[Senate Hearing 110-298]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-298
 
                           SURFACE MINING ACT

=======================================================================

                                HEARING

                               before the

                              COMMITTEE ON
                      ENERGY AND NATURAL RESOURCES
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                                   TO

RECEIVE TESTIMONY ON THE SURFACE MINING CONTROL AND RECLAMATION ACT OF 
                 1977: POLICY ISSUES THIRTY YEARS LATER

                               __________

                           NOVEMBER 13, 2007


                       Printed for the use of the
               Committee on Energy and Natural Resources


                                 ______

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               COMMITTEE ON ENERGY AND NATURAL RESOURCES

                  JEFF BINGAMAN, New Mexico, Chairman

DANIEL K. AKAKA, Hawaii              PETE V. DOMENICI, New Mexico
BYRON L. DORGAN, North Dakota        LARRY E. CRAIG, Idaho
RON WYDEN, Oregon                    LISA MURKOWSKI, Alaska
TIM JOHNSON, South Dakota            RICHARD BURR, North Carolina
MARY L. LANDRIEU, Louisiana          JIM DeMINT, South Carolina
MARIA CANTWELL, Washington           BOB CORKER, Tennessee
KEN SALAZAR, Colorado                JOHN BARRASSO, Wyoming
ROBERT MENENDEZ, New Jersey          JEFF SESSIONS, Alabama
BLANCHE L. LINCOLN, Arkansas         GORDON H. SMITH, Oregon
BERNARD SANDERS, Vermont             JIM BUNNING, Kentucky
JON TESTER, Montana                  MEL MARTINEZ, Florida

                    Robert M. Simon, Staff Director
                      Sam E. Fowler, Chief Counsel
              Frank Macchiarola, Republican Staff Director
             Judith K. Pensabene, Republican Chief Counsel


                            C O N T E N T S

                              ----------                              

                               STATEMENTS

                                                                   Page

Banig, Bill, Director, Governmental Affairs, United Mine Workers 
  of America, Fairfax, VA........................................    40
Bingaman, Hon. Jeff, U.S. Senator From New Mexico................     1
Conrad, Gregory E., Executive Director, Interstate Mining Compact 
  Commission, Herndon, VA........................................    12
Domenici, Hon. Pete V., U.S. Senator From New Mexico.............     3
Prukop, Joanna, Cabinet Secretary, Energy, Minerals and Natural 
  Resources Department, Santa Fe, NM.............................     8
Quinn, Hal P., Jr., Senior Vice President & General Counsel, 
  National Mining Association....................................    33
Rank, Cindy, West Virginia Highlands Conservancy, Rock Cave, WV..    44
Salazar, Hon. Ken, U.S. Senator From Colorado....................     2
Trujillo, Arvin, Executive Director, Navajo Nation, Window Rock, 
  AZ.............................................................    20
Wahlquist, Brent, Director, Office of Surface Mining Reclamation 
  and Enforcement, Department of the Interior....................     4

                               APPENDIXES
                               Appendix I

Responses to additional questions................................    55

                              Appendix II

Additional material submitted for the record.....................   121
                              ----------                              


                       TUESDAY, NOVEMBER 13, 2007

                                       U.S. Senate,
                 Committee on Energy and Natural Resources,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 2:30 p.m. in room 
SD-366, Dirksen Senate Office Building, Hon. Jeff Bingaman, 
chairman, presiding.

OPENING STATEMENT OF HON. JEFF BINGAMAN, U.S. SENATOR FROM NEW 
                             MEXICO

    The Chairman. OK, why don't we go ahead and start the 
hearing. Today we're having a hearing on the Surface Mining 
Control and Reclamation Act. This is landmark legislation that 
was enacted into public law 30 years ago. I think it's 
appropriate that 30 years after the enactment of the 
legislation, we have a hearing like this to take stock of the 
accomplishments achieved under the Act, and to look ahead at 
what still needs to be done.
    SMCRA was enacted to address the serious public health and 
safety and environmental problems associated with coal mining 
on private and public lands.
    Title V establishes a framework under which States can 
develop their own regulatory programs that incorporate minimum 
standards required under SMCRA. Twenty-four States have done 
this, and Title IV established the Abandoned Mine Land Program 
to address the serious problem of mines that have been left 
unreclaimed and abandoned. There are 23 States and 3 Indian 
tribes that currently administer approved abandoned mine land 
programs.
    Important work has been undertaken pursuant to the Surface 
Mining act since it enactment. I understand that some 240,000 
acres of high-priority, coal-related problems have been 
reclaimed under the program at a cost of $1.7 billion. This is 
a significant accomplishment.
    However, there's still work that needs to be done under 
this program. The Office of Surface Mining estimates that there 
is $3 billion worth of priority one and priority two problems 
that threaten public health and safety, and $3.6 billion worth 
of general welfare problems that remain unreclaimed.
    Overall, the Office of Surface Mining inventory of coal 
problems shows more than $11.4 billion worth of unreclaimed 
sites.
    Throughout coal country, people have been seriously injured 
and killed at abandoned mines, often involving pits and 
unstable high walls, underground fires and open shafts.
    Today, in addition to an update on the work that's being 
carried out under SMCRA, I look forward to hearing testimony on 
some of the key policy issues pending in the Office of Surface 
Mining.
    First, the issue of mountaintop mining, also known as 
mountaintop removal, a mining practice under which--as the name 
suggests--the tops of mountains are literally removed in order 
to mine the coal seams that are found underneath. I understand 
the Office of Surface Mining has a rulemaking pending that has 
implications for this practice. We obviously need to look at 
that and its potential impact on the communities affected.
    In addition, the Office of Surface Mining is moving forward 
with implementing legislation enacted last year as part of the 
Tax Relief and Health Care Act of 2006 that authorizes the AML 
fund.
    Several issues have arisen--one that affects my home State, 
our home State--is whether there will be limitations imposed on 
the use of certain funds for non-coal reclamation. This has 
long been permitted under SMCRA, I'm also interested in hearing 
what progress the Office of Surface Mining is making on a 
provision that I urged be included in the 2006 legislation to 
allow tribes, such as the Navajo Nation to obtain primacy for 
administering Title V regulatory programs on tribal lands.
    I'm glad that we have representatives from the State of New 
Mexico here, and from the Navajo Nation, as well.
    I look forward to hearing from the witnesses. Let me defer 
to Senator Domenici before we call on the witnesses.
    [The prepared statement of Senator Salazar follows:]

   Prepared Statement of Hon. Ken Salazar, U.S. Senator From Colorado

    I want to thank Chairman Bingaman and Ranking Member Domenici for 
holding today's hearing marking the 30th anniversary of the Surface 
Mining Control and Reclamation Act.
    Colorado's mining heritage has left my state with a legacy of 
abandoned non-coal mine sites with no identifiable owner or operator 
who is responsible for site cleanup and reclamation. Currently in 
Colorado, we have more than 17,000 abandoned mine sites.
    In 2006, Congress passed the Tax Relief and Health Care Act to 
reauthorize the collection of the Abandoned Mine Land fee, and to make 
other modifications to the AML program. This Act provides continuation 
of the collection of an AML fee on each ton of coal produced through 
2021. Furthermore, the Act ensures the majority of the fees collected 
are dispersed to states and tribes without further appropriation.
    Colorado has relied on funds from the AML fee to safeguard 
approximately 5600 hazardous openings, and reclaim almost 1600 acres of 
land. It is important that the AML funding remain available to non-coal 
sites to allow this important work to continue.
    Fees collected for the AML program also fund medical benefits to 
retired mine workers. Through the United Mine Workers of America, coal 
miners who worked for companies that no longer exist are provided 
access to health care. Over $12 million in health and pension benefits 
went to retired mine workers living in Colorado in 2006. Like my 
colleagues, I am committed to keeping the promise made to provide these 
important benefits to the coal miners who spent their careers in our 
country's mines.
    Recognizing that the funding from the AML program will not be 
adequate to address the abandoned mine sites in Colorado, I have long 
been a supporter of Good Samaritan legislation that would provide 
incentives to private companies who step forward to reclaim abandoned 
mines. I am hopeful that as this committee looks in the upcoming months 
to amend the Mining Law of 1872 we will find ways to provide incentives 
to private companies to clean up abandoned non-coal mine sites.
    Again, thank you Mr. Chairman and Ranking Member Domenici for your 
work on these important mining issues.

     STATEMENT OF HON. PETE V. DOMENICI, U.S. SENATOR FROM 
                           NEW MEXICO

    Senator Domenici. Mr. Chairman, you've delivered a good 
opening statement that hits on all of the points. I would have 
had a shorter one, but I'm just going to make it part of the 
record and say that the part that I concur with you most, and 
am most concerned about is, once again, uranium--uranium mining 
is becoming a desire on the part of a number mining companies, 
and mining ventures. Clearly the issue that you raised, about 
using the resources of this Act for some of the cleanup--we 
have to get to that. If not that, we have to learn from New 
Mexico what their objections are going to be to uranium mining. 
It's very much alive, at this point, in terms of quantity could 
serve the Nation very well if we can do it right.
    I think I will add, so that it will be on the record, in 
the event that occurs, there will be those who will think about 
uranium mining as it was 50 years ago, or uranium milling as it 
was 50 years ago, 40. That isn't the way it is. Now, it's all 
different in terms of the cleanliness, the health in the area--
some of which is going to have to be shown to New Mexicans, so 
that they would understand it better.
    But, I yield at this point. Thank you very much for calling 
this hearing.
    [The prepared statement of Senator Domenici follows:]

    Prepared Statement of Hon. Pete V. Domenici, U.S. Senator From 
                               New Mexico

    Three months ago, we marked the 30th anniversary of the Surface 
Mining Control and Reclamation Act.
    Originally signed by President Jimmy Carter on August 3rd, 1977, 
this law established a top-to-bottom approach for regulation of 
domestic coal production. Between then and now, it has required an 
impressive balancing act.
    Although efforts to implement this law have been contentious 
throughout its history, the difficulties encountered are ultimately 
outweighed by the successes achieved. This fact is clearly evidenced by 
the essential role that the energy feedstock governed by this statute--
coal--continues to play in our energy supply.
    Coal provides more than half of our electric power.
    At a time when demand for electricity is growing twice as fast as 
supply, coal provides an important safeguard against tenuous power 
reliability.
    At a time when energy prices are volatile and increasing, coal has 
remained a stable and affordable commodity.
    At a time when our reliance on foreign sources of energy has 
increased, coal has provided an important countermeasure to that trend.
    These roles will only grow more important in the future. Coal is an 
abundant resource that we can produce domestically, and rely upon, for 
centuries to come.
    We need coal to keep the lights on, to keep energy affordable, and 
to support our economic prosperity in the coming years.
    Because we need coal, it is essential that we continue to drive our 
policies toward deployment of clean coal technologies. Instead of 
policies that act as a tax on America's domestic coal industry, we 
should provide incentives for investment in technologies that will 
allow us to use our most abundant resource in a cleaner, more efficient 
way.
    The Surface Mining Control and Act Reclamation of 1977, and its 
implementation over the years, has recognized America's need for coal.
    Twenty-nine billion tons of coal have been mined in the United 
States since this law was enacted. This has occurred in conjunction 
with reclamation of several hundred thousand acres of mine sites 
abandoned in the past, while ensuring that we not create additional 
problems for the future.
    By striking a balance between domestic resource production and the 
protection of our environment, this Act has shown that it is possible 
to meet our energy needs with our own energy resources.
    I look forward to hearing from the witnesses.

    The Chairman. Thank you very much.
    We have two panels today, and so why don't I introduce the 
first panel, and then ask that each of them summarize their 
testimony. We'll put your full statement in the record, of 
course, but we'd like you to take about 5 minutes or so and 
focus our attention on the main points that you want us to 
understand. Then after all four witnesses on the first panel 
testify, we'll have some questions of this panel, and then go 
to the second panel.
    This first panel is made up of Brent Wahlquist, who is the 
Director of the Office of Surface Mining, thank you very much 
for being here, in the Department of Interior.
    Joanna Prukop, who is the Cabinet Secretary for the 
Department of Energy, Minerals and Natural Resources in the 
State of New Mexico, thank you very much for being here.
    Gregory Conrad, who is with the Interstate Mining Compact 
Commission, thank you for being here.
    Arvin Trujillo is here representing the Navajo Nation. 
Thank you very much for being here.
    Why don't you just proceed in that order, if you would, and 
give us the main points that you think we need to clearly 
understand.

   STATEMENT OF BRENT WAHLQUIST, DIRECTOR, OFFICE OF SURFACE 
 MINING RECLAMATION AND ENFORCEMENT, DEPARTMENT OF THE INTERIOR

    Mr. Chairman, and members of the committee, thank you for 
the opportunity to appear before you today to share the 
perspective of the Office of Surface Mining and Reclamation 
Enforcement, or OSM, as we look back on 30 years of the Surface 
Mining Control and Reclamation Act of 1977. The Act, which 
created OSM, was signed into law on August 3, 1977, after 5 
years of congressional debate, and two Presidential vetoes.
    One of its express purposes is to strike a balance between 
the protection of the environment and the Nation's need for 
coal as an essential source of energy. This balance between 
environmental protection, and energy production is embodied in 
our logo, and serves as a guiding principle for OSM.
    Another fundamental principle embodied in the Act is the 
concept of State primacy. Congress clearly intended that States 
would and should be the primary regulators.
    State and tribal employees today permit and regulate 97 
percent of the Nation's coal production, and use over 90 
percent of the Abandoned Mine land Project funds. OSM's task, 
then, is to provide the regulatory and policy framework, the 
funding, oversight, assistance training and technical tools 
needed to maintain stable and effective regulatory and AML 
programs of the highest quality.
    The first years after the Act's passage were filled with 
controversy, contention, litigation and uncertainty. OSM faced 
the challenge of striking the proper balance between oversight, 
direct enforcement and assistance, in order to promote both 
stable, quality State programs, and achieve a high level of 
industry compliance.
    Through the years, efforts to clarify OSM's oversight role 
and provide training and technical support, have largely 
eliminated the highly contentious relationship with States and 
other interested parties that existed during our first decade.
    Since the Act was passed 30 years ago. Domestic coal 
production has increased 67 percent, and has gone from third 
place in U.S. domestic energy production behind oil and natural 
gas, to a solid first place. At the same time, unlike oil or 
natural gas, coal is cheaper today than it was 30 years ago. 
Coal is now the fuel providing more than half of the Nation's 
electricity that is so essential to the economy and our daily 
life.
    Under our regulatory program, hundreds of thousands of 
acres have been successfully mined and reclaimed, in addition, 
numerous AML problems have been eliminated during re-mining by 
active operations of previously mined areas, substantially 
reducing the extent of AML problems that must be addressed 
through the AML fund.
    Under the AML program, enormous progress has been made in 
addressing the 200-year legacy of hazards and environmental 
degradation from past coal mining. Over the past 30 years, 
there have certainly been some course corrections, by Congress 
and by OSM. Most recently, Congress revised and extended the 
AML program with the 2006 amendments passed and signed into law 
last December. These changes provide a framework for completing 
remaining coal-related reclamation, and for the first time, 
authorize travel primacy.
    While there's still some areas of controversy, such as 
those surrounding mountaintop mining, OSM has made enormous 
progress in bringing regulatory stability, based upon state 
primacy, to the coal fields, in a manner that protects the 
public and the environment during mining, and assures that land 
is restored to productive uses following mining.
    Our emphasis on limiting regulatory changes to areas where 
greater clarify is needed, training, technical tools, 
technology transfer and assistance have proven highly cost-
effective in lifting the qualify and consistency of State 
programs, encouraging high-quality reclamation.
    Along the way, we have pioneered partnerships with other 
Federal agencies and academic institutions across the coal 
fields, to promote emerging technologies and practices.
    As we look to the future, we will continue our emphasis on 
regulatory stability and clarity, in a manner that promotes the 
development and application of sound science and new 
technologies, so that the coal so essential to the Nation's 
well-being can be produced, while minimizing environmental 
impacts.
    Thank you for the opportunity to highlight our challenges 
and our accomplishments during the past 30 years.
    [The prepared statement of Mr. Wahlquist follows:]

  Prepared Statement of Brent Wahlquist, Director, Office of Surface 
     Mining Reclamation and Enforcement, Department of the Interior

    Mr. Chairman and Members of the Committee, thank you for the 
opportunity to appear before you today to share the perspective of the 
Office of Surface Mining Reclamation and Enforcement as we look back on 
30 years of the Surface Mining Control and Reclamation Act of 1977.
    The Surface Mining Control and Reclamation Act (SMCRA) was signed 
into law on August 3, 1977, after 5 years of Congressional debate and 
two Presidential vetoes. The Office of Surface Mining Reclamation and 
Enforcement (OSM) was created to implement the law. More recently, on 
December 20, 2006, SMCRA was amended by the Tax Relief and Health Care 
Act of 2006, Public Law 109-432 (2006 Amendments). One of the purposes 
of SMCRA is ``to assure that the coal supply essential to the Nation's 
energy requirements, and to its economic and social well-being is 
provided and strike a balance between protection of the environment and 
agricultural productivity and the Nation's need for coal as an 
essential source of energy.'' This balance between environmental 
protection and energy production is embodied in our logo and serves as 
a guiding principle in our implementation of SMCRA.
    Another fundamental principle embodied in SMCRA is the concept of 
State primacy. For express reasons, Congress clearly intended that 
States would and should be the primary regulators under SMCRA. Of the 
nearly 2,400 government employees directly involved with implementing 
the regulatory and restoration programs of SMCRA on a daily basis, less 
than 25 percent work for OSM. The rest are State and Tribal employees 
who permit and regulate 97 percent of the Nation's coal production and 
use 90 percent of the Abandoned Mine Lands (AML) project funds. OSM's 
task is to provide the regulatory and policy framework, oversight, 
assistance, training and technical tools needed to maintain stable and 
effective regulatory and AML programs of the highest quality.
    The first years after SMCRA's passage were filled with controversy, 
contention, litigation, and uncertainty. OSM faced the challenge of 
striking the proper balance between oversight, direct enforcement, and 
assistance, in order to promote both quality State programs and achieve 
a high level of industry compliance. Through the years, efforts to 
clarify OSM's oversight role, increase cooperation with States, develop 
a training program, provide technical tools, and promote technology 
transfer have largely eliminated the highly contentious relationship 
with States and other interested parties that existed during the early 
years of SMCRA. We believe that OSM has succeeded in its efforts to 
develop and implement a stable regulatory structure that achieves the 
desired balance between environmental protection and energy production, 
while respecting the role of States as the primary regulators.
    Since SMCRA was passed 30 years ago, domestic coal production has 
increased by 67 percent and has gone from third place in United States 
domestic energy production, behind oil and natural gas, to a solid 
first place. At the same time, unlike oil or natural gas, coal is 
cheaper today than it was 30 years ago. Coal is now the fuel providing 
more than half of the Nation's electricity that is so essential to the 
economy and our daily life. Further, 97 percent of that coal production 
is regulated by States under primacy programs approved by the 
Secretary.
    The coal industry has changed over the past 30 years. At the time 
SMCRA was passed, coal production occurred mainly in the eastern United 
States, and small operators and privately-held companies produced much 
of our Nation's coal. Since that time, many of those small operations 
have been replaced by larger, publically-held operators. Most of the 
increase in coal production has largely occurred in the West, while 
total production in the rest of the country has remained relatively 
constant.
    Under SMCRA's regulatory program, hundreds of thousands of acres 
have been successfully mined and reclaimed. In addition, numerous AML 
problems, including hundreds of miles of abandoned highwalls and 
numerous refuse piles, culm banks, and acid-mine-drainage sources, have 
been eliminated during remining of previously mined areas, 
substantially reducing the extent of AML problems that must be 
addressed through the AML fund.
    Under the AML program, enormous progress has been made in 
addressing the 200 year legacy of hazards and environmental degradation 
from past coal mining. The AML Program has reclaimed almost 240,000 
acres of hazardous high-priority coal-related problems. Safety and 
environmental hazards have been eliminated on almost 315,000 acres 
containing coal or non-coal problems. Since 1977, OSM has provided 
$4.06 billion in grants to its partners in 24 States and three Indian 
Tribes to clean up dangerous abandoned mine sites. Since 1999, OSM has 
funded 161 Watershed Cooperative Agreements with local non-profit 
watershed organizations totaling $14.1 million. This funding has been 
leveraged with other resources by these organizations to undertake 
projects valued at over $45 million. Almost 8,000 emergencies have also 
been addressed.
    Over the past 30 years, there have certainly been some course 
corrections. Congress has passed amendments eliminating the two-acre 
exemption, and requiring restoration of water supplies damaged by 
underground mines and repair or compensation for homes damaged by 
subsidence. Congress has also revised and extended the AML program, 
with the latest changes contained in the 2006 Amendments to SMCRA 
passed and signed into law last December. These changes provide a 
framework for completing remaining coal-related reclamation.
    OSM has made changes to the regulations implementing SMCRA in 
response to identified needs and to issues that arose during 
litigation. For example, OSM has developed the Applicant Violator 
System (AVS) and corresponding regulations that block those responsible 
for outstanding violations from getting new permits. In support of 
State primacy and to lift the quality of regulatory and AML programs, 
OSM:

   Maintains a highly successful training program addressing 
        regulatory and AML issues that now utilizes State/Tribal staff 
        for more than half of its instructors;
   Provides, through our Technical Information and Professional 
        Services (TIPS) program, off-the-shelf technical software at 
        tremendous savings through license sharing arrangements, 
        training on that software, and cutting edge technical tools;
   Provides technology transfer programs to promote the 
        utilization of best practices; and
   Provides an alternative enforcement framework and supports 
        State regulators to help compel reclamation by those with 
        outstanding violations, particularly in bankruptcy cases.

    Our AML enhancement regulations have been very successful in 
stretching the reach of AML funding by allowing and encouraging the 
sale of coal encountered during the abatement of AML problems to help 
offset the cost of AML remediation.
    Another important shift has been promotion of reforestation as a 
post-mining land use. Virtually all of the land that has been surface 
mined for coal over the past 30 years in Appalachia was forested before 
it was mined. However, the vast majority of that land has not been 
returned to forest. Instead, much of it has been reclaimed to hayland/
pasture with smoothly graded (and thus compacted) surfaces and heavy 
groundcover unsuitable for growing trees.
    Yet, forests moderate temperatures, control runoff, improve water 
quality, sequester carbon, and provide enormous biological diversity. 
Researchers at several universities have demonstrated that mined land, 
if properly reclaimed, can sustain tree survival and growth rates even 
greater than average sites on unmined land.
    Over the past few years, in partnership with a wide range of State 
and Federal agencies, industry groups, environmental organizations, 
academic institutions, and individuals, OSM has established the 
Appalachian Regional Reforestation Initiative to promote reforestation 
through use of a science-based approach. The challenge before us is to 
completely change the perception among regulators, mine operators, and 
landowners, of what good reclamation looks like, while continuing to 
foster further scientific development and understanding of forest 
restoration.
    This problem demonstrates the value of maintaining collaborative 
relationships with the academic institutions across the coal fields, 
since the problems related to reforestation were known within the 
academic institutions for several years before that knowledge began to 
work its way into practices accepted by regulators and industry.
    In summary, while there are still some areas of controversy, such 
as those surrounding mountaintop mining, OSM has made enormous progress 
in bringing regulatory stability, based upon State primacy, to the coal 
fields in a manner that protects the public and the environment during 
mining and assures that land is restored to productive uses following 
mining. Emphasis on limiting regulatory changes to areas where greater 
clarity is needed, training, technical tools, technology transfer, and 
assistance have proven highly cost effective in lifting the quality and 
consistency of State programs and encouraging high quality reclamation. 
Along the way, we have pioneered partnerships with other Federal 
agencies, affected communities, and academic institutions across the 
coal fields to promote emerging technologies and practices. We also 
have been working with Tribes in implementing those aspects of the 2006 
amendments authorizing Tribal primacy.
    According to the Energy Information Administration, coal is 
expected to remain the primary fuel source for electricity generation 
over the next 20 years and coal production is forecasted to increase to 
match demand. Meeting that demand for coal, while protecting people, 
land, and water, will require a stable regulatory environment wherein 
all parties, including citizens, industry, landowners, and regulators, 
can make informed decisions affecting their interests.
    As we look to the future, we will continue our emphasis on 
regulatory stability and clarity in a manner that promotes the 
development and application of sound science and new technologies so 
that the coal so essential to the Nation's well being can be produced 
while minimizing environmental impacts.
    Thank you for this opportunity to highlight our challenges and 
accomplishments during the first 30 years of SMCRA.

    The Chairman. Thank you very much.
    Secretary Prukop, go right ahead.

STATEMENT OF JOANNA PRUKOP, CABINET SECRETARY, ENERGY, MINERALS 
         AND NATURAL RESOURCES DEPARTMENT, SANTA FE, NM

    Ms. Prukop. Thank you very much, Mr. Chairman, and thank 
you for inviting the State of New Mexico to testify today. I 
will speak today on New Mexico's perspective on the 
implementation and future of the Surface Mining Control and 
Reclamation Act of 1977, or SMCRA, as we all know it.
    New Mexico has had a challenging, but largely positive, 
experience under SMCRA. We are a State with significant coal 
production, but with a small coal regulatory program. Our State 
has a long history of coal and hard rock mining, that has 
produced thousands of abandoned, hazardous mines. We seek to 
diminish these hazards with limited abandoned mine funds, and 
look for ways to maximize and leverage our less-than-adequate 
resources to achieve SMCRA's goals.
    The biggest lesson from three decades of working with SMCRA 
is that success is gained when we apply innovative and flexible 
approaches at the State level to new problems. Our chances of 
success also improve when the Federal Government supports our 
approaches, which has been the case in recent years, I'm happy 
to say.
    Today, coal production in New Mexico is roughly three times 
what it was at the passage of SMCRA. New Mexico has four large 
active coal mines, three surface, and one underground mine. 
They produce between 25 to 30 million tons of coal per year.
    As coal mining expanded in our State, mine reclamation 
proceeded, and proved successful, despite our arid climate. 
Successes can be seen in the overall numbers and the strategies 
that we've implemented in this program. Of some 26,000 acres 
disturbed by coal mining in New Mexico during the life of 
SMCRA, over 75 percent have already been re-graded, covered 
with topsoil, and re-seeded. Over half of the mines permitted 
under SMCRA have actually reached full reclamation, and have 
been released.
    Success is due, in part, to innovative approaches, such as 
the geomorphic reclamation strategy adopted by several mines in 
our State. This strategy recreates natural drainage patterns in 
reclaimed land, and results in long-term stability and erosion 
control.
    New Mexico's abandoned mine lands program which, as you 
know, was funded from fees on coal production, has addressed 
some of our most hazardous abandoned mines in the State. Under 
SMCRA, New Mexico has safeguarded more than 4,000 mine 
openings, and reclaimed more than 700 acres of land that had 
been disturbed by mining, but yet we have over 15,000 hazardous 
mine openings remaining in New Mexico.
    In New Mexico, like other Western States, we face a number 
of challenges in the future implementation of SMCRA. One is the 
need to improve and expand our communication with the public. 
We've had examples of this in recent past. For a new mine, 
SMCRA only requires a notice published in the legal section of 
a newspaper to inform the public.
    Two weeks ago, under the direction of Governor Richardson, 
our Mining Commission enacted new rules that significantly 
expand the types and number of public notices that are now 
required for new mines or major permit revisions for mines.
    Another critical issue is the failure of Federal grants to 
keep pace with the rising demand for coal production. As coal 
production in the West has steadily increased, grants to 
Western States for regulatory programs have actually decreased 
in inflation-adjusted dollars. Because of these funding cuts, 
most Western States are faced with difficult choices, to either 
find other funding in their State budgets, or reduce their 
programs in the face of growing demand.
    Another challenge is the shift in OSM's position on using 
SMCRA abandoned mine land funds for abandoned non-coal mines. 
Section 409 of SMCRA allows a State to use AML funds to address 
high-priority, non-coal mines, and Western States have long-
used AML funds to address significant threats posed by non-coal 
mines.
    Last December, when Congress reauthorized the AML fee, and 
distributed to the States funds that were previously collected 
and allocated, but not appropriated, New Mexico now stands to 
have an additional $20 million come to our State over the next 
7 years. While Section 409 was not amended in any way, OSM has 
suddenly shifted course, and now indicates that none of these 
new funds can be used for non-coal mine projects.
    One result of OSM's position will be to prevent the State 
from fully participating with the Navajo Nation on a joint 
project to address abandoned uranium mines near the Navajo 
Indian reservation. This is an area of concern to Governor 
Richardson, and our State legislature.
    The impact of uranium mining on the Navajo people received 
national attention very recently at a hearing before the House 
Oversight and Government Reform Committee 3 weeks ago. For OSM 
to reverse course and claim we can not use the new AML funds on 
high-priority uranium sites is difficult for us to comprehend, 
under the circumstances.
    With that, Mr. Chairman, I will conclude my remarks, and 
thank you, again for having me here.
    [The prepared statement of Ms. Prukop follows:]

    Prepared Statement of Joanna Prukop, Cabinet Secretary, Energy, 
        Minerals and Natural Resources Department, Santa Fe, NM

    Good afternoon, Mr. Chairman and Members of the Committee. Thank 
you for inviting the State of New Mexico to testify today. I am Joanna 
Prukop, Cabinet Secretary for the New Mexico Energy, Minerals and 
Natural Resources Department.
    Today I will speak about the implementation of the Surface Mining 
Control and Reclamation Act of 1977, or SMCRA, and focus on the 
experience New Mexico had implementing it. I will also discuss issues 
shared by other Western coal mining states and the Western Interstate 
Energy Board of the Western Governors Association.
    New Mexico brings an important perspective to the discussion on the 
past, present and future of SMCRA. As a state with significant coal 
production but with a small regulatory program, we look for ways to 
utilize our limited resources to achieve SMCRA's goals. Our state has a 
long history of both coal and hard rock mining. We struggle with using 
our limited abandoned mine funds to effectively protect the public and 
the environment from the hazards of coal and non-coal abandoned mines. 
And with other Western states, we see that expanding populations and 
recreational use are increasing both the exposure to abandoned mine 
dangers and the public interest in new mine development.
    New Mexico has an extensive mining history. Native Americans mined 
turquoise, lead, coal and copper hundreds of years before Europeans 
arrived in North America. In the 1820s, the discovery of gold near 
Cerrillos triggered a rush decades before the California Gold Rush. 
Coal mining expanded in the nineteenth century driven by demand from 
the military, the railroads and non-coal mines across the Southwest. 
New Mexico enacted its own coal surface mining law in 1972. New 
Mexico's version of SMCRA was adopted by its Legislature in 1979.
    New Mexico has had a largely positive experience under SMCRA. Prior 
to its enactment, coal production in New Mexico had never exceeded 10 
million tons in a year. Today, there are four large active mines in New 
Mexico, three surface and one underground, producing between 25 and 30 
million tons per year. As coal mining expanded, mine reclamation 
proceeded and proved successful despite our arid environment. Thanks to 
funding for abandoned mine reclamation under SMCRA, threats to public 
safety and the environment have been reduced.
    The lesson we have learned from three decades of working under 
SMCRA is that success is gained when we apply innovative and flexible 
approaches to new problems. Our relationship with the Office of Surface 
Mining (OSM) has evolved over the years to give the State greater 
responsibility, and freedom, to implement SMCRA. Today, our 
relationship with OSM works best when they give us the flexibility to 
be innovative and provide support for our successful new approaches.
    Coal mine reclamation in the arid Southwest faces significant 
challenges. Our limited rainfall, which often occurs in torrents, 
causes problems with both revegetation success and erosion control. Our 
staff has worked with mine operators to develop approaches to overcome 
these challenges and achieve reclamation success.
    We are especially proud of the geomorphic reclamation strategy 
adopted by several mines in New Mexico. This strategy recreates the 
natural drainage patterns in the reclaimed land and results in greater 
long term stability and erosion resistance. The San Juan and La Plata 
Mines have won several national and state awards for their 
implementation of this pioneering strategy. Geomorphic reclamation in 
New Mexico is so innovative that OSM held a national forum on the topic 
one year ago including a tour of these mines. We have also worked on 
standards for revegetation success that take into account the 
variability in results due to drought years. These standards have now 
been incorporated into OSM national rules.
    Success can also be seen in the overall numbers. Of 26,146 acres 
disturbed by coal mining in New Mexico during the life of SMCRA, over 
75% have been regraded to an approved final surface configuration, 
covered with topsoil and reseeded. Over 50% of the mines permitted 
since the implementation of the New Mexico Coal Program have achieved 
final bond release and have been returned to the land owners. New 
Mexico has also returned over $40 million dollars of bonds to operators 
associated with documentation of successful reclamation.
    We have also embraced new technologies that allow for more 
effective oversight and communication. We use mobile computing 
technology and geographic information system tools to assist field 
inspections and more effectively monitor ongoing disturbances and 
reclamation at the large mines in New Mexico. We also now require coal 
operators to submit permit documents electronically, thereby reducing 
paperwork and facilitating both analysis and communication.
    These projects are examples of the evolving relationship between 
New Mexico and OSM. We consulted with OSM as we embarked on new 
approaches, and they provided us flexibility and support by providing 
the State with equipment and training. OSM has also promoted some of 
our successful approaches to other regulatory authorities, including 
sharing knowledge and experience with the Navajo Nation and Hopi Tribe 
as they move towards developing their tribal programs.
    The states, and several tribes, are primarily responsible for the 
implementation of SMCRA Title IV--the Abandoned Mine Land program 
(AML). SMCRA includes provisions for the safeguarding of abandoned coal 
mines and high priority non-coal mines. Funding from the fees collected 
on coal production has helped New Mexico address some of our most 
hazardous abandoned mines. In New Mexico, we estimate that there are 
over 15,000 unreclaimed mine hazards across the State. Since the 
inception of the SMCRA AML program, New Mexico has addressed 
approximately 4,000 mine features and reclaimed over 700 acres of mine-
disturbed land.
    Our annual AML funding in recent years has been about $1,500,000. 
With these funds, New Mexico successfully completed a number of 
innovative projects that were recognized by OSM over the past five 
years. At Sugarite Canyon near Raton, we used a variety of materials 
and techniques to complete a stable reclamation of very steep and 
eroding coal mine waste piles that were impacting streams within a 
state park In the Cerrillos Hills between Santa Fe and Albuquerque, we 
closed dozens of mines along trails in an historic park using 
techniques that allowed wildlife access and preserved the historical 
integrity of the sites. Both of these projects received awards from 
OSM. Last month, we received the highest national award for the Real de 
Delores project in the Ortiz Mountains which safeguarded mine openings 
within one of the oldest mining districts in America.
    We're quite proud of the work we achieved under SMCRA to mitigate 
the effects of coal mining in New Mexico.
    However, New Mexico and Western states face challenges due to the 
growth of population and the expansion of Western coal mining. These 
two growth areas can conflict with each other. As population grows and 
development expands into previously unsettled areas, concerns develop 
when new coal mines are proposed. Our newest residents along with our 
oldest have issues over new coal mining. Years of conflict transpired 
over the proposed Fence Lake Coal Mine, and our State's Native American 
communities have concerns about coal mining impacting sacred areas and 
causing environmental impacts.
    The lesson learned over the Fence Lake Coal Mine conflict is that 
procedures for public participation are insufficient to the 
expectations of citizens. SMCRA only requires a notice published in the 
legal section of a newspaper for a new mine--even if that mine could 
exceed 10,000 acres. Two weeks ago, New Mexico's Coal Surface Mining 
Commission enacted new rules that significantly expand the types and 
numbers of public notice provided for any new mine or major permit 
revision. We now provide for radio announcements, postings in the 
community, large newspaper ads, mailings to nearby residents as well as 
postings on websites. New Mexico will also hold a public informational 
meeting for all new permit applications. We are hopeful that OSM will 
support these changes.
    Another critical issue for New Mexico and for other Western states 
is the failure of federal grants to keep pace with the rising demand 
for coal production. A report issued last year by the Western 
Interstate Energy Board of the Western Governors Association documented 
that, as coal production in the West has steadily grown (and now 
exceeds the rest of the country combined), grants to Western states for 
SMCRA regulatory programs have actually decreased in inflation-adjusted 
dollars. Most Western states have been faced with difficult choices to 
either cover coal program costs with other state funds or to reduce 
their programs in the face of growing demands.
    New Mexico maintains a lean regulatory program with generally one 
specialist for each needed area: geology, hydrology, engineering, soil 
science and plant science. We have kept costs low through the use of 
technology. Over the past five years, our grant funding has decreased 
while costs have risen for such things as salaries, benefits, fuel, and 
travel. Now we are planning to transfer two full-time employee 
positions in the next month because the coal grant can no longer 
support them.
    Another issue that negatively impacts New Mexico and Western states 
is the shift in OSM's position on use of SMCRA AML funds for high 
priority abandoned non-coal mines. Section 409 of SMCRA allows the 
States to use AML funds to address high priority non-coal mines. Since 
the beginning of the AML program, New Mexico, Utah and Colorado have 
balanced the need to reclaim abandoned coal mines with the need to 
address the significant health and safety threats posed by numerous 
non-coal mines. OSM has recognized this need for flexibility and 
supported it in the past.
    Last December, Congress passed the reauthorization of the AML fee, 
which provided that the distribution of funds to States equal the 
amount previously allocated under SMCRA but never appropriated. For New 
Mexico, this amounts to approximately $20 million in additional AML 
funds distributed over the next 7 years. However, while Section 409 was 
not changed or amended in any way, OSM has suddenly shifted course and 
now indicates to the States that this ``return of state share 
balances'' funding cannot be used for non-coal mine projects.
    This loss of flexibility comes at a particularly significant time 
for New Mexico. After years of discussions, our AML program has reached 
an understanding with the Navajo Nation to jointly work on abandoned 
uranium mines in areas of questionable jurisdiction near the Navajo 
Indian Reservation. The impacts of these uranium mines on the nearby 
residents, particularly the Navajo people, are finally receiving the 
necessary national attention as evidenced by the hearing before the 
House Oversight and Government Reform Committee three weeks ago. With 
the new AML money available, we have a unique opportunity to finally 
address these sites which have caused great harm to the Navajo 
communities. For OSM to suddenly reverse course and deny our ability to 
expend these new AML funds on this high priority problem is difficult 
to comprehend.
    Mr. Chairman and members of the Committee, I thank you for this 
opportunity to share New Mexico's perspective on the Surface Mining 
Control and Reclamation Act. The first 30 years of SMCRA brought 
significant challenges to the States and the federal government. Today, 
we can point to many successes under this law. We look forward to the 
next 30 years and hope that Congress and the federal government will 
continue to provide the States with the flexibility and support 
necessary for continued and further success under SMCRA. We appreciate 
the opportunity to present this testimony, and look forward to working 
with the Committee in the future.

    The Chairman. Thank you very much.
    Mr. Conrad, go right ahead.

STATEMENT OF GREGORY E. CONRAD, EXECUTIVE DIRECTOR, INTERSTATE 
             MINING COMPACT COMMISSION, HERNDON, VA

    Mr. Conrad. Good afternoon, Mr. Chairman and members of the 
committee. I appreciate the invitation to appear before you 
today, and to provide a perspective from the States concerning 
the Surface Mining Control and Reclamation Act as we reflect on 
30 years of its implementation.
    The Compact is comprised of 24 States throughout the 
country that produce some 90 percent of our Nation's coal, as 
well as important non-fuel minerals.
    The Surface Mining Act is one of several laws passed during 
the environmental decades of the seventies that provided for a 
unique blend of Federal and State authority for the 
implementation of its provisions. In designing a regulatory 
model that would be both effective and efficient, Congress 
decided that a State should take the lead in regulating surface 
mining and reclamation operations within their borders.
    Due to the diversity of terrain, climate and other 
conditions related to mining operations, it simply made sense 
to rely upon the States to implement programs based upon 
national standards. The other part of the equation was 
financial. It was anticipated, and indeed, has proven true that 
the States would be able to operate their programs at 
significantly lower costs than the Federal Government.
    We are happy to report today, Mr. Chairman, that the 
regulatory regime established by SMCRA is a success, and is 
working notably well. The purposes of the Act are being 
accomplished in the overall goal of establishing a nationwide 
program to protect society and the environment from the adverse 
effects of past and present coal mining operations has been 
achieved. Drainage and runoff controls are in place to ensure 
that downstream waters are not filled with sediment, or 
otherwise polluted, blasting operations are controlled to 
prevent damage to nearby property, final grading and reshaping 
of mine lands are undertaken to ensure that they are stable and 
approximate their original contour, topsoil is preserved, and 
then replaced to accomplish high levels of productivity, and 
mine lands are reclaimed to a variety of beneficial uses, and 
then returned to local landowners in equal or better condition 
than before mining.
    Examples of some of the excellent reclamation that is 
occurring under the Act can be seen in our two exhibits, which 
highlight various State and national reclamation award winners.
    As we look to the future, Mr. Chairman, the States face 
several challenges. Perhaps the most critical is adequate 
funding for State regulatory programs, as alluded to by Ms. 
Prukop. Pursuant to section 705 of SMCRA, OSM is authorized to 
make annual grants to the States of up to 50 percent of the 
total costs incurred, for the purposes of administering and 
enforcing their programs. This percentage is increased for 
States regulating on Federal lands.
    As you know, Mr. Chairman, these grants are essential to 
the effective operation of State regulatory programs. Over the 
past several years, the amount for these Title V grants has 
been flat lined, as you will note in the graph to my left.
    What this does not show is that these grants have been 
stagnant for over 12 years. Looking again at the graph, another 
disturbing trend is evident, and that is that the gap between 
the State's requests and what they are receiving in annual 
grants is widening. In the end, this increasing gap is 
compounding the problem caused by inflation and uncontrollable 
costs, undermines our efforts to realize needed program 
improvements and enhancements and jeopardizes our efforts to 
minimize the impact of coal extraction operations on people and 
the environment.
    Should the Federal Government be faced with operating these 
programs, the impact on their budget will be significant. For 
all of these reasons, we have urged Congress to increase 
funding for State Title V grants in OSM's Fiscal Year 2008 to 
$67 million, and we are encouraged that both the House and the 
Senate are moving in this direction, and hope to see the full 
amount approved by Congress.
    Let me turn briefly to some of the key successes and future 
challenges facing the States. Over the past 20 years, State 
programs have improved to the point that implementation is 
highly successful. As a result, the overall programmatic 
emphasis has shifted from structural and administrative issues, 
to specific technical, on-the-ground challenges that are 
encountered as reclamation technology and science are advanced. 
This is where OSM serves a valuable support mechanism for the 
States, particularly their TIPS program, and the Agency's 
technical training program, both of which undergird the State's 
efforts to operate efficient and effective programs.
    On another front, the States have worked cooperatively with 
OSM and others to address acid mine drainage issues, and have 
made significant strides in advancing reforestation efforts on 
reclaimed land, and through a partnership among the States, OSM 
and EPA, we have achieved momentum in the re-mining arena, 
where thousands of acres of abandoned mine lands have been 
restored as part of active mining operations, thereby saving 
valuable AML trust fund moneys, and returning the land to 
productive use.
    Speaking of the AML program, the States were greatly 
encouraged by he passage of the 2006 amendments, the SMCRA 
which culminated over 12 years of work by the States and others 
to reauthorize this vital program. The AML program has been one 
of the hallmarks of SMCRA and thus, has accomplished much over 
the years.
    An overview of these accomplishments and continuing 
challenges is contained in a statement for the National 
Association of Abandoned Mine Land Programs,* which I would 
request be accepted for the record.
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    * See Appendix II.
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    Among the future technical----
    The Chairman. We'll include that following your testimony.
    Mr. Conrad. Thank you. Among the future technical and 
regulatory challenges facing the States are those related to 
financial assurance for long-term impacts beyond normal 
reclamation, prime farmland productivity requirements, and 
underground mine mapping. In each of these instances, and in 
others such as subsidence control, blasting and hydrologic 
protection, the States are actively engaged in seeking 
technical solutions, as well as regulatory program enhancements 
that will fully and adequately address concerns associated with 
these issues.
    Thank you very much.
    [The prepared statement of Mr. Conrad follows:]

Prepared Statement of Gregory E. Conrad, Executive Director, Interstate 
                 Mining Compact Commission, Herndon, VA

    Good afternoon Mr. Chairman and Members of the Committee. My name 
is Greg Conrad and I serve as Executive Director of the Interstate 
Mining Compact Commission. The Compact is comprised of 24 states 
throughout the country that together produce some 90% of our Nation's 
coal, as well as important non-fuel minerals. The Compact's purposes 
are to advance the protection and restoration of land, water and other 
resources affected by mining through the encouragement of programs in 
each of the member states that will achieve comparable results in 
protecting, conserving and improving the usefulness of natural 
resources and to assist in achieving and maintaining an efficient, 
productive and economically viable mining industry. Participation in 
the Compact is gained through the enactment of legislation by the 
member states authorizing their entry into the Compact and their 
respective Governors serve as Commissioners. We appreciate the 
opportunity to participate in the Committee's oversight hearing on 
``The Surface Mining Control and Reclamation Act of 1977: Policy Issues 
Thirty Years Later''.
    The Surface Mining Control and Reclamation Act (SMCRA) is one of 
several laws passed in the environmental decade of the 1970s that 
provided for a unique blend of federal and state authority for 
implementation of its provisions. One of the key underpinnings of the 
law during its formation was that the primary governmental 
responsibility for developing, authorizing, issuing and enforcing 
regulations for surface mining and reclamation operations subject to 
the Act should rest with the states, due to the diversity of terrain, 
climate, biologic, chemical and other physical conditions related to 
mining operations. We are here to report on our role and experience as 
primary regulatory authorities under SMCRA and to provide our 
perspective on the various policy issues that attend the implementation 
of this important law.
    By almost all accounts, the implementation of SMCRA by the states 
has been a resounding success. The anticipated purposes of the Act have 
been or are being accomplished and the overall goal of establishing a 
nationwide program to protect society and the environment from the 
adverse effects of past and present surface coal mining operations has 
been achieved. Drainage and runoff controls are in place to ensure that 
downstream waters are not filled with sediment or otherwise polluted by 
mining activity. Blasting operations are controlled to prevent damage 
to nearby buildings and other property. Final grading and reshaping of 
mined lands are undertaken to ensure that they are stable and 
approximate their original contour. Topsoil is preserved and then 
replaced on mined lands to accomplish high levels of productivity. 
Mined lands are reclaimed to a variety of beneficial uses within a few 
years after the completion of mining. Once reclaimed lands are fully 
bond released, they are returned to local landowners in equal or better 
condition than before mining began. All of these statutory requirements 
are being accomplished while maintaining a viable coal mining industry 
that is essential for meeting our Nation's energy needs. Examples of 
some of the excellent reclamation that is occurring under the Act can 
be seen in our two exhibits, which highlight various state, IMCC and 
OSM reclamation award winners.
    As we reflect back on the past 30 years since the enactment of the 
Surface Mining Control and Reclamation Act (SMCRA), much has changed 
and yet some things remain the same. In the early years, we were 
focused on the development of a comprehensive federal regulatory 
program that would serve as the baseline for SMCRA's implementation. 
Many of these initial rules faced legal challenges as being arbitrary, 
capricious or inconsistent with law, which took many years to resolve. 
A few, like the definition of valid existing rights and the procedural 
rules concerning ownership and control that underpin the Applicant/
Violator System, are still unsettled. However, the majority of the 
federal rules are in place and working effectively. This is not to say 
that we are out of the woods with respect to significant future 
rulemakings. Two examples of rules currently before the Office of 
Surface Mining, Reclamation and Enforcement (OSM) are stream buffer 
zones and mine placement of coal combustion by-products. However, in 
general, the regulatory program is more stable and certain than it was 
even 10 years ago, which benefits both coal operators and citizens.
    One of the key components of SMCRA when first enacted was its 
reliance on a unique and challenging arrangement of state and federal 
authority to accomplish its intended purposes and objectives. Pursuant 
to the state primacy approach embodied in SMCRA, the states serve as 
the front-line authorities for implementation of the public protection 
and environmental conservation provisions of the Act, with a supporting 
oversight role accorded to OSM. It has taken a good portion of the past 
thirty years to sort out the components of these often competing roles, 
but the result has been a balance of authority that generally works.
    During the past ten or so years, the working relationship between 
the states and OSM has been particularly productive and non-
contentious. We have moved beyond the second-guessing of state 
decisions that predominated the early years of state program 
implementation and instead are engaged in more cooperative initiatives 
where OSM strives to support the states through technical advice and 
training and where the states and OSM work together to solve difficult 
policy and legal questions. OSM's oversight program is more focused on 
results, looking at on-the-ground reclamation success and off-site 
impacts, which better reflect the true measure of whether the purposes 
of SMCRA are being met. In fact, over the years, both OSM's oversight 
program, as well as several state performance-based regulatory 
programs, have received national recognition for their effectiveness 
and efficiency.
    This is not to say that there are not several challenges ahead of 
us as we look to the future. Perhaps the most crucial at this juncture 
is adequate funding for state regulatory programs. Pursuant to section 
705 of SMCRA, OSM is authorized to make annual grants to the states of 
up to 50 percent of the total costs incurred by the states for the 
purposes of administering and enforcing their programs. This percentage 
is increased for those states that regulate on federal lands. As you 
know, Mr. Chairman, these grants are essential to the full and 
effective operation of state regulatory programs. For the past several 
fiscal years, the amount for state Title V grants has been flat-lined. 
(See figure 1)* What this graph does not show is that these grants have 
been stagnant for over 12 years. The appropriation for state Title V 
grants in FY 1995 was $50.5 million. Essentially, we have attempted to 
operate effective, high performance programs with a meager $6 million 
increase spread over 12 years. By most standards, this is remarkable, 
and clearly a bargain for the federal government. Over this same period 
of time, coal production has risen substantially and OSM's own budget 
for federal program costs has increased by over $25 million. Given the 
fact that it is the states that operate the programs that address the 
environmental impacts of coal mining operations, a similar increase 
would have been expected. But instead, state regulatory grants have 
remained flat-lined.
---------------------------------------------------------------------------
    * Graphic has been retained in committee files.
---------------------------------------------------------------------------
    For Fiscal Year 2008, in an attempt to reverse this trend, OSM has 
proposed a modest increase for state Title V grants. However, it may be 
too little too late, especially for some states such as Virginia and 
Utah. In Virginia, for instance, coal production and operating costs 
have increased, while federal funding for state-based coal regulatory 
programs has consistently decreased. The rise in costs associated with 
wages, employee benefits, and transportation fuels have risen 
approximately 15% over the past four years. Due to the loss of federal 
funds, Virginia is unable to fill many staff postings, including that 
of the critical field inspector. Without a full staff of reclamation 
inspectors, Virginia may not meet federal inspection guidelines. 
Virginia is also unable to fill technical support staff positions. This 
will limit the assistance the Commonwealth can offer to coal companies 
and significantly delay the review and approval process for surface 
mining permits. Virginia's situation is symptomatic of what other 
states are facing--or will soon face--if the debilitating trend for 
Title V grant funding is not reversed.
    It must be kept in mind that state coal regulatory program 
permitting and inspection workloads are in large part related to coal 
mine production. In general, as coal production increases, the need for 
additional permitting and operational inspections also increases. State 
programs must be adequately funded and staffed to insure that 
permitting and inspection duties are both thorough and timely as states 
experience the reality of accelerating coal mine production and 
expansion activities. As program funding shortfalls continue, states 
risk the possibility of delayed production and negative impacts to the 
environment. The situation in Colorado exemplifies this reality. From 
2002 to 2006, Colorado production increased approximately 10%. Permit 
revision activity increased nearly 50% during the same period. This 
reality has stressed existing program resources and caused the delay or 
elimination of lower priority program functions.
    Just as with the federal government, state regulatory programs are 
personnel intensive, with salaries and benefits constituting upwards of 
80 percent of total program costs. And, just like the federal 
government, state personnel costs are increasing. (See figure 2)* 
States must have sufficient staff to complete permitting, inspection 
and enforcement actions needed to protect citizens of the coalfields. 
When funding falls below program needs, states may struggle to keep 
active sites free of offsite impacts, reclaim mined areas, and prevent 
injuries.
---------------------------------------------------------------------------
    * Graphic has been retained in committee files.
---------------------------------------------------------------------------
    Looking again at figure 1, another disturbing trend is evident. The 
gap between the states' requests, which are based on anticipated 
expenditures, and what states are receiving in annual grants, is 
widening. The numbers in this chart are taken from OSM budget 
justification documents, OSM's website, and estimates provided to OSM 
from the states. Please note that these numbers have not been adjusted 
for inflation--which means the situation is actually more bleak. There 
is no disagreement about the need demonstrated by the states. In fact, 
in OSM's own budget justification document, OSM states that: ``the 
states have the unique capabilities and knowledge to regulate the lands 
within their borders. Providing a 50 percent match of Federal funds to 
primacy States in the form of grants results is the highest benefit and 
the lowest cost to the Federal government. If a state were to 
relinquish primacy, OSM would have to hire sufficient numbers and types 
of Federal employees to implement the program. The cost to the Federal 
government would be significantly higher.'' (Page 71 of OSM's Budget 
Justification)
    The enormity of this funding challenge will become increasingly 
clear as the federal government is faced with the dilemma of either 
securing the necessary funding for state programs or implementing those 
programs (or portions thereof) themselves--at significantly higher 
costs. In Virginia alone, for instance, the cost of OSM running the 
program would likely amount to $8-10 million based on what it currently 
costs OSM to run the comparable federal program in Tennessee. For 
perspective, in Fiscal Year 2007, Virginia has been offered $3.175 
million in federal funding to operate its program (although actual 
needs amount to $3.6 million--an overall shortfall of nearly $1 million 
when the state match is factored in). If this analysis was expanded to 
all of the 24 state programs, the overall impacts to the federal 
government would be dramatic. In addition, as anticipated by SMCRA's 
framers, the states are closer to the action, are able to account for 
local conditions and circumstances and can be more responsive.
    In the end, the increasing gap between the states' anticipated 
expenditures and actual Federal funding is compounding the problem 
caused by inflation and uncontrollable costs, undermines our efforts to 
realize needed program improvements and enhancements, and jeopardizes 
our efforts to minimize the impact of coal extraction operations on 
people and the environment. For all these reasons, we have urged 
Congress to increase funding for state Title V regulatory grants in 
OSM's FY 2008 budget to $67 million, as fully documented in the states' 
estimates for actual program operating costs. A resolution adopted by 
IMCC at its recent annual meeting addressing this matter is attached to 
our testimony (Attachment No. 1).** At this point, the House has 
approved an additional $2 million over the Administration's request of 
$60.2 million and the Senate Appropriations Committee has approved a $6 
million increase over that request. This is very encouraging and we 
trust that in the end, Congress will approve the full $66.2 million for 
state Title V grants.
---------------------------------------------------------------------------
    ** Document has been retained in committee files.
---------------------------------------------------------------------------
    It must be kept in mind that where there is inadequate funding to 
support state programs, some states will be faced with turning all or 
portions of their programs back to OSM (as in the case of Virginia) or, 
in other cases, will face potential lawsuits for failing to fulfill 
mandatory duties in an effective manner (as has occurred in Kentucky 
and West Virginia in the past). Of course, where a state does, in fact, 
turn all or part of its Title V program back to OSM (or if OSM forces 
this issue based on an OSM determination of ineffective state program 
implementation), the state would be ineligible for Title IV funds to 
reclaim abandoned mine lands. This would be the height of irony given 
the recent reauthorization and revitalization of the AML program.
    Speaking of the Title IV AML program, the states were greatly 
encouraged by the passage of the 2006 Amendments to SMCRA, which 
culminated over 12 years of work by the states and others to 
reauthorize this vital program. The AML program has been one of the 
hallmarks of SMCRA and has accomplished much over the years, as further 
articulated in the statement submitted by the National Association of 
Abandoned Mine Land Programs (NAAMLP). With the infusion of new life 
and funding, the program holds out great promise for the future. The 
states have been working closely with OSM to design rules that will 
appropriately implement the provisions of the 2006 amendments and allow 
the states to put money into projects that meet the purposes and 
objectives of the new law. Among the key issues we have addressed in 
our discussions with OSM are the following:

   Use of the grant mechanism to distribute payments from the 
        U.S. Treasury
   Funding for minimum program states
   Use of unappropriated state share balances for noncoal 
        reclamation and the acid mine drainage set aside
   The effective date of certain payments under the new law
   Adjustments to the current grants process

    We look forward to pursuing these issues in greater detail with OSM 
over the coming months. Should the Committee desire a copy of our more 
detailed comments on the draft proposed rules, please let us know.
    With regard to funding for state Title IV Abandoned Mine Land (AML) 
program grants, recent Congressional action to reauthorize Title IV of 
SMCRA has significantly changed the method by which state reclamation 
grants are funded. Beginning with FY 2008, state Title IV grants are to 
be funded primarily by permanent appropriations. The only programs that 
continue to be funded through discretionary appropriations are high-
priority federal reclamation programs, state and federal emergency 
programs, and OSM operations. As a result, the states will receive 
mandatory funding in FY 2008 of $288.4 million for AML reclamation 
work. OSM also proposes to continue its support of the Watershed 
Cooperative Agreement program in the amount of $1.6 million, a program 
we strongly endorse.
    Assuming that permanent appropriations for state AML grants do, in 
fact, become a reality (and we trust they will), there are three 
remaining discretionary funding priorities for the states: minimum 
program funding; federal emergency programs; and Clean Streams funding. 
With respect to minimum program states, under the new funding formula 
provided to us by OSM, all of the states and tribes will receive 
immediate funding increases except for minimum program states. Under 
OSM's interpretation of the 2006 Amendments, those programs remain 
stagnant for the next two fiscal years at $1.5 million, a level of 
funding that greatly inhibits the ability of these states to accomplish 
much in the way of substantive AML work. Many of these states have 
pending high priority AML projects ``on the shelf'' that cost several 
million dollars. The challenge for these states is putting together 
enough moneys to address these larger projects given minimum funding. 
It is both unfair and inappropriate for these states to have to wait 
another two years to receive any funding increases when they are the 
states most in need of AML moneys. We have therefore urged Congress to 
fund these states at the statutorily authorized level of $3 million in 
FY 2008 so as to level the playing field and allow these states to get 
on with the critical AML projects that are awaiting funding.
    We have also urged Congress to approve continued funding for 
emergency programs in those states that have not assumed these 
programs. Funding the OSM emergency program should be a top priority 
for OSM's discretionary spending. This funding has allowed OSM to 
address the unanticipated AML emergencies that inevitably occur each 
year in states without state-administered emergency programs. Without 
this funding, it will be up to the states to address the emergencies 
that occur. In states that have federally-operated emergency programs, 
the state AML programs are not structured or staffed to move quickly to 
address these dangers and safeguard the coalfield citizens whose lives 
and property are threatened by these unforeseen and often debilitating 
events. Finally, we have urged Congress to approve continued funding 
for the Clean Streams Initiative. OSM has chosen to eliminate funding 
for this worthwhile program in FY 2008. We believe this is a mistake. 
Significant environmental restoration of impacted streams and rivers 
has been accomplished pursuant to this program, to say nothing of the 
goodwill that the program has engendered among local communities and 
watershed groups. For the small investment of money that is 
appropriated for this program each year (approximately $ 3 million), 
the return is huge.
    Future challenges for the AML program include the perpetual 
operation and maintenance costs associated with acid mine drainage 
treatment; assuring that maximum flexibility is provided to the states 
to determine their respective AML project priorities; and enhancing 
opportunities for economic development (including recreation and 
tourism) in depressed areas of the coalfields.
    As mentioned earlier, one of OSM's primary missions under the 
Surface Mining Act is evaluating the states' administration of their 
programs, otherwise known as oversight. This process has undergone a 
significant metamorphosis, the result of which has been a more credible 
and useful program for informing Congress and others about the status 
of state program administration. The first attempt at designing a 
meaningful oversight program in the mid-1980's was merely an exercise 
in data gathering or output measurement. We were concerned then with 
numbers of inspections, numbers of permit reviews and numbers of 
enforcement actions. OSM also tended to look behind state permitting 
decisions to determine whether OSM would have handled them the same way 
as the states. This type of ``second guessing'' generated significant 
conflict and even resentment between the states and OSM. In addition, 
the numbers that were collected into oversight reports told us little 
or nothing about whether the objectives of SMCRA were being met (i.e. 
what was happening on the ground? how effectively were state programs 
actually protecting the environment? how well was the public being 
protected and how effectively were citizens being served? how well were 
we working together as state and federal governments in implementing 
the purposes of SMCRA?).
    Following an effort by OSM and the states in the late 1980's to 
fashion a more effective state program evaluation process based on a 
goal-oriented or results-oriented oversight policy and another review 
of the process in the mid-1990's, a performance measurement approach 
was adopted, based in large part on the requirements of the Government 
Performance and Results Act (GPRA). The new outcome indicators now 
focus on the following: the percentage of coal mining sites free of 
off-site impacts; the percentage of mined acreage that is reclaimed 
(i.e. that meets the bond release requirements for the various phases 
of reclamation); and the number of federal, private and tribal land and 
surface water acres reclaimed or mitigated from the effects of natural 
resource degradation from past coal mining, including stream 
restoration, water quality improvement, and correction of conditions 
threatening public health or safety. These new measurements are 
intended to provide Congress and others with a better picture of how 
well SMCRA is working and how well the states are doing in protecting 
the public and the environment pursuant to their federally approved 
programs. Much of this can also be told in pictures of reclaimed mined 
areas like those shown in our exhibits, many of which reflect winners 
of IMCC's and OSM's national reclamation awards. Effective program 
implementation by the states and compliance by the coal industry are 
resulting in the reclamation and restoration of both active and 
abandoned sites that meet the objectives of SMCRA and benefit both 
people and the environment.
    Over the past twenty years, state regulatory programs have improved 
to the point that implementation is highly successful. Due to this 
success, the overall programmatic emphasis under SMCRA has shifted from 
structural and administrative issues to specific technical issues that 
are encountered as reclamation technology and science are advanced. 
These issues tend to manifest themselves as environmental challenges 
unique to particular regions or states, many of which must be resolved 
during the permitting process. They may also arise as a result of state 
inspections at mining sites. In any event, due to constraints on 
existing state resources, states may be unable to undertake the type of 
technical analyses that attend these issues. This is where OSM serves a 
valuable support mechanism for the states (as anticipated by section 
705 of SMCRA) by providing technical assistance. In addition to 
meaningful and properly focused assistance, the states also look to 
OSM's Technical Innovation and Professional Services (TIPS) program. 
This has been one of OSM's most valuable and effective initiatives and 
serves as the cornerstone of the states' computer capability, 
particularly now that many states are utilizing electronic permitting. 
We trust that OSM and Congress will continue their support for TIPS and 
for the hardware and software upgrades that are required to assure the 
system's integrity and usefulness. TIPS training is also critical.
    One of the key successes of SMCRA over the years has been its 
training program. Through a combination of both state and federal 
agency instructors, OSM's National Technical Training Program (NTTP) 
assures that newly hired state and federal employees, especially 
inspectors and permit writers, receive adequate and credible training 
both on basic elements of program implementation and on cutting-edge 
technical and policy subjects. The NTTP has also allowed more seasoned 
employees to fine tune their skills and update their knowledge on 
important topics. OSM's training program is especially important for 
smaller states that do not otherwise have access to such resources. In 
addition to NTTP classes, IMCC (working in cooperation with NTTP) has 
developed and facilitated a series of benchmarking workshops for both 
state and federal agency personnel that has allowed them to improve and 
enhance their respective regulatory programs and skills in such areas 
as blasting, subsidence, bonding, underground mine mapping, and 
permitting related to hydrologic balance. OSM has also sponsored 
several interactive forums on a variety of subjects of mutual interest 
to the states and we urge the agency to continue this practice, again 
with state input. All of these training components will become 
increasingly more critical as OSM and the states face a retiring 
workforce and the attendant succession planning that follows.
    There have been other notable successes in SMCRA's implementation, 
in both the regulatory and policy areas. The states have worked 
cooperatively with OSM and others to address acid mine drainage issues 
through the Acid Drainage Technology Initiative, which focuses on 
prediction, prevention, avoidance, remediation and treatment. Again 
working cooperatively with OSM, the states have made significant 
strides in advancing reforestation efforts on reclaimed lands, 
particularly through the Appalachian Regional Reforestation Initiative. 
Through a partnership among the states, OSM and the Environmental 
Protection Agency (EPA), we have also seen major advances in the 
remining arena, where thousands of acres of abandoned mine lands have 
been restored as part of active mining operations, thereby saving 
valuable AML Trust Fund dollars and returning the land to productive 
use. We have also been working with EPA and OSM to revisit the current 
effluent limitation for manganese so as to reduce or prevent the 
adverse effects and potential hazards arising from some of the 
treatment technologies related to control of manganese.
    In its 1990 monograph on ``Environmental Regulation of Coal Mining: 
SMCRA's Second Decade'', the Environmental Policy Institute identified 
and commented on several challenges facing the states and OSM, as 
follows:

          The issues facing regulators today are more difficult than 
        they were in 1977. Many of the easier and more blatant problems 
        have been addressed [such as the two acre exemption] . . . . 
        The regulatory issues today include the prevention of 
        hydrologic damage, the control of subsidence and subsidence 
        damage, the establishment of adequate reclamation bond amounts, 
        the use of permit-based enforcement, and the improvement of 
        federal oversight. Also of concern is the massive shortfall in 
        the federal fund meant to reclaim areas abandoned prior to 1977 
        without reclamation. [Page3]

    Throughout SMCRA's third decade, many of these issues have been 
addressed and resolved. Congress has addressed the shortfall of moneys 
in the AML Trust Fund with the 2006 Amendments to SMCRA and OSM and the 
states are well on their way to implementing those adjustments and 
putting more money on the ground to restore AML sites. Federal 
oversight (and the attendant state/federal relationship under SMCRA) 
has advanced by significant degrees and is no longer the flashpoint 
that it once was. Through advances in electronic permitting and the use 
of tools available through OSM's TIPS program, state permitting actions 
are timely, comprehensive and accurate, thereby insuring more effective 
compliance with the law.
    That being said, given the nature and scope of today's mining and 
reclamation operations and attendant environmental impacts, we continue 
to face challenges as regulatory authorities under SMCRA. A few 
examples follow:

   Bonding--one of the larger challenges concerning the bonding 
        provisions of SMCRA is with regard to post closure issues. 
        While SMCRA originally envisioned the bond as a guarantee of 
        performance during mining, it did not anticipate the challenges 
        associated with postmining concerns such as long-term treatment 
        associated with acid mine drainage or long-term impacts from 
        subsidence. For instance, OSM's current rules on bonding 
        require that the bond amount be adjusted for potential 
        subsidence damage repairs. However, nothing is said about how 
        the bond release procedure will apply in these situations. The 
        result is that surety companies are reluctant to write bonds 
        for reclamation because of the long term nature and unknown 
        extent of the liability. The states have been working with OSM 
        to address this matter through the use of other financial 
        assurance mechanisms, such as trust funds. There are also 
        issues associated with bond release in general. Given that the 
        procedures attending release are so cumbersome and expensive, 
        coal operators simply choose not to apply for them. This 
        further impacts the availability of bond capacity in the market 
        and results in unnecessary expenses for states related to 
        continued inspection and enforcement on these essentially 
        completed reclamation sites.
   Prime farmland--the requirements related to proof of 
        productivity (five year minimum) prior to termination of 
        jurisdiction and before the land can be returned to the owner 
        are cumbersome. The mid-continent states are currently 
        undertaking research through a major Midwestern agronomy/soil 
        science university to determine proper testing techniques to 
        ensure soil capabilities are present, in the hope that an 
        alternative method for demonstrating productivity can be 
        attained, thus returning land much sooner back to the owner of 
        record.
   AVS--over the past twenty years, the states have worked 
        diligently with OSM to develop the Applicant/Violator System 
        (AVS), which assists us in implementing section 510(c) of 
        SMCRA, particularly the issuance of permits. Early in the 
        development of AVS, the states focused on designing a system 
        that would allow them to identify and block violators and other 
        scofflaws without bogging down the database with useless or 
        unproductive information. While we have made progress in this 
        regard, we continue to examine ways to improve and enhance 
        overall system effectiveness. For example, a critical aspect of 
        AVS is the rules that define ownership and control; permit and 
        application information requirements; and the transfer, 
        assignment or sale of permit rights. These rules have been 
        under a constant state of flux since their original 
        promulgation in 1988 and a recent OSM rulemaking attempts to 
        bring closure to several key issues that remain unresolved or 
        problematic.
   Underground mine mapping--another continuing challenge that 
        we face concerns accurate and readily available underground 
        mine maps, which are essential for protecting the public, the 
        environment and infrastructure from the threats posed by 
        unknown underground mines. Events such as the Quecreek incident 
        in Pennsylvania and the Martin County Coal Company impoundment 
        failure in Kentucky were high profile demonstrations of the 
        kinds of incidents that can occur when mine maps are inaccurate 
        or unavailable. IMCC has sponsored a series of national and 
        regional benchmarking workshops that have focused on the 
        collection, handling, scanning, georeferencing and validation 
        of mine maps. While the expertise and technology is available 
        to tackle this issue and accomplish these tasks, our biggest 
        challenge is the lack of funding for personnel, hardware, 
        software upgrades and database development to move the 
        initiative forward.

    In each of these instances, and in others such as subsidence 
control, blasting and hydrologic protection, the states are actively 
engaged in seeking technical solutions, as well as regulatory program 
enhancements, that will fully and adequately address concerns 
associated with these issues. As an example, over the past several 
years, IMCC has sponsored benchmarking workshops on subsidence impacts, 
blasting, financial assurance, electronic permitting and hydrologic 
balance, all of which have provided state and federal regulators with 
an opportunity to examine these issues in detail with an eye toward 
regulatory program improvements. IMCC is currently preparing for its 
next workshop on surface and ground water database development and use 
as part of the permitting process. The overall goal is to continually 
assess and enhance our performance as regulatory authorities in an 
effort to achieve ever higher levels of program effectiveness.
    Much progress has been made over the past 30 years to accomplish 
the purposes and objectives of SMCRA. From our perspective, the basic 
organization of OSM is working well. At this point of SMCRA's 
implementation, neither the states nor OSM are dealing with the same 
types of issues or problems that attended the early years of program 
formation and administration. We have moved away from questions of 
adequate state program components and state implementation techniques 
to more substantive issues associated with technical, on-the-ground 
problems or with thorny legal and policy questions associated with 
interpretation of our programs. We therefore believe that it is most 
relevant for OSM to focus its energies and resources on assisting and 
supporting the states through adequate funding for state grants, sound 
technical and legal assistance, and opportunities for the states to 
actively participate in the agency's excellent training program. The 
overall result will be less federal intrusion in the states' 
administration of their programs, a concomitant enhancement of the 
federal/state partnership, and better on-the-ground performance by the 
regulated industry.
    We appreciate the opportunity to present this testimony and welcome 
the opportunity to work with your Committee, Mr. Chairman, to insure 
the effective implementation of SMCRA in the 21st century.

    The Chairman. Thank you very much.
    Mr. Trujillo, go right ahead, please.

STATEMENT OF ARVIN TRUJILLO, EXECUTIVE DIRECTOR, NAVAJO NATION, 
                        WINDOW ROCK, AZ

    Mr. Trujillo. Thank you, Mr. Chairman, members of the 
committee. Again, I appreciate the opportunity to come before 
you to address issues concerning the Navajo Nation.
    You have my statement for the record. I'd like to just 
expand quickly on a couple of points for your consideration.
    Looking at the AML program, both the AML program and our 
primacy efforts are under my Division, which is the Division of 
Natural Resources.
    The AML program has been very successful--we are a 
certified program, meaning we have completed the reclamation 
work on the abandoned mine land sites within the reservation, 
on trust areas.
    We're also now working with OSM and also with the National 
Association of AML programs to develop proposed rules in terms 
of the allocations of funding, both the trust fund, as well as 
the fees--as noted by Secretary Prukop and Mr. Conrad.
    Again, as Madame Secretary noted, we too are looking at 
funding flexibility within the appropriations. Again, being a 
certified tribal program, that has allowed us to earmark 
funding for public facility programs within the reservation, 
meaning that we've been able to bring additional dollars to 
help set up needed infrastructure within the reservation as a 
whole.
    As far as the AML program's concerned, we continue to ask 
that OSM work to finalize the proposed rules, look at funding 
flexibility, as well as continue with their efforts to allocate 
funding for this coming year from the fees collected.
    Our main focus with the Navajo Nation has been our work on 
primacy--looking at how we can take over the overall operations 
of overseeing mining and reclamation activities within the 
Navajo Nation. Three areas of concern to us. One, it is our 
understanding that tribes are to follow a process that would 
mimic the review process for States. In discussions up to this 
point in time, there's been thoughts coming out from OSM 
indicating that they would like to develop a proposed rule for 
this--we don't think that's necessary.
    Second of all, we are requesting that the OSM continue to 
help us in developing the application for primacy--both looking 
at the expertise that they have as well as helping us defray 
costs for that.
    Again, from the Nation's side, we're looking at the 
development of a Surface Mining and Reclamation code which will 
have to be approved by the Navajo Nation Council. We're also 
setting up tribal regulations comparable to 30 CFR Subchapter 
D, and we're also completing a regulatory program, or proposing 
a regulatory program, looking at staffing, budgeting and 
detailed descriptions on how regulatory processes will be 
developed.
    A preliminary draft of the Navajo Nation's Mining and 
Reclamation Code has been completed, and now is before OSM for 
their review and comment. We ask that this continue, and be 
done in a timely fashion. We're also developing regulations 
that will be going before the Navajo Nation Council for final 
approval.
    The last piece is we want to draw OSM into the tribal 
program development process. OSM has been the regulatory 
authority within Indian lands for the past 30 years. We're 
looking to utilize their experience, and we're requesting 
information and assistance from them in developing our own 
specific program. Again, we're asking that this be done in a 
timely manner, and that if possible, timelines be presented to 
us.
    As noted, there are a number of areas that we're focused 
on, on trying to achieve. Right now, our surface mining program 
has four individuals and they're doing all of the work, plus 
everything else in the Navajo Nation, including inspections, 
mining training, et cetera. So, again, we're asking for 
assistance through the funding grant, and once the program is 
established, continued funding through that. Because, unlike 
State programs, the amendments within SMCRA provide 100 percent 
funding for tribal programs.
    So again, we've been working on this since 1982. We feel we 
have the capabilities of meeting these responsibilities. Since 
the enactment of SMCRA, over 675 million tons of coal have been 
mined from the Navajo Nation. We have 3 active mining 
operations, one is ready to close, one has closed, due to the 
closure at the Mojave Generating Station.
    But again, I thank you for the opportunity to come before 
you, and to express our points for the Navajo Nation, Mr. 
Chairman.
    [The prepared statement of Mr. Trujillo follows:]

   Prepared Statement of Arvin Trujillo, Executive Director, Navajo 
                        Nation, Window Rock, AZ

    Chairman Bingaman, Senator Domenici, and members of the Senate 
Energy and Natural Resources Committee (Committee), good morning. I 
appreciate the opportunity to come before the Committee to provide the 
Navajo Nation's (Nation) insight on the implementation of the 
amendments to the Surface Mining Control and Reclamation Act of 1977 
(SMCRA). My name is Arvin Trujillo, and I am the Executive Director of 
the Navajo Nation's Division of Natural Resources. I have been in this 
position since 1999, first in the cabinet of former President Kelsey 
Begaye and now under the leadership of President Joe Shirley, Jr.
    This morning I would like to provide information on the Nation's 
progress in implementing the SMCRA amendments approved in December 
2006, as it pertains to the Abandoned Mined Lands (AML) program and the 
Nation's efforts to obtain primacy over mining and reclamation 
activities on the Navajo reservation. I would also like to take this 
opportunity to thank the leadership of the Committee in their support 
of the amendments made to SMCRA under the Health Care and Tax Relief 
Act of 2006.
    Progress by the Office of Surface Mining Reclamation and 
Enforcement (OSM) with the amendments to the AML program is steady, but 
the Nation is respectfully requesting that the timelines stay on 
schedule with the Proposed Rule. OSM is still in the process of 
drafting the final Proposed Rule and the Nation is anticipating these 
regulations to be completed by the summer of 2008. The Nation has been 
working closely with the National Association of AML Programs (NAAMLP) 
in providing feedback to OSM on the development of the Proposed Rule 
and the Nation is in support of the western states' position to allow 
for funding flexibility for high priority non-coal sites. Navajo AML 
has met its obligation of reclaiming abandoned coal sites within the 
reservation and we are certified. This provides the Nation the 
opportunity to contribute to needed infrastructure development through 
its Public Facilities Program, which is a program allowed under current 
legislation to certified state and tribal programs. Finally, OSM is in 
the process of collecting fees from mining companies for the coming 
year and it is anticipated 1 that funds will be distributed to both 
state and tribal programs by mid December of this year. The Nation is 
requesting that OSM stay with this schedule because the program's 
planning for fiscal year 2008 is dependent on appropriations received 
from this distribution in December.
    The focus of the Navajo Nation's Division of Natural Resources 
(Division) and the Minerals Department, which is one of 11 departments 
under the Division, is for the Minerals Department to obtain primacy 
under SMCRA to oversee the mining and reclamation activities within the 
Nation. There are three issues that concern the Nation in developing an 
application for review and in how the application will be reviewed to 
determine the qualifications of the Nation to take on responsibilities 
under SMCRA.
    First, it is the understanding of the Nation that tribes will 
develop an application that will be reviewed in the same manner that 
state applications are reviewed when they apply for primacy under 
SMCRA. OSM has stated that they will be developing proposed rules under 
which tribes would submit an application for primacy. The Nation does 
not think this is necessary. This position has been debated with OSM 
since the Nation first began its efforts to develop an application in 
January 2007, and the position by OSM adds confusion to the process. 
Furthermore, there have been interpretations by OSM staff that tribes 
can only apply for partial primacy, but it is the understanding of the 
Nation that dependent on the application submitted by an Indian tribe, 
a tribe can apply for partial or full primacy of activities including 
permitting, inspection, enforcement, and bonding. It is, therefore, the 
position of the Nation that proposed rules do not need to be developed 
and that a tribe has the opportunity to apply for full or partial 
primacy.
    Secondly, the Nation is requesting assistance from OSM to develop a 
complete application and to provide funding to help defray cost in the 
development of the application. The Minerals Department has hired a 
consultant to assist in the development of a formal submission, which 
would include: 1) the surface mining and reclamation code as adapted by 
the Navajo Nation Council; 2) a set of tribal regulations comparable to 
30 CFR Subchapter D; and 3) a complete discussion of the proposed 
Tribal Regulatory program including staffing, budget, and detailed 
descriptions of how the regulatory process will work. OSM has formed a 
team to work with the Nation in its efforts to develop a formal 
application for primacy. A preliminary draft Navajo Nation Mining and 
Reclamation Code (NNMRC) has been prepared and has been sent to OSM for 
their initial review. We are requesting OSM to provide the Nation with 
a timeline for 2 completion of their review. Once the NNMRC is 
completed, this will require the approval of the Navajo Nation Council. 
While the NNMRC is being finalized, regulations will need to be 
developed and from our discussions with OSM, our approach will be to 
develop regulations which will rely on existing regulations within 30 
CFR by cross referencing and establishing new regulations where needed 
for clarification. Finally, the Nation plans to draw OSM into the 
Tribal Program development process. OSM has been the Regulatory 
Authority for coal mining operations on Indian Lands for 30 years. We 
plan on utilizing their experience and will be requesting information 
and assistance from them. Under one of the purposes of SMCRA (Sec. 201 
(c) (9), OSM is to ``assist states (tribes) in the development of State 
(Tribal) programs.'' This effort will take personnel to accomplish and 
the Nation will be requesting an increase in its budget to add to the 
four staff members currently in place with the Surface Mining program. 
It is requested that OSM complete all reviews of documentation in a 
timely manner and it would be preferred that timelines be provided as 
to when these reviews will be completed. The Nation is also requesting 
OSM to provide assistance and funding to complete the formal submission 
for primacy consideration.
    Tertiary, once primacy is awarded to the Nation, the program will 
need to be funded. Unlike the funding commitments to State programs, 
the amendments to SMCRA provides for 100% funding for Tribal programs. 
The Nation is not advocating a ``blank check'' for the Nation, but fund 
those programs to the need requested. This commitment could also be in 
place for current programs. In all cases, the Nation can and will 
provide the necessary justification to OSM for the planned budget 
amounts submitted to OSM. Senators, this is where the Nation could also 
ask for your support in providing adequate funding to OSM to see that 
sufficient allocations are provided to both State and Tribal programs.
    The Navajo Nation has been working towards this goal since 1982. 
The Nation is of the opinion that it has the capability of overseeing 
mining operations within its borders. There seems to be reluctance on 
OSM's part to move this effort forward in a timely manner. The Nation 
is aware that this effort will affect the operations of the local field 
office, but I would like to have this process completed by the end of 
2008 at the latest. I would also like to emphasize that the proposed 
rule for the allocation of funding under AML be completed by the summer 
of 2008. Again, I would like to express my gratitude to the Committee's 
leadership in supporting the Nation's effort to obtain primacy under 
SMCRA.

    The Chairman. Thank you very much. Thank you all for your 
testimony, and let me just start and we'll do 5-minute round of 
questions here.
    Mr. Wahlquist, let me start with you. On this whole issue 
of mountaintop mining and mountaintop removal as it's referred 
to--I guess I'm concerned as I read SMCRA, I tried to review 
the statute, and it seems to me to have some pretty specific 
requirements with regard to water protection, with regard to 
reclaiming of mine land to approximate original contour.
    I don't, frankly, understand exactly how that comports 
with, or is consistent with this practice of mountaintop 
mining, which your Agency seems to be approving on a fairly 
regular basis. Could you explain to me how you believe your 
actions were consistent with the statute?
    Mr. Wahlquist. As we would look at the statute, there's 
basically two kinds of operations that would be occurring in 
the steep slopes and the ridge top mountains of Central 
Appalachia. Those that would receive a variance from 
approximate original contour, which are the mountaintop removal 
operations--in that context, then, they have an express 
variance, and do not need to restore to approximate original 
contour. Instead, they are able to leave it flat or gently 
sloping land, and as long as they use an approved post-mining 
land use.
    The other would be no different than any other kind of 
surface mine, whether it's New Mexico or Southern West 
Virginia, and that is that is nary a mine that, as they mine 
through the area, that they must restore approximate original 
contour, and restore the land use to an equal or better land 
use as what was occurring before.
    So, those are the two basic types, they can mine through a 
mountaintop or ridge top, the same as they would any other 
area, and they must restore to AOC, unless they get an express 
variance from approximate original contour, and then they must 
have an alternative land use.
    The Chairman. Can you give me a better understanding of 
what the criteria is you look at to determine whether to issue 
a variance? I think I saw somewhere in the background materials 
here, that you've issued over 6,000 of these variances?
    Mr. Wahlquist. The primary regulators here, again, are the 
States, and most of this occurs in Virginia, West Virginia and 
Kentucky. The criteria, then, are those that are contained in 
the regulations for seeking a variance, and the primary role 
for a variance from approximate original contour is whether or 
not they have an approved post-mining land use.
    The Chairman. Yes, I had thought that there had to be some 
showing that there would be no impairment of a water, stream or 
something to the effect, in order to get a variance--am I 
confused about that?
    Mr. Wahlquist. The regulations, if we have implemented 
there, clearly contemplate and recognize that they may, that in 
mountaintop mining, whether it's done with a AOC variance, or 
whether it is restoring approximate original contour, will 
create excess soil. So, the disposal of the excess soil is 
somewhere out--that is soil that is placed outside of the mine 
area. So, in general, in Central Appalachia, then, that is 
going to be placed in the head of a hollow, a nearby head of 
hollow. The Surface Mining Act has express provisions for 
disposal spoil that includes a requirement for under drains in 
those areas where there is stream channels.
    The Chairman. So you can avoid the problem of covering over 
a stream by some kind of under flow, you said?
    Mr. Wahlquist. Yes, and in fact it was the 4th Circuit in a 
case about 3 or 4 years ago, acknowledged that the Surface 
Mining Act clearly contemplates the disposal of excess spoil in 
waters of the United States, including intermittent and 
perennial streams.
    The Chairman. OK. You've got some new regulations out, as I 
understand it there's currently a stream buffer zone rule that 
calls for 100-foot buffer around perennial and intermittent 
streams, unless regulatory authority specifically authorizes 
surface mining. That's being changed in the new rule, as I 
understand it?
    Mr. Wahlquist. We have proposed a rule that would revise 
the stream buffer zone, we published that proposal on August 
25th. The comment period is still open on that rule, it will 
close on November the 23rd. That rule includes two parts--one 
would be a revision or clarification of the stream buffer zone 
rule, and also a tightening of the requirements related to the 
disposal of excess spoil, that would particularly include the 
consideration of environmental effects. To assure that the 
amount of spoil was no larger than that needed, and that the 
fills that were designed no larger than required, it would also 
clarify what kinds of operations are subject to the stream 
buffer zone.
    I would not that the Surface Mining Act itself does not use 
the term ``stream buffer zone,'' that's a regulatory creation, 
and the intent of this rule, then, is to clarify the 
application of that rule.
    The Chairman. My time is up.
    Senator Domenici.
    Senator Domenici. Thank you very much, Senator Bingaman.
    I guess I want to get to the bottom of the issue, raised 
here by Secretary Prukop, with reference to whether or not New 
Mexico can use their money for uranium mining cleanup, or 
activities that relate appropriately to the law. She said, if I 
heard it right, that there had been a change recently from you 
all saying that they no longer could do that, and I wonder why 
that is?
    Mr. Wahlquist. Section 409, which deals with non-coal 
mining expressly authorizes the use of two types of funding. 
That is, State share funding, and historic coal funding for use 
on non-coal. There's been no change in that, and there's 
certainly nothing that we would look at doing anything 
differently there.
    The 2006 amendments also created a new source of funding, 
that is, the payback of the unappropriated State share balance 
over the next 7 years that will be coming from the Treasury. 
The issue that is now before us, and that we are still dealing 
with the Solicitor's Office on, is whether or not that money, 
as well, may be used for non-coal.
    No decision has been made on that, we do anticipate a 
decision will be made in time for the 2008 distribution in mid-
December, and we'll be closing the books on our collections at 
the end of November, anticipate making that distribution in 
mid-December, and we hope to be able to announce those 
decisions as to what we will--in coordination with the 
Solicitor's Office--during the week of December 3.
    Senator Domenici. We hope so, and we hope that uranium is 
included then, when you make that distribution.
    Secretary Prukop, is there anything else that needs 
clarifying from your standpoint, with reference to the 
relationship between your proposed efforts that you're 
concerned about, and what they are doing, or not doing?
    Ms. Prukop. Mr. Chairman, Senator Domenici, members of the 
committee, no, Senator Domenici, I do believe so, I guess we're 
just anxious to see what that decision is in December, because 
we do not feel there is any fundamental difference in the 
language that--actually there's no change in the language in 
the Act that caused a change in the decisionmaking within OSM, 
on this issue.
    Senator Domenici. Thank you. Thank you very much.
    Could I ask you, Mr. Trujillo, if the Federal Government 
under the Acts we've been referring to here today, continues 
with the position that New Mexico can use some of its money for 
uranium mining cleanup? I assume that that would be consistent 
with what the Navajo Nation would like to happen, is that 
correct?
    Mr. Trujillo. That's correct, Senator. We're also looking 
at how we can act, effectively utilize funding to address non-
coal sources.
    Now, one thing that we have to take a look at and work 
carefully with New Mexico on, is the allotted land issue. We 
have addressed areas, within the trust area, but we don't have 
jurisdiction within the allotted lands area. So, that's one 
area that we'll have to address, as we go forward.
    Senator Domenici. But, I understand that Navajo Nation 
leaders, and you as environmental leader, would like to see 
some movement toward cleaning up the uranium mining areas, 
before you approve of uranium mining in the area, is that 
correct?
    Mr. Trujillo. That's correct, Senator. Again, we're looking 
at how we can effectively begin in cleaning up, and through the 
current efforts of Congressman Waxman, as well as Congressman 
Udall, we're trying to determine what the Federal agencies will 
be doing, and then partnering effectively with them, as well as 
with the State of New Mexico, Senator.
    Senator Domenici. Yes, Secretary Prukop, I assume your 
office is well aware of the activity that is going on in New 
Mexico, particularly in the same areas that it was going on 
prior to this, when we were the No. 1 uranium producer in the 
United States. You are involved with those various permittees, 
and those who are expressing interest in pursuing uranium 
mining, are you not?
    Ms. Prukop. Yes, sir. Mr. Chairman, Senator Domenici, 
members of the committee--it is our Mining and Minerals 
Division in my Department that permits the exploration permits 
for all of the new uranium interests in the State. So, they 
have to get past MMD first, as they seek to either re-open old 
mines, or move forward with new potential mining interests, 
that's correct.
    Senator Domenici. All right, just one last one for Mr. 
Wahlquist. Has there been any significant difference in the way 
the Administration treated the steam buffer zone rule compared 
to previous Administrations?
    Mr. Wahlquist. In a sense, I guess the answer is both yes 
and no. The application of the stream buffer zone rule has not 
really changed since it was last passed in 1983, and in the way 
that the States have implemented the stream buffer zone rule 
has really remained the same since 1983. We certainly had a 
litigation over the stream buffer zone rule that came up in 
1998. During that time, and in response to that litigation, the 
Administration entered into a Memorandum of Understanding in 
1999 between OSM, the Corps of Engineers, the Environmental 
Protection Agency and the State of West Virginia on how to 
address the stream buffer zone rule findings.
    Then we ended up with a court case in the Southern District 
of West Virginia that concluded that the stream buffer zone was 
more stringent than the provisions of that MOU, struck down 
that MOU, that was at that point, only about 3 or 4 months old, 
and basically concluded that the stream buffer zone rule 
prohibited the placement of excess spoil in intermittent or 
perennial streams.
    That court decision was later overturned on procedural 
grounds, the merits of it were never really addressed, and in 
the meantime, then, the States have continued to apply the 
stream buffer zone rule the same way that they were previously.
    Senator Domenici. Thanks very much.
    The Chairman. Senator Tester.
    Senator Tester. Thank you, Mr. Chairman, and I want to 
thank all of the committee members for their testimony today. 
Most of my questions will be directed to Brent Wahlquist, so, I 
want to thank you, Brent for coming, meeting with me a couple 
of months ago, and communicating with my staff regarding the 
prior balance funds. I was sorry to miss your testimony, I got 
hung up.
    But, in your written testimony, you did not specifically 
mention--and I just wanted to--hope you would clarify, the 
Administration's position on a timetable for returning to the 
States the balance of the unappropriated funds in the prior 
balance fund.
    Mr. Wahlquist. We would anticipate being able--we're to be 
providing those funds on an annual basis, we anticipate being 
able to provide those funds for 2008 in mid-December. Because 
of the way the fees are collected, and the fees from the prior 
year are based upon the production for that prior year, we do 
not collect all of that, the fees on the production from the 
previous quarter, until, into October and November, so we'll be 
closing the books at the end of November, and hope to be able 
to make those distributions in mid-December.
    Senator Tester. OK, and has there been a decision made on 
the form of these payments?
    Mr. Wahlquist. There has not. We're still in discussions 
with the Solicitor's Office, and we anticipate being able to 
announce a decision on that the week of December the third.
    Senator Tester. OK, and you came out with--or your Agency 
came out with--a proposed rule to have these funds be granted 
out, in other words, you'd apply for them, and they'd be given 
out as grants if----
    Mr. Wahlquist. Actually, we have not yet proposed a rule 
there, our intent was that we would develop a proposed rule 
that would address these issues this fall. However, time got 
away from us before we reached resolution, and so we will be 
doing that without a formal proposed rule, we'll be doing that 
in the context of an informal decision document, once we have 
the final input from the Solicitor's Office.
    Senator Tester. In regards to the prior balance funds, are 
those moneys in the bank, currently? I mean, are they on hand, 
do you have them in hand now? They've already been paid?
    Mr. Wahlquist. You mean, for the prior year?
    Senator Tester. For the prior balance funds, yes.
    Mr. Wahlquist. The unappropriated balance, that money 
will--even under the statute, that money will remain----
    Senator Tester. But you have the money in-hand, is what I'm 
asking. I mean, this isn't money we have to go borrow, you've 
the money?
    Mr. Wahlquist. We have the unappropriate balance, however, 
the money we'll be giving back to the States will not be that 
money, the money will come from the Treasury.
    Senator Tester. Right, that's correct, but the fact is, 
that the money has been paid into your Agency for this purpose, 
and the money hasn't been spent on something else?
    Mr. Wahlquist. We deposit that money in the Treasury, we 
manage it there----
    Senator Tester. OK.
    Mr. Wahlquist [continuing]. That money is interest-bearing, 
we manage the investment of that money----
    Senator Tester. Right, gotcha.
    Mr. Wahlquist [continuing]. It is there earning interest.
    Senator Tester. Good deal, that's what we like to hear. 
Whose money is it?
    Mr. Wahlquist. Whose money is it?
    Senator Tester. Mm hm.
    Mr. Wahlquist. It's money in the Treasury of the United 
States----
    Senator Tester. Yes, I know, is it--well, to cut to the 
chase--is it the Federal Government's money or the States' 
money?
    Mr. Wahlquist. The money that is there right now is 
allocated into three different accounts. A portion of it is 
State shared money, State and Tribal shared money, some of it 
is RAMP money, some of it is historic coal money, and some of 
it is the Secretary's money.
    Senator Tester. OK, as far as the prior balance funds go--
that is, regardless of what account it's in--whose money is it?
    Mr. Wahlquist. That money is assumed to be the State and 
Tribal share, and so that money will be re-colored as historic 
coal money, as you receive your money----
    Senator Tester. That's what I need to know.
    Mr. Wahlquist [continuing]. Back from the Treasury.
    Senator Tester. Thank you very much. I think that if I had 
some money, I'd want to keep it in my bank, too.
    The real question is, can you tell me how many mines are 
going to be reclaimed as long as that money stays in your bank 
account, and isn't distributed to the State?
    Mr. Wahlquist. If no money comes out, than no reclamation 
is going to be done.
    Senator Tester. That's correct. OK, so the question is, is 
we sent a letter out awhile back, and I know this is a concern 
of Senator Barrasso's, because it came up during your 
confirmation. So, it's not just Montana. I think Senator 
Domenici alluded to it, too, in some of his questions.
    Mr. Wahlquist. Yes.
    Senator Tester. The question is, is that if the money's 
there, and the money's really does belong to the States, and 
we've got mined to be reclaimed, and I believe we're in 
Montana, I think 600 is a low number--we've got a bunch, and 
we've done a lot of work. Why not get this money out, get these 
environmental problems fixed with the reclamation? Why are we 
hanging onto the money? It doesn't seem right to me.
    I come from the State legislature, and the counties would 
come up and say, ``You know what? You've got our money, we need 
it back,'' and we did our best to get it back to them. I'm at 
the Federal level now, and the States are saying the same 
thing, and if these aren't good projects to get done, then 
maybe we ought to do away with the program. But, if there are 
projects that need to be done--and I believe in the 109th 
Congress they passed a law that said that money needs to be 
distributed out--if I'm incorrect, you can correct me on that--
so, why aren't we doing it?
    Mr. Wahlquist. Senator, I want to assure you that we have 
no interest in hanging onto the money. It is our interest in 
implementing the law as it was passed. We have no programmatic 
reason to not hand out the money so that the money can be used 
for the purposes for which it was intended.
    Senator Tester. So, why aren't we handing out the money?
    Mr. Wahlquist. Why aren't we handing out the money?
    Senator Tester. Why isn't it being distributed to where 
it's supposed to go for mine reclamation?
    Mr. Wahlquist. To begin with, we're to do that on an annual 
basis, and we're to be doing that based upon the past year's 
appropriation. That's why we'll be doing it in December.
    Senator Tester. OK. The money's in the bank, there's a 
potential that it won't occur in equal installments, there is 
that potential.
    Mr. Wahlquist. That it won't occur when?
    Senator Tester. In equal installments over the next 7 
years.
    Mr. Wahlquist. No, it will be coming in 7 equal 
installments.
    Senator Tester. Seven equal installments.
    Mr. Wahlquist. But at this point, we need to finalize the 
numbers as to exactly what is the unappropriated balance, and 
we won't know that number for sure, until early December, as to 
exactly what is the unappropriated balance, as of the close of 
the production as of September 30, 2007, all of the coal that 
was produced prior to September 30, 2007, we need to collect 
the rest of the AML fee on that production, then we will be 
able to determine exactly what was the unappropriated State 
share balance, and then we'll hand that out in 7 equal 
payments.
    Senator Tester. It sounds fairly complicated, but it's not. 
It's not. In the overall scheme of what goes on around here, 
what we're dealing with here is not complicated.
    Mr. Wahlquist. I would agree with that.
    Senator Tester. My recommendation to you would be the same 
as it was in the letter, and in fact, I know the State of 
Montana has told me, they're OK with 7 equal installments, as 
long as there isn't a lot of red tape to try to get that 
dollar, so they don't have to hire a bunch of people and build 
their bureaucracy to get the money out of this bureaucracy.
    So, just my recommendation is, is just from a good 
government standpoint, if we're going to clean up these mines, 
that money has to get to the local level, the State level--in 
this particular case--to get that work done. I would hope that 
you would fight like hell in your position to make sure that 
that happens soon. Very soon.
    The Chairman. Senator Barrasso.
    Senator Barrasso. Thank you very much, Mr. Chairman, and 
thank all of the members of the panel for your testimony today 
as witnesses.
    Mr. Chairman, this Act is particularly important to 
Wyoming, as our State is responsible for well over a third of 
the Nation's coal production. These are good jobs, good 
insurance, good retirement programs, and the production of coal 
provides an extraordinary amount of income for the State of 
Wyoming, for our cities, for our counties, and for the State.
    This committee, and in particular, Mr. Wahlquist is well 
aware of my continued concerns over the upcoming distribution 
of unappropriated AML funds, as required under the Tax Relief 
and Health Care Act of 2006.
    I continue to be troubled--as does Senator Tester--by 
reports that funds due to our States could be distributed in 
the form of grants, or through some line of credit scheme, 
rather than direct payments as contemplated by the Federal law.
    I think Senator Tester had it right with his question when 
he said, whose money is it? Clearly, it is the States money.
    I am additionally disturbed by the lengthy time it has 
taken to obtain a resolution of this matter. We heard that it 
would be the end of October, now today, what I think I heard is 
someone say, ``Time got away from us.''
    Every day that goes by with these issues remaining 
unresolved heightens unnecessary bureaucratic tension. There is 
fallout from these delays that could and should have been 
avoided. When I was in the State legislation, we set up a fund 
so that the money could be--very easily, without strings, 
without red tape--put in that fund. The fund is still waiting 
for the money to come from the Federal Government, and it's 
time for the interest to be earned by the States, the money 
belongs to the States, it is their money. In Wyoming's case, it 
is our money, and the people of Wyoming ask every time I go 
home, Mr. Chairman, every weekend, and I was home again this 
weekend, ``What's going on with the AML money? When will we 
know? We want to make sure that we get our money.'' The State 
is concerned, the legislature is concerned, the Governor is 
concerned, I am concerned, Senator Enzi and Representative 
Cuban are concerned.
    I guess the question is, when the law was passed, you 
weren't in that position and I was not in this position--what 
could this Senate have done differently to make it more clearly 
evident to folks that the money belongs to the States? Is there 
something we didn't do right in passing that legislation?
    Mr. Wahlquist. Certainly the legislation is a complicated 
piece of legislation, and in that sense, then, it is taken 
considerable time in terms of working with the Solicitor's 
Office, and with the Administration, in terms of concluding, 
``OK, what does this law really mean?''
    It is certainly our intent, though, to implement this law 
consistent with what we have been given. We have no inclination 
whatsoever to deviate from the law that you passed last 
December, or that was passed last December.
    Senator Barrasso. Mr. Chairman, I would just add that, it 
didn't seem to me when I read that that it was going to be 
grants or a line of credit. Can we get some reassurance here, 
on both sides of the aisle, that what we're going to do is 
actually get direct payments to the States, come the time that 
the money is available in the middle of December.
    Mr. Wahlquist. I can not give you that assurance today, 
that is an issue that we're still addressing with the 
Solicitor's Office and the Administration.
    Senator Barrasso. I can not tell you strongly enough that 
it is the opinion of the members of this panel that the law is 
clear, the money belongs to the States, and I for one, as the 
Senator from Wyoming, I'm going to continue to fight to make it 
clearly understood by everyone in the Administration that the 
money belongs to the States.
    Mr. Wahlquist. I understand.
    Senator Barrasso. Thank you, Mr. Chairman.
    The Chairman. Thank you very much.
    Let me just ask one additional question, Mr. Wahlquist, 
just to try to understand better. This relates, again, to this 
mountaintop removal issue. The current rule that you folks 
operate under states there's to be a ``100-foot buffer around 
any perennial or intermittent stream, unless the regulatory 
authority specifically authorizes surface mining activities 
upon a finding that the activity will not cause or contribute 
to a violation of applicable water quality standards, and will 
not adversely affect the water quantity or quality, or other 
environmental resources of the stream.'' Don't valley fills 
that cover perennial and intermittent streams, by definition, 
adversely affect the water quality and quantity, and other 
environmental resources of the stream?
    Mr. Wahlquist. Certainly, Senator, one of the issues that 
we've looked at in the context of the stream buffer zone is the 
extent to which that applies to the stream as a whole, or 
whether or not it applies to all segments of the stream.
    When we entered into a Memorandum of Understanding in 1999, 
with EPA and the Corps of Engineers, it was with the 
understanding that, basically, what that MOU called for was 
that, meeting the 404(b)(1) guidelines of the Corps of 
Engineers and EPA, were adequate to meet the standards of the 
findings required in that regulation that you just cited. 
Certainly that has been consistent with the basic position that 
has been applied since that rule was passed, is that the rule 
did not preclude the disposal of excess spoil in streams.
    A concern that we had with the District Court decision was 
that, if we were to read that rule to actually preclude the 
disposal of excess spoil in streams, in all cases, that that 
would be inconsistent with our statutory authority, and we 
cannot have a rule that inconsistent with our underlying 
statute.
    The Chairman. The underlying statutory authority says what, 
now?
    Mr. Wahlquist. It says, it clearly contemplates the 
disposal of excess spoil in waters of the United States and in 
intermittent and perennial streams.
    The Chairman. So, you think that your underlying authority 
overrides the rule that you've issued?
    Mr. Wahlquist. If we've issued a rule that's inconsistent 
with our authority, that's basically when--in 1999, in December 
1999, as we were considering what to do with the District 
Court's decision--why the Solicitor of the Department of 
Interior recommended an appeal, as a concern that the District 
Court's finding was inconsistent with our statutory authority.
    The Chairman. All right.
    Senator Domenici, go right ahead.
    Senator Domenici. Let me, Mr. Wahlquist, I think I know a 
little bit about budgeting and direct spending, and the 
accounting process which may put you in a bind.
    You see, if that money is in a trust fund, it doesn't 
matter who it belongs to, the problem is when you spend it, you 
can't understand this, but when you spend it, it costs money to 
the Treasury. So, if a trust fund is sitting there, whatever 
amount it is, it is taken advantage of in the budget, the 
budget includes it, so that it is, in a sense, spent. You come 
back to go to the trust fund, and you want your money out, and 
you say, ``Well, you're spending it, so you've got to have 
something to pay for it.'' That makes it, that means that 
you've got to pay for it twice.
    It's very important that you have somebody on this that 
understands the rules of the budget, so that they don't stick 
you at the end of the year, with a budgetary approach that says 
it isn't available for distribution, because it's in the 
budget, it's already in the big budget, accounted for and used.
    That's probably part of the problem you're going through--
I'm just guessing, and I could be wrong, but I have run into it 
in a bigger trust fund than this, and the biggest one we have 
around is the one, Senator Bingaman--Mr. Chairman--that was 
collected from all of the users of the utility companies with 
reference to nuclear power, it's now up around--does anybody 
here remember? I'm going to say $13 to $20 billion sits there.
    We have a problem every year of paying for things like 
Yucca Mountain. But we can't use that money. Because, if we use 
that money, we take it out--if you take it out, you have to 
replenish it in the same act, or else you've affected the 
budget by the amount you've taken out.
    So, this may be, the big words involved are ``directed 
spending'' or an ``entitlement,'' in which event, what I've 
described does not happen. So, let's hope that yours is 
considered in the past to be a directed spending, and then they 
won't have a chance to make you wait for it while it gets 
accounted for.
    Mr. Wahlquist. It's certainly our understanding that there 
are two aspects of this law that call for mandatory spending 
that is no longer subject to appropriation. One of those is 
the, each year we're to pay out that, which comes in prior year 
collections, and then also the payback of the unappropriated 
State share balance, in 7 equal payments over the next 7 years.
    Senator Domenici. There's language saying it doesn't need 
appropriation, there's language to that effect?
    Mr. Wahlquist. Yes.
    Senator Domenici. Then it's directed spending, and probably 
will get done.
    Mr. Wahlquist. Yes.
    Senator Domenici. Sorry to waste your time, Mr. Chairman.
    The Chairman. All right, any additional questions of this 
panel? Or, we'll go to panel two.
    Senator Tester.
    Senator Tester. Just one, and I apologize, Brent, but I 
just got to ask--will you make a commitment to this committee 
to get these funds, at least the first year distribution done 
before this Administration leaves office 13 months from now?
    Mr. Wahlquist. Done, sir. Yes. I promise.
    Senator Tester. That's on the record.
    The Chairman. That's on the official record of the 
committee.
    All right, thank you all very much for testifying, and why 
don't we call forward the second panel.
    The second panel is made up of Hal Quinn, who is with the 
National Mining Association, Bill Banig who is with the United 
Mine Workers of America, and Cindy Rank, who is with the West 
Virginia Highlands Conservancy and the West Virginia Headwaters 
Waterkeeper, and she's accompanied by Joan Mulhern with 
Earthjustice.
    OK, why don't we just proceed in the order that I 
introduced you, Mr. Quinn first, Mr. Banig, then Ms. Rank, and 
Ms. Mulhern if you have comments, as well.
    Mr. Quinn, go right ahead.

STATEMENT OF HAL P. QUINN, JR., SENIOR VICE PRESIDENT & GENERAL 
              COUNSEL, NATIONAL MINING ASSOCIATION

    Mr. Quinn. Thank you, Mr. Chairman, and members of the 
committee. My name is Hal Quinn, I'm with the National Mining 
Association, we appreciate the opportunity to appear here today 
and share with you our views on the coal industry's experience 
under SMCRA.
    I think what you heard earlier this afternoon, in the first 
panel, was agreement that SMCRA has been a bold and largely 
successful effort to balance our Nation's energy needs with the 
demands for environmental stewardship.
    In 30 years since SMCRA's enactment, we have supplied over 
29 billion tons of coal to fuel our Nation's growth and 
prosperity, which is equivalent of about 115 billion barrels of 
oil, or 5 times our proven domestic oil reserve.
    At the same time, we've been able to restore over 2.2 
million acres of land which supplied this coal to productive 
uses.
    These accomplishments are the first order in energy 
production and environmental stewardship, are the product of 
the collective efforts of the coal industry, State and Federal 
Governments.
    As Senator Domenici alluded to earlier, the history of the 
implementation of this law has not been totally free of 
contention, surely there were more than a few moments in the 
past 30 years that would have dissuaded even the most ardent 
supporters of the law from declaring success.
    For instance, soon after the law's enactment, some 
predicted that the law's implementation would be met with 
regulatory delays and endless litigation. Certainly, the first 
decade at least, or so, following President Carter's signature 
would do little to disappoint them.
    The first attempt to implement the entire range of 
requirements of SMCRA resulted in 150 pages of regulatory text 
which was supposed to be fleshing out an already overly 
prescriptive 90-page statute. That 150 pages of regulatory text 
was accompanied by another 400 pages of explanations of what 
those regulations were supposed to mean.
    This excessive detail and complexity delayed the 
development and approval of State programs, which were to serve 
as the foundation for SMCRA's implementation nationwide. True 
to predictions, the program became a fertile ground for 
litigation, so much so that at least one Federal court used the 
following metaphor to describe these epic battles, ``As night 
follows day, litigation follows rulemaking under this 
statute.''
    This regulatory uncertainty was further compounded by the 
struggle between the States and the Federal Government in 
coming to terms with their respective roles. While SMCRA 
designated the States to be the day-to-day regulator, the coal 
industry was often confronted with serving, or satisfying, two 
regulatory masters, oftentimes not in complete agreement about 
how the law should be viewed.
    However, persistence and innovation--aided by the lessons 
we've learned over the past 30 years--now allows us to report 
some impressive results.
    As I previously mentioned, we've be able to restore 2.2 
million acres of mine lands to productive uses. Uses that 
include farmlands with crop yields that exceed their pre-mining 
capabilities, land with--capable of grazing more livestock per 
acre than before mining, wildlife refugees providing new 
habitat for a diverse variety of species, recreational areas to 
support fishing, hunting and other leisure activities, and land 
that now has terrain that is now better-suited for development.
    We've also paid over $8 million in abandoned mine land 
taxes that will go to reclaiming mine lands that were not 
reclaimed before 1977. We've also been able to restore 
thousands of acres of abandoned mine lands at no cost to the 
AML fund through re-mining and reclamation of previously 
scarred lands.
    These accomplishments have all occurred while the coal 
industry continues to supply the fuel that generates over 50 
percent of the electricity used by Americans. This is the power 
that supports 151 million Americans in all activities of their 
daily life.
    While great progress has been made in the past 30 years, 
the program is not entirely free of controversy. The coal 
industry today in Central Appalachia has been subject to a 
serious legal tax over the past 10 years, that placed coal 
mines, the fueling supply and the jobs and the economic 
activity they sustain in great jeopardy.
    The controversy surrounds what is often referred to as 
``mountaintop mining'' and for all practical purposes, that 
includes mining in West Virginia, Kentucky, Virginia and 
Tennessee. Three prior lawsuits between 1998 and 2005 were 
momentarily successful, but the claims were ultimately deemed 
to be lacking merit on appeal.
    Most recently, several organizations have obtained further 
orders that will close four mines, and perhaps a fifth, in West 
Virginia, mine that are projected to produce 50 million tons of 
coal, and employ over 600 miners and other personnel with some 
of the highest wages in the region. The collateral damage from 
these latest lawsuits includes a permitting process that has 
ground to a halt. Soon, mines will run out of reserves, and 
their permits and will have to shut down if permits are not 
issued to expand existing capacity.
    These battles are over displacing policy interpretations 
along the law that have been in place over 30 years, and often 
involve disputes over whether these mines can support post-
mining land uses. Appended to my testimony are photographs that 
do show examples of a number of the different, and wide variety 
of uses that these mountaintop mining operations are put to.
    Let me close, if I might, Mr. Chairman, with a couple of 
observations about 30 years later on our energy picture today. 
Thirty years ago, when President Carter signed SMCRA, our 
Nation, at least energy independence was a national imperative. 
Our Nation was vulnerably dependent upon foreign sources for 
energy.
    Today, we appear to be in the same precarious position. 
Since SMCRA's enactment, our energy use has jumped 23 percent 
but our energy production has increased by only 7 percent. 
Meanwhile, energy imports have climbed by over 70 percent.
    There's no question that our Nation will require more 
energy in the future, just as it did 30 years ago. We will use 
energy more efficiently, certainly, through both technological 
advances and conservation, but we will still need more energy. 
This is a demand that--the meeting of this demand with 
reliable, affordable, secure sources will be a challenge, but 
certainly a challenge that can be met with the correct policies 
to draw upon all of our domestic energy sources, including coal 
that now serves a critical role, and should serve a critical 
role in our energy future, as well.
    Thank you for the opportunity to appear and share our views 
with you today.
    [The prepared statement of Mr. Quinn follows:]

   Prepared Statement of Hal P. Quinn, Jr., Senior Vice President & 
              General Counsel, National Mining Association

    My name is Hal Quinn, senior vice president, legal and regulatory 
affairs, and general counsel for the National Mining Association (NMA). 
I am appearing on behalf of the NMA to testify about the coal mining 
industry's experience under the Surface Mining Control and Reclamation 
Act (SMCRA) of 1977.
    NMA represents producers of over 80 percent of America's coal--a 
reliable, affordable, domestic fuel that is the source of more than 50 
percent of the electricity used in America. NMA's members also include 
the producers of metals and non-metal minerals, manufacturers of mining 
equipment and supplies, transporters of coal and mineral products, and 
other firms serving the mining industry.

                          GENERAL INTRODUCTION

    In the 30 years since SMCRA's enactment, the coal industry has 
supplied over 29 billion tons of coal to fuel our nation's growth and 
prosperity. This is the equivalent of 115 billion barrels of oil and is 
five times our proven domestic oil reserve. Over 2.2 million acres of 
the lands supplying this coal resource have been restored to a wide 
variety of productive uses including farmlands, pastures, wildlife 
refuges, parks, recreational areas, wetlands, and commercial 
development. These achievements of the first order in energy production 
and environmental stewardship are the product of the collective efforts 
of the coal industry, and state and federal governments. They 
underscore the underlying strength of America's coal resource as the 
foundation of our nation's prosperity and energy security.

                       SMCRA LEGISLATIVE HISTORY

    SMCRA was the culmination of a sustained effort throughout the 
1970's to enact a comprehensive federal regulatory policy for coal 
mining. Unlike environmental legislation directed at the impacts of 
many industries upon one natural resource--e.g., Clean Water Act, Clean 
Air Act--SMCRA focuses upon one industry and its effect upon various 
natural resources. As the legislation proceeded through successive 
congressional sessions, the product transformed from a 17-page version 
passed by the House of Representatives in 1972 to a 90-page bill 
reported by the conference committee and signed by President Carter on 
the morning of August 3, 1977.
    Throughout the protracted legislative process, one theme emerged to 
become the central purpose of the law: strike a balance between our 
nation's need for coal as an essential energy source and protection of 
the environment. Recall that in the 1970's, this country was in the 
throes of economic turmoil related to its vulnerable dependence upon 
foreign sources of energy. The oil embargo in October of 1973 focused 
attention on domestic energy security and the ability of our domestic 
coal resources to meet increasing energy requirements. At the same 
time, concerns existed about the potential environmental consequences 
of increased coal mining.
    The balance SMCRA intends to strike between meeting our energy 
needs and environmental protection rests upon several principles. 
First, coal is an indispensable and prominent part of our nation's 
energy requirements and prosperity. Second, coal mining should serve as 
a temporary use of the land. Third, coal mine development and resource 
management must be integrated to successfully restore mined lands to 
support future uses. And, fourth, given the diversity in terrain and 
other physical conditions among our coal mining regions, states are 
best positioned to develop and administer programs designed to meet 
those objectives.

                      INDUSTRY'S SMCRA EXPERIENCE

    The protracted and contentious legislative history of SMCRA caused 
some lawmakers to predict that the law's implementation would meet with 
regulatory delays and endless litigation. See H.R. Rep. No. 218, 95th 
Cong., 1st Sess. 193 (1977). The early SMCRA experience would not 
disappoint them. The first attempt to implement the entire range of 
permanent program requirements produced 150 pages of regulatory text to 
``flesh-out'' an already prescriptive 90-page statute. An additional 
400 pages were required to explain what the regulations meant. Several 
years later, a comprehensive review of the rules converted some of the 
unyielding design standards to more flexible performance standards and 
empowered states to tailor more suitable versions to accommodate 
regional differences.
    Not surprisingly, SMCRA implementation has proven fertile ground 
for litigation. The battles waged over SMCRA implementation have 
extended from the most fundamental questions about the jurisdictional 
reach of the law to the more arcane, such as the permissible 
conservation and husbandry practices to demonstrate successful 
reclamation. One court aptly characterized this early regulatory 
history with the following metaphor: ``As night follows day, litigation 
follows rulemaking under this statute.'' National Wildlife Federation 
v. Lujan, 950 F.2d 765, 766 (D.C. Cir. 1991).
    Apart from the turmoil accompanying efforts to establish the basic 
regulatory framework, the program experienced difficulty in its 
transition from the initial phase of shared federal and state 
responsibilities to the permanent phase that vested day-to-day 
regulatory authority with the states. In the field, the coal industry 
expected to see only one regulator, the state, for both permit and 
inspection tasks. The states shared a similar expectation since SMCRA 
declared that they would assume ``exclusive'' regulatory jurisdiction 
upon approval of their laws and regulations, and that the Federal 
Office of Surface Mining (OSM) would recede to a secondary role of 
overseeing state performance. In practice, the coal industry found 
itself positioned between conflicting state and federal applications of 
the law. States saw their exclusive role undermined with little 
deference or respect accorded to their applications of the law by OSM.
    Serving two regulatory masters further compounded the difficulties 
coal companies confronted in complying with changing regulations. 
Uncertainty becomes especially frustrating to a regulated industry that 
operates under a statute that places a premium upon the principles of 
planning and sound resource management. The absence of a stable 
regulatory framework undermines the planning imperative. Changing 
standards and inconsistent application compromise the integrity of any 
planned strategy.

                     CHANGES IN INDUSTRY STRUCTURE

    In the midst of this regulatory transition, the coal industry 
experienced structural changes as a result of a combination of market 
forces and public policy choices. The number, size and location of coal 
mines have changed substantially.
    Market forces combined with new and changing regulatory 
requirements caused a rapid consolidation within the industry. Between 
1976 and 1986 the number of producing coal mines dropped by 32 percent 
(from 6,161 mines to 4,201 mines) while production increased by almost 
the same percent (from 685 million tons to 886 million tons). The trend 
in consolidation continues, and the coal industry today produces 40 
percent more coal (1.2 billion tons) from 75 percent fewer mines than 
it did just before SMCRA's enactment.
    Over the past 30 years there has occurred a significant 
geographical shift in coal production from the Eastern coalfields to 
the Western United States. Coal demand in the United States is driven 
by the electric power sector, which consumes 90 percent of annual coal 
production. The policy choices arising over the last two decades under 
the Clean Air Act substantially influenced the fuel choices made by the 
electric power industry. The increasingly more stringent limits on 
emissions of sulfur dioxide at power plants made low-sulfur coal in the 
Western United States a cost-effective compliance strategy for many 
power plants. Favorable geologic conditions and economies of scale off-
set the disadvantages some Western mines confront due to their distance 
from markets. As a result, coal produced from mines west of the 
Mississippi--which accounted for only 25 percent of the annual 
production in 1977--comprises almost 60 percent of production today.

                            SMCRA SUCCESSES

    Both the industry and the SMCRA program have evolved over the past 
30 years. Through persistence and innovation and aided in part by 
maturation in the administration of the regulatory programs, the 
industry has mastered the demands of the law. The investment to date 
has been substantial, and we can continue to report impressive returns:

   Restoration of 2.2 million acres of land to productive 
        uses--three times the size of Rhode Island;
   Farmland with crop yields that exceed their pre-mining 
        capabilities;
   Pasture lands that support grazing of more livestock per 
        acre than pre-mining capabilities;
   Wildlife refuges providing new habitats for a diverse 
        variety of species;
   Recreational areas to support fishing, hunting and other 
        leisure activities;
   Forest lands;
   Sites in steep slope terrain that will support commercial, 
        residential and economic development in areas where land 
        suitable for such purposes is limited or unavailable;
   Payment of over $8 billion in Abandoned Mine Land (AML) 
        taxes to restore unreclaimed mined lands abandoned prior to 
        SMCRA;
   Restoration through remining of more abandoned mined lands 
        than the AML program--at no cost to the AML program; and
   Innovations in reclamation technology and practices 
        including post mining landscape design and land use planning, 
        water management and treatment technology, and ground control 
        and subsidence mitigation measures.

    These accomplishments have all occurred while the coal industry 
continues to supply our nation annually with the fuel that:

   Generates over half of all the electricity in America;
   Affordably furnishes the power to support over 151 million 
        Americans in all activities of their daily life;
   Reliably provides the power to support employment of almost 
        127 million Americans; and
   Accounts for one-third of our primary energy production--the 
        largest portion of any energy source.

                         LINGERING CONTROVERSY

    While we would like to report after thirty years that the program 
has emerged free of any controversy that is not the case entirely. 
Organizations opposed to coal mining in Central Appalachia coal region 
have brought a continuous series of legal attacks that have severely 
disrupted coal mining in this region.
    The controversy surrounds what has been called mountaintop mining--
but for all practical purposes this label includes almost all surface 
coal mining in the steep slope terrain of the West Virginia, Kentucky, 
Tennessee and Virginia. When coal is surface mined, the rock and dirt 
(overburden) that overlies the coal seams is excavated to access the 
coal. When rock is broken and moved, the material expands, or swells, 
perhaps as much as 15-40%. As a result, the volume of spoil is greater 
than the overburden excavated from its original geological location. 
Some mines generate more excess spoil than others because they are 
designed to leave more gently rolling or flatter land that can be used 
for development or other uses after mining is completed and the land 
reclaimed. This excess spoil must be stored somewhere permanently and 
in the steep slope terrain of Appalachia the only available and safest 
place to do so is in the narrow hollows and valleys adjacent to the 
mines.
    Before SMCRA, conventional mining methods in Appalachia typically 
resulted in the placement of excess spoil on the outslopes of mountain 
ridges. This practice created unstable slopes of unconsolidated 
material prone to erosion, slides and prolonged sedimentation of 
streams. In the early 1970s, several emerging steep slope mining 
techniques--including the construction of hollow and valley fills--were 
hailed by various government agencies as preferred practices for 
avoiding these hazards. Because the construction of hollow and valley 
fills was found to afford significant environmental advantages, 
Congress incorporated them into SMCRA as an industry standard. In many 
respects, the location, design and construction techniques for these 
fill structures are similar to methods used in highway construction 
spoil disposal, rock-fill dam construction and highway embankment 
construction.
    SMCRA also recognizes that land suitable for development is scarce 
in Appalachia and that surface coal mining provides a unique 
opportunity to leave land in a condition capable of supporting various 
economic or public uses. To address that need, the law provides that 
surface mines can be reclaimed without restoring the approximate 
original contour in order to accommodate use of the land later for 
industrial, commercial, agricultural, residential, recreational or 
public purposes. Appended to my testimony are photographs* that provide 
examples of how the coal industry has afforded these opportunities in 
the mountainous regions of Appalachia.
---------------------------------------------------------------------------
    * All graphics have been retained in committee files.
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    But these coal mines, the fuel they supply to generate our 
electricity, and the jobs and economic activity they provide all remain 
in jeopardy from a continual barrage of litigation questioning 
interpretations and policies that have been in place since 1977. For 
the fourth time since 1998, organizations have sought court orders to 
stop ongoing mining operations and to prevent new mines from opening. 
The first three times, they were momentarily successful, but their 
preferred interpretations of the law were ultimately found to lack 
merit. See Bragg v. West Virginia Coal Association, 248 F. 3d 275 (4th 
Cir. 2001); Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 
F. 3d 425 (4th Cir. 2003); Ohio Valley Environmental Coalition v. 
Bulen, 429 F. 3d 493 (4th 2005). A Marshall University study found that 
if the views advocated in the first lawsuit prevailed, the state of 
West Virginia alone would lose over ten thousands jobs, hundreds of 
million dollars in wages and $168 million in state and local revenues 
annually. Burton, Hicks and Kent, The Fiscal Implications of Judicially 
Imposed Surface Mining Restrictions in West Virginia (Feb. 2001).
    This time they have obtained a court order that will close four 
mines and possibly a fifth one in West Virginia. Together these mines 
are projected to produce 50 million tons of coal, employ over 600 
miners and other personnel, pay some of the highest wages in the region 
and provide over $100 million in coal severance taxes to the state. And 
the collateral damage from this latest litigation may well exceed this 
direct hit. Since the court's initial order last March, less than a 
handful of permits have been issued in this jurisdiction. There are 
reportedly about 70 permits pending that have not been issued which are 
necessary to sustain existing mines or open new ones. As coal mines 
begin to reach their economic and operational limits, they will be 
forced to shut down if permits to expand their capacity are not issued 
in the next several months. The uncertainty and permitting delays are 
causing investments in new mines to be shelved or shifted to other 
states.
    The interpretational disputes surrounding this litigation have 
become an epic in itself. While the focus has largely centered on West 
Virginia and surrounding parts of Central Appalachia, the reversal of 
longstanding policies advocated in the litigation have implications 
beyond that region and, perhaps, the coal industry as well.

                            LESSONS LEARNED

    Tomorrow's successes will depend largely upon whether we learn 
anything from our past. There are many lessons from the 30-years of 
SMCRA implementation, and we offer several here based upon our 
experience.
    Design vs. Performance Standards.--Some have observed that the 
excessive complexity and detail of the statute, compounded by the zeal 
of the federal agency to outdo the legislators with even more detailed 
regulatory design standards, defied comprehension by the industry, 
states, and even by the legal minds that produced the regulatory 
product. Design standards are inherently inflexible and 
counterintuitive for national goals whose success will require the 
accommodation of diverse physical and geological conditions. A design 
standard approach to regulation stymies innovation. By contrast, a 
performance-based approach can accommodate new technology and 
advancements in mining and reclamation practices and is therefore more 
responsive to the diverse conditions found in the mining regions and an 
evolving industry. The switch to performance standards in the 1980's 
contributed greatly to the mined land reclamation successes we see 
today.
    State Primacy.--The regulation of land use, a historically local 
prerogative, on a national basis is difficult at best, and all but 
impossible if local, state and regional differences cannot be accounted 
for in the implementation of statutory goals. Each state and region has 
different needs and interests when it comes to land use. But SMCRA 
recognizes this: indeed, state primacy is the cornerstone of the law 
precisely because good ideas and practices in one state for achieving a 
national goal may not be good ones in another. State primacy needs to 
be supported institutionally and financially to assure continued 
success. For the most part, the earlier distrust of state capabilities 
has receded and has been replaced by respect and cooperation between 
the federal and state agencies. However, fiscal constraints in some 
states may jeopardize the continued retention of their programs. 
Consideration should be given to altering the law's federal funding 
formula, particularly as one considers that some of the increased costs 
have arisen from new federal mandates imposed by OSM regulatory 
initiatives. State programs are more cost-effective than federal 
programs as demonstrated by OSM's experience in administering a federal 
program in Tennessee after the state relinquished primacy.
    Regulatory Duplication and Efficiency.--SMCRA established a 
comprehensive program for regulating the effects of coal mining upon a 
wide array of natural resources. Nonetheless, it did not displace all 
existing laws that address specific resources, for example the Clean 
Air Act or Clean Water Act. In the past, this overlap has caused 
confusion and, at times, conflict for the industry in meeting 
overlapping program goals. The Clean Water Act is a prominent example 
of this overlap. SMCRA contains extensive requirements for hydrologic 
analysis, monitoring and protection requirements for coal mines. In 
some cases, federal and state agencies have strived to reconcile these 
programs and minimize duplication. Nonetheless, more can still be done 
to rely upon the regulatory benefits of SMCRA, avoid unnecessary 
duplication, achieve regulatory efficiencies and reap the attendant 
environmental benefits as envisioned by both the Clean Water Act and 
SMCRA.

                             LOOKING AHEAD

    As we reflect today upon SMCRA's 30th anniversary, there appears to 
be a remarkable similarity between our country's energy situation in 
1977 and today. When President Carter signed SMCRA that summer morning 
in the Rose Garden thirty years ago, ``energy independence'' was a 
national imperative. It is no less so today, but it now goes by the 
name ``energy security.'' Today, we import about 60 percent of our 
petroleum needs, a share that the Energy Information Agency (EIA) 
projects will grow to 75 percent by 2030. By that time, we will consume 
28 percent more oil and 19 percent more natural gas. Yet the United 
States has only 3 percent of the world's oil reserves and not much more 
of its gas reserves. Since SMCRA's passage, our energy use has jumped 
23 percent, but our energy production has increased by only 7 percent. 
Meanwhile, energy imports have climbed by 70 percent.
    We sometimes forget that the United States is a growing country. 
Our population grew by almost 3 million people in 2005 and now exceeds 
300 million. Our economic growth has eclipsed most mature economies. 
So, there is no question that our nation will require more energy in 
the future, just as it did 30 years ago, to sustain our economic 
growth. We will use energy more efficiently due to technological 
advances, conservation and increased efficiency. But, we will still use 
more energy. Not surprisingly, therefore, our need for coal is 
projected to increase from 22.9 quads in 2005 to over 34 quads in 2030, 
reflecting the 156 gigawatts of new coal-based generating capacity that 
are projected to be needed by the end of the EIA forecast period.
    Meeting this demand with reliable, affordable and secure sources 
will be a challenge, but a challenge that can be met with the correct 
policies that enhance the role of all domestic energy sources, 
including policies that ensure that our coal resources can continue to 
play the critical role in our energy future.

                               CONCLUSION

    Thank you for the opportunity to share with you the mining 
industry's experience under SMCRA and to express its views on the 
critical role of our domestic coal resources to our nation's energy 
security and prosperity.

    The Chairman. Thank you very much.
    Mr. Banig, go right ahead.

STATEMENT OF BILL BANIG, DIRECTOR, GOVERNMENTAL AFFAIRS, UNITED 
              MINE WORKERS OF AMERICA, FAIRFAX, VA

    Mr. Banig. Chairman Bingaman, members of the committee, I 
am Bill Banig, Director of Governmental Affairs for the United 
Mine Workers of America. We appreciate the opportunity to 
appear before the committee to celebrate the 30th anniversary 
of the Surface Mining Control and Reclamation Act of 1977.
    When enacting SMCRA, Congress found that surface and 
underground coal mining operation affect interstate commerce, 
contributes to the economic well-being, security and general 
welfare of the Nation, and should be conducted in an 
environmentally sound manner. That statement is as true today 
as it was in 1977.
    Coal mining contributes to our Nation's economy by 
providing the fuel for half of our electricity generation. Coal 
miners are proud to play a part in supplying our Nation with 
domestically produced, cost-effective, reliable energy. We also 
live in the communities most affected by coal mining, and 
support the intent of Congress that coal mining must be 
conducted in an environmentally sound manner.
    Throughout our 117-year history, the UMWA has been in the 
forefront of bringing social, economic, and environmental 
justice to our members in the Nation's coal fields. The UMWA's 
goal is to protect the interests of our members on the job, and 
when they return home to their families at night. We have 
fought for compensation laws and occupational disease laws. We 
have led the fight to enact mine health and safety laws. The 
UMWA has also been on the forefront of providing health care 
and pensions to workers.
    Coal miners value the natural resources that God has given 
us. In their free time, you will find many of them fishing in 
the streams and hunting in the forests throughout the coal 
fields. Because of their love of the land, they are strong 
defenders of the need for responsible reclamation laws. Perhaps 
more than most, they understand the need for responsible 
policies that balance our need for energy with our need to 
protect the environment. We believe SMCRA has struck the right 
balance. We are proud to say that the UMWA has been a steadfast 
supporter of SMCRA.
    While nearly $6 billion have been appropriated for mine 
site reclamation since 1978, there are many more sites still 
requiring attention. With the reauthorization of the AML 
program last December, Congress extended the program for 15 
years. States and tribes will finally start to receive the 
resources they need to take care of their reclamation projects. 
The reauthorization also provides the long-term financial 
solution for health care of thousands of abandoned, retired 
coal miners and their dependents.
    With the passage of the 1992 Coal Act, interest earned on 
the AML principle has been used to help support the health care 
needs of abandoned, retired miners. In other words, the AML 
program has provided support for both the needs of abandoned 
mines, and abandoned, retired miners and their dependents.
    I want to thank the members of this committee who played a 
vital role in ensuring that the needs of abandoned miners were 
not forgotten.
    When Congress authorized the use of AML interests to help 
finance the cost of health care for retired miners, it was a 
logical extension of the original intent of Congress. Congress 
joined these two programs together for a reason--they both 
represent legacy costs of the coal industry that compelled a 
national response.
    When Congress created the AML fund, it found that abandoned 
mine lands imposed social and economic costs on residents in 
nearby and adjoined areas. When Congress enacted the Coal Act, 
it also was attempting to avoid unacceptable social and 
economic costs associated with a loss of health benefits for 
retired miners and widows.
    Although some criticized the use AML interest money to help 
cover the cost of miners' retired health care, this marriage 
proved to be the catalyst for last year's reauthorization of 
the AML program, which successfully addressed the varied, and 
sometimes conflicting needs of many interested parties.
    With all parties working together for the reauthorization 
last year, Congress was able to forge a political consensus 
that has alluded us for many years. More importantly, the 
legislation will mean more funds will be available to address 
vital reclamation needs in the coal fields.
    In terms of abandoned retiree health care, the 
reauthorization has addressed the financial problem that has 
plagued the Coal Act.
    Mr. Chairman, the UMWA and its members are grateful that 
Congress forged a bipartisan consensus to reauthorize the AML 
program, and provide a long-term solution to the coal industry 
retiree health care crisis. Today, we appreciate having this 
opportunity to thank every Member of Congress for remembering 
the plight of retired miners and widows.
    I come before you to convey a heartfelt thank you from all 
of the retirees for the hard work of this committee in keeping 
that promise. I will be happy to answer any questions you may 
have.
    [The prepared statement of Mr. Banig follows:]

   Prepared Statement of Bill Banig, Director, Governmental Affairs, 
              United Mine Workers of America, Fairfax, VA

    Chairman Bingaman, members of the Committee, I am Bill Banig, 
director of Governmental Affairs for the United Mine Workers of America 
(UMWA). The UMWA is a labor union that has represented the interests of 
coal miners and other workers and their families in the United States 
and Canada for over 117 years. We appreciate the opportunity to appear 
before the Committee to celebrate the thirtieth anniversary of the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA), an historic 
piece of legislation that continues to be of vital importance to coal 
mining communities across this nation.
    When enacting the Surface Mining Control and Reclamation Act in 
1977, Congress found that ``surface and underground coal mining 
operations affect interstate commerce, contribute to the economic well-
being, security, and general welfare of the Nation and should be 
conducted in an environmentally sound manner.'' That statement is as 
true today as it was in 1977. Coal mining contributes significantly to 
our national economy by providing the fuel for about half of our 
nation's electricity generation. Coal miners are proud to play their 
part in supplying our nation with domestically-produced, cost-
effective, reliable energy. We also live in the communities most 
affected by coal mining and support the intent of Congress that coal 
mining must be conducted in an environmentally sound manner.
    Throughout our 117 year history, the UMWA has been in the forefront 
of bringing social, economic and environmental justice to our members 
and the nation's coal fields. Our members toil in the nation's coal 
mines to provide domestically-produced energy that helps fuels our 
economy. The UMWA's goal is to protect the interests of our members on 
the job and when they return home to their families after a hard days 
work. The UMWA has led the fight throughout our history to enact tough 
mine health and safety laws to protect miners on the job. 
Unfortunately, advancements in health and safety too often happen only 
after miners are killed on the job, as we all witnessed again last year 
at the Sago Mine in West Virginia where twelve miners died and recently 
at the Crandall Canyon mine in Utah where nine miners lost their lives. 
We have fought for compensation laws to assist those who are injured 
and occupational disease laws to provide for those whose health has 
been taken from them. The UMWA has also been in the forefront of 
providing health care and pensions to workers, establishing one of the 
first industry-wide multi employer benefit plans. Through the historic 
1946 Krug-Lewis Agreement--signed in the White House between Secretary 
of the Interior Julius Krug and UMWA President John L. Lewis--the UMWA, 
the coal industry and the federal government created the UMWA Health 
and Retirement Funds. Over the last 60 years the UMWA Funds has 
provided pensions and health care to hundreds of thousands of our 
nation's coal miners and helped to modernize the delivery of health 
care in coal field communities across the nation.
    Indeed, years ago the Funds established ten regional offices 
throughout the coal fields with the direction to make arrangements with 
local doctors and hospitals for the provision of ``the highest standard 
of medical service at the lowest possible cost.'' One of the first 
programs initiated by the Funds was a rehabilitation program for 
severely disabled miners. Under this program over 1,200 severely 
disabled miners were rehabilitated. The Funds identified disabled 
miners and sent them to the finest rehabilitation centers in the United 
States. At those centers, disabled miners received the best treatment 
that modern medicine and surgery had to offer, including artificial 
limbs and extensive physical therapy to teach them how to walk again. 
After a period of physical restoration, the miners received 
occupational therapy so they could provide for their families.
    The Funds also made great strides in improving overall medical care 
in coal mining communities, especially in Appalachia where the greatest 
inadequacies existed. Recognizing the need for modern hospital and 
clinic facilities, the Funds constructed ten hospitals in Kentucky, 
Virginia and West Virginia. The hospitals, known as Miners Memorial 
Hospitals, provided intern and residency programs and training for 
professional and practical nurses. Thus, because of the Funds, young 
doctors were drawn to areas of the country that were sorely lacking in 
medical professionals. A 1978 Presidential Coal Commission found that 
medical care in the coal field communities had greatly improved, not 
only for miners but for the entire community, as a result of the UMWA 
Funds. ``Conditions since the Boone Report have changed dramatically, 
largely because of the miners and their Union--but also because of the 
Federal Government, State, and coal companies.'' The Commission 
concluded that ``both union and non-union miners have gained better 
health care from the systems developed for the UMWA.''
    Coal miners value the natural resources that God has given us. In 
their free time, you will find many of them fishing in the streams and 
hunting in the forests throughout the coalfields. Because of their love 
of the land, they are strong defenders of the need responsible 
reclamation laws. Because they work in a vital energy industry, they 
also know that the nation needs the product of their labor. Perhaps 
more than most, they understand the need for responsible policies that 
balance our need for energy with our need to protect the environment. 
We believe the 1977 Surface Mining Act struck the right balance and the 
authors and supporters of that effort should be proud of their 
accomplishments. We are proud to say that the UMWA has been a steadfast 
supporter of SMCRA throughout its 30 year history.
    While more than $5.7 billion has been appropriated for mine site 
reclamation since 1978, there are many more sites still requiring 
attention. With the reauthorization of the AML program as part of the 
Tax Relief and Health Care Act last December, Congress extended the AML 
Fund for 15 years. States and tribes will finally start to receive the 
resources they need to take care of the reclamation projects within 
their respective jurisdictions. The 2006 AML reauthorization also 
provided the long term financial solution for the health care of the 
thousands of abandoned retired coal miners and their dependents whose 
employers went out of business and ceased fulfilling their contractual 
promises to pay for their retirees' health care.
    Coal miners especially appreciate the substantial financial support 
SMCRA has provided through the Abandoned Mine Land Fund (AML) to 
reclaim abandoned coal mines in the coal field communities. Through the 
AML Fund, mining communities across this country have received billions 
of dollars--monies collected through fees imposed on a per ton basis 
for all coal that is mined in the United States--to clean up abandoned 
coal mines While the overwhelming majority of these funds have paid for 
the reclamation of abandoned mines, with the passage of the 1992 Coal 
Act, interest earned on the AML principal since 1995 has been used to 
help support the health care needs of abandoned retired coal miners In 
other words, the Surface Mining Control and Reclamation Act has 
provided essential support for both the needs of abandoned coal mines 
and abandoned retired miners and their dependents. I want to thank the 
members of this Committee who played a vital role in ensuring that the 
needs of abandoned coal miners were not forgotten.
    When Congress authorized the use of AML interest to help finance 
the cost of health care for retired coal miner, it was a logical 
extension of the original intent of Congress when the AML Fund was 
established. Congress joined these two programs together for a specific 
reason--they both represent legacy costs of the coal industry that 
compelled a national response. When Congress created the AML Fund in 
1977, it found that abandoned mine lands imposed ``social and economic 
costs on residents in nearby and adjoining areas.'' When Congress 
enacted the Coal Act in 1992, it also was attempting to avoid 
unacceptable social and economic costs associated with the loss of 
health benefits for retired coal miners and widows. Moreover, as the 
U.S. Government Accountability Office (GAO) found in its 2002 report on 
the Coal Act entitled ``Retired Coal Miners' Health Benefit Funds: 
Financial Challenges Continue,'' UMWA retirees traded lower pensions 
over the years for the promise of their health benefits and engaged in 
considerable cost sharing by contributing $210 million of their pension 
assets to help finance the CBF.
    Although some criticized the use of AML interest money to help 
cover the cost of coal miners' retiree health care, this marriage 
proved to be the catalyst for last year's reauthorization of the AML 
program which successfully addressed the varied--and sometimes 
conflicting--needs of the many interested parties. With all parties 
with a stake in the SMCRA debate--states and tribes, coal companies, 
environmental groups, and UMWA members--working together for the 
passage of the Tax Relief and Health Care Act last year, Congress was 
able to forge a political consensus that had eluded us for many years, 
allowing us to achieve goals that many of us have been pursuing since 
the passage of SMCRA in 1977 and the Coal Act in 1992. Not only did 
that legislation succeed in securing the long term financial support 
for retired coal miners' health care, the legislation also provided 
relief to operators by reducing the AML fees by 20%, modified the AML 
formulas to provide historic production states that have the most 
serious reclamation problems with higher allocations, and mandated that 
minimum program states are guaranteed at least $3 million each year for 
reclamation efforts. In addition, the legislation took a portion of the 
AML fees collected off budget and over a seven year period, all states 
and tribes will receive from the General Treasury an amount equivalent 
to their unappropriated balances in the AML fund. The end result of the 
legislation is that is that it resolved many longstanding disputes that 
had blocked AML reform for several years. More importantly, the 
legislation will mean more funds will be available to address vital 
reclamation needs in the coal fields.
    In terms of abandoned retiree health care, the passage of the Tax 
Relief and Health Care Act has addressed the financial problems that 
have plagued the Coal Act since its passage in 1992. As many are aware, 
adverse court decisions and an unanticipated series of bankruptcies in 
the coal and steel industries had eroded the original financial 
mechanism Congress intended to fund Coal Act health care obligation. As 
a result, on three separate occasions Congress had to provide emergency 
appropriations, using unused AML interest money, to keep health care 
benefits from being cut. With passage of last year's AML 
reauthorization, these and many other issues have been resolved.
    Mr. Chairman, the UMWA and its members are grateful that Congress 
forged a bipartisan consensus to reauthorize the AML Program and 
provide a long-term solution to the coal industry retiree health care 
financial crisis. We have in previous appearances before the Committee 
provided the historic context for the government's unique promise of 
health care to coal miners. You know all too well that over their 
working lives, these retirees traded lower wages and pensions for the 
promise of retiree health care that began in the White House in 1946 
when the Krug-Lewis agreement was signed. In 1992, miners willingly 
contributed $210 million of their pension money to ensure that the 
promise would be kept. Everything that this nation has asked of them--
in war and in peace--they have done. They are part of what has come to 
be called the ``Greatest Generation'' and deservedly so. They have 
certainly kept their end of the bargain that was struck with President 
Truman. In 2006 we were delighted that Congress forged the political 
consensus that allowed the federal government to keep its promise once 
again.
    Today, we appreciate having this opportunity to thank every member 
of Congress for remembering the plight of our retired miners and 
widows. I come before you to convey a heartfelt thank you from all the 
retirees, including the original 112,000 beneficiaries, for the hard 
work of this Committee in keeping that promise.
    I would be happy to answer any questions you may have.

    The Chairman. Thank you very much.
    Ms. Rank, why don't you go right ahead.

 STATEMENT OF CINDY RANK, WEST VIRGINIA HIGHLANDS CONSERVANCY, 
    ROCK CAVE, WV; ACCOMPANIED BY JOAN MULHERN, EARTHJUSTICE

    Ms. Rank. Good afternoon, Chairman Bingaman, and member of 
the committee, I do appreciate the opportunity to come over 
here today to talk about what I see as the enforcement, or lack 
thereof, of SMCRA.
    I'm a citizen volunteer with the West Virginia Highlands 
Conservancy, on of the oldest environmental advocacy 
organizations in West Virginia, and for the past four decades 
has been a leader in citizen efforts to protect West Virginia's 
land, water, and human resources from the effects of illegal 
and irresponsible coal mining.
    I became a member of the Highlands Conservancy nearly 30 
years ago, when our own community group was faced with mining 
that would have ruined our water with acid mine drainage, the 
water that we use for our homes.
    Since that time, my association, with the Conservancy as a 
member of the Board, President for 6 years, and mining 
committee chair since 1994, I've seen many other problems crop 
up in many other different sections of the State. Unbelievably, 
I've known Director Wahlquist for about 20-some years, and Mr. 
Conrad, I've been in meetings with for many years, and I'm 
amazed at how differently we look at what's happening in the 
coal fields, and how we perceive the enforcement of the Surface 
Mine Act.
    We all recognize that SMCRA meant to create a balance 
between protecting the environment and producing the coal 
that's necessary for the country. When OSM first came to town 
in West Virginia, indeed it was a powerful voice, intent on 
reigning in the abuses of the coal industry.
    Then, as enforcement was handed over to the States, funding 
and staffing cuts imposed on OSM, and weakening regulatory 
changes made--mostly at the urging of industry year after 
year--the office has really become, in our opinion, an empty 
shell of its former self.
    All too often the balance intended under this Act is no 
longer in existence. The scales of justice are, once again, 
tipped in favor of coal at any cost, over people and the 
environment. I say this, not just from the Appalachian 
Mountains, but we've also heard this from people in the 
Midwest, and in the Indian Territory, and as far north as 
Alaska.
    OSM's failure of the law has allowed mining operations to 
permanently damage streams, forests, and generations-old 
communities. Far in excess of the watchdog role that was meant 
for us citizens in SMCRA, we unfortunately have to go to great 
lengths, and are embroiled in difficult and lengthy 
administrative and legal efforts that Mr. Quinn doesn't 
necessarily think are helpful, but we think they are necessary 
to hold regulatory agencies accountable under the law.
    At great personal expense, individual citizens brave enough 
to challenge illegal permits are forced into the trenches once 
more, confronting angry workers who depend for work on ill-
conceived permits. Just like the bad old days before SMCRA, 
neighbor is pitted against neighbor, one family's livelihood, 
against another family's home and heritage.
    For us in Appalachia today, the situation is particularly 
explosive--literally. Not only are thousands of pounds of 
explosives used every day to blast apart our mountains, the 
communities near these mines are becoming tinder boxes. 
Emotions run high as dust, blasting, water pollution and 
flooding force people out of their homes and hollows. Those who 
stay suffer constant barrage of problems, large and small, and 
for those brave enough to challenge illegally granted permits 
in the Courts, threats against home and family are now rampant.
    In my written testimony, I submitted several different 
examples of problems that I think could be resolved better, 
with better enforcement by OSM. That includes all of those 
things you've heard of today from Mr. Wahlquist and others, but 
in a different light. Acid mine drainage continues to flow, 
even from mines granted after the passage of SMCRA, our bonding 
situation in many States is insufficient to take care of mines 
deserted after the passage of SMCRA, excess subsidence from 
long-wall mining these days, toxic underground mine pools, when 
in acid-producing seams that are beginning to seep out into 
people's wells and yards, sludge dams and slurry injection that 
have contaminated neighbors water wells--the situation is not 
as rosy as we heard--and last, the mother of all atrocities, is 
mountaintop removal strip mining.
    Mountaintop removal--we have pictures that are showing on 
the screen--are also in my testimony, it's become the scourge 
of Southern West Virginia and adjacent portions of surrounding 
States, where entire mountains are being blown apart to allow 
easy access to 6, 10, or more seams of coal that lie within our 
steep mountains like frosting in a layer cake.
    Every part of the human and natural environment is 
suffering as this strip mining on steroids looms over 
communities and extends into lightly populated mountain 
hollows, forcing small communities to seek safer ground in 
unfamiliar cities and towns far from their roots that have 
nurtured generations of their families before them.
    The very heart and soul of our mountain way of life is 
being ripped apart with hardly a whimper out of OSM, except to 
adjust one regulation after another to further aid industry in 
its destruction of our forests, water and communities that 
depend upon those resources.
    I see I'm probably over my time, I would just like to say 
briefly that headwater streams are destroyed, groundwater 
resources are destroyed, land and forest resources are 
decimated as these ancient mountains are torn apart, and this 
is going to be centuries, if at all, these things are repaired, 
or come back.
    Contrary to the clear intent and purposes of SMCRA, a whole 
host of environmental standards, including approximate original 
contour, the stream buffer zone rule, saving topsoil, the 
proper use of topsoil substitutes, post-mining land use, 
cumulative hydrologic impact assessments, have all been 
bastardized in order to allow this destructive mining to 
continue.
    The industry would have us believe that this is only 
impacting maybe 1 or 2 percent of West Virginia, but if you 
look at the map on the tripod over there, or the map that's 
included with my testimony, you can see that if we look at the 
16 or so counties where this kind of mining is concentrated, 
that percentage shoots up immediately to closer to 15 percent, 
and that's a very large percent of the counties of Boone, 
Logan, Mingo and several others in Southern West Virginia.
    It took nearly 20 years for OSM to begin to realize the 
impact and costly legacy of acid mine drainage that resulted 
from careless permitting after the Act, during the eighties and 
nineties. If it takes another decade for the Agency to 
recognize the long-term cost of mountaintop removal mining, we 
may have precious few mountains, and very few streams left to 
worry about.
    As the late Judge Charles Haden recognized in ruling on our 
Brag v. Robertson case in 1999, this is a bell that, once rung, 
cannot be un-rung. Many of our human mistakes can be corrected, 
even polluted streams can sometimes be corrected and improved 
over time. But our mountains will never come back, our 
headwater streams and high-mountain springs never returned 
again.
    I appreciate, again, the opportunity to come over and talk 
about it. There's far too much to say in 5 minutes and I'd 
appreciate answering any questions, especially a couple of the 
legal questions that arose with Mr. Wahlquist, maybe Joan 
Mulhern can assist me in setting the record straight on stream 
buffer-zone rule, and 1999 rules.
    I would hope that this hearing is only the beginning of 
what this committee might pursue as oversight of SMCRA over the 
next years. I would invite everybody on the committee and the 
staff to indeed, come to West Virginia, we'll be happy to 
provide the opportunity to fly over the mountaintop removal 
area and to visit the communities. I'm sure the coal industry 
would be happy to show you the mine sites on top of the mines, 
and we'd be happy to show you what's lost in getting to the 
post-mining land use that some people think are so good.
    Thank you, again.
    [The prepared statement of Ms. Rank follows:]

Prepared Statement of Cindy Rank, West Virginia Highlands Conservancy, 
        Rock Cave, WV; Accompanied by Joan Mulhern, Earthjustice

    Good afternoon Chairman Bingaman and members of the Committee. 
Thank you for the opportunity to speak with you today. I am Cindy Rank, 
a citizen volunteer with the West Virginia Highlands Conservancy (WVHC) 
since 1979.
    The West Virginia Highlands Conservancy is a nonprofit membership 
organization with approximately 1,800 members, most of whom reside in 
West Virginia. Officially incorporated in 1967, the Highlands 
Conservancy is one of the state's oldest environmental advocacy 
organizations and for the past four decades has been a leader in 
citizen efforts to protect West Virginia's land, water and human 
resources from the effects of illegal and irresponsible coal mining.
    I live in southern Upshur County in Central WV. I became a member 
of the Highlands Conservancy nearly 30 years ago when our local 
community group, Friends of the Little Kanawha (FOLK) appealed to the 
Conservancy for assistance in our fight against strip mining planned 
for our area that would have severely degraded our water with acid mine 
drainage.
    I was president of the Conservancy from 1988 to1994 and continue to 
serve on the Board of Directors. Since 1994 I have also chaired the 
Conservancy's Mining Committee.
    Although my initial concern about mining centered on the 
devastating impact of acid mine drainage on the waters that support my 
own life, home and community, my years with the Highlands Conservancy 
have introduced me to a broader range of problems and additional 
concerns. At times focused on specific local problems on behalf of our 
members, the Conservancy also addresses more programmatic issues and 
deficiencies in the program, through commenting on regulatory 
proposals, participating in administrative proceedings, and filing 
litigation when necessary.
    As a volunteer organization the Conservancy often relies on the 
able assistance and generous pro-bono legal work of local, regional and 
national groups such as the Appalachian Center for the Economy and the 
Environment in Lewisburg, WV, Public Justice and Earthjustice here in 
Washington DC. Joan Mulhern from Earthjustice is here with me today to 
assist with specific legal and technical questions you may ask.

                             SMCRA AND OSM

    In the opening sections of the Surface Mine Act Congress clearly 
recognized that achieving the necessary balance of protecting the 
environment while providing for the Nation's need for coal would 
require strong guidance and oversight to assure that society would be 
protected from the adverse effects of strip mining.
    When OSM first came to town in the late 1970's it was that powerful 
force . . . intent on reining in the abuses of the coal industry. Then, 
as enforcement was handed over to the states, funding and staffing cuts 
imposed on OSM, and weakening regulatory changes made--mostly at the 
urging of industry year after year--the Office has become an empty 
shell of its former self. Despite the good intentions of many dedicated 
staff members, OSM currently offers more help to the mining industry 
than it does to citizens and communities where coal is mined. All too 
often, the ``balance'' intended under the act no longer exists . . . . 
The scales of justice are once again tipped in favor of coal at any 
cost over people and the environment.

                          PUBLIC PARTICIPATION

    From the outset, public participation was recognized as a key 
component of the overall regulatory program. Citizens were to be 
watchdogs to keep regulators on their toes and ensure implementation of 
state regulatory programs in accordance with the requirements of the 
Surface Mining Act by commenting on regulations, fully participating in 
the permitting process and other aspects of the program.
    However, after years of tweaking, bending and stretching 
regulations to the benefit of industry ordinary citizens are now hard 
pressed to be the watchdogs envisioned by Congress in 1977. Individuals 
can now spend entire lifetimes at great personal and emotional cost 
following the regulatory agency's every move, educating themselves and 
others, organizing across the mountain ridges, finding and hiring 
independent hydrologists, biologists, and other legal and technical 
experts at great expense. All this to protect their lives, homes and 
communities--protection that SMCRA assured would be provided by OSM. 
Only individuals whose health and personal family circumstances can 
sustain such inordinate amounts of time and effort can survive.
    For us in Appalachia today the situation is explosive--literally . 
. .  . Not only are thousands of pounds of explosives used DAILY to 
blast apart mountains in southern WV, but communities near these mines 
are becoming tinderboxes of tension. Emotions run high as dust, 
blasting, water pollution, and flooding force people out of their homes 
and hollows. Those who stay suffer constant barrage of problems large 
and small. And for those brave enough to challenge illegally granted 
permits in the courts, threats against home and family are now rampant.
    Much of this is due to newer technologies and mammoth mining 
machines that have made it possible to cause more destruction both 
above and below ground. Much also has to do with the entrenched 
political influence of the coal industry and its ability to sway state 
and federal regulators to do what benefits industry. For its part, OSM 
has seen to the dilution of standards and the weakening of any 
enforcement that stands in the way of profit--leaving citizens more or 
less to fend for themselves.
    OSM's failure to enforce the law has allowed mining operations to 
permanently damage streams, forests, and generations old communities. 
We find ourselves embroiled in difficult and lengthy administrative and 
legal efforts to hold both the state and federal agencies accountable. 
We've appealed to the courts time and time again. Individual citizens 
brave enough to challenge illegal permits are forced into the trenches 
once more--confronting angry neighbors who work in the mines and are 
dependent for work on ill-conceived permits. Just like the bad old days 
when SMCRA was first enacted, neighbor is pitted against neighbor. One 
family's livelihood against another family's home and heritage.

                            SPECIFIC ISSUES

    While my own experience is rooted in the eastern part of the 
country--and central Appalachia in particular, citizens in the mid 
west, great plains and as far north as Alaska are experiencing the same 
disappointment with the agency. Their stories reflect suffering and 
similar types of harm due to the lack of enforcement of an imperfect 
but useful SMCRA.
    After the mighty struggles that finally resulted in the enactment 
of SMCRA, lax enforcement of the law has led us back to the beginning. 
The same problems that spawned the Surface Mine Act in the first place 
have risen from the ashes with a vengeance--just in different, more 
modern day clothing . . . and with better PR spin doctors to shine the 
most favorable light on some of the most despicable . . . horrendous 
crimes against nature.
    While it's impossible to address the many programmatic deficiencies 
and issues of concern in the short amount of time we have today, I 
offer the following brief overview of some major concerns that are 
festering with less than adequate attention from OSM and/or its 
counterpart state agencies:

   Acid Mine Drainage from mines permitted both before and 
        after SMCRA has left thousands of miles of streams unfit and 
        unsafe . . . 
    --Pre-SMCRA sites.--The Abandoned Mine Lands (AML) program and fund 
            established to reclaim minesites abandoned prior to the 
            passage of SMCRA has had significant problems these past 30 
            years and hundreds of mines abandoned prior to 1977 still 
            sit untended today. It is my sincere hope that the 
            important (but far from perfect) re-authorization bill 
            enacted by this Congress at the end of last year will help 
            to some degree. But for it to work, it is imperative that 
            the states use the funds wisely and primarily to accomplish 
            the main goal of reclaiming old abandoned minessites.
    --Post-SMCRA sites.--Beginning in 1977 no permits were to be issued 
            where it was reasonable to assume a perpetual source of 
            acid would be created, and yet today hundreds of those 
            mines plague thousands of miles of WV and PA streams with 
            acid mine drainage.
    --SMCRA requires that bonding mechanism be in place to assure that 
            enough money will be available to reclaim any site that 
            might be abandoned prior to complete reclamation. Companies 
            would be required to post individual bonds and/or 
            contribute to alternative bonding systems set up to achieve 
            this end. Nonetheless, the bond program in WV was never 
            sufficient. After nearly 15 years of legal and 
            administrative challenges by WVHC and others, the state DID 
            increase the per ton fee companies are required to 
            contribute to the states ``Special Reclamation Fund'', 
            which did help address the backlog of reclamation. However, 
            by all recent estimates the fund will again be broke within 
            the next few years. Millions of dollars is needed to fix 
            the fund, and that's not even counting at least 364 active 
            sites where water treatment is ongoing and will most likely 
            be needed--by someone--far into the future if not forever.
    --Toxic underground mine pools have formed where interconnected 
            deep mine workings in acid producing coal seams have become 
            filled with acidic and metal laden water, polluting 
            groundwater relied on for years by individuals and small 
            rural and mountain communities at great distances from city 
            water.  . . .  Even now a bevy of agencies is thrashing 
            about for solutions to the nearly million acre ``Pittsburgh 
            Pool'' that exists in northern WV and southwestern 
            Pennsylvania. Pressure is now forcing the metal laden water 
            into wells, yards and streams through cracks and fissures 
            in the surrounding rock. And still OSM stands by while the 
            state issues additional permits in northern WV where the 
            same phenomenon is likely to occur and present extreme 
            water problems in the year to come.
    --Subsidence due to longwall mining is causing permanent damage to 
            ponds, streams and homes. Today in WV hearing a group of 
            valiant citizens is challenging the first of two 6,000 acre 
            longwall mines planned for either side of the Tygart Lake 
            in the northern part of the state--just south of Greene 
            County PA where the impacts of this kind of mining have 
            been felt for 
            years . . .  .
    --Blasting regulations insufficient to protect traditional 
            structures in rural WV and in tribal lands in the west and 
            citizens are required to go to great lengths to prove 
            damage and beg and plead for remuneration.
    --Sludge ponds and slurry injection created for the disposal of 
            coal waste from preparation plants threaten the health of 
            citizens in Mingo County WV and other areas where water 
            runs black and brown from indoor faucets and children 
            develop blisters and unidentified rashes after bathing in 
            that water. Citizens have had to fight and lobby our state 
            legislature to get even the slightest bit of official 
            attention and study of the matter.

    And, lastly, the mother of all atrocities: Mountaintop removal 
strip mining.

                          MOUNTAINTOP REMOVAL

    Mountaintop removal has become the scourge of southern WV and 
adjacent portions of KY, and southwestern VA where entire mountains are 
being blown apart to allow easy access to 6,10 or more seams of coal 
that lie within our steep mountains like frosting in a layer cake.
    Every part of the human and natural environment is suffering as 
this strip mining on steroids looms over communities and extends into 
the lightly populated mountain hollows forcing small communities to 
seek safer ground in unfamiliar cities and towns far from their roots 
that have nurtured generations of families before them. The very heart 
and soul of our mountain way of life is quickly and quietly being 
ripped out with hardly a whimper out of OSM except to adjust one 
regulation after another to further aid in the destruction of our 
forests, water and communities that depend on those resources.
    Water is at the heart of it all. Having nowhere to put the deep 
layers of earth that separate the coal seams, companies blast apart and 
dump the rock into the stream valleys that originate in the high 
reaches of the mountain and flow down the hollows between the ridges. 
Pockets of groundwater, perched aquifers and hillside springs that many 
of us depend on are gone in an instant.
    According to a multi agency draft Programmatic Environmental Impact 
Statement (PEIS) on Mountaintop Mining/Valley Fills conducted in 
response to litigation brought on behalf of the WVHC and several brave 
coalfield citizens, these ``valley fills'' have buried or otherwise 
damaged over 1,200 miles of irreplaceable headwater streams. These are 
not `dry ditches' as some would have you believe, but streams up to 2 
miles long that flow year round and serve a unique role in the health 
and vitality of downstream reaches. The PEIS predicted that another 
1,000 miles of streams would be similarly impacted if no actions were 
taken to limit or curtail the practice.
    No one has predicted what or where--or even IF--groundwater and 
hillside springs might redevelop . . . or how long it might take for 
that process to occur. Ancient geologic formations of steep mountains 
and narrow valleys are replaced with rubble-filled valleys and rock 
molded into mounds a couple hundred feet lower than the mountains they 
replace.
    Land and forest resources are decimated as these ancient mountains 
are turned inside out. Blasting hundreds of feet deep, thousands of 
acres at a time mining has caused the loss of hundreds of square miles 
of the most productive and diverse temperate hardwood forests in the 
world. According to the Mountaintop mining EIS well over 400,000 acres 
have already been impacted and the EIS predicted that figure would 
increase to 1.4 million acres (that's over 2200 square miles) by the 
end of the decade if nothing is done to limit the practice.
    Contrary to the clear intent and purpose of SMCRA, a whole host of 
environmental standards including Approximate Original Contour, saving 
topsoil with the native seed-pools intact, the proper use of topsoil 
substitutes, Post Mining Land Use (that provide viable economic 
opportunities for communities once the valuable coal reserves are 
gone), Cumulative Hydrologic Impact Assessment are all bastardized in 
order to allow this destructive mining to continue. And the mountains 
of Appalachia are being reduced to a ``field of dreams'' for some 
future undetermined generation.
    Industry would have us believe that mountaintop removal mining is 
doing only minimal damage and that the practice is only impacting about 
1 or 2% of the state of West Virginia. While that may be true if you 
consider the entire acreage of WV is some 15.5 million acres, if you 
look at the 16 or so counties where mountaintop removal mining is 
taking place, that number skyrockets to as much as 15% or more. That 
can be seen clearly on this map* of the three county area of Boone, 
Logan and Mingo counties that we've brought with us today.
---------------------------------------------------------------------------
    * Maps have been retained in committee files.
---------------------------------------------------------------------------
    As the late Judge Charles Haden recognized, this is bell that once 
rung, can't be unrung. Many of our human mistakes can be corrected, 
even polluted streams can be restored over long periods of time, but we 
will never get our mountains and headwater streams and high mountain 
springs back again.
    OSM has engaged in a series of actions to gut long-standing 
safeguards against the wholesale burial and pollution of streams in 
Appalachia by the coal mining industry.

   In December 2003, the Office of Surface Mining (OSM) 
        proposed to weaken its oversight of state mining programs, by 
        making federal takeovers for state violations of federal law 
        discretionary rather than automatic. 68 Fed. Reg. 67776.
   In October 2005, the Administration released its final 
        Programmatic Environmental Impact Statement on Mountaintop 
        Mining/Valley Fills in Appalachia (PEIS), which proposed no 
        meaningful mining reforms or limitations on valley fills. 70 
        Fed. Reg. 62102. Despite scientific studies showing significant 
        harm was already being done  . . . and would continue, OSM 
        chose to streamline the permitting process, totally ignoring 
        any effort to reduce the harmful impacts.
   Now, in with its most recent proposal OSM wants to gut the 
        Stream Buffer Zone (SBZ) rule, the most important safeguard 
        under the Surface Mining Control and Reclamation Act (SMCRA) 
        for protecting streams. Again scientific studies cited in the 
        draft EIS for the proposed rule change indicate significant 
        harm is being done. Again, OSM chose to ignore any alternative 
        that might reduce the size or number of fills and thus reduce 
        the impact and prevent further significant harm to the waters 
        of the U.S. The proposed rule would eliminate the standing 
        prohibition against mining within 100 feet of streams if that 
        mining will have an adverse effect on water quantity, water 
        quality, and other environmental resources of the stream. In 
        its place the proposed rule merely asks that a company do what 
        it can to ``minimize'' harm to the extent possible. The 
        proposed rule is a violation of both SMCRA itself and the Clean 
        Water Act, which SMCRA purports to uphold.

                           CONCLUDING REMARKS

   OSM should withdraw the Stream Buffer Zone rule change and 
        stop the insanity that is now taking place in central 
        Appalachia.
   OSM needs to maintain strong policy against permitting when 
        acid mine drainage is anticipated.
   OSM must improve its requirements for assessment of 
        Cumulative Hydrologic Consequences to better ascertain what is 
        happening to our ground and surface water resources especially 
        in mining areas where mountaintop removal strip mining and 
        longwall deep mining is taking place.

    Again, thank you for the opportunity to speak today. Joan and I are 
willing to answer any questions you might have and will be happy to 
provide you with whatever additional information that you might 
request. We hope that today's hearing will lead to additional oversight 
by the Committee on Energy and Natural Resources, particularly on the 
enormous damage being caused in my region by Mountaintop Removal 
mining. There are many other citizens and coalfield residents as well 
as scientists and mining experts who could provide the Committee with 
valuable and compelling information to demonstrate that this practice 
must be ended.
    LASTLY, let me extend an invitation to every one on this committee 
to come to West Virginia and see for yourself the irreversible harm 
that is being done as a result of the lax enforcement of the law and 
OSM's acquiescence. The West Virginia Highlands Conservancy and our 
sister organizations working to end the abuses of Mountaintop Removal 
mining will be happy to provide you with the opportunity to flyover the 
mountaintop removal areas and to meet and talk with citizens who are 
directly and profoundly impacted by the mining.

    The Chairman. Thank you very much. Let me just ask a few 
questions.
    Mr. Quinn, You've heard Director Wahlquist's testimony 
about his understanding or interpretation of SMCRA and the way 
it applies to this issue of streams and water being interfered 
with. Do you agree with his assessment or do you take exception 
to any of it?
    Mr. Quinn. Let me see if I can be a little clearer, I 
think, in answer to the question as the application of the 
stream buffer zone rule changed over the years, the answer 
would be no. That rule was first promulgated in 1977, has 
always applied, has been viewed as a best management practice 
for activities that occurred outside of those streams, but were 
activities designed and must occur adjacent or in the stream, 
it does not apply. Otherwise, you would not be able to mine 
through streams and create reserves whether it be in New 
Mexico, West Virginia and other places would not be able to be 
mined.
    It's just like a BMP you'd use in oil, gas and other 
places, you would, if your activity doesn't require you to be 
in that stream channel, keep back and design a buffer for, so 
sediment doesn't flow into it.
    But if you're designed to occur, your activity to occur in 
that stream, then design it according to the requirements of 
the law that talk about minimizing the disturbance downstream 
from your activity.
    If the interpretation advocated in this litigation about 
the stream buffer zone rule were upheld, literally, parts of 
SMCRA would be just null and void. The statute talks about 
mountaintop mining, it talks about valley fills, it talks about 
valley fills being built where, in stream channels. There is no 
stream buffer zone rule requirement in SMCRA. There are some 
buffer zone requirements in SMCRA, and they're very explicit 
around homes and other places, there is no stream buffer zone, 
there was one in an early version, but it was never enacted.
    So, the point is, is that, I think there's a rule that was 
intended to be a reminder of a best management practice for 
mining near or by streams, is now being leveraged to 
interpretation that would actually bar most mining.
    In the studies that Mr. Wahlquist's agency has done, as 
well as other studies have indicated that in this particular 
area of West Virginia, 90 percent of the reserves would be 
rendered unmineable under that interpretation. The economic 
impact would be devastating.
    The Chairman. Let me ask either Ms. Rank or Ms. Mulhern if 
you take exception to that interpretation of the law, there 
seems to be a difference of opinion here.
    Ms. Rank. I certainly take exception to that. One of the 
main goals of the Surface Mine Act was also to uphold the Clean 
Water Act. Water is one of our most important resources, and 
will be an important resource on into the future. Some of the 
environmental regulations that were set forth under SMCRA were 
to protect the waters that were going to be so important--that 
are important and will be important. To create a stream, or to 
interpret the stream buffer zone rule to eliminate the 
protection of those waters is in complete violation, as far as 
I'm concerned of SMCRA and the Clean Water Act.
    Maybe Joan can be a little more reasonable or rational in 
her response to that.
    The Chairman. Ms. Mulhern, go right ahead.
    Ms. Mulhern. Thank you, Mr. Chairman. I'd like to add my 
thanks to those of others for your having this hearing today 
and especially for your focus on mountaintop removal and the 
stream buffer zone rule.
    The 1977 Surface Mining Law is replete with provisions that 
make it very clear that Congress intended to protect waterways, 
not only from gross disturbances, but even from increased 
sedimentation. The Surface Mining Agency, OSM, made it very 
clear in 1983 when it adopted the stream buffer zone rule, that 
it was intended to implement those purposes. It was named the 
buffer zone for a reason, it was actually supposed to be a 
buffer around intermittent and perennial streams.
    The provisions that have been cited, and I can provide the 
legal citations to you after the hearing, if you wish--or now, 
I have them with me--that are saying that there is some 
contemplation that there would be some fills in streams, are 
talking about exceptions where there might be some seeps, or 
other small water courses underneath some part of a fill, and 
the requirement to construct lateral drains where that does 
occur, so that the seep doesn't go up into the fill.
    But certainly, those provisions can't be used to justify 
the wholesale destruction of hundreds of thousands of miles of 
perennial and intermittent streams, it clearly wasn't 
contemplated, and in fact, even the section of section 515 of 
SMCRA where that lateral drain language occurs, is not the 
section of SMCRA which the Agency used for its legal authority 
for the buffer zone rule, which is another subsection of that 
part of the law.
    So, I think that these arguments are really legal red 
herrings, I think that it's very clear that the agencies are 
not only authorized, but actually required to take steps to 
protect streams from the kind of destruction that we're seeing 
today.
    The Chairman. My time is up.
    Senator Barrasso.
    Senator Barrasso. Thank you, Mr. Chairman.
    Ms. Rank, it seems the recommendations that you've 
submitted in your testimony all relate more to administrative 
actions by the Office of Surface Mining as opposed to specific 
legislative changes, did I get that right? You weren't really 
proposing a specific change in the law just to----?
    Ms. Rank. I was not. I know others may suggest changes, but 
I was certainly suggesting that it's been mostly the lack of 
enforcement and misinterpretation of these laws that I find 
offensive. That especially with the stream buffer zone rule 
that's been proposed, the change I find, you know, particularly 
egregious, and something that should be looked into in more 
depth, if only because the EIS that accompanied this change 
really never even looked at how you could enforce the law, and 
what that would mean. So that, it's really incomplete on its 
face, in terms of leaping from what the EIS said was damage, 
to, you know, a different clarification or change in this rule.
    Senator Barrasso. For Mr. Banig and Mr. Quinn, I'm going to 
read a comment from our former U.S. Senator Hansen, he's now in 
his nineties, from Wyoming, and he was involved in this debate 
in 1977.
    He said, ``I think the protection of our environment, our 
land resources, and agricultural way of life, and our water is 
of the highest importance. I certainly want to do everything I 
can to see whatever is passed here takes full recognition of 
these values.''
    Mr. Banig, I think you said we did strike the right 
balance, that we are using our resources, we are also 
protecting our environment as your workers want to make sure 
that they work, earn a good living, but also have the resources 
for all the activities that--did Senator Hansen get what he 
wanted?
    Mr. Banig. The mine workers, we feel that he did. You know, 
we think that SMCRA has struck the appropriate balance, and you 
know, we need to mine coal in an environmentally acceptable 
manner, and we recognized that. Again, we live in these 
communities, too. We don't home to urban centers after a days' 
work, we live in the same communities as the other people in 
these areas.
    Senator Barrasso. Mr. Quinn, anything you'd like to add on 
that?
    Mr. Quinn. I think if the Senator would be pleased at what, 
the balance has been found today, in terms of the results as I 
reported on, and the earlier panel reported on. I will comment 
that Senator Hansen was one of the--if I recall correctly--one 
of the signatories of the Conference Report on SMCRA, along 
with Senator Domenici. If you see him, tell him I think he can 
be proud of his accomplishment here in passing SMCRA.
    Senator Barrasso. One more question, Mr. Quinn, you know, 
this committee is looking at modernizing the Mining Law of 
1872. Could you discuss if you have any ideas, perhaps, you 
know, what we're learned from SMCRA may help if we move forward 
in this, in modernizing the mining law.
    Mr. Quinn. I think there's a couple of observations, 
Senator. When it's said SMCRA is a model that should be used, I 
think there's been a lot of success for the coal industry, but 
there's some big distinctions between the coal industry and the 
hard rock industry.
    There's been reports done, National Academy of Science did 
a report as a result of SMCRA. At that point in time, 79 
recommended against adopting a similar model for their non-fuel 
mineral sector. There's a number of reasons, the mineral 
reserves, the geology is considerably different. Unlike coal, 
which is uniform horizontally, ore bodies for locatable 
minerals are vertical and difficult to find and expensive to 
find.
    The markets are different. There's a worldwide market for 
commodities for most locatable minerals, there's a domestic 
market for coal, that allow the coal industry to pass on more 
directly, increased costs associated with these mandates and 
this law.
    Finally, I think there's a different context and different 
history when SMCRA was passed. Many of the environmental laws 
were in their infancy. There wasn't even any overarching 
Federal requirements of any type for surface mining of coal, 
not even, for that matter, on Federal lands.
    In 2007 what we have is a fairly robust regulatory program 
for hard rock mining on Federal lands both on the Forest 
Service and the BLM directed specifically at hard rock mining, 
and we have a whole host of environmental laws passed since 
then, and have matured--Clean Air Act, Clean Water Act, RCRA, 
NEPA and many others. I think that at that point in time there 
should be real questions about why you need to duplicate and 
make things more complex.
    I would refer you to another National Academy of Science 
study that was conducted 20 years after the one I just referred 
to, that looked at this very issue, and concluded that the 
existing regulatory framework was very effective. If anything, 
it was a little bit over-complex, but it was very effective at 
this point in time.
    Senator Barrasso. Thank you, Mr. Quinn.
    Thank you, Mr. Chairman.
    The Chairman. Let me just ask one other line of questions, 
Mr. Banig, you talked about the AML amendments that were passed 
last year. I take it from your testimony that you believe the 
implementation of those provisions is going well, and that 
retirees health benefits are being enjoyed as intended, is that 
your impression?
    Mr. Banig. At this point, yes. I mean, the UMWA funds, just 
in October, submitted its request for the funds for Fiscal Year 
2008, but all indications are things are working the way that 
we intended them to work.
    The Chairman. Very good.
    That's the extent of my questions, do you have any other 
questions?
    Thank you all very much, I think it's been useful 
testimony, and we'll conclude the hearing with this. Thank you.
    [Whereupon, at 4:05 p.m., the hearing was adjourned.]

                               APPENDIXES

                              ----------                              


                               Appendix I

                   Responses to Additional Questions

                              ----------                              

                       West Virginia Highlands Conservancy,
                                                     Rock Cave, WV.
    Senator Bingaman: Thank you for the opportunity to expand on the 
very important issue of Mountaintop Removal Mining that we only briefly 
touched on during the Energy Committee Hearing November 13th.
    Below are my responses to the questions you've forwarded. I would 
ask that you pay particular attention to my answer to the final 
question about what Congress can do.
    I strongly recommend that you hold oversight hearings specifically 
focused on this most destructive form of strip mining. I was honored to 
be a citizen spokesperson at the November 13th hearing about the 
Surface Mine Act (SMCRA), but I assure you hearing from many of my 
friends living in the valleys directly below these mining operations 
would knock your socks off. I further recommend inviting stream 
ecologists, mining and terrestrial experts and other persons with 
valuable information and evidence to testify at such hearings.
    I also again encourage members and staff of your committee to visit 
and fly over areas most impacted by these mining operations to see 
first hand the profound devastation that eye-popping visual images can 
only barely hint at. I would be happy to assist in making those 
arrangements.
            Sincerely,
                                                Cindy Rank,
                                                             Chair.
              Responses to Questions From Senator Bingaman

                           MOUNTAINTOP MINING

    Question 1. What do you view as the key impacts of mountaintop 
mining? How does it affect your community?

    Answer. Key Impacts:

   A) Natural environment/ecosystems. . . 
    --Loss of nearly 2,000 miles of irreplaceable headwater streams, 
            streams that, though small, provide unique functions not 
            present in larger, downstream reaches, functions essential 
            to the quality and health of those larger streams. These 
            are also streams that many of us--myself included--depend 
            on for our water supply.
    --Loss of untold numbers of high mountain springs and groundwater 
            resources that give life to the hills, forests, critters 
            and humans that have relied on them for generations. No one 
            knows where, when--or even IF--pockets of groundwater will 
            be established within the reconstructed `rubble 
            mountains'--often 200-300 feet lower than before mining.
    --Loss of over 1,000 square miles of the most productive and 
            diverse temperate hardwood forests, a source of sustainable 
            economic future of the Appalachian region and home to 
            ecosystems replete with known and as-yet undiscovered 
            riches.
   B) Perhaps most heartbreaking and unforgivable is the damage 
        to the human element of the environment.
    --Loss of homes, wells, clean sources of drinking water, 
            communities, mountain culture and way of life that has 
            sustained and nourished generations of Appalachian 
            residents.
    --Loss of personal dignity and respect as neighbor must confront 
            neighbor and often do battle in court to preserve home, 
            family cemeteries and generations-old ties to the hills and 
            hollows that surround and protect them.
    --Loss of valuable resources from some of the poorest counties in 
            the nation as mining the valuable coal reserves continues 
            to yield great profit for a few while leaving the region 
            even poorer than before.

My Community
    My own personal homestead is not currently impacted by mountaintop 
removal mining. By the grace of god and requirements of the Clean Air 
Act my community's bitter fight in the early 1980's to protect our 
homes and water supplies from being destroyed by acid mine drainage 
from mining proposed for our area has been successful in the near term.
    However, our good fortune became the misfortune of friends and 
neighbors further south as mining moved from our high sulfur coal 
reserves to the lower sulfur reserves in southern West Virginia. 
Concurrent with that move, weak enforcement of the law, state sponsored 
tax breaks and other economic incentives benefited the coal industry in 
its development of the destructive mining method known as mountaintop 
removal. Technology once reserved for the wide-open spaces of the 
western portions of the nation become economically viable in the steep 
terrain of Appalachia. Employing the machinery and engineering 
techniques of the huge area mines of the west it is now possible for 
coal companies to level century old mountains and dump waste rock into 
nearby valleys burying or otherwise impacting thousands of miles of 
headwater streams. People in small communities and scattered homesteads 
are forced to leave their generations old homeplaces. Those who can't 
or won't leave are faced with a barrage of constant problems including 
damage to homes and wells from blasting, constant dust, diminished 
property values, fewer neighbors, schools and churches--a life without 
life.
    As much as I believe in the governance of law and learned early on 
that those laws were meant to protect the dignity and safety of all, I 
am deeply troubled to see the frustration and desperation of residents 
living in the path of this type of mining. Increased suffering caused 
by lax enforcement of SMCRA, the Clean Water Act and other 
environmental laws is allowing for an expansion of mountaintop removal 
operations that is now leading many to resort to less reasoned and less 
reasonable means to protect themselves and their communities. The 
anger, mistrust and widespread unrest of the bad old days before SMCRA 
is returning.
    Question 2. Is it your position that mountaintop mining and valley 
fills violate the provisions of SMCRA? If so, which?
    Answer. Although allowances for mountaintop removal strip mining 
were included in SMCRA after a series of difficult compromises, as 
practiced today mountaintop removal looks very little like anything 
intended by Congress in 1977. Over the past 30 years, and the last 15 
years in particular, the coal industry has been allowed to stretch, 
distort and evade legal requirements that define acceptable limits of 
environmental impact from this type of mining. The results have been 
catastrophic.
    Historically the limits set forth in law and regulation were to 
determine where and how coal could be mined while at the same time 
affording important protection to the environment and communities near 
the mines. Today, that precept has been turned upside down. The 
technology available to industry and the political pressure industry 
brings to bear on regulations and the agencies responsible for 
overseeing those regulations are now determining the limits (or lack 
thereof) of mining with little regard to environment--man or beast 
alike. OSM has become a willing participant in upsetting that important 
balance.
    The specific portions of SMCRA that are being violated are many, 
and would best be addressed in additional oversight hearings to 
specifically consider the practice of mountaintop removal. I mention 
but a few here.
    SMCRA requires Cumulative Hydrologic Impact Assessments, or 
adequate analysis of the impacts of mining on the hydrology of an area, 
and that the integrity of the ground and surface waters be protected. 
OSM is not assuring that either requirement is being met for the region 
of southern West Virginia, eastern Kentucky, western Virginia and areas 
of eastern Tennessee where mountaintop removal and valley fill strip-
mining is occurring.
    One of the fundamental tenets of SMCRA requires that all minesites 
be restored to conditions capable of supporting similar or better uses 
than the area could support before mining. The postmining condition of 
minesites should benefit the nearby communities, and provide for their 
future wellbeing once mining was completed and the coal riches gone 
forever. With the renewable source of timber gone, herbs and other 
medicinal plants scraped aside and buried deep in rubble it's difficult 
to imagine what the future holds. What we are left with are thousands 
of acres that some call ``moonscapes.'' At best these sites are 
``fields of dreams'', left for someone, somewhere, sometime in the 
future to figure out how to provide the roads, water and other 
infrastructure necessary for any practical use of the previously mined 
areas. Only a very small percent (perhaps as much as 3--5% but only 
after litigation and publicity has forced even that much compliance 
with the law) of the hundreds of square miles of mountaintop mined 
areas now have anything that resembles the postmining land uses 
required by law.
    SMCRA requires that topsoil be saved and replaced in reclaiming the 
site, yet topsoil and the fundamental microbial life it supports is 
often the first to be dumped over the side of the mountain into the 
stream valleys below. ``Topsoil substitutes'' are insufficient to 
provide for the restoration of forests or for other productive uses of 
the `reclaimed' land.
    SMCRA was written to protect the people living around minesites. In 
far too many instances, that is just not happening today. Residents of 
the area are not being protected, but rather treated as disposable 
commodities, past over as sacrificial lambs offered up under the guise 
of the greater good and glory of the state and nation in our quest for 
greater and greater amounts of energy. Profits from tearing the black 
gold out of the hills and hearts of Appalachia go elsewhere, into the 
pockets of industry moguls.
    And of course, OSM now proposes to change the Stream Buffer Zone 
rule that has been in effect since 1983. This is the focus of your next 
question, which I answer in some detail.

                     STREAM BUFFER ZONE RULEMAKING

    Question 3. I take it that you do not support the modification to 
the stream buffer zone rule as proposed by OSM. Do you think the 
proposed regulation violates SMCRA?
    Answer. I believe that the proposed regulation violates both SMCRA, 
AND the Clean Water Act that SMCRA was meant to support.
    At the November 13th oversight hearing before the Energy Committee, 
Joan Mulhern, Senior Legislative Counsel for Earthjustice, submitted 
wonderfully clear written testimony that focuses for the most part on 
this very question. I include them here by reference.
    Additionally, the West Virginia Highlands Conservancy joined 
several other state, regional and national groups in submitting 
comments to the Office of Surface Mining on the proposed rule. I submit 
the attached set of comments for the record.
    For purposes of my answer here, however, I offer the following 
brief, more general. Overview of our position as expressed in those 
comments.
    First and foremost, we view this proposal to change the Stream 
Buffer Zone Rule as another in a series of actions by the current 
administration in Washington to gut long-standing safeguards against 
the wholesale burial and pollution of streams in Appalachia by the coal 
mining industry.

   In May 2002, the U.S. Army Corps of Engineers (the Corps) 
        repealed a 25-year-old prohibition on dumping waste material in 
        streams. 67 Fed. Reg. 31129.
   In December 2003, the Office of Surface Mining (OSM) 
        proposed to weaken its oversight of state mining programs, by 
        making federal takeovers for state violations of federal law 
        discretionary rather than automatic. 68 Fed. Reg. 67776.
   In October 2005, the Administration released its final 
        Programmatic Environmental Impact Statement on Mountaintop 
        Mining/Valley Fills in Appalachia (PEIS), which proposed no 
        meaningful mining reforms or limitations on valley fills. 70 
        Fed. Reg. 62102.
   Now, OSM proposes to gut the stream buffer zone (SBZ) rule, 
        the most important safeguard under the Surface Mining Control 
        and Reclamation Act (SMCRA) for protecting streams.

    Taken together, these actions can only accelerate the pace of 
mountaintop removal mining and valley filling, which has already 
destroyed nearly 2000 miles of Appalachia's streams and well over 600 
square miles of its forests.
    While it is true that the Surface Mine Act envisions mountaintop 
removal mining, the size and extent of that mining was limited by the 
stream buffer zone rule which--if enforced properly--would allow only 
the uppermost reaches of any stream to be filled with waste rock from 
mining operations.
    The proposed rule would eliminate the standing prohibition against 
mining within 100 feet of streams if that mining will have an adverse 
effect on water quantity, water quality, and other environmental 
resources of the stream. In its place, the proposed rule would merely 
ask coal operators to ``minimize'' harm to the extent possible.
    This is an open invitation to industry to ignore a rule that, as a 
practical matter, has been routinely abused and violated, as federal 
and state regulators looked the other way.
    Clearly, burying one or two miles of stream under millions of tons 
of rock violates the intent and letter of this rule. To paraphrase the 
late Judge Haden in his 1999 ruling interpreting the existing SBZ rule 
in our Bragg v. Robertson litigation, there is no greater harm to these 
streams than obliteration.  . . .  Once a stream is filled with tons of 
waste rock, there is no more stream, no more water quality.
    In a Fact Sheet offered as background for this rule change, OSM 
would have us believe that burying some upper reaches of streams that 
fall within the permitted mine area is OK as long as the downstream 
reaches beyond the permit boundaries are not harmed. Addressing this 
erroneous perception, Judge Haden wrote that ``[n]othing in the 
statute, the federal or state buffer zone regulations, or the agency 
language promulgating the federal regulations suggests that portions 
existing streams may be destroyed so long as (some other portion of) 
the stream is saved.'' Bragg v. Robertson.
    The attached comments state and support our belief that:

   OSM's proposal is not a `clarification', but rather guts the 
        existing SBZ rule and reverses OSM's prior interpretation of 
        the existing rule.
   OSM's reasons for gutting the SBZ rule are irrational and 
        inconsistent with congressional intent to protect the 
        environment, including streams.
   OSM's draft Environmental Impact Statement (DEIS) written in 
        support of this rule change is inadequate because it does not 
        consider all reasonable alternatives including any that would 
        restrict the size, number or impact of fills.
   EPA cannot legally concur with the proposed rule because it 
        will cause significant degradation of streams, in violation of 
        the Clean Water Act.

    A 1977 House Report insisted that OSM must obtain concurrence from 
EPA any proposed rule in order to guarantee consistency with 
environmental requirements of the Clean Air Act and Clean Water Act. 
Indeed the proposed rule not only violates the original intent of 
SMCRA, but also violates the Clean Water Act because the rule will 
allow significant degradation of streams to continue. The DEIS written 
to support the proposed rule, as well as other available scientific 
evidence, demonstrate that surface coal mining activities are causing 
significant degradation of streams in Appalachia and that degradation 
is likely to continue under the proposed rule change.
   Stream degradation is significant.
   Water quality degradation is significant.
   Water quantity and community impacts are significant.
   Degradation of aquatic diversity is significant.

    --Against this background of scientific evidence of significant 
            degradation to streams the DEIS' analysis of cumulative 
            effects is pathetically inadequate. I.e. A mere 1/2 page 
            rationale is offered and two 20 year old EIS from '79 and 
            '83 are relied upon as further proof of limited impact when 
            in fact the 2005 Mountaintop Mining/Valley Fill EIS 
            concluded that fills are 72% larger in the 1990's than they 
            were in the 1980's and the length of streams buried have 
            increased 224%!!!
    --OSM's DEIS evades its obligation to analyze significant 
            degradation.
    --OSM's deletion of the requirement that activities that disturb 
            the SBZ must comply with water quality standards is an 
            illegal attempt to exempt activities from water quality 
            standards--an attempt to override--not work in concert 
            with--the requirements of the Clean Water Act. The Existing 
            SBZ Rule is Consistent with the CWA.

                            SMCRA GENERALLY

    Question 4. What do you view as the key accomplishments under 
SMCRA? What do you view as the goals yet to be accomplished?

    Answer. Key Accomplishments:

   Halting the most blatant abuses of the rip-and-run/shoot-
        and-shove era prior to the 1970's by requiring performance 
        standards intended to limit the impact of mining, to protect 
        the people and environment while allowing for the development 
        of coal resources.
   Providing for meaningful citizen input in the permitting 
        process and citizen suits to appeal programmatic deficiencies.
   Creation of the Abandoned Mine Land (AML) Fund which, though 
        not perfect, has helped reclaim land devastated by mining that 
        took place prior to 1977.

    Yet to be Accomplished:

   Enforcement of SMCRA.
   Strong and forceful oversight and commitment by OSM to truly 
        balance the interest of the nations need for coal with 
        protecting the citizens and environment where coal is mined 
        falls far short of the promise of the 1977 Act and the original 
        intent of Congress.

    Yielding to the incessant pressure from industry to bend 
regulations and weaken enforcement, OSM has become a paper tiger and 
oversight as envisioned in SMCRA has faded to a mere shadow of its 
former self.
    I've always believed that laws to protect the environment us would 
also protect us, the human part of that environment. I also believe 
that was the intent of Congress as it passed the Surface Mine Act in 
1977. And yet, those good intentions have been lost in the mire of 
obfuscated regulations and emasculated regulatory agencies orchestrated 
and created by industry.
          how can we in congress help to achieve these goals?
    Congress must enter the debate and discussion surrounding the 
mining of coal, not just the burning of coal.
    Oversight hearings by the Senate Committee on Energy and Natural 
Resources are needed to revisit the original and true meaning of SMCRA 
and to review the role of OSM at this critical time in our nations 
history when talk of ``clean coal'' echoes throughout the halls of 
Congress.
    There is no such thing as ``clean coal''--with or without carbon 
sequestration--as long as mining coal means massive destruction of the 
environment and the obliteration of generations old communities.
    The fundamental reason for enacting SMCRA in the first place was to 
bring equity preserve dignity, culture and way of life in the 
coalfields across the country.
    Our country is not about the biggest ruling over the smallest, or 
the most powerful smiting those who have less power, but about justice 
and equality.  . . .  Guaranteeing the protections afforded by Congress 
in passing SMCRA in 1977 means preserving the rights of the 
communities, protecting the land and water those communities depend on 
and providing for future beneficial use of mined land while allowing 
mining within the reasonable limits imposed by SMCRA.
    By the 1970's mining practices had overshadowed care and concern 
for the environment and the communities. Congress in its wisdom 
recognized that limits had to be set and strong oversight was needed. 
Congress stepped up to the plate by enacting SMCRA, an imperfect but 
useful law.
    Now 30 years later, we call upon Congress to step in once again.
    As citizens, we seek relief in state administrative and procedural 
public hearings only to be rebuffed as environmental extremists. . . 
    As citizens, we seek and find relief in federal court only to be 
met with agency reversals of the very sections of federal law we seek 
to uphold. e.g: The Army Corps of Engineers and EPA reversal of the 25 
year old ``fill rule'', now the OSM reversal of the Buffer Zone Rule.
    Water is the lifeblood of our mountains and the communities that 
exist in the hollows of Appalachia. As our streams and springs are 
forests are damaged and destroyed, our ability to live is compromised.
    We constantly confront the offensive attitude unspoken for decades, 
but clearly expressed recently by a representative of a mining 
equipment company in West Virginia who said in an interview on WV 
Public Radio:

          Manhattan is an area of 22 square miles. It has 68 thousand 
        people per square mile. Boone County [West Virginia] is 500 
        square miles. It has 50 people per square mile. We, we have an 
        obligation to the greater good for the people. We export 70 
        percent of our coal. We have to, we have to provide electricity 
        and power for this country for our urban brothers and sisters. 
        We, we have a great responsibility here in West Virginia, and 
        we can't let that go.

    Could just as easily said the same about the entire state of WV. WV 
is 24,000 square miles with 1.8 million people. That comes to 75 people 
per square mile.
    We call upon Congress to help us end this demeaning representation 
of our mountain communities as disposable people and once again hold 
the federal Office of Surface Mining accountable for full and fair 
enforcement of SMCRA and protecting.
    In 1977 Congress saw fit to write meaningful protections into 
SMCRA. The Congress of 2007 should assure that those protections are 
maintained. When OSM fails, as it is now, Congress must make bold steps 
to hold them accountable by reaffirming the fundamental meaning SMCRA.
    I end my response as I began.
    We ask that you hold oversight hearings specifically focused on 
this most destructive form of strip mining known as mountaintop 
removal. I was honored to be a citizen spokesperson at the November 
13th hearing about the Surface Mine Act (SMCRA), but I assure you 
hearing from many of my friends living in the valleys directly below 
these mining operations would knock your socks off. I further recommend 
inviting stream ecologists, mining and terrestrial experts and other 
persons with valuable information and evidence to testify at such 
hearings.
    I also again encourage members and staff of your committee to visit 
and fly over areas most impacted by these mining operations to see 
first hand the profound devastation that eye-popping visual images can 
only barely hint at. I would be happy to assist in making those 
arrangements.
    Thank you for the opportunity to further expand our conversation 
about mountaintop removal mining and the need for congressional 
oversight focused on this excessively destructive method of mining.


                               Attachment
                                                 November 20, 2007.
David Hartos,
Office of Surface Mining Reclamation and Enforcement, Appalachian 
        Region, 3 Parkway Center, Pittsburgh, PA.
Office of Surface Mining Reclamation and Enforcement,
Administrative Record Room 252 SIB, 1951 Constitution Avenue, NW., 
        Washington, DC.
Re: Comments on Proposed Rule and Draft EIS on Excess Spoil 
Minimization/Stream Buffer Zones, 72 Fed. Reg. 48678, 48890 (August 24, 
2007), RIN 1029-AC04, Docket Nos. OSM-2007-0007 and OSM-2007-0008; OSM-
EIS-34.

    Dear Mr. Hartos: On behalf of the West Virginia Highlands 
Conservancy, Sierra Club, Ohio Valley Environmental Coalition, Coal 
River Mountain Watch and Waterkeeper Alliance\1\, we submit these 
comments in opposition to the proposed rule.\2\ Earthjustice also joins 
in these comments. The proposed rule is another in a series of actions 
by the Bush Administration to gut long-standing safeguards against the 
wholesale burial and pollution of streams in Appalachia by the coal 
mining industry. In May 2002, the U.S. Army Corps of Engineers (the 
Corps) repealed a 25-year-old prohibition on dumping waste material in 
streams. 67 Fed. Reg. 31129. In October 2005, the Office of Surface 
Mining (OSM) weakened its oversight of state mining programs, by making 
federal takeovers for state violations of federal law discretionary 
rather than automatic. 70 Fed. Reg. 61194. Also in October 2005, the 
Administration released its final Programmatic Environmental Impact 
Statement on Mountaintop Mining/Valley Fills in Appalachia (PEIS), 
which proposed no meaningful mining reforms or limitations on valley 
fills. 70 Fed. Reg. 62102. Now, OSM proposes to gut the stream buffer 
zone (SBZ) rule, the most important safeguard under the Surface Mining 
Control and Reclamation Act (SMCRA) for protecting streams. Taken 
together, these actions can only accelerate the pace of mountaintop 
removal mining and valley filling, which has already destroyed 1,200 
miles of Appalachia's streams and 387,000 acres of its forests.
---------------------------------------------------------------------------
    \1\ The members of the Waterkeeper Alliance are the Altamaha 
Riverkeeper, Animas Riverkeeper, Assateague Coastkeeper, Black Warrior 
Riverkeeper, Black Water/Nottoway Riverkeeper, Cape Fear Coastkeeper, 
Casco Baykeeper, Catawba Riverkeeper, Choctawhatchee Riverkeeper, 
Colorado Riverkeeper, Cook Inletkeeper, Delaware Riverkeeper, Detroit 
Riverkeeper, Emerald Coastkeeper, French Broad Riverkeeper, Grand 
Traverse Baykeeper, Great Salt Lakekeeper, Hackensack Riverkeeper, 
Housatonic Riverkeeper, Hudson Riverkeeper, Hurricane Creekkeeper, 
Inland Empire Waterkeeper, Kansas Riverkeeper, Klamath Riverkeeper, 
Lake George Waterkeeper, Lower Mississippi Riverkeeper, Lower Neuse 
Riverkeeper, Lower Susquehanna Riverkeeper, Milwaukee Riverkeeper, 
Mobile Baykeeper, Nantucket Soundkeeper, New Riverkeeper, NY/NJ 
Baykeeper, North Sound Baykeeper, Ogeechee-Canoochee Riverkeeper, 
Orange County Coastkeeper, Pamlico-Tar Riverkeeper, Peconic Baykeeper, 
Prince William Soundkeeper, Russian Riverkeeper, San Diego Coastkeeper, 
Santa Barbara Channelkeeper, Santa Monica Baykeeper, Saranac 
Waterkeeper, Savannah Riverkeeper, Severn Riverkeeper, Shenandoah 
Riverkeeper, South Riverkeeper, St. Clair Channelkeeper, St. Johns 
Riverkeeper, Tualatin Riverkeepers, Upper Chattahoochee Riverkeeper, 
Upper Neuse Riverkeeper, Upper St. Lawrence Riverkeeper, Waccamaw 
Riverkeeper, Western Lake Erie Waterkeeper, West/Rhode Riverkeeper, 
West Virginia Headwaters Waterkeeper, Willamette Riverkeeper and 
Youghiogheny Riverkeeper.
    \2\ We also incorporate by reference our April 23, 2004 comments on 
the prior proposed rule and our January 5, 2004 comments on the MTM/VF 
DEIS.
---------------------------------------------------------------------------
    The proposed rule would eliminate the standing prohibition against 
mining within 100 feet of streams if it will have an adverse effect on 
water quantity, water quality, and other environmental resources of the 
stream. In its place, the proposed rule would merely ask coal operators 
to ``minimize'' harm to the extent possible. This is an open invitation 
to industry to ignore a rule that, as a practical matter, has been 
routinely abused and violated as federal and state regulators looked 
the other way.
    For the reasons discussed below we believe that the proposed 
changes are unwise, inconsistent with the objectives of SMCRA and the 
requirements of the Clean Water Act, and supported by a draft 
environmental impact statement (``DEIS'') that is facially inadequate. 
We request that OSM withdraw its proposal and instead retain and 
enforce the existing requirements regarding the protection of streams. 
Our detailed analysis and comments on the proposed changes follow.

I. OSM'S PROPOSED REVISION OF THE SBZ RULE IS ARBITRARY AND CAPRICIOUS 
                           AND VIOLATES SMCRA

A. OSM's Proposal Contradicts Its Prior Interpretation of the Existing 
        Rule
    In the preamble, OSM reviews the history of the 1983 buffer zone 
rule and claims that it has consistently ``applied'' that rule to allow 
valley fills and other stream incursions. 72 Fed. Reg. at 48892, 48895. 
In the DEIS, OSM goes even further and states that ``[n]either OSM nor 
the State SMCRA regulatory authorities have interpreted or implemented 
the stream buffer zone rule as an absolute prohibition of [sic] 
placement of excess spoil material fills or any other surface mining 
activity within the stream buffer zone.'' DEIS, pp. 72-73. These 
statements are clearly intended to create the impression that the 
current proposal is consistent with all past practices and 
interpretations, and that there is no shift in agency thinking.
    In fact, however, the proposed rule is a reversal of OSM's prior 
interpretation of SBZ requirements. When it promulgated the existing 
SBZ rule in 1983, OSM chose to protect intermittent and perennial 
streams because they were recognized to be especially significant in 
establishing the hydrologic balance. OSM stated that the buffer zone 
rule was designed ``to protect streams from sedimentation and gross 
disturbances of stream channels caused by surface coal mining and 
reclamation operations.'' 48 Fed. Reg 30312 (June 30, 1983). OSM 
further stated that ``intermittent and perennial streams generally have 
environmental-resource values worthy of protection under Section 
515(b)(24) of the Act.'' Id. In the MTM/VF PEIS (p. II.C-34), OSM and 
the other participating federal agencies admit that one of the 
principal purposes of the stream buffer zone regulation is to 
``minimize gross disturbances to the prevailing hydrologic balance, 
fish and other biologically important plants and animals that may live 
in the streams or riparian zones adjacent to the streams.''
    In his 1999 ruling interpreting the existing SBZ rule, Judge Haden, 
Chief Judge of the District Court for the Southern District of West 
Virginia, ruled that ``[n]othing in the statute, the federal or state 
buffer zone regulations, or the agency language promulgating the 
federal regulations suggests that portions of existing streams may be 
destroyed so long as (some other portion of) the stream is saved.'' 
Bragg v. Robertson, 72 F. Supp.2d 642, 651 (S.D.W.Va. 1999). Further, 
Judge Haden stated:

          When valley fills are permitted in intermittent and perennial 
        streams, they destroy those stream segments. The normal flow 
        and gradient of the stream is now buried under millions of 
        cubic yards of excess spoil waste material, an extremely 
        adverse effect. If there are fish, they cannot migrate. If 
        there is any life form that cannot acclimate to life deep in a 
        rubble pile, it is eliminated. No effect on related 
        environmental values is more adverse than obliteration. Under a 
        valley fill, the water quantity of the stream becomes zero. 
        Because there is no stream, there is no water quality.

Id. at 661-662. The Court pointed out the obvious: ``Valley fills are 
waste disposal projects so enormous that, rather than the stream 
assimilating the waste, the waste assimilates the stream.

    The Court holds that placement of valley fills in intermittent and 
perennial streams violates federal and state water quality standards by 
eliminating the buried stream segments for the primary purpose of waste 
assimilation.'' Id. at 662. Moreover with valley fills, ``[t]his 
concentration of industrial waste is mortal to animal or aquatic life 
in the stream segment buried. Existing stream uses are not protected, 
but destroyed. These effects are inconsistent with State and federal 
water quality standards.'' Id. at 663. It is important to note that, 
while Judge Haden's ruling was overturned on jurisdictional grounds, 
the substance of his ruling was not addressed by the Court of Appeals. 
See Bragg v. West Virginia Coal Ass'n, 248 F.3d 275 (4th Cir. 2001).
    In their brief on appeal in Bragg, OSM, EPA and the Corps expressly 
agreed with Judge Haden's interpretation of the SBZ rule:

    [Judge Haden] correctly found that SMCRA's stream buffer zone rule. 
. . prohibits the burial of substantial portions of intermittent and 
perennial streams beneath excess mining spoil. The elimination of 
substantial intermittent or perennial stream segment [sic] necessarily 
causes adverse environmental effects, as it eliminates all aquatic life 
that inhabits those stream segments. As the district court rightly 
concluded, the elimination of entire stream segments and all the life 
they contain plainly causes environmental harm. Accordingly, the 
district court correctly granted summary judgment on plaintiffs' buffer 
zone claims.

Brief for the Federal Appellants, 4th Cir., No. 99-2683, April 17, 2000 
(hereafter ``U.S. Br.''), p. 2, Attachment 1 (emphasis in original).\3\ 
Additionally, these agencies stated that the District Court correctly 
held:
---------------------------------------------------------------------------
    \3\ In the 2004 proposal, OSM suggested that the DOJ brief is ``not 
consistent with our historic interpretation'' and that OSM never agreed 
with it or approved it. 69 Fed. Reg. at 1039-40. That is a bold-faced 
lie. DOJ told the Fourth Circuit that ``Attorneys for EPA and OSM are 
identified on the cover of the federal appellants' brief as being `of 
counsel' to this appeal, and the position taken in the brief for the 
federal appellants represents the unified position of the federal 
agencies.'' Federal Appellants' Opposition to the Motion of the 
Intervenor-Defendants to Strike the Brief of the Federal Appellants and 
to Dismiss Appeal No. 99-2683, p. 2, Attachment 2.

          [T]hat valley fills in intermittent or perennial streams may 
        be authorized under the buffer zone rule only if the permitting 
        agency finds that they will not adversely affect the 
        environmental resources of the filled stream segments. WVDEP 
        has acknowledged that it has routinely approved valley fills in 
        intermittent and perennial streams without making the findings 
        called for by the buffer zone rule for the stream segment 
        filled. The district court correctly rejected the arguments 
        that WVDEP was not required to make the buffer zone findings, 
        holding that the findings required by the buffer zone rule must 
        be made for the filled stream segments and not at some point 
        downstream from the valley fills; and (2) findings made by the 
        Corps under the CWA section 404(b)(1) guidelines are not a 
        substitute for the buffer zone findings.
          The district court also correctly. . .[held]. . .that the 
        burial of substantial portions of intermittent or perennial 
        streams in valley fills causes adverse environmental impact in 
        the filled stream segments and therefore cannot be authorized 
        consistent with the buffer zone rule. The uncontested evidence 
        demonstrates that the burial of substantial portions of 
        intermittent or perennial causes adverse environmental effects 
        to the filled stream segments, as such fills eliminate all 
        aquatic life that inhabited those segments.

    Id. at 24-25. OSM, EPA and the Corps further stated that ``valley 
fills that disturb intermittent or perennial streams may be approved 
only if there is a finding that activity will not adversely affect the 
environmental resources of the filled stream segment.'' Id. at 41.

    In a May 22, 2000 letter (Attachment 3), Acting OSM Director 
Kathrine Henry adopted the same position that ``the stream buffer zone 
waiver findings must be made not only for segments downstream of the 
fill, but also for each segment of an intermittent or perennial stream 
in which excess spoil is placed.'' In its 2004 proposed rule, OSM 
admitted that this brief and this Acting Director's letter took the 
position that the rule applied to valley fills. 69 Fed. Reg. at 1040. 
However, in its 2007 proposed rule, OSM conveniently omits this 
material and instead cryptically cross-references it as an ``additional 
discussion of litigation and related matters.'' 72 Fed. Reg. at 48896.
    Now OSM has completely reversed this position and would totally 
exempt valley fills, waste impoundments and other stream incursions 
from the rule. Id. at 48907; DEIS, p. S-2. When an agency reverses its 
position, its burden of justification increases. In such cases, ``an 
agency changing its course by rescinding a rule is obligated to supply 
a reasoned analysis for the change beyond that which may be required 
when an agency does not act in the first instance.'' Motor Vehicle 
Mfrs. Assn. v. State Farm Mut., 463 U.S. 29, 42 (1983). OSM has failed 
to rationally justify its complete about-face from the position it took 
in the Bragg case. Indeed, OSM has failed to even consider the 
alternative of enforcing the rule as written and as OSM interpreted it 
in the Bragg case.
B. OSM's Proposal Violates Congressional Intent to Protect the 
        Environment, Including Streams
    The first stated purpose of SMCRA is ``to protect society and the 
environment from the adverse effects of surface coal mining 
operations.'' 30 U.S.C. Sec.  1202(a). As the House Report on the 1977 
bill explained:

    A basic tenet underlying this legislation is the principle that 
environmental protection and reclamation, at a minimum meeting the 
standards in this act, are a coequal objective with that of producing 
coal. The continued selection of mining techniques by engineers whose 
primary objectives are the most efficient removal of the overburden and 
transport of the coal is not sufficient to be fully responsive to the 
purposes and intent of the act.

H. Rep. No. 218, 95th Cong., 1st Sess., p. 96 (1977). Congress 
recognized the environmental hazards posed by the valley fills 
associated with mountaintop removal mining: ``Serious problems are 
presented . . . by operations using head-of-the-hollow or valley fill. 
For such operations, it is uncertain whether spoil can be placed in an 
environmentally sound manner.'' Id. at 157 (quoting Sec. of the 
Interior Cecil Andrus), reprinted in 1977 U.S.C.C.A.N. 593, 688. See 
also id. at 615 (``[S]ome mountaintop removal operations have caused 
serious environmental problems in the Appalachian area. The key cause 
of these problems has been the `valley' fill or `head-of-the-hollow' 
fill techniques utilized to dispose of excess spoil material.''). 
Congress concluded that valley fills ``should be limited to the minimum 
and that strong spoil placement standards are needed to insure that 
there will be no offsite damages.'' Id. at 688-689 (quoting Sec. of the 
Interior Andrus); see also Cong. Rec. 33,314 (Oct. 9, 1973) (statement 
of Sen. Jackson) (stating that the disposal of spoil from mountaintop 
removal mining may be authorized only if fills satisfy ``very carefully 
determined conditions precedent'').

    The text of SMCRA establishes the ``strong spoil disposal 
standards'' required for surface coal mining, including mountaintop 
removal mining. Several environmental performance standards govern the 
conditions under which surface mining, including associated spoil 
disposal, may be authorized. Pursuant to those standards, surface 
mining operations may be authorized only if the permitting authority 
finds (1) that the mining operations will ``minimize disturbances and 
adverse impacts . . . on fish, wildlife, and related environmental 
values''; (2) that ``no damage will be done to natural watercourses''; 
(3) that the excess spoil will be placed in an area that ``does not 
contain springs, natural water courses or wet weather seeps unless 
lateral drains are constructed from the wet areas to the main 
underdrains in such a manner that filtration of the water into the 
spoil will be prevented''; and (4) that the disposal ``is compatible 
with the natural drainage patterns and surroundings.'' 30 U.S.C. 
Sec. Sec.  1265(b)(10), (22), (24); Sec.  1265(c)(4)(D).
    SMCRA mandates that mining operations must ``minimize the 
disturbance to the prevailing hydrologic balance at the mine site and 
in associated offsite areas.'' 30 U.S.C. Sec.  1365(b)(10). By 
specifying that mining disturbances such as valley fills should 
minimize environmental harm ``at the mine site,'' Congress expressed 
its intent to protect streams where the disturbances occur, i.e., in 
the footprint of proposed valley fills. By specifying that mining 
disturbances should minimize environmental harm ``in associated offsite 
areas,'' Congress sought to protect affected downstream areas. 
Furthermore, applying the buffer zone rule to the filled stream segment 
advances the purpose of the rule, which was enacted to ``protect stream 
channels'' (44 Fed. Reg. 15176), and also advances the general purpose 
of the standards established under SMCRA, which were promulgated ``to 
ensure that all surface mining activities are conducted in a manner 
which preserves and enhances environmental and other values in 
accordance with the Act.'' 30 C.F.R. Sec.  816.2.
    OSM repeatedly cites only one of SMCRA's thirteen purposes as the 
defining standard for issuing regulations under that statute. DEIS, pp. 
20, 24-25; 72 Fed. Reg. at 48897, 48908, 48909-10, 48911. That one 
seeks to ``strike a balance between protection of the environment and . 
. . the Nation's need for coal as an essential source of energy.'' 30 
U.S.C. Sec.  1202(f). OSM ignores two other purposes that seek to 
``establish a nationwide program to protect society and the environment 
from the adverse effects of surface coal mining operations'' and 
``assure that surface coal mining operations are so conducted as to 
protect the environment.'' Id., Sec.  1202(a), (d). Thus, OSM skews its 
analysis of SMCRA in favor of resource development to the detriment of 
the environment.
    Furthermore, OSM uses other sections of SMCRA to set up and 
demolish a strawman argument. OSM argues that, because Sec.  
1265(b)(22)(D) mentions placing spoil where ``natural water courses'' 
are present, Congress did not intend to create an ``absolute 
prohibition'' on placing any mining spoil in streams. 72 Fed. Reg. at 
48893-94, 48908. That is true. However, it does not follow from this 
proposition that all Congress expected was for OSM to ``minimize'' the 
placement of mining spoil in streams. OSM uses the ``minimize'' concept 
in Sec.  1265(b)(24) as the regulatory standard for defining the 
maximum amount of environmental protection that it is required to 
provide. OSM assumes that placing any amount of mining spoil in streams 
is acceptable so long as the amount is ``minimized'' ``to the extent 
possible.'' OSM then concludes that this ``minimization'' standard 
strikes the only ``balance'' that Congress could have intended in 
SMCRA, and that no other alternative measures to protect the 
environment need be considered.. This ignores Congress' two other 
purposes to ``assure'' that the environment is protected from the 
``adverse effects of surface coal mining.'' Congress did not rule out 
other measures in addition to fill minimization if those measures are 
needed to ensure protection of the environment.
C. OSM's Proposal Is Based on a Flawed DEIS
            1. The DEIS Fails to Consider All Reasonable Alternatives
    In its DEIS, OSM considered only five alternatives in detail: (1) 
take no action and retain the existing rules, which OSM interprets to 
allow mining in the SBZ; (2) adopt the proposed excess spoil and SBZ 
rules, which allows mining in the SBZ; (3) adopt the 2004 SBZ rule, 
which also allows mining within the SBZ; (4) change only the excess 
spoil rule; and (5) change only the SBZ rule. DEIS, pp. 17-18. Thus, 
these alternatives all allow mining in the SBZ without any restrictions 
except the minimization of excess spoil. OSM did not consider any 
alternatives that restrict mining in the SBZ. OSM did not consider the 
alternative of enforcing the SBZ as written and as Judge Haden and OSM 
interpreted it in 1999 and 2000. Furthermore, OSM did not consider any 
alternatives that would limit the downstream effects of valley fills 
(including changes in stream chemistry, temperature, and flow), even 
though those effects are known to be significant and adverse.
    OSM summarily rejected ten alternatives without any detailed 
analysis. These alternatives would restrict valley fills by type of 
stream (ephemeral, intermediate or perennial), fill size (area or 
volume), watershed size (from 35 to 640 acres), stream length (200 to 
2000 linear feet), or the percentage of streams filled in a watershed. 
DEIS, pp. 19-26. OSM uses two types of arguments to dismiss these 
alternatives: (1) lack of statutory authority; and (2) insufficient 
scientific data. Id. Neither argument has merit.
    First, OSM erroneously assumed that considering any other 
alternatives or adding any other measures to protect the environment 
would result in an ``absolute prohibition'' on either stream-filling or 
coal mining, and would therefore be contrary to Congressional intent. 
DEIS, pp. 20-21. However, it is obvious that limitations on valley 
fills are not necessarily an all-or-nothing proposition. Size, area, 
length or volume restrictions can be set at intermediate amounts 
between nothing and unlimited development. It is also clear that 
restricting fill size does not necessarily prohibit all mining. The 
size can be restricted based on the amount of watershed, the amount of 
stream length, or the type of stream that is buried. Cumulative limits 
based on the amount filled in a larger watershed or region are also 
possible. An analysis of past NWP 21 authorizations in West Virginia 
shows that many mines were able to operate without placing fill in 
intermittent or perennial streams, or both. See Stream Loss Table, 
below. Thus, stricter environmental measures could still allow 
substantial amounts of coal mining to continue.
    Second, OSM erroneously assumes that, without more scientific 
information, no limits are possible or appropriate. This is the same 
argument that was made in the October 2005 PEIS, and OSM references 
that document to support its decision. DEIS, pp. 24-26. The primary 
argument advanced in the PEIS for rejecting fill alternatives was that 
there was insufficient information at that time to draw a ``bright 
line'' that works in every situation, and variations between streams 
and watersheds made it difficult to apply any ``bright line'' to 
differing individual situations. The PEIS stated that ``[s]cientific 
data collected for this EIS do not clearly identify a basis (i.e., a 
particular stream segment, fill or watershed size applicable in every 
situation) for establishing programmatic or absolute restrictions that 
could prevent `significant degradation.''' PEIS, p. II.D-8. The PEIS 
therefore posited that since one general rule does not apply in every 
situation, there is no basis for applying any general rule at all, and 
the only alternative is to apply a ``case-by-case'' analysis to every 
individual situation. PEIS, pp. II.D-1 to II.D-9. The perfect is the 
enemy of the good, as the PEIS sets up each individual restriction like 
a straw man and then knocks it down by saying that one problem or 
another makes it inapplicable in certain situations. Id.
    This rationale is not a sufficient basis for eliminating 
alternatives from analysis under NEPA. ``[W]hile inconclusive evidence 
may serve as justification for not choosing an alternative, here it 
cannot serve as a justification for entirely failing to `rigorously 
explore and objectively evaluate all reasonable alternatives.''' The 
Fund for Animals v. Norton, 294 F. Supp.2d 92, 110 (D.C. Cir. 2003). In 
addition, the historical record demonstrates that OSM's claims of 
insufficient statutory authority and insufficient information are 
merely a pretext. In fact, OSM refuses to consider more 
environmentally-protective alternatives because it made a political 
calculation to protect the coal industry at the expense of the 
environment.
    The 2001 preliminary draft of the PEIS on mountaintop mining/valley 
fills, which was drafted by the Clinton Administration, considered 
three action alternatives that restricted valley fills to ephemeral or 
intermittent streams and retained the SBZ rule. Attachment 4, pp. ES-6, 
IV-1. Different versions of these same alternatives were present in 
later drafts until June 2002. For example, a March 2002 draft stated:

          The most significant distinction between the four 
        alternatives is how each one addresses Issue 1, ``Direct loss 
        of streams and stream impairment.'' The question of what 
        portions of a stream can be legally filled under SMCRA 
        authority was central to the Bragg v. Robertson lawsuit. The 
        District Court decision in that case established that the SMCRA 
        stream buffer zone regulations at 30 CFR 816.57 and 817.57 do 
        not allow mining activities (including valley fills) within 100 
        feet of intermittent or perennial streams. The Fourth Circuit 
        Court of Appeals later vacated the District Court's decision, 
        but on grounds unrelated to the applicability of the stream 
        buffer zone rule. Because of the atmosphere of regulatory 
        uncertainty surrounding this issue, and the importance of 
        allowable valley fill size to mine viability and environmental 
        impacts, the agencies developed the EIS alternatives around it. 
        Each alternative proposes different changes to regulatory 
        programs that determine the allowable extent of stream loss 
        through valley filling. The amount of valley filling that is 
        allowable will affect the amount of mining that can occur, 
        which in turn will determine the environmental and economic 
        consequences of selecting a given alternative.

    Attachment 5, Att., p. 5 (emphasis added). The Proposed Agenda for 
a June 18, 2002 Steering Committee meeting describes the four 
alternatives as follows:

   Table IV--1. Mountaintop Mining/Valley Fill EIS Alternative Summary
------------------------------------------------------------------------

------------------------------------------------------------------------
Alternative A                               No changes to the SMCRA and
                                             CWA programs in effect in
                                             1998.
------------------------------------------------------------------------
Alternative B                               Depending on the outcome of
                                             a detailed, permit-by-
                                             permit baseline data
                                             collection; thorough, site-
                                             specific, significant
                                             adverse impact analyses;
                                             and, consideration of
                                             alternatives for avoidance
                                             and minimization, valley
                                             fills could be allowed in
                                             ephemeral, intermittent,
                                             and perennial stream
                                             segments. Mitigation of
                                             unavoidable impacts would
                                             require in-kind replacement
                                             of aquatic functions and
                                             values within the
                                             watershed.
------------------------------------------------------------------------
Alternative C                               Valley fills could be
                                             located in ephemeral and
                                             intermittent streams.
                                             Permit-by-permit baseline
                                             data collection and site-
                                             specific alternatives
                                             analyses would be required
                                             (although not necessarily
                                             as rigorous as in
                                             Alternative B) to
                                             demonstrate that avoidance
                                             and minimization were
                                             considered. Mitigation
                                             options for unavoidable
                                             impacts would be somewhat
                                             more varied and thus more
                                             flexible than under
                                             Alternative B.
------------------------------------------------------------------------
Alternative D                               Valley fills could be
                                             located only in the
                                             ephemeral portion of
                                             streams. Permit-by-permit
                                             baseline data collection
                                             would be more limited than
                                             under Alternative B, and
                                             alternative analyses would
                                             demonstrate that
                                             minimization of downstream
                                             or indirect impacts were
                                             considered. Mitigation
                                             could include compensation
                                             in lieu of in-kind
                                             replacement of lost aquatic
                                             function and value.
------------------------------------------------------------------------

    Attachment 6, Proposed Agenda, p. 7. Thus, these alternatives would 
have restricted valley fills depending on the type of stream.
    When the Bush Administration took office, Deputy Secretary of the 
Interior J. Steven Griles directed OSM to ``refocus'' the PEIS to 
``focus on centralizing and streamlining coal mine permitting'' and 
impact ``minimization.'' 10/5/01 Griles Letter, p. 1, Attachment 7. As 
a result, the fill-restricting alternatives were abandoned and replaced 
by process alternatives that merely reshuffled the procedural 
responsibilities between the various agencies. All of them had the same 
or very similar environmental impacts and merely sought to streamline 
permit processing. See 1/5/04 WVHC Comments on the PEIS, pp. 3-6. The 
final PEIS states that ``[a]ll alternatives ... are based on process 
differences and not directly on measures that restrict the area of 
mining.'' PEIS, p. IV.G-3. The PEIS further admits that ``[t]he 
environmental benefits of the three action alternatives are very 
similar.'' Id., p. II.B-13.
    The paper trail for the PEIS shows how this happened. On June 18, 
2002, members of the Steering Committee on the PEIS met to consider the 
scope of alternatives. Attachment 6, Proposed Agenda. EPA and the U.S. 
Fish and Wildlife Service (FWS) members of the Steering Committee took 
the position that the PEIS had to consider alternatives to reduce 
environmental impacts. Id. at 8. They believed that ``the new framework 
does not meet the NEPA requirements by providing a contrasting choices 
[sic] among several clear and distinct alternatives.'' Id. at 2. As a 
result of this meeting, the Steering Committee changed the alternative 
framework, but still recommended inclusion of an alternative that 
``would represent the suite of actions that would result in the most 
environmentally-protective alternative (i.e., restricting fills to the 
ephemeral zone...).'' Id. at 11. The Steering Committee approved that 
recommendation. 6/19/02 Hoffman e-mail, Attachment 7. These changes 
were incorporated into a new alternatives matrix table. 6/26/02 
Robinson e-mail, Attachment 9.
    However, shortly thereafter, the Steering Committee's decision was 
overruled by the Executive Committee. Unnamed higher-level agency 
``executives instructed the SC to attempt to construct the alternatives 
for the EIS in a framework based largely on coordinated decision making 
for SMCRA and CWA--with no alternative restricting fills.'' Attachment 
10, 9/23/02 Agenda, p. 1. Minutes of a July 14, 2002 Executive 
Committee meeting show that a new three-alternative approach was 
adopted. 8/15/02 email, Attachment 11, Attachment: Executive Committee 
Discussion. As a result, the prior alternatives restricting valley 
fills were stripped from the PEIS. Instead, the new alternative 
framework considered only process alternatives.
    OSM has now continued this wholesale evisceration of alternatives 
by refusing to consider similar fill-restricting alternatives in the 
SBZ DEIS. However, the fact that two federal agencies previously 
recommended inclusion of those restrictive alternatives demonstrates 
that they are serious proposals that deserve and require full analysis 
and consideration.
    It is also outrageous that OSM does not even consider the 
alternative of enforcing the SBZ rule as written and as it was 
interpreted by OSM itself in its April 2000 federal court brief and 
Acting Director letter. Instead, OSM reinterprets the existing rule in 
conformity with the new proposed rule, so that both of them allow 
valley fills in intermittent and perennial streams. This eliminates 
most of the difference between the two rules, and makes the ``no-
action'' alternative a pale shadow of the proposed rule. The ``no 
action'' alternative in the DEIS merely substitutes OSM's past practice 
for its legal mandate to protect streams and the environment generally. 
A valid ``no action'' alternative would interpret the SBZ as applying 
to the footprint of the valley fills, as OSM determined was legally 
required in 2000.
    OSM has failed to analyze a reasonable range of alternatives. All 
of the alternatives would allow mining activities and valley fills to 
be placed in any stream without any limitation on the amount of stream 
that could be buried and destroyed. OSM must consider some alternatives 
that restrict filling of streams. Absent such consideration, the EIS 
fails to frame the true range of choices available to the 
decisionmaker.
    Furthermore, OSM must consider some alternatives that address the 
cumulative impacts of stream filling. As OSM acknowledges, those 
cumulative impacts involve damaging or destroying over 1,700 miles of 
streams in Appalachia. DEIS, p. 117. The DEIS fails to address these 
cumulative impacts. Fill minimization, by itself, only results in a 
case-by-case analysis of filling for each separate project. It does not 
analyze or address cumulative impacts. OSM inexplicably assigns zero 
value to the loss of thousands of miles of headwater streams.
    OSM's failure to consider a reasonable range of alternatives has a 
predictable result: all of the alternatives would have substantially 
the same impacts. OSM states that it ``would not anticipate a major 
shift in on-the-ground consequences from any of the alternatives.'' 
DEIS, p. 121. The alternatives ``would cause no discernable changes to 
the direct stream impact trend.'' Id., p. 124. This is unremarkable, 
since OSM interprets the ``no-action'' alternative and all the other 
alternatives to allow continued unlimited filling of the buffer zone. 
The absence of significantly different impacts demonstrates the 
artificially narrow range of the alternatives that OSM considered. What 
is remarkable is that although stream filling in Appalachia is one of 
the most, if not the most, environmentally destructive practices in the 
United States today, OSM cannot think of a single reasonable 
alternative that would result in a ``major shift'' in the effects of 
those practices. This inability is based on political considerations, 
not facts or analysis.
    OSM's primary rationale in 2004 for gutting the SBZ rule and 
eliminating any more restrictive alternatives was its claim that it is 
``virtually impossible to conduct mining activities within 100 feet of 
an intermittent or perennial stream without causing some adverse 
effects,'' and that ``SMCRA recognizes that an absolute standard of `no 
adverse impacts' is unattainable.'' 69 Fed. Reg. at 1043. Similarly, in 
the DEIS, OSM states that if valley fills were restricted to ephemeral 
streams, 90.9% of the coal in central Appalachia could not be mined. 
DEIS, p. 20. OSM also argues that SMCRA does not prohibit filling 
streams with mine waste, and that it not economically feasible to 
eliminate such fills. 72 Fed. Reg. at 48891 (``the most economically 
feasible disposal areas are the upper reaches of valleys''); id. at 
48892 (``maintenance of a buffer is neither feasible nor 
appropriate'').
    The 92.5% figure is based on the Mountaintop EIS Technical Report 
in Appendix G of the MTM/VF PEIS. It was based on a study of only ten 
mines, and did not consider the altered economics of revised mine 
configurations. MTM/VF PEIS, App. G, Cover Sheet, p. 3. It therefore 
cannot be extrapolated to all coal mining in central Appalachia. The 
more comprehensive economic analyses in the MTM/VF PEIS, based on work 
by RTC and Hill & Associates, showed that restricting valley fills to 
ephemeral zones would reduce coal production in Appalachia by 20-45%, 
and would increase coal prices by only two dollars a ton. Id. at 7; 
MTM/VF PEIS, p. IV-I.3.
    Even that analysis is an overstatement of the impacts of the 
existing rule. We have examined seven recent NWP 21 authorizations 
issued by the Corps for surface coal mines in West Virginia. If the 
ephemeral/intermittent/perennial stream delineations used by the Corps 
to grant those authorizations are valid, they show that mine operators 
can place large amounts of mine spoil in valley fills without impacting 
perennial streams. See OVEC 4/23/04 Comments on Proposed SBZ Rule, 
Attachment 7.


----------------------------------------------------------------------------------------------------------------
                                                                     Water-       Stream loss in linear feet
    Mine operator/ Mine Name/ NWP 21 Issuance Date        Valley      shed   -----------------------------------
                                                         Fill No.    Acres    Ephemeral  Intermittent  Perennial
----------------------------------------------------------------------------------------------------------------
Kingston Resources, Inc./ Horse Creek 4/1/2003                 1         56        973          600           0
                                                               2         94       2916          500           0
                                                               3         36       1035          315           0
                                                               4        188       1247         2580           0
----------------------------------------------------------------------------------------------------------------
Horizon Resources, LLC/ Synergy 3/28/2003                      1         14          0            0           0
                                                               2         13          0            0           0
                                                               3        121        700         1850           0
                                                               6        160       1837         1500           0
----------------------------------------------------------------------------------------------------------------
Martin Logan Coal Co./ Phoenix No. 3 5/27/2003                 2         76        851            0           0
                                                               3        134        749         1290           0
                                                               4        106       2131            0           0
----------------------------------------------------------------------------------------------------------------
Hobet Mining, Inc./ Westridge 11/24/2003                       1        158        n/a         1800           0
                                                               2        233        n/a         2000           0
----------------------------------------------------------------------------------------------------------------
Elk Run Coal Co./ West of Stollings 1/5/2004                   B        150        310         2655           0
                                                                C       154        778         1662           0
                                                               D         56        600            0           0
                                                               E        124        360         1736           0
----------------------------------------------------------------------------------------------------------------
Independence Coal Co./ Edwight 1/28/2004                    East        517         50         4300           0
                                                            West        497          0            0           0
----------------------------------------------------------------------------------------------------------------
Hobet Mining, Inc./ Hewitt Creek 2/4/2004                      1       <141       1400          900           0
                                                               2       <141       1400            0           0
                                                               3       <141        650         1300           0
                                                               4       <141       1280            0           0
                                                               5       <141        850            0           0
                                                               6       <141        350            0           0
----------------------------------------------------------------------------------------------------------------
Martin Logan Coal Co./ Phoenix No. 4 Pending                   1        180        670         3803           0
                                                               2         68       1779            0           0
                                                               3         58       1040            0           0
                                                               4        139       2240            0           0
                                                               5        226       1485         2300           0
                                                               6        182       2170          200           0
                                                               7         85        470          400           0
ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½
Cumulative Totals                                       32 fills                 30321        31691           0
----------------------------------------------------------------------------------------------------------------

    Thus, none of the 32 fills are in perennial streams, and thirteen 
of them are only in ephemeral streams. Furthermore, nearly half of the 
stream length filled is in the ephemeral zone. Even though we believe 
that filling over 30,000 feet of ephemeral streams causes significant 
environmental harm, this data clearly refutes OSM's claim that it is 
impossible to mine without filling perennial streams, and also shows 
that significant mining can occur without filling intermittent streams.
    Since 59% to 80% of valley fills (depending on the state) are less 
than 75 acres (MTM/VF PEIS, pp. III.K-41 to K-47), it is likely that 
the majority of valley fills could be constructed without impacting 
perennial streams. Furthermore, these valley fills were built or 
approved before fill minimization requirements were being enforced, and 
therefore probably understate the number of fills that could be built 
without intersecting intermittent or perennial streams.
    Even if the existing SBZ rule may cause a limited loss of central 
Appalachia coal, that does not mean that there would be an overall 
shortage of coal for the nation. Higher mining costs ``will result in 
coal supplies originating from coal basins outside this EIS study area 
where compliance can occur.'' MTM/VF PEIS, p. IV-I.1. In other words, 
any coal not mined in Appalachia will be replaced by coal mined 
elsewhere. So overall there will be adequate coal to meet demand and no 
necessary reduction in overall coal production.
    In addition, OSM fails to acknowledge in its rulemaking, unlike its 
acknowledgment in the MTM/VF PEIS, that ``minimizing fills will to some 
degree also affect mining costs.'' MTM/VF PEIS, p. IV-I-3. Indeed, all 
SMCRA environmental standards have that effect. Consequently, the fact 
that restrictions on mining in the SBZ will increase mining costs and 
make some coal unrecoverable is not, in itself, a reason to reject 
those restrictions. ``Where mitigation presents significant costs to 
the applicant, the economic effect will likely be similar, but possibly 
less pronounced, to the results of the absolute fill restriction 
studies, inasmuch as mining methods that reduce the amount of excess 
spoil (and consequently reduce the size of fills and the amount of 
mitigation) will be selected.'' Id., p. IV.I-4. OSM has not summarily 
rejected mitigation of fill impacts on the ground that it will reduce 
the amount of coal recovered, even though that is likely. Consequently, 
it is irrational to summarily eliminate all restrictive alternatives on 
that basis.
            2. There Is No Evidence that the Preferred Alternative 
                    Would Reduce Environmental Impacts
    In the DEIS, OSM claims that the preferred alternative, Alternative 
1, would reduce the environmental impacts of the current SBZ rule 
because: (1) the new excess spoil minimization rule would reduce the 
footprints of the fills; and (2) the minimization analysis would result 
in ``less adverse functional impacts.'' DEIS, p. 124. No evidence or 
studies are presented to support these conclusions. In fact, the change 
to the SBZ rule is likely to increase environmental harm, because most 
mining activities that fill streams are being exempted from the rule. 
This will encourage greater filling of streams, not less.
            3. OSM Has No Rational Basis to Conclude that SBZs Are Not 
                    BCTA
    Section 515(b)(24) requires OSM to use the best technology 
currently available (BTCA) to minimize disturbances from mining 
activities on environmental resources. As OSM admits, the existing SBZ 
rule ``manifest[s] an assumption that maintenance of an undisturbed 
100-foot buffer around perennial and intermittent streams is the'' 
BTCA. 72 Fed. Reg. at 48902. OSM is now abandoning that assumption, and 
reversing course, on the ground that ``maintenance of a buffer is 
neither feasible nor appropriate because the activities inherently 
involve placement of fill material in waters of the United States.'' 
Id. at 48892. Thus, OSM claims that, as a factual and technical matter, 
stream buffer zones are impractical or impossible. However, OSM 
provides no evidence or studies to support this assertion. In fact, as 
we have shown above, the PEIS found that mining can feasibly continue 
even if SBZs are maintained. Even if some mining would be reduced, that 
is no reason to conclude, as a technical matter, that SBZs are 
infeasible.
    Furthermore, the overwhelming scientific evidence shows that 
riparian buffer zones consisting of native vegetation communities are 
the best method for stream protection from disturbances upslope such as 
mining or logging. When the forests next to a stream are disturbed or 
destroyed, the streams and aquatic life suffer. Studies show that 
streams draining grasslands tend to downwaste and are both deeper and 
narrower than those adjacent to forest regions. Without their 
surrounding forests, stream runoff is faster, there are no significant 
litter inputs including woody debris (which help in retention and 
microbial uptake), and there is less surface area in stream bottoms for 
secondary production. Furthermore, removing the surrounding forest and 
changing the vegetation to grass changes the energy base of the natural 
headwater stream in the Appalachians.\4\
---------------------------------------------------------------------------
    \4\ These facts are supported by the comments submitted on this 
proposed rule by aquatic scientists Pat Mulholland, et al.,and by the 
following studies: Lowrance, R., R. Todd, J. Fail, Jr., O. Hendrickson, 
Jr., and R Leonard. 1984. Riparian forests as nutrient filters in 
agricultural watersheds. BioScience 34:374-377; Osborne, L. L. and D. 
A. Kovacic. 1993. Riparian vegetated buffer strips in water-quality 
restoration and stream management. Freshwater Biology 29:243-258; 
Peterjohn, W. T. and D. L. Correll. 1984. Nutrient dynamics in an 
agricultural watershed: observations of the role of the riparian 
forest. Ecology 65:1466-1475; Meyer, Judy L., David L. Strayer, J. 
Bruce Wallace, Sue L. Eggert, Gene S. Helfman, and Norman E. Leonard. 
2007. The Contribution of Headwater Streams to Biodiversity in River 
Networks. Journal of the American Water Resources Association (JAWRA) 
43(1):86-103.
---------------------------------------------------------------------------
            4. The DEIS' Analysis of Cumulative Effects Is Pathetically 
                    Inadequate
    OSM's analysis of the cumulative impacts of its proposal is 
pathetic. It consumes a paltry two paragraphs. DEIS, p. 144-45. OSM 
argues in one paragraph that no further analysis is necessary because 
the cumulative impacts of surface coal mining were addressed in its 
1979 and 1983 EISs on its SMCRA regulations. Id. at 145.
    This argument is ludicrous. Those EISs are more than twenty years 
old. CEQ guidance provides that an EIS should be supplemented if it is 
more than five years old. CEQ, NEPA's Forty Most Asked Questions, No. 
32, 46 Fed. Reg. 18026 (March 16, 1981). CEQ regulations require 
supplemental environmental analysis when changed circumstances or 
significant new information arises after an earlier NEPA evaluation is 
made. 40 C.F.R. Sec.  Sec.  1502.9(c)(1)(i), (ii). There is no question 
that the scope and intensity of mining activities in Appalachia has 
changed significantly since 1983. The 2005 PEIS states:

          Increased public and government agency concern about MTM/VF 
        operations emerged in 1997 and 1998. It appeared that the 
        number of these types of operations had increased in recent 
        years in Appalachia, and that more and more valley fills were 
        being proposed/built.
          . . . [A] comparison of the fills constructed in the period 
        1985-1989 with those constructed in 1995-1998 showed that the 
        average fill increased in size by 72 percent, and the average 
        length of stream impacted per fill increased by 224 percent.

PEIS, p. I-5. This PEIS is no substitute for a full analysis in the SBZ 
EIS. OSM stated in the PEIS that ``[t]he stream buffer zone rule 
proposal and other regulatory program changes were envisioned and 
sanctioned by the settlement agreement and do not rely on this NEPA 
document.'' PEIS, Response to Comments, p. 19.

    OSM also argues that its regulations were, and continue to be, 
environmentally beneficial because they require mitigation. DEIS, p. 
145. However, merely requiring mitigation does not mean it will be 
successful or effective. OSM cannot rationally conclude that mitigation 
will offset the loss because federal agencies do not fully evaluate the 
aquatic functions of streams before they are buried and, therefore, do 
not know what to replace. OVEC, 479 F. Supp.2d at 646. Furthermore, 
even if the assessment of lost stream functions were sufficient, OSM's 
finding that mitigation will replace those functions is irrational 
because OSM has no reasoned analysis of the effectiveness of 
mitigation. OSM cannot simply assume that mitigation will eliminate 
cumulative impacts. OVEC, 479 F. Supp.2d at 659.
    In the second paragraph, OSM argues that ``all regions'' in the 
U.S. have streams ``that are in poor and slightly impaired 
conditions,'' caused mostly by ``natural and man-induced activities,'' 
that mining impacts involve mostly acid mine drainage, and that 
analyses of mines' probable hydrologic consequences (PHC) will ``ensure 
that no material damage resulting from changes in water quantity or 
quality occur[s].'' DEIS, p. 145. These statements are gross 
generalizations that completely ignore the government's own scientific 
studies that it spent $5 million to obtain and that formed the basis 
for the 2005 MTM/VF PEIS. OSM provides no factual basis for its 
assertion that burying over a thousand miles of streams is comparable 
to impaired streams in other parts of the country, or to existing acid 
mine drainage problems in Appalachia. These statements reveal a 
complete ignorance of the biology and importance of headwater streams, 
the serious adverse effects of valley fills on downstream water 
quality, and the failure of compensatory mitigation to offset the 
aquatic functions of lost headwater streams. OSM's analysis of 
cumulative impacts is both quantitatively and qualitatively pathetic.
    Judge Chambers recent decision in the OVEC case examined the Corps' 
analysis of cumulative effects for the four individual permits under 
this standard. He found that the Corps' analysis was deficient:

          The Corps does not explain how the cumulative destruction of 
        headwater streams already affected by mining in these water in 
        these watersheds will not contribute to an adverse impact on 
        aquatic resources. The Corps fails to ``articulate a 
        satisfactory explanation,'' including a ``rational 
        connection,'' between the facts found and the conclusion 
        reached. [citation omitted] Instead, the Corps recites the data 
        and declares that the cumulative impacts are not significant.

479 F. Supp.2d at 659. Here, OSM has done even less. It cites no data 
whatsoever and declares that no material damage will occur to streams.

    Nor it is enough that OSM has provided a quantitative estimate of 
the number of valley fills and the number of miles of streams that they 
have filled. 72 Fed. Reg. at 48891-92. Quantification of affected areas 
is a necessary, but not a sufficient, analysis of cumulative effects 
under NEPA. Klamath-Siskiyou Wildlands Center v. Bureau of Land 
Management, 387 F.3d 989, 995 (9th Cir. 2004) (``A calculation of the 
total number of acres to be harvested in the watershed is a necessary 
component of a cumulative effects analysis, but it is not a sufficient 
description of the actual environmental effects that can be expected 
from logging those acres.'').

II. UNDER THE CLEAN WATER ACT, OSM MUST OBTAIN EPA CONCURRENCE FOR THE 
                               FINAL RULE

    SMCRA provides that regulations on environmental protection 
standards cannot be approved by OSM unless it has ``obtained the 
written concurrence'' of EPA ``with respect to those aspects'' of 
federal regulations ``which relate to air or water quality standards 
promulgated under the'' Clean Water and Clean Air Acts. 30 U.S.C. Sec.  
1251(b). When it enacted this section, Congress was concerned about 
direct conflicts between air or water quality standards, and it 
believed that the EPA concurrence procedure would be sufficient to 
address such conflicts. The 1977 House Report contains a section 
entitled ``Relation of H.R. 2 to Other Laws'' that states, in relevant 
part:

    The committee felt that the requirement for the Secretary of the 
Interior to obtain the concurrence of the Administrator of the 
Environmental Protection Agency is necessary to insure that any 
environmental requirement of this act is consistent with the 
environmental programs and authorities of EPA and, in particular, those 
programs authorized under the Clean Air Act, as amended, and the 
Federal Water Pollution Control Act, as amended. Specifically, the 
Secretary must obtain the Administrator's concurrence in the coal 
surface mining regulations and requirements under the environmental 
protection and State program approval provisions of the bill, as well 
as the final approval of any State program. The EPA has been directed 
by the Congress to insure the environmental well-being of the country. 
EPA has established water quality standards, air quality standards, and 
implementation and compliance requirements for the coal mining and 
processing industry, and issues permits to the industry to insure 
appropriate pollution abatement and environmental protection. The 
committee concluded that because of the likeness of EPA's abatement 
programs and the procedures, standards, and other requirements of this 
bill, it is imperative that maximum coordination be required and that 
any risk of duplication or conflict be minimized.

H. Rep. No. 218, 95th Cong., 1st Sess. 142 (1977).

    The proposed SBZ clearly implicates the Clean Water Act. OSM has 
deleted the ``adverse effect'' test and the requirement to meet water 
quality standards in the existing rule. As a result, as we explain 
below, the proposed rule will cause increased valley filling, leading 
to significant degradation of waters of the United States, in violation 
of EPA regulations under the CWA. Yet there is no indication in the 
proposed rule that OSM has sought, or intends to seek, EPA's 
concurrence. OSM must do so, or else the rule is invalid.

 III. EPA CANNOT LEGALLY CONCUR WITH THE PROPOSED RULE BECAUSE IT WILL 
   CAUSE SIGNIFICANT DEGRADATION OF STREAMS, IN VIOLATION OF THE CWA

    EPA cannot legally concur with the proposed rule because it 
violates the Clean Water Act. Valley fills are permissible only if they 
do not result in ``significant degradation'' to the aquatic ecosystem. 
40 C.F.R. Sec.  230.10(c); PEIS, p. II.C-38. By eliminating the adverse 
effects test in the existing rule, the proposed SBZ rule would 
implicitly allow effects which are adverse and significant, as long as 
they are minimized. Even if effects of valley fills are minimized, they 
are still likely to be significant. Minimizing harm does not ensure its 
insignificance. The proposed SBZ rule does not prevent significant harm 
from occurring. Cf. Hazardous Waste Treatment Council v. EPA, 886 F.2d 
355, 361 (D.C. Cir. 1989) (RCRA requirement to ``minimize'' threats to 
human health and the environment does not require EPA to set treatment 
standard at levels where no threat to human health and the environment 
exists).
A. The DEIS Itself Finds that Valley Fills Cause Significant 
        Degradation
    The evidence that valley fills cause significant degradation is 
clear from the DEIS itself. Headwater streams ``serve a number of 
important ecological functions including . . . improving water 
quality.'' DEIS, p. 109. Valley fills have already permanently filled 
over 700 miles of headwater streams in Appalachia, and are expected to 
fill 367 more miles. Id. at 117. When streams are buried by valley 
fills, ``those segments no longer exist and all stream functions are 
lost.'' Id. This degradation must be deemed significant. There is no 
evidence showing that buried streams can be recreated successfully 
elsewhere on mined sites. The DEIS states that ``the state of the art 
in creating smaller headwater streams has not reached the level of 
reproducible success.'' Id. at 111. ``Attempts to reestablish the 
functions of headwater streams on the groin ditches on the sides of 
fills have achieved little success to date.'' Id. at 117. ``Past 
efforts at compensatory mitigation have not achieved a condition of no-
net loss of stream area or functions.'' PEIS, p. III.D-17. 
Consequently, this loss is permanent and irreversible.
    Valley fills also cause significant harm to downstream water 
quality. They increase downstream concentrations of sulfate, total 
dissolved solids, total selenium, total calcium, total magnesium, 
hardness, total manganese, dissolved manganese, specific conductance, 
alkalinity, total potassium, acidity, and nitrite/nitrate. DEIS, p. 
118. Sulfate doubled in 13 of 52 basins and quintupled in five basins. 
Id. at 119. Valley fills cause water temperatures to be warmer in the 
winter and cooler in the summer than for unmined areas. Id. at 120.
B. The Available Scientific Evidence Demonstrates that Surface Coal 
        Mining Activities Are Causing Significant Degradation of 
        Streams in Appalachia
    Other available scientific evidence demonstrates that coal mining 
activities and valley falls are causing significant degradation. In its 
comments on the proposed 2002 NWP 21, EPA stated that coal mining and 
valley fill operations in Appalachia cause ``significant ecological 
damage to the headwater stream systems.'' 10/9/01 EPA Letter, 
Enclosure, p. 8, Attachment 12. FWS similarly stated that it ``believes 
that surface coal mines often adversely affect large areas of upland 
and wetland habitat.'' 7/2/01 FWS Letter, pp. 1-2, Attachment 13. FWS 
described the environmental impact of coal mines in Appalachia on 
aquatic and terrestrial ecosystems as ``unmitigatable'' and 
``unprecedented.'' 9/20/01 FWS Letter, p. 1, Attachment 14. FWS said it 
knew ``of no other single type of activity, whether authorized by 
individual or general permit, with such significant individual and 
cumulative adverse environmental impacts as those currently authorized 
by NWP 21.'' Id., p. 2. FWS described the consensus of scientists 
working in the field that ``small first order streams form the heart 
and soul of the functional stream ecosystem in . . . every watershed 
that has been carefully studied. . . . Clearly, any discussion of 
destroying even one first order stream is out of order. . . .'' Id., p. 
4. ``These experts asserted that stream loss is unacceptable from a 
biological standpoint, and that there is no scientific basis on which 
to develop an acceptable loss threshold.'' Id., p. 5.
    In addition, 43 ``senior aquatic scientists,'' including ``members 
of the National Academy of Sciences and its scientific Boards,'' 
``president[s] of national scientific organizations, and leading 
authors on the ecology, water quality, and biota of streams and 
rivers,'' stated in their comments on the proposed 2002 NWP 21 that:

          The available scientific evidence clearly demonstrates that 
        the length of headwater streams in the landscape has been 
        significantly reduced because of the mining and development 
        activities that have been permitted under this program. . . . 
        This loss of headwater streams has profoundly altered the 
        structure and function of stream networks, just as eliminating 
        fine roots from the root structure of a tree would reduce its 
        chances of survival.

10/5/01 Univ. of Georgia Comments, p. 1, Attachment 15. These 
scientists supported their conclusion by citing and attaching thirty 
articles in scientific journals. Id. In addition, in her recent 
testimony in OVEC v. Bulen, Civil No. 3:05-784 (S.D.W.Va.), Dr. 
Margaret Palmer, plaintiffs' expert on stream restoration, stated that 
in terms of conservation priorities, headwater streams are ``at the top 
of the list'' of areas that need to be preserved. Bulen Trial 
Transcript (hereafter ``Bulen Tr.'') 6:102-03, Attachment 16.

    1. Stream degradation is significant. The PEIS demonstrates that 
significant degradation of the aquatic and terrestrial ecosystem in 
Appalachia has likely occurred, and is continuing to occur. Significant 
stream degradation caused by valley fill and mining activities is best 
documented for watersheds in West Virginia. In OVEC v. Bulen, Civil No. 
3:05-0784 (S.D.W.Va.), expert analysis of GIS data showed that present 
and pending surface mining permit operations and valley fills 
conservatively cover the following percentages of streams in these 
watersheds:


------------------------------------------------------------------------
                                                               % first
                                                % of total      order
            Watershed/Subwatershed                streams      streams
                                                  covered      covered
------------------------------------------------------------------------
Upper Guyandotte                                      7.4           9.5
------------------------------------------------------------------------
  Dingess Run                                        19.9          19.5
------------------------------------------------------------------------
Coal River                                           12.0          14.5
------------------------------------------------------------------------
  Laurel Creek                                       28.0          37.3
------------------------------------------------------------------------
Upper Kanawha                                         7.9          10.2
------------------------------------------------------------------------
  Cabin Creek-Headwaters                             22.9          32.1
------------------------------------------------------------------------

Expert Report of Douglas P. Pflugh, May 16, 2006, Summary, p. 2, 
Attachment 17. The Corps reviewed this data and found it to be ``very 
reliable.'' Mullins Testimony, Bulen Tr. 3:202, Attachment 16. In the 
headwaters of Spruce Fork in West Virginia, surface mine permits and 
valley fills cover 35.5% of total stream length and an alarming 44% of 
first order stream length. FEIS, Spruce Mine No. 1, p. 2-180 (September 
2006), Attachment 18. In OVEC v. Bulen, Civil No. 3:05-0784 
(S.D.W.Va.), plaintiffs' expert aquatic ecologist, Dr. Bruce Wallace, 
testified in October 2006 that impacts of this magnitude were 
``astounding,'' a ``danger signal,'' and meant lost headwater stream 
functions in these areas. Wallace Testimony, Bulen Tr. 2:32-34, 
Attachment 16. Plaintiffs' stream restoration expert, Dr. Margaret 
Palmer, similarly testified that a loss of 29% of the watershed and 18% 
of the first order streams in a watershed were ``incredibly 
significant.'' Palmer Testimony, Bulen Tr. 2:134, Attachment 16. She 
said that this loss was so huge that it was questionable whether the 
stream could ever be restored. Id. at 2:135-36.

    2. Water quality degradation is significant. In its June 16, 2006 
comments on the Draft EIS for the Spruce No. 1 mine, EPA stated 
``existing data from Spruce Fork indicates MTM/VF activities have 
degraded streams to the point where they are considered impaired using 
the West Virginia Stream Condition Index (WVSCI). Considering that 
water leaving the mined and filled areas in Spruce Fork is degraded, 
additional caution is necessary in future permitting and mitigation 
requirements. The Final EIS should consider the strong and 
statistically significant relationships found between biological 
condition and these water quality parameters as summarized in Table 1 
and supporting data. (see Attachment 2).'' FEIS, Spruce No. 1 Mine, p. 
2-98, Attachment 18.

    In addition, the PEIS stated that valley fills have the following 
adverse effects on downstream waters:

          Stream chemistry showed increased mineralization and a shift 
        in macroinvertebrate assemblages from pollution-intolerant to 
        pollution-tolerant species. Water temperatures from valley fill 
        sites exhibited lower daily fluctuations and less seasonal 
        variation than water temperatures from reference sites. . . .
          The EPA Water Chemistry Report found elevated concentrations 
        of sulfate, total and dissolved solids, conductivity, selenium 
        and several other analytes in stream water at sampling stations 
        below mined/filled sites.

PEIS, p. IV.B-4. In fact, the EPA Water Chemistry Report found that 
conductivity was ``clearly impacted by MTM/VF [mountaintop/valley fill] 
mining.'' PEIS, App. D, EPA 2002b, p. 2. ``Conductivity at Filled sites 
can be 100 times greater than that at Unmined sites.'' Id. at 45. 
``Unmined sites have a consistently low conductivity no matter what the 
flow. Filled sites have a broad range of conductivity much higher than 
Unmined sites indicating that MTM/VF mining increases specific 
conductance in streams.'' Id. at 46. Conductivity is generally five to 
nine times greater below valley fills than below unmined sites. Wallace 
Testimony, Bulen Tr. 2:34-35, Attachment 16. Sulfates were 41 times 
greater; calcium, magnesium and hardnesss were 21 times greater; total 
dissolved solids were 16 times greater, and selenium was 7.8 times 
greater. Id. at 2:35. These chemical changes have a significant effect 
on the aquatic ecosystem. Id. Dr. Wallace called them a ``witches' 
brew.'' Id. at 2:37, 95. EPA found that ``[t]he highest values [for 
conductivity] are consistently at the Sediment Control Structure (MT-
24) which is on a reclaimed MTM/VF mine.'' PEIS, App. D, EPA 2002b, p. 
45. The PEIS also found that mining impacts on the nutrient cycling 
function of headwaters streams ``are of great concern.'' PEIS, App. I, 
p. 74.

    Coal mining and valley fills in WV are also causing significant 
degradation of the aquatic environment due to selenium contamination. 
OSM's DEIS confines its discussion of selenium to the following four 
sentences:

          Selenium concentrations from the ``filled'' category sites 
        were found to exceed AWQC for selenium at most (13 of 15) sites 
        in this category. No other site categories had violations of 
        the selenium limit.
          In the USEPA (2002a) stream chemistry study in West Virginia, 
        selenium was found at elevated levels below several streams 
        where excess spoil fills were constructed. Elevated selenium 
        concentrations may impact aquatic biota and possibly higher 
        order organisms that feed on aquatic organisms [EPA 2003, 
        p.III.D-7].

DEIS, pp. 118, 132. This is grossly inadequate, and omits reference to 
newer and more disturbing scientific data.

    Subsequent to the issuance of the PEIS, the FWS released a study 
that confirms the seriousness of the selenium problem. During the 
spring and summer of 2003, FWS conducted a survey of selenium in fish, 
water, and sediments in streams in southern West Virginia. In a January 
16, 2004 letter to the West Virginia Department of Environmental 
Protection (Attachment 19), the Supervisor of FWS' Pennsylvania Field 
Office, David Densmore, concludes that:

   Selenium was present in all fish samples.
   Selenium concentrations in fish in three watersheds exceeded 
        the toxic effect threshold level for whole fish.
   Selenium is bioavailable in West Virginia streams, and 
        violations of the EPA selenium water quality criterion may 
        result in selenium concentrations in fish that could adversely 
        affect fish reproduction.
   In some cases, fish tissue concentrations were near levels 
        believed to pose a risk to fish-eating birds.

Fish tissue from Sugartree Branch and Stanley Fork contained selenium 
ranging from 4.13 ppm to 6.85 ppm, which are above Lemly's 4 ppm toxic 
effect threshold. July 16, 2004 Letter from Chapman to Mullins re: 
Phoenix No. 4 Surface Mine, p. 11, Attachment 20. FWS has also stated 
that the total number of fish species was dramatically higher in 
unmined streams than in either streams with valley fills and no 
selenium or streams with valley fills and detectable selenium. Id.

    In November 2005, WVDEP began a fish tissue study of the impacts of 
selenium downstream from areas where high selenium coal is being mined. 
WVDEP's preliminary findings indicate significant bioaccumulation of 
selenium in downstream lakes and streams (April 28, 2006 powerpoint 
presentation: DEP Selenium Study, Background and Progress, available at 
www.dep.state.wv.us/item.cfm?ssid=11&ss1id=747, Attachment 21):


------------------------------------------------------------------------
                                                 Avg. Water    Average
             Stream                 Location     Column SE   Fish Tissue
                                                   (ppb)       Se (ppm)
------------------------------------------------------------------------
Beech Creek                       Logan               11.0         10.7
                                   County, WV
------------------------------------------------------------------------
Pond Fork                         Near Bob             1.8          3.8
                                   White, WV
------------------------------------------------------------------------
White Oak Creek                   Near Orgas,         15.3          5.7
                                   WV
------------------------------------------------------------------------
Seng Creek                        Garrison, WV        34.0          8.6
------------------------------------------------------------------------
Hughes Fork                       Near Dixie,          5.6         10.1
                                   WV
------------------------------------------------------------------------
Upper Mud River  Reservoir        Lincoln              3.9         33.9
                                   County, WV
------------------------------------------------------------------------

The levels found at these sites greatly exceed levels where toxic 
effects in sensitive species begin to occur, which is 4 ppm. See A. 
Dennis Lemly, ``Selenium in Aquatic Ecosystems: A Guide for Hazard 
Evaluation and Water Quality Criteria,'' Springer 2002, p. 31, 
Attachment 22. In fact, the fish tissue selenium level in the Upper Mud 
River Reservoir, which is a lake downstream from the Hobet 21 mining 
complex, exceeds this threshold by 850%.

    In general, ``[t]he most widespread human-caused sources of 
selenium mobilization and introduction into aquatic ecosystems in the 
U.S. today are the extraction and utilization of coal for generation of 
electric power and the irrigation of high-selenium soils for 
agricultural production.'' Bryant, G., McPhilliamy, S., and Childers, 
H., 2002, A survey of the water quality of streams in the primary 
region of mountaintop / valley fill coal mining, October 1999 to 
January 2001, in PEIS, App. D, Stream chemistry final report, p. 74. 
``[I]n the region MTM/VF mining, the coals can contain an average of 4 
ppm of selenium, normal soils can average 0.2 ppm, and the allowable 
limits in the streams are 5 ug/L (0.005 ppm). Disturbing coal and soils 
during MTM/VF mining could be expected to result in violations of the 
stream limit for selenium.'' Id.
    FWS states in its comment letter on the Hollow Mountain project, 
``The Service believes that it is unlikely that toxic materials can be 
isolated indefinitely from weathering and in the long-term there will 
likely be leaching of toxic materials.'' July 9, 2004 FWS Letter to 
ACOE, p. 3, Attachment 23. Further, it is clear that prevention is key 
in controlling selenium contamination of surface water. Dr. A. Dennis 
Lemly stated in a January 5, 2004, white paper on selenium issues in 
West Virginia:

          The lessons from Belews Lake, supported by over two decades 
        of research findings from many other locations throughout North 
        America (Lemly 1997b, 1999, 2002b; Skorupa 1998a, Hamilton 
        2004), underscores the need to take a preventive approach to 
        selenium pollution rather than attempting to deal with it after 
        contamination has taken place. With respect to coal mining this 
        means pre-mine assessment. Failure to adopt this approach can 
        only worsen the selenium pollution and associated ecological 
        risks that have emerged in West Virginia.

Attachment 24, p. 2. The risk of significant ecological harm from 
selenium contamination in the West Virginia coal fields is real and has 
been confirmed not only by the PEIS but also by studies conducted by 
the FWS. ``Our results show that selenium present in surface waters in 
southern West Virginia is bioavailable, and that violations of the EPA 
selenium water quality criterion may result in selenium concentrations 
in fish that could adversely affect fish reproduction. In some cases 
fish tissue concentrations were near levels believed to pose a risk to 
fish-eating birds.'' Id., pp. 2-3. More recently, USGS sampling of fish 
tissue in April 2006 from five bluegill fish taken from the upper Mud 
River Reservoir near Palermo, WV showed concentrations of 15.1 to 40.1 
ug/g in whole body samples and 21.4 to 34.9 ug/g in ovary samples. 
Attachment 30.

    These scientific studies demonstrate that selenium concentrations 
are already occurring from existing valley fills and are causing 
significant degradation of water quality. ``If mining, permitting and 
mitigation trends stay the same, an additional thousand miles of direct 
impacts could occur in the next ten years.'' MTM/VF PEIS, App. I, pp. 
66-67. The proposed rule does nothing to address the selenium issue and 
would permit more significant degradation to occur, and therefore would 
violate the CWA.
    3. Water quantity and community impacts are significant. OSM has 
also failed to consider the major adverse effects of valley fills on 
hydrology. A USGS study found that runoff is 1.75 times greater per 
unit surface area from mined than unmined catchments. PEIS, App. H, p. 
3. Even worse, EPA has found that ``base flows of streams with valley 
fills are 6 to 7 times greater than the base flows of unmined areas.'' 
PEIS, App. D, 2002 EPA Water Chemistry Study, p. 86. This means not 
only that areas downstream from valley fills will experience much 
higher flows, but also higher loadings of the excessive and harmful 
chemicals mentioned above. These increased flows have real and 
devastating impacts on local communities, particularly during more 
extreme storm events. In addition, mines cause large amounts of noise, 
blasting impacts and community disruption. PEIS, p. IV.H-3 (noise and 
vibration caused by mountaintop mining near populated areas generate 
``relatively high numbers'' of complaints). The DEIS fails to consider 
these hydrological and community effects.
    4. Degradation of aquatic diversity is significant. Headwater 
streams can be responsible for 90 percent of the biodiversity in an 
entire watershed. Palmer Testimony, Bulen Tr. 2:176. Valley fills 
reduce biodiversity by favoring pollutant-tolerant macroinvertebrate 
species over pollution-intolerant species. The coal industry's own 
water quality expert admitted in OVEC v. Bulen that valley fills cause 
a dramatic reduction in mayfly taxa in downstream waters, with a shift 
to more pollution-tolerant taxa. Kirk Testimony, Bulen Tr. 5:88. Dr. 
Donald Cherry, an expert in aquatic ecotoxicology from Virginia Tech 
(Bulen Tr. 5:111), testified in OVEC v. Bulen about his research 
involving water discharges from valley fills in southern West Virginia. 
Bulen Tr. 5:114-16. His study found a shift in the benthic community to 
a more tolerant type. Id. at 5:120, 125, 165-66. He agreed that the 
created streams would not be the functional equivalent of the streams 
buried by valley fills. Id. at 5:145-46. Indeed, he rated the streams 
below valley fills as ``terrible'' with scores well below the score for 
the reference stream. Id. at 5:152-53. Those streams showed 
``significant stress.'' Id. at 5:174. Dr. Wallace stated that there is 
a well-established correlation between conductivity levels and the loss 
of sensitive benthic organisms. Wallace Testimony, Bulen Tr. 6:31-36. 
High conductivity is contributing to major problems with benthic 
invertebrates. Id. Some of the worst conditions were found below fill 
sites. Id.
    The loss of biodiversity from this loss of benthic taxa is 
significant. Id. at 6:67-68. Other organisms cannot make up for this 
loss of biodiversity because they serve different functions. Palmer 
Testimony, Bulen Tr. 6:103-06. Different species are not necessarily 
interchangeable. Id. The functions of filled first and second-order 
headwater streams cannot be replaced in the larger order streams 
downstream. Wallace Testimony, Bulen Tr. 6:41. Those functions include 
nutrient retention, water purification, and energy production 
functions. Id. at 6:43-47; Palmer Testimony, Bulen Tr. 6:101-02.
    The only significant vertebrate animal in headwater streams is the 
salamander. Wallace Testimony, Bulen Tr. 1:258. The Central and 
Southern Appalachians contain the greatest abundance of species of 
salamanders in the world. Id. at 1:242, 6:39. Salamanders are being 
buried by valley fills and not replaced downstream. Id. at 6:40; Cherry 
testimony, Bulen Tr. 5:166-67. Forest loss associated with mountaintop 
mining and valley fills has the potential to adversely impact over 1.2 
billion salamanders, or 3.4% of the entire four-state population in 
Appalachia. PEIS, App. I, pp. 92-93.
    According to the PEIS, from 1992 through 2002, mountaintop removal 
mining and associated valley fills in Appalachian have destroyed 
380,547 acres of forest (an area almost ten times larger than the 
District of Columbia). PEIS, pp. III.D-2, IV.C.1. If current trends 
continue, that amount will double by 2012. Accordingly, in its June 16, 
2006 comments on Spruce Mine No. 1, EPA stated that, ``[o]f the largely 
forested mountaintop mining study area, the Final PEIS estimated that 
approximately 761,094 acres have been or may be affected by recent and 
future (1992-2012) mountaintop mining. To date, these impacts have not 
been successfully mitigated, resulting in the impairment of significant 
natural resources at the watershed level.'' FEIS, Spruce Mine No. 1, 
pp. 2-64 to 2-65. In addition, the cumulative effects of past, present 
and anticipated surface mines in individual watersheds are even 
greater. For example, in the Coal River watershed, mining activities 
cumulatively impact 12% of that area, or 72,969 out of 570,713 acres. 
OVEC v. Bulen, Expert Report of Douglas P. Pflugh, May 16, 2006, 
Summary, p. 1, Attachment 17.
    This forest destruction is profound and permanent because ``unlike 
traditional logging activities associated with management of hardwood 
forest, when mining occurs, the tree, stump, root, and growth medium 
supporting the forest are disrupted and removed in their entirety.'' 
PEIS, p. IV.C-1. Mountaintop mining causes ``fundamental changes to the 
terrestrial environment,'' and ``significantly affect[s] the landscape 
mosaic,'' with post-mining conditions ``drastically different'' from 
pre-mining conditions. Id., App. I, pp. v, 23, 93. One recent study has 
found that ``[a]t this point in time, reestablishment of forest on 
these postmining sites appears questionable. Neither mountaintop 
removal sites nor the contour mines support a vegetation composition or 
structure that is likely to resemble regional forests.'' Edmonds and 
Loucks, ``Woody Establishment Patterns Following Mountaintop Removal in 
the Coal River Valley,'' available at www.mcrcc.osmre.gov/PDF/Forums/
Reforestation/Poster/P-1.pdf, Attachment 25.
    Mining impacts to habitat of interior forest bird species could 
have ``extreme ecological significance.'' PEIS, App. I, p. 90. A study 
of cerulean warbler habitat changes due to mountaintop removal mining 
stated, ``[p]reference for ridges suggests that MTMVF may have a 
greater impact on Cerulean Warbler populations than other sources of 
forest fragmentation since ridges are removed in this mining process. 
Generally, our data indicate that Cerulean Warblers are negatively 
affected by mountaintop mining from loss of forested habitat, 
particularly ridgetops, and from degradation of remaining forests (as 
evidenced by lower territory density in fragmented forests and lower 
territory density closer to mine edges).'' Weakland and Wood, 
``Cerulean Warbler (Dendroica Cerulea) Microhabitat and Landscape-level 
Habitat Characteristics in Southern West Virginia in Relation to 
Mountaintop Mining/Valley Fills,'' Final Project Report, December 2002, 
p. 1, Attachment 26. Mining could impact 244 terrestrial species. PEIS, 
App. I, pp. 86. The loss of the genetic diversity of these affected 
species ``would have a disproportionately large impact on the total 
aquatic genetic diversity of the nation.'' Id., App. I, p. 78.
    FWS has described the impacts of MTM/VFs on forest loss and 
fragmentation in its comments on the Phoenix 4 Mine in West Virginia:

          Habitat changes will occur in the study area and these 
        changes will involve a shift from forest dominated landscape to 
        a fragmented landscape with considerably more mining lands and 
        eventually grassland habitat. This shift should lead to a shift 
        in the floral and faunal components of the ecosystem. For 
        example, dry grassland species will dominate the once post-mine 
        and forest harvested sites. This will result in an overall 
        reduction in the native woody flora as well as a reduction in 
        the spring herbs and other vegetative components characteristic 
        to the study area.
          Wildlife shifts will include a shift from forest to grassland 
        species. The abundance of grassland birds will likely increase 
        while many forest interior, neotropical migrant species will 
        suffer losses in terms of number. There will likely be an 
        increase in game species such as whitetail deer and turkey due 
        to an increase in grasslands and diversification of the 
        habitats. The herpetofauna will likely undergo a shift from 
        mesic favoring salamander dominated communities along the 
        riparian corridors of the small headwater streams and in the 
        litter of the forest floor to a snake dominated grassland 
        fauna. Two species, short-tailed shrew (Blarina brevicauda) and 
        eastern chipmunk (Tamias striatus), were more abundant in 
        intact forest than fragmented forest.
          Populations of forest birds will be detrimentally impacted by 
        loss and fragmentation of mature forest habitat in the mixed 
        mesophytic forest region, which has the highest bird diversity 
        in forested habitats in the eastern Untied States. 
        Fragmentation-sensitive species such as the cerulean warbler, 
        Louisiana water thrush (Seiurus motacilla), worm-eating warbler 
        (Helmitheros vermivorous), black-and-white warbler (Mniotilta 
        varia), and yellow-throated vireo (Vireo falvifrons) will 
        likely be negatively impacted as forested habitat is lost and 
        fragmented from mountaintop/valley fill mining.
          The cerulean warbler, with the highest conservation rating 
        (this species is listed as Action II by Partner-In-Flight 
        (PFI)--in need of immediate management or policy rangewide) was 
        found to be positively related to percent slope and percent 
        canopy from >6-12 m. Based on habitat preference, it is 
        reasonable to conclude that continued mountaintop/valley fill 
        mining will negatively impact cerulean warbler abundance in 
        southwestern West Virginia.
          . . . mountaintop/valley fill mining has become a major 
        method of vast landscape change where golden-winged and 
        cerulean warblers may disappear with the changing proportion of 
        mature forest to cleared land. The highest priority bird 
        species other than the golden-winged warbler (Vermivora 
        chrysoptera), in this region are forest-breeder (cerulean 
        warbler, worm-eating warbler, and Louisiana waterthrush) whose 
        center of global importance is along the Appalachian ridges 
        most affected by mountain/valley fill mining.

Attachment 20, pp. 4-5. The FWS continues by commenting on a statement 
commonly made in mining environmental assessments:

          It is stated in the EID that `bird and amphibian species 
        richness increased significantly on more fragmented stands . . 
        . and in study plots containing more edge.' This is true but 
        there is failure to acknowledge that the increased richness is 
        achieved by adding widespread generalist species that are 
        taking over most of the landscapes, and the sensitive forest 
        species are negatively affected. This is a common and 
        misleading application of fragmentation and edge studies. This 
        flaw is not that fragmentation will increase diversity; the 
        flaw is that increased diversity is not necessarily desirable, 
        especially if it comes at the expense of a sensitive species 
        such as the cerulean warbler.

Attachment 20, pp. 5-6.

    The EPA and FWS scientists who commented on the draft PEIS agreed 
that significant degradation is occurring. An EPA scientist stated 
that:

          EPA's studies and other studies have found that the strongest 
        and most significant correlations are between biological 
        condition and conductivity. We do know that the stream segments 
        downstream of some of the fills are impaired, and we believe 
        the impairments are due to water chemistry changes, based on 
        the strong correlations.

12/20/02 Comments by EPA Wheeling Staff, Attachment 27. A FWS scientist 
objected to the ``no significant degradation'' statement in that draft 
PEIS (p. II.D-9), stating that ``If impaired aquatic life, and selenium 
above water quality standards, resulting in streams being placed on the 
303(d) list don't constitute significant degradation, what would?'' 4/
21/03 Rider email, attached file: chIVcomments.wpd, p. 2, Attachment 
28.

    5. OSM's DEIS Evades Its Obligation to Analyze Significant 
Degradation. OSM tries to avoid the significant degradation issue by 
arguing that the proposed rule would not make the current situation 
worse. It claims it ``would not anticipate a major shift in on-the-
ground consequences from any of the alternatives.'' DEIS, p. 121. 
Similarly, it states that the alternatives ``would cause no discernable 
changes to the direct stream impact trend.'' Id. at 124. OSM repeatedly 
states that it ``anticipates that the proposed regulatory language 
changes to the stream buffer zone rule would essentially be `impact 
neutral.''' Id. at 126-27, 128, 131, 133, 135, 142.
    That is not enough to satisfy the ``no significant degradation'' 
requirement in 40 C.F.R. Sec.  230.10(c). OSM assumes it only has to 
assess the change in impacts between the status quo and the proposed 
rule. However, OSM must determine whether significant degradation is 
already occurring and is likely to continue if activities are 
maintained at the current pace.
    OSM's proposed rules do not have adequate procedural mechanisms to 
ensure that such degradation does not occur. OSM's proposed rules that 
summarize the relationship between SMCRA permitting actions and Clean 
Water Act requirements merely require the applicant to identify the 
authorizations it needs under the CWA and the steps it has taken or 
will take to obtain them. 72 Fed. Reg. at 48901. That procedural step 
does nothing to ensure that significant degradation is assessed or 
avoided. Nor will the parallel processing of CWA Sec.  404 permits 
ensure that significant degradation does not occur, since the Corps 
takes the position that it need not assess the SMCRA-related impacts of 
mining activities on streams. 72 Fed. Reg. at 11115 (``Impacts 
associated with surface coal mining and reclamation operations are 
appropriately addressed by the Office of Surface Mining or the 
appropriate state agency.''). Furthermore, Sec.  402 discharge permits 
for mining operation only cover discharges from downstream sediment 
ponds and do not address the permanent loss of stream functions from 
the filling of headwater streams.
    OSM's procedural mechanisms to avoid significant degradation are 
also inadequate because OSM is removing the existing requirement for a 
finding that the activity ``will not cause or contribute to the 
violation of applicable State or Federal water quality standards and 
will not adversely affect the water quantity and quality or other 
environmental resources of the stream.'' 72 Fed. Reg. at 48902. By 
removing this requirement, OSM will allow activities that can cause 
such violations or adverse water quality effects without any analysis 
of their propensity to do so. OSM also specifically disavows any effort 
to ``pass judgment on . . . the adequacy of the steps that the 
applicant proposes to take'' to comply with the CWA. Id. OSM would 
intentionally blind itself to the potential, indeed the likelihood, of 
significant degradation. OSM's ``minimization'' standard is completely 
untethered to any analysis or measurement of actual adverse effects. 
Indeed, OSM asserts that ``the appropriate standard is minimization of 
adverse impacts . . ., not absolute avoidance of all adverse effects.'' 
Id. at 48902-03 (emphasis in original). See id. at 48906 (SMCRA 
establishes a minimization standard rather than an absolute `will not 
adversely affect' standard''). ``[S]ome adverse effects . . . are 
unavoidable . . .'' Id. at 48903. OSM cannot read the word ``minimize'' 
as a license to allow some unknown but potentially significant adverse 
environmental effects, so long as those effects are minimized.
    OSM attempts to finesse CWA requirements by including a catch-all 
provision that ``discharges of water from disturbed areas `be made in 
compliance with all applicable State and Federal water quality laws and 
regulations.''' Id. at 48903. This is merely a generalized requirement 
that the project applicant comply with the law. It does nothing to 
monitor, assess, measure or determine whether significant degradation 
is occurring or will occur. It is therefore wholly inadequate to 
satisfy OSM's independent and mandatory duty to ensure that its actions 
do not supersede, amend, modify or repeal the CWA. 30 U.S.C. Sec.  
1292(a)(3).
    OSM's procedures are also insufficient to ensure CWA compliance 
because its standard for stream restoration does not meet CWA 
standards. Stream channel diversions are subject to Sec.  404 of the 
CWA because they cause discharges of fill material into streams. In 
order to decide whether discharges will cause or contribute to 
significant degradation of the affected streams, the Sec.  404(b)(1) 
Guidelines require a determination of ``the nature and degree of effect 
that the proposed discharge will have, both individually and 
cumulatively, on the structure and function of the aquatic ecosystem 
and organisms.'' 40 C.F.R. Sec.  230.11(e) (emphasis added). According 
to the Corps' May 7, 2004 guidance on ``Mitigation for Impacts to 
Aquatic Resources from Surface Coal Mining,'' ``[t]he Clean Water Act, 
and the Corps implementing regulations and policies, requires that 
compensatory mitigation projects replace aquatic functions lost as a 
result of authorized activities.'' However, OSM has proposed a 
performance standard for restoration after stream diversions that does 
not require restoration of aquatic functions, and instead focuses only 
on stream structure. OSM would only require that restoration:

          be designed and constructed using natural channel design 
        techniques so as to restore or approximate the premining 
        characteristics of the original stream channel, including the 
        natural riparian vegetation and the natural hydrological 
        characteristics of the original stream, to promote the recovery 
        and enhancement of the aquatic habitat and to minimize adverse 
        alteration of stream channels on and off the site, including 
        channel deepening and enlargement, to the extent possible.

72 Fed. Reg. at 48906. Thus, this standard focuses on restoring stream 
structure and merely ``promoting'' recovery of aquatic habitat. It does 
not require restoration of the lost aquatic functions. As the Court 
recently found in OVEC v. U.S. Army Corps of Engineers, 479 F. Supp.2d 
607, 635 (S.D. W.Va. 2007), the federal government must make ``a full 
assessment of the streams' ecological functions before [it] may 
conclude that the structure and function of the resources buried by the 
valley fills is offset by the imposed mitigation measures.'' OSM fails 
to explain how it would make this assessment or how it would replace 
lost aquatic functions. Without such an explanation or assessment, OSM 
cannot rationally conclude that its methodology would prevent or avoid 
a significant degradation of aquatic functions.
C. The Proposed Rule Will Result in Significant Degradation of the 
        Stream Segments Between the Toes of the Valley Fills and the 
        Sediment Pond Embankments, Which Are ``Waters of the United 
        States''
    OSM's proposed rule would only require sedimentation ponds to be 
constructed ``as close to the toes of the fill as practicable.'' 72 
Fed. Reg. at 48909. This will always leave an unprotected stream 
segment between the mining activity (the toe of the fill) and the 
downstream outfall of the sedimentation pond. OSM takes the position 
that this segment is not a water of the United States and instead falls 
under the ``waste treatment system'' exclusion of an EPA regulation. 
OSM relies on a March 1, 2006 letter from EPA to support its position. 
Id. However, on June 13, 2007, a federal court rejected that EPA letter 
and held that the ``waste treatment system'' exclusion is inapplicable 
to the stream segments below the valley fills. OVEC v. U.S. Army Corps 
of Engineers, 2007 WL 2200686 (S.D. W.Va. 2007). Consequently, OSM has 
no legal basis for exempting these segments from the requirement to 
obtain a NPDES permit for discharges of pollutants into waters of the 
United States. Without such a permit and treatment of the discharges, 
these discharges are extremely likely to cause significant degradation. 
Indeed, the whole purpose of the downstream sedimentation pond is to 
intercept and collect that pollution.

          IV. THE EXISTING SBZ RULE IS CONSISTENT WITH THE CWA

    OSM has taken the position that applying the plain language of the 
existing SBZ to prohibit fills in intermittent and perennial streams 
would be inconsistent with existing CWA requirements allowing valley 
fills, and would therefore violate section 702 of SMCRA, 30 U.S.C. 
Sec.  1292(a)(2), which provides that SMCRA does not supercede, amend 
or repeal the CWA. 69 Fed. Reg. at 1044.
    EPA's Office of Water expressed concern in December, 2002 that this 
argument in the MTM/VF draft PEIS is incorrect, commenting that:

          There are fairly sweeping legal conclusions here that the 
        stream buffer zone rule could not be used to determine 
        allowable stream segments for filling because doing so would 
        supercede the CWA, something [C]ongress precluded in SMCRA. The 
        lawyers need to look at this more closely. I'm uncomfortable 
        with the breadth of this argument...

1/7/03 Neugeboren e-mail, OGC water law office comments, p. 1, 
Attachment 29.

    Furthermore, OSM's position is directly inconsistent with the 
position that it took in the Bragg litigation. In its brief in the 
Fourth Circuit, the United States stated, on behalf of OSM and other 
federal agencies:

          WVDEP has argued that because SMCRA cannot supersede, amend, 
        modify, or repeal the CWA, SMCRA cannot be construed to 
        prohibit any activity that would be allowed by the CWA. That 
        argument is without merit. ... SMCRA section 702 provides 
        merely that SMCRA does not alter the existing regulatory 
        schemes adopted by Congress in the CWA and other environmental 
        statutes. ...
          When Congress has intended that one statute should take 
        precedence over another statute in the regulation of a 
        particular activity, it has done so with language very 
        different and much clearer than SMCRA section 702. ...
          While WVDEP has asserted that it would create an 
        impermissible statutory ``conflict'' to read the buffer zone 
        rule to establish a stricter standard than that established by 
        the 404(b)(1) guidelines, such a statutory construction does 
        not create any such ``conflict'' as that term is understood in 
        the law. As the Supreme Court has held, two statutes can be 
        said to conflict only when it is impossible to comply with 
        both. See Freightliner Corp. v. Myrick, 514 U.S. 280, 287 
        (1995). No such conflict arises if SMCRA is construed to 
        prohibit some activities that would be authorized by the CWA, 
        since it is possible to comply with both statutes by engaging 
        in only those activities authorized by both statutes.
          Where an activity is regulated under the CWA and SMCRA--i.e., 
        a surface mining activity that involves the discharge of 
        pollutants from point sources into U.S. waters--regulation of 
        the activity is governed by the usual principles that courts 
        apply to reconcile overlapping statutes. Under those 
        principles, ``when two statutes are capable of co-existence, it 
        is the duty of the courts, absent a clearly expressed 
        congressional intention to the contrary, to regard each as 
        effective. `When there are two acts upon the same subject, the 
        rule is to give effect to both if possible.''' Morton v. 
        Mancari, 417 U.S. 535, 551 (1974) (quoting United States v. 
        Borden Co., 308 U.S. 188, 198 (1939)). See also 2A Sutherland 
        Statutory Construction Sec.  51.05 (4th ed. 1984). An activity 
        governed by both the CWA and SMCRA must therefore satisfy the 
        requirements of both statutes.

U.S. Br. 45-49, Attachment 1. Consequently, the existing SBZ rule does 
not violate section 702, and there is no need to revise the rule to 
address OSM's presumed violation of that section.

XI. OSM'S DELETION OF THE REQUIREMENT THAT ACTIVITIES THAT DISTURB THE 
 SBZ MUST COMPLY WITH WATER QUALITY STANDARDS IS AN ILLEGAL ATTEMPT TO 
             EXEMPT ACTIVITIES FROM WATER QUALITY STANDARDS

    OSM proposes to delete language in the existing rule that allows a 
variance only if surface mining activities ``will not cause or 
contribute to the violation of applicable State or Federal water 
quality standards.'' 30 C.F.R. Sec.  816.57(a)(1). This change ``is 
intended to avoid the possibility that the SBZ rule could be 
misinterpreted to supersede the CWA by prohibiting an activity because 
of water quality standards that would otherwise be authorized under the 
CWA.'' 69 Fed. Reg. at 1043. OSM does not explain how such a conflict 
could occur. As we have explained above, OSM rejected the notion of 
such a conflict in its appellate brief in Bragg.
    OSM's deletion of this language is even more perplexing in light of 
its statement in the EA that ``this proposed change would be impact 
neutral because, whether or not OSM regulations include this statement, 
an applicant or operator would still be subject to applicable Federal 
and State water quality requirements and enforcement concerning matters 
such as effluent limits, in-stream water quality standards, storm water 
run-off, and anti-degradation.'' EA, p. 23 (emphasis added). Thus, OSM 
wants to throw away its cake and eat it too. It purports to delete a 
requirement, yet advises the regulated community that it still applies.
    Regardless of what OSM says, the effect of its proposal is to imply 
that although water quality standards still apply, they will not be 
violated if valley fills are minimized. Otherwise, there is no reason 
to delete the language in the existing rule. As we show below, this 
attempted exemption violates the Clean Water Act.
    In CWA Sec. Sec.  301 and 404(t), Congress placed clear limitations 
on the placement of fill material. Pursuant to those two sections, 
Sec.  404 fills must comply with water quality standards. The placement 
of waste material that eliminates substantial portions of waters of the 
United States necessarily violates those standards, and therefore 
violates the clear intent of Congress.
    The CWA states in its very first sentence that ``[t]he objective of 
this chapter is to restore and maintain the chemical, physical, and 
biological integrity of the Nation's waters.'' 33 U.S.C. Sec.  1251 
(emphasis added). The Conference Committee described this objective as 
the ``sole purpose of the Act.'' 118 Cong. Rec. 33700 (1972). The 
Senate Report stated that ``this legislation would clearly establish 
that no one has the right to pollute and that pollution continues 
because of technological limits, not because of any inherent rights to 
use the nation's waterways for the purpose of disposing of wastes.'' S. 
Rep. No. 414, 92nd Cong., 1st Sess., p. 42 (1971). ``The use of any 
river, lake, stream or ocean as a waste treatment system is 
unacceptable.'' Id. at 7. This section ``simply mean[s] that streams 
and rivers are no longer to be considered part of the waste treatment 
process.'' 118 Cong. Rec. 33693-94 (1972) (remarks of Sen. Muskie). The 
Conference Committee stated that it ``expects [EPA and the Corps] to 
move expeditiously to end the process of dumping dredged spoil in 
water'' and to use land-based alternatives, because ``the economic 
argument alone is not sufficient to override the environmental 
requirements of fresh water lakes and streams.'' Id. at 33699.
    To implement these statutory purposes, Congress wrote several 
important provisions into the Act. In particular, ``Sec.  301(b)(1)(C) 
expressly identifies the achievement of state water quality standards 
as one of the Act's central objectives.'' Arkansas v. Oklahoma, 503 
U.S. 91, 105-06 (1992). Section 301(b)(1)(C) is designed to ensure 
compliance with these standards. PUD No. 1 v. Washington Dept. of 
Ecology, 511 U.S. 700, 712-13 & n. 3 (1994). It provides that ``[i]n 
order to carry out the objective of this Act there shall be achieved . 
. . any . . . limitation . . . necessary to meet water quality 
standards . . . established pursuant to any State law . . . or any 
other Federal law or regulation . . .'' 33 U.S.C. Sec.  
1311(b)(1)(C)(emphasis added).\3\ To carry out this statutory 
requirement, EPA's 404(b)(1) Guidelines expressly require Sec.  404 
discharges to comply with water quality standards. 40 C.F.R. Sec.  
230.10(b)(1) (``No discharge of dredged or fill material shall be 
permitted if it: (1) Causes or contributes, after consideration of 
disposal site dilution and dispersion, to violations of any applicable 
State water quality standard''). Thus, this is a ``Federal . . . 
regulation'' that must be ``achieved'' under Sec.  301(b)(1)).
---------------------------------------------------------------------------
    \3\ State water quality standards under the CWA must ``protect the 
public health or welfare, enhance the quality of water and serve the 
purposes of this chapter.'' Id., Sec.  1313(c)(2)(A).
---------------------------------------------------------------------------
    Furthermore, Congress added Sec.  404(t) of the CWA in 1977 to 
reaffirm that state water quality standards are applicable to Sec.  404 
discharges. It provides that:

          Nothing in this section shall preclude or deny the right of 
        any State or interstate agency to control the discharge of 
        dredged or fill material in any portion of the navigable waters 
        within the jurisdiction of such State, including any activity 
        of any Federal agency, and each such agency shall comply with 
        such State or interstate requirements both substantive and 
        procedural to control the discharge of dredged or fill material 
        to the same extent that any person is subject to those 
        requirements.

33 U.S.C. Sec.  1344(t) (emphasis added). The issuance of a SBZ 
variance by OSM or a primacy state is covered by this section.

    The legislative history of Sec.  404(t) fully supports this 
conclusion. ``[U]nder section 404(t) and the amendments to section 313, 
every Federal activity is subject to State and Federal procedural 
requirements, including permits, as well as substantive requirements.'' 
123 Cong. Rec. 39189 (1977) (remarks of Sen. Muskie). The ``basic 
thrust of subsection (t)'' is that ``[t]he Corps of Engineers, like any 
other Federal agency, in performing maintenance dredging or undertaking 
other activities, is to comply with State substantive and procedural 
requirements.'' Id. The intent of the 1972 CWA ``was not to exempt the 
U.S. Army Corps of Engineers or any other public or private agency from 
State water quality standards . . .'' Id.
    Valley fills that eliminate waters of the United States solely for 
the purpose of waste disposal cannot meet water quality standards. 
Water quality standards ``define[] the water quality goals of a water 
body, or portion thereof, by designating the use or uses to be made of 
the water and by setting criteria necessary to protect the uses.'' 40 
C.F.R. Sec.  130.3 (emphasis added). See also 40 C.F.R. Sec.  130.2(d) 
(water quality standards ``consist of a designated use or uses for the 
waters of the United States and water quality criteria for such waters 
based upon such uses'') (emphasis added). EPA's regulations on water 
quality standards have provided since 1983 that ``[i]n no case shall a 
State adopt waste transport or assimilation as a designated use for any 
waters of the United States.'' 40 C.F.R. Sec.  131.10(a) (emphasis 
added). EPA has stated that ``[a] basic policy of the standards program 
throughout its history has been that the designation of a water body 
for the purposes of waste transport or waste assimilation is 
unacceptable.'' 48 Fed. Reg. 51400, 51408-09 (Nov. 8, 1983).
    Valley fills that bury waters of the United States with millions of 
tons of waste cannot achieve this water quality standard. As Judge 
Haden has stated, ``valley fills are waste disposal projects so 
enormous that, rather than the stream assimilating the waste, the waste 
assimilates the stream.'' Bragg, 72 F. Supp. 2d at 662.
    This violation of water quality standards is especially clear in 
West Virginia. West Virginia has several ``designated uses'' for state 
waterbodies. These uses include public water supply, propagation and 
maintenance of fish and other aquatic life, and water contact 
recreation, among others. See 46 C.S.R. Sec.  1-6. The state water 
quality standards clearly state, however, that ``[w]aste assimilation 
and transport are not recognized as designated uses.'' 46 C.S.R. Sec.  
1-6.1.a. Also notable is that water quality standards do not allow 
``[m]aterials in concentrations which are harmful, hazardous, or toxic 
to man, animal or aquatic life.'' 46 C.S.R. Sec.  1-3.2.e. Furthermore, 
``industrial wastes. . .cause pollution and are objectionable in all 
waters of the state.'' 46 C.S.R. Sec.  1-3.1. In addition, no 
``industrial wastes'' shall cause or materially contribute to 
conditions such as ``distinctly visible. . .settleable solids,'' 
``deposits. . .on the bottom'' of streams, ``materials in 
concentrations which are harmful, hazardous or toxic to. . . aquatic 
life,'' adverse alterations of ``the integrity of the waters,'' or 
``significant adverse impact to the chemical, physical, hydrologic or 
biological components of aquatic ecosystems.'' 46 C.S.R. Sec.  1-3.2. 
``Industrial wastes'' are defined as ``any. . .solid or other waste 
substance. . .from or incidental to the development, processing or 
recovery of any natural resources. . .'' W. Va. Code Sec.  22-11-3(12). 
Accordingly, mining spoil is industrial waste pursuant to West Virginia 
law. Additionally, the act of filling a stream segment with overburden 
not only deposits waste and creates distinctly settleable solids, but 
also destroys the stream segment. Placing mining waste in streams, 
therefore, violates West Virginia water quality standards by materially 
contributing to the adverse conditions set forth in 46 C.S.R. Sec.  1-
3.2. Neither can the fills comply with the antidegradation provisions 
of the West Virginia water quality standards.
    In short, although compliance with water quality standards is a 
``central objective'' and requirement of the CWA, valley fills designed 
solely to eliminate waters of the United States and replace them with 
waste are incapable of such compliance. Evasion of a statute's core 
mandate and purpose is not a reasonable interpretation, and therefore 
is not entitled to deference. See, e.g., U.S. Army Engineer Center v. 
FLRA, 762 F.2d 409, 414 (4th Cir. 1985) (``[C]ourts must not `rubber 
stamp . . . administrative decisions that they deem inconsistent with a 
statutory mandate or that frustrate the congressional policy underlying 
a statute.''') (citation omitted); Whitman v. American Trucking 
Ass'ns., 531 U.S. 457, 481 (2001) (reversing under Chevron step two an 
EPA interpretation that ``goes beyond the limits of what is ambiguous 
and contradicts what in our view is quite clear''); Natural Resources 
Defense Council v. Daley, 209 F.3d 747, 753 (D.C. Cir. 2000) (rejecting 
under Chevron step two an agency interpretation that ``diverges from 
any realistic meaning'' of the statute).
    OSM is trying to use its SMCRA rulemaking power illegally to 
override the CWA. SMCRA does not preempt the Clean Water Act. Section 
702(a)(3) of SMCRA provides that nothing therein ``shall be construed 
as superseding, amending, modifying, or repealing the . . . Clean Water 
Act, the State laws enacted pursuant thereto, or other Federal laws 
relating to the preservation of water quality.'' 30 U.S.C. ' 
1292(a)(3). Thus, this savings clause specifically preserves the CWA's 
prohibition against waste assimilation. If SMCRA were construed to 
authorize waste assimilation in streams, it would not be consistent 
with, and would be preempted by, the CWA.
    For these reasons, the proposed rule should be withdrawn.
            Sincerely,
                                           James M. Hecker,
                                                    Public Justice.
                                          Joseph M. Lovett,
                                Appalachian Center for the Economy 
                                               and the Environment.
          Counsel for West Virginia Highlands Conservancy, 
                                              Sierra Club, 
                      Ohio Valley Environmental Coalition, 
                                Coal River Mountain Watch, 
                                  and Waterkeeper Alliance.

                                               Steve Roady,
                                                      Earthjustice.
    Attachments to WVHC, Sierra Club, Earthjustice, OVEC, CRMW, and 
    Waterkeeper Alliance Comments on Proposed Rule on Excess Spoil 
                    Minimization/Stream Buffer Zones
          1. Brief for the Federal Appellants, 4th Cir., No. 99-2683, 
        April 17, 2000 (excerpts).
          2. Federal Appellants' Opposition to the Motion of the 
        Intervenor-Defendants to Strike the Brief of the Federal 
        Appellants and to Dismiss Appeal No. 99-2683, p. 2.
          3. Letter dated April 17, 2000 from Kathrine Henry, Acting 
        Director, OSM and John D. Leshy, Solicitor, U.S. Department of 
        the Interior, to Michael C. Castle, Director, West Virginia 
        Division of Environmental Protection.
          4. Preliminary Draft EIS on MTM/VF in Appalachia, pp. ES-6, 
        IV-1.
          5. 3/25/02 Email from Cindy Tibbott re: Purpose & need/
        alternatives write-ups, with Attachment: I. Purpose and Need 
        for Action and IV. Alternatives.
          6. 6/14/02 Email from Mike Robinson re: Agenda and Handout 
        for 6/18 SES Issue, with Attachment: Mountaintop Mining/Valley 
        Fill Environmental Impact Statement, Senior Executive Issue 
        Resolution Meeting, Interior South Building Room 332, June 18, 
        2002, Proposed Agenda; Handout for SES/Steering Committee Issue 
        Resolution Meeting, Refresh on Teleconference Meeting 
        Decisions, May 21, 2002.
          7. 10/5/01 Letter from J. Steven Griles to CEQ, OMB, EPA, COE 
        re: Mountaintop Mining/Valley Fills Issues.
          8. 6/19/02 Email from William Hoffman re: out of office, with 
        Attachment: Proposed EIS Alternative Framework.
          9. 6/26/02 Email from Mike Robinson re: Mock-up of Proposed 
        new Alternative Framework, with Attachment: Mountaintop Mining/
        Valley Fill EIS Alternative Framework (June 26, 2002 v.).
          10. Email dated September 20, 2002 from Mike Robinson, OSM, 
        re: Executive Conference Call Agenda--9/23/02, 9-10 am, with 
        Attachment: MTM/VF EIS Executive Meeting Agenda, September 23, 
        2002 Conference Call Letter dated July 12, 1999 from Michael V. 
        Shingleton, Asst. Chief Coldwater Management, West Virginia 
        Division of Natural Resources, to Tony Barnett, West Virginia 
        Division of Environmental Protection.
          11. 8/15/02 Email from Gregory Peck re: Executive Committee 
        Discussion, with Attachment: Alternatives Matrix for Draft MTM/
        VF PEIS.
          12. October 9, 2001 Letter from EPA to U.S. Army Corps of 
        Engineers re NWP 21.
          13. July 2, 2001 Letter from FWS to U.S. Army Corps of 
        Engineers re NWP 21.
          14. Letter dated September 20, 2001, from Jeffrey K. Towner, 
        Field Supervisor, West Virginia Field Office, U.S. Fish and 
        Wildlife Service, to Colonel John D. Rivenburgh, District 
        Engineer, Huntington District, re: comments on 2002 NWPs.
          15. Letter dated October 5, 2001 from The University of 
        Georgia, Institute of Ecology, to Headquarters, U.S. Army Corps 
        of Engineers, re: comments on 2002 NWPs.
          16. Trial Transcript, OVEC v. Bulen, Civil No. 3:05-784 
        (S.D.W.Va.), October 2006 (excerpts).
          17. Expert Report of Douglas P. Pflugh in OVEC v. Bulen, May 
        16, 2006, Summary, pp. 1-2.
          18. FEIS, Spruce Mine No. 1, pp. 2-98, 2-180 (September 
        2006).
          19. Letter dated January 16, 2004 from David Densmore, U.S. 
        Fish and Wildlife Service, to Allyn Turner, West Virginia 
        Department of Environmental Protection, re: Selenium Survey in 
        southern West Virginia streams.
          20. Letter dated July 13, 2004 to Ginger Mullins, Chief, 
        Regulatory Branch, Huntington District, ACOE. From Thomas R. 
        Chapman, Field Supervisor, USFWS Elkins, WV, Field Office. Re: 
        Public Notice 200400604 and EID, Coal Mac, Inc., Phoenix No. 4 
        Surface Mine.
          21. April 28, 2006 powerpoint presentation: DEP Selenium 
        Study, Background and Progress, available at.
          22. A. Dennis Lemly, ``Selenium in Aquatic Ecosystems: A 
        Guide for Hazard Evaluation and Water Quality Criteria,'' 
        Springer 2002, p. 31.
          23. July 9, 2004 FWS Letter to U.S. Army Corps of Engineers 
        re: Hollow Mountain Project.
          24. Report by A. Dennis Lemly, Ph.D, ``Recommendations for 
        Pre-Mine Assessment of Selenium Hazards Associated with Coal 
        Mining in West Virginia,'' January 5, 2004.
          25. Edmonds and Loucks, ``Woody Establishment Patterns 
        Following Mountaintop Removal in the Coal River Valley,'' 
        available at .
          26. Weakland and Wood, ``Cerulean Warbler (Dendroica Cerulea) 
        Microhabitat and Landscape-level Habitat Characteristics in 
        Southern West Virginia in Relation to Mountaintop Mining/Valley 
        Fills,'' Final Project Report, December 2002, p. 1.
          27. Email dated December 23, 2002 from John Forren, EPA 
        Region 3, re: Comments on Draft EIS for MTM/VF, with 
        Attachment: Comments on the Draft EIS for MTM/VF Coal Mining 
        (Dec 2002) from ESD, OEP, Wheeling Staff 12/20/02.
          28. 4/21/03 Email from David Rider re: Ch 14 edits, with 
        Attachment: DEIS, Ch. IV.J., Threatened and Endangered Species, 
        pp. IV.J-1 to IV.J-2.
          29. Email dated January 7, 2003 from Steve Neugeboren, EPA, 
        re: MTM legal issues, with Attachment: OGC water law office 
        comments on mountaintop mining EIS 12/26/02.
          30. USGS, Water-Data Report 2006, 380930082033101 Upper Mud 
        River Reservoir near Palermo, WV.
                                 ______
                                 
                               National Mining Association,
                                 Washington, DC, December 14, 2007.
Hon. Jeff Bingaman,
Chairman, Senate Energy and Natural Resources Committee, Senate Dirksen 
        304, Washington, DC.
    Dear Mr. Chairman: Thank you for the opportunity to appear before 
the Senate Committee on Energy and Natural Resources on November 13, 
2007 to provide testimony on ``The Surface Mining Control and 
Reclamation Act of 1977: Policy Issues Thirty Years Later.'' This 
letter provides NMA's responses to the questions you posed after the 
hearing.
            Sincerely yours,
                                      Harold P. Quinn, Jr.,
                         Senior Vice President and General Counsel.
              Responses to Questions From Senator Bingaman
                          mountaintop removal
    Question 1a. Please describe this technology. Are there alternative 
means of mining this coal?
    Answer. ``Mountaintop removal'' is one of several types of surface 
mining operations in the mountainous terrain of Central Appalachia. As 
a general matter, mountaintop removal is an adaptation of the mine 
planning, sequencing and equipment for area mining used in other 
regions to the steep slope mountainous terrain of Central Appalachia. 
The Surface Mining Control and Reclamation Act (SMCRA), which contains 
specific provisions governing mountaintop removal, describes these 
operations as those that remove an entire coal seam or seams running 
through the upper fraction of a mountain, ridge, or hill. These mines 
obtain a variance from SMCRA's requirement to return the land to its 
approximate original contour in order to create a more level or a 
rolling topography that will support industrial, commercial, 
residential, agriculture or public uses after mining. SMCRA Sec.  
515(c)(2)-(3).
    An assessment of whether economic and technologically feasible 
alternatives to mountaintop removal operations are available for mining 
coal in mountainous terrain requires an evaluation of many physical, 
technological and economic factors including the topography, geology, 
surface access, number and thickness of the coal seams, the depth of 
the coal seams, capital and operating costs of different methods, and 
the forecasted price of the product over the life of the mine.
    It should be noted that as it relates to choices among different 
surface mining methods, all surface mines in the mountainous terrain 
generate excess spoil requiring permanent placement in excess spoil 
fill structures commonly referred to as either valley or head-of-hollow 
fills. This is true for surface mines that will restore the land to its 
approximate original contour and those surface mines that qualify for a 
variance in order to create land suitable to support various post 
mining land uses in mountainous terrain.
    In order to mine the coal by surface mining methods, the rock 
strata, or overburden, overlying the coal seams must be broken up into 
fragments and excavated. When rock is broken and moved, it expands, or 
swells. As a result, the volume of material excavated is greater than 
the volume of the overburden in its original location. The amount of 
this expansion (referred to as the swell or bulking factor) can range 
from 15 percent to 40 percent depending upon the geology. Surface mines 
with approximate original contour variances will generate even more 
excess spoil to accommodate the preparation of a final surface 
configuration suitable to support certain post mining land uses. SMCRA 
recognizes that in these situations all of the overburden removed in 
the mining process cannot be returned to the mined area, and prescribes 
requirements for the design, location and construction of excess spoil 
fills. SMCRA Sec.  515(b)(22).
    Question 1b. How much acreage has been impacted by mountaintop 
removal and valley fill?
    Answer. We do not have specific information about acres within 
permits for mountaintop removal operations. However, according to a 
multi-agency study, surface mines (mountaintop removal and other 
surface mines with excess spoil fills) in eastern Kentucky, Tennessee, 
Virginia, and southern West Virginia have occurred on approximately 
400,000 acres over the last ten years--about 3 percent of the 12 
million acres in the study area. Mountaintop Mining/Valley Fills in 
Appalachia, Draft Programmatic Environmental Impact Statement (2003). 
It is important to note that these lands are reclaimed and restored to 
a condition that supports post-mining uses.
    Question 1c. How many of the future mine sites in Appalachia will 
rely on mountaintop removal and valley fill?
    Answer. We cannot forecast how many mines in the future will use 
mountaintop removal mining techniques. However, all surface mines and 
underground mines in central Appalachia will rely upon valley and other 
fill structures to permanently store excess spoil, underground mine 
development material and coal processing waste. Several studies have 
documented that restrictions placed upon the use of valley or other 
fills in connection with surface mining would have devastating economic 
consequences and reduce coal production at mines by as much as 90 
percent. Sandberg, Doss, et al., ``The Mountaintop EIS Technical 
Report'' (2000); Marshall University Center for Business and Economic 
Research, ``Coal Production Forecasts and Economic Impact Simulations 
in Southern West Virginia'' (2000).
    As I explained in my testimony, since SMCRA's enactment 30 years 
ago the general trend nationwide has been toward fewer but 
substantially larger coal mines. This trend is a product of both market 
forces and public policies that demand greater efficiencies in order to 
compete.
    Question 1d. What are the advantages and disadvantages (economic 
and otherwise) of mountaintop removal and valley fill?
    Answer. Mountaintop removal operations offer economic, 
environmental and public benefits.
    Coal can be mined in many instances where underground methods would 
not be feasible because of relatively thin seams or unsafe roof 
conditions. These operations have a greater coal recovery rate since 
they mine sometimes as many as eighteen coal seams. These high resource 
recovery rates advance SMCRA's goal for maximum utilization and 
conservation of the coal resource while minimizing the potential for 
future disturbance of the reclaimed area for coal mining. SMCRA Sec.  
515(b)(1).
    The use of engineered valley fills avoids the problems associated 
with some pre-SMCRA mining that created steep, unconsolidated outslopes 
of spoil material prone to slides, erosion and prolonged sedimentation 
of streams.
    Many mountaintop mining operations occur on lands previously mined 
before SMCRA. The mountaintop mining operations eliminate old 
highwalls, spoil piles and other conditions left by these abandoned 
mines at no cost to the Abandoned Mined Land Fund.
    The rugged terrain of this region has often thwarted economic 
development opportunities. As Justice Powell observed:

          Bituminous coal . . . is found in a region marked by steep 
        mountain slopes , sharp ridges, massive outcrops of rock, and 
        narrow valleys--conditions that severely limit alternative uses 
        of the land. The requirement in [SMCRA] that steep-slope areas 
        be restored approximately to their original contours seems 
        particularly unrealistic [and] often would diminish rather than 
        increase the land's worth.

    Hodel v. Virginia Surface Mining & Reclamation Assn., 452 U.S. 264, 
306-307 (1981) (Powell, J., concurring).
    Mountaintop mining offers a unique opportunity to leave land 
suitable for commercial, residential, recreational, agricultural and 
other uses that would otherwise remain unavailable. As part of my 
testimony, I provided the committee with photographs depicting the 
realization of these opportunities including housing developments, 
airports, farms, and wildlife areas.

                     STREAM BUFFER ZONE RULEMAKING

    Question 2. Does the National Mining Association support the 
proposed modifications to the stream buffer zone rule? Why or why not?
    Answer. NMA supports the Office of Surface Mining's proposal to 
clarify the stream buffer zone regulation in order to avoid future 
misapprehension about its proper application to a wide range of surface 
and underground coal mining activities nationwide. The proposal 
clarifies the rule in a manner that is consistent with 30 years of 
implementation by every Administration since the rule was first 
promulgated by the Office of Surface Mining. Such a clarification is 
necessary to avoid misinterpretations and disputes that would disrupt 
the production of coal essential to our Nation's energy supply and cost 
coal miners and other employees their high-wage jobs and benefits.
    Again, NMA appreciates the opportunity provided to appear and 
deliver testimony to the committee about the coal industry's experience 
over thirty years since SMCRA's enactment.
                                 ______
                                 
       Responses of Bill Banig to Questions From Senator Domenici

    As Mr. Wahlquist points out, domestic coal production has increased 
by 67% and gone from 3rd place in U.S. energy production to a solid 1st 
since SMCRA passed. At the same time, unlike coal or natural gas, coal 
is cheaper today than it was 30 years ago.
    This impressive contribution to our nation's energy supply has 
largely shown up on the electric grid. While this role has expanded 
coal production and created good jobs, additional opportunities exist 
for this abundant, affordable, and domestic resource.
    Question 1. If greenhouse gas emissions are no greater than those 
associated with our existing fuel supply, does the UMWA support the 
manufacture transportation fuels from our nation's coal reserves?
    Answer. The UMWA is a member of the Coal to Liquid Coalition and 
does support the manufacture of transportations fuels from our domestic 
coal reserves. The U.S. has 250 years supply of recoverable coal 
reserves. For energy independence and national security we should rely 
on our domestic coal reserves, instead of some of the most unstable 
regions of the world for our transportation fuels.
    Question 2. America's ability to meet growing energy needs with 
domestic resources like coal, wind, nuclear, and natural gas is only as 
good as our capacity to train the miners, geologists, engineers, and 
other professionals that make those projects a reality. What role do 
you believe the federal government should play in preparing the next 
generation of Americans to do this work?
    Answer. With the turndown in the U.S. domestic coal industry in the 
1980's and 1990's, the coal industry missed an entire generation of 
coal miners coming into the industry. Today many of our miners are 
approaching retirement age. The federal government should provide 
resources to help train the next generation of miners. One such program 
is the United Mine Workers of America's Career Center (UMWACC). The 
UMWACC has developed a training program for potential new miners 
entering the mining industry.
        Response of Bill Banig to Question From Senator Salazar
    Question 1. Given the rising costs of healthcare, the United Mine 
Workers are to be commended for working hard to reduce health care 
costs. Have you been able to work with other healthcare systems, like 
the Veteran's Affairs system to coordinate providing care to miners who 
are also veterans?
    Answer. The UMWA Funds does not have a direct relationship with the 
Veteran's Administration to coordinate benefits, but does have such 
relationships with the Department of Health and Human Services' Center 
for Medicare and Medicaid Services (CMS) and with the Department of 
Labor's Black Lung program. The UMWA Funds was invited this past April 
to share its experiences and programs with the Task Force on the Future 
of Military Health Care, a task force appointed by the Secretary of 
Defense pursuant to the 2007 Defense Authorization Act. A copy of that 
presentation, which by request of the Task Force focused on 
prescription drug programs, is attached.*
---------------------------------------------------------------------------
    * Document has been retained in committee files.
---------------------------------------------------------------------------
                                 ______
                                 
     Responses of Joanna Prukop to Questions From Senator Bingaman

                          NON-COAL RECLAMATION

    I am pleased to hear that overall, the experience for New Mexico 
with implementation of SMCRA has been positive. I am concerned, 
however, that due to an interpretation of the 2006 AML Amendments, some 
funds may now not be available for non-coal reclamation.
    Question 1a. What role does the Abandoned Mine Land program under 
SMCRA play in New Mexico?
    Answer. The SMCRA Abandoned Mine Land program is the core of New 
Mexico's efforts to address the hazards associated with abandoned 
mines, particularly public safety hazards. The AML program within the 
New Mexico Energy, Minerals and Natural Resources Department (EMNRD) is 
100% funded through SMCRA. Over the years, various state agencies, 
including EMNRD, have received small grants from other sources to 
address some abandoned mine issues. But SMCRA funding is the only 
regular source of funding.
    Question 1b. How important is it that funding be available for non-
coal reclamation?
    Answer. The primary threat to public safety from abandoned mines in 
New Mexico is at non-coal sites. Almost all of the fatalities and 
serious injuries in recent decades have been at abandoned non-coal 
mines. The overwhelming majority of abandoned mine hazards in New 
Mexico are at non-coal sites (see question # 2 below). As urban growth 
continues and recreation use expands, more people are coming into 
contact with abandoned mining areas once considered remote.
    In recent years, New Mexico has balanced the need to complete work 
on abandoned coal mine sites with the need to address high priority 
hazards at abandoned non-coal mines. Over the past six years, New 
Mexico has spent 55% of its AML construction costs on coal projects and 
45% on non-coal projects. Given the predominance of public heath and 
safety threats from non-coal sites, we need to maintain the flexibility 
to allocate AML funds to address these hazards.
    Question 1c. How long has New Mexico used AML funds for non-coal 
work?
    Answer. New Mexico's AML program began in 1981 and work on the 
first non-coal project began in 1983.

                          NON-COAL RECLAMATION

    Question 2a. Does New Mexico have an inventory of abandoned mines 
in the state?
    Answer. New Mexico did complete an inventory of abandoned coal 
mines, but has never completed an inventory of abandoned non-coal 
mines. We have information on various mining areas from prior projects 
and from other state and federal agencies that have examined various 
areas of the state.
    Question 2b. If so, how many are there?
    Answer. We estimate that there are approximately 15,000 abandoned 
mine openings located in about 800 mining sites. We estimate that about 
95% of these openings are from non-coal mining.

                                URANIUM

    Your testimony specifically underscores the importance of AML funds 
being available for reclamation at abandoned uranium.
    Question 3a. What are the types of problems associated with 
abandoned uranium mines in New Mexico?
    Answer. Abandoned uranium mines present a variety of problems from 
dangerous mine openings to unreclaimed mine waste piles exposing the 
public to radiological and other contaminants to contamination of 
ground and surface water from mining and milling activity. AML funds 
would be used primarily in New Mexico to safeguard dangerous mine 
openings and reclaim contaminated areas associated with the mines.
    Question 3b. Do you have information on how many abandoned uranium 
mine sites exist in New Mexico?
    Answer. New Mexico is currently inventorying all abandoned and 
inactive uranium mines with past production. At this time, we have 
found 137 formerly producing uranium mines with no record of 
reclamation. We estimate over 400 additional mine hazards at locations 
where no production was recorded.

                           REGULATORY GRANTS

    I understand from your testimony and that of Mr. Conrad that an 
ongoing problem is the level of funding for grants to the states to 
conduct their regulatory programs under title V of SMCRA.
    Question 4. Can you please describe for us the work of the state 
under title V and the issues associated with this shortfall in funding?
    Answer. New Mexico received approval for its Title V program in 
1980 and implements all elements of SMCRA. New Mexico permits all 
surface coal mining operations not on Indian lands. For each operation, 
there are monthly inspections followed by any necessary enforcement. 
Staff members conduct reviews of new permit applications, financial 
assurance proposals, bond release applications, and permit renewals, 
modifications and revisions. Permits are also reviewed at regular 
intervals and at annual reports. EMNRD staff are all trained to conduct 
inspections as well having particular expertise over various elements 
of mine operation and reclamation, including hydrology, geology, 
vegetation, soils, engineering and cultural resources. The Title V 
program, working with the mine operators, has developed electronic 
permits and an integrated data base management system and Geographic 
Information System; each system requires an administrator to facilitate 
system development and maintenance. EMNRD is also communicating with 
the public, federal land managers, Native American tribes and other 
agencies on various issues connected with mine operation and 
reclamation.
    Prior to this year, New Mexico has weathered previous shortfalls in 
federal funding by creating efficiencies through the use of technology 
and by using other state funding sources to cover costs associated with 
the Title V program. This year, however, we are planning to transfer 
two positions to other programs due to funding shortages. This will 
result in a loss of both personnel to conduct inspections and permit 
reviews, and of expertise in evaluating mining operation and 
reclamation. The State will be at risk of missing or delaying required 
inspections, and delaying enforcement and permitting actions.

                         BUFFER ZONE RULEMAKING

    Question 5a. Does the State of New Mexico support the proposed 
changes to the Office of Surface Mining Reclamation and Enforcement's 
buffer zone rule (72 Fed. Reg. 48890, August 24, 2007)?
    Answer. Because the buffer zone rule has not previously impacted 
mine reclamation in New Mexico, the State has not taken a strong 
position on this rule change. However, New Mexico does have concerns 
with the proposed changes. Generally, we are concerned that the changes 
must meet the purpose of SMCRA to ``assure that surface coal mining 
operations are so conducted as to protect the environment''. 
Specifically, we are concerned that the proposals to use the term 
``waters of the U.S.'' and to require alternatives analyses for excess 
spoil fills will create great confusion and uncertainty. In particular, 
the term ``waters of the U.S.'' could, depending on how you interpret 
Supreme Court opinions, greatly expand the use of the buffer zone rule 
in New Mexico with little benefit for the environment.
    Question 5b. Would you prefer to keep the current rule in place?
    Answer. We would prefer the current rule to an amended rule that 
creates confusion and uncertainty.
                                 ______
                                 
    Responses of Brent Wahlquist to Questions From Senator Bingaman

    Question 1a. Mountaintop Removal--How widespread is mountaintop 
removal mining? How many acres have been affected?
    Answer. In estimating the extent of mountaintop removal mining, we 
must first note that the term mountaintop removal is subject to various 
interpretations. ``Mountaintop removal mining'' (MTR) is a specific 
type of mining authorized in section 515(c) of the Surface Mining 
Control and Reclamation Act (SMCRA), ``where the 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 overburden and 
creating a level plateau or gently rolling contour...'' [30 USC 
1265(c)(2)]. It is a type of mining authorized under SMCRA for which 
restoration of the mined area to the approximate original contour (AOC) 
is not required. While recognizing the economic necessity to allow MTR 
operations in Appalachia, Congress also spelled out conditions to 
ensure that the practice would be limited to situations where the 
reclamation would result in specific and beneficial postmining land 
uses.
    Although MTR has a specific meaning under SMCRA, the public tends 
to view the practice more broadly to include any steep-slope mining in 
mountainous terrain. Further, OSM has adopted a broader term--
``mountaintop mining'' (MTM)--to encompass various mining techniques 
involving the construction of valley fills. MTM includes MTR and all 
types of mining in steep-slope terrain that result in the construction 
of fills, whether or not the mined-out area is reclaimed to AOC. MTM 
techniques include contour mining, area mining, and combinations of all 
of these methods. Sometimes these different techniques are used on 
various portions of the same minesite. Thus, databases segregating 
information on MTR acreage from overall permitting information are not 
maintained or available from the states or OSM.
    With this explanation as a backdrop, we have some data for the 
broader category of MTM permits issued over a ten-year period (1992-
2002) in eastern Kentucky, northwest Virginia, southwestern West 
Virginia and a small portion of Tennessee. A study, done as part of a 
programmatic Environmental Impact Statement completed in 2005 by the 
U.S. Environmental Protection Agency, U.S. Army Corps of Engineers, 
U.S. Fish and Wildlife Service, OSM, and the State of West Virginia, 
reported that approved MTM permits covered approximately 404,000 
acres--3.3% of the 12,000,000 total acres in the study area. [For 
additional information, see http://www.epa.gov/region3/mtntop/ and 
http://www.epa.gov/region3/mtntop/pdf/Appendices/
Appendix%20I%20Cumulative%20Impact%20Study/Dec02%20report%20text/
Report.pdf].
    Question 1b. How many valleys are typically affected by one mining 
operation? (For example, one of the court cases on this subject 
describes a mining operation that was authorized to construct valley 
fills in 27 valleys.)
    Answer. There is no ``typical'' number of valley fills constructed 
per mining operation. The size, number, and location of valley fills 
are based on site-specific conditions. However, based on available 
information, a mining operation with 27 valley fills would be very 
rare.
    We queried a database developed as background for a chapter of the 
``Mountaintop Mining/Valley Fill'' EIS mentioned above. The data, which 
includes over 1100 valley fills permitted from 1985-1998 in West 
Virginia, provides an idea of the number of valley fills associated 
with MTM operations. In this sample, the majority of permits (80% of 
404 permits) issued from 1985-1998 had 1 to 3 valley fills; 15% (60 
permits) had 4-6 valley fills; 4% (16 permits) had 7-10 fills; and 1% 
(4 permits) had more than 10 fills, the largest number of fills for any 
single permit being 24.
    From 1999 to 2001, which is the period for the available data that 
follows the beginning of MTM litigation, there were 31 permits (76% of 
a total of 41 permits issued) with 1-3 fills; 8 permits (20%) with 4-6 
fills; and 2 permits (5%) with 7-10 fills. Additional data compiled by 
OSM in Kentucky for the past eight years show an average of four valley 
fills per MTM permit (662 valley fills in 155 MTM permits issued from 
1999 to the present).
    Question 2. Mountaintop Removal--SMCRA (including section 515) 
imposes specific requirements with respect to water protection and 
reclamation to approximate original contour. How do you reconcile these 
requirements of SMCRA with mountaintop mining and the authorization of 
valley fills that cover streams?
    Answer. SMCRA requires OSM to strike a balance between protection 
of the environment and the Nation's need for coal as an essential 
source of energy. [30 USC 1202(f)]. Congress recognized that mining 
activities will cause temporary disruptions to water quality and 
quantity on the minesite. OSM regulations, at 30 CFR 816.41(a), 
implementing SMCRA section 515(b)(10) [30 USC 1265(b)(10)], require 
that coal mining minimize hydrologic impacts onsite and prevent 
material damage to the hydrologic balance offsite. Otherwise, mining 
would not be feasible.
    Excess spoil disposal, including construction of valley fills, is 
governed by SMCRA section 515(b)(22), which specifically allows the 
placement of excess spoil in areas containing streams, provided proper 
underdrains are constructed. In steep-slope areas, it is physically 
impossible to return all spoil to the mined area, both because of the 
swell factor associated with removal of the overburden and the need to 
ensure that backfilled slopes are stable.
    Question 3. Mountaintop Removal and Water--The Surface Mining Act 
requires that in granting permits, the permitting authority must ensure 
that ``no damage will be done to natural watercourses.'' How do you 
reconcile these requirements of SMCRA with the authorization of valley 
fills that cover streams?
    Answer. The SMCRA language [from section 515(c)(4)(D)] quoted in 
the question is applicable only to MTR mining, which is only one of the 
various types of mining operations that may require valley fills for 
the disposal of excess spoil. MTR, by its very nature, generates more 
excess spoil than MTM sites restored to AOC. Since December 1977, OSM's 
regulations have recognized that excess spoil would be created by MTR, 
and have authorized its disposal in valley fills, including those that 
might extend into intermittent or perennial streams. At 72 FR 48893, 
the preamble to our proposed excess spoil/buffer zone rule explains 
this provision as follows:

          The regulations implementing this provision clarify that the 
        prohibition applies only to natural watercourses ``below the 
        lowest coal seam mined.'' See 30 CFR 824.11(a)(9). However, 
        section 515(c)(4)(E) of the Act specifies that ``all excess 
        spoil material not retained on the mountaintop shall be placed 
        in accordance with the provisions of subsection (b)(22) of this 
        section.'' By including this proviso, Congress recognized that 
        not all excess spoil generated by mountaintop removal 
        operations could be retained on benches or placed within the 
        mined-out area. And by cross-referencing section 515(b)(22), 
        Congress authorized placement of excess spoil from mountaintop 
        removal operations in natural watercourses, provided all 
        requirements of section 515(b)(22) are met. As discussed in 
        Part II of this preamble, in the steep-slope terrain of central 
        Appalachia, excess spoil typically can most feasibly be placed 
        in valley fills.

    OSM is not proposing to amend the regulations implementing section 
515(c)(4)(D), and those regulations continue in effect.
    Question 4a. Mountaintop Removal and Water--I understand that SMCRA 
requires that surface coal mining operations be conducted so as to 
prevent, ``to the extent possible using the best technology currently 
available'' contributions of suspended solids to streamflow or runoff 
outside the permit area. Another provision requires that ``to the 
extent possible using the best technology currently available,'' 
surface and coal mining operations must minimize disturbances and 
adverse impacts of the operation on fish, wildlife, and related 
environmental values. Is it the position of the Administration that 
using valley fills that inundate miles of stream is the ``best 
technology currently available''?
    Answer. The application of best technology currently available 
(BTCA) to the extent possible as mandated by SMCRA does not preclude 
placement of excess spoil or refuse impoundments in intermittent or 
perennial streams. Excess spoil and coal waste disposal are necessary 
aspects of coal mining operations. There is an extensive discussion in 
the preamble to OSM's 2007 proposed excess spoil minimization/buffer 
zone rule on the application of BTCA and the phrase ``to the extent 
possible'' [72 FR 48911-3].
    The requirement in SMCRA section 515(b)(10)(i) to prevent 
contributions of suspended solids applies to stream flow and runoff 
outside the permit area. However, excess spoil disposal occurs within 
the permitted area, and thus is not prohibited by section 
515(b)(10)(i). SMCRA requires that BTCA related to protection of fish, 
wildlife, and related environmental values must minimize disturbances 
and adverse impacts to the extent possible. However, SMCRA does not 
require that these impacts be prevented. The purposes of SMCRA include 
striking a balance between protection of the environment and the 
Nation's need for coal as an essential source of energy. [30 USC 
1202(f)]. Therefore, the minimization requirement does not extend to 
prohibiting fill construction in stream headwaters.
    Question 4b. Don't valley fills that cover perennial and 
intermittent streams by definition adversely affect water quality and 
quantity and other environmental resources of the stream?
    Answer. Covering streams with excess spoil or coal mine waste does 
not necessarily adversely affect water quality or quantity downstream 
of the fill and outside the permit area. In fact, flows from the toe of 
an excess spoil fill are often more consistent (less seasonal variation 
in quantity) and of higher overall quality than flows preceding 
construction of the fill. While fill construction in streams may have 
an adverse impact on environmental resources in the segment of stream 
that is covered, SMCRA only requires minimization of that impact to the 
extent possible. One purpose of our proposed excess spoil rule changes 
is to clarify how the requirement for minimization to the extent 
possible is to be applied.
    Question 4c. How can valley fills that cover such streams be 
permitted?
    Answer. Valley fills are authorized by SMCRA at section 515(b)(22) 
and 30 CFR 816.71-74 and the Clean Water Act 404 program. Beginning 
with the interim program regulations first promulgated in December 1977 
and the permanent program regulations first promulgated in March 1979, 
SMCRA regulations have always authorized ``valley fills'' that cover 
water courses, wet weather seeps and springs, so long as appropriate 
underdrains are provided. By definition, channel flow from a wet 
weather seep is an intermittent stream, and channel flow from a spring 
is a perennial stream. The U.S. Court of Appeals for the Fourth Circuit 
cited section 515(b)(22) as the basis for its statement that, ``it is 
beyond dispute that SMCRA recognizes the possibility of placing excess 
spoil material in waters of the United States even though those 
materials do not have a beneficial purpose.'' Kentuckians for the 
Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 443 (4th Cir. 2003).
    At 72 FR 48893, the preamble to OSM's 2007 proposed excess spoil 
minimization/ buffer zone rule contains a section that further explains 
this matter:

          Section 515(b)(22)(D) provides that sites selected for the 
        disposal of excess spoil must ``not contain springs, natural 
        water courses or wet weather seeps unless lateral drains are 
        constructed from the wet areas to the main underdrains in such 
        a manner that filtration of the water into the spoil pile will 
        be prevented.'' In adopting this provision, Congress could have 
        chosen to exclude perennial and intermittent streams (or other 
        waters) from the scope of ``natural water courses,'' but it did 
        not do so. In addition, the fact that this provision of the Act 
        authorizes disposal of excess spoil in areas containing springs 
        and seeps further suggests that Congress did not intend to 
        prohibit placement of excess spoil in perennial or intermittent 
        streams. Springs and seeps constitute groundwater discharges. 
        To the extent that those discharges provide intermittent or 
        continuous flow in a channel, they are included within the 
        scope of our definitions in 30 CFR 701.5 of ``intermittent 
        stream'' and ``perennial stream,'' respectively. The definition 
        of ``intermittent stream,'' which is based upon technical 
        literature, includes any ``stream or reach of a stream that is 
        below the local water table for at least some part of the year, 
        and obtains its flow from both surface runoff and ground water 
        discharge.''

    Question 5a. Mountaintop Removal and Approximate Original Contour 
Standard--Section 515(b) of SMCRA requires mine sites to be reclaimed 
to their ``approximate original contour'' but allows for variances. In 
addition, Office of Surface Mining guidance does not require 
``elevation'' to be taken into account in creating approximate original 
contour. How is mountaintop mining consistent with this approximate 
original contour standard in SMCRA?
    Answer. Mountaintop mining operations permitted under SMCRA section 
515(c) are exempt from approximate original contour (AOC) restoration 
requirements. SMCRA section 515(c)(2). Variances from AOC are also 
permissible for other types of MTM operations, provided land use and 
other standards are attained. For MTM sites where reclamation to AOC is 
required, elevation is taken into account as an aspect of contour, 
under OSM's guidance. (OSM's Directive INE-26, which guides OSM 
inspectors in evaluating AOC restoration and has been in effect for 
over 20 years.) Further, beginning almost 10 years ago, OSM worked with 
West Virginia and other states to clarify their AOC criteria and 
procedures. Mountaintop mining operations that are permitted under 
criteria other than section 515(c), and therefore are not exempt from 
AOC requirements, must achieve AOC, and must be consistent with the 
SMCRA definition:

          Approximate original contour means that surface configuration 
        achieved by backfilling and grading of the mined area so that 
        the reclaimed area, including any terracing or access roads, 
        closely resembles the general surface configuration of the land 
        prior to mining and blends into and complements the drainage 
        pattern of the surrounding terrain, with all highwalls and 
        spoil piles eliminated; water impoundments may be permitted 
        where the regulatory authority determines that they are in 
        compliance with section 515(b)(8) of this Act;

    SMCRA Sec.  701(2).
    Question 5b. Isn't restoring elevation implicit in any requirement 
for reclaiming to the approximate original contour?
    Answer. Approximating the original elevation is implicit in 
restoring AOC. As stated in OSM's Directive INE-26 on AOC, ``The 
anticipated postmining topography must be determined in the permitting 
process with typical cross section or contour maps depicting both the 
premining and anticipated postmining slopes with sufficient clarity and 
detail to enable a comparison to determine if AOC has been achieved.''
    The permitting process includes procedures for public participation 
and review of agency decisions should there be disputes over whether 
AOC will be achieved through the proposed reclamation plan.
    OSM's Directive INE-26 goes on to state, ``AOC is achieved through 
a reasonable, but not necessarily exact, rendering of the approved 
postmining topography.''
    Question 6. Mountaintop Removal and Environmental Impacts of Coal--
In recent years, we have become more aware of the environmental costs 
of our reliance on coal for the production of energy--whether this be 
impacts on land and water, effects on air quality, and most recently, 
contributions to climate change. What can OSM do to reduce the costs of 
mountaintop mining and valley fills?
    Answer. One purpose of the August 24, 2007, proposed rule is to 
reduce the environmental impacts of excess spoil disposal. OSM has also 
addressed some of these concerns through cooperative efforts with State 
and Federal regulators.  Cooperative efforts with the Appalachian 
States to address concerns include the following:

   Guidance was developed on approximate original contour (AOC) 
        to ensure the maximum amount of spoil is returned to the mined 
        area.
   Guidance was developed for allowable postmining land uses to 
        ensure that variances from AOC authorized by the SMCRA are 
        properly applied.
   Inspection techniques for valley fill construction 
        requirements have been developed to ensure stability of fills.
   The Appalachian Regional Reforestation Initiative was 
        established to encourage returning mine land to productive 
        hardwood forests and to address forest fragmentation. Proper 
        forest reclamation sequesters carbon and reduces peak flows 
        that contribute to flooding.
   Work is ongoing with the EPA, U.S. Army Corps of Engineers, 
        and the Fish and Wildlife Service to share data and collaborate 
        during reviews required by the Clean Water Act, the Endangered 
        Species Act, and SMCRA. This coordinated permitting results in 
        better permit decisions and minimizes environmental impacts.

    Question 7a. Mountaintop Removal--According to the statement of 
Joan Mulhern of Earthjustice over the past thirty years and especially 
during the last 15 years there has been a ``vast expansion'' in 
mountaintop removal mining. Her statement references a source that 
indicates a significant acceleration in mountaintop removal mining 
(9,800 acres permitted during the 1980's verses 12,540 permitted acres 
during 2002 alone). Does OSM have any data that would indicate how many 
acres were permitted for mountaintop removal mining during the 1980's 
as opposed to during the past year?
    Answer. OSM has compiled data on MTM operations in Kentucky since 
1983. This data covers all operations that were permitted for MTM, 
including both acreage for which a return to AOC was required, and non-
AOC mining, such as MTR and AOC variance mining. The data does not 
specify how much acreage was permitted for mining by any particular 
non-AOC mining technique. Despite these limitations, the data may be 
useful as one indication of a trend over time.
    Our data indicate that, from 1983 (after Kentucky gained SMCRA 
primacy) through 1989, 157 new MTM permits were issued by Kentucky, for 
a total of 81,656 acres. Of that total, 98 permits included mining for 
which AOC was not required, and the total non-AOC acreage was 39,420. 
For the period from 2000 through 2006, 134 new MTM permits were issued 
by Kentucky, for a total of 43,091 acres. Of that total, 7 permits 
included mining for which AOC was not required, and the total non-AOC 
acreage was 1,051.
    Question 7b. Is the use of this mining technique accelerating?
    Answer. The limited data compiled by OSM for Kentucky indicates 
that mountaintop mining is not accelerating. To the contrary, non-AOC 
portions of MTM permits accounted for only 2.4% of the acreage 
permitted over the last 7 years, compared to 48% between 1983 and 1989.
    Question 8a. Mountaintop Removal--Am I correct in understanding 
that the programmatic EIS released in 2005 projects that by 2012 
mountaintop removal mining will have occurred on over 1.4 million acres 
in Appalachia--and over 2000 miles of stream will have been covered by 
valley fill?
    Answer. The EIS estimated that mountaintop mining (which includes 
MTR and other mining methods) could occur on 1,408,372 acres in 
Appalachia by 2012. The EIS estimated that existing fills had affected 
724 miles of streams in Appalachia. If valley fill construction 
continues at the same rate, that construction would affect 724 
additional miles of streams in the following 17 years, yielding a total 
of 1,448 stream miles impacted by valley fills. [For additional 
information, see http://www.epa.gov/region3/mtntop/ and http://
www.epa.gov/region3/mtntop/pdf/Appendices/
Appendix%20I%20Cumulative%20Impact%20Study/Dec02%20report%20text/
Report.pdf].
    Question 8b. Is it possible to mitigate or compensate for the loss 
of these headwater streams?
    Answer. Mitigation and compensation are Clean Water Act (CWA) 
measures to offset the impacts from discharge of fill in waters of the 
U.S. and fall under the jurisdiction of the Environmental Protection 
Agency (EPA) and the U.S. Army Corps of Engineers. We understand that 
there are instances at SMCRA mine sites where reclamation and stream 
restoration on the mine received credit by the Corps as mitigation for 
stream impacts. This offsets additional mitigation that may be required 
under the CWA outside the minesite permitted under SMCRA.
    Question 9. Mountaintop Removal--Please provide a chart that 
indicates how many permits for mountaintop removal have been authorized 
by state over each of the past 25 years. Please indicate how much 
acreage is involved. Please also provide data on how many valley fills 
are associated with these permits by state and how many miles of stream 
and headwaters are impacted.
    Answer. Most MTM operations are regulated by states, and the types 
of data we maintain on them are somewhat limited. We do not possess 
data on acreage, the number of valley fills or stream impacts, broken 
out by surface mining technique, over the past 25 years. This type of 
information is very dynamic in nature because permit revisions 
frequently add and delete mining areas, valley fills, etc. The most 
comprehensive source of the information that you request exists for 
mountaintop mining (not MTR) in the aforementioned multi-agency EIS 
completed in 2005. Chapter III.K shows valley fill trends for seventeen 
years covering 1985-2002. [For additional information, see http://
www.epa.gov/region3/mtntop/pdf/III--
%20Affected%20Environment%20and%20Consequences%20of%20MTM%20VF.pdf].
    Question 10. Mountaintop Removal--Please describe the equipment 
that is typically used in mountaintop removal mining. Has this 
equipment changed in design, size and efficiency since the enactment of 
SMCRA in 1977? If so, please describe.
    Answer. The first large dragline came into use in central 
Appalachia about 1980, and the use of draglines expanded through the 
1990's. These and other changes have increased efficiency and 
productivity. The previously cited Mountaintop Mining/Valley Fill EIS 
describes this trend in Chapter III.I and III.J.3, as well as in 
Appendices G and H--particularly the presentations in Appendix H, 
``Mining and Reclamation Technology Symposium,'' held June 23-24, 1999. 
[For additional information, see http://www.epa.gov/region3/mtntop/
eis.htm].
    Question 11a. Stream Buffer Zone Rulemaking--OSM is in the process 
of revising permanent program regulations relating to excess spoil and 
stream buffer zones. The agency published proposed rules on this topic 
on August 24, 2007 (72 Fed. Reg. 48890). The public comment period will 
close later this month. The current OSM regulations impose a 
requirement that there be buffer zones around intermittent and 
perennial streams to protect against disturbance from coal mining 
activities. The proposed rules would eliminate this requirement with 
respect to ``valley fills'' associated with mountaintop mining. Will 
the new rules facilitate mountaintop mining and valley fills?
    Answer. No. The rule would largely reflect current mountaintop 
mining practices. It would clarify the stream buffer zone rule to 
ensure that implementation is consistent with SMCRA, and also would 
tighten environmental restrictions on valley fills.
    Question 11b. Do you believe the current regulation is inconsistent 
with the statute?
    Answer. No. The rule has always been implemented to allow valley 
fills and coal refuse impoundments; and this is consistent with SMCRA. 
There are differing views on what the current rule means, which is why 
we are clarifying just what mining activities can occur in or near 
streams and under what conditions. See also the preamble to OSM's March 
2007 proposed rule at 72 FR 48893-48898 for a full discussion of the 
stream buffer zone rule history and the controversy surrounding its 
implementation and interpretation.
    Question 11c. Is the current regulation being adequately and fully 
enforced?
    Answer. Yes.
    Question 12. Stream Buffer Zone Rulemaking--The proposed rule 
requires that excess spoil be minimized to the extent practicable. 
Doesn't OSM already require this?
    Answer. No. While the rules may imply that the maximum amount of 
spoil should be returned to the mined out area to minimize excess 
spoil, the proposed rule language would codify the requirement in a way 
that is consistent with recent policies issued by the states. The rule, 
if adopted as proposed, will explicitly require environmental resource 
data and analysis of alternatives to show that various sizes, 
locations, and numbers of fills were considered. This will further 
pressure companies to adopt the most environmentally-protective 
alternatives in their mining and reclamation plans to minimize the 
amount of excess spoil.
    Question 13a. Stream Buffer Zone Rule--Please summarize the Federal 
District Court holding in Bragg v. Robertson, 72 F. Supp.2d 642 
(S.D.W.V. 1999), rev'd, 248 F.3d 275 (4th Cir. 2001). I understand that 
the Court of Appeals for the Fourth Circuit reversed the District Court 
ruling on procedural grounds (sovereign immunity), leaving Judge 
Haden's substantive pronouncements on the SMCRA as the operative 
interpretation.
    Answer. OSM's 2007 proposed buffer zone rule preamble summarized 
court rulings on the stream buffer zone rule. In that preamble, we 
noted that the Plaintiffs in Bragg asserted that the stream buffer zone 
rule allows mining activities through or within the buffer zone for a 
perennial or intermittent stream only if the activities are minor 
incursions. They argued that the rule did not allow substantial 
segments of the stream to be buried underneath excess spoil fills or 
other mining-related structures.
    On October 20, 1999, the district court ruled in favor of the 
plaintiffs on this point, holding that the stream buffer zone rule 
applies to all segments of a stream, including those segments within 
the footprint of an excess spoil fill, not just to the stream as a 
whole. The court also stated that the construction of fills in 
perennial or intermittent streams is inconsistent with the language of 
30 CFR 816.57(a)(1), which provides that the regulatory authority may 
authorize surface mining activities within a stream buffer zone only 
after finding that the proposed activities, ``will not adversely affect 
the water quantity and quality or other environmental resources of the 
stream.'' See Bragg v. Robertson, 72 F. Supp. 2d 642, 660-663 (S.D. W. 
Va., 1999). [72 FR 48895]
    Judge Haden suspended his own decision pending appeal. The U.S. 
Court of Appeals for the Fourth Circuit reversed the district court on 
the grounds of lack of jurisdiction under the Eleventh Amendment to the 
Constitution. This means that, as a matter of law, the district court's 
statements on the interpretation and applicability of the stream buffer 
zone rule have no force or effect. See Bragg v. West Virginia Coal 
Association, 248 F.3d 275, 296 (4th Cir. 2001), cert. denied, 534 U.S. 
1113 (2002).
    Question 13b. Do you agree with the District Court that the current 
buffer zone rule applies to all portions of a perennial or intermittent 
stream and that the buffer zone rule can be harmonized with other SMCRA 
regulations?
    Answer. No. We do not agree with the district court's 
interpretation of the existing rule. However, we believe that the 
stream buffer zone rule can be harmonized with other regulations. If 
the proposed excess spoil and buffer zone rules are adopted, they will 
more clearly link to other regulatory requirements, consistent with the 
underlying authority in SMCRA.
    Question 13c. Is the current buffer zone rule being enforced in 
accordance with this interpretation?
    Answer. No. OSM and the States continue to apply our long-standing 
interpretations of stream buffer zone requirements, as discussed in 
OSM's proposed rule at 72 FR 48890.
    Question 13d. Has the Fourth Circuit's ruling in Kentuckians for 
the Commonwealth v. Rivenburgh, 317 F.3d 425 (4th Cir. 2003), impacted 
the interpretation and application of the buffer zone rule under SMCRA? 
If so, in what way and why?
    Answer. No. The 4th Circuit ruling in Rivenburgh did not disturb 
OSM's current and historical interpretation and implementation of the 
rule, and it acknowledged that SMCRA envisioned excess spoil disposal 
in streams. The circuit court held that, ``SMCRA does not prohibit the 
discharge of surface coal mining excess spoil in waters of the United 
States.'' Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 
F.3d 425, 442 (4th Cir. 2003). The court further stated that, ``it is 
beyond dispute that SMCRA recognizes the possibility of placing excess 
spoil material in waters of the United States even though those 
materials do not have a beneficial purpose.'' Id. at 443.
    Question 14a. Non-coal Reclamation--Last year, Congress 
reauthorized the Abandoned Mine Reclamation Fund. On June 6, 2007, I 
wrote to Secretary Kempthorne, along with Senator Domenici and the 
Senators from Colorado and Utah, expressing concern over a possible 
interpretation that would limit funds that are currently available for 
non-coal reclamation in New Mexico. According to Secretary Prukop's 
testimony, New Mexico alone has over 15,000 unreclaimed mine hazards 
with a vast majority of these being non-coal. I also understand that 
all fatalities there in the last few decades have been at non-coal mine 
sites. Will you work with us to ensure that AML funds can continue to 
be used for non-coal reclamation in western states such as New Mexico?
    Answer. Yes, we look forward to working with the Committee to 
ensure that AML funds may continue to be used to address serious health 
and safety problems at non-coal mine sites. The 2006 Amendments did not 
change how money from the AML Fund can be used relative to non-coal AML 
problems. Uncertified states and tribes, such as New Mexico, may 
continue to spend money from the AML Fund as they have in the past on 
non-coal reclamation. In addition, due to the mandatory nature of the 
distribution of money from the AML Fund, these states and tribes will 
receive an increase in funds that can be used on non-coal reclamation.
    Recently, we completed our consultation with the Solicitor's Office 
on whether Treasury funds received by uncertified states and tribes 
over the next seven years as prior state share balance replacement 
funds may be used for non-coal work. We have been advised that, under 
the 2006 Amendments to SMCRA, these funds cannot be used to address 
non-coal problems.
    I am attaching a copy of a December 5, 2007, memorandum* from the 
Solicitor responding to my request for an opinion on three specific 
issues under the 2006 Amendments, including the issue you raised (see 
Issue 2, page 7). I am also attaching a Decision Memorandum* of the 
same date containing decisions needed for proper distribution and use 
of funds for Fiscal Year 2008. Issue No. 3 on Page 6 addresses the non-
coal issue.
---------------------------------------------------------------------------
    * Documents have been retained in committee files.
---------------------------------------------------------------------------
    Question 14b. What is the status of OSM's current rulemaking on 
implementation of the 2006 Amendments?
    Answer. We recognize that the 2006 Amendments became effective when 
enacted on December 20, 2006, and we are taking steps to ensure that 
they are implemented for the FY 2008 distributions. In addition to 
issuing the December Decision Memorandum to guide the distribution and 
use of funds in FY 2008, we have provided notice to coal operators of 
the reduced rates set forth in the 2006 Amendments. Our Decision 
Memorandum also will be the basis for the rule we plan to propose in 
early 2008 to align our existing rules with the 2006 Amendments. 
Following our review of public comments received on the proposed rule, 
we expect to issue a final rule prior to the FY 2009 distribution.
    Question 15a. Tribal Primacy--The AML amendments passed last year 
include a provision that allows Indian tribes to apply for and receive 
primacy to conduct the Title V regulatory program on lands within their 
reservations. What is the status of your work in implementing this 
provision?
    Answer. In accordance with Executive Order 13175, Consultation and 
Coordination with Indian Tribal Governments, we are consulting with the 
Tribes on how best to implement the new tribal primacy provisions and, 
in particular, whether rulemaking is warranted. We initially met with 
the tribes that have active coal mining operations on tribal lands--the 
Crow, Hopi, and Navajo--to discuss their plans for pursuing primacy. 
OSM also conducted a regulatory analysis of the tribal primacy 
provisions in the amendments as part of determining whether rulemaking 
was necessary to implement the new requirement.
    Before making a decision on whether to initiate rulemaking, OSM 
intends to complete consultations with all potentially affected tribes 
. During this consultation, OSM will identify those aspects of 
implementing tribal primacy that would benefit from rulemaking, and 
will solicit specific tribal comments and suggestions on implementing 
the new provisions.
    OSM recognizes that the 2006 Amendments already authorize tribal 
primacy, and that tribes may now apply for primacy, regardless of 
whether we propose a rulemaking. We are prepared to review and make 
timely decisions on tribal program submissions and have informed the 
tribes that we will not delay any processing of tribal applications 
pending the development of rules. If we receive an application for 
primacy, we will establish a schedule for expeditious processing of the 
application, provide the schedule to the Tribe, and then keep the Tribe 
informed of our progress during the application review process.
    Question 15b. What is the time line for granting primacy to tribes 
such as the Navajo Nation?
    Answer. We expect that the schedule and requirements for processing 
tribal primacy applications would be similar to those already in place 
for State programs. The time line for approving a tribal program is, in 
large part, dependent upon the Tribe's schedule for preparing and 
submitting a program. Although we have not yet received a formal 
primacy application from the Navajo Nation, we are reviewing, at the 
Tribe's request, an informal draft tribal law for implementing primacy. 
In conducting this informal review, we hope to identify any issues that 
may need to be addressed as early as possible in the process to avoid 
delays later on when the Tribe prepares to submit a formal application.
    Question 16. Tribal Primacy--I understand that OSM is in the 
process of a rulemaking to implement the provisions of the 2006 
Amendments that provide the ability of tribes to apply for and receive 
primacy for purposes of their Title V regulatory program on reservation 
lands. Why is a rulemaking necessary when the process already exists 
for states to apply for and receive primacy?
    Answer. Although we expect our process for reviewing tribal primacy 
applications to be similar to the existing process for reviewing State 
programs, there are areas that may require rulemaking. The most 
significant of these areas include--

   Revising OSM's existing rules to comport with the tribal 
        primacy amendment (e.g., modifying rules regarding OSM as being 
        the sole regulatory authority on Indian lands);
   Clearly stating which lands would be subject to regulation 
        under a tribal program;
   Defining the content of a tribal program submission when a 
        tribe only desires to regulate in part (States could only 
        submit programs to regulate ``in whole,'' and OSM's regulations 
        contain no provision for regulatory programs that regulate in 
        part); and
   Identifying those requirements of a tribal program approval 
        and administration process that would be different from State 
        programs.

    We are reviewing the 2006 Amendments and our existing regulations 
to determine if rulemaking may be beneficial in addressing any of the 
differences between State and Tribal primacy. This is also one of the 
issues we are discussing as part of our consultations with Tribes.
    Question 17. Tribal Primacy--I understand that the Navajo Nation 
has requested assistance from OSM in developing a complete application 
and defraying application costs. The Navajo Nation would also like a 
timeline for OSM review of the application. Could you please provide me 
with specific information regarding the assistance that OSM will 
provide to the Navajo Nation and a specific timeline for the 
application review?
    Answer. OSM is currently providing assistance to the Navajo Nation 
in developing its tribal regulatory program. We have provided a listing 
of policies, procedures, and processes for our regulatory activities on 
Indian lands; information on State regulatory programs that have 
incorporated our regulations by reference; and information on 
litigation resulting from citizen suits.
    On October 4, 2007, the Navajo Nation submitted draft Navajo code 
provisions to OSM for informal review. On November 6, 2007, OSM stated 
its intention to complete the review and transmit the results to the 
Navajo Nation by the end of December 2007.
    Question 18a. Reclamation and Reforestation--I am interested in 
your comments about the promotion of reforestation as a post-mining 
land use and the role that such reforestation could have in 
sequestering carbon. What is the status of OSM's efforts in this area?
    Answer. OSM and the seven Appalachian coalfield states are actively 
promoting reforestation at proposed and active mines, previously-
reclaimed post-law sites, and abandoned mines through the Appalachian 
Regional Reforestation Initiative (ARRI). The potential sequestration 
rates with a reforestation approach are much higher than reclamation 
using a grassland approach (see graph below).*
---------------------------------------------------------------------------
    * Graph has been retained in committee files.
---------------------------------------------------------------------------
    Historically, there has been a strong bias against proper forest 
reclamation techniques among regulators, operators, landowners, and 
even environmental groups.  ARRI is working to eliminate these biases 
and to promote forestry as the postmining land use of choice in 
Appalachia. Researchers at the University of Kentucky estimate that 
restoring forest cover to the approximately 1.5 million acres of post-
SMCRA mine sites could sequester 33 million metric tons of carbon. If 
the trees are later harvested for wood products, such as furniture or 
building materials, the sequestration rate theoretically would be 
higher because the carbon is tied up as long as the products are being 
used, and new trees can take the place of the harvested trees in the 
field, increasing sequestration cumulatively.
    Under SMCRA, for sites being restored to AOC, an operator must 
return mined land to the use it was capable of supporting before 
mining, or to a higher or better use. Almost all of the land mined in 
Appalachia, and much of the land mined in other naturally-forested 
areas of the country, was forested before mining. Coal operators have 
generally preferred reclaiming land to hayland or pasture rather than 
forestland because revegetation success can be achieved more quickly, 
which may translate to more rapid bond release.
    However, grass-oriented land uses and reclamation techniques are 
not conducive to restoring forests. In fact, trees planted in pastures 
established on reclaimed areas have very low survival and growth rates. 
Grasslands also sequester far less carbon, and the carbon that is 
sequestered is much more likely to be returned to the atmosphere as 
carbon dioxide than carbon sequestered in trees. Reclamation to a 
pasture or hayland postmining land use also leads to forest 
fragmentation, increases peak flows that contribute to flooding, 
adversely impacts threatened and endangered species, and lacks the 
temperature-moderating influence of forests.
    Tree survival and growth rates on mined land can far exceed those 
on unmined land if reclamation is done properly. However, proper forest 
reclamation looks rough, rocky, and has far less ground cover than 
areas reclaimed for grazing or hay production. For the first four 
years, it just looks ``unfinished''.
    Since SMCRA does not dictate the post-mining land use, it is 
rightfully a decision made by the land owner and the permittee. Because 
the SMCRA regulatory authorities cannot compel reforestation, we are 
seeking to promote reclamation with trees by emphasizing the obvious 
economic and ecological benefits to landowners, operators, and 
regulators.
    The ARRI endeavors to change the perception of what high quality 
forest reclamation looks like. It also encourages landowners and 
operators to reclaim mined lands to forestry-oriented postmining land 
uses. More than 300 ARRI partners have signed a ``statement of mutual 
intent'' to support adopting reforestation techniques for reclamation. 
These partners are working through government, industry and the public; 
studying issues related to reforestation; transferring technology 
through forums and training; and evaluating the results of the 
initiative to further advance ARRI goals.
    Question 18b. I see the pictures attached to Mr. Quinn's statement 
show areas that have been reclaimed for golf courses, airports, and 
housing. How receptive is the industry to reforestation? What about the 
states and landowners?
    Answer. There are indeed several golf courses, airports, 
residential, industrial, and other specific kinds of commercial and 
public uses (e.g., shopping plazas, factories, aquaculture operations, 
schools, prisons, and recreational facilities) on former MTR sites. 
That is in accordance with Congressional intent in authorizing MTR. 
However, most MTR sites were reclaimed to agricultural use, as also 
authorized by SMCRA [section 515(c)(3)]. West Virginia includes 
commercial forestry as an acceptable agricultural post-mining land use.
    Question 19. State Regulatory Programs--One of the issues 
highlighted by the States is concern about funding for state regulatory 
programs. Please provide data that depicts funding for State regulatory 
programs for each of the past 15 years.
    Answer.

                      HISTORICAL REGULATORY FUNDING
                         Fiscal Years 1992-2007
------------------------------------------------------------------------
                        Fiscal Year                            Funding
------------------------------------------------------------------------
1992.......................................................   50,221,144
1993.......................................................   51,583,011
1994.......................................................   51,348,988
1995.......................................................   51,531,766
1996.......................................................   50,761,852
1997.......................................................   50,676,000
1998.......................................................   50,176,000
1999.......................................................   51,156,000
2000.......................................................   52,156,000
2001.......................................................   55,574,465
2002.......................................................   56,575,000
2003.......................................................   57,200,762
2004.......................................................   56,863,373
2005.......................................................   56,837,056
2006.......................................................   56,365,347
2007.......................................................   56,365,348
------------------------------------------------------------------------

    Question 19b. I assume that this funding includes monies for 
inspection and enforcement. How effective are the state programs in the 
area of inspection and enforcement? Does OSM evaluate the effectiveness 
of the state programs in this area? Please describe.
    Answer. Section 517(f) of SMCRA requires that OSM make such 
inspections as are necessary to evaluate the administration of approved 
state programs. In 2006, OSM conducted 1,458 oversight inspections of 
mine sites in primacy states (states with approved regulatory 
programs). As a result of those inspections, OSM issued only 9 
enforcement actions, all of which pertained to nonpayment of federal 
reclamation fees. OSM did not have to take any enforcement actions 
related to on-the-ground violations at mine sites in primacy states. 
These statistics demonstrate that the states are effectively 
administering the inspection and enforcement aspects of their approved 
programs.
    Question 19c. What steps does OSM take to ensure that state 
regulatory programs are being carried out effectively and consistent 
with the standards set forth in SMCRA?
    Answer. OSM Directive REG-8 establishes detailed substantive and 
procedural requirements for the oversight of approved state regulatory 
programs. OSM employs a results-oriented oversight strategy that 
emphasizes cooperative problem-solving with the primacy states. Among 
other things, the oversight strategy involves the identification, 
evaluation, and reporting of the offsite impacts of mining operations.
    The purpose of identifying off-site impacts is to gauge how 
effectively the state is implementing its approved program to protect 
citizens, public and private property, and the environment outside the 
areas authorized for mining and reclamation activities. The states and 
OSM evaluate the severity of offsite impacts, determine the causes of 
those impacts, and identify measures intended to reduce the frequency 
and severity of offsite impacts from mining operations. During FY 2006, 
91.5 percent of all mines inspected by the states were free of offsite 
impacts.
    With states regulating 97 percent of the Nation's coal production, 
and with states and tribes administering 90 percent of AML project 
funds, the major task for OSM is to help them succeed by providing the 
funding, regulatory and policy framework, oversight, assistance, 
training, and technical tools necessary to have stable and high quality 
regulatory and AML programs.
    Over the past few years, OSM has made substantial progress in 
achieving regulatory stability and increasing cooperation with States 
and Tribes. We have worked closely with our State and Tribal partners 
to identify best practices, promote technology transfer, provide 
technical training, encourage the use of sound science, take advantage 
of emerging technologies, and provide access to the latest computer 
software and hardware technology to help them do their jobs. This focus 
on improving state and tribal program capabilities has been highly 
cost-effective in lifting the quality of State programs and promoting 
stability.
    Responses of Brent Wahlquist to Questions From Senator Domenici
    Question 1. At your confirmation hearing 4 months ago, you agreed 
to work with the Solicitor's on an interpretation of the impact, if 
any, that amendments passed last year would have on Section 409 
authority to use AML funds for non-coal reclamation. I do not believe 
that the authority has changed one bit. In fact, during consideration 
of the amendments, OSM repeatedly assured us that New Mexico's use of 
these funds would not be affected. SMCRA anticipates, and I support, 
the states' ability to prioritize AML funding for sites that pose the 
most immediate risk to health and safety. To do otherwise would require 
the use of these funds for low priority coal sites while leaving 
dangerous non-coal sites unaddressed. This result would be 
unacceptable. What is the status of your efforts to finalize an 
interpretation of this authority?
    Answer. The 2006 Amendments did not change how money from the AML 
Fund can be used relative to non-coal AML problems. Uncertified states 
and tribes, such as New Mexico, may continue to spend money from the 
AML Fund as they have in the past on non-coal reclamation. In addition, 
due to the mandatory nature of the distribution of money from the AML 
Fund, these states and tribes will receive an increase in funds that 
can be used on non-coal reclamation.
    Recently, we completed our consultation with the Solicitor's Office 
on whether Treasury funds received by uncertified states and tribes 
over the next seven years as prior state share balance replacement 
funds may be used for non-coal work. We have been advised that, under 
the 2006 Amendments to SMCRA, these funds cannot be used to address 
non-coal problems.
    I am attaching a copy of a December 5, 2007, memorandum from the 
Solicitor responding to my request for an opinion on three specific 
issues under the 2006 Amendments, including the issue you raised (see 
Issue 2, page 7). I am also attaching a Decision Memorandum of the same 
date containing decisions needed for proper distribution and use of 
funds for Fiscal Year 2008. Issue No. 3 on Page 6 addresses the non-
coal issue.
    Our Decision Memorandum also will be the basis for the rule we plan 
to propose in early 2008 to align our existing rules with the 2006 
Amendments. Following our review of public comments received on the 
proposed rule, we expect to issue a final rule prior to the FY 2009 
distribution.
    Question 2. Also at your confirmation hearing, you shared that OSM 
intended an interim final rule by September 30th of this year--it's now 
October 13th. What happened?
    Answer. We had considered publishing an interim final rule to take 
effect in time for the FY 2008 distribution of funds to states and 
tribes. However, we later determined that the best course of action for 
a timely implementation of the 2006 amendments in FY 2008 was to 
prepare the attached Decision Memorandum and, concurrently, develop a 
proposed rule, provide the opportunity for public notice and comment, 
and then issue a final rule prior to the FY 2009 distribution.
    Question 3. Will OSM adhere to the timeline for promulgation of a 
final rule by the beginning of fiscal year 2009?
    Answer. Yes. We anticipate issuing a final rule by the end of 
September 2008.
    Question 4. New Mexico's Coal Surface Mining Commission has taken a 
more active approach to public notification of proposed mines. What is 
the position of OSM on this approach?
    Answer. On August 3, 2007, New Mexico's Coal Surface Mining 
Commission asked OSM to informally review draft rules to expand its 
requirements for public notice of mining permit applications and 
revisions beyond those required by the Federal rules. OSM responded on 
September 27, 2007, and found that all changes proposed in the draft 
rule would be no less effective than the Federal regulations. OSM 
supports the New Mexico Coal Surface Mining Commission's efforts toward 
expanded public notice and public involvement.
     Responses of Brent Wahlquist to Questions From Senator Salazar
    Question 1. In Colorado, it is often the non-coal sites rather than 
coal sites that pose a greater hazard to public health and safety. 
Given that the Tax Relief and Health Care Act of 2006 did not make 
changes to Section 4 [Title IV] of SMCRA, why has the Office of Surface 
Mining suggested that it would not allow the use of a state's share and 
unappropriated funds for non-coal abandoned mine work?
    Answer. The 2006 Amendments did not change how money from the AML 
Fund can be used relative to non-coal AML problems. Uncertified states 
and tribes, such as Colorado, may continue to spend money from the AML 
Fund, including funds based on their state share and their historic 
coal production, as they have in the past on non-coal. In addition, due 
to the mandatory nature of the distribution of money from the AML Fund, 
these states and tribes will receive an increase in funds that can be 
used on non-coal reclamation.
    Recently, we completed our consultation with the Solicitor's Office 
on whether Treasury funds received by uncertified states and tribes 
over the next seven years as prior state share balance replacement 
funds may be used for non-coal work. We have been advised that, under 
the 2006 Amendments to SMCRA, these funds cannot be used to address 
non-coal problems.
    I am attaching a copy of a December 5, 2007, memorandum from the 
Solicitor responding to my request for an opinion on three specific 
issues under the 2006 Amendments, including the issue you raised (see 
Issue 2, page 7). I am also attaching a Decision Memorandum of the same 
date containing decisions needed for proper distribution and use of 
funds for Fiscal Year 2008. Issue No. 3 on Page 6 addresses the non-
coal issue.
    Our Decision Memorandum also will be the basis for the rule we plan 
to propose in early 2008 to align our existing rules with the 2006 
Amendments. Following our review of public comments received on the 
proposed rule, we expect to issue a final rule prior to the FY 2009 
distribution.
    Question 2. Can you describe the incentives that are available to 
promote re-mining of eligible lands in ways that will allow more 
reclamation than would otherwise be achieved?
    Answer. The coal industry historically avoided remining previously 
mined areas due to the potential for increased liability for non-
compliant discharges as well as the potentially higher costs associated 
with meeting SMCRA performance standards for backfilling, grading, 
revegetation, etc. These difficulties occur because of past mining 
exposing acid and toxic-forming minerals; insufficient availability of 
soil materials to attain productive revegetation; and insufficient 
spoil to cover old highwalls or achieve approximate original contour.
    To encourage the industry to remine, Congress previously adopted 
two major incentives for remining operations that recognize the 
practical limitations of reclaiming previously-disturbed areas. The 
1987 Rahall Amendment to the Clean Water Act established more lenient 
effluent limitations for remining operations that encounter acid mine 
drainage [33 U.S.C. Sec.  1311(p)].
    The Energy Policy Act of 1992 amended SMCRA to (1) provide reduced 
revegetation responsibility periods for remining operations and (2) 
exempt those operations from the permit block sanction of section 
510(c) of SMCRA if the violation that would have otherwise required 
imposition of that sanction resulted from an unanticipated event or 
condition on land eligible for remining. [42 U.S.C. Sec.  2503].
    The Tax Relief and Health Care Act of 2006 added new section 415 to 
SMCRA, authorizing us to adopt regulations providing additional 
incentives, involving the use of amounts in the AML Fund to promote 
remining of abandoned mine lands in a manner that leverages AML Fund 
money to achieve more reclamation than would otherwise be possible. 
Those incentives may include a rebate or waiver of the reclamation fee 
and the use of Title IV monies to guarantee performance bonds for the 
remining operation. We are in the process of proposing rules to 
implement this provision.
      Responses of Brent Wahlquist to Questions From Senator Wyden
    Question 1. In March 2007, the Office of Surface Mining published 
an Advance Notice of Proposed Rulemaking concerning the disposal of 
coal combustion waste in mines. In June 2007, OSM received almost 2000 
comments voicing concern that the proposed rule completely failed to 
protect health and the environment. First, please explain how the 
Office of Surface Mining has the requisite expertise to permit the 
disposal of toxic waste in mines. This expertise lies uniquely with the 
Environmental Protection Agency.
    Answer. The U.S. Environmental Protection Agency (EPA) has twice 
determined that coal combustion wastes do not warrant regulation as 
hazardous wastes under Subtitle C of the Resource Conservation and 
Recovery Act (RCRA). See 58 FR 42466, August 9, 1993, and 65 FR 32214, 
May 22, 2000. The 2000 determination further found that placement of 
these materials in coal mines for beneficial uses other than 
minefilling did not warrant regulation under either Subtitle C or D of 
RCRA. With respect to minefilling, the EPA determined that placement of 
these materials should be regulated by one of the following methods:

   Subtitle D of RCRA, which governs the disposal of non-
        hazardous solid wastes in landfills;
   SMCRA; or
   A combination of SMCRA and Subtitle D of RCRA.

    The 2006 report from the National Research Council contains the 
same recommendation.
    OSM and the states administering SMCRA regulatory and abandoned 
mine land reclamation programs have the necessary expertise on the 
geology, hydrology and other environmental conditions at active and 
abandoned coal mining sites to ensure that placement occurs in a manner 
that is protective of the environment and the public. OSM and the 
primacy states have been regulating placement of these materials in 
mines for many years with no known significant adverse impacts to date.
    Question 2. Second, the March 2007 Proposed Rulemaking fails to 
address the concerns and recommendations of the National Academies of 
Science in their 2006 Report, ``Managing Coal Combustion Residues in 
Mines.'' Can you please explain why you failed to address those 
recommendations and how you intend to correct this failure?
    Answer. The notice we published on March 14, 2007 (72 FR 12706) was 
the first step in addressing the concerns and recommendations in the 
2006 National Research Council (NRC) report. In the NRC report, 
agencies were encouraged to actively seek public participation in 
decisions involving the disposal of coal combustion wastes in coal 
mines. In the March 2007 notice, we sought input from the public 
concerning how we should implement the recommendations contained in the 
NRC report. We are considering the comments that we received on this 
notice as we decide how to draft proposed regulations that will address 
the NRC recommendations. In the preamble to the proposed regulations, 
we will discuss how the proposed regulations relate to the 
recommendations. The public will have the opportunity to comment on the 
proposed regulations before we issue a final rule.
    Question 3. Lastly, EPA's recent publication of a risk assessment 
on the disposal of coal ash has great bearing on the threat to human 
health and the environment from the disposal of ash in mines. (Notice 
of Data Availability, August 29, 2007, 72 Fed. Reg. 57572) How will OSM 
take this critical information into account in its subsequent actions 
on this issue?
    Answer. The EPA notice of data availability published on August 29, 
2007, pertained only to the disposal of coal combustion wastes in 
landfills, surface impoundments, and sand and gravel pits. It did not 
address the placement of coal combustion byproducts in coal mines.
    Since 1999, OSM has been working closely with EPA on all aspects of 
placement of these materials in coal mines. We have been meeting 
regularly with EPA staff and are continuing to work with EPA in 
developing our proposed rules. In fact, EPA's publication of the notice 
of data availability was part of the joint, coordinated effort between 
EPA and OSM that included our March 2007 notice and that will include 
the proposed rule we are currently preparing.
                                 ______
                                 
   Responses of Gregory E. Conrad to Questions From Senator Bingaman

    Question 1. State Regulatory Programs--one of the issues you 
highlight in your testimony is concern about funding for state 
regulatory programs. I assume that this funding includes monies for 
inspection and enforcement? How effective are the state programs in the 
area of inspection and enforcement?
    Answer. The grants that the states receive from the Office of 
Surface Mining (OSM) pursuant to Title V of SMCRA are used to fund the 
operation of state regulatory programs, including our inspection and 
enforcement responsibilities. Perhaps the most reliable indicator of 
how effectively the states are implementing this critical program area 
is federal oversight by OSM. In its annual oversight reports for each 
state, OSM includes information on state inspection activity, state 
enforcement activity and the performance of the states in two critical 
areas related to inspection and enforcement: off-site impacts and 
reclamation results (bond release). An analysis of the most recent 
oversight reports published by OSM (and available on their website) 
indicates that no significant problems have arisen with regard to 
inspection frequency or enforcement actions, and that states are 
meeting performance measures established for minimizing off-site 
impacts associated with surface coal mining operations and ensuring 
successful reclamation on lands affected by surface coal mining 
operations. The biggest challenge for state inspection and enforcement 
efforts is lack of funding to support this critical program element as 
laid out in our testimony.
    Question 2. Can you please describe for us the work of the states 
under Title V and the issues associated with this shortfall in funding?
    Answer. Pursuant to the provisions of Title V, particularly section 
503, in order for a state to receive approval of its regulatory program 
by OSM, it must demonstrate that it has in place state laws and 
regulations (no less stringent than OSM's national standards) that 
provide for inspection and enforcement authority, implementation of a 
permitting system, authority to issue and hold reclamation bonds and a 
process to designate areas as unsuitable for mining. As the exclusive 
and primary regulatory authorities under SMCRA, states are responsible 
for permitting and bonding all surface coal mining and reclamation 
operations within their borders, ensuring that these operations are 
inspected frequently, issuing appropriate enforcement actions when 
applicable regulations or permit conditions are violated, ruling on 
petitions to declare lands unsuitable for mining, and coordinating with 
a variety of federal agencies whose jurisdictional authorities 
intersect with SMCRA. As noted in our testimony, when states do not 
receive sufficient funding from OSM to support their programs, many of 
these program elements are strained to the breaking point. State 
programs must be adequately funded and staffed to insure that 
permitting and inspection duties are both thorough and timely, 
especially as states experience the reality of accelerating coal mine 
production and expansion activities. When funding falls below program 
needs, states may struggle to keep active sites free of offsite 
impacts, reclaim mined areas and prevent injuries. In the end, the 
increasing gap between the states' anticipated expenditures and actual 
federal funding is compounding the problem caused by inflation and 
uncontrollable costs, undermines our efforts to realize needed program 
improvements and enhancements, and jeopardizes our efforts to minimize 
the impact of coal extraction operations on people and the environment.
    Question 3. Buffer Zone Rulemaking--Does your organization support 
the proposed changes to the Office of Surface Mining Reclamation and 
Enforcement's buffer zone rule? Would you prefer to keep the current 
rule in place?
    Answer. A copy of our comments on OSM's stream buffer zone proposed 
rules is attached.
    Question 4. OSM Oversight--What role does OSM play in overseeing 
the state programs to ensure that the minimum standards of SMCRA are 
being implemented? Is this working?
    Answer. Pursuant to OSM' policy directive on oversight of state 
regulatory programs (REG-8), OSM annually reviews state programs in a 
number of different areas including inspection activity, enforcement 
actions, permitting activity, number off-site impacts, reclamation 
success (bond release), lands unsuitable activity, bond forfeiture 
activity, staffing, and use of grant funds. Over the years, this 
oversight function has moved from a bean-counting approach to a more 
substantive review of key program elements in an effort to demonstrate 
whether the purposes and objective of SMCRA are being accomplished. OSM 
also conducts joint inspections with the states. The overall result is 
an oversight program that makes sense and provides an accurate and 
reliable picture of state program implementation.
    Question 5. AML Amendments Implementation--From a state 
perspective, what do you see as the key issues in implementing the 
Abandoned Mine Land amendments passed by Congress last year?
    Answer. A detailed delineation of our concerns with OSM's rules for 
implementing the AML amendments is attached.
    Question 6. Mountaintop Mining--Do you think that mountaintop 
mining and related use of valley fills are consistent with the 
requirements of SMCRA relating to water, hydrologic balance, and 
approximate original contour?
    Answer. As required by section 503 of SMCRA, we believe that state 
regulatory programs are consistent with those provisions of SMCRA 
concerning mountaintop mining and related use of valley fills. The 
states do their best to insure that the mining practices authorized by 
SMCRA comply with state regulatory requirements for the protection of 
water resources, hydrologic balance and approximate original contour. 
In this regard, the states most impacted by these types of mining 
operations (West Virginia, Kentucky and Virginia) have been in the 
forefront of developing enhanced guidance for coal operators with 
regard to material balance determinations, spoil management, and 
approximate original contour determinations so as to lessen the impacts 
of these operations on the environment.

                       Attachment.--AML Comments
                                                      May 21, 2007.
Brent Wahlquist,
Acting Director, Office of Surface Mining, 1951 Constitution Avenue, 
        N.W., Washington, DC.
    Dear Director Wahlquist: This letter represents the comments of the 
National Association of Abandoned Mine Land Programs (NAAMLP) and the 
Interstate Mining Compact Commission (IMCC) regarding draft rules 
(proposed and interim final) developed by the Office of Surface Mining 
(OSM) to implement the provisions of the Surface Mining Control and 
Reclamation Act (SMCRA) Amendments of 2006 (P.L. 109-432). OSM provided 
both the NAAMLP and IMCC with copies of the draft rules in April and 
also attended a meeting of both organizations on May 2 and 3 in 
Indianapolis to discuss the rules. We appreciate the opportunity to 
submit comments on the draft rules as OSM prepares to move forward with 
their promulgation later this year.
    There are several key sections of the draft rules that we will 
address in these comments, as noted below. However there are a few 
over-arching issues related to the interpretation of the new law that 
we will discuss first, as they set the stage for some of our 
recommended changes to the rules. All of these issues grow out of OSM's 
``Major Policy Issues'' paper that was also shared with the states in 
April.

                      I. GENERAL OVERVIEW COMMENTS

Use of Grant Mechanism to Distribute Payments from the U.S. Treasury
    Pursuant to the 2006 Amendments to SMCRA, two new types of payments 
from the U.S. Treasury are established: 1) distribution of the prior 
unappropriated state/tribal share balances over a seven year period 
(Section 411(h)(1)) and 2) payments in lieu of future state/tribal 
shares formerly paid out of the AML Trust Fund pursuant to section 
401(g)(1) (Section 411(h)(2)). Section 402(i)(2) requires the Secretary 
of the Treasury to transfer to the Secretary of the Interior ``such 
sums as are necessary to pay the amount'' described above, but no 
specific payment mechanism is prescribed. OSM prefers to distribute 
these payments via grants to states and tribes, based on its reading of 
the law and on past practice, rather than via direct distribution of 
cash from the Treasury. The states and tribes posit that the new law 
does not directly address this matter and therefore the Secretary has 
the discretion to design a payment mechanism that meets the needs of 
the states and tribes. In line with this discretionary authority, the 
states and tribes prefer an approach that will provide them with 
immediate access to those moneys that are due and owing from the 
Treasury. This can be accomplished through a traditional grant process 
for those who desire the ``protection'' and guidance that such a 
process affords these monetary distributions. However, there is also 
flexibility to design either a grant or a direct payment mechanism that 
provides more unrestricted and immediate access to these moneys for 
states who desire maximum discretion with regard to the use of these 
moneys in line with the language in Section 411(h)(1)(D)(i) and (ii). 
In the latter circumstance, the state legislatures will exercise their 
fiduciary responsibility to insure that the funds are spent legally and 
appropriately in accordance with the dictates of the 2006 Amendments 
and state contracting law. Federal audits will also provide a measure 
of scrutiny and review of project selection and expenditures. There are 
also other mechanisms available for tracking and facilitating these 
payments, one example being the management of mineral royalties paid to 
states under the Mineral Leasing Act and another being a general 
statement of work detailing how the money will be spent. The states and 
tribes therefore urge OSM to incorporate significant flexibility and 
discretion with regard to the types of mechanisms that are available 
for distributing and expending Treasury payments for both the prior 
unappropriated state/tribal balances and payments in lieu of future 
state/tribal share to certified states and tribes.
Funding for Minimum Program States
    The 2006 Amendments include several provisions that govern the 
award of grant funds by OSM to states. Section 402(g) has three 
paragraphs that bear on that topic. Section 402(g)(1) directs that ``50 
percent of the reclamation fees collected annually in any State'' be 
distributed to that state. Under section 402(g)(5)(A), ``[t]he 
Secretary shall allocate 60 percent of the amount in the fund after 
making the allocation referred to in paragraph (1)'' for additional 
grants to states. And section 402(g)(8) states that ``In making funds 
available under this title, the Secretary shall ensure that the grant 
awards total not less than $3,000,000 annually to each State and each 
Indian tribe. . .'' (emphasis added). This latter provision provides 
OSM the justification for insuring annual minimum program grant funding 
in excess of the base $3 million level as long as OSM does not 
contribute more than $3 million from its own discretionary funds.
    Section 401 of the bill also has relevant provisions. Sections 
401(f)(1) and (2) direct OSM to distribute grant funds to states 
annually, including the amount needed for the adjustment under section 
402(g)(8) (i.e., the ``minimum program'' adjustment up to $3.0 
million). Section 401(f)(3) has a similar provision:

          IN GENERAL.-- . . . for each fiscal year, of the amount to be 
        distributed to States and Indian tribes pursuant to paragraph 
        (2), the Secretary shall distribute--
          (i) the amounts allocated under paragraph (1) of section 
        402(g), the amounts allocated under paragraph (5) of section 
        402(g), and any amount reallocated under section 411(h)(3) in 
        accordance with section 411(h)(2), for grants to States and 
        Indian tribes under section 402(g)(5); and
          (ii) the amounts allocated under section 402(g) (8).

    This again makes it clear that the legislation requires OSM to 
provide minimum program states at least $3.0 million annually, under 
section 402(g)(8), commencing October 1, 2007.
    In its restrictive reading of the bill, OSM depends upon a single 
provision in section 401(f)(5)(B) to reduce the amounts of annual 
grants to minimum program states from the minimum $3.0 million annual 
required grant amount. That provision reads (with emphasis added):

          (B) EXCEPTIONS.--Notwithstanding paragraph (3), the amount 
        distributed under this subsection for the first 4 fiscal years 
        beginning on and after October 1, 2007, shall be equal to the 
        following percentage of the amount otherwise required to be 
        distributed:

                  (i) 50 percent in fiscal year 2008; (ii) 50 percent 
                in fiscal year 2009; (iii) 75 percent in fiscal year 
                2010; (iv) 75 percent in fiscal year 2011.

    OSM's reliance on this provision ignores the fact that by its own 
terms (i.e. the ``notwithstanding'' phrase), it only overrides the 
requirements of section 401(f)(3). Yet other provisions of the bill 
independently require the distribution of the minimum amount of $3.0 
million. See sections 401(f)(1) and (2) and section 402(g)(8). The 
provision cited by OSM does not override the clear requirements of 
those other parts of the bill.
    The phase-in schedule of section 401(f)(5) only applies to such 
additional funds as might otherwise be provided by OSM to the minimum 
program states above the guaranteed distributions required elsewhere in 
the statute. This means that OSM cannot contribute more than $1.5 
million in additional funding to each minimum program state in fiscal 
years 2008 and 2009, and not over $2.3 million in additional funding in 
each of fiscal years 2010 and 2011, and not over $3.0 million in 
additional funding in each subsequent year through fiscal year 2024.
    This debate goes much deeper than the interpretations of the two 
sections mentioned above. Congressional intent and history in the 
passage of P.L. 95-87, the original ``Surface Mining Control and 
Reclamation Act of 1977,'' deserves merit in the interpretation debate. 
In the 95th Congress, the late Morris K. Udall (considered by many as 
the ``father'' of P.L. 95-87) worked tirelessly with government 
agencies, industry, and other organizations to make sure this law 
became a reality. With regard to the reclamation of abandoned mine 
lands, Title IV of P.L. 95-87 has been the guiding light for both OSMRE 
and the States/Tribes for almost 30 years. During this time, AML 
funding issues have overshadowed Congressman Udall's intent as outlined 
in Section 403 of P.L. 95-87 ``Objectives of the Fund.'' Section 403 
set specific priorities as to the expenditure of moneys from the AML 
fund. The number one priority is ``the protection of public health, 
safety, and property from extreme danger of adverse effects of coal 
mining practices.'' It is significant that the Surface Mining Control 
and Reclamation Act Amendments of 2006 removed the words ``general 
welfare'' from the original wording of Section 403(1). In their 
infinite wisdom, the 109th Congress wanted to further strengthen 
Section 403(1) by placing a special emphasis on public health, safety, 
and property.
    There are no specific provisions in P.L. 95-87 or the 2006 
Amendments that discuss in detail the specific State/Tribe AML funding 
formulas that embrace historic coal production, state share (present 
coal production), and federal discretionary expenses. However, in the 
2006 Amendments Congress did single out states and tribes specifically 
in Section 402(g)(8)(A) stating, ``In making funds available under this 
title, the Secretary shall ensure that the grant awards total not less 
than $3,000,000 annually to each State and each Indian Tribe having an 
approved abandoned mine reclamation program pursuant to section 405 and 
eligible land and water pursuant to Section 404, so long as an 
allocation of funds to the State or tribe is necessary to achieve the 
priorities stated in paragraphs (1) and (2) of section 403(a).'' The 
fact that Congress has always (and in the 2006 Amendments continues to) 
dedicate a section of the law to states and tribes traditionally known 
as those with ``Minimum Programs'' solidifies the Congressional intent 
that these states and tribes annually receive not less than $3,000,000.
    In the late 1980s the Mid-Continent Coal Coalition was formed 
because the Minimum Program States and Tribes had several hundreds of 
millions of dollars worth of Priority 1 and Priority 2 AML hazards that 
posed, and continue to pose, a very high public health and safety risk. 
AML funding had fallen to an annual $1 million level that would not 
allow the efficient operation of a State/Tribal AML Program. This 
Coalition gathered Congressional support through letters, resolutions, 
testimony at Congressional committee hearings, etc. As a result, the 
budget reconciliation bill passed by the 101st Congress in the fall of 
1990 required that the Secretary allocate annually not less than 
$2,000,000 to Minimum Program States and Tribes. The passage of this 
bill in1990 was definitive proof that Congress supported an increase in 
funding for the Minimum Program States and Tribes.
    For three years (FY1992, FY 1993, and FY 1994) the Minimum Program 
States received $2 million annually. Since that time the Minimum 
Program States have been limited to an annual allocation of only $1.5 
million. The primary reason given for not allocating the statutorily 
mandated annual $2 million was ``budget deficits.'' Then under the 
Clinton administration, there was a ``budget surplus,'' but the annual 
allocation remained at $1.5 million. For the last 13 years, Minimum 
Program States have been critically underfunded in respect to the 
number of Priority 1 and Priority 2 AML hazards that need to be 
reclaimed. Respective Administration budgets and Congressional budgets 
continued to hold the AML Fund ``hostage,'' while unappropriated 
balances continued to rise.
    In early December 2006, much to the surprise of both OSMRE and 
States/Tribes, the 2006 Amendments took AML funding off budget. No 
longer would Congress appropriate AML funds on an annual basis. The 
pressure was now on OSMRE to develop a method(s) to distribute the AML 
funds to States and Tribes. OSMRE began to develop future funding 
projections under the new law. Since December 2006, OSMRE has 
distributed four different funding charts. With each successive chart, 
the funding numbers for the States and Tribes would change. But in all 
four of these OSMRE charts, there was one constant--the Minimum Program 
States (Alaska, Arkansas, Iowa, Kansas, Maryland, Missouri, and 
Oklahoma) would receive no funding increases for FY 2008 and FY 2009. 
Not until FY 2012 would Minimum Program States receive an annual $3 
million.
    In the last OSMRE Funding distribution chart (Chart 4), the 
following funding increases are reflected when comparing FY 2007 AML 
funding to FY 2008 AML funding, as well as the amount of Priority 1 and 
Priority 2 coal hazards in the AML Inventory for each state:


------------------------------------------------------------------------
                                          Funding
                                         Increases     Amount of Hazards
------------------------------------------------------------------------
Alabama............................              96 %      $49.1 million
Colorado...........................             175 %      $24.9 million
Illinois...........................              45 %        $55 million
Indiana............................             138 %      $12.3 million
Kentucky...........................             124 %     $338.5 million
New Mexico.........................             187 %       $3.2 million
North Dakota.......................              93 %      $41.6 million
Ohio...............................              65 %       $100 million
Pennsylvania.......................              29 %   $1,016.9 billion
Utah...............................             147 %       $4.9 million
Virginia...........................             115 %     $104.1 million
West Virginia......................             103 %     $790.6 million
Louisiana..........................             200 %              $0.00
Montana............................             229 %       $8.5 million
Texas..............................             238 %           $800,000
Wyoming............................             269 %      $25.8 million
Crow Tribe.........................             260 %           $500,000
Hopi Tribe.........................             250 %              $0.00
Navajo Nation......................             215 %              $0.00
------------------------------------------------------------------------

    It should be noted that the term ``minimum program'' does not refer 
to lack of AML hazards that a state or tribe has to address, but rather 
with the lack of funding being generated by active coal mines within 
the state or tribe for purposes of remediating hazards associated with 
past coal mining. For example, Oklahoma has an AML inventory of 
priority 1 and 2 sites that will cost between $125 and 130 million to 
reclaim using today's cost figures. Kansas has an AML inventory of 
priority 1 and 2 sites that will cost over $200 million to remediate. 
However, funds generated by current coal mining activities in these two 
states generate around $25,000 annually for Kansas and around $100,000 
annually for Oklahoma. For perspective, states like Kentucky and West 
Virginia receive between $6,800,000 and $8,300,000 annually to perform 
remediation of hazardous AML sites. Interestingly (and in some 
respects, unfortunately), Oklahoma has an AML inventory of priority 1 
and 2 hazards that will cost more to remediate than 14 of the states 
and tribes listed above and Kansas has an AML inventory of priority 1 
and 2 hazards that will cost more to remediate than 16 of the above-
listed states and tribes. Therefore, even though the ``minimum 
program'' states may get minimum funding, they certainly have their 
fair share of AML priority 1 and 2 hazards.
    From December 2006 through February 2007, OSMRE continued to change 
their funding distribution charts, using factors such as historic coal 
production, state share fund balances, and present coal production. 
During this three month process, each time a new chart was developed 
OSMRE failed to put emphasis on the real problem; How much is the 
public affected by Priority 1 and Priority 2 AML hazards? Ignoring AML 
project sites that are an eminent danger to the health and safety of 
the public is not what Congress intended.
    OSMRE can find the funds in their FY 2008 budget to fund AML 
Minimum Programs. OSMRE is phasing out the Clean Streams Initiative 
Program and the Watershed Cooperative Agreements Program. This money 
could be used to help fund the Minimum Programs at the annual $3 
million level. Furthermore, in its News Release of February 5, 2007, 
OSM noted that it has off-budget funds in its FY 2008 budget that could 
fully fund AML minimum programs at not less that the $3 million level. 
This money was provided to OSM for the purpose of, and should be used 
for, fully funding the minimum programs at the $3 million level. The 
bottom line is the Minimum Programs have been ignored for too many 
years. With the passage of P.L. 109-432, Congress has sent a message to 
OSMRE that Minimum Programs should be funded at an annual rate of $3 
million, starting with the FY 2008 budget. The sad part of this impasse 
is the fact that those living near or visiting these Priority 1 and 
Priority 2 AML sites are exposed on a daily basis to the possibility of 
death and/or injury.
    Congress gave OSMRE the authority to develop the AML funding 
distribution numbers for the states and tribes. The NAAMLP and IMCC 
urge that during the development of proposed rules and regulations for 
the 2006 Surface Mining Control and Reclamation Act Amendments, OSMRE 
``look outside the box'' and consider the real reason that Title IV was 
enacted almost 30 years ago.
Use of Unappropriated State Share Balances for Noncoal Reclamation and 
        AMD 
        Set-Aside
    Since the inception of SMCRA in 1977 and the approval of state/
tribal AML programs in the early 1980's, the states and tribes have 
been allowed to use their state share distributions under section 
402(g)(1) of the AML Trust Fund for high priority noncoal reclamation 
projects pursuant to section 409 of SMCRA and to calculate the set-
aside for acid mine drainage (AMD) projects. Under the new amendments, 
states and tribes will receive their unappropriated balances in seven 
equal payments beginning in FY 2008. In its most recent interpretation 
of the 2006 Amendments, OSM has stated that these moneys cannot be used 
for noncoal reclamation or for the 30% AMD set-aside. OSM also 
initially stated that the historic coal distribution to non-certified 
states and tribes would also not be available for noncoal reclamation, 
but the agency appears to have relented on this issue and will allow 
these moneys to be used for both noncoal reclamation and the 30% AMD 
set-aside. With regard to the unappropriated state and tribal share 
balances that will be distributed pursuant to Section 411(h)(1) of the 
2006 Amendments, the states and tribes assert that these moneys should 
also be available for noncoal reclamation under section 409 and for the 
30% AMD set-aside. There is nothing in the new law that would preclude 
this interpretation. Policy and practice over the past 30 years confirm 
it. The unappropriated state and tribal share balances consist of past 
moneys collected from coal producers in these states and tribes that 
were never distributed due to restricted and under-funded 
appropriations. This money has always been ``colored'' as state/tribal 
share money, available for expenditure in accordance with the 
provisions of SMCRA and now 30 years of experience. The fact that the 
money is being paid out of Treasury funds does not change the ``color'' 
or operation of that money--it has been and will always be state/tribal 
share money allocated pursuant to section 402(g)(1) of SMCRA.
    OSM's new interpretation of SMCRA based on the 2006 Amendments is 
without support in the law when read as a whole. In interpreting the 
meaning of section 411, the entire statute must be read in context. 
Section 403 (which OSM points to) is modified by Section 409, which 
provides for the expenditure of AML funds at any priority 1 or 2 site, 
regardless of the commodity that was mined. Section 409(b) indicates 
that the 50% state share (from 402(g)(1)) and the historic production 
distribution (402(g)(5)) can be used for noncoal reclamation. If 
Congress had intended to limit the use of the unappropriated state/
tribal share balances (or historic production distributions) that are 
now finally being returned pursuant to section 411(h)(1), it could have 
easily done so. However, no changes were made in section 411 to 
accomplish this. Nor was Section 409 amended in any way.
    OSM's new interpretation is also a dangerous policy choice. OSM 
claims that once a state has completed all of its coal projects, it can 
then use all of its grant funds for noncoal projects. This will require 
that states spend years working on high-cost, low-priority coal 
projects that present little threat to public health and safety, while 
numerous highly hazardous abandoned noncoal mines remain unattended. In 
many western states, the AML programs have employed their AML grants to 
protect people and property threatened by noncoal abandoned mines. In 
New Mexico, for instance, the state estimates that over 10,000 mine 
openings remain. The overwhelming majority of these openings are at 
abandoned noncoal mines. All of the fatalities at abandoned mines in 
New Mexico over the past few decades have occurred at noncoal mines. 
With urban growth pushing into undeveloped areas and recreational uses 
increasing, the danger to public health and safety from abandoned 
noncoal mines throughout the country is increasing
    Much of the above reasoning also holds true for the availability of 
the unappropriated balances for purposes of calculating the 30% set-
aside for AMD abatement. Again, this work falls within the clear 
purposes of section 403 of SMCRA and thus any type of restriction on 
the use of these funds for AMD remediation is inappropriate. Section 
403(g)(6)(B)(ii)(I) establishes and defines the use of AMD set-aside 
funds. That section states that a qualified hydrologic unit destined 
for AML abatement must have land and water that `` . . . include any of 
the priorities described in Section 403.'' Obviously, this passage 
provides a clear nexus to section 403 of the Act. The 2006 Amendments 
at section 411(h)(1)(D)(ii) state that non-certified states must use 
amounts provided from Treasury funds in place of the unappropriated 
balances for `` . . . purposes described in Section 403.'' Again, a 
clear nexus to section 403 is stated. Actually, the references in 
sections 402 and 411 to section 403 are identical. Therefore AMD 
abatement is a purpose under section 403 and Treasury funds should not 
be artificially excluded for use in the set-aside for AMD. Finally, we 
should note that each appropriation bill over the past several years 
has included language that supports the use of funds made available 
under Title IV of SMCRA for the purpose of environmental restoration 
related to treatment or abatement of AMD without restriction. Based on 
the above, the NAAMLP and IMCC request that OSM reconsider its 
interpretation on the use of unappropriated state and tribal share 
balances for noncoal reclamation and the AMD set-aside. Adjustments to 
the draft rules based on these arguments appear below.
Reduction of the Treasury \1/7\ th payments for the unappropriated 
        balance by the amount of the export tax lawsuit loss

    The relevant citations:

    411(h)(1)(A)(i) of P.L. 109-432
    In General--Notwithstanding section 401(f)(3)(B), from funds 
referred to in section 402(i)(2), the secretary shall make payments to 
States or Indian tribes for the amount due for the aggregate 
unappropriated amount to the State or Indian tribe under subparagraph 
(A) or (B) of section 402(g)(1).

    411(h)(1)(B) of P.L. 109 432 (emphasis added)
    Amount Due--In this paragraph, the term ``amount due'' means the 
unappropriated amount allocated to a State or Indian Tribe before 
October 1, 2007 under subparagraph (A) or (B) of section 402(g)(1).

    As a part of our discussion on the unappropriated balance, OSM has 
stated that should the export tax lawsuit ultimately be lost on appeal, 
the loss shall be paid out of the trust fund and the 1/7th payments out 
of the Treasury to each State or Tribe shall be reduced by the like 
amounts each State or Tribe owed for the lawsuit.
    Section 411(h)(1)(B) of P.L. 109-432 states that the amount due 
each State or Tribe is the amount allocated to each State or Tribe 
(State Share) before October 1, 2007. Unless the export tax lawsuit is 
resolved prior to October 1, 2007, then the amount paid out of the 
Treasury in 1/7th installments to each State or Tribe for the 
unappropriated balance should not be reduced due to the lawsuit. 
Although the trust fund would ultimately be reduced by the amount of 
the export tax lawsuit loss, the payments out of the Treasury should 
remain unchanged since the amount the payments will be based upon will 
be established as of October 1, 2007. Further, we do find any language 
in P.L. 109-432 that can be interpreted to give OSM the authority to 
reduce payments from the Treasury for the unappropriated balance.
Effective Date of In-lieu Payments
    There has been some confusion about when in-lieu payments from the 
U.S. Treasury begin under the 2006 Amendments. OSM has stated that they 
begin in FY 2009, and that payments to certified states and tribes of 
their 50% share in FY 2008 are made from the AML Trust Fund. Our 
reading of the 2006 Amendments is that the in-lieu payments from the 
Treasury begin immediately in FY 2008. The relevant citations are:
    Section 401 (f)(3)(B) of P.L. 109-432:

    (B) EXCLUSION.--Beginning on October 1, 2007, certified States 
shall be ineligible to receive amounts under section 402(g)(1).

    Section 411 (h)(1)(B & C) of P.L. 109-432:

    (B) AMOUNT DUE.--In this paragraph, the term ``amount due'' means 
the unappropriated amount allocated to a State or Indian tribe before 
October 1, 2007 under subparagraph (A) or (B) of section 402(g)(1).
    (C) SCHEDULE.--Payments under subparagraph (A) shall be made in 7 
equal annual installments, beginning with fiscal year 2008.
    Section 411 (h)(2)(A) of P.L. 109-432:

          (A) IN GENERAL.--Notwithstanding section 401(f)(3)(B), from 
        funds referred to in section 402(i)(2), the Secretary shall pay 
        to each certified state or Indian tribe an amount equal to the 
        sum of the aggregate unappropriated amount allocated on or 
        after October 12, 2007, to the certified State or Indian tribe 
        under subparagraph (A) or (B) of section 402(g)(1).

    OSM has advanced the following explanation to support its current 
declared intention to pay state share funds to the certified states 
under section 402 (g)(1) in FY 2008 (emphasis added):

          Certified states and tribes will receive distributions under 
        section 401(f) only in FY 2008 because the bill adds a new 
        section 401(f)(3)(B), which provides that certified states and 
        tribes are ineligible to receive their state-share or tribal-
        share allocations with respect to fees collected after FY 2007. 
        However, FY 2008 distributions consist of FY 2007 fee 
        collections, so certified states and tribes are eligible to 
        receive 50% of their state or tribal share allocation of fees 
        collected for that year.

    Beginning with FY 2009, certified states and tribes will receive 
annual payments from the Treasury in lieu of the amount of fee 
collections during the previous year that would otherwise have been 
allocated to their state or tribal share accounts in the AML fund in 
the absence of new section 401(f)(3)(B) of SMCRA. Section 411(h)(2) of 
SMCRA.\1\
---------------------------------------------------------------------------
    \1\ Major Provisions of P.L. 109-432: SMCRA Amendments Acot of 
2006, page 3. Distributed to NAAMLP members at its business meeting 
February 28-March 1, 2007.
---------------------------------------------------------------------------
    Section 401(f)(3)(B) of P.L. 109-432 states that beginning October 
1, 2007, certified states shall not be paid under 402(g)(1). This 
provision is a complete exclusion. It prohibits certified States or 
Indian tribes from receiving grants funded by the reclamation fee 
effective October 1, 2007. There is no language in this section to 
support an interpretation that a certified State or Indian Tribe can 
receive after October 1, 2007 grants funded by reclamation fees 
collected prior to October 1, 2007.
    In order to support the position that the exclusion established by 
Section 401(f)(3)(B) does not apply to grants issued in fiscal year 
2008 if funded by reclamation fees collected during fiscal year 2007, 
OSM staff have explained that the term ``received'' as used in Section 
401(f)(3)(B) means ``allocated''. This interpretation is contrary to 
the normal and ordinary usage of the term ``received'' and is contrary 
to standard principles of statutory construction. Unless the context 
clearly indicates otherwise, or the word has been given a specific 
definition, words in a statute are to be given their normal meaning.
    Relying on this interpretation, OSM has developed a distribution 
chart dated February 22, 2007, showing that $41.6 million will be paid 
to the certified States or Indian tribes under 402(g)(1) in FY 2008. 
This distribution represents FY 2007 fee collections. This approach is 
correct for distributions to non-certified states as required by 
401(f)(2) and (3). However, Section 401(f)(3)(B) prohibits certified 
States or Indian tribes from receiving payments of funds under 401(f) 
beginning on October 1, 2007. The fees collected and allocated in FY 
2007 are to be included in the amounts due to the states that are 
allocated but not appropriated under Section 411(h)(1)(B). These funds 
are then paid over seven years, beginning in FY 2008 under 
411(h)(1)(C).
    The effect of this misinterpretation of Section 401(f)(3)(B) and 
411(h)(1)(B) is that $41.6 million would be paid to certified States or 
Indian tribes with fee collections instead of Treasury funds as 
required by Section 411(h)(1)(A)(i). The funds so paid will then not be 
available to be reallocated as historic share funds available for 
grants under Section 411(h)(4)(A). Furthermore, the interest that 
should be earned annually on this $41.6 million and paid to the 
Combined Benefit fund would not be earned and available to be paid.
    The draft language in the Proposed and the Interim-final 
regulations on this subject is consistent with the statutory language 
in P.L. 109-432 and so does not need to be changed. However OSM's 
interpretation of P.L. 109-432 is flawed. Based on the above arguments, 
the NAAMLP and IMCC urge OSM to revise the proposed AML funding 
distribution chart to show that:

          (a) no state share funds are distributed to the certified 
        States or Indian tribes in FY 2008; but,
          (b) The $41.6 million should then be included in the 
        calculation of the amount due to certified States and Indian 
        tribes under Section 411 (h)(1)(B).
Adjustments to the Grants Process
    There is a fair amount of concern by the states and tribes about 
how the grants process will work under the 2006 Amendments. With the 
increased amount of money that will be flowing to the states, it will 
be incumbent on both OSM and the states and tribes to be particularly 
sensitive to the impacts on the grants process--especially with regard 
to the length of grants, rollovers, tracking of grant amount 
(especially by account), recapture, and paperwork reduction. We assert 
that the timing is ripe for revisiting the existing simplified grants 
process to consider additional streamlining and simplification. There 
is some concern that the 2006 Amendments could unnecessarily complicate 
the paperwork demands associated with annual grants, especially if we 
are required to track various kinds of moneys that are received. It 
will be particularly important to clarify that moneys are ``expended'' 
once they are obligated, encumbered or otherwise committed for 
projects. Even with this, deobligation could become a problem if we are 
unable to roll grants over from year to year. We understand that OSM 
will be considering various adjustments to the Federal Assistance 
Manual and to its AML directives and we request an opportunity to 
review those revisions once they are available. This may present an 
ideal opportunity for further clarifications to address the above 
concerns.
Annual Distribution Charts
    It will be critical for the states and tribes to receive the annual 
distribution charts for AML grants as soon as practicable after the 
beginning of each fiscal year (i.e. by no later than November 15) . 
This will be particularly true in the first few years as the states and 
tribes attempt to forecast how the distribution will impact their 
respective programs. In this regard, we have attached a chart that, in 
simplified terms, demonstrates our understanding of the gross 
distribution formula as presented by OSM to date. It should be noted 
that the states and tribes do not agree with this distribution formula, 
as indicated by our comments on the proposed and interim rules. In 
fact, we have argued in these comments for various adjustments to the 
formula and to the use of the distributed funds based on our reading of 
the new 2006 AML amendments. Nonetheless, we would appreciate OSM's 
comments on our attempt to capture OSM's distribution formula under 
their interpretation of the 2006 Amendments and any additional 
explanations (flowcharts) that OSM can share with us regarding their 
interpretation of the distribution formula under the new law.
Training
    It will be very important for the states and tribes to receive the 
necessary training to implement the provisions of the new rules, once 
they are in place--especially as they impact the grants process. We 
urge OSM to keep this in mind as they consider implementation plans for 
the future.
Preamble Language
    We recognize that one mechanism OSM has available to clarify 
certain aspects of the proposed and interim final rules is through the 
use of preamble language. We would encourage OSM to do so. One example 
is the need to adjust the priority matrix contained in the Federal 
Assistance Manual (FAM) to reflect regional differences in land use 
patterns. Given that much of SMCRA's history was predicated on land use 
patterns and experience with hazards in the Eastern United States, 
there are unintentional gaps that fail to recognize the uniqueness of 
circumstances in other regions of the country. Whereas residents of 
Eastern states, for instance, may have residences or other structures 
that were built adjacent to known hazards, residents of Western states 
(and non-resident recreational users of Western lands) are exposed to 
AML features that consist of largely unknown hazards that are equally, 
if not more, dangerous than ``known'' features. Thus, as we consider 
what would be defined as an ``extreme danger'', we need to be cognizant 
of the fact that unknown hazards in remote or rural areas can be even 
more dangerous than known dangers as the unsuspecting public encroaches 
on these areas through occasional use or through urban sprawl. 
Recognizing the exposure of the populace to the hazards associated with 
abandoned mine sites will assist the states, tribes and the federal 
government in fully implementing the objectives of the AML program 
under SMCRA.

    II. PROPOSED REVISIONS TO OSM'S DRAFT PROPOSED AND INTERIM RULES

    The NAAMLP and IMCC recommend the following changes to OSM's draft 
proposed and interim final rules based on the above commentary.
Section 870.5--Definitions
    ``Adjacent''--change to read as follows:

          Adjacent means adjoining, in proximity to or contiguous with 
        eligible lands and waters.

    Justification: OSM's draft rule implies that a Priority 1 or 2 
project must be undertaken in order for a Priority 3 project to be 
considered ``adjacent to'' the Priority 1 or 2 problem. This is not 
what the law requires. It is not a matter of priority; it is a matter 
of proximity. As long as the Priority 3 project is geographically 
connected to the Priority 1 or 2 site, the test is satisfied. 
Furthermore, OSM's proposed language conflicts with statutory 
provisions in sections 403(a)(1)(B)(ii) and (2)(B)(ii) that eligible 
lands include those that ``are adjacent to a site that has been or will 
be remediated.'' (emphasis added). In its proposed language, OSM is 
implying that for a priority 3 feature to be eligible, it has to be 
reclaimed in order to access or remediate the priority 1 or 2 feature. 
This simply cannot be the case if the priority 1 or 2 feature has 
already been reclaimed or may be so in the future, as anticipated by 
the 2006 amendments. We recommend use of the common dictionary 
definition of ``adjacent''. We also oppose the concept of tying the 
definition to a monetary determination. There is nothing in the law to 
support this criterion and we believe it would be difficult to 
determine and apply. The use of a proximity criterion will also allow 
us to take into consideration public rights of way, roads, etc, that 
may be present at or near the site. Finally, to define the term 
otherwise would be to severely limit the number and types of Priority 3 
projects that could be addressed, which is contrary to the intent of 
the law.

    ``In conjunction with''--change to read as follows:

          In conjunction with means reclamation of priority 3 features 
        in phases or through a combination of contracting and 
        construction with priority 1 and/or 2 features.

    Justification: It is important to recognize that Priority 3 work 
cannot only be done in conjunction with a Priority 1 or 2 feature 
through a combined contracting or construction effort, but in phases of 
construction with a Priority 1 or 2 project, especially where the 
project is particularly large or the AML program is small (as with the 
minimum program states). We recommend deletion of the phrase ``would 
have provided significant savings to the AML fund'' for the same reason 
we recommend deletion of the last sentence in the definition: these 
terms are elusive and difficult to define and quantify. The law does 
not specify this type of monetary criterion and it would be challenging 
to implement. We assert that it is best to focus on the administrative 
aspects of project work, which are easier to define. Finally, to define 
the term otherwise would be to severely limit the number and types of 
Priority 3 projects that could be addressed, which is contrary to the 
intent of the law.

    ``Qualified Hydrologic Unit''--change to read as follow:

          Change the word ``and'' to ``or'' between subparagraphs 
        (b)(1) and (2), as in the existing regulations.

    Justification: We realize that OSM's new definition is consistent 
with the statutory language, but actual practice over the past 25 years 
has been that hydrologic units are defined as containing lands and 
waters that are either eligible OR the subject of bond forfeitures, but 
not both. To define the term otherwise would be to severely limit the 
scope of this important provision of the law. With the new emphasis on 
allowing states to set aside upwards of 30% of their AML funds for the 
abatement of acid mine drainage projects, to limit the definition in 
this way would emasculate the purposes and intent of the program.
Section 872.11(b)(1)--Abandoned Mine Reclamation Fund
    Delete section 872.11(b)(4)(ii)(E).
    Justification: Based on the arguments articulated above with 
respect to the use of the states' and tribes' unappropriated share 
balances, this section should be deleted. There is no basis to restrict 
the use of these moneys for noncoal reclamation.
Section 872.13--Other Treasury Funds for Abandoned Mine Reclamation 
        Programs
    Change the reference in the introductory phrase of subparagraphs 
(a) and (b) to read: ``872.11(b)(1)(vi) and (b)(2)(vi)''--NOT 
``(vii)''.
    Change Subparagraph (a) and (b) to read as follows: 
``Notwithstanding Sec. 872.11(b)(1)(vi) and (b)(2)(vi), from funds in 
the Treasury not otherwise appropriated and transferred to the 
Secretary of the Interior pursuant to section 402(i)(2) of the Act, 
effective October 1, 2007, OSM shall make payments to States and Indian 
tribes . . . .'' Also, in subparagraph (a), change the reference to 
``prior balance funds'' to ``prior balance payments''.
    Change section 872.13(a)(3) to read as follows: ``States and Indian 
tribes may apply for and receive these annual installments in grants, 
following the provision of Section 886. Unless a certified State or 
Indian tribe specifically requests that OSM disburse funds due the 
State or Tribe in whole or in part through a grant or grants, payments 
referred to in Section 411(h)(1)(A) (prior balance payments) shall be 
made in one lump sum payment to the State or Tribe no later than 90 
days after the start of the federal fiscal year in which the payment is 
due.''
    Change section 872.13(b)(3) as follows: delete the current language 
and insert the following: ``Unless a certified State or Indian tribe 
specifically requests that funds be disbursed through a grant or grants 
following the provisions of section 886, payments referred to in 
Section 411(h)(2)(A) (in lieu of payments) shall be made annually in 
one lump sum payment to the State or Tribe no later than 90 days after 
the end of the federal fiscal year in which the collections are made.''
    Change section 872.11(b)(4) by striking the word ``shall'' and 
inserting ``may''.
    Justification: All of these changes are intended to reflect the 
discretionary authority vested in the Secretary to make payments to 
states and tribes through either grants or direct payments, depending 
on the preference and needs of the respective state or tribe. Section 
411(h) uses the term ``payments'' which appears to embrace a wider 
degree of flexibility regarding distribution of funds other than just 
grants. See also the discussion on this topic above.
    Change subparagraph 872.13(a)(5) to read as follows:

          (5) States and Indian tribes that are not certified under 
        section 411(a) of the Act shall use any amounts available under 
        this paragraph to achieve the priorities described in sections 
        403(a)(1),(2) and (3) of the Act, for water supply restoration 
        under sections 403(b)(1) and (2) of the Act, for AMD abatement 
        under section 402(g)(6) and for noncoal reclamation under 
        section 409 of the Act.

    Justification: The 2006 Amendments at Section 411(h)(1)(D)(ii) 
state that the unappropriated prior state and tribal share funds must 
be used as described at section 403. In interpreting the meaning of 
sections 411 and 403, the entire statute must be read in context. When 
doing so, it is clear that section 403 is modified by section 409. 
Section 409 provides for expenditure of funds at any priority 1 or 2 
site, regardless of commodity mined. Furthermore, section 409(b) states 
that the 50% state and tribal share can be used for noncoal reclamation 
(referencing section 402(g)). The unappropriated state and tribal 
shares are in fact the balance of the 50% shares referenced in section 
402(g) that have been held in abeyance over the years. There should be 
little ambiguity that this money is available for noncoal reclamation 
(as well as for the 30% AMD set-aside). If Congress had intended to 
somehow qualify or restrict the use of the unappropriated balances, it 
could easily have done so in section 411. However, it failed to do so 
and thus we can only assume that the traditional funding mechanism that 
has prevailed over the past 30 years remains intact. Such an 
interpretation is also consistent with the purposes and objectives of 
Title IV of SMCRA, which are to protect citizens from the adverse 
impacts of past mining practices--both coal and noncoal.
    Add a new subparagraph 872.13(b)(5) as follows: ``Payments referred 
to in section 872.13(b)(3) to certified States and Tribes shall be used 
with priority given to abandoned coal mine reclamation needs until the 
State or Tribe and OSM determine that abandoned coal mine reclamation 
is substantially complete. Thereafter, current in lieu payments will be 
used for purposes established by the state legislature or tribal 
council.''
    Justification: The law and draft rules are unclear as to how 
certified states and tribes may use current in lieu funds when the 
state or tribe has completed abandoned coal mine reclamation. Current 
in lieu funds in excess of those required for completion of abandoned 
coal mine reclamation should be used for purposes established by the 
state legislature or tribal council with priority given to addressing 
the impacts of mineral development.
Section 873.12--Future set-aside program criteria
    In subparagraph (a), change the last phrase to read as follows: `` 
. . . are expended by the State or Indian tribe solely to achieve the 
priorities stated in Sections 403(a) and 409 of the Act, 30 U.S.C. 1233 
and 1239, after September 30, 1995''.
    Justification: This adjustment is needed to clarify that funds set-
aside by the states prior to December 12, 2006 are available for both 
coal and noncoal work.
Section 875.15--Reclamation priorities for noncoal program.
    Delete Subparagraphs (c)--(f).
    Justification: These subparagraphs must be deleted in order to be 
consistent with the new provisions in the 2006 Amendments at section 
411(h)(1)(D)(i) regarding use of AML funds by certified states and 
tribes. Pursuant to this section of the 2006 Amendments, certified 
states and tribes are allowed to use their AML funds ``for the purposes 
established by the State legislature or tribal council of the Indian 
tribe, with priority given for addressing the impacts of mineral 
development''. Thus those provisions in OSM's existing regulations that 
provide for a concurrence role by the OSM Director are no longer 
applicable and should be removed. Furthermore, as we argue above, the 
payment mechanism that will attend the distribution of these funds will 
likely be different than what has occurred in the past, and therefore 
the provisions in subparagraphs (c), (e) and (f) will likely no longer 
be applicable.
Section 876--Acid Mine Drainage Treatment and Abatement Program
    Section 876.12 Eligibility--add the following: ``or up to 30% of 
the funds received pursuant to Section 4121(h)(1) of the Act.''
    Justification: this language clarifies that up to 30% of the prior 
unappropriated state and tribal share balances distributed form 
Treasury funds may be deposited into state and tribal AMD set-aside 
funds.
Section 886.12(b)--Coverage and amount of grants.
    Change subparagraph (b) to read: ``Grants shall be approved for 
reclamation of eligible lands and water in accordance with sections 404 
and 411 of the Act and 30 CFR 874.12, 875.12 and 875.14, and in 
accordance with the priorities stated in sections 403, 409 and 411 of 
the Act . . . .''
    Justification: We have added section 409 as part of the priority 
reference to be consistent with the above changes regarding noncoal 
reclamation and to specifically reference noncoal lands.
Section 886.13 (b)--Grant period
    Change subparagraph (b) to read as follows: ``The Director shall 
approve a grant period on the basis of the information contained in the 
grant application. The grant period should normally be for 3 years, and 
may be extended. Grants of funds distributed in Fiscal Years 2008, 2009 
and 2010 shall be awarded for 5 years.''
    Justification: We understand that OSM will not require specific 
projects to be listed in the grant application, so this phrase has been 
removed. We also understand that OSM will allow extensions of the 
normal 3 year grant period and that those extensions may be for more 
than one year, which we believe is appropriate. Finally, we assert that 
the 2006 Amendments specifically call for a 5 year grant period for 
Fiscal Years 2008--2010 and that this is a mandatory requirement.
    One further note: it does not appear that the section 411(h)(1) 
Treasury funds are subject to any of the grant period timelines 
established by section 402(g)(1)(D). Nor does there appear to be any 
authority in the Act to establish timelines for the use of 411 funds. 
Thus, an annual distribution payment in the full amount due under 
section 411 should be available as an option for grants to each state/
tribe, which in turn could be deposited into a separate state account 
and considered state funds and used without restriction for any section 
403 priority (including AMD abatement).
Section 886.16(a)--Grant agreements
    Change subparagraph (a) to read as follows: ``OSM shall prepare a 
grant agreement that includes a general statement of the types of work 
to be covered by the grant.''
    Justification: We assert that the grant agreement need only contain 
a general statement of the types of work to be covered by the grant, 
not a listing of specific projects. This change is intended to clarify 
that intent.
Section 886.26--Unused Funds
    Delete subsections 886.26 (a)(iii) and (iv). Also, delete 
subparagraph 886.26(b) and add the following: ``Deobligation 
requirements do not apply to certified States and Tribes.''
    Justification: No treasury payments should be subject to 
deobligation requirements. OSM should work with the states and tribes 
to insure that funds do not revert back to the Treasury. With maximum 
flexibility in designing payment protocols and with appropriate grant 
periods and applicable requirements, there should be no need for 
reversion of these payments, especially if OSM and the states/tribes 
are working together to closely monitor the situation.
    We appreciate the opportunity to submit these comments and trust 
that OSM will give them serious consideration as the agency moves 
forward with the development of the proposed and interim final rules. 
We would welcome the opportunity to meet with OSM to further discuss 
the draft rules, should you so desire.
            Sincerely,
                                               John Husted,
   President, National Association of Abandoned Mine Land Programs.
                                         Gregory E. Conrad,
          Executive Director, Interstate Mining Compact Commission.
      Attachment.--OSM Overview of AML Funding Per 2006 Amendments



                Attachment.--Stream Buffer Zone Comments
                                                 November 19, 2007.
Brent Wahlquist,
Director, Office of Surface Mining, Administrative Record, Room 252 
        SIB, 1951 Constitution Avenue, N.W., Washington, DC.
RE: RIN 1029-AC04

    Dear Director Wahlquist: This letter constitutes the comments of 
the Interstate Mining Compact Commission (IMCC) on proposed rules by 
the Office of Surface Mining Reclamation and Enforcement (OSMRE) 
concerning stream buffer zones, excess spoil and coal mine waste. The 
rules were published on August 24, 2007 at 72 Fed. Reg. 48890. IMCC is 
a multi-state governmental organization that represents the natural 
resource and environmental protection interests of its 24 member 
states. Many of IMCC's member states serve as primary regulatory 
authorities under the Surface Mining Control and Reclamation Act 
(SMCRA) and are responsible for the issuance of permits for surface 
coal mining operations throughout the U.S.
    We understand that OSM's intent under the proposed rules is to 
provide greater clarity regarding the interpretation of the stream 
buffer zone rules, especially with respect to what the rules require, 
consistent with underlying statutory authority. These rules have been 
in place for almost 25 years and have survived legal challenges both on 
their face and in actual application, as noted in OSMRE's preamble. 
What remains unclear is the degree to which application of the existing 
rules will result in continued legal challenges to future permitting 
actions. OSMRE's proposed rules appear to be aimed at clarifying the 
scope of their applicability in an effort to minimize future litigation 
and thereby provide greater certainty in the permitting process.
    Our analysis of the rules suggests that by expanding the scope of 
the rule to include all ``waters of the United States'' instead of just 
perennial and intermittent streams, OSM is further complicating the 
situation. The term ``waters of the United States'' is fraught with 
unresolved issues and jurisdictional difficulties particularly in light 
of the Supreme Court's rulings in Solid Waste Agency of Northern Cook 
County v. Corps of Engineers (SWANCC), and Rapanos v. Untied States 
(Raponos). The guidance provided by the U.S. Army Corps of Engineers 
(Corps) on these decisions is still in limbo and legislation and 
lawsuits on the issues continue unabated. OSM asks in its preamble 
whether this proposed change in the administration of SMCRA regulatory 
programs makes sense, and whether the benefits outweigh the problems. 
The answer to both questions, from our perspective, is probably not.
    With regard to the alternatives analysis that has been proposed for 
excess spoil fills and coal mine waste disposal, we envision even less 
clarity. The model proposed by OSM in its proposed rules will, in our 
opinion, result in unending litigation concerning whether the correct 
alternative was selected by the permit applicant and approved by the 
state. Rather than reducing uncertainty, the rule has the potential to 
perpetuate it. Of greater concern to the states is the impact that 
these types of analyses will have on resources. We assert that the time 
and effort which will be required by state permitting personnel to 
adequately review and rule upon these alternative analyses will be 
potentially overwhelming. Given the current fiscal constraints under 
which the states are operating, attempting to accommodate the 
requirements of the proposed rules could seriously jeopardize these 
primacy programs. Finally, the alternative analysis is duplicative of 
requirements under the Clean Water Act that are already encompassed by 
the SMCRA permitting scheme, as noted in OSM's preamble.
    We trust that, as OSM proceeds forward with the rulemaking process, 
the agency will seriously consider these two significant concerns from 
the state regulatory authorities. OSM will also likely receive comments 
from individual states on these and other aspects of the proposed rule, 
which we commend to your serious review and consideration. In the end, 
we hope that OSM will develop a final rule that addresses these matters 
and that clarifies the issues addressed in its preamble. We welcome the 
opportunity to work with the agency to accomplish this important 
undertaking.
            Sincerely,
                                         Gregory E. Conrad,
                                                Executive Director.
                                 ______
                                 
      Responses of Joan Mulhern to Questions From Senator Bingaman
    Question 1a. Stream Buffer Zone Rule--Please summarize the Federal 
District Court holding in Bragg v. Robertson, 72 F. Supp.2d 642 
(S.D.W.V. 1999), rev'd, 248 F.3 275 (4th Cir. 2001). I understand that 
the Court of Appeals for the Fourth Circuit reversed the District Court 
ruling on procedural grounds (sovereign immunity), leaving Judge 
Haden's substantive pronouncements on SMCRA as the operative 
interpretation.
    Answer. Mr. Chairman, that is correct. The requirements of the 
current Stream Buffer Zone rule are clear on their face. There are not 
many federal environmental regulations where compliance can be 
determined by using a tape measure, but the Stream Buffer Zone is such 
a rule. It has been interpreted by West Virginia federal district Judge 
Charles Hayden (as well as the Clinton administration) in a manner that 
is consistent with its plain language, and that ruling was not 
overturned on its merits. The rule states:

          (a) No land within 100 feet of a perennial stream or an 
        intermittent stream shall be disturbed by surface mining 
        activities, unless the regulatory authority specifically 
        authorizes surface mining activities closer to, or through, 
        such a stream. The regulatory authority may authorize such 
        activities only upon finding that--

    --(1) Surface mining activities will not cause or contribute to the 
            violation of applicable State or Federal water quality 
            standards, and will not adversely affect the water quantity 
            and quality or other environmental resources of the stream; 
            and
    --(2) If there will be a temporary or permanent stream-channel 
            diversion, it will comply with Sec.  816.43.

          (b) The area not to be disturbed shall be designated as a 
        buffer zone, and the operator shall mark it as specified in 
        Sec.  816.11. 30 C.F.R. Sec.  816.57 (1983) (emphasis added).

    When adopting the Stream Buffer Zone rule in 1983, the Office of 
Surface Mining (OSM) recognized the importance of protecting mountain 
streams consistent with the statute. The agency explained that 
``intermittent and perennial streams generally have environmental 
resource values worthy of protection under section 515(b)(24),'' and 
``surface coal mining operations will be permissible as long as 
environmental protection will be afforded to those streams with more 
significant environmental values'' (i.e. intermittent and perennial 
streams).\1\
---------------------------------------------------------------------------
    \1\ 43 Fed. Reg. at 30313 (June 30, 1983).
---------------------------------------------------------------------------
    Thus, the 1983 rule was clear, both in the language of the 
regulation itself and the accompanying preamble statement that 
intermittent and perennial streams needed to be protected pursuant to 
the statutes. Surface coal mining activities (including valley fills 
and coal waste impoundments) within 100 feet of these valuable 
intermittent and perennial streams were not allowed--the streams were 
to be protected within a designated a buffer zone--except only to the 
extent that incursions into the zone would not adversely affect stream 
function, water quality, water quantity, or other environmental values.
    In October 1999, Judge Haden, then Chief Judge of the District 
Court for the Southern District of West Virginia, ruled that ``[v]alley 
fills are waste disposal projects so enormous that, rather than the 
stream assimilating the waste, the waste assimilates the stream.'' 
Bragg v. Robertson, 72 F. Supp.2d 642, 662 (S.D.W.Va. 1999), vacated on 
other grounds, Bragg v. West Virginia Coal Ass'n, 248 F.3d 275 (4th 
Cir. 2001), cert. denied, 534 U.S. 1113 (2002). Judge Haden further 
observed that id. at 662, and went on to note that:

          [w]hen valley fills are permitted in intermittent and 
        perennial streams, they destroy those stream segments. The 
        normal flow and gradient of the stream is now buried under 
        millions of cubic yards of excess spoil waste material, an 
        extremely adverse effect. If there are fish, they cannot 
        migrate. If there is any life form that cannot acclimate to 
        life deep in a rubble pile, it is eliminated. No effect on 
        related environmental values is more adverse than obliteration. 
        Id. at 661-62 ) (emphasis added).

    Not surprisingly, Judge Haden ruled that ``placement of valley 
fills in intermittent and perennial streams violates federal and state 
water quality standards'' and are impermissible under the Stream Buffer 
Zone rule. Id. at 662. While the case was overturned on jurisdictional 
grounds, Judge Haden's substantive observations, which the Court of 
Appeals did not address, are valid and compelling. See Bragg v. West 
Virginia Coal Ass'n, 248 F.3d 275 (4th Cir. 2001).
    It is also worth noting that in its brief on appeal in the Bragg 
case, the United States Department of Justice, representing OSM, EPA 
and the Army Corps of Engineers, essentially conceded that Judge 
Haden's interpretation of the law was correct:

    [Judge Haden] correctly found that SMCRA's stream buffer zone rule. 
. . prohibits the burial of substantial portions of intermittent and 
perennial streams beneath excess mining spoil. The elimination of 
substantial intermittent or perennial stream segment [sic] necessarily 
causes adverse environmental effects, as it eliminates all aquatic life 
that inhabits those stream segments. As the district court rightly 
concluded, the elimination of entire stream segments and all the life 
they contain plainly causes environmental harm. Accordingly, the 
district court correctly granted summary judgment on plaintiffs' buffer 
zone claims.\2\
---------------------------------------------------------------------------
    \2\ Brief for the Federal Appellants, 4th Cir., No. 99-2683, April 
17, 2000 (hereafter ``U.S. Br.''), p. 2. In the 2004 proposal to change 
the Stream Buffer Zone rule, OSM suggested that the DOJ brief is ``not 
consistent with our historic interpretation'' and that OSM never agreed 
with it or approved it. 69 Fed. Reg. at 1039-40. That is untrue. DOJ 
told the Fourth Circuit that ``Attorneys for EPA and OSM are identified 
on the cover of the federal appellants' brief as being `of counsel' to 
this appeal, and the position taken in the brief for the federal 
appellants represents the unified position of the federal agencies.'' 
Federal Appellants' Opposition to the Motion of the Intervenor-
Defendants to Strike the Brief of the Federal Appellants and to Dismiss 
Appeal No. 99-2683, p. 2, Attachment 2.

---------------------------------------------------------------------------
    Additionally, these agencies stated that:

          The district court also correctly. . .[held]. . .that the 
        burial of substantial portions of intermittent or perennial 
        streams in valley fills causes adverse environmental impact in 
        the filled stream segments and therefore cannot be authorized 
        consistent with the buffer zone rule. The uncontested evidence 
        demonstrates that the burial of substantial portions of 
        intermittent or perennial streams causes adverse environmental 
        effects to the filled stream segments, as such fills eliminate 
        all aquatic life that inhabited those segments.\3\
---------------------------------------------------------------------------
    \3\ Id. at 24-25 (emphasis added).

    OSM, EPA, and the Corps further stated that ``valley fills that 
disturb intermittent or perennial streams may be approved only if there 
is a finding that activity will not adversely affect the environmental 
resources of the filled stream segment.''\4\
---------------------------------------------------------------------------
    \4\ Id. at 41.
---------------------------------------------------------------------------
    In a May 22, 2000 letter, Acting OSM Director Kathrine Henry 
adopted the same position that ``the stream buffer zone waiver findings 
must be made not only for segments downstream of the fill, but also for 
each segment of an intermittent or perennial stream in which excess 
spoil is placed.'' In its 2004 proposed rule, OSM admitted that this 
brief and this Acting Director's letter took the position that the rule 
applied to valley fills.\5\
---------------------------------------------------------------------------
    \5\ 69 Fed. Reg. at 1040.
---------------------------------------------------------------------------
    Now OSM has completely reversed their position and would totally 
exempt valley fills, waste impoundments, and other stream incursions 
from the rule. And, quite cynically, in its 2007 proposed rule, OSM 
conveniently omitted any material indicting that it has reversed 
itself. Instead, the agency cryptically cross-referenced its former 
brief and other materials as an ``additional discussion of litigation 
and related matters.''\6\
---------------------------------------------------------------------------
    \6\ 72 Fed. Reg. at 48896.
---------------------------------------------------------------------------
    Question 1b. Do you agree with the District Court that the current 
buffer zone rule applies to all portions of a perennial or intermittent 
stream and that the buffer zone rule can be harmonized with other SMCRA 
regulations?
    Answer. Yes. In his decision, Judge Haden wrote that ``[n]othing in 
the statute, the federal or state buffer zone regulations, or the 
agency language promulgating the federal regulations suggests that 
portions of existing streams may be destroyed so long as (some other 
portion of) the stream is saved.'' Bragg, 72 F. Supp.2d at 651.
    As to the second part of the question: it is not at all difficult 
to harmonize the Stream Buffer Zone with the other SMCRA regulatory and 
statutory provisions. In fact, the difficulty lies in trying to 
harmonize the legal and legislative interpretations of those wishing to 
repeal the rule. They must explain how Congress could have passed a law 
in 1977 to protect coal field residents from the worst abuses of strip 
mining, yet would condone environmental abuses that are far worse than 
those Congress was trying to rein in 30 years ago.
    SMCRA grew from decades of concerns about the environmental effects 
of strip mining practices, and was intended to provide new and 
significant additional environmental protections for affected local 
communities. In the legislation, Congress found that:

          [M]any surface mining operations result in disturbances of 
        surface areas that burden and adversely affect commerce and the 
        public welfare by destroying or diminishing the utility of land 
        for commercial, industrial, residential, recreational, 
        agricultural, and forestry purposes, by causing erosion and 
        landslides, by contributing to floods, by polluting the water, 
        by destroying fish and wildlife habitats, by impairing natural 
        beauty, by damaging the property of citizens, by creating 
        hazards dangerous to life and property by degrading the quality 
        of life in local communities, and by counteracting governmental 
        programs and efforts to conserve soil, water, and other natural 
        resources.\7\
---------------------------------------------------------------------------
    \7\ 30 U.S.C. Sec. 1201(b).

    While recognizing the role played by coal in addressing the 
nation's energy needs, Congress also found that it was ``urgent'' in 
1977 to establish federal standards to ``minimize damage to the 
environment.''\8\ The very first stated purpose of SMCRA is to 
``establish a nationwide program to protect society and the environment 
from the adverse effects of surface coal mining operations.''\9\ The 
law that Congress passed was not perfect; some at the time believed the 
final law was too great a compromise, especially after Congress failed 
to pass earlier legislation to outlaw strip mining altogether. 
Nonetheless, SMCRA does place some meaningful restrictions on surface 
mining operations and require that certain natural resources, including 
streams and other ``watercourses,'' be protected.\10\
---------------------------------------------------------------------------
    \8\ 30 U.S.C. Sec. 1201(c) (emphasis added).
    \9\ 30 U.S.C. Sec. 1202(a).
    \10\ See, e.g., 30 U.S.C. Sec. 1265(c)(3)(D).
---------------------------------------------------------------------------
    Recognizing several important environmental objectives, the Act 
provides that surface mining operations may be authorized only if the 
permitting authority finds:

          (1) that the mining operations will ``minimize disturbances 
        and adverse impacts . . . on fish, wildlife, and related 
        environmental values'';
          (2) that ``no damage will be done to natural watercourses'';
          (3) that the excess spoil will be placed in an area that 
        ``does not contain springs, natural water courses or wet 
        weather seeps unless lateral drains are constructed from the 
        wet areas to the main underdrains in such a manner that 
        filtration of the water into the spoil will be prevented''; and
          (4) that the disposal ``is compatible with the natural 
        drainage patterns and surroundings.''\11\
---------------------------------------------------------------------------
    \11\ 30 U.S.C. Sec. Sec.  1265(b)(10), (22), (24); Sec.  
1265(c)(4)(D).

    Moreover, SMCRA mandates that mining operations must ``minimize the 
disturbance to the prevailing hydrologic balance at the mine site and 
in associated offsite areas.''\12\
---------------------------------------------------------------------------
    \12\ 30 U.S.C. Sec.  1365(b)(10). This provision clearly 
demonstrates an intent to protect environmental values both within the 
footprint of the mine site (including at spoil sites and impoundments) 
and at downstream locations.
---------------------------------------------------------------------------
    OSM first promulgated the Stream Buffer Zone rule in 1977 in an 
interim form. The interim rule established the 100 foot buffer-zone as 
well as the variance provision, although the 1977 rule did not specify 
under what conditions a permitting authority may grant a variance. In 
1979, OSM adopted a permanent Stream Buffer Zone rule that restricted 
mining activities within 100 feet of any stream ``with a biological 
community,'' and that included variance criteria.\13\ The criteria 
included in the 1979 rule required that before a permitting authority 
could authorize mining activity within the buffer zone, it must find 
``that the original stream channel will be restored'' and that ``during 
and after the mining, the water quantity and quality from the stream 
section within 100 feet of the surface mining activities shall not be 
adversely affected.'' OSM explained in the preamble to the 1979 rule 
that the provisions of the rule were ``required to protect streams from 
the adverse effects of sedimentation and from gross disturbance of 
stream channels.''\14\
---------------------------------------------------------------------------
    \13\ 30 C.F.R. Sec.  816.57(a) (1979). The regulation also included 
specific provisions for identifying the presence of a biological 
community. 30 C.F.R. Sec.  816.57(c) (1979).
    \14\ The two types of impacts noted by OSM in its 1979 rule 
recognized the affects of both the activities within the footprint of 
the mine site (e.g., valley fills) and downstream adverse affects, 
respectively ``gross disturbances,'' ``sedimentation.''
---------------------------------------------------------------------------
    In 1983, OSM adopted the current version of the Stream Buffer Zone 
rule. In so doing, OSM eliminated the reference that was in the 1979 
rule to streams with ``a biological community'' and removed the 
provision requiring restoration of the original stream channel. 
Instead, the 1983 OSM rule identified all perennial and intermittent 
streams as worthy of protection under the rule, and added a requirement 
that any mining activities authorized within the 100 foot buffer zone 
may not cause or contribute to a violation of an applicable water 
quality standard and may not ``adversely affect the environmental 
resources of the stream.''\15\ So consistent with the language and 
intent of SMCRA, the current Stream Buffer Zone rule provides 
meaningful protection for the important water resources most likely to 
be affected by destructive mining practices like mountaintop removal.
---------------------------------------------------------------------------
    \15\ 30 C.F.R. Sec.  816.57(a) (1983).
---------------------------------------------------------------------------
    Opponents of the Stream Buffer Zone often point to the language of 
the statute that says that excess spoil shall only be placed in an area 
that ``does not contain springs, natural water courses or wet weather 
seeps unless lateral drains are constructed from the wet areas to the 
main underdrains in such a manner that filtration of the water into the 
spoil will be prevented.'' Pointing to this single passage, these 
opponents essentially say: ``Aha! Congress created conditions for when 
excess spoil can be placed in springs or seeps, so that proves Congress 
must have meant to allow valley fills to go into intermittent or 
perennial streams!''
    Such arguments not only ignore other parts of the statute directing 
OSM to protect natural water courses (and the entire purpose of the 
statute, which is to protect communities and the environment), but it 
is not even what the provision says. This cited language is an 
exception to the rule about not putting spoil in any wet area; the 
statute says if any spoil does get placed in a wet area there must be 
drains. This does not mean that Congress thereby meant that the 
majority of spoil should be dumped into permanent and seasonally 
flowing streams. In other words, the language about using lateral 
drains when some spoil gets in some wet areas--like seeps, springs, of 
ephemeral watercourse--is perfectly consistent with the view of the law 
that the Stream Buffer Zone rule prevents spoil from being dumped into 
intermittent and perennial streams.
    Question 1c. In your view, has the current buffer zone rule being 
enforced in accordance with this interpretation?
    Answer. No, it is not. Mountaintop removal mining and valley 
filling has already destroyed over 2000 miles of Appalachia's streams; 
some estimate that the number of streams destroyed is much higher. 
According to the final Programmatic Environmental Impact Statement on 
Mountaintop Mining/Valley Fills in Appalachia (PEIS),\16\ there were 
5858 valley fills in the study area of West Virginia and Kentucky 
permitted between 1985 and 2000. It has been quite some time since the 
federal and state agencies responsible for implementing SMCRA and the 
Stream Buffer Zone rule have done their jobs consistent with the law. 
In fact, it seems that as the mountaintop removal mines have grown in 
size and destructiveness, the agencies have imposed fewer environmental 
protections for streams and other effected resources.
---------------------------------------------------------------------------
    \16\ 70 Fed. Reg. 62102.
---------------------------------------------------------------------------
    Question 1d. Has the Fourth Circuit's ruling in Kentuckians for the 
Commonwealth v. Riverburgh, 317 F.3d 425 (4th Cir. 2003), impacted the 
interpretation and application of the buffer zone rule under SMCRA? If 
so, in what way and why?
    Answer. The KFTC v. Rivenburgh has not directly impacted the 
interpretation of SMCRA's buffer zone rule, although the majority 
opinion in the case did briefly discuss the regulation. The KFTC case 
is a Clean Water Act case; a citizen group challenged the use of a 
Sec.  404 general permit--which are limited by the statute to authorize 
only dredge and fill activities with no more than a minimal adverse 
effects--to allow valley fills in waters of the United States. The 
citizens challenged the Corps' permit decision that allowed Martin Coal 
company to place coal mining waste (``excess overburden'') from one of 
its mountaintop removal projects into 27 valley fills in Martin County, 
Kentucky, burying approximately 7 miles of streams just at that one 
site. Specifically, KFTC argued that the Corps' 1977 regulations 
defining ``fill material'' did not allow the Corps to permit valley 
fills in waters of the U.S. because fill was defined as not including 
``waste'' and therefore outside of the Corps' jurisdiction.
    In its analysis, the court considered the relationship between the 
Clean Water Act and the SMCRA buffer zone rule, and opined that:

          [T]he Clean Water Act's relationship to SMCRA does not 
        provide a clear intent that Sec.  404's definition of ``fill 
        material'' is limited to a beneficial use. While SMCRA does not 
        define ``fill material,'' its term ``excess spoil material,'' 
        30 U.S.C. Sec.  1265(b)(22), is defined in the SMCRA 
        regulations as material placed ``in a location other than the 
        mined-out area.'' 30 C.F.R. Sec.  701.5 and 816/817.71-.74. 
        And, regardless of whether the fill has a beneficial primary 
        purpose, SMCRA does not prohibit the discharge of surface coal 
        mining excess spoil in waters of the United States. The 
        district court's reference to SMCRA's provision of a ``buffer 
        zone,'' see 30 C.F.R. Sec.  816.57, does not address the scope 
        of the Corps' jurisdiction under the Clean Water Act to 
        regulate all ``fill material.'' Indeed, it is beyond dispute 
        that SMCRA recognizes the possibility of placing excess spoil 
        material in waters of the United States even though those 
        materials do not have a beneficial purpose. Section 
        515(b)(22)(D) of SMCRA authorizes mine operators to place 
        excess spoil material in ``springs, natural water courses or 
        wet weather seeps'' so long as ``lateral drains are constructed 
        from the wet areas to the main underdrains in such a manner 
        that filtration of the water into the spoil pile will be 
        prevented.'' 30 U.S.C. Sec.  1265(b)(22)(D). In addition, Sec.  
        515(b)(24) requires surface mine operators to ``minimize 
        disturbances and adverse impacts of the operation on fish, 
        wildlife, and related environmental values, and achieve 
        enhancement of such resources where practicable,'' implying the 
        placement of fill in the waters of the United States. 30 U.S.C. 
        Sec.  1265(b)(24). It is apparent that SMCRA anticipates the 
        possibility that excess spoil material could and would be 
        placed in waters of the United States, and this fact cannot be 
        juxtaposed with Sec.  404 of the Clean Water Act to provide a 
        clear intent to limit the term ``fill material'' to material 
        deposited for a beneficial primary purpose.\17\
---------------------------------------------------------------------------
    \17\ Kentuckians for the Commonwealth v. Riverburgh, 317 F.3d 425 
(4th Cir. 2003).
---------------------------------------------------------------------------
    While we disagree with the court's reading of the Clean Water Act 
and its relationship to SMCRA, the court's discussion of the statute 
and the regulation are not inconsistent with our position that SMCRA 
requires that stream be protected and the buffer zone around 
intermittent and perennial is a proper (indeed, necessary) exercise of 
that authority by OSM. As discussed above, just because the statute 
contemplates that some spoil may be placed in some wet areas does not 
mean Congress intended--or would even allow--perennial and intermittent 
streams to be buried by valley fills.
    Question 2. Stream Buffer Zone Rule--Is it your legal opinion that 
the draft EIS for the proposed revisions to the stream buffer zone rule 
(72 Fed. Reg. 48890, August 24, 2007) complies with the National 
Environmental Policy Act (NEPA)? Why or why not?
    Answer. It is my opinion that the proposed rule change announced in 
the Federal Register in August 2007 does not comply with NEPA. The 
draft Environmental Impact Statement (DEIS) accompanying the proposed 
rule is inadequate on its face because it fails to consider vital 
information in the agency's possession about the enormous environmental 
devastation caused by mountaintop removal. It also fails completely to 
consider any meaningful alternative to changing the buffer rule, and 
does not give any serious consideration to enforcing the existing rule 
as written as the ``no action'' alternative, instead preferring to 
reserve that category for evaluating the OSM's present practice of 
completely ignoring the law.
    In its DEIS for the proposed rule, OSM considers only five 
alternatives in detail: a ``no action'' alternative, in which OSM would 
retain the current Stream Buffer Zone rule and continue to interpret it 
as allowing disposal of coal mining waste directly into streams and 
other mining activities within the Stream Buffer Zone; the proposed 
rule, which explicitly allows such activities; and three other 
alternatives that are nothing more than partial versions of the 
proposed rule. In other words, every alternative considered by OSM 
allows substantial disposal of coal mining wastes into streams. OSM 
does not consider any more environmentally protective alternatives, the 
most obvious of which is to enforce the current Stream Buffer Zone rule 
as written.
    The National Environmental Policy Act requires that an EIS describe 
(1) the ``environmental impact of the proposed action,'' (2) any 
``adverse environmental effects which cannot be avoided should the 
proposal be implemented,'' (3) any ``alternatives to the proposed 
action,'' and (4) any ``irreversible or irretrievable commitment of 
resources which would be involved in the proposed action should it be 
implemented.''\18\ NEPA implementing regulations make clear that an EIS 
must ``present the environmental impacts of the proposal and the 
alternatives in comparative form, thus sharply defining the issues and 
providing a clear basis for choice among options by the decision maker 
and the public,'' and ``rigorously explore and objectively evaluate all 
reasonable alternatives.''\19\ For failing to meet these requirements, 
the DEIS and proposed rule change are in violation of NEPA.
---------------------------------------------------------------------------
    \18\ 42 U.S.C. Sec.  4321. 4332(2)(C).
    \19\ 40 C.F.R. Sec.  1502.14 (emphasis added).
---------------------------------------------------------------------------
    OSM's proposed replacement of the Stream Buffer Zone rule is 
accompanied by a false and misleading description of the current rule 
that aims at making it sound consistent with OSM's failure to enforce 
the rule as written. But, as noted about, there is a world of 
difference between the existing rule as written and the new rewrite. 
The plain language of the current Stream Buffer Zone rule prevents OSM 
and state agencies from issuing permits for coal mining activities 
within 100 feet of streams, unless the permitting agency specifically 
confirms that the activities will not violate water quality standards 
and will not adversely affect water quantity, quality, or other stream 
resources. In comparison, OSM's proposed rule would specifically allow 
the dumping of coal mining spoil directly into streams that should be 
protected. By attempting to reinterpret the current rule as not 
preventing but already allowing such dumping, OSM is trying to create 
confusion in order to avoid studying a ``no action'' alternative that 
leaves the existing rule in place and contemplates the agency and 
states enforcing it.
    OSM's refusal to consider more environmentally protective 
alternatives based on the agency's judgment about their merit is 
inconsistent with well-established NEPA principles. Although, in a NEPA 
analysis, an agency judgment that there is ``inconclusive evidence may 
serve as justification for not choosing an alternative,'' such an 
agency judgment ``cannot serve as a justification for entirely failing 
to `rigorously explore and objectively evaluate all reasonable 
alternatives.'''\20\
---------------------------------------------------------------------------
    \20\ Fund for Animals v. Norton, 294 F. Supp. 2d 92, 110 (D.D.C. 
2003) (quoting 40 C.F.R. Sec.  1502.14).
---------------------------------------------------------------------------
    The only alternatives that OSM considered would allow valley fills 
to be dumped in any stream without any limitation on the length of 
stream ,or the types of stream, that could be buried and destroyed. The 
only ``limitation'' considered is just a vague, case-by-case 
determination that the overall fill be minimized, ``to the extent 
practical.''
    To comply with NEPA, and to be responsive and fair to the people of 
Appalachia, OSM must consider some alternatives that restrict filling 
of streams, including at the very least the enforcement of the existing 
Stream Buffer Zone rule as written. The failure to consider an 
appropriate range of viable alternatives, including alternatives with 
materially lighter environmental impacts, renders this NEPA analysis 
inadequate.\21\
---------------------------------------------------------------------------
    \21\ OSM itself admits that the agency ``would not anticipate a 
major shift in on-the-ground consequences from any of the 
alternatives,'' essentially conceding that there is no meaningful 
distinction between the ``alternatives'' it considered. Id. at 121; see 
also id. at 124 (proposed rule ``would cause no discernable changes'' 
in direct impacts on streams); see also id. at 126-27, 128, 131, 133, 
135, 142.
---------------------------------------------------------------------------
    Finally, by asserting that the proposed rule would not worsen the 
environmental status quo, and by refusing to consider any more 
environmentally protective alternatives, OSM also ignores the NEPA 
requirement to take a ``hard look'' at the significant adverse impacts 
of the proposed rule change, including the cumulative impacts that 
would result from allowing the current coal mining spoil disposal 
practices to continue unimpeded.
    The DEIS does note that mountaintop removal mining resulted in the 
destruction of over hundreds of mile of Appalachian streams between 
1985 and 2001 and an additional 535 miles between 2001 and 2005. If 
this rate of destruction continues, the proposed rule change would 
allow more than 1,000 miles of streams to be destroyed each decade into 
the future. Scientific evidence within the DEIS further confirms that 
these valley fills significantly degrade ecologically valuable 
headwater streams. But the DEIS' analysis of these cumulative impacts 
is completely non-existent.
    By discussing environmental impacts only in the narrow, relative 
terms of its myopic range of alternatives, OSM ignores the overwhelming 
evidence in the public record that current practices, and specifically 
valley fills associated with mountaintop removal mining, have 
devastating impacts on streams, forests, and their associated 
ecosystems, as well as wildlife and human communities.
    Accordingly, OSM's failure to consider any alternatives that are 
more environmentally protective than the status quo (of ignoring the 
law completely) is a blatant violation of NEPA.
                                 ______
                                 
    [Responses to the following questions were not received at 
the time the hearing went to press:]

           Question for Arvin Trujillo From Senator Domenici

    I support uranium mining as an essential piece of our nation's 
clean, nuclear power generation. It will be important to our energy 
security and will be done with safer, modern mining and milling 
technologies.
    The Navajo Nation and the state of New Mexico have engaged in a 
productive effort--to deal with what remains a separate issue from 
renewed mining--in cleaning up old, abandoned sites with AML funding.
    Question 1. How important is the OSM interpretation of Section 409 
authority for non-coal reclamation to this effort?


                              Appendix II

              Additional Material Submitted for the Record

                              ----------                              

  Statement of Joan Mulhern, Senior Legislative Counsel, Earthjustice

    Chairman Bingaman and Members of the Committee, thank you for 
holding this hearing to review the purposes and history of the federal 
Surface Mining Control and Reclamation Act (SMCRA), one of the nation's 
most important environmental protection laws--and one that is often 
overlooked, much to the detriment of the communities and natural 
resources of the coal mining regions of the country.
    I am Senior Legislative Counsel for Earthjustice, a national non-
profit law firm founded in 1971 as the Sierra Club Legal Defense Fund. 
Earthjustice represents, without charge, hundreds of public interest 
clients, large and small, in order to reduce water and air pollution, 
prevent toxic contamination, safeguard public lands, and preserve 
endangered species and other wildlife. Thank you for inviting me to 
this hearing today. I am not an expert on SMCRA as a general matter; 
most of my work at Earthjustice focuses on Clean Water Act issues. But 
I have worked on SMCRA policy and legal issues as they pertain to what 
is, today, the most radical and destructive form of coal strip mining, 
known as mountaintop removal.
    During mountaintop removal mining, hundreds of feet from the tops 
of mountains are blown off with explosives and removed in order to 
reveal the coal seams below. The former mountaintops, now reduced to 
rubble, are pushed over the sides of the mountain to create enormous 
waste piles, known as valley fills. These fills bury the headwater and 
perennial streams and everything else that was in the valley. Over the 
last thirty years, and during the last fifteen years especially, there 
has been a vast expansion in this form of strip mining.
    Whatever they might have predicted at the time about the likely 
successes (or failures) of the law, it is doubtful that the members of 
Congress who voted to pass SMCRA thirty years ago could have possibly 
imagined the widespread and irreversible destruction that is taking 
place today by mountaintop removal coal mining. Much of this damage is 
due to the failure of state and federal regulators to enforce key 
provisions of the Act and its implementing regulations that were 
designed to prevent this extreme form of environmental abuse.
    The Surface Mining Control and Reclamation Act of 1977 grew out of 
decades of concerns about the environmental effects of strip mining. 
When Congress passed the law, it clearly intended to provide new and 
significant protections for the environment and citizens of the region. 
In the legislation, Congress found that:

          [M]any surface mining operations result in disturbances of 
        surface areas that burden and adversely affect commerce and the 
        public welfare by destroying or diminishing the utility of land 
        for commercial, industrial, residential, recreational, 
        agricultural, and forestry purposes, by causing erosion and 
        landslides, by contributing to floods, by polluting the water, 
        by destroying fish and wildlife habitats, by impairing natural 
        beauty, by damaging the property of citizens, by creating 
        hazards dangerous to life and property by degrading the quality 
        of life in local communities, and by counteracting governmental 
        programs and efforts to conserve soil, water, and other natural 
        resources.\1\
---------------------------------------------------------------------------
    1 30 U.S.C. Sec. 1201(b).

    While recognizing the role played by coal in addressing the 
nation's energy needs, Congress also found that it was ``urgent'' in 
1977 to establish federal standards to ``minimize damage to the 
environment.\2\ The very first stated purpose in the law is to 
``establish a nationwide program to protect society and the environment 
from the adverse effects of surface coal mining operations.''\3\ The 
law that Congress passed was not perfect; some at the time believed the 
final law was too great a compromise, especially after Congress failed 
to pass earlier legislation to outlaw strip mining altogether. But it 
did place some meaningful restrictions on surface mining operations and 
required certain natural resources, including streams and other 
``watercourses'', be protected.\4\
---------------------------------------------------------------------------
    \2\ 30 U.S.C. Sec. 1201(c) (emphasis added).
    \3\ 30 U.S.C. Sec. 1202(a).
    \4\ See, E.g,. 30 U.S.C. Sec. 1265(c)(3)(D).
---------------------------------------------------------------------------
    The coal-rich mountains of central Appalachia are home to 
generations-old families and communities, and the region contains many 
beautiful hollows through which thousands of pristine and ecologically 
rich mountain streams flow. Mountaintop removal mining deliberately 
lays waste to these natural resources--the streams and the mountains--
and devastates the human and wildlife communities that depend on them. 
In less than two decades, mountaintop removal has already transformed 
huge expanses of one of the oldest mountain ranges in the world into a 
moonscape of barren plateaus and rubble-filled streams.
    This damage is occurring--and even accelerating--today, despite the 
provisions in SMCRA that Congress enacted to curb this type of extreme 
environmental abuse. According to one source, mountaintop removal mines 
involved forty-four permits covering 9,800 acres throughout the 1980s, 
yet in a nine-month period in 2002 alone, federal and state agencies 
issued permits for mountaintop removal mines to flatten and destroy an 
area covering 12,540 acres.\5\ Mountaintop removal and other large 
scale surface mining operations that already have been authorized by 
permitting authorities to destroy nearly 2,000 miles of Appalachian 
streams and more than 1,000 square miles of forested mountain terrain.
---------------------------------------------------------------------------
    \5\ Burns, Shirley Stewart (2005). ``Bringing Down the Mountains: 
the Impact of Mountaintop Removal Surface Coal Mining on Southern West 
Virginia Communities, 1970-2004'' Ph.D. dissertation. West Virginia 
University. Available at http://kitkat.wvu.edu:8080/files/4047/
Stewart_Burns_Shirley_dissertation.pdf
---------------------------------------------------------------------------
    In 1998, the Office of Surface Mining (OSM), the U.S. Environmental 
Protection Agency (EPA), the Army Corps of Engineers, U.S. Fish and 
Wildlife Service and state of West Virginia began preparing a 
programmatic Environmental Impact Statement on mountaintop removal; the 
final PEIS was released on 2005.\6\ The PEIS's scientific and technical 
studies documented in thousands of pages (and millions of federal 
taxpayer dollars) the enormous damage to Appalachia's natural resources 
and communities already caused by mountaintop removal mining and valley 
fills over the last two decades, including the pollution and 
destruction of over 1200 miles of streams.
---------------------------------------------------------------------------
    \6\ Programmatic Environmental Impact Statement on Mountaintop 
Mining/Valley Fills in Appalachia (PEIS), 70 Fed. Reg. 62102.
---------------------------------------------------------------------------
    The PEIS studies also confirmed that, without the adoption of 
additional environmental restrictions on this extreme form of strip 
mining, over 1000 miles of streams will be added to this toll by 2012, 
destroying what many experts believe is one of the most diverse 
temperate headwater freshwater regions in the world. According to the 
DEIS's Cumulative Impact Study, without more stringent environmental 
protections, mountaintop removal coal mining and valley fills will turn 
a huge area of this country--over 2200 square miles of a unique, 
biologically diverse, forested, stream filled, mountainous region--into 
a barren wasteland for the foreseeable future.
    The PEIS studies determined that mountaintop removal mining causes 
``fundamental changes to the terrestrial environment,'' and 
``significantly affect[s] the landscape mosaic,'' with post-mining 
conditions ``drastically different'' from pre-mining conditions. 
Further, mining impacts on the nutrient cycling function of headwaters 
streams ``are of great concern'' and impacts to habitat of interior 
forest birds could have ``extreme ecological significance.'' The PEIS 
further concluded that mining could impact 244 terrestrial species, 
including, for example, 1.2 billion individual salamanders, and that 
the loss of the genetic diversity of these affected species ``would 
have a disproportionately large impact on the total aquatic genetic 
diversity of the nation.'' Finally, the EIS observed that valley fills 
are strongly associated with violations of water quality standards for 
selenium, a toxic metal that bioaccumulates in aquatic life.
    Unfortunately, Mr. Chairman, rather than respond rationally to the 
overwhelming information contained in its own scientific studies 
documenting the destruction of Appalachia being caused by mountaintop 
removal by immediately putting a stop to the practice--or at least 
enforcing the legal limitations contained in SMCRA and the Clean Water 
Act to curb the worst abuses--the present administration has taken the 
exact opposite approach. The federal agencies have been gutting 
longstanding laws designed to protect coal field residents and 
communities and their surrounding natural resources from the mining 
industry's worst excesses, failing to enforce the law in some areas and 
outright repealing it in others.
    In May 2002, the U.S. Army Corps of Engineers (Corps), aided and 
abetted by the U.S. Environmental Protection Agency (EPA), repealed a 
25-year-old Clean Water Act regulation that prohibited dumping waste 
material in streams.\7\ In October 2005, the OSM weakened its oversight 
of state mining programs by making federal takeovers for state 
violations of federal law discretionary rather than automatic.\8\ Also 
in October 2005, the administration released it's the final 
Programmatic Environmental Impact Statement on Mountaintop Mining/
Valley Fills in Appalachia (PEIS), in which--despite the fact that the 
millions of dollars of scientific studies that accompanied the PEIS 
found that the harm being done to Appalachia by mountaintop removal 
coal mining is extremely destructive, widespread, and largely 
irreversible, as noted above--the agencies proposed no meaningful 
mining reforms or limitations on valley fills,.\9\
---------------------------------------------------------------------------
    \7\ 67 Fed. Reg. 31129.
    \8\ 70 Fed. Reg. 61194.
    \9\ 70 Fed. Reg. 62102.
---------------------------------------------------------------------------
    The latest in this serial rollback of longstanding law is currently 
pending at the OSM. On August 24, 2007, the Bush administration 
proposed repealing a longstanding stream protection regulation under 
SMCRA in order to allow the coal mining industry engage in more 
unregulated ``mountaintop removal'' mining and additional burial of 
streams.\10\
---------------------------------------------------------------------------
    \10\ Proposed Rule and Draft EIS on Excess Spoil Minimization/
Stream Buffer Zones, 72 Fed. Reg. 48678, 48890 (August 24, 2007).
---------------------------------------------------------------------------
    The Stream Buffer Zone Rule prohibits coal mining activities from 
disturbing areas within a 100-foot ``buffer'' around intermittent and 
perennial streams. This regulation, finalized in 1983 by the Reagan 
administration, is one of the most important components of current 
SMCRA law--and the most important for protecting streams. The Buffer 
Zone rule prevents the OSM and state agencies from issuing permits for 
coal mining activities that would disturb areas within 100 feet of 
streams, unless the permitting agency specifically confirms that the 
activities will not violate water quality standards and will not 
adversely affect water quantity, quality, or other stream 
resources.\11\ This regulation is needed to implement the provisions of 
SMCRA that require the protection of watercourses from mining damage.
---------------------------------------------------------------------------
    \11\ 30 CFR Sec.  816.57.
---------------------------------------------------------------------------
    In its place, the proposed rule would allow coal operators to dump 
mining waste, including the waste rubble from mountaintop removal as 
well as coal slurry, into streams, burying them forever. In return, the 
new rule merely asks coal operators to ``minimize'' harm to the extent 
possible, already a requirement of the Clean Water Act as well as of 
many state mining programs. This is an open invitation to industry to 
ignore an important surface mining rule that, as a practical matter, 
has been routinely abused and violated as federal and state regulators 
looked the other way. Now the chronic failure of the Department of the 
Interior and its Office of Surface Mining to discharge its duty to 
enforce existing law is being used by the agency as one of several 
excuses to repeal the Stream Buffer Zone rule altogether.
    While the OSM states that the new proposed rule is a clarification 
of the 1983 rule, in fact it is just the opposite. The new proposed 
rule would allow the dumping of massive amounts of waste directly into 
streams--including mountaintop removal valley fills and enormous sludge 
impoundments. In other words, the Bush administration's proposal 
essentially repeals the existing regulation and would allow coal 
companies to permanently bury more Appalachian streams beneath hundreds 
of millions of tons of mining waste. This proposal takes the ``buffer'' 
right out of the ``Stream Buffer Zone'' and allows coal companies to 
dump waste directly into streams.
    OSM's proposal not only guts the existing Stream Buffer Zone rule, 
it reverses OSM's prior interpretation of the existing rule. In the 
preamble, OSM reviews the history of the 1983 rule and claims that it 
has consistently ``applied'' that rule to allow valley fills and other 
stream incursions.\12\ This statement and others like it made by OSM 
are clearly intended to create the impression that the current proposal 
is consistent with all past practices and interpretations, and that 
there is no shift in agency thinking.
---------------------------------------------------------------------------
    \12\ 72 Fed. Reg. at 48892, 48895.
---------------------------------------------------------------------------
    In fact, however, the proposed rule is a reversal of OSM's prior 
interpretation of Stream Buffer Zone requirements. When it promulgated 
the existing rule in 1983, OSM chose to protect intermittent and 
perennial streams because they were recognized to be especially 
significant in establishing the hydrologic balance. OSM stated that the 
buffer zone rule was designed ``to protect streams from sedimentation 
and gross disturbances of stream channels caused by surface coal mining 
and reclamation operations.''\13\ OSM further stated that 
``intermittent and perennial streams generally have environmental-
resource values worthy of protection under Section 515(b)(24) of the 
Act.''\14\
---------------------------------------------------------------------------
    \13\ 48 Fed. Reg. 30312 (June 30, 1983).
    \14\ Id.
---------------------------------------------------------------------------
    In 1999, Judge Haden, then Chief Judge of the District Court for 
the Southern District of West Virginia, had the opportunity to 
interpret the existing Stream Buffer Zone rule and said that 
``[n]othing in the statute, the federal or state buffer zone 
regulations, or the agency language promulgating the federal 
regulations suggests that portions of existing streams may be destroyed 
so long as (some other portion of) the stream is saved.''\15\ Judge 
Haden also discussed the history of the Stream Buffer Zone rule and 
OSM's original concern that broad safeguards for streams were needed to 
comply with SMCRA. He quoted OSM's consideration of public comments 
from when it first promulgated the Stream Buffer Zone rule in 1979, 
where the agency stated that:
---------------------------------------------------------------------------
    \15\ Bragg v. Robertson, 72 F. Supp.2d 642, 651 (S.D.W.Va 1999). 
Judge Haden's ruling was overturned on jurisdictional grounds, but the 
substance of his ruling was not addressed by the Court of Appeals. See 
Brag v. West Virginia Coal Ass'n, 248 F.3d 275 (4th Cir. 2001).

          Surface mining is impossible without destruction of a number 
        of minor natural drainages, including some ephemeral streams as 
        defined in section 701.5. The Office, therefore, believes it is 
        permissible to surface mine coal so long as a reasonable level 
        of environmental protection is afforded . . . 
          [ ] Several other commenters felt only perennial streams 
        should require buffer zones. This would reduce operator cost 
        and increase coal production from deposits underlying 
        nonperennial streams. The Office believes that this alternative 
        is illegal, however, because there are significant fish and 
        wildlife resources in streams other than perennial streams that 
        need protection under section 515(b)(24) of [SMCRA].\16\
---------------------------------------------------------------------------
    \16\ 44 Fed. Reg. at 15177 (1979) (emphasis added).

    Thus, OSM concluded that destruction of streams below natural 
drainways was illegal, even though some surface mining and coal 
production might be affected.
    Judge Haden continued his analysis of the existing Stream Buffer 
Zone rule, stating:

          When valley fills are permitted in intermittent and perennial 
        streams, they destroy those stream segments. The normal flow 
        and gradient of the stream is now buried under millions of 
        cubic yards of excess spoil waste material, an extremely 
        adverse effect. If there are fish, they cannot migrate. If 
        there is any life form that cannot acclimate to life deep in a 
        rubble pile, it is eliminated. No effect on related 
        environmental values is more adverse than obliteration. Under a 
        valley fill, the water quantity of the stream becomes zero. 
        Because there is no stream, there is no water quality.\17\
---------------------------------------------------------------------------
    \17\ Bragg at 661-662.

    In their brief on appeal in Bragg, OSM, EPA and the Corps expressly 
agreed with Judge Haden's interpretation of the Stream Buffer Zone 
---------------------------------------------------------------------------
rule:

          [Judge Haden] correctly found that SMCRA's stream buffer zone 
        rule . . . prohibits the burial of substantial portions of 
        intermittent and perennial streams beneath excess mining spoil. 
        The elimination of substantial intermittent or perennial stream 
        segments necessarily causes adverse environmental effects, as 
        it eliminates all aquatic life that inhabits those stream 
        segments. As the district court rightly concluded, the 
        elimination of entire stream segments and all the life they 
        contain plainly causes environmental harm. Accordingly, the 
        district court correctly granted summary judgment on 
        plaintiffs' buffer zone claims.\18\
---------------------------------------------------------------------------
    \18\ Brief for the Federal Appellants, 4th Cir., No. 99-2683, April 
17, 2000 (heareafter ``U.S. Br.''),p.2(emphasis in original). In the 
2004 proosal to repeal the Stream Buffer, OSM suggested that the brief 
of the United States government in the Bragg case is ``not consistent 
with our historic interpretation'' and that OSM never agreed with it or 
approved it. 69 Fed. Reg. at 1039-40. That is not true. The Department 
of Justice told the Fourth Circuit that ``Attorneys for EPA and OSM are 
identified on the cover of the federal appellants' brief as being `of 
counsel' to this appeal, and the position taken in the brief for the 
federal appellants represents the unified position of the federal 
agencies.'' Federal Appellants' Opposition to the Motion of the 
Intervenor-Defendants to Strike the Brief of the Federal Appellants and 
to Dismiss Appeal No. 99-2683,p.2.

    Additionally, these agencies stated that the District Court 
---------------------------------------------------------------------------
correctly held:

          [T]hat valley fills in intermittent or perennial streams may 
        be authorized under the buffer zone rule only if the permitting 
        agency finds that they will not adversely affect the 
        environmental resources of the filled stream segments. WVDEP 
        has acknowledged that it has routinely approved valley fills in 
        intermittent and perennial streams without making the findings 
        called for by the buffer zone rule for the stream segment 
        filled. The district court correctly rejected the arguments 
        that WVDEP was not required to make the buffer zone findings, 
        holding that the findings required by the buffer zone rule must 
        be made for the filled stream segments and not at some point 
        downstream from the valley fills . . . 
          The district court also correctly . . . [held] . . . that the 
        burial of substantial portions of intermittent or perennial 
        streams in valley fills causes adverse environmental impact in 
        the filled stream segments and therefore cannot be authorized 
        consistent with the buffer zone rule. The uncontested evidence 
        demonstrates that the burial of substantial portions of 
        intermittent or perennial causes adverse environmental effects 
        to the filled stream segments, as such fills eliminate all 
        aquatic life that inhabited those segments.\19\
---------------------------------------------------------------------------
    \19\ Id. at 24-25 (emphasis added).

    If further evidence is needed that the OSM previous did take the 
position the Stream Buffer rule applied to valley fills, in a May 22, 
2000 letter, Acting OSM Director Kathrine Henry adopted the same 
position that ``the stream buffer zone waiver findings must be made not 
only for segments downstream of the fill, but also for each segment of 
an intermittent or perennial stream in which excess spoil is placed.''
    Now OSM has completely reversed this position and would totally 
exempt valley fills, waste impoundments and other stream incursions 
from the rule.\20\ OSM has failed to rationally justify its complete 
about-face from the position it took in the Bragg case. Indeed, OSM has 
failed to even consider the alternative of enforcing the rule as 
written and as OSM interpreted it in the Bragg case.
---------------------------------------------------------------------------
    \20\ 72 Fed. Reg. at 48907; DEIS, p.S-2.
---------------------------------------------------------------------------
    The Office of Surface Mining first proposed repealing the Stream 
Buffer Zone in January 2004. At that time, Earthjustice and many other 
national and regional groups objected and, along with asking that the 
proposal be withdrawn, stated that the agency was required by law to 
prepare an Environmental Impact Statement (EIS) before proposing to 
change a major federal rule. Somewhat surprisingly, OSM agreed and the 
following summer, in 2005, took public comment on what it needed to 
study. One point made loudly and consistently by many who submitted 
comments at that time was that the OSM must consider, as one 
alternative, enforcing the Stream Buffer Zone as written--as a 
``buffer'' around intermittent and perennial streams, protecting them 
from damage from coal mining activities, including waste disposal.
    As noted above, the proposed repeal of the Buffer Zone that was 
published in the Federal Register in August of this year was 
accompanied by a draft Environmental Impact Statement (DEIS). 
Outrageously, OSM did not select enforcing the existing law as one of 
the alternatives given full consideration in the new draft EIS. 
Instead, OSM reinterprets the existing rule in conformity with the new 
proposed rule, so that both of them allow valley fills in intermittent 
and perennial streams. This eliminates most of the difference between 
the two rules, and makes the ``no-action'' alternative a pale shadow of 
the proposed rule. The ``no action'' alternative in the DEIS merely 
substitutes OSM's past practice of ignoring the Stream Buffer Zone for 
its legal mandate to protect streams and the environment generally.
    A true ``no action'' alternative would interpret the Stream Buffer 
Zone as applying to valley fills, as OSM determined was legally 
required in 2000, and evaluate what it would actually mean for the 
region and its stream resources if the agency enforced the law.
    OSM summarily rejected further consideration of one alternative 
that does sound like the existing rule--one that would restrict valley 
fills by type of stream (ephemeral, intermediate or perennial)--and 
several other options that would have placed some actual limits on 
valley fills and other coal waste disposal activities. These included 
acreage or volume limits on fill size, limits on the size of the 
watershed or length of stream that could be buried, and a limit on the 
percentage of streams in a watershed that could be filled. These 
alternatives were cast aside by OSM without any detailed analysis 
because, the agency claims, it either lacks of statutory authority or 
the scientific data to pursue any of those options. Neither argument 
has merit.
    The only alternatives OSM considered all would allow valley fills 
to be dumped in any stream without any limitation on the amount of 
stream or types of stream that could be buried and destroyed, just a 
vague, case-by-case determination that the overall fill be minimized, 
``to the extent practical.'' To comply with the National Environmental 
Policy Act--as well as SMCRA--and to be responsive and fair to the 
people of Appalachia, OSM must consider some alternatives that restrict 
filling of streams, including at the very least the enforcement of the 
existing regulation.
    Furthermore, OSM must consider some alternatives that address the 
cumulative impacts of stream filling. As OSM acknowledges, those 
cumulative impacts involve damaging or destroying over 1,700 miles of 
streams in Appalachia.\21\ The DEIS fails to address these cumulative 
impacts. Fill minimization, by itself, only results in a case-by-case 
analysis of filling for each separate project; it does not analyze or 
address cumulative impacts. OSM inexplicably assigns zero value to the 
loss of thousands of miles of headwater streams.
---------------------------------------------------------------------------
    \21\ DEIS,p. 117.
---------------------------------------------------------------------------
    Already, nearly 2000 miles of mountain streams in Appalachia have 
been contaminated or destroyed by mountaintop removal and the disposal 
of mining waste, wiping out these streams and causing pollution as well 
as flooding and destruction in the surrounding communities. According 
to the new draft Environmental Impact Study released with the proposed 
buffer zone rule, this administration's failure to enforce the buffer 
zone law led to an additional 535 miles of stream impacts nationwide 
during between 2001 and 2005. If this pace of destruction remains 
steady, the repeal of the buffer zone rule would permit more than 1,000 
miles of streams to be destroyed each decade into the future.
    The evidence that valley fills cause significant degradation to 
valuable headwater streams is clearly confirmed in the new DEIS itself. 
Headwater streams ``serve a number of important ecological functions 
including . . . improving water quality.''\22\ When streams are buried 
by valley fills, ``those segments no longer exist and all stream 
functions are lost.''\23\ This degradation must be deemed significant, 
especially because there is no evidence showing that buried streams can 
be recreated successfully elsewhere on mined sites. The DEIS states 
that ``the state of the art in creating smaller headwater streams has 
not reached the level of reproducible success''\24\ and ``[a]ttempts to 
reestablish the functions of headwater streams on the groin ditches on 
the sides of fills have achieved little success to date.''\25\ 
Consequently, these stream losses must be considered permanent and 
irreversible.
---------------------------------------------------------------------------
    \22\ DEIS, p.109.
    \23\ Id. at 117.
    \24\ Id. at 111.
    \25\ Id. at 117.
---------------------------------------------------------------------------
    Significant stream degradation caused by valley fill and mining 
activities has been best documented for watersheds in West Virginia. 
Recent expert analysis of GIS data presented in the case of OVEC v. 
Bulen,\26\ showed that present and pending surface mining permit 
operations and valley fills conservatively cover the following 
percentages of streams in these watersheds:\27\
---------------------------------------------------------------------------
    \26\ Civil No. 3:05-0784 (S.D.W.Va.).
    \27\ Expert Report of Douglas P. Pflugh, May 16,2006, Summary,p.2.



------------------------------------------------------------------------
                                                               % first
                                                % of total      order
            Watershed/Subwatershed                streams      streams
                                                  covered      covered
------------------------------------------------------------------------
Upper Guyandotte                                      7.4           9.5
------------------------------------------------------------------------
  Dingess Run                                        19.9          19.5
------------------------------------------------------------------------
Coal River                                           12.0          14.5
------------------------------------------------------------------------
  Laurel Creek                                       28.0          37.3
------------------------------------------------------------------------
Upper Kanawha                                         7.9          10.2
------------------------------------------------------------------------
  Cabin Creek-Headwaters                             22.9          32.1
------------------------------------------------------------------------

    I have attached to my statement two maps* prepared by the GIS 
expert, Douglas Pflugh, showing the locations of the mountaintop 
removal and other strip mines permitted in these watersheds. The 
plaintiffs' expert aquatic ecologist, Dr. Bruce Wallace, testified in 
the Bulen case in October 2006 that impacts of this magnitude were 
``astounding,'' a ``danger signal,'' and meant lost headwater stream 
functions in these areas.\28\ Plaintiffs' stream restoration expert, 
Dr. Margaret Palmer, similarly testified that a loss of 29% of the 
watershed and 18% of the first order streams in a watershed were 
``incredibly significant'' and so huge that it was questionable whether 
the stream\29\ could ever be restored.
---------------------------------------------------------------------------
    * Maps have been retained in committee files.
    \28\ Wallace Testimony, Bulen Tr. 2:32-34.
    \29\ Palmer Testimony, Bulen Tr. 2:134 and 2:135-36.
---------------------------------------------------------------------------
    In conclusion, Mr. Chairman and Members of the Committee, 
Earthjustice respectfully asks that you look into OSM's proposal to 
effectively repeal the Stream Buffer Zone rule. Their proposal would 
overturn any balance left in SMCRA between coal production and 
environmental protection, making unfettered production and cheap coal 
the only values recognized by the federal government. It is as if the 
OSM is turning back the clock 30 years to when there was no federal 
program. The OSM proposal completely undermines Congress's intent that 
the law be interpreted to ``protect society and the environment from 
the adverse effects of surface coal mining operations.''
    I know that many individuals and organizations in Appalachia and 
around the country hope that you will join with those of us who are 
calling on the OSM to withdraw this proposed rule. At the very minimum, 
OSM should be directed to reopen the DEIS on the proposed rule change 
to fully study the option of retaining the 1983 version of the rule, 
and enforcing it as written to keep all mining disturbances, especially 
waste disposal in valley fill and slurry pools, 100 feet away from 
flowing streams.
    Mr. Chairman, another thing Earthjustice would request is for the 
Committee to have an oversight hearing specifically on mountaintop 
removal mining and the irreversible damage being done in the 
Appalachian region. While I greatly appreciate the opportunity to 
provide the Committee written testimony today, and appear along with 
Cindy Rank from the West Virginia Highlands Conservancy who is one of 
the most knowledgeable and dedicated citizen advocates on this issue, 
there are many other citizens and residents of the coal fields, as well 
as stream scientists, mining experts, and others who could provide much 
valuable evidence to the Committee about the outrageous harm being 
perpetrated in Appalachia by mountaintop removal.
    Thank you again, Mr. Chairman, for the opportunity to present you 
and the Committee with information about this important issue.
                                 ______
                                 
                                     Citizens Coal Council,
                                 Washington, PA, December 17, 2007.
Senator Bingaman,
Chairman, U.S. Senate, Energy and Natural Resources Committee, Dirksen 
        Senate Building, Washington, DC.
    Dear Senator Bingaman: On behalf of Citizens Coal Council, a 
national federation of grassroots groups and individuals living in 
directly impacted coalfield communities across the United States and 
the Center for Coalfield Justice from Washington, Pennsylvania, we want 
to thank you for holding hearings on SMCRA and the Office of Surface 
Mining on November 13, 2007. I am writing to request more hearings--to 
be held in geographically dispersed coalfield states--so that Senators 
and their staff can actually witness the environmental and health 
impacts of coal mining and hear directly from coalfield citizens about 
provisions in SMCRA that need strengthening, provisions that have been 
weakened, and first hand testimony on OSM's lax enforcement of SMCRA.
    Citizens fought hard to include public participation provisions in 
SMCRA, in particular, public hearings to challenge mining permits and 
the like. Over the years federal and state mine regulators have found 
ways to thwart effective public participation by giving short notice, 
publicizing new permit applications in news media far from the 
communities where the mining would occur, scheduling hearings during 
the day when many people have to work, and indirectly limiting the 
number of people who can speak at ``public'' hearings. Although we 
appreciate the fact that hearings were held by the Energy and Natural 
Resources committee, there was very little public notice of the 
hearings and therefore lost opportunity for citizens to give testimony. 
This only adds to the frustration that people feel when they are not 
being heard.
    The mine operators have had 30 years to weaken citizen and 
environmental protections in SMCRA. The most recent is the unfolding 
attempt by OSM to legalize the dumping of mine spoils in streams and 
valleys (known as valley fills) through the proposed Stream Buffer zone 
rulemaking.
    President Bush signed the reauthorization of the AML mine clean up 
program about a year ago. And today, the states still do not know the 
amount of funds that will be allocated to them or when the funds will 
be available for cleaning up dangerous abandoned mines. OSM has 
violated the legal mandate to allocate and release these much needed 
funds.
    These short comings are only the tip of the iceberg. So please give 
citizens a fair and equal opportunity to show the Energy and Natural 
Resources committee members what is really happening to our coalfield 
communities and the environment from lax mining regulations.
            Sincerely,
                                             Richard Stout,
                                                             Chair.
                                            Rebekah Weigel,
                                                         Organizer.
                                 ______
                                 
             Dine Citizens Against Ruining our Environment,
                                  Fruitland, NM, November 10, 2007.
Hon. Jeff Bingaman,
Washington, DC.
    Dear Senator Bingaman: We are aware that on Tuesday, November 13, 
2007, the Senate Energy and Natural Resources Committee which you, 
Honorable Bingaman, serve as Committee Chair, will be holding a hearing 
on the thirty year anniversary of the Surface Mining Control and 
Reclamation Act (SMCRA). This Committee has direct oversight over the 
Office of Surface Mining (OSM) and per a recent discussion with the 
Staff Assistant of the Energy and Natural Resources Committee, the 
Director of OSM, Brent Wahlquist, will be testifying before the 
Committee. It is of the utmost importance that, in this hearing, the 
OSM agency examines the risks and impacts of a national minefill rule 
before it proposes a draft rule.
    As Navajo residents of a community that is sandwiched in between 
the two mine fills that collectively comprise the largest Coal 
Combustion Waste (CCW) mine dump in America (more than 100 million tons 
dumped in the San Juan and Navajo Mines since the mid 1970s), we are 
exposed to unregulated toxic CCW. On a daily basis, we are exposed to 
notoriously poisonous metalloid, arsenic, because of unlined surface 
impoundments of CCW which causes fugitive coal ash to become airborne, 
causing plumes of toxic dust over our community. This poses significant 
concern for us, downwind Navajo communities, who must deal with 
underfunded Navajo healthcare and the legacy of pollution in Northwest 
New Mexico.
    According to a risk assessment entitled, ``Human and Ecological 
Risk Assessment of Coal Combustion Wastes'' (dated August 6, 2007), 
which was done as part of the Notice of Data Availability published by 
the United States Environmental Protection Agency (EPA) in the Federal 
Register on August 29, 2007, page 49714, the EPA estimates that the 
risk of getting cancer from arsenic exposure to people living around 
unlined surface impoundments is as high as nine individuals out of 
1,000 exposed; in other words, nearly a one in a hundred people is at 
risk for cancer. This is 1,000 times higher than the acceptable cancer 
risk according to the EPA. This is an unacceptable level of cancer 
risks thus, environmental regulations are supposed to prevent CCW 
exposure to innocent bystanders living around polluting facilities.
    Given that CCW is generated by coal-fired power plants and is not 
directly related to mining, OSM is not the right agency to develop this 
draft rule. SMCRA is a law that established requirements to make sure 
that surface coal mining operations (strip mining) stop harming 
adjacent environments (including water supplies) and that the lands 
mined for coal are reclaimed for uses equal to or better than pre-
mining uses. OSM was established by SMCRA. The framers of this law in 
Congress, however, did not envision that SMCRA would be used to allow 
active coal mines to become open dumps industrial wastes like CCW. Thus 
OSM has never had the expertise to regulate waste disposal. That job 
was intended to be the responsibility of the US EPA, under the Resource 
Conservation and Recovery Act (RCRA), the federal law regulating solid 
wastes. US EPA does have the expertise to regulate waste disposal as 
that is one of the primary reasons it was created and charged with 
enforcing RCRA. The US EPA, not OSM, should be developing the 
regulation for the dumping of CCW in coal mines.
    Therefore, a critical question to ask the Director of OSM, Brent 
Wahlquist, during the Committee hearing should be: What analysis is OSM 
doing to assure that the safeguards that it is going to propose in a 
national minefill regulation will be adequate to protect people and 
their environment from unacceptable risk? Given the very high risk 
posed to people and the environment living around CCW surface 
impoundments and landfills, that US EPA has just divulged in its Risk 
Assessment of CCW, what analysis is OSM doing to make sure that its 
proposed safeguards will minimize that risk to people living around 
minefills?
    In the Navajo communities of Northwest New Mexico, we urge the US 
EPA to develop proper regulation of CCW dumping so that our health will 
not be compromised. We respectfully submit this letter for the 
Hearing's record.
            Sincerely,
                                          Sarah Jane White.
                                            Lucy A. Willie.
                                            Dailan J. Long.
                                 ______
                                 
                                       Sierra Club,
                                          Illinois Chapter,
                                    Chicago, IL, December 16, 2007.
Regarding: November 13th Committee Hearing on SMCRA: Surface Mining 
Control Act Policy Issues 30 Years Later

    Dear Members of the Senate Energy and Natural Resources Committee: 
Thank you for the opportunity to comment on the Surface Mining Control 
Act in your review of this essential legislation. In the thirty years 
since the enactment of SMCRA, a significant legacy of coal mining 
regulation outcomes is available for assessment. I would like to 
request your consideration of the urgent need to update SMCRA to 
include current scientific knowledge and demonstrated impacts of mining 
and the results of SMCRA regulations on land and water resources, and 
on the human communities in mining areas.
    Since SMCRA was written, it is essential to recognized that the 
mining industry has shifted from room and pillar mining to longwall 
mining, and other techniques, such as mountaintop removal. SMCRA must 
be updated with regulations that truly work as the law intended, in 
light of changes in the mining industry.
    Longwall mining, which removes about 80% of the coal over large 
sections of land, is a huge threat to high quality agricultural lands 
in Illinois. I urge your every effort to investigating and regulating 
longwall mining in areas where there is only 0 to 4% grade in the land 
surface.
    Our nation's sustainable resources, including highly productive 
agricultural lands and the mountains holding forests that serve an 
essential role supplying oxygen and sustainable resources, are being 
impaired for the short-term gain of coal extraction. SMCRA is failing 
to protect the American public in many ways.
    I ask you to personally visit the communities next to mountaintop 
removal mines in Appalachia and to see the sunken farm fields in 
Illinois where longwall mining subsidence has left impaired lands. In 
many places, coal mining is robbing citizens of their quality of life 
and is leaving huge environmental and societal costs in its wake.
    No amount of regulations will protect America's water resources, 
agricultural lands, and other resources when the agency entrusted with 
enforcing regulations does not function as it was intended. I raise up 
to you concerns regarding a legacy of lax enforcement of existing 
mining regulations and significant failures on behalf of the Office of 
Surface Mining in its responsibility to protect the American public and 
our nation's natural resources. I ask that an assessment be done of OSM 
to study how this agency has enforced existing laws regarding mining 
and reclamation. Please hold additional oversight hearings to truly 
investigate the Office of Surface Mining and how it has followed SMCRA 
regulations. Critical failures in SMCRA enforcement can be found from 
the coalfields of Appalachia to the Illinois Basin to Wyoming. Citizens 
have been left to contend with loss of water resources or polluted 
water resources, impaired lands, and serious health effects from coal 
waste residue and other mining remains.
    I live in Illinois and I emphasize to you our current, overwhelming 
concerns regarding longwall mining. When SMCRA was written, longwall 
mining and its subsidence impacts were not adequately considered or 
covered. Very little longwall mining was being done thirty years ago. 
Now in Illinois, it is the predominant method of coal extraction. 
Longwall mines have moved from the rolling lands of southern Illinois 
into the highly productive and considerably flat agricultural lands to 
the north.
    I urge you to consider that hundreds of thousands of acres of prime 
ag lands in Illinois are at threat from ground subsidence from longwall 
mining. These impacts affect the productivity and sustainability of 
these lands for generations to come. America must wake up to the true 
costs of coal. Alternatives exist for more sustainable energy sources 
than coal, if our nation has the will to employ them. Great energy 
savings could be made if there was a national effort to make our energy 
use more efficient. Steps can and should be taken now to weigh the full 
impacts of longwall mining on our essential agricultural lands and 
water resources, because SMCRA fails to address longwall mining 
subsidence concerns.
    Lax enforcement of SMCRA regulations also impacts citizens via 
their state agencies entrusted to enforce state mining regulations. I 
ask your Committee to investigate how SMCRA regulations regarding the 
declaration of Lands Unsuitable to Mine Petition (LUMP) are handled. I 
raise to your attention the example in my state of years of efforts to 
have 643.5 acres at Banner, Illinois, protected under the SMCRA LUMP 
regulations. This land is located directly between two state 
conservation areas which are both globally recognized important 
migrating bird habit. Not only did the Illinois Office of Mines and 
Minerals declare every issue in our LUMP without merit, they have 
proceeded to approve a strip mine permit for mining in this acreage, 
which is also in the Illinois River floodplain and has a host of other 
environmental risks associated. Illinois Office of Mines and Minerals 
has approved this strip mine, which will be 300 feet (which is the 
SMCRA regulation) from the Rice Lake State Fish and Wildlife Area, 
which has nesting eagles, state threatened and endangered species, and 
is part of the hydrological system that will be affected by the strip 
mine. While SMCRA regulations are being followed, they are totally 
inadequate to protect the highly valuable and sensitive natural 
resources that are at stake at Banner, Illinois. State mining agencies 
use SMCRA regulations to avoid taking in the full impacts of what 
mining will affect. The 300 foot buffer regulation in SMCRA, as far as 
protecting adjacent parklands, is inadequate.
    As another example of issues in Illinois, I would like you to know 
what has happended in Macoupin County. Flat lakes of stagnant water 
cover acres where prime ag land was once farmed. This is over four 
years after these lands were longwall mined. In my visits to Macoupin 
County, I have seen that longwall mining has not only affected farm 
fields, it has affected the rural quality of life. County roads are 
buckled with the earthquake type subsidence effects from longwall 
mining, and remain impassible and unrepaired years after the mining was 
done. Local traffic, schoolbuses, emergency vehicles, and other 
transportation had to use different routes. Homes on farm property 
owned by the coal company were vacated. Subsidence damage to houses and 
farm buildings could be seen from public roads, and numerous subsidence 
damaged homes were mysteriously burned down. Loss of streams, springs, 
and other water resources because of longwall mining is a major concern 
for livestock farmers and residents. I ask for your every effort to 
stop the current expansion of longwall mining in highly productive 
agricultural lands. Just as there are locations that are suitable for 
coal mining, there are locations that should not be considered suitable 
for mining. Flat and nearly flat quality agricultural lands should be 
protected from longwall mining for their long term importance for crop 
production. Please update SMCRA with specific regulations pertaining to 
longwall mining that truly protect prime ag lands and water resources.
    In your review of SMCRA, it is essential that an economic 
assessment be made of what the real costs of coal mining are to 
governmental entities and public taxpayers in terms of lost or polluted 
water resources, impacts on public health and well-being, and the 
greater long-term issues of what kinds of mining allows sustainable use 
of lands for future generations, and what coal mining leaves 
incapacitated land.
    Thank you for your consideration.
            Sincerely,
                                         Joyce Blumenshine,
                                     Mining Issues Committee Chair.
                                 ______
                                 
  Statement of Loretta E. Pineda, President, National Association of 
                      Abandoned Mine Land Programs

    I am submitting this statement on behalf of the National 
Association of Abandoned Mined Land Programs. (NAAMLP). The NAAMLP is a 
tax-exempt organization consisting of 30 states and Indian tribes with 
a history of coal mining and coal mine related hazards. These states 
and tribes are responsible for 99.5% of the Nation's coal production. 
Most of the states and tribes within the NAAMLP administer abandoned 
mine land (AML) reclamation programs funded and overseen by the Office 
of Surface Mining (OSM) pursuant to Title IV of SMCRA, P.L. 95-87.
    Since the enactment of the SMCRA by Congress in 1977, the AML 
program has reclaimed thousands of dangerous sites left by abandoned 
coal mines, resulting in increased safety for millions of Americans. 
Specifically, more than 285,000 acres of abandoned coal mine sites have 
been reclaimed through $3.5 billion in grants to states and tribes 
under the AML program. This means hazards associated with more than 
27,000 open mine portals and shafts, 2.9 million feet of dangerous 
highwalls, and 16,000 acres of dangerous piles and embankments have 
been eliminated and the land reclaimed. Despite these impressive 
accomplishments, $3 billion priority 1 and 2 problems threaten public 
health and safety and remain unreclaimed. These hazardous sites require 
safeguarding by the states and tribes through their AML programs.
    The Association was extremely pleased with the passage of the 2006 
Amendments to SMCRA. The 15-year extension coupled with increased 
funding will provide the states and tribes with the ability to carry 
out the remaining AML reclamation work. Time will only tell if all of 
the AML problems can be totally corrected in 15 years but it is the 
intention of the states and tribes to focus on the protection of the 
public health and safety while ensuring restoration in the coalfields 
of America. The Association would also like to thank the Congress for 
reauthorization of the AML Program and for taking AML funding to states 
and tribes ``off-budget''. With the funding off-budget, this will 
finally allow the states and tribes to make staffing decisions and in 
turn begin planning for long range design and reclamation activities. 
Included with our statement is a copy of an AML booklet* called 
``Safeguarding, Reclaiming, Restoring'' for your review. The booklet 
was developed by the Association and OSM to highlight the various AML 
problems across the United States that have protected the public's 
health and safety.
---------------------------------------------------------------------------
    * Booklet has been retained in committee files.
---------------------------------------------------------------------------
    I would like to commend OSM for their efforts to work with the 
states and tribes in the rulemaking process for the implementation of 
the 2006 Amendments to SMCRA. OSM has spent considerable time and 
effort meeting and responding to questions and concerns from the 
Association regarding rule development. Although much has been done to 
address problems identified by the states and tribes, there are still 
significant shortcomings that need to be addressed. The following items 
still have not been resolved. Thus the states and tribes have serious 
concerns about how effective the 2006 Amendments to SMCRA will be 
implemented:

          1. Funding for Minimum Program States.
                --The Minimum Program States are Alaska, Arkansas, 
                Iowa, Kansas, Maryland, Missouri, and Oklahoma.
                --For the last 13 years, Minimum Program States have 
                been critically underfunded in respect to the number of 
                Priority 1 and Priority 2 AML hazards that need to be 
                reclaimed.
                --For three years (FY1992, FY 1993, and FY 1994) the 
                Minimum Program States received $2 million annually. 
                Since that time the Minimum Program States have been 
                limited to an annual allocation of only $1.5 million. 
                The primary reason given for not allocating the 
                statutorily mandated annual $2 million was ``budget 
                deficits.''
                --Under the 2006 Amendments to SMCRA all states and 
                tribes will receive increases in AML funding beginning 
                in FY 2008 (29% to 269% increases), while Minimum 
                Program states will receive no increases for FY 2008 
                and FY 2009.
                --The NAAMLP has passed a resolution supporting the 
                annual $3 million to Minimum Programs states beginning 
                in FY 2008. However, OSM has been reluctant to support 
                that position.
        2. Use of Grant Mechanism to Distribute Payments from the U.S. 
        Treasury for both the prior unappropriated state/tribal 
        balances and payments in lieu of future state and tribal share 
        to certified states and tribes.
                --The states and tribes would like the option of 
                receiving the treasury payment by the current grant 
                process or by direct payment from the Treasury similar 
                to mineral royalties paid to states under the Mineral 
                Leasing Act.
                --The states and tribes want flexibility and discretion 
                with regard to the types of mechanisms that are 
                available for distributing and expending Treasury 
                payments.
        3. Use of Unappropriated State Share Balances for Noncoal 
        Reclamation and AMD Set-Aside.
                --Since the inception of SMCRA in 1977 and the approval 
                of state/tribal AML programs in the early 1980's, the 
                states and tribes have been allowed to use their state 
                share distributions under section 402(g)(1) of the AML 
                Trust Fund for high priority noncoal reclamation 
                projects pursuant to section 409 of SMCRA and to 
                calculate the set-aside for acid mine drainage (AMD) 
                projects.
                --In its most recent interpretation of the 2006 
                Amendments, OSM has stated that these moneys cannot be 
                used for noncoal reclamation or for the 30% AMD set-
                aside.
                --Pursuant to Section 411(h)(1) of the 2006 Amendments, 
                the states and tribes assert that these moneys should 
                also be available for noncoal reclamation under section 
                409 and for the 30% AMD set-aside. There is nothing in 
                the new law that would preclude this interpretation. 
                Policy and practice over the past 30 years confirm it.

    These three items represent some of the unresolved issues between 
OSM and the States and Tribes regarding the 2006 Amendments to SMCRA. 
These issues are very important and we request that this Committee urge 
OSM to address these problems as we believe they will lay the 
foundation for a successful implementation of the AML Program for the 
next 15 years. Upon request, the Association can provide this committee 
a copy of a letter to OSM dated May 21, 2007 which provides significant 
detail and rationale behind our concerns over these listed topics and 
other important issues. We can also provide a copy of the response 
letter from OSM dated June 14, 2007.
    The following quotes and excerpts are from some of the Association 
members that I believe are representative of many of the member's views 
and are intended to address the effectiveness of Title IV SMCRA:

    Kentucky: ``The Kentucky AML program has reclaimed over 2100 acres 
of dangerous landslides and closed more than 2300 hazardous mine 
openings. These actions have safeguarded thousands of Kentuckians from 
the hazards posed by abandoned coal mines. Perhaps most importantly the 
KY AML program has installed almost 1,000 miles of water distribution 
lines and provided fresh water hookups to over 11,700 Kentucky 
residences to replace drinking water supplies adversely impacted by 
past mining. The Kentucky Division of Abandoned Mine Lands has 
reorganized to add resources needed to design and construct the 
additional reclamation projects that increased funding generated by the 
2006 amendments will bring. Projects previously placed on a ``wait'' 
list due to funding challenges are being reviewed and scheduled for 
reclamation. And, for the first time, Kentucky has established an acid 
mine drainage set-aside account to address the environmental problems 
associated with acid drainage from past coal mining.''
    Montana: ``From the Montana perspective the Abandoned Mine 
Reclamation Program under Title IV of SMCRA has been a huge success. 
Montana's AML program was approved in 1980 and the program has had a 
high approval rating ever since. Montana's program is a success from 
the aspect of protecting human health and safety, protecting the 
environment, and from the perspective of creating jobs and putting 
people to work. Acceptance of the AML program has run high because AML 
results in on-the-ground accomplishments that are immediately visually 
apparent.
    From the program management perspective Montana's AML program is a 
success because of the manner in which the abandoned mined lands 
program is managed by the Office of Surface Mining. Montana's 
experience with OSM oversight in the AML program is one of 
collaborative assistance that focuses on accomplishing the goals of 
AML. OSM provides the oversight and assistance necessary to keep the 
AML program on track without creating unnecessary or confusing 
paperwork or reports.
    OSM provides important training in the areas of computer software 
and modeling geographic information systems, and data systems. This 
focused training gets staff trained using software packages that would 
not be available through State computer systems. In addition, OSM 
sponsors training through their National Technical Training Program in 
subjects such as subsidence control, mine fire abatement, mine 
hydrology and project management that are not available through other 
outlets. This specialized training is just not available from other 
sources and without it Montana AML would not have the necessary problem 
solving tools.''North Dakota; ``Overall, I believe the AML program has 
been very successful in identifying abandoned mine sites and 
eliminating safety hazards associated with many of them. As you know, 
much more AML work remains to be done in most states and re-
authorization of the program will allow most of this remaining work to 
be completed over the next 15 years. However, for the minimum program 
states, one of the failures has been the lack of full funding for the 
minimum program states over the past 15 years. SMCRA amendments in 1992 
set the minimum program funding level at 2 million dollars per year, 
but Congress typically appropriated only enough funds for 1.5 million 
per year. If the other 0.5 million dollars had been appropriated each 
year, the backlog of AML work in these states would be much less and 
hazards would have been eliminated sooner and at lower costs. Since 
there is nothing that can be done about past actions, we shouldn't 
dwell too much on that and move forward instead. With re-authorization 
now in place, it's time for OSM to ensure that funding for minimum 
program states is at the 3 million dollars per year authorized in that 
legislation. The increased funding to that level for the minimum 
program states needs to begin in FY 2008.''

    In closing it is important to remember that the AML program is 
first and foremost designed to protect public health and safety. The 
majority of state and tribal AML projects specifically correct AML 
features that threaten someone's personal safety or welfare. While 
state and tribal AML programs do complete significant projects that 
benefit the environment, the primary focus has been on eliminating 
health and safety hazards first.
    Thank you for the opportunity to submit this statement.
                                 ______
                                 
 Statement of Ronald E. Yarbrough, Professor Emeritus, Earth Sciences, 
             Southern Illinois University, Edwardsville, IL

    I wish to thank the Natural Resources Committee for a review of a 
30 year old act-SMCRA and the chance to pass on to our elected leaders 
a personal view of the coal industry and regulators, which I have 
worked for and have worked against in legal proceedings and 
publications. I am now 69 and am Professor Emeritus, Earth Sciences, 
Southern IL University, Edwardsville. I am also retired from the U.S. 
Army Corps of Engineers, St. Louis District where I worked part and 
full time for 17 years. I also worked for the former U.S. Bureau of 
Mines, Twin-Cities Lab, researching subsidence. My consulting work, 
over the last 40 years has been focused on coal mine subsidence and 
environmental problem solving.
    The following items are most important to me and are why SMCRA 
needs to be updated to follow the changes and mistakes made by the coal 
industry. The writer has been confronted with some of these problems in 
my consulting career.

          1). The underground coal industry has moved from room and 
        pillar mining (50%+-extraction to protect the surface estate) 
        to longwall mining (80% extraction with controlled subsidence, 
        usually about 80% of seam height). An 84 in. seam would yield 
        about 5.5 feet of subsidence. To legally subside the surface 
        estate the company needs a ``right to subside'' contract with 
        the surface owner. This relationship of mineral estate and 
        surface estate owners was established in English Common Law in 
        the 1500s. In IL, some of the county boards sold old coal 
        mining rights to new companies and also sold the subsidence 
        rights with NO input from the surface estate owner. This type 
        of contract sale must be stopped. CALM (Citizens Against 
        Longwall Mining--they are not against room and pillar mining) 
        in Montgomery County, IL--largely farmers--are presently 
        seeking a declaratory judgment in Federal Court against the 
        coal companies for assuming that they have subsidence rights 
        without a contract with the surface estate owner As one can 
        ascertain, the rich coal companies can wear out the pocketbooks 
        of the farmers in court and their prime farmland will be 
        destroyed by longwall mining, which will be an economic 
        disaster to the farmers, the local economy and America. 
        Congress must not allow the ``energy frenzy'' to overcome our 
        agricultural economy.
          2). Subsidence over room and pillar mines is a rare 
        occurrence and about a million acres of IL is undermined. 
        Seventy-three percent of IL is underlain by coal deposits. It 
        has been estimated that about fifty percent of the coal is 
        recoverable, assuming economics and technology under present 
        day conditions. Most of the surface mineable coal is mined out 
        and underground mining will be the primary method of extraction 
        and the companies wish to have higher extraction--longwall 
        mining, thus, more profit. Occasional subsidence does occur 
        over room and pillar mining, but if in a field, the sags can be 
        easily repaired. If a structure is damaged, PA, IL, KY, OH and 
        IN have a Mine Subsidence Insurance Fund which will repair the 
        home or barn. A major problem today with the coal companies is 
        that they are denying that the round ponds (sags) in the middle 
        of fields are due to subsidence. The State regulators are 
        sometimes helpful, but, since some feel that they work for the 
        coal companies-not the people, they like to brush off 
        investigations and the farmer has to sue to get compensation. 
        The Office of Surface Mining (OSM) was very helpful with three 
        cases I have worked on in KY.
          3). IL also has some of the most productive farmland in the 
        world. Much of the glaciated areas of the State are only 0 to 
        4% slopes or flat. The farmers who broke the prairie in the 
        1800s found out that the level areas did not have good 
        drainage. They installed field tile (there is enough field tile 
        in IL to reach to the moon and back) and dug ditches to improve 
        their crop yields. There are millions of dollars invested in 
        the drainage systems in the State. Then, along comes longwall 
        mining. The method involves 100% extraction in a panel that may 
        be 3 miles long and 1000+-feet wide that creates a ``bathtub'' 
        effect on the surface because room and pillar areas, which 
        function as air and material passageways, parallel the panel 
        and on the ends of the panel there are ``room and pillar 
        mains'' which do not subside to the same extent as the panel. 
        The Surface Mining Act states: ``affected land shall be 
        restored to a condition capable of supporting the uses which it 
        was capable of supporting prior to any mining, or higher or 
        better uses of which there is reasonable likelihood''. This has 
        been achieved in a surface mine, for which the law was written, 
        but is impossible with a longwall panel. In the Mt. Vernon Hill 
        Country in Southern IL there have been many successful longwall 
        panels because the land is rolling with slopes between 5 to 
        15%. Good floodplain land has been undermined and this level 
        land is now largely elongated lakes. But subjacent to our level 
        prime farmland the ``bathtubs'' on the landscape cannot be 
        restored to a condition capable of supporting the yields of the 
        fields prior to mining. Longwall Mining should be banned under 
        prime farm land that has zero to four percent slopes because it 
        cannot be reclaimed to its original production*.

          *NOTE-The Dept. of Agriculture measures slope in their modern 
        SOIL SURVEYS OF THE COUNTIES IN U.S.A.

          4). Rural families usually depend upon groundwater for their 
        water supply for home and animals. The IL. State Geological 
        Survey has conducted studies concerning the effect of longwall 
        mining and bedrock aquifers. They have shown that there is 
        draining of the bedrock aquifer for a year of so but the 
        aquifer normally will recover. Those farmers or rural 
        residents, who depend on shallow wells, usually in glacial 
        derived sandy materials, sometime loose their water supplies 
        for many years. The coal companies who conduct longwall mining 
        in areas of 5%+ slopes and shallow aquifers should conduct 
        studies to determine the effect on aquifers and in both shallow 
        and deep aquifers should be ready to supply resident's adequate 
        water without a law suit. The new SMCRA should make it very 
        clear that the companies have that responsibility.
          5). An example of a mining company in IL and longwall mining 
        and landuse--There have been many complaints by the public 
        about the regulatory agencies, OSM and State Departments that 
        enforce SMCRA, are not doing their jobs. The professional 
        people that I have worked with for many years in both agencies 
        are doing their jobs to enforce the 1977 law--the problem is 
        the law is not written to consider longwall mining and the 
        agencies must have a law which has teeth to stop the coal 
        companies from deliberately changing the surface landscape. A 
        good example is a permit which was issued in 2006 by the IL 
        Dept. of Natural Resources. A permit was issued to Steelhead 
        Development Co. LLC, which changed its name to Williamson 
        Development Co., LLC who is affiliated with Cline Resource and 
        Development, LLC whose main offices are in Canada and are 
        largely owned by German and Japanese Companies who are also 
        affiliated with Natural Resource Partners, LP, NRP of Houston--
        owners unknown. The permit was for 540 acres of land, which 
        they purchased, with 434.25 acres of farm land. The reclamation 
        plan calls for the ``bathtub lands'' to be converted to 
        wildlife habitat with no cropland, 19.26 acres of water and 
        forest land.
          So short term taxes versus long term loss to the county. By 
        the way, Williamson Co. does not need any more wildlife land. 
        The writer is also very suspicious of all of the chain of 
        limited liability corporations, some foreign, who will be like 
        some of the old strip mining companies, who were put out of 
        business by the 1977 law. For some companies the old way to 
        operate strip mines was rape, ruin and run and I am concerned 
        that is what the foreign longwall companies (with local 
        offices) are planning to do. The USA will be treated like a 
        third world country supplying raw materials. The writer is not 
        an attorney--who would a landowner or the states or Federal 
        Government sue in the LLC chain?
          6). Disposal of coal waste is a major problem in all coal 
        fields. On the level surfaces of the Midwest slurry (fine 
        material carried to the waste pile by pipeline) and gob (which 
        is transported by truck) contain many hazardous materials. The 
        Bevill amendment to the Clean Water and Clean Air Acts states 
        that coal cannot be considered a hazardous material. Coal waste 
        contains most heavy metals, materials that change into 
        dangerous gases and high amounts of sulfur compounds which are 
        released into the neighborhood around the waste piles. There is 
        an excellent example in Clinton Co., on level prime farmland, 
        of two waste piles that are 40 to 60 feet high and contain 
        about 30+ million tons of waste. The piles were built on top of 
        an unusual large shallow aquifer and Monterey Coal Co. (owned 
        by Exxon-Mobile) knowingly poisoned the aquifer. Neither IEPA 
        nor IDNR had laws that allowed them to modify the construction 
        methods of the company. In a meeting (I was an expert witness 
        against Exxxon), after the old waste pile had poisoned the 
        aquifer and the coal company was looking to obtain a permit for 
        a new pile--a employee of IL. Dept. of Natural Resources asked 
        ``are you not going to put a liner under the new pile since we 
        all know that the old pile leaks''.-the coal company 
        representative said nothing. IDNR and IEPA did not have any 
        authority to stop the permit being issued. Now, the mine is 
        closed and they operate pumps to remove the poison, direct the 
        poison into settlement basins and place it a pipe line to the 
        Kaskaskia River, a source of drinking water. The noxious 
        materials will not be leached out of the pile for 500+ years. 
        The company was allowed to place only 2 feet of dirt on top 
        rather than the required 4 feet--why? no one knows, yet the 
        regulators let them get away with it. Unless poor little Exxon 
        could not afford to follow the reclamation law. Who will clean 
        up this mess in the future--the taxpayers of IL and America? 
        The writer recommends that hearings should be held so the 
        decision makers can design a new SMCRA that will be similar to 
        the law for sanitary landfills to stop the pollution from coal 
        waste.
          7). Management of a revised SMCRA--recommended changes. As 
        the writer stated, the profession people, who do the work, are 
        limited by the current law to protect the property of the 
        people in their state. One of the major problems is the fact 
        that ``the fox is watching the chicken house''. The $0.15 tax 
        on underground mined coal and the $0.35 tax on surface mined 
        coal go to the regulators, OSM and the respective state 
        regulatory agencies. The more coal is mined the more dollars 
        the politically appointed managers in the states have to spend. 
        Of course, these managers tell the professionals what to do, 
        they are the boss. It is the writer's opinion, that Congress 
        should review this fact and write into the new law a means to 
        modify this management system and replace it with an 
        independent group that answers to Congress and the people-not 
        to the paying coal companies. Also, the other environmental 
        portions of the present law are not strong enough. Congress has 
        the National Environmental Policy Act which works very well 
        because it MANDATES planning, scoping and public input. Getting 
        a public hearing on a mining permit is like getting a tooth 
        pulled, the agencies are very reluctant to face an angry 
        public. As a geologist and former regulator, I feel sorry for 
        them as all they have to work with is the 1977 law in which 
        underground mining and waste disposal were not emphasized.

    The writer would be very willing to work with a congressional aide 
as the House moves forward with the modification of the Surface Mining 
Act.
                                 ______
                                 
                Statement of Julia Bonds, Rock Creek, WV

    I would like to thank Senator Bingaman for holding this hearing,
    The good citizens of Appalachia and of all coal mining communities 
would like to invite you to our communities to witness the destruction, 
the illegal and immoral activities that OSMRE is allowing the coal 
industry to get by with. We need your help. Please come and investigate 
our complaints.
    OSMRE and this administration continue to deny the citizens of 
Appalachia sufficient time to examine rule changes. OSMRE makes it 
extremely hard for citizens to find out about permits. Citizens in the 
nearby communities should be notified the minute a permit that affects 
them is applied for. During the Stream Buffer Zone rule change, we the 
citizens asked OSMRE for an extension and for hearings in November. We 
were denied without reason. I ask again WHY??? OSMRE is constantly 
making changes in regulations that make it easy for the coal industry 
to pollute, poison and blast our homes and communities.
    The Bush administration and OSMRE are treating the good people of 
Appalachia like second-class citizens. The OSMRE denied the citizens of 
Virginia the right to even have a hearing, there by disenfranchising 
this county's citizens. This administration is a fascist regime and 
OSMRE is a gatekeeper for that regime. History will show their evil and 
shameful acts upon innocent people. Please do not be part of that 
shame.
    OSMRE does not enforce the SMCRA laws.
    OSMRE is allowing coal companies to devastate communities near coal 
mining operations. Loss of life and homes from flooding, loss of both 
well water and stream water sources, loss of renewable resources, and 
loss of quality of life are all consequences of irresponsible mining by 
outlaw coal companies and OSMRE is allowing this to happen by not 
enforcing the law. Our water is being poisoned and no one will help us. 
The coal industry is blasting our homes and mountains with millions of 
pounds of explosives a day. The coal dust, rock dust and silica dust 
comes down into the valleys and settles in our homes and our lungs.
    OSM must honestly assess the cumulative impacts of mountaintop 
removal. OSM says the impacts are insignificant but ignores the 
cumulative impacts of mountaintop removal and other mining in central 
Appalachia, like longwall mining.
    According to the administrations own studies on mountaintop removal 
coal mining, the immediate and long-term environmental impacts of this 
form of coal mining are severe and irreversible. The jobs are temporary 
and the damage is permanent. Lapses in the enforcement of the buffer 
zone rule have allowed almost 2000 miles of streams to be buried or 
degraded by mining waste.
    The Bush administration released a draft Environmental Impact 
Statement (EIS) on August 24 to go along with the proposed rule change. 
That study was supposed to examine the environmental effects of 
alternatives to repealing the buffer zone rule, which prohibits valley 
fills and sludge ponds from burying and destroying streams. Yet, 
incredibly, the EIS did not even study the option of enforcing the 
buffer zone rule as currently written.
    This fact alone proves the administration never considered 
enforcing the law, but only wants to repeal it, regardless of the facts 
about the harm that will result.
    Using the administration's own figures, more than 1000 miles of 
streams will be destroyed every decade into the future, poisoning an 
entire region.
    OSMRE is proof that the ``fox is guarding the henhouse''.
    OSMRE is not even enforcing or fulfilling provisions of the AML law 
signed last year.
    Recently the Rahall overhaul and change to the 1872 Hard Rock 
Mining Law included language that would allow the use of OSM personnel 
to enforce this law. This means more responsibilities for a regulatory 
agency that is NOT enforcing the laws now in coal mining communities.
    OSMRE could also be given responsibilities of collecting the taxes 
generated by this law, again, this is even more responsibilities for a 
lax agency.
    This could be perceived as leaders and lawmakers of this great 
country desires OSMRE to fail in it's job to protect the citizens 
living in the United States of America, or just fail to protect the 
citizens that live near coal mining operations.
    We are asking that our Congress help us.
                                 ______
                                 
                 Statement of Linda Lindsey, Paonia, CO

    Thank you for the opportunity to submit comments to the Senate 
Energy and Natural Resources Committee with regard to SMCRA. SMCRA was 
intended to protect people and the environment from the deleterious 
effects of coal mining, but it has not bee well enforced and abuse is 
rampant. I could cite many instances where there has been mining under 
houses, dams, streams, etc. with horrible results that have not been 
addressed. There is urgent need for Senate oversight hearings to assist 
citizens in the coalfields to address the problems created by lax 
enforcement, to hold OSM accountable to its responsibility to protect 
our hard working citizens and our natural environment.
                                 ______
                                 
               Statement of Mary A. Bates, Hillsboro, IL

    OSM has abdicated it responsibility to regulate SMCRA and protect 
the citizens and landowners from the ravages and greed of the mining 
companies. Underground mines have destroyed thousands of acres of prime 
farmland in the Midwest. Mountaintop removal and the stream buffer zone 
rule must be better regulated to stop the destruction and protect the 
natural resources.
    In Illinois the Monterey Mine #1 has destroyed homes and families 
were displaced after being badgered and harassed to sell their land to 
Exxon Mobile owner of Monterey Mine #1. Planned subsidence from 
longwall mining has destroyed roads and prime farmland and now the mine 
is being closed without reclamation because it's not technologically 
and economically feasible.
    Exxon's Monterey Mine #2 was closed several years ago but the Pearl 
Sand Aquifer was contaminated with leachate from the coal waste because 
it was poorly designed from the beginning in late 1970's. There was no 
rule to install an impermeable liner under the coal waste then or now. 
OSM deferred to the state agency, IDNR, which made decisions in favor 
of the mining company and against the citizens welfare. Even today, 30 
years later, contaminates drain into the Kaskaskia River everyday 
without warning signs posted anywhere near the output.
    The citizens private wells are contaminated with arsenic as well as 
a multitude of other contaminates because they migrated off the permit 
area. Exxon was fined a million dollars and required to put surrounding 
landowners on municipal water supply. The mining activity still 
continues to pump water out of the aquifer and into the River. The soil 
cap on the GOB pile is less than SMCRA requirements and coal dust blows 
into surrounding homes. Many citizens are sick and have died from 
cancer for lack of information about what was in their drinking water 
and the air they breath.
    The legislators deny responsibility, the mine denies 
responsibility,OSM has denied responsibility to protect the citizens of 
Albers and Germantown. USDA ruled the pumping was an ongoing mining 
activity even though the mine is closed . . . the Illinois Department 
of Natural Resources allows the pumping to go on designating it 
``passive reclamation''. According to IDNR's own engineers the pumping 
must go on for 500 YEARS. IDNR denied hearing and comment periods 
saying it was irrelevant and statically insignificant. The citizens 
have no voice and continue to suffer.
    This same scenario is about to play out again in Montgomery County 
with Hillsboro Energy LLC proposing to longwall mine and planned 
subsidence to thousands of acres if prime farmland. The flat (0-4% 
slope) cannot be drained and will become a swampland. Reclamation is 
possible on hilly terrain but not technologically or economically 
feasible on flat farmland.
    It's not too late to revise SMCRA to stop the destruction of 
205,000 acres of prime farmland in Montgomery County. We must have 
citizen input as originally written into SMCRA of 1977. There must also 
be enforcement of existing rules and OSM must the lead as intended.
    Most Illinois landowners sold their mineral rights in the early 
1900 to 1920 assuming room and pillar mining method would be used. 
Longwall mining method with planned subsidence was not used in 1977 
when SMCRA was written and only added as an afterthought. Revision of 
the SMCRA rules must include protection for surface landowners from the 
longwall mining method and destructive planned subsidence. Protections 
for mountaintop removal and destruction natural resources must be 
included in a SMCRA revision.
                                 ______
                                 
              Statement of Vicki Hedrick, Carlinville, IL

    This email is in response to the need for revising SMCRA in light 
of the laxity with which mining regulations are enforced. Now it has 
come to my attention that there is a proposal to allow dumping of 
debris from mountaintop removal into associated valleys resulting in 
the damming of streams and rivers. This latter occurrence, if it were 
approved, would result in the loss of fresh drinking water for many 
U.S. citizens living in affected areas not to mention the destruction 
of habitat for many species of wildlife from birds (losing their 
mountaintop breeding habitats and food sources) to fishes, reptiles, 
amphibians, and mammals that rely on streams and rivers.
    I fear that not enforcing the protection of streams through a 
buffer zone would also carry here into the midwest where many of our 
streams and rivers, including the Kaskaskia River (a major Mississippi 
feeder river) are already contaminated from mining waste. Some of this 
contamination results from continued leaking of leachate (arsenic, 
e.g.) into the ground water from abandon mines but also from leakage of 
those contaminants from gob piles and borrow pits of active mines.
    In addition to leachate, longwall mining has become the method of 
choice in Illinois and other midwestern states. Longwall, of course, 
extracts a higher percentage of the coal seam. Removing that coal seam 
results in the subsidence of ground above the seam when mining is 
completed. Much farmland in Illinois (at a time when biofuels are being 
promoted) has been lost to subsidence. Since it may not be economically 
feasible for the mining company to restore the land (as the company is 
supposed to according to mining regulations), as determined by the 
mining company, this land may never again be productive since it will 
hold water late into the spring and summer, at least. Any homes, barns, 
and other structures are damaged and may not be repaired.
    SMCRA was formulated at a time when longwall mining was not the 
method of choice and so, therefore, too many loopholes exist which 
allow the mining companies to abbrogate their responsibility to 
landowners. Therefore, SMCRA should be revised and strengthened. In 
addition, stream buffers must be protected (and frankly, it would be 
best if, in states where this is an issue, mountaintop removal must be 
abolished!), private citizens must have recourse against the mining 
companies.
                                 ______
                                 
                             Schmid & Company Inc.,
                                     Consulting Ecologists,
                                      Media, PA, December 17, 2007.
Hon. Jeff Bingaman,
Chairman, Senate Energy and Natural Resources Committee, Senate Office 
        Building, Washington, DC.
Re: Comments on OSM Administration of SMCRA

    Dear Senator Bingaman: This letter is to provide comments to the 
Senate Energy and Natural Resources Committee as a follow-up to the 
Committee hearing on 13 November 2007 regarding SMCRA policy issues. 
Specifically, these comments relate to the recent Draft EIS\1\ and 
proposed rule change\2\ regarding the ``Stream Buffer Rule''. I am 
deeply concerned that OSM is not effectively administering the 
environmental protections intended by SMCRA, and that as a result, 
additional Congressional oversight may be necessary.
---------------------------------------------------------------------------
    \1\ Draft Environmental Impact Statement (DEIS) on Excess Spoil 
Minimization--Stream Buffer Zones, Proposed Rule (OSM-EIS-34), prepared 
by the Office of Surface Mining Reclamation and Enforcement, dated 
April 2007.
    \2\ ``Excess Spoil, Coal Mine Waste, and Buffers for Waters of the 
United States'' (regarding 30 CFR Parts 780, 784, 816, and 817), as 
published in the Federal Register on 24 August 2007 (Volume 72, No. 
164, pages 48890-48926.
---------------------------------------------------------------------------
    These comments are provided as a public service and not on behalf 
of any client. They are based on my professional experience during more 
than 25 years as a private-sector consulting ecologist, during which 
time I have worked closely with federal and state regulatory programs 
relating to mining, wetlands, and water quality.
    COMMENT 1.--The basic premise of the Draft EIS and the proposed 
rule, that excess spoil fills, refuse piles, coal mine waste 
impoundments, and sedimentation ponds can routinely be authorized in 
and within 100 feet of perennial or intermittent streams in accordance 
with SMCRA and its implementing regulations, is fundamentally false. 
Just because OSM and State regulatory authorities may have historically 
applied the stream buffer zone rules at 30 CFR 816.57 and 817.57 in a 
flawed manner, does not make it a correct application of the rules. 
Indeed, it seems perfectly clear that routinely allowing these mining 
activities in streams was never intended. As noted on page III-70 of 
the DEIS, the preamble to the 1979 rules states that ``[b]uffer zones 
are required to protect streams from adverse effects of sedimentation 
and from gross disturbance of stream channels''. Excess spoil fills, 
refuse piles, coal mine waste impoundments, or sedimentation ponds, if 
constructed within streams, clearly will and do cause gross disturbance 
of the stream channels and degrade water quality.
    Furthermore, the 1983 revisions of Sec. 816.57 (and Sec. 817.57) 
clearly state that ``no land within 100 feet of a perennial or an 
intermittent stream shall be disturbed by surface (underground) mining 
activities''. Although those sections of the regulations do anticipate 
limited exceptions to the near-prohibition on mining activities within 
the buffer zone, even those excepted activities may not ``adversely 
affect the water quantity and quality or other environmental resources 
of the stream''. In essence, only if the mining activity can be 
performed without adversely affecting the stream can it be authorized 
within the buffer. This is very clear and straightforward language, and 
I see no opportunity for misinterpretation.
    If an excess spoil fill, a refuse pile, a coal mine waste 
impoundment, or a sedimentation pond is placed within a perennial or 
intermittent stream, it most certainly will adversely affect the water 
quantity, water quality, and/or other environmental resources of the 
stream. Replacing a section of a natural stream (which includes not 
only the physical structure of that stream but also the ecological 
functions and benefits that stream provides) with a spoil fill, a 
refuse pile, a waste impoundment, or a sedimentation pond will 
permanently and adversely change the stream, because those activities 
will result in the loss of that section of the stream, and there can be 
no more adverse effect on that section of stream than the entire loss 
of the stream section itself.
    COMMENT 2.--The administration of the 100-foot buffer zone rule, 
which should be a very simple concept to implement, has become an 
elaborate attempt by OSM to rationalize exemptions and variances for 
activities that clearly were never intended to be allowed. The central 
focus of the DEIS, as with the past implementation of the rule, has 
been diverted from protecting and preserving natural watercourses to 
rationalizing and justifying how the destruction of whole sections of 
streams does not represent an adverse impact. The same weasel words and 
phrases keep being repeated in a deceptive attempt to appear to be 
providing environmental protection:

          operations must be designed to minimize the creation of 
        excess spoil to the extent possible

          excess spoil fill must be no larger than needed to 
        accommodate the anticipated volume of excess spoil generated

          steps to be taken to avoid adverse environmental impacts, or 
        if avoidance is not possible, to minimize those impacts

          operations must be conducted in a manner that minimizes 
        disturbances to, and adverse impacts on, fish, wildlife, and 
        related environmental values to the extent possible, using the 
        best technology currently available.

    I have dealt with federal and state regulations for many decades 
and I can recognize hollow directives such as these that may sound 
protective, but in fact represent giant loopholes. If an applicant 
agrees to ``minimize disturbances to the extent possible'', in reality 
he will do as he always has done and claim that nothing more protective 
is possible (typically because it will raise costs and lower profits). 
A claim to use the ``best technology currently available'' also is a 
charade: while advances in technology for mining coal are continually 
being developed and applied, there have been no comparable 
technological advances in the methods to protect streams and other 
environmental resources (because there is no incentive to do so), and 
so the ``best available technology'' may be wholly inadequate for 
stream protection and use of better techniques may be viewed by the 
applicant as not possible. This is unacceptable.
    COMMENT 3.--The best protection a stream can receive is to prevent 
mining within 100 feet of it. This fact is acknowledged on page II-19 
of the DEIS: ``... in general, stream buffer zones continue to be the 
best technology currently available for implementation of SMCRA 
Sections 515(b)(10)(B)(i) and (24)''. It is not necessary to have an 
absolute prohibition on all mining activities within the entire 100-
foot buffer. Mining activities in any part of the 100-foot buffer, 
however, should be allowed only on a case by case basis and only in the 
most extraordinary circumstances; they certainly should not be allowed 
routinely. Most mining activities when conducted in the stream itself 
(especially excess spoil fills, refuse piles, coal mine waste 
impoundments, or sedimentation ponds) cause irreversible adverse 
impacts that cannot be mitigated adequately, and so they should not be 
allowed in the first place.
    COMMENT 4.--OSM proposes to include a requirement that applicants 
submit an alternatives analysis and an environmental evaluation of each 
alternative proposed to allow certain mining-related activities in 
waters of the United States. This alternatives analysis proposal is 
fatally flawed by the inclusion of the loophole that allows the 
applicant to select an alternative other than the one with the least 
overall environmental impact if he can ``demonstrate why implementation 
of that [least impact] alternative is not possible''. This proposed 
``requirement'' is just another spurious attempt to justify allowing 
mining activities that are not appropriate in or near streams. There 
are many different methods of mining coal. The method used should be 
the most compatible with the land being mined. If the topography is so 
steep that mountaintop removal cannot be done without filling in 
streams, then another mining method should be used. An applicant may 
produce reams and reams of documents describing how it has tried to 
avoid and minimize adverse impacts to a stream, and measures it will 
propose to implement to try to mitigate the impacts, but at the end of 
the day, if a stream or some section of it is allowed to be used as an 
excess spoil pile, or for some other mining-related activity, then it 
will not be available for fishing, hiking, or other recreation, it will 
not support aquatic life or riparian habitat, it will not store 
floodwaters, and it will not be able to provide the other ecological 
functions and benefits it provided previously.
    COMMENT 5.--The attempt by OSM to justify impacts to streams under 
SMCRA by relying on Clean Water Act (CWA) protections associated with 
Nationwide Permits (NPs) authorized by the Corps of Engineers (Sections 
780.28 and 784.28) is disingenuous. This is nothing more than circular 
regulatory logic which goes like this: if the proposed work in streams 
and wetlands already is authorized by a CWA Nationwide Permit, then it 
should automatically be authorized under SMCRA. That might make sense 
if the Nationwide Permit authorizations entailed a comprehensive review 
of the proposed work, but they do not; in fact: a) Nationwide Permits 
are not carefully reviewed by the Corps in any manner even approaching 
the review that is required under Individual Permits, b) there are no 
acreage limitations on impacts associated with the referenced 
Nationwide Permits (NP 21, NP 49, and NP 50), and c) the Nationwide 
Permits themselves are considered valid if the proposed work either has 
been approved or is ``being processed'' by OSM (the circular logic 
again). OSM rules should require independent review of any and all 
mining activities that will affect wetlands or other waters of the 
United States, even if those activities undergo separate Clean Water 
Act approval.
    COMMENT 6.--The OSM proposal to expand the protections of the 
stream buffer rule to all waters of the US, and not just to perennial 
and intermittent streams, would be laudable if it were not so 
ludicrous. The so-called ``protection'' that OSM proposes to expand is 
the watered-down version which allows major mine-related activities 
(excess spoil fills, refuse piles, coal mine waste impoundments, and 
sedimentation ponds) to occur within those waters. If OSM is going to 
lock the henhouse, it hardly can be called ``protection'' if it locks 
the fox inside too. If, however, OSM would propose to retain the same 
standards of protection as the existing rule ostensibly provides, I 
would applaud its expanding those protections to all waters of the US, 
including lakes, ponds, and wetlands.
    COMMENT 7.--OSM proposes to replace the phrase ``adversely affect'' 
with the phrase ``significantly degrade'' in the conditions under which 
a variance to the 100 foot buffer could be authorized. This change 
should not be made. The phrase ``significantly degrade'' is less 
restrictive than the existing phrase ``adversely affect''. To change it 
would unnecessarily weaken the stream protection currently afforded 
under the existing rule. OSM should keep the buffer rule language as it 
is, and allow no mine-related activities within the buffer except in 
extraordinary cases where no adverse impact will result.
    COMMENT 8.--The alternatives OSM proposed and reviewed are 
fundamentally flawed because they fail to include the most reasonable 
alternative, which is to protect streams by enforcing the 100 foot 
buffer zone under the existing regulation. This seems to be an obvious 
alternative for consideration, and it is outrageous that it was not 
included.
    COMMENT 9.--OSM says that if mining is not allowed within streams 
and within the 100 foot buffer zone it would result in a significant 
detrimental effect on US coal production, which OSM says would be 
contrary to one of the stated purposes of SMCRA. However, three of the 
other stated purposes of SMCRA, all of which are listed before the one 
quoted which refers to ``the Nation's need for coal'', are as follows:

          (a) establish a nationwide program to protect society and the 
        environment from the adverse effects of surface coal mining 
        operations;
          (b) assure that the rights of surface landowners and other 
        persons with a legal interest in the land or appurtenances 
        thereto are fully protected from such operations; . . . 
          (d) assure that surface coal mining operations are so 
        conducted as to protect the environment. [30 U.S.C. 1202 Sec. 
        102; emphasis added]

    Environmental protection obviously is meant to be a primary 
consideration under SMCRA. There are many methods of coal mining, and 
coal is mined in many parts of the country. Local conditions should 
dictate which method is used in a given situation. If a particular 
mining method is such that it cannot be conducted in a specific 
location without causing adverse environmental effects, then it should 
not be allowed in that location. This does not mean that mining in that 
location is prohibited, only that another method of extracting the coal 
should be used, one that will not damage the stream corridors and other 
environmental resources. Under the current rule, variances can be 
authorized, but only where the proposed work can be done within the 
buffer in a manner that ``will not adversely affect the water quantity 
and quality or other environmental resources of the stream''.
    COMMENT 10.--The existing 100-foot stream buffer rule should be 
uniformly applied and enforced in connection with underground coal 
mining as well as surface mining. Certain types of underground mining, 
longwall mining in particular, cause significant adverse impacts to 
streams, wetlands, and other surface water resources when the 
overburden subsides into the mine void. Subsidence is an intrinsic and 
predictable aspect of longwall mining. Consequently, underground mining 
activities should be made to comply with the stream buffer rule and 
should be allowed to occur within the buffer only in exceptional 
circumstances (e.g., where room and pillar mining is proposed and no 
subsidence can be anticipated).
    COMMENT 11.--The rules should not be weakened to accommodate mining 
activities that cannot meet the standards. SMCRA became law 30 years 
ago largely in response to the environmental devastation being 
inflicted on the Appalachian coalfields by unregulated strip mining. A 
major element of the law and its implementing regulations was the 
inclusion of detailed environmental performance standards. The 
currently-proposed changes to the 100 foot buffer zone requirement will 
result in a return to the type of environmental impacts in Appalachia 
that SMCRA sought to correct. That should not be allowed to happen. As 
mentioned above, if a particular mining method is such that it cannot 
be conducted in certain locations without causing adverse environmental 
effects, then it should not be allowed in those locations. Instead of 
weakening the rules to accommodate certain coal mining methods, the 
method of mining must be changed to conform with local conditions and 
comply with the environmental standards.
    COMMENT 12.--OSM should not abandon its regulatory and oversight 
roles in favor of becoming an advocate for private industry. 
Environmental standards and regulations too often are viewed (at least 
by the regulated community) as unwarranted infringements on the right 
to operate a business and make a profit. The debate typically is framed 
as a strict choice between economics and the environment. The 
environmental protection rules are seen as imposing unreasonable costs 
on a business or industry. What is unreasonable, however, is the 
expectation that any business should be allowed to destroy mountains 
and streams, and when it happens, to avoid fixing or paying for the 
damages caused. In that sense, environmental regulations are a means to 
level the overall playing field, to ensure that all relevant costs and 
considerations are factored into the approval process. In their 
absence, the cost of environmental destruction is not reflected in the 
price of coal, rendering less destructive alternative sources of energy 
uncompetitive. So long as the regulations are fairly and consistently 
applied and enforced, it then becomes a free-market decision for the 
business owner to modify the proposed mining operation to comply with 
the requirements, or to use a different method of mining that complies. 
Good old American innovation and ingenuity is still alive and well in 
this country, and I know that coal can be mined without destroying 
streams. OSM should not presume otherwise.
    In conclusion, I strongly believe that OSM must retain and enforce 
the existing 100-foot stream buffer regulatory requirement whereby no 
mining activity is allowed within 100 feet of perennial or intermittent 
streams except in specific, extraordinary situations where it can be 
conclusively demonstrated that there will be no adverse environmental 
impact on the stream. I call upon the Senate Energy and Natural 
Resources Committee to hold additional hearings and to provide a higher 
degree of oversight of OSM's administration of SMCRA. Thank you for the 
opportunity to provide these comments.
            Yours truly,
                                           Stephen P. Kunz,
                                                  Senior Ecologist.
                                 ______
                                 
 Statement of Scott Gollwitzer, In-house Counsel, Appalachian Voices, 
                             Asheville, NC

    Thank you for the opportunity to submit comments on the 
implementation of the Surface Mining Control and Reclamation Act 
(``SMCRA'') by the Office of Surface Mining, Reclamation and 
Enforcement (``OSMRE''). As part of its duties under SMCRA, OSMRE is 
required to comply with the National Environmental Policy Act 
(``NEPA''). The following comments\1\ are intended to highlight recent 
attempts by OSMRE to implement SMCRA while evading its obligations 
under NEPA.
---------------------------------------------------------------------------
    \1\ Excerpted from our comments on the proposed Stream Buffer Zone 
rule changes.
---------------------------------------------------------------------------
                            I. INTRODUCTION

    Because more than half of America's electricity is generated from 
coal, we rely on the people, communities and environments wherever it 
is mined, processed, burned and discarded. Accordingly, we have a 
reciprocal moral obligation to reduce or eliminate coal's catastrophic 
impacts. Congress codified this ethical obligation in, inter alia, the 
National Environmental Policy Act (``NEPA''). Regrettably, OSMRE has 
abandoned its duties under NEPA in, inter alia, its recent efforts to 
weaken existing stream buffer zone protection regulations.

    II. THE OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT'S 
      MANDATORY DUTIES UNDER THE NATIONAL ENVIRONMENTAL POLICY ACT
 
   The National Environmental Policy Act (``NEPA''), 42 U.S.C. 
Sec. Sec.  4321-4370d (2007), is a broad national charter designed to 
ensure that federal agencies, including the Office of Surface Mining 
Reclamation and Enforcement (``OSMRE''),\2\ do not relinquish their 
responsibilities to the public and the environment without first 
performing an extremely careful, comprehensive evaluation of federal 
actions affecting the quality of the human environment. See 42 U.S.C. 
Sec.  4332 (2007). NEPA serves two equally important functions. 
``First, it `places upon [OSMRE] the obligation to consider every 
significant aspect of the environmental impact of a proposed action,' . 
. . Second, it ensures that [OSMRE] will inform the public that it has 
indeed considered environmental concerns in its decisionmaking 
process.'' Baltimore Gas & Elec. Co. v. Natural Resources Defense 
Council, Inc., 462 U.S. 87, 97 (1983). (internal and end citations 
omitted).
---------------------------------------------------------------------------
    \2\ Just as it has abrogated its ethical obligation to reduce or 
eliminate coal's catastrophic environmental and social impacts, OSMRE, 
as evidenced by its self-truncated acronym (``OSM''), ignores its 
duties to ensure reclamation and enforcement under the Surface Mining 
Control and Reclamation Act (``SMCRA''). Because Appalachian Voices 
firmly believes that reclamation and enforcement are equally important 
functions of SMCRA and OSMRE, we use the acronym OSMRE. See 30 U.S.C. 
Sec.  1211(a) (2007) (``There is established in the Department of the 
Interior the Office of Surface Mining Reclamation and Enforcement'') 
(emphasis added).
---------------------------------------------------------------------------
    The Court of Appeals for the District of Columbia recently 
summarized NEPA's procedural duties: ``[t]he purpose of NEPA is to 
integrate environmental review into the agency decisionmaking process 
to ensure that `environmental values and consequences have been 
considered during the planning stage of agency actions.''' City of 
Dania Beach v. FAA, 485 F.3d 1181, 1185 (D.C. Cir. 2007) (quoting 
Andrus v. Sierra Club, 442 U.S. 347, 350-51, 99 S. Ct. 2335, 60 L. Ed. 
2d 943 (1979)). As explained by the Supreme Court, NEPA was intended to 
``reduce or eliminate environmental damage,'' Dep't of Transp. v. 
Public Citizen, 541 U.S. 752, 756; 124 S. Ct. 2204; 159 L.Ed.2d 60 
(2004), by requiring all federal agencies, including OSMRE, to ``take a 
`hard look' at the environmental consequences [of their actions].'' 
Baltimore Gas & Elec. Co., 462 U.S. at 97. Whenever OSMRE decides to 
prepare an environmental impact statement, NEPA requires OSMRE to 
evaluate, inter alia, a reasonable range of meaningful alternatives to 
the proposed course of action. See 42 U.S.C. Sec.  4332(A)(iii) (2007); 
see also, 40 C.F.R. Sec.  1502.14 (2007).

III. OSMRE'S DRAFT ENVIRONMENTAL IMPACT STATEMENT DOES NOT COMPLY WITH 
                                  NEPA

A. OSMRE's Failure to Identify and Evaluate a Reasonable Range of 
        Alternatives is Arbitrary, Capricious, an Abuse of Discretion 
        and Otherwise not in Accordance with Law
    Distilled to its essence, the draft environmental impact statement 
(``DEIS'') amounts to nothing more than a post hoc justification for 
OSMRE's proposed excess spoil and coal waste disposal regulations and a 
simple choice between adopting the proposed stream buffer zone 
(``SBZ'') regulations or those proposed in the January 7, 2004 Federal 
Register. See DEIS at II-17-18.
    Because Alternatives 3 and 4 are merely subparts of Alternative 1, 
their implementation and environmental effects will be no different 
than those associated with Alternative 1. See e.g., DEIS at IV-121 
(``OSM[RE] would not anticipate a major shift in onthe-ground 
consequences from any of the alternatives.'') (emphasis added). As 
such, these options can, indeed must, be jettisoned as bona fide 
alternatives because they provide no basis for ``sharply defining the 
issues and providing a clear basis for choice among options.'' 40 
C.F.R. Sec.  1502.14 (2007) (emphasis added). When stripped of these 
bogus alternatives, the DEIS is little more than a confusing amalgam of 
three separate, yet very distinct, proposed actions. Specifically, 
whether: (1) to adopt the excess spoil regulations as proposed; (2) to 
adopt the coal waste disposal regulations as proposed; and (3) to adopt 
the proposed stream buffer zone regulations or those proposed in the 
January 7, 2004 Federal Register. Each of these distinct proposed 
actions is based on a cursory comparison of different, though legally 
inadequate, alternatives.
    For instance, in considering both the proposed excess spoil and 
coal waste disposal regulations, the DEIS establishes a simplistic 
choice betwixt either adopting the proposed regulations (Alternative 1) 
or adhering to the existing regulations (No Action Alternative). OSMRE 
was recently excoriated for engaging in this type of either/or decision 
making under NEPA. See Save Our Cumberland Mountains, 453 F.3d 334, 345 
(6th Cir. 2006) (NEPA ``prevents [OSMRE] from effectively reducing the 
discussion of environmentally sound alternatives to a binary choice . . 
.'') (citing Davis v. Mineta, 302 F.3d 1104, 1122 (10th Cir. 2002) 
(``[O]nly two alternatives were studied in detail: the no build 
alternative, and the preferred alternative. [The agency] acted 
arbitrarily and capriciously in approving an [environmental assessment] 
that does not provide an adequate discussion of [p]roject 
alternatives.''); Colo. Envtl. Coal. v. Dombeck, 185 F.3d 1162, 1174 
(10th Cir. 1999) (``[T]he National Environmental Policy Act and Council 
on Environmental Quality Regulations require [an agency] to study in 
detail all `reasonable' alternatives [in an environmental impact 
statement] . . . [Courts] have interpreted this requirement to preclude 
agencies from defining the objectives of their actions in terms so 
unreasonably narrow they can be accomplished by only one 
alternative.''); Simmons v. United States Army Corps of Eng'rs, 120 
F.3d 664, 666-67 (7th Cir. 1997) (``One obvious way for an agency to 
slip past the strictures of [the National Environmental Policy Act] is 
to contrive a purpose so slender as to define competing `reasonable 
alternatives' out of consideration (and even out of existence). The 
federal courts cannot condone an agency's frustration of Congressional 
will. If the agency constricts the definition of the project's purpose 
and thereby excludes what truly are reasonable alternatives, the 
[environmental impact statement] cannot fulfill its role.'')).
    Assuming arguendo, that such dichotomous choices were valid under 
NEPA, OSMRE has created false dichotomies insofar as the agency has 
absolutely no intention of retaining the existing regulations. See DEIA 
at I-1 (explaining that the purpose of the DEIS is to end the 
``ambiguity'' and ``controversy'' regarding the existing regulations 
governing excess spoil and stream buffer zones).\3\ OSMRE's choice of 
alternatives regarding the proposed stream buffer zone regulations is, 
likewise, fatally flawed.
---------------------------------------------------------------------------
    \3\ It is also noteworthy that OSMRE excluded the ``No Action 
Alternative'' from the enumerated set of alternatives in the DEIS. See 
DEIS at II-17-26.
---------------------------------------------------------------------------
    OSMRE establishes a false trichotomy by presenting two so-called 
alternatives to the proposed SBZ regulations--either the ``No Action 
Alternative'' or Alternative 2. Again, the Sixth Circuit Court of 
Appeals has chastised OSMRE for engaging in this type of tomfoolery. 
See Save Our Cumberland Mountains v. Kempthorne, 453 F.3d at 344. While 
three alternatives may satisfy NEPA's requirement for identifying and 
evaluating a reasonable range of alternatives, see 40 C.F.R. Sec.  
1502.14(a), OSMRE has whittled its SBZ decisionmaking down to a choice 
between Alternative 1 and Alternative 2 because OSMRE has no intention 
of retaining the existing SBZ regulations. See, DEIS at II-17 (the ``No 
Action Alternative''). As explained supra, NEPA prohibits this type of 
dichotomous decisionmaking. See Save Our Cumberland Mountains, 453 F.3d 
at 345 (``the National Environmental Policy Act prevents federal 
agencies from effectively reducing the discussion of environmentally 
sound alternatives to a binary choice . . .'') (citations omitted).
    In sum, the DEIS presents, in the most convoluted manner: (1) the 
rationale for approving the proposed excess spoil and coal waste 
disposal regulations; and (2) a binary choice between adopting the 
proposed SBZ regulations or those contained in the January 7, 2004 
Federal Register. OSMRE's poorly veiled attempt to shirk its NEPA 
duties by obfuscating the nature of the proposed actions and the range 
of alternatives is contrary to both the letter and spirit of NEPA's 
requirement to consider alternatives that ``reduce or eliminate 
environmental damage,'' Public Citizen, 541 U.S. at 756, by identifying 
and evaluating ``alternatives that are more environmentally 
considerate'' than the proposed action. Save Our Cumberland Mountains, 
453 F.3d at 344 (emphasis added).
B. OSMRE's Decision to Exclude Certain Alternatives From Detailed 
        Consideration is Arbitrary, Capricious, an Abuse of Discretion 
        and Otherwise not in Accordance With Law
    NEPA requires all federal agencies, including OSMRE, to evaluate a 
reasonable range of ``environmentally sound alternatives,'' Save Our 
Cumberland Mountains, 453 F.3d at 344 (emphasis added), and ``for 
alternatives which were eliminated from detailed study, [OSMRE shall] 
briefly discuss the reasons for their having been eliminated.'' 40 
C.F.R. Sec.  1502.14(a). OSMRE's decision to exclude a number of 
reasonable alternatives is arbitrary, capricious, an abuse of 
discretion and otherwise not in accordance with law. This is especially 
so where, as here, the DEIS evaluated an unreasonable range of 
alternatives. See Section IV.A. supra. As noted earlier, NEPA requires 
OSMRE to identify and evaluate ``alternatives that are more 
environmentally considerate'' than the proposed action. Save Our 
Cumberland Mountains, 453 F.3d at 344. Accordingly, OSMRE should have 
further evaluated, inter alia, Alternatives 5-16 because many appear to 
be more environmentally considerate than the proposed regulations. See 
Comments of Mulholland et al., October 1, 2007.
    Making matters worse is the fact that OSMRE admits that it has 
failed to consider any alternatives that are more environmentally 
considerate than the existing or the proposed regulations. See DEIS at 
IV-121 (``OSM[RE] would not anticipate a major shift in on-the-ground 
consequences from any of the alternatives.''). OSMRE's choice of 
alternatives regarding the proposed rule changes is especially 
arbitrary and capricious in light of Congress' directive that OSMRE 
shall require mine operators to ``minimize disturbances and adverse 
impacts of the operation on fish, wildlife, and related environmental 
values, and achieve enhancement of such resources where practicable.'' 
30 U.S.C. Sec.  1265(b)(24) (2007) (emphasis added). OSMRE's refusal to 
consider, in detail, any alternatives that would enhance fish, wildlife 
and related environmental values (i.e. ``alternatives that are more 
environmentally considerate,'' Save Our Cumberland Mountains, 453 F.3d 
at 344) is arbitrary, capricious, an abuse of discretion and otherwise 
not in accordance with law.
C. OSMRE's Failure to Adequately Identify and Evaluate Mitigation 
        Measures is Arbitrary, Capricious, an Abuse of Discretion and 
        Otherwise not in Accordance with Law
    NEPA requires all federal agencies, including OSMRE, to identify 
and evaluate measures that will mitigate the environmental impacts of 
proposed actions and alternatives. See Robertson v. Methow Valley 
Citizens Council, 490 U.S. 332, 351-52 (1989) (citing 42 U.S.C. Sec.  
4332(C)(ii)). Yet, the DEIS fails to adequately identify and seriously 
evaluate the efficacy of such measures. Instead, OSMRE simply makes 
quick conclusory statements about the potential effects of mitigation 
measures. For instance, in discussing environmental impacts relative to 
hydrology, OSMRE states that

          [a]lthough impacts to the hydrologic balance are unavoidable, 
        the permitting process is designed to prevent most impacts that 
        cannot be mitigated or that would materially damage a 
        significant surface- or ground water resource outside the 
        permit area. See the discussion of the applicable regulation in 
        section III.2.C.

    DEIS at IV-122. A quick review of OSMRE's discussion of the 
``applicable regulation in section III.2.C.'' reveals that OSMRE did 
not engage in any meaningful evaluation of mitigation measures. 
Instead, OSMRE simply regurgitates the regulations--noting how baseline 
data and monitoring is established. OSMRE's failure to adequately 
identify and evaluate mitigation measures is arbitrary, capricious, an 
abuse of discretion and not otherwise in accordance with law.
D. OSMRE's failure to Include an Expert in Aquatic Science is 
        Arbitrary, Capricious, an Abuse of Discretion and Otherwise not 
        in Accordance with Law
    NEPA requires that an EIS be prepared using an interdisciplinary 
approach in which ``[t]he disciplines of the preparers shall be 
appropriate to the scope of issues identified in the scoping process.'' 
40 C.F.R. Sec.  1502.6 (2007) (emphasis added). Despite the fact that 
the proposed rule changes would have significant impacts on aquatic 
species and systems, none of the ten preparers are experts in any 
specific field of aquatic science. See DEIS at VII-157. OSMRE's failure 
to include, as part of its interdisciplinary team, an expert in aquatic 
science (i.e. stream ecologist or aquatic ecologist) is not in 
accordance with law.
E. OSMRE's Failure to Insure the Scientific Integrity of the Analyses 
        is Arbitrary, Capricious, an Abuse of Discretion and Otherwise 
        not in Accordance with Law
    The Council on Environmental Quality (``CEQ'') created to 
promulgate NEPA's implementing regulations requires OSMRE to insure, 
inter alia, the scientific integrity of the analyses and discussions in 
an EIS. See 40 C.F.R. Sec.  1502.24 (2007). Because the scientific 
integrity of the DEIS and proposed rule changes has been condemned by 
thousands of scientists, see Comments of Mulholland et al., Rassam et 
al., and Wrenn et al., the DEIS is fatally flawed.

                             V. CONCLUSION

    ``NEPA's instruction that all federal agencies comply with the 
impact statement requirement--and with all the other requirements of 
Sec.  102--`to the fullest extent possible,' 42 U.S.C. Sec.  4332, is 
neither accidental nor hyperbolic. Rather, the phrase is a deliberate 
command that the duty NEPA imposes upon the agencies to consider 
environmental factors not be shunted aside in the bureaucratic 
shuffle.'' Flint Ridge Development Co. v. Scenic Rivers Ass'n of 
Oklahoma, 426 U.S. 776, 787 (1976). OSMRE's DEIS is the most recent 
example of the agency making a mockery of this Congressional directive.
    We therefore respectfully request this committee to conduct a 
number of oversight hearings--particularly in the coalfields--regarding 
OSMRE's implementation of SMCRA and NEPA.
                                 ______
                                 
                Statement of Ellen Pfister, Shepherd, MT

    I had occasion to write most of these remarks earlier this summer, 
but since then I have had some further thoughts on the topic of your 
hearing. Most of my remarks deal with specific instances that I have 
seen or been a part of in the last thirty years; however, implementing 
policies without thinking about what it does on the ground is a futile 
process. SMCRA was intended to improve real conditions, not virtual 
ones.
    Over the last thirty years the biggest failures of SMCRA have been 
in the implementation and enforcement of its water protection 
provisions and the failure to foresee the changes that could occur in 
the scope and effects of certain methods of coal mining. Lack of 
enforcement of SMCRA has been a chronic failure from the citizen's 
point of view. It has seemed that the regulators have identified much 
more closely with industry than with the third party to this law, the 
citizens who live in the coal fields.
    I would like to suggest that if changes are to be made to SMCRA 
that it be broadened to cover all surface effects of all kinds of coal 
mining, regardless of definition of method, and that enforcement be 
removed from OSMRE and passed to the Justice Department which has law 
enforcement experience. The kinds of people hired by OSMRE generally do 
not have the firmness which is required for law enforcement. They 
prefer to be ``administrators''. Eventually this law has to be 
enforced.
    I understand that OSMRE is proposing a new mission for itself that 
it begin to facilitate the coal industry technically , i. e., that it 
develop new techniques for the industry. OSMRE does have the capability 
of encouraging experimental techniques in reclamation, a capability it 
has studiously ignored in dealing with reclamation of water resources 
within mined area. I have to ask how deeply would OSMRE be involved in 
guaranteeing reclamation to a permittee if the permittee used an OSMRE 
technique which failed to be successful when implemented by the 
permittee?
    How much advice industry has wanted from the state regulators has 
varied over time in Montana. In the beginning the Montana law had quite 
specific standards for many things such as the construction of sediment 
ponds. Over time most of that has been eliminated in favor of 
performance standards. (See section 515 of SMCRA for those). The 
companies supposedly have been following their permits, which 
supposedly incorporate the performance standards. You have received a 
document from the Western Organization of Resource Councils and the 
Natural Resources Defense Fund called ``Undermined Promise.'' The 
researchers found that Montana had the lowest rate of final bond 
release of just about any place. Part of it has to do with the attitude 
of the largest producer in Montana, which tried to get a Page 2 law 
approved that said that if the company went through the process that 
bond release would be guaranteed. The point of the reclamation law was 
to guarantee bond release. OSMRE did not accept that interpretation, 
but the Montana legislature swallowed it hook, line, and sinker. There 
were many other changes that it did accept, but to make its permit 
comply with the new law, the permittee would have had to come in and 
amend its permit. Rather than do that, the permittee submitted its bond 
release permit ``as built.'' Montana could not accept the bond release 
proposal, because the permittee had not done what it had committed to 
do even under its permit. This particular permittee thought that the 
prior law, which had basically one standard for reclamation 
revegetation, was too hard to meet, and so got the Montana law changed. 
Even after the Montana law was changed to largely suit this one 
company, it did not want to comply with the new law.
    The other thing that is slowing bond release in the West is the 
lack of water reclamation to the standards of SMCRA. Because in most 
cases in the West, the companies depopulate the area, the mine permits 
are viewed as a cozy arrangement between the mine and the regulators, 
water is not viewed as particularly important until bond release at the 
end. Montana has a 4th stage of bond release which is supposed to deal 
with water, but unless the water in the mined area is dealt with at the 
beginning, there is very little that can be done for underground water 
at the end.
    I heard an employee of the Wyoming Department of Environmental 
Quality speak at the annual meeting of the Powder River Resource 
Council, and she did not mention the reclamation of water once in her 
speech. It seemed to me that her sole emphasis on reclamation was 
revegetation. However, I met a couple there who live west of the Black 
Thunder Mine south of Gillette, and they are suing over water loss 
caused by the mine. Where has the Wyoming Department of Environmental 
Quality been that parties adjacent to the mine are losing water and 
being forced to sue?
    Now that the companies are beginning to get interested in getting 
their bond money back, they proposed a law which mandates (``shall'') 
that the Montana Department of Environmental Quality shall tell the 
permittee exactly why the proposed area failed to get bond release. The 
interesting thing about this is that the big 2003 amendments passed to 
Montana's reclamation law removed the requirement that Montana 
inspectors tell the operators during their routine inspections over the 
years where the operators were going wrong. I think the attitude was 
that the operators were big boys and did not need to hear from any 
weasel headed inspectors. ``We know how to do it.'' Somebody is trying 
to hang the Montana DEQ inspectors at the end of the process.
    If OSMRE gets into the coal mining technical facilitation business, 
it could get hung in the same way or face serious liability problems. 
If OSMRE would enforce the performance standards of SMCRA, it could 
handle the problems posed by mountain top removal and water loss and 
diminution of quantity and quality in the coal fields. If OSMRE 
enforced the law by not granting permits which cannot meet the 
performance standards of the law, it would spur innovation on the part 
of industry, because industry wants to mine every scrap of coal 
possible. (See the Bob Murray mine tragedy in Utah this year.) The 
innovation should primarily come from industry, not OSMRE. OSMRE is not 
the Bureau of Mines, much as it would like to be.
    There have been some court decisions over the years that have not 
been helpful. The decision which limited the surface effects of 
longwall mining to the face up area only, flies in the face of what 
actually happens with surface damage for longwall. All surface damage 
should be covered by federal law and standards.
    The land use revegetation standards in SMCRE are being interpreted 
very broadly when requiring native vegetation to support the postmining 
land use. It has been routine to accept grassland as a replacement for 
forests in the East, and at least in Montana, when most of the 
premining land use has been wildlife/grazing use, it will now allow 
grassland monocultures with a few rocks thrown around for ``wildlife 
enhancement features''. The mixed prairies will be lost. Some mines 
were doing a good job of recreating mixed prairies, but the ones who 
were not, whined and cried and went to the legislature and got the law 
changed, and OSMRE saw no problem with it. The problem will only be 
seen in the future is many more mines open and much more coal is mined, 
creating much larger acreages of grassland monocultures.
    SMCRA is a good law as far as it goes. It has resulted in the 
regrading of a great many spoils areas and revegetation of those areas 
with varying degrees of success. There has been little success in 
reforesting those areas which were previously hardwood forests. Most of 
the mountain top removal areas are denuded of trees. The western 
prairies have vegetation ranging all the way from weed patches to some 
pretty good looking mixed grasslands. The spoils are being regraded to 
approximate original contour to a greater or lesser extent.
    The three biggest failures in SMCRA are the failure to include the 
reclamation of the surface effects of longwall mining beyond the mine 
adit areas, the failure to anticipate the expansion of mountain top 
removal and the failure to reclaim underground water resources. The 
first two are omissions from the law, and the third is a failure to 
adequately enforce the law. The first two problems could be remedied by 
extending SMCRA to the surface effects of all coal mines. A fourth area 
that SMCRA does not deal with is granting a permit to a speculative 
venture. I hope that what I have dealt with for the last 18 years is 
not common on a nationwide basis.

              MY PERSONAL INVOLVEMENT WITH MINE PERMITTING

    Like many others who were involved in SMCRA's passage, I was naive 
enough to believe the law would be enforced, and that I could go about 
my life. Coal entered my life again at Christmas l988, when two boys 
from Pikeville, Kentucky, came around wanting to start a coal mine that 
would affect the north end of our place. Then a bigger fish, Burlington 
Resources, came around with the idea of a longwall mine and a proposal 
to trade Federal coal for some of their land. It would be a large block 
of coal and would support a 3 Million ton a year mine. I knew 
Burlington Resources would never mine a lump of coal on their own. 
Their ambition was to be gentlemen royalty collectors. The permitting 
process began, and regardless of how speculative the mine plan is, a 
landowner or party adjacent to a mine cannot afford to ignore it. The 
permitting process grinds on regardless of the economic feasibility of 
a project. This speculative mine has occupied my time and the Montana 
Coal Program's time for 18 years with no sign of economic success for 
the mine.
    Burlington Resources put the permit on the market as soon as it was 
issued in l992 and finally found John Bauges, Jr. of Tennessee in l995. 
He began mining then, but in l998, the permit was permanently revoked 
and the bond forfeited. Two years later the state of Montana had barely 
begun to clean up Baugues' mess, when John Baugues showed up again, 
striking a deal with the State of Montana to reduce his fines by about 
2/3 and requesting that the State of Montana resurrect the permanently 
revoked permit . OSMRE was brought in to rule on whether a permanently 
revoked permit could be resurrected. OSMRE ruled that there was one 
precedent for doing so from West Virginia; however, no permit number or 
mine name or location was ever cited. No one that I met from West 
Virginia had ever heard of it. OSMRE enabled the resurrection of a mine 
that is a pure speculation.
    Once the permit was resurrected in 2000, Baugues et al came back 
with a bigger and better plan to mine 12 million tons a year, which 
would take out the whole coal reserve in our area in 30 years and leave 
the entire heart of the Bull Mountain recharge area with deeply damaged 
water. In addition to the mine, the Baugues consortium proposed a 700 
MW merchant power plant, which has now morphed into a 300 MW power 
plant and a 22,000 barrel a day coal to liquid fuels plant, which in 
turn needs an additional 150 million tons of strippable coal to be even 
remotely feasible.
    The Bull Mountain Mine shut down again in March 2007, as it was 
being sued in foreclosure by bond holders, North Carolina and Florida 
churches and retirees, who were promised 11% return on their investment 
bonds. While Baugues et al were defaulting on their bonds, they were 
running around our country trying to buy ranches, some of which they 
lost their earnest money on, not being able to make the final payment.
    Baugues is resorting to the Western type of coal mine acquisition 
and operation, which is to buy out the locals and depopulate the 
country. If the people are gone, there is no one to see or to tell how 
badly the mines reclaim the mined lands. The only parties to the 
reclamation contract are the mine company and the regulating agency. 
Most of the Western mines are far from town, and the miners live in 
town, so nobody cares as long as mine money rolls into town. The 
effects on agriculture are secondary.
    In January 2007, Montana DEQ finally approved the permit amendment 
to the Bull Mountain Mine which takes in the North end of our place. 
They claim our high springs will not be damaged. Our springs are in the 
vicinity of 500 feet above the coal. Aside from the property owned by 
the coal company, our ranch will be the second property to be damaged 
when the second panel begins operation. I am not optimistic about the 
future of our water; ``no damage'' does not jibe with what I have seen 
in other areas of the country. The primary authority relied upon by the 
state is a consultant paid by the permittee in l992, who would have a 
vested interest in making his customer happy, and who cited no specific 
instances in western longwall mining similar to the geologic conditions 
in the Bull Mountains.
    Since the mine was first permitted in l992, it has never operated 
on the schedule shown on the permit. They are months and years behind 
schedule. The mine will eventually take out a subdivision in the area. 
Those homeowners are just trying to ignore the problem of what and when 
will something happen to their property. The town of Roundup no longer 
holds its breath with anticipation when the mine makes an announcement, 
and credit is cash only for the mine. The permit is the only thing that 
holds this speculation together.

                            LONGWALL MINING

    Most of the longwall mines in the West are under public lands; the 
people are gone. The effects are between the bureaucrats and the mining 
companies. The effects are hidden. Since the Bureau of Mines was 
closed, there are no studies being done on the effects of longwall and 
the companies aren't talking. The only studies I could find were 
scientists putting their sensors down well holes in the east, and 
bewailing the fact that after the longwall machine passed, they 
couldn't get anymore readings on where the water went. They had no 
money to pursue the information, and probably no way to access legally 
the land that was mined. That is a failure in SMCRA. The entire area in 
an underground permit should be included in SMCRA, because the affects 
of longwall coal removal go to the surface miles away from the adits 
and processing plants. Unless there is a jurisdiction through 
government action, there is no way for follow-up studies to be done are 
areas of water damage in longwall area and no one with the resources to 
find the lost water.
    Since l989 when longwall came to the Bull Mountains, I have tried 
to find out what has happened in longwall areas across the country. The 
water buffalo is the indicator species for the health of water in 
longwall areas. Where has the original water gone that was once in 
wells and springs? No one seems to know, and the landowners are 
powerless to force a search. I cannot think that water stored for home 
use in water buffaloes is healthy for families.
    I met a dairyman in Western Pennsylvania, whose farm dated back to 
l795 who was ultimately forced out of dairying because the water hauled 
to his cows was chlorinated, and they could not thrive on it. I have 
been visiting by e-mail with a farmer in Southeastern Ohio whose land 
lies about 500 feet over the coal seam being longwalled, who lost 
springs going back to the late 1700's and old wells. It took about 3 
weeks for the water to fail after undermining. The coal company has 
been very slow to deal with the promises it made him prior to 
undermining. He has had trouble with water haulers after undermining, 
plus his historic farm buildings were severely damaged. Floyd Simpson 
has a website www.countrymilefarm.com with a diary of the damage that 
occurred when he was undermined in late 2003. He does not know where 
his water went. He knows he does not have the water he had.
    Southwestern Pennsylvania has been devastated by longwall mining; 
it is a land of leaning chimneys, damaged homes, and water buffaloes. 
Interstate highways as well as county roads have been undermined. I 
have seen half a county road slipped 40 feet down the hill from where 
it had been, thanks to subsidence.

            30 YEARS OF SMCRA FROM A CITIZEN'S POINT OF VIEW

    Underground coal mining, whether room and pillar or longwall or any 
other kind of underground extraction, should be included within the 
purview of SMCRA because when the strippable coal is gone the coal 
industry will turn to other methods for coal recovery. The surface 
damages and damage to water will not abate with a change in the method 
of mining. The surface affects of underground mining should be clearly 
included.
    In its vision of the future, SMCRA failed to grasp the damages that 
large scale longwall mining can do and failed to grasp the potential 
for explosion in size of mountain top removal, and in the West surface 
mining mines the water aquifer. All of them are extremely damaging to 
water regimes. All of them damage the surface in different ways. 
Mountain top removal is like beheading a person, and longwall mining 
and surface mining are like dying of liver or pancreatic cancer. One 
death is much more spectacular and visual, but one is just as dead from 
cancer.
    OSM has permitted the States to approve permits that I believe 
violate mandates within SMCRA itself, such as the standard for 
reclamation to follow behind mining as contemporaneously as possible. 
Permits that allow a mine to wait 20 years before beginning regrading 
and other reclamation procedures certainly have no element of 
contemporaneous reclamation. SMCRA is bent to the mine operator's 
complete convenience. Certain pits that are left open for years on the 
chance that the mine may need that coal to blend fall short of 
contemporaneous reclamation as well.
    The rule seems to be that the permit will be enforced even if the 
permit does not comply with SMCRA, as long as the permit is complete by 
dealing with every section of the state regulations. Granting the 
permit gives an easy out on enforcement of the standards of SMCRA to 
the permittee and the agencies, and the agencies are loathe to admit 
that a permit may have been improvidently granted.
    As a subject and participant in the permitting process in Montana, 
I have come to the conclusion that it can be summed up as ``Promise her 
anything, but give her Arpege.'' Any remediation in the permit can be 
revoked if the permittee cries economic hardship. As a subject of the 
process, I really do not know what the final remediation will look 
like. I suspect the permittee's economic hardship will trump my 
economic hardship. The permit is supposed to be a promise of 
reclamation and repair by the State to its citizens, because the State 
approved the reclamation plan and accepted the promise from the 
permittee. I have grave doubts as to how binding that promise is on the 
permittee.
    Permits that allow acid mine drainage are still being issued. I do 
not find that a failure in the law, but in the enforcement and 
administration of the law. Acid mine drainage from Eastern mines seems 
to be the norm. Save Our Cumberland Mountains fought for 10 years to 
finally get Fall Creek Falls State Park in Tennessee declared unfit for 
mining due to the certainty that mining in that water shed would cause 
acid mine drainage over the falls. I doubt if many permits have been 
denied on the grounds that mining would cause acid mine drainage. 
Although SMCRA allows the designation of areas unsuitable for mining, 
very areas have that designation, and it is difficult to get.
    Save Our Cumberland Mountains did a study in l989 on acid mine 
drainage on reclaimed sites in Tennessee and found a lot of it. My 
naivete included being so trusting that SMCRA would end acid mine 
drainage from current mining. I have watched over the years as OSMRE 
tried different things to mitigate the improvidently granted mine 
permits that were discharging acid mine drainage. There was the 
Appalachian Clean Streams Initiative that tried to dip into USDA funds 
to help out, as well as waylay any other money that could be found. 
There was AMD and ART, which was an attempt to show how acid mine 
drainage treatment areas could be turned into a community enhancement. 
That, too, used funds other than funds from the party who caused the 
damage in the first place. OSM has participated in the whine that 
somebody else's money should fix the damage. OSMRE has not had the guts 
to face down the companies to make them internalize the costs of their 
actions, and fix the damage that is occurring on permitted mine sites.
    One change that has occurred since the passage of SMCRA in l977 is 
that the size of Eastern mines, particularly longwall and mountaintop 
removal, is increasing and beginning to approach the size of some 
Western mines. The Eighty-four Mine at Washington PA was permitted to 
undermine 22,000 suburban acres initially. The Mountaintop removal 
mines are up to 5000 acres and above. The Mountain Top Removal mines 
are depopulating the towns and settlements that are unlucky enough to 
reside below them.
    The Western mines depopulate areas as well. The practice has been 
to buy out the rancher and give them an option to buy back at some time 
in the future. If the mine is on public lands, the public is excluded 
from the mining area. Both East and West are depopulating coal bearing 
areas. If one becomes a tenant of the company when he had previously 
been a landowner, he is no longer independent or in a position to speak 
his own mind. The company regards the permit as being between the 
company and the agency and no one else should have anything to say.

                              WATER DAMAGE

    The water in the western mines is regarded as fair game for damage 
and diminution. There have been no attempts to insulate the water that 
may come into a pit from contact with the spoils materials. 
Experimental practices have been suggested from outside the agencies 
and industry, but those practices would take planning at the permit 
issuance stage. That has not been done in the past, and it doesn't look 
like it will be done in the future. Some of the Western mines are dry 
in the pit, but others have quite a lot of water that pours into the 
pit. The flushing that does occur within the pit is unpredictable and 
uncontrolled. Now, to add insult to injury, OSMRE is in the process of 
considering a new regulation that will allow the dumping of fly ash in 
the strip pits. I do not believe that SMCRA encourages the dumping of 
industrial wastes in the surface mining pits. Colstrip, Montana, 
electric generating plants offer a good preview of what can happen. The 
fly ash pond at Colstrip was constructed about 1974 to a depth of 
eighty feet, but only the top 40 feet were lined with impermeable 
material. Water began leaking from the bottom of the fly ash pond 
shortly after use began contaminating the wells on the Cluver Ranch 
downstream. Thirty years later, the pollution has advanced downstream 
to contaminate the wells on the McRae Ranch. The ranch wells were 
drilled deeper to get away from the pollution, but there is nothing to 
keep the pollution from reaching the deeper water as well. The company 
has been pumping the surface water from the toe of the pond back into 
the pond, but the water keeps travelling underground. I do not think 
OSMRE has the will to enforce anything that might approach safe storage 
of fly ash underground in a wet mine, and I know the State of Montana 
does not.
    Recently the Rosebud Mine at Colstrip cut into an area called Lee 
Coulee, which was a new mining area. They hit a tremendous vein of 
water which they pumped on down the coulee, ruining 90 acres of hay 
land. It drained the springs above the mine cut. They are no more. Don 
Bailey's hay ground is ruined, and the water is gone. He had to sue the 
mine to recover his damages. The Rosebud mine also had a twenty mile 
highwall open for a number of years--10 miles on the north side of the 
hill, and 10 miles on the south side of the hill, and the mine is 
moving in a direction which has the potential to create even longer 
highwalls. The mine was keeping the mine road at the base of the 
highwall open to have a loop road on which to haul coal.
    The State of North Dakota issued a permit to turn Kenney and Gwen 
Thompson's farm land into a dump for an adjacent mine that was mining 
on the farm. The farm couple didn't know about it until diesel fuel 
turned up in the well at their house. OSMRE was no help to them. They 
eventually sold to mine due to the farmer's ill health. Miners at the 
mine told the couple about all the hazardous waste the mine dumped in 
the mine pit on Thompson's land.
    Now there is a lawsuit filed in Denver over dumping fly ash in the 
Navajo Mine in New Mexico and leaving it open blowing ash in the wind. 
OSMRE is responsible for mining on Indian lands. First, they are 
allowing dumping fly ash in the mine pit, and second, they are not even 
covering it in a prompt manner, even if SMCRA authorized dumping fly 
ash in a mine. I saw fly ash being dumped in that mine in a flyover in 
l992. There is a lot more there now.
    When we were in the permitting stage of the initial Bull Mountain 
Mine, we were told by state agency personnel that water replacement 
would be ``opportunistic''. I have been told of cases where the mines 
have buried a spring that could have been developed with a little 
care--so much for opportunistic development.
    The Jacobs Ranch Mine in Wyoming is finally putting in for bond 
release on the areas against the Rochelle Hills, which were mined when 
the mine began, because water is finally beginning to infiltrate the 
mine areas from the undisturbed areas toward the hills. As it advances 
west the mine is also dewatering the coal in advance of its mining area 
to get the coalbed methane out before it removes the coal. How long 
will it be before that area will have any underground water after 
mining? The combination of surface mining and coalbed methane 
development may result in an area devoid of any water for a very long 
time.
    Water loss in the East is typically dealt with by either a water 
buffalo or connecting people to a pipeline from somewhere else. I have 
always wondered what will happen when the ``somewhere else'' is also 
damaged by coal mining, and that water disappears as well.

         THE CITIZEN: REGULATION AND THE LAW: STATE AND FEDERAL

    To the ordinary person, of the 4 sets of documents that can govern 
coal mine reclamation, SMCRA is the plainest to read and understand. 
The language is generally set in terms of ``shall'' and ``will'', which 
most people understand, whether they like it or not. Going back about 
the last 25 years at least, OSM has been in the business of putting out 
regulations to bend ``shall'' and ``will'' into something else, if 
possible. I can't think of a regulation that could put a stronger 
interpretation on the law that has been approved, but thank God, I 
don't know all the regulation changes that have been proposed.
    Neither the States nor OSMRE have done anything on citizen 
education about their rights under SMCRA or the standards of 
reclamation established by SMCRA on other than an ad hoc basis. There 
is no easy reading document for a citizen to read. SMCRA is the 
plainest of the materials available.
    The federal regulations are long and a lawyer's joy. Then when the 
state laws and regulations are added on top of that, which is the case 
when a state assumes primacy. The amount of material to digest becomes 
nearly overwhelming. Montana's education for citizens was to give them 
a copy of their regulations, but that seems to have gone by the wayside 
in recent years. Now it seems to be what the last person one saw told 
him.
    A case in point is Montana, where the Montana law has gone from a 
law which said ``shall'' and ``will'' to one which says ``must ``, 
``may'', and ``should'' to favor the newly fashionable tenses in legal 
writing. ``Shall'' and ``Will'' are clearly defined in court cases and 
English classes. Montana is attempting to conceal the mandatory affect 
of SMCRA, and OSMRE has gone right along with them, although the law 
under which OSMRE operates has a language of command and immediate 
compliance. Essentially OSMRE inspection personnel are constables on 
patrol, and if a State has primacy their inspectors have the same 
mandate. Montana is trying to obscure that mandate and to remove the 
sense of immediacy of enforcement under the law changes of 2003 and 
2005. OSMRE tried to obscure the sense of immediacy with its Reg. 8.
    In addition, it takes years for OSMRE to approve or disapprove 
changes to Montana's law and regulations. In the mean time, Montana 
goes ahead and enforces its legislatively passed law and implementing 
regulations, regardless of whether they comply with SMCRA. I wonder 
what happens when Montana approves actions under its law while waiting 
for OSMRE to rule, and later it is found that the approved action was 
not in compliance with SMCRA. OSMRE must be suffering its own funding 
short falls to be so slow in processing regulatory packages. It takes 
so long, that if one has commented on a package by the time the ruling 
comes out, one has almost forgotten about it. If the non-compliant 
action is ensconced in the permit, will Montana enforce that rather 
than an action which would comply with SMCRA?

          REGULATION AND MONEY: STATE AND FEDERAL RELATIONSHIP

    OSMRE was the victim of the Clinton balanced budget. The first 
people cut were the inspectors, and the first of those to go were women 
and minorities. The cuts have not slowed down under subsequent 
administrations. It is no wonder that now, as OSMRE personnel ages out, 
OSMRE is running into a shortfall of qualified people to move up.
    The inspectors are the face of OSM and the States that protect the 
citizens from the affects of coal mining. OSMRE has tried to withdraw 
itself from direct enforcement and contact with possible on the ground 
enforcement. SMCRA was well-drawn with two enforcement agencies, state 
and federal, because it is all too easy to co-opt one or the other. It 
is a little harder to co-opt both, although I am now beginning to 
wonder. OSMRE has further tried to reduce its presence by refusing to 
consider offsite impacts from mining unless the States report the 
offsite damage in state statistics. The Western Area Office of OSMRE is 
not even listed as tenant in the Denver office building in which it is 
located on the 33rd floor. Not only has OSMRE tried to withdraw from 
direct enforcement by way of Regulation 8, in the West, but it has 
tried to physically hide.
    SMCRA intended that the regulating agency keep a presence in the 
coalfields and that the permits be available for inspection in the coal 
fields. Montana is just barely in compliance with SMCRA on that point 
with the Billings Office open with only a generalist and a secretary. 
The Generalist employee is also an inspector. All the other inspectors 
in Helena are also specialists in other fields, and every specialist is 
an inspector. The question is whether academic specialists also have 
the temperament to make the kinds of decisions that an inspector must 
make. Billings is about 90 miles from the closest big surface mine. The 
rest are hundreds of miles further. Helena is 250 miles from Billings. 
Inspecting from Helena will be difficult, and I think the amount of 
travel time will render the coal program less effective.
    The Montana Coal Program has been losing employees, and the money 
to hire replacement employees has been declining, especially from 
Federal sources. The Federal Government was obligated to fund the 
Western States to the extent that the coal in the State belonged to the 
United States. The Interstate Energy Board says that the Federal 
Government is getting a deal on saving money with the States accepting 
primacy, because the State pay levels are so much lower. Yet the 
Federal Government still keeps cutting real dollars.
    Montana has been saving money by paying wages for people with 
advanced degrees that are significantly below what they could earn in 
industry. Either the people who chose to work for Montana are dedicated 
to something other than top dollar, or they are short on competence, or 
they have reached a certain age in industry where industry no longer 
wants to hire them. I do know that the State has been a revolving door 
for hydrologists of all types. They get a little experience from the 
State to show on their resume', and then move on. The Montana Coal 
Program has been defunded and short-changed on personnel, and it is no 
wonder it is teetering on the brink of someone calling a 731 on it. The 
legislature got scared this spring and found $250,000 additional 
temporary funding, but now it may be that only part of the money will 
be available for another full time employee. The rest is to possibly be 
spent on consultants due to a ``gentlemen's agreement''.
    If there is not better funding forthcoming, it is possible that the 
United States will have to pick up the tab for regulating the damage 
that will come from its appetite for coal. Funding less today will cost 
you more tomorrow.
    I saw the Black Thunder Mine south of Gillette, Wyoming, at 10:00 
AM, December 21, 2006. The day was beautiful, sunny and clear. The mine 
buildings were sitting in a cloud of coal dust higher than the biggest 
buildings on the mine site, and the dust looked like the mouth of hell 
had opened and was discharging thick black particulate matter. I 
wondered where EPA was and where OSMRE was. If that happens often 
there, people will be filing black lung claims. It was an amazing level 
of dust pollution.

                              BOND RELEASE

    There are discussions about the low level of bond release in the 
West. I think there are several reasons. The first is the way the 
permit mine plans were approved by the agencies. Decker and Spring 
Creek in Montana were allowed to mine for years before treating any 
appreciable acreages for regrading, let alone revegetation. I believe 
the permits which allowed that were granted in violation of SMCRA's 
standard that reclamation be as contemporaneous as possible. Twenty 
years does not meet that standard. The State of Montana should not have 
allowed it, and OSMRE should have held them responsible. Perhaps fining 
both agencies for dereliction of duty might prevent it in the future. I 
know a fine is not possible, but it might have a purgative effect on a 
non-compliant agency.
    The second reason is that some companies have it in their minds 
that they do not want to comply with the revegetation standards. 
Westmoreland has been head butting Montana over that for some years 
now. Westmoreland was behind the massive changes in the 2003 Montana 
law, just as another mine in the State showed that it was possible to 
meet Montana's then standard for revegetation. The difference was the 
company attitude as it stemmed from company management. The mine which 
did a good job was a Rio Tinto mine, and its company managers had 
decided it was cheaper to comply with environmental laws than to 
constantly be hauled into court. The attitude of the managers was 
reflected on the ground.
    Revegetation is possible in most of the northern high plains, given 
the right company attitudes, but water resource reclamation is the 
third reason why final bond release is low. Water resource reclamation 
has had the lowest priority in the permitting and reclamation process. 
There are promises in the permits to replace individual water 
resources, but whether and how those promises have been followed 
through on, I don't know. Replacing individual resources depends on 
having a resource that can be found and depended upon to be potable at 
the very least. I don't know how the states are going to meet the 
standard of not degrading and diminishing the water resource in the 
mine area. Leaving the mine area to time and fate to clean up water 
quality and quantity is not satisfactory to those of us who live in the 
coal fields. There is no research in the area, and the regulators are 
accepting time and fate. Until the water is reclaimed, there should not 
be bond release. The States and OSMRE are coupled in ignoring this 
problem. If the States and OSMRE accept anymore permits or permit 
amendments that ignore reclamation of the total water resource, a fine 
would be in order again. The waste of water from Lee Coulee is an act 
of extravagance like lighting cigars with thousand dollar bills.
    Montana has been doing what is called rolling bond release. Stage 
IV is the final stage indicating that the water resource has been 
reclaimed, and the State retains a small amount of bond money until 
Stage IV release. 9/11 raised the costs of bonds across many industries 
including coal. The stage IV bond money is now mounting up, and there 
are fears that if large amounts of acreage are suddenly up for bond 
release, there will be great pressure on the State to release, 
regardless of quality of reclamation, because if something should cause 
a bond forfeiture, there would not be enough money left to fix the 
problem.
    Self bonding is allowed in some states. The State of Colorado 
allowed the Mid-Continent Mine to self bond with a limestone plant as 
collateral. The sole market for the limestone plant was Mid-Continent 
mine. Korea cancelled its marketing agreement with Mid-Continent. The 
mine closed. The bond was forfeited, the limestone plant now a 
worthless property that had lost its market. Meanwhile, the family that 
owned Mid-Continent had invested in Colorado mountain real estate. 
OSMRE had the authority to pursue that money, but did not with any 
vigor. The taxpayers have picked up the tab for what reclamation has 
been done on the Forest Service land where Mid-Continent operated.

         CONGRESS' RESPONSIBILITY FOR THE ENFORCEMENT OF SMCRA

    Some of the agency actions are in effect, actions in contempt of 
Congress, as evidenced by Congress' intention expressed in SMCRA. I do 
not believe there is anything especially wrong with SMCRA, with the 
exception of not covering longwall mining and not coping well with 
mountain top removal, but I do believe that as an agency OSMRE has long 
been lacking intent to enforce SMCRA as it should be enforced. The 
agency has been a great hand to not want to take action on something, 
unless it is immediately hazardous to human life. That is a judgment 
call, and the agency is not prescient. The process to pass SMCRA began 
with the disaster at Buffalo Creek, WVA. Fortunately, a similar tragedy 
for human life has not happened again, but how much luck was involved 
with the Kentucky River flood through Louisa, KY or the water break out 
at the AEP mine in Ohio? There are a number of sludge ponds throughout 
the East that are known by the agency to be unstable, but they remain 
unremediated, and the locations are not known to the public. Is OSMRE 
prescient as to which one will break first? Where are the states and 
OSMRE on this? Both are negligent and trying to hide out from that 
unpleasant policeman's task.
    Congress could pass more laws and see them twisted and ignored. It 
is better to seek enforcement of the law you have. When the agency 
charged with enforcing laws you have passed, attempts to withdraw from 
enforcement and hide from the public who believed in the law you have 
passed, the agency causes the public to hold the law in contempt, 
whether that part of the public is industry or the citizens. You should 
be angry that SMCRA is being administered in that fashion. You need to 
do closer oversight on OSMRE, whether by more hearings held both here 
and in the field, as well as improved reporting from OSMRE. You also 
have the power to issue contempt citations, and I believe that you 
should seriously consider doing so. If you cannot get OSMRE to respect 
and enforce the law which it is paid to administer, then perhaps you 
should consider housecleaning in the agency.
    I would reiterate again that unless OSMRE can bring itself to 
adequately enforce SMCRA and refrain from going off on wild goose 
chases to facilitate industry interests, that Congress should seriously 
consider moving enforcement of SMCRA to the Justice Department.

                             CITIZEN ACTION

    Citizens can file complaints in writing under SMCRA, but there are 
informal ways to make one's voice heard. The regulators see industry 
people on a regular basis. They develop a familiarity with each other. 
They drink beer together in the hotel bar, if they are at an away 
meeting. If there is a regulatory office in a reasonably convenient 
location, citizens should stop by when they don't have a complaint. If 
there is a basis of familiarity, perhaps relations would be a little 
better. Such visits also help inform the citizens about conditions 
within their regulatory agency.
    In Montana, it would be nice if more of the state regulatory agency 
were closer to the mines. Because of the travel distances involved, 
most of the contact between the Montana state agency and citizens near 
the Eastern Montana mines consists of more formal meetings, and because 
of the turnover of regulatory personnel in sensitive areas, frequently 
the sacrificial agency lamb at such meetings is the newest and most 
inexperienced of Montana personnel.
    The Casper Field Office of OSMRE, which regulates the highest 
producing coal area in the United States, has the most area to cover, 
and probably the fewest inspectors. Distance operates against a citizen 
getting a clear idea of how that office operates. It is 379 miles from 
Casper to Billings, 629 miles from Casper to Helena, and God knows how 
far to North Dakota. For quite a while last year, the Casper Office 
operated without a field office director. The Field Office Director 
from Albuquerque filled in. I would say that is hardly effective 
administration. Getting acquainted with the regulators will not solve 
all the problems relating to SMCRA enforcement, but it is a small step 
that citizens can take.
                                 ______
                                 
  Statement of Vernon Haltom, Co-director, Coal River Mountain Watch, 
                            Whitesville, WV

    On behalf of Coal River Mountain Watch, I wish to thank Senator 
Bingaman for holding this hearing and accepting comments from those of 
us most directly impacted by the Surface Mining Control and Reclamation 
Act (SMCRA).
    The mission of Coal River Mountain Watch is to stop the destruction 
of our communities and the environment by mountaintop removal mining, 
to improve the quality of life in our communities and to help rebuild 
sustainable communities. We envision just and caring communities in 
which residents are aware of and involved in solving community issues 
and in which public officials and agencies fulfill their responsibility 
to provide sustainable forms of economic development and a healthy, 
safe environment.
    We invite you to our region to view the horrible destruction to our 
communities and environment that the Office of Surface Mining, 
Reclamation, and Enforcement (OSMRE) is allowing, promoting, and 
enabling. The coal industry is destroying our water, forests, 
mountains, homes, and economies. Come see for yourself, as so many 
others have, the devastation, and do not rely on coal industry 
propaganda or tours of their handful of manicured show sites. We need 
you to take our problems seriously, which OSMRE has failed to do, and 
investigate our complaints.
    OSMRE and this administration continue to deny the citizens of 
Appalachia sufficient time to examine rule changes. OSMRE makes it 
extremely hard for citizens to find out about permits. Citizens in the 
nearby communities should be notified the minute a permit that affects 
them is applied for. During the Stream Buffer Zone rule change, we the 
citizens asked OSMRE for an extension and for hearings in November. We 
were denied without reason. OSMRE denied the citizens of Virginia the 
right to even have a hearing.
    OSMRE does not enforce the SMCRA laws. Rather than vigorous 
enforcement, OSMRE makes it easy for the coal industry to pollute, 
poison and blast our homes and communities.
    OSMRE is allowing coal companies to devastate communities near coal 
mining operations. Loss of life and homes from flooding, loss of both 
well water and stream water sources, loss of renewable resources, and 
loss of quality of life are all consequences of irresponsible mining by 
outlaw coal companies and OSMRE is allowing this to happen by not 
enforcing the law. Our water is being poisoned and no one will help us. 
The coal industry is blasting our homes and mountains with millions of 
pounds of explosives a day. The coal dust, rock dust and silica dust 
comes down into the valleys and settles in our homes and our lungs.
    OSMRE must honestly assess the cumulative impacts of mountaintop 
removal. OSMRE says the impacts are insignificant but ignores the 
cumulative impacts of mountaintop removal and other mining in central 
Appalachia, like longwall mining.
    According to the administrations own studies on mountaintop removal 
coal mining, the immediate and long-term environmental impacts of this 
form of coal mining are severe and irreversible. The jobs are temporary 
and the damage is permanent. Lapses in the enforcement of the buffer 
zone rule have allowed almost 2000 miles of streams to be buried or 
degraded by mining waste.
    The Bush administration released a draft Environmental Impact 
Statement (EIS) on August 24 to go along with the proposed rule change. 
That study was supposed to examine the environmental effects of 
alternatives to repealing the buffer zone rule, which prohibits valley 
fills and sludge ponds from burying and destroying streams. Yet, 
incredibly, the EIS did not even study the option of enforcing the 
buffer zone rule as currently written.
    This fact alone proves the administration never considered 
enforcing the law, but only wants to repeal it, regardless of the facts 
about the harm that will result.
    In several instances, the Environmental Impact Statement describes 
the permanent destruction to the land and water sources, with no 
substantial economic benefit to the communities. One example, from Ohio 
Valley Environmental Coalition and West Virginia Highlands Conservancy 
comments on the Draft EIS. The DEIS states:

          The information in Table III.B-2 is corroborated by the 
        experience of reclamation personnel and is reflected in West 
        Virginia's recently proposed commercial forestry regulations. 
        In estimating the likely quality of reclamation to be obtained 
        under these regulations, we must recognize the fact that the 
        current regulations (which have been in place since May 16, 
        1983) require that selected overburden substitutes for soil be 
        ``equal to, or more suitable for sustaining vegetation than the 
        existing topsoil, and the resulting soil medium is the best 
        available in the permit area to support revegetation.'' Also, 
        soil materials are to be redistributed in a manner that 
        prevents excessive compaction of the materials. Be this as it 
        may, the reality of reclamation in Appalachia is that selective 
        overburden handling is rarely practiced beyond that required to 
        keep highly toxic material out of the rooting zone; excessive 
        compaction is commonplace... Production of soils that will 
        support commercial forestry as part of mountaintop mining 
        requires selective overburden handling and replacement 
        procedures on a scale that has never been carried out in 
        Appalachia.

    DEIS III.B-15 (citation omitted) (emphases added).
    Using the administration's own figures, more than 1000 miles of 
streams will be destroyed every decade into the future, poisoning an 
entire region.
    It appears that under the Hard Rock Mining Law overhaul, OSMRE will 
be tasked with additional enforcement duties, further diluting their 
effectiveness. Placing additional enforcement duties in the hands of an 
agency that is presently not enforcing laws under its existing mandates 
is a recipe for disaster.
    It appears that OSMRE has no intention of improving protections for 
mountain communities threatened by mountaintop removal, but instead 
intends to weaken existing regulations. By proposing to effectively 
repeal the Stream Buffer Zone, OSMRE has shown itself to be a tool of 
the coal industry. Even the hallowed halls of Congress are not immune 
to the industry's machinations, as we have seen in recent months the 
beginning of efforts to repeal laws that have only now begun to be 
enforced through lawsuits by groups such as ours.
    Coal River Mountain Watch asks that Congress recognize the threats 
posed to our communities and environment, improve our safety by 
remediating OSMRE's failings in enforcement, and end mountaintop 
removal by passing strong legislation such as the Clean Water 
Protection Act.
    Thank you for your concern. We pray for your bold and righteous 
action.
                                 ______
                                 
Joint Statement of Johanna H. Wald, Senior Attorney, Natural Resources 
  Defense Council, and Donley Darnell, Chair, Western Organization of 
                           Resource Councils

    Thank you for holding a hearing in honor of the 30th anniversary of 
the Surface Mining Control and Reclamation Act (SMCRA). Signed into law 
in August, 1977, this important legislation was enacted in recognition 
of the legacy of environmental harm that strip mining had already left 
in the East and the extensive damage that could result from the then-
planned large scale expansion of coal mining in the West.
    In anticipation of this important anniversary, the Natural 
Resources Defense Council (NRDC) and the Western Organization of 
Resource Councils (WORC) undertook an assessment of the degree to which 
two fundamental objectives of SMCRA--timely and effective reclamation 
of mined land, and thorough inspection and enforcement of the Act and 
its implementing regulations by responsible federal and state 
agencies--had been achieved over the last ten years on the ground in 
the five principal western coal mining states--Colorado, Montana, New 
Mexico, North Dakota and Wyoming. We have attached the report which 
resulted and respectfully request that it be submitted for the record 
of your hearing.
    As documented in the attached report,* data published over the past 
ten years by the Office of Surface Mining Reclamation and Enforcement 
(OSM), the federal agency charged with ensuring and overseeing the on-
the-ground implementation of SMCRA, reveal clearly that these key 
objectives are not being achieved. Given the predicted growth in US 
coal production, most of which will take place in the West, it is 
imperative that action be taken soon to realize SMCRA's promise.
---------------------------------------------------------------------------
    * Report has been retained in committee files.
---------------------------------------------------------------------------
    Despite the passage of three decades, SMCRA's goal of protecting 
society and the natural environment of the United States from the 
ravages of coal mining has not been achieved in key respects. For 
example, OSM's own data show that both the amount and rate of 
reclamation occurring in the West are shockingly low:

   During the ten year period covered by our report, less than 
        23,000 acres were fully reclaimed by OSM's longstanding 
        definition. Four hundred thousand acres were disturbed by 
        mining over this same period.
   Montana has the worst reclamation record of the five states 
        assessed. Wyoming, the nation's leading producer of coal, 
        nearly all of which is strip-mined, had the second worst 
        record.

    Data from OSM and the states also reveal that the kind of strong 
and effective enforcement regime at both the state and federal levels 
that is essential to the success of SMCRA's regulatory program is not 
in place at this time:

   State regulatory agencies have failed to conduct the number 
        of mine inspections required by SMCRA during the past ten 
        years. According to the available data, 80 percent of the time, 
        the states failed to conduct the required number of complete 
        inspections, partial inspections, or both.
   Wyoming, with the largest number of permitted acreage, had 
        the highest number of missed inspections.
   Regulatory staff numbers at OSM and the state agencies have 
        declined as has federal funding just as the number of permitted 
        acres and amount of coal mined have increased.

    Our report, as indicated, addresses only two key issues related to 
SMCRA's implementation. It does not address other important issues in 
the region or in other coal states and regions. The report presents 
recommendations to address the specific problems that it documents. 
Policy makers at the state and federal levels, including Congress, and 
concerned citizens need to develop a comprehensive list of 
recommendations for improvements in the way coal mines operate for the 
way SMCRA is being implemented to achieve the law's promise.
    Thank you again for holding this hearing. We also thank you for 
considering our report and recommendations and for including in the 
record of your hearing.
                                 ______
                                 
            Statement of Robert L. Johnson, Collinsville, IL

    The federal Office of Surface Mining (OSM) has abdicated its 
responsibility to enforce Surface Mining Control and Reclamation Act 
(SMCRA) rules. And OSM's Office of the Solicitor recently stated that 
OSM does not have the authority to correct errant decisions made by 
State mining agencies (OSM Solicitor, July 12, 2006).
    And State mining agencies are the bastion of people connected to 
the mine companies. State agencies therefore are biased toward 
sacrificing private and public land for the production of coal.
    And, despite the hoopla over SMCRA provisions for public 
participation and rights to appeal and sue over agency decisions, those 
provisions are regrettably nothing but a facade. State mining agencies 
and the mining companies work closely to limit the presentation and 
content of Public Hearings and to prevent objective appeals of 
decisions.
    Public appeals are sent before Administrative Hearing Officers that 
are trained and paid for by the State's mining agency whose decision is 
being appealed; sort of like a defendant in court paying the judge 
hearing his case.
    On a site-specific basis, the local public has virtually no 
technical or legal persons to which they can turn. In a practical 
sense, all those with the technical and legal skills to help them are 
aligned with the mining industry. The cost of appeals, of tens, if not 
hundreds of thousands of dollars, are beyond the resources of the 
public adversely affected by individual mine operations. And whatever 
resources the public has available to launch effective appeals or 
lawsuits is countered by coal companies willing to spend ten times 
whatever the public has.
    Hearing Officers facing evidence in appeals that overwhelming favor 
the public, distract the hearing into a myriad of procedural details to 
the degree that the issue of the appeal is never heard.
    Both Hearing Officers and judges routinely defer to the finding of 
the State's agency decision, the decision that is being challenged. 
Since OSM has abdicated its responsibility to enforce rules, there is 
no unbiased, unprejudiced forum for the public to turn, and the 
decisions being made State mining agencies become almost the force of 
law.

        RECLAMATION OF MONTEREY MINE NO. 2, GERMANTOWN, ILLINOIS

    Monterey Mine 2, owned and operated by ExxonMobil, was designed in 
the 1980's. Its water supply was from the Pearl Sand Aquifer located 
about ten feet below the mine's coal waste landfill, the Refuse 
Disposal Areas. There is no liner beneath this landfill containing 
30million cubic yards of coal waste. A hydrologic study showed that 
coal wastes would not leach into the Aquifer.
    Immediately upon commencing mining operations, the groundwater was 
found to be contaminated with leaching coal waste. ``Monitoring, 
investigation, and management of groundwater at the No. 2 Mine have 
been integrated with the mine operations since 1980.'' (Groundwater 
Management Plan, Monterey Coal Company, May 8, 2002.).
    The mine closed in 1996 (several months before the original miners 
were to achieve their 20year pension). Due to the groundwater 
contamination, a new Reclamation Plan was necessary. The State mining 
agency brought in the Illinois Environmental Protection Agency (IEPA) 
to oversee a Groundwater Management Plan. That Plan consisted of 
placing a impermeable cap over the coal waste landfill. The mine 
objected, wanting to save $10,000,000 by putting a permeable cover over 
the waste, allowing the coal contaminants to continue to leach into 
Aquifer. For reasons still unknown, IEPA agreed.
    Both nearby residents and farmers have complained for years that 
their water supply from the Aquifer was being contaminated and 
threatened with contamination by mine operations. Some residents have 
had to connect to a newly installed water supply system, partially paid 
for by the mine. These residents now must pay for water, where once 
they had their own. Other residents still rely upon the Aquifer being 
contaminated by the mine. Farmers and ranchers continue to use the 
threatened and actually contaminated Aquifer.
    The Reclamation Plan, which incorporates the Groundwater Management 
Plan, is based on the premise that extraction wells restrict coal waste 
contamination to within the permit boundary. The Groundwater Management 
Plan, prepared by the mine's engineers states that there is no off-site 
groundwater data on which to the base the Plans. IEPA once collected 17 
off-site groundwater samples. The Plan refers to this data: ``It is 
noted that the IEPA did not provide the location of these sampling 
points; therefore, only limited interpretation of this data was 
possible by Monterey.'' Recently, the location of the 17 wells sampled 
by IEPA was provided to the public. The natural groundwater flow at the 
site is southwest; only 1 of the 17 wells monitored by IEPA was 
southwest of the mine.
    The entire Reclamation Plan is premised on there being no off-site 
groundwater contamination and, therefore, the Plan is entirely based 
upon a single downgradient water sample whose data cannot be correlated 
to it. How does this comply with SMCRA rule that requires permits to 
``affirmatively demonstrate'' that mining activities ''prevent'' off-
site contamination?
    According the Groundwater Management Plan/Reclamation Plan, the 
groundwater contamination at this mine will stabilize in maybe 
100years. The groundwater model contained in the Plans shows that the 
coal waste will continue to threatened off-site groundwater resources 
for more that 500years. The Plan relies upon the mine to maintain the 
``monitoring, investigation, and management of groundwater at the No. 2 
Mine, integrated with the mine operations since 1980,'' a system of 
pumps to treat 500,000gallons a day of contaminated groundwater before 
it is discharged into the Kaskaskia River, a potable water supply. Both 
environmental protection rules and SMCRA rules have provisions that 
prohibit groundwater resources from being threatened by mine 
activities. Does anyone, including State agencies or OSM, really 
believe the mine intends to operate and maintain the pumps and 
treatment of 500,000gallons/day for 500years? Nevertheless, the State 
approved the Plans.
    Furthermore, SMCRA rules require, ``Mining and reclamation 
practices that minimize water pollution and changes in flow shall be 
used in preference to water treatment.'' With no impermeable cap over 
the wastes, water pollution is not minimized by mine operations. With 
the newly installed slurry wall, the groundwater flow is to the 
northwest and southeast, the flow having already been thoroughly 
disrupted by the extraction pumps. And the Plan relies entirely upon a 
large-scale water treatment system. Nevertheless, the State approved 
the Plan.
    The Public Hearing for the Reclamation Plan lasted 27minutes 
(transcript available). About fifteen minutes of that time consisted of 
mine representatives telling local residents what a ``good neighbor'' 
the mine was to them. About four minutes of that time was spent 
explaining the $30,000,000 Plan that would affect the community for the 
next 500years. And the remaining time was spent with the mine and State 
mining agency refusing to answer any of the questions posed by the 
residents. This is the Public Participation envisioned by SMCRA?
    Residents appealed the Plan. Mine lawyers delayed the proceeding 
for months. The State mining agency decided to train a Hearing Officer 
especially for the occasion. Hearing prep lasted 6months. 
Unsurprisingly, the Hearing Officer, paid for by the State mining 
agency, eventually found in favor of the State mining agency. This is 
the fair and unbiased appeal process envisioned by SMCRA?
    Post-mining land use of the site is pastureland but, according to 
the Reclamation Plan, ``this area will not be grazed by livestock or 
specifically cut and cured for livestock feed.'' This is because the 
land after reclamation is still not stable enough for safe and 
economically viable commercial, agricultural, or recreational use. In 
effect the post-mining land use is designated as ``pastureland that 
cannot be used as pastureland.'' This is the restoration of mine sites 
envisioned by SMCRA?
    The appeal of the Reclamation Plan is now under federal appeal 
process and has languished there since September 2006, almost a year 
now. This is the timely appeal process envisioned by SMCRA?
    In the spring of 2006, a local farmer filed a groundwater 
contamination complaint with IEPA. His well has high concentrations of 
coal waste parameters. IEPA dismissed the complaint, stating that the 
coal waste contamination must have come from some other source than the 
30million cubic yards of coal waste present immediately upgradient of 
the farmer's well. IEPA refused to identify what other possible source 
there might be.
    IEPA then collected off-site groundwater samples just beyond the 
mine permit boundary. The wells had high concentrations of coal waste 
parameters. Additional wells were installed and another sampling event 
conducted. The well samples had high concentrations of coal waste 
parameters. In December 2006, the mine was directed to prepare an off-
site investigation program and provide a solution to the problem. The 
public through the Freedom of Information Act recently requested that 
information.
    In 2004, the mine installed a permanent 3mile pipeline to continue 
its discharge of diluted contaminated groundwater into the River. 
Because the ``monitoring, investigation, and management of groundwater 
at the No. 2 Mine, integrated with the mine operations since 1980, the 
pipeline was a continuing mining operation and the attendant permit 
boundary revision, needed to implement the pipeline operations, 
required, under SMCRA, a Public Hearing. The State mining agency so 
stated in letter to residents in August 2005. The Public Comment period 
ended August 31, 2005. By November 2005, no Public Hearing had been 
scheduled.
    When residents inquired when the Public Hearing would be held, the 
State mining agency replied that the lawyers for the mine had sent a 
letter ``indicating that a public hearing was not required'' under 
SMCRA. The State mining agency sent the mine lawyers' letter to OSM who 
sent it to the Office of the Solicitor for review. According to OSM, 
the ``Office of the Solicitor effectively advised that the operation of 
the refuse area, including construction and operation of the pipeline, 
is an on-going aspect of the overall surface coal mining operation, and 
is subject to the requirements of SMCRA section 522(e),'' thus a Public 
Hearing was required. Furthermore, the Solicitor stated that it had 
reviewed the mine lawyers' arguments and found those arguments, 
``unpersuasive.''
    Nevertheless, in December 2006, after 16months during which nothing 
about the pipeline had changed, the State mining agency unilaterally 
changed its decision and decided it would not conduct a Public Hearing. 
The final decision has no mention of its August 2005 decision or of the 
findings of the federal Solicitor.
    Under SMCRA, once a mine site is reclaimed typically in 3-5years, 
active reclamation ceases and the land is available for economic 
redevelopment. But at this mine, the operators characterized the 
operation and maintenance of extraction pumps ultimately discharging 
500,000gallons/day into the Kaskaskia River watershed, a system that 
has been already operating for 30years and must continue for centuries, 
as being ``incidental to reclamation activity.'' So has a 3-5year 
reclamation of the mine site under SMCRA been somehow warped to mean, 
as characterized by the Solicitor, ``coal mining operations'' lasting 
100-500+ years?
    In January 2007, the public appealed the State mining agency's 
final decision. Despite scores of documents that provided a 
preponderance of evidence that the pipeline was a continuing mining 
operation, the Hearing Officer, trained and paid by the State mining 
agency and whose principle legal expertise is employment law, recently 
found in favor of the State mining agency. In his decision, the Hearing 
Officer effectively denied the public's right to a formal hearing on 
the matter.
    All this is the much-exalted right under SMCRA for public 
participation and appeal? Many provisions of SMCRA need to be updated, 
but perhaps more importantly, current provisions needed to be fully and 
properly implemented and enforced.
    There are many provisions of SMCRA that need to be updated. But 
updated the law is an useless effort if the law is not enforced.
    SMCRA explicitly states that coal waste impoundments must be 
removed, see attachment.
    Yet huge coal waste impoundments are not only being left when the 
mine closes but are being proposed as permanent structures in mining 
permits and being accepted by regulatory agencies.
    Monterey Mine 2, near Gremantown, Illinois, closed in 1996. It left 
behind a 400acre 30million yard coal waste impoundment, which, 
according to the approved reclamation plan, will continue to 
contaminate the Pearl Sand Aquifer for 500years. The impoundment is 
constructed with ``High Hazard Dams'' as regulated by Illinois 
regulations. Such a permanent waste impoundment is in noncompliance 
with SMCRA but there it is, an ongoing mining operation that no one 
cares about, see request to Senator Obama attached.
    The proposed Deer Run Mine near Hillsboro, Illinois will include 
large waste impoundment, again millions of cubic yards of waste. But 
the permit application does not propose removing the waste, but rather 
suggests a permanent waste impoundment in noncompliance with SMCRA. In 
order to confuse the public, the mine calls the waste impoundment a 
``gob pile'' for which there is no definition under SMCRA.
    For elements for SMCRA that do require updating, the most critical 
are to institute provisions that regulate LAND subsidence due to 
longwall mining. While the mine supposedly is required to repair 
damages to structures, subsidence to prime farmland is limited to that 
which is ``technologically and economically feasible.'' How does one 
repair literally thousands upon thousands of acres of prime farmland? 
It can't be done so under current SMCRA provisions, the more damage 
that a mine does with longwall mining techniques, the more likely the 
damage cannot be technologically and economically repaired, so the mine 
can just walk away.
    The nation seems to be moving in the direction of growing its 
energy needs: does it make any sense to have SMCRA provisions which 
allows the destruction of land needed to grow that energy?

                               Attachment

    PREAMBLE to Final Rule: Discussion ``Such structures may not be 
retained permanently as part of the approved postmining land use.''
    FEDERAL REGISTER: 48 FR 44006 (September 26, 1983)
    DEPARTMENT OF THE INTERIOR
    AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM)
    30 CFR Parts 701, 816, and 817
    Surface Coal Mining and Reclamation Operations; Permanent 
Regulatory Program; Coal Mine Waste
    ACTION: Final rule.
    DISCUSSION
    SECTION 816.84(b)

          This provision also explicitly recognizes that impounding 
        structures constructed of or impounding coal mine waste may not 
        be retained permanently as part of the approved postmining land 
        use.

    RULE:
    SEC. 817.84 COAL MINE WASTE: IMPOUNDING STRUCTURES.
    (b) (1) Each impounding structure constructed of coal mine waste or 
intended to impound coal mine waste shall be designed, constructed and 
maintained in accordance with Sec. 817.49 (a) and (c). Such structures 
may not be retained permanently as part of the approved postmining land 
use.

              Attachment.--Letter to Senator Barack Obama

 RE: FEDERAL NON-RESPONSE TO FOIA REQUEST SURFACE MINING CONSERVATION 
                   AND RECLAMATION ACT REQUIREMENTS.

    Dear Senator Obama: Thanking for your recent response to my May 31, 
2007 request for assistance in getting a public document from the 
United State Department of the Interior, Office of the Solicitor, 
through the federal Freedom of Information Act.
    In summary, on October 27, 2005, The Illinois Department of Natural 
Resources, Office of Mines and Minerals, (IDNR) requested the federal 
Office of Surface Mining for a statement of whether a pipeline at 
Monterey Mine No. 2 was a ``continuing mining operation.'' That request 
was forwarded to the Knoxville Office of the Office of the Solicitor, 
see attachment. In a response that was eventually forwarded back to 
IDNR, the Washington Office of the Solicitor stated, ``the Field Office 
of the Solicitor effectively advised that the operation of the refuse 
area, including construction and operation of the pipeline, is an 
ongoing aspect of the overall surface mining operation, and is subject 
to the requirements of SMCRA section 522(e).''
    Since November 2006, I have sent FOIA requests to various 
governmental agencies for a copy of the document, including the Justice 
Department, see enclosure. For the most part, these requests have 
simply been ignored. On March 1, 2007, the Office of the Solicitor 
stated to me, ``we hope that you will delay filing a lawsuit'' 
regarding this matter. The requested document readily exists in the 
federal Offices of the Solicitor, both in Knoxville and in Washington, 
why should I need to file a lawsuit? Meanwhile, the pipeline continues 
to operate outside the requirements of SMCRA section 522(e).
    It is one simple document. All it would take to resolve this matter 
is for someone with authority, someone that has concern on whether 
applicable provisions of SMCRA are being enforced, to contact the Field 
Office of the Solicitor in Knoxville (865-545-4294), and tell them to 
make a copy of the document and mail it to:

    Robert L. Johnson, PE
    8 Cypress Point Dr.
    Collinsville, IL 62234

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