[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]





                               



 
          EXAMINING THE BIDEN ADMINISTRATION'S ABANDONED MINE


                   LANDS AND ACTIVE MINING PROGRAMS

=======================================================================

                           OVERSIGHT HEARING

                               before the

                       SUBCOMMITTEE ON ENERGY AND
                           MINERAL RESOURCES

                                 of the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED EIGHTEENTH CONGRESS

                             FIRST SESSION

                               __________

                       Tuesday, November 14, 2023

                               __________

                           Serial No. 118-75

                               __________

       Printed for the use of the Committee on Natural Resources
       
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        Available via the World Wide Web: http://www.govinfo.gov
                                   or
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                             ______
	  
	               U.S. GOVERNMENT PUBLISHING OFFICE 
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                     COMMITTEE ON NATURAL RESOURCES

                     BRUCE WESTERMAN, AR, Chairman
                    DOUG LAMBORN, CO, Vice Chairman
                  RAUL M. GRIJALVA, AZ, Ranking Member

Doug Lamborn, CO                        Grace F. Napolitano, CA
Robert J. Wittman, VA                   Gregorio Kilili Camacho Sablan, 
Tom McClintock, CA                              CNMI
Paul Gosar, AZ                          Jared Huffman, CA
Garret Graves, LA                       Ruben Gallego, AZ
Aumua Amata C. Radewagen, A             SJoe Neguse, CO
Doug LaMalfa, CA                        Mike Levin, CA
Daniel Webster, FL                      Katie Porter, CA
Jenniffer Gonzalez-Colon, PR            Teresa Leger Fernandez, NM
Russ Fulcher, ID                        Melanie A. Stansbury, NM
Pete Stauber, MN                        Mary Sattler Peltola, AK
John R. Curtis, UT                      Alexandria Ocasio-Cortez, NY
Tom Tiffany, WI                         Kevin Mullin, CA
Jerry Carl, AL                          Val T. Hoyle, OR
Matt Rosendale, MT                      Sydney Kamlager-Dove, CA
Lauren Boebert, CO                      Seth Magaziner, RI
Cliff Bentz, OR                         Nydia M. Velazquez, NY
Jen Kiggans, VA                         Ed Case, HI
Jim Moylan, GU                          Debbie Dingell, MI
Mike Collins, GA                        Susie Lee, NV
Wesley P. Hunt, TX
Anna Paulina Luna, FL
John Duarte, CA
Harriet M. Hageman, WY

 
                                     

                    Vivian Moeglein, Staff Director
                      Tom Connally, Chief Counsel
                 Lora Snyder, Democratic Staff Director
                   http://naturalresources.house.gov
                                 ------                                

              SUBCOMMITTEE ON ENERGY AND MINERAL RESOURCES

                       PETE STAUBER, MN, Chairman
                     WESLEY P. HUNT, TX, Vice Chair
              ALEXANDRIA OCASIO-CORTEZ, NY, Ranking Member

Doug Lamborn, CO                     Jared Huffman, CA
Robert J. Wittman, VA                Kevin Mullin, CA
Paul Gosar, AZ                       Sydney Kamlager-Dove, CA
Garret Graves, LA                    Seth Magaziner, RI
Daniel Webster, FL                   Nydia M. Velazquez, NY
Russ Fulcher, ID                     Debbie Dingell, MI
John R. Curtis, UT                   Raul M. Grijalva, AZ
Tom Tiffany, WI                      Grace F. Napolitano, CA
Matt Rosendale, MT                   Susie Lee, NV
Lauren Boebert, CO                   Vacancy
Wesley P. Hunt, TX                   Vacancy
Mike Collins, GA
John Duarte, CA
Bruce Westerman, AR, ex officio

                                 ------                                
                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Tuesday, November 14, 2023.......................     1

Statement of Members:

    Stauber, Hon. Pete, a Representative in Congress from the 
      State of Minnesota.........................................     1
    Ocasio-Cortez, Hon. Alexandria, a Representative in Congress 
      from the State of New York.................................     2

Statement of Witnesses:

    Owens, Glenda, Deputy Director, Office of Surface Mining 
      Reclamation and Enforcement, Washington, DC................     4
        Prepared statement of....................................     6
        Questions submitted for the record.......................     7
    McCament, Benjamin, Chief, Division of Mineral Resources 
      Management, Ohio Department of Natural Resources, Columbus, 
      Ohio.......................................................     9
        Prepared statement of....................................    11
        Questions submitted for the record.......................    12
    Morin, Dustin, Director, Mining and Reclamation Division, 
      Alabama Department of Labor, Montgomery, Alabama...........    13
        Prepared statement of....................................    15
        Questions submitted for the record.......................    20
    Morgan, Peter, Senior Attorney, Sierra Club Legislative 
      Office, Washington, DC.....................................    21
        Prepared statement of....................................    22
        Questions submitted for the record.......................    31
    Wendtland, Kyle, Administrator, Wyoming Department of 
      Environmental Quality, Land Quality Division, Cheyenne, 
      Wyoming....................................................    34
        Prepared statement of....................................    36
        Questions submitted for the record.......................    42

Additional Materials Submitted for the Record:

    Submissions for the Record by Representative Stauber

        National Mining Association, Statement for the Record....    44
                                     



  OVERSIGHT HEARING ON EXAMINING THE BIDEN ADMINISTRATION'S ABANDONED



                MINE LANDS AND ACTIVE MINING PROGRAMS

                              ----------                              


                       Tuesday, November 14, 2023

                     U.S. House of Representatives

              Subcommittee on Energy and Mineral Resources

                     Committee on Natural Resources

                             Washington, DC

                              ----------                              

    The Subcommittee met, pursuant to notice, at 10:15 a.m. in 
Room 1324, Longworth House Office Building, Hon. Pete Stauber 
[Chairman of the Subcommittee] presiding.
    Present: Representatives Stauber, Fulcher, Tiffany, 
Rosendale, Collins, Westerman; Ocasio-Cortez, and Kamlager-
Dove.
    Also present: Representative Hageman.

    Mr. Stauber. The Subcommittee on Energy and Mineral 
Resources will come to order.
    Without objection, the Chair is authorized to declare a 
recess of the Subcommittee at any time.
    Under Committee Rule 4(f), any oral opening statements at 
hearings are limited to the Chairman and the Ranking Minority 
Member.
    I ask unanimous consent that the gentlewoman from Wyoming, 
Ms. Hageman, be allowed to participate in today's hearing.
    Without objection, so ordered.
    I now recognize myself for an opening statement.

    STATEMENT OF THE HON. PETE STAUBER, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF MINNESOTA

    Mr. Stauber. Today, we will discuss the programs that 
manage two important aspects of coal mining in the United 
States: the regulation of active coal mining and the cleanup of 
coal sites abandoned before modern environmental protections, 
known as Abandoned Mine Lands, or AML.
    These activities are subject to the same Federal statute, 
the Surface Mining Control and Reclamation Act of 1977, or 
SMCRA. SMCRA is administered by the Office of Surface Mining 
Reclamation and Enforcement, or OSMRE, at the Department of the 
Interior.
    The AML and active mining programs have functioned well for 
decades. But, unfortunately, recent years have seen a major 
increase in delays for needed mine approvals, the creation of 
overly-burdensome administrative guidance, and new Federal 
requirements outside of SMCRA that have made it harder and 
harder for states and tribes to develop their resources and 
clean up AML.
    Since the passage of SMCRA, AML cleanup has been funded by 
a fee on each ton of coal produced. These funds are then 
distributed to the states and tribes as grants, many of which 
run their own AML programs. This funding source was recently 
augmented by the Infrastructure Investment and Jobs Act (IIJA), 
which reduced the fee by 20 percent and added an additional 
$11.3 billion in taxpayer funds to go towards AML cleanup.
    The new influx of funding could do a lot of good in 
assisting AML work. But, unfortunately, many states across the 
country have struggled with new so-called ``recommendations,'' 
which OSMRE has added on top of its existing requirements in 
statute. States have also been given new administrative tasks 
in order to apply for IIJA funding, making them spend more time 
and resources on paperwork instead of filling the hole in the 
ground.
    When it comes to active mining, projects coast to coast are 
facing delays in the approval process. New Federal coal leasing 
is, unfortunately, under moratorium. However, even projects 
exempt from the leasing ban have run into major delays. Some of 
these approvals, such as a mine plan amendment to expand 
production at a site in Wyoming, have already gone through 
multiple rounds of NEPA but continue to languish somewhere at 
the top levels of OSMRE and the Department of the Interior.
    At the core of both the AML and active mining programs is 
the idea of state primacy. Under primacy, a state or tribe has 
been granted delegated authority from OSMRE to run their own 
programs. This long-standing authority under SMCRA is only 
granted to states and tribes with regulations at least as 
stringent as Federal standards. This authority was created in 
1977 very deliberately recognizing that states and tribes have 
both the technical expertise and local knowledge necessary to 
find, prioritize, and select AML projects for cleanup, as well 
as manage other aspects of coal production specific to that 
state's geology.
    Any attempts by OSMRE to supersede that authority such as 
their proposed dam safety rule and 10-day notice rule would not 
only be unwise, but would go against one of the most important 
tenets of the coal program's defining statute.
    I look forward to hearing from our witnesses today about 
their experiences, so that we can move towards a more 
transparent and efficient running of these programs.
    I am now going to yield to my colleague, Ranking Member 
Ocasio-Cortez, for her opening statement.

       STATEMENT OF THE HON. ALEXANDRIA OCASIO-CORTEZ, A 
     REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK

    Ms. Ocasio-Cortez. Thank you, Mr. Chair, and thank you to 
our witnesses for coming here today.
    Coal workers take well-deserved pride in building a 
prosperous U.S. economy and the American middle class. A 
century ago, coal workers fought and died to win workplace 
protections like the weekend that we now see as commonplace. 
And every American has a debt to coal workers for that fight. 
These workers want well-paid union jobs that provided good work 
for generations of families.
    But for around 15 years now, coal mining itself has been on 
a steep decline. In fact, no new coal plants have come on-line 
in almost 10 years, and nearly a third of operating coal plants 
are slated to close by 2030. Several factors are at play. 
Competition from natural gas and the rise of low-cost renewable 
energy has led to the closure of hundreds of coal mines. When 
coal plants retire, they are more often replaced by new 
renewable energy and not a new coal plant.
    And while the coal industry once helped communities across 
the country prosper, it also contributed to devastating health, 
environmental, climate, and long-term economic impacts. The 
black lung epidemic has ravaged miners. An estimated one in 
five tenured miners in central Appalachia has black lung 
disease, a devastating and potentially fatal illness caused by 
inhaling dust underground.
    Meanwhile, cancer occurs at significantly higher rates in 
communities with mountaintop removal mining. Water pollution 
from abandoned coal mines has devastated thousands of miles of 
streams and rivers. Un-reclaimed mountains of waste rock create 
looming threats of landslides for homes downhill. Carbon 
emissions from burning coal are responsible for about 40 
percent of global emissions from fossil fuels, a significant 
contribution to the climate crisis that simply cannot be 
ignored.
    And due to coal's decline over the last 10 years, more than 
60 coal companies have gone bankrupt, including companies that 
were once some of the largest and most prosperous. When coal 
companies file for bankruptcy, they too often spin off their 
unproductive mines, and this is what we should be focusing on 
and talking about today. They drop their obligations to clean 
up old mines, and they stop paying health care and pension 
obligations to the communities and the very workers who gave up 
so much of their lives in service to these companies. In doing 
so, these companies break their promise to neighboring 
communities and everyday Americans who expected clean water and 
air, and to the workers who risked their well-being and 
expected these benefits for the rest of their lives. They were 
promised them.
    In 2017, seeing this crisis unfold, Congress and this 
Committee stepped in to guarantee health care benefits for more 
than 22,000 retirees and widows when coal companies left them 
behind. In 2019, we again stepped in to protect mine workers' 
pension benefits for 100,000 more. In doing so, we worked 
closely with the United Mine Workers of America, and made sure 
that no worker was left behind. I am proud of the work that we 
have done with UMWA to protect these essential services. But to 
be clear, it was the public, not the coal companies, who picked 
up the tab for the coal industry's failures, the public.
    And now, the remaining coal companies, which are all at 
risk of bankruptcy in a dying industry, may try to forfeit 
their environmental reclamation liabilities and the promises 
they made to workers, as well. So, let's be clear. This problem 
is not inevitable. It is not that these companies simply cannot 
afford to pay for reclamation, it is that they are choosing not 
to.
    Through bankruptcy, these companies are consolidating mines 
with little recoverable coal to smaller companies, many of 
which may also go bankrupt, in order to avoid the 
responsibility of cleanup, responsibility that they have not 
just to the American people, but to this entire country. 
Meanwhile, reclamation bonds for cleaning up these mines are 
consolidated to newer and riskier insurance companies. It is 
not right, it is not fair, and it is a matter of environmental 
and economic justice.
    And the solution to this unfolding crisis is not to provide 
false hope that coal will return. We need to face this fight 
head on, and make sure that we are holding coal companies 
accountable, that we are taking care of workers and their 
communities while we still can.
    With that, I yield back to the Chair.

    Mr. Stauber. Thank you very much. Normally at this point I 
allow the Chair and Ranking Member of the Full Committee their 
opening statements, but I don't see them here. So, we are going 
to go right into opening statements.
    Let me remind the witnesses that under Committee Rules, 
they must limit their oral statements to 5 minutes, but their 
entire statement will appear in the hearing record.
    To begin your testimony, please press the ``talk'' button 
on the microphone.
    We use timing lights. When you begin, the light will turn 
green. When you have 1 minute remaining, the light will turn 
yellow. And at the end of the 5 minutes, the light will turn 
red, and I will ask you to please complete your statement.
    I will also allow all witnesses to testify before Member 
questioning.
    And before I introduce Ms. Owens, I will say that votes are 
expected to be called any time. So, we will stop so we can 
vote, and we will come back as soon as practical and start 
again.
    Our first witness is Ms. Glenda Owens, and she is the 
Deputy Director for the Office of Surface Mining Reclamation 
and Enforcement, located right here in Washington, DC.
    Ms. Owens, you are now recognized for 5 minutes.

 STATEMENT OF GLENDA OWENS, DEPUTY DIRECTOR, OFFICE OF SURFACE 
      MINING, RECLAMATION AND ENFORCEMENT, WASHINGTON, DC

    Ms. Owens. Good morning, and thank you, Chairman Stauber, 
Ranking Member Ocasio-Cortez, and other members of the 
Subcommittee. Thank you for the invitation to testify on behalf 
of the Office of Surface Mining Reclamation and Enforcement.
    Through the Surface Mining Control and Reclamation Act of 
1977, Congress established OSMRE for two primary purposes: 
first, to ensure that the nation's coal mines operate in a 
manner that protects citizens and the environment during 
mining, and to restore the land affected to a condition capable 
of supporting the uses it could before any mining, or to higher 
or better uses; second, to implement the Abandoned Mine Land 
program and address the hazards and environmental degradation 
resulting from two centuries of coal mining activities before 
the law was passed.
    OSMRE's Title V programs provide resources to 23 primacy 
states to administer their regulatory programs on state and 
private lands. These programs protect the public and the 
environment from the adverse effects of current mining, and 
support the reclamation of impacted lands after active mining 
operations have concluded. OSMRE provides oversight of state 
regulatory programs, and directly implements SMCRA on Indian 
lands and in states that do not have primacy.
    The Title IV programs provide grants to states and tribes 
to conduct reclamation on sites mined before the enactment of 
SMCRA. OSMRE evaluates state and tribal AML programs and 
ensures reclamation of mining-related hazards while promoting 
partnerships to address water quality issues. OSMRE also 
administers the Federal reclamation program, including 
watershed cooperative agreements, civil penalty projects, and 
emergency projects.
    Since the establishment of the Abandoned Mine Land Economic 
Revitalization Program, Congress is authorized through annual 
appropriations $912.5 million in total AMLER funding, with the 
purpose of reclaiming abandoned mine lands in conjunction with 
economic and community development opportunities. The AMLER 
program has provided funding to the six eligible Appalachian 
states, as well as the Crow, the Hopi, and the Navajo Nation.
    OSMRE verifies and assists with project eligibility 
determinations on the submitted AMLER grant applications, and 
since Fiscal Year 2016 has received over 290 project 
applications. Of those project applications, 284 have received 
preliminary approval, nearly 180 have received authorizations 
to proceed, and almost 70 are complete.
    The Bipartisan Infrastructure Law (BIL) provided a once-in-
a-generation investment in revitalizing the economy and 
environment of America's coalfield communities. In addition to 
extending the AML fee collection authority under SMCRA, the 
Infrastructure Law authorized an appropriated $11.293 billion 
for deposit into the Abandoned Mine Reclamation Fund, with 
approximately $10.8 billion to be distributed to eligible 
states and tribes on an equal annual basis, approximately $725 
million a year over a 15-year period to help restore impacted 
coalfield communities.
    So, far, OSMRE has provided $721 million in Fiscal Year 
2022 BIL grant funding to the 22 eligible states and the Navajo 
Nation, and awarded more than $21 million in Fiscal Year 2023 
grants to 5 states, with 7 additional state grant applications 
currently pending.
    OSMRE is ensuring that current coal mining is conducted in 
a manner that protects the public and the environment, and that 
formerly mined lands are reclaimed to productive, safe, and 
beneficial uses. OSMRE will continue to work closely in 
partnership with our state and tribal partners and stakeholders 
to achieve these goals.
    Thank you again for the opportunity to provide this 
testimony and to appear before you today.

    [The prepared statement of Ms. Owens follows:]
   Prepared Statement of Glenda H. Owens, Deputy Director, Office of 
              Surface Mining Reclamation and Enforcement,
                    U.S. Department of the Interior

Introduction and Background

    Chairman Stauber, Ranking Member Ocasio-Cortez, and other Members 
of the Subcommittee, thank you for the invitation to testify on behalf 
of the Office of Surface Mining Reclamation and Enforcement (OSMRE).

    Through the Surface Mining Control and Reclamation Act of 1977 
(SMCRA) (Public Law No. 95-87), Congress established OSMRE for two 
primary purposes:

        First, to ensure that the Nation's coal mines operate in a 
        manner that protects citizens and the environment during 
        mining, and to restore the land affected to a condition capable 
        of supporting the uses it could before any mining, or higher or 
        better uses following mining.

        Second, to implement an Abandoned Mine Land (AML) Program to 
        address the hazards and environmental degradation resulting 
        from two centuries of coal mining activities before the law was 
        passed in 1977.

    Since SMCRA's enactment 46 years ago, OSMRE has accomplished the 
following:

     Closed more than 47,000 abandoned underground mine shafts 
            and openings;

     Eliminated more than 1,050 miles of dangerous highwalls;

     Eliminated more than 131,000 acres of dangerous spoils and 
            embankments;

     Restored more than 700,000 acres of streams and land; and

     Replaced infrastructure for more than 58,000 polluted 
            water supplies.

Environmental Protection, Regulating Active Coal Mining (Title V)

    OSMRE's Environmental Protection program provides resources to 23 
primacy states to administer their regulatory programs on state and 
private lands, and where there is an OSMRE-State cooperative agreement, 
on Federal lands as well. These programs protect the public and the 
environment from the adverse effects of current mining and support the 
reclamation of impacted land after active mining operations conclude. 
OSMRE provides oversight of State regulatory programs and directly 
implements SMCRA on Indian lands and in states that do not have 
primacy--known as Federal Program states--and ensures that adequate 
actions are taken to reclaim mined areas as expeditiously as possible.
Environmental Restoration, Abandoned Mine Land (AML) Fee-Based Grants 
        (Title IV)

    The Environmental Restoration program provides grants to states and 
Tribes to conduct reclamation on sites mined before the enactment of 
SMCRA in 1977. OSMRE evaluates state and Tribal AML programs to ensure 
mining-related hazards are reclaimed, while promoting partnerships to 
address water quality issues from pre-Act sites. OSMRE also administers 
the Federal Reclamation Program, including watershed cooperative 
agreements, civil penalty projects, and emergency projects.
    Coal mine permittees pay a fee to the AML Reclamation Fund (AML 
Fund) based on the tonnage of coal produced. As of September 30, 2022, 
approximately $12.01 billion in industry AML fees have been collected, 
including interest earned. This does not include funding from the 
Abandoned Mine Land Economic Revitalization (AMLER) Program or the 
Infrastructure Investment and Jobs Act, also known as the Bipartisan 
Infrastructure Law (BIL), which is described in further detail below.
Abandoned Mine Land Economic Revitalization (AMLER) Program

    Since the establishment of the Abandoned Mine Land Economic 
Revitalization (AMLER) Program--initially the Abandoned Mine Land 
Economic Development Pilot--Congress has authorized through annual 
appropriations $912.5 million in AMLER funding, with the purpose of 
reclaiming abandoned mine lands in conjunction with economic and 
community development opportunities. The AMLER Program has made funding 
available to six Appalachian States: Kentucky, Pennsylvania, West 
Virginia, Alabama, Ohio, and Virginia; and three Tribes: the Crow, the 
Hopi, and the Navajo Nation.
    AMLER grants support local investment opportunities in coalfield 
economies by creating recreational and tourism opportunities, enhancing 
infrastructure, and by providing jobs and associated training and 
skills. AMLER also advances the goals of the Justice40 Initiative. 
OSMRE verifies and assists with project eligibility determinations on 
AMLER grant applications submitted by these states and Tribes. OSMRE 
has received over 290 AMLER project applications since the start of the 
program in FY 2016. Of those project applications, 284 have received 
preliminary approval, nearly 180 have received authorizations to 
proceed, and nearly 70 have been completed.
    OSMRE currently maintains an external-facing AMLER project tracking 
spreadsheet on its website to inform the public and provide 
transparency on status of current projects. The spreadsheet provides a 
snapshot of each project and its review and approval status. We are 
currently developing an improved tracking system to provide more 
detailed and timely information on projects as they progress through 
the approval cycle. Tracking information and other pertinent 
information and reports on the AMLER program are currently available at 
www.osmre.gov/amler.
Bipartisan Infrastructure Law (BIL)

    The BIL (Public Law No. 117-58) provided a once-in-a-generation 
investment in revitalizing the economy and environment of America's 
coalfield communities. In addition to extending the AML fee collection 
authority under SMCRA, the Infrastructure Law authorized and 
appropriated $11.293 billion for deposit into the Abandoned Mine 
Reclamation Fund, with approximately $10.873 billion to be distributed 
to eligible states and Tribes on an equal annual basis--approximately 
$725 million a year--over a 15-year period to help restore impacted 
coalfield communities and provide benefits for current and future 
generations.
    OSMRE appreciates Congress' acknowledgement of the tremendous 
environmental and economic value of the AML program and effectively 
implementing this historic investment and delivering meaningful results 
is a top priority for OSMRE. These funds will improve and significantly 
increase OSMRE's efforts to support states, Tribal nations, 
stakeholders, and communities. The BIL expands investment in the AML 
program, creates an unprecedented opportunity to reclaim abandoned mine 
features at a scale not otherwise achievable, and is creating good-
paying jobs and spurring economic development in coalfield communities.
    So far, OSMRE has provided $721 million in FY 2022 BIL grant 
funding to the 22 eligible states and the Navajo Nation, and awarded 
more than $21 million in FY 2023 grants to five States (Alaska, 
Arkansas, Colorado, Iowa, and New Mexico), with seven additional state 
grant applications currently pending (Illinois, Kansas, Kentucky, 
Maryland, Missouri, Pennsylvania, and Virginia).
Closing

    OSMRE is ensuring that current coal mining is conducted in a manner 
that protects the public and environment, and that formerly mined lands 
are reclaimed to productive, safe, and beneficial uses, and that 
impacted waters are remediated. OSMRE will continue to work closely in 
partnership with states and Tribes, local watershed groups, citizens, 
and other stakeholders to achieve these goals and to advance economic 
revitalization opportunities in coal communities.

    Thank you for the opportunity to provide this testimony and to 
appear before you today.

                                 ______
                                 

    Questions Submitted for the Record to Ms. Glenda Owens, Deputy 
 Director, Office of Surface Mining Reclamation and Enforcement (OSMRE)

Ms. Owens did not submit responses to the Committee by the appropriate 
deadline for inclusion in the printed record.

             Questions Submitted by Representative Stauber

    Question 1. At the hearing, Congressman Collins asked if the 
substantial increase in abandoned mine land (AML) funding from the 
Infrastructure Investment and Jobs Act (IIJA) is causing some states to 
divert resources from their Title V programs to their Title IV 
programs, in order to maximize the new AML funding available under the 
IIJA as quickly as possible. Deputy Director Owens responded that she 
was not aware of staff being pulled from Title V implementation for 
Title IV work.

    1a) Can you confirm that the Department of the Interior is not 
placing more emphasis on AML projects, including by acquiring an 
unequal number of new or reassigned Department or OSMRE personnel for 
AML related work, at the expense of the Title V program?

    1b) What steps is OSMRE taking to ensure that Title V program 
implementation will not be affected by the interest in rapid 
distribution and utilization of AML funding from the IIJA?

    Question 2. The shortfall in human resources has led to significant 
delays in permitting approvals and bond releases for coal mining 
operations in some states. These functions are needed to ensure 
sufficient coal supplies and proper completion of reclamation work.

    2a) Do you believe a fair and timely bond release process supports 
the ability of coal operators to keep reclamation activities current?

    Question 3. Could you identify five action items OSMRE is taking to 
increase efficiency in administering the IIJA AML program?

    Question 4. Can funds provided for AML under IIJA and funds 
provided by the AML fee be separately tracked through adoption of 
accounting procedures? If not, why not? If so, why is OSMRE requiring 
separate grant applications for IIJA-sourced and AML fee-sourced 
funding?

    Question 5. Since OSMRE's vetting of Abandoned Mine Lands Economic 
Revitalization (AMLER) projects is not mandated by law, why is OSMRE 
requiring this of states?

    Question 6. When will OSMRE provide clear written guidance on how 2 
CFR Part 200 requirements related to real property and property 
improvement will be implemented in the AMLER program?

    Question 7. Please provide a detailed, step-by-step breakdown of 
OSMRE's decision process for state program amendments and state 
reclamation plan updates, including the chain of approval among agency 
and other Department of the Interior (DOI) personnel, and a brief 
explanation of each step in the approval process a program amendment or 
reclamation plan update must undergo before it can be approved.

    Question 8. What is OSMRE's plan to eliminate the backlog of 
program amendments and pending reclamation plan updates? Will this plan 
ultimately reduce the backlog to zero?

    Question 9. In your testimony before the committee, you referred to 
federal court decision(s) requiring that an environmental impact 
statement (EIS) be prepared for the Black Butte Mine's Federal Mine 
Plan. Please identify these court decision(s), and explain why they are 
applicable to the decision to require an EIS for Black Butte's mine 
plan.

    Question 10. Prior to OSMRE analysis of a mine plan, prospective 
coal mining must undergo at least two reviews under the National 
Environmental Policy Act (NEPA) at the Bureau of Land Management 
(BLM)--one regarding a Resource Management Plan, and another during the 
coal leasing process, both of which require full analysis of potential 
environmental impacts of the proposed mining operations.

    10a) Why does OSMRE need to conduct a third, separate NEPA analysis 
during its mine plan approval process?

    10b) If a third NEPA review is truly required, why can't OSMRE rely 
on the NEPA analysis conducted previously by BLM?

    10c) How is the requirement for three separate NEPA reviews of the 
same prospective mining impacts consistent with ``one federal 
decision'' principles?

            Questions Submitted by Representative Westerman

    Question 1. Please provide a list of pending action items in your 
agency's purview, including mine plan amendments and state plan 
amendments, that require analysis under the National Environmental 
Policy Act by OSMRE. In this list, please include every applicable 
specific action item, when it was submitted by an applicant to OSMRE 
for NEPA analysis, when that review was actually initiated at OSMRE, 
what threshold of NEPA analysis has been determine appropriate (i.e. 
environmental assessment or environmental impact statement), what the 
current status is for each item in regards to NEPA review, and if those 
items are on track to have their NEPA review completed in accordance 
with the one year (for environmental assessments) and two year (for 
environmental impact statements) timelines as proscribed by the Fiscal 
Responsibility Act.

             Questions Submitted by Representative Grijalva

    Question 1. During the hearing, Representative Hageman stated that 
the Office of Surface Mining Reclamation and Enforcement's 
``environmental justice requirements'' make it more difficult for 
certain states to secure federal funding. In response, you said that 
OSMRE is encouraging states to follow the environmental justice 
guidelines. Could you please expand on your response? Do OSMRE's 
guidelines affect distribution of abandoned mine land funds from the 
Infrastructure Investments and Jobs Act? Do these guidelines affect 
funding to states?

          Questions Submitted by Representative Ocasio-Cortez

    Question 1. The Office of Surface Mining Reclamation and 
Enforcement has provided detailed guidance to the states on how to 
prioritize projects that employ former coal workers and address 
environmental injustices. What has been your experience so far in 
implementing these guidelines? How can we ensure that states are 
incentivized to follow this guidance?

                                 ______
                                 

    Mr. Stauber. Thanks for your testimony, Ms. Owens.
    Our next witness is Mr. Benjamin McCament. He is Chief for 
the Division of Mineral Resources Management, Ohio Department 
of Natural Resources, located in Columbus, Ohio.
    Mr. McCament, you are now recognized for 5 minutes.

  STATEMENT OF BENJAMIN McCAMENT, CHIEF, DIVISION OF MINERAL 
  RESOURCES MANAGEMENT, OHIO DEPARTMENT OF NATURAL RESOURCES, 
                         COLUMBUS, OHIO

    Mr. McCament. Good morning, Chairman Stauber, Ranking 
Member Ocasio-Cortez, and members of the Subcommittee. I am 
honored to appear before you today.
    My name is Bennie McCament, and I serve as the Chief of the 
Ohio Department of Natural Resources, Division of Mineral 
Resources Management. My division includes both Ohio's 
Abandoned Mine Lands program and the coal regulatory program 
under the Surface Mining Control and Reclamation Act. I am also 
the immediate past President of the National Association of 
Abandoned Mine Land Programs.
    The state of Ohio appreciates Congress' continuing support 
for the state SMCRA programs, especially the investment in the 
AML program. My testimony today will highlight the successes of 
Ohio's SMCRA programs, as well as the challenges that we face.
    The funding Congress provided via the IIJA has enhanced 
coal AML work in Ohio. In addition, the STREAM Act, which 
Governor DeWine supported, was a very helpful clarification to 
the IIJA, ensuring that we can focus adequate funding and 
attention on restoring water resources that were impaired by 
historic coal mining.
    Ohio has operated the SMCRA program successfully for over 
40 years, but the nearly $700 million over 15 years we will 
receive via the IIJA is a four- to five-fold increase in 
historic funding levels. This comes with much responsibility to 
ensure the funding is used for eliminating as many safety and 
environmental hazards as efficiently as possible, both for 
states and for the Office of Surface Mining Reclamation and 
Enforcement.
    I would now like to highlight some challenges caused by the 
new administrative processes and decisions at OSMRE that could 
be problematic.
    Regarding the Abandoned Mine Land program, OSMRE has 
determined that all mandatory annual grants must be applied 
for, tracked, and reported on separately. States have a long 
history of having adequate financial controls in place, and 
have asked OSMRE to combine and simplify IIJA and fee-based AML 
grants at a minimum, allowing states to spend less time on 
administrative tracking and reporting for multiple grants that 
cover essentially the same activities.
    OSMRE is also requiring an update of approved reclamation 
plans. This update should be a lower priority than ramping up 
reclamation work, especially considering Ohio has a reclamation 
plan update that has been pending for over 5 years.
    Lastly, the continued funding support for the Abandoned 
Mine Land Economic Revitalization Program, AMLER, is greatly 
appreciated, and the outcomes of creating new job opportunities 
through this program are needed in Ohio.
    Even with Ohio's successes for this program, it could also 
be streamlined by removing the preliminary vetting step for 
projects which creates unnecessary delays at times, and by 
providing permanent program guidelines for states and for our 
grant recipients.
    Regarding the coal regulatory program, SMCRA is founded on 
the state primacy model, where states are given exclusive 
regulatory authority over the environmental impacts of coal 
mining in their jurisdiction. Maintaining the state's ability 
to do their job under SMCRA is critical to the success of coal 
mining regulation.
    Currently, there are several areas of concern with SMCRA: 
one is that OSMRE has two pending rulemakings that could be 
problematic; and two, OSMRE has a significant backlog of state 
program amendments.
    Regarding the rulemakings, a few years ago OSMRE updated 
the 10-day notice rule, which created greater cooperation 
between OSMRE and the states on responding to and investigating 
citizen complaints. This rule has worked well for us. OSMRE's 
current proposed change to the 10-day notice rule is a reversal 
of that functioning rule change. The new proposed rule reverses 
that cooperation, and creates uncertainty and possibly Federal 
over-reach.
    OSMRE has also notified states that it plans to conduct 
rulemaking regarding dam safety. The Mine Safety Health 
Administration currently regulates dams on mining sites that 
are hazardous. In Ohio, the Department of Natural Resources 
manages a dam safety program at the state level for all dams 
after a mining permit is released. Therefore, the additional 
regulation proposed could be duplicate.
    Plan amendments. We appreciate that OSMRE is currently 
prioritizing and ramping up efforts to streamline the review of 
state program amendments. We strongly encourage OSMRE to 
utilize its pending resources to do that, and we need approval 
in order to change the state laws and rules to be in 
compliance.
    Mr. Chairman, thank you again for your opportunity to 
testify, and I look forward to answering the questions from the 
Committee.

    [The prepared statement of Mr. McCament follows:]
   Prepared Statement of Benny McCament, Chief, Division of Mineral 
       Resources Management, Ohio Department of Natural Resources

    Good morning, Chairman Stauber, Ranking Member Ocasio-Cortez and 
members of the committee. I am honored to appear before you today.
    My name is Benny McCament and I serve as the Chief of Ohio 
Department of Natural Resource's Division of Mineral Resources 
Management. My division includes both Ohio's abandoned mine lands (AML) 
program and the coal regulatory program under the Surface Mining 
Control and Reclamation Act (SMCRA). I am also the immediate past 
President of the National Association of Abandoned Mine Land Programs, 
which represents 27 states and tribes.
    The state of Ohio appreciates Congress' continuing support for 
state SMCRA programs, especially the investment in the AML program. My 
statement today will highlight the successes of Ohio's SMCRA programs 
as well as challenges we face.
    The funding Congress provided via the IIJA has enhanced coal AML 
work in Ohio. In addition, the STREAM Act, which Governor DeWine 
supported, was a very helpful clarification to the IIJA--ensuring that 
we can focus adequate funding and attention on restoring water 
resources impaired by historic coal mining in our state.
    Ohio has operated the SMCRA program successfully for over 40 years, 
but the nearly $700 million over 15 years we will receive via IIJA is a 
four to five-fold increase in historical funding levels. This comes 
with much responsibility to ensure the funding is used for eliminating 
as many safety and environmental hazards as efficiently as possible, 
both for states and the Office of Surface Mining and Reclamation 
Enforcement. (OSMRE).
    I would now like to highlight some challenges caused by new 
administrative processes and decisions at OSMRE that could be 
problematic.
Abandoned Mine Lands

    OSMRE has determined that all mandatory annual AML grants must be 
applied for, tracked, and reported on separately. States have a long 
history of having adequate financial controls in place and have asked 
OSMRE to combine and simplify IIJA and fee-based AML grants, allowing 
states to spend less time on administrative tracking and reporting for 
multiple grants that cover essentially the same activities. OSMRE is 
also requiring an update of approved reclamation plans. This update 
should be a lower priority than ramping up reclamation work, especially 
considering Ohio has a reclamation plan update that has been pending at 
OSMRE for over 5 years. Lastly, the continued funding support for the 
Abandoned Mine Lands Economic Revitalization (AMLER) Program is greatly 
appreciated and the outcomes of creating new job opportunities through 
this program are needed in Ohio. Even with Ohio's successes, this 
program could also be streamlined by removing the preliminary vetting 
step for projects which creates unnecessary delays. Providing permanent 
program guidelines for states and our grant recipients would be more 
effective.
Coal Regulatory Program

    SMCRA is founded on the state primacy model where states are given 
exclusive regulatory authority over the environmental impacts of coal 
mining in their jurisdiction. Maintaining the state's ability to do 
their job under SMCRA is critical to the success of coal mining 
regulation.

    Currently, there are several areas of concern with SMCRA: (1) OSMRE 
has two pending rulemakings that are problematic; and (2) OSMRE has a 
significant backlog of state program amendments.

 1. Rulemakings:

         a.  A few years ago, OSMRE updated the Ten Day Notice rule 
        which created greater cooperation between OSMRE and states on 
        responding to and investigating citizen complaints--this rule 
        has worked well. OSMRE's current proposed change to the Ten Day 
        Notice rule is a reversal of the functioning rule change. The 
        new proposed rule reverses cooperation and creates uncertainty 
        and federal overreach.
         b.  OSMRE has also notified states that it plans to conduct 
        rulemaking regarding Dam Safety. The Mine Safety Health 
        Administration currently regulates dams on mining sites. In 
        Ohio, the Department of Natural Resources manages a dam safety 
        program for all dams after a mining permit is released. The 
        additional regulation proposed by OSMRE would be duplicative.

 2.  Plan Amendments: We appreciate that OSMRE is currently 
            prioritizing and ramping up efforts to streamline the 
            review of state program amendments. We strongly encourage 
            OSMRE to utilize its resources regarding this effort. For 
            example, Ohio has six pending program amendments, with at 
            least one that dates to 2015, that need approval in order 
            to change state laws/rules to be in compliance with federal 
            requirements.

    In conclusion, communication and collaboration between OSMRE and 
its state and tribal partners is critical to effectively implement 
SMCRA programs. Citizens in coal regions are counting on all of us to 
solve these problems quickly and to reclaim mining sites and create 
jobs at the same time.
    Mr. Chairman, thank you again for the opportunity to testify and I 
look forward to answering questions from the committee.

                                 ______
                                 

  Questions Submitted for the Record to Mr. Benjamin McCament, Chief, 
               Division of Mineral Resources Management,
                  Ohio Department of Natural Resources

          Questions Submitted by Representative Ocasio-Cortez

    Question 1. Congress made its intention clear in the Infrastructure 
Investments and Jobs Act that the abandoned coal mine land reclamation 
funding should create good paying jobs for displaced coal workers and 
incentivize union labor. (30 USC 1231a(f): ``priority may also be given 
to reclamation projects described in subsection b(1) that provide 
employment for current and former employees of the coal industry;'' 30 
USC 1231a(b)(3): ``In applying for grants under paragraph (1), States 
and Indian Tribes may aggregate bids into larger statewide or regional 
contracts;'' and 42 USC 18851: ``all laborers and mechanics employed [ 
. . . ] on a project assisted in whole or in part by funding made 
available under this division [ . . . ] shall be paid wages at rates 
not less than those prevailing on similar projects in the locality''.) 
How are you implementing the employment priorities included in the law, 
and are you in touch with the United Mine Workers of America and the 
AFL-CIO on how best to do so?

    Answer. The Ohio AML program is required to operate under current 
state procurement laws and procedures and establishing new employment 
priorities for the AML program would require legislative changes to 
state law. The Ohio Revised Code provides that labor requirements are 
not to be imposed on contractors and subcontractors on public 
improvement contracts. Specifically, it provides that a public 
authority on a construction project for a public improvement cannot 
require a contractor or subcontractor to enter into agreements with a 
labor organization, require contractors to become members of a labor 
organization, or pay dues to a labor organization.
    Currently no changes to this procurement code are in process in the 
Ohio legislature. However as provided for in the Ohio Revised Code, the 
Chief of the Division of Mineral Resources is contracting with coal 
operators directly without advertising for bids to perform AML 
reclamation that is adjacent to an active permit. In Ohio, many of the 
remaining coal surface mining operations are in areas with extensive 
pre-law mining. Utilizing this provision in state law helps meet the 
intended goal of the IIJA of providing employment to current and former 
coal industry employees and businesses.
    Ohio is implementing federal prevailing wage for all AML projects. 
This is being done for consistency across AML projects, whether federal 
or state funded, to ensure fair and consistent wage rates. Based off 
the recent increase in competitive bids for AML projects we believe the 
inclusion of federal prevailing wage rates has led to heighted interest 
by contractors--including contractors who utilize unionized labor. 
These wage rates are critical going forward to have a ready and 
available workforce to implement AML projects in Ohio.
    Several meetings and communication have taken place about AML 
project opportunities and program requirements with stakeholders, 
including the AFL-CIO, United Mine Workers of America, NGO's, and other 
contracting and labor organizations operating in the state. A legacy 
pollution roundtable, led by the Office of Surface Mining Reclamation 
and Enforcement (OSMRE) and the Ohio Department of Natural Resources 
Divisions of Mineral Resources Management and Oil and Gas Resources 
Management was held in Columbus, Ohio in the spring of 2023 to discuss 
AML and Orphan Well programs and opportunities in the state. This 
meeting included the AFL-CIO, UMWA, Laborers International Union NA, 
NGO's, and other state agencies. A follow up site meeting, with many of 
the same organizations, was held in November 2023 at a training 
facility in Hocking County, Ohio. A coalition of NGO's and labor 
organizations provided labor recommendations to ODNR for both the AML 
and Orphan Well programs and those are being reviewed.

                                 ______
                                 

    Mr. Stauber. Thank you, Mr. McCament, for your testimony.
    Our next witness is Mr. Dustin Morin. He is the Director of 
the Mining and Reclamation Division of the Alabama Department 
of Labor, located in Montgomery, Alabama.
    Mr. Morin, you are now recognized for 5 minutes.

  STATEMENT OF DUSTIN MORIN, DIRECTOR, MINING AND RECLAMATION 
   DIVISION, ALABAMA DEPARTMENT OF LABOR, MONTGOMERY, ALABAMA

    Mr. Morin. Thank you. Good morning, Chairman Stauber and 
Ranking Member Ocasio-Cortez. My name is Dustin Morin, and I am 
honored to be here as the Director of the Mining and 
Reclamation Division of the Alabama Department of Labor and as 
the current President of the National Association of Abandoned 
Mine Land Programs.
    The importance of abandoned mine reclamation cannot be 
overstated. While the AML programs have achieved tremendous 
success in our 46-year history, the mantra of the programs 
continues to be, ``Our work is not done.'' With the passage of 
the Infrastructure Investment and Jobs Act, Congress clearly 
acknowledged this reality, and greatly increased the scope and 
scale of what AML programs can continue to accomplish for our 
communities.
    The $11.3 billion provided by the IIJA, combined with the 
AML Economic Revitalization Program, or AMLER, marks a 
transformative era for AML programs across the country. 
However, as we embrace this opportunity, challenges in 
implementation loom large.
    The Office of Surface Mining Reclamation and Enforcement, 
or OSMRE, has added numerous administrative complexities to 
IIJA and AMLER funding that hinder its efficient utilization. 
As the AML program grows with new funding, state staffing 
capacity is strained, and there is no time to waste on 
unnecessary administrative tasks.
    Distribution of additional funding to a well-established 
program should have been simple, fast, and efficient. It 
wasn't. Instead, OSMRE empowered itself to reinvent the AML 
program. And while its intentions may be good, the result has 
not been an overall improvement. The states fear that the new 
burdens imposed by OSMRE will have a compounding effect on 
program implementation with each subsequent year, unless OSMRE 
changes tact.
    OSMRE's initial rollout of the IIJA AML funding took more 
than a year and involved minimal state program input. State 
program managers have practical experience and a unique 
perspective into accomplishing AML work. By not meaningfully 
collaborating with state programs, the decision makers at 
OSMRE, who have never run an AML program themselves, are making 
implementation policies without consulting those of us who 
have.
    Had states been better consulted, we could have avoided 
many of the problems we are facing. For example, OSMRE's 
requirement of separate grant applications for IIJA and AML fee 
grants essentially doubles the administrative efforts required, 
and it is not necessary. Their insistence on a comprehensive 
review of every state's legal authority to operate an AML 
program, simultaneous with our efforts to ramp up to utilize 
this new funding, is very ill timed.
    OSMRE is increasingly scrutinizing state decision making 
well beyond its proper oversight role, and attempting to insert 
its own priorities and how states manage their programs. This 
is a crucial moment. States are striving to maximize 
reclamation results with temporarily limited staff capacity. To 
successfully implement the new funding, increased efficiency is 
vital. But it does not appear that OSMRE is recognizing this.
    The AMLER program faces similar difficulties. Through 
AMLER, states collaborate with communities and local economic 
development experts to develop projects geared towards economic 
development on reclaimed sites.
    OSMRE requires that it have the chance to vet each AMLER 
project during development. Again, its intentions are good, but 
it does not have the economic expertise to vet projects well, 
certainly not better than the states and their project 
partners. And the result of OSMRE vetting has been consistent 
confusion and delay.
    For both IIJA and AMLER, OSMRE's interference with sound 
processes and state decision making is not resulting in more 
impactful AML projects. It is actually reducing the beneficial 
impact of the AML program by hindering and delaying the 
completion of our work.
    Instead of reinventing the AML program and second guessing 
the states, OSMRE should be focused on giving the states the 
support we need. For example, expanding the national training 
program. We have repeatedly pleaded with OSMRE to double the 
capacity of the instructor cadre within the East and West 
training team, and to explore creative new ways to expand the 
capability to provide training to new employees for states, 
tribes, and OSMRE itself. Thus far, they have been slow to heed 
this call.
    I urge Congress to consider directing OSMRE to adjust its 
implementation plans and underlying priorities, and to refocus 
on supporting the states by streamlining administration of the 
programs so that less time and money can be spent on 
administration and more on reclamation, as intended. Our shared 
success depends on it, and together we can accomplish the 
mission we have been entrusted with.
    Thank you for your time, and I look forward to answering 
any questions or further discussion on this matter.

    [The prepared statement of Mr. Morin follows:]
 Prepared Statement of Dustin Morin, Director, Mining and Reclamation 
                 Division, Alabama Department of Labor

    My name is Dustin Morin, and I am Director of the Mining and 
Reclamation Division within Alabama's Department of Labor, which houses 
Alabama's Abandoned Mine Lands (AML) Program under Title IV of the 
Surface Mining Control and Reclamation Act (SMCRA). I am also the 
current President of the National Association of Abandoned Mine Lands 
Programs (NAAMLP), which represents all 27 states and tribes that 
implement Title IV AML programs.
    I appreciate the opportunity to speak to the Subcommittee about the 
AML program. The state and tribal AML programs are very thankful for 
Congress' continued support. As Congress has clearly recognized, the 
AML program is a key part of efforts to put coal communities on solid 
footing, especially those that are impacted by the energy transition. 
Through this program, states and tribes are empowered with funding and 
authority to repair damage left over from historic coal mining. We are 
making coal communities a safer place to live by closing mine portals, 
removing dangerous cliffs, and stabilizing subsided property; we are 
restoring their environment by planting vegetation and eliminating 
pollution, bringing streams back to life and providing safe drinking 
water; and as is increasingly being recognized, we are invigorating 
their economies by making them better places to live, to visit, and to 
grow a business, helping to prepare land for future development, and 
providing well-paying construction jobs.
    The Infrastructure Investment and Jobs Act (IIJA) greatly increased 
the scale of what the AML programs can accomplish in all these 
respects. The $11.3 billion in new funding, along with reauthorization 
of the AML fee, will allow us to complete the vast majority of 
remaining coal AML work throughout the country over the next 15+ years. 
The improved ability to work on environmental hazards through the IIJA 
funding and STREAM Act will allow us to expand our focus on restoring 
water resources, one of the most impactful parts of the program. The 
IIJAs focus on providing good jobs to citizens in legacy coal 
communities is helping to ensure AML contracting is done in a manner 
that is most beneficial.
    I am confident that the AML programs will continue to deliver the 
benefits that Congress intends, both through the IIJA-funded coal AML 
program and the Abandoned Mine Lands Economic Revitalization Program 
(AMLER). However, there are a number of implementation challenges 
facing these programs, which I believe deserve Congress' attention. The 
Office of Surface Mining Reclamation and Enforcement's (OSMRE) 
implementation of the IIJA funding and AMLER program has been slow and 
cumbersome and has done more to complicate and delay than to enhance 
the AML program's ability to fulfill its goals. To ensure the AML 
program has the greatest possible impact, it is very important that the 
priorities guiding its implementation be properly ordered and the 
foundations of its success be maintained. I ask Congress to direct 
OSMRE to streamline administration of the program, ensure states have 
access to the resources they need, and most importantly, collaborate 
meaningfully with the states and tribes on implementation plans. The 
states have been successfully implementing AML programs for over 45 
years and have historically reliable processes for doing so. Changing 
the recipe for success at a time when we face our greatest challenge 
hinders our ability to accomplish the important work of AML 
reclamation.
Streamlining Administration of the Program

    The IIJA greatly amplified the annual funding devoted to the state 
and tribal coal AML programs. Alabama has historically received between 
$3 and $5 million in annual AML funding and is now receiving roughly 
$34 million. This is an exciting new era for the AML programs but 
brings with it the unavoidable challenge of substantially and quickly 
increasing the staff capacity of the programs to utilize the new 
funding. Prior to the passage of the IIJA many AML programs across the 
country were preparing for the expiration of the AML fee-based grant 
and were therefore slowly shrinking. With the influx of the new funding 
provided by the IIJA, many programs have had to switch gears and re-
staff to capacity to handle the funding increase. The AML programs will 
be hiring and training hundreds of new engineers, environmental 
scientists, NEPA specialists, inspectors, and grants management and 
administrative personnel. Alabama plans to hire between 25-30 new 
staff. The AML programs must also prepare plans and gain approvals for 
an increased number of annual projects, which each generally takes 3-4 
years from inception to completion. It will therefore take several 
years before the AML programs have reached the full new potential made 
possible by the IIJA, but the ramp-up process is well underway, and AML 
projects continue to be conducted based on existing plans in the 
meantime.
    Given the strained capacity the AML programs are facing, OSMRE's 
first priority for IIJA implementation should be helping the AML 
programs put their increased funding into effect as quickly and 
efficiently as possible, minimizing the time spent on administrative 
tasks. Unfortunately, OSMRE's approach has done the opposite. It has 
created a significant number of new administrative processes and tasks, 
introduced confusion into existing ones, and generally resulted in 
delays. The roll-out for the first year of IIJA AML funding took more 
than a year while OSMRE deliberated over its initial plans with minimal 
state involvement. The AML program has been operating successfully for 
over 45 years, so implementation of the IIJA funding should have been a 
relatively simple matter, utilizing reliably successful processes. 
Instead, OSMRE has essentially taken upon itself to re-invent the AML 
program, and while its intentions are good, the result has not been an 
overall improvement. The states fear that the new burdens imposed by 
OSMRE will have a compounding burdensome effect on effective program 
implementation with each subsequent year of IIJA funding, unless OSMRE 
changes tact.
    One of OSMRE's goals is to gather information to track and report 
on progress with AML work. The most unfortunate example is that OSMRE 
is requiring IIJA grants to be applied for separately from AML fee 
grants. Having two separate grant applications effectively doubles (or 
more) the amount of administrative work states and tribes must do to 
receive their funding and is simply not necessary. The funding is for 
the same programs and same purposes with relatively minor differences 
in how the funding can be spent, and states and tribes can easily track 
how they are spending their IIJA funding and AML fee funding separately 
through the same kinds of accounting measures we have been using for 
decades. The burden is further compounded for the states and tribes 
also receiving AMLER funding.
    Similarly, OSMRE is requiring a variety of new kinds of information 
to be tracked and reported so that a better ``story'' can be told about 
the AML programs' accomplishments. Each new reporting requirement and 
performance measure seems innocuous on its own, but added together, 
they represent a significant amount of new administrative work, which 
means less time and money being directed to actually achieving the 
accomplishments OSMRE intends to report. Meanwhile, there is already a 
substantial amount of information available to track AML 
accomplishments through state's and tribe's annual reports and through 
e-AMLIS, both of which list every project completed and what the 
project accomplished.
    Another of OSMRE's goals is to accentuate the positive social 
impacts of AML work and ensure that public input is strongly 
considered. Again, well-intentioned goals, but misguided in their 
application. OSMRE is scrutinizing the states' plans for projects and 
``encouraging'' the use of a number of additional priorities for their 
selection and design. This has proven problematic for a number of 
reasons. For one, states and tribes are bound by SMCRA to focus on 
addressing safety, health, and environmental hazards when selecting and 
designing projects. This system works well, including for creating 
social benefits, because those benefits flow directly from eliminating 
safety, health, and environmental hazards. To the extent there is room 
for including other priorities in selecting AML projects, states and 
tribes are in much better position to judge how to balance those 
priorities than OSMRE, which is a fundamental reason for the state/
tribal primacy approach imbued in SMCRA. Furthermore, AML project 
selection is already driven largely by public input. States regularly 
receive calls from local landowners and members of the public bringing 
their attention to pressing issues and recommending that certain 
projects be done, which is one of the primary bases for project 
selections. OSMRE's scrutiny of states' and tribes' decisions, 
meanwhile, tends to delay and confuse the process. State's grant 
applications are routinely being sent back with requests from OSMRE for 
more information and with encouragements to do things differently. The 
IIJA Guidance Document is updated every year and uses vague terms, 
making it difficult for states and tribes to gain a solid understanding 
of OSMRE's expectations. These practices are not resulting in more 
impactful AML projects; they actually reduce the beneficial impact of 
the AML program by delaying AML work.
    As a final example of misguided implementation, OSMRE is requiring 
every state and tribal AML program to conduct a comprehensive review of 
its legal authority to operate an AML program. OSMRE insists that this 
must be done, seemingly out of a preference for process and desire for 
an additional opportunity to ``encourage'' states and tribes to make 
changes to their programs. The states and tribes feel strongly that 
this process is not immediately, if at all, necessary and a very poor 
use of limited AML program staff time. States and tribes already have 
legal authority to conduct their AML programs, Congress has outlined in 
the law how the IIJA AML program is to operate, and OSMRE continues to 
have the opportunity to review and authorize every AML project before 
funding is drawn down to execute it. Meanwhile, there is a pre-existing 
backlog of roughly 55 proposed state/tribal reclamation plan revisions 
and Title V program amendments awaiting OSMRE's approval, some dating 
as far back as 2009. It is unclear what is at the root of the long-term 
delays in OSMRE's approval of these program amendments and plan 
revisions. I believe a Government Accountability Office (GAO) study may 
be helpful to illuminate and resolve the issue. In the mean time, it is 
difficult to see how this new state/tribal legal authority review 
process on which OSMRE has embarked, which would add 27 more proposed 
state/tribal reclamation plan revisions, can be done efficiently. We 
have repeatedly asked that this process be postponed for a minimum of 
two years until the programs have been able to increase their staff 
capacity, but OSMRE is proceeding with its plan.
    The fundamental problem borne out in these examples is that OSMRE 
has neglected to recognize that the existing processes for 
administering the AML program work very well and that the primary 
challenge facing the AML program is efficiently utilizing increased 
funding with strained staff capacity. I hope that Congress can direct 
OSMRE to reorient its implementation plans and underlying priorities to 
focus on streamlining administration of the program so that less time 
and money can be spent on administration and more on reclamation as it 
was intended.
Ensuring States Have the Resources They Need

    Supporting the state and tribal AML programs with the resources 
they need to do their jobs is a key part of OSMRE's role in the 
program. There are two aspects of this that I would like to bring to 
Congress' attention: the training program and the IIJA-provided 
inventory funding.
    There are two SMCRA training programs managed by OSMRE in 
cooperation with the states and tribes: the National Technical Training 
Program (NTTP) and the Technical Innovation and Professional Services 
(TIPS) Program. NTTP offers courses to OSMRE and state and tribal 
employees on technical aspects of performing AML reclamation work, 
while TIPS offers access to and courses on the use of specialized 
software required for planning and performing reclamation work. 
Together, these two training programs (referred to collectively 
hereafter as the ``training program''), are a vital organ in the 
healthy operation of SMCRA, ensuring that knowledge on how to do AML 
work well is developed and shared throughout the programs.
    Current training program offerings are not enough to satisfy the 
growing demand due to the influx of new OSMRE, state, and tribal 
program staff. There are several things that need to be done, and 
quickly. The way training is scheduled needs to be revamped so that the 
currently available resources are fully utilized. A number of courses 
need to be provided in separate eastern and western-focused sections so 
that they can be tailored to the greatly differing geology and ecology 
across the country. Most fundamentally, the total number of class 
sections on offer needs to increase significantly, which means that new 
instructors are needed. SMCRA training program instructors are all 
volunteers from the states, tribes, and OSMRE who contribute to the 
training program in addition to their regular role in the AML program. 
With the substantial increase in required instructors, it is no longer 
practical to rely entirely on volunteers. There are subject matter 
experts available, for example recent retirees from state and tribal 
AML programs and OSMRE, that would be excellent instructors, but cannot 
afford to participate without compensation. OSMRE has so far not 
committed to the notion of funding instructor compensation, despite 
being granted $339 million for implementation of the IIJA-funded coal 
AML program. In my opinion, part of this funding should be used to 
expand the training program. The NTTP and TIPS steering committee has 
been discussing these issues, but I am not confident that current plans 
will be enough to provide the level of training that is now needed.
    Inventorying AML sites is another important function within the AML 
program. While most AML sites have already been inventoried, the 
inventory is dynamic and, over time, previously unknown sites are 
identified and existing site entries in the database need to be updated 
as costs increase and conditions change. The state and tribal AML 
programs' primary focus is on reclamation work, but keeping up with 
inventorying is important too. Recognizing this, Congress provided $25 
million in the IIJA specifically to support the state and tribal AML 
programs' inventorying work. $25 million split across 27 state and 
tribal AML programs will not result in a significant update to the AML 
inventory, but it is enough for states and tribes to do additional 
inventorying or upgrade their inventory systems, and there are some 
states and tribes that are very much in need of direct support for 
inventorying.
    Unfortunately, OSMRE has decided to distribute only $8 million of 
the $25 million provided by the IIJA for inventorying to the states and 
tribes, and only to the states and tribes that have remaining coal AML 
work reflected in their current inventory. OSMRE reportedly plans to 
utilize the rest of the $17M on upgrades to the national AML database 
known as e-AMLIS (the Electronic Abandoned Mine Land Inventory System). 
We have been told by OSMRE that the upgrades in part relate to 
necessary cyber security updates being required of all such federal 
systems. I do not believe this is how Congress intended for this 
funding to be used. $8M will not go very far in supporting the states 
and tribe's inventory efforts, and it seems that OSMRE's plans for the 
$17M they have decided to use could have been accomplished with other 
sources of funding, such as OSMRE's regular Title IV budget or the $339 
million it received for IIJA implementation.
    A second reason that OSMRE's current plan for the IIJA inventory 
funding is troubling is that they intend to distribute funding only to 
states and tribes that have remaining, unfunded coal AML work reflected 
in their current inventory. Inventories are dynamic and need to be 
updated over time as conditions change, and it is possible that the 
states and tribes in question in fact have sites that need additional 
attention. Those states and tribes cannot receive IIJA funding to 
address such sites without having remaining AML costs already reflected 
in the AML inventory but cannot update their inventory without funding. 
These states and tribes should be given the chance to apply for IIJA 
inventory funding so that they can in turn receive the IIJA funding 
they need for reclamation.
Collaborating with States on Implementation Plans

    At the core of the problems with OSMRE's IIJA implementation plans 
is a consistent tendency to discount input received from the state and 
tribal AML programs. OSMRE's collaboration with state and tribal 
programs is often in word only. Since the inception of AMLER and the 
subsequent passage of the IIJA, OSMRE has developed evolving annual 
guidance and implementation plans in a vacuum, with little to no state/
tribal input, and then unveiled them to the states and tribes at the 
eleventh hour with no time for meaningful state/tribal input or 
revision. This is not collaboration and must improve. The states and 
tribes are the primary, front-line implementors of the program and 
possess a unique perspective on what it takes for the programs to be 
successful. We have consistently given OSMRE extensive input on how 
best to implement the IIJA funding, beginning before the IIJA was 
officially passed. More often than not, we have found that our input is 
not meaningfully reflected in implementation plans. Many of the 
problems discussed above with slow, unduly complicated implementation 
processes could have been avoided by heeding our advice.
    A roundtable meeting at OSMRE headquarters was held in January of 
this year in attempt to improve the working relationship between the 
states/tribes and OSMRE and resolve implementation difficulties. Coming 
out of that meeting, we established several OSMRE-state/tribe 
workgroups to make recommendations on particular aspects of IIJA 
implementation. The roundtable meeting and workgroups led to good 
results on several aspects of IIJA implementation, and we appreciate 
OSMRE's collaboration on those issues. It is proof that mutually 
workable solutions are possible through cooperation. However, we are 
concerned that focus on use of the workgroups as venues for this kind 
of cooperative problem-solving is beginning to wane. It is vital that 
OSMRE stay committed to developing implementation plans in concert with 
the states and tribes through the workgroups.
AMLER

    The AMLER program has been a great success and major benefit to 
Alabama. So far, Alabama has spent or committed over $56 million to 
AMLER projects. Examples of Alabama's projects include:

     The Grand River Tech Park--will provide a future site for 
            the relocation for the Southern Museum of Flight and office 
            space for light industrial manufacturing in the community 
            of Leeds, AL.

     The Hillsboro Coke Oven Park--a park and playground 
            adjacent to some historic coke ovens near the City of 
            Helena, AL.

     The Walker County Agricultural Restoration Project--a 
            dangerous highwall was reclaimed, eliminating a safety 
            hazard and allowing for the expansion of an operational 
            cattle farm in Oakman, AL.

     Piper AML project--reclaiming a mile of dangerous highwall 
            along the Cahaba River adding recreational trails and 
            amenities to the USFWS Cahaba National Wildlife Refuge in 
            West Blocton, AL.

     West Blocton Coke Oven Park--adding RV camping and 
            recreational amenities to a historic coke oven area.

     Eagle Cove Marina--adding boat lifts to the marina 
            adjacent to a legacy mine portal in Tuscaloosa County, AL.

     West Blocton theater restoration--restoring a historic old 
            theater for the city to host its annual Cahaba Lily 
            festival and provide a physical office space for the Cahaba 
            National Wildlife Refuge.

     Hillsboro Sports Park--adding baseball fields adjacent to 
            City of Helena, AL.

     North Fork Creek--highwall reclamation and Acid Mine 
            Drainage clean-up in the Hurricane Creek watershed in 
            Brookwood, AL.

    However, AMLER's successes have come despite implementation 
difficulties similar to those discussed above regarding the IIJA 
program. OSMRE has assumed a major role in managing the AMLER program 
and unfortunately, is doing more harm than good. In addition to the 
typical approval process for all AML projects, OSMRE requires that 
every potential AMLER project be ``vetted'' with them while the project 
is in its development stage. Whereas, in the typical approval process, 
OSMRE's approval is a fairly simply matter of verifying that the 
proposed reclamation project fits SMCRA's guidelines, in the AMLER 
vetting process, OSMRE evaluates for themselves whether the project 
would, in their view, adequately fulfill the economic development goals 
of AMLER. There are multiple problems with this process.
    One problem is that OSMRE's vetting procedure is slow, confusing, 
and constantly evolving through an annually released guidance document. 
Proposed projects are vetted sequentially through the OSMRE Field, 
Regional, and Headquarters Office and often with the Interior 
Solicitor's Office. Extensive amounts of detailed information and major 
revisions to the proposal are often requested. This process typically 
takes at least a month, often several months, and in a few cases, a 
year or even several years. Meanwhile, communication from OSMRE to the 
states/tribes and their AMLER project partners is often lacking or non-
existent. It is generally difficult to gain clear understanding of 
where a project is in the process or what issues may be delaying its 
approval.
    OSMRE has been resistant to putting clear guidelines into writing 
regarding their expectations for AMLER projects so that issues that 
have caused delays can be avoided in the future. To the extent written 
guidelines exist, they are hard to rely on because they are updated 
every year, typically without prior consultation with states/tribes on 
what changes will be made. The result is that states and tribes spend 
an inordinate amount of time trying to understand OSMRE's requirements 
and chase down information on project's vetting status, project 
partners are increasingly hesitant to participate in the program, and 
the flow of AMLER funding into the communities that need it is 
significantly slower than need be.
    A related problem with the vetting process is that OSMRE is not 
well-equipped to evaluate the economic development prospects of 
proposed AMLER projects. Unlike states/tribes and their local partners, 
OSMRE does not possess insight into which projects are most likely to 
result in the greatest economic impact. OSMRE also does not have prior 
experience overseeing economic development projects since the 
traditional AML program is focused only on reclamation. That being the 
case, it is understandable that OSMRE has struggled to develop 
expertise on, for example, how federal financial and grant management 
rules for economic development grants apply to AMLER. A pattern has 
developed of OSMRE discovering that it must apply some previously 
unascertained aspect of federal rules to AMLER grants and taking years 
to determine and clarify how to manage the issue. This occurred first 
with the issue of when AMLER contracts should be managed as ``sub-
recipient'' vs ``contractor'' arrangements, then again with respect to 
``program income'', and now is occurring with respect to ``real 
property''.
    Based on the authorizing language for the AMLER program, I do not 
believe that Congress envisioned OSMRE taking on the role it has in the 
AMLER program. I believe Congress intended for AMLER projects to be 
developed by state and tribal AML programs in concert with their state/
tribal economic development agencies and local community interests so 
that project design and selection is driven by locally-informed 
knowledge of what will have the best impact. The best way to improve 
implementation of the AMLER program is to return it to that original, 
state/tribe- and locally-driven vision. The report language Congress 
has included in recent budgets regarding AMLER, encouraging OSMRE to 
better collaborate with the states/tribes and produce clearer guidance, 
is appreciated, but I do not believe they have been or will be enough 
to resolve the fundamental problems. I recommend that Congress require 
OSMRE to directly transfer AMLER funding to states and tribes, 
eliminating the vetting process, as is contemplated in the House of 
Representative's FY24 Budget bill.
Conclusion--How Congress Can Help

    The AML program has been successful for 45 years and will continue 
to be successful despite the implementation challenges discussed in my 
statement. I believe Congress can help to improve implementation of the 
IIJA and AMLER programs by directing OSMRE to re-orient its priorities 
toward streamlining program administration and respecting state/tribal 
primacy and expertise, in addition to the specific changes I have 
recommended, which are summarized below. I believe these changes will 
reestablish the proper functioning of the AML program, with OSMRE in 
its vital support role, and implementation driven by the state and 
tribal AML programs.

     Institute a single, combined grant application for IIJA- 
            and AML fee-sourced AML funding thereby eliminating the 
            unnecessary administrative burden currently imposed on 
            states by OSMRE new program requirements.

     Limit the amount of additional reporting and information 
            gathering required for use of IIJA and AMLER funding and 
            rely on the traditional reporting of reclamation completion 
            data.

     Provide a single, consistent set of guidance for the IIJA 
            and AMLER programs, respectively, rather than changing 
            guidance each year

     Direct GAO to study the long-term delays in OSMRE's 
            approval of state and tribal program amendments and 
            reclamation plan revisions.

     Increase the number of training courses offered, including 
            western-focused sections where appropriate, and compensate 
            qualified training program instructors.

     Provide the full $25 million in IIJA inventory funding to 
            the states and tribes, and include all 27 states and tribes 
            with Title IV AML programs.

     Provide AMLER funding directly to the states and tribes 
            and eliminate the ``vetting'' process for proposed 
            projects.

                                 ______
                                 

   Questions Submitted for the Record to Mr. Dustin Morin, Director, 
      Mining and Reclamation Division, Alabama Department of Labor

          Questions Submitted by Representative Ocasio-Cortez

    Question 1. Congress made its intention clear in the Infrastructure 
Investments and Jobs Act that the abandoned coal mine land reclamation 
funding should create good paying jobs for displaced coal workers and 
incentivize union labor. (30 USC 1231a(f): ``priority may also be given 
to reclamation projects described in subsection b(1) that provide 
employment for current and former employees of the coal industry;'' 30 
USC 1231a(b)(3): ``In applying for grants under paragraph (1), States 
and Indian Tribes may aggregate bids into larger statewide or regional 
contracts;'' and 42 USC 18851: ``all laborers and mechanics employed [ 
. . . ] on a project assisted in whole or in part by funding made 
available under this division [ . . . ] shall be paid wages at rates 
not less than those prevailing on similar projects in the locality''.) 
How are you implementing the employment priorities included in the law, 
and are you in touch with the United Mine Workers of America and the 
AFL-CIO on how best to do so?

    Answer. The Alabama AML program is implementing the Infrastructure 
Investment and Jobs Act funding to meet Congress' intentions to the 
best of our ability. The benefit to the communities and citizens of 
Alabama is inherent in the work itself by abating the extremely 
dangerous safety features associated with abandoned mine lands. There 
are two accepted methods of procurement for AML work that must be 
adhered to under the Alabama Procurement Law by the authority of the 
State's Chief Procurement Officer: 1) Request for Bid (RFB), or 
Invitation to Bid (ITB) for supplies and non-professional services 
(including AML construction/reclamation work) which awards work to the 
``lowest responsive and responsible bidder''. 2) Request for Proposals 
(RFP), and/or Request for Qualifications (RFQ) for professional 
services which awards work to the offeror ``whose proposal conforms to 
the solicitation'' and is ``the most advantageous to the state taking 
into consideration price and evaluation factors''. Neither mechanism of 
procurement currently allows for ``preference'' to be given to 
displaced coal workers or unionized labor. Despite repeated requests to 
OSMRE no definition has been provided to the states for who qualifies 
as ``displaced coal worker'' which makes this priority difficult to 
implement in theory or practice. However, we appreciate the intent. 
Alabama, like much of the country, is facing significant work-force 
challenges in the post-COVID era and there are numerous good paying 
jobs across the state available to individuals' seeking employment. We 
have an established practice of bid aggregation into single contracts 
when advantageous to the state to do so. We also require any 
contractors performing work on behalf of the AML program to meet the 
requirements of the Davis Bacon Act and provide us with documentation 
of certified payroll ensuring that prevailing wages or above are paid.

                                 ______
                                 

    Mr. Stauber. Thank you, Mr. Morin.
    Our next witness is Mr. Peter Morgan. He is the Senior 
Attorney for the Sierra Club Legislative Office located here in 
Washington, DC.
    Mr. Morgan, you are now recognized for 5 minutes.

    STATEMENT OF PETER MORGAN, SENIOR ATTORNEY, SIERRA CLUB 
               LEGISLATIVE OFFICE, WASHINGTON, DC

    Mr. Morgan. Thank you, Chairman Stauber and Ranking Member 
Ocasio-Cortez, for the opportunity to testify today.
    I am a Senior Attorney with the Sierra Club, based in 
Colorado. For more than 15 years, my work has focused on 
assisting local communities nationwide, ensuring coal mines 
minimize their pollution and are fully reclaimed once they stop 
production.
    The fundamental point I would like to convey with my 
testimony today is that OSMRE is not confronting the reality 
that we are on track to see a return to the conditions that led 
Congress to pass the Surface Mining Control and Reclamation 
Act, SMCRA, in 1977. That is, thousands of mines abandoned with 
no source of funds to complete reclamation, requiring an 
expansion or duplication of the taxpayer-funded AML program.
    Modern abandoned un-reclaimed mine sites pose a variety of 
threats to communities in coal-producing states and tribal 
lands across the country. These sites are sources of air and 
water pollution, and contain hazards such as exposed highwalls 
and open mine portals.
    Un-reclaimed mines also exacerbate flooding, due to a lack 
of vegetation and absence of properly maintained drainage 
controls. Historic flooding in eastern Kentucky in July 2022 
most heavily impacted communities living below un-reclaimed 
strip mines.
    Congress designed SMCRA to address abandoned mines in two 
ways. Title 4 provides funding to clean up the inventory of 
abandoned mines already in existence in 1977, while Title V 
seeks to prevent any additional mines from ever becoming 
abandoned in an un-reclaimed state. It requires operators to 
post reclamation bonds and mandates that operators complete 
reclamation concurrent with coal removal. Both elements of 
Title V are currently failing.
    The primary problem is that OSMRE has not adjusted its 
approach to account for the now permanent reality of decreasing 
demand for coal. The U.S. Energy Information Administration 
recently forecast that annual coal production in the United 
States will drop almost 23 percent in 2024, compared with 2022. 
EIA predicts 2024 U.S. coal production will be 60 percent below 
the peak of coal production seen in 2008.
    Industry experts attribute the drop in demand for coal to 
market forces, primarily the cheap cost of methane gas and 
renewable energy. Because these market forces will persist, 
coal production will remain low. This decline in demand for 
coal has already resulted in dozens of mine operator 
bankruptcies, and more are coming. Nearly 70 coal mine 
operators filed for bankruptcy between 2012 and 2020. Four of 
the largest mine operators offloaded almost $2 billion in 
environmental liabilities through the bankruptcy process 
between 2012 and 2017.
    Given these economic conditions, OSMRE and state mine 
regulators should be doing everything they can to give effect 
to SMCRA's core requirements, which are ensuring that bonds are 
adequate to cover the full cost of reclamation, and requiring 
operators to minimize the amount of disturbed, un-reclaimed 
area at each mine site. In fact, we are seeing the opposite: 
bond amounts are set too low and in forms that virtually 
guarantee funds will not be available when needed. And 
regulators are allowing operations to sit idle, neither 
removing coal nor conducting reclamation. As a result, there 
are already hundreds of zombie mines across the country that 
will never return to production, and where the operators lack 
the funds to complete reclamation.
    There is a narrowing window for OSMRE to take action. 
First, the agency must collect and make public information on 
mine production and reclamation status for all coal mines in 
order to identify the full set of these functionally abandoned 
zombie permits. Next, OSMRE must conduct a stress test for 
state bond pools and surety bond providers. OSMRE must also 
work with states to rigorously enforce SMCRA's contemporaneous 
reclamation requirements, and OSMRE must finalize the 10-day 
notice rule in order to afford impacted communities their full 
right to public participation in mine oversight.
    Only with rapid and decisive action by OSMRE can we avoid a 
new generation of dangerous, polluting, economically 
unproductive, abandoned mine lands. Thank you.

    [The prepared statement of Mr. Morgan follows:]
  Prepared Statement of Mr. Peter Morgan, Senior Attorney, Sierra Club

    Thank you Chairman Stauber, Ranking Member Ocasio-Cortez, and 
members of the Committee for the opportunity to testify regarding the 
Office of Surface Mining Reclamation and Enforcement (OSMRE) and its 
oversight of abandoned mine lands and active mining programs.
    I am a Senior Attorney with the Sierra Club, the nation's oldest 
and largest grassroots environmental organization. My work focuses on 
assisting local communities nationwide ensure coal mines minimize their 
pollution and are fully reclaimed once they stop production. As part of 
this work, I frequently interact with OSMRE staff at the national and 
regional level.
I. OSMRE is not confronting the reality that we are on track to see a 
        return to the conditions that led Congress to pass SMCRA in 
        1977: thousands of mines abandoned with no source of funds to 
        complete reclamation, requiring an expansion or duplication of 
        the taxpayer-funded AML program

    Over the 15 years that I've worked on coal mining-related issues, 
I've seen major transformations in the coal industry: from a boom in 
permitting at the peak of the coal market in the 2000s, to a period of 
declining production and increasing environmental violations, to 
multiple waves of bankruptcies and the present situation where we are 
seeing increasing mine abandonments and decreasing funds available to 
cover the costs of reclamation. Unfortunately, across this timespan 
OSMRE has not adjusted its approach and continues to operate as if 
demand for coal is never-ending and new coal mines will continue to be 
permitted, rather than acknowledge the reality that the industry is in 
decline, reclamation funding is inadequate, and communities are being 
forced to bear the burden of living next to disturbed areas that 
generate pollution and are prone to flooding and erosion. OSMRE's 
failure to adjust to this reality has created conditions under which, 
if appropriate action is not immediately taken, thousands of additional 
unreclaimed permits will be abandoned, the costs to be borne by nearby 
communities and taxpayers.
A. Market forces have led to a permanent decline in demand for coal 
        that is leading to rapidly decreasing production, shuttered 
        mines, and a high risk of mine abandonments

    Every decision relating to the regulation of coal mining must be 
informed by a clear-eyed understanding that the demand for coal is in 
dramatic and permanent decline. The decline of the coal industry is 
well documented and attributable to the comparatively lower price of 
natural gas and renewable energy. In its recent October Short-Term 
Energy Outlook, the US Energy Information Administration (EIA) forecast 
that annual coal production in the U.S. will drop 2.7 percent in 2023 
compared with 2022, and that this decline will then dramatically 
increase in 2024 with an additional 20.0 percent decrease.\1\ EIA 
predicts 2024 U.S. coal production will be 465 MMst. This is about 13.1 
percent below the previous low set in 2020 and 60 percent below peak 
coal production of 1,172 MMst in 2008. Industry-tracking experts 
attribute the drop in demand for coal to market forces. In a recent 
interview with the publication S&P Global Commodity Insights, 
Morningstar Research Services analyst Travis Miller said: ``I just 
don't see a pathway to coal generation being a material part of the 
generation mix in the next decade and beyond. There is too much growth 
in renewable energy. Nuclear economics appear to be stable now with 
some of the tax incentives, and gas is just such a valuable generation 
fuel source that the US is never going to be replacing gas with coal.'' 
\2\
---------------------------------------------------------------------------
    \1\ U.S. Energy Information Administration, Short-Term Energy 
Outlook, October 2023. Available at https://www.eia.gov/outlooks/steo/
archives/Oct23.pdf
    \2\ Kuykendall, T. ``Monthly US coal production heading for a 
cliff, starting . . . now,'' S&P Capital IQ, October 30, 2023. 
Available at https://www.capitaliq.spglobal.com/apisv3/spg-web 
platform-core/news/article?KeyProductLinkType=2&id=78096170
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    This decline in demand for coal has already resulted in dozens of 
mine operator bankruptcies, and more are coming. Nearly 70 coal mine 
operators filed for bankruptcy between 2012 and 2020.\3\ Four of the 
largest mine operators--Patriot Coal, Alpha Natural Resources, Arch 
Coal, and Peabody Energy--offloaded almost $2 billion in environmental 
liabilities and more than $3 billion in retiree liabilities through the 
bankruptcy process between 2012 and 2017.\4\ Because coal production 
and the demand for coal continue to drop, more mine operator 
bankruptcies are coming. And these are much more likely to be total 
liquidations resulting in large waves of abandoned permits. Indeed, 
we're already seeing permits that were transferred out of prior 
bankruptcies go back through the bankruptcy process as the operators 
who acquired them on the cheap are themselves forced to liquidate. The 
prospects for these permits to be reclaimed by industry without cost to 
taxpayers is extremely low.
---------------------------------------------------------------------------
    \3\ Kuykendall, T. ``Roster of US coal companies turning to 
bankruptcy continues to swell.'' SNL. June 4, 2015. https://
www.snl.com/interactiveX/Article.aspx?cdid=A-32872208-12845&FreeAccess 
=1; Saul, J. and Doherty, K. U.S. Bankruptcy Tracker: Coal's a Canary 
in the Mine for Energy. Bloomberg. December 8, 2020. https://
www.bloomberg.com/news/articles/2020-12-08/u-s-bankruptcytracker-coal-
s-a-canary-in-the-mine-for-energy
    \4\ Macey, J. and Salovaara, J. ``Bankruptcy as Bailout: Coal 
Company Insolvency and the Erosion of Federal Law,'' Stanford Law 
Review. April 2019. Available at https://review.law.stanford.edu/wp-
content/uploads/sites/3/2019/04/Macey-Salovaara-71-Stan.-L.-Rev.-
879.pdf
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B. Congress' intent in passing SMCRA in 1977 is being frustrated by 
        OSMRE's inaction

    Congress passed the Surface Mining Control and Reclamation Act 
(SMCRA) in 1977 to address the problem of mines being abandoned 
unreclaimed, finding that ``there are a substantial number of acres of 
land throughout major regions of the United States disturbed by surface 
and underground coal on which little or no reclamation was conducted, 
and the impacts from these unreclaimed lands impose social and economic 
costs on residents in nearby and adjoining areas as well as continuing 
to impair environmental quality.'' \5\ Congress took two fundamental 
approaches in SMCRA, providing for clean-up of already abandoned mines, 
and setting out regulations to prevent any new mines from being 
abandoned unreclaimed. Title IV of SMCRA created the Abandoned Mine 
Lands program to provide funding to clean up the existing inventory of 
unreclaimed sites across the county. In Title V, Congress created a 
structure of regulations to ensure that no new mines would ever again 
be abandoned unreclaimed or without the means for regulators to 
immediately complete reclamation. This regulatory structure for new 
coal mines is built around two central requirements. First, mine 
operators must provide bonds or other financial assurances adequate to 
cover the full costs of any reclamation that may be outstanding should 
the company go out of business. Second, mine operators must conduct 
reclamation as they go, so that at any given time the total disturbed 
area (and therefore the remaining reclamation cost) is as small as 
possible. SMCRA is currently being implemented in a manner that fails 
on both fronts.
---------------------------------------------------------------------------
    \5\ 30 U.S.C. Sec. 1201(h).
---------------------------------------------------------------------------
C. OSMRE and state regulators are failing to require adequate bonding, 
        meaning the money is not there to pay for reclamation of 
        abandoned sites

    SMCRA requires that before a mining operation can begin, the permit 
holder must provide adequate financial assurances. These can take a 
variety of forms, including third-party surety bonds and participation 
in state-administered bond pools. As currently implemented, SMCRA 
bonding fails to deliver on Congress' intent in two ways. First, 
regulators often underestimate the actual costs of reclamation in a 
manner that keeps bonding expenses low for operators, but leads to 
there being inadequate funds to actually pay for reclamation. In 2021, 
in the bankruptcy liquidation of major coal mine operator Blackjewel 
LLC, the Kentucky Energy and Environment Cabinet estimated that the 
cost of reclaiming 33 permits revoked by order of the court would 
exceed those permits' bond amounts by over $28 million. This came after 
an earlier report by OSMRE in 2017 found that the bonds forfeited by 
bankrupt coal companies in Kentucky covered only 52.8 percent of actual 
reclamation costs.\6\ A 2021 West Virginia legislature audit found that 
individual bonds in the state cover only 10 percent of projected 
reclamation costs, leaving the state's inadequate Special Reclamation 
Fund bond pool to cover the entire shortfall.\7\ But, as discussed 
below, those costs would quickly overwhelm and drain that bond pool.
---------------------------------------------------------------------------
    \6\ OSMRE Annual Evaluation Report for Kentucky, 2017. Available at 
https://perma.cc/8WWU-V2F4
    \7\ West Virginia Legislative Audit Report, ``WV Department of 
Environmental Protection Division of Mining & Reclamation--Special 
Reclamation Funds Report,'' June 7, 2021, at p. 13. Available at 
https://www.wvlegislature.gov/legisdocs/reports/agency/PA/
PA_2021_722.pdf
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    Second, the forms of financial assurances allowed by regulators are 
not appropriate for the current reality of declining production and 
increasing abandonments. Surety bonds may seem reliable because they 
pass the risk on to third-party bond providers. But a small number of 
sureties have been allowed to dominate the market, meaning they are 
dramatically over-exposed to a declining industry and have issued bonds 
far in excess of what they can afford to pay out. This creates a risk 
of widespread defaults, and also gives those bond providers enormous 
leverage over regulators. The West Virginia audit found that a single 
surety bond provider has issued bonds covering approximately two-thirds 
of bonded reclamation costs in the state, leaving the state extremely 
vulnerable should that provider default. Five surety companies, 
including that one, have issued 91 percent of bonding in the state.\8\
---------------------------------------------------------------------------
    \8\ West Virginia Legislative Audit Report, June 2021.
---------------------------------------------------------------------------
    State-run bond pools also carry enormous risks. By definition, 
these bond pools are intended to hold only a fraction of the funds 
actually needed to cover reclamation costs for all of the permits 
participating in the pool. How much money is maintained in the pool is 
determined by an actuarial analysis. But this analysis is inherently 
backward-looking, being based on historic rates of forfeiture from a 
time when demand for coal was high. The actuarial analyses, and 
therefore the amount of funds maintained in the pools, do not account 
for the coming avalanche of abandoned mines. And even if regulators try 
to increase the amount of funds in the pools, they are constrained by 
the fact that the traditional sources of funds--new permits issued and 
tons of coal mined--are also dwindling. Just as the demand for funds 
from these pools is increasing, the source of funds into the pools is 
shrinking. Bond pools are currently utilized in West Virginia, 
Kentucky, Virginia, Indiana, and Ohio. A recent actuarial analysis of 
the Ohio bond pool noted that coal production in the state dropped by 
more than 50% between 2019 and 2020, and found that the bankruptcy of 
any one of the five largest mine operators in the state would wipe out 
the entire bond pool.\9\
---------------------------------------------------------------------------
    \9\ Taylor & Mulder, Inc., ``Ohio Reclamation Forfeiture Fund 
Actuarial Study as of December 31, 2022.'' Available at https://
ohiodnr.gov/wps/wcm/connect/gov/8342b87d-3f06-466c-a0e6-5d00185a9c27/
May+2023+actuarial+study+of+Reclamation+Forfeiture+Fund.pdf?MOD= 
AJPERES&CVID=ozU-XML
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    Inadequate bonding also makes it less likely that operators will 
complete reclamation. SMCRA provides for the release of bonds in 
phases. The largest portion, approximately 60 percent, is released once 
backfilling and regrading is complete. The next tranche is released 
following revegetation. And the smallest portion is released at final 
reclamation. If bonds are too small, then operators lack an adequate 
incentive to secure bond release--particularly the final stages.
    An example from West Virginia illustrates a number of these 
problems with reclamation bonding. In early 2020, one of the largest 
operators of coal mines in West Virginia--ERP Compliant Fuels--was 
teetering on the verge of bankruptcy. Many of ERP's mines had been 
acquired through the bankruptcies of other operators, including Patriot 
Coal, which itself had been spun off from Peabody Energy and Arch Coal. 
Rather than allow ERP to go into bankruptcy, which would have risked 
approximately 100 unreclaimed mines becoming the responsibility of the 
state, the West Virginia Department of Environmental Protection took 
the extreme step of placing the company into a special receivership. In 
its court filings seeking creation of that receivership, WVDEP stated 
that ``DEP stands poised at the precipice of having to revoke the 
Defendant's permits, forfeiting the associated surety bonds, and 
transferring the responsibility for cleaning up the Defendant's mess to 
the State's Special Reclamation Fund, potentially bankrupting the 
Defendant's principal surety and administratively and financially 
overwhelming the Special Reclamation Fund, the State's principal 
backstop for all revoked and forfeited mine sites in West Virginia.'' 
\10\ We're now three-and-a-half years into that ``special 
receivership,'' many of ERP's mines remain unreclaimed, and it appears 
clear that the special receiver will not have the funds to complete the 
reclamation. The 2021 West Virginia audit report indicated that at the 
time of the report, ERP still held 91 permits, after forfeiting or 
transferring some permits. Those permits are backed by $83 million in 
reclamation surety bonds.
---------------------------------------------------------------------------
    \10\ West Virginia Department of Environmental Protection's Motion 
for Temporary Restraining Order and Preliminary Injunction, March 26, 
2020, at p. 3; and Affidavit of Harold Ward, Acting Director WVDEP, 
March 26, 2020, at para. 62-64. Available at https://
www.sierraclub.org/sites/default/files/2023-11/
Motion%20for%20TRO%20and%20Ward%20Affidavit.pdf
---------------------------------------------------------------------------
    However, because bonds in West Virginia typically only cover 10 
percent of the actual reclamation liability, the true outstanding cost 
of reclamation at the remaining ERP mines could be as high as $830 
million. As of March 2021, the West Virginia bond pool contained 
approximately $36 million, with another approximately $150 million in a 
separate fund for water treatment.\11\ The ultimate fate of the ERP 
permits, and the communities that they continue to impact, remains 
uncertain, though it is clear that significant costs will ultimately be 
passed on to the state. In the wake of ERP's failure, West Virginia has 
not made any substantive changes to its bonding program, nor has OSMRE 
compelled any such changes.
---------------------------------------------------------------------------
    \11\ West Virginia Legislative Audit Report, June 2021.
---------------------------------------------------------------------------
    The federal SMCRA statute also authorizes the use of ``self-
bonding,'' which in practice equates to no bonding at all. At the time 
that they entered bankruptcy, Alpha, Arch, and Peabody each had 
hundreds of millions of dollars of self-bonded reclamation liabilities. 
This allowed them to negotiate extremely favorable agreements with 
regulators, including allowing them to continue operating even though 
they no longer satisfied SMCRA's reclamation bonding requirements.\12\ 
Fortunately, in the wake of these major bankruptcies, most self-bonds 
have been replaced. However, five states have allowed existing self-
bonds to remain in effect, and an additional 16 states still maintain 
the option to utilize self-bonding under state law. For example, 
Virginia allowed the Justice Group to maintain its self-bonds. In 
return, the Justice Group has flouted reclamation requirements with 
impunity, aware that the regulator cannot afford to fully enforce the 
law out of fear of precipitating abandonment of these unbonded sites.
---------------------------------------------------------------------------
    \12\ Macey, J. ``Bankruptcy as Bailout.''
---------------------------------------------------------------------------
D. OSMRE and state regulators are failing to enforce reclamation 
        requirements, magnifying the reclamation burden when those 
        mines are abandoned

    SMCRA's reclamation requirements are being implemented and enforced 
by OSMRE and state regulators in a manner that makes it likely 
significant reclamation work will remain outstanding when permits are 
abandoned.
    Although SMCRA requires ``contemporaneous reclamation,'' in 
practice OSMRE and state regulators have allowed operators to focus on 
coal removal at the expense of reclamation. But once all of the coal 
has been removed, operators have an incentive to move their resources 
elsewhere. For example, in West Virginia, Brooks Run Mining's Seven 
Pines mine is a large mountaintop removal strip mine. According to West 
Virginia inspection reports, the number of disturbed and reclaimed 
acres at the site have not changed since September 2018. In December 
2020, the West Virginia regulator cited the mine for failing to conduct 
contemporaneous reclamation.\13\ Local communities feared that the 
significant drop in the price of coal at that time meant that the mine 
would likely be abandoned. The company appeared to have pulled all 
resources from the site, and even allowed its Clean Water Act discharge 
permit to lapse. Then, when coal prices temporarily rebounded in 2022, 
the company resumed mining. According to coal production records from 
the West Virginia Office of Miners' Health, the mine produced 261,430 
tons of coal in 2022, making it the 16th highest producing mine out of 
the 83 mines with any coal production that year.\14\ But the mine still 
did not conduct any reclamation, despite the influx of revenue and the 
generation of spoil material. Instead, in April 2023 the West Virginia 
mine regulator conducted a flyover of the mine site, reporting 
extensive areas of exposed highwall.\15\ The regulator again cited the 
company in August 2023 for failing to conduct the required reclamation, 
stating ``NOV 41 has been running for more than 2.5 years and permittee 
has had ample time and has had sufficient excess material to fully 
backfill and grade the `Apple Core' area.'' \16\ Now that coal prices 
have dropped, the history of violations and lack of reclamation at this 
site make it unlikely that work will be completed by the operator. This 
example illustrates how, despite the issuance of paper violations by 
the regulator, the coal mining industry understands itself to have free 
rein to maximize profit while ultimately passing reclamation costs on 
to taxpayers and the local community.
---------------------------------------------------------------------------
    \13\ West Virginia Department of Environmental Protection, Notice 
of Violation 41 for permit S201002, Dec. 11, 2020. Available at https:/
/www.sierraclub.org/sites/default/files/2023-11/
WVDEP%20S201002%20NOV%2041%2012-11-2020.pdf
    \14\ West Virginia Office of Miners' Health, CY2022 Annual Report 
and Directory of Mines. Available at https://minesafety.wv.gov/wp-
content/uploads/2023/07/CY-2022-Annual-Report.pdf
    \15\ West Virginia Department of Environmental Protection aerial 
inspection photos for the Brooks Run Seven Pines mine, April 27, 2023. 
Available at https://www.sierraclub.org/sites/default/files/2023-11/
Aerial%20photos%20of%20Seven%20Pines%20mine.pdf
    \16\ West Virginia Department of Environmental Protection, 
Cessation Order for Notice of Violation 87 for permit S201002, August 
14, 2023. Available at https://www.sierraclub.org/sites/default/files/
2023-11/WVDEP%20S201002%20CO%20for%20NOV%2087%208-14-2023.pdf
---------------------------------------------------------------------------
    Regulators are also allowing mine operators to abuse the process 
for placing mines into ``idle'' or ``temporary cessation'' status, and 
are failing to effectively enforce requirements that active mines 
either produce coal or conduct reclamation. In theory, the process for 
allowing mines to be idled or placed into temporary cessation is 
supposed to provide for a temporary pause in operations, for example 
during a short-term drop in coal prices. But this process is regularly 
abused, including by operations with no intent--or ability--to ever 
resume production. The result is mines left in a persistently 
unreclaimed status. The West Virginia audit found twenty-six surface 
mine sites that have been allowed to remain inactive for more than 10 
years, including nine permits that have been inactive for more than 20 
years. At the time of the report, 160 permits, bonded for $72 million, 
were inactive. Out of 100 inactive status applications reviewed, the 
audit found 171 instances where the applicant failed to meet the 
requirements for inactive status, yet the mine was allowed to cease 
operations without reclamation.\17\
---------------------------------------------------------------------------
    \17\ West Virginia Legislative Audit Report, June 2021, at pp. 3-4.
---------------------------------------------------------------------------
    In many cases, mine operators don't even bother to seek or obtain 
formal permission to stop production. As a result, the official permit 
status maintained by the regulator may not reflect the on-the-ground 
reality. Preliminary analysis by Appalachian Citizens' Law Center 
(ACLC) suggests that a large portion of Kentucky's surface coal mines 
have been idled, but nonetheless are still listed as active. ACLC 
examined 126 permits that the state has categorized as actively 
producing coal, but found that nearly 40 percent of them have actually 
had no coal removal since 2020 and have not been moved into reclamation 
status. These permits alone cover nearly 12,000 disturbed acres of 
land.\18\
---------------------------------------------------------------------------
    \18\ Appalachian Citizens' Law Center, ``Functionally Abandoned 
`Active' Surface Mine Permits in Kentucky'' November 2023. Available at 
https://drive.google.com/file/d/11pW0HWHaBiQK 1x5cfvCHzc2a05Qx-Io5/
view.
---------------------------------------------------------------------------
    These paperwork exercises are being used to shield the fact that 
many mines--maybe even the majority of mines--are being permanently 
shut down in an unreclaimed condition. Workers are let go, equipment is 
sold or moved off site, operators have no intention or expectation of 
ever resuming operations. These are abandoned mines. But on paper, they 
continue to be listed as active or just temporarily idled. Regulators 
turn a blind eye, or actively facilitate this practice, because so long 
as these mines are not officially abandoned, the regulators don't need 
to contend with the lack of money to pay for reclamation.
    The failure of OSMRE and state regulators to compel operators to 
complete reclamation, and to accurately track the actual status of 
operations, has made it difficult for the public to understand the 
actual state of the coal industry. One problem is that production data 
is tracked on an independent system that does not align with SMCRA 
permit numbers, so it can be difficult to tell which mines listed as 
active are actually producing. In an effort to close this data gap, 
Members of Congress--including members of this Subcommittee--recently 
submitted letters to the Government Accountability Office (GAO) 
requesting a report compiling information on actual coal production and 
reclamation. Should the GAO agree to conduct this study, full and 
complete participation by OSMRE and state regulators will be critical.
    Even when operators conduct reclamation, OSMRE and other regulators 
often fail to require compliance with SMCRA's reclamation requirements, 
or the applicable requirements prove inadequate and inappropriate. 
OSMRE directly implements SMCRA on certain tribal lands, including on 
Navajo and Hopi land in Arizona where Peabody Energy operated the Black 
Mesa and Kayenta mines for 50 years. Black Mesa closed in 2005 and 
Kayenta in 2019. Peabody's reclamation efforts have been inadequate to 
restore the land and water impacted by its mining. In particular, 
Peabody has failed to repair the damaged Navajo Aquifer, the only 
source of drinking water for the more than 50,000 people living on 
Black Mesa. Rather than use native vegetation adapted to the arid local 
environment of this part of the Southwest, Peabody has been allowed to 
reseed an overwhelming majority of the tens of thousands of disturbed 
acres with non-native Midwestern grass species that will not be viable 
over the long-term. Local residents have repeatedly tried to raise 
these concerns with OSMRE, including asking OSMRE to treat closure of 
the Kayenta mine as a significant permit revision that would allow for 
public participation, local input, and a comprehensive all-of-
government review of reclamation plans that have not been updated in 
more than three decades. Instead, OSMRE has allowed Peabody to delay 
both reclamation and required permit revisions, to the detriment of the 
community. Although Peabody is one of the largest coal mine operators 
in the world, it is subject to the same negative economic forces 
affecting the entire industry. Local residents worry that OSMRE's 
inaction exposes their communities to the risk that Peabody could 
ultimately abandon the sites unreclaimed and with major mine-related 
damage to the region's main aquifer unaddressed.
    These issues of inadequate reclamation and the need for public 
participation are magnified at sites where surety companies have opted 
to complete reclamation in lieu of paying out the face value of bonds. 
In a letter sent to OSMRE in December 2021, Sierra Club and 14 other 
community groups requested that the agency issue a directive clarifying 
public participation rights regarding surety-led reclamation efforts, 
including modifications to the approved reclamation plan, and at bond 
release. To date, OSMRE has provided no substantive response to this 
request.
E. Community health and safety are at stake if OSMRE continues to fail 
        to act

    Our nation has already placed an enormous burden on the communities 
that live in coal producing regions. These communities have seen their 
forests slashed, mountains leveled, streams polluted, and air choked 
with dust, all to subsidize coal-generated power. But at least SMCRA 
promised that at the end of the day the sites would be cleaned up, 
maybe even returned to some other productive use. We are now breaking 
that promise through OSMRE's inaction. Abandoned unreclaimed mine sites 
pose a variety of threats to nearby communities.
    In July 2022, communities in eastern Kentucky experienced 
unprecedented and devastating flooding. Dozens of people died in the 
floods and thousands of homes were destroyed or significantly 
damaged.\19\ Local residents ascribe the severity and destructiveness 
of the flooding to the presence of unreclaimed coal mines on the 
ridgelines directly above the most impacted communities. Unreclaimed 
coal mines contribute to extreme flooding and ancillary effects such as 
landslides due to factors including the absence of vegetation to absorb 
runoff, the instability of soil, and poorly maintained drainage systems 
that fail to capture or redirect runoff. In the aftermath of the 
flooding, local community members filed at least 125 requests for 
inspection with the Kentucky mine regulator, documenting flood-related 
impacts at local mine sites including slides, slips, subsidence, pond 
failure and more. In February 2023, the organization Kentuckians For 
The Commonwealth sent a letter to OSMRE requesting an investigation 
into ``the extent to which the cumulative impact of surface mining, 
past and ongoing, exacerbated the devastating toll of lives, homes, 
businesses and property lost during the flood.'' \20\ The letter also 
requested an investigation into the failure of the Kentucky regulator 
to properly enforce SMCRA prior to the flooding, noting that ``[w]e are 
gravely concerned that incomplete reclamation of inactive mines and 
regulatory failure to enforce contemporaneous reclamation of active 
mines contributed to the devastation of the July 2022 flood.'' OSMRE 
has not responded to the community group's letter.
---------------------------------------------------------------------------
    \19\ Elamroussi, A. and Andone, D. ``Death toll in Kentucky floods 
rises to 28 as area braces for more rain,'' CNN.com, July 31, 2022. 
Available at https://www.cnn.com/2022/07/31/weather/kentucky-
appalachia-flooding-sunday/index.html
    \20\ Giffin, C. ``Did coal mining play a role in 2022 Kentucky 
flood deaths? Group wants feds to investigate,'' Louisville Courier 
Journal, Feb. 13, 2023. Available at https://www.courier-journal.com/
story/news/local/2023/02/13/group-wants-federal-investigation-of-coal-
mining-role-in-kentucky-flood-deaths/69890515007/
---------------------------------------------------------------------------
    Some abandoned mines include inadequately secured mine portals 
allowing access to dangerous underground mine works. In 2018, three 
people were trapped for days in a West Virginia mine after entering the 
mine in search of copper and other materials to sell for scrap.\21\ 
Local residents frequently access mine sites when hunting, riding ATVs, 
and engaging in other recreation activities. In Tennessee, OSMRE 
inspection reports for a mine operated by Kopper Glo have repeatedly 
noted the presence of open mine portals. A March 2023 report noted that 
``[t]he fence at the entrance to the face-up area has been cut and the 
gate is open. Buildings have been removed from the site. Tipple remains 
in the pit area. Portals are open. There is non-coal waste throughout 
the permit that needs to be disposed of. The gate was open at time of 
inspection.'' \22\ Several months later, a June report for the same 
mine noted ``Mine Portals are exposed and there are signs of vandalism 
at the entries. Fencing and barricades were installed at mine openings 
when active operations ceased. Access to the site was also restricted 
with fencing and locked gate. The gate was cut and not replaced. The 
fencing and barricades at mine openings have been removed or 
vandalized. There are signs of 3rd party disturbance at the mine 
openings.'' \23\ Despite these clear signs of abandonment, and the 
documented presence of dangerous open mine portals, the mine was listed 
as ``active'' on these inspection reports. Even more shocking, OSMRE 
approved a permit renewal for the mine site in April 2023, three-and-a-
half years after the renewal application had been filed, and even after 
the March inspection clearly showed the site to be abandoned.
---------------------------------------------------------------------------
    \21\ Holcombe, M., ``They went into an abandoned mine to steal 
copper, police say. Then they got trapped,'' CNN.com, Dec. 13, 2018. 
Available at https://www.cnn.com/2018/12/12/us/west-virginia-abandoned-
mine-trapped/index.html
    \22\ OSMRE Inspection Report, Permit 3229, March 14, 2023. 
Available at https://www.sierraclub.org/sites/default/files/2023-11/
3229%20Q2%20FY23%20Complete%203.14.2023.pdf
    \23\ OSMRE Inspection Report, Permit 3229, June 21, 2023. Available 
at https://www.sierraclub.org/sites/default/files/2023-11/
3229%20Q3%20FY23%20Complete%20followup 
%20FTACO%20openings%20NOV%20liability%206.21.2023.pdf
---------------------------------------------------------------------------
    Unreclaimed surface coal mines often include thousands of feet--
sometimes miles--of exposed highwalls. A highwall is the unexcavated 
face of exposed coal and overburden--essentially an artificial cliff 
that may be dozens of feet high. Highwalls pose hazards to anyone 
accessing the site, whether from the risk of falls from the top, or 
being struck by falling or collapsing materials at the bottom. The Mine 
Safety and Health Administration has issued a safety alert for 
highwalls.\24\ In addition, highwalls can serve as sources of mining 
pollution, as water that has seeped through pollutant-bearing materials 
may be discharged directly to surface streams without passing through 
soil that can sometimes serve as a filter to remove certain pollutants. 
Mine operators are supposed to minimize the length of exposed highwall, 
using newly mined material to reclaim previously mined areas. In 
practice, operators often prefer to dump this spoil material into 
valley fills rather than reclaim highwalls.
---------------------------------------------------------------------------
    \24\ U.S. Dept. of Labor, Mine Safety and Health Admin., 
``Highwall--Safety Alert.'' Available at https://www.msha.gov/highwall-
safety-alert
---------------------------------------------------------------------------
    Abandoned mines also serve as sources of water pollution. Surface 
coal mines, particularly in Appalachia, dispose of excess mine spoil by 
dumping it into streams as valley fills. Once in place, the water 
moving through this material picks up pollutants and carries them 
downstream. This water may require active treatment for years in order 
to meet water quality standards. When mines are abandoned, they stop 
operating treatment systems. Regulators may also seek to avoid the 
costs of water treatment, particularly if they failed to require 
adequate bonding. A series of citizen enforcement suits in West 
Virginia finally compelled the state mine regulator to secure Clean 
Water Act permits for bond forfeiture reclamation sites.
H. OSMRE must adapt to the new reality that declining coal production 
        has rendered many traditional enforcement tools ineffective

    One challenge for OSMRE, which the agency has yet to confront, is 
that some of the enforcement tools provided in SMCRA presume a 
widespread ongoing interest on the part of operators in securing new 
permits and in conducting new coal removal. For example, SMCRA requires 
that mine operators with unabated violations be placed on an 
``Applicant/Violator System'' list, and prohibits regulators from 
issuing permits to operators appearing on this list. This program is 
completely ineffective as a deterrent in the current moment when the 
majority of operators have no intention to acquire any additional 
permits.
    Another potentially powerful tool provided under SMCRA is the 
ability of regulators to initiate bond forfeiture at operations that 
have ceased complying with SMCRA. By requiring financial assurances 
adequate for the regulator to complete reclamation, SMCRA was supposed 
to free regulators to utilize bond forfeiture whenever necessary. In 
practice, OSMRE and state regulators have proven extremely hesitant to 
actually invoke this power. Because they know that bonding is 
inadequate, regulators have become reluctant to invoke bond forfeiture. 
The example of West Virginia's approach to ERP, discussed above, 
provides one such example of the lengths to which regulators will go to 
avoid using bond forfeiture. Another example comes from Kentucky, 
where, as of June 2022--more than a year after conclusion of the 
Blackjewel and Cambrian bankruptcies--at least 136 permits remained in 
the name of these and other dissolved entities. However, the Kentucky 
regulator had started bond forfeiture proceedings for only 37 of those 
permits. Although the regulator may be hoping that some other operator 
will come along who wants to resume operations at those sites, 100 
permits had no active permit transfer application.
    OSMRE has missed multiple opportunities to appear in mine operator 
bankruptcy proceedings. This absence has allowed funds that should have 
gone to site reclamation--or even site maintenance--to instead go to 
hedge funds and other creditors. The lack of participation by OSMRE or 
other mine regulators also allows unreclaimed mines to be transferred 
to under-financed operators who lack the means to complete reclamation, 
or who are prohibited from receiving new permits. During the 2019 
Cambrian bankruptcy, neither OSMRE nor any state regulator objected to 
the sale of permits to three coal companies whose listing on OSMRE's 
Applicant/ Violator System should have made them ineligible to hold the 
permits.
II. There is still an opportunity for OSMRE to take needed actions, but 
        only if the agency acknowledges the reality of declining 
        production and the need for a changed approach

    It is not too late for OSMRE to act. There is still money in the 
coal industry that can and must be put towards cleaning up these sites 
and protecting nearby communities. But first, regulators must 
acknowledge the reality that the coal mining industry is, and will 
continue to be, in decline, and consequently that the approaches that 
worked in 2008 will not work today. This means stopping reliance on 
bond pools and other financial assurance devices premised on an 
assumption of overall financial health within the industry. It also 
means rigorously enforcing contemporaneous reclamation requirements.
    Most importantly, OSMRE must use its oversight authority to compile 
information on which mine sites are actually producing coal, which are 
actively conducting reclamation, and which have been functionally 
abandoned and pose the greatest risk of passing significant reclamation 
costs on to the public. To achieve this, OSMRE should require states to 
provide permit-specific quarterly data regarding the number of acres at 
each site that require backfilling and regrading, and that require 
revegetation. OSMRE should also require states to provide data on the 
amount of coal produced from each SMCRA permit. Cross-referencing this 
data will highlight which permits are at the greatest risk of 
abandonment. OSMRE should make this data publicly available so that 
regulators and the public may easily understand trends, and risks, in 
coal production and mine reclamation.
    OSMRE must also subject each state bond pool to a rigorous stress 
test based not on backward-looking forfeiture rates, but on a 
comparison of the funds currently in the bond pool against actual 
projected reclamation costs. At a minimum, OSMRE must evaluate the cost 
of completing reclamation at every mine in the state that hasn't 
produced coal in more than a year. This will give a more accurate 
estimate of the future burden on the bond pool. Similarly, OSMRE must 
evaluate the financial health of surety bond providers, including their 
total exposure to the coal mining industry. Sureties who have already 
provided bonding to coal mine operators far in excess of their cash 
reserves should be presumed to be at very high risk of defaulting and 
not being able to pay out bond amounts when called upon.
    In the meantime, OSMRE must advise state regulators to stop 
allowing new permits to participate in bond pools. When you find 
yourself in a hole, the first thing to do is stop digging. There are 
still a small number of permits being issued, primarily for operations 
that mine metallurgical or steel-making coal. These new mines must be 
required to post full-cost bonds or other financial assurances. 
Similarly, any time a permit is transferred, regulators must evaluate 
the adequacy of the bond. Where a permit set to be transferred is 
currently participating in a bond pool, the transferee must be required 
to provide a full-cost replacement bond. Where a mine operator seeks to 
use a third-party surety bond, regulators must look at how many bonds 
the surety has already issued for other coal mines, and must not accept 
bonds from companies that are overexposed to the coal mining industry.
    OSMRE must also clarify to state regulators how they should 
interpret and apply SMCRA's statutory requirement of ``contemporaneous 
reclamation.'' \25\ Ensuring that the smallest possible area is left 
disturbed and unreclaimed at any given time is the best way for 
regulators to minimize reclamation costs that may eventually be passed 
on to the public.
---------------------------------------------------------------------------
    \25\ 30 U.S.C. Sec. 1202(3) (one purpose of SMCRA is to ``assure 
that adequate procedures are undertaken to reclaim surface areas as 
contemporaneously as possible with the surface coal mining 
operations.''); 30 U.S.C. Sec. 1265(b)(16) (requiring permittees to 
``insure that all reclamation efforts proceed in an environmentally 
sound manner and as contemporaneously as practicable with surface coal 
mining operations . . .'').
---------------------------------------------------------------------------
    One common objection to implementation of these approaches--
tightening bonding requirements and enforcing existing reclamation 
requirements--is that they will increase costs on mine operators, and 
thereby accelerate or precipitate mine abandonments. What these 
objections fail to grasp is that any mine that may be abandoned as a 
result of such an action has already been functionally abandoned. These 
are the ``zombie'' mines that appear on paper to be active, but that in 
reality have ceased all operations, including reclamation. Maintaining 
the status quo will do nothing to promote reclamation of these sites. 
The reality is that the operators of these mines have neither the 
intention nor the means to complete reclamation; and thus the sooner 
the permits become the responsibility of the regulators, the sooner 
surrounding communities will be freed from exposure to pollution and 
the threat of flooding. Furthermore, enforcement of the bonding and 
reclamation requirements does not constitute imposition of some new 
regulatory scheme; operators committed to complying with SMCRA--
including its reclamation and bonding requirements--when they accepted 
their permits.
III. The AMLER program is an important source of funding for 
        communities impacted by coal mining and abandoned mine lands

    The Abandoned Mine Land Economic Revitalization Program was 
established in 2016 to return pre-1977 abandoned mine lands (AMLs) to 
productive use through economic and community development. The AMLER 
Program provides grants to six Appalachian states and three Indian 
Tribes with the highest amount of unfunded AML sites. The AMLER program 
funds projects that benefit local communities and provide ongoing 
economic benefits through development of new productive uses for former 
mine land.
    To the extent there have been delays in implementation of AMLER 
funding, these delays are largely attributable to a lack of state staff 
time to assist project applications. Generally speaking, administration 
of AMLER grants go through four phases before completion: application, 
vetting, planning, and implementation. An evaluation of the AMLER 
program published in June 2022 by Downstream Strategies concluded that 
the greatest delays in AMLER implementation occur during the planning 
phase, that the most significant delays occurred in projects with 
budgets exceeding $5 million, that the duration of the planning phase 
varied state by state, and that the states with the shortest planning 
stages were those where state agency staff played the most active 
role.\26\ The report also concluded that the OSMRE vetting phase was 
comparatively short, and not the primary driver of delays in the 
overall project development and approval process.
---------------------------------------------------------------------------
    \26\ Downstream Strategies, ``Got Five On It: Economic Impacts and 
Observations of the Abandoned Mine Land Economic Revitalization Program 
Five Years In,'' June 7, 2022. Available at https://appvoices.org/
resources/reports/GotFiveOnIt-FINAL-6-7-2022.pdf
---------------------------------------------------------------------------
    While it is important to promote AML site remediation and to find 
new productive uses for AML sites, the greatest benefit to coal 
producing communities will come from preventing the creation of any new 
abandoned mine lands.
IV. Conclusion

    More than 47 years after Congress passed SMCRA, states have still 
not eliminated the inventory of unreclaimed abandoned mine land sites 
already in existence at that time. We cannot afford to add to that 
inventory. Without prompt action from OSMRE, mine producing regions 
will see a return to the bad old days of the 1970s. Left to its own 
devices, the coal mining industry will continue to seek to cut costs by 
burdening local communities with unreclaimed mine sites, and passing 
reclamation costs on to taxpayers. And state regulators will continue 
to turn a blind eye to these issues in an effort to delay for as long 
as possible the point where unfunded reclamation costs will hit their 
balance sheets. There is a narrowing window for OSMRE to take action. 
First, the agency must provide a clear-eyed assessment of the number of 
mines neither producing coal nor conducting reclamation. Next, it must 
acknowledge which elements of SMCRA are no longer effective, and must 
utilize the remaining tools to their fullest extent. Only that way can 
we avoid the return of dangerous, polluting, economically unproductive 
abandoned mine lands.

                                 ______
                                 

    Questions Submitted for the Record to Mr. Peter Morgan, Senior 
                         Attorney, Sierra Club

             Questions Submitted by Representative Grijalva

    Question 1. During the hearing, OSMRE's proposed Ten-Day Notice 
rulemaking was criticized as creating uncertainty and federal 
overreach. How would you respond to these criticisms of the rulemaking?

    Answer. The ten-day notice (``TDN'') provisions of the Surface 
Mining Control and Reclamation Act (``SMCRA'') provide a critical tool 
for communities suffering from the negative effects of coal mining to 
seek federal oversight of ongoing violations unaddressed or 
inadequately addressed by state regulators. Unfortunately, these 
protections were significantly weakened under a misguided and illegal 
Trump Administration rulemaking. OSMRE's proposed rule--published in 
proposed form in the Federal Register (88 Fed. Reg. 24944 (April 25, 
2023)) and slated for finalization by February 2024--removes 
unnecessary and inappropriate barriers to public participation imposed 
by that 2020 rulemaking and restores policies and procedures that had 
been in place for decades.
    The TDN process was intended by Congress as the communication 
mechanism by which OSMRE--prior to engaging in oversight enforcement 
expressly authorized under the SMCRA statute--would provide an 
opportunity for state regulators to respond to citizen information 
regarding potential violations of law. Congress bounded OSMRE's 
deference in order to assure that in the absence of a timely state 
response, federal inspection would occur so as to assure that potential 
violations would be addressed and not worsen. The Trump Administration 
changes skewed the process and would have allowed systemic on-the-
ground environmental problems to continue unaddressed over an 
indefinite period.

    OSMRE's proposed rule restores the proper framework of cooperative 
federalism and supports communities negatively impacted by coal mining 
in the following ways:

     The proposed rule properly eliminates the unnecessary, 
            burdensome, and unsupported change from the 2020 Rule that 
            allowed OSMRE and state regulators to engage in an open-
            ended process of information gathering prior to OSMRE 
            issuing a ten-day notice letter to the state regulator. 
            This ``pre-review review'' offered a means by which state 
            regulators and OSMRE could delay or prevent OSMRE's 
            response to properly filed community-member complaints. 
            Under OSMRE's proposed rule, OSMRE's threshold ``reason to 
            believe'' analysis would be limited to consulting its own 
            files and publicly accessible electronic databases in 
            addition to the information provided in the complaint. By 
            once again narrowing the sources of information for OSMRE's 
            initial review, the proposed rule will avoid the delays in 
            processing citizen complaints that OSMRE has recognized was 
            created under the 2020 Rule, and will ensure that 
            complaints are promptly processed and acted upon by OSMRE.
     The proposed rule also corrects an additional significant 
            error from the 2020 rule: the elimination of violations 
            relating to permit defects by state regulators from the 
            categories of violations addressable under the TDN process. 
            This approach is consistent with congressional intent and 
            long-standing OSMRE practice. Under the proposed rule, 
            OSMRE will once again be able to address case-by-case 
            violations arising from permit defects promptly via the TDN 
            process, while also recognizing that underlying 
            programmatic issues may then need to be further addressed 
            and resolved via SMCRA's separate Part 733 process for 
            reviewing state programs' compliance with the federal 
            program. This change will allow OSMRE to respond promptly 
            to alleged violations that have the potential to create 
            significant, and potentially permanent, on-the-ground 
            impacts.

     OSMRE's proposed rule also gives effect to SMCRA's promise 
            of robust community participation by eliminating 
            unnecessary hurdles to such participation imposed by the 
            2020 Rule. Most notably, the proposed rule requires OSMRE 
            to treat any citizen complaint as a request for a Federal 
            inspection whether or not certain ``magic words'' are used, 
            and ensures that community members who file complaints can 
            accompany OSMRE inspectors on site inspections.

    OSMRE retains critical oversight functions in states that have 
secured primacy, and the proposed Ten-Day Notice Rule ensures that 
those functions will be carried out with the robust community 
participation required by SMCRA.

          Questions Submitted by Representative Ocasio-Cortez

    Question 1. Do you believe the Office of Surface Mining Reclamation 
and Enforcement (OSMRE) has the authority to address today's coal 
mining reclamation crisis, or does SMCRA need to be updated to reflect 
today's industry?

    Answer. SMCRA as currently drafted provides OSMRE with tools and 
authority to begin to address the reclamation and bonding crisis. To 
date, OSMRE has not made adequate use of those existing authorities. 
However, in order for OSMRE to fully address the crisis, additional 
changes must be made to the SMCRA statute.

    OSMRE must immediately take the following actions under its 
existing SMCRA authority: First, OSMRE must collect information on mine 
production and reclamation status for all coal mines to identify the 
full set of functionally abandoned ``zombie'' permits, and must make 
this information available to the public. Second, OSMRE must conduct 
stress-tests for all state bond pools and for those surety bond 
providers that have issued the majority of coal mine reclamation surety 
bonds. These stress-tests must be based on projections of future mine 
abandonments based on forecasted trends in coal production, not on 
historic rates of mine abandonment during periods of time when demand 
for coal was still high. Third, OSMRE must ensure that states are 
rigorously enforcing SMCRA's contemporaneous reclamation requirements 
to ensure every mine minimizes the disturbed, unreclaimed area. 
Finally, OSMRE must reinstate the policy advisory on self-bonding 
originally issued in August 2016.

    Even if OSMRE were to immediately take these actions, fully 
addressing the current coal mine reclamation and bonding crisis will 
require additional changes to the federal SMCRA statute, and to state 
programs to bring them in line with the amended fFederal program. 
Legislation is needed to amend SMCRA to require better and more timely 
assessments of bond adequacy and reclamation progress, including by 
requiring regulators to reconsider bond adequacy at permit renewal and 
permit transfer. SMCRA must also be amended to require that mine 
operation and reclamation plans assess the potential impacts of 
unplanned mine closure on the cost of reclamation, including whether 
sufficient spoil exists for reclamation in the event of premature 
cessation of coal production activities. SMCRA must also be amended to 
eliminate self-bonding, and to end the use of bond pools by prohibiting 
the entry of any new permits into existing bond pools and providing a 
process for states to transition permits out of existing bond pools. 
Finally, SMCRA must be amended to authorize--and encourage the use of--
new financial assurance approaches better aligned with the current 
reality, such as sinking trust funds, and funding mechanisms for 
longterm water treatment.
          Questions Submitted by Representative Kamlager-Dove

    Question 1. A 2021 report from the nonprofit Appalachian Voices, 
``Repairing the Damage: The costs of delaying reclamation at modem-era 
mines,'' detailed the gap in coverage of bonds and the outstanding 
reclamation work that needs to be done. Can you elaborate on the scale 
of the bonding and reclamation issue, and what will happen if reforms 
are not made soon?

    Answer. The ``Repairing the Damage'' report from Appalachian Voices 
\1\ evaluated outstanding reclamation obligations in seven eastern 
states (Alabama, Tennessee, Virginia, Kentucky, West Virginia, Ohio, 
and Pennsylvania), estimated the total cost to complete that 
reclamation, and compared that cost estimate to the available bonding. 
Using data from OSMRE and state regulators, the report found that 
across those seven states, a total of 633,000 acres were partially or 
completely unreclaimed (426,000 acres partially reclaimed, 207,000 
acres completely unreclaimed). The report then estimated the total cost 
to complete that reclamation at between $7.5 billion to $9.8 billion. 
Meanwhile, total bonding for those permits totaled only $3.8 billion.
---------------------------------------------------------------------------
    \1\ https://appvoices.org/resources/
RepairingTheDamage_ReclamationAtModernMines.pdf
---------------------------------------------------------------------------
    Those conclusions are completely consistent with data from other 
sources. In the recent bankruptcy proceedings for Blackjewel, LLC, the 
Kentucky coal mine regulator--the Kentucky Energy and Environment 
Cabinet--looked at 20% of the permits held by the company in that state 
and found that for the 33 permits studied the actual reclamation cost 
would exceed the bonded amount by $28 million. In West Virginia, a 
recent legislative audit report found that individual bonds in the 
state cover only 10 percent of projected reclamation costs. When one of 
the largest mine operators in the state--ERP Compliant Fuels--became 
insolvent in 2020, the state placed the company into a special 
receivership in order to avoid having to revoke the company's permits 
and forfeit its inadequate bonds. The legislative audit found that the 
special receivership held 91 permits for the company, and that those 
permits were backed by $83 million in reclamation surety bonds. Based 
on the 10 percent coverage estimate, that means the total reclamation 
liability for those mines could be as high as $830 million. The West 
Virginia bond pool contains approximately $36 million, with another 
approximately $150 million in a separate fund for water treatment, 
meaning the outstanding reclamation obligations for just the ERP 
permits would easily wipe out the entire bond pool. The most recent 
actuarial assessment of Ohio's bond pool found that the pool currently 
contains $26.4 million. The assessment report concluded that the 
failure of any of the five largest coal mine operators in the state 
would wipe out that bond pool, because their reclamation liabilities 
ranged from $31.6 million to $187 million, with an average liability of 
$73.3 million.
    The consequences and implications of these massive bonding 
shortfalls are significant. Most obviously, there is the risk that 
hundreds of millions of dollars in reclamation costs could be passed on 
to taxpayers. Even then, it would likely take decades for government 
regulators to complete the reclamation. More than 46 years after 
Congress passed SMCRA to address the then-existing backlog of abandoned 
unreclaimed mines, many of those mines still remain unreclaimed. We 
cannot allow that shameful story to repeat, particularly because 
unreclaimed modern coal mines pose serious threats to nearby 
communities in the form of air and water pollution, on-site hazards, 
and elevated risks of flooding and landslides. In addition, when 
reclamation bonding is inadequate it gives mine operators enormous 
leverage over regulators. Regulators become hesitant to enforce the 
law--including laws meant to protect human health and the environment--
out of fear that doing so could prompt an operator to abandon its 
under-bonded mines and make them the responsibility of the regulator.

    Question 2. Nearly three years into the Biden Administration, the 
agency that oversees and enforces reclamation of active and abandoned 
coal mines, the Office of Surface Mining Reclamation and Enforcement 
(OSMRE), still does not have even a nominee for Director. What is the 
impact of not having a Senate-confirmed Director of OSMRE?

    Answer. The dramatic changes currently affecting the coal mining 
industry--most notably the significant and permanent decline in demand 
for coal, and increasing numbers of mine abandonments--require a 
radical change in approach from OSMRE. The drop in coal production and 
lack of interest in new permits, and resulting threats to reclamation 
and bonding programs, mean that OSMRE and state regulators cannot 
continue to implement SMCRA according to the status quo that has 
prevailed for the preceding 46 years. Instead, OSMRE must immediately 
implement a major course correction that realigns the agency with the 
new reality. Such a change in agency mission and approach requires the 
type of leadership best provided by an administration-nominated and 
Senate-confirmed Director. It is too much to ask of career staff to 
initiate and oversee the required change in approach. The Biden 
Administration should prioritize nominating and securing confirmation 
for an OSMRE director who acknowledges that coal mining is in permanent 
decline, that mines across the country are under-bonded and 
inadequately reclaimed, and that there is an enormous risk of mines 
being abandoned in an unreclaimed condition that threatens nearby 
communities.

    Question 3. If the Committee takes one thing away from this 
hearing, what would you want that to be?

    Answer. The main thing I hope the members of the Subcommittee will 
take away from my testimony is that we are experiencing a coal mine 
reclamation and bonding crisis driven by the permanent decline in 
demand for coal, and that there is a narrowing window for OSMRE and 
Congress to act to address the crisis and protect impacted communities.
    The crisis is here. As demand for coal decreases, so too does coal 
production, which means less revenue coming into the coal mining 
industry. Those mines that are still operating are choosing to put 
their limited resources toward coal removal rather than reclamation. 
Hundreds of mines have already been abandoned unreclaimed, with workers 
laid off and equipment removed. But poor recordkeeping requirements, 
combined with regulator complacency, have conspired to hide the true 
number of these functionally abandoned ``zombie'' mines. The negative 
impacts from these zombie mines--in the form of air and water 
pollution, onsite hazards, and increased risk of flooding and 
landslides--will continue to grow.
    OSMRE can still act to address this crisis. Specifically, OSMRE 
must provide a clear-eyed assessment of which mines are no longer 
producing coal nor conducting reclamation. This will alert nearby 
communities to sources of pollution and other threats, and will allow 
regulators and Congress to accurately assess the scale of the problem 
and the need for immediate action. OSMRE must also acknowledge which 
elements of SMCRA are no longer effective, and must utilize the 
remaining tools to their fullest extent.
    Congress, too, must act. Congress must strengthen SMCRA to 
eliminate harmful provisions such as self-bonding, require additional 
permit reviews to better assess bond adequacy and reclamation progress, 
and authorize--and encourage the use of--new financial assurance 
approaches better aligned with the current reality.
    Only through this sort of quick and decisive action that recognizes 
and addresses the present crisis can we avoid the return of dangerous, 
polluting, economically unproductive abandoned mine lands.

                                 ______
                                 

    Mr. Stauber. Thank you, Mr. Morgan.
    Our final witness today is Mr. Kyle Wendtland. He is 
Administrator of the Wyoming Department of Environmental 
Quality, Land Quality Division, out of Cheyenne, Wyoming.
    Mr. Wendtland, you are now recognized for 5 minutes.

STATEMENT OF KYLE WENDTLAND, ADMINISTRATOR, WYOMING DEPARTMENT 
  OF ENVIRONMENTAL QUALITY, LAND QUALITY DIVISION, CHEYENNE, 
                            WYOMING

    Mr. Wendtland. Good morning, Mr. Chairman, Ranking Member 
Ocasio-Cortez, and members of the House Subcommittee. My name 
is Kyle J. Wendtland, and I am the Administrator of the Wyoming 
Department of Environmental Quality, Land Quality Division. My 
testimony today will focus on the Title V coal program.
    Wyoming surface coal mines are world-class operations 
nationally and internationally in safety, size, scale, 
production, reclamation, and environmental performance. And 
these mines contribute the greatest portion of funding to the 
fee-based National Coal Abandoned Mine Land Cleanup program and 
black lung compensation.
    If I were to classify the relationship between Wyoming and 
OSMRE, it would fall into three categories. These include an 
agency that is paralyzed in its ability to make timely, 
efficient, and prioritized decisions; mistrust within the OSM 
organization itself; and failure to conduct meaningful 
engagement with its state partners.
    First, I will address the paralyzed aspect in the context 
of Federal mine plan approvals. Even under the most aggressive 
energy transition projections, the need for reliable and 
affordable Wyoming thermal coal baseload power will continue 
well into the 2040 to 2050 time frame, and coal has other 
beneficial uses such as coal-to-fiber, liquids, and rare earth 
mineral extraction. Carbon sequestration programs such as 
Carbon Safe and the Inflation Reduction Act 45Q may further 
extend the need to utilize Wyoming coal reserves.
    Deputy Director Owens testified to this Committee on May 
16, 2023, that the proposed Fiscal Year 2024 budget focuses on 
funding OSMRE's core mission responsibilities and supporting 
the highest priority efforts and activities. However, Wyoming 
continues to see unprecedented Federal mine plan approval 
delays at OSMRE headquarters.
    As noted in my written testimony, OSMRE has changed its 
NEPA policy three times, and taken 3 years to determine that 
the Black Butte Federal Mine Plan must now restart the NEPA 
process and conduct an EIS.
    Wyoming Governor Gordon sent a letter on April 25, 2023 to 
Secretary of the Interior Deb Haaland, and the Wyoming 
Congressional Delegation has reached out to OSMRE outlining the 
serious concern over the delays in the approval of the Black 
Butte Federal Mine Plan. The response has been and continues to 
be deafening silence from OSMRE headquarters since July 2023.
    Review of the Black Butte timeline provided in my written 
testimony underscores that the approval process through OSMRE 
is broken. The process has become politicized, and the NEPA 
process has become weaponized. The end result is costly 
permitting delays, increased land disturbance and mining costs, 
delayed reclamation, fuel supply reliability concerns for the 
nation's baseload power, and lost revenue to Federal and state 
governments.
    Now I will address OSMRE delays in the approval of state 
program amendments and mistrust within OSMRE. Wyoming and other 
states continue to see unconscionable delays in the approval of 
state program amendments. A state program amendment is public 
noticed and receives legal review from a state Attorney General 
and a regional technical staff and solicitors prior to OSMRE 
headquarters' final review and approval.
    OSMRE's inability to approve a state rule change is best 
exampled by the Wyoming Wind Turbine Blade Disposal Program 
amendment. The University of Cambridge estimates that there 
will be 43 million tons of blades needing to be disposed of by 
2050. The Wyoming Turbine Blade Program amendment received no 
public comments at the state or Federal level, and has been 
endorsed by the coal and wind industries as a responsible and 
sustainable solution to the disposal of these blades. Approval 
of this program amendment is a clear win for everyone. However, 
OSMRE headquarters has second-guessed and continues to mistrust 
its regional technical staff and solicitors, and has held this 
program amendment for 843 days with no sign of action.
    The Interstate Mining Compact Commission has also engaged 
OSMRE on this issue. OSMRE staff agreed to provide IMCC with 
the agency program amendment status sheet for all states, and 
after 356 days IMCC has still not received this information.
    It is clear that OSMRE does not trust the reviews provided 
by the state, its regional staff and solicitors, and Wyoming 
respectfully requests that OSMRE begin working cooperatively 
with Wyoming to address the major concerns I have highlighted 
in my testimony for the Committee today.
    I would like to thank the Committee for the opportunity to 
present this information, and I would be happy to stand for 
questions.

    [The prepared statement of Mr. Wendtland follows:]
    Prepared Statement of Kyle J. Wendtland, Wyoming Department of 
       Environmental Quality, Land Quality Division Administrator

    Good Morning Chairman Stauber, Ranking Member Ocasio-Cortez, and 
members of the House Subcommittee on Energy and Mineral Resources. My 
name is Kyle J. Wendtland and I am the Administrator of the Wyoming 
Department of Environmental Quality Land Quality Division (WDEQ LQD).
    I am here to testify on Examining the Biden Administration's 
Abandoned Mine Lands and Active Mining Program. More specifically I 
will address the Office of Surface Mining Reclamation and Enforcement 
(OSMRE) Title V program Federal Mine Plan Approvals (FMP), National 
Environmental Policy Act (NEPA) reviews, Program Amendment (PA) 
approvals, Revisions to the 2020 Ten Day Notice and proposed Dam Safety 
rules, and Title V funding grants.
Wyoming Coal Background:

    The Surface Mining Control and Reclamation Act (SMCRA) was adopted 
by Congress in 1977 and Wyoming's Title V coal program was approved on 
November 26, 1980. Wyoming has 43 years of experience in successful 
coal leasing, mine permitting, reclamation, and successful 
implementation of the Title V and Title IV SMCRA coal programs. 
Wyoming's surface coal mines are unique nationally and internationally 
in both size and scale. Wyoming currently manages 25 active coal 
permits, and these coal operations are some of the most efficient, low-
cost operations in the nation. These mines boast world class safety, 
reclamation, and environmental performance records. In 2022, Wyoming 
mines produced 41% of the nation's coal (244,265,803 tons) used for 
reliable and affordable baseload thermal energy across the nation. Coal 
contributed $563 million dollars in taxes, royalties, and fees to 
Wyoming's economy in 2022. In addition, Lease Bonus Bids have provided 
additional revenue to the nation and Wyoming. Since 2003, approximately 
$4.5 billion has been paid in Bonus Bids to the federal and state 
governments. These funds are split between the federal and state 
government, and Wyoming has received approximately $2.3 billion in 
Bonus Bid funding for school capital construction since 2003. The 
Wyoming coal mines also contribute the greatest portion of fee funding 
for the national coal Abandoned Mine Land (AML) cleanup program, and 
Black Lung compensation.
OSMRE Federal Mine Plan Amendment Approvals and NEPA:

    Wyoming has embraced an all of the above energy strategy. The state 
recognizes both the need for and value in having a diverse energy 
production portfolio. This strategy recognizes the clear and continued 
need for coal produced from Wyoming mines. The coal produced in Wyoming 
has and will continue to power the nation's baseload thermal energy 
production for decades to come. Even under the most aggressive energy 
transition predictions, the need for reliable and affordable thermal 
coal baseload power will continue well into the 2040 to 2050 timeframe. 
The need for the nation's security and economy will demand that the 
power grid remain reliable, stable, affordable, and require the use of 
dispatchable coal fired power.
    It should also be noted, that although Wyoming coal may be 
initially leased for thermal power generation, other beneficial uses 
are developing. Coal to fiber, coal to liquids, rare earth mineral 
extraction, bio char, etc. are all becoming viable alternative uses for 
coal. In addition to these alternative uses, carbon sequestration 
programs such as Carbon Safe, and the Inflation Reduction Act (IRA) 45Q 
program may further extend the use of thermal coal. Wyoming has Class 
VI injection well primacy from the Environmental Protection Agency 
(EPA), and is a leader in CCS/CCUS law, policy, regulation and 
projects. More than a decade ago, the Wyoming Legislature separately 
enacted a statutory framework for CCS and CCUS projects, including 
permitting. These developing markets for Wyoming coal further 
underscore the need for OSMRE to continue to approve Federal Mine Plans 
in a timely and efficient manner.
    The OSMRE Deputy Director Ms. Glenda H. Owens testified to this 
committee on May 16, 2023 that ``the proposed FY 2024 budget focuses on 
funding OSMRE's core mission responsibilities and supporting the 
highest priority efforts and activities''. As noted in the discussion 
above, coal is and will continue to be needed now and into the future 
as the country balances the need for affordable, reliable, and 
dispatchable energy as power generation transitions are made. The 
continued approval of mining the nation's coal reserves in a 
responsible manner to ensure reliability and affordability of 
electricity is clearly one of the core and high priority functions of 
the OSMRE. However, OSMRE is not providing support for or approving 
these core activities in a timely, predictable, and prioritized manner.
    Wyoming continues to see Federal Mine Plan (FMP) approval delays at 
the OSMRE headquarters level. The state is currently waiting for two 
FMP approvals. To provide the committee with context and foundation it 
is important to first outline the process of amending a coal lease to 
an existing mine permit. Prior to OSMRE review of a FMP, the coal 
leasing action and permit application has been through multiple legal, 
regulatory, and NEPA reviews. The Bureau of Land Management (BLM) 
oversees the federal coal leasing activities in Wyoming. The BLM 
conducts a Resource Management Plan (RMP) and NEPA analysis that 
outlines and discloses to the public the coal reserves available for 
lease and issues a Record of Decision (ROD). When a coal lease or 
amendment action is applied for, BLM conducts a separate NEPA analysis 
and ROD on the individual coal lease. Once the operator has 
successfully completed the coal sale process and has ownership of the 
leased coal, a permit amendment is applied for through the WDEQ LQD 
Title V coal program. The permit goes through a rigorous technical 
review and additional public notice in order to complete the state 
permitting process. Upon completion of the state permitting process, 
the amended permit is then sent to OSMRE regional office for oversight 
review. The OSMRE regional office reviews the technical aspects of the 
FMP for compliance with state regulation and subjects the FMP to an 
additional, third NEPA analysis. By the time the amendment package 
reaches OSMRE headquarters for issuance of a Right of Entry Letter 
(REL), the FMP has undergone three NEPA reviews and three legal reviews 
(e.g. the BLM RMP, the Coal Lease EIS, the state permitting process, 
the OSMRE Federal Mine Plan EA/EIS, the state Attorney General and 
federal BLM and OSMRE regional Solicitor legal reviews) and multiple 
public notice and comment periods. In order to best outline the impacts 
of OSMRE's current review process of a FMP, the Black Butte Mine (BBM) 
FMP is a keystone example.

     January 15, 2021: the BBM received approval from WDEQ to 
            amend the existing permit to include the additional coal 
            reserves.

     On February 16, 2021: OSMRE sent BBM a Mine Plan Decision 
            Document questionnaire, and BBM submitted the completed 
            form to OSMRE on February 21, 2021.

     On March 23, 2021: OSMRE notified BBM that the NEPA 
            analysis completed by BLM in 2017 would be sufficient for 
            the project to receive OSMRE approval and no further 
            Environmental Assessment (EA) would be required.

     On April 14, 2021: OSMRE informed the BBM that given 
            changes in the Federal Administration and directive under 
            Executive Order (EO) that further NEPA analysis would now 
            be required. BBM was encouraged to hire a third-party 
            contractor to assist OSMRE with the NEPA process in order 
            to reduce approval time. BBM hired one of the three 
            contractors recommended by OSMRE.

     June-September, 2021: multiple project delays were 
            incurred during this timeframe. The list of reasons noted 
            during bi-weekly meetings included a lack of personnel at 
            OSMRE, additional projects on OSMRE staff work lists, and 
            lost paperwork by OSMRE.

     September 24, 2021: the EA was completed and submitted to 
            OSMRE staff for review and on October 27, 2021 OSMRE region 
            submitted the EA to the regional DOI Solicitor (SOL) for 
            review.

     December 20, 2021: the regional SOL completed review and 
            the EA was sent back to OSMRE staff for review prior to 
            final editing by the third-party contractor.

     February 25, 2022: the EA was provided to the third-party 
            contractor for revisions.

     March 2, 2022: third party contractor completed its 
            responses and edits to the SOL comments and provided the 
            revised EA back to OSMRE. On April 6, 2022 a second round 
            of comments were generated from the SOL and responded to by 
            the BBM third party contractor.

     April 13, 2022: a new timeline was approved by OSMRE for 
            the project. The thirty-day Public Comment Period was 
            scheduled to begin on April 19, 2022.

     April 14, 2022: OSMRE notified BBM and the third-party 
            contractor that OSMRE leadership informed OSMRE region that 
            the Public Comment Period could not begin until April 27, 
            2022. OSMRE further informed BBM that in order to process 
            the MPDD BBM would first need to fill out a Questionnaire. 
            This is the same Questionnaire that was provided to OSMRE 
            one year prior on February 21, 2021.

     April 20, 2022: during the bi-weekly update call with 
            OSMRE, the third-party contractor and BBM received 
            approvals to proceed with Public Comment Period on April 
            27, 2022. Notice was published in the local newspaper and 
            paid for by BBM.

     May 3, 2022: OSMRE notified BBM that the Assistant 
            Secretary of Land and Mineral Management (ASLM) had 
            notified OSMRE headquarters that they will not initiate the 
            public comment period until they have written and approved 
            a National Press Release for the project. The ASLM provided 
            BBM with no timeline for this press release and no reason 
            as to why the change and need for this requirement.

     May 11, 2022: OSMRE sent notice to BBM that the new 
            Federal Administration had informed OSMRE that all public-
            facing NEPA documents would be reviewed by four solicitors 
            above the regional SOL. OSMRE refers to this group as Front 
            Office SOL's. No further information was provided to BBM as 
            to who these new solicitors would be or how long the 
            process would take.

     May 23, 2022: the new submission process required that the 
            BBM EA and unsigned FONSI first be sent back again to the 
            regional SOL for review. This re-review was completed by 
            the same SOL that had already reviewed and signed off on 
            the EA in late 2021 and early 2022.

     July 2022: OSMRE informs BBM that a change and new 
            requirement in the EA will be needed to address the Social 
            Cost of Carbon Greenhouse Gas (SC-GHG) analysis that they 
            use for all new NEPA documents and that this change will 
            need to be validated by DOI prior to being implemented.

     December 22, 2022: regional SOL granted authority to load 
            the EA into DTS for the Front Office SOL review. On January 
            3, 2023 the BBM EA and unsigned FONSI were uploaded into 
            DTS for Front Office SOL review.

     February 8, 2023: OSMRE informed BBM that the fourth and 
            final Front Office SOL had not signed off or provided any 
            comments. In hearing no response, BBM engaged state and 
            congressional staff for assistance and to discuss the two 
            plus years of project delays by OSMRE headquarters.

     October 3, 2023: BBM received notification from OSMRE that 
            the BBM would now be required to re-start the entire 
            process and complete an EIS in place of the EA for the BBM 
            Federal Mine Plan Modification.

    OSMRE has taken three years to determine that the BBM FMP must now 
restart the NEPA process completely and conduct a new EIS in place of 
the EA. Wyoming is experiencing similar unconscionable delays related 
to a second FMP approval for the Antelope Mine, and neighboring states 
are having similar difficulties and delays in receiving FMP approvals. 
Based on the BBM example Wyoming has legitimate concerns over OSMRE 
headquarters' ability to approve the BBM and pending Antelope Mine (AM) 
FMP amendments in an efficient and timely manner. Because of these 
concerns, the Honorable Governor Gordon sent a letter on April 25, 2023 
to Secretary of Interior Deb Haaland, outlining the continued delays 
and concerns in the approval of the BBM FMP. Review of the BBM 
timeline, and OSMRE headquarters delays, further underscores that the 
FMP approval process through OSMRE is broken and no longer completed 
per the regulatory requirements. It is concerning that the OSMRE 
process has become politicized and the NEPA process weaponized. The 
delays by OSMRE are resulting in costly permitting delays, increased 
land disturbance, increased costs to mining, delayed reclamation, fuel 
supply reliability concerns for the nation's baseload dispatchable 
power, and lost revenue to the federal and state governments.
OSMRE and State Program Amendments:

    Wyoming and other states continue to see excessive delays in the 
review and approval of Program Amendments (PA). The need to process and 
approve a PA can be the result of a state initiative, or an OSMRE 
oversight initiative. However, the fundamental process for submission 
and approval is similar. The process typically begins with a state 
statute or rule change. The state then develops rules through the 
rulemaking process to develop regulations that are as effective as the 
federal SMCRA provisions. In Wyoming, new or revised rules are first 
submitted and public noticed to the Land Quality Advisory Board (LQAB) 
for review; the rule package is then moved to the Environmental Quality 
Council (EQC), public noticed and then a decision by the EQC to 
promulgate the rule package is made; if approved by the EQC, the rule 
package is then moved to the Governor's office for review and final 
signature. Following the Governor's signature, the state prepares a PA 
to the Title V program rules and regulations for submission to OSMRE. 
The PA submission is first sent to the regional OSMRE office for 
review. Following the regional OSMRE review and approval, the PA is 
sent to OSMRE headquarters for final review, Federal Register (FR) 
publication, public comment, and final processing. Through the course 
of this process, the PA is public noticed a minimum of three times and 
has received legal review from a state Attorney General, and regional 
OSMRE solicitors (SOL), prior to final review at OSMRE headquarters. In 
order to add context to the processing of a PA by OSMRE, the Wyoming 
Wind Turbine Blade Disposal PA provides a recent example:

     July 1, 2020: the Wyoming Legislature and the Governor 
            enacted HB0129 to address the wind waste issue and provide 
            for the responsible disposal of damaged and outdated inert 
            wind turbine blades and towers in the final pit voids and 
            end walls of surface coal mines in Wyoming.

     April 29, 2021: Wyoming developed and signed new rules 
            into law that are as effective as the SMCRA requirements. 
            These rules went through the required Wyoming rulemaking 
            administrative process as outlined above.

     June 4, 2021: the WDEQ submitted the required formal PA to 
            the OSMRE regional office for technical and regional 
            solicitor (SOL) review.

     July 22, 2021: Wyoming received a letter from OSMRE region 
            stating ``we have not identified any issue of particular 
            concern to the public or industry in this rulemaking'' and 
            the PA was made available for public notice.

     August 4, 2021: the PA was published in the FR (WY-049-FOR 
            Proposed Rule Notice) on August 4, 2021. The comment period 
            ended on September 3, 2021 and OSMRE received no public 
            comment on this PA.

     OSMRE headquarters has not acted on approving this PA 
            since September 2021. As of the date of this testimony, 
            OSMRE has had this PA in review for 843 days.

    Wyoming determined the need and proposed a solution to address the 
growing issue of responsible disposal of damaged or outdated wind 
turbine blades and towers. Disposal of the inert blades and towers in 
municipal landfills is not a viable long term or sustainable option 
because of the volume of landfill space required. In addition, there 
are no known scalable recycling uses for these waste materials. At the 
time Wyoming HB0129 was passed in 2020, there were approximately 70,000 
turbine blades awaiting final disposal and the number has only 
increased since that time. The University of Cambridge estimates that 
there will be 43 million tons of blades needing to be disposed of by 
2050. Wyoming HB0129, proposed rules, and FR publication received no 
adverse public comments, and have been endorsed by the coal and wind 
industries as a responsible and sustainable solution. Approval of this 
PA is a win for the coal industry, the wind industry, and the public. 
The lack of communication from OSMRE and the delay in approval of this 
Wyoming PA raises concerns as to the priorities of the agency. Wyoming 
congressional staff has also inquired as to the status and approval of 
this PA. OSMRE's last correspondence with Wyoming staff occurred in 
December 2022. The continued silence from OSMRE regarding this PA 
approval after 843 days of review has been deafening. It is unfortunate 
that the Wyoming example outlined above is not an isolated event 
related to OSMRE PA approvals. The Interstate Mining Compact Commission 
(IMCC) has also engaged OSMRE on this issue. IMCC on behalf of its 
member states has requested a copy of the ``Status Sheet'' that OSMRE 
maintains to determine the point in the process of each state's 
respective pending PA's. OSMRE staff has stated that IMCC would be 
provided a copy of this status sheet for the past 356 days. To date, 
IMCC has not received this information. This further demonstrates 
OSMRE's lack of communication and the unwillingness of OSMRE to be 
transparent in its process with primacy states and the public.
    The OSMRE Deputy Director has stated that there are currently 
fifty-five PA's awaiting approval at headquarters. It should also be 
noted that during the past decade, there have been no fewer than forty 
PA's waiting for approval. Based on the lack of transparency and 
communication by OSMRE, Wyoming has legitimate concerns over OSMRE 
headquarters' ability to approve the two pending PA's in anything 
resembling a reasonable timeframe. The inability for OSMRE to process 
and approve a state PA's is problematic on several fronts, and most 
importantly prevents states from updating and implementing new 
regulatory requirements in a timely manner. OSMRE currently has PA's 
that have not completed processing for more than a decade, and the best 
response time of a Wyoming PA approval has been four years. It is clear 
that the approval of PA's is not considered a ``core mission 
responsibility'' as stated by OSMRE's Deputy Director's public 
testimony on May 16, 2023.
2023 Ten Day Notice Rule Revision:

    Wyoming has had exclusive regulatory authority over coal mining 
under Title V of SMCRA since 1980. Wyoming is concerned about the April 
25, 2023 proposed rule changes to the Ten Day Notice (TDN) and 
Corrective Action for State Regulatory Issues and Regulations. As 
published by OSMRE, the proposed revisions will fundamentally alter the 
federal-state cooperative federalism relationship under SMCRA in ways 
that are inconsistent with the exclusive regulatory authority SMCRA 
confers on states. Wyoming also has great concern that the factual 
basis OSMRE provided for the proposed rules (less than two years of 
experience and data collection) in the Federal Register, as it is 
significantly different than the state experience under existing law.
    The OSMRE has attempted to justify the proposed rulemaking by 
stating that the 2023 proposed rules will ``increase efficiency and 
make it easier for citizens to report possible violations'' and 
``simplify the processes for filing a citizen complaint and requesting 
a Federal inspection''. Wyoming disagrees with this conclusion. The 
proposed rules add unnecessary administrative overhead, deadlines and 
required formalized documents to address each complaint in the event 
OSMRE has ``reason to believe'' a potential violation exists. In 
contrast, with the existing 2020 Federal Register (FR) notification 
discussing the Ten-Day Notice (TDN) rules, a major focus and 
justification for the revised rules was that instead of expending 
resources on paperwork exercises, the State and OSMRE should work 
cooperatively to address issues, and in particular, resolve any ``on 
the ground'' actions that are necessary to protect public health and 
safety in a timely manner. Unfortunately, the 2023 TDN rules, as 
written, take a step backwards and OSMRE proposes to insert itself as 
the singular lead regulator in place of the State Regulatory Authority 
(SRA). This places the state in a position of merely justifying its 
response to any issue a citizen may present to OSMRE regardless of the 
merits of a citizen's complaint. It is important to note, that OSMRE 
has come to these conclusions with two years or less of experience with 
the 2020 finalized rules. OSMRE has stated that there has been a ``wave 
of citizen complaints'' that show the State Regulatory Authorities 
(SRA's) have been inadequately addressing citizen's complaints or not 
implementing their programs effectively. However, this OSMRE claim 
appears to be baseless as OSMRE has provided no evidence to support the 
claim nor has Wyoming been able to verify this claim. Further, OSMRE 
has to date not responded to a public records request to obtain these 
data filed by the Interstate Mining Compact Commission (IMCC) on May 
31, 2023.
    The SRA's were not consulted as a cooperator prior to, or during 
the 2023 rule development. The first opportunity the SRA's had to 
review the 2023 rule revisions was the publication of the draft rule on 
April 25, 2023 (88 FR 24944). To be a meaningful partner, OSMRE should 
have engaged the SRA's early in the rule development process, rather 
than a meager sixty-day comment period following the publication of the 
proposed rule. OSMRE has unilaterally revised a functional, efficient, 
and cooperative process, without clear evidence of need. The OSMRE has 
ignored its requirement and responsibility to engage the SRA's as a 
partner in a meaningful manner that represents cooperative federalism. 
For example, the 2020 rules used the term ``cooperative federalism'' 
nineteen times when discussing the rules; in contrast the 2023 proposed 
rules use the term only three times. The 2023 proposed TDN rules simply 
do not achieve the goals of being more efficient or effective than the 
existing 2020 rules. For the reasons stated above and those identified 
in Wyoming's letter dated June 23, 2023, this proposed rulemaking 
should be abandoned and OSMRE should engage in meaningful dialogue with 
the states to determine if there is a factual need to make any 
adjustments to the existing 2020 TDN rule.
Dam Safety Proposed Rulemaking:

    The OSMRE planned rulemaking regarding dam safety, specifically to 
address the findings of the Interior Department's Inspector General in 
its December 27, 2012 Report No. WR-EV-MOA-0015-2011 (Inspector 
General's Report) regarding Emergency Action Plans (EAPs) and After 
Action Reports (AARs), is an item of concern to Wyoming. There is no 
requirement or need for a nationally applicable OSMRE regulation 
regarding EAP's for dams. The Inspector General's Report (IGR) 
identifies the absence of an EAP requirement as a deficiency in OSMRE's 
federal regulatory program. However, just because the Inspector General 
identified this as an item for review by OSMRE, it does not mean that 
this is an issue for the states. In fact, this is not an issue at the 
state level. In the event OSMRE determines a need to take action and 
develop rules to resolve concerns raised by the IGR, its action should 
be limited to whatever is necessary to correct any deficiencies that 
exist at the federal level, without interfering with state emergency 
response functions.
    If OSMRE adopts a rule that mirrors existing state EAP 
requirements, which may be impossible as minor differences may exist 
from state to state, this will establish separate and competing lines 
of authority over EAP's and their execution. The proposed rules have 
the potential to cloud the lines of jurisdiction of state emergency 
preparedness response and management agencies and the Department of 
Homeland Security's Federal Emergency Management Agency (FEMA). If 
OSMRE inserts itself into this process, there is real risk that two 
inconsistent and competing plans will be implemented in the event of a 
real emergency. There must be one single plan for response to a dam 
emergency, with one single set of clear directions for communication 
channels and government authority vested in only one place.
    The states should be engaged by OSMRE in a cooperative and 
meaningful manner to promote cooperative federalism before any draft 
dam safety rule is finalized and released for public comment. The IMCC 
has offered to serve as a facilitator between the states and OSMRE to 
ensure that meaningful and preferably in-person engagement occurs on 
this topic prior to the drafting of any rule for these purposes. 
However, OSMRE has to date elected not to engage the states and has 
stated that the proposed dam rules are expected to be released by the 
agency as early as the second quarter of 2024.
Title V Grant Funding:

    Wyoming, as well as other states, have passed legislation to 
increase base pay for employees to account for the rise in the cost of 
living and inflationary pressure. These pay raises are also an attempt 
by the state(s) to remain competitive in the marketplace and continue 
to attract high quality and talented personnel. Wyoming has approved 
pay increases in each of the past two years. At the same time these 
raises have been enacted, the Title V program grants to the state have 
remained flat. There is a funding gap that continues to grow, as the 
Title V grant is not keeping pace with these inflationary budget 
adjustments. Wyoming recommends that OSMRE work cooperatively with the 
states in evaluating and addressing this funding gap in the 2025 budget 
process.
Summary:

    In summary, the need for reliable and affordable thermal coal fired 
baseload power will continue at least into the 2040 to 2050 timeframe. 
Current and potential new uses of coal are most promising, both in 
economic and environmental terms. Actions, or rather lack of action by 
OSMRE has imperiled critical access to the nation's vital coal 
reserves. The lack of cooperative federalism in the approval of Federal 
Mine Plans, NEPA reviews, Program Amendment approval, rule development, 
and Title V program funding has and continues to erode the trust 
between the state and OSMRE. In Wyoming, with an approved and 
successful primacy program over the last 43 years, OSMRE's role should 
be confined to oversight through a limited audit program, research 
requested by the state, and technical assistance at the request of the 
state. OSMRE headquarters is unnecessarily re-reviewing regional 
approvals, implementing new and continuous duplicative requirements, 
continues to delay needed state actions, and question regional OSMRE 
technical staff and solicitor decisions. This lack of confidence and 
trust within the OSMRE agency itself is at best concerning. The OSMRE 
decision making process has become mired in political agenda and 
administration policy, not sound regulatory requirements, technical 
merit, and fact-based science. This has paralyzed the OSMRE decision 
making abilities and created mistrust within the agency. The OSMRE is 
no longer functional nor is it working cooperatively with the states 
and in the public best interest.
    I acknowledge that much of the above information came from a 
variety of sources, including, but not limited to, the WDEQ, the IMCC, 
the Wyoming Mining Association, and the Black Butte Mine. I would again 
like to thank the committee for the opportunity to submit this 
testimony and appear before you today.

    Please find the following reference material attachments to this 
document:

     Governor's letter of April 25th on Black Butte Mine and 
            OSMRE July 10, 2023 response

     WDEQ Program Amendment Submission Letter Dated June 4, 
            2021

     OSMRE Program Amendment Transmittal Memo

     Wyoming Program Amendment Federal Register Publication 
            Dated August 4, 2021

     Wyoming Letter of June 23, 2023 comments on the Ten Day 
            Notice Rulemaking

                                 ______
                                 

     Questions Submitted for the Record to Mr. Kyle J. Wendtland, 
       Administrator, Wyoming Department of Environmental Quality

          Questions Submitted by Representative Ocasio-Cortez

    Question 1. Congress made its intention clear in the Infrastructure 
Investments and Jobs Act that the abandoned coal mine land and 
reclamation funding should create good paying jobs for displaced coal 
workers and incentivize union labor. (30 USC 1231a(f): ``priority may 
also be given to reclamation projects described in subsection b(1) that 
provide employment for current and former employees of the coal 
industry''; 30 USC 1231a(b)(3): ``applying/or grants under paragraph 
(1), States and Indian Tribes may aggregate bids into larger statewide 
regional contracts,'' and 42 USC 18851: ``all laborers and mechanics 
employed ( . . . ) on a project associated in whole or in part by 
funding made available under this division ( . . . ) shall be paid 
wages at rates not less than those prevailing on similar projects in 
locality''.) How are you implementing the employment priorities 
included in the law, and are you in touch with the United Mine Workers 
of America and the AFL-CIO on how best to do so?

    Answer. As stated in my written and oral testimony, I appeared 
before the committee to address the Wyoming Department of Environmental 
Quality (DEQ) Title V coal program. The question asked is related to 
the DEQ's Title IV Abandoned Mine Lands (AML) program. Wyoming DEQ 
offers the following response related to the Title IV program question:

The Title IV Wyoming program questions are best addressed by being 
broken into four key areas:

1)  Priority ``may'' be given to reclamation projects that provide 
        employment for current or former coal mine workers.

        Wyoming's State Statute W.S. 9-2-3006(a)(ii)(B) requires that 
        the lowest responsible bidder be awarded the contract. This 
        Wyoming Statute complies with the provisions of 2 CFR 200.320 
        Methods of procurement to be followed. Wyoming DEQ also offers 
        the following factors to consider.

                a)  How is a former employee of the coal industry 
                defined? Wyoming has repeatedly requested OSMRE to 
                define this category of employee but that definition 
                has not been provided.

                b)  A former employee of a coal mine is not a protected 
                class of worker (e.g., minority) in Wyoming. Therefore, 
                a former coal employee cannot be given any priority 
                status over another worker.

2) Aggregation of bids into larger statewide or regional contracts.

        Aggregation of bids presents several challenges to contracting 
        requirements that the Wyoming DEQ AML Division must follow. For 
        example:

                a)  Wyoming procurement laws allow a 5% preference 
                applied to in-state contractors over out-of-state 
                contractors.

                b)  Aggregating projects could disqualify Wyoming-based 
                contractors who may not be able to qualify for bonding 
                on large projects. It is not in the best interest of 
                the State of Wyoming to disqualify Wyoming-based and 
                highly experienced contractors in our bidding process 
                by aggregating projects.

3) Employees paid prevailing wages on similar projects.

        Following the Amendments to SMCRA in 2006, Wyoming has received 
        its 50% fee-based AML coal share from the U.S. Treasury and not 
        the AML Trust Fund. Consequently, the Davis-Bacon prevailing 
        wage provisions have been applied to Wyoming contracts since 
        that time to present.

4) Is Wyoming in touch with the United Mine Workers of America or AFL-
        CIO

        The Wyoming AML Division has had no communications with the 
        United Mine Workers of America nor the AFL-CIO.

Supplemental Information: Wyoming DEQ would also like to clarify that 
several blanket statements made in the written and oral testimony 
related to reclamation bonding are not applicable to the Wyoming DEQ 
Title V program. Wyoming is a full cost bonding state and does not use 
bond pools.

    Further, Wyoming DEQ completed updates to its reclamation bonding 
program in 2018, modernizing and strengthening bonding requirements. In 
2021, Wyoming also created a cash based and state backed instrument 
called an Assigned Trust to further strengthen Wyoming's reclamation 
bonding program. Wyoming has over 43 years of experience in the 
calculation of reclamation bonds and is very confident in the adequacy 
of the bond amounts and the state's ability to collect on those bonds 
if necessary.

                                 ______
                                 

    Mr. Stauber. Thank you very much for your testimony, Mr. 
Wendtland, and I want to thank all the witnesses for their 
testimony.

    As I told you earlier, the votes have been called. I am 
going to recess the Committee. We have two votes, and we will 
come back as quick as we can and start questioning.

    So, the Committee stands in recess.

    [Recess.]

    Mr. Stauber. The Energy and Minerals Resources Subcommittee 
will come back from recess.

    And before I get to my questioning, I would like to enter a 
statement from the National Mining Association into the record.

    Without objection, so ordered.

    [The information follows:]
                        Statement for the Record
                   National Mining Association (NMA)

    The National Mining Association (NMA) appreciates the opportunity 
to provide the House Natural Resources Subcommittee on Energy and 
Mineral Resources with written testimony in response to the committee's 
examination of the Biden administration's Abandoned Mine Lands (AML) 
and active mining programs. The NMA is the only national trade 
organization that serves as the voice of the U.S. mining industry and 
the hundreds of thousands of American workers it employs before 
Congress, the federal agencies, the judiciary and the media, advocating 
for public policies that will help America fully and responsibly 
utilize its vast natural resources. The NMA's members conduct coal and 
hardrock mining operations throughout the U.S. and, as such, have a 
shared interest in the cleanup and reclamation of historic coal AMLs 
and related activities.
Historical Issues with AML Oversight

    While today's mining industry plans for the restoration and 
reclamation of mined land even before mining occurs, that was not 
always the case. To address the issue of legacy mining sites, since 
1977, modern coal mining companies have been paying fees on each ton of 
domestically-produced coal into a fund--the AML Reclamation Fund--to 
reclaim high-priority coal mines abandoned or not sufficiently 
reclaimed before 1977. Unfortunately, after 46 years and more than $12 
billion paid into the fund, little has been accomplished to restore 
priority 1 and 2 (P1 and P2) sites.

    The AML fund has repeatedly been an attractive target for diverting 
coal industry funds to projects and activities not intended under the 
law. According to the Department of the Interior's Inspector General 
(DOI-OIG), the lack of oversight, absence of sound data management, and 
an unreliable AML database have resulted in: (1) states diverting AML 
money to non-coal projects notwithstanding the continued presence of 
high priority coal projects in the state; (2) some states expending 
substantial sums on administrative costs without completing any AML 
projects; and (3) the inability to deliver accurate or useful cost 
accounting for AML projects. Additionally, high federal and state 
administrative costs have also diverted funds from their core purpose.

    While the DOI-OIG's 2023 Final Inspection Report \1\ on the Office 
of Surface Mining Reclamation and Enforcement's (OSMRE) AML program 
found that OSMRE had made progress on implementation of its 2017 
recommendations, more needs to be done to meet existing deadlines and 
ensure greater performance of the program. Notably, OSMRE's July 2022 
guidance did take a step in the right direction by outlining funding 
priorities, stating that P1 and P2 projects directly related to coal 
mining practices would be considered first. That said, OSMRE and states 
must fight the urge to divert funding away from the high priority coal 
inventory and ensure prioritization of P1 and P2 coal AML sites.
---------------------------------------------------------------------------
    \1\ DOI Office of Inspector General, March 2023
---------------------------------------------------------------------------
Ten-Day Notices

    In April, OSMRE proposed a rule \2\ to modify the way the agency 
deals with Ten-Day Notices (TDN) under the Surface Mining Control and 
Reclamation Act (SMCRA). SMCRA sets forth a deliberate regulatory 
scheme in ``primacy states'' where operators are required to comply 
with only state law and regulations, dealing with the state as its 
regulatory authority. The proposed rule, as written, will significantly 
increase the likelihood of surface mining operators becoming subject to 
two--often conflicting--regulatory directives, of disrupting 
operations, and of impairing their ability to meet contract terms for 
supplying coal to customers by repealing recent clarifications that 
OSMRE finalized \3\ in 2020.
---------------------------------------------------------------------------
    \2\ 88 Fed. Reg. 24,944 (April 25, 2023)
    \3\ See 85 Fed. Reg. 75,150 (Nov. 24, 2020).

    According to OSMRE, the agency began reconsidering the 2020 rule in 
2021, and decided to conduct this rulemaking the same year. It is worth 
noting that OSMRE did not even gain a full year of experience under the 
---------------------------------------------------------------------------
2020 rule before deciding to propose a repeal and revision.

    Further, OSMRE has failed to show that the 2020 rule resulted in 
any material delays in considering possible violations or actual 
burdens preventing citizens from engaging in the process for 
identifying possible violations and alerting the state regulatory 
authority and OSMRE. As such, there is no justification for the 
proposed rulemaking and the proposed rule should be withdrawn.
Continued Funding

    Importantly, the Infrastructure Investment and Jobs Act (IIJA) 
included \4\ nearly $11.3 billion for legacy abandoned coal mine 
reclamation activities to be made available to eligible states and 
tribes annually for 15 years. While this is significant in helping the 
continued cleanup and reclamation of historic coal AMLs, funding 
without strict adherence and prioritization of P1s and P2s sites under 
the program is not a durable, long-term fix.
---------------------------------------------------------------------------
    \4\ P.L. 117-58 Section 40701(f)

    Since its inception in 1977, the coal AML program fee--paid 
exclusively by coal producing companies--has been extended eight times, 
most recently in the IIJA, through 2034. This means at its current 
expiration, it will have been in existence for 57 years--decades past 
its intended life span. This should provide the committee with a sense 
of perspective and urgency to reform the administration of the program 
to deliver the funding solely to its intended purpose.
Protecting Reliability and Revenues

    Coal mining has been a national energy and economic success story. 
In addition to providing a low cost, reliable source of energy for all 
Americans and material for steel manufacturing, coal provides 
substantial revenues to the federal, state and local governments 
through royalties, bonus payments and rents. This is in addition to a 
price per ton AML fee paid by coal companies for reclamation 
activities.

    Unfortunately, federal policy governing coal production--especially 
on federal lands--has been whipsawed back and forth depending on who 
controls the White House. The Biden administration has repeatedly 
failed to grasp that, in addition to generating significant revenues, 
coal production drives economic development, job creation and 
retention, and provides electricity reliability and U.S. 
competitiveness in building critical infrastructure. In addition, the 
administration's continued pursuit of a suite of U.S. Environmental 
Protection Agency regulations to force coal-fired power plant closures 
and continuation of the Department of the Interior's moratorium on the 
Federal Coal Leasing Program threatens our nation's energy security 
negatively impacts our communities that depend on coal production, and 
deprives funds for coal reclamation activities.
Conclusion

    A robust domestic coal mining industry, supported by the right 
federal policies, is essential to provide affordable and reliable 
energy and to fund AML reclamation priorities. The NMA supports the 
reclamation of AML sites but urges appropriate oversight of the fund to 
ensure industry and taxpayer funds are used effectively and 
efficiently, on the priority reclamation projects for which the funds 
were intended. Only with such oversight can we avoid the historic 
misuse of AML funding.

                                 ______
                                 

    Mr. Stauber. I will start my 5 minutes of questioning. 
Again, thanks to all the witnesses. We really appreciate you 
being here.
    Deputy Director Owens, Mr. Wendtland's testimony explained 
that after several years and three rounds of NEPA review, your 
office determined just last month that the mine plan amendment 
for the Black Butte Mine could not be approved as written. 
Instead, the entire process must be started over, this time as 
an Environmental Impact Statement.
    Before my question, Deputy Director Owens, how long have 
you been with OSMRE?
    Ms. Owens. Representative Stauber, I have been the Deputy 
Director of the Office of Surface Mining Reclamation and 
Enforcement since 2001.
    Mr. Stauber. OK, so 22 years?
    Ms. Owens. Yes.
    Mr. Stauber. OK. Why did it take so many years and rounds 
of review, and not to mention official correspondences, 
including from the governor of the state, to get a response 
from your agency on this single decision referencing the Black 
Butte Mine?
    Ms. Owens. Thank you for that question, Chairman Stauber.
    As you know, making the mine plan decisions and rendering 
those requires a NEPA review. Those NEPA reviews require many 
technical reviews and analyses.
    Mr. Stauber. Ms. Owens, with all due respect, three NEPA 
reviews, 3 years. No correspondence for the last 6 months. I 
find that unacceptable because if you were in the private 
sector, you would be out of business not responding like that.
    Mr. Wendtland, in your testimony, you discuss Black Butte 
as an example to show that the OSMRE process has become 
politicized and the NEPA process weaponized. Do you still feel 
that is the case, or would you like to provide your perspective 
on Ms. Owens' answer on the mine plan amendment?
    Mr. Wendtland. Thank you for that question, Mr. Chairman, 
and I would like to provide a perspective here.
    First off, we have to go back, that the Bureau of Land 
Management is the coal leasing agency. And in order to lease 
coal, a BLM resource management plan goes through, discloses 
the coal that is available. And then, when the coal is actually 
leased, it conducts another NEPA review. And they are in charge 
of leasing and selling the coal and getting it to the public.
    OSMRE's review is about the mine plan. It is about the 
impacts within the mine permit boundary. And OSMRE has expanded 
that review now to go on into even questioning BLM's own NEPA 
reviews between the agencies. And I believe that OSMRE and 
their NEPA reviews need to be brought back to within their 
lane. They are outside of their lane of review, and that is 
what is adding time and stress to the system.
    Mr. Stauber. Ms. Owens, many states have expressed concerns 
about the so-called recommendations your agency created for 
applications for the $11.3 billion in IIJA funding for AML 
cleanup. These extra considerations have taken time away from 
state regulators doing their job, and take resources away from 
filling the hole in the ground. Why has your agency seen fit to 
place new considerations on IIJA funding for AML cleanup, when 
the program already has clearly defined goals and 
considerations in statute, and in spite of the many concerns 
expressed by impacted states?
    Ms. Owens. Thank you, Chairman Stauber. As you know, the 
$11.3 billion that the BIL provided to the abandoned mine land 
program is a once-in-a-generation exponential increase of 
resources to address the problems associated with Abandoned 
Mine Land programs.
    When the Bipartisan Infrastructure Law, BIL, was passed 2 
years ago, one of the first things we did was to determine that 
we would provide guidance to the states in terms of what new 
requirements or what additional requirements would be 
associated with their use and receipt of those funds. We could 
have taken a regulatory route, and that would have been a 
protracted action for us. It would have----
    Mr. Stauber. Ms. Owens, just because my time is limited, 
and I do appreciate your response, not that I agree with it, 
but I want to ask Mr. McCament.
    You have heard Ms. Owens' response now. In your experience 
with OSMRE's treatment of the active coal mining program in 
your state, does it seem to be a fair assessment? And I will 
ask you, Mr. McCament, and then Mr. Morin and Mr. Wendtland for 
quick answers to that.
    Mr. McCament. Thank you, Mr. Chairman. I would say that our 
state effectively implements the coal program according to the 
SMCRA regulations, and we follow all the provisions of that 
rule. And I would say that we are effective regulators in our 
state.
    Mr. Stauber. All right. Mr. Morin?
    Mr. Morin. I think we could use increased collaboration 
with the states and OSMRE, and not just in word only, but 
actual meaningful collaboration where our input is heard and 
then seen in the implementation guidance documents we are 
provided.
    Mr. Stauber. Mr. Wendtland?
    Mr. Wendtland. Mr. Chairman, SMCRA says that the 
requirements are as effective as, not as stringent as, and it 
also confers very specific primacy rights to the states. And 
because of that, the states are the principal regulator. 
Wyoming has been that regulator for 43 years of the 47 years of 
the program. We are very confident in Wyoming's regulatory 
program, and OSMRE's role should be the oversight role that 
SMCRA envisioned.
    Mr. Stauber. And assisting in a positive way.
    My time is up, and the next individual, Representative 
Kamlager-Dove, you are up for 5 minutes.
    Ms. Kamlager-Dove. Thank you, Mr. Chair, and thank you, 
Ranking Member.
    Ms. Owens, we have heard several complaints so far from the 
other side of the aisle about how bureaucracy is holding up 
getting money out to the states and tribes that Congress 
authorized in the Infrastructure Investment and Jobs Act.
    I will remind my colleagues that cutting agency funding, as 
proposed in their appropriation legislation, won't help. We are 
talking about more than $11 billion of new Federal funding over 
15 years. It is an enormous ramp-up of these mine cleanup 
programs, and I expect it will take time. And I also believe 
that we want to see it done right.
    So, how are you assisting state programs in ramping up 
their capacity?
    And what would the Republican proposed cuts do to that 
assistance?
    Ms. Owens. Thank you for your question, Representative.
    I am not aware of the cuts through the budget, but among 
the things that we are doing to assist the states, we have 
given them the Fiscal Year 2022 BIL grants, we got those out. 
We have already begun to process and got seven Fiscal Year 2023 
grants out.
    We have improved our training programs. We have established 
at least four new training programs that are focused on the new 
requirements of the BIL requirements, as well as providing 
training to new employees because both OSMRE and the states are 
bringing in new employees so that we can administer and get 
these grants out, and get the funds out, and get them out to 
the states so they can actually begin to get those projects on 
the ground and working.
    We also are putting additional information into our AMLER 
system, identifying and working with them on developing metrics 
so that we indeed will be able to measure the success of this 
program and do it responsibly. As you point out, this is so 
much more funding than we have had, so we want to make sure 
that it is maximized. We only have 15 years. This is not just a 
program that is going to go on forever. And within the 15 
years, we need to get it right. And our approach to this was 
let's get it right from the beginning, which is why we took 
time to get that bill guidance out in the first place. We 
couldn't just put billions of dollars out there.
    I mean, some of these states have 5, 10 times money under 
the BIL grants than they have under their AML fee-based grants. 
So, we wanted to provide some additional guidance for them to 
make sure that it was going to be consistently applied across 
the program, and that it would result in success and achieve 
the goals that the BIL funds were provided in order to achieve.
    Ms. Kamlager-Dove. Thank you.
    And Mr. Morgan, I have some questions for you. I have 
limited time, so hopefully we can get through them quickly.
    You have been raising concerns about this bankruptcy and 
abandonment issue for a while, so why didn't we see these 
systemic bonding failures earlier?
    And did coal companies know that their bonds would not hold 
up?
    Mr. Morgan. Thank you for the question, Representative. I 
think the difficulty that your question alludes to is that 
there is a significant disjunction between what we are seeing 
on paper in terms of what regulators are reporting in terms of 
the status of mines, and then the actual lived experience of 
communities near these mines.
    On paper, mines appear to be active. But in reality, in 
many cases, they have been long abandoned, workers laid off, 
equipment removed, left un-reclaimed. And that has prevented us 
from getting an accurate assessment of the actual state of the 
coal mining industry.
    Ms. Kamlager-Dove. So, you referenced the problem of 
functionally abandoned permits. What exactly do you mean by 
that, and why is it a problem?
    Mr. Morgan. These are those permits I was just describing, 
where on paper they appear to be active coal mines but in 
practice they have been abandoned and often left in an un-
reclaimed state.
    And because regulators are aware that the sites are under-
bonded, the regulators are hesitant to take the sort of 
enforcement actions that are required, because if they 
recognize the reality that these are abandoned mines and they 
revoked the permits and forfeited the bonds, there isn't the 
money available to complete the reclamation, meaning either 
taxpayers are responsible for those costs or the communities 
are left living next to dangerous un-reclaimed mine sites.
    Ms. Kamlager-Dove. Thank you. My time is up. I have 
additional questions that I will refer to the Committee so that 
we can get answers later on from you.
    Thank you so much, and I yield back.
    Mr. Westerman [presiding]. The Chair now recognizes the 
gentleman from Wisconsin, Mr. Tiffany.
    Mr. Tiffany. Thank you, Mr. Chairman.
    Mr. Morgan, do you believe coal use should be ended in the 
United States of America?
    Mr. Morgan. I believe the market is speaking to that, and 
coal is no longer cost competitive.
    Mr. Tiffany. Do you view Boiler MACT, I am sure you are 
familiar with that regulation from about a decade ago, do you 
view that as a market force?
    Mr. Morgan. I believe that there are a lot of headwinds 
against the coal industry that, even if you removed one or two, 
the overwhelming dynamic is going to be continued decline.
    Mr. Tiffany. Is Boiler MACT a market force?
    Mr. Morgan. I believe it is internalizing an externality 
and having the industry bear the costs of its pollution. So, 
yes.
    Mr. Tiffany. I appreciate your answer. Boiler MACT is a 
Federal regulation. Let me give you an example of its failure 
of what you call market forces.
    I have a mill in my district that installed a smokestack. 
They had to put up a higher stack, and the company invested 
north of $10 million in that. Do you know how much it reduced 
in emissions?
    Mr. Morgan. I do not.
    Mr. Tiffany. None, zero. It didn't reduce emissions at all. 
And this company had to spend $10 million of precious capital. 
That is not a market force, I can guarantee you that much.
    Mr. McCament, was the 10-day rule working for you guys in 
Ohio?
    Mr. McCament. Yes.
    Mr. Tiffany. Mr. Morin, was it working in Alabama?
    Mr. Morin. I am here solely for Title IV. I don't do the 
regulatory side of things in my state.
    Mr. Stauber. And Mr. Wendtland?
    Mr. Wendtland. Absolutely, yes. The 2020 rule was a good 
rule.
    Mr. Tiffany. Ms. Owens, are you rewriting that rule, the 
10-day rule?
    Ms. Owens. Yes, Representative. We are rewriting the rule.
    Mr. Tiffany. What is the deficiency? Why are you rewriting 
that rule within your agency?
    Ms. Owens. Well, when we reviewed the rule, there were 
several aspects of it that we determined we wanted to revisit. 
Among them were what we felt were unnecessary burdens that were 
placed on citizens who wanted to either file a complaint, a 
citizens complaint, which the SMCRA gives them the right to do, 
and we wanted to make sure that they were having that 
opportunity without undue burdens in doing that.
    Mr. Tiffany. Thank you. Would you say your Bureau has 
issues with bandwidth and staffing at times that causes delays? 
I mean, we have heard some about that.
    Ms. Owens. I am sorry, I didn't get the first part of your 
question.
    Mr. Tiffany. Does your Bureau have issues with staffing at 
times, and just bandwidth to be able to get these processes 
done that causes delays?
    Ms. Owens. Well, yes, we do have staffing issues, as many 
agencies do.
    Mr. Tiffany. So, why would you pull this back from the 
states? Why would you pull this back with the 10-day rule that 
is working, as these gentlemen to your left have said, why 
would you pull that back if you have staffing issues, if you 
have delays that are happening as a result of, call it 
bandwidth or staffing delays?
    Ms. Owens. Thank you for your question, Representative.
    We have resources that review our regulations. And one of 
the things that we did at the beginning of this Administration 
was to review regulations to determine if there were aspects of 
those regs that required our taking another look at them, and 
that is exactly what happened with the 10-day notice rule.
    So, we do have adequate staff to look at that rule, and we 
have now proposed some amendments to the----
    Mr. Tiffany. Mr. McCament, do you expect the emissions in 
your state to be reduced by the Federal Government taking 
additional authority away from you by amending or changing the 
10-day notice rule?
    Mr. McCament. No, we do not. I think we would expect that 
we would spend more time and less cooperation with OSMRE in 
investigating legitimate complaints with the reversal in the 
rule.
    Mr. Tiffany. As a result of delays, we actually could see 
more emissions by projects not getting done. Would that be 
correct?
    Mr. McCament. Yes, spending more time in responding to 
complaints that we have already responded to previously or have 
data or information on. So, yes, it could cause further delays.
    Mr. Tiffany. Ms. Owens, have you been instructed to stop or 
slow roll applications for coal projects?
    Ms. Owens. No, sir, I have not.
    Mr. Tiffany. Have you had anyone from the White House 
contact you and send a clear message that they want coal 
stopped?
    Ms. Owens. Absolutely not.
    Mr. Tiffany. Mr. Chairman, I yield back.
    Mr. Westerman. The gentleman yields back. The Chair 
recognizes the Ranking Member, Ms. Ocasio-Cortez, for 5 
minutes.
    Ms. Ocasio-Cortez. Thank you, Mr. Chair.
    Coal mining has, and much of the abandonment of these 
mines, has left a toxic legacy of contaminated soil, polluted 
waters, and public health disasters across the country. And 
while I am proud of the more than $11 billion passed in the 
Infrastructure Investment and Jobs Act to help states and 
tribes clean up abandoned coal mines, I do think it is 
important to reiterate that these are not costs that the 
American public should have to pay.
    This is a responsibility of mines and private companies 
that inflict this damage, and it is yet another example of the 
ways in which these large companies often privatize benefits 
and profits, and socialize the costs and harm. And for the 
public to have to pick up the tab on this demonstrates the 
failure for us to properly assign and enforce that 
responsibility, that financial responsibility, where it 
belongs.
    The mines we are cleaning up with the IIJA funds were 
abandoned before SMCRA was enacted, the law to insure coal 
companies clean up after themselves. Mr. Morgan, in just a 
couple of sentences, to make sure that we can refresh the folks 
that are following along at home, what is SMCRA in the most 
simple terms possible, and how does it apply differently to 
mines that were abandoned before and after it was enacted?
    Mr. Morgan. Thank you, Ranking Member.
    SMCRA was passed by Congress in 1977 to address the then-
present crisis of thousands of abandoned mines across the 
country, and it sought to address that in two ways. One was 
through creating Title IV, which is a fund used to clean up the 
existing inventory of abandoned mine lands present at that 
time. But Congress also wanted to avoid a recurrence of those 
abandoned mines, so SMCRA also includes Title V, which 
primarily consists of two components. One is a reclamation 
requirement that companies conduct reclamation 
contemporaneously with coal removal, and then the second part 
is a bonding requirement which ensures that, if a company does 
go out of business, there are adequate funds to the regulator 
to complete the mine cleanup.
    Ms. Ocasio-Cortez. Thank you, Mr. Morgan. Yet, as we heard 
earlier in your testimony today, many modern coal mines are 
going un-reclaimed. And right now, we are at risk of yet 
another wave of abandoned mines, another wave of destroyed 
land, another wave of environmental and health outcomes.
    Mr. Morgan, if SMCRA was meant to ensure that modern 
reclamation would be fully paid for by the industry, these are 
the folks that are supposed to be paying for it, then how did 
we get to this point of these abandoned modern mines?
    And how are companies actually evading their health care, 
pension, and reclamation responsibilities?
    Mr. Morgan. There are three primary problems with the 
implementation of SMCRA that is leading to these problems.
    First, the contemporaneous reclamation requirements are not 
being enforced, which allows mine operators to accumulate 
significant acreages of disturbed land. And then, when those 
companies run into financial difficulties, that increases the 
reclamation burden passed on to taxpayers.
    The second part is when regulators set bond amounts they 
fail to require adequate bonding. So, in the recent bankruptcy 
of Blackjewel, the Kentucky regulator in the bankruptcy 
proceedings filed documents saying that they looked at 20 
percent of the company's permits, so that was 33 permits, and 
they found a reclamation bonding shortfall on those 33 permits 
of $28 million.
    And then the third problem is the form of bonds that are 
provided are ones that do not ensure that the money will be 
there. So, many of the eastern states rely on bond pools, which 
don't have adequate funding and are at great risk of being 
overwhelmed by the bankruptcy of even a single operator. Even 
surety bonds, which are supposed to be the most secure, run 
into difficulties because a very small number of surety bond 
providers have issued the overwhelming number of those bonds, 
meaning that if they fail, which they could do if even one big 
mine operator goes out of business, it would wipe out that 
surety and all of the bonds they have provided.
    Ms. Ocasio-Cortez. Great, thank you very much, and I yield 
back to the Chair.
    Mr. Westerman. The gentlelady yields back. The Chair 
recognizes the gentlelady from Wyoming, Ms. Hageman, for 5 
minutes.
    Ms. Hageman. Thank you, Mr. Chairman, and a special thanks 
to each of the witnesses for being here today.
    It is no secret that over the past few years we have 
experienced substantial delays, unclear, and oftentimes 
conflicting guidance and overbearing requirements for coal 
mining states and communities because of this Administration's 
war on fossil fuels.
    While the BLM has promulgated rule after rule to make it 
more difficult for energy-producing states to produce 
affordable, reliable energy such as coal, the Office of Surface 
Mining Reclamation and Enforcement has now decided to 
prioritize the cleanup of abandoned mine lands based off of 
certain socioeconomic factors. These new priorities ultimately 
make it more difficult for coal communities in my home state to 
secure Federal funding. Many coal communities are not deemed as 
so-called environmental justice communities, whatever that 
means, according to CEQ, and will therefore struggle to meet 
the outlined requirements when it comes to recovering lands 
impacted by abandoned mines.
    Ms. Owens, why is the OSMRE making it more difficult for 
communities in my home state of Wyoming to secure funding for 
AML remediation?
    Ms. Owens. Thank you for the question, Representative 
Hageman.
    I don't believe that the Office of Surface Mining is making 
it more difficult for your state to receive funding.
    Ms. Hageman. Well, but you are doing the funding based upon 
these certain environmental justice requirements that have 
essentially excluded the state of Wyoming. Are you aware of 
that?
    Ms. Owens. I am aware of the requirements.
    I also would like to point out that those, along with 
several other of the provisions that are contained in our bill 
guidance, we are encouraging states to take certain actions----
    Ms. Hageman. Environmental justice requirements?
    Ms. Owens. Yes.
    Ms. Hageman. OK.
    Ms. Owens. We are encouraging them to do so.
    Ms. Hageman. OK. During the previous administration, OSMRE 
partnered with BLM and other sister agencies to perform dual 
NEPA analysis, share data, and better improve the process of 
getting Federal coal permits out the door, which should 
actually be the mission of your agency. But since 2021, this 
effort we are told, is stalled, and what began as an attempt to 
speed up permitting is now the complete opposite.
    State agencies and operators alike have communicated to me 
that OSMRE is now just a roadblock that single handedly delays 
coal mining and thwarts the permitting process. What is OSMRE 
doing to become more than just a regulatory roadblock for the 
coal industry?
    Ms. Owens. Thank you for your question, Representative.
    What we are doing is we are implementing the requirements 
of NEPA, which is a requirement for all Federal----
    Ms. Hageman. NEPA, as amended? NEPA, as amended earlier 
this year?
    Ms. Owens. NEPA, whatever the law is on the books at the 
time that we take our actions, we implement the law on the 
books.
    Ms. Hageman. OK, but the NEPA was amended earlier this 
year. It is on the books now.
    Ms. Owens. Yes.
    Ms. Hageman. So, are you taking the changes in NEPA, the 
amendments to NEPA into consideration when reviewing these 
permits?
    Ms. Owens. If they have been promulgated, those regulations 
have been promulgated, yes, we are.
    Ms. Hageman. Well, the statute has been promulgated.
    Ms. Owens. Yes.
    Ms. Hageman. The amendments have gone into effect. Are you 
not aware of that?
    Ms. Owens. Yes, ma'am, I am.
    Ms. Hageman. OK.
    Ms. Owens. And we are implementing NEPA law and regulations 
and guidance.
    Ms. Hageman. As it exists now?
    Ms. Owens. Yes.
    Ms. Hageman. Program amendments are absolutely vital to the 
states, and often are a result of state legislators passing 
bills to help their state coal programs. OSMRE, however, has 
failed to process these permits in a timely manner, resulting 
in a backlog of state program amendments that go all the way 
back to 2006.
    Why doesn't OSMRE work through state program amendments in 
a timely manner?
    Ms. Owens. Well, as you may be aware, Representative, the 
state program amendments often involve technical reviews. We 
have to consult with technical, legal reviews, analyses. We 
consult with any other Federal agency----
    Ms. Hageman. So, are you saying it takes up to a decade to 
process these programs?
    Ms. Owens. Well, I think you may be talking about a rare 
situation. I am not aware of any state program amendment that 
has not been processed since 2006.
    Ms. Hageman. OK, but that has been the circumstance that we 
have experienced. So, I would request that we expedite those 
programs so that they can go forward.
    Ms. Owens. Well, I thank you for that suggestion. But as a 
matter of fact, I have directed the staff to take a look at 
ways that we could expedite the review of state program 
amendments, and also to identify processes that would help us 
streamline, and also address the backlog. We are very much 
aware of that, and we are taking actions so that we can address 
it.
    Ms. Hageman. OK, I appreciate that.
    I am out of time, so I yield back.
    Mr. Westerman. The gentlelady yields back. The Chair 
recognizes the gentleman from Montana, Mr. Rosendale, for 5 
minutes.
    Mr. Rosendale. Thank you very much, Mr. Chair and Ranking 
Member Ocasio-Cortez, for holding this hearing today.
    Montana is home to 3 of the top 20 most productive coal 
mines in America. So, this issue is critical to my 
constituents. Furthermore, Montana boasts the largest estimated 
recoverable coal reserves nationwide, constituting 
approximately 30 percent of the total U.S. reserves. Despite 
these significant reserves, Montana has experienced a steady 
decline in coal production since the Obama administration, with 
a drop of nearly 900,000 tons in the past year alone.
    Now, while my colleagues across the aisle would like to 
attribute this to a lack of demand, we just know that that is 
not the case. The case is that this supply, this production, 
has been reduced simply because of the radical 
environmentalists' ability to keep us from mining those very 
critical energy reserves. Mining stands as the lifeblood of 
Montana, woven into the fabric of our state's culture and 
tradition. Regrettably, this industry has been under consistent 
scrutiny from the Biden administration and the climate 
activists.
    The three mines that are located that I mentioned face 
constant delays by the Biden administration in completing 
environmental impact studies, which are essential for 
initiating new mining projects. The Spring Creek Mine is 
anticipated to deplete permitted coal in May 2024, with an 
expected EIS completion date of November 2024. The Bull 
Mountain Mine is projected to exhaust permitted coal in 
September 2024, with an expected EIS completion date of June 
2025. The Rosebud Mine in Colstrip, Montana is set to deplete 
permitted coal in April 2024, with an expected EIS completion 
date of March 2025. Notice the pattern here. The EIS dates are 
projected to be beyond the date when they are going to deplete 
their coal reserves that they have available to them at this 
moment.
    Yet, there are incredible coal deposits there that are 
still available to be mined. Each of these mines individually 
provides crucial jobs and energy to my constituents and to the 
rest of America. The potential loss of all three would be 
disastrous for Montana, leading to energy insecurity and 
leaving many residents unemployed with no immediate prospects. 
This goes to show how urgently our country needs permitting 
reform.
    Despite being one of the few issues that has bipartisan 
support, the Biden administration has exhibited extreme 
hesitation in pursuing the NEPA reforms. These reforms are not 
only necessary, but need to be implemented promptly to ensure 
our nation can efficiently utilize its natural energy 
resources, maintaining energy independence amidst a volatile 
global landscape. It is unacceptable that, in less than a year, 
these mines may no longer produce permitted coal, forcing 
Montanans to rely on foreign adversaries to meet their energy 
needs.
    This process must be streamlined urgently, or our states 
and our nation's energy security will face peril. I hope the 
testimony and questioning today will shed light on these 
critical issues, fostering bipartisan solutions that will 
secure and maintain our country's independence and the energy 
sector for the coming decades.
    Ms. Owens, could you elaborate on the reasons behind the 
continued delay in issuing the EIS reports for these mining 
projects?
    Ms. Owens. Thank you for your question, Representative.
    The requirement for the review of the mine plans that you 
mentioned require us to apply NEPA, it is a requirement. 
Recently, we have had ongoing court decisions that have had a 
direct impact and bearing on our NEPA review of these various 
mine plans. And, in fact, as a result of these court decisions, 
we have had to reassess and make changes in our NEPA review, 
based on the legal requirements. We have to make sure that we 
adhere to those decisions.
    We want to make sure that, when we render a decision, that 
it will pass judicial----
    Mr. Rosendale. OK, so I didn't hear the reasons, Ms. Owens, 
and I hate to cut you off, but I have a very limited amount of 
time here. I need reasons, OK? And what I have seen typically 
in the past is somebody didn't cross a T or dot an I properly, 
and you use the system in order to delay the ability to approve 
this.
    Ms. Owens. To the contrary----
    Mr. Rosendale. Mr. Chair, I see that my time has expired. I 
am going to have to yield back.
    Mr. Stauber [presiding]. Thank you very much.
    The gentleman from Georgia, Mr. Collins, you are up for 5 
minutes.
    Mr. Collins. Thank you, Mr. Chair and Ranking Member, for 
having this meeting.
    Folks, as someone who doesn't have a coal mine but uses 
coal, I guess you could say I am a consumer in Georgia. About 
20 miles from my house is Plant Scherer, which has four units 
that produce electricity using coal. And out of the four units, 
one is shut down. And in a recent visit while I was there, I 
asked them why.
    And it just so happens that, just as a side note, this was 
the most profitable way of producing electricity for this other 
state that was selling it to their consumers. But they shut it 
down due to a backlash, or being forced to, which really didn't 
make any sense when they were sitting there showing us the 
stacks and how clean the air that comes out of these stacks are 
now, and how clean the coal is being burned.
    So, it makes me wonder exactly what is the problem here, 
and what is going on. And I kind of want to bounce off of what 
my colleague, Mr. Rosendale, was talking about. He is talking 
about active mines, and I want to look at active mines and some 
of the abandoned mines, as well. All that to be said, I have 
just a few questions real quick.
    Mr. Morin, is that how you pronounce your name?
    Mr. Morin. Yes, sir, that is fine.
    Mr. Collins. All right. Well, you are an Alabama boy, but 
you have a different name. You know, we have short names in----
    Mr. Morin. Yes, Morin will be fine.
    Mr. Collins. Morin, OK. To your knowledge, does anyone in 
the Office of Surface Management policymaking group in its 
headquarters office, do they have any experience in operating 
an Abandoned Mines Land management program?
    Mr. Morin. Not to my knowledge, no, sir.
    Mr. Collins. And what effect may that lack of technical 
expertise have?
    Mr. Morin. It shows in their guidance and their 
implementation policies, which is why I requested not only 
collaboration in word, but meaningful collaboration with state 
program managers. We do possess unique knowledge of what it 
takes to get these projects on the ground and operational, 
reclamation projects, so I feel like they deprive themselves by 
not listening to our input and incorporating it into their 
guidance.
    Mr. Collins. Thank you, I appreciate that.
    Ms. Owens, I have heard that the substantial increase in 
the Abandoned Mine Land funding from the IIJA that was 
mentioned earlier is causing some states to divert their 
limited state resources from the active mining programs to 
their AML programs. This is being done, I think, in an attempt 
to make the most of those valuable AML grants. And I think this 
is where Mr. Rosendale and I were kind of, I was listening for 
his answer.
    So, what is the Office of Surface Mining Reclamation and 
Enforcement doing to ensure that active mining programs don't 
suffer because of the rush to spend that money on those AML 
programs?
    Ms. Owens. Thank you for that question, Representative.
    If the states are organized as the Federal program, there 
are two programs: Title IV, which is the AML; and Title V, 
which is the active mining. We have staff, each of those 
programs has staff that are familiar with and operate those 
programs.
    I am not aware that states would be pulling their Title V 
staff to do the Title IV, particularly since with this BIL 
money, one of the first things that we at OSMRE did was to 
identify the positions that we would need to effectively 
implement the BIL program, and get those grants out to the 
states so that they would have resources, they would be able to 
bring on additional staff and resources.
    And I know it has been a challenge. It has been a challenge 
at the Federal level, it has been a challenge at the state 
level because we are all looking for the same staffing and 
resources----
    Mr. Collins. So, you would agree that they are diverting 
staff to go after the Abandoned Mine----
    Ms. Owens. I am not aware that they would be diverting the 
Title V----
    Mr. Collins. But you are aware that these active mines are 
having problems. I mean, Mr. Rosendale just alluded to that.
    Ms. Owens. I am sorry, that they----
    Mr. Collins. That the active mines are having a problem 
getting their projects either reapproved or approved.
    Ms. Owens. Well, we----
    Mr. Collins. And would you not agree that the people are 
using their staff to go after the IIJA money instead of helping 
these active mines?
    Ms. Owens. I am not aware of that fact, sir.
    Mr. Collins. Even though Mr. Rosendale just gave you a 
prime example of coal mines in his district?
    Ms. Owens. He asked me if that were happening. It is not 
happening in our Federal program.
    Mr. Collins. And he provided an example. All right. Is it 
true that the backlog of pending state plan amendments include 
some revisions that are going all the way back to 2009?
    Ms. Owens. I am aware of one situation in which that is the 
case.
    Mr. Collins. So, you wouldn't say there is a backlog?
    Ms. Owens. I did say there is a backlog. In fact, as we 
speak, the staff is looking at ways to improve our procedures 
so that we can streamline that process so that we can get rid 
of that backlog.
    Mr. Collins. All right. Thank you.
    I am sorry, I went over. I yield back. Sorry about that.
    Mr. Stauber. Thank you very much. The next one up is the 
Chair of the Full Committee.
    Mr. Westerman, you are up for 5 minutes.
    Mr. Westerman. Thank you, Mr. Stauber, and thank you to the 
witnesses.
    Mr. Morin, you have testified that OSMRE's collaboration 
with states and tribes is just in name only. Has it always been 
that way?
    Mr. Morgan. Thank you for the question, Representative----
    Mr. Westerman. I said Morin, not Morgan.
    Mr. Morgan. I am sorry.
    Mr. Morin. No, it hasn't always been that way, but we did 
identify and meet with our counterparts at OSMRE in January of 
this year, over the last several years there has been a 
deterioration in the relationship, and a lot of that 
deterioration you can trace back to states trying to provide 
input into ways to shape the implementation of this program and 
the AMLER program more efficiently, and that input seems to go 
by the wayside when we get the official guidance release from 
OSMRE.
    Mr. Westerman. So, what recommendations would you have to 
improve the working relationship between OSMRE?
    Mr. Morin. We are trying work groups, and I think we have 
had some success with some of the state OSMRE work groups. But 
continuing that discussion and getting states involved earlier 
in the process, oftentimes when we get a guidance or some new 
information from OSMRE, it is released to us at the same time 
that it is released to the public. There have been times where 
non-governmental organizations identify the release of a new 
guidance document before it has been sent directly to the 
states. So, giving states----
    Mr. Westerman. So, somebody is working in collaboration 
with the NGOs is what----
    Mr. Morin. They seem to peruse the website more frequently 
than somebody who is managing a state program, so we think some 
of them learn about it that way.
    Mr. Westerman. Yes, we think some of them may actually be 
running the programs in the Federal agencies.
    Mr. McCament, your testimony mentions that Ohio has six 
state program amendments that are still pending approval dating 
back to 2015. Mr. Morin and Mr. Wendtland said there are 55 
total plan revisions waiting in DC. What have you heard from 
OSMRE about why these approvals are taking so long?
    And what is the consequence of not allowing these state 
programs' changes to occur?
    Mr. McCament. Sure, thank you for that question.
    The impact to us of not having those approved is that, if 
we have a new program amendment that we need to issue, then it 
just adds to that backlog, right? And these changes need to be 
made by state laws and state rules to make sure that we are 
meeting the intent of SMCRA, so there needs to be a process 
that those move quickly and are approved and in an engagement 
process. And most of those, as we get annual updates on those, 
are just in some review step.
    Mr. Westerman. And Mr. Wendtland, I know that you would 
think reclaiming abandoned mines would be a bipartisan issue, 
and speaking of delayed state program amendments, you provided 
an example in your testimony of how the state of Wyoming was 
trying to allow retired wind turbines to be used to backfill 
mine land sites, and you did this back in 2020, but the program 
amendment has been under review at OSMRE for 843 days.
    I was out in the state of Washington a year or so ago in 
the DOE laboratory there. They said that a fact that a lot of 
people don't realize about windmills is that 25 years from now 
there is not a single windmill in operation that will be in 
operation. So, there is going to be a huge need for places to 
landfill all these windmill blades.
    Has OSMRE given you any explanation of what is taking so 
long?
    Mr. Wendtland. Mr. Chairman, Representative Westerman, no, 
they have not. We have been sitting and waiting.
    And this is a good win for everybody. The coal industry, 
the wind industry all supported the state initiative here. And 
it also provides a revenue stream at mine closure which 
accelerates reclamation. So, we just cannot see what the holdup 
with this program amendment is.
    Mr. Westerman. Ms. Owen, would you like to answer that 
question? What is the hold-up?
    Ms. Owens. Thank you for your question.
    Actually, the issue of the placement of those blades is one 
of the aspects of that proposal that requires legal review. And 
we have been and continue to make sure that we get this right 
because if SMCRA doesn't allow those wind blades to be placed 
on those sites, we cannot approve it. So, we are making sure 
that our approval of or review of this----
    Mr. Westerman. I am sure that clarified it for everybody.
    In my last few seconds here, I am doing a little tally of 
agencies that are following the law and breaking the law. And 
Ms. Hageman mentioned this. I know you have talked about going 
through the NEPA process. You can either just say we are 
breaking the law, or you can tell me how you are implementing 
the FRA limits on NEPA of either 1 year for an EA or 2 years 
for an EIS. The floor is yours.
    Ms. Owens. Well, I wouldn't say we are breaking the law.
    Mr. Westerman. Are you implementing the law?
    Ms. Owens. NEPA? Yes we are implementing----
    Mr. Westerman. Are you implementing the 1-year and 2-year 
requirements that were passed bipartisan in the House, 
bipartisan in the Senate, and signed by President Biden?
    Ms. Owens. We are assessing our timetables----
    Mr. Westerman. Not are you assessing. Are you following the 
law?
    Ms. Owens. We are attempting to follow the law----
    Mr. Westerman. Not attempting to follow the law. Are you 
following the law?
    Ms. Owens. We are doing our best to come within the 
timelines that have been established in the law.
    Mr. Westerman. Well, can you provide the Committee with a 
timeline of specific projects that you will have completed by 
the 1-year time frame and the 2-year time frame?
    Ms. Owens. Can I provide you with a list?
    Mr. Westerman. Yes.
    Ms. Owens. I can provide you with a list.
    Mr. Westerman. With specifically projects, when they will 
be completed in 1 year if they are an EA, or in 2 years, 
maximum, if they are an EIS.
    Ms. Owens. I understood your question, and I will----
    Mr. Westerman. When will you have that list?
    Ms. Owens. I will have to go back and see when we can make 
it available.
    Mr. Westerman. Let's do it in about 2 weeks.
    I yield back.
    Mr. Stauber. Thank you very much, Chairman Westerman. I 
think that your questioning is very relevant, because they are 
not following the law.
    When Congress writes legislation and it becomes a law, it 
is not a recommendation or a feeling to follow the law. You 
must follow the law. EA: shot clock 1 year. EIS: shot clock 2 
years. That is the bipartisan piece of legislation that was 
signed into law by the President, and it is simply unacceptable 
that agencies within our Federal Government are not even 
following the laws that we wrote and that they must follow. So, 
it is unacceptable.
    I thank the witnesses for their valuable testimony and the 
Members for their questions.
    The members of the Subcommittee may have some additional 
questions for the witnesses, and we will ask you to respond to 
these in writing. Under Committee Rule 3, members of the 
Committee must submit questions to the Committee Clerk by 5 
p.m. on Friday, November 17. The hearing record will be held 
open for 10 business days for these responses.
    If there is no further business, without objection, the 
Committee stands adjourned.

    [Whereupon, at 12:11 p.m., the Subcommittee was adjourned.]