Strip Mining Bill Reported Out by House Interior Committee

One lengthy and bitter dispute between industry and environmentalists has concerned the need for federal legislation designed to discourage and control surface coal mining. Although strip mining techniques can be used to obtain only three to eighteen percent of the nation's coal resources and may preclude further mining by other methods, the coal companies have always found strip mining economically attractive. Part of the reason for strip mining's profitability has been that the cost of reclaiming gutted land has largely been avoided by irresponsible mine operators. The Department of the Interior has estimated the cost of reclaiming the 2.5 million acres of wasted lands left from abandoned strip mines to be $18 billion.

Over the past few years coal companies operating deep mines in the East have been faced with increased expenses due to rising wages and health benefits, and the cost of compliance with the Coal Mine Health and Safety Act of 1969.¹ As costs of eastern deep mining have risen, the disadvantages of shipping coal produced in the western states back to the major users in the East have seemed less and less onerous. The coal industry regards the western fields of low sulfur coal as a new frontier ready to be exploited. Planned facilities in the West include gasification plants to manufacture synthetic oil or gas from coal ore and large generating plants near mining sites. Like the coal industry, the oil companies look to the West for new sources of oil from oil shale. The question now facing the Congress is whether by failing to enact strong controls it will allow much of the already sparsely vegetated, arid West to become even more so.

In October of 1973, the Senate passed a measure to end some of the past abuses by the coal strip-mining industry.² Legislation similar in many respects to the Senate bill has been the focus of several months of heated dispute in the House Interior Committee. That Committee on May 14 finally voted 26 to 15 to report out the proposed strip mining bill H.R. 11500. The bill now goes to the Rules Committee whose approval hopefully will be granted gaster than was the case for the land use bill.

A key provision of the House bill, § 709, would require holders of severed mineral rights to obtain written consent from the surface owner prior to application for a mining permit under the Act. As pointed out by industry critics, mine operators will probably have to pay for that consent; this effectively gives surface owners, in the words of Congressman Morris Udall, one of the bill's leading sponsors, "a windfall." However, little else can be done to compensate a surface owner for the loss of the use of the land for the period during which it is being strip mined and of vegetation that may have taken decades to grow. The provision at least addresses the inequities created by severed ownerships in land.

The House bill (H.R.11500) is not as sweeping as the Senate passed version, which would ban strip mining where the federal government owns the mineral rights but the surface title is held privately. This provision of the Senate bill, originally offered as an amendment by Senator Mike Mansfield (D.Mont.), would prohibit mining on an estimated 45 million acres of western lands containing more than six billion tons of low sulfur coal. Coal industry spokesmen have pointed out that the Mansfield provision would prevent strip mining even where a coal company owns the surface lands and has leased the mineral rights from the federal government.

H.R. 11500 would require mining companies to obtain development permits prior to commencing operations. The permit program would be administered by the states unless the state program did not comply with requirements specified by the bill. The states are given up to two years to submit control programs to the Department of the Interior for approval. Prior to approval of state plans, or if a state program is rejected as noncomplying, the federal government would have enforcement jurisdiction under § 201(f) of the Act. State programs must include procedures for designation of lands incompatible with strip mining, such as areas with fragile ecosystems, historic sites, natural hazards (which could cause flooding if mined), or where local or state governments have already promulgated plans for conflicting development. The House bill provides for grants to states to assist the creation and administration of state programs. Under Title III of the bill Indian tribes would be given basically the same authority as the states to develop permit programs governing Indian lands. As in the case of the states, the federal government would take over administration of a program if the tribe failed to develop a complying plan or if asked by the tribe to assume that authority.

Upon enactment the House bill requires compliance by all operators of new mines with interim environmental standards which require reclamation of mined lands to the approximate original contour, elimination of high-walls (steep walls left after surface mining hilly terrain), and revegetation of all stripped lands. The interim standards [4 ELR 10088] would also require stabilization of waste piles to reduce leaching of toxic substances into the ground water, protection of stored topsoil to prevent deterioration by erosion and replacement of the soil on mined areas, and would prohibit the hazardous practice of dumping unstable waste piles on steep downslopes.

Tougher permanent standards, operative three years after enactment would, inter alia, require reclamation of mined lands to the extent that the land can support equal or higher uses. The regulatory agency may grant narrow exceptions to the standards where equipment necessary to achieve standards can not be obtained or when an exception will pave the way to a higher land use later. Section 202 would require the Secretary of the Interior to promulgate regulations embodying the permanent environmental standards. The regulations would be subject to a public hearing and comment process and the Secretary of the Interior must obtain the written concurrence of the Administrator of EPA concerning regulations relating to air and water quality standards. Concurrence of EPA would also be needed prior to the Secretary's approval of state implementation plans dealing with air and water quality standards.

Strip mine operators have often been criticized for their construction of water retention facilities out of unstable mine wastes, placing Appalachian residents who live below such impoundment areas in constant fear of landslides and flooding. The House bill, in § 201(b) (5)(B), would require compliance with the latest engineering practices in design of water retention facilities and would prohibit the use of unsuitable mine wastes for construction thereof.

One of the primary environmental protection mechanisms of the proposed bill is the detailed permit application procedure. Permit applications must be accompanied by information concerning the scope of planned development, data on the expected hydrologic consequences of the proposed mining operations and the names of the surface and abutting landowners. Section 210(c) requires submission of a detailed plan at the time of permit application including the measures that will be taken to avoid adverse environmental effects and the expected reclamation efforts. Section 211(b)(4) of the proposed Act would prevent operators from speculating on future income to satisfy reclamation obligations, by requiring miners to develop in increments, keeping reclamation operations concurrent with the mining progress. As each increment of land becomes next to be developed, coal mine operators are required under § 216(a) to post reclamation bonds in the amount determined by the regulatory agency to be sufficient to complete reclamation if forfeiture should occur.

The bill would require notice of proposed regulatory activities and would allow citizen participation in the hearing process. Section 223 of the bill authorizes citizen suits in district courts to force execution of nondiscretionary agency duties, and would allow reasonable awards of attorney's fees. To strengthen the enforcement provisions, Title V of the bill would create a separate Office of Surface Mining Reclamation and Enforcement in the Department of the Interior, with a Director appointed by the President and approved by the Senate.

One of the more controversial provisions of the House bill is the proposed reclamation trust fund. As originally offered by Representative John Seiberling (D.Ohio), the provision would impose a reclamation fee of $2.50 per ton upon both deep and strip mine operators, allow strip mine operators to write off 90 percent of reclamation costs, and allow deep miners to write off up to 90 percent of the costs of the Coal Mine Health and Safety Act,³ the Black Lung Benefit Program, and of backfilling spent mine shafts. The Coal Mine Health and Safety Act has encouraged strip mining by raising the costs of deep mining; the Seiberling provision would create a parity between these two methods. Revenues would be used to reclaim strip mines presently abandoned. The provision met strong opposition in the Interior Committee and was amended several times before the bill was reported out. As modified by a substitute proposed by Representative James R. Jones (D.Okla.), the reclamation fund provision would impose a tax of $1.23 per million BTUs of energy potential in the coal produced by either deep or strip mines or imported from foreign sources. The average fees per ton would be less than 15 percent of the flat $2.50 per ton of the Seiberling proposal, and because coal produced in the eastern states is of a much higher BTU value than western coal, the Jones substitute would disproportionately tax eastern deep mining operations. Other amendments included provisions that the operators' costs of reclamation could be deducted from the fees paid under the fund and that 40 percent of the funds would be returned to the communities where the coal was produced to support the local services needed because of the new industry. Section 403 of the bill reported out exempts from the reclamation charges lands for which continuing reclamation responsibility is imposed under state or other federal laws.

Section 101(d) of the bill recognizes that the "overwhelming percentage of the Nation's coal reserves can only be mined by underground mining methods" and that it is "essential to the national interest to insure the existence of an expanding and economically healthy underground coal industry." Environmentalists active in pressing for strip mining legislation supported the bill prior to weakening amendments in the Committee, because it would have helped stem the exodus of mine operators from the eastern deep mines to the western coalfields. The substitutes to the Seiberling provision and the three years of interim standards in the bill reported out of the Committee have led to a withdrawal of their support. Critics of the bill now charge that mountaintop mining [4 ELR 10089] would be left virtually unregulated and that weak water conservation and revegetation requirements would encourage the move westward and the trend away from deep mining. Proponents of strong controls have indicated their intention to press for amendments on the House floor, including an amendment by Representative Ken Hechler (D.W.Va.) that would implement the policy expressed in § 101(d) by completely phasing out strip mining, and a proposal by Representative Seiberling to substitute his original reclamation fund provisions. Environmentalists have indicated support of a proposal to reinsert a provision struck by the Interior Committee which would prohibit mining through rivers and streams, and of other amendments which would prohibit the removal of aquifers in arid regions where the coal seams act as arteries for ground water supplies, and phase out strip mining on slopes greater than 20 degrees.

Several studies done by unbiased analysts demonstrate as unfounded the industry's claims that the proposed legislation would severely hamper development of coal resources. A study sponsored by the Appalachian Regional Commission and the Kentucky Department of Natural Resources and Environmental Protection has recently reported that "complete contour restoration methods are generally desirable and feasible using existing equipment." The study concludes that complete contour restoration, and use of methods to eliminate highwalls and downslope spoil piles is economically feasible in both West Virginia and Pennsylvania without government funding. Governor Milton Shapp of Pennsylvania has recently pointed out that complete reclamation technology now exists and is being used in his state. Governor Shapp has supported a strong federal strip mining bill which he believes will create a greater equity between the states such as Pennsylvania with strong controls and the western states. The National Academy of Sciences study conducted for the Ford Foundation's energy policy project has submitted a detailed report of reclamation possibilities in the West, that indicates in large areas of the West, with strong legislation and plenty of rain, stripped lands could be reclaimed. Because the reclamation potential is very low in many regions with less than ten inches of rain per year strong protective legislation is needed. In light of the inability of strip mining techniques to extract the vast majority of our nation's coal reserves, federal legislation should encourage deep mining. Although the preamble to the bill reported out by the Interior Committee announces that goal as national policy, little incentive will exist to implement that policy unless several significant amendments are included on the House floor.

1. 30 U.S.C. 801 et seq.

2. S.425.

3. 30 U.S.C. § 801 et seq. (1969).