear him say something I have always argued about the necessity of the
strip mining bill, and that is, if I were a coal operator and if I anticipated getting into the business
because of the obvious demand for coal that is going to be generated in the next few years, I
would want guidelines. I would not want to make a sizable investment at this time with this
hanging over my head knowing it is going to happen at some time but not knowing in what
precise form or what the economic cost to me would be as a coal operator.
13 Governor Andrus made this point yesterday. I think it is one of the most cogent points
that needs to be made. I thought the President last year in vetoing this bill on the grounds
production would be lost was erroneous, totally specious, and in the hearings held subject to the
veto was shown to my satisfaction rather conclusively that those figures were erroneous.
13 I hope we will move expeditiously to pass a bill. I thought the one last year was a very
good one. Most of us here on this committee and Senator Melcher, who was on the Interior
Committee of the House at the time, was familiar with it; I thought it was a perfectly good one,
and I will be happy with one just like it. Also perfectly happy to go through the hearings again
and if there are any improvements that can be made, certainly I will be amenable to them.
13 Senator METCALF. I thank the Senator from Arkansas, or I could say, I thank you,
Governor. We can also refer to the ex-Governor of Wyoming.
13 I appreciate your mentioning my colleague from Montana. Among the 18 new Senators,
of course, is Senator Melcher. He is as well acquainted with strip mining legislation as anybody
in America, and has been active in getting it through the House of Representatives. I think we
should be reminded he came within three votes of overriding the veto. I believe we could have
overridden the veto in the Senate if we had received the bill.
14 I welcome the Senator from Montana to the committee. We have just finished
organization of the various committees of the Senate in accordance with the Stevenson resolution
last week. So we have not had any appointments to any of the committees. Senator Melcher has
shown an interest, a deep concern in this legislation, and I would like to call on him at this time.
STATEMENT OF HON. JOHN MELCHER, A U.S. SENATOR FROM THE
STATE OF MONTANA
14 Senator MELCHER. Thank you very much, Mr. Chairman. I want to first of all
compliment you, Lee, for introducing S. 7, and I note first of all, S. 7, like the vetoed bills,
carries with it the prerogative for a State to run the reclamation program within their boundaries,
not just on private and State lands but also on Federal lands. That is a key part of S. 7 as it was a
key part of the vetoed bills.
14 On surface owners' rights, if there is going to be some modification of existing law, and I
think there should be, it has to be done by Congress and it is one of the key issues that must be
faced up to in S. 7 as it was faced up to in the vetoed bill.
14 I would offer the suggestion at this time that the surface owners' rights agreement, the
stipulations carried in S. 7, be modified to be the same as was ironed out and hammered out in
the conference committee, referred to by Senator Johnston. To accomplish that purpose and to
allow this committee to consider that I shall offer such an amendment.
14 Therefore, it will be in order to consider it here at the appropriate time.
14 I think a cornerstone of developing western coal depends on an enactment of this bill, for
the reason of solving surface owners' rights, for the reason of directing the States, the opportunity
and the prerogative of running the reclamation program, not just on private and State owned land
but on Federal lands, that we must have enactment of this bill.
14 When that is enacted, then I think we can see the development, prudently and wisely and
selectively, of western coal. It is true, as Senator Jackson has said, that this country is rich in
coal. Much of it is in the West. Probably most of the strippable coal is in the West and about half
of it is federally owned.
14 Until we have the firm delegation of authority from the Congress to the States to run the
reclamation program, firm guidelines and directions from the Secretary of the Interior on how to
lay out the procedures for the development of this coal, I think we are seriously lacking. It is also
worthy of note that enactment of S. 7 will set the minimum Federal guidelines for each of the
States to follow in their own statutes in order to run the reclamation programs themselves within
the boundaries of their States.
14 I believe this is also essential, or else we are going to remain in a position of States for
economic gain being tempted to have weak reclamation laws, and therefore, attract coal company
operations to their States away from other States that have tougher laws.
14 One of the basic reasons we have recognized in the Congress for the past 6 years the
national strip mine legislation was needed and it is needed just as much today as during those 6
years and even more so now.
15 Finally, I would like to commend Senator Metcalf and the other sponsors of this
legislation for providing money for abandoned, orphaned, strip mined lands that were abandoned
years ago and never reclaimed, for providing funds for that; and second, for providing funds for
the social impacts that occur in areas where coal development is undertaken.
15 I think both points are essential and needed of recognition of the Congress to strip mined
land that has never been reclaimed and looking ahead to recognize there are also social impacts
where Federal coal development does occur and it is a Federal responsibility to assist in those
areas.
15 I find S. 7 a very fine bill. I would only modify it to the one issue of surface miners' rights
and recognizing the difficulty we had in obtaining final agreement on that, returning to the
position we hammered out in conference a couple of years ago.
15 Senator METCALF. Thank you, Senator Melcher. Secretary Andrus - despite the
admonition given to me by Governor Bumpers, I am going to address you as Mr. Secretary from
now on - I am pleased you are here this morning and I know the problems you had at the Cabinet
meeting with Governor Carter - I should say President Carter. Your admonition carries through
Governor Bumpers; how did the Presidents rank in that poll?
15 Senator BUMPERS. I just looked at Congress and Governors; that is as far as I got.
15 Senator JOHNSTON. You can be assured it is above us. [Laughter.]
15 Senator METCALF. Anyway, I am delighted, with all of the problems that the Secretary
of the Interior has, that you have recognized as we have the high priority and great urgency for
passage of strip mining legislation in order to stabilize the basic and pivotal part of the coal
industry as part of our overall energy program. We are delighted to have you here this morning.
I am pleased we are going to be able to work with you, Mr. Secretary, in the years ahead and I
look forward to a very fruitful relationship.
15 At this time I am going to ask you, and then Mr. O'Leary, to testify, and then you will be at
the mercy of this subcommittee.
STATEMENT OF HON. CECIL D. ANDRUS, SECRETARY OF THE INTERIOR
15 Secretary ANDRUS. Mr. Chairman, members of the committee, my opening
statement will be brief. I will read it, Mr. Chairman, because I think it will answer some of the
questions that have been raised by members of your committee here this morning. The
legislative report I will refer to, but I will not cover that at this time.
15 Senator METCALF. The departmental report has been incorporated into the record, prior
to our opening statements and other necessary unanimous consent requirements will be made.
15 Secretary ANDRUS. Thank you, Mr. Chairman.
15 The Department of the Interior strongly endorses the enactment of comprehensive surface
mining control legislation.Your committee has worked on, and the Congress has passed, such
legislation during the past two Congresses. A Presidential signature on it is long overdue and I
am glad to see it placed at the top of your agenda. Drawing on your past efforts and expertise,
this administration looks forward to a new law under which an effective surface mining control
program can be carried out.
16 Increasing this Nation's ability to produce and use coal in order to decrease our reliance
on imported oil and scarce natural gas is essential.With sound environmental safeguards, surface
mining will be an acceptable way to produce much of this coal.
16 Fortunately, coal is abundant in this country. We can afford to be particular about where
and how we mine it, consistent with conservation of the resource. We can afford to declare
certain areas off limits to strip mining because of other important resource values, and we can
insist on ending the abuses which historically have been associated with coal strip mining.
16 Prompt establishment of new ground rules for surface coal mining is essential both for a
sound environmental policy and a sound energy and economic policy.Despite recent
improvements in State and Federal programs, a uniform approach, approved by the Congress,
needs to be adopted:
16 - To assure a high level of environmental protection;
16 - To provide for sound management of our land resources;
16 - To eliminate competitive economic pressures on States to lower their reclamation
standards; and
16 - To provide the coal industry with firm guidelines for its future development.
16 In reaffirming my support of this legislation, I would like particularly to mention some of
its fundamental components, which have been developed in the last few years of debate and
compromise on this legislation:
16 First: That reclamation is required to fully restore strip mined land to at least its original
productivity.
16 Second: That the burden is on the operator, not the Government or the citizen, to
demonstrate affirmatively that reclamation according to the law will be achieved.
16 Third: That certain areas will be off limits to strip mining because of other important
resource values, preserving the option for society later to determine whether the coal is worth the
sacrifices associated with mining by surface methods.
16 Fourth: That citizens will have meaningful opportunities to participate in the
implementation of the law - through availability of information, hearings, and opportunities for
citizen suits.
16 Last: That abandoned, unreclaimed mines will be reclaimed using money from production
fees.
16 Mr. Chairman, in approaching this legislation, I want to see a bill which will make for an
effective and efficient program without an undue burden on the economy. More specifically, the
following principles should govern:
16 No arbitrarily imposed losses of coal production should result from the program.
16 It should not result in significant unemployment.
16 No substantial consumer impacts should result. It should not adversely affect competition.
17 No unreasonable administrative burdens and governmental costs should be imposed.
17 In general, I believe the legislation before you meets these tests.
17 I hope you will agree with me, however, that if we can improve the bill, we should not be
deterred from this by past history, and, in any event, several issues remain to be resolved, many
of them touched upon by your committee this morning. I would like to touch upon several of
them now.
17 How to protect the owners of surface interests in lands where the Federal Government
owns and might lease coal for surface mining is an issue of central concern. Some recognition is
certainly appropriate to protect the interests of individuals who have in many instances, created
by their own labor a working ranch or farm and who may be faced with serious losses if Federal
leases are issued.I am not prepared to support a blanket prohibition of surface mining in the split
ownership situation, however.
17 Many hours of your time were spent in the last Congress trying to resolve this difficult
issue. It has been discussed here this morning in the opening remarks of your members.
17 The bill which finally passed conferred a right to consent on a specified class of surface
owners. To avoid large windfalls, it also specified compensation which could be paid for
consent. The concept of this provision in the vetoed bill would appear preferable to an outright
prohibition.At this point, I can only suggest that we remain open to reaching the most reasonable
possible solution of the problem and our Department stands ready to work with you to this end.
17 A second question is the protection of alluvial valley floors. I fully support such
protection.My staff advises me, however, that it would be desirable to clarify the alluvial valley
floor prohibition somewhat and to make specific allowance for the continued operation of
approved mines already producing coal.
17 As I mentioned, a basic feature of S. 7 which I support is its provisions for remedying the
historical environmental neglect of lands already mined and now abandoned. Some estimates are
that 1 1/2 million acres of land have been disturbed by all coal mining.I am frank to admit, I do
not believe we have an accurate inventory on that.
17 As you consider the bill's provisions for abandoned land reclamation, however, let me
urge you to focus on highest priority needs. A tremendous amount of reclamation work must be
done to repair the scars and correct the continuing environmental harm from mines where
responsibility for reclamation has ended and we must assure that our limited resources will be
used to produce the greatest possible results from a reclamation program.
17 Another issue of concern is the assignment of responsibility for the surface mining
reclamation program on Federal lands between the States and the Federal Government. S. 7 is
directed toward the accommodation of arrangements worked out in the last year. I would urge
that you make those arrangements, like other portions of State programs, subject to review and
approval by the Secretary, rather than election by the States. Other issues will also need
resolution.The Department's legislative report, which you have, addresses most of these
specifically and I will be happy to answer any questions about them you may have.
18 Our Department will also work with you in making whatever changes will improve the
bill. As we plan and undertake preparation for implementation of the program, we will keep you
fully advised and remain open to your advice as to the best possible way to accomplish this.
18 Coal constitutes over 85 percent of our hydrocarbon energy reserves and there can be no
question that coal will provide a significant proportion of our energy needs for years to come.
But as coal production increases, the environmental and land use problems it entails will also
increase. We just cannot afford to permit historical mining practices to continue, particularly
since environmentally sound mining can meet the Nation's energy and economic needs.
18 The pollution of some 11,000 miles of streams by acid mine drainage, extension siltation,
the loss of forest and agricultural lands from productive capacity, the destruction of wildlife
habitat, burning mine waste dumps, and health and safety hazards, must and can be controlled.
Major impacts on land use and water resources are associated with many surface mines and these
must be dealt with very, very carefully.
18 The framework you have provided by S. 7 to deal with surface coal mining reclamation is
sound. I want to work with you to make needed improvements you were discussing this morning
expeditiously and produce a bill for President Carter to sign. I assure you that the administration
is committed to helping you pass such legislation and to careful administration of the program
the legislation provides.
18 Senator METCALF. Thank you, Mr. Secretary. Before I call on Mr. O'Leary, I want to
remind the people at the press table that the report of the Department of the Interior expands on
some of the matters that the Secretary talked about, such as the protection of the surface owners'
rights. We will have detailed testimony from the Kentucky operators at the next hearing,
regarding their concerns about implementation of the program, as to time involved, and so forth.
The Secretary has made a suggestion for modifying provisions for alluvial valley floors.
18 These are, in my opinion, relatively minor. They are matters that can be taken care of as a
result of discussion and markup.
18 I simply want to point out some of these questions touched on by the Secretary are dealt
with in greater detail by the departmental report.
18 You will probably be interrogated, Mr. Secretary, on some of these matters. You
understand the Senate is in the same position you are. We regard the proposed bill containing
145 pages as a skeleton program that we can put some flesh on as we proceed to implmentation.
18 Secretary ANDRUS. Excuse me, Mr. Secretary, I don't want to preempt my colleague's
testimony, but I think that is a point we do have to speak to. The implementation is broad and
again I assure you and this committee the Department of Interior wants to work with you to bring
about the implementation of the many facets that are enumerated in your legislation.
19 Senator METCALF.Thank you. We are delighted to have our new Administrator of the
Federal Energy Administration, the Hon. John F. O'Leary, who will make a statement. Then I
will call on my colleagues for their comments and interrogation.
STATEMENT OF HON. JOHN F. O'LEARY, ADMINISTRATOR, FEDERAL
ENERGY ADMINISTRATION
19 Mr. O'LEARY. Before getting into my prepared remarks, I would like to again
thank you for having this hearing and for the tenacity you have shown over the last few years in
getting us to this point. I share the view of the chairman of the full committee that this is the year
in which finally, after a good deal of enormous effort on the part of many people, we are going to
enact legislation in this area.
19 My personal involvement with this, Mr. Chairman, began more than 10 years ago with the
first study of surface mine damage done by the Department of Interior. In that instance, insofar
as my knowledge and recollection goes, we did the first landmark study of, and I think the only
phrase for it is, the national disgrace that had been associated with unregulated surface mining
over 75 to 100 years in this country; now to see 10 short years - or long years, as the case may be
- we are going to come to a resolution of this must be extremely satisfying to you. It certainly is
to me.
19 Mr. Chairman, I appreciate the opportunity to appear today to discuss the pending Federal
surface mining legislation. The need for tough surface mining regulations is long overdue. The
lengthy debate on this issue has obscured the important environmental goals which can and must
be achieved. The President has repeatedly stated his position that Federal surface mining
legislation is essential and that the time for its adoption is now. I am personally in complete
agreement with this view.
19 Coal is one of our oldest and most plentiful sources of energy. Unfortunately, in many
parts of our country its production and use has occurred without proper regard to its impact on
our environment. Scenic areas have been lost. Our air and water have been fouled by failure to
act in an environmentally responsible manner. We must put these days behind. The cost of
reclamation is not high, Mr. Chairman, and we should not be misled to believe that concern for
our environment and the production of energy are incompatible.
19 The winter of 1976-77 has dramatically pointed out the Nation's need for sound, well
reasoned, energy programs. Senate bill S. 7, along with the similar legislation which has been
introduced in the House of Representatives - H.R. 2 - is in my judgment, an important step in the
right direction of balancing environmental and energy objectives.
19 The urgency of our energy situation dictates that the American people establish priorities
and move rapidly toward adopting new goals and standards. The Surface Mining Control and
Reclamation Act of 1977 reflects this national commitment. The task now is to enact legislation
which will guarantee that our growing energy needs are not pursued at the expense of our natural
environment.
19 The need for minimum national performance standards is further illustrated by recent
State actions. Some coal producing States have adopted new surface mining legislation. Others
have recently improved their laws. Those States which have enforced stringent reclamation
standards have been able to maintain a viable coal mining industry. But competitive pressures
among States have sometimes resulted in the failure to enact more stringent laws and have often
led to less vigorous enforcement.
20 Time has come to establish national performance standards and to establish an
enforcement program to make sure these standards are met.
20 Traditional reliance on oil and gas for most of our energy requirements must change to
reflect the realities of our current energy situation. We need to establish a firm basis for coal to
play an expanded role in meeting our Nation's energy needs. Coal producers must be able to
proceed with a clear understanding of their responsibilities.
20 Coal represents the most important domestic source of energy for the United States in the
near term. U.S. coal production in 1976 was 665 million tons and is expected to increase to over
1 billion tons by 1985. Our coal reserves, used wisely and in conjunction with environmentally
sound standards, will provide us with reliable domestic energy source for many years to come.
20 The Federal Energy Administration is committed to the timely passage of this needed
legislation. We have carefully reviewed the proposed legislation, and there are just a few areas
of concern, which merit attention.
20 First, S. 7 would prohibit surface mining of Federal coal where private surface ownership
exists.
20 The purpose of this feature is to protect legitimate surface owner interests. I believe that
the protection of such interests is essential, but I would urge you to consider an approach which
would adequately safeguard owners' rights without enacting an overall ban.
20 A second provision of the Senate version which warrants further review is the alluvial
valley floor section. We recognize the importance of alluvial valley floors to the economic
viability of farming and ranching operations in the West and, therefore, to traditional western
lifestyles.Those areas which are conducive to agricultural activities should be protected and,
therefore, sources of water to such areas need to be maintained.
20 It is our view that mining operations located adjacent to or in proximity of alluvial valley
floors which will not have a significant adverse impact on water sources supplying alluvial valley
floors, and meet other requirements of the legislation, should be permitted. We believe that the
provision dealing with this matter could be subject to unintended misinterpretation. We would,
therefore, prefer an alluvial valley floor provision which is unambiguous and would not lead to
needless and lengthy litigation.
20 We strongly favor enactment of tough surface mining and administrative changes that may
be necessary in order to improve the workability of the regulatory structure to be implemented
under such legislation. These matters, of course, should be discussed between the agencies
charged with administering such legislation and the appropriate committees of Congress.
20 Your reference to S. 7, representing a framework upon which the legislation can be built,
is a case in point.
21 I would be pleased to answer any questions.
21 Senator METCALF. Thank you very much, Mr. Administrator. I was a lawyer, and the
people of Montana and God willing I will probably be a lawyer in Montana again one of these
days. I have regarded this legislation as an initial pleading, the vehicle to get prompt and early
consideration from a new administration and from some of the new members of the committee
who are involved. I feel it is the beginning and the pivotal part of an energy program for
America, a full energy program, which we must get underway. Then we can take up such things
as coal slurry pipelines, exotic sources of energy and things of that sort that are so necessary but
are not the things we are going to have to face in the immediate future.
21 As chairman of this subcommittee, I welcome every suggestion and every proposal you
have to make, or that my colleagues as Members of the Senate, or that Members of the House
have to make - in order to work out a piece of legislation that will get us moving forward.
21 So I am just delighted that you are here. Your proposals for the bill are well taken and I
feel sure we can continue to work together until we get President Carter's signature on this
legislation.
21 I will call on my very distinguished colleague from Idaho, who came in just after you
started to talk, Mr. Secretary, Senator Church.
STATEMENT OF HON. FRANK CHURCH, A U.S. SENATOR FROM THE
STATE OF IDAHO
21 Senator CHURCH. Thank you very much, Mr. Chairman, and Mr. Secretary. First
of all I would like to say everyone in the Senate who knows the work the Senator from Montana,
Senator Metcalf, has put in on this legislation not only credits him with the enactment of the
legislation in the last session, which was met finally by veto, but honors his work in this field.
21 Mr. Secretary, you are off to running start. You have hardly had a chance to get your seat
warm down at the Interior Department and you are up with major legislation very early which is a
very good sign.
21 The question that I have relates to one part of your prepared testimony, and you refer to
certain areas which will be off limits to strip mining because of other important resource values,
preserving the option for society later to determine whether the coal is worth the sacrifice
associated with mining by surface methods.
21 I don't know if this question has been looked at carefully by your Solicitor, but I am
wondering whether the Federal Government possesses the authority to prohibit coal mining of
Federal lands. I think without question it has the right to regulate under the commerce clause,
but whether it would have the right on private property is a question I have never researched, and
I don't know if it has come up during the course of deliberations of this committee.
21 Offhand, Mr. Secretary, do you have a response to that?
21 Secretary ANDRUS. Mr. Chairman, and Senator, depending on State law, in some States
they can prohibit now on private land. My remarks in that prepared text were, obviously - I was
trying to make a point - but just because there is coal there or some other mineral we should not
rush out and grab it until we consider the other resource values that are there.
22 I cannot with certainty respond to your question as to whether the Federal Government
does have the right on private land to prohibit it, but some States have it in their laws.
22 Senator CHURCH. I think the States would have that right under the exercise of police
powers. But whether the Federal Government can go that far is what I would like answered. If
you can have that researched, I would appreciate that.
22 Secretary ANDRUS. In response to Senator Church's question I will research that and
write to him. But if the Federal Government sets the right example, others will follow. Within
24 hours, I will have a legal response to that.
22 Senator METCALF. That will be incorporated into the record.
22 Senator CHURCH. I think that would be helpful to have it incorporated into the record.
22 [Subsequently Secretary Andrus supplied the information appearing on the following
pages.]
23
THE SECRETARY OF THE INTERIOR WASHINGTON
January 26, 1977
Honorable Lee Metcalf
Senate Committee on Interior and Insular Affairs
United States Senate
Washington, D.C. 20510
Dear Senator Metcalf:
23 During the course of my confirmation hearing you submitted a number of questions to be
answered in writing. My responses to those questions are enclosed.
23 Copies of the questions and answers have been forwarded to Senator Henry M. Jackson
for inclusion in the official record of the hearing.
23 If I can be of further assistance, please let me know.
23 Sincerely,
23 Cecil D. Andrus
23 Secretary of the Interior
23 Enclosure
24 Questions Submitted by Senator Metcalf
24 Q. 1.
24 The Department recently granted a one-year suspension of operations in the case of all
four outstanding oil shale leases. Suspension was granted on the basis of conservation of the
resource. However, at a hearing held last November by the Subcommittee on Materials,
Minerals and Fuels, it became apparent that there were economic factors which figured
prominently in the lessees' applications for suspension.
24 This has raised serious doubts about the true reasons for granting the suspensions.
24 My question is this: Do you plan to review the record on these suspensions? In addition,
can you give us an indication of the Department's policy in future, if the lessees should request
extension of the suspensions when they expire?
24 A. 1.
24 I do intend to review the issuance of the suspensions of oil shale leases. I also understand
that the suspensions have been challenged in court.It appears that no actual operations were
suspended, but rather that only the bonus bid payments were suspended. If that proves to be the
case, I would not support extending the suspensions when they expire.
25 Q. 2.
25 With reference to the strip mining bill, one of the changes which I incorporated into S. 7,
the bill I introduced last Monday, would allow State regulation of surface mining of coal on
Federal lands, under an approved State program. I understand the Department has been actively
soliciting similar types of agreements with western States, three of which have reportedly signed
so far.
25 While I would endorse this effort in principle, I have been given to understand that the
motive behind it may be to undercut support of the western States for the Federal strip mining
bill. If this is so, I must tell you that I would have very serious reservations about continuing to
back this provision for State regulation of Federal coal lands in S. 7.
25 We must have a strong Federal strip mining bill. We need such a bill because State
environmental protection performance standards in most cases are quite inadequate and because,
frankly, Federal standards are not nearly stringent enough, either. We need such a bill because
orphaned lands are lying neglected, and for other reasons.
25 Now I recognize that States like Wyoming and Montana have strong environmental
protection standards for strip mining. But, unfortunately, these States are the exception rather
than the rule.
25 Let me ask you this: Can I count on you to make it crystal clear to the States which have
signed or are about to sign this agreement with the Department, that it is in no way to be
construed as a substitute for Federal strip mining control legislation now under consideration by
Congress? I would very much appreciate having such an assurance.
25 A. 2.
25 I can assure you that I am as anxious as you for passage of a strong federal strip mine bill.
I will therefore make it clear to the states that any agreement they may have made with the
Department about regulating strip mining on federal lands is in no way a substitute for the strip
mining bill.
26 Principal Issues for Resolution
26 1. Surface owner protection - where Federal coal/private surface
26 (a) Mining prohibited - Mansfield amendment (S. 7 - @ 423(e))
26 (b) Surface owner consent - (H.R. 2 - @ 714) - limited class of individual; limited
compensation
26 2. Compliance deadlines
26 (a) S. 7 @@ 401-404
26 (i) Federal regulations - 6 months
26 (ii) State programs submitted - 18 months (possible 6 months extension for legislative
action)
26 approve/disapprove - 6 months later resubmit 60 days/reconsider 60 days Federal program
for State not having approved program - 30 months
26 (iii) Permanent Federal lands program - 6 months @ 423
26 (iv) Application to mines
26 Interim:
26 *new mines - require permit with specified performance standards
26 *existing mines - performance standards apply after 135 days
26 Permanent:
26 *all mines - apply for permits 20 months after enactment, must be acted on within 6
months of State program approval or no later than 30 months after enactment
26 (v) Federal back-up enforcement on all lands after 135 days (quarterly inspections)
26 Question: Will this reduce State incentive to assume enforcement responsibility in
interim?
27 (b) H.R. 2- @@ 501-505
27 (i) Federal regs - 6 months
27 (ii) State programs submitted - 18 months
27 Secretary approve/disapprove - 6 months later State resubmit 60 days/Secretary acts 60
days Federal program for States not having approved program - 30 months
27 (iii) Permanent Federal lands program @ 523 - 6 months
27 (iv) Application to mines
27 Interim:
27 *new mines - require permit with specified performance standards apply after 6 months @
502(b)
27 *existing mines - performance standards apply after one year
27 Permanent:
27 *all mines - apply for permits within 2 months after approval of State or Federal program,
must be acted on within 8 months after approval of State or Federal program (but not more than
38 months after enactment)
27 (v) Federal back-up enforcement on all lands after 6 months (inspection when indication
of violations)
27 3. Abandoned land reclamation program
27 (a) Funding: S. 7 (Title III) - Fee 35c ton surface/15c ton underground applies only to
Federal coal and is credited against royalties.
27 H.R. 2 (Title IV) - Fee 35c ton surface/15c ton underground (up to 10% value of coal or
5% of legnite) applies to all coal
27 (b) Allocation: 50% in State or Indian reservation from which collected subject to
reallocation if not used in 3 years
28 (c) Distribution: to Interior for orphan land program except up to one-fifth of Fund to
Secretary of Agriculture for rural land reclamation
28 H.R. 2 also provides 20% of Fund to regulatory authority for small mine information
gathering
28 (d) Reclamation programs
28 *rural lands - @ 404 - Agriculture enters agreements up to 10 years for reclamation and
provides grants up to 80% of reclamation costs. (120 acre limit)
28 *land acquisition program - @ 405(a) - Interior authorize to acquire land at price based on
unrestored condition or to enter land based on certain findings and reclaim to eliminate fires,
pollution, etc. Secretary may charge costs to owner and file lien on property. Secretary can make
90% grants to States for same purpose. Land may be resold competitively at fair market value to
private parties or at lower value to State or local governments.
28 *funding of developments for impacted areas, including construction of public facilities -
@ 405(b) - Also applies to area experiencing rapid development of coal resources filling voids
and sealing tunnels @ 406
28 ISSUES: (1) Should authority to use funds for impacted areas be withdrawn? Note
subsequent passage of legislation directing payment in lieu of taxes, increased State share of
Federal mineral revenues and advance financing.
28 (2) Should reclamation purposes be clearly limited to demonstrable economic harms
rather than unquantifiable injury such as aesthetic damage? Note OMB staff believes abandoned
land program is bad precedent for Federal financing of non-point source pollution. EPA is
developing mine source regulations. TVA views purchase program as wasteful. CEQ indicated
some support of this view.
28 4. Mining and Mineral Institutes
28 H.R. 2, Title III
28 S. 7 - omitted
29 5. Alluvial valley floors
29 S. 7 - @ 410(b)5 (p. 59) - No grandfather clause and apparently looser language regarding
definition of alluvial valley floors
29 H.R. 2 - @ 510(b)(5) (p. 75) - Grandfather clause and greater specificity of alluvial valley
floor prohibition.
29 ISSUE: Should grandfather clause require actual production of commercial quantities in
year preceding enactment or should it extend to mines which have permits or approved
reclamation plans?CEQ argues only mines in actual production should be grandfathered. CEQ
also urges additional protection for prime or unique farmlands.
29 6. National forests - Surface mining is prohibited under both H.R. 2 ( @ 422(e)(2)) and S.
7 ( @ 522(e)(2)) (p. 131). This provision affects substantial reserves in the Custer National
Forest.
29 7. Small mines - Several provisions of H.R. 2 represent changes in vetoed bill designed to
accommodate concerns for small mines.
29 401(d) - part of reclamation fee supports regulatory authority development in application
information
29 507(c) - directs regulatory authority to perform water and core analyses for operator under
250,000
29 507(a) - application fee can be reduced below administration and enforcement costs
29 507(b)(14), (15) - permits omission of certain data if regulatory authority OKs
29 507(b)(2), (3) - less information required concerning adjacent landowners and previous
permits of operator
29 519 - easier administrative requirements for bond release
29 8. Judicial and administrative.
29 Justice Department urges:
29 (a) specific exemptions from NEPA Environmental Impact Statement requirement for
specific actions:
30 *regulations for State programs
30 *approval of State programs
30 *promulgation of Federal lands program
30 (b) Harmonization with other statutes:
30 (i) Air and water quality - EPA permits should be issued as part of mining permit based on
determination by EPA
30 (ii) Corps of Engineers permits should be issued under Federal Water Pollution Control
Act @ 404 should be issued by Interior with concurrence of Corps.
30 (c) Citizen suit provision - S. 7 @ 420; H.R. 2 @ 520
30 Use of provision against Secretary of the Interior should be made the exclusive remedy.
Effect: to assure that Secretary gets 60 days notice for suits against him for performance of
mandatory duties.
30 (d) Judicial review - S. 7 @ 426; H.R. 2 @ 526
30 Provision of (a)(1) for review of Secretarial action by "the appropriate" U.S. Court of
Appeals is causing needless litigation under the Clean Air Act over what is appropriate.
Provision should refer to Court in which the State is.
30 Also (a)(2) review of orders or decisions of national scope should be in the U.S. Court of
Appeals for D.C.
30 CEQ proposed and Justice opposed:
30 (e) mandatory payment of lawyer's fees for citizens suits
30 9. State-Federal enforcement arrangements for Federal lands
30 S. 7 @ 423(d) appears to allow cooperative arrangements. To adopt Interior practice it
should be modified to authorize agreements rather than provide for State elections.
30 H.R. 2 - no provision
30 10. Indian lands - unresolved issues of
30 - jurisdiction
30 - treatment under abandoned lands program
30 - definition of Indian lands
31
UNITED STATES
DEPARTMENT OF THE INTERIOR
OFFICE OF THE SOLICITOR
WASHINGTON. D.C. 20240
FEB 23 1977
Honorable Lee F. Metcalf
Chairman, Subcommittee on Minerals, Materials and Fuels
Senate Committee on Interior and Insular Affairs
Washington, D.C. 20510
Dear Senator Metcalf:
31 On February 7, 1977, Secretary Andrus testified before your committee on S. 7 "A bill to
provide for the cooperation between the Secretary of the Interior and the States with respect to
the regulation of surface mining operations, and the acquisition and reclamation of abandoned
mines and for other purposes." Secretary Andrus was asked to obtain from the Solicitor of the
Department of the Interior and submit for the record, an opinion on two questions:
31 (1) Whether the Congress may delegate to a state the authority to requlate reclamation of
coal mining activities on federal lands; and
31 (2) Whether Congress has the authority, under a federal program, to designate certain state
and private lands as off limits to coal mining?
31 This letter briefly responds to these questions.
31 Congressional Delegation of Authority to State to Regulate Federal Lands. Section 423(d)
of S. 7 allows a State to "elect" to regulate reclamation on federal lands. The Department of the
Interior in its legislative report on S. 7 supported this principle and suggested that several
amendments were needed to have the election work properly. At the February 7, 1977, hearing,
Senator Metcalf inguired about the constitutionality of state regulation of federal lands.
(According to section 501(8) of S. 7, federal lands includes both lands where the United States
owns the surface and mineral estates, and lands where the United States owns only the mineral
estate.)
31 The Property Clause of the United States Constitution says that, "Congress shall have the
power to dispose of and make all needful Rules and Regulations respecting the Territory or other
property belonging to the United States." U.S.Const., Art. IV, Section 3, Cl.2.The property
Clause gives the Congress the power, without limitation, to determine how the property of the
United States will be used and administered Kleppe v. New Mexico, U.S. , 96 S.Ct. 2285
(1976); United States v. San Francisco, 310 U.S. 16, 29 (1940); Utah Power & Light v. United
States, 243 U.S. 389, 405 (1917). However, this clause does not automatically place the
exclusive power to regulate federal property in the United States Government. Unless the
exercise of a state police power conflicts with a federal statute or identifiable federal policy, the
police power of the states extends over federal lands unless and until Congress has determined to
deal exclusively with the topic. State of Colorado v. Toll, 268 U.S. 228 (1925); McKelvey v.
United States, 260 U.S. 353 (1922); see Texas Oil & Gas Corp. v. Phillips Petroleum Co., 406
F.2d 1303 (10th Cir. 1969), cert. denied, 396 U.S. 829 (1970) As the Supreme Court recently
stated, "* * *[A] state undoubtedly retains jurisdiction over federal lands within its territory, but
Congress surely retains the power to enact legislation respecting those lands pursuant to the
property clause.[Citations omitted] And when Congress so acts, the federal legislation
necessarily overrides conflicting state laws under the Supremacy Clause." Kleppe v. New
Mexico, supra at , 96 S.Ct. at 2293.
32 In summary, state police powers consistent with federal law and policy apply to federal
lands unless Congress acts or authorizes a federal agency to act to displace those laws. In
addition, Congress may pass legislation which exercises exclusive jurisdiction over federal lands,
or it may pass legislation which permits a state to retain jurisdiction over federal lands under
certain conditions.
32 I conclude that the Congress may delegate to a state the authority to regulate reclamation
of coal mining activities on federal lands.
32 Congressional Authority to Designate State and Private Lands as Unsuitable for Surface
Coal Mining
32 Section 403 of S. 7 allows a state to regulate reclamation on State and private lands if it
adopts a regulatory program that meets the requirements of the bill. The bill requires each state
that wishes to regulate reclamation of lands mined for coal to adopt a program that meets
specified reclamation performance standards and inspection, penalty and enforcement, and
funding requirements. That section requires a state to establish a process for the designation of
lands unsuitable for mining, S. 7, @ 403(a)(6) and to refuse to allow mining on certain types of
land. S. 7, @ 410(b)(5). If a state fails to submit a qualifying program in the time period
allowed by the bill, state laws and regulations that govern coal mining are preempted and the
Secretary of the Interior is required to implement a Federal reclamation program for that state. S.
7, @ 404(a). As part of the Federal program under section 404, the Secretary has to assume the
responsibility to ban mining under @ 410(b)(5) and (after one year), to designate whether state
and private lands are unsuitable for surface mining. S. 7, @ 404(a), @ 422(a). During the
hearing on February 7, 1977, Senator Church inquired whether the exercise, by the federal
government, of the power to ban mining on certain areas of state and private lands was
constitutional, or whether this power could only be exercised by a state, under its police powers.
33 The Commerce Clause, Art. I, @ 8, cl. 3, United States Const. gives Congress the power
to regulate commerce among the several States. The power of Congress to regulate interstate
commerce under the Commerce Clause is plenary and encompasses not only regulation of
interstate commerce, but also necessary and proper measures to regulate intrastate commerce.
Houston & Texas Ry. v. United States, (Shreveport Rate Case), 234 U.S. 342, 351, 353 (1941).
The necessary and proper test is met if the regulated conduct might have a "substantial economic
effect" on interstate commerce. Wickard v. Filburn, 317 U.S. 111, 125 (1942). Commerce that
concerns more than one state and that has a real and substantial relationship to the national
interest meets this test. E.g. Heart of Atlanta Motel v. United States, 379 U.S. 241, 255 (1964).
The Courts give a high degree of deference to a Congressional determination that an activity
affects interstate commerce, and will defer to that judgment if there is a rational basis for finding
that a chosen regulatory scheme is necessary to protect interstate commerce. Katzenbach v.
McClung, 379 U.S. 294, 303-04 (1964). In South Terminal Corporation v. Environmental
Protection Agency, 504 F.2d 646, 677 (1st Cir. 1974), the Court upheld a determination by
Congress that regualtion of air pollution was permitted by the Commerce Clause. See also
United States v. Bishop Processing Co., 287 F.Supp. 624 (D.Md. 1968). In section 101(d) of S.
7, Congress has made the required determination that, "Surface and underground coal mining
operations affect interstate commerce, [and] contribute to the economic well-being, security and
general welfare of the Nation * * *."
33 If a subject matter has been found to be within Congress's power under the Commerce
Clause, Congress may adopt means to regulate that area, even though the means "may have the
same incidents which attend the exercise of the police power of a state." Federal Power
Commission v. Natural Gas Pipeline Co., 315 U.S. 575, 582 (1942); Hoke v. United States, 227
U.S. 308, 323 (1913). For example, the Courts have specifically upheld the right of Congress to
limit parking spaces to regulate air pollution through land use planning and other means even
where the regulations reduced the number of parking places in a city below that level authorized
by local zoning ordinances. South Terminal Corporation v. Environmental Protection Agency,
supra, at 677. n1
34 I conclude that Congress has the power under the Commerce Clause to allow the Federal
government to designate some types of state and private lands as unsuitable or off-limits to
surface coal mining. n2
34 n1 Congress may not have the power under the Commerce Clause to require state officials
to pass and enforce laws or appropriate money to carry out certain governmental functions
required under regulations issued under the Clean Air Act. E.g., Brown v. Environmental
Protection Agency, 521 F.2d 827 (9th Cir. 1975), cert. granted, 44 L.W. 3685.
34 n2 The allowable extent of the prohibition must also be consistent with the due process
requirements of the Fifth Amendment. E.g., Goldblatt v. Hempstead, 369 U.S. 590 (1962).
34 Sincerely yours,
34 Frederick N. Ferguson
34 Acting Solicitor
35 Senator CHURCH. In strip mining we started with coal. Obviously it was the greatest
need and it formed a part of the energy package that occupies the new administration and has
occupied the Congress for some time, and we have had problems enough getting a strip mining
bill for coal enacted into law. But beyond that, there are other forms of strip mining.
35 In our own State, Mr. Secretary, you know about the phosphate mines. We once had a
problem when a molybdenum open pit mine was threatened at the base of a very beautiful
mountain in Idaho. What view do you take with regard to strip mining legislation of this kind as
it may be applied to other minerals in the future?
35 Secretary ANDRUS. Mr. Chairman, I hope that it will be applicable to other minerals in
the future, Senator. But I believe as far as we can say with certainty here this morning, and
hopefully the legal research you requested will clarify another portion of it, that there are some
areas that have other values including Castle Peak, as you pointed out. Some of your colleagues
are aware of that area, some are not, but here is a situation where I believe simply because coal or
a mineral happens to be geographically located there does not mean that we should extract it.
You have to have a balanced resource program that will protect some of this.
35 If you choose you can utilize the terminology to let somebody else make that decision 50
years from now or 100 years from now. It is not a lockup. It is saving for somebody else to
make that determination.
35 Right now, Senator, we have vast amounts of coal, both in the East and the West. They
are in such quantity I don't think we have to destroy the beauty that you have so well described
here this morning and in the past.
35 Senator CHURCH. If we manage to enact this strip mining bill for coal and our
experience with it proves it to be workable and highly desirable legislation, then will you work
with this committee to extend the regulation of open pit and strip mining to other minerals?
35 Secretary ANDRUS. Yes, sir; I will.
35 Senator CHURCH. I think that is all, Mr. Chairman.
35 Senator METCALF. May I say to the Senator from Idaho, the chairman of this committee
is certainly aware of the problems that he raised. I remind the Senator from Wyoming, we held a
hearing in Wyoming on uranium, and the problems of surface owners' rights and so forth were
considerable.
35 We have problems under the mining law of 1972 and each of these areas may present
different solutions.In fact, it is my intention before this Congress adjourns to also hold hearings
on what happens in quarries, in borrow pits, et cetera. Some of the greatest scars left on the
American landscape are there because we failed to take care of those seemingly nonessential
programs.
35 But surface mining is most urgent. I don't think we consider we are setting any precedent
for hard rock mining, for molybdenum and copper, for example. I don't know what we are going
to do about the Berkeley pit, something like that gnawing away at the city of Butte. But we will
take those up after we have solved this problem. I am delighted you have brought this up. I
know Secretary Andrus will cooperate with us.
36 Senator Hansen.
36 Senator HANSEN. Thank you, Mr. Chairman. Mr. Secretary, let me express my pleasure
with your appearance here this morning and particularly note the background you bring to this
very important national post you hold, that is, having served as Governor of the sovereign State
of Idaho for three terms.
36 My first question deals with the State versus Federal responsibility in this area. As you
know, four States, including Wyoming, North Dakota, Utah, and New Mexico, have entered into
agreements with the Department whereby the State laws will apply, and I think it would be fair to
note the State of Wyoming has probably gone farther in this regard than the other States although
I have not had the opportunity personally to examine those agreements. But would it be your
thought that this approach recognizes the diversity of conditions and situations and is the kind of
cooperative agreement you might want to promote and continue?
36 Secretary ANDRUS. In response to the Senator's question, the concepts are certain, as
mentioned by Senator Hatch, I would like to see the States have the ability and then the right to
participate in the regulatory measures in this regard.
36 I have not personally looked at those documents that were signed the last week or the
week prior to my coming into office, but the concept I concur with. As I mentioned in my
testimony rather than just a blanket situation where they can request to have the program, I think
it would be well if the Department of Interior had the opportunity to enter into a contract with
them, because of the very point you bring out, the diversity of the various States.
36 If I may enlarge upon this and also answer the question posed by your colleague from
Utah, one of the reasons we have to have a national strip mining bill is so that one State will not
be in a position to take economic advantage over another State.But I would prefer to provide
States with the capacity to handle the regulatory portion.
36 It was pointed out by Senator Bumpers, Senator Johnston, and Senator Melcher, if we do
not have national guidelines, we do not protect the operators, where one would have an economic
advantage over another.
36 Senator HANSEN. Your concern -
36 Senator METCALF. I want to interrupt here, Senator.Mr. O'Leary, if you want to
comment or have any additions to the statements, please do so. The questions are addressed to
both of you at the same time.
36 Senator HANSEN. Thank you very much, Mr. Chairman. The chairman is quite right. I
would welcome it, in case you think additional observation by either of you may be indicated at
any time to make that observation.
36 I think the concern you expressed in your prepared statement was that competitively there
may be later on an effort made by one State to lower its standards, to reduce its requirements, and
the performance that might be expected so as to gain an economic advantage over another State.
My question to be precise is this: If a State equals or exceeds the requirements in the Federal law,
then would you be willing to leave with that State the administration and enforcement of the law?
37 Secretary ANDRUS. Mr. Chairman, yes, sir. And I concur it should be on Federal lands
as well as other lands, all lands with coal in the State with the single proviso the Department of
Interior enters into that contract and makes certain those standards are upheld. We don't intend to
have two, one following the other.
37 Senator METCALF. Do you envisage any constitutional problems involved with
delegation of authority over Federal lands to the administration of State agencies?
37 Secretary ANDRUS. No, sir; I do not.But I would yield to my colleague.
37 Mr. O'LEARY. Senator Metcalf, I was instrumental in the New Mexico agreement in my
capacity as Director of Energy Resources there. We carefully reviewed that situation. There was
no problem. Indeed, it was contemplated the regulations issued by the Secretary of the Interior,
following the August 4 amendments to the Mineral Leasing Act. In our view, there simply is no
conflict.
37 Senator METCALF. If the Senator from Wyoming would continue to yield for just a
moment.
37 Senator HANSEN. I would be happy to.
37 Senator METCALF. Under the constitution, the control and administration of any Federal
land is vested in the Congress.Congress has traditionally delegated that administration and that
control to the Secretary of the Interior and other people. We had never delegated it until we
passed the Coal Leasing Act last year, over the President's veto when we did delegate
considerable control to the States, and that is why I wanted the record to show it is a
constitutional precedent to delegate that control to the administration of the various State
agencies, provided they meet the standards established by the congressional act.
37 Mr. O'LEARY. Mr. Chairman, there is a prior precedent. Under the Atomic Energy Act
there was constructed the so-called State agreements plan. Under those State agreements there
could be delegation of the responsibilities of the Atomic Energy Commission - now, of course,
the Nuclear Regulatory Commission - on the basis of comparability. It was precisely that
precedent that we cited in the discussions that led to the congressional approvals for the
delegations to the States.
37 I think the principle we have to note there, both with regard to activity on the Federal
lands under the Mineral Leasing Act and under this statute, when it is passed, is one of
comparability. I don't think we can stand a situation in which the responsibility is passed off to
the States without very careful audit of State activities.
37 Senator METCALF. I am not sure your second analogy is completely in point. I think the
analogy in the coal leasing act is in point. I wonder if you, Mr. Secretary, and you, Mr.
Administrator, would include a brief summary of your opinion when you supply the material for
Senator Church? I think this is a very important matter to both Senator Hansen and to me, this
business of setting a precedent to give the States control of the administration and supervision of
Federal as well as non-Federal and private lands.
37 Secretary ANDRUS. Mr. Chairman, it shall be done.
37 Senator METCALF. Thank you, Senator, for yielding.
37 Senator HANSEN. You are welcome, Mr. Chairman. My next question has to do with
abandoned mine reclamation. Two proposals have been discussed. One is to establish a fund
from Federal royalties and the other proposal would establish the fund by levying fees on all
mined coal. As you know, last year one of the bills that was passed was the BLM Organic Act
and it contained a provision that was directed to bring relief to those hard-hit communities where
an explosion of activity occurred in the development of energy which we know quite a lot about -
all too well in my State of Wyoming - to provide front-end money so the towns that are called
upon to provide extra services, extra facilities, and to do planning, can afford it. Under the bill as
it first passed the Senate, 60 percent of those royalties would have been given back to the States
for the social and economic impact problems. Finally, out of the compromise of the House and
Senate, it was scaled down to 50 percent. Those funds come from Federal royalties.
38 What way do you think the reclamation of abandoned mines should be paid for? Do you
think from royalties or from a tax on the coal or a fee on the coal?
38 Secretary ANDRUS. Mr. Chairman, in response, there is room for discussion in that area.
If you are asking which one I would prefer, it is a fee on the coal. Then you are in a position
where the people who are actually profiting from the extraction of that coal are building a fund
for the reclamation and I think that is the fairest way to guarantee the funds will be available for
that purpose.
38 Senator HANSEN. Would you care to comment?
38 Mr. O'LEARY. Yes, Mr. Chairman. I would like to support that. We have taken a look,
of course. There is a commitment of 50 percent. We think it would be unfortunate if that were
to be diluted. All in all, this is a matter of internalizing some costs that have not so far been
borne by the coal operations. We think the tax approach is appropriate.
38 Senator HANSEN. I appreciate your comments. With respect to reclamation, one of the
most severe programs we had, at least in Wyoming, as we contemplate the damage that has
resulted and continues to result from abandoned coal operations, both surface mining operations
and underground mining operations, is the subsidence that occurs in several Wyoming towns.
Rock Springs, for example. We have had some very critical problems develop out there. As a
consequence, the Bureau of Mines undertook a pilot project to see what could be done in
back-filling these mine voids under the city with slurries.
38 The problem has many dimensions. It may result in gaslines being disrupted with the very
great unlikelihood of an explosion occurring, with people being killed by fumes, it may result in
sewerlines being broken and the pollution that would result, waterlines being broken, and
powerlines also being broken, to say nothing of the more obvious effects which subsidence
brings, with one side of a house going down, the foundations cracking, and this sort of thing.
38 Would it be your thought or how do you assess - let me ask it this way - what do you
assess to be the most important first priority we should consider in land reclamation? On the one
hand, if I could take an additional moment, it is the obvious desolation that results from the
surface mine operation where the land has been torn up and left in a very unpleasing state that
often times results in unproductivity and in the East has resulted in some other problems as well,
and the problem of subsidence in cities.
39 We have a little taste of it in the West. It is a very common problem. The eastern towns,
Pennsylvania, West Virginia, as examples.
39 Mr. O'LEARY. Mr. Chairman, I, of course, have been exposed to this problem for a long
time. The pilot program Senator Hansen referred to was one he and I worked out when I was
Director of the Bureau of Mines. It seems to me past coal mining operations have done a variety
of community damage. We have had coal mine fires by the hundreds in Appalachia. Now a
growing number in the West that ought to be controlled. We have a very expensive fill we built
outside the city of Scranton, something approaching the size of the Panama Canal, 600 feet
across, 300 feet deep, which we filled with fire retardant material to literally save the city of
Scranton. I think that must be addressed. Burning calm banks, both in the East and in the West
are a problem that has to be addressed. We really can't take the narrow focus of strip mining to
cure coal mining ills.
39 It seems logical we ought to take a look at the full sweep of environmental damage
attributable to past coal mining operations and attack it on the basis of priorities. Where, for
example, public health and safety is in danger, as it is in the case of an underground fire in the
substrata underlying a town. It seems to me those things call out for priority.
39 Senator HANSEN. You share those views?
39 Secretary ANDRUS. Mr. Chairman, in response I would agree and add to the point. You
have a situation where some of the reclamation money is to be distributed within the States and
the States will be involved in that decisionmaking process as to where they choose to spend it. It
does not revert to the other fund for 3 years.
39 There are two bills that are generally discussed and I don't want to discuss the wrong one
in this chamber, but the State would have a say-so in that fund.
39 Senator HANSEN. I have one question that relates to the first one. That is, as I
understand the provision in S. 7, is there shall be levied a fee of 35 cents a ton on coal surface
mined and 15 cents a ton on coal extracted by underground mining operations. I would observe
in addition to the possibility of fire, which always is an always present danger - any time there are
mine voids left in underground mines, sooner or later the likelihood is it will cause a fire - in
addition to destroying a finite resource, there is the immediate and personal danger that
asphyxiation can occur and lots of things can happen. With that additional thought in mind, and
also with the concern we have for victims of certain occupational diseases such as black lung,
and there have been bills introduced which would place the responsibility on the government to
conclude, first, anyone who has worked in an underground mine for a certain period of time
would have black lung and would be eligible for benefits under that bill, does it seem fair and
appropriate that there should be a differential in the contribution that coal mined underground
would make, as compared with surface-mined coal?
39 Mr. O'LEARY. I will give you my view, Mr. Chairman. I think the results of
underground mining, over time, are more pernicious than are the results of strip mining. The ills
of strip mining in most situations can have a 100-percent cure, given time. Underground mining
poses a different problem, however. In your own town of Rock Springs, the cause of damage
that is occurring now was created by actions taken 4 years ago. In time, when you disturb the
subsurface it will go back to resonance after a long period of crumbling and falling. It seems to
me that to make the distinction that is in the legislation is something we ought to look at very
carefully before we cast it in concrete.
40 Senator HANSEN. Mr. Chairman, I have some other questions. I realize I am taking a lot
of time. I will yield to some of the other Senators present so they can go ahead with their
questions and then we will come back.
40 Senator METCALF. Thank you. The Senator from Louisiana.
40 Senator JOHNSTON. Thank you, Mr. Chairman. First, Mr. Secretary, let me say on one
detail of the bill, you say we ought to amend section 410(b)(5) with respect to alluvial valley
floors. Let me suggest the provision which we had in the bill, on page 59 of the bill, was
hammered out after a great deal of thought and I would suggest is a great deal tighter than the
proposed language.I simply mention that is suggested.
40 If what we are going to do is protect the existing mines, I think we could do that without
that language. I simply mention that so we can get the lawyers to go back and see that it is the
most tight.
40 I wonder, Mr. Secretary, if the administration has a position yet on coal slurry pipelines?
40 Secretary ANDRUS. Mr. Chairman, Senator, the answer is no for some of the reasons
brought up here by some of your colleagues. Frankly, Mr. Chairman, my feet have not touched
the ground that frequently to have that opportunity to get into that because of preparation for this.
40 I will tell you in response to the question you have the water problem, as Senator Bumpers
was talking about, but the input at the other end as to where you would extract it, and those items
have to be looked at. The answer to your question is no, sir, we have not yet taken a position on
that as yet.
40 Senator JOHNSTON. When I suggested it, I thought this issue and that were related. I
certainly don't want to kill this bill. I think last Congress it was my amendment that saved the
bill. I don't want to take that much credit for it. It could have been killed. I am no more anxious
to be a stumbling block now than I was then. But it seems to me these issues are related. I think
we have plenty of votes. We passed the coal slurry pipeline in the Senate handily last time. We
passed this bill handily. We had the votes to override the veto in the Senate.
40 I would hope the administration would take a look at that issue.I think it is much more
vital now than ever. We have got to get that coal down to where it is going to be burned.
Notwithstanding the fact that some people say we have got plenty of gas, I would suggest the
evidence is clear: We are running out. We don't have enough right now and we are running out of
that which we had and we better find an alterative fuel. To have that alternative fuel, I think our
only choice is coal.
41 I don't believe trains can handle the whole job. I think we need all we can build. But
even that is not going to be enough. We are going to have pipelines and trains, and I think we
can do it in an environmentally sound manner.
41 I would hope the chairman would look at this bill as appropriate for that and recognize we
could pass both, I think, with substantial margins.
41 Senator METCALF.I hate to disabuse the distinguished Senator from Louisiana, but this
Senator is opposed to putting prohibitions against mining phosphates in National Parks,
prohibitions or proposals for research and development centers in institutions throughout the
United States, or surface mining controls in other minerals, as a part of this legislation. I would
hope the Senator from Louisiana would take the assurances of the Senator from Montana that
those matters would be carefully and thoroughly considered in separate legislation. He will have
his opportunity, as he did in the last Congress, to have his views expressed in legislation.
41 I am concerned about putting additional material into the bill. I am prepared to make a
point of order on the floor if we can hold it in committee, against any legislation that is
amendatory to this bill, insofar as it relates to anything other than coal.I understand his concern,
and I give assurances to the Senator from Louisiana that we will get on with some of these other
issues just as soon as we can get rid of this legislation.
41 I am delighted to have Senator Hatch with us today and have him participate in a first
hearing of this subcommittee. I know the State of Utah is very much concerned. I will be
pleased to have you question our new Secretary of the Interior.
41 Senator HATCH. I do have some questions, Mr. Secretary and Mr. O'Leary. When
President Ford vetoed the Mining Act of 1975, he gave, among other things, a number of
statements. Let me just read a few of them.Then I would like to ask questions.
41 He said:
41 I am returning today without my approval the Surface Mining Bill and Reclamation Act of
1975. I am unable to sign this bill because, one, as many as 36,000 people would lose jobs while
unemployment is already too high; two, consumers would pay higher costs, particularly for
electric bills when consumer costs are already too high; three, the nation would be more
dependent on foreign oil when we are already overly dependent and dangerously vulnerable;
four, coal production would be unnecessarily reduced, and our domestic resources needed more
than ever.
41 Then he said this:
41 The Department of the Interior and the Federal Energy Administration now advises me if
this bill were to become law, a production loss of 40 to 162 million tons would result in 1977.
This would mean that six to 24 percent cent of expanded 1977 coal production would be lost.
Actually production losses resulting from this bill could run considerably higher because of
ambiguities in the bill and uncertainties of many of its provisions.
41 Such strong language, considering the dramatic impact suggested, irrespective or agencies,
have you made any analyses which disprove President Ford's assertions which he stated came
from your agency?
41 Secretary ANDRUS. Mr. Chairman, I would like to respond to that by referring to its
context and then addressing the substance of the question of the Senator from Utah. In all
fairness, I think we have to recognize that those statements were made as arguments about a bill
which was being vetoed. In past history, when I was Governor, I vetoed a few of them and I used
the strongest possible language I could get my hands on. I think that has to be taken into
consideration.
42 But it is not this administration's feeling that it will decrease coal production or that it will
increase unemployment. My colleague here, I know, has figures he will give you in a moment. I
would also point out that testimony notwithstanding - I can't bring you back the date, but I can
procure it for you - the testimony of the Secretary of the Interior in the previous administration
testified before this committee, or the House committee, pointing out the passage of this bill
would not cause substantial or any increase in unemployment or decreases in production. I yield
to my colleague for some figures on unemployment.
42 Mr. O'LEARY. Mr. Chairman, I have a copy of a report that was prepared by ICF, Inc.,
for the Council on Environmental Quality, which will be available to the committee if the
committee does not have it already in draft form. It is my understanding this was rushed in
preparation for this hearing.
42 Senator METCALF. Do you want this report in the record?
42 Mr. O'LEARY. It is useful.
42 Senator METCALF. It will be incorporated into the record.
42 Senator HATCH. We have not only the one of February 1, 1977, but also the draft of
January 24, 1977.
42 Senator METCALF. That will also be incorporated.
42 [The material referred to above appears on the following pages.]
43 DRAFT FINAL REPORT
43 ENERGY AND ECONOMIC IMPACTS OF H.R. 13950
43 ("SURFACE MINING CONTROL AND RECLAMATION ACT OF 1976," 94th
CONGRESS)
43 Submitted to the Council on Environmental Quality and Environmental Protection Agency
43 Contract No. EQ6AC016
43 January 24, 1977
44 INTRODUCTION
44 The Environmental Protection Agency (EPA) and the Council on Environmental Quality
(CEQ) have expressed concern about the environmental damage that occurs when land is surface
mined without adequate reclamation. Thus, EPA and CEQ have continually supported the need
for uniform national surface mine legislation. EPA and CEQ are also aware of the potential
impact that strip mine legislation could have on the coal industry and on the Nation's program to
become less dependent on foreign sources of energy. For these reasons, EPA and CEQ
contracted with ICF to develop a methodology to quantify the economic and energy impacts of
strip mine legislation. Although most of the analysis in this report focuses upon the specific
provisions of the Surface Mining Control and Reclamation Act of 1976 (H.R. 13950), the
analytical framework has been structured in a manner that would allow the analysis of the
impacts of alternative surface mining reclamation provisions.
44 In several parts of this analysis, complete and accurate data did not exist. Further, the
methodologies developed were often only approximate in the accuracy of the results rendered.
Accordingly, the findings of this analysis should be interpreted; no undue weight should be given
to any particular n number.
44 When judgments were necessary in conducting the analysis, we believe they were
objectively made. However, when a range of judgments was possible, values were selected that
would tend to exacerbate the adverse impacts. Hence, if a bias exists, we believe it is toward
overstating impacts.
44 This bill contains many sections which do not directly affect the coal mining industry,
such as those sections relating to State Mining and Mineral Resources and Research Institutes,
various administrative provisions, and Designation of Lands Unsuitable for Non-Coal Mining.
Since this analysis is concerned primarily with impacts to the coal industry, the focus is directed
toward provisions which could result in increased coal mining costs, coal price increases, coal
production impacts and coal reserve base impacts.
44 SUMMARY OF MAJOR CONCLUSIONS
44 The findings of this analysis indicate that the costrelated impacts due to H.R. 13950 are
generally not great. These cost impacts are not likely to significantly affect national coal
production, coal consumption, coal prices, employment, or electricity prices. However, there are
numerous provisions in H.R. 13950 not directly related to costs which could create major
difficulties. Such impacts include (1) substantial production impacts that could result from
possible interpretations of the alluvial valley provisions, (2) delays in permitting due to inability
to comply within established timetables and/or insufficient administrative funding, (3) extensive
litigation resulting from ambiguous and undefined terms, (4) unintended effects due to
mismatches between the apparent intent and the actual wording, and (5) losses to the coal reserve
base.
45 H.R. 13950 would establish surface mining and reclamation requirements applicable
throughout the Nation. However, many of these requirements already exist in state laws and
regulations in the coal mine operating regulations for federal coal leases.Accordingly, the
incremental law presented by H.R. 13950 varies among states, and in some states, is quite small.
45 Since many of the performance standards of H.R. 13950 are often found in existing state
laws and regulations, the cost impacts in many states are not great. In most non-Appalachian
states, the incremental costs are less than $0 .75 per ton (1978 dollars). In Appalachia, cost
increases are generally between $0.50 and $2 .00 per ton except in Alabama and Virginia, where
costs for some mine-types could increase by over $4 .00 per ton. For purposes of this analysis, it
was assumed the bill was enacted in January 1977. Hence, it was assumed these cost increases
would first be incurred in 1978.
45 The production and energy impacts associated with these cost increases are not great. If
there were no increase in market prices in 1978, net production curtailments in 1978 are
estimated to be 22.0 million tons, all in Appalachia. If the market prices increased by $1 per ton
in Appalachia in 1978, the net production curtailments would be reduced to about seven million
tons. However, these production curtailments would not affect overall coal consumption in
1978, since consumers could meet the shortfall by drawing down existing coal stocks. There
would be no net production curtailments in 1979 or thereafter, because market prices would
increase by 1979 to stimulate the required additional production.
45 Another production imapct of H.R. 13950 would be to change the regional distribution of
production. Production in areas with relatively large additional reclamation costs would either
fall or not increase as rapidly as production in areas with small projected increases.
45 The projected price impacts resulting from the performance standards of H.R. 13950 are
projected to be about $1/ton by early 1979 in Appalachia and the Central West, and $.5 50/ton in
the rest of the Nation. These increases would increase the average residential consumer's
electricity bill by a maximum of one percent per year.
46 The net direct employment impacts (i.e., lost jobs due to production curtailments minus
new jobs due to increased reclamation) in 1978 could be a loss of about 1,400 jobs in surface
mining in Appalachia, if the net production curtailments were 22 million tons. If the
curtailments were lower, the net direct employment impacts would be lower. However,
additional jobs would be created in both government and industry to implement the legislation
and conduct the studies required for permit applications. In 1979, when there would be no net
production curtailments, direct surface mine employment would be increased due to the
increased reclamation activities.
46 Although the cost-related provisions of H.R. 13950 do not appear substantial, the
imprecise wording of other provisions do present potentially significant impacts.These impacts
are generally not related to cost, but could serve to restrict production and reserves under certain
conditions.For example, while a moderate interpretation of the alluvial valley floor provisions
could affect four mines with an additional production in 1978 of 12 million tons, a worst case
interpretation could impact up to 51 million tons of western production by 1978 and 211 million
tons by 1985.
46 In addition there are several other non-cost provisions in H.R. 13950 in which the wording
of the provisions could have effects quite different from the apparent Congressional intent. In
most cases, the intent of the provision would have little cost or production impact. However, the
actual wording could result in unnecessary restrictions, administrative inflexibility, and/or
additional litigation. Examples of these provisions include the amount of time allowed for
compliance with permit requirements and performance standards, the grandfather clause for
mining on alluvial valley floors, specification of the technology to control sedimentation, and the
provision for declaring lands unsuitable for mining.
46 The reserve impacts of H.R. 13950 could range between 8.5 and 28.3 billion tons, or
between 2.0 and 6.5 percent of total reserves. These impacts are equivalent to between 6.2 and
20.7 percent of strippable reserves. It should be noted that these impacts would not affect the
cost or regional distribution of coal production until the mid-1980's at the earliest.
46 These findings will now be presented in greater detail.
47 DRAFT FINAL REPORT
47 ENERGY AND ECONOMIC IMPACTS OF H.R. 13950
47 ("SURFACE MINING CONTROL AND RECLAMATION ACT OF 1976," 94th
CONGRESS)
47 Submitted to the Council on Environmental Quality and Environmental Protection Agency
47 Contract No. EQ6AC016
47 February 1, 1977
48 INTRODUCTION
48 The Environmental Protection Agency (EPA) and the Council on Environmental Quality
(CEQ) have expressed concern about the environmental damage that occurs when land is surface
mined without adequate reclamation.Thus, EPA and CEQ have continually supported the need
for uniform national surface mine legislation. EPA and CEQ are also aware of the potential
impact that strip mine legislation could have on the coal industry and on the Nation's program to
become less dependent on foreign sources of energy. For these reasons, EPA and CEQ
contracted with ICF to develop a methodology to quantify the economic and energy impacts of
strip mine legislation. Although most of the analysis in this report focuses upon the specific
provisions of the Surface Mining Control and Reclamation Act of 1976 (H.R. 13950) n1, the
analytical framework has been structured in a manner that would allow the analysis of the
impacts of alternative surface mining reclamation provision.
48 n1 The complete text of H.R. 13950 (as reported August 31, 1976), is reproduced in
Appendix G.
48 In several parts of this analysis, complete and accurate data did not exist.Further, the
methodologies developed were often only approximate in the accuracy of the results rendered.
Accordingly, the findings of this analysis should be interpreted; no undue weight should be given
to any particular number.
48 When judgments were necessary in conducting the analysis, we believe they were
objectively made. However, when a range of judgments was possible, values were selected that
would tend to exacerbate the impacts. Hence, if a bias exists, we believe it is toward overstating
impacts.
48 This bill contains many sections which do not directly affect the coal mining industry,
such as those sections relating to State Mining and Mineral Resources and Reserch Institutes,
various administrative provisions, and Designation of Lands Unsuitable for Non-Coal Mining.
Since this analysis is concerned primarily with impacts to the coal industry, the focus is directed
toward provisions which could result in increased coal mining costs, coal price increases, coal
production impacts and coal reserve base impacts.
48 SUMMARY OF MAJOR CONCLUSIONS
48 The findings of this analysis indicate that the costrelated impacts due to H.R. 13950 are
generally not great. These cost impacts are not likely to significantly affect national coal
production, coal consumption, coal prices, employment, or electricity prices.
49 However, several provisions in H.R. 13950 are subject to varying interpretations. In the
event that these terms are given very stringent interpretations, the impacts could be substantially
higher.
49 H.R. 13950 would establish surface mining and reclamation requirements applicable
throughout the Nation. However, many of these requirements already exist in state laws and
regulations in the coal mine operating regulations for federal coal leases. Accordingly, the
incremental law presented by H.R. 13950 varies among states, and in some states, is quite small.
49 Since many of the performance standards of H.R. 13950 are often found in existing state
laws and regulations, the cost impacts in many states are not great. In most non-Appalachian
states, the incremental costs are less than $0 .75 per ton (1978 dollars). In Appalachia, cost
increases are generally between $0.50 and $2 .00 per ton except in Alabama and Virginia, where
costs for some mine-types could increase by over $4 .00 per ton. For purposes of this analysis, it
was assumed the bill was enacted in January 1977. Hence, it was assumed these cost increases
would first be incurred in 1978.
49 The production and energy impacts associated with these cost increases are not great. If
there were no increase in market prices in 1978, net production curtailments in 1978 are
estimated to be 22.0 million tons, all in Appalachia. If the market prices increased by $1 per ton
in Appalachia in 1978, the net production curtailments would be reduced to about seven million
tons. However, these production curtailments would not affect overall coal consumption in 1978,
since consumers could meet the shortfall by drawing down existing coal stocks. There would be
no net production curtailments in 1979 or thereafter, because market prices would increase by
1979 to stimulate the required additional production.
49 Another production impact of H.R. 13950 would be to change the regional distribution of
production. Production in areas with relatively large additional reclamation costs would either
fall or not increase as rapidly as production in areas with small projected increases.
49 The projected price impacts resulting from the performance standards of H.R. 13950 are
projected to be about $1 per ton by early 1979 in Appalachia and the Central West, and $.50 per
ton in the rest of the Nation. These increases would increase the average residential consumer's
electricity prices by less than one percent per year.
50 The net direct employment impacts (i.e., lost jobs due to production curtailments minus
new jobs due to increased reclamation) in 1978 could be a loss of about 1,400 jobs in surface
mining in Appalachia, if the net production curtailments were 22 million tons. If the
curtailments were lower, the net direct employment impacts would be lower. However,
additional jobs would be created in both government and industry to implement the legislation
and conduct the studies required for permit applications. Although the net employment impacts
are small, there could be significant impacts within some narrow geographical areas. In 1979,
when there would be no net production curtailments, direct surface mine employment would be
increased due to the increased reclamation activities.
50 Although the cost-related provisions of H.R. 13950 do not appear substantial, some key
provisions may be interpreted differently. In the event that these provisions receive a very
stringent interpretation, production impacts may be greater. These impacts are generally not
related to cost, but could serve to restrict production and reserves under certain conditions. For
example, while a moderate scenario of the alluvial valley floor provisions could affect four mines
with an additional production in 1978 of 12 million tons, a high impact interpretation could
impact up to 25 million tons of western production by 1978 and 104 million tons by 1985.
50 In addition there are several other non-cost provisions in H.R. 13950 in which the wording
of the provisions could result in additional restrictions, administrative inflexibility, and/or delays.
In most cases, the intent of the provision would have little cost or production impact. Examples
of these provisions include the amount of time allowed for compliance with permit requirements
and performance standards, the grandfather clause for mining on alluvial valley floors,
specification of the technology to control sedimentation, and the provision for declaring lands
unsuitable for mining.
50 The reserve impacts of H.R. 13950 could range between 8.1 and 24.0 billion tons, or
between 1.9 and 5.5 percent of total reserves. These impacts are equivalent to between 5.9 and
17.6 percent of strippable reserves. It should be noted that these impacts would not affect the
cost or regional distribution of coal production until the mid-1980's at the earliest.
50 These findings will now be presented in greater detail.
51 Mr. O'LEARY. I have the draft report of February 1. We will see you get all of the
material here.The conclusion is there will be some but very small unemployment impacts, but
very small loss of production.
51 I think a lot of these estimates have to do with impact on price. There are some who feel,
to the extent you increase the price, that some of the utilities now using coal will drop off the
vine, so to say. In all likelihood, when you recognize that in Appalachia coal competes with coal,
there will probably be some mix from point to point where the coal comes from. But I really
doubt we are going to find a measurable drop in employment as a result of passage of this
measure.
51 Senator HATCH. Gentlemen, I have not read the draft of the final report, but an
independent company, which was called in to make an analysis of the energy and economic
reports of House report of H.R. 13950, which is virtually the same as S. 7, that is dated January
24, 1977, page 1, a summary of conclusions - I realize you don't have this, maybe I could just
make these points - various conclusions were reached.
51 I also have, in comparison with the January 24 summary, your February 1, 1977, revision
of the draft final report.I am disturbed by what appears to be a Federal agency's altering of
statistics and conclusions. When IFC presented the summary to the Council on Environmental
Quality and the Environmental Protection Agency, the independent analysis stated, for example,
on page 3 - this is the original draft report, dated January 24, 1977, page 3 -
51 For example, while a moderate interpretation of the alluvial valley floor provisions could
affect four mines with an additional production in 1978 of 12 million tons, a worst case
interpretation could impact up to 51 million tons of western production by 1978 and 211 million
tons by 1985.
51 Now contrast this with the February 1, 1977, revision which reads: "For example, while a
moderate scenario of the alluvial valley floor provisions could affect four mines with an
additional production in 1978 of 12 million tons, a high impact interpretation could impact up to"
- and I underscore this - "25 million tons of western production by 1978 and 104 million tons by
1985."
51 Gentlemen, someone has revised the ICF's best judgment. Instead of being 51 million
tons, somebody has reduced it to 25 million tons, reducing the impact by more than one-half.
They changed the figure of 211 million tons to 104 million.
51 Now, I am concerned about that. Do you believe a Federal agency, called upon by us for
independent expertise, should revise those figures?
51 Secretary ANDRUS. Mr. Chairman, may I respond first to that? I do not have the report
the Senator is reading from. I think I would be in error to respond to it when I have not looked at
it. Let me make one point, if I might.
51 All of our studies that I think were put together in the prior administration pointed out, and
confirmed, that only 3 percent or thereabouts of the total western coal that would be available for
strip mining is found in these areas we would designate as alluvial valley floors. So the other 97
percent certainly would be available for extraction without getting into the sensitive areas and
besides, when we look at that, then we have to recognize this is where the best farm productivity
lies and the Western States have to very jealously guard that.
52 The report I cannot speak to. But the coal, the concept of where coal is and how it is to be
extracted I would yield to my colleague.Maybe he has the newer report.
52 Mr. O'LEARY. I have the newer report, Mr. Chairman. Certainly I would inquire as to
whether there was any doctoring.
52 Senator HATCH. It involves me. January 24, a week later it has completely contradictory
conclusions, and this is from an independent company.
52 Mr. O'LEARY.If there is any doctoring, I will pledge to this committee I will report back
to you.
52 Senator METCALF. Will the Senator from Utah yield? In order to clarify the record, will
you tell us what the ICF is?
52 Senator HATCH. All I know is, it is ICF, Inc. It is a report submitted to the Council on
Environmental Quality and the Environmental Protection Agency. It is Contract No.
EQ6ACO16.
52 Senator METCALF. It is a private agency that CEQ contracted with to provide them with
information, statistics, and so forth.The final basis of any report would be the Environmental
Protection Agency or CEQ or some of those others on the oasis of information supplied by ICF
and on the basis of other information that might be available to that governmental agency, is that
correct?
52 Senator HATCH. The thing that concerns me, Senator, is that here is an independent
corporation, hired as an expert in this particular field, on which the agency is to rely, and they
changed the figures and dropped them down to half.
52 That is not the only point I intend to make here.
52 Senator METCALF. I understand. But I want it clearly understood, this is a private
agency, which made a contract, and a report, which will be the basis of a governmental decision,
and will be only part of the evidentiary material the Government will rely on for its report. It is
possible that the next day, as a result of the ICF report or other information that comes in, the
Government would have to modify its report.
52 Senator HATCH. That may be the case, I don't know.
52 Senator METCALF. I would like to have the record show what ICF is, what kind of
contract it is, so it will be clear.
52 Senator HATCH. I think it is a private corporation hired to do work in the field.
52 Senator METCALF. It is analogous to Rand and other corporations we hire to do this
kind of consulting work.
52 Senator HATCH. What bothers us out in the West is that these things come in like this
and all of a sudden the facts and figures appear to be altered by Federal agencies to fit their
needs.
52 Mr. O'LEARY. Mr. Chairman, may I address that point? Having been on both sides of
the table, as technical director of the Miter Corp., from time to time numbers change in drafts.
You come down, however, with a final figure and the corporation puts its name behind that. I
don't think there was ever any example when I was with Miter or with four Government agencies
to attempt to influence us in the development of numerical data. I will tell you we changed the
numbers quite often as we went forward with drafts.
53 In a comparable situation like this, it does not surprise me in the slightest or raise any
feeling that there is any impropriety, that numbers change from draft to draft. I don't think that is
in any sense of the word a prima facie case that there has been tampering.
53 As I have indicated to the chairman, I will look into it. But I think we will find that there
is nothing there.
53 Senator METCALF. Will the Senator yield? I have indicated in my opening statement
we have also invited statements for the record from the Environmental Protection Agency, the
President's Council on Environmental Quality. Those are the two agencies that received this ICF
report and I would like to instruct the staff to get further clarification of what happened to that
report, from EPA and CEQ, rather than from these witnesses.
53 Senator HATCH. I very much appreciate that, Mr. Chairman. Incidentally, both the
reports were issued on ICF paper. What I am concerned with is how that report could change so
drastically. Let me give you another illustration.
53 In the original report, entitled "Draft Final Report," January 24, 1977, on the page listed
Introduction, which would be the first page, I take it, of this report, because the next page is No.
2, the original report says:
53 However, there are numerous provisions in H.R. 13950 not directly related to costs which
could create major difficulties. Such impacts include (1) substantial production impacts that
could result from possible interpretations of the alluvial valley provisions, (2) delays in
permitting due to inability to comply within established timetables and/or insufficient
administrative funding, (3) extensive litigation resulting from ambiguous and undefined terms,
(4) unintended effects due to mismatches between the apparent intent and the actual wording, and
(5) losses to the coal reserve base.
53 Now, that was pretty definitive. Compare that to the other text or the changed text on the
same stationery from ICF, Inc., found in the February 1, 1977, edition where - and this is what
the change said:
53 However, several provisions in H.R. 13590 are subject to varying interpretations.
53 Let me see if I am quoting in the right spot.
53 Let me requote:
53 However, several provisions in H.R. 13950 are subject to varying interpretations.
53 In the event these terms are given very stringent interpretations, the impacts could be
substantially higher.
53 Where one indicates there are all kinds of major difficulties, and lists the impacts in five
different statements, the revised report reduces this to a general statement that impact might be
high if stringently applied. I am concerned about that and I would like to have some explanation.
I would like to have that.
53 The third point I would like to bring out at this particular point is found on page 3. Here
on page 3 there is a part left out of the final revised draft. I would just like to read this to you.
54 It says:
54 In most cases, the intent of the provision would have little cost . . . these are the noncost
provisions, maybe I had better read backward a little bit.
54 In addition there are several other noncost provisions in H.R. 13950 in which the wording
of the provisions . . .
54 can have effects quite different from the congressional intent.
54 In most cases the intent of the provision would have little cost or production impact.
54 Then the next sentence is left out of the subsequent report:
54 However, the actual wording could result in unnecessary restrictions, administrative
inflexibility and/or additional litigation.
54 Now, that is left out. What bothers me is that when you look at these things, it appears
that somebody has revamped this report to make it look like something from which the States
would benefit. The prior report was much more difficult and had much more serious criticisms
of the bill itself. I am concerned about having the bill if we are going to have one at all, that
takes into consideration all of these particular aspects that the first report brought out. I think
they are important.
54 I would like to also say I am very pleased with both of your explanations about allowing
the States to administer the particular bill, so long as they made the Federal Government
compliance standards. I think if that can work in fact as well as in principle, it would be a
wonderful thing.It would be one of the first major cases where that would be exemplary.
54 Let me ask you this question. Has the Department of the Interior or any Federal agency
made an analysis of the production impacts and/or the employment impacts - and if so, tell us
about it.
54 Secretary ANDRUS. Mr. Chairman, we are in the process of doing that now, starting on
the basis the bill is going to pass. But again, it would depend on down that road how many
States determined they would in fact be the controlling authority in the situation or whether they
would in fact leave it to the Federal Government. So I don't think we can honestly give you those
figures unless we plug into it the assumptions that some States would and some States would not.
54 It would be my hope, Senator, that the States would come up to speed as quickly as
possible, and they would, in fact, do the regulatory portion. But it could be 250, it could very
easily, in fact, be a thousand, if we had to go to the route of the Federal agency doing the law.
54 We are looking, but I don't think we can honestly give you a figure unless you can give us
the guidelines as to how you want the figures computed from a State standpoint.
54 Senator HATCH. Do you intend to make an analysis of the economic impacts and could
we have that?
54 Secretary ANDRUS. I have a preliminary figure. I would prefer with the concurrence of
the chairman to let us watch the amendments, or proposed amendments, toward the
implementation of this bill and give you a factual figure, the best we can, instead of giving you
one and then somebody's amendment would be attached that would change it and I would be in
the middle of being accused of the same numbers game we are talking about.
55 Senator HATCH. Would the Department employ independent scientific services to help
them arrive at these particular analyses?
55 Secretary ANDRUS. Mr. Chairman, I think in response to that we would have to, in order
to have figures that everyone can live with.
55 Senator HATCH.One thing that bothers me, Mr. Secretary, I have read an analysis of the
various State programs for surface-mined areas. It seems to me most States that are affected by
coal production, for instance, they have pretty adequate surface mining and reclamation
regulations with statutes on their books. Do you know of many States that don't have laws to
regulate strip mining already on the books.
55 Secretary ANDRUS. Mr. Chairman, that would always be a matter of opinion.
55 Senator HATCH. Well, in your opinion.
55 Secretary ANDRUS. In my opinion, no.They are not all of the same level. I think you
would recognize within the areas of trade journals even where they would point out
Pennsylvania's law is one way, Alabama's is another, West Virginia's is another. But I think
more importantly than that, we spent all day Saturday in the State of Kentucky, the eastern part of
the State, looking at past and present practices.
55 I think it clearly shows what you are implying. The States are moving to improve their
programs but there are devastating amounts of land areas out there where minerals were
extracted, in whole or in part, when there was no regulation whatsoever. I don't fault the States
for trying that. No, they are not all at the same level of expertise.
55 Senator HATCH. If this legislation is passed, could you give us which States do not have
adequate strip mining legislation or are not enforcing legislation already on the books, or
anything else? Anything else that might help us determine whether that legislation is needed.
55 I was born and raised in Pennsylvania. I remember when strip mining legislation came
down in Pennsylvania, it was greatly needed. The thing I am concerned about is are we
penalizing the States for overseeing their own strip mining and reclamation considerations
because of what happened 30, 40, 50 years ago, which was bad. And if that is so, then I have a
real question of whether we need this strip mining legislation.
55 I would like to have these answers before we actually pass the bill - we have a lot of
differences on it, there are a lot of disagreements on it. Even though it does appear the majority
favor this bill.
55 Secretary ANDRUS. In response to your question, we will attempt to give you our best
personal opinion as to the differences throughout America of adequate or less then adequate
controls presently on the books.
55 Senator HATCH. I think I have taken quite a bit of time. Perhaps you could come back to
me later.
55 Senator METCALF. Have you seen this ICF report?
56 Mr. O'LEARY. I have it, Mr. Chairman.
56 Senator METCALF.How long have you had it?
56 Mr. O'LEARY. I have had it probably for about 2 days.
56 Secretary ANDRUS. I have not seen it.
56 Senator METCALF. We will direct the record to show that this report is part of the
record; that we ask CEQ or EPA to comment on it, when they comment on the legislation; and
we emphasize it is a private report.
56 I understand the Senator from Utah is particularly concerned about having the
Government or the agency that asked for the report change the recommendations or the final
conclusion that ICF entered into, and I hope it will be corrected that way. We are not going to be
bound by any report for which we contracted and we still cannot condone the agency's changing
the conclusions or statistics entered in those contracted reports.
56 Mr. O'LEARY.May I make a comment with regard to that? I think the conclusions I
expressed here will be supported. I think there will be very little damage to employment or
production as a result of passage of this bill. It is not beyond the power of the Congress to pass a
bill that would severely have disrupted both. Both my colleague and myself have pointed to
three areas, the administrative area, the alluvial valley area, and the surface ownership area,
which I think are reflected to a degree in the ICF report. If we were to take a very broad view,
let's say of the alluvial valley question, we could have the possibility of preempting future
possible production. That means simply the production will not take place in the broadened,
expanded definition of an alluvial valley. It does not mean, Mr. Chairman, production will not
take place. You have to understand something like 13 percent of the land area of the United
States is underlain with coal. It is a ubiquitous material. It may have the effect, in the event
Congress ultimately says we want a very, very broad definition of alluvial valleys, it may have
the effect of denying production of something more than 3 percent of the surface area of the
Western States that we currently view or perceive as being caught within this definition.
56 If so, the production will take place elsewhere. This is a 1985 number. The dramatically
changing number we have reference to. I think you must view it in that perspective. It does not
mean production denied, period; it means production denied in that area and picked up in some
other area.
56 Senator HATCH. One of the concerns we have out in Utah, and I think in Idaho,
Colorado, and other areas where we have extensive coal deposits, is that every time the Federal
Government comes in to administer any aspect of Federal coal deposits, that we find there is a
deterrent in development because there are all kinds of lawsuits, all kinds of reports,
environmental impact studies, and so forth. These are sometimes overused, and we have great
coal reserves that could benefit this country and certainly could have benefited this country at this
particular time in its history, prevented from development.
56 For 14 years, our State has tried to get approval for development of that coal on that
plateau and finally lost the battle and the companies pulled out. I think 14 years is too long a
time when you have high-moisture, low-sulfur coal. We are concerned about having Federal
legislation that may allow more interference with the development, an orderly development, and I
think Utah is one of those States that already has an agreement with the Department of the
Interior to regulate its surface mining.
57 The coal is not strippable coal but the analogy I think I am drawing is a fair analogy. I can
see the desire to have uniform regulation throughout the country so there are no economic
advantages or disadvantages. On the other hand, we are taking things away from the States that
might be able to handle these things better.
57 Mr. O'LEARY. Mr. Chairman, both the Secretary and I are aware of the States' position
in this, having spent a great deal of our time in that area.
57 Senator HATCH. You have been on both sides.
57 Mr. O'LEARY. Yes; I can tell you with all the assurance I can muster that unless we can
get this problem behind us, unless we can find generally acceptable rules here in the strip mining
area and I believe, the air quality area, we are not - and I say this now as the FEA Administrator -
we are not going to clear the way for coal to make the sort of contribution it should be making to
solve the energy problem before this country.
57 It is clear that coal right now is in demand, that has come about because of uncertainty
with regard to the capability of conducting mining operations that are acceptable because of a
national debate of 4 years' standing now over strip mining rules and over air quality rules.
57 What this administration must do and what the Congress must do here in this session, I
think, is to begin to get these questions taken care of so we can permit coal to go forward and
make its contribution. The burden of my testimony before you, Mr. Chairman, is we have had
the discussion, it is quite evident that this is a stopper in the bottle, this coal production, and let
us get it behind us.
57 Senator HATCH. I was very pleased by the chairman's comments about investigating
these discrepancies and let's have some answers to them. I would also like to reemphasize, I
think, before enacting this legislation, we ought to have the other materials that you also kindly
offered to us, and I hope we can get these and look into this from all aspects at the time the
legislation is presented.
57 Senator METCALF. I will say to the Senator from Utah and others, we will get just as
much information as is available, and we will take just as much advice from the Government,
private sector, and everyone else, to help pass a bill.
57 I think you for yielding temporarily.
57 With the permission of the committee, I would like to recognize my colleague from
Montana, who did so much on strip mining legislation last year, Senator Melcher.
57 Senator MELCHER. Thank you, Mr. Chairman. Sometimes, when I hear about alluvial
valley floors and surface owners' rights, I come into a movie I have seen two or three times
before.
57 I hope the outcome this time is different than what we have had to put up with before, in
the vetoed bill, and I want to comment on a couple of points you have raised in the departmental
report, Mr. Secretary.
58 I notice after H.R. 25 was vetoed and after we had reviewed the reasons for the President's
veto and after we failed to override that veto, we talked to the critics, both within the
Department, in the private sector with coal companies, and, specifically, one of the points we
talked to them about was since you find ambiguity and an opportunity for lawsuits and the
language that was in H.R. 25, the vetoed bill on the alluvial valley floors strip mining, can't we
clarify that?
58 I notice that looking at that section on page 59 of S. 7, as compared to the
recommendations of the departmental report, you have taken a different tact and I think have
perhaps answered some of the questions of clarification and ambiguity, and I think, in fact, I
recognize the language; I think it was something I was instrumental in drafting to include in H.R.
13950 and H.R. 13777, which were considered by the House in the last session.
58 We haven't lost much time of the House to act on those modified bills. I think it is
significant that now your solicitors have found that this type of language for alluvial valley floors
is less ambiguous and less prone to litigation. I just want to be sure that you feel strongly that
this is adequate and sufficient language to avoid those two criticisms.
58 Secretary ANDRUS. Mr. Chairman, in response I am not at all surprised the Senator from
Montana recognized some of that language. When I signed that report, it was not one that had
pride of original authorship, it was one designed to meet the problems as we saw them, and the
answer to your question is yes. We feel the language will meet those objections.
58 Senator MELCHER. You mentioned surface owners' rights in 423(e) of S. 7 and being
the change it is from the vetoed bill, and then you give a recommendation of should the Congress
go back to previous language of H.R. 25, which was the result of a conference committee
deliberation.Can I interpret that paragraph to mean that you prefer the language of H.R. 25, rather
than the language that is now in S. 7?
58 Secretary ANDRUS. Mr. Chairman, the answer to the question is yes, that is our
preference.
58 Senator MELCHER. I also note you recommend some administrative procedure that will
help the small mine operators.In other words, the amendments to S. 7 would alleviate some of
the procedural hangups, so-called redtape that mine operators must comply with under the terms
of S. 7. Would it be fair to say the language you would recommend there would be similar to
what was in those two House bills I mentioned, H.R. 13950 and, more specifically, H.R. 13777,
and which I understand is in H.R. 2 of this current Congress?
58 Secretary ANDRUS. Mr. Chairman, that is correct. The only point that bothers us at this
point in time, Senator, is the figure of 250,000 tons per annual production, I don't know if that
should be 275,000, whether it should be 200,000; some place, after you have received all of the
testimony on this bill, together we can determine what that figure should be. But with that one
proviso, your assumption is correct.
59 Senator MELCHER. The significance of the figure would be to identify what is a small
mining operator?
59 Secretary ANDRUS. Yes.
59 Senator MELCHER. S. 7
59 Senator METCALF. May I interrupt? At the request of the Senators from Kentucky and
Congressman Perkins from Kentucky, we are going to have a hearing on March 1 on some of the
impacts of the bill on mine operators on eastern steep slopes and, of course, the same invitation is
open to my colleague from Montana to attend these and other hearings. We will go into the
question of impact on some typical eastern small mines. We intend to get other testimony in
from western areas at a later time.
59 Senator MELCHER. I thank the chairman. Mr. Secretary, the report does not refer, as far
as I can determine, at any place, to the question of coal strip mining on Indian lands within their
own reservations. Now, since you have a dual responsibility to advise the Congress on the
general situation of coal strip mining reclamation law but also the added responsibility of special
status in dealing with the Indian tribes as Secretary of the Interior, might I ask if that is an
oversight or perhaps it is a little bit quick to ask you this, perhaps some of your staff can advise
you, have you ever reviewed the so-called Indian lands title that at one time, as the House passed
it, was in H.R. 25, which gave to an Indian tribe within the boundaries of their own reservation
about the same status a State would have, that is a prerogative to run a reclamation program if
they met the minimum standards and could, like a State, exceed the minimum standards if they
so chose?
59 Secretary ANDRUS. Mr. Chairman, Senator, that language, the reason it was not in the
overview, starting on page 39 of S. 7, where it points out: "The Secretary shall consult with
Indian tribes" - it continues on to page 41 - I do not disagree with giving the Indian nations the
same rights as we give to the States. My concern is the difference and the time element in this
bill, in 1979, to about 1 1/2-year to 2-year lag as compared to the others. I would prefer to see
the Department of the Interior help them bring up their area of expertise so they will not lag
behind the rest of the States and the Nation.
59 I would hope we would move together in this so they would have the capability of acting
as the authority themselves.
59 Senator MELCHER. On page 72 of S. 7, specifically, a citation would be 415(b)(10)(a),
there is a serious of requirements on protection of water where mining is done both in the mined
area and the adjacent areas. I have two points to raise in that regard. First of all, while 10 at the
top of page 2 says minimize the disturbances, and then goes on with (a), (b), (c), (d), and (e), the
minimized phrase - minimize the hydrological disturbance, is a qualifying phrase which allows
discretion, as to determining how much you must minimize and how you must minimize to
protect. So that is discretionary language.
59 But is it your feeling, Mr. Secretary, when you get into (a), (b), (c), (d), (e), and (f) - for
instance, (d) says you must restore the recharge capacity of the mined area and (e) says replacing
the water supply and then preserving through the mining reclamation process the essential
hydrological functions of the alluvial valley floors.
60 Those points are not modified by the minimum disturbance, do you feel - aren't these
outright requirements and they are not to be deviated from? In other words, if you lost some
water, you are not to get part of the water back, you are to get as much back. In other words, if
the recharge is interfered with, you are to get and be protected, if you are an owner, to the same
extent as the recharge water before the mining operation started; is that not correct?
60 Secretary ANDRUS. Mr. Chairman, that is correct, and may I expand a little bit on that
point? There are those people who are suggesting the bill is too specific in a lot of areas, that
discretion should be left to the Secretary of the Department of the Interior, and in some areas
maybe that is so. But I think it should be specific in the areas you are talking about for the
protection of those people. The answer to your question is yes.
60 Senator MELCHER. Then I would like to make this final observation. Since that is
definite and since it is specific, it really makes it necessary to have the previous section dealing
with gaining the permit on alluvial valley floor mining subject not to interference to the farming
going on at that time, because without the first in the permit situation, the permit application, the
requirement to examine and prohibit strip mining on alluvial valley floors where farming is
actually going on, (f) could never be fulfilled on page 3 of the bill. Am I not correct on that, Mr.
Secretary?
60 Secretary ANDRUS. Mr. Chairman, yes; it would appear to be correct -
60 Senator MELCHER.I think, from a practical standpoint, you cannot explain how you
could strip mine a 40-foot seam of coal in the Yellowstone Valley and still preserve, throughout
the mining reclamation process, the essential hydrologic functions of the alluvial valley floor in
that area. So I think it should be noted - I am trying to do that in establishing this colloquy at this
hearing - it should be noted that the alluvial valley floor section dealing with the permit
application, denying that application if it involves a significant portion of farmland, either on
subirrigated or irrigated lands on the alluvial valley floor is, for all practical purposes, an
essential point. There is no sense going through all of the permit application to find out it will
violate (f) on page 73 where it is impossible to maintain under existing technologies if we have
the hydrologic functions of an alluvial valley floor.
60 Secretary ANDRUS.Mr. Chairman, Senator, you are absolutely correct in that regard. Let
me remind you and the members of the committee that really our concern is that the alluvial
valley floors be protected, the administration's concern, we have concern beyond that that good
agricultural cropland is entitled to some protection. That is where we should have a discretionary
capability for putting some of these areas off limit for this generation. Maybe the next generation
wants to look at it again. But it is difficult to approach it in that language which your
contribution today I think is good, and also your language is good.
60 Senator MELCHER. I thank you, and I agree emphatically on your statement of the
importance of good agricultural land in the West.
60 Thank you, Mr. Chairman.
61 Senator METCALF. I thank my colleague from Montana, and both of you. Senator
Hansen has yielded temporarily and I want to get back to him.
61 Senator HANSEN.I do have one further question, Mr. Chairman. Contained in S. 7 is
language which precludes operations in significant portions of the State of Wyoming. I refer to
language which would prohibit the mining of federally owned coal where the surface is owned by
some other property owner other than the Federal Government.
61 I would invite your observations on this particular section.
61 Secretary ANDRUS. Mr. Chairman, Senator, this is one of the areas where we are
concerned.We recognize the need for protection for those people that have the surface rights and
the Federal Government has the mineral rights. We are very sympathetic to an outright consent,
but we also recognize that there are given situations where perhaps consent of that surface owner
who by the sweat of his brow created that ranch or that farm, then maybe consent could be a way
out and there should be protection for them to do it. I refer to the language that was in the
conference report of a year ago, or last year, that we prefer over the outright prohibition. I speak
to that, Senator, that that would be our preference.
61 Mr. O'LEARY. I would like to reinforce that conclusion. In my prepared remarks, I
referred to the preferred solution, one in which you do not have an outright embargo. There
should be flexibility.
61 Secretary ANDRUS. Mr. Chairman, I might add I answer that question very cautiously. I
know the chairman of the committee has language going in there. But you asked me what my
preference was, Senator, and it is the other language.
61 Senator METCALF. The chairman of the committee is committed to the so-called
Mansfield amendment to which the Senator from Wyoming referred.However, the chairman of
the committee also concurred in the language adopted by the Senate twice and concurred in the
conference language. I am not wed to any conference language; I want to get a bill out of this
committee.
61 The Senator from Wyoming has equal determination and we start with what I referred to,
but my experience in 25 years here is that I seldom get my druthers.
61 Senator HANSEN. If I may say, Mr. Chairman, I have been here a far shorter period of
time, only 10 years, but the two times I have prevailed is when I joined up with you.I might say
to our distinguished witnesses, that to your left are displayed four townships of land of which
Gillette, Wyo., is roughly the center. This is an area where there are very thick beds of coal and
perhaps we could have something included in the record later on in order that it could reveal
what I am talking about - the area that is displayed on the right, the pink, is to indicate what is
federally owned coal. On the left is that same area but the green indicates the lands the surface of
which is in private ownership, and the small blue checkers on there for the most part are sections
16 and 36 in each one of those townships indicating State ownership. I don't have a display nor
am I provided at this moment with information to know what the situation throughout all of
Wyoming would be, but I offer this as an illustration of my concern with this particular
provision.
62 It would seem if it were to remain in the bill, a very significant - and I underscore those
words - a very significant amount of coal in Wyoming could not be mined at all.
62 [Subsequent to the hearing Senator Hansen submitted the following:]
62 LAND AND COAL OWNERSHIP IN THE GILLETTE AREA
62 Since the signing of the Articles of Confederation in 1781, the Federal government has
held jurisdiction over vast acreages of land. During the 19th and early 20th centuries one of the
chief responsibilities of Congress and of several Federal bureaus was to provide for, and regulate,
the transfer of public lands to State and private ownership. As a result, a large body of laws and
regulations have been enacted to control the disposition of the public domain. (See "History of
Public Land Law Development," U.S. Government Printing Office, 1968, for detailed
discussions).
62 For lands in northeastern Wyoming, the Homestead Act of 1862, The Desert Land Act of
1877 (and revision of 1891), the enlarged Homestead Act of 1909, and the Stock Raising
Homestead Act of 1916 are of special importance.Through these measures, millions of acres of
public land were opened to entry and settlement for agricultural purposes, and a large part of the
land surface in the area shown has been converted to private ownership. Additional large
acreages were also transferred to State ownership (specifically sections 16 and 36 in every
township in the region), the income from which was to be used for public education. The Taylor
Grazing Act of 1934, which established grazing districts on the remaining public lands and made
them available for leasing to stockmen, virtually ended the acquisition of land through
homesteading in northeastern Wyoming.
62 The disposition of mineral-bearing lands has been controlled for the most part by a
separate set of laws and regulations.With respect to coal, a law in 1864 empowered the President
to sell lands containing known coal beds at public auction, but at a minimum price of $2 0 per
acre. Any lands left unsold were then made available for private entry under the general public
land statutes for a minimum fee. In 1873, Congress further provided that a citizen might claim
up to 160 acres, and that a group of individuals might enter as much as 320 acres, of unreserved
coal lands. The minimum price was $1 0 per acre for tracts located more than 15 miles from a
completed railroad and $2 0 per acre for tracts located within 15 miles of a railroad. The 1873
act regulated the disposition of coal lands on the public domain until the passage of the Mineral
Leasing Act of 1920. This statute, still in effect, authorized the Secretary of the Interior to issue
two-year permits to prospect for coal on land not known to contain workable deposits, and then
to issue preference leases to the same parties if coal is found to be present in commercial
quantities. Under certain conditions, leases may also be offered by the Department of the Interior
on the basis of competitive bidding.
62 In 1906 many millions of acres of coal-bearing lands which still remained within the
public domain were withdrawn from private entry, and a series of acts followed in 1907-1910
that eventually separated surface and mineral rights. Thus, individuals could obtain title to the
land surface but the Federal government retained the right to prospect and mine the underlying
coal. Because ownership of much of the land surface in northwestern Wyoming was acquired
after these "separation" laws went into effect, the coal deposits are still largely owned by the
Federal government. The extent of separate ownership is dramatically illustrated by this pair of
maps.
62 Two tracts of land are designated Bankhead-Jones Land Utilization Lands. These tracts
were acquired by the Federal government through purchase from private owners chiefly in the
1930's, and placed in the category of grazing lands. In some cases, the title to the mineral rights
is still in doubt.
62 This is a 1,512 square mile area in the heart of the Powder River Basin with Gillette
Wyoming in the center of the map. The map on your left shows surface ownership. The map on
the right shows subsurface coal ownership. Federal ownership is shown by the pink color. State
ownership is shown in blue, primarily sections 16 and 36 in each township. Private lands are
shown in light green.
62 Under the "Mansfield Amendment" in S. 7, where private surface (in green) rests on
Federal subsurface (pink), mining would be prohibited. This constitutes a prohibition of almost
80 percent of this area where known coal seams are 60 to 100 feet thick.
62 (See Illustration in Original)
63 Secretary ANDRUS. I am very familiar with that checkerboard pattern of ownership and
sections 16 and 36 and how they are dispersed and who owns them now. I have the same
concern. That is why our Department has made the recommendation we have.
63 But also I have a definite concern and empathy for those people who own that surface, that
may say, "Look, I don't want the ranch my grandfather and my father and myself have lived on
for all of these years torn up by one of those rigs." It kind of gets you going both ways. We came
down with what we thought, Senator, was a proper position.
63 Senator HANSEN. I appreciate that response. I might say we will be offering some other
alternatives that we think have merit when we get into a markup.
63 I have no further questions, Mr. Chairman. Thank you very much.
63 Senator METCALF. Thank you very much, and I thank you gentlemen for your
participation. We are going to adjourn this hearing. The next hearing will be March 1. In the
interim we may ask some questions and we hope you will provide material for the record that has
been requested. But I also want to comment on a couple of matters which have come up. We
have put in study provisions in section 508 for Indian lands and section 509 for reclamation
standards and so forth. Those provisions I hope will remain in the bill. But we are not bound to
wait for completion of those studies in order to pass the necessary legislation.
63 These are largely carryovers from previous bills. So we hope we have an opportunity after
passage of strip mining legislation to consider Indian lands. We held hearings, for example, on
the oil shale prototype leasing program last fall.
63 Whether you complete a study in time or not, I hope you will go forward with it just as
quickly as possible. We are not going to be bound to wait for additional oil shale legislation in
view of the current energy crisis. Nonetheless, I want to comment that these studies are matters
of concern.
63 Immediately after this committee reports out a strip mining bill to the Senate, this
subcommittee is going to go to work on Indian lands, on oil shale. We are going to go to work on
these other problems that have been raised regarding how we should regulate other strip mine
activities. If your study is underway, fine. If not, we will just have to go on without it.
63 Secretary ANDRUS. We understand.
63 Senator METCALF. Thank you very much for your appearance.
63 We will be in recess until March 1.
63 [Whereupon, at 1:55 p.m., the subcommittee recessed, to reconvene, Tuesday, March 1,
1977, at 10 a.m.]
TUESDAY, MARCH 1, 1977
65 U.S. SENATE, SUBCOMMITTEE ON PUBLIC LANDS AND RESOURCES, OF THE
COMMITTEE ON ENERGY AND NATURAL RESOURCES, Washington, D.C.
65 The subcommittee met, pursuant to notice, at 10 a.m., in room 3110, Dirksen Office
Building, Hon. Lee Metcalf, presiding.
65 Present: Senators Metcalf, Jackson, Johnston, Haskell, Ford, and Domenici.
65 Also present: D. Michael Harvey, chief counsel; Norm Williams, professional staff
member; and Ted Orf, deputy minority counsel.
OPENING STATEMENT OF HON. LEE METCALF, A U.S. SENATOR FROM
THE STATE OF MONTANA
65 Senator METCALF. The subcommittee will be in order.
65 This is a hearing of the Subcommittee on Public Lands and Resources for the purpose of
examining possible effects of the steep slope and other provisions of S. 7, the Surface Mining
Control and Reclamation Act of 1977. S. 7 is a modified version of H.R. 25, the bill which
President Ford vetoed in May 1975.
65 During the debate over the Ford veto, a number of allegations were made by the Ford
administration. In particular, it was alleged that millions of tons of coal production would be
lost, due to the disruptive impact of the bill's environmental protection performance standards
and other provisions, upon surface mining operations being conducted on steep slopes.
65 These charges were shown to be based on little more than hearsay.
65 Nevertheless, they were blown all out of proportion. We had Mr. Zarb and Mr. Morton
and a cast of thousands testifying on the Hill to the effect that our electric bills would triple, our
oil imports would zoom, and 36,000 people would lose their jobs, if the bill were to be enacted. I
can assure you, it was a most memorable performance.
65 Since then, calmer heads have prevailed. President Carter, Interior Secretary Andrus, FEA
Administrator O'Leary, have all gone on record favoring the swift enactment of Federal surface
mining legislation.
65 Indeed, Mr. Schlesinger, the President's Assistant on Energy, in a letter to Chairman
Jackson, has said:
66 Let me emphasize that the energy agencies and the Department of the Interior and the
Environmental Protection Agency see eye-to-eye on this legislation. Last year's arguments about
this bill need not be reargued.
66 Recently there have been two studies, one done for CEQ and EPA, the other for TVA,
which tend to cast serious doubt on the Ford administration's argument that requiring the mined
site to be returned to the approximate original contour - the essence of the steep slope provisions
of the bill - would have any significant impact on the Nation's coal supply. So much then for the
Ford veto.
66 Having said all this, however, the fact still remains that many problems will be
experienced by individual operators and by certain States in attempting to comply with the steep
slope provisions and other requirements of S. 7. This we fully recognize.
66 I have stated before and I want to repeat again today my sincere hope that not a single
operator will be put out of business by the enactment of this bill. However, I know that in some
States the ruggedness of the terrain and the inadequacy of State reclamation standards are going
to cause difficulties. It is not going to be easy for some operators to do what they should have
been doing years ago.
66 For this reason, we have invited coal operators - or their representatives - from the six
Appalachian States where the great preponderance of our coal has been produced in the past and
upon which we will continue to rely in future, and we have invited the National Coal Association
and the American Mining Congress, to appear today in order to give us the benefit of their long
experience with all aspects of coal production. I know they have gone over this bill with a
fine-tooth comb and we welcome their suggestions for its improvement.
66 We have a long witness list for 3 days. It seems to me the whole organized world wants to
testify on strip mining in one way or another. We have been over this course twice and the bills
have been vetoed.
66 Substantially the bills that have been vetoed are probably the kind of legislation that will
ultimately result from this committee. We want to give as much time as possible to the various
people who have problems and concern with the bill.
66 Now, I have introduced S. 7. I am not wedded to a single section of it. I am open to
conviction just as I would be open to conviction introducing any legislation. I want this hearing
to be open and I want to have every concern, every point of view expressed.
66 We have some new members of the committee and I want them to be familiarized with the
legislation. I hope over the days we are going to be confronted with testimony that we will
explore everything that is necessary but that the hearings will not be too redundant or repetitous
in testimony.
66 I very much regret my good friend and ranking minority member of the committee,
Senator Hansen, is in the hospital and cannot participate in these hearings. I have relied on
Senator Hansen, as Senator Jackson has, to help us and support us in the consideration of this
legislation.
66 Nevertheless, when we go to the markup, and hopefully on Thursday, the last day of the
hearing, when we are talking about western coal, Senator Hansen will be here. From time to
time I will have other suggestions. I have a letter from Senator Hatch who suggested that he was
not satisfied with some of the responses that he received in a letter regarding a surface mining
study from ICF, from EPA, and others. I hope Senator Hatch will explore this and I will hold a
separate hearing on those responses.
67 I want to call on my very good and respected chairman, Senator Jackson.
STATEMENT OF HON. HENRY M. JACKSON, A U.S. SENATOR FROM THE
STATE OF WASHINGTON
67 The CHAIRMAN. Thank you, Senator Metcalf. I regret I will not be able to stay
through the hearings this morning. I would just like to express to you, and I know on behalf of
the committee, our deep appreciation for the wonderful way in which you have been conducting
hearings on this subject.
67 I believe it is now the third Congress, or the last 6 years, this is the third bill, and I must
say as certainly everyone in this room is familiar with the problem, and realizes what this
committee does here today, that the Congress - the House and the Senate - ultimately will send to
the President, the strip mining bill. We are not playing any more veto games.
67 When we had this matter up - I introduced the first one, along with Senator Metcalf, along
about 8 years ago or longer. The amusing thing was, industry thought it was too tough. Then,
when we tightened up some more, it was suggested I introduce the old bill. Now, I am not an
unreasonable person, but I want to say the chairman here, Senator Metcalf, has been more than
reasonable.
67 What we are trying to do, ladies and gentlemen, it seems to me, is to undertake what I
think a great majority of Americans want, and that is a balance between development on the one
hand and environment on the other. I believe strip mining legislation dramatizes that challenge,
that we are not here to put the coal people out of business.
67 I have taken a small lead in repeating over and over again, that the immediate alternative
to oil is coal. I think a nation that is indeed the "Saudia Arabia of coal" - and that is what we are,
and I don't mean in other ways - we have over half of the coal reserves of the non-communist
world. The same as Saudi Arabia has 300 billion barrels of 600 billion known oil reserves. This
is a precious resource.
67 Certainly a country, Mr. Chairman, as technologically advanced as the United States can
find a way in which to obtain the coal and still protect the environment and, yes, may I say
protect agriculture. In your State it is a very important double-edge sword as it is in Wyoming
and other Western States, to save that topsoil to meet our agricultural requirements and at the
same time get the product under the soil that is so necessary as we bide time, as we get these
other more esoteric and exotic alternatives of fusion, solar energy -
67 Senator METCALF. If the chairman will yield, I agree but it is hard for me to consider
that the sun and wind and air are "esoteric" or "exotic". These are the fundamental things.
68 The CHAIRMAN. But I do think the issues can be narrowed to a very limited area, as I
see it. I don't think we are very far apart, except for some special problems. I have been
impressed with the Senator from Kentucky's questions in that area of the unusual contour of the
problem we face in Kentucky and one or two other States.
68 I believe, Mr. Chairman, under your leadership here we will move rapidly and get a bill. I
think the industry should know what the rules of the road are and the basis on which they are
going to operate so we can get on with the business of getting our coal and even under the most
favorable circumstances, most people think you ask for a coal bill, you get it. It is very
complicated. It involves many, many factors.
68 I would just hope all who are participating in this endeavor realize we are trying to do our
best to achieve necessary development on the one hand and sensible environmental safeguards
that also protects not only the aesthetic values of the Nation but also alternative uses of the land
for whatever justifiable and proper economic purpose it might involve.
68 I want to compliment the subcommittee chairman for his patience over 6 or 7 years, and I
believe this is the last go-round.
68 Senator METCALF. I thank my chairman very much. He has been very patient with me
in my effort to get a strip mining bill and he has always participated in this legislation over the
years.
68 Senator Jackson, I know you and I are both very delighted that Senator Ford is a new
member of our committee. I am especially pleased that Senator Ford, as a new member of our
committee, is participating in one of the most important hearings that we have and one in which
he is most knowledgeable and most experienced. I can't express my delight that he has an
opportunity to serve on this committee and try to work out legislation that I am sure we will pass
this year.
68 Senator Ford, I will call on you at this time.
STATEMENT OF HON. WENDELL H. FORD, A U.S. SENATOR FROM THE
STATE OF KENTUCKY
68 Senator FORD. I would thank the chairman for these kind words, Senator Jackson,
and others. One thing that is important to me is the statement made by Chairman Udall after he
visited Kentucky and said, after not having been there for 4 1/2 years, we had come a long way in
reclamation and I think that is an important question we have to consider in developing this
legislation.
68 As Chairman Jackson has said, whatever comes from this committee and the House
committee, we will have a bill this time. I think we need to look at the new technology and be
sure in the interim, after three bills and 6 years, that we do not allow the older bills, or the bill we
are looking at today, to prevent new technology from being used. Because coal is important.Coal
is the answer to our synthetic fuels and I am very hopeful we can develop a piece of legislation
that will be acceptable to meet the medium, as Chairman Jackson has said, between the
environment and the production of coal. I look forward to the next 3 days of hearings and then
working very hard to provide the right kind of legislation that will protect our environment and
still give our people the opportunity to dig their coal.
69 Thank you, Mr. Chairman.
69 Senator METCALF. Again, we are delighted to have with us not a new Member of
Congress, but a new member of our committee, a Senator with whom I have been able to work
on other committees very closely, Senator Domenici of New Mexico.
STATEMENT OF HON. PETE V. DOMENICI, A U.S. SENATOR FROM THE
STATE OF NEW MEXICO
69 Senator DOMENICI. Senator Metcalf, I appreciate your permitting me a few
opening remarks. I won't take a long time. You will forgive me if perhaps during the hearings,
Mr. Chairman, is that while you have been through this a number of times, obviously I have not,
although I am somewhat familiar of the legislation. I am very confident that this is an important
issue for our country and I am sure the chairman knows it is important for the Western States.
69 In that regard, I would just want to make this early observation, Mr. Chairman.
69 The 10 Western Governors, including the Governor of my State, Gov. Jerry Apodaca, has
communicated with me, as I assume they have with you.I am delighted the Governors, including
these 10 Western Governors, are now meeting with our President. I hope that relationship
expands and that they do have more input into executive decisions. They have always had the
ear of the Congress, but collectively they may be able to do more to make the Governors'
positions felt.
69 I would merely say, Mr. Chairman, our Governor has been an advocate of national strip
mining law. He has supported it in the past. Recently, however, he has communicated to me that
he and the other 10 Governors support the general legislation but they have a number of serious
suggestions they want us to consider, not the least of which is what is going to happen to the
existing agreements of cooperation formally signed by the Department of the Interior with the
States of New Mexico, Wyoming, Utah, and North Dakota.
69 Our Governor has particularly requested this committee, in going through the bill, to make
every effort to render those agreements as workable and operative as possible. I would ask at this
time, Mr. Chairman, that the communication signed by our Governor, which include the overall
statement of the Western Governors and their particular points, be made a part of the record at
this point.
69 Senator METCALF. As a part of your remarks, it is so ordered.
69 [Governor Apodaca's letter follows:]
69 STATE OF NEW MEXICO, OFFICE OF THE GOVERNOR, Santa Fe, February 24,
1977.
69 Hon. PETE V. DOMENICI, U.S. Senator, U.S. Senate, Washington, D.C.
69 DEAR PETE: Enclosed you will find a brief statement I released on Monday concerning
federal strip mine legislation.
70 I continue to support enactment of federal legislation in this area, while strongly
recommending that cooperative agreements presently in effect between Western states and the
Department of the Interior be accommodated and allowed to remain in force in whatever final
legislation is passed by the Congress.
70 Your serious consideration of my views on strip mine legislation is deeply appreciated.
70 Sincerely,
70 JERRY APODACA, Governor.
70 Enclosures.
70 STATE OF NEW MEXICO, OFFICE OF THE GOVERNOR, Santa Fe, February 21,
1977.
70 Federal strip mine legislation was endorsed today by Gov. Jerry Apodaca, though
qualified by several recommendations.
70 Congress is currently considering two strip mine bills, S.7 introduced by Senator Lee
Metcalf of Montana and H.R. 2 introduced by Congressman Morris Udall of Arizona.
70 "I welcome the intiatives in S.7 and H.R. 2 and hope that Congress will pass and the
President will sign federal strip mine legislation this year," Apodaca said. "My endorsement,
however, is not without some qualifications."
70 Apodaca noted that New Mexico already has strict standards for reclamation of surface
mined coal lands and has also recently signed a cooperative agreement with the Department of
the Interior which allows the State to administer and enforce surface reclamation requirements on
federal land.
70 "I would strongly recommend that current federal strip mine legislation accommodate
cooperative agreements presently in effect between Western states and the Department of the
Interior by incorporating appropriate language allowing these agreements to remain in force,"
Apodaca said. "I would further recommend that those provisions of a Draft Position Statement
of the Western Governors' Regional Energy Policy Office (WGREPO) on Federal Strip Mine
Legislation (attached), which was recently submitted to the ten Western governors for final
approval, also be incorporated into current legislation."
70 The U.S. House of Representatives is conducting hearings this week on H.R. 2, and the
Senate has scheduled hearings next week on S. 7.
70 STATEMENT OF JERRY APODACA, GOVERNOR OF THE STATE OF NEW
MEXICO
70 Since early 1975, Western governors have supported the establishment of federal
guidelines to regulate strip mining. I have been a strong advocate of such guidelines. This
session of Congress is currently considering legislation to regulate surface coal mining operations
throughout our nation, and I welcome the initiatives in S. 7 and H.R. 2 and hope that Congress
will pass and the President will sign federal strip mine legislation this year. My endorsement,
however, is not without some qualifications.
70 In 1972, the State of New Mexico enacted legislation governing the reclamation of surface
mined coal lands under state ownership. Subsequently, regulations implementing this act were
promulgated by the State Coal Surface Mining Commission. Under these regulations, permits
issued by the Commission to operators of coal surface mines in New Mexico have included
detailed requirements which ensure that the land mined will be restored to condition equal to or
better than that existing prior to commencement of mining operations. The State feels that to
achieve reclamation of surface mined lands, under the wide variety of geological and climatic
conditions existing in New Mexico, the flexibility offered by our existing statutes and regulations
must be maintained. With this point in mind, the State of New Mexico signed a cooperative
agreement with the Department of the Interior in January of this year. This agreement provides
for a cooperative program between the Department of the Interior and the State of New Mexico
with respect to the administration and enforcement of surface reclamation operations conducted
under coal leases issued by the Department of the Interior under the Mineral Leasing Act of
1920. The basic purpose of this agreement is to prevent duality of administration and
enforcement of surface reclamation requirements by designating the State of New Mexico,
wherever possible, as the principal entity to enforce reclamation laws and regulations in New
Mexico. I would strongly recommend that current federal strip mine legislation accommodate
cooperative agreements presently in effect between Western states and the Department of the
Interior by incorporating appropriate language allowing these agreements to remain in force.
71 In addition to the above recommendation, I would further recommend that those
provisions of a Draft Position Statement of the Western Governors' Regional Energy Policy
Office on Federal Strip Mine Legislation (attached), which was recently submitted to the ten
Western governors for final approval, be incorporated into current legislation. This statement has
my overwhelming support and I would hope that Congress will give the concerns of the Western
governors their very serious consideration as they deliberate further on federal strip mine
legislation.
71 Any state with an approved state program or cooperative agreement may elect to regulate
surface coal mining and reclamation operations on federal lands within the state. Such regulation
shall be subject to all the provisions of the Act.
71 FINANCING STATE ADMINISTRATION AND ENFORCEMENT
71 If a state assumes exclusive jurisdiction of mine reclamation, the federal government,
which would have to administer a reclamation program if the state did not undertake that
responsibility, should, when requested by the Governor of a state, share the administrative cost
with the state on all nonfederal land and pay the state for the full cost of administering
reclamation standards on federal land.
71 Specifically, we recommend that final legislation contain the language in S. 7, Section
505.
71 TIMETABLE FOR IMPLEMENTATION OF STATE AND FEDERAL PROGRAMS
71 Several varied provisions of both the Senate and House bills designate specific periods for
developing State and Federal programs as well as setting time schedules with which operators
must comply. We recommend that the States be given the maximum time possible for
implementing individual State programs and that the Department of Interior be prevented from
expanding federal staffing to implement and administer the provisions of such an Act where
States are diligently attempting to develop their own programs. Specifically, the final legislation
must recognize that some state legislatures meet every two years instead of annually including
Montana and North Dakota. Thus, in those instances where a state legislature may not be able to
act on their State program development for as long as two years, and such State does not have a
cooperative agreement as suggested above, the interim regulatory provisions must be permitted
to continue beyond the 24 month deadline for submission of a State program. This is needed so
as to avoid the implementation of a Federal program and the concomitant Federal staffing
buildup before a state legislature can act on developing their program.
71 ABANDONED MINE RECLAMATION
71 We strongly recommend that any abandoned mine reclamation provisions not be included
in federal strip mine legislation and be considered as separate legislation.The prerequisites of any
such legislation on abandoned mine reclamation should include the following:
71 Revenue for an abandoned mine reclamation fund be derived from a fee on all coal and
that such fee be in addition to royalties on federal coal.
71 All revenue in an abandoned mine reclamation fund be returned to the state in which it
was collected.
71 Priority expenditure for such money would be (1) for reclamation of abandoned coal
mines, (2) to amelioriate coal-related socio-economic impacts and (3) for reclamation of
abandoned non-coal mines. Other allowable uses of such money should be as specified in H.R.
2.
71 At the request of the Governor of a state with an approved reclamation program or with a
cooperative agreement with the Department of Interior, the state shall operate any abandoned
mine reclamation program contained in the legislation.
72 MINING OF FEDERAL COAL UNDER NON-FEDERAL SURFACE
72 We believe there needs to be protection of surface owners whose land contains federal
coal. However, we believe that the so-called "Mansfield Amendment," which prohibits surface
mining of all federal coal deposits which are under surface not owned by the federal government,
would be untenable to western states and in many instances be tantamount to halting coal
development.
72 ALLUVIAL VALLEY FLOORS
72 We recommend that final legislation contain the alluvial valley floor provisions found in
H.R. 2 rather than the provisions found in S. 7.
72 DESIGNATION OF LANDS UNSUITABLE FOR NONCOAL MINING
72 In keeping with the primary intention of Congress that this legislation be directed toward
the problems associated with coal mining operations, we recommend that any final bill not
contain the language of Title VI, of H.R. 2. This Title would permit the Secretary of Interior to
designate certain Federal lands as unsuitable for noncoal mining. This responsibility should rest
with the States, and in any case, should not be included in legislation of this nature.
72 BURDEN ON SMALL OPERATORS
72 We recognize the need for reducing the burdens certain regulatory requirements, such as
hydrologic tests, place on small mine operators. We believe that these burdens should be borne
by the entire coal industry and its ultimate consumers and should not be shifted to the state
regulatory authority.
72 FEDERAL MINERAL LEASE TERMS
72 In lieu of the language of section 523(b) of H.R. 2 and section 423(b) of S. 7 regarding
Federal mineral lease terms and conditions, we recommend that the requirements of such an Act
and the Federal lands program or the approved State program, whichever is applicable, must be
incorporated into any Federal mineral lease, permit, or contract involving surface coal
exploration, mining and reclamation.
72 FREQUENCIES OF MINE INSPECTIONS
72 While we well recognize the need for proper and timely inspection of mines to assure
compliance with the law, we believe that strip mine legislation should not require complete
inspections of every mine on an average of once per month. There needs to be flexibility in such
a requirement to permit a state to allocate its manpower effectively. Some mining operations
would not require a complete inspection on an average of once a month. Others may require
frequent inspections for certain recurring conditions, such as stream pollution. We recommend
that the final legislation require inspections no more frequently than an average of once per
calendar quarter.
72 INTERIM REGULATORY PROVISIONS
72 We recommend that the language of section 502(c) of H.R. 2 stating that operators must
comply with the interim regulatory provisions of the bill within one year of enactment be
included in the final legislation.
72 PERIOD FOR PERMIT APPLICATION
72 We recommend the language of section 402(e) of S. 7 stating that those expecting to
pursue coal mine operations after State program approval or Federal program implementation
must file a permit application within 20 months of enactment be included in final legislation.
Also, an Act should require that the application be processed within 6 months of State program
approval and not later than 30 months from enactment.
72 BOND RELEASE PROVISIONS
72 We support the language of H.R. 2 in section 519(g) permitting the regulatory authority to
establish an informal conference procedure to resolve objections to bond release in lieu of formal
transcribed hearings.
73 NEPA COMPLIANCE
73 We recommend that any final legislation not contain the language of section 502(d) of S. 7
and section 702(d) of H.R. 2 which require the completion of an environmental impact statement
prior to approval of a state program or commencement of a Federal program. This impact
statement requirement is not germane in light of the extensive procedures which must be
completed in a State's development and Interior's final approval of a State program. The same is
true for the development and implementation of a Federal program where a State does not submit
or is unable to obtain approval of a State program. As impact statements will be required on a
site-specific or regional basis regarding proposed federal coal lease sales, requiring an extensive
impact statement prior to program approval or implementation is unnecessary.
73 POSITION STATEMENT OF THE WESTERN GOVERNORS' REGIONAL ENERGY
POLICY OFFICE ON FEDERAL STRIP MINE LEGISLATION
73 We agree with the declaration and finding of Congress, as expressed in earlier and current
strip mine legislation that -
73 "Because of the diversity in terrain, climate, biologic, chemical, and other physical
conditions in areas subject to mining operations, the primary governmental responsibility for
developing, authorizing, issuing, and enforcing regulations for surface mining and reclamation
operations subject to this Act should rest with the States"
73 In order to accomplish this and other objectives of federal strip mine legislation we
believe that any final bill should provide the following.
73 STATE ADMINISTRATION
73 It is imperative that states retain responsibility for administering and enforcing coal mine
reclamation standards in order to adequately respond to unique conditions in each state, retain
continuity in enforcement of reclamation standards, avoid creating a new federal bureaucracy,
and avoid the problems of administering two standards within the same state (i. e., one for
federal land, one for other land).
73 Specifically, we recommend that any legislation provide that:
73 At the request of the Governor of a state, the Secretary shall enter into a cooperative
agreement with the state to provide state administration and enforcement of the provisions of the
Act, including the interim and final performance standards, regardless of whether such state has a
reclamation law as stringent or more stringent than such standards, provided that such state
demonstrates it has or will have the capability to administer and enforce such standards.
STATEMENT OF HON. J. BENNETT JOHNSTON, A U.S. SENATOR FROM
THE STATE OF LOUISIANA
73 Senator JOHNSTON. Mr. Chairman, this strip mining bill will not reduce the price
of coal, it will not increase the supply of coal, it will not help my State at all, it will not help most
States of this Nation at all.
73 Nevertheless, I have supported strip mining in the past. Indeed, last year, and in the last
Congress, it was my vote, or any one of our votes, that could be credited with saving the bill
because it passed in the conference committee at the eleventh hour by one vote.
73 I say that not because I want any credit for having saved this bill. Frankly, the less that is
known about that back home, probably the better off I will be politically. But I do mean to set
the scene, I think, for what this Congress has done recently apropos Senator Jackson's statement
we ought to balance the development with the environment. In my view this Congress, and the
last Congress, they have not balanced development with the environment. We haven't done a
darn thing for development. We have stopped development on the OCS off Alaska, we have
created a set of rules and laws whereby even in the midst of the worst winter and energy crisis in
years, we set the scene to stop OCS development off the Atlantic coast. Absolutely idiotic, in my
view.
74 It is time, I think, for this country to wake up and do something.
74 UNIDENTIFIED VOICE. Hear, hear.
74 Senator METCALF. This is a hearing, not a demonstration. I know many statements that
will be made will meet with the approbation of some of the audience and the disapproval of
others. I hope we will conduct this hearing without a cheering section on either side.
74 Please proceed, Senator.
74 Senator JOHNSTON. I appreciate the fact that one person said, hear. I suspect I don't
have many supporters out there.
74 Senator METCALF. I think you have quite a few, Senator.
74 Senator JOHNSTON. Nevertheless, Mr. Chairman, I do think it is time for us to wake up
and do something. I don't say that as setting the scene to oppose this bill. But I announced the
first day we brought the bill up that I thought we ought to achieve some kind of a balance, and I
think one of the balancing factors we ought to have, is to attach to this bill, coal slurry pipeline
legislation.
74 I don't know whether I would have the votes to sustain that kind of amendment, but I think
we ought to consider it. If we are going to utilize the coal we need to utilize in this country, and
everybody admits we do - President Carter said coal is the key to it, everybody says coal is the
key to it - then we are going to have to have a better transportation system than we have.
74 I think it is going to take all the railroads can do, together with the coal slurry pipeline, to
be able to move this coal. If we relied on the railroads alone I think the figures indicate we
would have to have some of these unit trains, 100 cars in length, passing every 15 minutes,
passing most railroad tracks. If that is not environmentally polluting, I don't know what is.
74 You are still going to have those units trains. You are still going to have a crash program
of building railroad cars and renovating tracks and all of those things, but I think we need to
consider this matter of utilization of coal in a most serious vein, and get on with providing a little
of that balance.
74 I don't think it is going to kill this bill, Mr. Chairman. I think if people like myself are
willing to vote for the bill and, indeed, willing to save it from extinction, I think we can pass it
overwhelmingly. I know the President will not veto it. I would appeal to, let's balance that
environmental consideration which is at the heart of this bill, with the need to develop energy
sources which this country badly needs.
74 Thank you.
74 Senator METCALF. I thank the Senator from Louisiana. The Senator from Louisiana
was most effective and probably the most persuasive of the conference committee because he
was objective in his approach to the legislation last time.
74 Of course, I know when we get to the markup of this legislation, he will be just as
effective as he has been in all of the legislation heretofore.
75 Senator Hatch, at the last meeting of the committee, propounded some inquiries to
Secretary Andrus, regarding the ICF report and his questions have been responded to by ICF,
EPA, and CEQ. Senator Hatch, as I understand it, was not satisfied with those responses. I will
hold a hearing on that specific problem so he and some of the others may have a chance to
inquire into those specific responses. But I would hope that matter would not interfere today
with the testimony of these important witnesses from all around the country.
75 I am delighted we have a more representative group here today on our committee that we
have had before. One of the problems we have had is passing national legislation which not only
affects Pennsylvania and Kentucky and other Eastern States, but also affects the Middle Western
States and the States of New Mexico, Arizona, and the Northern Great Plains four corners area.
This legislation has to be developed on a national basis.
75 So we have the Senator from New Mexico here. We have for the first time representatives
from some of the eastern seaboard here, and today we have distinguished witnesses from the
Appalachian area. Unless there is some other business before the committee, I will start calling
the witnesses.
75 The first witness will be Mr. Charles Schwab of the Hawkeye Elkhorn Coal Co. Senator
Ford, will you introduce Mr. Schwab?
75 Senator FORD. Mr. Chairman, Charlie Schwab is from the Hawkeye Elkhorn Coal Co.,
Pike County, Ky. It was the largest coal company in the United States. I am very pleased Mr.
Schwab is here today.
75 Mr. SCHWAB. Thank you, Mr. Chairman and Senator Ford. With me is Herman Regan
and Doug Griffin of Kenvirons, Inc., of Frankfort, Ky.They have been engaged by our
association to assist me in the technical aspects of the testimony to be prepared for today.
75 We have a prepared statement which I understand has been delivered to all of the
members of the committee.I have been asked to limit my remarks and that my testimony be put
into the record.
75 Senator METCALF. I will make an order now, applying to these three-day hearings: the
prepared statements will be incorporated into the record as if read. We will be delighted to hear
your summary and highlights, gentlemen.
STATEMENT OF CHARLES SCHWAB, PRESIDENT, HAWKEYE ELKHORN
COAL CO., ACCOMPANIED BY HERMAN D. REGAN, JR.; AND DOUGLAS C. GRIFFIN,
KENVIRONS, INC., FRANKFORT, KY.
75 Mr. SCHWAB. I would like to point out I have been asked to testify before you on
behalf of the Kentucky Independent Coal Producers Association, Inc., which represents the great
majority of the responsible small and medium size coal producers in Kentucky who produce
approximately two-thirds of the coal that is mined in that State.
75 My purpose here today is to urge your serious consideration of the suggested changes that
appear in the formal testimony which we have delivered to you. I would like to point out some
of those particular points and highlights as we go through the testimony.
76 Section 401 of the bill provides for the Secretary to promulgate regulations within 6
months of the date of enactment of the bill. So much of the effect of this legislation is dependent
upon those regulations, we cannot help but wonder if some work has not already been done on
those, and, if so, could we have that work so we might be more specific in directing our
questions to the effect this bill may have upon our industry.
76 We are particularly concerned with the time factors in section 402 of the bill, particularly
with regard to compliance of certain parts of section 415, some of the information that would be
required would be available for compliance, under section 402, simply does not exist. In its
absence, it will be necessary many of our operations shut down for a period of time during which
this data must be developed.
76 I am sure it is not the intent of this committee that this legislation result in an interruption
in the production of coal. I would ask your serious consideration of the suggested changes we
have made that would prevent this interruption in our operations.
76 I am going to ask Mr. Regan and Mr. Griffin to address the visual presentation that is on
exhibit here at this time.
76 Mr. REGAN. Mr. Chairman, we, too, will summarize. A written statement is
incorporated in the statement of Mr. Schwab.
76 Senator METCALF. Are you going to testify from that?
76 Mr. REGAN. Yes, sir. There is a copy in your handout.
76 Senator METCALF. Will you make a sufficient identification so that when the record is
printed it will contain the appropriate reference.
76 Go ahead.
76 Mr. REGAN. Thank you, Mr. Chairman, we will do that.
76 We are graphically showing on the chart, which is titled "Sequence of Events Relative to
Permitting Processes" what the small responsible operator faces under the terms of the act as it is
proposed.
76 Second, the purpose of our testimony is to highlight problem areas associated with
application requirements in two areas. One from the time it would take to do it; second, and/or
the availability, or lack of availability, of data required. We are speaking of sections 406 and
408, reclamation plan requirements. The chart depicts what the situation is when the operator
says to his engineer apply for a permit.
76 At that time, a field study to determine the baseline of the existing situation takes place.
That sets off a series of chain reactions on the chart starting with air quality and proceeding down
and finishing with aquatic information.
76 There are four areas we feel will present a problem, Mr. Chairman. They deal with air
quality, subsurface, the hydrologic requirements, and topography. At this time, with your
permission. I would like to ask Mr. Griffin, who is an engineer and a hydrologist, to speak to the
hydrology portion of that.
76 Mr. GRIFFIN. One of our primary concerns with the proposed Surface Mining Control
and Reclamation Act is required hydrologic studies. It is accepted such studies are highly
desirable.
76 However, the magnitude of the proposed requirements under current conditions presents
formidable - sometimes impossible - conditions for individual coal producers.
77 This short subsection of the bill presents an unreasonable approach to a hydrological
determination for the following reasons.
77 One: The required data does not exist.
77 Two: The time frame necessary to acquire the necessary data could vary from one to
several years, depending upon the interpretation.
77 Three: The cost of data acquisition would be vast.
77 Four: Any assessment of all anticipated mining in the area is virtually an impossible task
for an individual, independent producer seeking a permit in only one portion of the watershed
area.
77 The U.S. Geological Survey publication, "Water Resources Data for Kentucky - Water
Year 1975," shows 49 active flow measuring stations supplemented by approximately 30 more
low-flow partial or annual stage stations in the eastern Kentucky coal fields. These few stations
cover approximately 10,270 square miles. In contrast, most mine permits cover a relatively small
area, usually less than 100 acres, which is a much smaller area than is measured by any of the
existing stations.
77 In order to gather the seasonal data, a minimum of 1 year would be required and the
reliability of such short-term data would most certainly be open to question.
77 It is doubtful if any meaningful data could be derived from such a short record.
77 Time factors for obtaining required data are significant. This makes significant the
financial burden of gathering the data. Further, the requirements are based on the premise that
sufficient trained personnel are available to design the data collection programs and make the
necessary hydrologic determinations. This is a fallacy.
77 In reality, the number of engineers specifically trained in hydrology is quite limited. Many
of these are employed by governmental agencies involved in ongoing hydrologic programs and,
therefore, are unavailable to producers.
77 In summary, the requirements dictated in S. 7 create a situation which requires the
collection of data not heretofore assembled. It further creates unreasonable delay and cost factor
application preparations; and requires personnel levels in the field of hydrology which simply do
not exist.
77 Thank you.
77 Mr. REGAN. Thank you, Mr. Griffin. Now, Mr. Chairman, for the sake of time, to
briefly summarize, the purpose of the chart, the sequence of events are necessary. From the start
of the design of the baseline study until the issuance of a permit by the regulatory authority will
take 22 1/2 months, assuming we can obtain the data in the full area we are concerned about, and
subsurface topography and hydrologic in 1 vear's time. We are also assuming the term "within a
reasonable time" references the regulatory agency's action which is for a period of 60 days. The
22 1/2 months is further base on the assumption a public hearing will not be required.
77 If a public hearing is required, then we anticipate it would be 25 1/2 months before a
permit could be issued to an operator. We say these things; we don't like to compare other bills.
We don't. But we would not want to see something like 92-500, where the regulations were
brought virtually to a standstill on the municipal waste treatment facilities. We don't believe that
is the purpose of the act.
78 We appreciate the opportunity to present to you this time frame imposed on the operators
with the hope we can work out something that is mutually agreeable.
78 Mr. SCHWAB. Thank you, Herman. To go on from what you have heard from Herman
and Doug, it is obvious the perplexities of permitting under this act are far greater than those that
have been placed on our small-and medium-size operators in any State law, including Kentucky.
78 We are concerned our small operators may not be able to cope with the degree of
long-range planning that is provided by all of these detailed, indepth requirements of sections
407 and 408. We would urge your consideration of the necessity for all of these requirements,
and the depth to which the data is required in considering the effect upon the operator who is
operating off his kitchen table as a desk, who doesn't have the staff to send out into the field to
collect this data. He doesn't have the financial resources to go out and hire a consultant to go out
and collect the data for him.
78 One of the unfortunate parts of any kind of regulation, that regulation, in and of itself,
begets bigness. The more detail you require of our small operators, the more we force them out
of business and we put into the hands of the larger operators the responsibility for producing the
coal we are going to have to have to meet the Nation's energy needs.
78 We urge, again, your consideration for the necessity of all of these items.
78 We have heard it said here this morning that the balance between the environment and
production is the most important cutlass of this legislation. I would, again, urge you to consider
a fact that is irrefutable. That the mountaintop removal method of mining is the most advanced
technology that is known in the coal business today, that it produces the greatest resource
recovery with the least land area disturbance with the most probable environmental results of any
method of mining that we know at this time.
78 I would urge your reconsideration of that as an accepted mining practice, and remove it
from the variance consideration which makes it nearly impossible for the small operator because
of the immediate development requirements, the prefinance requirements of the variance
procedure as it presently is written.
78 Senator JOHNSTON. I didn't get that last part. Would you repeat that last part?
78 Mr. SCHWAB. The immediate development requirements of the variance procedure, and
the prefinance requirements of the procedure, are things that make it extremely difficult for our
small operators to cope with the variance procedure for achieving the variance required for
mountaintop removal.
78 I urge your consideration of that as an accepted practice, mining practice. We also would
like to see the variance procedure itself opened somewhat so that alternatives can be the subject
of the determination of the regulatory authority, whether that is the State authority or the Federal
authority. The variance procedure, as it is presently written, precludes, for all practical purpose,
any variance except that for mountaintop removal. We think there may well be alternative
methods accomplishing the results intended hereby, and we urge your consideration of opening
the door in the variance procedure for the regulatory authority to be entrusted with some degree
of judgment.
79 With regard to the all important subject of high walls, I am not going to suggest to you we
don't have the technology or the equipment to completely cover the high walls and restore to
original contour. This can be done, although at great additional cost.
79 I do suggest to you that there are circumstances, particularly in our area of eastern
Kentucky, where we are not blessed with the flat topography of Pennsylvania, where 90 percent
of their reserves occur under a 10-degree slope, where restoring to the original contour and
completely covering the high wall doesn't produce the best environmental result.
79 We would urge your consideration of the alternatives to completely covering the high
wall, that the regulatory authority be empowered to exercise its judgment in those instances
where there are alternative methods that do produce a better environmental result.
79 High-wall reduction with vegetation screening, in many instances, produces a much
greater result than completely covering the high wall. High-wall reduction and vegetative
coverage of the remaining portion of the high wall -
79 Senator JOHNSTON. Mr. Chairman, may I ask him what high-wall reduction is?
79 Mr. SCHWAB. High-wall reduction means reducing the amount of exposed high wall.
By that phrase, we mean if you have a 90-foot-high wall, for instance, perhaps you are going to
completely cover or reduce 60 or 80 feet of that high wall. That is what is meant by high-wall
reduction. You may very well cover the remaining part of the high wall by vegetative screening.
79 Senator METCALF. I am not sure we completely understand even now your proposition
for high walls. This is one of the crucial parts of this legislation, as it was in the last Congress. It
is a matter that has been debated in the House and the Senate and in the conference committee. I
would hope the Senator from Kentucky, who I know understands this matter very well, will, with
his questions and his assistance when we mark up this bill, help us in determining what we
should do in this problem of high walls.
79 We don't have the high-wall problem in Montana as part of contour mining. You don't
have it in the Four Corners area of New Mexico and Arizona, Senator Domenici. But we are
passing national legislation. So we are glad to have the aid and assistance of the Senator from
Kentucky when we consider this question.
79 Mr. SCHWAB. Senator, given time, we could talk all day on the subject of alternative
methods of handling the high-wall problem. High-wall reduction and vegetative covering is only
one means of handling the problem. It is obvious, spoil placement in a flat range, or terraced
area, where rainwater runoff does not result in high-velocity water, and, therefore, encourages
additional erosion, is a better way of handling the spoil problem than to put it on a steep slope
where the rain is going to wash it away and you are going to have the problem of erosion, and
you are going to have the problem of controlling that erosion during the vegetative period,
particularly.
80 So what we are saying is let the regulatory authority have the authority to exercise their
judgment to permit the alternative methods and circumstances in which they do, in fact, produce
a better environmental result.
80 In closing, I would like very much to extend an invitation to the committee and suggest
very strongly - but particularly with regard to some of the new members of the committee - that
you do entertain the concept of a field trip for the members of your committee, and we invite you
to come to Kentucky, particularly eastern Kentucky, so we can show to you the evolution and
reclamation that has taken place in our State as a result of the evolution of legislation, the State
control of environment and reclamation practices.
80 Thank you. I will entertain any questions.
80 Senator METCALF. Thank you. We are very pleased and honored to have the Senator
from Kentucky here. I am going to call on him to interrogate the witnesses.
80 Senator FORD. I appreciate the opportunity you are offering me to interrogate the
witnesses. I think from the question from the Senator from Louisiana, he does not understand
what a high wall is.
80 Senator JOHNSTON. I understand what a high wall is, but not a high-wall reduction.
80 Senator FORD. I think it might be in our best interest for him to understand the language
of the legislation, of what would happen, where they can ask questions, and where they can get
an answer about the day-to-day operation of coal mining. If they have questions, I would like to
answer their questions since I know the area very well. In fact, we had Secretary Andrus and
Chairman Udall of the House, and others - and I think the staff from this committee - in
Kentucky several weeks ago to look at the high wall and the hollow fill and some of the
high-wall reduction methods that are being used in Kentucky.
80 So I would like to yield to them if they have questions and then we can bring up these
points and mark up a bill, if that is all right with the chairman. I have a lot of questions I could
ask, but it would just be questions. I think I understand reasonably well.
80 Senator METCALF. Let me say again, we are very pleased to have you on the committee,
to have your help and support, to have your knowledge and experience as to Kentucky's situation.
We will rely on that.
80 Senator DOMENICI. With reference to your chart, your flow chart, this is your
interpretation of what a strip mining operation would have to do in order to initiate and complete
an application for a mining permit.
80 Mr. REGAN. That is correct, yes.
80 Senator DOMENICI. That is based upon which bill, the bill before us?
80 Mr. REGAN. Yes. That is based upon S. 7.
80 Senator DOMENICI. I want to say at the outset, I have sat in on a number of hearings on
the regulatory process and I commend you. I think it is indeed helpful to us to see in advance
what you assume you are going to have to go through in order to obtain a coal mining permit. I
don't think you ought to be very optimistic that any of the time frames within this bill are going
to be met.
81 I think, if anything, they are going to take longer than described here. Let me be a little
more specific. You mentioned in these four initial indepth studies that your principal concern is
that you cannot get them done in time. But you have not given the various reasons as to why this
is the case. Information is not readily available and that small operators perhaps cannot do them
at all.
81 But, you did not address whether or not the studies are needed.
81 Mr. GRIFFIN. I would like to answer that. We feel to some extent and to some degree a
hydrologic study is needed. This version of the bill calls for hydrologic study based on seasonal
flow data. It does not allow for utilization of existing data transferring data, loaded watersheds,
or making use of any other accepted practice. It calls for measured data.
81 We feel this is one of the strict time factors that must be overcome. The governmental
agencies who have normally collected such data have concentrated largely on larger watersheds
where the impact is they get more data for the money they spend. We are now talking a whole
different ball game on very small watersheds.
81 There is some question about whose responsibility it is to collect such general data, where
the responsibility might fall.
81 Senator DOMENICI. Who regulates strip mining in your State now?
81 Mr. SCHWAB. The Department of Natural Resources and Environmental Protection.
81 Senator DOMENICI. Of the State?
81 Mr. SCHWAB. Of the State of Kentucky.
81 Senator DOMENICI. Is this a rather new law?
81 Mr. SCHWAB. The law is not so new. It has had many changes in regulations under the
law each year as new practices have been developed and techniques have been developed and
improved, the reclamation practices within the State.
81 Senator DOMENICI. Do you happen to have a similar flow chart showing how you
happen to obtain a permit in the State of Kentucky?
81 Mr. REGAN. The flow chart for the Commonwealth of Kentucky, Senator, is entirely
different from that. You have to prepare a map of the area, then submit your mining plan
showing the location of your sedimentation structure. That is about the size of it. You do not
have to do an environmental assessment, if you will, premining, before you start mining.
81 Senator DOMENICI. Is it adequate in your opinion?
81 Mr. REGAN. Is it adequate?
81 Senator DOMENICI. Is the permit system and the regulation in your State adequate to
protect the various items that this bill intends to protect?
81 Mr. REGAN. The permit requirements in the Commonwealth of Kentucky are added to
protect or intended to protect water property and land use. Will it meet all the requirements of
this act? No, sir; it will not.
81 Senator DOMENICI. Are the added requirements of this act, in your opinion, needed to
protect the Commonwealth of Kentucky or the surrounding States?
82 Mr. REGAN. I think some added requirements are needed to do an assessment before you
start mining. We would call it a mini or small assessment. Not necessarily in the depths you are
calling for in the act. Otherwise, you cannot know what impact you are going to have upon the
environment when you finish your mining.
82 Senator DOMENICI. Do you people representing the Kentucky Independent Coal
Producers support this bill or not?
82 Mr. REGAN. Are we in favor of the bill?
82 Senator DOMENICI. Yes.
82 Mr. REGAN. We are in favor of the intent of the bill. But we are in favor of the bill as
written. We support the suggestions made by Mr. Schwab for amendment. They are contained
in Mr. Schwab's testimony. We, as engineers, and environmental engineers, can support those.
82 Senator DOMENICI. You talked about how long it is going to take for these small
operators. Do you have any estimate as to how much it is going to cost a small operator to
comply?
82 Mr. SCHWAB. Senator, if I may answer that question, there is some data contained in the
very highly publicized ICF report on that subject. For the eastern part of Kentucky, the cost of a
new permit is estimated to be $33,450.
82 This takes into account the test drilling, the hydrologic assessment, and the cross section
maps only. These are incremental costs over and above the costs now required by Kentucky law
in accordance with the ICF report.
82 Senator METCALF. How much does Kentucky law require? How much does that
presently cost?
82 Mr. SCHWAB. I don't have that data in this report to give to you. It is quite minimal,
however, since the requirements basically are things you can do yourself and not have to go out
and have these technologists do for you. It is when you get into the core drilling aspect, and
particularly the core drilling aspect is an important part of it, the hydrologic assessment is the
major part of the cost as reported in the ICF study.
82 Senator METCALF. Unless there is some objection, would you give us an estimate of
how much it would cost under Kentucky law to get that data?
82 Mr. SCHWAB. We would be glad to get that figure for you.
82 [Subsequent to the hearing the following information was received:]
82 KENVIRONS, INC., Frankfort, Ky., May 31, 1977.
82 Re: Requested Supplemental Information regarding cost of meeting the Permit
Requirements for Core Drilling and Hydrologic Studies as outlined in S. 7.
82 Senator LEE METCALF,
82 Chairman, Subcommittee, Minerals, Materials and Fuels, Senate Energy Committee,
Dirksen Building, Washington, D.C.
82 DEAR SENATOR METCALF: Prior to listing the cost of meeting the above referenced
requirements, I must emphasize that to obtain exact and true cost figures for these areas, or for
that matter any other permit requirement of S. 7, is impossible to accomplish at this time.
(Regulations will have to be written before an accurate cost estimate could be attempted.) For
this reason any cost figures contained in this correspondence must be considered to be gross
estimates.
82 The following asumptions were used in developing the estimated cost of core drilling and
hydrologic study requirements proposed in S. 7:
82 1. Average surface mine permit in Kentucky covers 40-50 acres.
83 2. Core drilling regulations could require a minimum of one (1) core per acre.
83 3. Depth of core drilling will average 80-500 feet. (In order to meet hydrologic
requirements, this depth could be greater than 500 feet.)
83 4. A meteorological station consisting of wind direction, speed, temperature, rainfall, etc.
would be located on the site to insure that site specific data was obtained.
83 5. Flow monitoring station or stations would be required in order to obtain site specific
data.
83 6. Water quality monitoring stations would be required above, below and in the permit
area.Samples would be collected at least twice per month and analyzed for iron, total suspended
solids, pH, and total manganese.
______________________________________________________________________________
__
*2*Estimated costs:
1. Core drilling - $10 to $15 per
foot. Cost per acre (1 core 80 to 500
ft. deep) $8 00 $7,500
2. Meteorological station - Cost per
station $2 ,000 5,000
3. Flow monitoring station (continuous
flow) - Cost per station (depending
upon size of stream, flow, etc.) 1,000-25,000
4. Water quality sampling - For 4
parameters listed $2 0 to $30 per
sample. Say $2 5 per sample. For 3
samples twice a month equals (per year) 1,800
In summary the cost for a 40-acre permit in Kentucky based upon the assumptions
listed in this document range as follows:
Core drilling $32,000 to $300,000
Meteorological station 2,000 to 5,000
Water quality 1,800 to unknown
Flow monitoring station n1 1,000 to 25,000
Total n2 36,800 to 330,000
______________________________________________________________________________
__
83 n1 Cost of 1 flow monitoring station. Might need more than 1.
83 n2 Totals do not include cost of core analysis and cost of personnel to operate and
maintain equipment, write reports, and collect data.
83 If you should have any questions regarding this matter, please do not hesitate to contact
me.
83 Sincerely,
83 HERMAN D. REGAN, Jr., P.E., President.
83 Senator DOMENICI. I will yield to the other Senators. I do have some more questions
later.
83 Senator JOHNSTON. Mr. Chairman, I am particularly sensitive to what he said about the
small operators. We in the Congress have, on the one hand, always spoken little homilies about
the virtues of small business, small businessmen, and the evils of big business.
83 Then, on the other hand, we come in and put in OSHA regulations and every other kind of
regulation, including now strip mining regulations, which would have precisely the opposite
effect of running the small man out of business. I don't know precisely what the mechanism is by
which we ought to take care of the small operators, let him survive, but at the same time let him
have some protection, some preassessment here which apparently State law has not provided for.
83 What would you suggest, a different set of rules for the small miners? Or how would you
suggest we deal with that?
83 Mr. SCHWAB. We have suggested in our formal testimony that the responsibility for
developing this data for those operators whose estimated production is contemplated to be less
than 250,000 tons a year be borne by the regulatory authority. That the cost be borne by the
regulatory authority. That still doesn't solve the time problem, and that still exists.
84 There must be some means of getting into the act of permitting production to go forward,
even though it is required and paid for by the regulatory authority.
84 That is contained in the testimony.
84 Senator JOHNSTON. That, frankly, does not appeal to me that much. How do you tell if
it is 250,000 tons? Or who makes that estimate?
84 Mr. SCHWAB. The determination would be made by the regulatory authority as to
whether the applicant did qualify under that estimated production criteria.
84 Senator JOHNSTON. Probably if he is right under, he pays nothing; if he is right over, he
pays everything.It looks like we could find a better way to do it than that. You mentioned in your
testimony a minute ago you might have a mini assessment, not a full-blown assessment with 105
boxes on it, but maybe one with 50 boxes on it; is that what you had in mind?
84 Mr. SCHWAB. That certainly is an alternative. It certainly would be an alternative, as
Mr. Griffin has suggested in connection with the hydrologic studies, that there be a correlation of
existing data or an application of existing data to this particular permit area, as opposed to the
requirement of collection of specific data for a specific stream, a specific area. These are also
accepted hydrologic practices and are alternatives in that area that would cut down on the time,
cut down on the expense that would be incurred by the small operator.
84 Senator JOHNSTON. I think we need to do some creative thinking to take care of that
small operator. If that chart is correct over there, the little man is not going to be able to do it.
The big huge corporate combines can do it, but not the little one.
84 I think there is a real place for the little man. I understand most of your mining in
Kentucky is done by relatively small operators; is that correct?
84 Mr. SCHWAB. That is correct. It is about one-third of the production in the State of
Kentucky that comes from operators who employ less than 20 men per mine. There is another
third that comes from mines that employ less than 200 miners, and only one-third that comes
from mines that employ more than 200 men.
84 Senator JOHNSTON. You referred in your earlier testimony to mountaintop mining to be
a very environmentally sound kind of mining. That is where they just lop off the top of a
mountain, isn't it?
84 Mr. SCHWAB. That is correct.
84 Senator JOHNSTON. Under the existing bill that is to be done by special variance?
84 Mr. SCHWAB. That is correct.
84 Senator JOHNSTON. You are suggesting they have the right to do it, or the variance
procedure be expedited, or what was it you were saying?
84 Mr. SCHWAB. I am suggesting mountaintop removal be accepted from the variance
procedure.
84 Senator JOHNSTON. It is my understanding the Kentucky mountain top removal gives
you good flat land on that mountain top which is more valuable than having it returned to its
original contour?
85 Mr. SCHWAB. That certainly is the case, Senator.
85 Senator JOHNSTON. You also testified that high-wall reduction is preferable to restoring
to the original contour because of the erosion problem that comes when you are trying to restore
to the original contour; is that correct?
85 Mr. SCHWAB. That is correct in some situations.
85 Senator JOHNSTON. Once you have the revegetation that sets in, the restoration to
original contour would be preferable, would it not? Or would it?
85 In other words, I am trying to find out why it is preferable?
85 Mr. SCHWAB. The restoration to original contour does not permit alternative utilization
of the land. In eastern Kentucky flatland is so scarce, you could have a spoil storage on the
bench, as a level storage area, and utilize that for the production of grasses for the grazing of
cattle, for future developments of housing areas which has and is being done, where these areas
occur adjacent to cities, adjacent to developments now. These are alternative land uses that are
all very important to the landowner in our area. He would like very much to have flat land
instead of the contour on which he can grow nothing but trees again.
85 Senator JOHNSTON. I understand they are planting grapes for wine on some of these?
85 Mr. SCHWAB. That is being done, too.
85 Senator FORD. May I make a point or two? Time is running out and we need to get to
others. I want to ask this question. First, I want everyone to understand we are talking about
high Btu, lowsulfur coal, probably the best burning coal in the United States comes from this
area. The coal is used in order to meet certain standards.
85 How many hydrologists do we have in Kentucky?
85 Mr. SCHWAB.It really is impossible to make a determination.
85 Senator FORD. How many practicing hydrologists do we have?
85 Mr. GRIFFIN. I would hesitate to make an estimate. It is not a large number.
85 Senator FORD. Would you say there is less than 10?
85 Mr. GRIFFIN. Outside the governmental agencies? There might be 10.
85 Senator FORD. Outside the governmental agencies you would be lucky to have 10
practicing hydrologists?
85 Mr. GRIFFIN. Probably.
85 Senator FORD.In trying to compare the two bills, we have one going on in the House and
one going on here, the Senate version, S. 7, a provision applies to a royalty on Federal coal. How
much Federal coal do we have in Kentucky?
85 Mr. SCHWAB. None that I know of.
85 Senator FORD. There wouldn't be any chance of that coming back to us; if those funds
come back to us it would come back from States that do have Federal coal?
85 Mr. SCHWAB. That is my understanding.
85 Senator FORD. In the House bill, it gives the estimate of 250,000 tons or less per year
produced by an operator makes him a small operator; am I correct on that?
85 Mr. SCHWAB. That is correct.
86 Senator FORD. Am I also correct the royalties that are collected would go to the State
regulatory agency, at least a portion of that, and they, in turn, would pay for the necessary work
for permitting the small operator?
86 Mr. SCHWAB. That is what is intended under the House bill.
86 Senator FORD. What is your time frame? What is your time frame as to when that
permitting should be completed under the House bill?
86 Mr. SCHWAB. There is no time limit in the House or Senate bill
86 Senator FORD. If anybody is doing it for you, the time frame, it could go on forever?
86 Mr. SCHWAB. That is right.
86 Senator FORD. When your hydrologists make your studies, would it not be possible to
have more than one watershed in a permitted area?
86 Mr. SCHWAB. That is possible, yes.
86 Senator FORD. Kentucky is supposed to be known as one of the best map States in the
Union. Is there any mapping now we have available to give you any help at all?
86 Mr. SCHWAB. There are maps that would have to be updated.
86 Senator FORD. They would have to be updated in this study?
86 Mr. SCHWAB. Yes.
86 Senator FORD.Does the bill allow you to go to other materials already developed, or do
you have to develop from scratch?
86 Mr. SCHWAB. In most instances you would be required to develop your own material.
86 Senator METCALF. We are delighted to have the Senator from Colorado here. We have
had testimony from the Kentucky witnesses. You did not have a chance to hear them, but do you
have any questions?
86 Senator HASKELL. No, I do not, Mr. Chairman. I apologize to the witnesses for not
being here to hear them. As you say, I have been supplied with written copies of their testimony.
86 Senator METCALF. Mr. Schwab, you will be well represented in the markup of this bill
by the Senator from Kentucky, and I know of no better advocate.
86 [The prepared statements of Mr. Schwab, Mr. Regan, and Mr. Griffin follow:]
87 TESTIMONY OF CHARLES F. SCHWAB PRESIDENT HAWKEYE ELKHORN
COAL CO., INC. PIKEVILLE, KENTUCKY ON S. 7 "SURFACE MINING CONTROL AND
RECLAMATION ACT OF 1977" BEFORE SUBCOMMITTEE ON MINERALS,
MATERIALS, AND FUELS COMMITTEE ON INTERIOR AND INSULAR AFFAIRS
UNITED STATES SENATE MARCH 1, 1977
87 I AM CHARLES F. SCHWAB, PRESIDENT OF HAWKEYE ELKHORN COAL CO.,
INC. OF PIKEVILLE, KENTUCKY. I HAVE BEEN ASKED TO TESTIFY BEFORE YOU
ON BEHALF OF KENTUCKY INDEPENDENT COAL PRODUCERS ASSOCIATION, INC.
WHICH REPRESENTS THE GREAT MAJORITY OF THE RESPONSIBLE SMALL AND
MEDIUM SIZE COAL PRODUCERS IN KENTUCKY.
87 THIS SUBCOMMITTEE HAS SPENT MANY YEARS DRAFTING AND REFINING
THE PROVISION OF S.7, AND IS TO BE COMMENDED FOR ITS DEDICATION TO
THESE AVOWED PURPOSES. IN THESE TIMES OF ENERGY CRISIS IT IS OF VITAL
IMPORTANCE TO ADDRESS WITH ALL OF OUR SKILLS THE PROBLEMS RELATED
TO PROVIDING AN ABUNDANT AND ECONOMIC CUPPLY OF ENERGY TO ASSURE
THE STRENGTH AND CONTINUED ECONOMIC GROWTH OF THE NATION AND
AVOID THE RECURRANCE OF THE COSTLY ECONOMIC AND HUMAN
CONSEQUENCES OF THE WINTER OF '77.
87 I WOULD LIKE TO MAKE CLEAR AT THE OUTSET THAT I AM NOT HERE
TODAY TO OPPOSE THE ENACTMENT OF FEDERAL STRIP MINE LEGISLATION;
HOWEVER, WE DO STRONGLY URGE YOUR SERIOUS CONSIDERATION OF THE
AMENDMENTS WHICH WE WILL PROPOSE IN DETAIL LATER IN THIS TESTIMONY.
IT IS ABUNDANTLY CLEAR SUCH LEGISLATION WILL BE ENACTED BY THE 95TH
CONGRESS. ON THE WHOLE, S.7 REPRESENTS CRITERIA WITH WHICH OUR
SEGMENT OF THE INDUSTRY CAN LIVE; HOWEVER, THE COST OF OUR
OPERATIONS WILL BE SIGNIFICANTLY INCREASED. MY PURPOSE HERE TODAY IS
TO EXPLORE WITH YOU CERTAIN ALTERNATIVES TO SOME OF THE PROVISIONS
OF THE BILL WHICH WOULD ENABLE THE RESPONSIBLE SMALL AND MEDIUM
SIZE OPERATORS TO BETTER COMPLY WITH THE REQUIREMENTS OF THE ACT
WITHOUT ANY ADVERSE AFFECT ON THE ENVIRONMENTAL RESULT EXPECTED
FROM THIS LEGISLATION.
88 DURING THE YEAR 1976, KENTUCKY ISSUED 1,333 UNDERGROUNG MINING
PERMITS, AND 1,667 SURFACE MINING PERMITS AFFECTING A TOTAL OF 40,000
SURFACE ACRES. THIS IS MORE PERMITS AND MINED ACRES THAN THE
COMBINATION OF ANY TWO OTHER STATES.
88 DURING THE YEAR, 1976, KENTUCKY PRODUCED MORE THAN 140 MILLION
TONS OF COAL.APPROXIMATELY ONE-THIRD OF THIS COAL WAS PRODUCED BY
39 MINES EMPLOYING MORE THAN 200 MEN PER MINE. THE TWO-THIRDS
MAJORITY OF KENTUCKY'S PRODUCTION WAS FROM 2,300 MINES EMPLOYING
LESS THAN 20 MEN PER MINE PRODUCING 46 MILLION TONS AND THE BALANCE
OF 50 MILLION TONS FROM THE MEDIUM SIZE MINES EMPLOYING 20 TO 200 MEN
PER MINE. I AM HERE SPEAKING ON BEHALF OF THE MAJORITY OF THE
RESPONSIBLE OPERATORS OF THIS SMALL TO MEDIUM SIZE WHO PRODUCE
TWO-THIRDS OF KENTUCKY'S COAL. THE COMPANY WHICH I OPERATE IS
AMONG THIS MEDIUM SIZE GROUP EMPLOYING APPROXIMATELY 50 MEN AND
PRODUCING ABOUT 500,000 TONS OF COAL PER YEAR. OUR COMPANIES ARE FOR
THE MOST PART HOME-OWNED, FINANCED AND OPERATED IN OR NEAR THE
COUNTIES IN WHICH WE LIVE. WE ARE MINING ON LAND OWNED BY OUR
NEIGHBORS AND FEEL A COMMUNITY SENSE OF RESPONSIBLILITY TO CONDUCT
OUR OPERATIONS IN A MANNER THAT RECOGNIZES THE INTERESTS OF OUR
NEIGHBORS. MOST OF OUR COMMUNITIES ARE LARGELY DEPENDENT UPON THE
CONTINUED MINING OF COAL FOR THEIR ECONOMIC WELL-BEING. OUR
RESPONSIBLE SMALL AND MEDIUM SIZE COMPANIES WANT TO CONTINUE TO BE
A PART OF OUR COMMUNITIES' ECONOMIC STABILITY.
88 I WOULD NOW LIKE TO DISCUSS WITH YOU CERTAIN ASPECTS OF S.7
ABOUT WHICH WE ARE UNCERRTAIN OR WISH TO COMMENT. THESE WILL BE
DISCUSSED IN NUMERICAL ORDER AS THEY OCCUR IN THE BILL.
89 SECTION 401 REQUIRES THE SECRETARY TO PROMULGATE REGULATIONS
WITHIN 180 DAYS OF ENACTMENT.SO MUCH OF THE EFFECT OF THIS
LEGISLATION IS DEPENDENT UPON THE INTERPRETATION AND
IMPLEMENTATION UNDER THE REGULATIONS WE CANNOT HELP BUT ASK IF
THESE HAVE NOT ALREADY BEEN DRAFTED AND IF SO SHOULD WE NOT BE
PERMITTED TO HAVE THESE IN ORDER THAT OUR QUESTIONS MIGHT MORE
CLEARLY BE FOCUSED.
89 SECTION 402 (b) and (c) REQUIRE SPECIFIC COMPLIANCE ON SPECIFIC
DATES.WITH REGARD TO COMPLIANCE WITH CERTAIN PARTS OF SECTION 415,
PARTICULARLY SECTION 415(b)(10) WHICH WILL BE DISUSSED IN GREATER
DETAIL LATER, THE DATA REQUIRED FOR COMPLIANCE IS IN MOST CASES
SIMPLY NOT AVAILABLE WHICH WOULD REQUIRE A CESSATION OF OPERATIONS
UNTIL SUCH DATA COULD BE DEVELOPED IF STRICT COMPLIANCE WITH THE
WRITTEN WORD OF THE ACT IS REQUIRED. SURELY THIS IS NOT INTENDED.
SOME LATITUDE SHOULD BE AFFORDED THE REGULATORY AUTHORITY TO
PERMIT COMPLIANCE AS PROMPTLY AS PRACTICABLE AFTER THESE DATES
UPON DEMONSTRATION BY THE PERMITTEE OF MEANINGFUL EFFORT TO
COMPLY. SURELY THE REGULATORY AUTHORITY CAN BE ENTRUSTED WITH THE
RESPONSIBILITY FOR DETERMINING REASONABLE ABILITY TO COMPLY FOR THE
INTERIM PERIOD UNTIL THE STATE PROGRAM HAS BEEN APPROVED OR THE
FEDERAL PROGRAM IMPLEMENTED.
89 IT IS ALSO NOTED THAT 402(b) REQUIRES COMPLIANCE FOR NEW PERMIT
APPLICATIONS ON AND AFTER THE DATE OF ENACTMENT. SINCE THE
REGULATIONS NEED NOT BE PROMULGATED FOR 180 DAYS AFTER ENACTMENT,
THIS WOULD REQUIRE COMPLIANCE PRIOR TO THE AVAILABILITY OF THE
REQUIREMENTS TO BE SET FORTH BY REGULATION. FOR ACTIVE
PRE-ENACTMENT PERMITS, COMPLIANCE IS REQUIRED ONE AND ONE-HALF
MONTHS BEFORE ISSUANCE OF THE REGULATIONS. THIS, TOO, WE FEEL IS NOT
INTENDED. WE RECOMMEND THE FOLLOWING:
89 SECTION 402(b) LINE 9, P. 30 - AFTER THE WORD "AFTER" INSERT "SIX
MONTHS FROM."
89 SECTION 402(c) LINE 15, P. 30 - DELETE "ONE HUNDRED AND THIRTY-FIVE,
INSERT "ONE YEAR."
90 SECTION 406(d)(1) REQUIRES A PUBLIC HEARING PRIOR TO THE ISSUANCE
OF A PERMIT RENEWAL. IT IS UNCLEAR THE CONDITIONS UNDER WHICH SUCH A
PUBLIC HEARING IS TO BE HELD OR THE SUBSTANTIVE RESULT EXPECTED OF
SUCH A HEARING. THE REQUIREMENTS OF 406(d)(1)(A) THROUGH (E) HAVING
BEEN MET THERE SEEMS NO PURPOSE LEFT TO BE SERVED BY A PUBLIC
HEARING AND WE URGE YOUR RECONSIDERATION OF THIS SEEMINGLY
NEEDLESS REQUIREMENT.
90 I WOULD NOW LIKE TO INTRODUCE TO YOU MR. HERMAN REGAN,
PRESIDENT OF KENVIRONS, INC., AN ENVIRONMENTAL ENGINEERING AND
CONSULTING FIRM OF FRANKFORT, KENTUCKY WHO HAVE BEEN ENGAGED BY
OUR ASSOCIATION TO ASSIST IN THE ENGINEERING ASPECTS OF MY TESTIMONY.
WE HAVE ASKED MR. REAGAN TO PREPARE A VISUAL PRESENTATION OF THE
PERMITTING REQUIREMENTS OF SECTIONS 407 AND 408.
90 MR. REAGAN.
90 PRESENTATIONS OF HERMAN REAGAN AND DOUG GRIFFIN.
90 IT IS CLEAR FROM WHAT YOU HAVE JUST SEEN AND HEARD THAT
SECTIONS 407 AND 408 REQUIRE A MUCH GREATER DEGREE OF LONG RANGE
PLANNING EMCOMPASSING MORE AREAS OF ACTIVITY THAN HERETOFORE
UNDERTAKEN BY THE REQUIREMENTS OF MOST EXISTING STATE LAWS
INCLUDING THAT OF KENTUCKY. WHILE ALL OF THESE AREAS NEED BE OF
CONCERN WITH REGARD TO THE TOTAL ENVIRONMENTAL IMPACT OF MINING, IT
IS DOUBTFUL THAT OUR SMALL OPERATORS WILL BE ABLE TO COPE WITH THIS
LEVEL OF PLANNING.
90 IT IS AN UNFORTUNATE FACT OF INCREASED REGULATION THAT IN AND
OF ITSELF IT BEGETS BIGNESS. THE SMALL INDEPENDENT BUSINESSMAN IN
COAL OR ANY OTHER BUSINESS SIMPLY IS UNABLE TO COPE WITH THE
COMPLEXITIES OF SUCH INCREASED REGULATORY REQUIREMENTS AND GIVES
UP IN FAVOR OF THE LARGER OPERATOR WHO HAS THE STAFF AND/OR THE
CAPITAL TO EMPLOY SPECIALISTS CAPABLE OF GENERATING THE DATA WITH
WHICH TO COMPLY.
91 WE DO NOT QUESTION THE NEED TO TREAT IN SOME DEGREE EACH OF THE
REQUIREMENTS SET FORTH IN SECTIONS 407 AND 408, WE WOULD URGE YOU IN
GOOD CONSCIENCE TO RE-EXAMINE THE NEED FOR THE DETAIL AND DEPTH OF
THE REQUIREMENTS AND TO BE SURE THAT THE LOSS OF MANY OF THE
RESPONSIBLE SMALL OPERATORS IN THE INDUSTRY IN FAVOR OF BIG
OPERATORS IS TRULY NECESSARY TO ACHIEVE THE AVOWED GOALS OF
ENERGY CONSERVATION AND PRODUCTION BALANCED AGAINST
ENVIRONMENTAL PROTECTION. WE SINCERELY HOPE YOU WILL SEARCH YOUR
CONSCIENCE FOR A LESS COMPLEX SOLUTION TO THE REQUIREMENTS OF
ENVIRONMENTAL PROTECTION.
91 IN ORDER TO PROVIDE AT LEAST SOME MEASURE OF RELIEF FROM THE
OVERPOWERFUL FINANCIAL BURDENS IMPOSED UPON THE SMALL OPERATOR
BY THIS SECTION, WE PROPOSE THE FOLLOWING ADDITIONAL SUBSECTION TO
SECTION 407:
91 LINE 5, P. 52 - IF THE REGULATORY AUTHORITY FINDS THAT THE PROBABLE
ANNUAL PRODUCTION OF ANY COAL SURFACE MINING OPERATOR WILL NOT
EXCEED 250,000 TONS, THE DETERMINATION OF HYDROLOGIC CONSEQUENCES
REQUIRED BY SUBSECTION (b)(11) AND THE STATEMENT OF THE RESULT OF TEST
BORINGS OR CORE SAMPLINGS REQUIRED BY SUBSECTION (b)(15) OF THIS
SECTION SHALL BE PERFORMED BY THE REGULATORY AUTHORITY, OR SUCH
QUALIFIED PUBLIC OR PRIVATE LABORATORY DESIGNATED BY THE
REGULATORY AUTHORITY AND THE COST OF THE PREPARATION OF SUCH
DETERMINATION AND STATEMENT SHALL BE ASSUMED BY THE REGULATORY
AUTHORITY.
91 SECTION 409(a) ESTABLISHES A MINIMUM BOND REQUIREMENT OF $1 0,000.
THIS MINIMUM WILL CREATE A HARDSHIP FOR THE SMALL AND MEDIUM SIZE
OPERATOR WHEN COUPLED WITH THE 60 PERCENT RELEASE PROVISION OF
SECTION 419(c)(1) AND THE FIVE YEAR REVEGETATION MINIMUM TERM
PROVISION OF SECTION 415(b)(20). WE URGE RECONSIDERATION OF THE
MINIMUM BOND REQUIREMENT FOR THOSE OPERATORS WHOSE PRODUCTION IS
EXPECTED TO BE LESS THAN 250,000 TONS PER YEAR.
92 SECTION 509 CONTAINS NO APPARANT RELIEF FROM THE DECISION OF THE
REGULATORY AUTHORITY WITH REGARD TO THE AMOUNT OF BOND TO BE
REQUIRED FOR ANY GIVEN PERMIT APPLICATION. IT WOULD SEEM THAT IN THE
ABSENCE OF STATED PER ACRE AMOUNTS OR AN UPSET PER ACRE LIMIT THERE
SHOULD BE SOME APPEAL PROVISION TO AFFORD THE APPLICANT SOME
REMEDY IN THE EVENT OF A QUESTIONABLE BOND AMOUNT BEING SET BY THE
REGULATORY AUTHORITY.
92 SECTION 410(a) IS SILENT WITH REGARD TO THE TIME BY WHICH A PERMIT
APPLICATION WILL BE GRANTED OR DENIED. WE UNDERSTAND THE DIFFICULTY
IN SETTING A SINGLE RESPONSE PERIOD DUE TO THE WIDE VARIATION IN
REVIEW TIMES. HOWEVER, IN THE ABSENCE OF A SPECIFIED TIME, PERHAPS
"WITHIN A REASONABLE TIME" COULD BE INSERTED AFTER THE WORD GRANT
ON PAGE 57, LINE 23. THIS CHANGE WOULD BE CONSISTENT WITH THE
LANGUAGE OF SECTION 414(b) WHICH MORE CLEARLY SETS FORTH THE
OBLIGATION OF THE REGULATORY AUTHORITY TO RESPOND WITHIN A
REASONABLE TIME. IT IS INTERESTING TO NOTE SECTION 414(a) REQUIRES A
RESPONSE WITHIN THIRTY DAYS IN THE EVENT A PUBLIC HEARING HAS BEEN
REQUIRED.
92 SECTION 415(b)(1) AND (2) SETS FORTH THE BASIC PURPOSES OF THIS
LEGISLATION, I.E. MAXIMIZE THE RECOVERY OF THE SOLID FUEL RESOURCE AND
RESTORE THE LAND AFFECTED SO AS TO SUPPORT AT LEAST THE SAME BUT
PREFERRABLE HIGHER OR BETTER USES. THERE IS NO KNOWN MINING METHOD
THAT MORE DIRECTLY MEETS THESE REQUIREMENTS THAN THE COMPLETE
MOUNTAIN TOP REMOVAL METHOD OF MINING WITH SPOIL OR WASTE STORAGE
IN HEAD-OF-HOLLOW OR VALLEY FILL AREAS.
92 MOUNTAIN TOP REMOVAL IS JUST WHAT THE NAME IMPLIES - COMPLETE
REMOVAL OF ALL OVERBURDEN PERMITTING SUBSTANTIALLY COMPLETE
RECOVERY OF ONE OR MORE SEAMS OF COAL WITH A RESULTING LEVEL OR
GENTLY ROLLING AREA CAPABLE OF SUPPORTING MANY ALTERNATIVE
AGRICULTURAL, COMMERCIAL, RESIDENTIAL OR RECREATIONAL USES IN THE
FUTURE. THIS MINING METHOD PERMITS RECOVERY OF MANY SEAMS OF COAL
NOT MINEABLE BY ANY OTHER METHOD BECAUSE OF SUCH FACTORS AS SEAM
HEIGHT OR INADEQUATE ROOF CONDITIONS TO SUPPORT UNDERGROUND
MINING. NO MINING TECHNOLOGY PERMITS A HIGHER RECOVERY OF IN-PLACE
RESOURCE.
93 OVERBURDEN OR SPOIL IS STORED IN OFFSITE AREAS DESIGNED AND
ENGINEERED TO ASSURE STABILITY OF THE WASTE MATERIALS. A SOLID
UNDISTRUBED BERM IS LEFT AT THE OUTER EDGE OF THE DISTURBED AREA TO
PREVENT FUTURE EROSION. THESE TECHNIQUES COMBINE TO ACHIEVE THE
MOST DESIRABLE ENVIRONMENTAL RESULT OF ANY MINING METHOD.
93 THE MOUNTAIN TOP REMOVAL METHOD IS TREATED IN S.7 ONLY AS A
VARIANCE WITH MOST RIGID REQUIREMENTS TO DEMONSTRATE CURRENT
ALTERNATIVE USES FOR THE LEVEL LAND SO RESULTING INCLUDING A
PRE-FINANCED PLAN FOR IMMEDIATE DEVELOPMENT. THESE REQUIREMENTS
FAIL TO RECOGNIZE THAT MUCH OF THE RESOURCE TO BE RECOVERED DOES
NOT LIE ADJACENT TO EXISTING DEVELOPMENTS WITH ELECTRICITY, WATER,
AND SEWAGE FACILITIES READILY AVAILABLE, BUT RATHER OCCUR IN
OUTLYING AREAS WHERE DEVELOPMENT MAY BE SOME YEARS IN THE FUTURE.
THE PHYSICAL LOCATION OF THE RESOURCE DOES NOT IN ANY WAY ALTER THE
INHERENT FACT THAT MOUNTAIN TOP REMOVAL IS UNQUESTIONABLY THE
MOST EFFICIENT METHOD OF RECOVERY OF THE RESOURCE WITH THE LEAST
SURFACE DISTURBANCE RELATIVE TO RECOVERY PRODUCING THE MOST
DESIRABLE ENVIRONMENTAL RESULT OF ALL MINING TECHNOLOGY KNOWN
TODAY.
93 WE URGE THE ACKNOWLEDGEMENT OF THESE READILY DEMONSTRABLE
FACTS AND YOUR SERIOUS CONSIDERATION OF AN AMENDMENT SUCH AS WE
HERE PROPOSE TO RECOGNIZE THE UNDENIABLE FACT THAT MOUNTAIN TOP
REMOVAL TECHNOLOGY MORE NEARLY MEETS THE UNDERLYING PURPOSES OF
THIS LEGISLATION AND SHOULD BE ACKNOWLEDGED AS AN ACCEPTED MINING
PRACTICE.
93 WE PROPOSE THE FOLLOWING: SECTION 415(b)(3) LINE 21, P. 69 - AFTER
"ACT:" ADD "AND PROVIDED FURTHER THAT IT SHOULD NOT BE REQUIRED TO
RESTORE TO APPROXIMATE ORIGINAL CONTOUR WHERE THE SURFACE MINING
OPERATION WILL REMOVE AN ENTIRE COAL SEAM OR SEAMS RUNNING
THROUGH THE UPPER FRACTION OF A MOUNTAIN, RIDGE, OR HILL BY REMOVING
ALL OF THE OVER-BURDEN AND CREATING A LEVEL PLATEAU OR A GENTLY
ROLLING CONTOUR WITH NO HIGHWALLS REMAINING, AND CAPABLE OF
SUPPORTING POST MINING USES."
94 SECTION 415(c)(2) - DELETE.
94 SECTION 415(c)(3) - DELETE "OF THE NATURE DESCRIBED IN SUBSECTION
(c)(2).
94 SECTION 415(b)(9) AS PRESENTLY WRITTEN MAY CREATE A SERIOUS
SAFETY PROBLEM IN CERTAIN CASES WHERE WATER TABLES COULD BUILD UP
PRESSURES BEHIND AUGER HOLES PLUGGED WITH IMPERVIOUS MATERIAL. WE
PROPOSE THE FOLLOWING CHANGE:
94 SECTION 515(b)(9) LINE 24, P. 71 - AFTER "WITH" DELETE "AN IMPERVIOUS
AND NONCOMBUSTIBLE" ADD "BEST AVAILABLE NATURAL."
94 THIS CHANGE WOULD REMOVE THE POSSIBLE SAFETY HAZARD.THE
CONTROL OF TOXIC DISCHARGES IS COVERED BY SEVERAL OTHER SECTIONS OF
THE ACT AND WOULD HAVE TO BE DEALT WITH BEFORE BOND RELEASE IN ANY
EVENT, SO THIS CHANGE DOES NOT DIMINISH CONTROL OVER THIS MATTER. WE
URGE YOUR SERIOUS CONSIDERATION.
94 AS AN ACTIVE OPERATOR, I HAVE STUDIED SECTION 415(b)(10) AND SIMPLY
CANNOT SEE ANY WAY BY WHICH TO COMPLY. LET ME EXPLAIN. SILT
STRUCTURES ARE CONSTRUCTED TO IMPOUND RUN-OFF DURING MINING AND
REVEGETATION OF THE DISTURBED AREAS INCLUDING THE SILT STRUCTURE
ITSELF AND ANY ATTENDANT DRAINWAYS. LET US ASSUME REVEGETATION
TAKES TWO YEARS. THIS IS TWO YEARS AFTER MINING IS COMPLETE AND THE
OPERATOR HAS LEFT THE PREMISES AND IS MINING ELSEWHERE. THE SILT
STRUCTURE LIKEWISE HAS BEEN REVEGETATED DURING THIS PERIOD.IS THE
OPERATOR NOW TO RE-ENTER AND RE-DISTURB THE AREA OF THE SILT
STRUCTURE TO REMOVE IT?WHERE IS THE MATERIAL TO BE PLACED? IS THE
OPERATOR TO HAUL IT BACK UP THE SLOPE AND RE-ENTER AND RE-DISTURB
THE MINED AREA TO STORE THIS MATERIAL?THE FACT IS THE MATERIAL
PROBABLY COULD NOT BE HAULED UPSLOPE EVEN IF THE ALREADY RECLAIMED
ROADS WERE REOPENED.
95 THE PROBLEM OF THE LONG TERM RESPONSIBILITY FOR MAINTENANCE OF
THESE STRUCTURES HAS NO OBVIOUS OR EASY SOLUTION.REMOVING THE
STRUCTURE DOES NOT, HOWEVER, SEEM TO BE THE ANSWER BECAUSE OF THE
UNDESIRABLE NECESSITY OF DISTURBING AN AREA ALREADY STABILIZED AND
THE PROBLEM OF MATERIAL STORAGE.WE RECOMMEND THE REQUIREMENT OF
SECTION 415(b)(10)(c) BE DELETED.
95 SECTION 415(b)(20) PROVIDES FOR THE OPERATOR TO ASSUME
RESPONSIBILITY FOR REVEGETATION FOR PERIODS OF 5 AND 10 YEARS
DETERMINED BY RAINFALL. IN KENTUCKY, OUR CLIMATE CONDITIONS ARE
SUCH THAT CONSISTENT REVEGETATION CAN BE ACHIEVED OVER AN 18 MONTH
PERIOD. THE PROBLEM HERE IS REALLY RELATED TO BONDING AND THE
CUMULATIVE EFFECT ON THE SMALL OPERATOR, THOUGH FINANCIALLY
RESPONSIBLE, TO CONTINUE TO ARRANGE INCREASING BOND LIMITS BECAUSE
OF THE 40 PERCENT RETENTION, WE RECOMMEND THE FOLLOWING CHANGES:
95 SECTION 415(b)(20)
95 (LINE 5, P. 77) - CHANGE "FIVE" TO "TWO"
95 (LINE 15, P. 77) - CHANGE "FIVE" TO "TWO"
95 AS AN ALTERNATIVE, A PARTIAL BOND RELEASE WHERE REVEGETATION
IS ESTABLISHED WITH A 5 OR 10 PERCENT RETENTION FOR THE FULL FIVE OR
TEN YEARS IS AN ALTERNATIVE TO RELIEVE THE BURDEN OF THE SMALL
OPERATOR. NOTHING CONTAINED IN EITHER OF THE ABOVE PROPOSALS
PREVENTS THE REGULATORY AUTHORITY FROM HOLDING THE FULL BOND FOR
WHATEVER LONGER PERIOD MIGHT BE REQUIRED TO COMPLETE FULL
COMPLIANCE IF A LONGER PERIOD SHOULD BE NECESSARY FOR WHATEVER
REASON.
96 THE FOLLOWING RECOMMENDED CHANGES IN SECTION 415(c) WERE
DISCUSSED IN CONNECTION WITH OUR RECOMMENDED ACKNOWLEDGMENT OF
MOUNTAIN TOP REMOVAL AS AN ACCEPTED MINING PRACTICE:
96 SECTION 415(c)(1), P. 7,, LINE 9 CHANGE "3" TO "2"
96 DELETE SECTION 415(c)(2)
96 LINE 10, P. 79 - CHANGE (3) TO (2)
96 LINE 21, P. 80 - CHANGE (4) TO (3)
96 THE FOLLOWING CHANGE IN SECTION 415(c) IS ALSO RECOMMENDED:
96 SECTION 415(c)(3), P. 79, LINE 2 - DELETE "OF THE NATURE DESCRIBED IN
SUB-SECTION (c)(2)."
96 IT IS NOT POSSIBLE FOR ALL ALTERNATIVE POSSIBILITIES EVER TO BE
FORSEEN AND PROVISION MADE TO ACCOMMODATE THEM. OUR TRUST MUST
ALWAYS BE PLACED IN SOME JUDGEMENT BEING PROPERLY EXERCISED. WE
HEREIN HAVE RECOMMENDED PLACING SOME TRUST IN THE JUDGEMENT OF
THE REGULATORY AUTHORITY, WHETHER STATE OR FEDERAL, TO OPEN THE
DOOR TO ALTERNATIVE VARIANCES IF THE STRINGENT CRITERIA OF
SUBSECTIONS (A) THROUGH (G) ARE MET. SURELY YOU MUST AGREE THAT
THESE REQUIREMENTS ARE SUFFICIENTLY STRONG IN AND OF THEMSELVES
THAT ANY PERMIT GRANTING A VARIANCE MEETING THESE REQUIREMENTS
WOULD PRODUCE AN ACCEPTABLE RESULT. IT SHOULD BE OBVIOUS THAT THE
PUBLIC HEARING REQUIREMENT OF SUBSECTION (F) WOULD PRELUDE THE
GRANTING OF AN UNACCEPTABLE VARIANCE. WE URGE YOUR SERIOUS
CONSIDERATION OF THESE CHANGES.
96 PARTICULARLY IN EASTERN KENTUCKY WHERE SLOPES ARE STEEP,
HEAD-OF-HOLLOW FILLS HAVE BECOME AN IMPORTANT SPOIL STORAGE AREA
FOR MANY SOUND REASONS. FIRST IN IMPORTANCE TO THE OPERATOR IS THEIR
PROXIMITY TO HIS WORKING AREA AND THE COST OF HAULING THE MATERIALS
IS LESS THAT TO AN OFFSITE AREA. FROM THE ENVIRONMENTAL IMPACT
STANDPOINT, PROPERLY ENGINEERED FILLS CONTROL RUNOFF OF WATER AND
SEDIMENT BY CONTROLLING THE DEGREE OF THE MAIN SLOPE AND PROVIDING
A VERY SHALLOW SLOPE AT THE TOE OF THE FILL. WATER FILTRATION IS OFTEN
ACCOMPLISHED BY ROCK DRAINS IN THE BODY OF THE FILL. THERE REALLY IS
NO BETTER SPOIL STORAGE AREA THAN A PROPERLY ENGINEERED, DESIGNED
AND CONSTRUCTED HEAD-OF-HOLLOW FILL.
97 THE LANGUAGE OF S.7 LEAVES UNCLEAR THE ACCEPTANCE OF
HEAD-OF-HOLLOW FILLS AS APPROVED STORAGE AREAS. THIS MAY BE
EXACTLY THE SORT OF THING THAT WOULD BE COMPLETELY CLEAR IF THE
REGULATIONS WERE AVAILABLE TO US. BECAUSE OF THE GREAT RELIANCE OF
OUR OPERATORS ON THIS METHOD OF SPOIL STORAGE WE WOULD PROPOSE THE
FOLLOWING AMENDMENT:
97 SECTION 415(d)(1) P. 82, LINE 20 - ADD AFTER "OPERATIONS" THE
FOLLOWING: "AND PROVIDED FURTHER, THAT HEAD OF HOLLOW FILLS SHALL
BE DEEMED TO BE PROPER OFFSITE SPOIL STORAGE AREAS."
97 THIS AMENDMENT WOULD MAKE CLEAR THE ACCEPTANCE OF THIS SPOIL
STORAGE METHOD WITHOUT DIMINISHING IN ANY WAY THE OTHER
REQUIREMENTS OF ANY ACCEPTABLE SPOIL STORAGE AREA.
97 SECTION 417(c)(2) REQUIRES ALL INSPECTIONS TO OCCUR WITHOUT NOTICE
TO THE PERMITTEE OR HIS AGENTS OR EMPLOYEES. THIS MANDATORY
REQUIREMENT DEPRIVES THE INSPECTOR OF THE OPPORTUNITY TO INSURE THE
PRESENCE OF THE OPERATOR DURING SUCH INSPECTION THEREBY MAKING
POTENTIALLY NECESSARY ANOTHER TRIP TO THE SAME SITE TO INSURE
NECESSARY REMEDIAL WORK IS FULLY UNDERSTOOD AND CAN BE CARRIED
OUT PROPERLY. WHILE THE VALUE OF NO NOTICE INSPECTION IS FULLY
RECOGNIZED AS AN EFFECTIVE ENFORCEMENT PROGRAM, THE OPTION OF
ASKING THE OPERATOR TO BE PRESENT ALSO SERVES A USEFUL PURPOSE. WE
WOULD RECOMMEND SUBSECTION (2) BEGIN WITH THE WORD "MAY" WHICH
PRESERVES BOTH OPTIONS TO THE REGULATORY AUTHORITY.
98 SECTION 419(a) REQUIRES ADVERTISING PLACED ON FIVE SUCCESSIVE
DAYS IN A NEWSPAPER OF GENERAL CIRCULATION IN THE LOCALITY.
OBVIOUSLY THIS IS AN OVERSIGHT IN THIS SECTION SINCE ALL OTHER PARTS OF
THE BILL REQUIRING ADVERTISING RECOGNIZE THAT ONLY WEEKLY
NEWSPAPERS ARE GENERALLY AVAILABLE IN MOST MINING AREAS.
SUBSECTION (b), LINE 2