[Senate Hearing 112-467]
[From the U.S. Government Publishing Office]
S. Hrg. 112-467
CONSOLIDATION OF THE OFFICE OF SURFACE MINING RECLAMATION AND
ENFORCEMENT
=======================================================================
HEARING
before the
COMMITTEE ON
ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
TO
RECEIVE TESTIMONY ON THE SECRETARY OF THE INTERIOR'S ORDER NO. 3315 TO
CONSOLIDATE AND ESTABLISH THE OFFICE OF SURFACE MINING RECLAMATION AND
ENFORCEMENT WITHIN THE BUREAU OF LAND MANAGEMENT
__________
NOVEMBER 17, 2011
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Committee on Energy and Natural Resources
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COMMITTEE ON ENERGY AND NATURAL RESOURCES
JEFF BINGAMAN, New Mexico, Chairman
RON WYDEN, Oregon LISA MURKOWSKI, Alaska
TIM JOHNSON, South Dakota JOHN BARRASSO, Wyoming
MARY L. LANDRIEU, Louisiana JAMES E. RISCH, Idaho
MARIA CANTWELL, Washington MIKE LEE, Utah
BERNARD SANDERS, Vermont RAND PAUL, Kentucky
DEBBIE STABENOW, Michigan DANIEL COATS, Indiana
MARK UDALL, Colorado ROB PORTMAN, Ohio
JEANNE SHAHEEN, New Hampshire JOHN HOEVEN, North Dakota
AL FRANKEN, Minnesota DEAN HELLER, Nevada
JOE MANCHIN, III, West Virginia BOB CORKER, Tennessee
CHRISTOPHER A. COONS, Delaware
Robert M. Simon, Staff Director
Sam E. Fowler, Chief Counsel
McKie Campbell, Republican Staff Director
Karen K. Billups, Republican Chief Counsel
C O N T E N T S
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STATEMENTS
Page
Bingaman, Hon. Jeff, U.S. Senator From New Mexico................ 1
Corra, John, Director, Wyoming Department of Environmental
Quality........................................................ 23
Hayes, David, Deputy Secretary, Department of the Interior,
Accompanied by Joseph Pizarchik, Director, Office of Surface
Mining Reclamation and Enforcement, Department of the Interior,
and Robert Abbey, Director, Bureau of Land Management,
Department of the Interior..................................... 4
Dunning, Daranne, Western Organization of Resource Councils,
Helena, MT..................................................... 45
Lambert, Bradley C. ``Butch'', Deputy Director, Virginia
Department of Mines, Minerals and Energy, Testifying on Behalf
of the Interstate Mining Compact Commission and the National
Association of Abandoned Mine Land Programs.................... 17
McGinley, Patrick C., Professor, West Virginia University College
of Law, Morgantown, WV......................................... 28
Murkowski, Hon. Lisa, U.S. Senator From Alaska................... 2
Sweeney, Katie, General Counsel, National Mining Association..... 37
APPENDIXES
Appendix I
Responses to additional questions................................ 57
Appendix II
Additional material submitted for the record..................... 67
CONSOLIDATION OF THE OFFICE OF SURFACE MINING RECLAMATION AND
ENFORCEMENT
----------
THURSDAY, NOVEMBER 17, 2011
U.S. Senate,
Committee on Energy and Natural Resources,
Washington, DC.
The committee met, pursuant to notice, at 9:30 a.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 get started here. This is a
hearing of the Senate Energy and Natural Resources Committee to
receive testimony on the Secretary of the Interior's Order No.
3315.
It is an order to consolidate and establish the Office of
Surface Mining Reclamation and Enforcement within the Bureau of
Land Management. The order was signed by Secretary Salazar on
the 26th of October.
I hope we can all learn more about the purposes and likely
effects of this reorganization from the witnesses today. I've
heard concerns expressed regarding this reorganization. Some
believe that consolidating the Office of Surface Mining within
the BLM could serve to diminish its role and mission.
Others have expressed concern that the reorganization
injects uncertainty as to how the program will be administered.
The Surface Mining Control and Reclamation Act of 1977,
which is OSM's organic act, was a product of this committee's
labors, as well as, of course, the House Committee on Interior
and Insular Affairs.
The Surface Mining Act was neither hastily written nor
lightly considered, according to then Representative Mo Udall,
the bill's principal author. Here's a quote from his statement,
``It took 6 years of tenacity and bitter debate to pass the act
involving 183 days of hearings and legislative consideration,
18 days of House action, 3 House-Senate conferences and
reports, 11 conference reports, 2 Presidential vetoes and about
52 recorded votes in the House and Senate.''
The Surface Mining Act sets forth provisions particularly
relevant as we consider the Secretary's order.
First, that act explicitly establishes an Office of Surface
Mining Reclamation and Enforcement within the department. The
statute also requires that the director of OSM be appointed by
the President and confirmed by the Senate.
Also note, the Surface Mining Act prohibits the transfer of
coal-development functions to OSM. Given this provision, it's
perhaps difficult to believe that Congress intended OSM to be
an office within the BLM. Indeed the provision that prohibits
the comingling of coal development and OSM's functions argues
against this result.
Again, I look forward to the testimony from our witnesses
and look forward to gaining a better understanding of the
Secretary's order, both from a procedural and substantive
perspective.
I thank the witnesses for being here and all others who are
present today.
Let me call on Senator Murkowski for her comments.
STATEMENT OF HON. LISA MURKOWSKI, U.S. SENATOR
FROM ALASKA
Senator Murkowski. Thank you, Mr. Chairman. Welcome to
those on both panels here this morning. I thank you, sir, for
setting this hearing this morning to conduct some oversight on
the recent order for OSM to be merged into BLM.
From the outset, I do want to make clear that I do
appreciate one part of this announcement that was included in
the memorandum from Secretary Salazar about making the
government work better. I think that's a goal that we certainly
all share. We always look for ways to make our agencies more
efficient, less costly, and we should welcome the participation
of the people who actually work there.
Streamlining the Federal Government is something that we
should all agree to strive for, right now especially, as we're
grappling with so many of these decisions related to our budget
and the Federal debt.
The problem is that not every idea that emerges is going to
deserve implementation, so we need to be careful to filter the
good from the bad. From what we've seen so far, the secretarial
order to merge OSM into BLM, in my opinion, falls into the
latter of those categories.
I'm not convinced that the order is legally valid or good
public policies. The committees of jurisdiction were not
consulted, but left in the dark, and the department's rollout,
I think, has created some confusion and uncertainty.
Now, I initially understood this would be a merger of
administrative functions, and I think some of us may have
supported that, but what was publicly announced was far more
extensive. It seems clear that the plan would first require
Congress to amend the separate organic acts that are
establishing BLM and OSM.
My skepticism deepens when we take a look at what this
could mean for policy implementation. OSM was specifically
established as a separate entity reporting directly to the
interior secretary to protect its independence as a regulatory
body, and that independence needs to be protected.
What's more, the proposed merger of BLM, the entity
responsible for leasing, and OSM, the regulatory body, is
directly contrary to the arguments that we heard last year when
the administration sought to separate the leasing and the
regulatory functions of the former Minerals Management Service.
Secretary Salazar submitted written testimony to us last
summer asserting, and I'll quote him here, ``I intend to
restructure MMS to establish a separate and independent safety
and environmental enforcement entity. We will responsibly and
thoughtfully move to establish independence and separation for
this critical mission, so that the American people know that
they have a strong and independent organization holding energy
companies accountable and in compliance with the law of the
land.'' That was his quote.
Suffice to say I'm curious to hear why the department
apparently wants to move in the opposite direction now when it
comes to OSM.
Finally, from a process standpoint, it's tough not to be a
critic. Few details and even fewer justifications have been
provided about how this order will be carried out or even why
it's warranted. Neither Congress nor stakeholders were
consulted or notified that this order was in the works.
Today, it remains entirely unclear how the department plans
to consult with Congress, even though the order says that that
should happen, and whether or not public comments will be
allowed.
The reaction to this order, Mr. Chairman, I think you have
noted, has been virtually unanimous and almost entirely
unfavorable. It looks for all the world like the decision was
made to merge OSM into BLM before much thought was given to
whether those agencies could be merged, whether they should be
merged and how that would actually be accomplished. So that's
not a particularly good start here.
Even before the Secretary signed this order, there were
obvious problems at OSM where an independent contractor who was
hired by OSM to analyze new coal regulations was subsequently
fired for projecting massive job losses as a result of the
rules. None of us likes to hear bad news, but the proper
response is not to shoot the messenger.
So, to me, it makes more sense for this committee and the
department to get existing agencies operating properly before
we start talking about combining them.
So, Mr. Chairman, I'm glad that we have this hearing in
front of us today. I hope that it provides some insight and
perhaps some clarity into the Secretary's recent order.
I'll have some questions, of course, of the witnesses and
will look forward to their responses. So thank you.
The Chairman. Thank you.
We have 2 panels today. The first is the Deputy Secretary
of the Department of the Interior, David Hayes. We welcome him.
He is accompanied by the 2 directors of the effected
agencies here, the Honorable Joseph Pizarchik, who is director
of the Office of Surface Mining--thank you for being here--and
the Honorable Robert Abbey, who is the director of the BLM.
Thank you for being here.
So, David, why don't you go right ahead and give us your
thoughts as to this order and anything else you think we ought
to know, and then we will have some questions.
STATEMENT OF DEPUTY SECRETARY DAVID HAYES, DEPARTMENT OF THE
INTERIOR
Mr. Hayes. Thank you, Senator. Thank you, Senator
Murkowski, and other members of the panel.
I would just like to make a few opening remarks about the
Secretary's order. The Secretary, in announcing the order that
is the subject of today's hearing, asked the leadership of the
Department of the Interior and the 2 directors on my right and
my left to evaluate whether we can consolidate some of the
activities of the Office of Surface Mining and BLM in a way
that will provide more efficient and cost-effective service.
This is all about seeing if we can be more efficient in
dealing with the goals that are required by SMCRA, under the
Office of Surface Mining, and by FLPMA, under the Bureau of
Land Management.
The goal is to make government work better, to build on our
strengths and to get the most out of the limited resources that
we have.
Let me say at the outset that the Secretary's executive
order makes it clear that the Office of Surface Mining's duties
and responsibilities, as prescribed by SMCRA, will remain
intact under the exclusive purview of the Office of Surface
Mining director who will maintain autonomy over those issues.
Our hope and expectation is that the consolidation
evaluation that we're launching will actually strengthen OSM's
capabilities by making the most of available efficiencies in
the OSM organization and BLM organization, aligning programs,
where possible and appropriate, and eliminating duplication and
optimizing effectiveness.
The enforcement and regulatory functions of OSM would
remain separate from BLM's leasing activities. That's required
under section 201(c) of SMCRA. That will be honored.
The focus of the consolidation is on those OSM and BLM
functions that are complementary, including environmental
restoration activities and administrative support functions.
Part of the background of this order is the fact that OSM
is a small organization with a modest operating budget of about
$160 million and a staff that has been decreasing in number
steadily over the last 10 years.
Since 2002, OSM's staff has been reduced by 17 percent.
There are only approximately 520 employees in all of OSM. We
need to find a way to make this small agency more efficient.
That's what this reorganization is all about.
The areas that we are looking at in terms of the
consolidation are areas, again, that do not touch upon the
independent required obligation of OSM. We're looking, for
example, in particular, at administrative functions.
Currently, the Office of Surface Mining, although it's a
very small bureau, has to support a variety of separate
administrative functions. It has an Office of Communications
and Legislative Affairs, has an Office of Information
Resources, has an Office of Equal Opportunity, an Office of
Planning, Policy and Budget and a Division of Administration.
All of these administrative services are siloed in OSM.
We believe that many of them can be consolidated with BLM's
much larger operation and provide essentially more bang for
every OSM dollar, so that they don't get essentially put into
administrative functions that can be done more efficiently by a
larger organization.
Similarly, on the revenue side, we have an existing
independent, skilled, revenue-collection and distribution
function at the Department of the Interior, the Office of
Natural Resource Revenues, under the Office of the Assistant
Secretary for Policy, Management and Budget.
The ministerial collection of reclamation fees by the
Office of Surface Mining, and the distribution of those funds
is extremely similar to the functions that our robust Office of
Natural Resource Revenues is undertaking right now for the
Bureau of Land Management and for the Bureau of Ocean Energy
Management. They collect and distribute more than $10 billion
per year, which far overshadows the amount that is collected
and distributed by the Office of Surface Mining.
We think it makes sense to take the excellent group that
does that work in the Office of Surface Mining and have them
part of this operation of the Office of Natural Resource
Revenue to more efficiently collect and distribute these funds.
It just makes sense, from our perspective.
Similarly, both organizations have some expertise when it
comes to coalmine reclamation efforts. Both of them have
abandoned mining programs. OSM focuses on coal reclamation
activities, obviously, and collects money and oversees coal
reclamation activities, including--some of those funds are used
for abandoned hard-rock mining activities as well.
BLM has a similar program dealing with abandoned hard- rock
mining activities. Both have experts that deal with these
issues. BLM, in addition, oversees the leasing of current
coalmining activities and has to review the adequacy of
reclamation activities associated with current coalmining
activities.
You have 2 organizations each with an expertise and
capability, each modest capability dealing with very similar
issues.
We believe that as we go through this process of talking
with our employees, consulting with you, consulting with
interest groups, that there may well be some synergies here to
take advantage of these 2 very parallel programs.
The point, though, I would like to emphasize and close is
that we completely honor and respect the requirements of SMCRA.
The independence of the Office of Surface Mining will be
retained as required under section 201(c), but just as section
201(b) of SMCRA anticipates that some of the functions called
for by SMCRA can be done outside of the Office of Surface
Mining, that's the area that we want to explore as we look
through and administer this potential program.
I close by saying the secretarial order itself, of course,
does not become effective until December 1. Moreover, what it
calls for is a plan to be fleshed out by March 1. We are very
much in the state of evaluation and examination of this.
We do believe that there are some synergies and some cost
savings that can be identified and that we need to identify in
this time of fiscal constraint. We look forward to working with
you over the coming months to make sure we do so in a way that
makes sense, that works for the companies that are reliant on
permits from both the Office of Surface Mining and BLM and that
will deliver the services that people expect of their
government.
Thank you.
[The prepared statement of Mr. Hayes follows:]
Prepared Statement of David J. Hayes, Deputy Secretary, Department of
the Interior
INTRODUCTION
Chairman Bingaman, Ranking Member Murkowski, and Members of the
Committee, thank you for the opportunity to appear before you today to
discuss the Department of the Interior's consolidation and integration
of the Office of Surface Mining Reclamation and Enforcement (OSM) into
the Bureau of Land Management (BLM) as contemplated by Secretarial
Order No. 3315, dated October 26, 2011.
As Secretary Salazar stated in announcing the Order, the Secretary
has asked the leadership in the Department of the Interior to evaluate
a potential consolidation of OSM and BLM to determine whether the
Department can advance the Congressionally-mandated missions of both
bureaus more efficiently and cost-effectively by combining expertise
and resources of the bureaus in areas that make sense, and reducing the
drain on OSM resources that is associated with maintaining stand-alone
support services for a bureau that has a small employee and budget
base. The Secretary's goal is to make government work better, to build
on our strengths, and to get the most out of the limited resources we
have.
At the outset, I want to emphasize that the Department is fully
committed to the OSM mission and to continued compliance with the
Surface Mining Control and Reclamation Act (SMCRA). The Secretary's
Executive Order makes it clear that the OSM's duties and
responsibilities prescribed by SMCRA will remain intact, under the
exclusive purview of the OSM Director, who will retain autonomy over
those issues. The hope and expectation is that the consolidation
process that the Department is now launching will strengthen the OSM's
capabilities by making the most of available efficiencies in
organizations, aligning programs where possible and appropriate,
eliminating duplication and optimizing effectiveness. The enforcement
and regulatory functions of the OSM would remain separate from BLM's
leasing activities. The focus of the consolidation is on those OSM and
BLM functions that are complementary, including environmental
restoration activities and administrative support functions.
As the Secretary noted in his Order, we look forward to Congress'
input as we move forward with this process, along with the input of our
employees, the Office of Management and Budget, and interested
stakeholders.
BACKGROUND
OSM was established in 1977 as a regulatory agency to oversee state
surface coal mining regulatory and reclamation programs and to develop
tools to ensure that states and tribes administer their programs
effectively. OSM seeks to ensure that coal mining operations are
conducted in a manner that protects citizens and the environment during
mining, to ensure that the land is restored to beneficial use after
mining, and to mitigate the effects of past mining activity by pursuing
reclamation of abandoned coal mines. OSM also provides support and
assistance to states in implementing state regulatory programs and
reclaiming abandoned mine lands.
The OSM has a modest operating budget of about $160 million and a
staff that has been decreasing in number steadily over the past ten
years. Since 2002, the OSM's staff has been reduced by 17 per cent.
OSM's 525 employees are headquartered in Washington, DC, and throughout
three coal-producing regions: Appalachia, Mid-Continent, and Western.
The BLM was established in 1946 and manages more than 245 million
acres of public land, known as the National System of Public Lands.
Although the large majority of lands managed by BLM are located in 12
western states, BLM manages approximately 15,000 surface acres in the
eastern United States. In addition, BLM manages approximately 40
million acres of federal mineral estate in the eastern United States,
including approximately 30 million acres under our National Forests. In
total, BLM administers 700 million acres of sub-surface mineral estate
throughout the Nation. As a land manager with responsibility for
overseeing both surface and sub-surface mining activities on public
lands, BLM has a number of responsibilities associated with mining-
related activities, including establishing reclamation requirements for
current mining operations, and administering BLM's Abandoned Mine Lands
(AML) program, a mining restoration program that was established in
1997 to address high priority watersheds impacted by abandoned mines.
The consolidation proposed under the Secretarial Order is intended
to build on the strengths and expertise of both bureaus, to capture the
benefit of synergies from integrating BLM and OSM reclamation efforts,
to strengthen OSM's oversight of surface coal mining and reclamation
operations, to ensure efficiencies in revenue collection and
enforcement responsibilities, and provide strong and independent safety
and environmental oversight of these activities.
The Department is proceeding with this consolidation exercise under
the authority of Section 2 of the Reorganization Plan No. 3 of 1950.
That law gives the Secretary broad reorganization authority across the
Department subject, of course, to any relevant statutory limitations.
In this case, any reorganization must accommodate SMCRA's explicit
requirements that OSM maintain a separate regulatory and enforcement
function, that it not promote the development of coal or other mineral
resources, and that it be led by a Director who is appointed by the
President, with the advice and consent of the Senate. In that regard,
one of the critical components of our reorganization plan is that OSM's
enforcement mission will remain independent from the coal leasing
functions administered by the BLM. Under the reorganization plan, there
will be no consolidation of those functions.
As described in the Secretary's Order, which is due to become
effective on December 1, 2011, we will be evaluating four key areas for
potential consolidation: (1) administrative functions; (2) revenue
functions; (3) mine reclamation programs; and (3) inspection and
enforcement.
Administrative Functions
We believe that a consolidation of BLM and OSM can avoid
duplicative administrative support services that currently reduce OSM's
effective spending power. Although it is a small bureau, OSM currently
is supporting a variety of separate administrative support functions,
including a Communications and Legislative Affairs Office, an Office of
Information Resources, an Office of Equal Opportunity, an Office of
Planning, Policy and Budget and a Division of Administration.
Consolidation with BLM would enable OSM to take advantage of existing
BLM and OSM administrative resources in all of these areas. By taking
advantage of these efficiencies, a larger portion of the OSM budget
could be dedicated to accomplishment of its core mission.
Revenue Functions
The Secretary's consolidation plan anticipates moving OSM's revenue
collection function to the Department's Office of Natural Resource
Revenue (ONRR)--an existing office within the Department whose sole
mission and expertise is the efficient collection of revenue from
various leasing and permitting activities conducted throughout the
Department. By way of example, ONRR currently manages the revenue
collection functions associated with BLM and the Bureau of Ocean Energy
Management (BOEM). Integration of the OSM's fee collection and
distribution functions that are ministerial in nature into the ONRR
would take advantage of ONRR's existing expertise and resources in this
area. ONRR, in turn, would benefit from incorporating OSM's high
quality and efficient compliance program, with an established record of
collection success.
Mine Reclamation Programs
The BLM and OSM both have resources and expertise devoted to the
reclamation of current and abandoned mining activities. OSM, for
example, has significant expertise in the reclamation of ongoing coal
mining operations, expertise that could augment the BLM's efforts to
require ongoing reclamation efforts at hard rock mines. The OSM also
has significant expertise in abandoned coal mine reclamation, including
its AML grants to states and tribes and the creation and administration
of its Abandoned Mine Land Inventory System. During the consolidation
process, the Department will be exploring the potential to merge the
BLM's AML program into the OSM's abandoned mines program, so as to
capitalize upon the synergies that would result in increased capability
and, we expect, improved performance of both programs. We also believe
that such a consolidation would improve the BLM's mine and surface
reclamation programs for existing mining operations.
Inspection and Enforcement
The OSM and the BLM both maintain inspection and enforcement
programs. As we move forward with developing our plan, we will consider
consolidation of the BLM's reclamation and inspection and enforcement
functions related to coal mining with OSM's surface coal mining
regulation, inspection and enforcement program. Consolidating these two
functions could result in strengthening what are now two relatively
small, separate programs, creating a more robust program that would
operate under the supervision of the OSM and include their extensive
institutional knowledge.
CONCLUSION
Mr. Chairman, we believe that in these times of limited budgets and
resources, it is important to fully explore how government services can
be delivered in the most efficient and effective manner. That is why we
are considering consolidation of certain functions currently
administered by OSM and the BLM. We recognize that both bureaus carry
out important functions, have vital missions, and are staffed by
tremendous public servants. Our goal is to build on these strengths as
we consider how we might better deliver the services that the American
people expect of us.
We will rely on the ideas and input of employees and many others,
including the Congress, at every step of the process so that we ensure
that this integration is successful and consistent with our authorities
under the law.
This concludes my statement, and I am happy to answer any questions
you or other Members of the Committee may have.
The Chairman. Thank you very much. Let me start with a few
questions.
I guess a sort of threshold question is whether or not what
you're proposing or what the Secretary is proposing in this
rule is consistent with the statutes that govern. You're
persuaded that it is, I gather, from your statement.
Mr. Hayes. We are, Senator. The solicitor's office has been
involved in our discussions and will continue to be involved as
we evaluate exactly how we might undertake this consolidation.
As I said, we would proceed consistent with both section
201(c) and section 201 (b) of the act.
The Chairman. OK. Because there is a lot of legislative
history in connection with the Surface Mining Control and
Reclamation Act that seems to imply otherwise to us. There's
this statement in the Senate report that says, to ensure
administration of the program by an independent agency with
neither a resource development or resource preservation bias or
mission, this title establishes the Office of Reclamation and
Enforcement in the Department of the Interior. This office will
be separate from any of the departments, existing bureaus or
agencies. It's intended that the office exercise independent
and objective judgment in implementing the act.
So that seems to us to be contrary to what the order calls
for, and so I call that to your attention.
Obviously, I agree with your purpose of trying to find
synergies and ways to streamline administration of the Federal
Government. I think, clearly, Senator Murkowski said the same
thing, I believe.
The order that the Secretary has issued in section 3(d)
talks about how you want to integrate the Office of Surface
Mining's coalmining regulation, inspection and enforcement
programs and functions and BLM's inspection and enforcement
program functions related to mining.
That seems to me to go beyond just streamlining. That seems
to essentially say we're going to do this all out of the same
office. I don't know if that accomplishes some greater
objective, other than just saving on a few personnel. I guess
the hope is that you can reduce the number of people required
to perform these functions currently performed by the 2
agencies if you do it all together. Is that the idea?
Mr. Hayes. Senator, there is a second purpose there and it
goes to the point that Senator Murkowski raised in her opening
statement.
Let me step back for a minute. I think what SMCRA requires
in particular is that the Office of Surface Mining not be
involved in the leasing function, that there be a separation
between the cop on the beat, if you will, and the agency that
is actually entering into leases. That's very similar to what
we were trying to do, what we have done with the division of
Minerals Management Service between the Bureau of Ocean Energy
Management and the Bureau of Safety and Environmental
Enforcement.
Currently, you have BLM doing both leasing and enforcement.
We think--and the Office of Surface Mining should have nothing
to do with leasing. That's clear from SMCRA. That's why it has
to continue to be an independent organization with a director
that is appointed and confirmed by the Senate.
We think it may make sense, frankly, to move the BLM
enforcement of coal-related activities over to OSM, so that
you, in fact, honor that separation between enforcement and
leasing. So that's what we want to explore.
There may well be some efficiencies there as well. I mean,
the reality is you have inspectors at OSM. You have inspectors
at BLM, both of whom are checking on reclamation of coal
activities. They're doing very, very similar functions.
In fact, they duplicate functions. After a surface coalmine
that is leased by BLM closes and there's a question of how you
administer the reclamation of that, both BLM and OSM
independently have an obligation to inspect and ensure the
reclamation activity occurs in an appropriate way. To us, it
doesn't make sense to have duplicate reviews of that activity.
The Chairman. Let me just mention I do have a statement
from the Navajo Nation that I'll submit for the record
indicating their concern with the lack of any government-to-
government consultation prior to the issuance of this executive
order. So I'll put that in the record.
Senator Murkowski.
Senator Murkowski. Thank you, Mr. Chairman.
In addition to the concern over lack of consultation,
whether it's by tribes or others, it seems to me that we're
dealing with a lot of concerns that have come about because of
the details. On its face, initially, OK, some efficiency, some
consolidation, some streamlining, this is all fine, well and
good.
But as you get more into the details, more concerns are
raised. Typically, when you have something of this
significance, you would have the department conduct some
briefings, some hearings. It would be part of the annual budget
request. You would have the public comment and really kind of
work through the process.
You've indicated, David, that you anticipate the plan to be
together by March 1. We need to identify whether or not there's
going to be cost savings. It sounds like there is still an
awful lot of exploratory review, and, yet, we're in kind of
response mode now.
Is this just a rollout that isn't working very well or has
it not been thought through to the level that I think a change
like this should be?
Mr. Hayes. Senator, I absolutely respect the point of view
that you have here, and I want to thank you and Senator
Bingaman for holding this hearing, because the reality is that
we believe that there are cost savings that can be garnered
here while increasing efficiencies and taking advantage of
organizational capabilities we have in our department.
The reality is, though that this is complicated. Step one
for us is to talk to our employees in all of the effected units
and to work through with them what might be possible, what
might make sense, to sharpen the pencils, to see if the
expected savings are there and what they might be, and to work
with you and with interested parties. That's what we are going
to do.
This is a 2-page secretarial order. It is brief. It is high
level, precisely because this is complicated, and it's going to
require careful review and evaluation. That's our job here over
the next 4 months, to go about this exercise, to talk with you
more, and your staffs, to talk with industry more. That's what
we intend to do.
The Secretary has no interest in coming out with a plan
that doesn't make sense. He has asked me to work with these
gentlemen over the next 4 months to see what we can put
together, and that's what we intend to do.
Senator Murkowski. I think we're going to continue to have
a lot of questions about how it would actually be implemented.
I want to follow on the chairman's question, though, in
terms of the authority. Has the solicitor's office provided a
written opinion as to the legality of this proposal, and, if
so, can you provide that to us?
Mr. Hayes. We do have some written documents from the
solicitor's office that has been the solicitor's office, as I
testified before, has been involved throughout. I'm happy to
look into the issue of providing that.
Senator Murkowski. OK. I would like that, as I'm sure it
will be helpful for us as we look at this further.
I've got some other questions that I'll have an opportunity
to ask you later, but I wanted to bring up something that was
in yesterday's news.
This was in the U.S. News and World Report. There was an
article suggesting that the administration, the President is
kind of pushing gun owners off of public lands. This relates to
the ability to use public lands for target practice, something
that I've got a real concern with, as most of my constituents
in Alaska clearly do.
I know that the Secretary was asked about this yesterday at
a House resources hearing. He indicated that he was not aware
of the proposal at that time.
So I'd ask either you, Mr. Hayes, or you, Mr. Abbey, if you
can provide us a little better insight in terms of what is
going on with this proposal, please.
Mr. Hayes. Certainly. Let me take a crack and then ask, why
don't you go ahead, Bob.
Mr. Abbey. Senator, again, I appreciate the question. You
know, the Bureau of Land Management manages 245-million acres
of land, and most of that land is open to hunting and fishing
and recreational target shooting.
The issue that cropped up yesterday was based upon a
question that was asked of the Bureau of Land Management
regarding a proposed policy to look at some of the conflicts
that are currently escalating relative to recreational target
shooting near communities and residential areas that are being
developed adjacent to public lands.
As you may know, we do restrict shooting within developed
recreation areas. We have closed off a few areas, based upon
safety concerns regarding shooting that is taking place near
those type of communities and residential areas.
Everything that we do relative to restricting uses on
public lands would be handled through a land-use plan.
Let me assure this committee that we have nothing in place
as far as going forward with any kind of rulemaking that would
close off public lands to hunting or fishing or to even
recreational target shooting.
But we do have, and always have had, the discretion of
looking or using our land-use plans to determine appropriate
uses that are taking place on public land--by BLM.
As we see some of these communities continuing to expand
and build adjacent to some of these public lands, we do have
some conflicts that do need to be addressed, but they are few
and we will deal with those through our land- use planning
process.
Senator Murkowski. I would just remind everyone that the
last time the Department of the Interior attempted to regulate
guns in national parks, we ended up with the guns-in-park
legislation. So just be aware.
I mean, I'm hearing your words here, but this is something
that would cause a great deal of concern and angst.
Mr. Hayes. We appreciate that and we understand that.
Senator Murkowski. Thank you, Mr. Chairman.
The Chairman. Senator Manchin.
Senator Manchin. Mr. Hayes, I appreciate you being here and
also to the chairman and the ranking member for calling this
hearing, because I don't think you all asked for the hearing.
Did you?
Mr. Hayes. No----
Senator Manchin. You were going your way, no matter what.
Mr. Hayes. Senator, we----
Senator Manchin. I'm just saying that we asked for the
hearing because you weren't going to give us the courtesy of
coming to tell us why you thought you didn't need our approval
to do it.
Mr. Hayes. No, that's not true, Senator. The intent of the
Secretary was to reach out to all of you here----
Senator Manchin. I think you can carry back and tell him
that there's great concern on both sides. You know, very few
things that we all agree on, and I think you're seeing that we
agree that we think you're wrong.
So with that being said, you already have oversight--do you
not, BLM?--over--aren't they part of your----
Mr. Hayes. Yes. Yes.
Senator Manchin. So if there's deficiencies, why wouldn't
you have been helping them already, if you found different ways
administratively?
Because one size doesn't fit all. We've never dealt in the
eastern part of the United States with BLM. That's all they've
ever dealt with in the western part is BLM. Next of all, the
way our lands have been separated, it's a whole different
ballgame than what you all deal with.
If you think that OSM's inspectors are better and can do a
better job because you're doing the same thing, why don't you
already have OSM inspectors doing yours, too?
I mean, I don't know why you need an order saying you're
going to merge. Doesn't make any sense.
You haven't identified any cost savings or haven't told us
about the money. If you do, I'd like to hear how much money you
think you're going to save.
Mr. Hayes. We----
Senator Manchin. You have a dollar figure, please tell me.
Mr. Hayes. We've done some preliminary estimates and we
believe we might save $5 million a year.
But, most importantly, we are interested in consolidating
the functions.
Let me just a couple of clarifications.
Senator Manchin. You can do that without----
Mr. Hayes. BLM has 40-million acres in the eastern United
States under its management. It has a substantial presence in
the east, including some coalmining requests.
But the most important thing, Senator, first of all, let me
just reiterate, as I said to Senator Bingaman and Senator
Murkowski, we are interested in working closely with you to
flesh this out and do something that makes----
Senator Manchin. If you want to work with us, you ought to
put your order on hold right now and tell the Secretary to hold
up and let's work together. Don't move forward for December the
1st, because it's not going to be looked on favorably here. I
think you're hearing that loud and clear, and I would hope you
would.
How about the States that have primacy right now basically
taking the lead in that? I mean, my little State of West
Virginia is one that we think has done and worked well with
OSM, and we're always looking for better ways to do that, but
we were never consulted about this. Not the least bit were we
ever contacted and say, Guess what might happen. This is why we
want to do it, to give us a chance if there's something we were
doing wrong or we thought OSM was doing and we could do better,
no one gave us an opportunity to cure it.
I mean, in running any good office, if you detect that
there's an inefficiency, you try to improve that. Then if you
can't improve it and say, I've given all, every best shot I
had, then you put them together, you consolidate and say, I
don't need that any longer.
But I would really agree with both the majority and the
ranking minority member here that I'm not sure you all have the
jurisdiction to do that. I mean, it's pretty clear, if you read
that the office is under 201(a), established in the Department
of the Interior, the Office of Surface Mining was established
there; 201(b) requires the OSM have a director who shall be
appointed by the President.
I don't know how you can just say, there is an order that
the President has that--What's the purpose if you're going to
take it away now and merge it when Congress basically, in
201(b), says that the President will do the appointment?
If that's the case, then it says that no legal authority
program or function in any Federal agency which has its purpose
promoting the development or use of coal or other mineral shall
be transferred. I don't know how you read that any differently.
Mr. Hayes. You know, Senator, 201(b) also says that OSM may
use, when appropriate, employees of the department and other
Federal agencies to administer the provisions of this act.
Senator Manchin. That's fine. We're saying you already have
that right. Why do you want to merge it?
Mr. Hayes. We don't----
Senator Manchin. So you're going to leave a director at OSM
appointed by the President for the sake of face value and
that's it?
Mr. Hayes. No.
Senator Manchin. There's not going to be anything else for
them to work with if----
Mr. Hayes. No, they will--The director will administer all
the required obligations under section 201(c). What we're
looking at are only the administrative functions, potentially
some of the reclamation, backend issues and potentially the
revenue-collection capability and distribution capability that
we have an outstanding centralized function for under the
Office of Natural Resources Revenue.
Senator Manchin. Mr. Hayes, with all due respect, I would
encourage you to take back to the Secretary the request to put
this on hold, to pull this order until we can all work together
on it and see if there is more efficiencies to be gained.
Mr. Hayes. I'll take that back. Thank you, Senator.
The Chairman. Senator Paul.
Senator Paul. Thank you, and thank you to the panel for
coming.
I think we're all concerned, Republican and Democrat, with
clean water. The Clean Water Act talked about regulating
navigable waters, and in the Rapanos decision, Scalia actually
defines what a navigable water is. What Scalia says is that a
navigable water would be relatively permanent, standing or
continuously flowing bodies of water forming geographic
features, such as oceans, rivers and lakes.
I think that's what the regular folks around the country
would think we would be regulating, and that would be fine with
most people, be fine even with myself.
I think the concern is is that some people have not agreed
with that definition and they think the definition of a stream
is or navigable water is any low area of land anywhere that
collects water or where water runs off of, and I think that's a
real problem.
Scalia goes on to say that it does not include channels
through which water intermittently or ephemerally or channels
that periodically provide drainage or rainfall.
My question is for Mr. Pizarchik. How do you define a
stream?
Mr. Pizarchik. Steams, in the definitions or appeared in
our regulations, do not follow the waters of the United States
provisions that have been litigated, debated over the years.
It's based--there's a couple of different definitions. There's
a definition for perennial stream. There's a definition for
intermittent stream and for ephemeral stream.
Senator Paul. So you disagree with Justice Scalia's
definition of navigable waters?
Mr. Pizarchik. The Surface Mining Act doesn't provide for
us to conduct our activities in the context of the navigable
waters. The Surface Mining Act explicitly reserves water-
quality standards for EPA, and the corps also deals with
navigable waters. What we have----
Senator Paul. So your jurisdiction doesn't come from the
Clean Water Act?
Mr. Pizarchik. No, sir, it does not. It comes from the
Surface Mining Control and Reclamation Act.
Senator Paul. OK. How many ephemeral streams are there in
Kentucky?
Mr. Pizarchik. I don't know that anybody's ever counted
that, but I'm sure there are very many.
Senator Paul. So there's no list.
Mr. Pizarchik. I don't know.
Senator Paul. It'd be pretty important if you're going to
propose a stream rule and then you're going to tell me I can't
do any mining activity within 100 feet of an area that
sometimes has water when it rains.
Have you ever been into the mountains of eastern Kentucky?
Mr. Pizarchik. Yes.
Senator Paul. When it rains and water runs off of high
places and goes to low places every place that it runs off is
not a stream. This is the ridiculous notion that has allowed
government to overreach, and this is what annoys us in our
State. You come down here from Washington, you want to tell us
every area where the water runs off the mountain is a stream
and it is not a stream, and I think it defies the intent of the
law.
That is the danger of you going, once again, into a law
that took 5 years for a lot of people--Republicans, Democrats,
industry, environmentalists, everybody--to develop, and you're
going to do a new stream rule, and yet you're really, really
not talking about babbling brooks or rivers. You're talking
about some low area in the land that sometimes has some water
in it when it rains hard.
Mr. Pizarchik. We are in the process of examining and
making a determination as to how we should modernize our
regulations, take advantage of the existing science and
knowledge that we've gained over the past decades to do a
better job of protecting our resources----
Senator Paul. If I had a mine, how would I know where I can
build my mine? I can't, if you don't have a list of the
ephemeral streams.
Mr. Pizarchik. You have to look at the basis, as far as the
definitions, and apply that. There are determinations that are
made with the regulatory authorities on what constitutes an
ephemeral stream----
Senator Paul. So you're going to let every inspector all
across America decide, at that moment, whether something is a
stream, whether some low area or some crevice that runs off the
top of a mountain is a stream?
I mean, that, to me, when you're developing multimillion-
dollar projects--You know, we have 50,000 workers in Kentucky
who depend--their livelihood depends on this, another couple of
hundred thousand who are indirectly related to mining, and
you're going to tell a company that's going to put millions of
dollars into opening a mine that, Just depends on which
regulator you get and they'll tell you at the time. You know,
they'll know a stream when they see it, basically.
Mr. Pizarchik. No, that's not at all what we're going to
do. We're looking to use the science to modernize our stream
definition.
Senator Paul. You'd have to have a list of streams, then.
You'd have to have a GPS. We've got a GPS there. You'd have to
list every stream in the world. That's the grotesque nature of
this is that, you know, we're talking about an infinite amount
of places where water runs off.
You hear this ridiculous notion from people saying we've
destroyed 2,000 miles of stream. People think that, Oh, they're
polluting the Ohio River and we've disrupted the Ohio River or
some major creeks or rivers. We're not talking about that at
all.
These people, through these exaggerated claims, have
distorted this, but you're furthering this by allowing
something ephemeral to be regulated. There is a danger to what
you're doing. I will tell you that we, in Kentucky, don't like
it. We will oppose you. We will make Congress vote on these
things, and this will work across aisles.
But it gets back to not whether we're for clean water or
we're for clean streams. It is to do and has to do with the
definition of streams.
Mr. Pizarchik. The definition of streams that we're working
on is to give further effect to the Surface Mining Control and
Reclamation Act. It is replete with provisions about protecting
the public, about protecting the natural resources, about
protecting streams and the environmental resources out there.
This is not something that's new. We're still in the
process of developing. We don't have anything out there for
folks to oppose yet, because we haven't proposed anything. We
expect to be able to propose the rule in the spring.
Senator Paul. I would suggest that everybody in your office
read the Scalia definition of what a navigable water is, and
that we get some clarification from the Supreme Court.
We will continue to fight this. This is going to come up
again, but we do need to define what a stream is, and any area
where water runs off should not be considered to be a stream.
The Chairman. Senator Risch.
Senator Risch. Thank you, Mr. Chairman.
Gentlemen, how many of you are attorneys?
Mr. Pizarchik. I'm an attorney.
Senator Risch. One, 2. No? You did take civics, I assume.
Mr. Abbey. I did.
Senator Risch. OK. Good.
You know, I could almost overlook this whole thing if you
guys were just run-of-the-mill bureaucrats, but, you know, this
country has gotten to the point where the constitutional
provision, which is a foundation of this country, that
establishes 3 branches of government has just been totally
ignored by the bureaucracy.
So far this year, Congress has passed about 1,000 pages of
legislation. The bureaucracy's passed about 70,000 pages of
rules and regulations, which have the force of law. The line of
who is legislating here has just gone out the window.
But when you do something like this that is so blatant,
that is so clearly a violation of a congressional law, you've
got to say, What are we doing here? Why bother have a Congress?
Why not just have the judicial branch and the executive branch?
In 1970, Title 30 U.S.C. 1201 et sequens was passed by the
U.S. Congress. Now, with the stroke of a pen, what you're doing
is you're saying, yes, Congress set this office up and created
for this organization within the BLM, but you know what? It's
only Congress. It's only a law. We'll just, with the stroke of
a pen, change it, because, after all, this was done back under
the Carter administration and who's going to notice? Besides
that, who cares, other than Congress?
Gentlemen, we care. We really, really believe that the
legislative branch is in charge of legislating and that you
guys are in charge of executing what the legislative branch
legislates. You're not in charge of legislating.
So we don't have any coal in Idaho, and I understand that
that's primarily what OSM does. But we do have other forms of
mining in Idaho, and, frankly, this has worked since 1977
relatively well.
If you wanted to change it, this is really, really simple.
You come up here with a bill, and you say, This is what we want
to do. These are the reasons we want to do it. Congress, we
know you created our agency. Congress, we know we are subject
to the laws that you pass, so would you consider changing the
way that we're doing things at the BLM?
But you didn't do that, and, frankly, I'm as disgusted as
anybody is on this committee with what you've done.
Thank you, Mr. Chairman.
The Chairman. As you can tell, there's a certain level of
angst around the committee about the proposal.
Senator Murkowski, did you have additional questions? If
not, we can go to Panel 2.
Thank you all very much for being here, and I hope you'll
stay in close touch with us as to future developments with
this.
Mr. Hayes. We will. Thank you.
The Chairman. Why don't we call Panel 2 forward. Let me
just introduce the panel members. Mr. Butch Lambert is the
Deputy Director with the Virginia Department of Mines, Minerals
and Energy. He will be testifying on behalf of the Interstate
Mining Compact Commission and the National Association of
Abandoned Mine Land Programs.
Mr. John Corra--Senator Barrasso, I gather, was going to
make an introduction of him, but he is not here at this point.
Any rate, he is the Director of the Wyoming Department of
Environmental Quality, testifying on behalf of the State of
Wyoming and the Reclamation Committee of the Western Interstate
Energy Board.
Mr. Patrick McGinley is Professor with West Virginia
University College of Law in Morgantown, West Virginia.
Ms. Katie Sweeney is General Counsel with Legal and
Regulatory Affairs in the National Mining Association here in
Washington.
Ms. DarAnne Dunning is with the Western Organization of
Resource Councils in Helena, Montana.
Thank you all very much for being here. I think what we'll
do is to follow our normal practice of each of you take 5
minutes and tell us the main points you think we need to
understand from your perspective and then we will have some
questions.
Mr. Lambert.
STATEMENT OF BRADLEY C. ``BUTCH'' LAMBERT, DEPUTY DIRECTOR,
VIRGINIA DEPARTMENT OF MINES, MINERALS AND ENERGY, TESTIFYING
ON BEHALF OF THE INTERSTATE MINING COMPACT COMMISSION AND THE
NATIONAL ASSOCIATOIN OF ABANDONED MINE LAND PROGRAMS
Mr. Lambert. Good morning. My name is Butch Lambert, and I
serve as the Deputy Director of the Virginia Department of
Mines, Minerals and Energy.
I'm appearing today on behalf of the Interstate Mining
Compact Commission and the National Association of Abandoned
Mine Land Programs.
Our member states implement regulatory programs under the
Surface Mining Control and Reclamation Act and work closely and
cooperatively with the Federal Government under the Federal
Land Policy and Management Act.
We are intimately familiar with and work in close
partnership with the Office of Surface Mining and the Bureau of
Land Management.
We appreciate the opportunity to weigh in on a
consolidation of these 2 Federal agencies and on the potential
impacts this action will have for State governments.
As you know, Mr. Chairman, the State plays a central role
in implementation and administration of SMCRA. Congress
specifically provided for a primacy approach under the law,
whereby the States were to be the front-line, exclusive
regulatory authorities upon approval of State program by OSM.
The States also implement programs for the reclamation of
lands impacted by pre-1977 mining operations that were
abandoned or inadequately reclaimed.
Secretarial Order No. 3315 would consolidate the OSM within
the BLM. This secretarial order will have a significant
implication for State governments who implement regulatory
programs under SMCRA.
Given that the States were never informed, much less
consulted about this consolidation, the Secretary's order
raises more questions than it answers for us. Among the most
important of these are the following:
How will the consolidation impact the role of the States
under SMCRA, especially in terms of grant funding?
How will the consolidation affect the current chain of
command within the Interior, especially with regard to the
Federal oversight of State programs?
How does Interior intend to reconcile the differing
missions of BLM and OSM under the various organic laws affected
by this consolidation?
How will this consolidation save money and achieve
government efficiency?
Without answers to these most basic of questions, the
States are at a significant disadvantage in commenting on the
consolidation.
Given the recent departmental decisions on other mining-
related issues, we also have serious concerns about the
motivations behind this consolidation.
Beginning with the signing of the June 2009 Memorandum of
Understanding between the Interior Department, the
Environmental Protection Agency and the U.S. Army Corps of
Engineers regarding the Appalachian coal surface-mining
operations, and extending to the recent budget and deficit-
reduction proposals to completely reform the AML program, the
States have been unable to ascertain the reason and the basis
for their departmental actions that directly impact the State
and Federal relationship under SMCRA.
Our desire, as partners with OSM and BLM, is to work
cooperatively with these agencies to accomplish our respective
roles and responsibilities under national, environmental and
land-management laws.
However, if we are cut out of the process from the very
outset, it is difficult to fully engage, especially once
decisions like this consolidation are a done deal.
The reorganization is particularly troublesome in terms of
what it may mean for the operation of several key provisions
under SMCRA, including inspection, enforcement and the AML
program.
Even if OSM continues in some sort of independent role, we
are uncertain what the lines of authority will be, especially
in the field. The States have enjoyed and benefited from a good
working relationship with OSM regional and field offices and we
are hopeful that this can be maintained.
Given the complexities associated with the regulation of
active mining operations, a comprehensive understanding of
State programs and the nuances are each critical.
With regard to the AML program, we are even more
circumspect about the potential impacts from the consolidation.
Already, this program has been under attack by the
administration as a recent budget deficit proposal.
I would like to submit for the record this morning a copy
of the letter that the IMCC and the AML Association recently
sent to the Super Committee regarding the implications of this
proposal for the State AML programs.
The Chairman. We will include that in the record.
Mr. Lambert. Thank you, sir.
We are concerned that this consolidation would be a further
attempt to implement all or part of the proposal under the
banner of government efficiency.
An area of particular concern under this consolidation is
the impact it would have on training and technical assistance.
This is one of OSM's key responsibilities under SMCRA.
Given the increasing number of retirements at both the
State and the Federal levels and the need to train new
employees who may have limited knowledge of SMCRA and its
regulatory framework, the OSM training program is a critical
link to effective regulation. We would not want to see this or
the OSM TIPS program eliminated or unduly constrained under the
consolidation.
Mr. Chairman, as we learn more details about the
consolidation, we look forward to working jointly with OSM and
BLM to ascertain the appropriate programs and administrative
efficiencies that can be gained without undermining the
separate and distinct regulatory and statutory responsibilities
under these 2 laws.
Thank you for this opportunity. I'll be happy to answer any
questions or provide further information.
[The prepared statement of Mr. Lambert follows:]
Prepared Statement of Bradley C. ``Butch'' Lambert, Deputy Director,
Virginia Department of Mines, Minerals and Energy, Testifying on Behalf
of
Good morning. My name is Butch Lambert and I serve as Deputy
Director of the Virginia Department of Mine, Minerals and Energy. I am
appearing today on behalf of the Interstate Mining Compact Commission
(IMCC) and the National Association of Abandoned Mine Land Programs
(NAAMLP).
The Interstate Mining Compact Commission (IMCC) is an organization
of 24 states located throughout the country that together produce some
95% of the Nation's coal, as well as important hardrock and other
noncoal minerals. Each IMCC member state has active mining operations
as well as numerous abandoned mine lands within its borders and is
responsible for regulating those operations and addressing mining-
related environmental issues, including the reclamation of abandoned
mines.
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. All of the states and tribes within the
NAAMLP administer abandoned mine land (AML) reclamation programs funded
and overseen by the Office of Surface Mining (OSM) pursuant to Title IV
of the Surface Mining Control and Reclamation Act (SMCRA, P.L. 95-87).
IMCC and NAAMLP member states represent a cross section of the
country and many implement regulatory programs under SMCRA and work
closely and cooperatively with the federal government under the Federal
Land Policy and Management Act (FLPMA). As such we are intimately
familiar with and generally work in partnership with the Office of
Surface Mining Reclamation and Enforcement (OSM) and the Bureau of Land
Management (BLM). We therefore appreciate the opportunity to weigh in
on the consolidation of these two federal agencies and the potential
impacts that this action will have for state governments.
As you know, Mr. Chairman, the states play a central role in the
implementation and administration of SMCRA. Congress specifically
provided for a ``primacy'' approach under the law, whereby states were
to be the front line, exclusive regulatory authorities upon approval of
a regulatory program by OSM. To date, 24 states have received primacy
under SMCRA and continue to operate first-class regulatory programs
that protect the public and the environment from the impacts of coal
mining operations. The states also implement programs for the
reclamation of lands impacted by pre-1977 mining operations that were
abandoned or inadequately reclaimed.
OSM was established as an independent federal agency charged with
implementing and administering several distinct responsibilities under
SMCRA, as specifically delineated in Section 201 of the Act. Among
those are reviewing and approving or disapproving state programs and
assisting the states in the development of those programs. Section 705
also authorizes OSM to make annual grants to states for the purpose of
administering and enforcing state programs and to cooperate with and
provide assistance to states for the purpose of assisting them in the
development, administration and enforcement of their programs,
including technical assistance and training. Significantly, for
purposes of this hearing, Section 201 (b) of SMCRA provides that no
legal authority, program or function in any federal agency which has as
its purpose promoting the development or use of coal or other mineral
resources or regulating the health and safety of miners shall be
transferred to OSM.
Secretarial Order No. 3315, issued on October 26 and which is the
subject of this hearing, would consolidate the OSM within the BLM in an
effort to ``integrate the management, oversight, and accountability of
activities associated with mining regulation and abandoned mine land
reclamation, ensure efficiencies in revenue collection and enforcement
responsibilities, and provide independent safety and environmental
oversight of these activities.'' Clearly, by its own terms, this
secretarial order will have significant implications for state
governments who implement regulatory programs under SMCRA. Given that
the states were never informed, much less consulted, about this
``consolidation'', the Secretary's order raises more questions than it
answers for us. Among them are the following:
Why were the states not consulted about this matter since
they are the primary stakeholders under the various organic
laws affected by this consolidation? How and when does Interior
plan to consult with the states and tribes to receive their
input on the consolidation and what it may mean for state/
federal interaction under both SMCRA and the federal land
management laws?
How will the consolidation impact the role of the states
under SMCRA, especially in terms of funding for state Title V
(regulatory grants) and Title IV (AML grants)? How will it
specifically impact the administration of the AML program under
Title IV of SMCRA? Does it reflect a further attempt to
accomplish by Secretarial order what the President has proposed
for the AML program as part of his deficit reduction plan?
How will the consolidation affect the current chain of
command within the Interior Department, especially with regard
to federal oversight of state programs? How could this
consolidation impact the cooperative working relationship that
has generally attended the implementation of SMCRA and FLPMA?
Who will have primary lead responsibility for the new
organization--BLM or OSM? How can a ``consolidation'' result in
the continued viability of two separate agencies, as suggested
by some of the press materials distributed by Interior?
How does Interior intend to reconcile the differing missions
of BLM and OSM under the various organic laws affected by the
consolidation?
How will this consolidation save money and achieve
governmental efficiency, other than the potential for combining
some administration functions? Will the combination of other
functions (inspection, enforcement, oversight) actually result
in the expenditure of more money, especially if the federal
government assumes responsibilities that were formally
entrusted to the states?
Does Interior anticipate that changes will be needed to the
organic acts affected by the consolidation?
What is the legal basis for the consolidation? Has the
Solicitor's Office rendered an opinion on the matter?
BLM's primary mandate for its entire existence has been on
the management of public lands in western states. How can the
agency effectively shift to managing mining operations on state
and private lands in the central and eastern portions of the
country? How will this save money?
Without answers to these most basic of questions, the states are at
a significant disadvantage in commenting on the consolidation. We hope
in the near future to receive answers to these questions and thereafter
to provide more detailed, specific input. We have been told that the
states will be consulted some time after December 1 (the effective date
of the Secretarial Order). However, given recent Departmental decisions
on other mining-related issues, we have serious concerns about the
motivations behind this consolidation. Beginning with the signing of
the June 2009 Memorandum of Understanding between the Department, the
Environmental Protection Agency and the U.S. Army Corps of Engineers
regarding Appalachian surface coal mining operations and extending to
the recent budget and deficit reduction proposals to completely reform
the AML program, the states have been unable to ascertain the reason
and basis for Departmental actions that directly impact the state/
federal relationship under SMCRA. On several occasions we have
requested opportunities to discuss the motivation behind these critical
decisions and actions so that we can better respond to the policies and
rules that have grown out of the MOU--especially the significant
revisions to federal oversight of state programs under SMCRA and OSM's
anticipated proposed rule on stream protection. At every turn, we have
been ignored and our input has been restricted to the formal commenting
process that attends the actions.
Our desire as state partners with OSM and BLM is to work
cooperatively with these agencies, as we have on many occasions in the
past, to accomplish our respective roles and responsibilities under
national environmental and land management laws. However, if we are cut
out of the process from the very outset, it is difficult to fully
engage--especially once decisions, like the consolidation, are a fete
accompli. We are at a loss to understand why the Department, and OSM in
particular, is loathe to bring the states into the early decision-
making process on initiatives that directly impact the state/federal
partnership. We are not just another set of stakeholders under laws
like SMCRA--we are the primary regulatory authorities. Without us, the
laws do not work. We have proven time and again that when we work
cooperatively together as partners, we can accomplish much--and do so
effectively and efficiently.
The consolidation is particularly troublesome in terms of what it
may mean for the operation of several key provisions under SMCRA,
including inspection, enforcement, and the AML program. BLM is not
solely a regulatory agency, like OSM. Even if OSM continues in some
sort of independent role (yet to be articulated), we are uncertain what
the lines of authority will be--especially in the field. The states
have enjoyed and benefited from a fairly good working relationship with
OSM regional and field offices and we are hopeful this can be
maintained. Given the complexities associated with the regulation of
active mining operations, especially in various geographical regions
across the country, a comprehensive understanding of state programs and
the nuances of each is critical. In some respects, it has taken the
better part of 30 years to achieve the working relationship we
currently have with OSM field and regional offices. BLM is not likely
to possess this level of experience or expertise.
With regard to the AML program, we are even more circumspect about
the potential impacts from the consolidation. Already, this program has
been under attack by the Administration, as evidenced by the recent
deficit reduction proposal and the FY 2012 proposed budget. I would
like to submit for the record a copy of a letter that IMCC and the AML
Association recently sent to the Supercommittee regarding the
implications of this proposal for state AML programs. We are concerned
that this consolidation would be a further attempt to implement all or
part of this proposal under the banner of ``government efficiency''. As
we note in our letter, the changes to the AML program being proposed by
the Administration amount to a wholesale revision of Title IV of SMCRA
and those decisions are best made by your Committee and others in
Congress.
We are concerned that the consolidation could also serve as a
mechanism for diluting the AML program under SMCRA, including a
diversion of funding from the Trust Fund for other priorities. Even
though this appears to be precluded by the language of SMCRA, there are
ways in which funding can be diverted along the way, or lost due to
additional bureaucratic complexities that do not exist at the present
time. While BLM has administered a limited hardrock AML program, which
in many ways has been dependent on the states for its effectiveness,
the size and complexity of the AML program under SMCRA dwarfs the BLM
program. Bringing it under the BLM banner, even for administrative
efficiencies, could undermine the overall quality of the program.
Again, we need to know more about what the Department has in mind with
respect to how this program would be incorporated into the BLM before
we can comment on the specifics. There is the potential for combining
and administering the two programs in a way that would preserve the
coal AML program under SMCRA while enhancing BLM's hardrock AML
program, both in the way of administrative efficiencies and funding
allocations. But this will take considerable planning and discussion
and hence the need for expanded consultation with the states and
tribes.
An area of particular concern under the consolidation is the impact
it would have on training and technical assistance. This is one of
OSM's key responsibilities under SMCRA and it has paid significant
dividends over the years in terms of support for the states and tribes.
Given the increasing number of retirements at both the state and
federal levels and the need to train new employees who may have limited
knowledge of SMCRA and its regulatory framework, the OSM training
program is a critical link to effective regulation. And as we move into
more complex technical issues surrounding the implementation of SMCRA,
the assistance OSM provides to the states, particularly through its
Technical Innovation and Professional Services (TIPS) program, is also
of great importance. We would not want to see any of these program
activities eliminated or unduly constrained under the consolidation.
One of the hallmarks of both SMCRA and FLPMA over the years has
been the ability of the states and the federal government to work well
together, especially at the field/state and regional levels. We are
hopeful that this can continue and that as we learn more about the
details of the consolidation, we can work jointly to ascertain where
program and administrative efficiencies can be gained without
undermining the separate and distinct statutory responsibilities under
these two laws. We doubt that this can be accomplished without
maintaining an independent role for OSM that preserves the
congressionally mandated relationship between OSM and the states. Given
our experience with past reorganizations that have led to some Interior
agencies being completely subsumed by others, as occurred with the U.S.
Bureau of Mines, we have serious reservations about the current
process. As a result, we encourage your close oversight of this
reorganization to insure that the purposes, objectives and mandates of
SMCRA and FLPMA are not lost in the shuffle.
One of the stated goals of the consolidation is to save money for
the American taxpayer through administrative and programmatic
efficiencies. We see this as a worthy goal, and one that the states not
only share, but have consistently worked toward in the context of their
own program operations. This is one of the reasons that we have opposed
a recent revision to OSM's directive regarding the use of Ten-Day
Notices (TDNs) in primacy states. Directive INE-35 authorizes the use
of TDNs to communicate alleged defects in state-issued permits,
contrary to the intent of SMCRA. Each time OSM utilizes a TDN in this
fashion to second-guess a state permitting decision, it results in the
considerable expenditure of state resources to respond to the TDN (as
well as federal resources to review the state response). Given that
states already have formal mechanisms in place for the appeal of their
permitting decisions by state courts and administrative bodies, this
federal process results in a duplicative, wasteful expenditure of
valuable state and federal resources.
OSM's oversight directive (REG-8) also results in a duplication of
effort by requiring independent inspections of surface coal mining
operations in primacy states, rather than engaging in joint inspections
with the states. OSM has recently re-assigned at least 18 FTEs to this
effort, resulting in unnecessary expense with little to show in the way
of programmatic benefit. The House Interior Appropriations
Subcommittee, in its report on the FY 2012 budget proposal, recently
chastised OSM for this wasteful spending, noting that: ``The Committee
also rejects the proposal to increase inspections and enhanced Federal
oversight of State regulatory programs. Delegation of the authority to
the States is the cornerstone of the surface mining regulatory program.
The Committee believes the President's proposal to increase Federal
inspections would not only be a redundant activity, but also
duplicative and wasteful spending. The State regulatory programs do not
need enhanced Federal oversight to ensure continued implementation of a
protective regulatory framework.'' If Interior is serious about saving
money, this would be a good place to start.
Finally, the importance of maintaining OSM as an independent agency
cannot be overlooked. At the time that SMCRA was being debated in 1977,
Congress was well aware of the importance of maintaining distinct roles
and responsibilities among and between agencies that had as their
mission the development of mineral resources, as compared to the
protection of the public and the environment from mineral development,
as well as those who mine those resources. FLPMA, SMCRA and the Mine
Safety and Health Act were all passed within about a 12 month period of
time by the 94th and 95th Congresses. The framers of these statutes
were clearly concerned about the separation of the sometimes competing
interests that attended mineral development.
In addressing the creation of OSM under Title II of the Surface
Mining Act, the Senate had this to say: ``The Office will be separate
from any of the Department's existing bureaus or agencies. It is
intended that the Office exercise independent and objective judgment in
implementing the Act. . . . The Act specifically states that there
cannot be transferred to the Office any legal authority which has as
its purpose promoting the development or use of coal or other
minerals.'' (S. Report No. 95-128 at pages 63-64). At about this same
time, the Senate also reported out the Mine Safety and Health Act and
in its report the Senate stated: ``The history of the Interior
Department's enforcement of [the Coal Act and the Metal Act], either by
the Bureau of Mines or by the Mining Enforcement and Safety
Administration (MESA), demonstrated a basic conflict in the missions of
the Department. In past years, the Department has pursued the goal of
maximizing production in the extractive industries, which was not
wholly compatible with the need to interrupt production, which is the
necessary adjunct of the enforcement scheme under the Metal and Coal
Acts. . . . On the other hand, no conflict could exist if the
responsibility for enforcing and administering the mine safety and
health laws was assigned to the Department of Labor, since that
Department has as its sole duty the protection of workers and the
insuring of safe and healthful working conditions.'' (S. Report No. 95-
181 at page 5).
The importance of separating out the respective missions, duties
and roles of OSM and BLM continues today. From the states' perspective,
to ignore the original intent of Congress for establishing these
independent agencies would potentially undermine the carefully crafted
statutory design and unduly upset the balance of powers and authorities
between those agencies. It would also impact the state/federal
relationship envisioned by SMCRA. We believe there are ways that
Interior can accomplish the administrative efficiencies that it desires
without running afoul of the statutory purposes of SMCRA and FLPMA and
compromising the roles of OSM, BLM and the states under those statutes.
We stand ready to work cooperatively with both OSM and BLM to further
discuss the appropriate mechanisms to accomplish this objective.
Thanks again for the opportunity to appear before you today. I
would be happy to answer any questions you may have or to provide
further information.
The Chairman. Thank you very much.
Before you go ahead, Mr. Corra, let me just call on Senator
Barrasso if he wanted to make any introductory comment.
Senator Barrasso. Thank you, Mr. Chairman, I would. I want
to thank you again for inviting John Corra, the Director of the
Wyoming Department of Environmental Quality, to be with us and
to testify here today.
John Corra is a trusted and highly esteemed public servant.
He's also a good friend. We were classmates in something called
Leadership Wyoming about a decade ago.
John was originally appointed as the Director of Wyoming's
DEQ in 2003 by Governor Dave Freudenthal, a Democrat, and he
served during the entire 8 years, the 2 terms, for Governor
Freudenthal.
Subsequently, John was reappointed as the Director by
Wyoming's current Governor, Matt Mead, a Republican. So John is
an individual with vast experience in regulating mineral
development. He's also someone who knows how to strike the
right balance between environmental protection and mineral
production.
Under John's leadership and stewardship, the Wyoming
Department of Environmental Quality has shown how States can be
effective regulators. Frankly, I wish we had more people like
John here in Washington.
John, it's a pleasure to have you here today, and I look
forward to your testimony.
Thank you, Mr. Chairman.
The Chairman. Mr. Corra, you come very well recommended. Go
ahead.
STATEMENT OF JOHN CORRA, DIRECTOR, WYOMING DEPARTMENT OF
ENVIRONMENTAL QUALITY
Mr. Corra. Thank you, Mr. Chairman. Senator Barrasso, very
kind words.
I want to start by thanking the committee for inviting the
State of Wyoming to testify today. I'm also here to represent
the views of the Reclamation Committee of the Western
Interstate Energy Board, which includes Utah, Colorado, New
Mexico and Montana, who, along with Wyoming, produce over half
of the nation's coal supply.
Wyoming is a unique State in that we are the nation's
leading exporter of energy. Mineral development accounts for
about two-thirds of our State's economic well being.
We have outstanding natural-resource values, both in terms
of mineral development and in terms of scenic beauty. Our
challenge, then, is to manage the development and use of these
racehorses in wise ways.
Now, an inextricable part of this challenge is the
relationship with our Federal partners who own 48 percent of
the land surface and 67 percent of the mineral estate in
Wyoming.
Thus, we have a keen interest in the recent announcement by
Secretary Salazar to combine 2 Federal agencies that play a key
role in the development and preservation of the natural
resources in our State.
This consolidation is a significant reorganization effort
that has greater potential for failure than success unless
serious consideration is given to the crucial role that States
play in the accomplishment of the very diverse missions of the
Bureau of Land Management and the Office of Surface Mining.
Consultation with the States is essential to achieve positive
outcomes that meet the goals of Secretary Salazar's recent
order.
We've got a long history working very well with our local
counterparts in both the BLM and the OSM. Our expertise in
wildlife, agriculture and environmental management are critical
to quality decisionmaking on their part. Our relationship with
local management in the Federal Government is professional and
it's collaborative.
Effective mining regulation and reclamation is achieved at
a significant savings to the Federal Government as States
provide nearly all the staff required to administer SMCRA at
coalmining operations, and we provide staff to assist the OSM
to regulate non-coalmining and the management of reclamation of
abandoned mines in the State, both coal and non-coal.
This arrangement has been highly successful. In fact, OSM
agrees, as can be seen in annual OSM evaluations of the State
programs.
OSM's role must be viewed in contrast with our interactions
with the BLM, whose mission is to manage the public lands in a
manner that recognizes the nation's need for domestic
resources.
BLM's statutory mandate under the Federal Land Policy and
Management Act relates to multiple use and sustained yield
through resource management and land planning. They do have
some limited regulatory functions and they collect royalties
and other fees.
Regarding coalmining, their primary role is one of assuring
resource recovery and maximizing revenue. While they conduct
environmental assessments in this process, their role is much
different than a regulatory review of an application for a
permit to mine.
Not the least of our many questions concerning the proposed
merger is how this obvious conflict of interest with the role
of OSM can be reconciled.
Additionally, under FLPMA, the States are not allowed the
opportunity for primacy and are left to negotiate memoranda of
understanding that outline the role we play in managing
minerals.
We have questions about whether the merger can be completed
without changes to the organic acts that govern both agencies.
If this merger is intended to only simplify certain
administrative procedures, we might be less interested in the
outcome.
However, if it is about implementing what we believe to be
poorly thought-out ideas, such as consolidating abandoned mine
land reclamation at the Federal level and taking away fees from
certified States and tribes, we will be in serious and
substantial disagreement.
If the merger is also intended to change the way the States
obtain authority to regulate--for example, from one that is
spelled out clearly in rules to one that is really the best
deal we can negotiate through an MOU--the States will be
severely impacted.
Our concerns are further heightened by the many attempted
unilateral impositions by OSM over the past year or 2. To name
just a few, the expansion of the 10-day notices to apply to
permits that are issued by the States, a nationwide expansion
of a negotiated settlement with other Federal agencies on the
stream protection rule and what appears to be a push to require
States to charge fees to recover the costs associated with
regulatory programs.
We are on record with our concerns over the development of
the environmental impact statement for the stream protection
rule, and many of these concerns are directly related to our
anxiety over how this merger process will proceed.
This includes the fact that the purpose and need for the
stream protection rule was never clearly articulated, nor was
it vetted with the States. The action was so hurried that a
careful consideration of how the rulemaking would interfere
with other Federal and State authorities was totally lacking.
So we really ask what is the vision for the merger? We
would also like to see the business case. No consolidation
should occur until these and other issues affecting the States
have been resolved.
In closing, we understand that there is a need to
streamline the way Federal Government does business and achieve
economies of scale wherever possible. We just simply want to
avoid the law of unintended consequences and any further
burdens and unfunded mandates that might be placed on the
States.
There is great potential for damage to be done to the
states with no rationale presented to date on how we might gain
from this merger.
Again, thank you very much, Mr. Chairman, for the
opportunity to speak today.
[The prepared statement of Mr. Corra follows:]
Prepared Statement of John Corra, Director, Wyoming Department of
Environmental Quality
My name is John Corra. I am the Director of the Wyoming Department
of Environmental Quality. I wish to thank the Committee for inviting
the State of Wyoming to testify at this hearing today. Wyoming coal
mines produced 442 million tons of coal in 2010, over 40% of the
nation's total production. I am also here to present the views of the
Reclamation Committee of the Western Interstate Energy Board, which
includes Utah, Colorado, New Mexico and Montana, who along with Wyoming
are produce over half of the nations coal supply.
Wyoming is a unique state in that we are the nation's leading
exporter of energy, and stand to increase this position as renewable
energy resources such as wind power are developed. We have outstanding
natural resource values, both in terms of mineral development and in
terms of scenic beauty. Our natural resources largely define both the
``why'' and the ``how'' we live in Wyoming. Mineral development
accounts for two thirds of the state's economic well-being. It is
critical that we manage the development and use of these resources in a
way that serves our various interests.
An inextricable part of this challenge is the relationship with our
federal partners, as evidenced by an ownership situation where the
federal government owns 48% of the land surface and 67% of the mineral
estate in Wyoming. We do not control all of the elements of energy
development yet we believe in our inherent right to control our
destiny. Thus we have a keen interest in the recent announcement by
Secretary Salazar to combine two federal agencies that play a key role
in the development and preservation of the natural resources in our
state. This consolidation is a significant reorganization effort that
has greater potential for failure than success unless serious
consideration is given to the crucial role that states play in the
accomplishment of the very diverse missions of the Bureau of Land
Management (BLM) and the Office of Surface Mining (OSM).
Communication, collaboration and consultation with the states are
not only crucial, but are also essential to achieving positive outcomes
that meet Secretary Salazar's goals articulated in his Order. We have a
long history of working very well with our local counterparts in both
the BLM and the OSM. I can't stress that enough. Over the past few
years, and continuing today, the BLM has been updating their Resource
Management Plans and conducting environmental assessments on a number
of large energy development projects. The quality of these assessments
is high, and a direct result of working closely with the state. Our OSM
point of contact serves the state very well while also fulfilling the
mission of the Surface Mining Control and Reclamation Act (SMCRA).
The relationship we have with the OSM personnel who are on the
ground in Wyoming and in other western states is based on the policy
and purposes of SMCRA including the federal responsibility to assist
States in developing and implementing a program that will achieve the
goals and purposes of SMCRA, which are to protect society and the
environment from the adverse effects of surface and underground coal
mining operations. The federal entity retains oversight and the terms
and conditions of the relationship have been well refined over thirty
years. Examples of highly valuable contributions from OSM are the
Technical Information and Professional Services program, training, and
the facilitation of sharing best practices across the nation. The value
of the states and the critical role played by States and Tribes is
acknowledged and highlighted even by OSM. The OSM mission statement
includes the statement that ``Our mission is to carry out the
requirements of the Surface Mining Control and Reclamation Act (SMCRA)
in cooperation with States and Tribes.'' OSM also highlights this
relationship in their Vision Statement: ``In cooperating with State
regulatory authorities, the primary enforcers of SMCRA, and with
Tribes, we will promote a shared commitment to the goals of the Act.''
Of interest are the positive references to the relationship between
States and Tribes as noted prominently on the OSM website. One
reference reads: ``The Bureau, usually referred to simply as the Office
of Surface Mining or OSM, was created in 1977 when Congress enacted the
Surface Mining Control and Reclamation Act. OSM works with State and
Indian Tribes to assure that citizens and the environment are protected
during coal mining and that the land is restored to beneficial use when
mining is finished. OSM and its partners are also responsible for
reclaiming and restoring lands and water degraded by mining operations
before 1977.'' Another reference highlights the successes that have
been achieved: ``Although a small Bureau, OSM has achieved big results
by working closely with those closest to the problem: the States,
Tribes, local groups, the coal industry and communities.'' The States
and Tribes have had the overwhelming share of SMCRA Title IV and Title
V implementation duties for many years and that fact must be central to
any discussion of consolidation. The leadership role played by States
and Tribes in partnership with the OSM has resulted in a very
successful record of implementing and managing mining regulatory
programs associated with both active mining operations and abandoned
mine lands.
OSM's role must be viewed in contrast with our interactions with
the BLM, whose mission is to manage the public lands in a manner that
recognizes the Nation's need for domestic sources of minerals, food,
timber and fiber. BLM's statutory mandate under the Federal Land Policy
and Management Act (FLPMA) relates to multiple use and sustained yield
through resource management and land planning. They have some limited
regulatory functions and they collect royalties and other fees.
Regarding coal mining, their primary role is one of assuring resource
recovery and maximizing revenue. While they conduct environmental
assessments in this process, their role is much different than the
regulatory review of an application for a permit to mine. Not the least
of our many questions concerning the proposed merger is how this
obvious conflict of interest with the role of OSM can be reconciled.
Additionally, under FLPMA the states are not allowed the opportunity
for ``primacy'', and are left to negotiate Memoranda of Understanding
(MOU) that outline the role we play in managing minerals in Wyoming. We
regulate the mining and reclamation of non-coal minerals while the BLM
handles the mineral claims and royalties. We also provide the
management and technical assistance necessary for BLM to conduct its
non-coal abandoned mine reclamation efforts. Another question is under
which model, that of an MOU or that of a primacy arrangement would best
ensure that the intent of SMCRA is preserved.
The current organization model appears to serve this purpose and
avoids the types of conflict of interest issues that have been raised
over the Deepwater Horizon oil spill in the Gulf of Mexico.\1\ While it
is true that OSM collects fees, these are unrelated to both mine
permitting and the sale of coal leases. If this merger was intended to
simply consolidate the collection of fees and royalties, we might be
less interested in the outcome. If it is about implementing what we
believe to be poorly thought out ideas such as consolidating Abandoned
Mine Land reclamation at the federal level and taking away fees from
certified states and tribes, we would be speaking out in more
affirmative ways. And, if the merger is also intended to change the way
the states obtain authority to regulate, i.e. from one that is spelled
out clearly in rules to one that is the best deal we can negotiate
through an MOU, the states are severely impacted by the merger. Our
concerns are further heightened by the many attempted unilateral
impositions by OSM over the past year or two. To name just a few: the
expanded use of ``Ten Day Notices'' to apply to permits issued by
States; the nation-wide expansion of a negotiated settlement with other
federal agencies on a stream protection rule; and what appears to be a
push to require states to charge fees to recover the costs associated
with their regulatory programs because OSM wants to reduce federal
funding for the administration of Title V of SMCRA.
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\1\ Interestingly, in a recent description of the reorganization of
the former Minerals Management Service, pursuant to which Interior has
created three independent entities to better carry out the three
missions of MMS, Interior stated that: ``In place of the former MMS, we
are creating three strong, independent agencies with clearly defined
roles and missions. MMS--with its conflicting missions of promoting
resource development, enforcing safety regulations, and maximizing
revenues from offshore operations and lack of resources--could not keep
pace with the challenges of overseeing industry operating in U.S.
waters. The reorganization of the former MMS is designed to remove
those conflicts by clarifying and separating missions across three
agencies and providing each of the new agencies with clear missions and
additional resources necessary to fulfill those missions.'' We assert
that this is exactly the type of thinking and analysis that attended
the creation of OSM in 1977 and that it continues to hold true today.
---------------------------------------------------------------------------
The States are thankful for the existence of very clear legal
rights spelled out in SMCRA. While we have questions about whether the
merger can be completed without changes to the organic acts that govern
both the OSM and the BLM, we are clearly the ``stakeholder'' with the
most to lose. In this regard, we note that President Clinton's
Executive Order No. 13132 on Federalism, in referring to legislation,
legislative comments or proposed legislation, and other policy
statements or actions that have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government requires consultation with the States
early in the process. It also requires a federalism impact statement be
provided to the Office of Management and Budget consisting of a
description of the extent of the agency's prior consultation with the
States, a summary of the nature of State concerns and the extent to
which those concerns have been met. Will this mandate be honored in a
meaningful way?
We also have tremendous expertise and experience that would inform
the merger process, but have serious concerns about whether the OSM and
BLM will take our ideas and input into consideration. We are on record
with our concerns over the development of the Environmental Impact
Statement (EIS) for the stream protection rule, but I must repeat the
issues because they are directly related to our anxiety over how this
merger process will proceed.
The purpose and need for the SPR was never clearly
articulated nor was it vetted with the states.
The process for gathering public input was flawed, as
witnessed in Wyoming where the public meeting was held the
night before the comment period ended, and the public was not
allowed to speak.
Consultation with the states consisted of sending voluminous
sections of the EIS while allowing the states only days to
review and comment. Not once did the consultant meet with us to
seek our input and understand the differences between the East
and West.
Most importantly, the action was so hurried that careful
consideration of how the rule making would interfere with other
federal and state authorities was totally lacking.
We understand that there is a need to streamline the way the
federal government does business, and achieve economies of scale
wherever possible. A recent Memorandum of Agreement between the BLM and
EPA regarding air impacts analysis purports to do this, and is an
example of how the affected states were ignored until the negotiations
were final.
We simply want to avoid the law of unintended consequences and any
further burdens and unfunded mandates being placed on our states. It is
unfortunate that the order to consolidate the OSM and BLM has been
issued without a thorough vetting with the affected states prior to any
final decisions. In addition to the questions posed above, we also have
the following concerns:
How will the consolidation affect the existing productive
working relationship between OSM field personnel and state
program personnel?
Will the consolidation affect the allocation of funds for
state coal mine regulatory programs?
Will the consolidation affect the allocation of funds to
state abandoned mine land programs?
Will the consolidation change the oversight of state
regulatory and AML programs?
Are there better ways to improve government operations than
shuffling boxes on the Interior Department's organization
chart? For example, could actions be taken to enable the BLM to
benefit from the OSM's high successful TIPS program and
technology transfer programs with states?
How much money could be saved by reducing waste at the OSM
caused by a management decision to turn regional or local
issues (e.g., mountaintop mining and revised stream protection
rules) into national issues which are not germane to most parts
of the country?
How will the inevitable change in culture that follows a
consolidation of agencies with maximizing functions) affect
western state regulatory programs? The culture of the OSM out
West is for a single regional field office, overseeing several
states whereas the BLM culture is one where each state has not
only a state office but also many regional and local offices.
The hierarchical differences alone warrant a close look at how
work is done in each agency.
Would a consolidation affect existing cooperative agreements
under which states regulate coal mining on federal lands? Would
a consolidation affect other agreements between western states
and DOI, such as agreements on the regulation of non-coal
mining on federal lands?
Where will the ``savings'' from the consolidation be
realized?
No consolidation should occur until these and other issues
affecting states have been resolved through robust consultations
between the Department of Interior (DOI) and Western states.
In closing, OSM has stated the hope that we will offer constructive
ideas. We look forward to the opportunity and hope it is not a rehash
of our recent experience. Perhaps the consolidation process ultimately
chosen by DOI will be guided by well known key steps to transforming
organizations. These are well documented, but I cite here those
presented by Mr. John P. Kotter in his 1995 Harvard Business review
article, Why Transformation Efforts Fail and his 1996 book, Leading
Change. Essentially these are establishing a sense of urgency, forming
a powerful coalition, creating a vision, communicating the vision,
empowering others to act on the vision, planning for and creating short
term wins, consolidating improvements and institutionalizing the new
approaches.
We ask: What is the vision for this merger? What is the business
case? And lastly, who is part of the guiding coalition? There is great
potential for damage to be done to the states with no rationale
presented to date on how we might gain from the merger. In one sense,
the two agencies are already ``merged'' within the DOI. We would be
greatly surprised if there were not already targeted areas for
improvement. We ask that you urge the Secretary to immediately engage
the states in his planning process.
The Chairman. Thank you very much.
Mr. McGinley, go right ahead.
STATEMENT OF PATRICK C. MCGINLEY, PROFESSOR, WEST VIRGINIA
UNIVERSITY COLLEGE OF LAW, MORGANTOWN, WV
Mr. McGinley. Thank you, Chairman Bingaman, Senator
Murkowski, members of the committee, thank you for inviting me
to participate in this hearing.
Today, I have the privilege of appearing here to speak on
behalf of coalfield citizens who were surprised--indeed,
shocked--by the Secretary's proposal to bury the OSM within the
huge Bureau of Land Management bureaucracy.
I come here representing more than 30 groups, most of them
grassroots organizations scattered throughout the coalfields.
They include--I can't list them all--the Citizens Coal Council,
the Foundation for Pennsylvania Watersheds, the Waterkeeper
Alliance, West Virginia Highlands Conservancy, the National
Wildlife Federation, the Environmental Integrity Project, the
Powder River Basin Resource Council and the Cook Inlet Keeper.
In the short time I have available, I'm going to truncate
my remarks and summarize the objections to the Secretary's
order and touch on just a few points that are elaborated on in
my written remarks.
I also want to address a few of the things that have been
said here today in the hearing.
Suffice it to say, and I think the committee, in asking its
questions, the responses have focused on the fundamental
problem with this order, which is that it is an attempt by the
Secretary, through administrative action, to change the clear
mandate of the organic statute, the Surface Mining Control and
Reclamation Act of 1977. It is ultra vires. It raises serious
separation-of-powers issues.
Senator Risch, you alluded to that. I think that's really
the core of the legislative history.
Senator Bingaman, as you indicated, and Senator Murkowski,
it is clear the integration or the comingling or the merger of
OSM with BLM, with BLM's resource production and coal-leasing
component is certainly problematic, given the clear legislative
history in which the Senate report said that this office will
be separate from any of the departments, existing bureaus or
agencies. What could be more clear than that?
I'll also briefly allude to the lessons learned with regard
to the Minerals Management Service, also been mentioned briefly
here.
In May 2010, Secretary Salazar said the Minerals Management
Service has 3 distinct and conflicting missions that must be
divided for the benefit of effective enforcement, energy
development and revenue collection.
While the Secretary found it imperative to divide MMS,
because of its conflicting responsibilities, Order 3315 tells
us that consolidating OSM with a coal-leasing and royalty-
collection agency will ``ensure efficiencies and revenue
collection and enforcement.'' The contradiction is obvious and
inexplicable.
The Secretary's order was conceived in a vacuum. That's
clear from the questions and the responses the committee has
heard today. I would point to some of the answers that
Secretary Hayes gave:
We are going to require careful analysis in planning. We
believe there are cost savings. BLM has substantial interest in
east of the Mississippi.
If you look at the BLM website, you will see no reference
to that.
We want to explore putting BLM duties within OSM.
There may well be synergies, but no study? No analysis of
cost savings was done. It defies explanation how a move of this
sort, effecting stakeholders, effecting an industry that
produces coal that powers--provides 50 percent of the power in
the United States, that no thought was given. All of the study
and analysis, apparently, will occur between--or is beginning
to occur between now and March 1.
Finally, I noticed in Secretary Hayes' promise that DOI
will, going forward, consult with Congress and with the
industry. I note the absence of any reference to coalfield
citizens, and, indeed, that is historically a problem with the
Department of Interior and the Office of Secretary. This
particular move to merge OSM with BLM is really beyond any
point in terms of marginalization of OSM that has occurred in
the past.
We believe that the Secretary's order represents a failure
to recognize and appreciate the mission Congress designed for
OSM in America's coalfield communities.
While we may all have differences at this table and in
Congress with regard to the performance of OSM's
responsibilities, it is clear from the long history that led up
through 2 Presidential vetoes to the enactment of the 1977 act
that the coalfield citizens who are coalminers, families of
coalfield communities, they were a primary focus, as well as
ensuring the Nation's coal production.
A message the Congress, the 95th Congress sent in the
enactment of the 1977 act appears not to have sunk in at the
secretarial level. No communications. No consultation, and, as
you notice, the rationalization for the consolidation of OSM
into the Bureau of Land Management is justified totally on
financial grounds, with no consideration of the impact of this
merger on coalfield citizens, both in the east and in the west.
Perhaps at the highest levels of the Department of the
Interior, the controversy triggered by this ill-considered
administrative action will give rise to a new understanding and
appreciation of OSM's mission and a renewed respect for
coalfield citizens.
The Secretary should withdraw Order 3315.
I would be glad to answer any questions or provide
additional information that may be helpful to the committee.
Thank you very much.
[The prepared statement of Mr. McGinley follows:]
Prepared Statement of Patrick C. McGinley, Professor, West Virginia
University College of Law, Morgantown, WV
Chairman Bingaman, Senator Murkowski, and members of the Committee,
thank you for inviting me to participate in this hearing on the
Secretary of the Interior's Order No. 3315 to Consolidate and Establish
the Office of Surface Mining Reclamation and Enforcement within the
Bureau of Land Management.
Since 1975, I have been a member of the West Virginia University
College of Law faculty where I am presently the Judge Charles H. Haden
II Professor of Law. Prior to this, I served as a Special Assistant
Attorney General with Pennsylvania's Environmental Strike Force where I
enforced laws regulating coal mining and mine safety prior to enactment
of SMCRA.
I grew up in the Western Pennsylvania coalfields as the grandson of
a coal miner who worked in West Virginia and Alabama coal mines a
century ago. My mother was born in Piper, a coal company town in the
Cahaba coalfield of Bibb County, Alabama. From the time I joined the
WVU faculty until the present, I have represented coalfield families
and organizations in matters relating to SMCRA. I was honored to have
served on then-Governor Manchin's Independent Investigation teams that
reported on the Sago and Upper Big Branch mine disasters.
Today, I have the privilege of appearing before the Committee to
speak on behalf of coalfield citizens who were surprised and shocked by
the Secretary's proposal to bury the Office of Surface Mining (``OSM'')
within the behemoth bureaucracy of the Bureau of Land Management
(``BLM'').\1\ Their opposition to Order No. 3315 is based upon the
following:
---------------------------------------------------------------------------
\1\ See Appendix ``A'' for list of those represented.
Order No. 3315 violates SMCRA and contravenes Congress's
carefully crafted structure for regulating the adverse impacts
of surface and underground coal mining; it also conflicts with
the Department's long-standing interpretation of OSM's
relationship with the Office of the Secretary;
The Secretary's action is precluded by the specific language
of the statute barring the Secretary from co-mingling employees
of any federal agency that ``promotes the development or use of
coal'' with OSM--a prohibition that clearly applies to the BLM;
The Secretary's Order was conceived in a vacuum with no
prior notice or consultation with Congress, the coal industry
or coalfield citizens; rather than saving money and making both
agencies more efficient, the Order would create additional
costs and inefficiencies as well administrative chaos;
Underlying Order No. 3315 is the Office of the Secretary's
profound miscomprehension of the role Congress designed for the
Secretary and OSM within SMCRA's structure.
secretarial order no. 3315 violates the letter and spirit of smcra
Congress carefully designed SMCRA to insure OSM would act as an
independent entity within the Department of the Interior under the
direct supervision of the Secretary. To accomplish this purpose, SMCRA
Sec. 201 (b), 30 U.S.C. Sec. 1211(b) provides:
The Office shall have a Director who shall be appointed by
the President, by and with the advice and consent of the
Senate, . . . The Director shall have the responsibilities
provided under subsection (c) of this section and those duties
and responsibilities relating to the functions of the Office
which the Secretary may assign, consistent with this Act.
SMCRA subsection Sec. 201 (c), 30 U.S.C. Sec. 1211(c) mandates
that:
The Secretary, acting through the Office, shall
(1) administer the programs for controlling surface coal
mining operations which are required by this Act; review and
approve or disapprove State programs for controlling surface
coal mining operations and reclaiming abandoned mined lands;
[and] make those investigations and inspections necessary to
insure compliance with this Act[ .] (emphasis added).
The legislative history of SMCRA explicitly describes Congress's
purpose in creating and placing OSM in the Department of the Interior:
To insure administration of the program by an independent
agency with neither a resource development (the promotion of
mining, marketing, or use of minerals) or resource preservation
(pollution control, wilderness, or wildlife management) bias or
mission, this title establishes the Office of Reclamation and
Enforcement in the Department of the Interior. This Office will
be separate from any of the Department's existing bureaus or
agencies. It is intended that the Office exercise independent
judgment in implementing the Act.\2\ (emphasis added).
---------------------------------------------------------------------------
\2\ See COMMITTEE ON ENERGY AND NATURAL RESOURCES; SENATE REPORT
NO. 95-128; 95TH CONGRESS 1st Session; S. 7, at 63-64. (emphasis
added)(Hereafter ``Senate Report 95-128''). See also, H.R. CONF. REP.
95-493, H.R. Conf. Rep. No. 493, 95TH Cong., 1ST Sess. 1977, 1977
U.S.C.C.A.N. 728, at----, 1977 WL 16021 (Leg.Hist.) (Senate and House
Bills substantially similar).
Thus, Congress mandated that the Secretary act through OSM in
administering and enforcing SMCRA. Then Secretary Andrus recognized
this direct relationship between the Secretary and an OSM exercising
independent judgment when the permanent regulatory program regulations
were promulgated in 1979.\3\ Importantly, every subsequent Secretary of
the Interior for more than three decades through both Republican and
Democratic administrations has accepted this interpretation of SMCRA
without question. Order No. 3315 is clearly contrary to, and conflicts
with, the Department of Interior's long-standing interpretation of the
Act.
---------------------------------------------------------------------------
\3\ See 44 F.R. 15313 Mar. 13, 1979 and 44 F.R. 49684 (Aug. 24,
1979), 30 C.F.R Sec. 700.1--Sec. 700.4.
---------------------------------------------------------------------------
An administrative agency may be authorized to change its original
interpretation of ambiguous provisions of an organic statute, but it
cannot amend the statute by administrative fiat. Nor may an agency
camouflage a major policy decision under the guise of making minor
adjustments of personnel and assignments within an agency.\4\ In this
regard, it must be noted that the Secretary's proposal to restructure
SMCRA's abandoned mine lands (AML) program and fee collection system
has major policy implications. The 2006 AML program reauthorization by
Congress was carefully crafted and should not and cannot be altered
through a Secretarial Order that is both inappropriate and unlawful.
---------------------------------------------------------------------------
\4\ See 5 U.S.C. Sec. 553 (a)(2) (Excepted from the Administrative
procedure Act's informal rulemaking requirements are ``matter[s]
relating to agency management or personnel or to public property,
loans, grants, benefits, or contracts'').
---------------------------------------------------------------------------
Secretarial Order No.3315 would alter the clearly delineated
unambiguous long-standing relationship of the Secretary to OSM and
impact statutorily-mandated functions without the express grant of such
authority by Congress. The Secretary may not restructure SMCRA by such
an order and his attempt to do so is ultra vires--that is, beyond the
constitutional and executive powers of the Secretary.
COMINGLING EMPLOYEES OF OSM WITH THOSE OF AGENCIES THAT PROMOTE
DEVELOPMENT OR USE OF COAL IS EXPLICITLY PROHIBITED BY SMCRA
The Secretary's action in seeking to ``integrate'' OSM into BLM is
precluded by the specific language of the SMCRA, which bars co-mingling
employees of OSM with those of any federal agency that ``promotes the
development or use of coal'' with OSM. Section 201 of SMCRA created OSM
and assigned its responsibility. Congress intended to provide some
flexibility in staffing OSM and utilizing, where appropriate, the
skills and expertise of employees of other federal agencies:
The Office shall have a Director who shall be appointed by
the President, by and with the advice and consent of the
Senate, . . . The Director shall have the responsibilities
provided under subsection (c) of this section and those duties
and responsibilities relating to the functions of the Office
which the Secretary may assign, consistent with this Act . . .
The Office may use, on a reimbursable basis when appropriate,
employees of the Department and other Federal agencies to
administer the provisions of this Act, providing that no legal
authority, program, or function in any Federal agency which has
as its purpose promoting the development or use of coal or
other mineral resources . . . shall be transferred to the
Office. (emphasis added).
The legislative history of SMCRA explains that ``[t]he Act
specifically states that there cannot be transferred to the office any
legal authority which has as its purpose promoting the development or
use of coal . . .''\5\ As noted above, Senate Report 95-128 made it
very clear that SMCRA was not to be administered by a resource
development agency whose duties included either ``the promotion of
mining, marketing, or use of minerals'' or ``a resource preservation
(pollution control, wilderness, or wildlife management) . . .
mission.'' BLM is both a resource development agency and resource
preservation agency.\6\ It is odd, indeed, that the prohibition
contained in Sec. 201 (b) and the legislative history was ignored when
Secretarial Order No. 3315 was issued.
---------------------------------------------------------------------------
\5\ Senate Report 95-128 at 64.
\6\ The scope of BLM's authority is described by the agency as
managing ``public land resources for . . . energy development,
livestock grazing, recreation, and timber harvesting, while protecting
a wide array of natural, cultural, and historical resources . . .
include[ing] 221 Wilderness Areas totaling 8.7 million acres, as well
as 16 National Monuments comprising 4.8 million acres.'' http://
www.blm.gov/wo/st/en/info/About_BLM.html
---------------------------------------------------------------------------
Curiously, the Office of the Secretary has quickly forgotten the
lessons of the combination of enforcement and mineral development in
the Minerals Management Service (``MMS''). In May 2010, Secretary
Salazar properly recognized that combining mineral marketing with
environmental protection and enforcement responsibilities created a
destructive conflict within the MMS:
The Minerals Management Service has three distinct and
conflicting missions that--for the benefit of effective
enforcement, energy development, and revenue collection--must
be divided,'' said Secretary Salazar. ``The reorganization I am
ordering today is the next step in our reform agenda and will
enable us to carry out these three separate and equally-
important missions with greater effectiveness and transparency.
These reforms will strengthen oversight of offshore energy
operations, improve the structure for revenue and royalty
collections on behalf of the American people, and help our
country build the clean energy future we need.\7\
---------------------------------------------------------------------------
\7\ Interior Dept. Press Release, Salazar Divides MMS's Three
Conflicting Missions, (May 15, 2010), http://www.doi.gov/news/
pressreleases/Salazar-Divides-MMSs-Three-Conflicting-Missions.cfm
The combination of conflicting missions of the MMS was intolerable.
The Secretary found that separation of those conflicting
responsibilities into separate and independent administrative entities
will enable the Department to carry out its mission with ``greater
effectiveness and transparency,'' and the reforms will ``strengthen
oversight'' and improve ``revenue and royalty collections.''
Contradicting the analysis leading to the separation of conflicting
functions in the MMS, Order No. 3315 tells us that doing the opposite--
``consolidating''--OSM within BLM--will ``integrate the management,
oversight, and accountability of activities associated with mining
regulation . . . ensure efficiencies in revenue collection and
enforcement responsibilities and provide independent safety and
environmental oversight of these activities.''\8\ These contradictory
messages and the underlying logic of DOI decision-makers are difficult
to decipher.
---------------------------------------------------------------------------
\8\ Section 1, Purpose, Secretarial Order No. 3315 (October 26,
2011).
---------------------------------------------------------------------------
What is clear, however, is that the decision to combine the mission
of OSM within BLM violates both the letter and the spirit of SMCRA.
Moreover, Order No. 3315 pursues a policy that the Secretary himself
rejected as unworkable in the context of the Mineral Management
Service. While OSM has had its strong critics among the constituency I
represent, and among state programs and the coal industry, OSM has
never experienced a scandal of the magnitude of what occurred at the
MMS. Moreover, the nation's coal production has increased and
environmental protection as well as mine land reclamation have improved
significantly in the thirty plus years of OSM's existence. Coalfield
citizens I represent are at a loss to understand the motivations
underlying Secretarial Order No. 3315.
In supporting the Secretary's order, a BLM news release emphasized
that its mission includes managing ``over 245 million acres . . .
primarily located in 12 Western states, including Alaska . . . with a
budget of about $1 billion'' and that it ``administers 700 million
acres of sub-surface mineral estate throughout the nation.'' Moreover,
the release stated, ``BLM's multiple-use mission is to sustain the
health and productivity of the public lands for the use and enjoyment
of present and future generations . . . by managing such activities as
outdoor recreation, livestock grazing, mineral development, and energy
production, and by conserving natural, historical, cultural, and other
resources on public lands.''\9\
---------------------------------------------------------------------------
\9\ BLM News Release, Interior to Examine Integration of Interior's
Mining Regulation and Mine Reclamation Programs (October 26, 2011).
---------------------------------------------------------------------------
In contrast, since its creation, OSM's focus has been exclusively
on coal mining regulation, reclamation of coal mines and enforcement of
SMCRA. The experience and expertise of the giant agency and the small,
specialized agency are complimentary only at the extreme margins.
Surely, the merger of an agency with 525 employees into BLM's huge
10,000-employee workforce with its billion-dollar-plus budget would
bring scant efficiencies and economies of scale.
Troubling as well is a message given in support of the proposed
merger: An OSM official reportedly told a House of Representatives
Committee last week that ``[f]or the past decade, the agency has
consistently been underfunded . . . consolidation could bolster our
ability to get the resources we need to maintain oversight''.\10\
---------------------------------------------------------------------------
\10\ Platts Energy Week, Lawmakers question OSM merger impact on
coal (Nov. 2011), http://www.plattsenergyweektv.com/
story.aspx?storyid=173876&catid=293 Given the importance of coal mining
to our nation, the strict but fair regulation of mining and
reclamation, and the protection of the nation's waters should compel
the Secretary of Interior to personally make a powerful case for fully
funding OSM so that it may ``maintain needed oversight.'' Burying the
agency in BLM and hoping that the move ``could bolster our ability to
get the resources we need to maintain oversight'' would seem an odd way
for the Secretary to administer SMCRA's mandate to protect coalfield
communities and their environments.
---------------------------------------------------------------------------
Experience suggests that the proposed consolidation is likely to
produce administrative chaos and bureaucratic turf wars as an agency
with expertise and experience in regulating coal mining is buried deep
within an agency whose multiple missions include the promotion of
mining, marketing, of minerals and resource preservation. Common sense
facilitates sound decision-making. Common sense suggests ``if it ain't
broke--don't fix it.'' Secretary Salazar should withdraw the unlawful,
ill-conceived and illogical Order 3315.
A SUGGESTION FOR A BROADER APPLICATION OF SMCRA'S BAN ON COMINGLING
RESOURCE PRODUCTION AND ENFORCEMENT WITHIN ONE AGENCY
A statement must also be made relating to Senator Murkowski's
excellent observations about the integrity of the Interior Department's
regulatory programs. Occasionally, irresponsible coal operators cause
catastrophic death in our coal mines; similarly irresponsible companies
have caused environmental devastation in the diverse coalfield
communities across the nation where coal is mined. Like negligent
lapses in mine safety that kill miners one by one, the adverse impacts
of irresponsible coal mine operations play out almost unnoticed by the
larger world and the media: one damaged coalfield community; one lost
forest; one polluted stream; and one polluted or destroyed water
supply.
A poignant article in the Charleston Gazette newspaper explained
the depth of the loss of coal miners in ``accidents'' that claim one or
two coal miners at a time.\11\ Each coal miner's death, the article
found, was caused by a violation of mine safety law and rules.
Similarly, a steady, widespread, degradation of Appalachian communities
occurs as a result of mining operations that violate the law.
---------------------------------------------------------------------------
\11\ Ken Ward Jr., Beyond Sago: One by One Disasters make
headlines, but most miners killed on the job die alone, THE CHARLESTON
GAZETTE (Nov. 5, 2006). http://wvgazette.com/News/BeyondSago/
200611050006
---------------------------------------------------------------------------
Coalfield citizens are left to feel that they are unimportant to
this Administration and that they are not entitled to the same
consideration that underlies the Secretary's correct decision to
isolate offshore oil and gas regulation from the DOI's oil development
activities. Coalfield citizens are astonished that the Secretary and
the President believe that inserting coal mining regulatory enforcement
inside the very Interior agency that promotes and profits from coal
development is a prudent idea. They wonder how BLM can decide to lease
a tract of coal on public land and then expect the ``integrated'' OSM
permitting staff to feel independent enough to deny a permit if the
mining is found to violate SMCRA and cause adverse externalities.
If the Administration is serious about preserving and enhancing the
integrity of the Interior Department's environmental enforcement
programs, a very different approach would emerge. OSM would be joined,
in reporting directly to the Secretary, not just by the offshore oil
and gas regulatory agency, but also by a new agency, the Office of
Public Lands Protection and Enforcement. BLM could continue its mission
to promote heavily subsidized mining, timber, and oil and gas
production from public lands and turn designated public lands into
sites for private developers of energy facilities. But the BLM staff
regulating those industries, charged with enforcing the laws and
regulations and supposedly protecting public lands, would, like the
regulators of offshore energy development and the regulators of coal
mining environmental impacts, be in a separate regulatory agency
independent of BLM's resource development function.
Not only is there no public interest, economic or efficiency
justification for the Administration's proposal to place an independent
regulatory agency inside the Interior Department's resource development
agency, the Administration's plan to do this indicates that the only
way to truly safeguard the integrity of environmental regulation within
the Interior Department is to take BLM's regulators and enforcers and
place them in an independent public lands protection agency, as was
appropriately done in the case of the Mineral Management Service.
LACK OF TRANSPARENCY ERODES CONFIDENCE IN OSM'S REGULATORY MISSION
The Secretary's Order appears to have been conceived in a vacuum
with no prior notice or consultation with Congress, the coal industry,
coalfield citizens or the sovereign Native American nations. This
failure to consult, discuss and explore the implications of a major
decision altering the statutory structure of enforcement within the
Department of the Interior is inexplicable given the President Obama's
endorsement of transparency in government.
Apparently, someone at the Department of the Interior decided that
burying OSM within the enormous BLM bureaucracy would, as mentioned
earlier, ``integrate the management, oversight, and accountability of
activities associated with mining regulation and abandoned mine
reclamation; ensure efficiencies in revenue collection and enforcement
responsibilities; and provide independent safety and environmental
oversight of these activities.''
Ordinarily the impact of such an important decision as evinced by
Secretarial Order 3315 would be fully evaluated and all those with an
interest in the success of the agency's mission would be consulted in
advance. There is no evidence, however, that the DOI studied or
otherwise analyzed the impact of merging the smaller agency into the
huge entity. The purported savings and efficiencies that would accrue
from the implementation of Secretarial Order 3315 are based on pure
conjecture. Statements by BLM and OSM spokesmen confirm this.
BLM Director Robert Abbey's is quoted in a BLM news release: ``OSM
and the BLM have many complementary responsibilities with respect to
mining and the reclamation of mine lands, and it makes sense to explore
how we can bring the best out of the two bureaus as they carry out
their statutory responsibilities.'' (emphasis added). Interior
spokesman Chris Holmes, told a media interviewer that ``it's too early
in this process to identify precisely where those savings will come
from and how much we can save . . .'' (emphasis added).
In short, these statements confirm that ``exploring'' how to
integrate OSM into BLM is something that will be done between now and
March 1, 2012. How and when DOI will determine if there are, in fact,
``savings'' that will accrue is not apparent; plainly, such a
calculation was not performed by DOI in advance of the issuance of
Order 3315. It is not surprising that those responsible for the
issuance of the Order failed to consult with OSM's stakeholders in
advance.
Looking and listening can avoid a train wreck. That simple logic
apparently was not considered in DOI's rush to bury OSM inside BLM. The
coalfield citizens I represent before you hope that this Committee will
inquire and identify how and why such a decision was made without
serious study or analysis of its impact on those affected.
THE SECRETARY FAILS TO COMPREHEND OSM'S ROLE IN PROTECTING COALFIELD
COMMUNITIES
Finally, but importantly, those whom I represent today believe that
Secretarial Order No. 3315 represents a profound failure to comprehend
the role Congress designed for the Secretary and OSM, and the
importance of OSM to coalfield communities and to the Nation. At the
very heart of Congress' enactment of the SMCRA and of OSM's mission, is
an overarching concern for the people of America's coalfield
communities and for the environment that sustains them.
In 1976, coal supplied eighteen percent of America's electricity.
Today, coal powers fifty percent of our electricity and in significant
degree because of SMCRA and OSM's supervision of state coal regulatory
programs. Recognizing this fact is not to suggest that SMCRA is
currently being administered and enforced as intended. As with regard
to coal mine safety, much progress has been made--but much more can and
should be done to protect the environment of the coalfields and the
people who live there. But that is an issue for another day. Suffice it
to point out that many in this Congress have argued that coal is
crucial to America's energy future. I submit that robust and fair
enforcement of SMCRA is equally crucial; burying OSM in BLM would
impede accomplishment of both goals.
The 95th Congress understood this simple point when it enacted the
SMCRA. The Act contains more public participation rights than any other
federal environmental regulatory statute--for a reason. That Congress
understood that a key to public acceptance of coal mining is to prevent
externalization of harm to families, communities and the environment
caused by unlawful coal mining activities. The legislative history of
SMCRA is replete with this message as is the statute itself.
Historically Secretaries of the Interior have treated OSM as a poor
stepchild of the Department--an agency with a narrow focus on only one
mineral and on enforcement rather than federal public land management.
The agency has long been significantly underfunded, as Director
Pizarchik recently conceded. However, the burial of an underfunded
half-alive OSM in the behemoth bureaucracy of BLM is beyond any prior
marginalization of the agency.
Many coalfield citizens who understand the role of OSM under SMCRA
feel that Secretary Salazar's issuance of Order 3315 shows a
fundamental disrespect for them and their communities. I suspect,
however, that the decision to issue this Order was grounded in a
failure to recognize and appreciate the mission of the long beleaguered
OSM.
Let me briefly explain. Over the years since enactment of SMCRA
those whom I represent have at times been very critical of regulatory
and policy decisions made by OSM political appointees. Nevertheless,
the field personnel and technical experts within OSM have frequently
taken citizen complaints and concerns seriously. These front-line OSM
inspectors, geologists and mining engineers have been crucial in OSM's
efforts to implement SMCRA's mandate to protect those who live over and
near coal mines from environmental and socio-economic injuries that
accompany violations of SMCRA.
There are numerous examples of OSM's field inspectors and technical
experts using their expertise to prevent mining operations that would
have harmed coalfield communities and families. These professional OSM
staffers also have, in some situations, been permitted to use their
expertise to develop facts that allow coalfield families who have
suffered injuries to have their rights vindicated through SMCRA-created
administrative or judicial remedies. These efforts of front-line men
and women of OSM are accomplished using their skills, expertise and
savvy garnered from years of working cooperatively with coal operators
and state program regulators.
Sadly, one can examine Secretarial Order 3315, DOI news releases
and the statements of agency officials without finding a reference to
the OSM mission regarding coalfield communities. Whether grounded in
disrespect of coalfield citizens or ignorance of OSM's mission and its'
impact in the coalfields, Order No. 3315 dishonors the letter and
spirit of the SMCRA and should be withdrawn. Perhaps, at the highest
levels of the Department of the Interior the controversy triggered by
this ill-considered and cavalier administrative decision will give rise
to a new understanding and appreciation of OSM's mission--and renewed
respect for coalfield citizens.
I would be glad to answer any questions and to provide any
additional information that may be helpful to the Committee. Thank you.
APPENDIX A
The following organizations are represented by Professor Patrick C.
McGinley's testimony at the Senate Committee on Energy and Natural
Resources Hearing on November 17, 2011 regarding the Secretary of the
Interior's Order: 3315.
Citizens Coal Council--Bridgeville, PA
8th Day Center for Justice--Chicago, IL
Appalachian Citizens' Law Center--Whitesburg, KY
Black Mesa Water Coalition--Flagstaff, AZ
Black Warrior Riverkeeper--Birmingham, AL
Buffalo Creek Watershed Association--Claysville, PA
Cahaba Riverkeeper--Birmingham, AL
Center for Coalfield Justice--Washington, PA
Citizens Against Longwall Mining--Hillsboro, IL
Citizens Against Ruining the Environment--Lockport, IL
Citizens for Pennsylvania's Future (PennFuture)--Harrisburg, PA
Citizens Organizing Project--Knox County, IL
Coal River Mountain Watch--Whitesville, WV
Cook Inletkeeper--Homer, AK
Delaware Riverkeeper Network--Bristol, PA
Environmental Integrity Project--Washington, DC
Faith in Place and the Illinois Interfaith Power and Light Campaign--
Chicago, IL
Friends of Bell Smith Springs--Stonefort, IL
Friends of Hurricane Creek--Tuscaloosa, AL
Friends of the Earth--Washington, DC
GASP--Birmingham, AL
Greene County Watershed Alliance--Greene County, PA
Kentucky Resources Council--Frankfort, KY
Mountain Watershed Association--Melcroft, PA
National Wildlife Federation--Washington, DC
Nizhoni Ani--Kykotsmovi, AZ
Ohio Environmental Council--Columbus, OH
Ohio Valley Environmental Coalition--Huntington, WV
Powder River Basin Resource Council--Sheridan, WY
Prairie Rivers Network--Champaign, IL
Residents Against the Power Plant--Bulger, PA
Statewide Organizing for Community eMpowerment--Knoxville, TN
The Foundation for Pennsylvania Watersheds--Alexandria, PA
Upper Wheeling Creek Watershed Association--East Finley, PA
Vermont Law School Environmental and Natural Resource Law Clinic--South
Royalton, VT
Waterkeeper Alliance--New York, NY
West Virginia Highlands Conservancy--Rock Cave, WV
Wheeling Creek Watershed Conservancy--Nineveh, PA
Wild South--Asheville, NC
The Chairman. Thank you very much.
Ms. Sweeney, go right ahead.
STATEMENT OF KATIE SWEENEY, GENERAL COUNSEL, NATIONAL MINING
ASSOCIATION
Ms. Sweeney. Good morning, Chairman Bingaman, Ranking
Member Murkowski and members of the committee. Thank you for
inviting me to discuss our concerns regarding the consolidation
of OSM within BLM.
Without repeating the legal arguments already raised by
members of the committee and other panel members, I agree that,
as a threshold matter, the order raises a serious legal
question: Can this consolidation be accomplished without
specific authorization from Congress, especially given that on
its face, SMCRA appears to prohibit this merger?
In these difficult fiscal times, National Mining
Association appreciates the need for agencies to look at
conserving resources. Perhaps there may be some merit to the
proposal to consolidate some of the non-policy administrative
functions of BLM and LSM, though couldn't that be accomplished
by some sort of agreement rather than a merger?
But this proposal should also be examined from the broader
economic standpoint of what the department can do to grow our
economy and put people back to work. As President Obama
recently declared, ultimately, our recovery will be driven, not
by Washington, but by our businesses and our workers.
I'd like to highlight that the mining industry was among
the few sectors of our economy that substantively increased
jobs over the last decade. But we could have done much more if
the U.S. had policies that encourage rather than impede
domestic mining, and these are the issues that we think the
secretary should address. We are skeptical that the
consolidation of BLM and OSM will achieve these goals.
In particular, we recommend that Department of Interior
review its permitting processes for mining activities. The
length, complexity and uncertainty of the process places high
hurdles in the path of mine operators. It can take between 7
and 10 years to get all the permits necessary to mine on BLM
lands.
There are many causes of delays for BLM permits, but one
key, primarily administrative, chokepoint is the Department of
Interior's clearance process for NEPA Federal Register notices
sent from State BLM offices. These administrative notices
require 14 levels of review at Department of Interior.
This policy adds approximately 1 year to the already
lengthy permitting process and has never, in our experience,
resulted in a final product that differed substantively from
that submitted by the State BLM.
We appreciate the legislation introduced by Senator Heller
and others on this committee to place a 45-day time limit on
these DOI reviews.
We also applaud the efforts of Senator Murkowski and other
committee members to pass critical minerals legislation that
includes a review of the permitting system to determine how to
make it more efficient while maintaining our current
environmental standards.
Another way the department can marshal scarce resources,
absent a consolidation, is to ensure agencies focus on mission-
essential activities. OSM has strayed from that path with its
recent policy of reviewing and second-guessing State permitting
decisions in primacy States. The increases in the oversight of
State programs has proven to be unnecessary, duplicative and a
waste of taxpayer dollars.
Nor is this approach justified by some alleged failure of
the primacy States to properly implement the SMCRA program, as
OSM's own annual evaluation reports demonstrate that the States
have done an excellent job in regulating coalmines.
There is much OSM and BLM could do to better utilize
diminishing resources without resorting to a merger, and
additional specific recommendations are contained in the
Appendix A to this testimony, but to highlight one example, OSM
has squandered millions of taxpayer dollars with respect to
developing the wholly unnecessary stream protection rule.
Despite the fact that the Federal Government had already
spent 5 years and more than $5 million on developing a stream
buffer zone rule, OSM decided early in this administration to
abandon that rulemaking and commission a new EIS.
OSM has already spent more than $4.4 million on this
project and is now pouring in an additional $900,000 because it
did not agree with its own contractor's report, which showed
that the agency's rewrite of existing regulations would likely
cost tens of thousands of jobs.
We also note that the merger is not likely to accomplish
the substantive aims laid out in the order. For example, is
integration of the OSM abandoned mine land programs and BLM's
reclamation programs feasible, given the agency's different
regulations, reclamation standards and funding mechanisms?
Similarly, it's difficult to comprehend how the 2 agencies'
regulation, inspection and enforcement programs can be
consolidated. For instance, it would be nonsensical to mix and
match OSM and BLM inspectors, because they are trained to look
for different things at different types of mines, coal and hard
rock.
NMA looks forward to a continuing dialog with the agencies,
the department and Congress about ways to conserve agency
resources while promoting efficient utilization of our abundant
domestic resources to meet the Nation's needs for affordable
electricity and minerals vital to innovation and a strong
economy.
Thank you.
[The prepared statement of Ms. Sweeney follows:]
Prepared Statement of Katie Sweeney, General Counsel, National Mining
Association
Good morning. Thank you for inviting me to testify before you
today. My name is Katie Sweeney and I am speaking today on behalf of
the National Mining Association (NMA). NMA is a national trade
association that includes the producers of most of the nation's coal,
metals, industrial and agricultural minerals; the manufacturers of
mining and mineral processing machinery, equipment and supplies; and
the engineering and consulting firms, financial institutions and other
firms serving the mining industry.
The Secretary of the Interior, Ken Salazar, issued secretarial
order number 3315 on October 26 directing the consolidation of the
Office of Surface Mining, Reclamation and Enforcement (OSM) within the
Bureau of Land Management (BLM). The proposal raises more questions
than it answers. Obviously, the different statutory authority and
clearly divergent mandates of the two agencies raises issues about how
they can be merged but as a threshold matter, the order raises a
serious legal question--can this consolidation be accomplished without
specific authorization from Congress?
On its face, the Surface Mining Control and Reclamation Act (SMCRA)
Sec. 201 establishes OSM as an independent agency within the
Department of the Interior, and directs the Secretary to ``act through
the Office. . . '' (referring to OSM). It does not tell the Secretary
to ``act through the BLM.'' The same section creates a firewall
prohibiting the transfer of any legal authority, program, or function
from any federal agency that promotes development or use of coal or
regulating the health and safety of coal to OSM. the Federal Land
Management and Policy Act (FLPMA), which guides BLM's management of
federal lands, clearly promotes the development of coal and other
minerals on federal lands. Included in FLPMA's congressional
declaration of policy is the statement that ``the public lands be
managed in a manner that recognizes the Nation's need for domestic
sources of minerals . . . from the public lands.''
In these difficult fiscal times, NMA appreciates the need for
federal agencies to investigate ways to conserve resources. Perhaps
there may be some merit to the Secretary's proposal to consolidate some
of the non-policy administrative functions of OSM and BLM. But this
proposal should also be examined from the broader economic standpoint
of what the Department can do to grow our economy and put people back
to work. As President Obama recently declared, ``ultimately, our
recovery will be driven not by Washington, but by our businesses and
our workers.''
I'd like to highlight the fact that metal and coal mining were
among the few sectors of our economy that substantially increased jobs
over the last decade--when the overall economy experienced the first
job-loss decade in 75 years. Such success is bittersweet, not only
because we still have millions of unemployed Americans, but also
because mining could have done so much more if the United States had
policies that encourage--rather than impede--domestic mining. And these
are the issues we think the Secretary should address. We are skeptical
that the consolidation of OSM and BLM will achieve these goals.
In particular, we recommend that DOI review its permitting
processes as they relate to mining activities. As the burden of
regulations increases so does the complexity and time it requires to
obtain permits and authorizations necessary to commence job-creating
enterprises. The length, complexity and uncertainty of the permitting
process place high hurdles in the path of mine operators. It can
already take between 7 and 10 years to get all the permits necessary to
mine on BLM lands.
There are many causes of delays for BLM permits but one key,
primarily administrative, choke-point in that process is DOI's policy
for processing certain administrative notices for mining operations and
other commercial enterprises on public lands. The current ``clearance
process'' for National Environmental Policy Act (NEPA) Federal Register
notices sent from Bureau of Land Management state offices requires 14
levels of review at the Department of the Interior's Washington, D.C.,
office. This policy adds approximately one year to the already lengthy
permitting process and has never, in our experience, resulted in a
final notice that differed substantively from the product submitted by
the state. And the costs of the delays are substantial, impacting the
net present values of projects and putting new jobs on hold. We
appreciate the legislation introduced by Sen. Dean Heller (R-Nev.) and
co-sponsored by many on this committee to place a 45-day time limit on
the reviews of these notices by DOI. And we also applaud the efforts of
Senator Murkowski and other committee members to pass critical minerals
legislation that includes a review of the permitting system to
determine how to make it more efficient while maintaining our current
environmental standards.
Merging OSM and BLM has the potential to create uncertainty and
even further delays in mine permitting as staff become accustomed to
their new roles and responsibilities. In addition, NMA has generally
found that when multiple agencies are involved, the permitting process,
far from being more streamlined, more often than not leads to greater
delays.
Another way the department can marshal scare resources absent
consolidation is to ensure agencies truly focus on mission-essential
activities. OSM has strayed from that path with its recent policy of
reviewing state-issued mining permits in primacy states and second
guessing state permitting decisions. This emphasis on massive increases
in the oversight of state programs has proven to be unnecessary,
duplicative, and a waste of millions of taxpayer dollars. OSM's own
annual evaluation reports demonstrate that the states have consistently
done an excellent job in regulating coal mines. Yet the agency has
increased inspections by 46 percent with no reprieve in sight even
though the increased inspections have resulted in very few enforcement
actions. For example, OSM took no enforcement actions in the country's
top coal-producing state, Wyoming. Paradoxically, the agency has funded
these unnecessary and wasteful policies at the expense of the very
states that are doing such an excellent job in regulating mining.
As part of the agency's state program oversight mantra, OSM has
also asserted the authority to issue ``ten day notices'' in situations
where the agency disagrees with permitting decisions by primacy states.
This is yet another example of OSM misusing its existing authority and
limited resources, and, is being done without proper authority from
Congress.
There is much OSM and BLM could do to reflect the new reality that
agencies will have fewer resources without the need for a total
consolidation of the two agencies. Additional specific recommendations
for improvements are contained in Appendix A to this testimony, the
comments NMA submitted to DOI in response to the required retrospective
review of regulations and policies under Executive Order 13563. But to
highlight one example, just look at how OSM has squandered millions of
taxpayer dollars with respect to developing unnecessary new rules and
regulations. Despite the fact that the federal government has already
(and recently) spent 5 years and more than $5 million on developing a
stream buffer zone rule, OSM decided on the first day of the new
Administration to change this rulemaking and commission a new EIS
before the rule was even given an opportunity to go into effect.
By its own admission and testimony, OSM has already wasted more
than $4.4 million on this project, and even its staunchest
environmentalist supporters describe it as ``an expensive fiasco.'' Now
OSM is pouring another $900,000 into the project because it does not
agree with its own contractor's report, which showed that the agency's
rewrite of existing regulations would likely cost tens of thousands of
jobs.
Instead of looking to integrate these two agencies to address
budget problems and cover up mistakes, OSM should put to better use the
resources that have already been provided by Congress. Instead of
conducting unnecessary and redundant inspections that produce no
results, illegally second-guessing state permitting decisions, and
rewriting hundreds of pages of settled rules that will put tens of
thousands of Americans out of work, OSM should be using its resources
to do more research, to improve technology and to provide training for
its State partners so they can do a more effective job of being the
primary regulators of surface coal mining operations, as SMCRA
intended.
While the Secretarial Order may result in cost savings due to
consolidation of administrative functions, the merger is not likely to
accomplish the other substantive aims laid out in the order. For
example, the order will integrate ``OSM's abandoned mine land programs
and functions . . . and BLM's mine and surface reclamation programs. ``
Is integration of these programs feasible given the agencies have
different regulations, reclamation standards and funding mechanisms.
BLM, unlike OSM, currently has no authority to collect monies from
active mining operations to fund AML cleanup, and while NMA supports
funding of AML cleanup through a reasonable future royalty as part of
broader changes to the Mining Law, OSM's AML program should not be that
model. According to OSM's own 2012 budget justification, while the AML
program has taxed the coal industry more than $10 billion since its
inception, and Congress has appropriated more than $7.5 billion to the
agency for this purpose, OSM has managed to complete only about $2
billion in the actual clean-up of abandoned mine lands. This type of
inefficient program should not be exported to another Interior agency.
Similarly, it is difficult to comprehend how the two agencies'
regulation, inspection and enforcement programs can be consolidated.
Again, the agencies have different statutory and regulatory mandates.
As such, agency personnel gain expertise that does not transfer
automatically to another program. For instance, it would be nonsensical
to mix and match OSM and BLM inspectors as they are trained to look for
different issues at coal and hardrock mines.
Lastly, it is unclear how the states' roles will be impacted by
such a merger. While SMCRA contemplates states being the exclusive
regulatory authorities within their borders once they have an approved
program, BLM operates differently. The state-run programs under SMCRA
are significantly more efficient than either OSM or BLM-run programs.
Will the merger complicate state permitting, and would a BLM-run agency
likewise attempt to interfere with and second guess state permitting
decisions the same way that OSM has recently done?
NMA looks forward to a continuing dialog with the agencies, with
the Department, and with the Congress about the best way to conserve
agency resources while promoting more efficient utilization of our
abundant domestic resources to meet the nation's needs for affordable
electricity and minerals vital to innovation and a strong economy. We
believe that regulating our activities can be done in an efficient
manner while ensuring that our members receive permits in a fair and
timely manner, and taxpayer dollars are used effectively.
Thank you for the opportunity to share our views.
appendix a
National Mining Association,
Washington, DC, March 28, 2011.
Regulatory Review,
Office of the Executive Secretariat and Regulatory Affairs, U.S.
Department of Interior, 1849 C Street, NW, Washington, DC.
Dear Sir/Madam:
RE: Comments on improving DOI's regulations--Docket Number DOI--2011--
0001; Department of the Interior Retrospective Review under E.O. 13563
The National Mining Association (NMA) appreciates the opportunity
to respond to your request for information to help shape the Department
of the Interior's (DOI) plan to review existing regulations and
identify opportunities for improvement through modifications,
streamlining, expansion or repeal. 76 Fed. Reg. 10526 (Feb. 25, 2011).
NMA is the national trade association representing the producers of
most of America's coal, metals, industrial and agricultural minerals;
the manufacturers of mining and mineral processing machinery, equipment
and supplies; and engineering, transportation, financial and other
businesses that serve the mining industry. Since many NMA members
conduct mining operations on federal lands, we have a fundamental
interest in the adoption of principles and policies that foster the
prudent management and stewardship of the nation's natural resources.
Because DOI manages much of the lands with our nation's critical
mineral resources and administers programs that directly impact many
mining operations, NMA offers the following comments regarding the
regulations and policies that should be included in the retrospective
review under Executive Order (E.O.) 13563.
GENERAL COMMENTS
DOI requests comments regarding how, generally, it can best review
its existing rules in a way that will identify rules that should be
changed, streamlined, consolidated or removed. NMA believes that DOI's
engagement of affected parties and other stakeholders is the most
appropriate way to identify such rules. As DOI moves forward with its
review, NMA urges the department to ensure that its regulations are
consistent with DOI's mission, including its resource use mission. As
identified in DOI's strategic plan, a key component of the resource use
mission is to provide America with access to energy and minerals to
promote responsible use and sustain a dynamic economy. The importance
of the federal lands for coal, hardrock and other minerals cannot be
understated. See Fact Sheet: The BLM--A Sound Investment for America
for discussion of the $112 billion contribution of BLM public lands to
the economy.
RULES, POLICIES AND GUIDANCE FOR REVIEW
NMA has identified below several rules, policies and guidance that
should be reconsidered during the retrospective review. These rules,
policies and guidance impose substantial and unjustifiable burdens on
the mining industry that are simply not necessary for DOI to achieve
its regulatory or statutory objectives.
Secretarial Order 3310 on Wild Lands and related guidance
In issuing Secretarial Order 3310, DOI is creating a confusing and
duplicative system to protect federal lands with wilderness
characteristics. The announcement of the policy has already halted
several planned mining projects as Bureau of Land Management staff are
commandeered to conduct the new wilderness inventories required by the
order. The order fails to acknowledge the existing federal laws in
place to protect ``wild lands'' such as the Federal Lands Policy and
Management Act (FLMPA), National Environmental Protection Act and the
Endangered Species Act. Instead, the Wild Lands Policy ignores FLPMA's
``multiple use'' mandate and favors very limited passive recreational
uses.
Essentially, the policy subverts BLM's FLPMA obligations by
establishing a new regulatory program that re-initiates and expands a
Wilderness identification procedure that sunset on October 21, 1993
with the submittal of Presidential Wilderness recommendations to the
Congress. The Wild Lands Order requires BLM to identify lands that
qualify for management as though they are Wilderness, even though they
did not so qualify under the Wilderness Inventory mandated by Congress.
The order will put into place an onerous system that could delay
decisions regarding uses of federal lands for a decade or longer.
Consider that pursuant to the order, BLM has indicated it will
inventory 220 million acres of land in the context of the fact that it
is not uncommon for a single Resource Management Plan to take 10 or
more years to complete. Pursuant to the retrospective review required
by E.O. 13563, DOI should rescind the Secretarial Order on Wild Lands
and the related changes to it manuals and guidance documents.
Federal Register Reviews
DOI should also review the policy enunciated in Instruction
Memorandum 2010-043, ``Guidance on Preparing Federal Register
Notices.'' This ``clearance process'' for NEPA Federal Register notices
needlessly adds months to the permit process for minerals mining and
coal projects on federal lands as it requires 14 separate layers of
departmental review of notices developed by State BLM offices. (See
attached chart.)
The impact of these delays is significant as most mining operations
require at least three of these notices per project. As the clearance
process routinely takes 3-4 months per notice, this policy adds
approximately a year of review time for project approvals. These delays
also result in lost federal, state and local revenues, fewer jobs and
lost opportunities. For example, one mining company indicated that the
delays are preventing the hiring of more than 1,000 new employees, and
another stated that for each month of delay the company loses more than
$1 million in net present value. Furthermore, the uncertainties
regarding length of time for approval of mining activities has
contributed to an all-time low amount of mineral exploration dollars
being invested in the United States and to increased reliance on
foreign supplies of minerals.
This clearance process is in addition to the existing thorough
environmental review process undertaken by BLM for mining projects on
federal lands. A typical environmental impact statement undertaken
pursuant to NEPA takes over three years to prepare. DOI has never
adequately explained the need for this review process and it does not
appear to result in substantive changes to the submitted documents. In
fact, in the mining industry's experience, the review process has never
resulted in a final product that differed substantively from what was
submitted by the state BLM offices. DOI should rescind IM 2010-043 and
return to the previous process where Federal Register notices could be
submitted directly by BLM state offices without stopping at DOI for
additional reviews.
General Review of NEPA Guidance
DOI should also review its guidance on NEPA to determine if there
are ways to better integrate NEPA reviews with permitting of mining
operations. DOI should recognize that since NEPA's enactment, Congress
has passed numerous laws that prescribe substantive goals and
procedures to prevent or minimize adverse impacts to environmental
resources. These laws include those that provide the authority to
promulgate standards for mining operations, such as the Federal Land
Policy and Management Act (FLPMA), the Surface Mining Control and
Reclamation Act (SMCRA) and the Forest Service Organic Act, as well as
specific environmental laws such as the Clean Air Act (CAA), Clean
Water Act (CWA), Endangered Species Act (ESA) and the Safe Drinking
Water Act (SDWA). These laws and their corresponding regulations
require a thorough analysis of the possible environmental effects of
mining operations. NMA believes that the functional equivalent of a
NEPA review occurs during the permitting of mining operations on
federal lands, and therefore a completely separate NEPA review is
unnecessary, duplicative and results in significant delays. Please see
the attached NMA concept paper on exemptions for mining operations
based on this ``functional equivalence doctrine'' that has been
developed by federal courts'' to exempt federal agencies from complying
with NEPA's environmental review process when other ``substantive and
procedural standards ensure full and adequate consideration of
environmental issues.''
Financial Guarantees Under 43 CFR 3809
The retrospective review that DOI is conducting provides a perfect
opportunity to rectify a problem created when the 43 CFR 3809 surface
management regulations were revised in 2001. Given developments since
that time, DOI should review the decision to prohibit new corporate
guarantees and increases of any existing corporate guarantees under
BLM's revised section 3809.500 et. seq.
Commercial surety capacity is frequently constrained and leads to
questions as to whether the capacity required by the mining industry
will be available even at substantially higher direct and indirect
costs. Given the constraints on the availability of surety, BLM needs
to ensure a wider variety of financial assurance mechanisms, such as
corporate guarantees, are allowed to fulfill obligations under the 3809
regulations. The wholesale jettisoning of corporate guarantees is not
necessary to eliminate the problems that BLM and the states had with
that form of financial assurance. Past problems with corporate
guarantees can be solved by establishing reasonable qualification
criteria followed by periodic evaluation to verify that companies
remain qualified to self-bond.
Other federal agencies such as the U.S. Environmental Protection
Agency (EPA), U.S. Nuclear Regulatory Commission (NRC) and BLM's sister
agency, the Office of Surface Mining (OSM), recognize corporate
guarantees as an acceptable financial assurance instrument. EPA allows
for corporate guarantees for waste disposal sites upon satisfaction of
certain criteria, including tangible net worth, a ratio of total
liabilities to new worth, a ratio of current assets to current
liabilities or total fixed assets in the United States. See 40 CFR
264.143. NRC has a regulatory guidance document, Reg. Guide 3.66 (DG-
3002), that provides qualification mechanisms for corporate guarantees.
BLM has accepted NRC-approved corporate guarantees for uranium projects
on BLM-managed lands in Wyoming, Utah and New Mexico. OSM provisions
allow self-bonding based on bond-rating, tangible net worth, a ratio of
total liabilities to net worth, a ratio of current assets to current
liabilities or total fixed assets in the United States. See 30 CFR
800.23. BLM should consider a corporate guarantee program for the
hardrock mining sector based upon sound qualification criteria, just as
EPA, NRC and OSM programs have done in order to afford other mechanisms
to satisfy bond requirements.
OSM Policy Directives Relating to State Oversight
In late 2009, OSM proposed major changes to oversight of state
programs, including additional federal inspections and significant
potential for second guessing of state permitting decisions. OSM's own
evaluations of the state programs do not reveal any problems that
necessitate these changes. In fact, NMA questions OSM's legal authority
to make such changes under the Surface Mining Control and Reclamation
Act (SMCRA). OSM's new policy of interfering with state permitting
decisions is also inconsistent with a number of court decisions
interpreting the federal-state relationship under the Act. Yet OSM
ignored these concerns and finalized several directives, including
Directive REG-8 ``Oversight of State and Tribal Regulatory Programs,''
Directive REG-23 ``Corrective Actions for Regulatory Program Problems
with Action Plans'' and Inspection and Enforcement Directive INE-35 on
``Ten Day Notices.'' These directives should be rescinded as a part of
DOI's retrospective review.
OSM Stream Protection Rule
While not yet promulgated, DOI should use this review opportunity
to reconsider whether it should move forward with the rulemaking OSM is
developing on ``stream protection.'' This rulemaking is inconsistent
with the President's new executive order. The anticipated stream
protection rule is intended to displace a 2008 regulation that was the
product of a five-year comprehensive rulemaking process that provided
the members of the public and state regulators clarity and certainty,
while at the same time requiring improved environmental performance.
OSM had not even implemented the 2008 rule before deciding to change
it. The agency has not identified any basis or need for these
significant regulatory changes, most of which will only add burdens on
companies and states through complex and duplicative standards that
recreate the uncertainty that was corrected by the 2008 rule.
The rulemaking options under consideration would cost thousands of
mining jobs, sterilize millions of tons of coal reserves and impair the
coal supply essential to the nation's energy requirements, without any
demonstrated environmental benefit over the current rules they are
trying to rewrite. Additional sampling and monitoring requirements will
add enormous information collection burdens while essentially
duplicating the sampling and monitoring requirements already in place
in the project's associated NPDES permits. Prohibitions on mining near
streams could sterilize millions of tons of coal reserves and render
many mines uneconomical. Requiring full restoration of stream form and
function before any additional mining can take place could paralyze
many mining operations, and establishing corrective action thresholds
could interfere with legitimate mining operations that have not
violated any water quality standards. Also, requiring condition
precedent sequencing of the mining activities and limitations on mining
areas not only conflicts with what activities have been permitted but
also may prevent compliance with the terms and conditions, more
specifically the reclamation requirements, of the permit. Dictating
certain post-mining land uses would be contrary to goals of wildlife
managers and/or landowners who desire more flexible uses for reclaimed
mine lands. The new so-called coordination procedures will add months
and even years of delay to critically needed mining permits. Many of
OSM's proposals would also duplicate or contradict authorities under
the Clean Water Act that are reserved for the states, in violation of
SMCRA. Not only do the proposed rules duplicate authorities, but the
rules also duplicate sampling, monitoring, avoidance and minimization
processes, and the selection of least damaging alternative analyses.
DOI should direct OSM to discontinue this rulemaking effort.
DOI Should Preserve the 1996 Biological Opinion
Since 1996, OSM and the U.S. Fish and Wildlife Service (FWS) have
successfully relied on a biological opinion used to address the effects
of surface coal mining and reclamation operations on threatened and
endangered species. The opinion correctly concludes that such
operations conducted in accordance with properly implemented federal
and State regulatory programs under SMCRA are not likely to jeopardize
the continued existence of listed or proposed species, and are not
likely to result in the destruction or adverse modification of
designated or proposed critical habitats. However, certain FWS offices
have recently attempted to circumvent the opinion by requiring section
7 consultations or by providing comments through the Army Corps of
Engineers' Sec. 404 process rather than through the SMCRA process. DOI
should ensure that the longstanding terms of the 1996 biological
opinion between OSM and FWS are followed by both agencies.
DOI Should Not Allow Abuse of Citizen Suit Provisions
OSM, along with some other agencies, have allowed certain groups to
exploit the citizen suit provisions of the implementing laws. They are
settling lawsuits with plaintiff's lawyers rather than vigorously
defending regulations from legal challenge, and are further using the
litigation as an excuse to change longstanding polices of the agency.
In addition, DOI has paid attorneys' fees to plaintiffs who have not
even been successful on the merits of the issue being litigated. DOI
should demand that its agencies vigorously defend duly promulgated
regulations and findings, and should not pay attorneys' fees to
litigants except when warranted under the law.
Energy Policy Act Amendments to the Minerals Leasing Act
DOI should extend its regulatory review to include rules or
policies that, if implemented, would achieve the goals enunciated in
the Executive Order to promote economic growth, innovation,
competitiveness and job creation. For example, the BLM needs to move
forward with its long-planned regulations to implement the Energy
Policy Act of 2005's amendments to the Minerals Leasing Act. The 6 year
delay in promulgating the rules has created confusion and delays. BLM
needs to move forward with the regulations to implement the Minerals
Leasing Act amendments. Congress determined that such amendments were
necessary to promote efficient production, encourage maximum recovery
of coal resources and optimize federal and state royalties. Therefore,
BLM should move forward to implement the following EPAct amendments and
corresponding BLM regulations:
EPAct Section 432: allows lease modifications greater than
160 acres under certain circumstances (requires changes to 43
CFR 3432.1)
EPAct Section 433: extends the current requirement that all
reserves be mined within 40 years (requires changes to 43 CFR
3487)
EPAct Section 434: changes the method for computing advance
royalties (requires changes to 43 CFR 3483.4)
EPAct Section 435: deletes the requirement that a lessee
submit a coal lease operation and reclamation plan within three
years of lease issuance (requires changes to 43 CFR 3482.1)
EPAct Section 436: eliminates the financial assurance
requirement to guarantee payment of deferred bonus bid
installments by a licensee with a history of timely payments
(requires changes to 43 CFR 3422.4)
CONCLUSION
It is NMA's sincere hope that DOI's retrospective review will
result in more efficient regulations consistent with the goals of E.O.
13563. This nation needs a rational and systematic approach to managing
the wealth of natural resources in and on our federal lands. If you
have any questions about this submission, please contact me at (202)
463-2627 or [email protected].
Sincerely yours,
Katie Sweeney,
General Counsel.
The Chairman. Thank you.
Ms. Dunning, why don't you go right ahead?
STATEMENT OF DARANNE DUNNING, WESTERN ORGANIZATION OF RESOURCE
COUNCILS, HELENA, MT
Ms. Dunning. Thank you, Chairman Bingaman, Vice Chairwoman
Murkowski and other members of the Senate Energy and Natural
Resources Committee.
My name is DarAnne Dunning, and I'm here today representing
the Western Organization of Resource Councils, which is a 7-
State grassroots organization that's made up of landowners and
citizens who live and work in and near the coalfields in the
Western U.S., including the States of Montana, Wyoming, North
Dakota and Colorado.
I'd like to thank you for the opportunity to testify and
for including our citizen voices in this discussion today.
I grew up in southeastern Montana where my family has been
ranching since the 1880s, originally raising horses and now
cattle. Our family ranch is just a few miles south of the
proposed coal tract development at Otter Creek, which is the
largest new coalmine proposed in the lower 48. We're also quite
close to existing coalmines in southern Montana and northern
Wyoming in the Powder River Basin.
Our engagement with this topic goes back to the very
inception of SMCRA, and, today, I bring with me in spirit the
ranchers and farmers who traveled from the Northern Plains and
the Powder River region throughout the 1970s to come to
Washington, DC, to enlist the help of Congress in achieving
important reforms in the regulation and oversight of coalmining
in the United States.
Those farmers and ranchers from the West joined with the
citizens from the Appalachian region and coalfields in eastern
States who had seen the coal industry overwhelm State and local
government regulators and operate with impunity.
They worked with Congress to ensure that OSM became an
independent Federal enforcement agency that was intentionally
designed to be transparent and accessible to those citizens who
were so affected by the dramatic disturbance of coalmining in
their communities.
Secretary Salazar's order raises 3 main concerns that go to
the very heart of the functioning and workability of SMCRA.
The first is the fundamental conflict in the mission and
purpose of the 2 agencies, which could be severely compromised
if they're rolled into one agency.
Second, the concern of burying OSM into a large,
bureaucratic layer of government like BLM that could compromise
OSM's functionality, insulate it and make it less responsive to
citizen involvement.
Third, as has been well addressed, whether the Department
of Interior can legally integrate OSM into BLM without amending
SMCRA.
BLM is responsible for the leasing of the vast majority of
the West's coal reserves, while OSM is fundamentally a
regulatory and enforcement agency. Separating these functions
into 2 distinct agencies is important for avoiding conflicts of
interest, such as what we've seen recently in the leasing of
offshore oil reserves.
The Deepwater Horizon oil spill is an example of how the
Federal Government's role in promoting the leasing and
development of Federal natural resources sublimated its
regulatory responsibilities.
In response, the Minerals Management Service was divided
into 3 separate agencies and actually created 2 new independent
bureaus. Yet, Secretary Salazar's order now proposes to combine
the separate leasing and regulatory functions of coalmining
into one bureau, the Bureau of Land Management.
At this time, BLM's in a process of an aggressive push to
dispose of approximately 6-billion tons of the public's coal in
Montana and Wyoming alone to private companies.
I'd like to discuss some issues with BLM's handling of coal
in the West that might shed light on why it might not be
appropriate to place mine leasing oversight, regulation and
enforcement all within BLM.
First, BLM decertified the Powder River Basin in the late
1980s as a coal-producing region, and it remains decertified
despite the massive increase in leasing and the fact that the
Powder River Basin is the largest source of coal in the United
States.
As a result, the leases in the Powder River Basin are being
leased almost entirely on a lease-by-application, piecemeal
process, which is not mindful of the cumulative impacts in the
area.
This lease-by-application process also undermines the
agency's ability to determine the fair market value for the
coal, because when the applicant and the bidder is one and the
same, it's next to impossible to have a competitive bid process
that actually results in a fair market value.
BLM is additionally pushing forward with even more coal
leases despite a clear record that mines seeking even more
Federal coal have not complied with the contemporaneous
reclamation as required under SMCRA.
For instance, in Wyoming, only 3.5 percent of disturbed
acres have reached Phase III bond release, yet, BLM has
proposed leases in Wyoming totaling an additional 50,000 acres.
The dominant culture within the Bureau of Land Management
has been as a promoter of coal in the region, and, for that
reason, it's singularly unsuitable to absorb OSM.
Specifically, section 201 of SMCRA prohibits integrating
OSM within a Federal agency such as BLM whose purpose is
promoting the development or use of coal.
In conclusion, I urge the members of the committee to look
at the many questions raised by the proposal. We oppose moving
forward with this order until those questions can be addressed
and a much greater investigation of the proposal and
consultation with all of the affected stakeholders, including
the citizens of the coalfields, can take place.
So thank you very much for your time and for the
opportunity to comment on this important matter.
[The prepared statement of Ms. Dunning follows:]
Prepared Statement of DarAnne Dunning, Western Organization of Resource
Councils, Helena, MT
Chairman Bingaman, Vice Chairwoman Murkowski, and members of the
Senate Energy and Natural Resources Committee, my name is DarAnne
Dunning. I am representing today the members of the Western
Organization of Resource Councils, a seven-state grassroots
organization made up of landowners and citizens who live and work in
and near the coal fields in the western U.S. Thank you for the
opportunity to testify and for including our voices in this important
discussion today.
The members of the Western Organization of Resource Councils live
in and around the coal mining regions of Wyoming, North Dakota and
western Colorado, as well as in Montana, and we would be profoundly
affected by Secretary Salazar's proposal which is before you for
consideration today, to integrate the Office of Surface Mining into the
Bureau of Land Management.
I grew up in southeastern Montana where my family has been ranching
since the 1880s, originally raising horses and now cattle. Our family
ranch is a few miles south of the proposed coal tract development on
Otter Creek, which is the largest new proposed mine in the lower 48.
The area is also close to the existing coal mines at Colstrip and
Decker and in northern Wyoming. I currently reside in Helena, Montana,
where I am in private practice as an attorney and part of my practice
focuses on energy and natural resources issues in the Northern Plains
and Powder River Basin in Montana. I am a member of Northern Plains
Resource Council, one of the 7 statewide groups that make up WORC.
Our engagement with this topic goes to the inception of the Surface
Mine Control and Reclamation Act (SMCRA). I bring with me in spirit the
ranchers and farmers--some of them neighbors and dear family friends--
who traveled from the Northern Plains and Powder River region to
Washington, DC, throughout the1970s and walked the halls of this
beautiful capitol enlisting the support of first our Western
delegations and then the wider assembly of Congressmen and women from
all regions to achieve important reforms in the regulation and
oversight of surface mining in the United States. Several of them stood
in the Rose Garden of the White House in August 1977 when President
Jimmy Carter signed SMCRA into law, along side citizens from the coal
fields of Kentucky, Tennessee, and West Virginia. The adoption of the
SMCRA was a landmark achievement where ordinary people could take their
case and make a difference in whether mining would continue to
devastate their homes and farms or the coal industry would be held to a
rigorous and fair standard across the nation. SMCRA gave unprecedented
powers to citizens in implementing and enforcing the law.
Our members had a significant impact on how the law was written to
ensure that surface mining reclamation west of the Mississippi would
reflect the unique distinctions of our semi-arid climate where water is
precious and the native grasslands and rare prairie forests have
evolved uniquely over time to withstand our harsh, dry and brittle
climate.
They also joined with citizens from the Appalachian region who had
seen the coal industry overwhelm state and local government regulators
and operate with impunity as they polluted waters and left gaping holes
and spoil piles across the landscape. These citizens voices rose
together to insist on a regulatory framework that was open to the
ongoing presence and engagement of people who live near and are
affected by coal surface mining operations. They worked with Congress
to craft legislation that ensured an independent federal enforcement
agency and one that was intentionally ordained by Congress to be
transparent and accessible to the citizens who are so affected by the
dramatic disturbance of surface mines in their communities.
Secretary Salazar's proposed integration of the Office of Surface
Mining into the Bureau of Land Management raises a number of red flags
that caution us against this move. These concerns go to the heart of
the effective functioning and workability of SMCRA.
Three immediate and compelling concerns raised by this proposal are
(1) the fundamental conflicts in mission and purpose of the
two agencies which could be severely compromised if they are
rolled into one agency,
(2) the addition of a large and inflexible bureaucratic layer
of government that would compromise OSM's functionality,
insulate it and make it less responsive to citizen involvement,
and
(3) whether the Department of Interior can integrate OSM into
the Bureau of Land Management without amending SMCRA.
BLM and OSM have distinct and, to some degree, conflicting
missions. BLM's mission is to manage the use of public land resources
primarily in the West, including coal, and get fair market value for
them. BLM is responsible for the leasing of the vast majority of the
West's coal reserves. OSM regulates coal mining on both public and
private lands, although most active with private lands in the East. It
is charged with ensuring that reclamation of all coal-mined lands
occurs and that it is done under rigorous and strict standards with
full transparency and oversight by states and the public at large. OSM
is fundamentally a regulatory agency, while BLM's role in part is to
manage federal coal reserves, which includes leasing activities that
bring revenue to the federal government. Both are necessary functions,
but separating them in two distinct agencies is important for avoiding
conflicts of interest, such as those that have arisen in leasing high-
risk off-shore oil reserves. We need to ensure that OSM's regulatory
functions, which include ensuring realistic mining and reclamation
plans that do not compromise the welfare of citizens or the protection
of the environment, are not compromised by similar conflicts of
interest.
One lesson of the Deepwater Horizon oil spill in the Gulf of Mexico
is that the federal government failed in its mission to enforce public
safety in its oversight of oil well drilling because its role in
promoting the leasing and development of federal oil in the Gulf
sublimated its regulatory responsibilities. In response, the Minerals
Management Service has been divided into three sections, including two,
independent bureaus. Yet, Secretary Salazar now proposes to combine the
separate leasing and regulatory functions of coal mining into one
bureau in BLM. BLM is 20 times the size of the Office of Surface
Mining. The sheer mass of this agency and its employees and distinctive
mission threatens to enmesh OSM in an impenetrable and difficult to
navigate bureaucracy that poses enormous challenges to citizen
participation. Our experience in the West is that the path for a
citizen to reach a responsible official within the Office of Surface
Mining is relatively straightforward. In contrast, because of its size
and broad portfolio of responsibilities and many sub-divisions, both
geographic and topical, BLM presents a complicated challenge to
citizens wanting to the engage the agency on vital decisions that
affect them, their property, health and livelihoods.
At this time, BLM is in the process of an aggressive push to
dispose of approximately 6 billion tons of the public's coal in Montana
and Wyoming. This massive disbursal of the public's reserves to private
companies raises several important questions that shed light on why it
might not be appropriate to place mine oversight, regulation and
enforcement within the BLM.
The leases are being offered on a lease by application
piecemeal process, despite the clear directives of the Federal
Coal Leasing Amendments Act and federal court rulings to manage
federal coal leases regionally, mindful of cumulative impacts.
The lease by application process undermines the agency's
ability to gauge the market for federal coal, as competition at
these lease sales is almost unheard of. Two recent sales this
past summer in the Southern Powder River Basin underscore this
point. Two nearby mining companies (Alpha and Peabody) bid
against each other, resulting in significantly higher bonus
bids. (Belle Ayr North, July, 2011 .95/ton and West Caballo,
August, 2011, $1.016/ton)
BLM decertified the Powder River Basin in the late 1980s
and, despite the massive increased activity in leasing
applications and the fact that the Powder River Basin is the
largest source of coal in the US, has not re-certified the area
as a coal producing region.
BLM's coal leasing program has not undergone any serious
independent scrutiny since the 1980s and is ripe for review,
particularly in the area of how it determines what constitutes
fair market value for the public's coal.
BLM is pushing forward with coal leases despite a clear
record that mines seeking more federal coal have not complied
with the contemporaneous reclamation as required under SMCRA.
OSM has identified in recent years the increasing gap between
acres disturbed and acres released from Phase III bonds, which
is the determinative measure that the land has met the
standards of the act. Phase III bond release indicates that a
viable sustainable vegetative community has stood the test of
time in the harsh climate conditions of our region. For
instance, in Wyoming only 3.5% of disturbed acres have reached
Phase III bond release.
The dominant culture within the Bureau of Land Management has been
as a promoter of coal in the region and its consistent stance in this
respect makes it singularly unsuitable to absorb OSM which is charged
with regulation and enforcement and must be independent and
transparent.
For example, a recently proposed coal exchange in Montana (Nance-
Brown AVF Coal Exchange) approved by the BLM ignores the rights of
surface owners to withhold consent to surface mining of their privately
owned, deeded land where it overlies federal coal. BLM is explicitly
mandated under Sec. 714 of SMCRA to consult with private surface owners
in split estate federal coal and may convey that coal for surface
mining purposes. While the federal government was obliged by a court
order to exchange federal coal with the coal owned by Nance-Brown
deemed unsuitable for surface mining, the idea that this exchange could
take place under privately held surface without consent is outrageous.
Such arrogance on the part of BLM in regard to its obligations under
the law ignores Congress clear intent and disrespects private property
rights.
Finally, there are potential issues with integrating OSM into BLM
without amending SMCRA. OSM was specifically established as a separate
entity to protect its regulatory function. In addition, Section 201 of
SMCRA prohibits integrating OSM within and federal agency ``whose
purpose is promoting the development or use of coal or other mineral
resources.'' Yet, one of BLM's purposes is the development of coal
through leasing.
I urge you to look into the many questions raised by the proposal.
We oppose moving forward with the order until these questions can be
addressed and much greater investigation of the proposal and
consultation with all of the affected stakeholders, including the
citizens of the coalfields, can take place.
Thank you for your time and the opportunity to comment on this
important matter.
The Chairman. Thank you all for your testimony.
Senator Shaheen has not had a chance to ask questions, so
why don't I go to her first and have her ask her questions?
Senator Shaheen. Thank you very much, Mr. Chairman, and I
would reassure all of the people testifying that I share many
of the concerns that you've all raised about the effort to
combine these 2 agencies.
I spent a fair amount of time living in West Virginia and
going to--living in Pennsylvania near the coalfields. So I
appreciate the challenges that people living near those fields
often experience. So I do appreciate the concerns that folks
are raising today.
Ms. Sweeney, I would actually like to address some of the
hard-rock mining issues. You expressed concern about the
difficult financial times that we're in, and I agree with that.
I understand that that may be the motivation behind this
legislation, even though I think it may be ill-conceived.
But you talk about the importance of encouraging rather
than impeding domestic mining. One concern that I have is that
the mining law of 1872 provided the opportunity for federally
owned gold, silver, copper, uranium and other hard-rock
minerals to be mined without paying anything to the government,
and I think that has put in place a pretty good deal for the
mining industry, but something that I think we ought to
reexamine, and I wonder how you would respond to that.
Ms. Sweeney. Thank you for the question.
Obviously, you know, we are concerned about, you know,
having policies that promote domestic mining, and the mining
law has been one of those policies that has promoted domestic
mining.
But there are a lot of barriers and hurdles to mining, one
of which is, you know, the minerals may be difficult to find.
They are difficult to find, and that's why the mining law does
have--allows the public to go out and explore for mining
operations.
But I do understand your point. You think that mining isn't
paying a fair return to the public. You know, obviously, there
are many other contributions that mining makes besides royalty,
but I can tell you that National Mining Association has been
supportive of changes to the mining law, which do include a
royalty to give a fair return to the public.
Senator Shaheen. I guess I'm less concerned over that fair
return to the public, because I would agree that the public
does benefit from those minerals that are mined, but my concern
is that we have actually an overly generous form of
depreciation, known as percentage depletion, that mining
companies are able to take advantage of that really results in
a double subsidy for those hard-rock mining companies.
That is the piece that I really think we ought to take a
look at, because, in these times of austerity, I do think
looking at those subsidies that may no longer make sense in
today's world that may have made sense in 1872, when that law
was passed, really ought to be looked at, so that we're not
providing double subsidies to mining companies to encourage
them to do their exploration.
Mr. McGinley, I wonder if you could describe for me the
importance of the stream protection rule with respect to
regulating valley fills and mountaintop mining removal?
Mr. McGinley. I can briefly describe what I understand to
be the impact.
Also, earlier in the hearing, Senator Paul asked some
questions with regard to the prospective application of a new
rule. He mentioned Justice Scalia's opinion, but Justice
Scalia's opinion was not the controlling law of the Rapanos
case. It was Justice Kennedy's opinion.
The question of ephemeral streams, ephemeral streams have
never been regulated under SMCRA, but they are locatable on any
topographic map. They're used by mining engineers in the
permitting process, so just to make that clear.
I believe that the proposals, in the past, the buffer zone
rule that was in effect from--I believe it was 1981 or 1982
until late in the Bush administration, the second Bush
administration, prohibited mine activities within 100 feet of
an intermittent or perennial stream. Intermittent is defined.
It is somewhat nebulous.
But, in any event, mountaintop removal mining went on for
several decades with that rule in place, and, in fact, expanded
to an extraordinary extent, to the extent that people of the
coalfields are concerned about the impacts of this large--much
larger, growing, larger-scale mountaintop removal operations.
The impacts on communities are attendant the large- scale
mining--blasting, damage to structures, flooding and health
problems.
Recent studies, peer-reviewed studies, have indicated that
there may be health-related impacts to coalfield communities
that are impacted by large-scale mining, as well as
environmental impacts, not--certainly with regard to the
headwater streams, but the scientific studies, including the
environmental impact statement done by EPA, indicate downstream
serious water-quality impacts as a result of the valley fills.
Finally, these valley fills are some of the biggest
structures that exist east of the Mississippi. Coalfield
residents, especially in Appalachia, who live, really in the
shadow of these enormous fills--some of them are 2 or 3 miles
long filling the heads of hollows, 200-, 300-, 400-feet deep
with mine spoil--they live there with a memory of the Buffalo
Creek Disaster that occurred in Logan County, West Virginia, in
1972 that killed 129 West Virginians and made thousands
homeless.
So there are concerns about the growing stability of--or
the stability of these very large valley fills and also the
large coal-waste, liquid-waste impoundments that loom over
communities. So there are very serious concerns among coalfield
communities, especially in Appalachia. That's where mountaintop
removal operations occur.
Senator Shaheen. Thank you.
The Chairman. Senator Murkowski.
Senator Murkowski. Thank you, Mr. Chairman.
I want to thank all of you who have appeared before us
today for your testimony.
It's not too often, Mr. Chairman, that all of us that are
up here on the dais are in agreement, and then to have a full
panel that has expressed the same concerns, perhaps for
differing reasons, I think it is a clear signal to us that
there is much, much work that needs to be done, if, in fact,
this can even move forward.
I've heard from each of you the request, if you will, that
there needs to be the stakeholder input. There needs to be that
consultation that clearly did not take place.
Perhaps the Secretary will take the advice of Senator
Manchin here and pull this down, but if he should not, I would
certainly hope that, at a bare minimum, there is a level of
consultation not only with the committees, the Congress, but,
clearly, with those that are involved in mining operations,
whether it's coal or hard rock, from the concerns that we've
heard here this morning.
I do want to ask a question, because both Mr. Corra and Mr.
Lambert spoke to it, and I think just about everybody had some
issues as they related to state primacy over the coal programs.
Mr. Corra, you mentioned that there are differences between
the coal programs in the Powder River Basin and what Mr.
Lambert sees in the mountains of Virginia there.
Can you speak to perhaps some of the differences and
provide us with what would happen if this merger were to move
forward and the programs that you have had in place, would they
be significantly impacted by the order that we're looking at?
How would the States be able to continue with the level of
operations that you have had respecting the differences that we
see in a place like Wyoming, as opposed to Virginia or West
Virginia?
Mr. Corra. Mr. Chairman, to the first question, the arid
west is much different than Appalachia, and the mining
techniques are different. In Wyoming, our mines, on a somewhat
regular basis, do mine through intermittent streams and
perennial streams, and they restore those streams.
I presented some testimony before another committee a while
back that showed some pretty good examples of that where we've
even won reclamation awards from the Office of Surface Mining
for that work.
So the terrain is flatter. The climate is much more arid,
and, in fact, the Clean Water Act even recognizes differences
between the east and the west.
One of our issues with that particular stream protection
rule is that we felt that OSM might actually be intruding on
authorities that were given to us through the Clean Water Act
in the USEPA. So I hope that answers the questions about the
differences.
With regards to what will happen in the future, we simply
don't know, and that is what is causing us some great concern.
It has taken 30 years to build the professional relationships
that exist out there. With regards to the BLM, I think the
working relationship inside the State is very good. So, as
senior management in those organizations implement the merger
in whatever form or fashion it might take, we're quite anxious
about how that will upset that balance.
We're pretty proud of the fact that we provide input, a lot
of input and a lot of technical assistance to both Federal
agencies in Wyoming all the time.
Senator Murkowski. I appreciate that.
Mr. Lambert.
Mr. Lambert. Yes, ma'am, thank you. I agree with Mr. Corra.
At this point, with the limited information that we've been
provided, I don't think we can even second guess what that
might look like if those 2 departments are merged.
Agreeing with Mr. McGinley, you know, the Appalachian
region is a very different region from the arid West, and we do
have distinct, separate mining operations using valley fills.
I would kind of disagree to a point that they are impacting
to the point that we are destroying the environment. We have
several studies that also says that this is being done in a
respective manner.
We have built a 30-year relationship working with OSM, and
if this merger takes place, with the limited information that
we have and the limited involvement that we have had to this
point, will that destroy our 30-year relationship in
implementing SMCRA? As a State primacy, how would we be
affected with our primacy programs? We just don't know that at
this point.
That's why we encourage OSM, BLM, if this moves forward, to
engage the States as well as the industry and other parties to
be involved in this integration.
Senator Murkowski. Thank you.
Thank you, Mr. Chairman.
The Chairman. Senator Franken.
Senator Franken. Thank you, Mr. Chairman.
Mr. McGinley, Mr. Hayes stated in his testimony that the
revenue collection operations of OSM will be transferred to the
Office of Natural Resource Revenue. Mr. Hayes also stated that
enforcement in regulatory functions would remain separate from
leasing activities. Does that alleviate your concerns about the
combination of the 2 offices? Because, from your testimony, it
sounds like Mr. Hayes might be missing the point.
Mr. McGinley: I think the Office of the Secretary is
missing the point.
I took the liberty of looking at the structure of--the
hierarchy structure within the Department of Interior, the
bureaus and the offices that's available on line, and it has a
place from the Assistant Secretary level to OSM, Bureau of Land
Management and other offices and bureaus.
I haven't heard anything from the secretary's office where
exactly the Presidential appointee, the director of OSM, would
fit in that structure. Would the director of OSM be reporting
to someone in BLM?
I agree with my colleagues here what is unknown about this
proposal and the fact that it wasn't vetted at all is
extraordinarily troubling. I would submit that that is a reason
that we find those of us who may disagree on many issues with
regard to coalmining and coalmining enforcement and
reclamation, we all come here astounded that this proposal has
been made with so little forethought. How this would work, the
process that would be involved is totally unclear.
There are some administrative functions, I'm sure, that
could be accomplished, and savings accomplished with
arrangements that fall far short of tampering with the
structure--the command of the organic statute, the Surface
Mining Control and Reclamation Act.
Senator Franken. Thank you.
Mr. Lambert, I'm member of the Senate Indian Affairs
Committee, and I take the concerns raised by Indian tribes
especially seriously.
The U.S. Government has an agreement with tribes to consult
with them before making policy changes that affect tribal
lands. To your knowledge, did any such consultations like this
take place before this decision was made?
Mr. Lambert. Senator, I think Mr. Corra would be better to
answer that question.
Senator Franken. OK. Mr. Corra.
Mr. Corra. Mr. Chairman and Senator Franken, I am not aware
that any of those consultations took place, would not know. All
I can say is that as far as the State of Wyoming is concerned,
no one has talked to us.
Senator Franken. OK. The Navajo Nation released a statement
saying that they had not been consulted, and, at this point, I
would not--If that's the case, they were not keeping up with
their obligations to the tribes.
Ms. Sweeney, the Interior Secretary issued this order on
October 26 with an effective date of December 1 . That seems
like a pretty short timeline, since it sounds like very little
consultation was done beforehand. We've already heard that the
States weren't consulted.
Did the National Mining Association know anything about
this before the decision was made? Also, do you feel like a
month isn't an adequate timeline for this implementation?
Ms. Sweeney. The mining industry was just as surprised and
shocked as everybody else. Yes, the very, very short timeframe,
given the legal questions, the fact that they don't seem to
have looked at what exactly the cost savings will be, seems
like cart before the horse.
Senator Franken. OK. Thank you. Thank you, Mr. Chairman.
The Chairman. Senator Barrasso.
Senator Barrasso. Thank you very much, Mr. Chairman, and
just to follow up along that same line of questioning, and I
agree with my colleague, Senator Franken, for his concerns,
because I think we all share those concerns.
I'm just kind of thinking of the written testimony from Mr.
Corra, Mr. Lambert. You both expressed concerns. Secretary
didn't consult the States prior to issuing Order No. 3315, and
do you really think that it's possible to have meaningful
consultation after the fact, after the issuance of the order?
If so, you know, what would meaningful consultation look like
after you know what they're already planning to do?
Mr. Lambert. Senator, this proposal of the integration of
those 2 agencies in the short timeframe makes me think back to
the procedure of the stream buffer zone rule when States were
not contacted until the last minute. To me, this seems like an
effort that we have defined a problem and we don't even--or we
have defined a solution and we don't even know what the problem
is as of yet.
So, at this point, given this short timeframe, my answer
would be no. I don't think no meaningful consultations could be
conducted, given that we're looking at the first of December.
Senator Barrasso. Mr. Corra.
Mr. Corra. Mr. Chairman, Senator Barrasso, I think I would
echo my colleague. I think that we've seen 2 examples. One is
the stream protection rule and the other is a recent memorandum
of agreement that was reached between the BLM and the EPA and
others with regards to how they do environmental analyses ahead
of their resource management plans and their impact statements
on projects--and those have a definite impact on the States.
That was completely negotiated right at the end. Just before
signature we were notified of that.
So, so far, consultation has not taken place, and part of
what we want to do today is to seek some way in which we can.
Our view is that, you know, once we understand what the
work is, then we can put an organizational structure around it.
This seems to be the other way.
Senator Barrasso. In your testimony, you had some concerns
also about the merger's impact on abandoned mine land, the AML
program. I wonder if you could just elaborate a little bit on
those concerns and what steps should the department be taking
to ensure that the AML program is not affected.
Mr. Corra. Mr. Chairman, Senator Barrasso, the way in which
abandoned mine lands are reclaimed in the State of Wyoming,
because we're a certified State, we are able to take care of
the non-coal reclamation as well as coal, and we work very
closely--the BLM recognizes the infrastructure that we have in
place for reclamation. So we actually augment a lot of their
work, and we have a memorandum of agreement with them that
governs how we regulate non-coalmines and reclaim non-coalmines
as well.
So as it stands right now, we've been very effective at
doing that. Wyoming being the largest coal producer in the
country, it has most at risk, if you will, as the agency begins
to look at that subject.
Senator Barrasso. Additionally, not just that, let's talk
about a couple of other things. The written testimony, you both
expressed--you and Mr. Lambert both expressed concern about the
OSM's recent practice of second guessing the State permitting
decisions. I wonder if you could tell the committee how long
this has been taking place and what might be the reason for it?
Mr. Lambert. Thank you for the question, senator.
This just recently took place, beginning the first of the
year, when the new directives came out from OSM that they would
start second guessing our permitting decisions.
Senator Barrasso. How about the proposed stream protection
regulations? You just specifically mentioned that a little bit,
Mr. Corra. You think that that--that the OSM has faithfully
followed the current national environmental protection or the
National Environmental Policy Act during the rulemaking
process? What do you think is happening there?
Mr. Corra. Mr. Chairman, Senator Barrasso, it appears on
the surface that they are following the basic tenants of the
National Environmental Policy Act. However, the way in which
they the States, by the way, were signed up as cooperating
agencies. However, we were given massive volumes of data to
review in like a limited number of days.
The way in which they sought public input was also flawed,
in my opinion, very cursory, if you will.
Senator Barrasso. With regard to the OSM's proposed stream
protection regulations, if this goes on, the regulations are
finalized, do you think there's going to be an impact on jobs
in our home State?
Mr. Corra. Mr. Chairman, Senator Barrasso, I think it's too
early to tell. The way in which the information has been
presented to us as they have gone through--is rather
complicated. They talk about a smorgasbord. I think it will
have an impact on the industry, but I'm not sure exactly what
it is.
I think some of the original assumptions they made about
just simple fuel switching are probably too simplified. I think
when utilities begin to make choices on fuel, those choices
take on way many different dimensions than just where the coal
comes from.
Senator Barrasso. Thank you.
Thank you, Mr. Chairman.
The Chairman. Unless there's additional questions from any
panel member, I want to thank this group of witnesses. I think
it's been useful testimony and we appreciate it. We will take
your testimony to heart and hope to learn something from it.
Thank you very much.
[Whereupon, at 11:12 a.m., the hearing was adjourned.]
APPENDIXES
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Appendix I
Responses to Additional Questions
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Responses of David Hayes to Questions From Senator Bingaman
Question 1. Please provide for the record any analyses, opinions,
memoranda, or other documents, including those from the Office of the
Solicitor, regarding the legality of Secretarial Order 3315 providing
for the consolidation of the Office of Surface Mining Reclamation and
Enforcement into the Bureau of Land Management.
Answer. Any written product prepared by the Solicitor's Office
entails the provision of legal advice to the Department of the Interior
and thus is confidential attorney-client and predecisional material. It
should be noted that the report issued to the Secretary on February 15,
2012, titled Report for the Secretary on the Proposed BLM/OSM
Consolidation (Report), which can be found at: http://www.doi.gov/news/
pressreleases/loader.cfm?csModule=security/getfile&pageid=283745,
recommended that the Office of Surface Mining continue to operate as an
independent bureau within the Department and that the Director of the
Office of Surface Mining continue to report to the Secretary through
the Assistant Secretary for Land and Minerals Management. Secretarial
Order No. 3320, issued on April 13, directs implementation of the
recommendations made in the Report.
Question 2. Please provide for the record any analyses, opinions,
memoranda, or other documents regarding the pros and cons of
consolidating the Office of Surface Mining Reclamation and Enforcement
into the Bureau of Land Management. Please include any documents
regarding budgetary savings from such a consolidation.
Answer. Documents associated with this process reflect internal,
pre-decisional deliberations. Regarding budgetary savings, actual
savings will depend on the successful consolidation of various shared
support services between the two bureaus, in accordance with the
recommendations set forth in the February 15 Report.
Question 3. To whom will the OSM Director report within the
Department?
Answer. As noted above, the February 15, 2012, Report recommends
that the Office of Surface Mining continue to operate as an independent
bureau within the Department and that the Director of the Office of
Surface Mining continue to report to the Secretary through the
Assistant Secretary for Land and Minerals Management. Secretarial Order
No. 3320, issued on April 13, directs implementation of the
recommendations made in the Report.
Question 4. Please describe the federal-state-tribal relationship--
the so-called ``primacy model'' contemplated by the Surface Mining Act?
What are OSM's ongoing responsibilities under the Surface Mining
Control and Reclamation Act once a State or Tribe attains primacy?
Answer. Congress recognized the unique needs of states and tribes
and the unique environmental conditions within state and tribal
boundaries. Thus, the Surface Mining Control and Reclamation Act
encourages states and tribes to enact and administer their own
regulatory programs--that is, to attain ``primacy''--within federal
minimum standards contained in SMCRA and OSM's implementing
regulations. Once OSM approves a state or tribal regulatory program,
the state or tribe becomes the primary regulator, with respect to the
approved program, within its boundaries, while OSM provides guidance
and technical assistance to the state or tribe, conducts oversight of
approved programs, and provides backup federal enforcement as
necessary.
Question 5. One of the witnesses on the second panel stated that it
can take 7 to 10 years to get all the permits necessary to mine on BLM
lands. The same witness indicated that there are 14 levels of review in
the Department's Washington, D.C, office for NEPA Federal Register
notices. Is this correct? If not, please provide the correct
information for the record.
Answer. Each year, the Bureau of Land Management's State Offices
send from 300 to 500 Federal Register notices to the BLM Washington
Office for review, which is designed to improve the overall quality and
consistency of the BLM's Federal Register notices. Errors are
identified and corrected in about 90 percent of notices submitted for
review. Generally speaking, larger mine projects involve longer
permitting timeframes. Such projects typically require more analysis
under the National Environmental Policy Act or may entail more
controversy than a smaller mine project. Larger projects can also be
more complicated for mine operators, who may have to amend their plans
after submission. Litigation can also contribute to the length of
permitting timeframes. The agency is continuing its efforts to review
and process permits and to prepare Federal Register notices in
accordance with applicable laws.
Question 6. There has been controversy surrounding OSM's efforts to
review and revise the stream buffer zone rule. This issue is raised in
the statements of some of the witnesses on the second panel. Please
provide for the record an explanation of the process being undertaken
by the agency and why the regulation is being reviewed.
Answer. Congress specified several purposes for SMCRA, intending
that the Department strike a balance between protection of the
environment and agricultural productivity and the Nation's need for
coal. OSM must ensure not only the coal supply essential to the
Nation's energy requirements is provided but also that American coal
mines operate in a manner that protects people and the environment and
that the land is restored to beneficial use following mining.
As OSM proceeds with development of its proposed Stream Protection
Rule, it will consider the extensive comments it has already received
from the public and state and federal agencies. It will also consider
the benefits, as well as the costs, of the agency's regulatory
alternatives. OSM began seeking comments very early in the rulemaking
process.
The Environmental Impact Statement (EIS) that OSM is developing in
support of the rule will examine a range of alternatives. In addition
to analyzing the significant environmental impacts of the proposed
Stream Protection Rule and its alternatives, the EIS will evaluate the
economic impacts of each alternative and will provide OSM with critical
information needed to inform decisionmakers and the public. OSM will
take the time necessary to make informed decisions on the rulemaking,
taking into account the EIS analysis, and will provide ample
opportunity for public input on both the proposed rule and the
associated Draft EIS.
Responses of David Hayes to Questions From Senator Murkowski
Question 1. In response to a question regarding written materials
from the Solicitor's Office at the Department of the Interior related
to the Secretary's Order #3315, you agreed to provide the Committee
with copies of such materials. I respectfully ask that you do so.
Answer. As reflected in the transcript of the hearing, the Deputy
Secretary agreed during the hearing to look into the question of
whether written materials from the Solicitor's Office could be
released. Any written product prepared by the Solicitor's Office
entails the provision of legal advice to the Department and thus is
confidential attorney-client and predecisional material. It should be
noted that the report issued to the Secretary on February 15, 2012,
titled Report for the Secretary on the Proposed BLM/OSM Consolidation
(Report), which can be found at: http://www.doi.gov/news/pressreleases/
loader.cfm?csModule=security/getfile&pageid=283745, recommended that
the Office of Surface Mining continue to operate as an independent
bureau within the Department and that the Director of the Office of
Surface Mining continue to report to the Secretary through the
Assistant Secretary for Land and Minerals Management. Secretarial Order
No. 3320, issued on April 13, directs implementation of the
recommendations made in the Report.
Question 2. President Clinton's Executive Order No. 13132 on
Federalism requires a federalism impact statement be provided to the
Office of Management and Budget--containing a description of the
agency's consultation with the States, a summary of the nature of State
concerns and the extent to which those concerns have been met--when
policy actions that have a substantial impact on the States are taken.
In relation to Order #3315, will this mandate be honored?
Answer. The Department has been clear that OSM's core duties and
responsibilities prescribed by SMCRA would remain intact and under the
purview of the OSM Director, and the recommendations contained in the
February 15 report are consistent with this position. As such, the
Department does not anticipate that any proposed consolidations will
have a substantial impact on State SMCRA programs. While the provisions
of the Executive Order No. 13132, referenced in this question, pertain
specifically to the issuance of regulations, significant consultations
and meetings with Departmental employees, tribes, state agencies and
local communities, industry representatives, and congressional staff
have taken place as the Department has developed an implementation plan
for the original order.
Question 3. How will Order #3315 affect the existing productive
working relationship between OSM field personnel and state program
personnel?
Answer. We do not intend to alter the productive working
relationships in place between OSM field personnel and state program
personnel. From the beginning of this process, the goal has been to
evaluate how the Department might be able to more efficiently and cost-
effectively combine expertise and resources of the two bureaus in areas
that make sense, reducing the drain on OSM resources associated with
maintaining stand-alone support services for a bureau that has a small
employee and budget base.
Question 4. Will Order #3315 affect the allocation of funds for
state coal mine regulatory programs?
Answer. While the Department cannot comment on budget allocations
that are yet to be made, the goal has been to make government work
better by increasing efficiencies, building upon existing strengths,
and getting the most out of limited resources. As recommended in the
February 15 report, the allocation of grant monies will continue to be
made in accordance with existing OSM practices, and we do not
anticipate that any proposed consolidations will affect how these funds
for state coal mine regulatory programs are allocated.
Question 5. Will Order #3315 affect the allocation of funds to
state abandoned mine land programs?
Answer. As noted in response to the previous question, while the
Department cannot comment on budget allocations that are yet to be
made, the intent of any proposed consolidations is to make government
work better by increasing efficiencies, building upon existing
strengths, and getting the most out of limited resources. As
recommended in the February 15 report, the allocation of funds to
states for SMCRA Title IV abandoned mine land programs will continue to
be made in accordance with existing practices, and we do not anticipate
that any proposed consolidations will affect the amount or allocation
of such funds.
Question 6. Will Order #3315 change the oversight of state
regulatory and AML programs?
Answer. The February 15 report recommended that OSM's core duties
and responsibilities, including oversight of state regulatory and AML
programs, will remain intact and under the purview of the OSM Director,
and once a state or tribe attains primacy to administer its own
approved SMCRA regulatory and AML programs, OSM retains oversight
authority to assure compliance with SMCRA and the approved programs.
Question 7. Are there better ways to improve government operations
than shuffling boxes on the Interior Department's organization chart?
For example, could actions be taken to enable the BLM to benefit from
the OSM's high successful TIPS program and technology transfer programs
with states?
Answer. The Department and its bureaus are always searching for
opportunities to improve program performance, and this effort is a
positive, substantive attempt to make government work better, to build
on our strengths, and to get the most out of available resources.
Question 8. How much money could be saved by reducing waste at the
OSM caused by a management decision to turn regional or local issues
(e.g., mountaintop mining and revised stream protection rules) into
national issues which are not germane to most parts of the country?
Answer. Congress specified several purposes in SMCRA, intending
that we strike a balance between protection of the environment and
agricultural productivity and the Nation's need for coal. OSM must
ensure not only the coal supply essential to the Nation's energy
requirements is provided but also that American coal mines operate in a
manner that protects people and the environment and that the land is
restored to beneficial use following mining. Mountaintop mining and the
protection of streams from the potential adverse effects of coal mining
are critical issues of national importance. Such national issues are
traditionally coordinated at OSM headquarters, with appropriate input
from regional and field offices. This time-honored and effective
approach does not constitute waste.
Question 9. How will the inevitable change in culture that follows
a consolidation of agencies affect state regulatory programs?
Answer. The Department has been clear that OSM will continue to
fulfill the core missions assigned to it by statute, including approval
of state and tribal regulatory programs and subsequent program
amendments and oversight of those programs. Thus, we anticipate that
the OSM-state/tribal relationships will remain largely the same. As
discussed in the February 15 report, the goal is to improve OSM's
ability to perform core functions by leveraging the existing expertise
and resources of BLM and OSM in areas that make sense, and reducing the
drain on OSM resources that is associated with maintaining stand-alone
support services for a bureau that has a small employee and budget
base.
Question 10. Would Order #3315 affect existing cooperative
agreements under which states regulate coal mining on federal lands?
Would a consolidation affect other agreements between western states
and DOI, such as agreements on the regulation of non-coal mining on
federal lands?
Answer. We do not anticipate that any of the recommendations
contained in the February 15 report will result in changes to these
cooperative agreements.
Question 11. Where will the cost savings from the consolidation be
realized and in what exact amounts, over time?
Answer. One of the goals is to create efficiency in administrative
functions in order to maximize the resources available to perform core
agency functions. Actual savings will depend on the successful
consolidation of various shared support services between the two
bureaus, in accordance with the recommendations set forth in the
February 15 Report.
Question 12. Why were the states not consulted about this matter
since they are the primary stakeholders under the various organic laws
affected by this consolidation? How and when does Interior plan to
consult with the states and tribes to receive their input on the
consolidation and what it may mean for interaction between the federal
government and state governments under both SMCRA and the federal land
management laws?
Answer. Significant consultations and meetings with Departmental
employees, tribes, state agencies and local communities, industry
representatives, and congressional staff have taken place as the
Department has moved forward with its review.
Question 13. How will Order #3315 impact the role of the states
under SMCRA, especially in terms of funding for state Title V
(regulatory grants) and Title IV (AML grants)? How will it specifically
impact the administration of the AML program under Title IV of SMCRA?
Does it reflect a further attempt to accomplish by Secretarial order
what the President has proposed for the AML program as part of his
deficit reduction plan?
Answer. OSM's core duties and responsibilities, including oversight
of state regulatory and AML programs, will remain intact and under the
purview of the OSM Director, and once a state or tribe attains primacy
to administer its own approved SMCRA regulatory and AML programs, OSM
retains oversight authority to assure compliance with SMCRA and the
approved programs. Moreover, while the Department cannot comment on
budget allocations that are yet to be made, the allocation of grant
monies and funds for SMCRA Title IV abandoned mine land programs will
continue to be made in accordance with existing practices.
Question 14. How will the consolidation affect the current chain of
command within the Interior Department, especially with regard to
federal oversight of state programs? How could this consolidation
impact the cooperative working relationship that has generally attended
the implementation of SMCRA and FLPMA? Who will have primary lead
responsibility for the new organization--BLM or OSM? How can a
``consolidation'' result in the continued viability of two separate
agencies, as suggested by some of the press materials distributed by
the Department of the Interior?
Answer. The February 15 report recommends that the Office of
Surface Mining continue to operate as an independent bureau within the
Department and that the Director of the Office of Surface Mining
continue to report to the Secretary through the Assistant Secretary for
Land and Minerals Management.
Question 15. Does the Department of the Interior anticipate that
changes will be needed to the organic acts affected by the
consolidation? How does the Department of the Interior intend to
reconcile the differing missions of BLM and OSM under the various
organic laws affected by the consolidation?
Answer. As discussed in the February 15 report, the focus of the
proposal is on those functions in the two bureaus that are
complementary, including environmental restoration activities and
administrative support functions. As a result, no changes to the
organic acts are needed to implement the recommendations contained in
the February 15 report.
Question 16. How will this consolidation save money and achieve
governmental efficiency, other than the potential for combining some
administration functions? Will the combination of other functions
(inspection, enforcement, oversight) actually result in the expenditure
of more money, especially if the federal government assumes
responsibilities that were formally entrusted to the states?
Answer. As discussed in the February 15 report, efficiencies will
be gained through a consolidation of some functions, though there may
be transition costs in the early stages of implementation. The
Department can advance the congressionally-mandated missions of both
bureaus more efficiently and cost-effectively by combining the
expertise and resources of BLM and OSM in areas that make sense. We do
not anticipate that the federal government will assume responsibilities
that are currently entrusted to the states.
Question 17. Historically, BLM's primary mandate has been on the
management of public lands in western states. Under Order #3315, how
would the agency effectively shift to managing mining operations on
state and private lands in the central and eastern portions of the
country? How will this save money?
Answer. The February 15 report recommended that OSM continue to
perform the core duties and responsibilities assigned to it under
SMCRA. The focus of the proposal is on those functions in the two
bureaus that are complementary, including environmental restoration
activities and administrative support functions.
Question 18. SMCRA specifically states that OSM cannot merge with
any legal authority, program, or function of an agency that promotes
the leasing of coal or regulates the health and safety of miners in 30
USC 1211(b). Are you aware of this provision?
30 USC 1211(b)
The Office may use, on a reimbursable basis when appropriate,
employees of the Department and other Federal agencies to
administer the provisions of this chapter, providing that no
legal authority, program, or function in any Federal agency
which has as its purpose promoting the development or use of
coal or other mineral resources or regulating the health and
safety of miners under provisions of the Federal Coal Mine
Health and Safety Act of 1969 (83 Stat. 742) [30 U.S.C. 801 et
seq.], shall be transferred to the Office.
Answer. The Department is aware of this provision and any proposed
reorganization would be implemented in compliance with this provision
and any other applicable laws.
Question 19. In Order #3315, you propose integration of core OSM
and BLM functions, including regulation, inspection and enforcement,
state program oversight, and fee collection. But as noted above, SMCRA
specifically prohibits the transfer of such legal authority to OSM.
Isn't this proposed integration prohibited by law?
Answer. We continue to be mindful of all provisions of SMCRA, and
intend to continue compliance with the law, as we move forward.
Question 20. Does Reorganization Plan #3 give full discretion to
the Secretary to organize the department as he sees fit?
Answer. Reorganization Plan No. 3 of 1950 gives the Secretary broad
reorganization authority, subject to other express statutory language,
such as 30 U.S.C. 1211(b), as cited above.
Question 21. Is that authority not limited by subsequent
Congressional action that specifically addresses the organization of
the Department?
Answer. As noted in response to the previous question, the broad
reorganization authority under Reorganization Plan No. 3 of 1950 may be
exercised subject to other express statutory provisions.
Responses of David Hayes to Questions From Senator Barrasso
Question 1. A number of witnesses at the Committee's hearing
questioned whether the Secretary has the legal authority to merge the
Bureau of Land Management (BLM) and the Office of Surface Mining
Reclamation and Enforcement (OSM).
Has the Solicitor issued a written legal opinion on the
proposed merger?
If so, would you make the written legal opinion available to
the Committee?
Answer. Any written product prepared by the Solicitor's Office
entails the provision of legal advice to the Department and thus is
confidential attorney-client and predecisional material. It should be
noted that the report issued to the Secretary on February 15, 2012,
titled Report for the Secretary on the Proposed BLM/OSM Consolidation
(Report), which can be found at: http://www.doi.gov/news/pressreleases/
loader.cfm?csModule=security/getfile&pageid=283745, recommended that
the Office of Surface Mining continue to operate as an independent
bureau within the Department and that the Director of the Office of
Surface Mining continue to report to the Secretary through the
Assistant Secretary for Land and Minerals Management. Secretarial Order
No. 3320, issued on April 13, directs implementation of the
recommendations made in the Report.
Question 2. Why did the Secretary fail to consult with the States
and Indian tribes before issuing Order No. 3315?
Answer. As indicated in the February 15 report, significant
consultations and meetings with Departmental employees, tribes, state
agencies and local communities, industry representatives, and
congressional staff have taken place as the Department has moved
forward with its review.
Question 3. It is my understanding that the Secretary plans to
consult with the States and tribes sometime in the future.
When will the Secretary consult with the States and tribes?
How will the Secretary ensure that such consultation is
meaningful given that it will take place after the effective
date of Order No. 3315?
Answer. As indicated in the response to the previous question,
significant consultations and meetings with Departmental employees,
tribes, state agencies and local communities, industry representatives,
and congressional staff have taken place as the Department has moved
forward with its review.
Question 4. The state regulators at the Committee's hearing
expressed concerns that the proposed merger will affect the Abandoned
Mine Land (AML) program under the Surface Mining Control and
Reclamation Act (SMCRA).
Will the proposed merger affect the AML program?
If so, how?
Answer. OSM's core duties and responsibilities, including oversight
of state regulatory and AML programs, will remain intact and under the
purview of the OSM Director, and once a state or tribe attains primacy
to administer its own approved SMCRA regulatory and AML programs, OSM
retains oversight authority to assure compliance with SMCRA and the
approved programs.
Question 5. The state regulators at the Committee's hearing
expressed concerns that the proposed merger will affect the States'
regulatory authority under SMCRA.
Will the proposed merger affect the States' regulatory
authority under SMCRA?
If so, how?
Answer. We do not anticipate changes to state regulatory authority
under SMCRA. The Department has been clear that OSM's core duties and
responsibilities prescribed by SMCRA will remain intact and under the
purview of the OSM Director, and once a state or tribe attains primacy
to administer its own approved SMCRA regulatory and AML programs, OSM
retains oversight authority to assure compliance with SMCRA and the
approved programs.
Question 6. The state regulators at the Committee's hearing
expressed concerns that the proposed merger will affect OSM's
regulatory grants to States under SMCRA.
Will the proposed merger affect OSM's regulatory grants to
States under SMCRA?
If so, how?
Answer. We do not anticipate that the administration of the AML
program under Title IV of SMCRA will be affected. The Department has
been clear that OSM's core duties and responsibilities prescribed by
SMCRA will remain intact and under the purview of the OSM Director.
Once a state or tribe attains primacy to administer its own approved
SMCRA regulatory and AML programs, OSM retains oversight authority to
assure compliance with SMCRA and the approved programs. Moreover, while
the Department cannot comment on budget allocations that are yet to be
made, the allocation of grant monies and funds for SMCRA Title IV
abandoned mine land programs will continue to be made in accordance
with existing practices.
Question 7. A witness at the Committee's hearing expressed concerns
that the proposed merger will result in permitting delays.
What steps will the Secretary take to ensure that the
proposed merger will not result in permitting delays at OSM and
BLM?
Answer. This proposal is a positive, substantive attempt to make
government work better, to build on our strengths, and to get the most
out of available resources. As indicated in the February 15 report,
significant consultations and meetings with Departmental employees,
tribes, state agencies and local communities, industry representatives,
and congressional staff have taken place as the Department has
developed an implementation plan for the original order.
Responses of David Hayes to Questions From Senator Heller
Question 1. As you know, the Department of the Interior (DOI)
natural resource development on public lands brings in vast revenue for
the federal government. Additionally, the resource development industry
has been one of the few areas of our economy where we have seen growth
in recent years. Increased production means more jobs, more economic
activity, and ultimately, more money to the federal treasury.
I am generally concerned about this Administration's approach to
energy and natural resource development--especially during these
challenging times when jobs, revenue, and affordable energy resources
are more important than ever.
In my home state of Nevada, the mining industry is one of the few
bright spots in our economy. Nevada's unemployment is 13.4%, but in our
largest mining region, it is more than 6% lower. Our mining industry
could be even more robust if DOI had policies that promoted responsible
development. In fact, I recently introduced S. 1844, which is
legislation to address administrative delays for public lands
permitting. My legislation would give DOI 45 days to complete required
Washington office reviews of Notices of Availability required by the
National Environmental Policy Act prior to publication in the federal
register.
I don't know if you are aware that this one administrative
requirement can add up to a year to the permitting process for a mining
plan of operations. This is ridiculous. I would suggest that adopting
my legislation would be a good first step towards real reform of
duplicative and unnecessary regulations within DOI.
Policies that promote responsible resource development are good for
our economy. In that light, my question to you is: with this proposal
to merge BLM and OSM functions, how can you be certain that it won't
complicate an already cumbersome permitting process and further delay
job creation?
Answer. The Department and its bureaus are always searching for
opportunities to improve program performance, and the consolidation of
certain overlapping functions implemented by two bureaus in the same
Departments is a positive, substantive attempt to make government work
better, to build on our strengths, and to get the most out of available
resources. The agencies are continuing their efforts to process various
mining applications, permits, and notices of availability in a timely
fashion with a view to meeting the requirements of applicable laws.
Question 2. I also have a question that relates to broader issues
of access to public lands. I am aware of a new draft proposal by DOI to
limit access to certain federal lands for shooting sports. I do not
take restriction of 2nd Amendment rights lightly. Nearly 85% of Nevada
is controlled by the federal government--and most of that land is under
the management of the Bureau of Land Management (BLM). Access to public
land is vital for the economic health and character of my state. The
mere assertion that some people ``freak out'' about gun rights isn't
enough of a reason to alter the Constitution.
1. Can you give me specific examples in Nevada of places
where the BLM has determined ``social conflicts'' relating
Second Amendment rights exist?
2. Who should decide what constitutes a ``social conflict''
that merits federal action--DOI? Congress? Voters?
3. Do you believe Congress has been unclear in defining the
scope of Americans' Second Amendment rights?
4. Does DOI believe that different backcountry activities,
such as hunting and hiking, are mutually exclusive?
5. Given that a DOI employee has stated that this policy is
not a result of public safety concerns, does the draft policy
reflect a position that sportsmen's activities do not enjoy
equal protection under BLM multiple-use mandate? Please
explain.
Answer. The Department supports opportunities for hunting, fishing
and recreational shooting on federal land. By facilitating access,
multiple use and safe activities on public lands, the Bureau of Land
Management helps ensure that the vast majority of the 245 million acres
it oversees are open and remain open to recreational shooting. Based on
feedback received from the Wildlife and Hunting and Heritage
Conservation Council, Secretary Salazar directed the BLM, on November
23, 2011, to take no further action to develop or implement the draft
policy on recreational shooting referenced in your question and to
manage recreational shooting on public lands under the status quo under
existing authorities.
______
Responses of Joe Pizarchik to Questions From Senator Barrasso
Question 1. A number of witnesses at the Committee's hearing
expressed concerns about OSM's increased use of ten day notices.
Why is OSM increasing its use of ten day notices?
Answer. OSM has undertaken oversight improvement initiatives that
include increasing the number of OSM's oversight inspections, including
independent inspections, for the purpose of evaluating how states
administer their SMCRA regulatory programs. The number of Ten Day
Notices (TDNs), the instrument that OSM uses to notify states of
alleged or actual violations, has increased along with the number and
type of inspections. These notifications allow states to take action to
rectify those violations or show good cause for not taking action, such
as demonstrating that the violation does not exist under the approved
program. Most TDNs are resolved cooperatively with state regulatory
authorities.
Question 2. A number of witnesses at the Committee's hearing
expressed concerns about OSM's proposed stream protection regulations
and the manner in which the agency has conducted the rulemaking
process.
What steps will OSM take to ensure that state regulators,
especially regulators representing cooperating agencies for the
purposes of the National Environmental Policy Act, have a
meaningful opportunity to comment during the rulemaking
process?
What steps will OSM take to ensure that the public has a
meaningful opportunity to comment during the rulemaking
process?
Answer. All state agencies will have the opportunity to comment on
the proposed stream protection rule and DEIS when the proposed rule and
notice of availability of the DEIS are published in the Federal
Register. Nineteen state agencies, including 11 state regulatory
authorities, are serving as cooperating agencies in development of the
DEIS under NEPA, and OSM is carefully considering their input in the
ongoing process of preparing the DEIS. OSM values the expertise of the
state cooperating agencies, and appreciates the time and resources they
are contributing to the development of the proposed rule.
The public will be given the opportunity to comment on the proposed
rule and DEIS, in accordance with applicable Federal law, including the
Administrative Procedure Act and NEPA. OSM will respond to the public
comments it receives, and consider them when taking final action on the
rule and EIS. Any final rule and final EIS will be published in the
Federal Register. Publication of the draft rule will build upon earlier
extensive public outreach conducted by OSM. Although not required by
law, OSM issued an Advance Notice of Proposed Rulemaking to solicit
early public comments on issues that ought to be addressed in the
regulation. This advance notice generated over 32,000 public comments.
OSM also conducted 15 stakeholder outreach sessions with a broad cross-
section of stakeholders, including state and tribal regulatory
authorities, industry, environmentalists and others, to obtain further
input. Additionally, OSM held nine public scoping meetings across the
country to obtain initial public input for the development of the DEIS,
consistent with the requirements of NEPA.
Question 3. It is my understanding that OSM's former contractor
estimated that the proposed stream protection regulations would cost
thousands of jobs. I am concerned that OSM's new contractor may be
subject to improper influence with respect to job loss estimates.
What steps is OSM taking to ensure that the individuals
responsible for estimating job losses from the proposed stream
protection regulations will not be subject to improper
influence?
Answer. OSM is currently completing an analysis of the
environmental impacts of the rule under development, in accordance with
NEPA and other applicable federal law. This analysis will include
relevant socioeconomic impacts, including impacts to jobs, costs, etc,
as appropriate. OSM staff is completing those portions of the analysis
for which the agency has in-house expertise. For certain other portions
of the NEPA analysis, OSM has hired a contractor with significant
technical expertise and experience in the Federal NEPA process. The
completed analysis will be based on sound science and clearly
articulated methodologies. As required by NEPA, it will make explicit
reference to scientific and other sources relied upon for its
conclusions. To help ensure confidence in the integrity of the process,
OSM has also arranged for the DEIS analysis and conclusions to be
evaluated in a peer review process. When OSM completes the DEIS and
proposed rule, they will be made available for public review and all
interested parties will at that time have the chance to comment on
OSM's analysis, methodologies, assumptions and conclusions.
Appendix II
Additional Material Submitted for the Record
----------
Buffalo Creek Watershed Association,
Claysville, PA.
Ken Salazar,
Department of the Interior, 1849 C Street, NW, Washington, DC.
Secretary Salazar:
While there is national awareness that significant changes need to
be made to reduce the national deficit, there is no consensus on what
those changes should be. Many agencies, institutions, and organizations
are experiencing trepidation as legislators struggle to stabilize the
economy. Of utmost concern to the Buffalo Creek Watershed (BCWA) and
similar community-based environmental protection organizations, is the
potential adverse impact that selected corrective action proposals such
as Secretarial Order No. 3315, driven by a mandated deadline and
initiated without the benefit of congressional consultation or public
input, may have on the environment and the future health, safety, and
welfare of the nation's citizenry.
Downsizing and consolidation of services are popular contemporary
strategies for capturing operational efficiencies and lowering costs--
actions that tend to be politically, if not publically, appeasing and,
once approved, quickly implemented. The most expeditious strategy,
however, is not necessarily the most optimal; and, what may prove
economically feasible is not necessarily morally appropriate.
The Office of Surface Mining (OSM) and the Bureau of Land
Management (BLM) have conflicting purposes and responsibilities. In
addition, there is substantial anecdotal and documented evidence to
suggest that neither entity is functioning in a consistently efficient
and effective manner. So, here we are once again in reaction mode,
attempting to ``band-aid'' known operational deficiencies within two
governmental agencies that could and should have been proactively
addressed. That being said, the internal weaknesses of those two
agencies will most likely not be resolved by bureaucratizing them.
Rightsizing and restructuring would be the more prudent approach
subjecting both to a rigorous long-overdue analysis and reform that
would ultimately streamline operations, reduce costs, and maximize the
performance of both agencies.
The BCWA is not opposed to exploring opportunities for improving
the function of the OSM and the BLM. It is strongly opposed, however,
to entombing the OSM in a behemoth administrative quagmire of
conflicting interests that threaten to diminish the OSM's regulatory
and enforcement responsibilities, and timely response to environmental
threats. The BCWA challenges the notion that an OSM/BLM merger will
boost industry oversight or coal reclamation. This proposal,
incidentally or deliberately, offers another obvious ``pass'' to the
coal industry at the expense of public health and safety and
preservation of the nation's natural resources.
The sense of urgency to address the country's economic woes is
legitimate. It is interesting, however, that the Department of the
Interior has targeted the OSM as a problematic agency given a press
release just one year ago (November 18, 2010) in which you, the
Assistant Secretary for Land and Minerals Management Wilma Lewis, and
OSM Director Joseph Pizarchik commended OSM initiatives to improve
oversight of state surface coal mining programs and its ``great strides
in establishing and enacting consistent, transparent and effective
policies.''
Know that the BCWA does not support Secretarial Order No. 3315--
Consolidation of the OSM within the BLM. It is the association's
contention that any immediate savings that might be realized under this
proposal would be minimal compared to the long-term impact of, and
potentially catastrophic costs associated with, diminished
environmental protection. Frankly, this proposal, when viewed
collectively with the recent budget and human resource reductions to
the states' Department of Environmental Protection, and proposed plan
of some presidential candidates and legislators to eliminate the
federal Environmental Protection Agency, makes this proposal
conspiratorially suspect. As one of many front-line environmental
protection organizations the BCWA is intimately aware of the legacy of
land and water damage sustained from decades of irresponsible mining
practices and lax governmental oversight and enforcement. We decry any
legislative decision that values the special interests of an industry
over that of citizens, wildlife, aquatic life, and habitat.
______
Statement of Mary Ellen DeClue, Litchfield, IL
Dear Secretary Salazar and Ms. Adams:
Thank you for the opportunity to comment on Secretarial Order No.
3315 that places OSMRE in the Bureau of Land Management.
My home is surrounded by coalfields and a coal fired utility. My
community as well as others in Illinois have endured adverse effects of
polluted air, water and subsided farmland. Illinois Department of
Natural Resources/Office of Mines and Minerals approves permits and
promotes agendas of mine operators without consideration of the health
of residents and contamination of the environment.
OSMRE is a vital community resource that citizens can turn to with
concerns, questions, and guidance. If this agency is placed in the BLM,
the focus and viability to citizens will be lost.
There are consistent violations of SMCRA, the Clean Air Act, and
the Clean Water Act that are allowed. Addressing these issues through
Administrative Review with a hearing officer hired by and directed by
IDNR/OMM is a meaningless, expensive process for citizens.
OSMRE, represented by the Alton Field Office and the Indianapolis
Area Office, has consistently been available to listen, examine, and
address concerns of coalfield residents. Over the last 3 years, I have
personally had many one-on-one meetings, e-mail communications, and
letter correspondence with this office.
IDNR/OMM was approving underground coal slurry injection into mine
voids through insignificant permit revisions. The public was not
involved or informed that this was taking place or that their well
water might be contaminated. OSMRE addressed this matter and IDNR/OMM
now recognizes coal slurry injection applications to be considered as a
significant permit revision.
Citizens living in coal communities need a voice and ability to
communicate local effects to a national directory. If OSMRE is lost in
the mega complex of BLM, their issues will not only be
``insignificant,'' but their cumulative effects will not be recognized.
The attention of OSMRE to issues of coal mining in the Mid-West is
illustrated by the Director of OSMRE, Joseph Pizarchik, along with
Erwin Barchenger and Andy Gilmore's productive meeting on June 20, 2011
with me and several citizens to listen to our issues in order to
minimize the adverse impacts of coal mining in communities.
OSMRE should not be changed, but rather additional funding would
greatly help them do their mission of protecting communities. I
strongly oppose the Secretarial Order No. 3315 that would place OSMRE
in the Bureau of Land Management.
______
Southwest Virginia,
November 30, 2011.
Department of the Interior,
1849 C Street, N.W., Washington DC.
Email: [email protected]
Dear Ms. Adams:
We wish to submit comments on the above referenced order No. 3315.
We understand that a Senate Congressional hearing was held on November
17th and we wish the following comments to be made a part of the public
record for the November 17th hearing.
We do not represent an organization, with the exception of one
organization who chose to be signatory to the comments, but we do
represent a loose knit set of community members in southwest Virginia
that have a vested interest in the proposed folding of OSM into BLM.
Order No. 3315 is an absurd proposition and we do not support the move.
Although residents of the coalfield communities are not always in
complete agreement with OSM's actions, we realize their importance in
the scheme of industry activities and their oversight and evaluation
worth. In the absence of such activities, we feel that the communities
of the coalfields would be even more at risk.
OSM was established by Congress to be a separate entity and we fear
Secretary Salazar has neither the authority nor the right to move OSM
into BLM where OSM's numbers and resources could be treated with very
real inferiority.
SMCRA (1977) prohibits the integrating of OSM with any Federal
agency ``whose purpose is promoting the development or use of coal or
other mineral resources'' (Sec. 201), which is a primary responsibility
of the BLM. Moving OSM into BLM would be a direct violation of SMCRA.
BLM is primarily a land management and mineral leasing agency while
the duty of OSM is to be a law enforcement agency related to coal
mining and reclamation. Combining these will create a dysfunctional
bureaucratic agency with employees at odds internally. It would be an
impossible situation.
The Appalachian people frequently feel they are left out of
conversations regarding decisions that affect their communities, their
health, and their environment. This is currently being repeated again.
OSM has the role of protecting our communities from the irresponsible
actions of coal mining operations. On many occasions, these mining
operations are very close neighbors to us. The Interior Dept. must
understand and acknowledge OSM's role in our communities as valid and
important.
Thank you for the opportunity to submit our comments to be included
in the record for the November 17th congressional hearing on this very
important matter.
Respectfully submitted,
Kathy Selvage, Gary Selvage, Tommy Kilgore, Joyce
Kilgore, Mary Ellen Kelly, Carl Ramey,
Louise D. Ramey, Margaret Flynn, Elizabeth
Jaspers, Lucy Spencer, Marlene Bush, Larry
Bush, Raymond Davidson, Dorothy Taulbee,
Maude Jervis, Mary Pace, Samuel Needham,
Judy Needham, Bill Wilder, Rita Carr, Gary
Bowman, Carol Bowman, Jackie Hanrahan, CND,
Appalachian Faith & Ecology Center.
______
Trout Unlimited,
Arlington, VA, November 23, 2011.
Hon. Jeff Bingaman,
Chairman, U.S. Senate Committee on Energy and Natural Resources, 304
Dirksen Senate Building, Washington, DC.
Hon. Lisa Murkowski,
Ranking Member, U.S. Senate Committee on Energy and Natural Resources,
304 Dirksen Senate Office Building, Washington, DC.
Dear Chairman Bingaman and Ranking Member Murkowski: I am writing
on behalf of Trout Unlimited (TU) and its 140,000 members nationwide
with concerns regarding the consolidation of the Office of Surface
Mining (OSM) and Bureau of Land Management (BLM) as announced by U.S.
Department of the Interior Secretary Salazar on October 26, 2011 in
Secretarial Order 3155. The Order was the subject of a hearing last
week before your Committee. Please include this letter in the hearing
record.
TU's mission is to conserve, protect and restore North America's
trout and salmon fisheries and their watersheds. In pursuit of this
mission, TU works to clean up abandoned coal mines throughout the
Appalachian coal fields and protect high-quality coldwater fisheries
from new mining operations that threaten to pollute these sensitive
headwater ecosystems. In particular, TU has received technical support
from the OSM and financial assistance through its Watershed Cooperative
Agreement Program--both of which have been critical components to the
planning and implementation of numerous abandoned coal mine remediation
projects.
As a result of our positive experiences working with the OSM and
our overall efforts to protect high-quality coldwater streams, we list
the following concerns regarding the consolidation of OSM and BLM:
1. From the standpoint of integrating two agencies with
different--and somewhat conflicting--roles, we are concerned
about OSM's ability to continue the active enforcement of coal
mining operations once it becomes part of the BLM. OSM is
statutorily required by the 1977 Surface Mining Control and
Reclamation Act (SMCRA) to enforce regulations that protect
citizens and the environment from coal mining operations and
ensure that the land is properly reclaimed post-mining. On the
other hand, BLM is responsible for managing and leasing
millions of surface and sub-surface acres for the purpose of
mineral extraction.
2. We are concerned about the potential for the consolidation
of OSM and BLM to impact OSM's Watershed Cooperative Agreement
Program (WCAP) and the relationship that citizen groups have
developed with OSM over the past few decades regarding
abandoned coal mine cleanup. The tens of millions of dollars
from OSM's WCAP have played an important role in helping
citizen groups fund and implement on-the-ground abandoned mine
drainage remediation projects. Additionally, OSM staff have
provided invaluable technical support to citizen groups, and
have helped to ensure that projects are implemented in a cost-
effective, technically sound manner.
3. We have questions about whether the Title IV Abandoned
Mine Land Fund of SMCRA as reauthorized in 2006, and
subsequently the Abandoned Mine Land programs led by states,
will be affected by the consolidation of OSM and BLM. Our
concern is that changes to the Title IV fund could impact the
amount of restoration work being done on the ground.
TU strongly urges the Committee to ensure that the Department of
the Interior addresses these concerns before it moves forward with the
consolidation of OSM and BLM. It is imperative that solutions or
policies are developed to adequately address any negative impacts to
OSM's roles and programs as a result of consolidation with the BLM.
Sincerely,
Steve Moyer,
Vice President of Government Affairs.
______
Navajo Nation Department of Justice,
Office of the Attorney General,
Navajo Nation, AZ, November 17, 2011.
Dear Chairman Bingaman, Ranking Member Murkowski, and Members of
the Committee on Energy and Natural Resources:
The Navajo Nation welcomes this opportunity to comment on the
recent, and startling, news that the Department of the Interior
(Interior) intends to consolidate the Office of Surface Mining
Reclamation and Enforcement (OSM) within the Bureau of Land Management
(BLM), two departments within Interior which are of critical importance
to the Navajo Nation (Nation). This proposed consolidation was done
without any consultation with the Nation as required under Executive
Order 13175 and pursuant to the federal trust responsibility, without
adequate planning and coordination with the Nation's programs which
operate under direct federal grants from one or more of these agencies,
without consideration of the impact on the Nation's Abandoned Mine Land
Reclamation (AML) Program and Surface Coal Mining and Reclamation
(Surface Mining) Program, under Titles IV and V, respectively, of the
Surface Mining Control and Reclamation Act of 1977 (SMCRA), 30 U.S.C.
Sec. Sec. 1201 et seq.
FEDERAL TRUST RESPONSIBILITY AND REQUIREMENT FOR CONSULTATION
On October 26, 2011, Secretary Ken Salazar, Department of the
Interior, issued Secretarial Order No. 3315 (Order) which would
consolidate OSM with BLM, and would ``integrate the management,
oversight, and accountability of activities associated with mining
regulation and abandoned mine land reclamation; ensure efficiencies in
revenue collection and enforcement responsibilities; and provide
independent safety and environmental oversight of these activities.''
Secretarial Order No. 3315. As recognized in Executive Order 13175, the
federal trust responsibility requires prior and meaningful consultation
with the Navajo Nation on agency actions with tribal implications. See
Executive Order 13175, 65 Fed. Reg. 67249, 6724967252 (Nov. 6, 2000)*;
see DOI Departmental Manual, 512 DM 2 (``It is the policy of the
Department . to consult with tribes on a government-to-government basis
whenever plans or actions affect tribal trust resources, trust assets,
or tribal health and safety''); see also DOI Departmental Manual 303 DM
2 (``The proper discharge of the Secretary's trust responsibilities
requires that persons who manage Indian trust assets . . . [p]romote
tribal control and self-determination over tribal trust lands and
resources''). ``Policies that have tribal implications'' are
specifically defined under EO 13175 as ``proposed legislation ... or
actions that have substantial direct effects on one or more Indian
tribes .. . .'' Id. at 6249 (emphasis added).
---------------------------------------------------------------------------
* Document has been retained in committee files.
---------------------------------------------------------------------------
In this case, the Order is clearly an action with tribal
implications. Yet, contrary to clear federal policy, prior to the
Secretary issuing the Order, there was no consultation with any Nation
official, at any level, by any official in the Department of the
Interior, including any official in OSM or BLM. Moreover, Secretary
Salazar apparently has no intention of consulting with Indian tribes
before the Order becomes effective on December 1, 2011. See October 26,
2011 Memorandum from Secretary Salazar to Directors of OSM and BLM
(``The Order will become effective December 1, 2011, following
consultation with the White House, Office of Management and Budget,
employees, and applicable congressional committees with
responsibilities over these functions'') (emphasis added).
Unfortunately, due to the lack of consultation with the Nation, the
full extent of the impacts of the Order on the Nation and its affected
programs remains unclear.
Undoubtedly, in order to accommodate the merger of the two
agencies, the Order will require substantial rewriting of multiple
federal laws and regulations, including laws and regulations that
directly impact the Nation's AML and Surface Mining Programs. The
Nation will also have to rewrite the Nation's own laws and policies, as
well as agreements with OSM, to correspond with changes to OSM and BLM
resulting from the Order, including the Navajo Abandoned Mine Lands
Reclamation Act, 18 N.N.C. Sec. Sec. 1601 et seq., the Navajo
Reclamation Plan, and the Nation's cooperative funding agreements with
OSM. In addition, OSM and BLM are partners with the Bureau of Indian
Affairs (BIA) in a multi agency agreement addressing management of coal
mining on Indian lands, and that agreement would also have to be
amended.
Moreover, the changes under the Order will directly impact tribal
trust assets, and the federal land management responsibility to restore
tribal lands impacted by past federally approved mining activities. The
Nation's primary economic assets are its coal, oil, and gas resources,
resources which are directly regulated by BLM and OSM. The federal
government and the Department of the Interior in particular have an
obligation to manage these resources in the best interests of the
Nation. Additionally, past mining activities on the Nation, approved by
the federal government, and expressly benefiting United States defense
interests, have left a legacy of adverse health, safety and economic
impacts on the Nation. The federal government, as the Nation's trustee,
has an obligation to ensure these impacts are addressed and not further
adversely impacted by the proposed consolidation of OSM into BLM.
POTENTIAL SMCRA TITLE IV IMPACTS
The Nation's AML Program has ongoing reclamation responsibility for
260 identified coal sites and approximately 1100 identified non-coal
mine sites, primarily uranium mine sites left over from the long
federal legacy of uranium mining to support U.S. defense efforts. The
Nation's AML Program also provides leverage funding for crucial
infrastructure projects in tribal communities most impacted by the
legacy of mining on the Nation. The Order would impact communication
and coordination between the federal officials directing responsible
for engaging with the Nation's AML Program on these important
activities, including strategic planning, facilitating grants,
providing technical assistance, and ensuring continuity of vital AML
Program activities on the Nation, and the long-term stewardship of the
land.
Given the great success of the Nation's AML Program, the Nation
finds it alarming that the Secretary has decided to issue his Order. In
partnership with OSM, the Nation's AML Program works. Since 1988, the
Nation's AML Program has developed a proven track record of effectively
reclaiming both coal and non-coal abandoned mine sites, as evidenced by
five AML reclamation awards given to it by OSM, including two national
awards for extraordinary efforts in reclamation. The Order, issued
without any consultation or consideration of this past history and
success, has the potential to dislocate an excellent federal-tribal
working relationship.
POTENTIAL SMCRA TITLE V IMPACTS
As with the Title IV comments above, the Nation is concerned with
the impact the Order would have on the development of the Nation's
Surface Mining Program. Specifically, the Nation is concerned with the
impact this Order will have on the establishment and continued growth
of the Nation's Surface Mining Program, including future funding for,
and development of, the Navajo Nation Mining and Reclamation Act. Since
1982, the Nation has been working diligently with OSM for the Nation to
obtain regulatory primacy over coal mining operations occurring on the
Nation's lands. This endeavor has and will continue to require
continuous and close contact between the Nation's officials and
representatives of OSM. The Order may very well adversely impact the
Nation's, and OSM's, long efforts to achieve this important goal
consistent with the federal policy for tribal self-determination and
control of its resources.
FUNDING AT RISK
The Nation has past experience with OSM and Interior regarding
potential reductions in funding without adequate consultation with the
Nation. For example, OSM and Interior have previously attempted to
reverse the 2006 amendments to SMCRA, amendments which were developed
and passed in close coordination with affected Indian tribes. These
efforts would have effectively eliminated AML's funding and the
Nation's AML Program in its entirety. In trying to reverse the 2006
amendments to SMCRA, as in the case of the Order here, OSM and Interior
repeatedly failed to meaningfully consult with the Nation.
Similarly, here, in addition to the appalling lack of consultation
before issuing the Order, there has been no consideration of potential,
and significant, adverse financial impacts from this reorganization on
current and future funding for the Nation's AML and Surface Mining
Programs. The Nation's AML and Surface Mining Programs receive 100% of
their funding through cooperative grant agreements with OSM.
Additionally, the Nation's Minerals Department currently receives
separate funding from BLM to carry out various natural resources
related regulatory responsibilities, funding which is potentially at
risk in a merger of these two federal agencies.
The Nation appreciates this opportunity to present testimony
regarding the potentially adverse, and unknown, impacts of the Order,
issued without any consultation or coordination with the Nation. The
federal trust responsibility demands that the Department of the
Interior consider impacts to federally recognized Indian tribes,
including the Nation, when undertaking any such actions which have such
clear and direct tribal implications. The Nation looks forward to
working together with the federal government, including the United
States Congress, under the auspices of our government-to-government
relationship, to identify and ameliorate the potential adverse impacts
to the Nation from the Secretary's Order.
Respectfully yours,
Harrison Tsosie,
Attorney General.
Paul Spruhan,
Acting Attorney General.
______
Interstate Mining Compact Commission,
Herndon, VA, October 24, 2011.
Hon. Patty Murray,
Co-Chairman, Joint Select Committee on Deficit Reduction, 448 Russell
Senate Office Building, Washington, DC.
Hon. Jeb Hensarling,
Co-Chairman, Joint Select Committee on Deficit Reduction, 129 Cannon
House Office Building, Washington, DC.
Dear Senator Murray and Representative Hensarling:
We are writing on behalf of the 34 member states and tribes of the
Interstate Mining Compact Commission (IMCC) and the National
Association of Abandoned Mine Land Programs (NAAMLP) regarding a
legislative proposal contained in the President's Plan for Deficit
Reduction related to the reclamation and cleanup of abandoned coal mine
lands (AML) located throughout the United States. We understand that
this proposal, among others, is being considered by your Committee as
part of a larger deficit reduction plan.\1\ The coal AML proposal would
have significant, deleterious impacts on current efforts by state and
tribal programs for the ongoing cleanup of abandoned mined lands and as
such we strongly oppose it. The proposal would also leave the public
with fewer protections from these dangerous hazards and would
negatively impact the environment, particularly the restoration of
mine-scarred lands and waters. In the end, there is the potential for
the loss of jobs in areas that are already economically depressed.
---------------------------------------------------------------------------
\1\ The President's Plan also includes a somewhat related proposal
that would establish a new program for the cleanup of hardrock
abandoned mine lands. While the states and tribes have strongly
advocated for a meaningful hardrock AML program, including Good
Samaritan protections for potential Clean Water Act liability, we
believe any legislative consideration and debate should occur before
the committees of jurisdiction in Congress and not as part of deficit
reduction given the complexities associated with this matter and its
potential interrelationship with the ill-conceived coal AML proposal.
In this regard, we understand a hearing on potential legislation
addressing hardrock AML is tentatively scheduled for November 17 before
the House Energy and Mineral Resources Subcommittee.
---------------------------------------------------------------------------
More specifically, the coal AML proposal would, among other things:
Eliminate AML funding to certified states and tribes
Eliminate funding to states based on historic coal
production
Eliminate minimum funding to under-funded states
Prohibit the expenditure of AML money for noncoal
reclamation
Restrict the re-payment of unappropriated (prior balance)
funds to states and tribes based on the amount of money paid
into the AML Fund by these states and tribes
Restrict the use of AML funds for future acid mine drainage
cleanups
Restrict the use of AML funds for restoration of coalfield
citizen water supplies
Restrict the use of AML funds for addressing environmental
impacts from prior coal mining
Undermine a 30 year working relationship between the states,
tribes and federal government
While the Administration attempts to make the case that these
adjustments are consistent with the will of Congress, recent amendments
in 2006 to the Surface Mining Control and Reclamation Act of 1977
(SMCRA) belie this position. Instead, what the Administration proposal
reflects is a consistent and continuing pattern of irritation and angst
about the 2006 amendments that has been reflected in attempts to undo
those amendments in every budget proposal since FY 2008. In each and
every case, Congress has rejected these proposals and, to the contrary,
has entertained legislation to further clarify the intent and focus of
the 2006 amendments in response to regulations adopted by the Office of
Surface Mining that run contrary to the law. Once again, with this
deficit reduction proposal, we see the Administration attempting to
emasculate the will of Congress as expressed in the 2006 Amendments. A
more complete analysis of the impact of the proposal is attached.
We urge the Select Committee to reject this proposal and to confirm
the intent of Congress as expressed in the 2006 Amendments to SMCRA.
While we understand that two of your primary goals are to eliminate
wasteful spending and realize savings to the federal Treasury, this
proposal would do so at the expense of existing state and tribal
programs that effectively and efficiently protect the public and
cleanup the environment. The changes worked by the Administration's
proposal would only complicate and confuse programs that are working
well by any standard of performance measurement and would also likely
undermine the future viability of these programs. Any savings realized
under the proposal are minimal as compared to what would be lost
without the continuation of these vital programs as currently
structured. Furthermore, the proposal would upset the statutory design
and interrelationship between the Title IV (AML) program under SMCRA
and the Title V program for the regulation of active mining operations,
whereby the states were entitled to receive AML grants only where a
Title V program was in place. Unduly restricting AML grants could
result in a serious reevaluation by some states concerning the
retention of those Title V programs.
The original intent of the framers of SMCRA in 1977 was to protect
public health and safety and the environment related to abandoned mine
lands as a critical part of the surface mining program. In 2006,
following 10 years of debate and eventual compromise among all affected
parties, Congress once again labored over and decided upon a revised
course of action for our nation with respect to the cleanup of
abandoned coal mine lands that built additional certainty and stability
into the program. We urge the Select Committee to allow this law to
work as intended and to defer to the authorizing committees regarding
any needed further adjustments.
We appreciate your consideration of this request and would be
pleased to answer any questions you may have or provide additional
information to the committee.
Sincerely,
Gregory E. Conrad,
Executive Director,
Interstate Mining Compact Commission.
Madeline Roanhorse,
President,
National Association of Abandoned Mine Land Programs.
ATTACHMENT.--ANALYSIS OF PROPOSAL TO REFORM AML PROGRAM
INTRODUCTION
The Obama Administration has proposed to make extensive changes to
the existing Title IV Abandoned Mine Lands (AML) Program under the
Surface Mining Control and Reclamation Act of 1977 (SMCRA). Proposed
legislation related to these changes was submitted directly to the
Joint Select Committee on Deficit Reduction, as part of the President's
``Plan for Economic Growth and Deficit Reduction. The intent of the
proposed legislation is to totally re-shape the AML program to focus
solely on coal reclamation. In addition, funding would no longer be
distributed directly to states and Indian tribes to carry out the
purposes of the Act, as directed by the 2006 Amendment to SMCRA.
Instead, every project proposed by the AML states and tribes for
potential funding would be subject to a nationwide annual competitive
grant process. More significantly, instead of states and tribes
determining the priority for funding abandoned mine projects within
their jurisdictions, the decision for awarding funding for specific
projects would rest solely with the Secretary of Interior. This would
undermine the concept of primacy under SMCRA and damage the working
relationship between OSM and the states and tribes, replacing it with a
single autonomous authority that would essentially federalize the
process.
The Administration has proposed similar changes through the budget
process over the past several fiscal years with no success. Proposals
have been offered up to eliminate funding for certain states and to
change the focus of the program. Through an open and deliberative
process, the appropriations committees, and ultimately Congress, have
rejected such changes to Title IV. Additional attempts have been made
by the Administration to eliminate the AML emergency program and shift
18 positions to provide additional federal oversight of state programs
under Title V of SMCRA. Those proposals have also been rejected, and
yet the Administration perseveres with its course of action. It is
clear from the recent legislative history that Congress believes that
the current language and approach under SMCRA is the best path for
achieving the reclamation and environmental restoration objectives of
the Act. This latest proposal by the Administration to make major
changes to the Act is the latest in a series of attempts to upset the
balance and stability in the AML program forged by Congress.
The proposed legislation submitted to the Select Committee is
fraught with problems and errors. This reflects the fact that the
language was drafted quickly and without the advantage of an open and
deliberative process. For example, the revised language includes what
appear to be incorrect section citations leading to confusion about how
funding is intended to be applied. For instance, the proposed
legislation notes that 80% of the monies in the fund would be disbursed
each year but there is no specific language that clarifies that the
disbursement would be for the express purpose of meeting the intent of
Title IV and SMCRA. Also of concern is the lack of any reference
regarding the use of the remaining 20%. The hurried and ill-conceived
approach is clearly demonstrated by this failure to define with clarity
how funds would be used under the proposed legislation.
BACKGROUND
The infrastructure of our nation was built on the back of mining.
Mining fueled the growth of our industrialized economy, leaving us with
a legacy of historic abandoned mines. The intent of Congress since the
original passage of SMCRA has always been very clear. Congress
determined that the priority of the Act was to protect the public from
historic mine hazards and to restore the environment where impacted by
past mining. That intent remains the same today.
The original intent of the Act also recognized the strong
connection between historic mining and current mining practices. The
lessons of the past supported the value of having a strong regulatory
program to ensure that mining can continue but in a safe,
environmentally sound manner. SMCRA Title V provides for a strong
regulatory program that includes an equally strong reclamation
component for on-going mining operations. Congress also recognized the
strong leadership role that states can and should play in the
regulatory area. Thus SMCRA provided the language both allowing and
encouraging states to accept primacy for regulatory programs and to
serve as the lead for regulatory activities. To help encourage states
to adopt primacy, SMCRA requires states to implement Title V regulatory
programs in order to receive abandoned mine land funding under Title
IV. These provisions recognized the leadership role played by the
states and tribes for both the regulatory program and the abandoned
mine land reclamation program.
Over the years, the AML program faced many challenges regarding
funding. Congressional action was required on several occasions to
extend the AML fee under SMCRA and to allow funding to continue
unimpeded for needed reclamation activities. in some years, Congress
did not appropriate the full amount of funds collected through AML fee
collections, which resulted in states being under-funded and further
challenging the ability to effectively continue reclamation activities.
The need to continually extend SMCRA also resulted in uncertainty for
industry, since they had no ability to determine if, or when, the fees
assessed on coal production would terminate.
These uncertainties were the main driver for the changes enacted
under the 2006 Amendments to SMCRA. Discussions and deliberations about
what changes were appropriate under the Act continued for many years
and ultimately resulted in the 2006 Amendments, which provided a clear
path forward and a level of stability for the program. States and
Tribes were guaranteed that they would have sufficient funding to
properly manage their programs. Funding for reclamation activities was
also guaranteed. The combination of these changes provided the
certainty for states and Tribes to allow for efficient and effective
planning and delivery of reclamation work. Where public facilities,
such as water systems, were impacted by past mining activities, states
and tribes could be assured of a source of funds to repair or replace
that critical public infrastructure. The 2006 Amendments extended the
Title IV program through September 30, 2021 thus giving the states and
tribes a long term planning window for accomplishing needed
reclamation. The extension of the program through September 30, 2021
also provided industry with some certainty relative to the fee
collection.
Two things have always been understood: The intent of Congress, as
expressed both through the original SMCRA and again through the 2006
Amendments, was to protect the health and safety of the public from the
impacts of past mining and to restore the environment. It was also
clear that states and tribes were the appropriate entities to assume
the leadership role to implement Title IV. The strong positive annual
audits and annual oversight reports for state and tribal programs are
positive proof that Congress's faith in the state and tribal leadership
was well-placed.
The need continues for strong programs addressing the remaining
inventory of abandoned mine sites. States and tribes still have legacy
abandoned mine sites that pose significant threat to public health and
safety and continue to pose environmental challenges. The intent of
Congress to address those issues is far from having been satisfied.
OVERVIEW OF CONCERNS
The changes currently proposed by the Administration would have
major impacts on state and tribal programs. The 2006 Amendments
represented a significant compromise reached after many years of
thoughtful debate and deliberation that brought critically needed
certainty and stability to both the national program and state and
tribal programs. The benefits resulting from those 2006 Amendments are
clear and obvious. AML programs now provide an effective assessment and
planning function critical to the implementation of the intent of
SMCRA. State and tribal management of programs has resulted in much-
needed jobs, increased protection of citizens and communities from the
impacts of past mining and resulted in the elimination of serious
environmental hazards posed by abandoned mine sites.
The 2006 Amendments provide certainty that funds would continue to
be available for these important planning, management and reclamation
activities. The language adopted in 2006 mandates that the AML funds
derived through fee collections be used for the purposes of the Act.
This ensures the timely flow of funding critical for the continuity of
program activities. Unfortunately, the current Administration proposals
would replace this certainty with language that is confusing and
unclear on the intent of the availability and use of the funds. Many
states, if they fail to receive administrative funding through the
proposed competitive process, may be forced to discontinue their
programs resulting in a loss of state and tribal programs.
All performance assessments concerning current AML programs
indicate that these programs are well managed, effective and are
delivering strong results to meet the intent of SMCRA. Audit reports,
annual oversight reports and program records demonstrate the success of
the program as it currently exists. Over the last 30 years a strong and
successful partnership has developed between the states and tribes and
the OSM. This partnership has been further strengthened since the
passage of the 2006 Amendments.
The question then is this: With the strong positive benefits that
have been demonstrated since the 2006 Amendments, what is the driving
need to undermine the 2006 Amendments with rushed, flawed and unclear
legislative language? This question is even more significant when we
remember that it took nearly 10 years of deliberations to ultimately
adopt the 2006 Amendments. Since the 2006 Amendments were the result of
a multiple year effort (with extensive input from states, tribes, OSM
and other stakeholders), what Is the rush to replace them without any
public input? The current proposal was prepared in a vacuum without any
opportunity for states, tribes or the committees of jurisdiction to
comment on proposed legislative language.
SPECIFIC CONCERNS
The current Administration proposal raises numerous concerns.
Significant among them are the following:
Guaranteed AML payments to states and tribes would be
eliminated. These guaranteed payments provided funding
certainty for planning, management and reclamation activities.
Areas affected by this change Include payments based on
historic coal production, payments to under-funded states,
repayment to states and tribes of unappropriated (prior
balance) payments, and payments to certified states and tribes.
Expenditure of AML money for non-coal reclamation would be
prohibited.
The acid mine drainage set-aside program would be
eliminated.
The 2006 Amendment language clarifying that AML moneys could
be used for water supply projects without limitation would be
eliminated.
Funding for environmental restoration projects may be
eliminated if funding is not approved by the Secretary of the
Interior.
Greatly expanded AML project justifications would be
required as part of the annual competitive bidding process.
States and tribes would be required to submit increased
accounting and reporting related to past expenditures on an
annual basis.
CONCLUSION
The abandoned mine land program as amended through the 2006
Amendments to the Act has a proven track record of success In
efficiently addressing public health and safety concerns from legacy
mining, the elimination of significant environmental hazards associated
with abandoned mines, providing jobs, and improving local communities
by addressing hazards that impact those communities. The program
continues to work well. We cannot support the changes proposed by the
Administration that would emasculate the 2006 Amendments, which were
passed after years of public input and deliberation. The current
proposal was obviously quickly crafted and contains flaws and confusing
language that reflect the total lack of meaningful input by those who
are Intimately familiar with the program. The current proposal is
unsound, lacks the basis and need to support its adoption and should be
rejected. SMCRA should be allowed to work as intended and, if it is
determined that further adjustments are needed, that action be deferred
to the authorizing committees.