Pending Legislation

S. 4431, A bill to reinstate the Bull Mountains Mining Plan Modification
S. 4432, A bill to allow certain Federal minerals to be mined consistent with the Bull Mountains Mining Plan Modification

Statement for the Record
Office of Surface Mining Reclamation and Enforcement
U.S. Department of the Interior

Senate Committee on Energy and Natural Resources 
Subcommittee on Public Lands, Forests and Mining

S. 4431, a bill to reinstate the Bull Mountains Mining Plan Modification, and for other purposes.
S. 4432, a bill to allow certain Federal minerals to be mined consistent with the Bull Mountains Mining Plan Modification.

June 12, 2024

Thank you for the opportunity to provide a written statement on behalf of the Office of Surface Mining Reclamation and Enforcement (OSMRE) on S. 4431, a bill to reinstate the Bull Mountains Mining Plan Modification, and for other purposes, and S. 4432, a bill to allow certain Federal minerals to be mined consistent with the Bull Mountains Mining Plan Modification. The OSMRE has concerns with the bills.

Background
The OSMRE Federal Lands Program regulates coal mining and reclamation operations on Federal lands under the Surface Mining Control and Reclamation Act of 1977 (SMCRA) and the Mineral Leasing Act of 1920 (MLA).

In many states, OSMRE has delegated specific SMCRA duties on Federal lands to State regulatory agencies. This delegated authority is pursuant to Section 523(c) of SMCRA and State-Federal Cooperative Agreements between the Secretary of the Interior and the Governors of the respective States. The cooperative agreements generally provide that the States perform all SMCRA permitting activities and day-to-day inspections and enforcement on mines within their borders, with one exception mentioned in the following paragraph. The Montana Department of Environmental Quality (MDEQ) was delegated the authority to administer SMCRA on Federal lands in Montana through a cooperative agreement in 1989.

Operation and reclamation plans (more commonly known as mining plans) are required to mine on Federal lands or on non-Federal lands that contain leased Federal coal pursuant to section 7(c) of the MLA. Sections 523(a) and 523(c) of SMCRA state that the Secretary may not delegate the responsibilities to approve mining plans on Federal lands to a State. The Secretary must approve a mining plan before a permittee can mine Federal lands or lands that contain leased Federal coal. SMCRA delegates the Secretary’s authority to approve, disapprove, or approve with conditions Federal mine plans to the Assistant Secretary for Land and Minerals Management (ASLM).

OSMRE’s role is to review all proposed mining plans and mining plan modifications and prepare a recommendation to the ASLM to approve, deny, or approve with conditions the proposed mine plan or modification. This role includes preparing supporting documentation as required by law, such as compliance with the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA).

The Bull Mountains Mine No. 1 (Bull Mountains Mine) is an underground coal mine in Musselshell and Yellowstone Counties in Montana. The Bull Mountains Mine has a long history of public interest and legal challenges, including numerous lawsuits alleging that the Department’s NEPA analyses were deficient. In 2015 OSMRE recommended approval and the ASLM approved a mining plan modification for Amendment 3 at the Bull Mountains Mine. On August 14, 2017, the U.S. District Court for the District of Montana vacated the environmental assessment (EA) prepared by OSMRE in support of the 2015 Amendment 3 mining plan modification and remanded the matter to OSMRE to take further action. In response, OSMRE prepared an EA in 2018 to address the ruling by the Court and to satisfy OSMRE’s responsibilities under NEPA. Based on the EA, OSMRE prepared a Finding of No Significant Impact in May 2018, and ASLM again approved the Amendment 3 mining plan modification in August 2018. On March 9, 2020, the Court identified a deficiency in OSMRE’s 2018 NEPA analysis, vacated and set aside the 2018 EA, and remanded the matter back to OSMRE for further action.

In October 2020, OSMRE prepared another EA and reaffirmed the findings and recommendation of the 2018 Amendment 3 mining plan modification. ASLM concurred with the findings and recommendation on November 18, 2020. On October 14, 2022, the Ninth Circuit Court of Appeals found that OSMRE failed to adequately examine the impacts of greenhouse gas emissions resulting from the 2015 Federal mining plan modification in OSMRE's 2018 EA and remanded the case to the U.S. District Court for the District of Montana. In February 2023, the District Court determined that vacatur of the approved Federal mining plan was necessary and required OSMRE to prepare an environmental impact statement (EIS).

Analysis
It is OSMRE’s understanding that S. 4431 would direct the Secretary of the Interior to reinstate the Department’s approval of the Bull Mountains mining plan modification for Amendment 3 within 30 days of the bill's enactment. The bill directs that the reinstated approval remain in effect and operational until mining under the Bull Mountains mining plan modification is complete. Given that the bill requires reinstatement within 30 days, OSMRE cannot conduct the environmental and other analyses that typically accompany and substantiate its recommendations to ASLM. This situation would be unprecedented. Given a keen public interest in the impacts from the mine, simply reinstating the mining plan modification approval as directed under this bill could compromise the durability of OSMRE decisions and delay the mine’s operations.

It is OSMRE's understanding that S. 4432 would allow Signal Peak to mine on a section of Federal coal—located in T. 6 N., R. 27 E., section 22—consistent with the 2018 Bull Mountains mining plan modification for Amendment 3 within 30 days of enactment of the bill. The bill would only allow mining in section 22, located in the area covered by Amendment 3, but it would not authorize mining of the remaining Federal coal in Amendment 3. It is unclear if Signal Peak would pursue Federal authorization to retrieve the remaining Federal coal, which would require OSMRE to complete a NEPA analysis for the remaining Federal coal in Amendment 3, or if Signal Peak would abandon its efforts to mine the remaining sections. Abandoning the remaining sections would effectively preclude mining of the remaining leased Federal coal in the Amendment 3 area. If Signal Peak pursues Federal authorization to mine the remaining Federal coal later, OSMRE would need to update its NEPA analysis, potentially impacting the mining timeline for the remaining Federal coal. As noted above, because this bill also directs that mining be allowed within 30 days of enactment, OSMRE would not be able to conduct the required environmental and other analyses that typically accompany its mine plan recommendations to ASLM within the 30-day enactment period.

Closing
OSMRE stands ready to assist with questions related to SMCRA and the MLA mining plan requirements. OSMRE will continue to prepare an EIS on this project in compliance with NEPA, and as necessitated by the Court’s vacatur of the prior mining plan modification, to inform our recommendation to ASLM on the Amendment 3 mining plan modification. Thank you for the opportunity to provide this statement for the record.