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Department of Energy

Washington, DC 20585

January 27, 1994

The Honorable J. Bennett Johnston
Committee on Energy and Natural Resources
United States Senate
Washington, D.C. 20510

Dear Mr. Chairman:

I have received a copy of the "United States Senate Committee on

Energy and Natural Resources Recusal Policy," dated May 6, 1993.

Please be advised that I will adhere to the Committee's recusal policy upon appointment to the position of Under Secretary,

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Responses To Additional Questions


Washington, DC, February 3, 1994.
Chairman, Committee on Energy and Natural Resources, U.S. Senate, Washington,

DC. DEAR MR. CHAIRMAN: Enclosed you will find my responses to the questions for the record following my confirmation hearing before the Senate Energy and Natural Resources Committee on February 1, 1994. If I can be of further assistance to you, please let me know. Sincerely,


Director-Designate. (Enclosures.)

RESPONSES TO QUESTIONS FROM SENATOR JOHNSTON Question 1. What are your goals and objectives for the agency?

Answer. Secretary Babbitt has asked the OSM to improve the Federal/State relationship so that the common responsibilities to enforce the law will be achieved more effectively and efficiently, to communicate its goals and objectives clearly and consistently, to improve

its response to citizen concerns and to improve the consistency with which the OSM administers the program. If confirmed, I hope to meet the Secretary's goals and assure that all mined lands are reclaimed in a environmentally sound way through fair, effective and efficient administration of the law.

Question 2. What do you see as the three biggest challenges facing the Office of Surface Mining?

Answer. The three biggest challenges facing the Office of Surface Mining are: 1) ensuring the fair, effective and efficient administration of the law in a clear and consistent manner, 2) building an effective relationship with the primacy States, and 3) providing a management framework for the Agency that fosters teamwork, open communications, and a commitment to excellence, integrity and innovation.

Question 3. What policy changes, if any, do you plan to make?

Answer. I have no specific policy changes that I plan to make at this time. If confirmed, I will make whatever changes are necessary to achieve our goals for the Office of Surface Mining and to meet the basic challenges facing the Agency as stated in my previous answers.

Question 4. I understand that an internal organizational review of OSM is being conducted. Will you be soliciting input from other organizations, such as the states, environmental groups and industry, during this review?

Answer. Yes, I understand that the interim management team is soliciting this input.

Question 5. How do you view the federal/state relationship under SMCRA?

Answer. Under the Surface Mining Control and Reclamation Act, the primacy States and the OSM share the same basic responsibility for ensuring that coal mines are reclaimed in an environmentally sound manner and that the Act is enforced. If confirmed, I will be committed to exploring issues of concern with primacy States and developing a strong, efficient and effective State-Federal partnership to administer SMCRA.

Question 6. What is the status of the rulemaking to define “valid existing rights”?

Answer. I understand that the appropriations act for fiscal year 1994 for the Department of the Interior and Related Agencies prohibits the expenditure of any funds to promulgate a final rule defining “valid existing rights” or to disapprove existing State definitions. If confirmed, I intend to confer with all affected interests and explore options that will lead to resolution of this matter once the appropriations ban expires.

Question 7. Your résumé states that you "planned and executed a strategy to obtain from the State of New Mexico a release from further coal reclamation responsibility for a mine near Gallup, New Mexico.” Would you please elaborate on this statement.

Answer. In 1985, a company sought my advice on its obligations under a mining permit issued under State law that predated SMCRA. Its goal was to be certain that it had met all its obligations under State law. After reviewing material which the company prepared regarding vegetation and slopes and other environmental information, the State determined that additional reclamation work was needed to meet the company's State permit obligations. I worked with the company to ensure that it performed the required work, and the State subsequently certified that the company had met all of its obligations.

Question 8. Your résumé also states that you "conducted administrative litigation and negotiation to prevent the State of New Mexico from closing a coal mine which had a 'pattern of violations. The matter was resolved without any adverse effect on production or any fine or penalty." Please elaborate on this statement.

Answer. Prior to my representation of this company in 1985, it had received several notices of violations related to erosion control. Under State law, the company was required to explain why the violations took place. If the State was not satisfied, it had the option to revoke the company's permit. As a result of my representation, the company changed its reclamation practices to achieve full compliance with the law and was permitted to continue mining.

RESPONSES TO QUESTIONS FROM SENATOR FORD Question 1. Last Fall the Vice President unveiled his Reinventing Government Proposal. That proposal indicated that funding for OSM would be reduced by $28 million.

Quite frankly, I've been surprised that in the seventeen years since we enacted the Surface Mining Act, the staff levels at OSM have actually increased in spite of the fact that virtually every coal producing state has had primacy for close to ten years.

Should we anticipate that OSM's workforce will now be reduced since it is primarily in an “oversight” capacity?

Answer. I understand your concern about staffing levels. These are being reviewed by the Office of Surface Mining's Interim Management Team as part of a general review of OSM's efficiency. Once this review is complete, I will, if confirmed, make decisions regarding agency staffing that are necessary to reflect OSM's mission.

Question 2. For a number of years now, I've been concerned about why the Office of Surface Mining seems compelled to pay environmental groups attorneys' fees to help it do its job.

While the law authorizes the payment of attorney fees as a result of litigation, there have been some directors of OSM that came close to paying fees to environmental groups for work that OSM should be doing itself.

Last Fall Senator Byrd put language in the Appropriations Bill to bar the Interior Department from entering an agreement with SOCM where SOCM would have been paid for providing information that OSM should already have.

I would appreciate it if you'd let me know if OSM is planning any agreements or understandings where they would pay environmental lawyers for information either in conjunction with SOČM or on other issues.

Answer. I understand your concern regarding this issue. If confirmed, I will look at this issue carefully and will keep you and the Committee informed about significant developments.

Question 3. When we enacted the Surface Mining Act back in 197? we provided for buffer zones to protect certain structures and facilities by requiring anywhere from a 100 foot to a 300 foot area, for example, between a house or a road and a surface mine.

I've heard that OSM has contemplated applying those prohibitions to underground coal mining. Quite frankly, that would be absurd.

To protect a house or a road on the surface, the amount of the coal seam that the coal operator would be prohibited from mining would probably eliminate the use of long-wall mining and make a number of room and pillar mines uneconomic to operate.

Is anything is in the pipeline on this? After all, the law has separate provisions that deal with the surface effects of underground coal mines which we intended to protect surface owners.

Answer. I have not had the opportunity to review the merits of this issue. I understand the status of the matter is as follows: In a Federal Register notice published on July 18, 1991, OSM stated that the prohibitions and limitations imposed by section 522(e) of SMCRA apply only to mining activities conducted on the surface, not to subsidence. On September 22, 1993, the U.S. District Court for the District of Columbia ruled that this determination constituted a legislative rule and should have been made in accordance with the requirements of the Administrative Procedure Act. Accordingly, I understand that OSM now intends to address this issue through the rulemaking process. A decision will be made in the context of that process and in consideration of the comments received on the proposed rule once it is published. If confirmed, I will assure that all aspects of this issue will be fully evaluated before any decisions are made.

Question 4. Two years ago, in 1992, we enacted the Energy Policy Act. Some provisions of that Bill dealt with the issue of damage to peoples' houses and water supplies that could result from underground coal mining. The issue was very controversial and we had extended discussions over what type of buildings and facilities and water supplies would be covered and which ones wouldn't.

Last Fall, OSM proposed regulations dealing with these subsidence issues that go well beyond the Energy Policy Act. In fact, some of those proposed provisions—as gas pipelines—we had directed OSM to conduct studies before any rulemakings.

I can't understand why OSM is seeking to open up this huge “can of worms” right after the Congress thought it had resolved the issues. I sure hope you'll take a close look at this after you're confirmed and in place.

Answer. I am aware of the controversy surrounding the proposed rule published on September 24, 1993, and I understand your concern. The comment period has recently closed on this rulemaking. If confirmed, I can assure you that OSM will carefully consider the concern you have raised, along with other comments, in the preparation of the final subsidence regulations.

Question 5. From what I understand, far too much the money is going into administrative costs of the program (over 25%).

Also, money is being used for activities unrelated to reclaiming abandoned coal mines.

I sure hope that you'll have people take a close look at how this program is administered to reduce the overhead; get more money out to the states for reclamation projects; and to make sure that the reclamation projects address problems associated with abandoned coal mine lands.

Answer. If confirmed, I will take a close look at these issues and will make every effort to reduce overhead expenses and maximize the use of money for reclamation activities.

Question 6. For the past ten years I've heard complaints from the states that OSM is second guessing all their decisions and I've heard complaints from OSM that the states aren't doing their job.

You need to place priority on defining what the oversight role of the federal government is over the state and how your state directors and federal inspectors are supposed to interrelate with the states.

Pointing fingers back and forth has gone on far too long. A lot of members up here are getting fed up with being stuck in the middle between the states and the federal government.

Please give this your close attention.

Answer. If confirmed, I will give this issue my close attention. Working to improve State-Federal relations will be a major priority.

RESPONSES TO QUESTIONS FROM SENATOR SHELBY Question 1. In the Energy Policy Act of 1992, Congress amended SMCRA to resolve controversies over protections afforded under that law with respect to subsidence from underground coal mines. OSM has now proposed rules which attempt to enact provisions Congress considered and rejected, as well as many other costly impositions which reverse longstanding regulatory policy unaffected by the Energy Policy Act amendments.

a. What basis does OSM believe it has to ignore Congressional intent?

b. How can OSM propose such a disruptive and costly rule when it asks in the same proposal whether any need exists?

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