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IMCC EXECUTIVE DIRECTOR'S REPORT ON ACTIVITIES OF THE COMPACT AND PERFORMANCE GOALS -- PRESENTED TO THE COMMISSION on October 28, 2015

The following is a report on recent activities of the Interstate Mining Compact Commission (IMCC) during the period April 25, 2015 – October 25, 2015, as well as a report on the Executive Director’s performance goals for Evaluation Year 2016 (April 1, 2015 – March 30, 2016). For presentation purposes, the report is organized by performance goal.

OVERVIEW

This reporting period was dominated by activities related to the Office of Surface Mining’s development and release of its proposed stream protection rule (SPR) and accompanying draft environmental impact statement (DEIS) and regulatory impact assessment (RIA). All of these documents have been in development for over six years, but during this period, OSM finally published the proposed rule and accompanying documents in the Federal Register of July 27. Prior to this date, Congress continued its oversight of the matter with two hearings in May at which IMCC either testified or assisted with providing witnesses. Also on the coal front, much time and attention was spent responding to the Administration’s Power Plus proposal to accelerate payments from the Abandoned Mine Land (AML) Trust Fund to address economic revitalization as part of AML projects. Bonding and financial assurance requirements under the Surface Mining Control and Reclamation Act (SMCRA) and the Comprehensive Emergency Response, Compensation, and Liability Act (CERCLA) also saw heightened attention during the period given the financial health of the coal and hardrock mining industries. And on the noncoal front, two congressional committees passed critical minerals bills during the summer which were strongly supported by IMCC.

Improve Methods for Communication with and Information Exchange Among the Member States to Enhance State Regulatory Program Implementation

During the performance period, IMCC published two e-newsletters and sent approximately 77 informational e-memos to the member states on the following subjects: FY 2016 appropriations, budget and sequestration updates; MSHA’s state assistance grants program; U.S. Extractive Industries Transparency Initiative (EITI) issues; AML issues; sage grouse and bat protection policies under the Endangered Species Act; EPA’s Waters of the U.S. Rule and CERLCA 108(b) rulemaking regarding financial assurance requirements for the hardrock mining industry; OSM rulemakings and policies, especially related to stream protection; bonding; mine mapping; and IMCC workshop presentations. These e-memos were in addition to those regarding meeting announcements and logistics and conference calls, reported on below.

IMCC continues its working relationship with the National Association of Abandoned Mine Land Programs (NAAMLP) and participated in the NAAMLP Annual Conference from September 27 – 30 in Santa Fe, New Mexico. Mr. Conrad provided a regulatory and legislative issues briefing at the business meeting on September 30 and participated in several committee meetings on September 27. Mr. Ellis also provided a report to the NAAMLP membership concerning the status of the AML Trust Fund. Several conference calls were held during the period with the NAAMLP Officers and/or the newly established NAAMLP Reauthorization Subcommittee to discuss reauthorization of the AML program, including calls on July 7 and July 28. Conference calls were held with the full NAAMLP and IMCC AML Committee memberships on August 20 and August 31 to discuss the states’ position regarding the Administration’s Power Plus AML proposal (AMLER). IMCC also participated in two conference calls with the Pennsylvania AML Campaign on May 1 and May 28. Mr. Ellis attended the Campaign’s annual conference in State College, PA on June 26 and together with Eric Cavazza of Pennsylvania, gave a presentation entitled “Preparing for SMCRA Reauthorization in 2021”.

IMCC facilitated a meeting of the NAAMLP and IMCC AML Committee memberships on June 10 in St. Louis at the Renaissance Hotel to discuss a legislative options paper concerning AML reauthorization.

IMCC also prepared a summary of results from a survey of the states regarding the implementation of their respective AML programs that was requested by The Alliance for Appalachia as part of the Alliance’s research paper on the status of the national AML program. That paper, along with recommendations for legislative revisions as part of any reauthorization effort, was released in July.

IMCC staff spent considerable time during the period working on the U.S. Extractive Industries Transparency Initiative (USEITI). IMCC attended meetings in Washington, DC of the Multi-Stakeholder Group (MSG), on which IMCC serves as member, on May 20 and 21 and September 16 and 17. IMCC also serves as a member of the Contextual Narrative Work Group and the State and Tribal Opt-in Subcommittee. Over 25 conference calls and/or meetings of the Subcommittees and Work Groups were held during the period. As part of our work on these various committees, IMCC staff prepared several discussion documents and also presented an overview of the Contextual Narrative Work Group’s efforts at the September MSG meeting.

During the period, IMCC held and facilitated five conference calls regarding reclamation bonding requirements under SMCRA and other state noncoal mining regulatory programs. The first call was held on May 26 and served as a brainstorming session to identify key issues and concerns that could be pursued going forward. On July 16, a second conference call was held at which several state agency representatives presented their perspectives on key bonding issues within their borders that then served as the basis for discussion among the member states. A third conference call was held on July 30 at which participants heard from three surety company representatives, as well as the Surety Association of America regarding their respective perspectives on the availability of surety bonds for the mining industry. In preparation for this call, IMCC staff met with the sureties via conference call on July 28 to discuss the discussion topics. A fourth call was held on August 6 at which participants heard from coal market analysts and investors regarding the health of the mining industry (coal and hardrock) with respect to potential bond forfeitures and bankruptcies. Finally, on September 2, participants heard from five bankruptcies experts (three lawyers and two representatives from OSM) who discussed how states can best position themselves in bankruptcy proceedings that involve bond reclamation liabilities, especially self-bonds. A conference call with the presenters was held on August 28 to prepare for this call.

IMCC distributed via e-memo a recent joint motion filed in a mandamus action by several environmental groups to force EPA to move forward with its proposed rule under Section 108(b) of CERCLA to establish financial assurance requirements for the hardrock mining sector. IMCC also requested a meeting with EPA to discuss the rulemaking. IMCC participated in a Webinar regarding the status of the proposed rulemaking on September 29. IMCC also convened and facilitated a conference call between the states and EPA officials on October 21 to discuss the proposed rule.

IMCC sponsored a benchmarking workshop on August 11 and 12 in Chicago entitled “Developing a Defensible CHIA (or Cumulative Hydrologic Impact Assessment)”. There were 65 state and federal agency personnel in attendance over the two day workshop which consisted of a plenary session and three breakout sessions. All of the materials from the workshop have been placed on IMCC’s website or sent to the participants. Several conference calls with a Steering Committee were held in advance of the workshop to prepare for the presentations, including a final call on July 23.

Enhance Existing Working Relationships with Federal Government Agencies and Congress to Effectively Communicate State Positions on Key Issues and to Foster Partnerships

IMCC testified at a legislative hearing on May 14 held by the House Energy and Mineral Resources Subcommittee regarding S. 1644, the “Supporting Transparent Regulatory and Environmental Action in Mining Act” (or “STREAM Act”) with Russ Hunter of West Virginia serving as IMCC’s witness. Prior to the hearing, Mr. Conrad and Mr. Hunter met with Rep. Alex Mooney of West Virginia, the bill’s sponsor. IMCC also facilitated the identification and preparation of three state witnesses for an oversight hearing on May 20 by the House Oversight and Investigations Subcommittee of the House Natural Resources Committee entitled “State Perspectives on the Status of Cooperating Agencies for the Office of Surface Mining’s Stream Protection Rule.” Witnesses include Randy Johnson of Alabama, Russ Hunter of West Virginia and Greg Baker of Virginia.

IMCC presented testimony jointly with the state of Alaska (with Ed Fogels serving as the witness) at a legislative hearing conducted by the Senate Energy and Natural Resources Committee on May 12 regarding S. 883, the “American Minerals Security Act of 2015.” IMCC also submitted a separate statement for the record. On June 25, the House Energy and Mineral Resources Subcommittee held a legislative hearing on H.R. 1937, the “National Strategic and Critical Minerals Production Act of 2015”. IMCC submitted a statement for the record at this hearing. Both bills are advancing in the House and Senate, though on separate tracks. IMCC testified at an oversight hearing by the Subcommittee on Water Resources and Environment of the House Transportation and Infrastructure Committee on October 21 regarding Good Samaritan protections for AML remediation projects with Eric Cavazza of Pennsylvania serving as IMCC’s witness.

IMCC met with congressional staff from the House Interior Appropriations Subcommittee and the House Energy and Mineral Resources Subcommittee either in person or via conference call to discuss OSM’s proposed FY 2016 budget and the Administration’s AMLER proposal on several occasions during the period. IMCC met with Jason Walsh, a Senior Policy Advisor with the President’s Chief of Staff Office, along with Interior Department officials, to discuss the President’s POWER+ Plan and its implications for state AML programs on August 5.

IMCC participated as a member of the Steering Committee that prepared for a Bat Technical Forum which was held in conjunction with the American Society for Mining and Reclamation (ASMR) Conference on June 10 in Lexington, KY. The final conference call with IMCC member states that served on a panel during the Bat Forum was held on May 28. Beth Botsis served as moderator for the session. IMCC also continues to serve as a member of the executive management team on bat protection issues and guidelines. Conference calls were held on April 21, July 14 and September 15 to discuss bat protection issues, particularly focused on the Northern Long Ear Bat for which an ESA threatened listing decision was published on April 2. A conference call with six member states (WV, IL, IN, KY, AL and VA) was also held on July 14 to develop comments that were submitted to the U.S. Fish and Wildlife Service that same day regarding a draft Interim Protection and Enhancement Plan (PEP) for the Northern Long-Eared Bat (NLEB) dated July 10, 2015. IMCC also helped to facilitate and attended an OSM/FWS/States meeting on October 15 in St. Louis to discuss a draft Memorandum of Understanding (MOU) between OSM and the U.S. Fish and Wildlife Service concerning implementation of the 1996 Biological Opinion.

OSM unveiled its proposed stream protection rule and accompanying draft EIS and RIA on July 16, with a conference call facilitated by IMCC. All relevant documents were distributed by IMCC to the states and a meeting was held in Herndon, Virginia from August 25 – 27 to begin preparation of comments on the documents. IMCC contracted with ECSI, LLC of Lexington, KY to assist with the preparation of IMCC comments. Several conference calls were held with ECSI during the period to coordinate work on IMCC’s comments. IMCC’s comments were submitted on October 23 following input from the member states.

IMCC testified at a public hearing on the SPR on September 10 in Pittsburgh, with Beth Botsis presenting the testimony. IMCC also provided a template for the member states to use in preparing their own testimony. IMCC also submitted two requests for extensions of the comment period to the Interior Department on July 27 and October 6 and provided a template for the member states to do the same.

IMCC convened and facilitated a conference call of the cooperating agency states on October 9 regarding the draft EIS and the potential for these states to reengage in the process. IMCC also assisted with the preparation of state witnesses for an oversight hearing on the SPR to be held by the Senate Energy and Natural Resources Committee on October 27.

IMCC continues to serve on the National Technology Transfer Team which coordinates OSM’s applied science and related technical initiatives. Conference calls were held on July 22 and October 7 to discuss the future of the Team and to prepare for review of Applied Science projects in Fiscal Year 2016.

IMCC attended and provided briefings on both Title V and Title IV issues at an OSM/States meeting held on August 18 and 19 in Roanoke, West Virginia.

IMCC staff met with members of the National Academy of Science’s Board on Mineral Resources on May 4 to discuss mutual interests and concerns.

IMCC submitted comments to the Mine Safety and Health Administration (MSHA) on June 19 concerning a Request for Information that included potential adjustments to miner certification requirements under the Mine Act.

IMCC presented a statement regarding state perspectives on the federal coal leasing program during a Listening Session held by the Bureau of Land Management in Washington, DC on July 29. IMCC also provided a template for Western states to submit a similar statement at other sessions being held in the West.

Advance the Organizational, Institutional, Financial and Administrative Integrity of IMCC. Pursue Additional Member States and Retain Existing Member States.

IMCC continues its contract for legislative and regulatory affairs services with the NAAMLP in the amount of $20,000. The states of Colorado and New Mexico continue to work toward the passage of legislation to bring them into the Compact as full members. IMCC continues to discuss membership with the states of Montana and Arizona. The state of Nevada chose to withdraw as an associate member of the Compact in May citing financial constraints.

The IMCC Executive Committee met via conference call on July 27 to discuss the involvement of federal agencies in future IMCC meetings.

An audit of IMCC’s accounting and financial statements was conducted on July 23.
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