Under the terms of the grant agreement executed between OSM and the 29 states which have gained primacy in the regulation and permitting of surface mining activities, and under the terms of each state's Permanent Program Submittal, the individual SRA either has the authority to identify and protect significant sites or it does not. If the state does not have the necessary authority, or if significant sites are afforded less protection than that provided by the regulations implementing Section 106, then OSM has failed to meet its own responsibilities under the National Historic Preservation Act. Immediate and decisive action is necessary to insure that the permanent programs of the eastern coal states include requirements for identifying and protecting significant historic resources. This regulatory approach must be as effective as the process embodied in the pertinent provisions of the National Historic Preservation Act, including Sections 106 and 110(d). Without such a process there will be continued confusion and, more importantly, the continued destruction of this country's cultural heritage. There are several particularly good case examples from Kentucky which serve to demonstrate the SRA's selective and inconsistent use of its authority to consider the effects of mining on historic resources. These cases also emphasize the ineffectiveness of the SRA's current policy toward historic preservation. It is important to note that these abuses are not limited to Kentucky's program, but instead appear to be rather widespread throughout the eastern coal states. Case I: Kentucky May Coal Company (Permit Number 813-8000) On 27 March 1986, the SRA ordered the coal company to have a professional archeologist survey all undisturbed portions of the permit area. The SHPO had commented on the permit application and had noted the presence of archeological site 15BR9 within the permit area. The site was known to contain human burials. The company complied and the archeological consultant reported that 80% to 90% of the site had been covered by 9 feet of rock fill. This fill had been placed on the site by earlier mining activities conducted in the immediate area by the same coal company. In the uncovered portion of the site, which had been stripped of topsoil, several human burials had been exposed and were eroding out of a diversion ditch. The SHPO's staff visited the site and recommended recovery of the skeletons that had been exposed and excavation of the undisurbed portions of the site to mitigate the adverse impacts. The consultant favored recovery of the exposed burials but suggested that further excavation was not necessary. He recommended that heavy guage black plastic be draped over the undisturbed portions of the site, that topsoil be re-deposited over the plastic, and that the site area be avoided by all subsequent mining activities. On 20 August, the SRA ordered the coal company to revise their permit application to include an appropriate mitigation plan for 15BR9. The SRA's letter indicated concurrence with the SHPO's recommendation for excavation. On 15 October 1986, Kentucky May submitted a revised permit application that embodied the archeological consultant's proposed treatment of the site. mitigation plan was submitted to the SHPO. On 29 October 1986, the rejected the company's mitigation plan and again recommended excavation. The SHPO On 12 November the SRA informed the coal company that their mitigation plan was unacceptable and instructed Kentucky May to prepare a proposal that was "in conformance with the recommendations of the SHPO..." When the burials were first discovered, the SRA issued a violation to Kentucky May for encroaching on the cemetery buffer zone requirement. To abate the violation, the SRA wrote an Agreed Order, in which the company agreed to maintain the 100 feet buffer around the burials and to mitigate the impacts to 15BR9. The Order has been executed, but to date, there has been no mitigation nor has Kentucky May taken further action toward insuring that the revised permit is issued. Case II: EDCO Energy Corporation (Permit Number 836-8007) During environmental review, the SRA determined that archeological site 15FD26 was located within the proposed permit boundary. On 1 August 1986, the SHPO recommended that a survey be completed to gather more complete data on this site (to evaluate its significance) and to record other sites that were thought likely to be present in the area nearby. The SRA requested that EDCO conduct such a survey on 18 August. The SRA notified EDCO on 12 and 20 November that the survey report and a mitigation plan for 15FD26 "should" be submitted prior to approval of the permit application. On November 12, EDCO replied that in their estimation site 15FD26 did not represent a "significant find" and refused to do the survey. On 15 December the permit was found to be technically acceptable and it was issued on 8 January 1987. Case III: Addington, Inc. (Permit Number 845-0017) In this case, the coal company complied with the SRA's request to conduct a survey of the undisturbed portions of the proposed permit area. Four previously unrecorded archeological sites were identified. Noting the success other company's were having in getting permits issued without the benefit of archeological surveys, it is my understanding that the company submitted their application without including the survey report. The SRA responded by asking for a revised application that included the survey report. Addington, Inc. complied. The SRA and applicant developed an inadequate mitigation plan which was formally approved, despite the SHPO's well-reasoned protests. The files did not contain any justification or explanation regarding the manner in which the SHPO's concerns were considered. In fact, there was nothing more than a perfunctory paper shuffle between the SHPO and SRA and the permit was issued. Case IV: B.R.C. Coal Company (Permit Number 848-0070) In the case of Permit Number 848-0070, Amd. #1, a known archeological site (15HL305) was situated within the permit area. The applicant failed to provide this information to the SRA, the SRA was unaware of the site's location, chose to ignore its existence, and the permit was issued. or These examples clearly demonstrate the ineffectiveness of the SRA's current policy toward historic preservation. The first case demonstrates clearly that the SRA can and will take a firm stand to protect significant resources, despite their rather consistent claim that Kentucky's regulations will not allow them to do so. Nevertheless, such strong stands are the exceptions, not the rule. Of the four cases presented above, the second scenario is repeated most often. Far more frequently, however, industry simply ignores the SRA's requests for survey. During October and November of 1986, for eample, the Kentucky SHPO reviewed a total of 212 mining permits. Of these, he requested that 74 (35%) be surveyed by professional archeologists. Given the SRA's perception of their authority, or lack thereof, to require such surveys, it is very unlikely that any of these surveys will be conducted. SOPA sincerely hopes that this testimony will be of use for the purposes of the oversight hearings and appreciates the opportunity to participate. We hope further than the Committee will give appropriate attention to this matter and take those steps that are necessary to force OSM to accept its mandated responsibilities under all relevant federal statutes. Thank you. Attachment I SUMMARY OF ARCHEOLOGY & MINING IN SELECTED EASTERN COAL STATES Tennessee does not have primacy over the regulation of coal mining. OSM SHPO paid for surveys under their Survey and Plans Program with "pass through" monies, via the Iowa Department of Soil Conservation, from OSM. *** The total number of National misleading in that frequently, Register quality sites identified is potentially eligible sites are simply COUNCIL FOR THE CONSERVATION OF INDIANA ARCHAEOLOGY, INC. Corporate Office Owensville, IN 47886 Board of Directors James O. Bellis, University of Notre Dame Mr. TESTIMONY OF CHERYL ANN KUNSON, PRESIDENT, James H. Keller, Indiana University COUNCIL FOR THE CONSERVATION OF INDIANA ARCHAEOLOGY, to the HOUSE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS, MORRIS K. UDALL, CHAIRMAN, OVERSIGHT HEARINGS on the 10th ANNIVERSARY OF July 31, 1987 Chairman and members of the Committee, the Council for the Conservation of Indiana Archaeology is an organization of professional archaeologists in Indiana whose goals include the promotion of the wise use of the state's archaeological resources for public benefit and appreciation. Indiana is a state rich in both coal and archaeological sites. Thus it is no surprise that we welcomed SMACRA and the opportunity it offered for protecting significant archaeological sites from destruction by surface mining. Members of the Council closely followed the development of OSM'S regulations for approved state mining programs and sought (with little success) to bring to the Indiana mining program state laws and rules that would effect responsible treatment of sites important to the state's heritage. Because of our concern about the destruction of unrenewable archaeological resources under OSM's approved and funded mine regulatory program in Indiana, we testified on July 30, 1985 to the House Subcommittee on Public Lands at a hearing on OSM's role in historic site protection (see attachment 1). Nearly all of what we reported in that testimony is correct today, and you need only new information on four problem areas. The following description will show that the Indiana situation is very different from a few other state mine regulatory programs protection of historic properties has not improved. 1. Archaeological sites in Indiana are still being destroyed by surface mining with almost no consideration of their historic value prior to mine permit award. Coordination with the state |