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September 2004, VOL. 22, NO. 3

IMCC 2004 Mid-Year Meeting Scheduled for Oklahoma City

The Interstate Mining Compact Commission's (IMCC's) 2004 Mid-Year Business Meeting will be held November 16-17 at the Waterford Marriott in Oklahoma City, Oklahoma.

IMCC Standing Committee Meetings will take place all day on Tuesday, November 16 followed by an evening reception. The Executive Commission Business Meeting is scheduled for Wednesday, November 17.

A registration form for the meeting was included in the mailed version of this newsletter. Hotel reservation information was included on the form. Contact: Beth A. Botsis at phone: 703.709.8654.

IMCC Awards Programs Accepting Nominations for 2005

The Interstate Mining Compact Commission (IMCC) is now accepting nominations for its annual Kenes C. Bowling National Reclamation Awards and the Floyd G. Durham Excellence in Reclamation by a Small Operator Award. In addition, the annual Mineral Education Awards are open for nominations.

Each year two winners are chosen to receive national reclamation awards: one in the Noncoal Category and one in the Coal Category. When deemed appropriate by IMCC's Awards Committee, a winner in the Small Operator Category is also chosen. IMCC also presents two Mineral Education Award: the Mineral Awareness Educator Award, and the Public Outreach Award. Award winners are recognized at an annual banquet held in conjunction with IMCC's Annual Meeting, which will be held in Philadelphia, Pennsylvania in 2005.

Contact: Beth A. Botsis at phone: 703.709.8654.

Judge Declines Requests Re. Mountaintop Mining Ruling

U.S. District Court Judge Joseph Goodwin recently declined requests by both industry and environmental groups to revisit his orders enjoining the U.S. Army Corps of Engineers (COE) from issuing Nationwide Permit (NWP) 21 authorizations in the Southern District of West Virginia. On July 8, 2004, Judge Goodwin enjoined the issuance of future NWP 21s and also ordered the Corps to suspend 11 previously issued NWP21 authorizations if construction of the valley fills or surface impoundments had not commenced as of that date. On August 13, 2003, Goodwin expanded his order to include any previously issued NWP 21s in Southern West Virginia where construction had not commenced as of July 8, 2004.

Environmental groups asked that the judge clarify what it meant by commencement of construction, expressing concerns that the COE had not provided any guidance. The court declined, stating that the COE "is entirely capable of carrying out my unambiguous order. Construction on particular valley fills and surface impoundments had either begun by July 8, 2004, or it had not."

Industry asked the court to reconsider its August 13, 2004 order expanding the injunction for existing permits beyond the 11 named in the earlier order. Industry maintained that this expansion, "unfairly and retroactively punishes coal operators who were outside the scope of the lawsuit and were operating in compliance with the law." While the court acknowledged "that these operators were operating pursuant to what they thought were lawful authorizations," it declined to grant the relief request stating that it had held that the NWP 21 was unlawful.

According to a recent study, industry is claiming that Goodwin's decision will have serious impacts, including the loss of up to 44 million tons of coal production and anywhere from 3,000 to 15,000 jobs. Several industry associations are appealing the court's July 8, 2004 decision. The U.S. Department of Justice also announced recently that they have filed an appeal of the court's July 8 decision.

States/Tribes Urge Congress to Extend AML Fee Collection

In a series of letters sent to members of Congress, states and tribes requested that the authority to collect fees from coal operators to support the Abandoned Mine Land (AML) Reclamation Fund be extended beyond the current September 30, 2004 expiration date. Seventeen governors from across the country signed onto a letter dated September 10 to Representative Richard Pombo, Chairman of the House Resources Committee and Senator Pete Domenici, Chairman of the Senate Energy and Natural Resources Committee requesting a one-year extension of fee collection authority. "If fee collection is not renewed, AML funding will expire, immediately threatening natural resource restoration efforts in our states", the Governors said. They went on to state: "While Congress has been debating various amendments to SMCRA [the Surface Mining Control and Reclamation Act] to alter the fee collection authority and how the funds are distributed back to the states, no consensus has yet been reached. We would prefer that the program be reauthorized and strengthened to ensure a greater portion of the fees are returned to states for their intended purpose, but we also know that time is running short for such action to occur during the 108th Congress. Failing the passage of one of the several bills currently being considered in the House and Senate, we ask that Congress extend fee collection authority under SMCRA to maintain the source of revenue for the AML Fund."

A similar letter requesting extension of fee collection authority was sent to various members of Congress by IMCC and the National Association of Abandoned Mine Land Programs (NAAMLP). The September 1 letter noted that, through the IMCC and the NAAMLP, "the states and tribes have advocated their suggested approach for assuring the perpetuation of this critical program. As a bottom line, without the extension of fee collection authority for a reasonable amount of time (we have recommended 12 years), the citizens of our country will be faced with a legacy of abandoned mines that will likely lead to injury and even death without more in the way of continuing AML reclamation work by the states and tribes." IMCC and NAAMLP urged Congress to extend fee collection authority for at least one year to allow additional time for all affected parties to develop a longer-term, acceptable solution for the program. Another letter from the Western Governors' Association (WGA) was sent on September 13 urging Congress to act as expeditiously as possible on reauthorization legislation consistent with principles laid out in a WGA policy resolution on AML.

Interior Urges Congress to Reauthorize AML Fee

Rebecca Watson, Assistant Interior Secretary for Land and Minerals Management, recently urged Congress to adopt the Bush Administration's proposal to reauthorize the Abandoned Mine Land (AML) fee authority prior to September 30, 2004. In letters sent to Senator Pete Domenici of New Mexico, Chairman of the Senate Energy and Natural Resources Committee, and Representative Richard Pombo of California, Chairman of the House Committee on Resources, Ms Watson made her plea.

"If the AML fee is not reauthorized before September 30, the significant progress that has been made to date in reclaiming abandoned mine sites will soon come to an end," she wrote. "As a result, more than $2 billion worth of high priority coal reclamation in primacy states will remain unclaimed," with impacts felt first in the Appalachian coal states, she noted.

Ms Watson said that the Bush Administration's proposal would continue the program and "fix a problem in the system that currently diverts funds away from states with the most serious problems." She said the administration's proposal "represents a fiscally responsible approach to accelerating cleanup by directing AML funding, based on historic production," to the most damaged areas "while honoring the commitments made to states and tribes under the Surface Mining Control and Reclamation Act. Shifting the program's resources based on historic production will allow us to spend the money where the problems exist and get the job done."

She said while the administration's proposal "is one of several" being discussed, "I believe it offers the most effective means to achieve cleanup." Ms Watson urged Congress to "move forward expeditiously in renewing the fee collection authority through meaningful, effective legislation."

Senate Takes Action to Extend AML Fee Collection Authority; Markup Fails

The Senate Appropriations Committee has taken action to extend the collection of fees to fund the Abandoned Mine Land (AML) program under the Surface Mining Control and Reclamation Act (SMCRA) for an additional nine months beyond the current expiration date of September 30. In approving the Interior Appropriations bill for Fiscal Year 2005 on September 14, the Committee added language to extend fee collection authority until June 30, 2005, allowing time for more extensive consideration of comprehensive amendments to SMCRA regarding AML reauthorization. It remains to be seen whether the extension will be approved by the full Senate and whether differences between the Senate version of the Interior funding bill and the House version (passed in July) can be reconciled, including the 9-month extension. In a related action, the Senate Energy and Natural Resources Committee failed to move forward with a proposed markup of pending AML reauthorization legislation at its business meeting on September 15. Instead, Committee members said they would rely on the nine-month extension in hopes of eventually passing a new AML bill before June 30th of next year. The primary bill before the Energy Committee was a proposal by Senator Thomas of Wyoming (S.2086) that would make significant changes to the current allocation formula for AML funding to states and tribes, among other things. Republican and Democratic members of the Committee were unable to reach consensus on a final version of the bill prior to the markup. Democratic members had plans to offer several amendments addressing key issues of concern, including funding for minimum program states, hardrock AML, and the allocation formula. Energy Committee members were adamant that the issue be resolved by their Committee, not the Appropriations Committee, and that agreement be reached by June 30th of next year. On the House side, efforts continue by House Resources Committee Chairman Richard Pombo to pass H.R. 4529, which would address AML reauthorization in conjunction with a legislative initiative to permit oil and gas drilling in the Arctic National Wildlife Refuge (ANWR). Revenues from ANWR leases would be used to supplement AML funds.

OSM Publishing Rule Re. Funding for Coal Miners' Health Benefits

The U.S. Office of Surface Mining Reclamation and Enforcement (OSM) announced recently that it is publishing a final rule to enable the agency to continue collecting fees to help defray the costs of health benefits for coal miners even if Congress allows the Abandoned Mine Land (AML) fee to expire September 30.

"This is a precaution we have to take," said Jeff Jarrett, OSM Director. "We are continuing to work for reauthorization of the AML reclamation fee, but time is running out and we have a responsibility to make sure we can continue to transfer funds to the United Mine Workers of America's Combined Benefit Fund (CBF) even if Congress allows the reclamation fee to expire."

Under the Surface Mining Control and Reclamation Act (SMCRA), OSM's authority to continue collecting fees to pay for reclamation of abandoned coal mines will expire on September 30 unless reauthorized or extended. However, the Act also provides that even if the AML fee expires, operators must continue to pay fees to fund annual transfers to the CBF. Under SMCRA, transfers can take place only in years in which operators pay fees. Because collections would no longer be used to reclaim abandoned mine lands and would only fund the CBF fund, the fees would be significantly lower than current fees.

The UMWA fund provides medical benefits for 17,394 coal miners living in 45 states who worked for companies that no longer exist. States with the most miners receiving benefits are Pennsylvania (4,935), West Virginia (3,957), Kentucky (2,507), Virginia (1,200) and Ohio (883).

The Bush Administration has proposed legislation to extend OSM's authority to collect the fee for AML reclamation and to make reforms in the distribution of AML funds that would devote more of the fees being collected to the worst AML problems. The proposal also seeks to increase the level of funding available to the beneficiaries of the CBF. Sen. Arlen Specter (PA) has introduced the Administration's proposal as S 2049 and Representative John Peterson (PA) has introduced the legislation in the House as H.R. 3778.

If Congress reauthorizes the AML reclamation fee before it expires September 30, the rule OSM is publishing will not be needed immediately. However, if Congress does not act before the fee expires, the necessary rules will be in place to ensure that fee collection and transfers to the CBF continue.

Because of the urgent need to have a rule in place before the date that the current reclamation fee rates expire, OSM is invoking the "good cause" exemptions of the Administrative Procedure Act and is adopting the rules immediately on a final basis without prior notice or opportunity for public comment. However, OSM is also publishing a proposed rule inviting the public to comment on the final rules after publication. OSM will evaluate those comments and, if necessary, publish a revised final rule.

Final Historic Preservation Rule is Published

The Advisory Council on Historic Preservation (ACHP) recently published its final rule modifying its existing regulations implementing Section 106 of the National Historic Preservation Act (NHPA). The rule is the result of two lawsuits which industry brought against the ACHP. In response to the litigation, several regulations were set aside and remanded to the ACHP. This rulemaking by the ACHP modifies the regulations to make them consistent with the court decisions.

Two key changes to the rules are as follows:
-- The regulations now provide that the Council may not veto the decision of a federal agency regarding a finding of "No Historic Properties Affected" or "No Adverse Effect." Under the new rules, the federal agency must still provide its decision and documentation to the Council, and the Council may provide its opinion during a review period. The Council has a total of 30 days to review the decision, but the Council may not overturn a federal agency decision that it disagrees with.
-- The definition of "undertaking" is amended so that it will no longer include undertakings that are merely subject to state or local regulation administered pursuant to delegation, or approval by a federal agency. For example, under the revised rule, state-issued permits in Surface Mining Control and Reclamation Act (SMCRA) primacy states will no longer be subject to Section 106.
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