[Congressional Record Volume 141, Number 176 (Wednesday, November 8, 1995)]
[Senate]
[Pages S16821-S16822]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. BENNETT (for himself, Mr. Thomas, Mr. Simpson, Mr. Warner, 
        and Mr. Hatch):
  S. 1401. A bill to amend the Surface Mining Control and Reclamation 
Act of 1977 to minimize duplication in regulatory programs and to give 
States exclusive responsibility under approved States program for 
permitting and enforcement of the provisions of that act with respect 
to surface coal mining and reclamation operations, and for other 
purposes; to the Committee on Energy and Natural Resources.


 the surface mining control and reclamation act of 1977 amendments act 
                                of 1995

  Mr. BENNETT. Mr. President, today I am introducing legislation in 
behalf of myself, Senators Thomas, Simpson, Warner, and Hatch to amend 
the Surface Mining Control and Reclamation Act of 1977. I encourage my 
colleagues to support this legislation.
  The Surface Mining Control and Reclamation Act [SMCRA] was signed 
into law by President Carter in the aftermath of the energy crisis, 
when coal regulation was considered crucial to the success of his 
national energy program. In 1977, when this legislation was passed, 
there were more than 6,000 operating coal mines. Today, the number of 
operating mines has been reduced approximately to half of the 1977 
level. The questions which were first raised back then regarding the 
States' abilities to effectively operate regulatory programs have been 
satisfactorily answered and now is the time that we should reexamine 
the role of OSM and the effectiveness of the current law.
  When Congress passed SMCRA, it was agreed that the time had arrived 
for tougher environmental standards for surface mining operations. 
SMCRA established specific environmental guidelines for surface mines, 
including requirements for water and soil treatment and remediation as 
well as reclamation requirements for old and abandoned mines. It also 
established the Abandoned Mine Reclamation Fund and the Office of 
Surface Mining. Most 

[[Page S 16822]]
importantly, it established a framework under which States and the 
Federal Government could work in unison to administer this new law.
  SMCRA was hailed as a model of cooperative State and Federal efforts. 
Congress passed it with the understanding that after an initial phase-
in period, the States would assume responsibility for administering the 
law. It was understood that once States established environmental 
standards which were equally as tough as Federal standards, States 
would assume primacy and could administer their own administrative and 
environmental programs subject to approval of those programs by the 
Office of Surface Mining.
  Today 23 of the 26 coal producing States have assumed the role as the 
SMCRA regulating authority in these States. These primacy States have 
their mining programs periodically reviewed by OSM, which has 
occasionally exercised its Federal regulatory authority as necessary 
and expected under the SMCRA agreements.
  Unfortunately, OSM has not relinquished full administrative oversight 
of SMCRA and still retains a great deal of regulatory authority that 
rightly belongs to the primacy States. The result has been the creation 
of a problematic, dual regulatory scheme in which OSM regularly issues 
notice of violations [NOV's] directly to coal mine operators in primacy 
States whenever OSM is dissatisfied with the way these States are 
administering their own programs. This daily intervention in State 
program matters impacts the coal operators most who are often caught in 
between Federal-State disputes.
  For example, the State of Utah obtained primacy for the 
administration of SMCRA in 1983. We mine 24 million tons of coal 
annually from 13 active mines. These mines operate in compliance with 
the environmental requirements of the Utah regulatory program and the 
mined lands are being returned to productive nonmining uses. In short, 
the regulatory program is working and the intent and purpose of SMCRA 
is being fulfilled.
  Since January 1993, OSM has taken five direct Federal enforcement 
actions against Utah. All five were based on disagreements between OSM 
and the State of Utah over interpretation of the program's language. 
Not one of the five violations concerned any environmental safety or 
environmental hazard. Three of the five enforcement actions were 
dismissed by the Department of Interior's own administrative law 
judges. The other two concerned a dispute between OSM and Utah 
concerning the jurisdictional reach of the regulatory program. Both 
these disputes concerned coal handling and processing equipment located 
at power plants. One has since been upheld and the other is pending an 
appeal. In each instance, OSM cited the operator for a practice or 
condition which had already specifically been approved by the Utah 
program. Again, none of the violations concerned adverse off-site 
environmental impacts.
  Direct Federal enforcement has not helped protect the citizens of 
Utah or the environment. Instead it has diverted scarce resources away 
from other, more productive work conducted by OSM, Utah, and Utah coal 
operators. Longstanding disagreements between OSM and the primacy 
States have retarded the development of State regulatory programs, and 
continue to inhibit effective implementation. While significant 
improvements have been made by OSM in recent months, several structural 
problems continue to interfere with effective and efficient 
implementation of the coal regulatory program. Again, the most 
troublesome of these problems is the dual enforcement authority. Direct 
Federal enforcement in Utah has not only been ineffective and 
expensive, it has been counterproductive environmentally.
  Clearly there is a need to amend SMCRA to return the balance of 
authority to the primacy States as originally intended by the law. This 
legislation would make several technical amendments designed to 
acknowledge the role of those States as the primary regulatory agency 
where there is an approved State program. These proposed revisions 
would eliminate the redundancy and confusion that occurs when 
duplicative State and Federal program provisions are applied directly 
to mining operations.
  This legislation would also clarify that the authority to issue 
notices of violations [NOV's] in primacy States rests exclusively with 
the State regulatory authority, unless OSM first determines that the 
State regulatory authority has failed to properly administer the 
program, in which case direct Federal authority can be implemented. We 
have also deleted the redundant reference to the Federal program 
provisions to avoid any implication of Federal oversight authority to 
suspend permits in a State with an approved regulatory program. I 
believe this clarifies the intent of SMCRA as originally passed.
  The legislation would clarify that an operator's responsibility is to 
conform his operations to the terms and conditions of the approved 
permit for the mine. It also clarifies the regulatory agency's 
authority to require revisions to a permit as necessary to ensure 
compliance with the program requirements. Since many decisions of the 
administrative law judges remain pending on appeal before the Interior 
Board of Land Appeals for several years before a decision is issued 
under the existing format, the legislation would eliminate the 
unnecessary requirement that, as established in OSM's rules, appeals of 
certain agency decisions proceed through two layers of administrative 
review prior to seeking judicial review. Finally, this legislation 
would place a 3-year time limitation upon commencement of actions for 
alleged violations. This would encourage the more prompt initiation of 
any administrative or other actions.
  In conclusion, Mr. President, the coal regulatory program created by 
SMCRA has provided great benefit to the environment, the citizens of 
Utah, and the coal-mining community. The issues raised by this 
legislation are not the fault of coal regulation itself, but are the 
products of an unclear delineation of responsibilities and authorities 
between the Federal OSM and the primacy States. These amendments will 
reestablish the intent of SMCRA by reinforcing the role of the States 
in administering their own regulations. This legislation makes good 
sense and I encourage my colleagues to join me in cosponsoring this 
legislation.
                                 ______