29–010 

Calendar No. 51 

113TH CONGRESS REPORT " ! SENATE 1st Session 113–20 

ABANDONED MINE RECLAMATION 

APRIL 22, 2013.—Ordered to be printed 

Mr. WYDEN, from the Committee on Energy and Natural 

Resources, submitted the following 

R E P O R T 

[To accompany S. 222] 

The Committee on Energy and Natural Resources, to which was 

referred the bill (S. 222) to amend the Surface Mining Control and 

Reclamation Act of 1977 to clarify that uncertified States and Indian tribes have the authority to use certain payments for certain 

non-coal reclamation projects and acid mine remediation programs, 

having considered the same, reports favorably thereon without 

amendment and recommends that the bill do pass. 

PURPOSE

The purpose of S. 222 is to amend the Surface Mining Control 

and Reclamation Act of 1977 to clarify that uncertified States and 

Indian tribes have the authority to use certain payments for certain non-coal reclamation projects and for acid mine drainage setaside programs. 

BACKGROUND AND NEED

The Tax Relief and Health Care Act of 2006 (Public Law 109– 

432) contained amendments to the Surface Mining Control and 

Reclamation Act (SMCRA; 30 U.S.C. 1201, et seq.) reauthorizing 

collection of an Abandoned Mine Land (AML) fee on coal produced 

in the United States and making certain modifications to the AML 

program. Under this program, which is administered by Office of 

Surface Mining Reclamation and Enforcement of the Department of 

the Interior, funds are expended to reclaim abandoned mine lands, 

with top priority for protecting public health, safety, general welfare, and property, and restoration of land and water resources adversely affected by past mining practices. 


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The program is largely directed to abandoned coal mine reclamation, but under section 409 of SMCRA (30 U.S.C. 1239), funds have 

been available to address non-coal mine sites. A review of the legislative history of this provision and the long-standing administrative interpretation of section 409 reveals that the section is intended to address ‘‘non-coal mine reclamation’’ on abandoned mine 

lands. 

In addition, section 402(g)(6) of SMCRA (30 U.S.C. 1232(g)(6)) 

provides that States with approved abandoned mine land programs 

may receive and retain funds for deposit into an acid mine drainage and treatment fund for use in accordance with the paragraph 

without regard to a 3-year time limitation required by the Act. Section 405(k) makes this provision applicable to Indian tribes as well 

as to States. 

Pursuant to a Memorandum Opinion (M–37014), issued by the 

Department of the Interior’s Solicitor on December 5, 2007, the Department has interpreted the amendments in a manner that limits 

the ability of States and Indian tribes to use certain funds (‘‘unappropriated balance amounts’’) provided to them under the AML 

program to address problems relating to noncoal abandoned mines. 

This same Memorandum Opinion limits the ability of States and 

Indian tribes to use unappropriated balance amounts under the 

AML program for deposit into an acid mine drainage abatement 

and treatment fund without respect to the time limitation on the 

use of the funds. Funds had been available for both of these purposes prior to the 2006 amendments. In accordance with section 

409 of SMCRA, western states such as New Mexico, Colorado, and 

Utah, have prioritized the use of AML funds to undertake the most 

pressing reclamation work on both coal and noncoal mine sites. 

While activities on noncoal sites have consumed a relatively insignificant portion of the funding provided for the overall AML program, the results in terms of public health and safety in these 

states is considerable and there is significant work yet to be done. 

Similarly, acid mine drainage continues to pose a significant problem, particularly in the Appalachian States where coal mining is 

prevalent. 

S. 222 would address this problem by giving uncertified States 

and Indian tribes flexibility to use unappropriated balance amounts 

paid to them pursuant to the 2006 amendments for noncoal reclamation. In addition, uncertified States and Indian tribes would 

have the flexibility to use such funds for deposit in an acid mine 

drainage abatement and treatment fund without respect to certain 

time limitations. The bill addresses those unexpended unappropriated balance amounts already paid to the States and Indian tribes 

pursuant to the 2006 amendments, as well as those to be paid pursuant to the 2006 amendments. 

LEGISLATIVE HISTORY

S. 222 was introduced by Senator Udall of New Mexico on February 4, 2013, with three original co-sponsors, Senators Bennet, 

Udall of Colorado, and Heinrich. A companion bill, H.R. 488 was 

introduced by Representative Pearce on February 4, 2013. S. 222 

is identical to S. 897, which was introduced by Senator Bingaman 

during the 112th Congress on May 5, 2011. The Subcommittee on 

Public Lands and Forests held a hearing on the S. 897 on May 18, 


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2011 (S. Hrg. 112–39), and the bill was ordered reported favorably 

by the Committee on July 14, 2011 (S. Rept. 112–63). Similar legislation (S. 2830 was also reported by the Committee in the 111th 

Congress (S. Rept. 111–264). At its business meeting on March 14, 

2013, the Committee on Energy and Natural Resources ordered S. 

222 to be reported favorably without amendment. 

COMMITTEE RECOMMENDATION AND TABULATION OF VOTES

The Senate Committee on Energy and Natural Resources, in 

open business session on March 14, 2013, by majority vote of a 

quorum present recommends that the Senate pass S. 222. 

The rollcall vote on preporting the measure was 14 yeas, 4 nays, 

as follows: 

YEAS NAYS 

Mr. Wyden Ms. Landrieu 

Mr. Johnson Mr. Manchin 

Ms. Cantwell Mr. Barrasso* 

Mr. Sanders* Mr. Hoeven 

Ms. Stabenow 

Mr. Udall 

Mr. Coons* 

Mr. Schatz 

Mr. Heinrich 

Ms. Murkowski 

Mr. Lee* 

Mr. Scott 

Mr. Alexander* 

Mr. Portman* 

*Indicates vote by proxy. 

SECTION-BY-SECTION ANALYSIS

Section 1(a) amends section 402(g)(6)(A) of the Surface Mining 

Control and Reclamation Act by adding a reference to provide that 

certain funds made available pursuant to section 411(h)(1) may be 

received and retained for acid mine drainage abatement in accordance with the subparagraph. 

Section 1(b) amends section 409(b) of the Surface Mining Control 

and Reclamation Act by adding a reference to provide that certain 

funds made available pursuant to section 411(h) may be used by 

States and Indian tribes for the purposes of section 409, including 

noncoal reclamation. 

Section 1(c) amends section 411(h)(1)(D)(ii) to provide references 

to sections 402(g)(6) and 409 to provide that uncertified States and 

Indian tribes may use funds received under the subparagraph in 

accordance with those sections. 

COST AND BUDGETARY CONSIDERATIONS

The following estimate of costs of this measure has been provided 

by the Congressional Budget Office: 


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S. 222—A bill to amend the Surface Mining Control and Reclamation Act of 1977 to clarify that uncertified states and Indian 

tribes have the authority to use certain payments for certain 

noncoal reclamation projects and acid mine remediation programs 

CBO estimates that enacting S. 222 would have no significant 

net impact on the federal budget over the 2014–2023 period. Because enacting the legislation could affect direct spending (increasing it in some years and decreasing it in others), pay-as-you-go procedures apply. Enacting S. 222 would not affect revenues. The bill 

contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would impose no 

costs on state, local, or tribal governments. 

Each year, the Office of Surface Mining (OSM) provides more 

than $200 million in grants and payments to states and Indian 

tribes to reclaim land and water resources that have been degraded 

by past mining activities. Because such grants and payments are 

not subject to annual appropriation, they are considered direct 

spending. States and tribes that currently have backlogs of coal 

reclamation projects—so-called uncertified states—are obligated 

under current law to use a portion of those grants exclusively for 

certain coal projects. 

S. 222 would allow uncertified states and tribes to use those 

funds for other types of reclamation projects not related to coal 

mining. CBO expects that this change would increase direct spending—by up to $2 million a year—in the near term by accelerating 

spending of reclamation grants. However, that short-term increase 

would be offset by reduced spending in later years. On balance, 

CBO expects that implementing the legislation would result in no 

net change in direct spending over the 2014–2023 period. 

Under current law, once states and tribes certify that they have 

completed all outstanding coal reclamation projects, they become 

eligible for additional payments from OSM. Under S. 222, some 

states and tribes may substitute noncoal projects for coal projects 

in the near term and delay their certification status, which would 

delay certain payments that would increase direct spending under 

current law. Based on information from OSM and some of the affected states and tribes, CBO expects that no uncertified states will 

become certified over the next 10 years, and CBO estimates that 

any delay in making payments to states that become certified 

would not affect direct spending over the 2014–2023 period. 

The Statutory Pay-As-You-Go Act of 2010 establishes budget-reporting and enforcement procedures for legislation affecting direct 

spending or revenues. The net changes in outlays that are subject 

to those pay-as-you-go procedures are shown in the following table. 

By fiscal year, in millions of dollars— 

2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2013– 

2018 

2013– 

2023 

NET INCREASE OR DECREASE (¥) IN THE DEFICIT 

Statutory Pay-AsYou-Go Impact 0 1 2 2 ¥2 ¥2 ¥1 0 0 0 0 1 0 


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The CBO staff contact for this estimate is Jeff LaFave. The estimate was approved by Theresa Gullo, Deputy Assistant Director 

for Budget Analysis. 

REGULATORY IMPACT EVALUATION

In compliance with paragraph 11(b) of rule XXVI of the Standing 

Rules of the Senate, the Committee makes the following evaluation 

of the regulatory impact which would be incurred in carrying out 

S. 222. 

The bill is not a regulatory measure in the sense of imposing 

Government-established standards or significant economic responsibilities on private individuals and businesses. 

No personal information would be collected in administering the 

program. Therefore, there would be no impact on personal privacy. 

Little, if any, additional paperwork would result from the enactment of S. 222, as ordered reported. 

CONGRESSIONALLY DIRECTED SPENDING

S. 222, as reported, does not contain any congressionally directed 

spending items, limited tax benefits, or limited tariff benefits as defined in rule XLIV of the Standing Rules of the Senate. 

EXECUTIVE COMMUNICATIONS

Executive Communications were not requested by the Committee 

in the 113th Congress. The following Administration testimony references similar legislation introduced in the 112th Congress. 

The views of the Administration were included in testimony received by the Committee at a hearing on S. 897 on May 18, 2011, 

which is provided below. 

STATEMENT OF THE OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT, DEPARTMENT OF THE INTERIOR

Mister Chairman and Members of the Subcommittee, 

thank you for the invitation to testify on behalf of the Office of Surface Mining Reclamation and Enforcement 

(OSM) regarding S. 897, a bill to amend the Surface Mining Control and Reclamation Act of 1977 (SMCRA). The 

OSM looks forward to working with you on matters relating to the Surface Mining Control and Reclamation Act of 

1977 (SMCRA). 

S. 897 would allow noncertified states and tribes to use 

certain SMCRA payments for non-coal reclamation. While 

we recognize the importance of addressing hardrock mine 

hazards, we cannot support this bill because it is inconsistent with the President’s FY 2012 Budget proposal to 

limit funding derived from the abandoned mine lands fee 

on coal production to the reclamation of coal sites that 

pose the most danger to public health and safety and/or 

damage to the environment. 

The FY 2012 President’s Budget includes a proposal to 

focus AML funds on the critical coal reclamation sites in 

order to ensure that the most dangerous and environmentally damaging coal sites can be addressed before the 


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AML fee expires in ten years. In addition to terminating 

unrestricted payments to certified states and tribes that 

have already cleaned up their abandoned coal mines, the 

proposal will competitively allocate funding for use on 

these hazardous and environmentally damaging coal reclamation projects. Recognizing the importance of addressing abandoned hardrock mines nationwide, additionally, 

the President’s FY 2012 budget would build off these reforms to the coal AML program and create a parallel program for hardrock AML reclamation in order to address 

those sites. This proposal would ensure that the industries 

whose historic practices created abandoned mines bear the 

costs of addressing these hazards by paying a reclamation 

fee on production. 

BACKGROUND

Through SMCRA, Congress established OSM for two 

basic purposes. First, to ensure that the Nation’s coal 

mines operate in a manner that protects citizens and the 

environment during mining operations and to restore the 

land to beneficial use following mining. Second, to implement an Abandoned Mine Land (AML) program to address 

the hazards and environmental degradation created by two 

centuries of weakly regulated coal mining that occurred 

before SMCRA’s enactment. 

Title IV of SMCRA created an AML reclamation program funded by a reclamation fee assessed on each ton of 

coal produced. The fees collected have been placed in the 

Abandoned Mine Reclamation Fund (Fund). OSM, either 

directly or through grants to States and Indian tribes with 

approved AML reclamation plans under SMCRA, has been 

using the Fund primarily to reclaim lands and waters adversely impacted by coal mining conducted before the enactment of SMCRA and to mitigate the adverse impacts of 

mining on individuals and communities. Also, since 

FY1996, an amount equal to the interest earned by and 

paid to the Fund has been available for direct transfer to 

the United Mine Workers of America Combined Benefit 

Fund to defray the cost of providing health care benefits 

for certain retired coal miners and their dependents. Section 402(a) of SMCRA fixed the reclamation fee for the period before September 30, 2007, at 35 cents per ton (or 10 

percent of the value of the coal, whichever is less) for surface-mined coal other than lignite, 15 cents per ton (or 10 

percent of the value of the coal, whichever is less) for coal 

from underground mines, and 10 cents per ton (or 2 percent of the value of the coal, whichever is less) for lignite. 

As originally enacted, section 402(b) of SMCRA authorized 

collection of reclamation fees for 15 years following the 

date of enactment (August 3, 1977); thus, OSM’s fee collection authority would have expired August 3, 1992. However, Congress extended the fees and fee collection authority through September 30, 1995, in the Omnibus Budget 

Reconciliation Act of 1990. The Energy Policy Act of 1992 

extended the fees through September 30, 2004. A series of 


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short interim extensions in appropriations and other acts 

extended the fees through September 30, 2007. 

The Surface Mining Control and Reclamation Act 

Amendments of 2006 were signed into law as part of the 

Tax Relief and Health Care Act of 2006, on December 20, 

2006 (Public Law 109–432). The 2006 amendments revised 

Title IV of SMCRA to make significant changes to the reclamation fee and the AML program and extended OSM’s 

reclamation fee collection authority through September 30, 

2021. 

The AML reclamation program was established in response to concern over extensive environmental damage 

caused by past coal mining activities. Before the 2006 

amendments, the AML program reclaimed eligible lands 

and waters using the Fund, which came from the reclamation fees collected from the coal mining industry. Eligible 

lands and waters were those which were mined for coal or 

affected by coal mining or coal processing, were abandoned 

or left inadequately reclaimed prior to the enactment of 

SMCRA on August 3, 1977, and for which there was no 

continuing reclamation responsibility under State or other 

Federal laws. 

SMCRA established a priority system for reclaiming coal 

problems. Before the 2006 amendments, the AML program 

had five priority levels, but reclamation was focused on eligible lands and waters that reflected the top three priorities. The first priority was ‘‘the protection of public health, 

safety, general welfare, and property from extreme danger 

of adverse effects of coal mining practices.’’ The second priority was ‘‘the protection of public health, safety, and general welfare from adverse effects of coal mining practices.’’ 

The third priority was ‘‘the restoration of land and water 

resources and the environment previously degraded by adverse effects of coal mining practices.’’ 

As originally established, the Fund was divided into 

State or Tribal and Federal shares. Each State or tribe 

with a Federally approved reclamation plan was entitled 

to receive 50 percent of the reclamation fees collected annually from coal operations conducted within its borders. 

The ‘‘Secretary’s share’’ of the Fund consisted of the remaining 50 percent of the reclamation fees collected annually and all other receipts to the Fund, and was allocated 

into three shares as required by the 1990 amendments to 

SMCRA. First, OSM allocated 40% of the Secretary’s share 

to ‘‘historic coal’’ funds to increase reclamation grants to 

States and Indian tribes for coal reclamation. However, all 

the funds which were allocated may not have been appropriated. Second, OSM allocated 20% to the Rural Abandoned Mine Program (RAMP), operated by the Department 

of Agriculture. However, that program has not been appropriated AML funds since the mid-1990s. 

Last, SMCRA required OSM to allocate 40% to ‘‘Federal 

expense’’ funds to provide grants to States for emergency 

programs that abate sudden dangers to public health or 

safety needing immediate attention, to increase reclamaVerDate Mar 15 2010 05:35 Apr 25, 2013 Jkt 029011 PO 00000 Frm 00007 Fmt 6659 Sfmt 6969 E:\HR\OC\SR020.XXX SR020

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tion grants in order to provide a minimum level of funding 

to State and Indian tribal programs with unreclaimed coal 

sites, to conduct reclamation of emergency and high-priority coal sites in areas not covered by State and Indian 

tribal programs, and to fund OSM operations that administer Title IV of SMCRA. 

States with an approved State coal regulatory program 

under Title V of SMCRA and with eligible coal mined 

lands could develop a State program for reclamation of 

abandoned mines. The Secretary determines whether to 

approve and fund the State reclamation program. At the 

time the 2006 amendments were enacted, 23 States received annual AML grants to operate their approved reclamation programs. Three Indian tribes (the Navajo Nation, and Hopi and Crow Tribes) without approved regulatory programs have received grants for their approved 

reclamation programs as authorized by section 405(k) of 

SMCRA. 

Before the 2006 amendments, States and Indian tribes 

that had not certified completion of reclamation of their 

abandoned coal lands could use AML grant funds on 

noncoal projects only to abate extreme dangers to public 

health, safety, general welfare, and property that arose 

from the adverse effects of mineral mining and processing 

and only at the request of the Governor or the governing 

body of the Indian tribe. In addition, noncertified States 

were allowed to deposit up to ten percent of their AML 

grant funds into a state acid mine drainage set aside account to abate and treat acid mine drainage caused by coal 

mining. 

The 2006 amendments reduced the statutory fee rates 

by 10 percent from the current levels for the period from 

October 1, 2007, through September 30, 2012, and by an 

additional 10 percent from the original levels for the period from October 1, 2012, through September 30, 2021. 

The Fund allocation formula was also changed. Beginning October 1, 2007, certified States are no longer eligible 

to receive State share funds. Instead, amounts that would 

have been distributed as State share for certified States 

from the AML fund are distributed as historic coal funds. 

The RAMP share was eliminated, and the historic coal allocation was further increased by the amount that previously was allocated to RAMP. In addition, the amount 

that noncertified States could set aside for acid mine 

drainage abatement and treatment was increased to 30 

percent of a State’s State share and historic coal share 

funds. 

The Amendments also created two new types of payments from the General Treasury under section 411(h). 

Both certified and noncertified states receive payments 

equal to their portion of the unappropriated balance of the 

AML fund that existed at the time the amendments were 

passed, known as ‘‘prior balance funds’’. Certified states 

and tribes also receive a payment, known as the ‘‘in lieu’’ 


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payment, equal to 50% of the fees collected in their borders 

the prior year. 

Though the other sources of funding to noncertified 

states and tribes are available for a variety of purposes 

under the statute, since 2006, the Department has interpreted the language of SMCRA section 411(h) to preclude 

noncertified states and Indian tribes from using funds that 

they receive under that section for noncoal reclamation or 

for deposit into a state acid mine drainage account. 

S. 897

Under SMCRA, noncertified states can use ‘‘State share’’ 

and ‘‘historic coal’’ funds for noncoal reclamation and deposit into state acid mine drainage set aside accounts, 

which are considered lower priority hazards associated 

with AML sites. S. 897 would amend SMCRA to allow 

these states to also use their prior balance funds, which 

they receive under Section 411(h)(1), for noncoal reclamation and for deposit into state acid mine drainage set-aside 

accounts. In other words, S. 897 would allow prior balance 

replacement funds, which are now focused on the reclamation of coal sites in noncertified States, to be used for other 

purposes: namely, noncoal reclamation and deposit into 

State acid mine drainage set aside accounts. 

In an effort to focus the OSM’s AML program on coal 

reclamation, the President’s FY 2012 budget proposes to 

revise SMCRA to competitively allocate AML funds to ensure that the most dangerous and environmentally damaging coal AML sites are reclaimed before the reclamation 

fee terminates. Because S. 897 is inconsistent with the Administration’s goal of ensuring expeditious coal reclamation through the existing AML Fund, we cannot support 

this bill. 

We share this Subcommittee’s interest in ensuring that 

abandoned hardrock mines also are addressed. In order to 

accomplish this goal, we support the creation of a parallel 

hardrock AML program, funded through a fee on hardrock 

production to fund the reclamation of hardrock mine sites 

nationwide, which the FY 2012 President’s budget proposes. 

Currently, there is no hardrock reclamation fee similar 

to the one established by SMCRA to reclaim abandoned 

coal mine sites. This leaves States, Tribes, and Federal 

land managers to address these sites within their budgets 

or using other sources of funding, such as SMCRA’s reclamation funds when possible. To hold each industry responsible for the actions of its predecessors, the President’s 

FY 2012 budget proposes a new reclamation fee on 

hardrock production. Once the fee is established, OSM 

would be responsible for collecting this fee, based on its expertise in collecting the coal reclamation fee. The Department of the Interior’s Bureau of Land Management would 

be responsible for allocating and distributing the receipts, 

using the proposed competitive allocation program. 


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Thank you for the opportunity to appear before the Subcommittee today and testify on this bill. I look forward to 

working with the Subcommittee to ensure that the Nation’s abandoned mine lands are adequately reclaimed. 

CHANGES IN EXISTING LAW

In compliance with paragraph 12 of rule XXVI of the Standing 

Rules of the Senate, changes in existing law made by the bill, as 

ordered reported, are shown as follows (existing law proposed to be 

omitted is enclosed in black brackets, new material is printed in 

italic, existing law in which no change is proposed is shown in 

roman): 

SURFACE MINING CONTROL AND RECLAMATION ACT 

OF 1977 

Public Law 95–87, as amended 

AN ACT To provide for the cooperation between the Secretary of the Interior and 

the States with respect to the regulation of surface coal mining operations, and 

the acquisition and reclamation of abandoned mines, and for other purposes. 

* * * * * * * 

RECLAMATION FEE 

SEC. 402. RECLAMATION FEE. 

SEC. 402. (a) * * * 

* * * * * * * 

(g) ALLOCATION OF FUNDS.—(1) * * * 

(6)(A) Any State with an approved abandoned mine reclamation 

program pursuant to section 405 may receive and retain, without 

regard to the 3-year limitation referred to in paragraph (1)(D), up 

to 30 percent of the total of the grants made annually to the State 

under paragraphs (1) and (5) and section 411(h)(1) if those amounts 

are deposited into an acid mine drainage abatement and treatment 

fund established under State law, from which amounts (together 

with all interest earned on the amounts) are expended by the State 

for the abatement of the causes and the treatment of the effects of 

acid mine drainage in a comprehensive manner within qualified 

hydrologic units affected by coal mining practices. 

* * * * * * * 

FILLING VOIDS AND SEALING TUNNELS

SEC. 409. (a) * * * 

(b) LIMITATIONS ON FUNDS.—Funds available for use in carrying 

out the purpose of this section shall be limited to those funds which 

must be allocated to the respective States or Indian tribes under 

the provisions of paragraphs (1) and (5) of section 402(g) and section 411(h)(1). 

* * * * * * * 

SEC. 411. CERTIFICATION. 

* * * * * * * 

(h) PAYMENTS TO STATES AND INDIAN TRIBES.— 


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(1) IN GENERAL.— 

* * * * * * * 

(D) USE OF FUNDS.— 

* * * * * * * 

(ii) UNCERTIFIED STATES AND INDIAN TRIBES.—A 

State or Indian tribe that has not made a certification 

under subsection (a) in which the Secretary has concurred shall use any amounts provided under this 

paragraph for the purposes described in øsection 403¿ 

section 402(g)(6), 403, or 409. 

Æ 


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