[Congressional Record Volume 141, Number 148 (Thursday, September 21, 1995)]
[Extensions of Remarks]
[Pages E1831-E1832]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   THE SURFACE MINING CONTROL AND RECLAMATION AMENDMENTS ACT OF 1995

                                 ______


                           HON. BARBARA CUBIN

                               of wyoming

                    in the house of representatives

                      Thursday, September 21, 1995

  Mrs. CUBIN. Mr. Speaker, today I am pleased to introduce the Surface 
Mining Control and Reclamation Amendments Act of 1995. I am joined in 
this effort by Mr. Cremeans and several other colleagues all of whom 
share my interest in reinforcing the 

[[Page E 1832]]
original intent of the 1977 statute: To place with the primacy States 
the exclusive jurisdiction to regulate surface coal mining operations 
within their borders. The bill will clarify the respective roles of the 
Federal and State governments, avoid costly and inefficient duplication 
in inspection and enforcement and establish clearer lines as to the 
activities subject to the law.
  When the Surface Mining Control and Reclamation Act [SMCRA] was 
enacted in 1977, it was hailed as a model of cooperative federalism. It 
established a set of pervasive environmental and reclamation 
performance standards for all surface and underground mines in the 
United States. It also included provisions to allow each coal producing 
State which was able to demonstrate that it had adequate laws and 
organizations in place to assume primary responsibility for regulating 
coal mining operations with its State. Since that time, 23 of the 26 
coal producing States have assumed the role as the SMCRA regulatory 
authority.
  Unfortunately, The Office of Surface Mining [OSM] has proven 
reluctant to live up to this statutory promise and hand over fully the 
reins of regulation to these primacy States. Instead, OSM has 
perpetuated a dual regulatory scheme by its policies that entail daily 
interference through the issuance of notice of violations [NOV's] 
directly to coal mine operators in primacy States. The original act was 
clear that OSM's oversight role did not allow such pervasive 
intervention. OSM is only authorized to issue a cessation order for 
serious violations constituting an imminent harm or danger to the 
public or environment. Otherwise, OSM was to evaluate State 
performance, and if dissatisfied, initiate proceedings to substitute 
either Federal enforcement or a Federal program for all or part of the 
State program.
  OSM's policies have ignored the careful balance of authority by 
intervening every day in State program matters by issuing notice of 
violations directly to operators anytime OSM disagrees with a State's 
view of program requirements. This practice has victimized coal mine 
operators caught in the middle of Federal-State disputes; perpetuated a 
scheme of dual and conflicting program administration; caused 
regulatory uncertainty and confusion, and bred disrespect for the 
States and the law itself.
  As one Federal court observed, OSM's practice has upset SMCRA's 
fragile balance ``between the federal and state roles with its 
trampling of the state's right to enforce its laws.'' Fincastle Mining 
Inc. v. Babbitt, 842 F.Supp. 204, 209 (W.D. Va. 1993).
  A poignant example of this problem occurred in 1993 when OSM 
challenged one of Wyoming's existing permit conditions at the Black 
Thunder Mine as it related to its rough backfilling and grading plan. 
OSM wanted to issue an order requiring Black Thunder to mine and 
reclaim in a manner that practically speaking could not be achieved and 
which was actually based on an outdated rule.
  After the mine submitted a modified mining and reclamation plan to 
the State agency, the State requested that it delay its backfilling and 
grading until it had an opportunity to review the plan revisions. In 
the meantime, OSM issued a 10-day notice to the Wyoming Department of 
Environmental Quality in an effort to pressure the State into bringing 
enforcement action against the mine. The State rigorously opposed OSM's 
efforts. Yet only after extensive time and resources were expended on 
the issue did OSM finally agree that the issue was programmatic rather 
than regulatory and dropped its threat.
  The amendments act will clarify that OSM does not have the authority 
to issue notice of violations in primacy States unless and until it has 
followed the procedures set forth in the 1977 law to substitute Federal 
enforcement for the State program.
  The act's legislative history confirms the original intent that 
notice-of-violation authority belonged only to the regulatory authority 
and operators need to know who that regulatory authority is at any 
particular time--OSM or the States. My legislation will further restore 
meaning to the concept of State primary by codifying the well-
established principle that the approved State program is the law 
applicable in that State. Permits issued pursuant to those State 
programs would be the benchmark for compliance until modified in 
accordance with the permit revisions procedures of the State program.
  This legislation is also intended to avoid regulatory duplication 
among various programs, require greater efficiency in enforcement 
actions and streamline the administrative appeal process for agency 
actions.
  Since the passage of SMCRA, the number of producing mines has 
declined by more than 50 percent and the States have assumed the 
primary role for implementing SMCRA for 97 percent of the Nation's 
mines and production. However, the agency overseeing the States, OSM, 
has not changed significantly in terms of its size or duplicative role. 
The agency still has substantially more personnel than it had 12 years 
ago when the States assumed primacy.
  As a result, the agency has sought to expand its reach to other 
activities such as regulating public roads, attempting to assume the 
role of separate agencies vested with authority to administer the Clean 
Water Act and raising stale matters as possible violations of SMCRA.
  My amendments to the act will clarify that: public roads are not 
subject to regulation; the authority to administer the Clean Water Act 
at coal mines belongs to the regulatory authority under the Clean Water 
Act and not SMCRA; and, place a 3-year time limitation upon commencing 
actions for alleged violations. Finally, the legislation would remove 
an extra and inefficient layer of administrative review of agency 
decisions before seeking review in court. The extra layer of 
administrative appeals is a creature of OSM's regulations and not 
mandated by the existing statute.
  In summation, the Surface Mining Control and Reclamation Amendments 
Act of 1995 would reinforce the federalist scheme of the original law 
and restore true meaning to the concept of State primacy.

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