[Senate Report 113-20]
[From the U.S. Government Publishing Office]
Calendar No. 51
113th Congress Report
SENATE
1st Session 113-20
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ABANDONED MINE RECLAMATION
_______
April 22, 2013.--Ordered to be printed
_______
Mr. Wyden, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
[To accompany S. 222]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 222) to amend the Surface Mining Control
and Reclamation Act of 1977 to clarify that uncertified States
and Indian tribes have the authority to use certain payments
for certain non-coal reclamation projects and acid mine
remediation programs, having considered the same, reports
favorably thereon without amendment and recommends that the
bill do pass.
Purpose
The purpose of S. 222 is to amend the Surface Mining
Control and Reclamation Act of 1977 to clarify that uncertified
States and Indian tribes have the authority to use certain
payments for certain non-coal reclamation projects and for acid
mine drainage set-aside programs.
Background and Need
The Tax Relief and Health Care Act of 2006 (Public Law 109-
432) contained amendments to the Surface Mining Control and
Reclamation Act (SMCRA; 30 U.S.C. 1201, et seq.) reauthorizing
collection of an Abandoned Mine Land (AML) fee on coal produced
in the United States and making certain modifications to the
AML program. Under this program, which is administered by
Office of Surface Mining Reclamation and Enforcement of the
Department of the Interior, funds are expended to reclaim
abandoned mine lands, with top priority for protecting public
health, safety, general welfare, and property, and restoration
of land and water resources adversely affected by past mining
practices.
The program is largely directed to abandoned coal mine
reclamation, but under section 409 of SMCRA (30 U.S.C. 1239),
funds have been available to address non-coal mine sites. A
review of the legislative history of this provision and the
long-standing administrative interpretation of section 409
reveals that the section is intended to address ``non-coal mine
reclamation'' on abandoned mine lands.
In addition, section 402(g)(6) of SMCRA (30 U.S.C.
1232(g)(6)) provides that States with approved abandoned mine
land programs may receive and retain funds for deposit into an
acid mine drainage and treatment fund for use in accordance
with the paragraph without regard to a 3-year time limitation
required by the Act. Section 405(k) makes this provision
applicable to Indian tribes as well as to States.
Pursuant to a Memorandum Opinion (M-37014), issued by the
Department of the Interior's Solicitor on December 5, 2007, the
Department has interpreted the amendments in a manner that
limits the ability of States and Indian tribes to use certain
funds (``unappropriated balance amounts'') provided to them
under the AML program to address problems relating to noncoal
abandoned mines. This same Memorandum Opinion limits the
ability of States and Indian tribes to use unappropriated
balance amounts under the AML program for deposit into an acid
mine drainage abatement and treatment fund without respect to
the time limitation on the use of the funds. Funds had been
available for both of these purposes prior to the 2006
amendments. In accordance with section 409 of SMCRA, western
states such as New Mexico, Colorado, and Utah, have prioritized
the use of AML funds to undertake the most pressing reclamation
work on both coal and noncoal mine sites. While activities on
noncoal sites have consumed a relatively insignificant portion
of the funding provided for the overall AML program, the
results in terms of public health and safety in these states is
considerable and there is significant work yet to be done.
Similarly, acid mine drainage continues to pose a significant
problem, particularly in the Appalachian States where coal
mining is prevalent.
S. 222 would address this problem by giving uncertified
States and Indian tribes flexibility to use unappropriated
balance amounts paid to them pursuant to the 2006 amendments
for noncoal reclamation. In addition, uncertified States and
Indian tribes would have the flexibility to use such funds for
deposit in an acid mine drainage abatement and treatment fund
without respect to certain time limitations. The bill addresses
those unexpended unappropriated balance amounts already paid to
the States and Indian tribes pursuant to the 2006 amendments,
as well as those to be paid pursuant to the 2006 amendments.
Legislative History
S. 222 was introduced by Senator Udall of New Mexico on
February 4, 2013, with three original co-sponsors, Senators
Bennet, Udall of Colorado, and Heinrich. A companion bill, H.R.
488 was introduced by Representative Pearce on February 4,
2013. S. 222 is identical to S. 897, which was introduced by
Senator Bingaman during the 112th Congress on May 5, 2011. The
Subcommittee on Public Lands and Forests held a hearing on the
S. 897 on May 18, 2011 (S. Hrg. 112-39), and the bill was
ordered reported favorably by the Committee on July 14, 2011
(S. Rept. 112-63). Similar legislation (S. 2830 was also
reported by the Committee in the 111th Congress (S. Rept. 111-
264). At its business meeting on March 14, 2013, the Committee
on Energy and Natural Resources ordered S. 222 to be reported
favorably without amendment.
Committee Recommendation and Tabulation of Votes
The Senate Committee on Energy and Natural Resources, in
open business session on March 14, 2013, by majority vote of a
quorum present recommends that the Senate pass S. 222.
The rollcall vote on preporting the measure was 14 yeas, 4
nays, as follows:
YEAS NAYS
Mr. Wyden Ms. Landrieu
Mr. Johnson Mr. Manchin
Ms. Cantwell Mr. Barrasso*
Mr. Sanders* Mr. Hoeven
Ms. Stabenow
Mr. Udall
Mr. Coons*
Mr. Schatz
Mr. Heinrich
Ms. Murkowski
Mr. Lee*
Mr. Scott
Mr. Alexander*
Mr. Portman*
*Indicates vote by proxy.
Section-by-Section Analysis
Section 1(a) amends section 402(g)(6)(A) of the Surface
Mining Control and Reclamation Act by adding a reference to
provide that certain funds made available pursuant to section
411(h)(1) may be received and retained for acid mine drainage
abatement in accordance with the subparagraph.
Section 1(b) amends section 409(b) of the Surface Mining
Control and Reclamation Act by adding a reference to provide
that certain funds made available pursuant to section 411(h)
may be used by States and Indian tribes for the purposes of
section 409, including noncoal reclamation.
Section 1(c) amends section 411(h)(1)(D)(ii) to provide
references to sections 402(g)(6) and 409 to provide that
uncertified States and Indian tribes may use funds received
under the subparagraph in accordance with those sections.
Cost and Budgetary Considerations
The following estimate of costs of this measure has been
provided by the Congressional Budget Office:
S. 222--A bill to amend the Surface Mining Control and Reclamation Act
of 1977 to clarify that uncertified states and Indian tribes
have the authority to use certain payments for certain noncoal
reclamation projects and acid mine remediation programs
CBO estimates that enacting S. 222 would have no
significant net impact on the federal budget over the 2014-2023
period. Because enacting the legislation could affect direct
spending (increasing it in some years and decreasing it in
others), pay-as-you-go procedures apply. Enacting S. 222 would
not affect revenues. The bill contains no intergovernmental or
private-sector mandates as defined in the Unfunded Mandates
Reform Act and would impose no costs on state, local, or tribal
governments.
Each year, the Office of Surface Mining (OSM) provides more
than $200 million in grants and payments to states and Indian
tribes to reclaim land and water resources that have been
degraded by past mining activities. Because such grants and
payments are not subject to annual appropriation, they are
considered direct spending. States and tribes that currently
have backlogs of coal reclamation projects--so-called
uncertified states--are obligated under current law to use a
portion of those grants exclusively for certain coal projects.
S. 222 would allow uncertified states and tribes to use
those funds for other types of reclamation projects not related
to coal mining. CBO expects that this change would increase
direct spending--by up to $2 million a year--in the near term
by accelerating spending of reclamation grants. However, that
short-term increase would be offset by reduced spending in
later years. On balance, CBO expects that implementing the
legislation would result in no net change in direct spending
over the 2014-2023 period.
Under current law, once states and tribes certify that they
have completed all outstanding coal reclamation projects, they
become eligible for additional payments from OSM. Under S. 222,
some states and tribes may substitute noncoal projects for coal
projects in the near term and delay their certification status,
which would delay certain payments that would increase direct
spending under current law. Based on information from OSM and
some of the affected states and tribes, CBO expects that no
uncertified states will become certified over the next 10
years, and CBO estimates that any delay in making payments to
states that become certified would not affect direct spending
over the 2014-2023 period.
The Statutory Pay-As-You-Go Act of 2010 establishes budget-
reporting and enforcement procedures for legislation affecting
direct spending or revenues. The net changes in outlays that
are subject to those pay-as-you-go procedures are shown in the
following table.
--------------------------------------------------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------------------------------------------------------------
2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2013-2018 2013-2023
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NET INCREASE OR DECREASE (-) IN THE DEFICIT
Statutory Pay-As-You-Go Impact....................... 0 1 2 2 -2 -2 -1 0 0 0 0 1 0
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The CBO staff contact for this estimate is Jeff LaFave. The
estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Regulatory Impact Evaluation
In compliance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee makes the following
evaluation of the regulatory impact which would be incurred in
carrying out S. 222.
The bill is not a regulatory measure in the sense of
imposing Government-established standards or significant
economic responsibilities on private individuals and
businesses.
No personal information would be collected in administering
the program. Therefore, there would be no impact on personal
privacy.
Little, if any, additional paperwork would result from the
enactment of S. 222, as ordered reported.
Congressionally Directed Spending
S. 222, as reported, does not contain any congressionally
directed spending items, limited tax benefits, or limited
tariff benefits as defined in rule XLIV of the Standing Rules
of the Senate.
Executive Communications
Executive Communications were not requested by the
Committee in the 113th Congress. The following Administration
testimony references similar legislation introduced in the
112th Congress.
The views of the Administration were included in testimony
received by the Committee at a hearing on S. 897 on May 18,
2011, which is provided below.
Statement of the Office of Surface Mining Reclamation and Enforcement,
Department of the Interior
Mister Chairman and Members of the Subcommittee, thank you
for the invitation to testify on behalf of the Office of
Surface Mining Reclamation and Enforcement (OSM) regarding S.
897, a bill to amend the Surface Mining Control and Reclamation
Act of 1977 (SMCRA). The OSM looks forward to working with you
on matters relating to the Surface Mining Control and
Reclamation Act of 1977 (SMCRA).
S. 897 would allow noncertified states and tribes to use
certain SMCRA payments for non-coal reclamation. While we
recognize the importance of addressing hardrock mine hazards,
we cannot support this bill because it is inconsistent with the
President's FY 2012 Budget proposal to limit funding derived
from the abandoned mine lands fee on coal production to the
reclamation of coal sites that pose the most danger to public
health and safety and/or damage to the environment.
The FY 2012 President's Budget includes a proposal to focus
AML funds on the critical coal reclamation sites in order to
ensure that the most dangerous and environmentally damaging
coal sites can be addressed before the AML fee expires in ten
years. In addition to terminating unrestricted payments to
certified states and tribes that have already cleaned up their
abandoned coal mines, the proposal will competitively allocate
funding for use on these hazardous and environmentally damaging
coal reclamation projects. Recognizing the importance of
addressing abandoned hardrock mines nationwide, additionally,
the President's FY 2012 budget would build off these reforms to
the coal AML program and create a parallel program for hardrock
AML reclamation in order to address those sites. This proposal
would ensure that the industries whose historic practices
created abandoned mines bear the costs of addressing these
hazards by paying a reclamation fee on production.
background
Through SMCRA, Congress established OSM for two basic
purposes. First, to ensure that the Nation's coal mines operate
in a manner that protects citizens and the environment during
mining operations and to restore the land to beneficial use
following mining. Second, to implement an Abandoned Mine Land
(AML) program to address the hazards and environmental
degradation created by two centuries of weakly regulated coal
mining that occurred before SMCRA's enactment.
Title IV of SMCRA created an AML reclamation program funded
by a reclamation fee assessed on each ton of coal produced. The
fees collected have been placed in the Abandoned Mine
Reclamation Fund (Fund). OSM, either directly or through grants
to States and Indian tribes with approved AML reclamation plans
under SMCRA, has been using the Fund primarily to reclaim lands
and waters adversely impacted by coal mining conducted before
the enactment of SMCRA and to mitigate the adverse impacts of
mining on individuals and communities. Also, since FY1996, an
amount equal to the interest earned by and paid to the Fund has
been available for direct transfer to the United Mine Workers
of America Combined Benefit Fund to defray the cost of
providing health care benefits for certain retired coal miners
and their dependents. Section 402(a) of SMCRA fixed the
reclamation fee for the period before September 30, 2007, at 35
cents per ton (or 10 percent of the value of the coal,
whichever is less) for surface-mined coal other than lignite,
15 cents per ton (or 10 percent of the value of the coal,
whichever is less) for coal from underground mines, and 10
cents per ton (or 2 percent of the value of the coal, whichever
is less) for lignite. As originally enacted, section 402(b) of
SMCRA authorized collection of reclamation fees for 15 years
following the date of enactment (August 3, 1977); thus, OSM's
fee collection authority would have expired August 3, 1992.
However, Congress extended the fees and fee collection
authority through September 30, 1995, in the Omnibus Budget
Reconciliation Act of 1990. The Energy Policy Act of 1992
extended the fees through September 30, 2004. A series of short
interim extensions in appropriations and other acts extended
the fees through September 30, 2007.
The Surface Mining Control and Reclamation Act Amendments
of 2006 were signed into law as part of the Tax Relief and
Health Care Act of 2006, on December 20, 2006 (Public Law 109-
432). The 2006 amendments revised Title IV of SMCRA to make
significant changes to the reclamation fee and the AML program
and extended OSM's reclamation fee collection authority through
September 30, 2021.
The AML reclamation program was established in response to
concern over extensive environmental damage caused by past coal
mining activities. Before the 2006 amendments, the AML program
reclaimed eligible lands and waters using the Fund, which came
from the reclamation fees collected from the coal mining
industry. Eligible lands and waters were those which were mined
for coal or affected by coal mining or coal processing, were
abandoned or left inadequately reclaimed prior to the enactment
of SMCRA on August 3, 1977, and for which there was no
continuing reclamation responsibility under State or other
Federal laws.
SMCRA established a priority system for reclaiming coal
problems. Before the 2006 amendments, the AML program had five
priority levels, but reclamation was focused on eligible lands
and waters that reflected the top three priorities. The first
priority was ``the protection of public health, safety, general
welfare, and property from extreme danger of adverse effects of
coal mining practices.'' The second priority was ``the
protection of public health, safety, and general welfare from
adverse effects of coal mining practices.'' The third priority
was ``the restoration of land and water resources and the
environment previously degraded by adverse effects of coal
mining practices.''
As originally established, the Fund was divided into State
or Tribal and Federal shares. Each State or tribe with a
Federally approved reclamation plan was entitled to receive 50
percent of the reclamation fees collected annually from coal
operations conducted within its borders. The ``Secretary's
share'' of the Fund consisted of the remaining 50 percent of
the reclamation fees collected annually and all other receipts
to the Fund, and was allocated into three shares as required by
the 1990 amendments to SMCRA. First, OSM allocated 40% of the
Secretary's share to ``historic coal'' funds to increase
reclamation grants to States and Indian tribes for coal
reclamation. However, all the funds which were allocated may
not have been appropriated. Second, OSM allocated 20% to the
Rural Abandoned Mine Program (RAMP), operated by the Department
of Agriculture. However, that program has not been appropriated
AML funds since the mid-1990s.
Last, SMCRA required OSM to allocate 40% to ``Federal
expense'' funds to provide grants to States for emergency
programs that abate sudden dangers to public health or safety
needing immediate attention, to increase reclamation grants in
order to provide a minimum level of funding to State and Indian
tribal programs with unreclaimed coal sites, to conduct
reclamation of emergency and high-priority coal sites in areas
not covered by State and Indian tribal programs, and to fund
OSM operations that administer Title IV of SMCRA.
States with an approved State coal regulatory program under
Title V of SMCRA and with eligible coal mined lands could
develop a State program for reclamation of abandoned mines. The
Secretary determines whether to approve and fund the State
reclamation program. At the time the 2006 amendments were
enacted, 23 States received annual AML grants to operate their
approved reclamation programs. Three Indian tribes (the Navajo
Nation, and Hopi and Crow Tribes) without approved regulatory
programs have received grants for their approved reclamation
programs as authorized by section 405(k) of SMCRA.
Before the 2006 amendments, States and Indian tribes that
had not certified completion of reclamation of their abandoned
coal lands could use AML grant funds on noncoal projects only
to abate extreme dangers to public health, safety, general
welfare, and property that arose from the adverse effects of
mineral mining and processing and only at the request of the
Governor or the governing body of the Indian tribe. In
addition, noncertified States were allowed to deposit up to ten
percent of their AML grant funds into a state acid mine
drainage set aside account to abate and treat acid mine
drainage caused by coal mining.
The 2006 amendments reduced the statutory fee rates by 10
percent from the current levels for the period from October 1,
2007, through September 30, 2012, and by an additional 10
percent from the original levels for the period from October 1,
2012, through September 30, 2021.
The Fund allocation formula was also changed. Beginning
October 1, 2007, certified States are no longer eligible to
receive State share funds. Instead, amounts that would have
been distributed as State share for certified States from the
AML fund are distributed as historic coal funds. The RAMP share
was eliminated, and the historic coal allocation was further
increased by the amount that previously was allocated to RAMP.
In addition, the amount that noncertified States could set
aside for acid mine drainage abatement and treatment was
increased to 30 percent of a State's State share and historic
coal share funds.
The Amendments also created two new types of payments from
the General Treasury under section 411(h). Both certified and
noncertified states receive payments equal to their portion of
the unappropriated balance of the AML fund that existed at the
time the amendments were passed, known as ``prior balance
funds''. Certified states and tribes also receive a payment,
known as the ``in lieu'' payment, equal to 50% of the fees
collected in their borders the prior year.
Though the other sources of funding to noncertified states
and tribes are available for a variety of purposes under the
statute, since 2006, the Department has interpreted the
language of SMCRA section 411(h) to preclude noncertified
states and Indian tribes from using funds that they receive
under that section for noncoal reclamation or for deposit into
a state acid mine drainage account.
s. 897
Under SMCRA, noncertified states can use ``State share''
and ``historic coal'' funds for noncoal reclamation and deposit
into state acid mine drainage set aside accounts, which are
considered lower priority hazards associated with AML sites. S.
897 would amend SMCRA to allow these states to also use their
prior balance funds, which they receive under Section
411(h)(1), for noncoal reclamation and for deposit into state
acid mine drainage set-aside accounts. In other words, S. 897
would allow prior balance replacement funds, which are now
focused on the reclamation of coal sites in noncertified
States, to be used for other purposes: namely, noncoal
reclamation and deposit into State acid mine drainage set aside
accounts.
In an effort to focus the OSM's AML program on coal
reclamation, the President's FY 2012 budget proposes to revise
SMCRA to competitively allocate AML funds to ensure that the
most dangerous and environmentally damaging coal AML sites are
reclaimed before the reclamation fee terminates. Because S. 897
is inconsistent with the Administration's goal of ensuring
expeditious coal reclamation through the existing AML Fund, we
cannot support this bill.
We share this Subcommittee's interest in ensuring that
abandoned hardrock mines also are addressed. In order to
accomplish this goal, we support the creation of a parallel
hardrock AML program, funded through a fee on hardrock
production to fund the reclamation of hardrock mine sites
nationwide, which the FY 2012 President's budget proposes.
Currently, there is no hardrock reclamation fee similar to
the one established by SMCRA to reclaim abandoned coal mine
sites. This leaves States, Tribes, and Federal land managers to
address these sites within their budgets or using other sources
of funding, such as SMCRA's reclamation funds when possible. To
hold each industry responsible for the actions of its
predecessors, the President's FY 2012 budget proposes a new
reclamation fee on hardrock production. Once the fee is
established, OSM would be responsible for collecting this fee,
based on its expertise in collecting the coal reclamation fee.
The Department of the Interior's Bureau of Land Management
would be responsible for allocating and distributing the
receipts, using the proposed competitive allocation program.
Thank you for the opportunity to appear before the
Subcommittee today and testify on this bill. I look forward to
working with the Subcommittee to ensure that the Nation's
abandoned mine lands are adequately reclaimed.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, as ordered reported, are shown as follows (existing
law proposed to be omitted is enclosed in black brackets, new
material is printed in italic, existing law in which no change
is proposed is shown in roman):
SURFACE MINING CONTROL AND RECLAMATION ACT OF 1977
Public Law 95-87, as amended
AN ACT To provide for the cooperation between the Secretary of the
Interior and the States with respect to the regulation of surface coal
mining operations, and the acquisition and reclamation of abandoned
mines, and for other purposes.
* * * * * * *
RECLAMATION FEE
SEC. 402. RECLAMATION FEE.
Sec. 402. (a) * * *
* * * * * * *
(g) Allocation of Funds.--(1) * * *
(6)(A) Any State with an approved abandoned mine reclamation
program pursuant to section 405 may receive and retain, without
regard to the 3-year limitation referred to in paragraph
(1)(D), up to 30 percent of the total of the grants made
annually to the State under paragraphs (1) and (5) and section
411(h)(1) if those amounts are deposited into an acid mine
drainage abatement and treatment fund established under State
law, from which amounts (together with all interest earned on
the amounts) are expended by the State for the abatement of the
causes and the treatment of the effects of acid mine drainage
in a comprehensive manner within qualified hydrologic units
affected by coal mining practices.
* * * * * * *
FILLING VOIDS AND SEALING TUNNELS
Sec. 409. (a) * * *
(b) Limitations on Funds.--Funds available for use in
carrying out the purpose of this section shall be limited to
those funds which must be allocated to the respective States or
Indian tribes under the provisions of paragraphs (1) and (5) of
section 402(g) and section 411(h)(1).
* * * * * * *
SEC. 411. CERTIFICATION.
* * * * * * *
(h) Payments to States and Indian Tribes.--
(1) In general.--
* * * * * * *
(D) Use of funds.--
* * * * * * *
(ii) Uncertified states and indian
tribes.--A State or Indian tribe that
has not made a certification under
subsection (a) in which the Secretary
has concurred shall use any amounts
provided under this paragraph for the
purposes described in [section 403]
section 402(g)(6), 403, or 409.