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Our Council feels that the definition of a small operator should be increased from 100,000 to 200,000 tons. In terms of coal production, 200,000 tons is a small operator.

3.

Our

State primacy is undermined due to the Federal Oversight Program.
The current OSM concept of oversight actually sets up a dual
enforcement program in primacy states. Our coal operations are
inspected by state inspectors and federal inspectors. The
likelihood of our receiving violations, as a result of the federal
inspection is almost as great as through state inspections.
understanding of the original concept of oversight was an evaluation
of how the state was handling the primacy program. Instead OSM
oversights the specific actions of the state and even goes so far as
to overturn those actions when they disagree with the state. The
ability of small coal operators to understand and deal with this
dual enforcement system is becoming increasingly difficult.
Council feels that major changes are in order on how the oversight
program is administered by OSM.

Our

4.

Illegal mining and two-acre exemptions encourage unfair competition
for small and medium size coal producers.

Illegal operations and two-acre exemptions are selling cheap coal on
the spot market and to larger operators who are seeking assistance
in meeting contract obligations. Two-acre operators and illegal

miners are able to mine and sell their coal much cheaper than anyone
else.

Our Council feels that a new assessment is needed concerning penalties for illegal mining. In addition, the two-acre exemption needs to be reconsidered. From our viewpoint, mining is mining, and the law and regulations should apply to everyone commercially mining coal.

5.

Payment of legal fees has created issues that perpetuated an
overkill within the program.

Many issues surrounding the Federal Surface Mining Act have been
blown completely out of proportion and have allowed certain
attorneys to get rich on keeping issues on the front burner. An
example is the two-acre abuse problem in Kentucky and Virginia.
While our Council recognizes that many abuses occurred, Kentucky at
least had a program to identify the operators and restrict their
mining activities with some environmental standards and permitting
requirements which is far more than the federal government

recognized the need to do.

Kentucky moved to curb the abuses, but certain attorneys have ignored the progress and through the federal courts and through pressure on OSM, have created a situation that keeps the two-acre abuse issue alive. This lines their pockets with revenues from the federal government rewarding them for their efforts in conjunction with the Federal Surface Mining Act when in fact they have done

nothing but perpetuate issues.

6. SMCRA complicates many development activities in Eastern Kentucky. More flexibility in the Federal Surface Mining Act needs to be applied to those situations where commercial development will occur. For example, many shopping centers and developments within cities in Eastern Kentucky have encountered coal in the midst of their development project. There is no logical reason why the developer should not be able to commercially sell this coal to offset the price of development, and yet under current surface mining rules, these developers would have to receive a surface mining permit with all its bells and whistles before it could commercially sell the coal. Development activities of a legitimate nature need to be recognized in the Act and dealt with so that developers can proceed without incurring permitting requirements.

Recommendations of the the Small Coal Operators Advisory Council:

1. By opening the Federal Surface Mining Act, we should create greater flexibility on highwall elimination and land owner use of his own land.

2.

3.

A two year revegetation period is sufficient to accomplish revegetation and reclamation. This would allow greater land owner use and limit coal operators' liability.

An extensive look at the need for hydrologic and geologic data collection needs to be taken and redesign of that effort so that a more logical data collection pattern can be established with better uses and outcomes of that data provided for.

4.

5.

The Small Operators Assistance Program needs to be completely
revamped and authority within the Act given to make it a true
assistance program for small operators.

More specific direction needs to be addressed in the Federal
Act dealing with the oversight program.

6. Stricter penalties and better techniques of eliminating illegal mining need to be devised and incorporated into the Act.

1.

8.

9.

Strong consideration as to the elimination of the two-acre

exemption needs to occur.

Strict limitations on legal fees so that attorneys are not
encouraged to perpetuate issues.

More flexibility for development activities needs to be
incorporated into the Act for commercial movement of coal
encountered in development activities.

ENERGY & ENVIRONMENTAL

SUB-COMMITTEE

HOUSE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS CHAIRMAN: HON. MORRIS UDALL

AUGUST 3, 1987

ROBIN L. WEBB

ATTORNEY AT LAW

GULLETT, COMBS & HOLLIDAY
POST OFFICE BOX 1039

HAZARD, KENTUCKY 41701

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