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protection for cultural resources we tried to do so without placing any unnecessary or unreasonable burdens on the mining industry. We obtained our goal through conflict and kept it by cooperation.

In summary then, compliance from the coal industry in Ohio has been the product of a dialectical process conflict and cooperation. I believe that either one in the absence of the other would not have produced the success which we have achieved to date.

TESTIMONY PREPARED BY THE SOCIETY OF PEROFESSIONAL ARCHEOLOGISTS

FOR OVERSIGHT HEARINGS BY THE COMMITTEE FOR INTERIOR AND INSULAR AFFAIRS

ON THE TENTH ANNIVERSARY OF

THE SURFACE MINING CONTROL AND RECLAMATION ACT

August 3, 1987

Prepared by:

Charles M. Niquette, Chairman
Government Relations Committee
Society of Professional Archeologists
626 Portland Drive
Lexington, Kentucky 40503
(606) 277-8882

On this the tenth anniversary of the Surface Mining Control and Reclamation Act it is entirely appropriate to conduct hearings before the Committee on Interior and Insular Affairs to determine the extent to which the Act has been implemented and the Society of Professional Archeologists (SOPA) applauds the Committee's efforts. Moreover, we welcome this opportunity to provide written testimony concerning the Office of Surface Mining's (OSM) implementation of the Act.

As members of the Committee may be aware, SOPA and others have joined recently in legal action against OSM due to the agency's inadequate consideration of significant archeological and historic properties threatened by permitting decisions in the eastern coal states. While the primary thrust of the suit centers on inadequacies noted in OSM's final rulemaking, published in the Federal Register in February of this year, the failure of these regulations is only a pale reflection of deeply rooted problems in this regard.

As early as September 1983, SOPA formally petitioned OSM to enter into rulemaking. This petition sought to insure that the state regulatory authorities (SRAs) would require surveys where these were needed to identify significant archeological and historic properties. It also sought to insure that significant properties were adequately considered in permit decisions and that they be protected from coal mining activities. All of these goals were consistent with OSM's duties under the National Historic Preservation Act and therefore, the 1980 Programmatic Memorandum of Agreement (PMOA) which was executed between OSM, the Advisory Council on Historic Preservation (ACHP), and the National Conference of State Historic Preservation Officers (NCSHPO). Nevertheless, OSM rejected the petition in January of the following year. A subsequent Freedom of Information Act request demonstrated that OSM had no legal or policy basis for rejecting the petition, and that the decision had been arbitrary and capricious.

In June of 1984, SOPA, the National Trust and others joined in the suit that was ultimately decided by the Flannery Court (In re: Permanent Surface Mining Regulation Litigation (Civil Action 79-1144)). At nearly the same time, a congressional oversight hearing was held on the extent to which OSM had implemented the national historic preservation program. Other than that offered by OSM's Director, testimony was presented by the Society for American Archaeology (SAA), SOPA, the ACHP, the National Trust, the Ohio Historic Preservation Office, the Council for the Conservation of Indiana Archaeology, the International Indian Treaty Council, and the NCSHPO. This testimony was uniformly damning in the wide-spread criticism of OSM's inadequate consideration of significant sites in the eastern coal states.

Only partially successful, the July 1985 Flannery decision cleared the way for a second rulemaking petition. This second petition was published in the Federal Register and found to "have merit" in January 1986. During the various Federal Register publications and requests for public comment on the rulemaking, the SAA and others proposed regulatory language changes that would insure that significant properties were adequately considered in the permitting process. When the proposed rules were published (March 1986), OSM's stated purpose for rulemaking was to clarify the SRA's responsibilities to consider the effects of mining on significant sites to "better assist the Secretary of the Interior in implementing his responsibilities concerning historic resources." Independent review of the proposed regulations, however, revealed that the language change suggestions had been ignored. In response to OSM's proposed rules, the

preservation community and state regulatory authorities spoke with a single voice: the proposed regulations lacked the specificity needed to insure adequate consideration of significant sites threatened by mining activities.

The regulatory language proposed by SOPA's petition would in effect pass on OSM's Section 106 duties to the SRAS. The statutory basis for such a direct delegation of federal responsibility is unclear, but it is crystal clear that the historic preservation requirements imposed on OSM by Section 106 are not abrogated by the delegation of federal responsibility. To meet its obligations under the National Historic Preservation Act, OSM can either comply with Section 106 on a permit-by-permit basis, or the agency must insure that the permanent programs of each SRA includes a mechanism for identifying and considering effects on historic properties that is at least as effective as the Advisory Council's regulations.

OSM's argument

the NHPA are that permit re: Permanent If OSM did not pursuant to

OSM's position with regard to such a delegation of authority has been extremely inconsistent. For example, in his testimony before the Public Lands Subcommittee, Jed Christenson stated that "...section 106...does not apply directly to decisions by a State regulatory authority." On the other hand, OSM has argued before the U.S. District Court for the District of Columbia that "the Secretary insures that each state program...provides for the coordination of permit issuance with the NHPA" (Government brief in re: Permanent Surface Mining Regulation Litigation, Civil Action 79-1144, page 82). persuaded the court that "the Secretary's responsibility under carried out via other regulations that, for example, require issuance be coordinated with the NHPA" (Memorandum Opinion, in Surface Mining Regulation Litigation, July 15, 1985, page 73). mean to convince the court that the Secretary's responsibilities Section 106 were adequately fulfilled by passing through such duties to the SRAS, it is difficult to imagine what OSM did mean. Futhermore, OSM has acknowledged, and pointed out to certain SRAS (Ohio, Kentucky and Indiana), that OMB Circular A-102, attachment M, a standard part of the grant agreements executed between OSM and the SRAS, requires each SRA to "assist the Federal grantor in its compliance with Section 106..." by consulting with the SHPO on the identification of historic and archeological properties, notifying OSM of such sites that are subject to effect, and complying with whatever OSM requires with respect to avoidance or mitigation of such effects (OSM response to questions by the Subcommittee on Public Lands, July 30, 1985). This requirement appears to delegate the "legwork" of Section 106 review to the SRAs, while retaining in OSM the actual responsibility to comply with the statute.

Both OSM and the ACHP agree that Section 106 applies to the approval of state programs, amendments thereto, and provision of financial assistance to those programs. OSM apparently believes that the agency has complied with Section 106 through the final rulemaking (Federal Register 52(27), February 10, 1987) by providing the Council an opportunity to comment on the amendments under the 1980 PMOA. The ACHP's acceptance of a simple commenting role with respect to State program amendments (in the 1980 PMOA) was predicated on the assumption that OSM would carry out the other parts of the PMOA, most significant of which were the requirements for regulatory changes that would insure protection of significant sites through reasonable identification efforts and procedural requirements for the consideration and treatment of significant sites threatened by mining activities. In fact, however, the 1980 PMOA is null and void because it was never implemented. Therefore, it appears that OSM has chosen to selectively pick and choose among the various stipulations of the PMOA to find those things

that they can live with. OSM notes that they will comply with Section 106 with respect to their assistance to the states, by requiring the states to "assist" OSM as per OMB Circular A-102. Nothing in the new regs reflects OSM's duties under 36CFR Sections 800.4 through 800.6. The Agency has failed to direct the SRAS to meet any substantive historic preservation requirements, certainly none that offer the protections included in the Advisory Council's regulations; and therefore, OSM is not in compliance with Section 106.

The root of the problem is OSM's failure to comply with the National Historic Preservation Act in the transfer of regulatory authority to the SRA, their failure to comply with the Act in OSM annual funding of the SRA's permanent program (Kentucky receives $8 million a year), and their failure to comply with the Act in the funding of ancillary programs such as Abandoned Lands Reclamation and the Small Operators Assistance program.

Section 106 of the Act requires federal agencies to do two things before licensing or approving the expenditure of funds on any undertaking that may affect sites listed on or eligible for inclusion in the National Register. First, they must take into account the effect of their undertaking on such properties; and second, they must afford the Advisory Council a reasonable opportunity to comment on the agency's undertaking. To effectively administer federal agency requests for comment, the Act specifically authorized the Advisory Council to promulgate regulations to govern federal agencies in their compliance with Section 106. These regulations, 36 CFR Part 800, outline the manner in which federal agencies are expected to complete their inventory and evaluation responsibilities. Moreover, these regulations spell out the process of consultations between the agency, the SHPO, interested members of the public, and the Advisory Council in determining the scope of activities necessary to mitigate adverse impacts caused by federal undertakings on significant sites.

Instead of seeking compliance with the National Historic Preservation Act in the oversight and funding of the permanent state programs, OSM appears to be seeking protection of significant sites in the eastern coal states under the regulations which implement the Surface Mining Control and Reclamation Act (SMCRA). Unfortunately, neither SMCRA nor its accompanying regulations are as stringent as the National Historic Preservation Act. OSM has taken some of the very vague and ambiguous wording of the SMCRA regulations and has attempted to interpret these so broadly that the various SRAS are unwilling to accept OSM's direction concerning the treatment of significant sites. Moreover, OSM seems intent on shifting the 106 burden to the states without also giving the states the advantages and inherent protections included in the regulations implementing Section 106.

OSM would have us believe that the final regulations will insure that significant sites are identified and adequately considered in the permitting process despite the fact that the new rules require absolutely nothing that was not required under the old regulations, and despite the fact that some SRAs has indicated that discretionary authority is insufficient cause to promote a change in their regulatory approach. Robert Nickel, Director of Kentucky's Division of Permits, reiterated this position at a surface mining litigation seminar held in Lexington on February 20. Mr. Nickel stated that OSM's final rules have "not provided the clear guidance needed to resolve all the issues surrounding the protection of cultural and historic resources." In the meantime, destruction of the archeological resource base throughout the eastern states continues (see Attachment I).

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