[House Report 116-404]
[From the U.S. Government Publishing Office]
116th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 116-404
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COMMUNITY RECLAMATION PARTNERSHIPS ACT
_______
February 25, 2020.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Grijalva, from the Committee on Natural Resources, submitted the
following
R E P O R T
[To accompany H.R. 315]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 315) to amend the Surface Mining Control and
Reclamation Act of 1977 to authorize partnerships between
States and nongovernmental entities for the purpose of
reclaiming and restoring land and water resources adversely
affected by coal mining activities before August 3, 1977, and
for other purposes, having considered the same, reports
favorably thereon without amendment and recommends that the
bill do pass.
Purpose of the Bill
The purpose of H.R. 315 is to amend the Surface Mining
Control and Reclamation Act of 1977 to authorize partnerships
between states and nongovernmental entities for the purpose of
reclaiming and restoring land and water resources adversely
affected by coal mining activities before August 3, 1977, and
for other purposes.
Background and Need for Legislation
The Surface Mining Control and Reclamation Act of 1977\1\
(SMCRA) established a system for the reclamation of Abandoned
Mine Lands (AML), managed by the Office of Surface Mining
Reclamation and Enforcement (OSMRE). To qualify as an AML, a
site must have been affected by coal mining activities and
abandoned prior to August 3, 1977, and there must be no
responsible party for the reclamation of the land under state
or federal laws. OSMRE, states, and tribes become responsible
for the reclamation of these abandoned coal mines, which until
properly reclaimed often present serious risks to public health
and safety and serve as environmental and economic burdens for
states and communities.
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\1\Pub. L. No. 95-87, 91 Stat. 445 (1977), https://
uscode.house.gov/statviewer.htm?
volume=91&page=445 (codified as 30 U.S.C. Sec. Sec. 1201-328.).
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Despite significant progress being made on AML cleanup
since the passage of SMCRA, the states and OSMRE estimate that
there are still more than $12.3 billion in cleanup costs
remaining, and costs are increasing due to inflation and the
discovery of new AML hazards.\2\ The Committee believes that
the underlying logic behind the AML program has not changed
since 1977: responsibility for addressing these legacy sites
rests with the coal industry, and the AML program needs to be
reauthorized beyond its current expiration date of September
2021. The Committee is advancing separate legislation along
those lines.
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\2\See generally Abandoned Mine Land Inventory System (e-AMLIS),
Office of Surface Mining Reclamation & Enf't, https://amlis.osmre.gov/
(last visited Jan. 7, 2020).
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However, the Committee acknowledges that other parties
outside the coal industry, such as environmental or wildlife
organizations, have expressed a willingness to spend their own
money to supplement AML funding and more quickly clean up
streams and watersheds affected by abandoned coal mine sites.
These third parties are often referred to as ``Good
Samaritans'' or, in the context of H.R. 315, ``Community
Reclaimers,'' and they have been successful in speeding up
environmental restoration efforts in certain circumstances.
Due to potential liability under the Clean Water Act (CWA),
however, third parties are strongly disincentivized from
becoming involved in AML cleanup projects. These organizations
rarely have the funds to cover the perpetual bonding and
liability costs required for water treatment and CWA permit
compliance, and it is nearly impossible for them to obtain a
permit since they are unlikely to be able to treat mine
wastewater to a level compliant with CWA standards. As a
result, private funds that could be used to improve the
environment are being left on the sidelines.
H.R. 315 addresses this problem by amending SMCRA to allow
states with approved coal AML programs to provide a liability
shield to third parties who wish to fund all or part of the
cost of addressing existing sites on a state's AML inventory,
much as states currently do under existing law for approved AML
contractors. Interested states would enter into a Memorandum of
Understanding with the Environmental Protection Agency to set
up a Community Reclaimers program, and projects carried out
under that program that meet the requirements laid out in H.R.
315 would be exempt from liability under environmental laws in
the same way that states currently are under SMCRA.
Committee Action
H.R. 315 was introduced on January 8, 2019, by
Representative Darin LaHood (R-IL). The bill was referred
solely to the Committee on Natural Resources, and within the
Committee to the Subcommittee on Energy and Mineral Resources.
The Subcommittee conducted a hearing on the bill on March 28,
2019. On May 1, 2019, the Natural Resources Committee met to
consider the bill. The Subcommittee was discharged by unanimous
consent. No amendments were offered. The bill was adopted and
ordered favorably reported to the House of Representatives by
unanimous consent.
Hearings
For the purposes of section 103(i) of H. Res. 6 of the
116th Congress--the following hearing was used to develop or
consider H.R. 315: legislative hearing by the Subcommittee on
Energy and Mineral Resources held on March 28, 2019.
Section-by-Section Analysis
Section 1 provides the short title of the bill: the
``Community Reclamation Partnerships Act.''
Section 2 notes that all references in the bill are
considered to be made to SMCRA unless otherwise noted.
Section 3 amends SMCRA by adding a subsection (m) to
section 405\3\ of that Act. This subsection clarifies state
authority related to water treatment at abandoned mine sites by
statutorily recognizing valid Memorandum of Understanding
agreements entered into between the relevant state and federal
agencies. These agreements must include specific procedures for
ensuring that activities carried out under the agreement will
result in improved water quality, monitoring of water quality
to ensure that it has been improved, and the operation and
maintenance of water treatment systems. States are required to
give the public an opportunity to comment on any proposed
agreement and must hold at least one public meeting concerning
the agreement. Agreements must be approved by the Secretary of
the Interior and the Administrator of the Environmental
Protection Agency, and once approved they become part of the
state's approved AML reclamation plan under SMCRA.
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\3\Pub. L. No. 95-87, Sec. 405, 91 Stat. at 459, https://
uscode.house.gov/statviewer.htm?
volume=91&page=459 (codified at 30 U.S.C. Sec. 1235).
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Section 3 also adds a subsection (n) to section 405 of
SMCRA, which provides for the establishment of Community
Reclaimer Partnerships that allow eligible Community Reclaimers
to participate in AML cleanup projects. This subsection also
provides partial liability shielding to Community Reclaimers,
in a similar fashion to current state AML contractors, by
enabling the states to formally assume liability and compliance
responsibility on their behalf under the existing SMCRA
liability model.
Subsection (n) authorizes the Secretary of the Interior to
approve a Community Reclaimer Partnership project if: (1) the
proposed project will be conducted by eligible Community
Reclaimers and/or approved contractors; (2) any abandoned mine
drainage remediation involved will be consistent with the
state's approved agreement under SMCRA Section 405(m); (3) the
project will reclaim a Priority 1, 2, or 3 abandoned mine site;
(4) the project meets all of the submission criteria required
for project applications; (5) the state has assumed
responsibility for the project on behalf of the Community
Reclaimer and the landowner except in cases of gross negligence
or intentional misconduct; (6) the state has the necessary
legal authority and financial resources to ensure completion of
the project; and (7) the project would not require a coal
mining permit under title V of SMCRA.
Paragraph (2) of subsection (n) lists what must be
submitted to the Secretary for a project to be approved.
Paragraph (3) defines a ``Community Reclaimer'' as an entity
that seeks to voluntarily assist a state with a reclamation
project, has not caused any lands to become eligible for
reclamation under Section 404 of SMCRA, is not a past or
current owner of abandoned mine sites or any other site with
ongoing reclamation obligations, and does not have any
outstanding violations under SMCRA.
Section 4 recognizes approved agreements as appropriate
standards at acid mine drainage (AMD) treatment sites in lieu
of Clean Water Act (CWA) requirements, if a state has an
approved agreement in place under SMCRA Section 405(m) that
will ensure the improvement of water quality at impacted sites.
Section 5 requires states to include a list of proposed
Community Reclaimer Partnership projects in their annual
applications to the Secretary requesting support for their
respective State Reclamation Programs.
Committee Oversight Findings and Recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
Compliance With House Rule XIII and Congressional Budget Act
1. Cost of Legislation and the Congressional Budget Act.
With respect to the requirements of clause 3(c)(2) and (3) of
rule XIII of the Rules of the House of Representatives and
sections 308(a) and 402 of the Congressional Budget Act of
1974, the Committee has received the following estimate for the
bill from the Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 9, 2019.
Hon. Raul M. Grijalva,
Chairman, Committee on Natural Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 315, the Community
Reclamation Partnerships Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Janani
Shankaran.
Sincerely,
Keith Hall,
Director.
Enclosure.
H.R. 315 would authorize states with abandoned mine
reclamation plans to enter into agreements with the federal
government aimed at reducing water pollution caused by
abandoned mines. The bill also would allow states to assume
liability on behalf of individuals or groups that seek to
participate in abandoned mine cleanup projects. Under the bill,
states and other parties conducting certain water treatments
under those agreements would not be required to meet water
quality standards under the Clean Water Act.
Based on the costs of similar tasks, CBO expects that the
Department of the Interior would need two additional employees,
at an average annual cost of $140,000 each, to manage the
agreements and approve projects under those agreements. CBO
estimates that implementing the bill would cost about $1
million over the 2020-2024 period; any spending would be
subject to the availability of appropriated funds.
The CBO staff contact for this estimate is Janani
Shankaran. The estimate was reviewed by H. Samuel Papenfuss,
Deputy Assistant Director for Budget Analysis.
2. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goals and
objectives of this bill are to amend the Surface Mining Control
and Reclamation Act of 1977 to authorize partnerships between
states and nongovernmental entities for the purpose of
reclaiming and restoring land and water resources adversely
affected by coal mining activities before August 3, 1977.
Earmark Statement
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of
the House of Representatives.
Unfunded Mandates Reform Act Statement
This bill contains no unfunded mandates.
Existing Programs
This bill does not establish or reauthorize a program of
the federal government known to be duplicative of another
program.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Preemption of State, Local, or Tribal Law
Any preemptive effect of this bill over state, local, or
tribal law is intended to be consistent with the bill's
purposes and text and the Supremacy Clause of Article VI of the
U.S. Constitution.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, and existing law in which no
change is proposed is shown in roman):
SURFACE MINING CONTROL AND RECLAMATION ACT OF 1977
* * * * * * *
TITLE IV--ABANDONED MINE RECLAMATION
* * * * * * *
state reclamation programs
Sec. 405. (a) Not later than the end of the one hundred and
eighty-day period immediately following the date of enactment
of this Act, the Secretary shall promulgate and publish in the
Federal Register regulations covering implementation of an
abandoned mine reclamation program incorporating the provisions
of title IV and establishing procedures and requirements for
preparation, submission, and approval of State programs
consisting of the plan and annual submissions of projects.
(b) Each State having within its borders coal mined lands
eligible for reclamation under this title, may submit to the
Secretary a State Reclamation Plan and annual projects to carry
out the purposes of this title.
(c) The Secretary shall not approve, fund, or continue to
fund a State abandoned mine reclamation program unless that
State has an approved State regulatory program pursuant to
section 503 of this Act.
(d) If the Secretary determines that State has developed and
submitted a program for reclamation of abandoned mines and has
the ability and necessary State legislation to implement the
provisions of this title, sections 402 and 410 excepted, the
Secretary shall approve such State program and shall grant to
the State exclusive responsibility and authority to implement
the provisions of the approved program: Provided, That the
Secretary shall withdraw such approval and authorization if he
determines upon the basis of information provided under this
section that the State program is not in compliance with the
procedures, guidelines, and requirements established under
subsection 405(a).
(e) Each State Reclamation Plan shall generally identify the
areas to be reclaimed, the purposes for which the reclamation
is proposed, the relationship of the lands to be reclaimed and
the proposed reclamation to surrounding areas, the specific
criteria for ranking and identifying projects to be funded, and
the legal authority and programmatic capability to perform such
work in conformance with the provisions of this title.
(f) On an annual basis, each State having an approved State
Reclamation Plan may submit to the Secretary an application for
the support of the State program and implementation of specific
reclamation projects. Such annual requests shall include such
information as may be requested by the Secretary including:
(1) a general description of each proposed project;
(2) a priority evaluation of each proposed project;
(3) a statement of the estimated benefits in such
terms as: number of acres restored, miles of stream
improved, acres of surface lands protected from
subsidence, population protected from subsidence, air
pollution, hazards of mine and coal refuse disposal
area fires;
(4) an estimate of the cost for each proposed
project;
(5) in the case of proposed research and
demonstration projects, a description of the specific
techniques to be evaluated or objective to be attained;
(6) an identification of lands or interest therein to
be acquired and the estimated cost; [and]
(7) in each year after the first in which a plan is
filed under this title, an inventory of each project
funded under the previous year's grant: which inventory
shall include details of financial expenditures on such
project together with a brief description of each such
project, including project locations, landowner's name,
acreage, type of reclamation performed[.]; and
(8) a list of projects proposed under subsection (n).
(g) The costs for each proposed project under this section
shall include; actual construction costs, actual operation and
maintenance costs of permanent facilities, planning and
engineering costs, construction inspection costs, and other
necessary administrative expenses.
(h) Upon approval of State Reclamation Plan by the Secretary
and of the surface mine regulatory program pursuant to section
503, the Secretary shall grant, on an annual basis, funds to be
expended in such State pursuant to subsection 402(g) and which
are necessary to implement the State reclamation program as
approved by the Secretary.
(i) The Secretary, through his designated agents, will
monitor the progress and quality of the program. The States
shall not be required at the start of any project to submit
complete copies of plans and specifications.
(j) The Secretary shall require annual and other reports as
may be necessary to be submitted by each State administering
the approved State reclamation program with funds provided
under this title. Such reports shall include that information
which the Secretary deems necessary to fulfill his
responsibilities under this title.
(k) Indian tribes having within their jurisdiction eligible
lands pursuant to section 404 or from which coal is produced,
shall be considered as a ``State'' for the purposes of this
title except for purposes of subsection (c) of this section
with respect to the Navajo, Hopi and Crow Indian Tribes
(1) No State shall be liable under any provision of Federal
law for any costs or damages as a result of action taken or
omitted in the course of carrying out a State abandoned mine
reclamation plan approved under this section. This subsection
shall not preclude liability for cost or damages as a result of
gross negligence or intentional misconduct by the State. For
purposes of the preceding sentence, reckless, willful, or
wanton misconduct shall constitute gross negligence.
(m) State Memoranda of Understanding for Remediation of Mine
Drainage.--
(1) In general.--A State with a State program
approved under subsection (d) may enter into a
memorandum of understanding with relevant Federal or
State agencies (or both) to remediate mine drainage on
abandoned mine land and water impacted by abandoned
mines within the State. The memorandum may be updated
as necessary and resubmitted for approval under this
subsection.
(2) Memoranda requirements.--Such memorandum shall
establish a strategy satisfactory to the State and
Federal agencies that are parties to the memorandum, to
address water pollution resulting from mine drainage at
sites eligible for reclamation and mine drainage
abatement expenditures under section 404, including
specific procedures for--
(A) ensuring that activities carried out to
address mine drainage will result in improved
water quality;
(B) monitoring, sampling, and the reporting
of collected information as necessary to
achieve the condition required under
subparagraph (A);
(C) operation and maintenance of treatment
systems as necessary to achieve the condition
required under subparagraph (A); and
(D) other purposes, as considered necessary
by the State or Federal agencies, to achieve
the condition required under subparagraph (A).
(3) Public review and comment.--
(A) In general.--Before submitting a
memorandum to the Secretary and the
Administrator for approval, a State shall--
(i) invite interested members of the
public to comment on the memorandum;
and
(ii) hold at least one public meeting
concerning the memorandum in a location
or locations reasonably accessible to
persons who may be affected by
implementation of the memorandum.
(B) Notice of meeting.--The State shall
publish notice of each meeting not less than 15
days before the date of the meeting, in local
newspapers of general circulation, on the
Internet, and by any other means considered
necessary or desirable by the Secretary and the
Administrator.
(4) Submission and approval.--The State shall submit
the memorandum to the Secretary and the Administrator
of the Environmental Protection Agency for approval.
The Secretary and the Administrator shall approve or
disapprove the memorandum within 120 days after the
date of its submission if the Secretary and
Administrator find that the memorandum will facilitate
additional activities under the State Reclamation Plan
under subsection (e) that improve water quality.
(5) Treatment as part of state plan.--A memorandum of
a State that is approved by the Secretary and the
Administrator under this subsection shall be considered
part of the approved abandoned mine reclamation plan of
the State.
(n) Community Reclaimer Partnerships.--
(1) Project approval.--Within 120 days after
receiving such a submission, the Secretary shall
approve a Community Reclaimer project to remediate
abandoned mine lands if the Secretary finds that--
(A) the proposed project will be conducted by
a Community Reclaimer as defined in this
subsection or approved subcontractors of the
Community Reclaimer;
(B) for any proposed project that remediates
mine drainage, the proposed project is
consistent with an approved State memorandum of
understanding under subsection (m);
(C) the proposed project will be conducted on
a site or sites inventoried under section
403(c);
(D) the proposed project meets all submission
criteria under paragraph (2);
(E) the relevant State has entered into an
agreement with the Community Reclaimer under
which the State shall assume all responsibility
with respect to the project for any costs or
damages resulting from any action or inaction
on the part of the Community Reclaimer in
carrying out the project, except for costs or
damages resulting from gross negligence or
intentional misconduct by the Community
Reclaimer, on behalf of--
(i) the Community Reclaimer; and
(ii) the owner of the proposed
project site,
if such Community Reclaimer or owner,
respectively, did not participate in any way in
the creation of site conditions at the proposed
project site or activities that caused any
lands or waters to become eligible for
reclamation or drainage abatement expenditures
under section 404;
(F) the State has the necessary legal
authority to conduct the project and will
obtain all legally required authorizations,
permits, licenses, and other approvals to
ensure completion of the project;
(G) the State has sufficient financial
resources to ensure completion of the project,
including any necessary operation and
maintenance costs (including costs associated
with emergency actions covered by a contingency
plan under paragraph (2)(K)); and
(H) the proposed project is not in a category
of projects that would require a permit under
title V.
(2) Project submission.--The State shall submit a
request for approval to the Secretary that shall
include--
(A) a description of the proposed project,
including any engineering plans that must bear
the seal of a professional engineer;
(B) a description of the proposed project
site or sites, including, if relevant, the
nature and extent of pollution resulting from
mine drainage;
(C) identification of the past and current
owners and operators of the proposed project
site;
(D) the agreement or contract between the
relevant State and the Community Reclaimer to
carry out the project;
(E) a determination that the project will
facilitate the activities of the State
reclamation plan under subsection (e);
(F) sufficient information to determine
whether the Community Reclaimer has the
technical capability and expertise to
successfully conduct the proposed project;
(G) a cost estimate for the project and
evidence that the Community Reclaimer has
sufficient financial resources to ensure the
successful completion of the proposed project
(including any operation or maintenance costs);
(H) a schedule for completion of the project;
(I) an agreement between the Community
Reclaimer and the current owner of the site
governing access to the site;
(J) sufficient information to ensure that the
Community Reclaimer meets the definition under
paragraph (3);
(K) a contingency plan designed to be used in
response to unplanned adverse events that
includes emergency actions, response, and
notifications; and
(L) a requirement that the State provide
notice to adjacent and downstream landowners
and the public and hold a public meeting near
the proposed project site before the project is
initiated.
(3) Community reclaimer defined.--For purposes of
this section, the term ``Community Reclaimer'' means
any person who--
(A) seeks to voluntarily assist a State with
a reclamation project under this section;
(B) did not participate in any way in the
creation of site conditions at the proposed
project site or activities that caused any
lands or waters to become eligible for
reclamation or drainage abatement expenditures
under section 404;
(C) is not a past or current owner or
operator of any site with ongoing reclamation
obligations; and
(D) is not subject to outstanding violations
listed pursuant to section 510(c).
* * * * * * *
miscellaneous powers
Sec. 413. (a) The Secretary or the State pursuant to an
approved State program, shall have the power and authority, if
not granted it otherwise, to engage in any work and to do all
things necessary or expedient, including promulgation of rules
and regulations, to implement and administer the provisions of
this title.
(b) The Secretary or the State pursuant to an approved State
program, shall have the power and authority to engage in
cooperative projects under this title with any other agency of
the United States of America, any State and their governmental
agencies.
(c) The Secretary or the State pursuant to an approved State
program, may request the Attorney General, who is hereby
authorized to initiate, in addition to any other remedies
provided for in this title, in any court of competent
jurisdiction, an action in equity for an injunction to restrain
any interference with the exercise of the right to enter or to
conduct any work provided in this title.
(d) The Secretary or the State pursuant to an approved State
program, shall have the power and authority to construct and
operate a plant or plants for the control and treatment of
water pollution resulting from mine drainage. The extent of
this control and treatment may be dependent upon the ultimate
use of the water: Provided, That the above provisions of this
paragraph shall not be deemed in any way to repeal or supersede
any portion of the Federal Water Pollution Control Act (33
U.S.C.A. 1151, et seq. as amended) and no control or treatment
under this subsection shall in any way be less than that
required under the Federal Water Pollution Control Actunless
such control or treatment will be conducted in accordance with
a State memorandum of understanding approved under section
405(m) of this Act. The construction of a plant or plants may
include major interceptors and other facilities appurtenant to
the plant.
(e) The Secretary may transfer funds to other appropriate
Federal agencies, in order to carry out the reclamation
activities authorized by this title.
* * * * * * *
Supplemental, Minority, Additional, or Dissenting Views
None.