Legislative Hearing on H.R. 2372, a bill to amend the Surface Mining Control and Reclamation Act of 1977: November 9, 1995
Energy and Mineral Resources Subcommittee of the House Committee on Resources
Members present: Subcommittee chairman Calvert (R-CA), Ranking member Abercrombie (D-HI), Cremeans (R-OH), Cubin (R-WY), Hansen (R-UT), Rahall (D-WV), and Dooley (D-CA)
Robert J. Uram, Director Office of Surface Mining Reclamation and Enforcement Department of the Interior
Fred Bowman, Director Office of Mines and Minerals Illinois Department of Natural Resources (on behalf of the Interstate Mining Compact Commission)
James Carter, Director Division of Oil, Gas, and Mining Utah Department of Natural Resources (on behalf of Michael O. Leavitt, Governor of Utah)
Harold P. Quinn, Senior Vice President and General Counsel National Mining Association Washington DC
Blair Gardner, Vice President for External Affairs Arch Mineral Corporation St. Louis MO
Gene Saunders, President Local Union 9177, United Mine Workers of America Cabin Creek WV
Tom Fitzgerald, Director National Citizens' Coal Project Frankfort KY
Mr. Dickie Judy Foster WV
This hearing was conducted in order to provide a legislative record for H.R. 2372, which was cosponsored by Rep. Barbara Cubin (R-WY) and Rep. Frank Cremeans (R-OH). The purpose of the legislation is to revise the 1977 Surface Mining Control and Reclamation Act (SMCRA). Speaking in favor of the bill, Subcommittee Chair Ken Calvert asserted that the proposed legislation was about "good government, plain and simple." Several Republicans asserted the need for a surface mining program that is more responsive to local needs. Bill sponsor Cremeans complained that the current federal/state arrangement was counterproductive and involved duplication of work and second-guessing the states. Sponsor Cubin stated that her intent was to reaffirm and clarify the original intent of SMCRA, which was for the states to have primacy in regulation. She pointed to a great deal of tension that existed between the states and the federal Office of Surface Mining Reclamation and Enforcement (OSM) despite efforts by OSM Director Uram. She insisted that the new legislation did not eliminate the role of OSM but clarified who should enforce the law.
Ranking member Abercrombie expressed his opposition to H.R. 2372 because it would profoundly change the way the federal government regulates surface mining in conjunction with the states, eliminating the "backstop protection" provided by OSM and the "hammer of possible federal intervention" in the absence of responsible action by the states. He questioned whether this was truly a states rights issue given opposition by coal states Kentucky and West Virginia. Representative Rahall, who was involved in the original SMCRA legislation, directed the committee's attention to a painting of former committee chairman Mo Udall (D-AZ), describing him as the father of SMCRA (Later, Rep. Cubin promised to change the bill so that it would be something that Mo Udall would have liked). In detailing the importance of SMCRA, he recalled a 1972 disaster in West Virginia when a coal-waste dam failed, killing 125 and leaving 4000 homeless; he blamed this disaster on "so-called state regulations". Rahall described OSM as a second line of defense or safety net against the occasional failure of state authorities and credited SMCRA with changing the culture of coal companies, which now took pride in their reclamation awards. He opposed the new legislation as a return to the past when competition between states led to undercutting of regulations.
With those remarks as preamble, OSM Director Uram testified in opposition to H.R. 2372. He acknowledged that SMCRA had experienced a contentious history full of lawsuits by coal companies, states, and environmental groups, but asserted that despite all the litigation, SMCRA is generally working. He credited SMCRA with producing regulatory stability in the Federal/State relationship that has resulted from uniform enforcement procedures. He maintained that the States are the primary regulatory authorities, while OSM assures a "level regulatory playing field". He pointed to OSM's success at developing performance agreements in conjunction with the states instead of "Washington-driven mandates". In opposing H.R. 2372, Uram claimed that it would "undermine the progress made to date in the development of quality State programs" and predicted that in the absence of a strong OSM role, the industry would urge states in a "race to the bottom", weakening their regulatory programs.
Fred Bowman, representing the Interstate Mining Compact Association, testified in support of the legislation for "appropriately limiting the role of the federal government in primacy states." His testimony centered on recent court cases establishing federal authority to issue notices of violation due to ambiguity in SMCRA and submitted a resolution opposing such federal authority in primacy states. Removal of such authority was necessary, in his view, because OSM was unable to restrain "overaggressive and inappropriate behavior" on the part of OSM inspectors. Bowman took exception to the "race to the bottom" concern expressed by Uram, pointing to the high ratings that the states have been receiving for their performance despite budget cuts.
James Carter, representing the Governor of Utah, testified in support of H.R. 2372. He stated that the SMCRA amendments in this bill would "clarify the proper roles of [OSM] and the primacy states, will codify judicial and administrative interpretations of unclear provisions of the law, and will result in more environmentally effective and fiscally efficient implementation of the coal regulatory program." While credited SMCRA's coal regulatory program with improving environment and safety protections, he criticized structural flaws in SMCRA that produced duplication of responsibilities and asserted that the new legislation would "consolidate the gains made recently in interpretation of the coal regulatory program, and will prevent future counter-productive duplication of effort."
Harold Quinn of the National Mining Association spoke in support of H.R. 2372. He credited SMCRA with striking a balance between environmental protection and the need for coal as an energy source, but lauded H.R. 2372 for addressing the need to clarify the original intent of the Act in order to remove regulatory uncertainty. He cited the experience gained in the past 18 years and the consequent capabilities of the states as reasons for updating the original legislation.
Blair Gardner of the Arch Mineral Corporation, a large coal-mining company, spoke in support of the "modest procedural reforms" embodied in H.R. 2372. Although generally supportive of SMCRA as a framework, Gardner cited his company's experiences as evidence that reform was needed.
Mr. Gene Saunders, representing the United Mine Workers of America, testified in opposition to the proposed legislation. He cited three major reasons for his opposition: OSM must have the ability to issue notices of violations in order to ensure compliance with the law, an active federal presence is needed to prevent states from creating competitive advantages by not enforcing the laws, and the removing direct federal enforcement authority could move the country back to a pre-1977 period of inconsistent and inadequate reclamation.
Mr. Dickie Judy of West Virginia spoke in opposition to H.R. 2372, citing his personal experience with the West Virginia Department of Environmental Protection after coal-mine blasting destroyed his property. Pointing to the inadequate response by the state, he emphasized the importance of having a strong OSM presence. He ended his testimony by stating: "If they do away with OSM, I will move to a state that has no coal!"
Testimony from Mr. Tom Fitzgerald, representing the National Citizens' Coal Project, was not available.
(submitted by David Applegate, AGI Government Affairs)