-4 take alternative enforcement action when operators ignore cessation orders - Kentucky alone has over 2,000 unabated cessation orders. The states do not block permits to persons with outstanding violations of law. In some cases, such as coal exploration and on site construction, the states intentionally condone the abuse of exemptions. In short, the lax enforcement which characterized state enforcement of mining laws prior to the Act has continued, and OSM has done little other than talk, wring its collective hands, and talk about deference to the states. The consequences of the breakdown in enforcement are as predictable as they are regrettable-another generation of unreclaimed mines (at least 6,000) with all that implies for the people and environment of the coalfields-landslides, destroyed homes, destroyed water supplies, polluted streams and ruined lives. The outlook for the future is mixed. There is some room for hope. A recent tentative settlement between NWF and the state of Kentucky would, if signed and funded, improve enforcement considerably if the state in fact implements the settlement. As the Committee is aware, that settlement requires Congressional funding and I want to thank the Chairman for his strong support of the NWF settlement. -5 An effective Applicant/Violator system would go a long way toward eliminating abusive operators from the coalfields; however, OSM appears determined to promulgate a weak ownership and control rule which would nullify a potentially potent enforcement tool. Wildcatting will increase with the elimination of the two-acre exemption, but there appears to be some agreement that a stepped up effort can be mounted. All in all, the enforcement system in the Act is in serious trouble. In my judgment, however, the problem lies not with the Act; that has withstood the test of time. The Act's enforcement has beed undercut by mismanagement, incompetence, and in some cases intentional efforts on the part of the regulators charged with enforcement to thwart the enforcement of the Act. The Act will not work as intended until those people are removed and replaced with people who will enforce the Act as written. Thank you. TESTIMONY PRESENTED TO THE HOUSE INTERIOR COMMITTEE OVERSIGHT HEARING ON From the very beginning of the attempt to forge an effective regulatory program for the mining coal in our country, I have alwys regarded as one of the most important objectives of the 1977 Surface Mining Control and Reclamation Act the provision that there be "uniform national standards." During the promulgation of the Federal guidelines for the Act, conservation groups strongly protested the "State Window" provision which would allow states to deviate from uniform standards. The State Window was allowed to prevail, however, and its philosophy has been extended to almost every area of SMCRA. One of those is the bonding of surface mine oeprations. SMCRA requires mine operators to post a bond to assure that mined lands will be adequately reclaimed if the operator is unwilling or unable to do so. How much is that? In my own state, Pennsylvania, it is estimated that at least $6,500 per acre is necessary for public reclamation. Other states differ. Ohio says it needs at least $5,500 per acre. And, we should bear in mind, such last ditch reclamation is rarely the return to pre-mining condition that is the preferred form of reclamation. Although the mining industry was the foremost advocate of allowing stateby-state divergence from the federal guidelines, it now rails against the - 2 differences in the cost of doing business from one state to another. Pennsylvania industry spokesmen maintain it is two to three times as expensive to mine coal in Pennsylvania as it is in West Virginia or Kentucky, for example. Over the past few weeks, I have conducted an informal survey of the bonding practices and bonding levels in eight Eastern mining states. Four of the states Indiana, Kentucky, Pennsylvania and Virginia responded to my written request Illinois, Ohio, for information on bonding procedures and levels. Four others Tennessee and West Virginia - I contacted by telephone and conducted lengthy interviews with personnel of the permitting divisions. When I summed up the results of the survey, the overwhelming impression was that bonding is, on the whole, inadequate and there is little similarity in the way programs are bonding surface mine operations. Surface mining is a tremendously disruptive activity. If not promptly reclaimed, the disturbed land area can be a safety hazard, can contribute loads of sediment to receiving streams, can be a continuing source of acid mine pollutants, as well as representing a land area unusable for any other purpose. Bonding the mining area, however, is one of the big cost items in mining. That cost, especially in the Eastern region of the country, should be comparable from one state to another. Right now it isn't. It can cost you up to $10,000 an acre to mine in Pennsylvania or Illinois. In Ohio, it can't cost you more than $2,575 an acre. In West Virginia and Tennessee, you can mine for a cost of $1,000 – $2,000 an acre (apparently even if you removing a mountain top and creating a valley fill). My informal survey brought out one particularly disturbing fact: you can't rely on the Federal government to establish adequate bonding rates. The Office of Surface Mining is now administering the Tennessee program, the only state program under Federal administration. Their bonding procedure, however, is setting bonds among the lowest in the Eastern states. - 3 Although I've not seen their regulation guidelines on bonding, I spent nearly an hour on the telephone with their bonding specialist, David Lane. "Bonds are determined by site specific conditions and calculated by the methodology in OSMRE'S 'Handbook for Calculation of Bond Amounts'," he told me. When pressed for specifics, Mr. Lane gave me two examples of recently permitted operations: 1) An area mine with an average of 20 feet of overburden at $177,000 ($655 an acre). 270 acres bonded 2) Another area mine where a variance was granted to accomodate a drag-line operation, extending the allowable pit opening from 1800 feet to 4200 feet and allowing three spoil piles - 682 acres bonded at $1,425,000 ($2,089 an acre). The initial Tennessee primacy program taken over by the OSM bonded at $1500 an acre, clearly inadequate. The Federal program based on the examples above appears to be no improvement. What happens to bond Both state primacy programs and OSM calculations on bond requirements for permitting assume prompt inspection and enforcement activity in other words, strict adherence to contempraneous mining requirements. adequacy when strict enforcement is absent? I feel that the public has neither assurance that adequate bonds are being set or that there is anything like a national standard in operation. Most states claim that they have had such few cases of forfeiture on permanent program operations that it is impossible to accurately assess adequacy of bond levels. OSM recently conducted a review of four of the first five permanent program bond forfeitures in Kentucky. Of the four sites, OSM calculated the necessary amount to reclaim to be two to three times more than the state bond amount for the sites. In all four cases, the sites will not be reclaimed to permanent program standards. The OSM noted other program failures in connection with the sites: a total of $244,735 in civil penalties had been assessed against the operations and all penalties remain outstanding. (See attached.) |