TESTIMONY OF L. THOMAS GALLOWAY ON BEHALF OF THE NATIONAL WILDLIFE FEDERATION BEFORE THE SUBCOMMITTEE ON ENERGY & ENVIRONMENT COMMITTEE ON INTERIOR & INSULAR AFFAIRS U.S. HOUSE OF REPRESENTATIVES August 3, 1987 L. Thomas Galloway Galloway & Greenberg 1835 K Street, N.W. -1 Mr. Chairman and members of the Committee. My name is L. Thomas Galloway and I am here on behalf of the National Wildlife Federation which has long been active in the implementation of the Surface Mining Control & Reclamation Act of 1977. The first panel today will address enforcement of the Surface Mining Act. I will address the overall issue; Mr. Squillace will discuss several current issues, including termination of enforcement authority after bond release; Mr. Begley will discuss the historical problems of enforcement in Kentucky and how the Act has affected Eastern Kentucky; Ms. Coleman will address bonding, the safety net Congress intended to ensure reclamation when enforcement failed. A regulatory statute is essentially useless without strong enforcement. Congress was well aware of this basic tenet in passing the Surface Mining Act. Indeed, the Act has the strongest enforcement scheme of any environmental or health and safety statute passed by Congress before or since. The Act contains a comprehensive mandatory system well geared to implement the substantive provisions of the Act. This Committee, and the Chairman particularly, deserve great credit for the long and tireless effort necessary to construct the tough but fair enforcement system which is now the law. -2 The greatest testament to the Act's enforcement system, and the skill and foresight reflected in that system, is that after ten years of attack by industry, no significant loophole in any enforcement sanction has been found. The problems with the enforcement of the Act lie not in the enforcement provisions in the Act but with their use or lack of use. Half The problems with the use of the enforcement system designed by Congress are legion; indeed, it is accurate to say that there has been a fundamental breakdown in the enforcement of the Surface Mining Act. The litany of enforcement failures is well known to this Committee. of all cessation orders issued by OSM (over 2,400) were totally ignored by coal operators. OSM has failed to collect over 200 million dollars in penalties and fees assessed under the Act. In the face of this massive resistance to the law, OSM did nothing about the problems until ordered to do so by a federal judge, and then it bungled the job. OSM also totally refused to use certain enforcement sanctions provided by Congress. Because many of the worst abusers of the law use shell corporations, the Act provides for action directly against corporate officers and directors. Yet until ordered to do so by a federal judge OSM used this sanction only two times nation-wide despite thousands of situations meeting the statutory standard. And when ordered -3 to take action against corporate officials OSM bungled the job twice, wasting millions of dollars. OSM has squandered more money through mismanagement of the civil penalty program than it has collected. The Act also pierces the corporate veil by banning persons who own or control mines with outstanding violations from mining until the past violation is abated. Yet OSM did not implement this sanction in any meaningful way until ordered to do so by a federal judge. And while the results are not yet in, OSM appears on the brink of mishandling the permit block system. OSM also has failed miserably to stop the intentional and rampant abuse of the various exemptions contained in the Act. Abuse of the two-acre exemption is the best known; however, misuse of the on-site construction exemption, the coal exploration provision, and the 16 2/3 exemption have left thousands of sites unreclaimed. The states' record in enforcement is, if anything, worse than that of OSM. The states have for years ignored far more violations than they have cited. Indeed, since 1978, the states have ignored tens of thousands of violations. The states do not force bond forfeiture on sites abandoned for years. They do not collect civil penalties Kentucky alone has a backlog of $60 million. They do not |