[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]



 
 JOBS AT RISK: COMMUNITY IMPACTS OF THE OBAMA ADMINISTRATION'S EFFORT 
                TO REWRITE THE STREAM BUFFER ZONE RULE 

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

                        OVERSIGHT FIELD HEARING

                               before the

                       SUBCOMMITTEE ON ENERGY AND
                           MINERAL RESOURCES

                                 of the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

        Monday, September 26, 2011, in Charleston, West Virginia

                               __________

                           Serial No. 112-66

                               __________

       Printed for the use of the Committee on Natural Resources



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                                   or
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                     COMMITTEE ON NATURAL RESOURCES

                       DOC HASTINGS, WA, Chairman
             EDWARD J. MARKEY, MA, Ranking Democrat Member

Don Young, AK                        Dale E. Kildee, MI
John J. Duncan, Jr., TN              Peter A. DeFazio, OR
Louie Gohmert, TX                    Eni F.H. Faleomavaega, AS
Rob Bishop, UT                       Frank Pallone, Jr., NJ
Doug Lamborn, CO                     Grace F. Napolitano, CA
Robert J. Wittman, VA                Rush D. Holt, NJ
Paul C. Broun, GA                    Raul M. Grijalva, AZ
John Fleming, LA                     Madeleine Z. Bordallo, GU
Mike Coffman, CO                     Jim Costa, CA
Tom McClintock, CA                   Dan Boren, OK
Glenn Thompson, PA                   Gregorio Kilili Camacho Sablan, 
Jeff Denham, CA                          CNMI
Dan Benishek, MI                     Martin Heinrich, NM
David Rivera, FL                     Ben Ray Lujan, NM
Jeff Duncan, SC                      John P. Sarbanes, MD
Scott R. Tipton, CO                  Betty Sutton, OH
Paul A. Gosar, AZ                    Niki Tsongas, MA
Raul R. Labrador, ID                 Pedro R. Pierluisi, PR
Kristi L. Noem, SD                   John Garamendi, CA
Steve Southerland II, FL             Colleen W. Hanabusa, HI
Bill Flores, TX                      Vacancy
Andy Harris, MD
Jeffrey M. Landry, LA
Charles J. ``Chuck'' Fleischmann, 
    TN
Jon Runyan, NJ
Bill Johnson, OH

                       Todd Young, Chief of Staff
                      Lisa Pittman, Chief Counsel
                Jeffrey Duncan, Democrat Staff Director
                 David Watkins, Democrat Chief Counsel
                                 ------                                

              SUBCOMMITTEE ON ENERGY AND MINERAL RESOURCES

                       DOUG LAMBORN, CO, Chairman
               RUSH D. HOLT, NJ, Ranking Democrat Member

Louie Gohmert, TX                    Peter A. DeFazio, OR
Paul C. Broun, GA                    Madeleine Z. Bordallo, GU
John Fleming, LA                     Jim Costa, CA
Mike Coffman, CO                     Dan Boren, OK
Glenn Thompson, PA                   Gregorio Kilili Camacho Sablan, 
Dan Benishek, MI                         CNMI
David Rivera, FL                     Martin Heinrich, NM
Jeff Duncan, SC                      John P. Sarbanes, MD
Paul A. Gosar, AZ                    Betty Sutton, OH
Bill Flores, TX                      Niki Tsongas, MA
Jeffrey M. Landry, LA                Vacancy
Charles J. ``Chuck'' Fleischmann,    Edward J. Markey, MA, ex officio
    TN
Bill Johnson, OH
Doc Hastings, WA, ex officio



                                 ------                                

                                CONTENTS

                                 ------                                
                                                                   Page

Hearing held on Monday, September 26, 2011.......................     1

Statement of Members:
    Capito, Hon. Shelley Moore, a Representative in Congress from 
      the State of West Virginia.................................     5
        Prepared statement of....................................     6
    Johnson, Hon. Bill, a Representative in Congress from the 
      State of Ohio..............................................     7
        Prepared statement of....................................     9
    Lamborn, Hon. Doug, a Representative in Congress from the 
      State of Colorado..........................................     1
        Prepared statement of....................................     3

Statement of Witnesses:
    Bostic, Jason D., Vice-President, West Virginia Coal 
      Association................................................    70
        Prepared statement of....................................    72
    Carey, Michael, President, Ohio Coal Association.............    66
        Prepared statement of....................................    68
    Clarke, Thomas L., Director, Division of Mining and 
      Reclamation, West Virginia Department of Environmental 
      Protection.................................................    15
        Prepared statement of....................................    17
    Corra, John, Director, Wyoming Department of Environmental 
      Quality....................................................    42
        Prepared statement of....................................    46
    Fredriksen, Katharine A., Senior Vice President, 
      Environmental Strategy & Regulatory Affairs, CONSOL Energy.    77
        Prepared statement of....................................    79
    Gunnoe, Maria, Community Organizer...........................    88
        Prepared statement of....................................    90
    Horton, Roger D., Co-Founder, Mountaintop Mining Coalition...    60
        Prepared statement of....................................    62
    Lambert, Bradley C., Deputy Director, Virginia Department of 
      Mines, Minerals and Energy.................................    31
        Prepared statement of....................................    37
    Manchin, Hon. Joe, a Senator in Congress from the State of 
      West Virginia..............................................    14
    Tomblin, Hon. Earl Ray, Governor, State of West Virginia.....    10
        Prepared statement of....................................    11
    Webb, Bo, President/Current Member, Coal River Mountain Watch    82
        Prepared statement of....................................    84

Additional materials supplied:
    Alabama Surface Mining Commission; Indiana Department of 
      Natural Resources; Kentucky Department of Natural 
      Resources; Railroad Commission of Texas; Utah Division of 
      Oil, Gas and Mining; Virginia Department of Mines, Minerals 
      and Energy; and Wyoming Department of Environmental 
      Quality, Letter to The Honorable Joseph Pizarchik dated 
      November 23, 2010, submitted for the record................   110
    Interstate Mining Compact Commission (IMCC), Statement 
      submitted for the record...................................   114
    McDonnell, Hon. Robert F., Governor, Commonwealth of 
      Virginia, Letter to The Honorable Ken Salazar dated March 
      8, 2011, submitted for the record..........................    33
    Pizarchik, Hon. Joseph G., Director, Office of Surface 
      Mining, Reclamation and Enforcement, Response to Virginia 
      Governor Robert McDonnell dated May 6, 2011................    35
    ``Rahall Welcomes Monday Hearing on Stream Buffer Zone,'' 
      Press release submitted for the record.....................   109
    Western Governors' Association, Letter to The Honorable Ken 
      Salazar dated February 27, 2011, submitted for the record..    43
                                     



  OVERSIGHT FIELD HEARING ON ``JOBS AT RISK: COMMUNITY IMPACTS OF THE 
OBAMA ADMINISTRATION'S EFFORT TO REWRITE THE STREAM BUFFER ZONE RULE.''

                              ----------                              


                       Monday, September 26, 2011

                     U.S. House of Representatives

              Subcommittee on Energy and Mineral Resources

                     Committee on Natural Resources

                       Charleston, West Virginia

                              ----------                              

    The Subcommittee met, pursuant to call, at 9:00 a.m., in 
the Historical Courtroom 4, 407 Virginia Street, East, 
Charleston, West Virginia, The Honorable Doug Lamborn [Chairman 
of the Subcommittee] presiding.
    Present: Representatives Lamborn and Johnson.
    Also Present: Representative Capito.
    Mr. Lamborn. The Committee will come to order. The Chairman 
notes the presence of a quorum, which under Committee Rule 3(e) 
is two Members. The Subcommittee on Energy and Mineral 
Resources is meeting today to hear testimony for an oversight 
hearing on ``Jobs at Risk: Community Impacts of the Obama 
Administration's Effort to Rewrite the Stream Buffer Zone 
Rule.'' Under Committee Rule 4(f), opening statements are 
limited to the Chairman and Ranking Member of the Subcommittee. 
However, I ask unanimous consent that Mrs. Capito and Mr. 
Johnson be permitted to give an opening statement and to 
include any other Members' opening statements in the hearing 
record submitted to the Clerk by close of business today.
    Hearing no objection, so ordered. I now recognize myself 
for five minutes.

    STATEMENT OF THE HON. DOUG LAMBORN, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF COLORADO

    Mr. Lamborn. Thank you everyone for being here today. I'm 
Congressman Doug Lamborn of Colorado, and I am the Chairman of 
the House Natural Resources Committee's Subcommittee on Energy 
and Mineral Resources.
    We are here today to hear testimony on the job and 
community impacts stemming from the Obama Administration's 
rewrite of the stream buffer zone rule.
    All right. Thank you. OK. Thank you for your patience. 
Technical glitch there.
    In 1996, the National Wilderness Institute published the 
American Conservation Ethic, which comprised eight principles 
that the nation's policymakers should consider in the 
development of environmental policies and associated laws, 
rules and regulations. Several of those principles are worth 
examining in light of the topic of today's hearing, ``Jobs at 
Risk, Community Impacts of the Obama Administration's Effort to 
Rewrite the Stream Buffer Zone Rule.''
    An independent contractor hired by the Administration found 
that the rewritten stream buffer zone rule will result in the 
direct loss of over 7,000 jobs nationwide and place an 
additional 29,000 people living in the Appalachian Basin below 
the poverty level. Some believe that this is a low number. In 
any case, the numbers do not even begin to assess the indirect 
cost to jobs and to our economy if and when the price of 
electricity goes up.
    The first principle of the American Conservation Ethic 
provides important insight that we should all take to heart--
that is, people are the most important resource. Continuing to 
work on a rule that knowingly will directly eliminate thousands 
of jobs and will result in 29,000 people living below the 
poverty level is inexcusable policy. It is our job as lawmakers 
to institute policies that create jobs and make lives better 
for Americans. Instead, this Administration is pursuing a rule 
that will do exactly the opposite.
    However, rather than reinstating the 2008 rule after the 
economic impacts of the Administration's preferred alternative 
in the proposed rule were leaked to the press, the 
Administration instead severed ties with the initial 
contractor, Polu Kai, and has continued down this ill-advised 
path of rulemaking.
    I am deeply concerned that the Obama Administration may be 
guilty of suppressing inconvenient facts simply because they 
stand in the way of a different agenda. Chairman Hastings and I 
have initiated an investigation into the Office of Surface 
Mining's attempt to rewrite the 2008 stream buffer zone rule 
and the ongoing fiasco resulting from the Administration's 
rushed effort to fast track major changes to the nation's coal 
mining regulatory program established by the Surface Mining 
Control and Reclamation Act of 1977.
    Let's examine Principle Four of the American Conservation 
Ethic, which states, ``Our efforts to reduce, control and 
remediate pollution should achieve real environmental 
benefits.'' The environmental benefit of the proposed stream 
buffer zone rule is achieved through less mining; that is, less 
mining of a vital national resource, coal, a resource that 
currently provides thousands of Americans with good-paying jobs 
and more than 45 percent of the nation's electrical power.
    Twenty-two of the 25 states with the lowest electricity 
costs get at least 40 percent or more of their electricity from 
coal-fired power plants. And just exactly what are the so-
called benefits of less coal mining? Certainly not monetary.
    Reducing coal production nationwide will adversely impact 
revenues to Federal, State and local treasuries. It will reduce 
monies flowing into the Surface Mining Control and Reclamation 
Act Abandoned Mine Land Fund, where some of the interest earned 
is used to support the United Mine Workers of America retirees.
    Furthermore, reducing the amount of coal available for 
power generation will lead to higher electricity costs for 
American businesses and families, which lowers our standard of 
living, and thousands of Americans will be put out of work.
    We have repeatedly seen the unforeseen consequences and job 
loss that can follow unnecessary regulatory changes. The final 
stream buffer zone rule issued in December of 2008 was the 
result of a rulemaking process that took five years and was 
supported by 5,000 pages of environmental analysis and included 
thirty original research projects.
    That brings me to the final principle from the American 
Conservation Ethic that I'll share with you this morning. 
Principle Seven states, ``Science should be employed as a tool 
to guide public policy.'' The 2008 stream buffer zone rule 
employed science to guide public policy as exemplified by the 
extensive research conducted during the rulemaking process.
    The 2008 rule was more protective of the environment than 
the original 1983 rule issued during the Reagan Administration, 
the rule that is now in effect since the 2008 rule has been 
shelved by the current Administration.
    We have a full hearing today with ten witnesses, including 
Governor Earl Ray Tomblin, regulators from the states of West 
Virginia, Virginia and Wyoming, the West Virginia and Ohio Coal 
Associations, the Mountaintop Mining Coalition, CONSOL Energy, 
Coal River Community Watch and a community organizer.
    I look forward to hearing from all of our witnesses. I know 
many of you have been involved in the development of the 
programmatic mountaintop mining environmental impact statement, 
the 2008 stream buffer zone rule and the litigation that 
precipitated the production of the environmental impact 
statement, the rule in the current rulemaking process.
    In closing, I would like to reaffirm my belief that the 
United States is a nation of excellence. Our achievements 
through the development of our abundant natural resources have 
allowed America to prosper and constantly raise the standard of 
living for the next generation. Increasing responsible access 
to these resources will allow us to be less dependent on 
foreign sources of energy and mineral resources, will create 
new, private-sector jobs and will add revenue to government 
coffers, reducing the national debt and thereby increasing our 
national and economic security.
    I will now recognize Congresswoman Capito for five minutes 
for an opening statement.
    [The prepared statement of Mr. Lamborn follows:]

          Statement of The Honorable Doug Lamborn, Chairman, 
              Subcommittee on Energy and Mineral Resources

    Thank you everyone for being here today. I'm Congressman Doug 
Lamborn, and I am Chairman of the House Natural Resources Committee 
Energy and Minerals Subcommittee. We are here today to hear testimony 
on the job and community impacts stemming from the Obama 
Administration's rewrite of the Stream Buffer Zone Rule.
    In 1996, the National Wilderness Institute published the ``American 
Conservation Ethic,'' which comprised eight principles that the 
Nation's policy makers should consider in the development of 
environmental policies and associated laws, rules and regulations.
    Several of those principles are worth examining in light of the 
topic of today's hearing: Jobs at Risk: Community Impacts of the Obama 
Administration's Effort to Rewrite the Stream Buffer Zone Rule.''
    An independent contractor, hired by the Administration, found the 
rewritten Stream Buffer Zone Rule will result in the loss of over 7,000 
direct jobs nationwide and place an additional 29,000 people living in 
the Appalachian basin below the poverty level.
    The first principle of the American Conservation Ethic provides 
important insight that we should all take to heart. And that is:
        ``People are the most important resource:
    Continuing to work on a rule that knowingly will eliminate 
thousands of jobs and will result in 29,000 people living below the 
poverty level is inexcusable policy It is our job as lawmakers to 
institute policies that create jobs and make lives better for 
Americans--instead, this Administration is pursuing a rule that will do 
exactly the opposite.
    However, rather than reinstating the 2008 rule after the economic 
impacts of the Administration's preferred alternative in the proposed 
rule were leaked to the press,, the Administration instead severed ties 
with the initial contractor Polu Kai, and has continued down this ill 
advised path of rulemaking.
    Chairman Hastings and I have initiated an investigation into the 
Office of Surface Mining's attempt to rewrite the 2008 stream buffer 
zone rule and the ongoing fiasco resulting from the Administration's 
rushed effort to fast track major changes to the Nation's coal mining 
regulatory program established by the Surface Mining Control and 
Reclamation Act of 1977.
    Let's examine Principle Four of the American Conservation Ethic 
which states:
        ``Our efforts to reduce, control and remediate pollution should 
        achieve real environmental benefits.
    The `environmental benefit' of the proposed rule is achieved 
through less mining. That is less mining of a vital national resource--
Coal--a resource that currently provides thousands of Americans with 
good paying jobs, and more than forty-five percent of the Nation's 
electrical power. Twenty-two of the 25 states with the lowest 
electricity costs get at least 40 percent or more of their electricity 
from coal-fired power plants.
    And just exactly what are the benefits of less coal mining?
    Certainly not monetary; reducing coal production nationwide will 
adversely impact revenues to Federal, State and local treasuries, and 
monies flowing into the Surface Mining Control and Reclamation Act 
Abandoned Mine Land fund where some of the interest earned is used to 
support the United Mine Workers of America retirees.
    Furthermore, reducing the amount of coal available for power 
generation will lead to higher electricity costs for American 
businesses and families and thousands of Americans being put out of 
work. We have repeatedly seen the unforeseen consequences and job loss 
that can follow unnecessary regulatory changes.
    The final Stream Buffer Zone Rule, issued in December of 2008, was 
the result of a rulemaking process that took five-years and was 
supported by 5,000 pages of environmental analysis and included thirty 
original research projects. That brings me to the final principle from 
the American Conservation Ethic that I'll share with you this morning.
    Principle Seven states: ``Science should be employed as a tool to 
guide public policy.
    The 2008 Stream Buffer Zone Rule employed `Science' to guide public 
policy as exemplified by the extensive research conducted during the 
rule making process. The 2008 rule was more protective of the 
environment than the original 1983 rule issued during the Reagan 
Administration, the rule that is now in effect since the 2008 rule has 
been shelved by the current Administration.
    We have a full hearing today with ten witnesses, including Governor 
Earl Ray Tomblin; regulators from the states of West Virginia, Virginia 
and Wyoming; the West Virginia and Ohio Coal Associations; the 
Mountaintop Mining Coalition; Consol Energy; coal River Community 
Watch; and a Community Organizer.
    I look forward to hearing from our witnesses. I know many of you 
have been involved in the development of the Programmatic Mountain Top 
Mining Environmental Impact Statement, the 2008 Stream Buffer Zone 
Rule, and the litigation that precipitated the production of the EIS, 
the Rule and the current rulemaking process.
    In closing I would like to reaffirm my belief that the United 
States is a nation of excellence. Our achievements through the 
development of our abundant natural resources have allowed America to 
prosper and constantly raise the standard of living for the next 
generation. Increasing access to those resources will allow us to 
become less dependent on foreign sources of energy and mineral 
resources, create new private sector jobs and add revenue to government 
coffers reducing the national debt and thereby increasing our national 
and economic security.
                                 ______
                                 

STATEMENT OF THE HON. SHELLEY MOORE CAPITO, A REPRESENTATIVE IN 
            CONGRESS FROM THE STATE OF WEST VIRGINIA

    Mrs. Capito. Thank you, Chairman Lamborn and welcome to 
West Virginia. For those of you in the audience, most of you 
know this is my home county and my hometown and you know me 
well, and I would like to just give you a little lay of the 
land. This is basically what goes on in our committee hearings 
in Washington. Many of you have been to the committee hearings. 
We have panels where everybody will give five minutes of 
testimony and then questioning from the Members of Congress.
    But the whole point is to get the information from you all 
to us as we do our policies and make legislative decisions in 
Washington. And while we can sit in Washington and listen to 
what people are saying, it's so helpful to come out to the 
different regions that are most highly impacted to really get a 
flavor for the impact of a regulation such as we're talking 
about today or any kind of legislative endeavor that we're 
engaged in.
    Mr. Lamborn is from the Natural Resources Committee, 
Chairman of the Subcommittee, and Mr. Johnson is from Ohio, 
just drove in from Marietta. They're well aware of energy and 
energy production in their own states and the important and 
critical economic impacts that regulations can make. I welcome 
you on behalf of my fellow West Virginians.
    As you know, West Virginia is one of the largest coal 
producing states in the nation, and is home to some of the most 
valuable coal reserves. But in West Virginia, since I've been 
in the Legislature in 1996 and certainly living here, weaving 
the balance between the environment and the economy has been a 
challenge, as it is for the nation, it has certainly been a 
challenge here in West Virginia.
    As we know, the West Virginia coal mining industry itself 
employs over 50,000 people with some incomes reaching $80,000 a 
year, and we're proud of our natural resources here. We're 
proud that we have the natural resources that can help bring 
this country out of a national recession.
    But we do have an issue with the Federal regulatory actions 
that have been taking place most recently because I believe 
that it inhibits job growth and it sometimes can stymie our 
economic development.
    So in this hearing we're going to be examining, as you've 
heard, the Office of Surface Mining's proposed stream 
protection rule. How does that impact our job growth, our 
community and economic growth, because I think these are issues 
that we need to look at, as we're also looking at the 
environmental impacts, as well.
    The original rule mining activities of perennial and 
intermittent streams and was a clarification of the long-term 
regulatory interpretation of a prior rule. However, less than a 
year after that rule was finalized, and before the rule would 
even be in effect, the Administration tried to vacate the 
rulemaking review, but their actions were overturned by a 
Federal court.
    So what we're looking at now is sweeping changes to OSM's 
regulatory programs and expanding the scope of its stream 
protection rules. But the Office of Surface Mining's own 
analysis says--and Chairman Lamborn mentioned this in his 
statement--that this stream protection rule could result in 
29,000 hard working American coal miners losing their jobs and 
wiping out $650 million in wages, and certainly here in the 
Appalachian Basin we take those numbers very seriously. It 
could result, and it would result most certainly, I think I've 
seen numbers anywhere from a 10 to 20 percent increase in 
energy prices. When you think about that, we all live with 
neighbors who are on fixed incomes, trying to pay their 
electric bills through a cold winter and a hot summer, and we 
know that that's difficult, especially with our economy in such 
a stagnant pace. And I think it could eliminate as much as 
twenty to thirty percent of West Virginia's surface mining 
production.
    It's important to remember, too, that this rule does 
influence, and we'll hear this, I'm sure, in the committee 
testimony, does influence the underground mine industry as a 
fact.
    Now, one of the rules in Congress is when the red light 
goes off, you're supposed to stop talking. And so I see the red 
light went off when I was not watching, so I don't want to 
abuse my privilege. But I do welcome you. I know that there are 
many in the audience that we've met in my office who are 
opposed to looking at maybe job impacts and are very heavily 
influenced by the environmental impacts and very passionate 
about that, and your testimony will be a part of the record and 
will be heard by all the gentlemen and this is being streamed 
on the web, so a lot of people will hear this.
    So I want to thank you so much for the opportunity. I also 
am going to apologize because I am going to have to leave and 
not be able to attend the entire hearing. But thank you for 
coming to my hometown. Thanks.
    [The prepared statement of Mrs. Capito follows:]

           Statement of The Honorable Shelley Moore Capito, 
      a Representative in Congress from the State of West Virginia

    Chairman Lamborn, I would like to welcome you and your subcommittee 
to West Virginia. On behalf of my constituents, let me thank you for 
your leadership on this issue and your efforts to prevent the Obama 
administration from destroying West Virginia jobs.
    My home state of West Virginia is one of the largest coal producing 
states in the nation, and is home to some of the most valuable coal 
reserves in the world. The coal industry is one of the state's largest 
sources of jobs and tax revenue. As of 2008, the mining industry 
employed over 50,000 West Virginians, with incomes often reaching 
$80,000 per year.
    West Virginia has the natural resources to help create jobs and 
bring this economy out of recession. However, the federal government 
continues to take regulatory actions that inhibit job growth, and 
prevent West Virginian's from putting food on their tables. In this 
hearing, you will be examining the Office of Surface Mining's proposed 
Stream Protection Rule. In 2008, OSM's initial Stream Buffer Rule was 
finalized after several years of review by multiple federal regulators. 
The original rule governed mining activities near perennial and 
intermittent streams, and was a clarification of the longstanding 
regulatory interpretation of a prior rule with enhanced environmental 
protections. However, less than a year after the rule was finalized, 
and before the rule could even go into effect, this Administration 
attempted to vacate the rule without any rulemaking review, or 
opportunity for public comment. The Administration's actions were 
rightly ruled a violation of law by a federal court.
    The administration subsequently invoked upon a new rulemaking 
process that includes sweeping changes to OSM's regulatory programs, 
while expanding the scope of its stream protection rules to include 
both surface and underground mining activities. Some have claimed that 
these rules are of questionable environmental benefit, according to the 
West Virginia DEP, the environmental review conducted in support of the 
Stream Protection Rule has been universally characterized as junk.
    OSM's own analysis says that the Stream Protection Rule will result 
in 20,000 hardworking American coal miners losing their jobs, wiping 
out $650 million in wages. In the Appalachian basis alone, this rule 
would throw nearly 30,000 folks into poverty. The rule would also 
necessarily result in increased energy prices, including my 
constituent's electric bills, as it would eliminate 20 to 30 percent of 
West Virginia's surface mining production, while also eliminating 50% 
of West Virginia's underground coal mining activity.
    Mr. Chairman, West Virginian's are ready to lead this nation out of 
recession while making us more energy independent. Unfortunately, this 
cannot happen in the current regulatory environment. Folks I talk to 
back here West Virginia keep telling me that they are ready and willing 
to create jobs if only the federal government would get off their 
backs.
    If the administration thinks their policies are helping folks 
across the country, I invite them to visit my state to see how their 
actions are hurting families across Appalachia. It's time to take 
advantage of the resources found right here in America. Doing so will 
launch our economy in the right direction and create thousands of good-
paying jobs.
    West Virginia is truly blessed to have abundant supplies of natural 
resources. As a native West Virginian I enjoy my State's beauty and 
appreciate its pristine water, and want to do what is reasonably 
necessary to maintain our state's environment. But instead of helping 
West Virginian's tap into our full economic potential while 
implementing common sense environmental regulations, this 
Administration would rather implement its ideologically driven agenda.
    It is time for this administration to get off the backs of West 
Virginia's job creators by using common sense and not ideology. Thank 
you again for holding this very important hearing.
                                 ______
                                 
    Mr. Lamborn. Thank you, Representative. It's an honor to be 
here in your district and to be in the great State of West 
Virginia, so thank you for your opening statement.
    And before we hear our first panel, we'll have one more 
opening statement, and this is from Representative Bill Johnson 
of Ohio.

    STATEMENT OF THE HON. BILL JOHNSON, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF OHIO

    Mr. Johnson. Well, thank you, Mr. Chairman, for holding 
this important hearing on the economic impact that the 
Department of the Interior's Office of Surface Mining 
Reclamation's rewrite of the stream buffer zone rule could have 
on local communities like Charleston and other mining towns 
across the country. And I'd like to thank Congresswoman Capito 
for hosting us here in her hometown and all the great folks 
from West Virginia. It's good to see all of you out here this 
morning. Thanks for letting us come in.
    I represent eastern and southeastern Ohio and live just 90 
miles away in Marietta, Ohio. In the parts of eastern and 
southeastern Ohio that I represent, we have double-digit 
unemployment, reaching as high as 12.7 percent. There are 
entire communities that depend largely on the coal industry 
both for direct and indirect jobs and they would be devastated 
by this proposed rule change.
    According to the Obama Administration's own analysis of the 
rule, it would eliminate up to 7,000 direct coal jobs and tens 
of thousands of indirect jobs, cut coal mining production by 50 
percent and increase the cost of electricity for families and 
small businesses.
    As most of you may know, OSM, the Office of Surface Mining 
and Reclamation in December of 2008 issued a clarification of 
the stream buffer zone rules after a five-year process that 
included 40,000 public comments, two proposed rules and 5,000 
pages of environmental analysis from five different agencies.
    The final rule clarified and codified coal surface mining 
practices that had been in effect for over 30 years. But on 
January 20th, 2009, the Obama Administration decided to reopen 
the carefully crafted and properly vetted stream buffer zone 
rule.
    This proposed sweeping regulatory action would radically 
alter the definition of a stream, as well as how the agency 
measures material damage outside of the permit area. To date, 
the agency has provided no studies, no data or support to 
justify these radical changes. A judge later ruled that the 
Administration could not reopen the rulemaking process without 
cause. So what did the Administration do? They did what we've 
seen over and over again when settled rules by the 
Administration, if they don't like them. They practically sent 
out invitations to environmental groups to sue the Department 
of the Interior over the rule. Not surprisingly, they got their 
desired result, and before too long, two environmental groups 
filed a lawsuit protesting the rule.
    Then, instead of fighting the lawsuit in court, they 
entered into closed-door negotiations with the 
environmentalists and reached a settlement that would allow 
them to do what they wanted to do all along, rewrite the stream 
buffer zone rule and make it more restrictive.
    I don't know about you, but this sounds like collusion to 
me. And then in a slap to all tax payers, the same 
environmental groups that sued the Department of the Interior 
had their legal fees paid back by the taxpayer funded Judgment 
Fund. Now, I wish I could say that this is a special 
circumstance and that it doesn't happen often, but there are at 
least fifteen instances of this so-called practice of sue and 
settle that this Administration has participated in, to reopen 
rules they don't like. However, that's a problem and a 
discussion for a different day.
    Let me get back to the Administration's economic analysis 
of the rewrite of the stream buffer zone. Like I said, before 
this analysis completed by a leading environmental consulting 
firm showed that 7,000 direct and tens of thousands of indirect 
jobs would be lost if the rule went forward as written. This 
firm was paid millions of dollars to conduct this study. 
However, once the analysis leaked to the public, OSM fired the 
contractor without getting any of the money back. OSM claims 
that the contractor miscalculated the job loss, but it seems to 
me that they simply didn't like the results of the analysis and 
the press reports that came with it.
    For these reasons, I offered an amendment to the first 
continuing resolution from this year that would have stopped 
OSM from going forward with the proposed rewrite, their 
revision to the stream buffer zone. The amendment passed the 
House on a bipartisan vote of 239 to 186. Unfortunately, the 
language did not make the final continuing resolution that 
eventually became law. However, I have and I will continue to 
fight to have this language included in any new spending bill 
passed by Congress.
    The President, as you all know, has been touring the 
Midwest trying to promote what he calls a jobs bill. I find it 
ironic that this Administration has admitted that the rewrite 
of the stream buffer zone rule will cost thousands of direct 
and indirect jobs. If the President was serious about job 
creation, he would direct OSM to stop going forward with a 
regulation that will result in thousands of hard-working 
Americans losing their jobs.
    Thanks again, Mr. Chairman, for hosting this hearing and I 
look forward to hearing from the witnesses and their testimony 
today and I yield back the balance of my time.
    [The prepared statement of Mr. Johnson follows:]

               Statement of The Honorable Bill Johnson, 
          a Representative in Congress from the State of Ohio

    Thank you, Mr. Chairman for holding this important hearing on the 
economic impact that the Department of Interior's Office of Surface 
Mining, Reclamation re-write of the Stream Buffer Zone rule could have 
on local communities like Charleston and other mining towns across the 
country.
    I represent Eastern and Southern Ohio and live just 90 minutes away 
from Charleston in Marietta, Ohio.
    In the parts of eastern and southeastern Ohio that I represent, we 
have double-digit unemployment reaching as high as 12.7%. There are 
entire communities that depend largely on the coal industry--both 
direct and indirect jobs--that would be devastated by this proposed 
rules change.
    According to the Obama Administration's own analysis of the rule--
eliminate up to 7,000 direct coal jobs and tens of thousands of 
indirect jobs, cut coal mining production by 50%, and increase the cost 
of electricity for families and small businesses.
    As most of you may know, OSM in December of 2008 issued a 
clarification of the stream buffer zone rules after a five-year process 
that included 40,000 public comments, two proposed rules, and 5,000 
pages of environmental analysis from 5 different agencies. The final 
rule clarified and codified coal surface mining practices that had been 
in effect for over 30 years.
    But on January 20, 2009, the Obama Administration decided to re-
open the carefully crafted and properly vetted stream buffer zone rule. 
This proposed sweeping regulatory action would radically alter the 
definition of a stream as well as how the agency measures material 
damage outside of the permit area.
    To date, the agency has provided no studies, data, or support to 
justify these radical changes. A judge later ruled that the 
Administration couldn't reopen the rulemaking process without cause.
    So what did the Administration do? They did what we have seen over 
and over again with settled rules the Administration does not like, 
they practically sent out invitations to environmental groups to sue 
the Department of Interior over the rule.
    Not surprisingly they got their desired result and before long two 
environmental groups filed a lawsuit protesting the rule.
    Then, instead of fighting the lawsuit in court, they entered in 
closed-door negotiations with the environmentalists and reached a 
settlement that would allow them to do what they wanted all along, to 
re-write the stream buffer zone rule.
    I don't know about you, but this sounds like collusion to me.
    And then in a slap to all taxpayers, the same environmental groups 
that sued the Department of Interior had their legal fees paid back by 
the taxpayer funded Judgment Fund.
    I wish I could say that this is a special circumstance and that 
this doesn't happen often, but there are at least 15 instances of this 
so called practice of `sue-and-settle' that this Administration has 
participated in to reopen rules they don't like. However, that is a 
problem and a discussion for a different day.
    Let me get back to the Administration's economic analysis of the 
rewrite of the rule. Like I said before this analysis, complete by a 
leading environment consulting firm, showed that 7,000 direct and tens 
of thousands of direct jobs would be lost if the rule went forward as 
written.
    This firm was paid millions of dollars to conduct the study. 
However, once the analysis leaked to the public, OSM fired the 
contractor, without getting any of the money back.
    OSM claims that the contractor miscalculated the job loss, but it 
seems to me that they simply didn't like the results of the analysis 
and the press reports that came with it.
    For these reasons, I offered an amendment to the first Continuing 
Resolution from this year that would have stopped OSM from going 
forward with a proposed revision to the `Stream Buffer Zone' rule.
    The amendment passed the House on a bipartisan vote of 239--186.
    Unfortunately, the language did not make the final Continuing 
Resolution that eventually became law.
    However, I have and will continue to fight to have this language 
included in any new spending bill passed by Congress.
    The President as you all know has been touring the Midwest trying 
to promote what he calls a jobs bill. I find it ironic that his 
Administration has admitted that the rewrite of the Stream Buffer zone 
rule will cost thousands of direct and indirect jobs.
    If the President was serious about job creation, he would direct 
OSM to stop going forward with a regulation that will result in 
thousands of hard-working Americans losing their jobs.
    Thanks again for the Chairman for hosting this hearing and I look 
forward to hearing from our witnesses. I yield back the balance of my 
time.
                                 ______
                                 
    Mr. Lamborn. OK. Thank you. We will now hear from our 
witnesses. The first panel consists of The Honorable Earl Ray 
Tomblin, the Governor of West Virginia. Thank you, Governor, 
for being here. It's an honor to be in West Virginia today and 
so I welcome you to be our first witness in this important 
hearing. Like all of our witnesses, your written testimony will 
appear in full in the hearing record, so I ask that you keep 
your oral statement to five minutes, as outlined in the 
invitation letter. Our microphones are not automatic, so you 
need to turn them on when you're ready to begin. And after four 
minutes a yellow light will come on, then after five minutes a 
red light will come on, and you may complete at that time. 
Thank you again for being here, and you may begin, Governor.

            STATEMENT OF THE HON. EARL RAY TOMBLIN, 
                GOVERNOR, STATE OF WEST VIRGINIA

    Governor Tomblin. Thank you very much and welcome to West 
Virginia. We're pleased to have you here today. I'm Governor 
Earl Ray Tomblin and I would like to thank you for the 
opportunity to testify today. I'd also like to thank you for 
taking time to come to West Virginia and listen to the voices 
of people who, perhaps more than anyone, are threatened by the 
regulatory philosophy of the Environmental Protection Agency 
and the Federal Office of Surface Mining.
    Coal mining has always been a vital part of West Virginia 
and the national economy. For West Virginia, coal mining 
provides a significant number of jobs for our citizens and 
substantial tax revenue for the operation of our state and 
local governments.
    As a lifelong resident of a coal-producing area of southern 
West Virginia, I have a deep personal understanding of the 
importance of this industry to our state. There are millions of 
Americans who are unemployed. Millions more are struggling to 
make ends meet, working two or three jobs. Millions more have 
lost their homes and have had to declare bankruptcy. American 
families are suffering. They don't want a handout. All they 
want is a job.
    In contrast to most of America, we are fortunate in West 
Virginia, we are one of only a small handful of states that 
have been able to balance our budget and add to our rainy day 
fund reserves. For example, I'm proud to tell you that last 
year West Virginia had a surplus of approximately $330 million. 
In large part, we owe our current financial health to coal. 
We've had a crisis in waiting with implementation of the rule 
before you today and other Federal initiatives hanging in the 
balance.
    Over the past three years the EPA and other regulatory 
agencies have relentlessly pursued an ill-advised agenda, 
threatening one of our state's leading industries and tens of 
thousands of West Virginia jobs. I am deeply concerned about 
the direction the Federal agencies, including the EPA and OSM 
have recently taken in the regulation of the coal industry. It 
has been well-publicized that the preferred alternative for the 
stream protection measures rule that OSM identified in a draft 
environmental impact statement is one that will cause drastic 
reductions in coal production in the Appalachian region.
    These impacts are entirely inconsistent with the mandate 
Congress gave OSM in the Surface Mining Act and unacceptable to 
any type of economic development and job creation for my home 
state.
    For the good of West Virginia and other coal producing 
states, I hope the Energy and Natural Resources Subcommittee 
will take appropriate action to force OSM to act within its 
Congressional authority.
    EPA's obstruction of mining permits and this rule from OSM 
threatens the very existence of the coal industry in West 
Virginia and across the nation. These actions by the EPA and 
OSM are doubly problematic. Not only are they destroying coal 
mining and other good paying industrial jobs, but they are also 
increasing the cost of electricity and every product made using 
electricity. I think the Congress must act to restrain the OSM 
and the EPA. You must restore balance to the relationship of 
the states and the Federal Government. You must demand an end 
to legislation by regulation and restore the proper 
constitutional balance between the executive and legislative 
branches.
    I thank you and I apologize, I've got another appointment I 
must go to, but I certainly appreciate you being here today to 
listen to comments of the audience today. Thank you.
    [The prepared statement of Governor Tomblin follows:]

             Statement of The Honorable Earl Ray Tomblin, 
                       Governor of West Virginia

    Good afternoon. I am Governor Earl Ray Tomblin. I would like to 
thank you for the opportunity to testify today. I would also like to 
thank you for taking time to come to West Virginia and listen to the 
voices of people who, perhaps more than anyone, are threatened by the 
regulatory philosophy of the Environmental Protection Agency (EPA) and 
the federal Office of Surface Mining (OSM).
    The EPA's anti-coal agenda is having an extraordinarily negative 
effect on the spirit and minds of every hard working West Virginian. 
And it should be setting off alarm bells for our Country.
    Coal mining has always been a vital part of the West Virginia and 
National economy. For West Virginia, coal mining provides a significant 
number of jobs for our citizens and substantial tax revenue for the 
operation of our state and local governments. As a lifelong resident of 
the coal-producing area of Southern West Virginia, I have a deep, 
personal understanding of the importance of this industry to our State.
    All told, more than 63,000 West Virginians work in jobs provided by 
the coal industry. That is 63,000 families. Think about it for a 
moment--that means approximately 250,000 people in a state with less 
than 2 million citizens are supported, in one way or another by the 
mining of coal.
    There are millions of Americans who are unemployed. Millions more 
are struggling to make ends meet working two or three jobs. Millions 
more have lost their homes and have had to declare bankruptcy. American 
families are suffering. They don't want a handout. All they want is a 
job.
    In contrast to most of America, we are fortunate in West Virginia. 
We are one of only a small handful of states that have been able to 
balance our budget and add to our Rainy Day Reserves. For example, I am 
proud to tell you that last year West Virginia had a surplus of 
approximately $330 million. In large part, we owe our current financial 
health to ``Coal.'' West Virginia has also been successful in 
attracting several new businesses to our state due to our aggressive 
team of economic development professionals. But we have a ``crisis in 
waiting'' with the implementation of the rule before you today and 
other federal initiatives hanging in the balance.
    Over the past three years, the EPA and other regulatory agencies 
have relentlessly pursued an ill-advised agenda, threatening one of our 
state's leading industries and tens of thousands of West Virginia jobs. 
I am deeply concerned about the direction federal agencies, including 
the EPA and the OSM, have recently taken in the regulation of the coal 
industry. Since the EPA, the Interior Department, and the Corps of 
Engineers signed a Memorandum of Understanding on June 11, 2009, these 
agencies have undertaken extraordinary efforts to seize regulatory 
authority that legitimately resides with the states and Congress. The 
EPA has attempted to re-write the Clean Water Act and regulations to 
incorporate new policy judgments, without the benefit of a new mandate 
from Congress or at least the transparency and opportunity for public 
involvement that would accompany formal rulemaking.
    With the OSM Stream Protection Measures Rulemaking that is the 
subject of the subcommittee's current focus, I am concerned that OSM is 
also acting in contravention of its mandate from Congress. OSM's 
actions must be based on the federal Surface Mining Act. One of the 
principal purposes Congress established in the Surface Mining Act was 
to: ``assure that the coal supply essential to the Nation's energy 
requirements and to its economic and social well-being is provided and 
strike a balance between protection of the environment and agricultural 
productivity and the Nation's need for coal as an essential source of 
energy.''
    It has been well publicized that the preferred alternative for the 
Stream Protection Measures rule OSM identified in the draft 
environmental impact statement is one that will cause drastic 
reductions in coal production in the Appalachian region.
    As I understand it, OSM's draft environmental impact statement 
projects the following impacts from its proposed alternative:
          A decrease in surface mine coal production in the 
        Appalachian Basin of approximately 30%;
          A loss of approximately 10,00 jobs in the Appalachian 
        basin under the worst case scenario;
          An approximate 13.1% loss in severance tax; and
          An approximate 11.7% decrease in income taxes.
These impacts are entirely inconsistent with the mandate Congress gave 
OSM in the Surface Mining Act and unacceptable to any type of economic 
development and job creation for my home State. For the good of West 
Virginia and other coal producing states, I hope the Energy and Natural 
Resources Subcommittee will take appropriate action to force OSM to act 
within the limits of the authority Congress has given it.
    West Virginia's coal miners, the bravest workers in world, should 
be confident about their future, enjoying the fruits of their hard 
work, building new homes, and saving for their children's education and 
their own retirement. They should not be worrying about an overbearing 
federal bureaucracy that threatens the very backbone of their lives.
    EPA's obstruction of mining permits and this rule from OSM 
threatens the very existence of the coal industry, in West Virginia and 
across the nation. These actions by the EPA and OSM are doubly 
problematic. Not only are they destroying coal mining and other good-
paying industrial jobs, but they are also increasing the cost of 
electricity and every product made using electricity.
    If enacted, OSM's proposed re-write of the Stream Buffer Zone rule 
will drastically reduce coal production in West Virginia and across the 
nation. It will apply new standards that have no basis in the law.
    Congress must act to restrain the OSM and the EPA. You must restore 
balance to the relationship of the states and the federal government. 
You must demand an end to legislation by regulation and restore the 
proper Constitutional balance between the executive and legislative 
branches.
    Tens of thousands of coal miners in West Virginia, Appalachia and 
across the nation need your help. While our national leaders speak of 
stimulating the economy, federal regulatory agencies are erecting 
substantial barriers to the continued existence of the mining industry 
at every turn.
    While national leaders plead their case for more jobs, the agencies 
under their authority seem determined to drastically increase 
unemployment in our region.
    We, here in the great state of West Virginia, do not seek subsidies 
or handouts. We just want to continue to work at the jobs we know and 
love. To continue doing what we've done for decades--providing our 
nation and the world with the energy and industrial fuel it needs to 
pull itself out of a global economic recession. Industries fueled by 
West Virginia coal provide the wages and taxes that support our states 
and communities. I call on you to restore balance in the federal 
government--to reign in the out-of-control EPA and OSM--and to give our 
great nation a chance to lead the world out of its current economic 
downturn. We are leading the nation here in West Virginia with the help 
of Coal--let us now take a great step forward and use our Coal to lead 
the world forward into a prosperous new era.
    Thank you.
                                 ______
                                 
    Mr. Lamborn. I would like to also mention that we've been 
joined by the U.S. Senator for West Virginia and former 
Governor, Manchin, who's in the back of the room. If he would 
like to come up and if the Governor has no objection, and you 
have a comment or two to add on this important subject, you're 
very welcome to do that. And this is an example of how well the 
House and the Senate tries to work together in Washington.
    Governor, if you have to go, I have one question for you. 
If you have to go right this minute, let me ask you the 
question before the Senator speaks.
    Governor Tomblin. Sure.
    Mr. Lamborn. Some have said, and I happen to share this 
concern, so I could be saying this just as well as anyone else 
out there, that the Obama Administration seems to be waging a 
war on coal. Do you agree with that statement?
    Governor Tomblin. Well, I feel that the OSM and EPA are 
being completely unrealistic as far as the mining of coal goes. 
And obviously, under the previous Administration and my 
Administration, we have a lawsuit in the Federal court in 
Washington, D.C., questioning their authority and we feel like 
they've overstepped their bounds as far as the regulation of 
the coal industry.
    Mr. Lamborn. Did anyone else on the panel have a question 
for the Governor before the Senator speaks?
    Mr. Johnson. I actually do, and I'll make it quick because 
I know the Governor has got to go. Governor, do you think OSM 
is being a good steward of taxpayer dollars after spending 
millions on the first contractor, firing them because they 
didn't like the answers they got and then spending millions 
more on a new contractor?
    Governor Tomblin. Well, I feel my focus today is on coal 
mining and coal mining jobs in West Virginia, and I feel that 
some of the actions they're taking are overstepping the bounds 
that Congress has authorized them to have in West Virginia, or 
across the country, as far as coal mining goes. And obviously, 
my biggest concern is about the jobs of West Virginians here 
today and the continued production, responsible production of 
coal in the State of West Virginia.
    Mr. Johnson. Thank you, Governor.
    Mr. Lamborn. Governor, we know you're on a tight schedule, 
so at any time that you feel you need to leave, please do so, 
and thank you for being here.
    Governor Tomblin. Thank you, sir.
    Mr. Lamborn. And Senator Manchin, thank you for joining us, 
and if you have any comments that you would care to add on this 
important subject, we'd love to hear to from you.

 STATEMENT OF THE HON. JOE MANCHIN, A SENATOR IN CONGRESS FROM 
                   THE STATE OF WEST VIRGINIA

    Senator Manchin. More than happy. Thank you so much for the 
courtesy and the kindness, and to all my colleagues, to you all 
for coming. I know that our Congresswoman Capito from our 
wonderful state here has been a good hostess and I know that 
she's very appreciative and, I am, too, of you all bringing 
this inquiry down here.
    Let me just say that under this Administration it's been 
very onerous as far as trying to get a level playing field or a 
balance. And all we're saying is this country needs coal. It 
can turn its back all it wants to, but the bottom line, when 
it's all said and done, there's about 150 million people in 
America that depend on the energy that we have produced for a 
hundred years and we'll continue for as long as needed. We 
don't have a fuel of the future. In West Virginia, people don't 
realize we probably have more wind farms east of the 
Mississippi than most any other state. We're trying everything 
we can to be diverse and be totally independent of foreign oil. 
And we believe security of the Nation is the most important 
thing. West Virginia has always done the heavy lifting. We're 
not afraid of hard work. We've helped build this great country 
by producing the coal and make the steel and build the 
factories in defense of our country.
    So with all that being said, we think it's really 
unreasonable the approach that they're taking in making one so 
onerous. You've just heard where we have to close maybe five 
power plants. I don't think that that's necessary. I think 
there's a better way that we could save some of those plants, 
giving dependable, reliable and affordable energy. Coal has 
been able to do that and it will continue to.
    We know that with some of the investments that's been made 
in the sake of clean energy, we know that didn't go as well as 
it should have gone. Solyndra, I don't need to tell you all 
about it, $538 million. It was something that was rushed to 
show as the poster child that didn't work. Fine, those things 
happen. I understand that. But the bottom line is we could have 
used half of that money to complete a commercial operation as 
far as coal sequestration, showing that we could take the clear 
stream of carbon, sequester it, and also find better uses for 
it. We could have finished that project, so we know that has a 
payback and guarantee to the American taxpayers.
    I know that what you talked about, the amount of money that 
was spent in a prior Administration for a three- and four-year 
study, then the new Administration comes and rushes it through 
in five or six months and they found out that it had a 
tremendous, tremendous employment impact; a lot of people would 
have been displaced. And I think Congresswoman Capito will tell 
you, in West Virginia all we want is a balance between the 
environment and the economy. Can we do it better? Absolutely. 
But we need government as our partner, not our adversary.
    And we'll continue, if you've seen our terrain flying in 
here, you know that we have some challenges, but we have been 
blessed with the beauty and the natural resources. We can't 
build a road in West Virginia without making some adjustments. 
And if they take the approach that OSM is willing to take or 
wanting to take, it would stop everything as you know it. The 
economy would go to ``you-know-what'' in a handbasket and we'd 
be in serious trouble.
    Can we do it better? Absolutely. Can we do it? I always 
said this. If it's unreasonable, it's unattainable. The 
approach they're taking--and I've spoken to the OSM officials--
it is totally unreasonable. The aggressive approach they're 
taking, it makes no sense at all when we're in such dire need 
of the energy that we have in this great country and we've been 
blessed with in our state.
    I just thank all of you and I thank Shelley for bringing 
everybody and for you all coming down. I know that Congressman 
Rahall feels the same, Congressman McKinley feels the same, 
Senator Rockefeller feels the same. We're all in on this one. 
It doesn't have a party here. This is the most bipartisan 
approach I think you can take and it's refreshing because we 
don't see it too much in Washington. And I appreciate you all 
being here.
    Mr. Lamborn. Senator, thank you so much for your comments. 
Does anyone on the Committee have a comment in response? Thank 
you so much for being here. We appreciate it.
    Senator Manchin. Thank you for allowing me to say it. I 
appreciate it very much. Thank you.
    Mr. Lamborn. Thank you. We will now have our second panel 
and the witnesses on the second panel, of the three panels that 
we'll be hearing from today, and we're going to be getting all 
kinds of views on this important subject. But the second panel 
will consist of Mr. Thomas L. Clarke, Director of the West 
Virginia Division of Mining and Reclamation, Department of 
Environmental Protection; Mr. Bradley C. Lambert, Deputy 
Director of the Virginia Department of Mines, Minerals and 
Energy; and Mr. John Corra, Director of the Wyoming Department 
of Environmental Quality.
    And I would remind the witnesses as they come forward and 
get seated that members of the Committee may have additional 
questions for the record. I would ask for you to respond to 
these in writing. Like all of our witnesses, your written 
testimony will appear in full in the hearing record, so I ask 
that you keep your oral statements to five minutes as outlined 
in the invitation letter. You have to push a button at the base 
of the microphone to get them to work. And if you watch the 
light, you'll see that you have five minutes. And the yellow 
light comes on when you have one minute. The red light comes on 
when your five minutes are over.
    We will now begin with Mr. Clarke, and you may begin. Thank 
you for being here.

     STATEMENT OF THOMAS L. CLARKE, DIRECTOR OF MINING AND 
    RECLAMATION, WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL 
                           PROTECTION

    Mr. Clarke. Good morning. My name is Tom Clarke. I'm 
Director of the West Virginia----
    Mr. Lamborn. Could you speak into the microphone, please?
    Mr. Clarke. OK. Good morning. My name is Tom Clarke. I'm 
Director of the West Virginia Department of Environmental 
Protection's Division of Mining and Reclamation. I would like 
to welcome the Subcommittee to West Virginia and thank it for 
allowing me to talk about the Office of Surface Mining's Stream 
Protection measures environmental impact statement and 
rulemaking.
    What OSM is contemplating is a rewrite of all the rules 
governing the way coal mining is conducted in America. The 
Federal Surface Mining Act, SMCRA, governs OSM in this 
rulemaking. SMCRA was adopted in 1977, after six years of 
debate. This was in the midst of the energy crisis. In light of 
this, and in spite of the positions of those who advocated 
abolition or severe limitations on mining, Congress decided to 
strike a balance between environmental protection and meeting 
the nation's energy needs.
    With stream protection measures rulemaking, OSM is trying 
to alter the balance Congress establishment in 1977. This 
balance involved increased production of coal with 
environmental controls. Against the balance that Congress 
struck, consider that OSM's proposal by OSM's own numbers would 
radically alter the economy in the Appalachian region. Results 
like these are wholly inconsistent with the balance Congress 
struck in OSM should not be allowed to defy the intent Congress 
expressed in the Act establishing it.
    Mining, particularly mountaintop mining has been 
controversial. However, instead of abolishing surface mining or 
mountaintop mining, as some called for at the time, Congress 
authorized both and contemplated expansion of coal mining to 
meet the nation's energy needs. If there's political will to 
change this, the change needs to come from Congress, not from 
OSM. With this EIS and rulemaking, OSM is going to once again 
destabilize the regulatory structure for mining. Consider that 
every regulation of any significance that OSM originally 
promulgated to implement was challenged. Only in the last few 
years have legal challenges to the rules implementing some of 
its basic concepts been resolved and a degree of regulatory 
stability achieved. It took thirty years to get to this point. 
OSM's rulemaking will end that and is likely to lead to years 
of litigation and the uncertainty that goes with it.
    The EIS OSM is conducting has been a debacle. It engaged a 
contractor for this that apparently had never done an EIS and 
knew nothing about mining or the regulatory structure. On top 
of this, OMS expected the EIS to be completed in record time. 
It expected a draft EIS in eight months. By comparison, the 
draft EIS for the 2008 stream buffer zone rule, which OSM 
intends to replace with the stream protection measures rule, 
took 26 months, knowing this EIS built upon a previous one.
    The stream protection measures EIS is being performed as a 
standalone EIS. My agency and other state agencies have been 
cooperating agencies on this EIS. As the entities with 30 years 
of experience directly applying, we have valuable perspective 
to lend if OSM is really interested in taking the hard look at 
its proposed actions that NEPA contemplates. Instead, thus far 
the process has been conducted so as to effectively deny 
meaningful state participation. We were allowed five, four and 
nine business days to review and comment on Chapters 2, 3 and 
4, respectively. This involved hundreds of pages of material.
    There is no indication that OSM paid any attention to our 
comments. Under the circumstances, it is not surprising that 
the drafts OSM's contractor provided were very poor. My Deputy 
Director, who led our effort to review and comment on the 
drafts, said that the draft EIS looked like something a college 
student put together by cutting and pasting from the Internet.
    In SMCRA, Congress recognized that the terrain and climate 
vary widely across the country, and accordingly, chose to 
assign primary responsibility for implementing it to the 
states. Two of the concepts in that most peculiarly warrant the 
state specific approach are approximate original contour and 
material damage to the hydrologic balance. Contrary to the 
expressed purposes of Congress, in this rulemaking OSM intends 
to seize the authority to define these terms from the states 
and dictate Federal standards for them from Washington.
    Several other aspects of OSM's attempt to define material 
damage are troubling. One of them is that OSM has indicated it 
will include a biologic component in this definition. The 
Subcommittee may be aware that an emerging issue in the 
regulation of mining has been the extent of the protection 
provided for by Biota, an aquatic ecosystem under state water 
quality standards issued under the Clean Water Act. It's fair 
to say that EPA and states are not quite seeing eye to eye on 
this. OSM's entry into this debate by establishing biologic 
standards may violate SMCRA. SMCRA states that it does not 
supersede, amend or repeal the Clean Water Act. Because of 
this, a previous account by OSM to establish what amounted to 
water quality standards was rejected by the courts.
    There are many more troubling aspects to the proposed 
stream protection measures rulemaking. In the interest of 
staying within our time limits, I won't go into them further, 
but I encourage the Subcommittee to examine my written 
submission where I have summarized some of them.
    In closing, OSM needs to be held accountable to Congress. 
And I thank you again for taking the opportunity and time to 
hear from me.
    [The prepared statement of Mr. Clarke follows:]

    Statement of Thomas L. Clarke, Director, Division of Mining and 
   Reclamation, West Virginia Department of Environmental Protection

T he Decision as to Where the Balance Between Environmental Protection 
        and Energy Production Should be Struck is for Congress to Make, 
        Not OSM
    Somewhere along the path that Congress established for it in the 
Surface Mining Control and Reclamation Act (``SMCRA'' or the ``Act''), 
the Office of Surface Mining Reclamation and Enforcement (OSM) has lost 
its way. SMCRA was adopted in the midst of the Energy Crisis in 1977. 
Accordingly, a balance between environmental protection and energy 
production through coal mining was central to the policy Congress 
established in this Act. Thirty four years after Congress established 
the guiding principles for OSM's existence in SMCRA, OSM is 
disregarding its Congressional charter in favor of an aggressive 
regulatory agenda that runs directly contrary to these principles. In 
Appalachia, the country's top coal producing region at SMCRA's 
adoption, by OSM's own projections, the set of new regulations OSM is 
pursuing, the Stream Protection Measures Rule, would cause:
          A decrease in surface mine coal production in the 
        Appalachian Basin of 30%;
          A loss of 10,749 jobs in the Appalachian basin under 
        the worst case scenario;
          Lowering an additional 29,000 people in the 
        Appalachian Basin beneath the poverty level;
          A 13.1% loss in severance tax; and,
          An 11.7% decrease in income taxes.
    Recently, there has been a good deal of public discourse over the 
appropriate level of environmental protection that should govern the 
coal mining industry. The debate is reminiscent of the issues that were 
debated publicly and in Congress in the years leading up to SMCRA's 
adoption. In OSM's Stream Protection Measures environmental impact 
statement and rulemaking, it is playing to a constituency that, like 
their predecessors a generation ago, favors abolishing or greatly 
restricting surface coal mining in Appalachia. After at least six years 
of debate in the 1970's, Congress rejected this approach and chose to 
strike a balance between energy production and environmental 
protection. In adopting SMCRA, Congress found, ``expansion of coal 
mining to meet the Nation's energy needs makes even more urgent the 
establishment of appropriate standards to minimize damage to the 
environment and to productivity of the soil and to protect the health 
and safety of the public'' 30 U.S.C. Sec. 1201(d). Among the express 
purposes Congress set forth in the Act was to:
        [A]ssure that the coal supply essential to the Nation's energy 
        requirements, and to its economic and social well-being is 
        provided and strike a balance between protection of the 
        environment and agricultural productivity and the Nation's need 
        for coal as an essential source of energy. . .
30 U.S.C. Sec. 1202(f). First among the requirements Congress included 
in the performance standards section of SMCRA is a mandate that 
operators ``conduct surface coal mining operations so as to maximize 
the utilization and conservation of the solid fuel source. . .''. 30 
U.S.C. Sec. 1265(b)(1). OSM is now trying to significantly alter the 
balance struck by Congress in SMCRA and substitute its judgment as the 
appropriate level of environmental protection for the well-considered 
judgment Congress made on this subject in the Act. Policy judgments 
that would radically change the economy of West Virginia and Appalachia 
need to be made by Congress or the states and not federal bureaucrats 
at OSM.
The Basis for OSM's Decision to Undertake the Stream Protection 
        Measures Rulemaking
    With neither a new mandate from Congress, nor a record developed 
over the many years of experience under this Act to support OSM's 
regulatory agenda, one might wonder what the impetus behind this 
attempt to totally change the rules on how coal mining is conducted in 
America might be. The agency's only formal answer is disclosed in two 
Federal Register notices it has published. OSM explained:
        On June 11, 2009, the Secretary of the Department of the 
        Interior, the Administrator of the U.S. Environmental 
        Protection Agency (EPA), and the Acting Assistant Secretary of 
        the Army (Civil Works) entered into a memorandum of 
        understanding (MOU) implementing an interagency action plan 
        designed to significantly reduce the harmful environmental 
        consequences of surface coal mining operations in six 
        Appalachian states, while ensuring that future mining remains 
        consistent with Federal law.
75 Fed. Reg. 34667 (June 18, 2010); 75 Fed. Reg. 22723 (April 30, 
2010). The June 11, 2009 MOU committed OSM to making ``[r]evisions to 
key provisions of current SMCRA regulations, including the Stream 
Buffer Zone Rule and Approximate Original Contour (AOC) requirements''. 
In addition to the OSM rulemaking effort that is the subject of the 
Energy and Mineral Resources Subcommittee's current focus, this June 
11, 2009 MOU has been the genesis of other efforts undertaken by both 
OSM and the United States Environmental Protection Agency (``USEPA'') 
to unlawfully seize regulatory authority that legitimately resides with 
the states and other agencies under SMCRA and the Clean Water Act 
(``CWA'') and adopt what amount to new regulations for the regulation 
of coal mining that are contrary to these agencies' enabling statutes.
    The authors of this MOU apparently understood that accomplishment 
of their regulatory goals would fundamentally change and, perhaps, 
devastate the economy of the Appalachian region, which has historically 
been dependent on coal mining. To address this, the MOU anticipates 
that, ``the Federal government will help diversify and strengthen the 
Appalachian regional economy. This effort will include the agencies to 
this MOU, and other Federal agencies, as appropriate, and will work to 
focus clean energy investments and create green jobs in Appalachia.'' 
Clearly, economic and social engineering is well beyond any legitimate 
role Congress has granted to agencies like OSM, EPA and the other 
signatories to the June 11, 2009 MOU. These agencies need to be 
accountable to Congress and be required to operate within the legal 
authority Congress has granted them.
OSM is Promoting Regulatory Uncertainty
    SMCRA was adopted thirty four years ago. Through years of 
regulatory experience under the Act since then, we have only recently 
arrived at a point at which some regulatory certainty exists. 
Litigation has been said to follow the promulgation of regulations 
under the Act ``as night follows day''. Nearly all of the regulations 
promulgated to implement the Act, mostly from the late 1970's and early 
1980's, have been challenged in court. Only in the past few years have 
challenges to some of the regulations implementing some of the Act's 
basic concepts been finally resolved (e.g., ownership and control, 
valid existing rights, subsidence impacts). A degree of regulatory 
certainty has only recently been achieved under this thirty-plus year 
old law. Just as this has happened, and without the benefit of a new 
mandate from Congress supporting its actions or even a basis in the 
regulatory record developed over years of oversight of state regulatory 
programs, OSM is attempting to undertake a radical re-write of nearly 
all of the rules governing the manner in which coal mining operations 
are conducted. After over thirty years of efforts by OSM leadership, 
through administrations of differing political viewpoints, to ``get it 
right'' under SMCRA, today's OSM has decided that everyone who has 
preceded it has gotten it one hundred percent wrong. In doing so, the 
current OSM is boldly making quantum shifts in regulatory policy that 
are Congress' business to make.
The EIS Process Has Excluded Meaningful State Participation
    OSM correctly realized that its planned Stream Protection Measures 
rulemaking was sufficient in scope to require the preparation of an 
environmental impact statement (EIS) in accordance with the National 
Environmental Policy Act. However, OSM's schedule for completing this 
EIS was unrealistically ambitious. When the June 11, 2009 MOU committed 
OSM to changing its 2008 stream buffer zone rule, OSM was already in 
litigation with environmental groups challenging the 2008 rule. On 
March 19, 2010, after OSM was unsuccessful in persuading the court to 
allow it to simply cast aside the 2008 rule, OSM entered into a 
``friendly'' settlement agreement with the opponents of this rule. In 
this settlement, OSM committed to issuance of a proposed regulation 
replacing the 2008 rule, i.e., the Stream Protection Measures rule, by 
February 28, 2011. This necessarily required OSM to complete the draft 
EIS for the Stream Protection Measures rule within the same time frame, 
by February 28, 2011. The unreasonableness of the timeframe OSM 
targeted for completion of this EIS might be best illustrated by a 
comparison with the EIS it conducted for the 2008 stream buffer zone 
rule, which it aimed to replace. From OSM's announcement of its intent 
to prepare an EIS for the 2008 stream buffer zone rule through issuance 
of a draft EIS, a little more than 26 months passed. Importantly, the 
EIS for the 2008 rule built upon the more extensive Mountaintop 
Mining--Valley Fill EIS that had recently been completed in 2005. In 
contrast, the EIS for the Stream Protection Measures Rule has been 
conducted as a stand-alone EIS for a much more sweeping regulatory 
change than the 2008 stream buffer zone rule. OSM announced its intent 
to prepare the Stream Protection Measures EIS in April, 2010 and again 
in June, 2010. This allowed OSM only eight months to complete a draft 
EIS for the Stream Protection Measures Rule.
    OSM's schedule for the Stream Protection Measures EIS was totally 
inadequate for the undertaking involved. Cooperating agencies on the 
EIS, like the West Virginia Department of Environmental Protection, 
were not allowed to comment on Chapter 1 of the preliminary draft EIS 
that OSM prepared. The time cooperating agencies were allowed for 
comment on hundreds of pages of material in Chapters 2, 3 and 4 was 5, 
4 and 9 business days, respectively. OSM has either allowed the time 
commitments it made in its settlement with environmental groups to turn 
what should be an open, transparent EIS process into a sham or it has 
intentionally designed a process so as to avoid a transparent, hard 
look at the consequences of its proposed actions. Either way, OSM's 
procedure thus far has been a rush to a predetermined result, without 
any indication that it has paid attention to the comments of state 
agencies that have years of valuable experience directly regulating the 
coal industry under SMCRA.
    It is difficult to discuss the shortcomings of OSM's process for 
the EIS for the Stream Protection Measures Rule without also mentioning 
the problems with the content of the portions of the draft EIS 
cooperating agencies have been permitted to review. The contractor OSM 
engaged to prepare the draft EIS had no experience with coal mining or 
the surface mining regulatory program. This lack of experience shows 
throughout the drafts OSM has shared. We understand that OSM has been 
re-writing the drafts its contractor produced. It is our hope that this 
will result in a greatly improved product. However, with the way OSM 
has proceeded on the previous drafts of the EIS, we are greatly 
concerned about whether we will be given an adequate opportunity to 
review and comment on OSM's re-draft of the EIS. Again, the process for 
a change as significant as OSM's complete re-write of the rules on how 
coal mining is conducted in America should be done in a much more 
transparent fashion.
The West Virginia Regulatory Program's Existing Stream Protection 
        Requirements
    The regulatory programs in West Virginia and other states have not 
been static. The state programs have evolved over time to deal with 
state issues as they have arisen. The current OSM rulemaking will 
diminish the regulatory flexibility that states have in favor of 
national solutions dictated from Washington. West Virginia has been 
successful in addressing new issues as they arise, within SMCRA's 
regulatory framework. There are many requirements for the protection of 
the hydrologic balance an applicant for a permit must meet before a 
surface mining permit will be issued:
          Core drilling must be conducted in the area where 
        surface mining is proposed. Each layer of rock in the core 
        sample is analyzed for chemical content. The data is used to 
        determine which rock layers have potential to leach and produce 
        pollutants. The principal focus has been on prevention of acid 
        mine drainage (low pH and iron) and selenium pollution. Rock 
        layers that exhibit this potential are required to be specially 
        handled and placed, so the opportunity for these materials to 
        come into contact with water is minimized.
          The applicant must conduct extensive water sampling 
        to establish the pre-mining baseline condition for surface and 
        ground water quality and quantity in the area of the proposed 
        mine. The number of samples taken must be sufficient to 
        establish the seasonal variation in these baseline conditions.
          The applicant must perform a detailed analysis of the 
        likely effects of its proposed mining operation. This analysis 
        is called a ``PHC'' (prediction of Probable Hydrologic 
        Consequences).
          The applicant must include a Hydrologic Reclamation 
        Plan (``HRP'') in its application. The HRP must contain 
        measures the applicant will take to reduce the hydrologic 
        impact of its proposed mining operation, comply with effluent 
        limitations imposed under the CWA and a plan for replacement of 
        the water supply of anyone whose water supply is unexpectedly 
        contaminated or interrupted by the mining operation.
          The applicant must perform a Storm Water Runoff 
        Assessment (SWROA). In the SWROA, the applicant must model 
        storm water runoff from the proposed mining operation under 
        pre-mining, worst case during mining, and post mining 
        scenarios. The SWROA must demonstrate that the mine has been 
        designed so as to not allow a net increase in peak runoff in 
        comparison to the pre-mining condition. There is no federal 
        counterpart to West Virginia's SWROA requirement.
          The application must contain detailed engineering 
        design information for all drainage control or water retention 
        structures.
          The applicant must demonstrate that it has minimized 
        the amount of mine spoil it is not using in reclamation (excess 
        spoil) and placing outside the mined area in a drainway or 
        stream. West Virginia requires applicants to utilize a modeling 
        tool called AOC+ (approximate original contour) in making this 
        demonstration. This modeling tool has been in use for more than 
        ten years and has been approved by USEPA, the Army Corps of 
        Engineers and OSM as a legitimate means of demonstrating the 
        amount of mine spoil returned to the mined-out area for use in 
        reclamation has been optimized and the size of any fill placed 
        in a stream outside the mined area has been minimized.
          The agency must perform a Cumulative Hydrologic 
        Impact Assessment (``CHIA'') for the proposed mine and all 
        other existing or proposed mining in the cumulative impact area 
        for the proposed operation. A permit will not be issued unless 
        the agency can make a finding that the applicant has 
        affirmatively demonstrated that its proposed operation has been 
        designed to prevent ``material damage to the hydrologic balance 
        outside the permit area''.
          West Virginia is one of a few states that have 
        promulgated regulations defining ``material damage to the 
        hydrologic balance''. There is no federal definition of this 
        term.
          The agency performs a Buffer Zone Analysis (``BZA'') 
        for any permit which contemplates placement of spoil within one 
        hundred feet of an intermittent or perennial stream. The BZA 
        involves detailed environmental analyses of the environmental 
        impacts of spoil placement in such areas and has been relied 
        upon by the Army Corps of Engineers in its issuance of permits 
        for mining-related fills in waters of the United States under 
        section 404 of the Clean Water Act. There is no parallel to the 
        BZA in federal surface mining regulations. The BZA is described 
        in more detail in the attached letter from Thomas D. Shope of 
        OSM to Joseph M. Lovett dated December 8, 2009. This letter 
        also contains a detailed discussion of how the West Virginia 
        regulatory program complies with the State stream buffer zone 
        rule, which the subcommittee may also find to be of interest.
          The permit must establish plans for monitoring 
        surface and ground water quality and quantity during mining, so 
        predictions in the applicant's PHC can be verified. It must 
        also include a during-mining monitoring plan for verification 
        of the predictions of the SWROA it has conducted.
          The State recently adopted permitting guidance for 
        application of its narrative water quality standard for the 
        protection of the biologic component of the aquatic ecosystem 
        in NPDES permitting under the CWA. As a result, the Aquatic 
        Ecosystem Protection Plans required under this guidance for the 
        NPDES permitting program are now also being included in HRPs 
        for mining operations. CHIAs the agency performs are also 
        addressing protection of the aquatic ecosystem.
    Beyond the permitting requirements outlined above, the West 
Virginia regulatory program includes a number of performance standards 
that apply to all aspects of hydrologic protection that are addressed 
in permitting. The West Virginia Department of Environmental Protection 
inspects all permits on a minimum frequency of once per month to assure 
that performance standards and permit conditions are being met. 
Enforcement action is taken, including notices of violation and 
cessation orders, as appropriate, for a mine operator's failure to 
comply. Civil penalties are assessed for non-compliance. Operators 
which fail to correct violations on a timely basis are blocked from 
receiving future permits. A pattern of violations can result in 
suspension or revocation of a mine operator's permit.
Impacts of the Stream Protection Rule
    As discussed above, the negative economic impacts OSM projects for 
the Appalachian region are quite substantial. Because OSM has yet to 
lift the veil on the actual language of its proposed rule, a concise 
assessment of the rule's regulatory burden on state agencies cannot be 
performed. However, some observations can be made, based on the actions 
OSM has otherwise taken since the Interior Department signed on to the 
June 11, 2009 MOU and the concepts of the Stream Protection Measures 
Rule that state agencies have been able to glean from portions of the 
draft EIS and briefings OSM has provided.
    If the general direction OSM has taken since the June11, 2009 MOU 
is any indication, the regulatory burden the Stream Protection Measures 
Rule will impose on state regulatory programs can be expected to be 
quite substantial. Nearly every action OSM has taken since the June 11, 
2009 MOU has increased the burden on the states. Consider that OSM:
          Has unlawfully terminated the Abandoned Mine Lands 
        emergency program and indicated that it will transfer the 
        personnel OSM had previously dedicated to this program to 
        oversight of state programs;
          Proposed a draft budget that cuts funding of state 
        regulatory programs by 15%; and,
          Promulgated, without formal rulemaking, three new 
        policies governing oversight of state regulatory programs, REG-
        8, REG-23 and INE-35, which each alter the federal-state 
        relationship that previously existed and impose substantial new 
        bureaucratic regulatory burdens on the states.
At the same time OSM is adding more sets of eyes to watch state 
regulators and increase the number of federal inquiries to which states 
must respond, it is proposing to reduce the amount of money available 
to the states to operate their programs and has aggressively increased 
the bureaucratic burden it imposes on the states. With a total re-write 
of all of the rules on how coal mining is conducted, the changes states 
must undergo to implement the Stream Protection Measures Rule may 
represent the most significant of any of the new burdens the current 
OSM has thrust upon the states.
    Another fundamental shift in the federal-state relationship under 
SMCRA that will come from the Stream Protection Measures Rule is in the 
ability of states to craft their regulatory programs as necessary to 
address local state issues. In the thirty four years since SMCRA was 
adopted, OSM has left two of the Act's most fundamental concepts 
``approximate original contour'' and ``material damage to the 
hydrologic balance'', to the states to apply. This was done with good 
reason. Application of ``approximate original contour'' in the rugged 
Appalachian terrain of eastern Kentucky, southwest Virginia and 
southern West Virginia raises far different issues than in the flatter 
farmland of Indiana or the western plains. Application of the term, 
``material damage to the hydrologic balance'' necessarily involves 
vastly different issues in the arid west than in the more humid east. 
The Stream Protection Measures Rule will end the authority to deal with 
state-specific issues at the state level that states currently enjoy. 
It will impose national one-size-fits-all standards from Washington. 
This approach runs contrary to one of the express findings Congress 
made in adopting SMCRA:
        [B]ecause of the diversity in terrain, climate, biologic, 
        chemical, and other physical conditions in areas subject to 
        mining operations, the primary governmental responsibility for 
        developing, authorizing, issuing, and enforcing regulations for 
        surface mining and reclamation operations subject to this Act 
        should rest with the States[.]
30 U.S.C. Sec. 1201(f).
    There are many other specific issues with concepts that are 
expected to be embodied in the Stream Protection Measures Rule that are 
troublesome to the West Virginia Department of Environmental 
Protection. Some of them are:
          SMCRA provides that it is not to be applied in a 
        manner that will supersede, amend or repeal the federal Clean 
        Water Act. 30 U.S.C. Sec. 1292(a). This provision of SMCRA has 
        been applied by the courts to reject a past attempt by OSM to 
        establish what amounted to water quality standards. At the 
        present time, several of the Appalachian states, including West 
        Virginia, are in the process of establishing how narrative 
        state water quality standards for the protection of biologic 
        components of the aquatic ecosystem are to be applied in the 
        context of the regulation of coal mining. This process involves 
        great potential for conflict between USEPA and the states over 
        the application the Clean Water Act in this area. OSM intends 
        to interject itself in the middle of the debate between USEPA 
        and the states over this issue by including a biologic 
        component in its material damage definition . There is great 
        potential for this element of OSM's rules to conflict with the 
        Clean Water Act. The biologic component of the material damage 
        definition may be another unlawful attempt by OSM to establish 
        what amounts to a water quality standard.
          A proposed performance standard that would prohibit 
        adverse impacts to a stream's biologic community. This proposal 
        suffers from the same defects that affect OSM's proposal to 
        include a biologic component in its material damage definition, 
        as discussed in the paragraph above.
          The material damage definition is also expected to 
        include ``quantification methods'' to define what constitutes 
        material damage. Again, OSM appears to be at risk of 
        interfering with the Clean Water Act where these quantification 
        methods amount to de facto numeric water quality standards.
          The material damage definition will also include 
        ``corrective action thresholds'' to identify trends and require 
        correction before the level of material damage is reached. 
        This, too, presents great potential for conflict with the Clean 
        Water Act. The NPDES permitting program under the Clean Water 
        Act has a process to establish effluent limitations for 
        protection of water resources. Discharges from mines or other 
        facilities that comply with these limitations are lawful and 
        discharges that exceed these limitations are unlawful. OSM's 
        corrective action thresholds would appear to be attaching 
        regulatory consequences to what would otherwise be lawful 
        discharges under the Clean Water Act's NPDES program, in 
        conflict with the Clean Water Act.
          The material damage definition is expected to codify 
        OSM's Acid Mine Drainage Policy. Without getting into an in-
        depth discussion of the AMD policy, this probably is a 
        sufficient enough departure from the statutory language of 
        SMCRA to require it to be adopted through Congressional action 
        rather than agency rulemaking.
          OSM will propose that approval to mine through 
        natural drainage ways or streams be ``sequenced''. By this, OSM 
        means that a mine must completely reclaim a drainway it has 
        mined through, including restoration of the pre-mining biologic 
        community in the drainway, before the mine will be allowed to 
        mine through any subsequent drainway. In as much as drainways 
        across Appalachian mountain sides may be separated by only a 
        couple hundred feet, this proposal is entirely unrealistic.
          The portion of the Stream Protection Measures Rule 
        that deals with disposal of excess spoil proposes to require 
        constructed aquatards within excess spoil fills. Historically, 
        nearly all of the construction standards that have applied to 
        excess spoil fills have been oriented toward assuring their 
        stability. One element of the design has been to assure that 
        these structures drain freely. An aquatard is a layer of 
        decreased permeability where water will be forced to drain 
        laterally through the interior of a fill. This has the 
        potential to seriously compromise the structural integrity of 
        these fills. Our engineers refer to the aquatard as a ``failure 
        plane.'' The failure of such a structure would be a threat to 
        public safety.
          The excess spoil disposal rules will also require the 
        tops of fills to be sloped to cause drainage to run off instead 
        of infiltrating the fill. Achieving the goal of promoting 
        runoff will cause peak flow to increase during rain events, 
        contributing to offsite flooding.
          OSM proposes to place additional restrictions on the 
        granting of variances from the existing requirement for 
        restoration of the approximate original contour of mined lands. 
        This proposal has great potential to conflict with West 
        Virginia land use planning laws. The coal mining areas of 
        southern West Virginia have had little economic development 
        because the terrain is too rugged. The State Legislature has 
        recognized that mining presents a unique opportunity to provide 
        a resource that these areas lack, flat land. This is essential 
        to the future, post-mining economic viability of these areas. 
        The State has adopted legislation which requires county level 
        economic development authorities to develop county-wide master 
        land use plans. These plans are required to be approved by 
        state government and to meet certain minimum state 
        requirements. Each plan must be updated and re-approved by the 
        State at three year intervals so as assure that it remains 
        current. Under these plans, land that is proximal to supporting 
        infrastructure, such as four lane highways or other 
        transportation corridors, is targeted for development while 
        forestry and comparable land uses are planned for more remote 
        lands. New mining operations are required to attain a post mine 
        land use that comports with the county master land use plan. 
        OSM's proposal to further restrict variances from the 
        approximate original contour requirement conflicts with these 
        State land use laws and may foreclose the opportunity to 
        provide flat land through the mining process, so there can be 
        economic development of these historically coal dependent areas 
        after the coal is gone.
Conclusion
    I sincerely hope this written statement, the attachment submitted 
herewith and the oral testimony presented before the subcommittee are 
useful to it. If I can be of further assistance to the subcommittee, 
please contact me.

Attachment

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    Mr. Lamborn. Thank you, Mr. Clarke. Mr. Lambert?

  STATEMENT OF BRADLEY C. LAMBERT, DEPUTY DIRECTOR, VIRGINIA 
             DEPARTMENT OF MINES, MINERALS & ENERGY

    Mr. Lambert. Good morning, Mr Chairman and members of the 
Subcommittee. My name is Bradley Lambert and I serve as the 
Deputy Director of the Virginia Department of Mines, Minerals 
and Energy. Thank you for this opportunity to appear before you 
today.
    The coalfields of Virginia are characterized by steep 
slopes and narrow valleys. The mines in Virginia predominantly 
consist of underground and contour surface operations. Without 
coal surface mining, land uses such as hospitals, schools, 
shopping centers, airports, residential development, commercial 
and industrial development would not exist.
    Virginia obtained primacy from OSM as a regulatory 
authority for coal surface mining in December of 1981. OSM's 
annual oversight reports for Virginia have not identified any 
problems that would necessitate such a drastic rule change as 
we're here today to testify about. OSM stated in a 2010 report 
that they did not identify any systemic failures within the 
Virginia state program.
    Mr. Chairman, I'd like to submit for the record a copy of 
the 2010 Annual Report from OSM on Virginia.
    Mr. Lamborn. If there is no objection, that will be 
included in the record.
    [NOTE: The reports for Virginia and Wyoming can be found at 
http://www.osmre.gov/Reports/EvalInfo/2010/VA10-aml-reg.pdf and 
http://www.osmre.gov/Reports/EvalInfo/2010/WY10-reg.pdf]
    Mr. Lambert. After implementing years of stellar regulatory 
programs, OSM appears to be determined to impose a drastic 
change in how states administer our programs. In 2009, three 
Federal agencies including OSM, EPA and the Army Corps of 
Engineers, signed a MOU that appears to be the basis for the 
effort by OSM to change or revise the long-standing stream 
buffer zone rule. Early in the development of the draft EIS of 
the rule, OSM invited several states to participate as 
cooperating agencies. OSM hired a contractor from outside the 
coal mining regions who had no coal mining background. State 
cooperating agencies voiced their concern about the contractor 
and its ability to complete the draft EIS.
    OSM set an unreasonable time schedule for the review of 
each chapter of the draft and provide comments. In most cases, 
only five days were allowed for the review. The cooperating 
agencies expressed concerns regarding the timeframes under 
which they had to provide comments and many times requested an 
extension for the submission of comments. OSM never granted 
these requests.
    This proposed rulemaking will almost completely revise and 
undo 30 years of progress in the developing of regulatory 
framework in which primacy states, such as Virginia, administer 
their program. It has been learned that OSM dedicated $7 
million to completing the draft EIS. After the state 
cooperating agencies and other organizations outlined grave 
deficiencies in the draft of the EIS from the contractor, OSM 
removed the contractor as the lead and stopped their work. 
However, the contractor was paid $3.5 million for their 
deficient, inaccurate work. Now, it's been learned that OSM has 
hired another contractor for an additional $1 million for work 
on the draft EIS. To date, $4.5 million has been spent on the 
draft with nothing completed.
    On March 8, 2011, Virginia Governor Robert F. McDonnell 
wrote a letter to the Interior Secretary, Ken Salazar, 
expressing deep concerns about the draft EIS and other 
regulatory actions taken by OSM. Among those concerns were the 
potential significant and negative impacts of these actions on 
Virginia's coal industry and the economy. OSM director Joseph 
Pizarchik responded on behalf of Secretary Salazar. Mr. 
Chairman, I'd like to submit for the record both the letter 
from Governor McDonnell and a response letter from OSM Director 
Pizarchik.
    Mr. Lamborn. If there is no objection, that will be entered 
into the record.
    [The letters submitted for the record follow:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Lambert. Another major assumption in the draft EIS 
is that metallurgical coal production from the Appalachian 
Basin, including Virginia, would be offset with production from 
other sources. Virginia coal has a higher BTU and lower sulfur 
content than the national average. This quality makes Virginia 
coal more desirable for metallurgical coke production and 
export overseas for the export market.
    Finally, in a July 9, 2010 OSM press release titled, 
``Reducing the Social Cost of Energy,'' the agency stated that 
the intent of their oversight role. The release points out that 
the role of OSM is to help states maintain high standards and 
maintain a level playing field so that the industry in any one 
state does not have an unfair advantage in interstate 
competition.
    Mr. Chairman, clearly this is not the direction set out in 
the draft EIS. As pointed out by the contractor, coal 
production would be shifted from the Appalachian Basin to the 
western region and, in most cases, metallurgical coal 
production would have to be provided from overseas sources.
    Thank you for this opportunity this morning and I will be 
happy to answer any questions you may have.
    [The prepared statement of Mr. Lambert follows:]

       Statement of Bradley C. (Butch) Lambert, Deputy Director, 
           Virginia Department of Mines, Minerals and Energy

    My name is Bradley C. Lambert and I serve as Deputy Director of the 
Virginia Department of Mines, Minerals and Energy (DMME). I appreciate 
the opportunity to present this statement to the Subcommittee regarding 
the views of the DMME on the rewrite on the Stream Buffer Zone Rule.
    I would like to begin by providing you with some background 
information about the Virginia coal industry and DMME. Coal production 
has been important to Virginia's economic development since colonial 
days. The first commercial coal production in the United States 
occurred in 1748 from the Richmond Coal Basin just west of the State 
Capital in Richmond, Virginia. Coal production was important to 
Virginia until the Civil War during which much of the coal industry was 
destroyed. Commercial coal mining later rebounded in Virginia's 
southwestern-most counties in the 1880's and has been conducted 
continuously through to the present. Today, coal is produced in the 
seven extreme southwest Virginia counties.
    Virginia first implemented rules to address coal mining and 
reclamation issues in 1966. The minimal requirements of the early law 
and regulations failed to keep pace with the rapid expansion of surface 
mining activities in the Appalachian region. Following the passage of 
the 1977 Federal Surface Mining Control and Reclamation Act, Virginia 
sought and obtained primacy from the U.S. Office of Surface Mining 
(OSM) as the primary regulatory authority for coal surface mining in 
December of 1981.
    The coalfields of Virginia are characterized by steep slopes and 
narrow valleys. The mines in Virginia predominantly consist of 
underground and contour surface operations. Other operations include 
auger and highwall mining. Presently, Virginia has four mountaintop 
removal coal mines. These four operations have post mining land uses 
that include farm land, industrial, commercial or residential. Without 
mountaintop mining operations, land uses such as hospitals, schools, 
shopping centers, airports, and residential and commercial/industrial 
development would not exist.
    Coal production in Virginia peaked at 47 million tons in 1990. 
Expected production for 2011 will reach approximately 23 million tons. 
Virginia coal is of a higher British Thermal Unit (BTU) and lower 
sulfur content than the national average. This quality has made 
Virginia coal more desirable for metallurgical coke production and for 
the export market.
    Virginia's regulatory program is recognized across the nation as a 
leader and an innovator in many areas. Many states have benchmarked 
with Virginia on areas such as electronic permitting, underground mine 
mapping and the development of a GIS database that includes all surface 
mining areas as well as abandoned mined lands. Virginia continues to 
work on making this information available for public viewing through an 
outward facing web site. Through our electronic permitting system, 
other state and federal agencies can access coal mining permit data and 
applications and provide comments using the electronic application.
OSM's Draft Environmental Impact Statement for the Proposed Stream 
        Buffer Zone Rule
    The OSM's annual oversight reports for Virginia have not identified 
any problems that would necessitate such a drastic rule making. In 
fact, in the OSM Annual Evaluation Summary Report for the evaluation 
year of 2011, OSM writes ``Since the mid 1990's OSM has focused 
oversight on the ``on ground'' results that states are achieving. OSM 
is proposing that future oversight will likely include review of state 
permitting processes more closely. Yet, even when evaluated with a 
slightly different view on oversight, OSM finds that DMLR has 
successfully implemented both its regulatory and abandoned mine land 
program during the past year. OSM did not identify any systemic 
failures within the State program.'' We are submitting for the record a 
copy of the OSM's Annual Evaluation Summary Report for the Regulatory 
and Abandoned Mine Land Programs Administered by the Commonwealth of 
Virginia for 2010.
    For years the states have been administering stellar regulatory 
programs. Now the OSM appears to be determined to impose a drastic 
change in how states administer their programs. The OSM has not 
provided any information to the states as to the reason for revising 
the Stream Buffer Zone Rule that they have now termed the Stream 
Protection Rule. Nothing in the states' Annual Evaluation Report 
indicates that the states are doing a poor job of enforcing the current 
surface mining laws. The U.S. Department of the Interior, U.S. 
Environmental Protection Agency (EPA) and the U.S. Army Corps of 
Engineers (ACOE) signed a Memorandum of Understanding (MOU) in 2009, 
that appears to be the basis for the effort by OSM to change/revise the 
long standing Stream Buffer Zone Rule. The states were not consulted 
about or invited to sign this MOU, which is aimed at altering state 
regulatory programs. Yet this MOU is having a direct impact on the 
implementation of state programs. One significant item resulting from 
the MOU was the proposed the Stream Buffer Zone Rule. Early in the 
development of the draft rule OSM invited several states; including 
Virginia to participate in the development of the draft Environmental 
Impact Statement (DEIS) as cooperating agencies. OSM hired a contractor 
from outside the coal mining regions who had no mining background. 
Cooperating agency states voiced their concern about the contactor and 
its ability to complete the DEIS; however OSM moved forward with the 
contract.
    OSM set an unreasonable time schedule for cooperating agencies to 
review each chapter of the DEIS and provide comments back to OSM. In 
most cases only five days were allowed for the review. Due to such 
short timeframes for review and comment, meaningful input was made 
nearly impossible. In order to comply with these deadlines, states had 
to devote considerable staff time to the preparation of their comments 
which left less time for review of permit applications, answering 
citizen's complaints and completing required permit inspections. The 
cooperating agencies expressed concerns regarding the constrained 
timeframes under which they had to operate to provide comments and 
requested an extension for submission of comments on many occasions.
    OSM never granted these requests, even though OSM allowed 
additional time for the contractor to complete their work. It was made 
clear that if comments were not provided, they would not be accepted. 
However, any conflicting or critical statements from the cooperating 
agencies were ignored and not addressed in the DEIS. Later it was 
learned that other federal agencies that were reviewing the DEIS were 
not under the same time constraints for providing comments as were the 
states.
    The DEIS provided to cooperating agencies for their review and 
comments appears to be a document designed to support and rationalize 
OSM's decision to promulgate rules to diminish or eliminate Appalachian 
surface coal mining. All the action alternatives examined in the DEIS, 
other than taking no action, predict that the proposed stream 
protection rules would decrease Appalachian surface coal mining 
significantly. The predictions of decrease range from 10% to 100%--with 
OSM's preferred alternative (Alternative 5 in the DEIS) predicting a 
30% decrease.
    A major assumption is that metallurgical coal production from the 
Appalachian regions would need to be offset with production from other 
areas. The DEIS does not identify any other possible sources of 
metallurgical coal. This implies metallurgical coal would have to be 
obtained outside the United States. As metallurgical coal sale prices 
are usually three or four times higher than coal used for electricity 
generation, this would have a major economic impact (as inferred in the 
DEIS) since there will be a significant loss of coal needed for steel 
production.
    The DEIS appears to have been developed by individuals who are 
unfamiliar with the ecological functions, geology, hydrology, and 
mining practices in individual states. The data and impacts identified 
are limited to specific states within the Appalachian Region; however, 
the requirements contained within this document will pertain to each 
state within the entire Region.
    Instead of a document designed to support and rationalize a pre-
determined outcome, the DEIS should be a statement of fact-based 
alternative environmental results. Furthermore, the alternative 
outcomes should seriously consider the single most significant factor 
influencing environmental conditions in Virginia's coalfields--old 
abandoned mined lands (AML). The DEIS does not address the existing 
impacts to watersheds from pre-law mining and other non-point sources 
of impairments which affect most streams in the mining areas in 
Virginia. Approximately 90 percent of the streams in the Virginia 
coalfields have been impacted by water quality degradation, stream 
function degradation, loss of riparian habitat, etc. Surface mining has 
been used effectively in conjunction with Total Maximum Daily Load 
(TMDL) requirements to correct AML features which would never be 
addressed with AML funding. In fact, the TMDL implementation plans rely 
almost exclusively on remining, TMDL offsets and no-cost agreements to 
restore these streams to an unimpaired level.
    Reduction/elimination of surface mining in Virginia will severely 
impact stream restoration efforts. There are no other resources 
available to the coalfield communities to restore impaired streams. The 
shift of coal mining to the western United States will also reduce the 
AML funding available to restore impacted eastern streams through the 
OSM Clean Streams Initiative.
    The lack of attention to AML is one of several technical concerns 
that our agency has with the information in the DEIS. Other technical 
issues include OSM's efforts to define material damage, mandate post 
mining land uses, and misrepresent some of the scientific data.
    OSM is proposing that material damage to the hydrologic balance be 
defined as a measurable adverse impact on water quality and quantity 
resulting from degraded biological conditions in the intermittent and 
perennial stream network within the watershed. The concept that any 
measurable adverse impact be considered ``material damage'' is contrary 
to the plain language of SMCRA which states in Section 515 (b): 
``General performance standards shall be applicable to all surface coal 
mining and reclamation operations and shall require the operation to 
minimize the disturbances to the prevailing hydrologic balance at the 
mine-site and in associated offsite areas and to the quality and 
quantity of water in surface and ground water systems both during and 
after surface coal mining operations and during reclamation to the 
extent possible using the best technology currently available.'' As can 
be seen by this language the intent is to ``minimize'' adverse impacts 
to the hydrological balance--not to prevent any adverse impact. It is 
impossible to conduct surface disturbance operations such as coal 
mining or even underground mining operations, without temporarily 
leaving a footprint of some sort on the environment.
    The DEIS proposes a mandated post-mining land use. This is contrary 
to the spirit of SMCRA. Even though Virginia encourages reforestation, 
we recognize the environmental and economical value in a range of post 
mining land uses and the landowner's rights to implement land uses that 
are approved and properly implemented. Mandatory post mining land use 
requirements appear to be designed as simply another general obstacle 
to surface mining, as opposed to the idea of improving conditions after 
mining in such a way that mined lands properly reclaimed.
    Virginia has been a leader in promoting successful reclamation of 
mined lands. Working closely with Virginia Tech and other colleges and 
universities, Virginia and other Appalachian states and OSM developed a 
method for reclaiming mined lands to a reforestation land use. In 2011 
in Virginia, 2226.75 acres were planted with a total of 1,475,293 
trees. Of that total, 98.20% of the acres were reclaimed using the 
method developed. The reforestation method was accomplished in 
cooperation with the request of the landowner. The DEIS would not take 
into account the landowner's request for a post mining land use. The 
statement in the DEIS of post mining land uses going to hay/land 
pasture is not true in Virginia. The majority of coal mine reclamation 
returns land to an unmanaged forest post mining land use.
    Many of the scientific studies referenced throughout this EIS have 
been misrepresented and taken out of context. Others were not extracted 
from peer reviewed journals and should not be included in a decision 
document. Studies involving the effects of total dissolved solids (TDS) 
on coalfield streams did not include data collected from Virginia, even 
though our agency has been effectively addressing TDS through the TMDL 
program since 2005. Yet findings of the cited studies are being broadly 
applied to Virginia.
    OSM's proposed rulemaking on ``stream protection measures'' appears 
to be headed in a direction that will jeopardize the coal mining 
industry in Virginia. This proposed rulemaking will almost completely 
revise the Surface Mining Control and Reclamation Act (SMCRA) of 1977. 
This will undo over 30 years of progress in developing a regulatory 
framework in which primacy states, such as Virginia, administer a 
state-specific program, approved by the Secretary of the Interior, that 
is as effective as and no less stringent than the federal program.
    Several proposals in the OSM DEIS regarding ``preferred 
alternatives'' (such as not allowing a mine-through of a stream or 
drain way) are troubling. The requirements that, before a stream or 
drain way could be mined through, there must be a demonstration made by 
the applicant that the stream ``form and function'' can be restored, 
and that a premining impaired condition of a stream would not be 
accepted as the standard for measurement of success fly in the face of 
the Clean Water Act Rahall Amendment. This amendment authorizes the 
discharge of impaired waters from reclaimed remining operations as long 
as it is as good as or better than the premining baseline water 
quality.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Virginia mining operations containing stream channel 
reconstructions, such as the one pictured above, have won numerous 
awards including the Appalachian Region Reforestation Initiative Award 
presented by OSM, the National Association of State Land Reclamationist 
Award and the Interstate Mining Compact Commission's Kenes C. Bowling 
Award.
    OSM does not have the statutory authority to over ride Clean Water 
Act provisions such as the Rahall Amendment. The proposed rule contains 
numerous statements that OSM does not intend to utilize Clean Water Act 
provisions. For instance, in the preferred alternative for stream 
definition, OSM's DEIS preferred alternative states, ``This Proposed 
Action does not follow. . .Alternative #4's reliance on the CWA 
definitions.'' As the Army Corps of Engineers (CORPS) is charged with 
designating jurisdictional waters for the purposes of Section 404 
mining permits, OSM is establishing a separate stream designation 
process that it clearly intends to set up at its own discretion. This 
will most likely result in confusion and litigation, allowing second 
guessing of Corps' jurisdictional determinations.
    Statements in the DEIS lead the readers to believe that underground 
mining methods such as longwall mining will not be impacted. 
Underground mining can and will in some cases cause subsidence which 
will impact surface structures including streams. One statement in the 
document says that longwall mining does not cause subsidence even at 
depth. Those familiar with this type of mining know that this statement 
is not true. In fact, these operations plan for subsidence well in 
advance of mining. Underground mining, especially longwall mining, 
would be significantly restricted not only in the Appalachian region 
but any area where this type of mining is used since streams would be 
impacted by subsidence.
    Turning to the cost of the EIS, it has been determined that OSM had 
dedicated seven million dollars to completing the DEIS. These are funds 
that were originally identified for state regulatory programs. After 
the state cooperating agencies and other organizations outlined grave 
deficiencies in the DEIS from the contractor, OSM removed the 
contractor and stopped their work in developing the DEIS. However, the 
contractor was paid $3.5 million for their substandard and inaccurate 
work. OSM never had any discussions with the cooperating agencies about 
the problem with the contractor and were never notified that the 
contractor had been removed until after the fact. Now it has been 
learned that OSM has hired another contractor for $1 million for 
additional work on the DEIS. To date, $4.5 million has been spent on 
this DEIS with nothing completed.
    The impact of the DEIS alternatives on state regulatory programs 
has not been studied. The implications of these alternatives, such as 
increased permitting and monitoring requirements would be staggering. 
The changes proposed by the DEIS would create changes to the permitting 
process, which would mean increased staff for permit review, bonding 
review and most of all an increase in required funding for state 
programs. OSM's proposed funding for state programs has been decreasing 
over the last several years. In April of this year, states appeared 
before this subcommittee to express concerns about the potential 
federal budget reduction for state programs. At no time in the 
development of the DEIS has OSM consulted with states for input 
regarding the impact on additional resources and additional permit 
review times that the various alternatives would require.
    On March 8, 2011, Virginia Governor Robert F. McDonnell wrote a 
letter to Interior Secretary Ken Salazar expressing deep concerns about 
the DEIS and other regulatory action taken by OSM. (Governor 
McDonnell's letter and a response from OSM Director Joseph Pizarchik on 
behalf of Secretary Salazar are submitted for the record.) Among those 
concerns were the potential significant and negative impacts of these 
actions on Virginia's coal industry and economy. One of Virginia's 
vital resources, coal is used to produce 48% of the electricity 
consumed in the state, and much of Virginia's coals are of high grade 
metallurgical grade. Governor McDonnell also noted that coal production 
in the southwest region of the state is the primary economic engine for 
the region. Coal mining jobs are among the highest paying in the area, 
and many small businesses depend on the coal industry for their 
livelihood.
    The authors of the DEIS did not consider the census data for 
population trends. There are continuing out-migrations of people from 
the Appalachian coalfields, and any loss of jobs from the coal industry 
will only hasten the exodus. The employment in Virginia's mining 
industry has continued to decline during the past decade, not grow as 
indicated in the DEIS. The authors did not consult with state agencies 
for any employment numbers; they only made assumptions. Throughout the 
DEIS, the loss of direct service jobs, local retail jobs, as well as 
other indirect employment appears not to have been considered. In fact, 
projected employment loss is sometimes noted in the DEIS as being 
minor. However, local planning agencies in Virginia estimate that the 
multiplier effect of one coal mining job is from 4-6 additional jobs.
    In addition to the impacts of the stream protection measures on the 
industry and economy, Governor McDonnell noted that these requirements 
would have a detrimental effect on the remining of previously mined 
lands where lower priority abandoned mine land (AML) features continue 
to impact the environment. These impacts are not addressed in the DEIS. 
Nearly 80% of surface coal mining in Virginia involves some remining, 
including the use of no-cost AML projects where mining companies can 
reclaim AML features adjacent to permitted active coal mining sites. 
Remining has proven to be a viable method of correcting serious 
environmental and other problems that would not otherwise be funded 
under the Abandoned Mine Land Program.
    Finally, Governor McDonnell voiced his concerns that OSM has failed 
to follow Administrative Procedures Act and National Environmental 
Policy Act requirements in their rulemaking process. This equated to 
OSM writing the rule without completing a valid EIS and stating what 
the ``answer'' is without defining the ``problem.'' Contrary to OSM's 
assertion in OSM Director Pizarchik's response to Governor McDonnell 
that such failures did not take place, state agencies learned from 
information leaked on OSM's Share Point website that indeed OSM had 
developed a draft Stream Protection Rule.
    In summary, although the DEIS regarding OSM's proposed Stream 
Protection Rule examines the effects of the rulemaking on the 25 coal 
producing states, during the review of the document, staff from 
Virginia's Department of Mines, Minerals and Energy discovered that the 
majority of the adverse impacts will be within the Appalachian Basin. 
The effects of this rulemaking would eliminate many jobs and millions 
of dollars of revenue in Virginia. Virginia does not agree with the 
proposed rulemaking and the findings of the DEIS. Much, if not most, of 
the data included in the DEIS are not supported by any actual facts or 
figures. The information provided in the DEIS is often and inexcusably 
biased against the Appalachian Basin especially, in Virginia. OSM has a 
predetermined outcome (elimination of surface coal mining in the 
Appalachian Basin) and has not analyzed data nor conducted any studies 
to support their conclusions.
    Virginia believes that the state's environmental resources are 
protected by Virginia's current mining laws and regulations. We also 
believe that the economic impacts of the rulemaking are severely 
understated. Local level impacts would be intense and a global impact 
would be expected. A major assumption in the DEIS is that metallurgical 
coal production from the Appalachian Basin, including Virginia, would 
be offset with production from other sources. However, high value 
metallurgical coal would have to be obtained from outside the United 
States which is another example of industries moving overseas to the 
detriment of domestic production.
    In a July 9, 2002, OSM press release titled, ``Reducing the Social 
Cost of Energy,'' the agency stated the intent of their oversight role. 
The release points out that the role of OSM is to help states maintain 
high standards and maintain a level playing field so the industry in 
any one state does not have an unfair advantage in interstate 
competition. Clearly, this is not the direction of the DEIS. As pointed 
out by the contractor, coal production would be shifted for the 
Appalachian Basin to the western region, and in the case of 
metallurgical coal, that production may be moved overseas.
    One impact that has not been fully explored is the impacts to the 
AML program that may see human and health and safety problems go 
unabated with the loss of AML taxes on coal production. Employment 
opportunities in the Appalachian Basin are very limited and the loss of 
over seven thousand jobs as predicted in the DEIS would only increase 
the poverty level in the area. Mining provides some of the highest 
paying jobs in Southwest Virginia, and many small businesses depend 
upon coal companies for the bulk if not all of their income. Coal 
mining plays a major role in the opening up of areas for development. 
The Virginia Coalfield Economic Development Authority works closely 
with the respective county Industrial Development Authorities and coal 
companies to locate and acquire reclaimed level land for industrial 
development.
    It is also of note that the OSM DEIS does not include any changes 
to mining and permitting due to EPA's reinterpretation of the Clean 
Water Act. The combined impacts of these agencies' actions are 
devastating to the nation's economic and energy future. OSM's 
rulemaking proposes to shift coal mining production from the eastern 
United States to the western region to the detriment of the Appalachian 
Basin's economy.
                                 ______
                                 
    Mr. Lamborn. Thank you for your testimony and now to help 
us get a national perspective, the gentleman from Wyoming, Mr. 
Corra.

              STATEMENT OF JOHN CORRA, DIRECTOR, 
          WYOMING DEPARTMENT OF ENVIRONMENTAL QUALITY

    Mr. Corra. Thank you, Mr. Chairman. My name is John Corra. 
I'm the Director of the Wyoming Department of Environmental 
Quality. And I thank the Subcommittee for inviting us to 
testify today.
    The OSM has used a court order and an agreement with other 
Federal agencies aimed at tackling a problem in Appalachia as 
an excuse to impose unnecessary and costly over-regulation 
across all coal mining states. OSM's rush for completing the 
rulemaking is limited to the thoughtful and reasonable ``hard 
look'' as required under NEPA.
    The memorandum of understanding between the U.S. EPA, the 
Army Corps of Engineers and the Department of the Interior was 
specifically targeted at Appalachian coal mining, yet OSM has 
launched a nationwide overhaul of its program. As noted in a 
Western Governors' Association letter to Secretary Salazar in 
February of this year, a copy of which I submit for the record, 
we are unaware of any objective data, scientific or otherwise, 
that supports this level of change to SMCRA.
    Mr. Lamborn. And if there is no objection, we will enter 
that into the record, as well.

    [The letter from the Western Governors' Association 
follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Mr. Corra. In fact, there is significant evidence from 
OSM's own evaluation reports for Wyoming and other western 
states that current regulatory programs are working well. I 
would urge the OSM to reexamine the purpose and need for these 
rules. Now, if OSM proceeds with this rulemaking, it should be 
reminded not only of the MOU but also its own recognition of 
differences between east and west, and thereby apply the 
proposed regulations only east of the 100th meridian. This 
approach would parallel SMCRA's current legal framework and 
guidance documents.
    For example, alluvial valley floor protection is only west 
of the 100th meridian and, likewise, a bond release clock is 
only five years east of that line, ten years west of that line.
    Also, recognizing differences in water uses, quality and 
availability, Clean Water Act regulations have also treated 
area of the country west of the 98th meridian differently than 
the east. We can't help but think that both the Corps and EPA 
had this historical perspective about the nation's waters 
outside of Appalachia in mind when they signed the MOU.
    This rulemaking may also conflict with state authorities 
under the Clean Water Act. OSM does not have the authority to 
attempt to broaden a state's water quality standards by 
adopting new stream definitions, criteria and other 
restrictions. OSM's actions consistently appear to avoid or 
limit public and state comment. They have done so throughout 
the process. Scoping meetings were a sham because the public 
was not even allowed to speak at the agency's public meetings. 
The open house meeting in Gillette, Wyoming, for example, which 
is the center of 40 percent of the coal production in the 
United States, was held on the evening of July 29, 2010. The 
comment period ended the next day.
    The proposed rules will result in massive increases of 
information and data collection that may not even be useful or 
practical in improving environmental performance. To elaborate 
on just one aspect of those changes, the use of climax 
communities as a vegetation standard, it is widely recognized 
that periodic drought conditions, grazing impacts, and other 
pre-mining land uses make it nearly impossible to determine 
what the climax state of vegetation was or might be, let alone 
how accurately to measure it in the west.
    OSM also appears to be ignoring the substantial resource 
implications for these proposed rules. We find this 
particularly disturbing in light of the fact that OSM has a 
goal of significantly reducing their share of funding for our 
regulatory programs, while simultaneously considering adding 
significant staff for oversight activities, as well as 
significant staff to implement the stream protection rule.
    We're hopeful that OSM will comply with its obligations 
under NEPA and conduct a genuine EIS process where states are 
engaged in meaningful discussions. It must also make the effort 
to conduct a thorough economic analysis. What we have seen so 
far is inadequate, given the complex decision making process 
end users use when they make fuel-switching decisions. Just the 
myriad air and water rules that are either published or pending 
regarding the utility industry alone is enough to throw into 
question any simple assumptions that coal production will 
simply shift around the country as a result of OSM's proposal.
    Mr. Chairman, in my written testimony I presented some 
photographs of how we do it in Wyoming and I'll quickly refer 
to those.
    On page seven of my written testimony, if you have it in 
front of you, is a picture of North Tisdale Creek. It was mined 
in the 1990s. It's been restored. That mine received an OSM 
Director Award in 2003 and again in 2009 for successful 
reclamation and creation of wildlife habitat.
    On page eight, you'll see Exhibits 2A and 2B. This is the 
Tongue River Stream Restoration Project, which won this year's 
OSM Director's Excellence in Surface Coal Mining Award. The 
mining operation passed through Goose Creek and the Tongue 
River, which are fisheries in that part of Wyoming. Note how 
the stream had to be relocated during mining and how it took 
care of some post--or pre-mining underground subsidence 
features as well.
    Last, Exhibits 3A and 3B on page nine show another 
restoration project at Caballo Creek, which won the 2007 OSM 
Director's Award. Note the preservation of the stream gradient. 
Lots of things were done that you can't see below the surface.
    Mr. Chairman, we think that the State of Wyoming knows how 
to do this. We understand the previous stream buffer zone 
rules. We think we did it right and we do not understand the 
need for us to have this new rule.
    Thank you.
    [The prepared statement of Mr. Corra follows:]

                  Statement of John Corra, Director, 
              Wyoming Department of Environmental Quality

    My name is John Corra. I am the Director of the Wyoming Department 
of Environmental Quality. I wish to thank the Subcommittee for inviting 
the State of Wyoming to testify at this hearing today. Wyoming coal 
mines produced 442 million tons of coal in 2010, over 40% of the 
nation's total production. This was accomplished by 6,800 miners 
operating some the most advanced equipment at 18 mines across the 
state. Production generates over $1.8 billion in taxes, royalties and 
fees for use by federal, state and local governments. The economic 
impact to the state is much greater. The industry has been recognized 
many times for both its superior safety programs and its innovative 
reclamation efforts. We have primacy for the administration of the 
Surface Mining Control and Reclamation Act (SMCRA) in Wyoming, and year 
over year receive high marks from the Office of Surface Mining (OSM) 
for our regulatory programs.
    I would like to talk with you today about how Wyoming protects its 
waters and why this rule has little value for us. I will also speak to 
the disappointing process that has been followed to date relative to 
the Environmental Impact Statement (EIS) for this rule.
    The OSM has used a court order and an agreement with other federal 
agencies that were aimed at tackling a problem in Appalachia as an 
excuse to impose un-necessary and costly over regulation across all 
coal mining states. The action OSM is undertaking is a comprehensive 
rewrite of regulations under SMCRA, not just a stream protection rule. 
The packaging of this major revision to a law that has served the 
country well for over 40 years as a ``stream protection rule'' is 
misleading. Some of the changes being contemplated have broad 
implications and deserve thoughtful re-evaluation.
    We are unaware of any objective data, scientific or otherwise, that 
supports this level of change to SMCRA. The agency has not provided any 
objective data to support such comprehensive regulatory changes. In 
fact, OSM's most recent evaluation reports for 2010 strongly suggest 
otherwise. For example, the report for our state says that:''. . .the 
Wyoming program is being carried out in an effective manner.'' The 
report also shows that we have gained much ground in increasing the 
ratio of acres reclaimed to disturbed acres over the past 12 years. The 
report also mentions no issues with regard to restoring mined land to 
approximate original contour or reclamation bonding. The report goes on 
to say that: ``this lack of additional enforcement actions, despite 
increased inspection frequency, helps illustrate the effectiveness of 
Wyoming's regulatory program.'' And, inspections increased during the 
reporting period by a very significant 78%! While we are not perfect, 
and OSM does at times ask us to correct deficiencies, there is 
significant evidence from the OSM's own evaluation reports for Wyoming 
and other western states that current regulatory programs are working. 
Wyoming sees no justification for these significant rule changes or for 
the necessity of applying them nationwide.
    OSM's rush for completing the rulemaking is at the expense of 
thoughtful discourse as required by National Environmental Policy Act 
(NEPA). This undue haste is limiting the thoughtful and reasonable 
``hard look'' as required under NEPA. Although OSM had earlier 
identified an option to apply the regulations only to mountaintop 
removal and steep slope operations in Appalachia, that alternative 
seems to have been dropped. One of the primary justifications put 
forward by the agency in its Federal Register notice is a June 11, 2009 
memorandum of understanding (MOU) between the U.S. Environmental 
Protection Agency, the U.S. Army Corps of Engineers and the Department 
of Interior. The MOU was specifically targeted at ``Appalachian Surface 
Coal Mining'', and Section 404 of the Clean Water Act (CWA) in the 
states of Kentucky, Ohio, Pennsylvania, Tennessee, Virginia and West 
Virginia. Despite this clear limitation in the MOU, the OSM rules are 
written to apply everywhere, including Wyoming.
    NEPA requires an EIS to examine all reasonable alternatives to the 
proposal. If OSM proceeds with this rulemaking, it should be reminded 
not only of the MOU, but also its own recognition of differences 
between east and west and thereby apply the proposed regulations only 
east of the 100th Meridian. This approach would parallel SMCRA's (30 
CFR Chapter VII 785.19) current legal framework and guidance documents 
reflecting recognition of hydrologic and reclamation changes at the 
100th Meridian. For example, alluvial valley floor protection is only 
applied west of the 100th meridian. Likewise, the bond release clock is 
5 years east of this line and 10 years for the west, which is a 
recognition of the arid and semi-arid environment in the western U.S.
    The Clean Water Act also recognizes the unique differences between 
the arid west and the eastern part of the U.S. as noted in the National 
Pollutant Discharge Elimination System (NPDES) surface discharge 
regulatory program. This rulemaking may also conflict with state 
authorities under both the state SMCRA programs and under the Clean 
Water Act (CWA). OSM does not have the authority to attempt to broaden 
a state's water quality standards by adding new stream definitions, 
criteria, and restrictions such as ``material damage to the hydrologic 
balance.'' There are no federal water quality standards in Wyoming and 
OSM lacks the authority to establish any. OSM must work through the 
State rulemaking process since the authority to establish water quality 
standards rests solely with the state. OSM cannot do an end run around 
the prohibition against setting water quality standards by requiring 
state regulatory authorities to establish more stringent ``corrective 
action thresholds'' at the direction of OSM. In addition, 
``enhancement'' concepts are likely to conflict with mitigation 
requirements under the Corps' Sec. 404 program. OSM's proposals have 
serious potential to directly conflict with and/or duplicate CWA 
requirements of the state and/or the Corps.
    There are good reasons to make a distinction between the management 
and regulation of water in the western U.S. as compared to the east. 
Recognizing differences in water uses, quality and availability, Clean 
Water Act regulations have historically treated the area of the country 
west of the 98th meridian (arid west) differently than the eastern 
portions. We can't help but think that both the Corps and EPA had this 
historical perspective about the nation's waters outside of Appalachia 
in mind when they signed the MOU. If OSM insists upon a national 
approach, we hope that the parties re-open the MOU and make it 
available for public comment.
    The resource requirements and associated costs of implementing the 
proposed rules are of particular concern to the states. Proposed 
concepts regarding stream definitions, expanded biologic criteria, 
definition of material damage to the hydrologic balance and the 
replacement of Post Mining Land Uses with ``climax communities'' as a 
reclamation requirement all trample on effective and time-proven mining 
and reclamation efforts by the states. To elaborate on just one of 
these changes, the use of climax communities as a standard, it is 
widely recognized that the periodic drought conditions, grazing 
impacts, and other pre-mining land uses and climatic variables make it 
nearly impossible to determine what the state of vegetation was, or 
might be, let alone how to accurately measure it given the scale of 
variability that exists in the west.
    Wyoming has the necessary regulations in place to assure stream 
protection and when necessary, stream diversion and reclamation, as 
evidenced by successful efforts that have been recognized by OSM over 
the years. I would like to review just a few examples.
    North Tisdale Creek Stream Restoration, Caballo Coal Mine, Caballo 
Mining Company. This area was mined in the 1990's. The mine was 
required to record the pre-mining conditions, preserve topsoil, and 
reclaim the mining area to an approved post mining land use. As can be 
seen by the photo, restoration of a wetlands area has been successful. 
In fact the mine received awards in 2003 and again in 2009 for the 
successful reclamation of the North Tisdale Creek Wetlands, and the 
creation of wildlife habitat. Please see Exhibit 1.
    Tongue River Stream Restoration, Big Horn Coal Mine, Big Horn Coal 
Company (subsidiary of Kiewit Mining). This project won the OSM 2011 
Excellence in Surface Coal Mining Award. The Tongue River in northern 
Wyoming is a trout fishery at this location. As can be seen in the 
following photos, the mining operation progressed through the 
intersection of Goose Creek and the Tongue River. Note that the stream 
had to be relocated to accommodate mining. Stream function was modestly 
impaired for a period of time until restoration. It is unclear if this 
would be allowed under OSM's proposed rules concerning material damage 
and biologic thresholds for action. Note the reclaimed grasslands on 
both sides of the stream, and how it is beginning to blend in with the 
pre-mining vegetation shown in the background. Please see Exhibits 2a 
and 2b.
    Caballo Creek Restoration, Belle Ayr Mine, Alpha Resources. This 
project won the 2007 OSM Reclamation and Enforcement Director's Award. 
Note the preservation of the stream gradient to ensure against excess 
erosion. Additionally, rock weirs were incorporated in the reclaimed 
channel to mimic the pre-mine riffle/pool structure of this 
intermittent prairie stream. Please see Exhibits 3a and 3b.
    Other projects worth noting, but with no exhibits are:
    Wyodak Mine:  1.7 miles of Donkey Creek reclaimed with water flows 
returned to reclaimed channel in 2005.
    Cordero-Rojo Mine:  3.9 miles of Belle Fourche River reclaimed 
with water flows scheduled to be returned to reclaimed channel in 
December, 2012. Cordero-Rojo Mine received 2006 Excellence in Surface 
Mining and Reclamation Award from the WDEQ for design of this river 
channel reconstruction.
    Eagle Butte Mine:  2.0 miles of Little Rawhide Creek reclaimed.
    Buckskin Mine: 0.90 mile of Rawhide Creek; received the 1997 OSM 
Reclamation and Enforcement Director's Award for successful 
reclamation.
    North Antelope Rochelle Mine:  2.1 miles of Porcupine Creek 
reclaimed with water flows returned to two of the three reaches.
    There are also cases where we refuse mining through important areas 
that, in our belief have key hydrologic issues or would not be capable 
of restoration. For example, Wyoming affords a high level of protection 
to alluvial valley floors, or stream valleys underlain by 
unconsolidated stream-laid deposits which have sufficient water 
availability to be important to agriculture.
    Each mine application is reviewed carefully and the applicants are 
required to accurately describe the pre-mining conditions and land 
uses. An approvable mine permit application must contain a reclamation 
plan that assures achievement of post mining land uses, and a return of 
the land to a use equal to or better than before. We are proud of our 
regulatory efforts, and have had a long history of mine regulation and 
restoration, even prior to the enactment of SMCRA. We don't believe we 
would be the nation's largest coal supplier, as well as one of its most 
beautiful places, without the commitment of both our regulators and our 
industry. We are perplexed that the EIS process to date has been so 
distant from Wyoming.
    OSM actions consistently appear to avoid or limit public and state 
comment throughout this rulemaking. Initially the agency tried to avoid 
rulemaking altogether by asking a federal court to allow it to revise 
the stream buffer zone rule through a guidance document. This request 
was denied. Next, OSM denied multiple requests for additional time to 
comment on their advanced notice of proposed rulemaking on this issue 
in December, 2009, providing the bare bones minimum period of time 
required by law for one of the most complicated rulemaking efforts in 
OSM's history. The agency's initial scoping notice was so deficient 
that OSM had to issue a second notice providing more information in 
June 2010. Scoping meetings were a sham, because the public was not 
even allowed to speak publicly at the agency's public meetings. The 
public open house meeting in Gillette, Wyoming, which is the center of 
40 percent of the coal production in the US, was held the evening of 
July 29, 2010. The comment period ended July 30, 2010. This hardly 
represents time for thoughtful discourse.
    The EIS documents provided by OSM have-been poorly written, unclear 
and sometimes internally inconsistent. The unreasonably complex process 
of 5 alternatives with 11 items for each alternative results in 55 
options to evaluate. It has been difficult to follow.
    Wyoming is a ``cooperating agency'' in preparation of the EIS. Yet, 
we do not believe we have been given meaningful opportunity to comment 
and participate. Sections of the EIS with 25, 50, and even 100's of 
pages were distributed to the States with only a few days to read, 
review, and provide comment back to the agency. States were forced to 
withdraw staff from permitting and other critical areas in order to 
have any opportunity to provide feedback to OSM within the required 
timeframe. Even when states take such measures, meaningful comments 
could not be provided in an appropriate manner.
    OSM appears to be ignoring the resource implications for these 
proposed rules. We find this particularly disturbing in light of the 
fact that OSM has a goal of significantly reducing their share of 
funding for our regulatory program.
    The proposed rules will result in massive increases of information 
and data collection that may not even be useful or practical in 
improving environmental performance. This is a significant resource 
burden and suggests that OSM pay close attention to the cost/benefits 
of forcing a solution to an eastern problem upon western states, such 
as Wyoming. We are hopeful, now that OSM has retained a new contractor 
and pressed the pause button on the EIS process, that it will comply 
with its obligations under NEPA and conduct a genuine EIS process where 
States are engaged in real discussions of the regulatory options and 
EIS alternatives. They have committed to do so, and I hope we get the 
chance to share Wyoming's expertise.
    I also suggest that OSM extend its deadline so that it can re-
examine the ``purpose and need'' for these rules, provide appropriate 
scientific and factual information to support a rule change of this 
magnitude on a national scale, and engage Wyoming and other states in a 
more meaningful way. An extension would also allow enough time to 
thoroughly evaluate the economic impacts of the rule. The analysis that 
we have seen so far is inadequate especially given the complex decision 
making process that a customer using a given type of coal uses in fuel-
switching decisions. The myriad air and water rules that are either 
published or pending regarding just the utility industry alone is 
enough to throw into question any simple assumptions that coal 
production will simply shift around the country as a result of OSM's 
proposal.
EXHIBITS

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    Mr. Lamborn. Thank each of you for being here. Thank you 
for your statements and we will now begin questioning. Members 
are limited to five minutes, but we may have additional rounds 
on this important subject and I recognize myself for five 
minutes for questions.
    Each one of you have referred to the compressed time 
schedule that you were given to respond. Can a state even give 
an adequate response in five or ten days? I find that when I 
send something to a state, or even worse, maybe a Federal 
bureaucracy, it takes them that long to open the envelope and 
get it to the right desk. Could any of you care to respond to 
that, please? And does this reach the level of making it hard 
to respond that creates possible legal challenges to the 
process?
    Mr. Clarke. I think I'm on. I'm not sure. The light is not 
on. But I'll take that, Mr. Chairman. Absolutely, we didn't 
have enough----
    Mr. Lamborn. Just speak into the microphone. I think it's 
on.
    Mr. Clarke. Absolutely, we didn't have enough time to 
review that. We had to pull in all of our staff for those short 
periods of time, three, five and nine days. Even our field 
staff we had working on this effort, which took away time from 
permit reviews that we couldn't address. We couldn't address 
citizen's complaints because we were in such a short time 
constraints. Every state was told, if you didn't submit your 
comment within this time allowed, your comments would not be 
received. So we had a special effort to try to do that with in 
mind that we weren't going to be able to fully address hundreds 
of pages of documents within such a short timeframe. So to 
answer your question--No, we could not.
    Mr. Lamborn. Mr. Corra?
    Mr. Corra. Mr. Chairman, thank you. I would echo those 
remarks, but also note that the State of Wyoming is a 
cooperating agency with many Federal partners on many different 
EIS's and this one was absolutely different from anything else. 
And being a cooperating agency carries with it some access to 
both the people that are writing these documents, as well as 
people inside the Federal agency that are reviewing them. We 
never had that opportunity either.
    Mr. Lamborn. What is the normal process for a cooperating 
agency, as far as timeframe for making comments on an 
environmental impact statement, in your experience?
    Mr. Clarke. Mr. Chairman----
    Mr. Lamborn. Mr. Clarke.
    Mr. Clarke.--I would think that would have to vary with the 
complexity of the issues being examined. Here we were 
confronted with each of these chapters with many, many pages of 
what should have been technically oriented material, and with 
that kind of material to be examined, some reasoned amount of 
time to respond, which we were not given, should be allowed.
    Mr. Lamborn. What would you have preferred?
    Mr. Clarke. I think when I saw it, probably applies to 
other states, but in West Virginia each person who was involved 
in responding with comments on the EIS has a real job aside 
from doing that. People were taken away from their real jobs. 
Here--three weeks to a month. You know, I don't want to make it 
take forever. I don't want to create additional bureaucratic 
mechanisms, but that would have been a much fairer amount of 
time to really dig into something that is involved in such a 
sweeping change as what OSM is proposing to make.
    Mr. Lamborn. And how much time were you given?
    Mr. Clarke. We had five business days on Chapter 2, four 
business days on Chapter 3, and nine business days on Chapter 
4.
    Mr. Lamborn. OK. Now, changing subjects slightly, do you 
believe that the proposed rule may violate SMCRA or the Clean 
Water Act? And I know, Mr. Corra, you made a quick reference to 
that. Could you elaborate a little bit and then if either one 
of you could add to that, I'd appreciate it?
    Mr. Corra. Yeah. Mr. Chairman, the Clean Water Act gives--
if the states seek primacy, gives the states the authority and 
responsibility for setting water quality standards and 
setting--and establishing uses for various streams--well, all 
the streams, for that matter. And so we see this as sort of an 
end-around to our responsibilities and authorities where they 
set them through another Federal statute and come in and set 
those standards instead of the state. And we're very unclear as 
to whether that would end up being the result from this 
rulemaking.
    Mr. Lamborn. Either one of you gentlemen?
    Mr. Lambert. Yes, Mr. Chairman. In the draft rule, OSM is 
proposing to eliminate the Rahall amendment to the Clean Water 
Act but not allowing discharges from pre-mining sites to be as 
good as or better than what the pre-mining discharge was. 
That's specifically what the Rahall amendment to the Clean 
Water Act was about. And this proposal by OSM, they would have 
eliminated that totally.
    Mr. Clarke. I think I'd point to at least three areas at 
SMCRA to say that there's significant tension, if not just a 
violation of the enabling act that OSM is operating under. 
First, as I suggested in both my written and oral statement, 
SMCRA envisioned an increase in coal production in the country 
after its adoption to meet the nation's energy needs, which was 
a significant concern at the time in light of the energy crisis 
that was prevalent in the development of social and economic 
policy for the country. This aims to reduce coal production 
significantly in Appalachia, the number one coal producing 
region in the country at the time of SMCRA's adoption. That 
could not have been the policy envisioned by the people who 
voted for this law in 1977.
    Also, SMCRA envisioned that because of the diversity in 
climate and terrain, that states would be the primary 
regulators and would have some freedom to tailor their state 
programs individually to state specific concerns. What we have 
now is a one-size-fits-all approach that's going to be imposed 
in the stream protection measures rule on things like 
approximate original contour and material damage. The issues 
that John faces on material damage to hydrologic balance in 
Wyoming are vastly different than what Mr. Lambert and I face 
in a more humid east. Approximate original contour, I believe 
the area of eastern Wyoming is pretty flat, plain type area, 
Indiana and Illinois much the same way. What Mr. Lambert and I 
face in southern West Virginia and southwest Virginia are very 
steep, very rugged topography, and so for those reasons--and 
they were good reasons--the states were given the authority to 
define and apply terms like these, and OSM wants to take that 
away.
    But the third area, and one you touched on in your 
question, is potential violation of the Clean Water Act. And as 
I suggested before, the states particularly in the Appalachian 
region are in the midst of deciding how to go about 
implementing state narrative water quality standards for 
protection of the aquatic ecosystem.
    EPA has its own idea how to do that. The states, I think 
it's fair to say, we differ on that. OSM intends to jump right 
in the middle of the fray by adding a biologic component to 
this material damage standard.
    While the states and EPA are working out what these water 
quality standards mean, I think that OSM is treading the same 
ground that the courts rejected its rulemaking on in the early 
eighties, where it attempted to establish what amounted to 
water quality standards. OSM can't do that under SMCRA. That's 
a Clean Water Act function.
    So again, SMCRA can't supersede or amend, repeal the Clean 
Water Act, and we believe that the path they're on is fraught 
with peril in that area.
    Mr. Lamborn. OK. Thank you all for the answers. I now 
recognize Representative Johnson for five minutes.
    Mr. Johnson. Mr. Chairman, in listening to this, before I 
ask my question, it's interesting to me and it's astounding to 
me that this Administration thinks that it's acceptable that it 
takes four to six months, in some cases longer, to process a 
claim for America's veterans returning from the war zone to get 
the benefits and the care that's needed to them, and yet when 
they want to reach out with these over regulated, over 
burdensome rules like this one, they give the states mere days 
to respond. I don't understand the logic there.
    Director Clarke, and really any of the three of you, can 
you briefly describe the role that, in this case West Virginia, 
but your other states, as well, played in general in what 
became the 2008 stream buffer zone rule, the one that was 
finished back in 2008?
    Mr. Clarke. Yes, sir, we in West Virginia probably were in 
compliance with most of the 2008 buffer zone rule through 
state-specific adjustments we made to our regulatory program 
prior to the adoption of that rule. Many of the aspects of what 
that rule would require were the same things we were already 
doing in our state program, and we were involved in the EIS 
that was conducted. I can't tell you how long we were given for 
comment, although I'd be glad to check on that and get back to 
the Subcommittee with a response if you would be interested in 
the number of days, for example, for comparison that we were 
allowed for response on that.
    Mr. Johnson. I'm mostly curious as to how, in your 
assessment, the 2008 version that took five years to do, how 
that rulemaking process has differed, from your perspective, to 
this current process.
    Mr. Clarke. As I suggested, OSM wants, or appears to want, 
to conduct this rulemaking and EIS at a world-record pace, 
which is unrealistic, given that the earlier rulemaking, as you 
observed, took five years to conclude, and this one is much 
more sweeping, a broader in scope rulemaking that intends to 
not only replace the buffer zone rule but rewrite the rules for 
almost every aspect of the way mining is conducted.
    Mr. Johnson. Has OSM provided any documentation or evidence 
suggesting widespread problems with the current regulations on 
surface mining operations? And, in fact, aren't most of your 
state evaluation reports from OSM generally positive?
    Mr. Clarke. We, as always, have a number of issues to 
address with OSM. We believe that, generally, we are in full 
compliance and taking every effort to improve our program. But 
to answer your question briefly, we don't believe there is any 
basis in the regulatory record developed on oversight of the 
West Virginia program to support the need for a huge rewrite of 
all the rules on how mining is conducted.
    Mr. Johnson. Just in general, do you feel that OSM has 
respected the states during this current rulemaking process and 
has the agency conducted a fair rulemaking process?
    Mr. Clarke. No, sir, I do not. I think that in hearkening 
back to one of Mr. Lamborn's questions, it's almost as if the 
process that they have established for this EIS is designed to 
prevent any meaningful input from the states and the states are 
the primary regulators under SMCRA and do have probably the 
most valid experience that ought to be taken into account.
    Mr. Lambert. Mr. Johnson, Virginia would probably not use 
the word ``respected.'' I would like to use the word 
``ignored.'' We were invited but comments weren't received, 
weren't included in the other drafts that came out.
    Mr. Johnson. OK.
    Mr. Corra. Mr. Chairman, Wyoming would echo the sentiments 
there and if I may, could I go back one and just read a quote 
from one of OSM's annual reports that talks about Wyoming this 
year. And, quote, ``The lack of additional enforcement actions, 
despite increased inspection frequency, helps illustrate the 
effectiveness of Wyoming's regulatory programs.'' And these 
Federal inspections increased by 78 percent during the period 
of time reviewed. They noted, ``We have no issues with the 
proximate original contour'' and they have no issues with our 
reclamation bonding program either.
    Mr. Johnson. One final question. If OSM were to proceed 
with this version, the draft rule that's now being proposed 
that we've seen, what would be the impact on your state, on 
state agency resources to both amend the approved state program 
and then implement the new rule? Any idea?
    Mr. Corra. Since we haven't seen the complete text of the 
rule, it's hard to give you a really precise answer. If 
everything else, the current version of OSM has done in the 
context of State/Federal relationship is borne out in the rule 
that's ultimately adopted, I can predict that it would be a 
quite significant increase in the burden on states.
    Mr. Johnson. That's what I was going to say. Isn't it safe 
to say with it being very much more restrictive, it's going to 
be onerous on the states to put in the people and the processes 
and the planning to implement?
    Mr. Corra. Well, necessarily, radical change in all the 
regulations is going to require significant effort on the 
states' part to adjust. In addition to that, we have the issue 
of OSM adopting three new regulatory policies called Reg 8, Reg 
23 and INE 35, which also have significantly increased the 
burden on the state, and at the same time, they're doing that, 
they have proposed to cut grants to the state by 15 percent. So 
they are putting more eyes on the state. They are adding more 
bureaucratic requirements to respond to state, or to Federal 
authorities on, and so when you have a new set of rules that 
are completely new, with a new set of procedures governing the 
Federal/State relationship, it gets into more than just the 
rule, the stream protection measures rule, itself. It's a whole 
new way of dealing with the Federal Government that is much 
more burdensome than what has existed in the past.
    Mr. Johnson. Thank you, Mr. Chairman.
    Mr. Lamborn. OK. Thank you, Representative Johnson. We'll 
have our second round of questions. You have some very valuable 
information to give us on this important subject. I'm going to 
step back a step and although you've done a really good job of 
talking about the impacts on your regulatory process as a state 
and your ability or inability to comply with the requests of 
OSM, I want to talk about the impact to your state on a 
community level because the subject of our hearing today is the 
community impacts of the efforts to rewrite the stream buffer 
zone.
    So if this rule were to take effect as it's currently 
written, despite the problems that we've looked at so far in 
our hearing, what would be the impact on employment in your 
state or the economy in your state or coal production or the 
cost of electricity? And I just want to step back and look at a 
little broader perspective on what this rule could do.
    So if either one of you could comment on that, I would 
appreciate it. And I understand that we always have to strike a 
balance between protecting the environment and being 
responsible there, as well as not having a hit on our economy 
that destroys jobs and adds to the cost of living when people's 
dollars are already stretched too thin as it is. So we always 
have to strike that balance and I understand that. Mr. Lambert, 
would you care to respond to that?
    Mr. Lambert. Thank you, Mr. Chairman, for the question. 
Just using the numbers in the draft that we have seen to date, 
we understand that OSM is continuing to work on revising those 
numbers and we don't know what those are because they haven't 
involved the cooperating agencies any further after the 
contractor was let go.
    But just using their numbers, the impact to the economy in 
Virginia would be devastating. As I mentioned in my oral 
statement, metallurgical coal production in Virginia is, at 
this point in time, given the process of metallurgical coal on 
the market, would probably take away 60 percent of our coal 
production, and with the exodus out of Virginia right now, just 
because of the poverty level, the mining industry is the only 
thing that's supporting that economy in southwest Virginia. So 
just using OSM's numbers, I think it would be devastated to the 
economy in Virginia.
    Mr. Lamborn. Thank you. Mr. Clarke or Mr. Corra?
    Mr. Lambert. May I add, Mr. Lamborn, before we go on, using 
our planning districts in southwest Virginia, using their 
numbers, for every one coal job, that equates to four to six 
additional jobs that are ancillary to the mining industry. So, 
you know, that's just a multiplier that I'm not sure how we 
could survive.
    Mr. Lamborn. Thank you.
    Mr. Lambert. OSM's own numbers were a decrease in surface 
coal production in Appalachia by 30 percent. They didn't 
address the potential decrease in underground coal production. 
The new material damage regulation will have an impact 
negatively on the ability to permit underground mining 
operations as well. OSM's own numbers predict job loss of 
10,749 jobs in Appalachia. That doesn't take into account what 
they're going to do, I don't think, to underground mining 
production. Thirty thousand people below the poverty line, 
those are real economic impacts to our state. I believe that 
it's contrary to what Congress envisioned in 1977.
    There's a constituency out there that would like to see 
mining severely restricted or eliminated. That results in a 
much higher degree of environment protection, but those policy 
calls are calls I think for Congress to make and not for OSM. 
Congress hasn't put OSM in charge of economic policy for the 
Appalachian region and it's something that OSM should not be 
allowed to get into, I don't think.
    Mr. Lamborn. And Mr. Clarke, do you agree with what Mr. 
Lambert just said, that when you lose direct mining jobs that 
there are indirect job losses, as well, in your state?
    Mr. Clarke. Absolutely. I've heard, you know, multipliers 
anywhere, three indirect jobs for every one direct job, some 
multipliers I've heard higher than that. But that would have a 
devastating effect on the West Virginia economy.
    Mr. Lamborn. Mr. Corra?
    Mr. Corra. Mr. Chairman, we have not conducted a detailed 
analysis at that level to be able to answer your question 
directly. We've quite honestly been waiting to see how the 
smorgasbord of 55 different options that they teed up in the 
original draft shakes out. It has been said at one point that 
Wyoming coal production could actually go up and I'm not 
totally convinced that that's the case. I do want to repeat 
what I said earlier, that the customers of Appalachian coal, if 
something changes there with regard to their fuel supply, it is 
not an automatic to assume that they will just go buy coal from 
somewhere else. Simply for no other reason just because of the 
additional regulations that are coming down the road with 
regards to the utility industry. And I think the abundance of 
natural gas now in the eastern part of the United States will 
also play a factor in that. So, for us, it's too early to tell.
    Mr. Lamborn. All right. Thank you. Representative Johnson, 
you are recognized for five minutes.
    Mr. Johnson. Gentlemen, is it true that several states have 
actually considered withdrawing from the process as a 
cooperating agency? Are you aware of this and have either of 
your states considered doing so on this rewrite?
    Mr. Clarke. I think it was November or thereabouts of last 
year, West Virginia and, I believe, Virginia and Wyoming signed 
onto a joint letter of concern to OSM which, I believe, 
suggested that that was a possibility. Where we find ourselves 
is we have to put forth a lot of effort to provide meaningful 
comments and to review the documents. It doesn't appear like 
they're paying any attention to the input we provide. The 
process, as far as we can see what has happened, is a sham, and 
it's like a box they need to check to do an EIS. Yes, we had 
cooperating agencies. Yes, we gave them an opportunity to 
comment. We checked the box. And with the result that they're 
working toward, we don't want to necessarily be seen has having 
contributed or endorsed the result.
    Mr. Lambert. I would agree with Mr. Clarke's statement. 
Virginia did consider in the letter that was sent to OSM of 
withdrawing from the process.
    Mr. Lamborn. Mr. Corra?
    Mr. Corra. Mr. Chairman, I also agree. I mean, it's 
similar. I couldn't add anything more to what's already been 
said.
    Mr. Johnson. OK. Do your states implement an NPDES program 
under the authority of the CWA that requires the protection of 
streams potentially impacted by mining, and is that program 
implemented by the same agency that enforces the SMCRA program?
    Mr. Clarke. Yes, sir. In West Virginia we do. The Division 
of Mining and Reclamation within the State Department of 
Environmental Protection issues both the SMCRA permit and the 
NPDES permit for mining operations.
    Mr. Johnson. OK.
    Mr. Lambert. And that is true in Virginia, as well. We have 
the regulatory authority or delegated authority for the NPDES 
process within the SMCRA permit.
    Mr. Corra. Mr. Chairman, the Department of Environmental 
Quality for the State of Wyoming has both jurisdictions.
    Mr. Johnson. So if OSM implements its proposed rule, we 
would have, in addition to the EPA, the state CWA authority and 
in many cases, the COE, two additional agencies, OSM and the 
State Mining Authority, implementing programs to protect 
streams using different criteria and imposing different and 
possibly conflicting requirements. Do you see it the same way?
    Mr. Clarke. Yes, sir, I do.
    Mr. Lambert. Yes, sir, we see that as the same issue, as 
conflicting agencies.
    Mr. Corra. Mr. Chairman, yes.
    Mr. Johnson. OK. Would you then expect this rule, if it is 
implemented, to lead to more litigation, more confusion and 
uncertainty?
    Mr. Clarke. Yes. Yes, we do.
    Mr. Lambert. Yes, sir, we do.
    Mr. Corra. Mr. Chairman, yes, we do.
    Mr. Johnson. I think we know the answers. So it doesn't 
sound like a real good deal for the American tax payer and for 
the industry, the coal industry, and certainly the people of 
West Virginia and Ohio and Virginia and Wyoming.
    Mr. Chairman, I think I've exhausted my questions.
    Mr. Lamborn. All right. Thank you all for being here. I 
want to thank you for your testimony. Members of the Committee 
may have additional questions for the record, and I would ask 
that you respond to those in writing. Thank you. We will now 
hear from our third panel of witnesses. And we're going to have 
a diversity of views on this panel.
    I'd like to invite forward Mr. Roger Horton, the West 
Virginia Co-Chair of the Mountaintop Mining Coalition; Mr. 
Michael Carey, President of Ohio Coal Association; Mr. Jason 
Bostic, West Virginia Coal Association; Ms. Katharine 
Fredriksen, Senior Vice President of Environmental & Regulatory 
Affairs for CONSOL Energy, Inc.; Mr. Bo Webb, former President 
and current member of Coal River Mountain Watch; and Ms. Maria 
Gunnoe, community organizer. I hope I pronounced the names 
correctly.
    Please come forward. Like all of our witnesses, your 
written testimony will appear in full in the hearing record, so 
I ask that you keep your oral statements to five minutes, as 
outlined in our invitation letter to you. The microphones are 
not automatic, so you need to turn them on when you're ready to 
begin. And I'll explain how the timing lights work. When you 
begin to speak, the timer will start and a green light will 
appear. After four minutes a yellow light comes on, and at five 
minutes, the red light comes on and we would ask that you 
conclude at that time. We will have one or more rounds of 
questions for all of you afterwards.
    So Mr. Horton, you may begin.

STATEMENT OF ROGER HORTON, WEST VIRGINIA CO-CHAIR, MOUNTAINTOP 
                        MINING COALITION

    Mr. Horton. Thank you. Mr. Lamborn, first of all I want to 
thank you for recognizing a very valuable point, one that I've 
discussed with a lot of the people prior to coming here today. 
The money that's generated from the levies placed upon coal 
that is mined that's diverted to the surface mine reclamation, 
the abandoned mine reclamation does, in fact, provide 
healthcare for many thousands of United Mine Workers 
recipients, whose businesses have gone out of business. And for 
that reason, I thank you for that recognition. And I will 
begin.
    My name is Roger Horton. I am the founder of Citizens for 
Coal, a co-founder of the Mountaintop Mining Coalition, and a 
member of Local Union 5958 of the United Mine Workers of 
America. I have spent over 30 years in the West Virginia mining 
industry beginning in 1974, as an underground coal miner. 
During my career, I have also been active in union activities, 
serving as various official capacities for my UMWA local union. 
I am proud to say that I am still a coal miner and a local 
union officer on a surface coal mine in West Virginia.
    A native West Virginian, I have lived virtually all my life 
in the coalfields of the Mountain State, spending most of that 
time in Logan, West Virginia, where I live today in the 
community of Holden. I built a home, raised two children, 
participated and enriched my community all because of my 
employment in the coal industry.
    Because of my rewarding experiences in and around the coal 
industry and its communities, that in 2008 I founded Citizens 
for Coal, a group open to everyone, no matter their employment 
or affiliation, dedicated only to preserving the future of coal 
mining jobs, to actively participate in the debate surrounding 
coal mining in West Virginia and Appalachia. It is in this 
capacity that I appear before you today, as well.
    I am deeply concerned and troubled by the rulemaking 
currently being conducted by the Federal Office of Surface 
Mining. By virtue of regulatory revisions, OSM would rewrite 
the Surface Mining Control and Reclamation Act, otherwise known 
as SMCRA, and drastically alter the role of coal in the 
nation's energy mix envisioned by Congress when it passed in 
1977.
    This proposal from OSM is but one part of an open war on 
American coal being waged by bureaucrats in Washington, 
Pittsburgh and Philadelphia. The assault begins with the permit 
application process and continues through the mining process 
and finally to the end use of coal, where EPA announced 
sweeping regulatory changes as it relates to air emissions from 
coal fired power plants and the placement of coal combustion 
residuals, such as boiler ash.
    These end use initiatives coupled with the EPA's 
obstruction of mining permits and now this outrageous rule from 
the Office of Surface Mining threatens to cripple the viability 
of West Virginia and other coal producing states as sources of 
domestic energy.
    In its proposed rewrite of the stream buffer zone rule, OSM 
would drastically reduce coal production in West Virginia and 
across the Nation by applying new standards that have no basis 
in law and serve only to satisfy a very warped political 
agenda.
    OSM is unable to identify any rational basis for revising 
these regulations and potentially eliminating 90 percent of the 
coal production in this country. All forms of mining across the 
country, surface and underground, are at risk. Amazingly, the 
rule changes appear poised to dramatically impact underground 
mining and perhaps more than surface mining. If finalized, the 
rule will throw the Nation into an energy crisis, the likes of 
which has never been seen.
    Unless restrained by Congress, OSM will destroy the 
economies of states that produce coal and propel thousands of 
coal miners on the jobless roles. OSM appears to have advanced 
these positions without regard to jobs and communities that 
depend on those occupations for their very survival. If left 
unchecked, OSM threatens to strip our citizens, our communities 
and the very social fabric of West Virginia and other coal 
producing areas of their most important source of existence, 
and that is coal.
    These are not just idle observations. I have personally 
witnessed the social and economic disruptions that occur when 
unelected bureaucrats make arbitrary decisions about what is 
best for my fellow coal miners, my friends and my community.
    About eleven years ago, through a combination of government 
interference and frivolous legal challenge, a large-scale 
surface mine in Logan County, West Virginia, was forced to 
close because it could not obtain the permits necessary to 
continue mining the operation. The results were devastating. 
Some 400 members of Local Union 2935 were out of a job, not 
because there was no demand for the coal or because the coal 
reserve had been exhausted, but because of pure legal and 
regulatory interference. The workforce and Local were obviously 
devastated, but the county was also damaged. The school system 
and social welfare programs lost revenue that was vital to 
their existence and operation. Entire communities were 
devastated. With nowhere to work and no prospect of the mine 
reopening any time soon, residents packed up and moved to other 
states to find lower paying jobs.
    Businesses that relied on the mine for their income, gas 
stations, restaurants, repairs shops and equipment vendors, 
vanished. Families suffered and disintegrated. Substance abuse 
and divorces skyrocketed and these folks struggled to come to 
terms with the loss of good paying jobs that were forecast to 
last decades. In fact, it is fair to say that our communities 
and certain families have never recovered from the loss of 
these jobs. That experience and those troubling, painful 
memories motivated me to start Citizens for Coal, and I hope 
this Committee and the entire Congress is mindful that 
Washington, D.C.'s assault on the coal industry has real, often 
dramatic effects on our workplace, our people, our schools, our 
churches and our communities.
    Mr. Lamborn. Mr. Horton, if you would wrap up.
    Mr. Horton. Pardon me?
    Mr. Lamborn. You need to conclude now.
    Mr. Horton. Yes. Finally, as a life-long citizen of the 
coalfields of Logan, West Virginia, I would like the Committee 
to carefully consider the excuse for these rule changes offered 
by OSM. Whether they are from the OSM or the EPA or some other 
agency, we don't need their help. We can do just fine on our 
own, mine our own coal.
    [The prepared statement of Mr. Horton follows:]

 Statement of Roger D. Horton, Co-Founder, Mountaintop Mining Coalition

    Good afternoon and thank you for the opportunity to testify today 
on this very important subject. My name is Roger Horton. I am the 
founder of Citizens for Coal, a co-founder of the Mountaintop Mining 
Coalition and a member of Local 5958 of the United Mine Workers of 
America (UMWA). I have spent over 30 years in the West Virginia mining 
industry beginning in 1974 as an underground coal miner. During my 
career I have also been active in union activities, serving in various 
official capacities for my UMWA local. I am proud to say that I am 
still a coal miner and a local union officer on a surface coal mine in 
West Virginia.
    A native West Virginian, I have lived virtually all my life in the 
coalfields of the Mountain State, spending most of that time in Logan 
County West Virginia, where I live today in the community of Holden. I 
built a home, raised two children, participated and enriched my 
community all because of my employment in the coal industry.
    Because of my rewarding experiences in and around the coal industry 
and its communities that in 2008 I founded Citizens for Coal, a group 
open to everyone no mater their employment or other affiliation, 
dedicated only to preserving the future of coal mining jobs, to 
actively participate in the debate surrounding coal mining in West 
Virginia and Appalachia. It is in this capacity that I appear before 
you today. I am deeply concerned and troubled by the rulemaking 
currently being conducted by the federal Office of Surface Mining 
(OSM). By virtue of regulatory revisions, OSM would re-write the 
Surface Mining Control and Reclamation Act (SMCRA) and drastically 
alter the role of coal in the nation's energy mix envisioned by 
Congress when it passed that law in 1977.
    This proposal from OSM is but one part of an ``open war'' on 
American coal being waged by bureaucrats in Washington, Pittsburgh and 
Philadelphia. This assault begins with the permit application process 
and continues throughout the mining process and finally to the end use 
of the coal, where EPA announced sweeping regulatory changes as it 
relates to air emissions from coal fired power plants and the placement 
of coal combustion residuals such as boiler ash. These end use 
initiatives, coupled with EPA's obstruction of mining permits and now 
this outrageous rule from OSM threatens to cripple the viability of 
West Virginia and other coal producing states as sources of domestic 
energy.
    In its proposed re-write of the Stream Buffer Zone rule, OSM would 
drastically reduce coal production in West Virginia and across the 
nation by applying new standards that have no basis in the law and 
serve only to satisfy a warped political agenda. OSM is unable to 
identify any rational basis for revising these regulations and 
potentially eliminating 90 percent of the coal production in this 
country. All forms of mining across the country, surface and 
underground are at risk. Amazingly, the rule changes appear poised to 
dramatically impact underground mining perhaps more than surface 
mining. If finalized, the rule will throw the nation into an energy 
crisis the likes of which it has never seen. Unless restrained by this 
Congress, OSM will destroy the economies of state that produce coal and 
propel thousands of coal miners on the jobless roles. OSM appears to 
have advanced these positions without regard to jobs and communities 
that depend on those occupations for their very survival. If left 
unchecked, OSM threatens to strip our citizens, our communities and the 
very social fabric of West Virginia and other coal producing areas of 
their most important source of existence- coal.
    These are not just idle observations. I have personally witnessed 
the social and economic disruptions that occur when unelected 
bureaucrats make arbitrary decisions about what is best for my fellow 
coal miners, my friends and community.
    About 11 years ago, through a combination of government 
interference and frivolous legal challenges, a large scale surface mine 
in Logan County West Virginia was forced to close because it could not 
obtain the permits necessary to continue the mining operation. The 
results were devastating. Some 400 members of Local Union 2935 were out 
of a job. . .not because there was no demand for the coal or because 
the coal reserve had been exhausted but because of pure legal and 
regulatory interference. The workforce and local were obviously 
devastated but the county was damaged. The school system and social 
welfare programs lost revenue that was vital to their existence and 
operation.
    Entire communities were devastated. With nowhere to work and no 
prospect of the mine reopening any time soon, residents packed up and 
moved to other states to find lower paying jobs.
    Businesses that relied on the mine for their income- gas stations, 
restaurants, repair shops and equipment vendors vanished.
    Families suffered and disintegrated. . .substance abuse and 
divorces skyrocketed as these folks struggled to come to terms with the 
loss of good-paying jobs that were forecast to last decades. In fact, 
it fair to say that our communities and certain families have never 
recovered from the loss of those jobs. That experience and those 
troubling, painful memories motivated me to start the Citizens for Coal 
organization, and I hope this Committee and the entire Congress is 
mindful that Washington D.C.'s assault on the coal industry has real, 
often dramatic effects on our workforce, our people, our schools, our 
churches and our communities. OSM has chosen to conveniently ignore 
these effects. OSM has also disregarded the charge given to it by 
Congress when it created the agency 34 years ago- to balance 
environmental and community protection with the increased production of 
coal. Unfortunately, OSM has joined the ranks of other federal agencies 
intent on ignoring Congress by regulating what it cannot legislate. 
This dangerous attitude must be changed and, given the behavior of OSM 
and EPA in Appalachia and West Virginia, needs to be changed quickly.
    OSM's proposed rules cast a long shadow of uncertainly over our 
coal miners and communities by placing our entire economic livelihood 
in jeopardy. People are not buying cars or homes or vacationing. . .we 
are not spending money. . .we are not contributing to the economy.
    I have been fortunate to be able to spend the majority of my life 
living and working in my native West Virginia. Every day I enjoy the 
benefits of our rural way of life. . .I hope that my children could 
live and work in West Virginia and enjoy that same lifestyle and 
experience but everyday that OSM continues its reckless disregard for 
the rule of law those chances decline.
    Finally, as I life-long citizen of the coalfields of Logan County 
West Virginia, I would like the Committee to carefully consider the 
excuses for these rule changes offered by OSM. They will come before 
you as false prophets, claiming to represent the people of the 
coalfields and our environment and offering to ''help'' us survive or 
transition to other forms of employment when they destroy our coal 
industry. Whether they are from OSM or EPA or some other agency, we 
don't need their help or assistance. We can do just fine on our own.
    Thank you.
                                 ______
                                 

Brian Sanson
United Mine Workers of America
8315 Lee Highway
Fairfax, VA 22031
[email protected]
703-208-7220

Department of the Interior
Office of Surface Mining Reclamation and Enforcement
Comments on:
As proposed in 74 FR No. 228/11-30-2009/Proposed Rules; 30 CFR Parts 
780, 784,816, and 817
[Docket ID OSM-2009-0009]
RIN: 1029-AC63
Stream Buffer Zone and Related Rules

    The United Mine Workers of America, International Union (UMWA) 
offers the following comments on the above-captioned notice. Our 
comments are focused on the implications of revisions to regulations 
concerning the conduct of mining activities in or near streams. We have 
concerns that revision of the stream buffer zone (SBZ) rule published 
on December 12, 2008, as part of the interagency action plan that the 
Administration has developed to significantly reduce the harmful 
environmental consequences of surface coal mining operations in 
Appalachia, may negatively impact workers' economic security in 
Appalachia.
The June 11, 2009 Memorandum of Understanding (MOU).
    The UMWA has long supported responsible enforcement of rules and 
laws used to regulate surface mining. Per the June 11, 2009 Memorandum 
of Understanding, OSM is proposing Oversight Improvement Actions that 
will increase OSM's oversight of state surface mining programs. This 
action is taken as part of an agreement of the MOU's signatory agencies 
to create an interagency working group to coordinate the development of 
short-term actions, longer term regulatory actions, and coordination 
procedures for Appalachian surface coal mining. Unfortunately, these 
coordinating efforts have resulted in increased time frames, regulatory 
uncertainty, and a lack of private and public understanding with 
respect to the criteria that has been established for surface mine 
permit approval.
Disclosure and Transparency
    The UMWA is a primary stakeholder of the Department of the 
Interior's Office of Surface Mining Reclamation (OSM). When OSM embarks 
on a rule making the Agency solicits written comments and it also holds 
public hearings. The process is carried out in full view of the 
interested parties: Miners, mine operators, equipment manufacturers, 
and others, as it should be.
    We suggest that OSM procedures for evaluating additional rules in 
the process should be subject to the same level of public disclosure 
and scrutiny. This is necessary both to ensure public accountability, 
but also to ensure the necessary expertise be brought to bear in the 
highly technical nature of water quality subject matter. What to OSM 
may seem like a trivial ``correction'' could in fact have important 
consequences. One way to guard against this would be to have public 
review of OSM decisions about rules.
Encouraging Public Participation in Agency Rulemaking Processes
    Public participation is essential for development of good and 
useful rules. Encouraging public participation will help ensure that 
broad based, first-hand knowledge will be considered in the rule-making 
process, and it helps lead to the creation of rules that will be 
understandable.
    One way to encourage public participation is to require hearings to 
be held at times and places that are convenient for and accessible to 
the stakeholders. Sometimes more work is needed to promote active 
participation. Coal miners wanting to participate in OSM hearings 
generally must leave work, and may forfeit their income and pay their 
own travel expenses to participate. Those testifying for environmental 
groups or coal operators, on the other hand, generally suffer no such 
loss.
    The real consequence of this economic inequality means that there 
are often fewer workers participating in a public hearing than are the 
numbers of workers who are interested in the particular subject. 
Likewise, blue-collar workers like those the UMWA represents sometimes 
tend to be less comfortable with the written word, so few submit 
written comments. While we support the holding of public hearings, we 
also urge changes so the hearings' system will better balance the 
access for workers.
Regulatory Uncertainty
    Regulatory uncertainty has caused many operators to cease capital 
expenditures related to UMWA operations, thus negatively impacting our 
members who live and work in Appalachia. To illustrate this problem, we 
use an example pertinent to the mining industry. Over the last year the 
surface mining permitting system has been reduced to an extremely slow 
pace.
    Currently many factors are considered when requiring the various 
permit applicants with respect to the protection of the health and 
safety of those living within the communities in which the mining 
occurs. It is important to first define the public health goals, and 
then to discuss them with the appropriate stakeholders in the states in 
which these rules are specifically targeted. As an alternative to 
unilateral rulemaking based on yet-to-be established procedures to best 
guarantee water quality, we suggest that it may be appropriate to 
effectively communicate the agencies' criteria to those operators who 
mine coal in a responsible manner and identify the most reasonable and 
efficient way to reach goals without compromising the ability of these 
coal operators to employ our members.
    Oversight is always welcome by the UMWA but any oversight which 
impedes the ability of a state to issue permits based on established 
permitting criteria has resulted in a ``logjam'' of applications. We 
represent workers who have considerable firsthand practical knowledge 
about how things get done--or not done--at work. In fact, they have 
knowledge that so-called experts sometimes lack. Incorporating the 
knowledge of miners and coal operators is essential when designing 
policy that will succeed. Different kinds of knowledge are needed to 
create effective policies and no single approach will ultimately be 
most successful.
Methods of Ensuring That Regulatory Review Does Not Produce Undue Delay
    The principal aim of this process should be to address the need to 
issue regulations that protect public health and allow coal miners to 
continue to produce coal. One primary objective of this should be to 
clarify the regulatory review process, thus reducing the delay in the 
established permitting process. This is an important objective and, 
whatever else OSM may do it should not unnecessarily delay the current 
rules. There should be no additional delays while the current rule 
making process is underway.
    There are no magic formulae for achieving this. It requires setting 
deadlines and allocating sufficient resources so that agencies can meet 
such deadlines. In this case, in which admittedly the scientific data 
has yet to be established in some areas or additional studies are 
clearly needed in others, the ability of mine operators to secure 
permits should not be delayed due to unproven theory or speculation.
Scope of Proposed Changes
    In view of the complexity of this proposal and the fact that it 
extends beyond issues related to the stream buffer zone we believe that 
additional time should have been granted for public comment. The UMWA 
is disappointed that various requests for extensions were not granted.
    Any proposed changes to return to some version of the 1983 rule 
should be entered into with clear guidance and an understanding that 
conducting surface coal mining activities in the stream buffer zone are 
not prohibited. Rules must be clear that the protections of the SBZ 
rule are meant to conduct surface coal mining operations so as to 
prevent, to the extent possible using best technology currently 
available, additional contributions of suspended solids to stream flow 
or runoff outside the permit area.
Conclusion
    In the past, regulatory reform has generally proceeded with the 
assumption that federal regulations create better compliance in areas 
where there is a clear need.
    The rules OSM promulgates generally promote the requirements of the 
Surface Mining Control and Reclamation Act (SMCRA) in cooperation with 
States and Tribes. The primary objectives are to ensure that coal mines 
are operated in a manner that protects citizens and the environment 
during mining and assures that the land is restored to beneficial use 
following mining, and to mitigate the effects of past mining by 
aggressively pursuing reclamation of abandoned coal mines.
    Indeed, the history of regulation in the coal mining industry 
demonstrates the effectiveness of direct regulation, i.e., creating 
rules and a means for enforcing them. However, the UMWA vigorously 
opposes any unnecessary regulation that results in a loss of employment 
for the members of our union. Such unnecessary rules would likely deter 
future capital investment in UMWA represented operations and will 
prohibit expansion of existing mining operations. This lack of 
investment will prematurely cause the displacement of UMWA members 
working at these facilities.
    The Surface Mining Control and Reclamation Act of 1977 clearly 
allows for the extraction of coal using surface mining methods and one 
of the express purposes of SMCRA is to assure that the coal supply 
essential to the Nation's energy requirements, and to its economic and 
social well-being is provided and to strike a balance between 
protection of the environment and the Nation's need for coal as an 
essential source of energy.
    In proposing changes to the SBZ and related rules, the agency must 
also guard against unintended regulatory consequences of its actions. 
We have concerns that actions that the agency takes that are aimed at 
surface mining in Appalachia could have a significant impact on mining 
in other areas, or even on underground operations in the same region. 
Rules that could potentially impede an operator's ability to store and 
treat coal mine waste causes serious concerns. The preamble discussion 
to the 2008 rule (73 FR 75815) makes clear Congress recognized that 
coal mine waste had been and would continue to be placed in streams. 
Congress found and declared, in Section 101(b) of SMCRA:
        the overwhelming percentage of the Nation's coal reserves can 
        only be extracted by underground mining methods, and it is, 
        therefore, essential to the national interest to insure the 
        existence of an expanding and economically healthy underground 
        coal mining industry;
The vast majority of coal produced by underground mining in the states 
targeted by the proposed rules must be processed through preparation 
plants to remove impurities. The waste byproduct lacks the stability of 
excess spoil and must be placed in disposal areas that extend fuither 
down into valleys than excess spoil fills. To prohibit coal mine waste 
disposal sites in areas that extend into perennial streams in the 
states targeted by the proposed rules could result in the elimination 
of the underground coal mine industry throughout Appalachia. There are 
no provisions in the Act that support or authorize these types of 
restrictions on coal mine waste placement. Specifically, it would seem 
that such restrictions would be in conflict with the provisions of 
SMCRA.
    The original intent of the SBZ rule is to ensure compliance with 
SMCRA's requirements to use caution when mining near streams and to use 
the best technology currently available to avoid, to the extent 
possible, the contributions of suspended solids to streamflow or runoff 
outside the permit area. The rule was never meant as a ban on surface 
mining activities in streams. As part of the process the Agency should 
carefully consider past litigation, similar to which caused the 
elimination of hundreds of UMWA member's jobs at the Ach Coal's Daltex 
operation, as well as other surface mining complexes over the past 
decade. If the intent of OSM is to repeal the current version of the 
SBZ rule then OSM has a duty to clarify what this means for valley 
fills, coal refuse pile, and impoundments. OSM has applied the 1983 
version of the SBZ rule in the past and coal companies have always had 
the ability to secure permits required to maintain their operations. 
However, due to litigation and various rulings from the courts the 2008 
rule was put into place by OSM. In repealing such rule OSM should have 
provisions in place to ensure the ability of surface mining to continue 
while scientific data is gathered and reviewed by experts from the 
various stakeholders.
    Would future research and analysis accurately reflect the positions 
held by the stakeholders on either side of the surface mining issue? We 
do not know. But we do know that premature rulemaking absent creditable 
studies can cause job loss and financial hardships to communities 
already suffering from the effects of a worldwide recession. Many of 
the measures proposed in this notice could affect large numbers of 
miners working today and many miners' families that rely on these good-
paying jobs.
    We support the promulgation by OSM of protective rules that allow 
UMWA members to continue to mine coal in a responsible manner, but let 
us not venture down a path of potential hardship for those who rely on 
this vital component of the Appalachian economy. Let us not restrain 
the regulations necessary to address real problems but let us do so 
with a clear and decisive plan that will preserve this vital part of 
our nation's energy needs.
                                 ______
                                 
    Mr. Lamborn. Thank you. Mr. Carey?

            STATEMENT OF MICHAEL CAREY, PRESIDENT, 
                     OHIO COAL ASSOCIATION

    Mr. Carey. Chairman Lamborn, members of the Subcommittee, I 
appreciate the opportunity to testify at this very important 
Subcommittee hearing today on the Office of Surface Mining.
    My name is Mike Carey. I am President of the Ohio Coal 
Association, a trade organization that represents Ohio's coal 
producing companies. I also serve on the National Coal Council 
and I serve as the Chairman of the Ohio Coal Technical Advisory 
Committee, and serving as Chair for the last seven years.
    In our country today, coal is mined in 27 states across 
this country and provides affordable, reliable energy in 48 of 
them. Coal is not only America's most abundant energy resource, 
but it is by far our lowest cost domestic energy resource. Now, 
today it will be difficult for me to confine my remarks only to 
the stream buffer zone rule because nationwide, our industry is 
facing an unprecedented onslaught of new regulations that are, 
simply put, designed to eliminate the American coal industry 
and the thousands of jobs associated with it.
    The Obama Administration and its allies have declared a de 
facto war on coal across this country. The Department of the 
Interior's OSM stream buffer zone rule, the EPA's various 
rules, including the greenhouse gas rule, the Cross-State Air 
Pollution Rule, the Utility MACT, have one purpose--to force 
coal out of business.
    Mr. Chairman, the Obama Administration's attempts to 
rewrite the stream buffer zone rule is nothing but a blatant 
attempt, again, to kill coal in Appalachia. The last rewrite 
undertaken in 2008, only three years ago, was a thoughtful 
process involving all of the stakeholders and examining all of 
the major issues. The Administration's efforts were a rush job 
done solely to placate their environmental allies. When the 
environmental impact statement was criticized for its bluntness 
of the potential job losses, instead of admitting that there 
was a problem, they fired the contractor who made those 
observations.
    Now, there's a right way to conduct rulemaking, as 
Congressman Johnson pointed out in his opening remarks. When 
OSM revised the stream buffer zone rule in December of 2008, it 
was the product of over five years, millions of taxpayers' 
dollars in research, two environmental impact statements and 
over 43,000 public comments. The wrong way, that contrasted 
directly with the Obama Administration's closed and rushed 
efforts to ram a new rule through the process to placate 
environmentalist allies.
    Fire the messenger. The Administration had hired the 
outside contractor, as previously mentioned, to prepare the EIS 
without the benefit of any new Federal studies. After the EIS 
draft was completed, the press seized upon the study, which 
predicted that at least, at least, 20,000 jobs would be lost, 
and the elimination of up to 20 to 30 percent of all surface 
mines in the east.
    Two months later, instead of changing direction on the 
regulation and announcing that they were wrong to eliminate the 
jobs or that they would change their approach, they instead 
blamed the contractor and they fired him and announced that 
they would hire a new contractor to start the EIS all over 
again. This is a classic example of shooting the messenger, but 
not changing the message.
    Now, what's at stake? OSM's stream buffer zone rule is the 
most comprehensive, far-reaching revision of SMCRA rule in over 
30 years. Rather than providing regulatory clarity as the 2008 
rule did, the new rule replaces decades of interpretation of 
law, prohibits standard mining practices and has nationwide 
application. In light that it took five years to come up with 
the OSM 2008 rule, they could not possibly responsibly rewrite 
such a rule in such a short period of time.
    Rural regions of West Virginia, Ohio, Pennsylvania, 
Illinois, Indiana, Kentucky, Tennessee, would all be 
economically devastated by losing major employers such as the 
coal industry. The number, in fact, could be 20,000, might be 
low, but 70,000 coal-related jobs could also be affected.
    Mr. Chairman, when an agency ignores the previous open 
rulemaking process of its past, i.e. The 2008 stream buffer 
zone rulemaking process, rushes its replacement through after 
meeting in secret with environmental organizations and ignoring 
the stakeholders and the states themselves and shoots their own 
messenger when the work is was derided in the press, then one 
can only conclude that this proposal was intentional and they 
knew exactly what they were doing.
    Thank you, Mr. Chairman, for the opportunity to testify and 
I look forward to any questions.
    [The prepared statement of Mr. Carey follows:]

       Statement of Mike Carey, President, Ohio Coal Association

    Chairman Lamborn, Ranking Member Holt, Members of the Subcommittee, 
good morning.
    Thank you for inviting me to testify at this very important hearing 
on Office of Surface Mining, Reclamation, and Enforcement's (OSM) 
Stream Buffer Zone Rule and its impact on American jobs. My name is 
Mike Carey and I serve as President of the Ohio Coal Association (OCA). 
I am also a member of The National Coal Council, which serves as an 
advisory committee for the Secretary of Energy on energy resource 
issues.
    In our country today, coal is mined in 27 states and produces 
affordable electricity for 48 states. Coal provides 86 percent of the 
electricity needs for powering Ohio's business and residential sectors. 
The OCA provides a voice for the many thousands of our citizens working 
in Ohio's coal sector. The companies we represent are proud to directly 
employ over 3,000 individuals in Ohio alone and the over 30,000 
additional jobs dependent on our industry.
    The OCA seeks to continually educate state and federal lawmakers on 
the effects that policies have on American jobs, the economy, the 
reliability of electric power production and our global energy 
manufacturing competitiveness. This is why I am here today. Coal 
provides our country with a strong international competitive advantage, 
as we have more coal than Saudi Arabia has oil and gas. Energy 
Information Administration data shows that at least 261.5 billion tons 
of coal reserves are available in America, making our recoverable coal 
reserves almost 1/3 of the world's total supply.
    Coal is not only America's most abundant energy resource, but it 
is, by far, our lowest cost domestic energy resource. Cheap, affordable 
coal is what powers the nation's manufacturing base and keeps the 
lights on for millions of America families. The low cost electricity 
that coal provides is a staple of American life and is essential to 
many Americans' standard of living.
    It is difficult for me to confine my remarks today to only the 
Stream Buffer rule, because nationwide our industry is facing an 
unprecedented onslaught of new regulations that are, simply put, 
designed to eliminate America's coal industry and the thousands of jobs 
associated with coal. The Obama Administration and its allies have 
declared a de facto war on coal across Appalachia and America. The 
Department of Interior's (DOI) OSM Stream Buffer rule and EPA's various 
rules, including greenhouse gas rule, the Cross-State Air Pollution 
Rule (CSAPR) and Utility MACT, have one purpose: to force coal out of 
business. These regulations, coupled with the permit delays across the 
entire Obama Administration, will be economically devastating and will 
have an inevitable adverse effect on our nation. Hard-working Americans 
will lose their jobs, businesses will shutter, families will be forced 
to pay more to keep warm in the upcoming winter months as we are forced 
to supplant our nation's most abundant and affordable energy resource.
    Mr. Chairman, the Obama Administration's attempts to rewrite the 
Stream Buffer Zone Rule is nothing but a blatant attempt to kill coal 
in Appalachia, which will destroy jobs across the industrial Midwest. 
Why do I say this?
        1)  The last rewrite undertaken in 2008--only three years ago--
        was a thoughtful process involving all of the stakeholders and 
        examining all of the major issues.
        2)  The Obama Administration's efforts were a rushed job done 
        solely to placate their environmental allies, ignoring 
        stakeholders and the impacted States themselves.
        3)  When the Obama Environmental Impact Statement (EIS) was 
        criticized for the bluntness of the potential job losses, 
        instead of admitting the problem, they fired the contractor who 
        made the informed observations.
The Right Way to Conduct a Rulemaking
    When OSM revised the Stream Buffer Zone rule in December 2008 it 
was the product of over five years of studies, millions of taxpayers' 
money spent on research, two environmental impact statements, over 
43,000 public comments, and 30 economic and scientific studies.
    OSM began the process in 2003, releasing a discussion draft of 
methods to clarify the older 1983 rule. Later that year OSM, working 
with the EPA, Army Corps of Engineers, Fish and Wildlife Service, and 
importantly the State of West Virginia completed a 5,000-page 
programmatic ESI on mountaintop mining. This EIS contained 30 separate 
federal studies on all aspects of Mountaintop Mining. They later 
proposed additional changes to the rule based upon public comments. 
Then in 2007 they completed another EIS which examined more 
specifically the stream buffer zone rule, addressed further comments 
and involved all stakeholders. The final regulation was issued in 2008.
The Wrong Way to Conduct a Rulemaking
    This is contrasted directly with the Obama Administration's closed 
and rushed efforts to ram a new rule through the process to placate 
their environmentalist allies.
    In 2009, at the beginning of the Obama Administration Secretary 
Salazar signed an memorandum of understanding (MOU) vowing to revisit 
the stream buffer zone rule and then attempted to vacate the 2008 rule 
by guidance document. It took a federal court telling them they had to 
use the APA rulemaking process.
    They later published an advanced notice of proposed rulemaking, 
making 10 significant changes to the stream buffer zone rule. They only 
allowed 30 days comment and ran the clock between Thanksgiving and just 
after Christmas.
    In 2010, they entered into secret negotiations with several 
environmental organizations, emerging with a signed settlement 
agreement and also agreeing to pay their legal fees. They then started 
a new EIS and decided to expand the scope of the Stream Buffer Zone 
rules to include major changes to the underlying Surface Mining Control 
and Reclamation Act regulations.
    As opposed to the 2008 efforts, eight States and the Western 
Governors Association wrote the Agency objecting to the draft EIS 
conclusions and the lack of opportunity to participate in the process.
Fire the Messenger
    The Administration hired an outside contractor to prepare the EIS, 
without the benefit of any new federal studies. After the EIS draft was 
completed, the press seized upon the study which predicted at least 
20,000 jobs would be lost including the elimination of 20-30 percent of 
all surface mining in the East.
    Two months later, instead of changing direction on the regulation, 
announcing they were wrong to eliminate jobs, or that they would change 
their approach, they instead blamed the contractor, fired them, and 
announced they would hire a new contractor to start the EIS over again. 
This is a classic example of shooting the messenger, but not changing 
the message. If this example wasn't so real and troubling, I would 
swear that they took their strategy from watching the movie Casablanca. 
Just like Captain Renault was shocked that gambling was going on, OSM 
Director Pizarchik was shocked that his regulation would lead to job 
losses. It's not very credible. One can only surmise that the new 
contractor has either explicitly or at least implicitly been told to 
steer clear of any job loss projections.
What's at Stake?
    OSM's Stream Buffer Rule is the most comprehensive and far-reaching 
revision of a SMCRA rule in more than 30 years. Rather than providing 
regulatory clarity as the 2008 rule did, the new rule replaces decades 
of interpretation of the law, prohibits standard mining practices and 
has nationwide application. In light of the five years it took to come 
up with the 2008 rule, OSM could not properly and responsibly rewrite 
this rule in such a short period. OSM's rulemaking process and the new 
rule have been widely criticized by states and state agencies 
responsible for implementing the rule. Moreover, this rule will have 
damaging effects throughout the states where the mining industry 
operates and will destroy tens of thousands of coal related jobs.
    It is imperative that this Subcommittee and Congress carefully 
review OSM's rules in order to protect American jobs. We are always 
concerned when regulatory overreaching negatively impacts job security 
and growth in our region. We are in difficult economic times when many 
Ohioans and Americans find themselves out of work. Unemployment in Ohio 
is 9.1 percent, the same as the overall unemployment rate in the U.S.
    Rural regions in West Virginia, Ohio, Pennsylvania, Illinois, 
Indiana, Kentucky and Tennessee would be economically devastated from 
losing a major employer such as the coal industry due to the OSM rule. 
By OSM's own admission, more than 7,000 jobs in Appalachia would be 
lost. This is an optimistic, underestimated assessment; we believe 
Appalachia will lose more than 20,000 jobs and nearly 70,000 coal 
related jobs would also be lost nationwide. This would mean the 
unemployment rate rising in these states and a loss of more than $650 
million of earnings and state revenue.
    According to the agency's draft ESI, the Stream Buffer rule would 
annihilate approximately 1/3 of surface mines in the East and up to 50 
percent of underground mines nationwide. In addition to closures of 
Eastern mines, the OSM rule would cause closures in coal production of 
20 percent of Illinois' Basin mines, over 25 percent of the Gulf region 
and 84 percent of Alaska's mines.
    This rule will be economically devastating to many states and 
communities in the East, but its impacts will be far-reaching effecting 
the nation's economy, employment rate and energy affordability. 
Decreases in Eastern coal production will increase electric prices, a 
fact which OSM did not take into consideration while rulemaking. 
Twenty-two of the 25 states with lowest electricity costs rely on coal 
for at least 40 percent of their electricity needs.
    Mr. Chairman, when an agency:
        1)  Ignores the previous open rulemaking processes of its past, 
        ie the 2008 Stream Buffer rulemaking process, and
        2)  Rushes its replacement through after meeting in secret with 
        environmental organizations and ignoring the stakeholders and 
        the States in the process, and
        3)  Shoots their own messenger, only after the work is derided 
        by the press,
    Then one can only conclude that their proposal was intentional and 
that they knew exactly what they were doing to the coal industry.
    I ask that you help reign in OSM and do all that you can to stop 
this rulemaking. Americans have lost enough jobs; don't allow tens of 
thousands of additional families to suffer for OSM's misguided and 
unjustified rule.
    Thank you for this opportunity to testify, Mr. Chairman, and stand 
ready to answer any questions the subcommittee may have about this 
attack on coal jobs, power providers and businesses throughout the 
United States.
                                 ______
                                 
    Mr. Lamborn. Thank you. Mr. Bostic?

         STATEMENT OF JASON D. BOSTIC, VICE-PRESIDENT, 
                 WEST VIRGINIA COAL ASSOCIATION

    Mr. Bostic. Good morning and thank you for the opportunity 
to address this Committee. I am Jason Bostic with the West 
Virginia Coal Association.
    Mr. Lamborn. If you can get just a little closer.
    Mr. Bostic. Is that better?
    Mr. Lamborn. A little bit more.
    Mr. Bostic. OK. Sorry about that. On behalf of our 
membership, which accounts for 98 percent of West Virginia's 
underground and surface coal production, we are grateful for 
the opportunity to address this Subcommittee and we welcome 
your interest in these rule changes.
    West Virginia is the nation's second largest coal producing 
state, averaging about 155 million tons of annual production, 
60 percent of which comes from underground coal mining 
operations. West Virginia is the nation's leading underground 
coal producer.
    As you've heard from others this morning, coal is the 
broad-shouldered atlas of West Virginia's economy. In addition 
to the 21,000 miners directly employed in the industry, coal 
production supports another 42,000 jobs throughout our economy. 
Coal is also the backbone of West Virginia's government and 
social program structure, providing almost $500 million in 
severance taxes to support vital county and state, local 
services.
    The thousands of coal miners in West Virginia, Appalachia 
and across this nation desperately need your help. While the 
President speaks of stimulating the economy, at every turn his 
regulatory agencies are erecting substantial barriers to the 
expansion of the coal industry. While he pleads the case for 
more jobs, the agencies under his authority seem determined to 
drastically increase unemployment and outright poverty.
    All of the benefits provided by the coal industry have been 
placed in jeopardy by the actions of the current 
Administration. With this current initiative, OSM has joined 
EPA in advancing an anti-coal agenda that targets all coal 
production. To implement this agenda, these agencies rely on 
policy, guidance and secretive revisions that are developed 
behind closed doors, wrapped in bureaucratic intrigue.
    As the mining industry and our employees struggle to 
decipher and cope with this assault, we cannot help but marvel 
how this Administration's commitment to transparency stops at 
Appalachia and with the coal industry.
    At the very outset of the new Administration, the White 
House Council on Environmental Quality engineered a blueprint 
that committed the entire Federal regulatory structure to 
target Appalachian coal miners. Following its orders from CEQ, 
for example, the EPA embarked on an unprecedented campaign to 
twist the Federal/State relationship under the Clean Water Act 
to nullify the rights of individual states. So bad are the 
actions of the EPA that individual states, including West 
Virginia, have sued in Federal court to preserve their 
sovereign authority.
    The rulemaking from OSM that is the subject of the hearing 
today is particularly offensive. The agency has set out to 
radically change the mining regulatory program with absolutely 
no justification. The path to revise the stream buffer zone 
rule began by way of a settlement agreement between OSM and 
certain anti-mining factions. From there, OSM established a 
rulemaking schedule that you've heard from others that would 
astonish most of the world. Under this record-breaking 
schedule, OSM would quash a prior effort that took four years 
to complete.
    Far from being the midnight regulation as accused by the 
Administration, the 2008 revisions were actually comprehensive 
changes that remained faithful to the Surface Mine Law. 
According to OSM's own estimates, these changes stand to 
potentially reduce coal production in Appalachia by as much as 
30 percent and throw thousands out of work. Further, despite 
the efforts of some to mask the impact of these revisions as 
confined to surface mining, and we cannot emphasis this point 
enough, the changes that OSM is currently contemplating could 
dramatically impact the underground production of coal in West 
Virginia and across this country.
    The coal industry is not alone in its observation that OSM 
is attempting to change an act of Congress by way of a 
regulation. Individual mining states have been openly 
critically of this process, as you've already heard this 
morning, with one state agency properly characterizing the 
rulemaking as junk and with the remainder of those agencies 
alleging the rule will violate the surface mining law.
    It is against this backdrop of a Federal assault, waged by 
the EPA and OSM on coal, that we welcome your interest in these 
rule changes. The strong demand for West Virginia coal should 
be reassuring to our mining families and encouraging investment 
and expansion that puts even more people to work, but 
unfortunately, that is not the case. The politically motivated 
actions of OSM and EPA have cast a long shadow of uncertainty 
over the coal industry. For our mining families and their 
communities, these mysterious rule changes hang over their 
heads like an ominous cloud.
    Coal cannot only sustain current jobs but could add even 
more if these arbitrary actions from Washington are restrained 
through effective oversight from Congress. We seek not a 
subsidy or a handout. We just need the permission to work. To 
continue to do for this country what we've done for years, 
providing it with energy and industrial fuel that so many 
others in the developing world crave as they aspire to economic 
greatness, we urge you and we applaud your efforts to pull OSM 
and the other regulatory agencies from the shadows of their 
secretive routines and to demand real, hard answers.
    Thank you again.
    [The prepared statement of Mr. Bostic follows:]

             Statement of Jason D. Bostic, Vice-President, 
                     West Virginia Coal Association

    Good morning and thank you for the opportunity to address this 
Committee. I am Jason Bostic with the West Virginia Coal Association. 
On behalf of our membership, which accounts for 98 percent of West 
Virginia's underground and surface coal production, we are grateful for 
the opportunity to address this Subcommittee.
    West Virginia is the nation's second largest coal producing state, 
averaging 155 million tons of annual coal production, 60 percent of 
which comes from underground mining operations.
    West Virginia is the nation's leading underground coal producer and 
21,000 men and women show up every day at mines in West Virginia to 
produce one of the most valuable energy resources found anywhere in the 
world. For electrical generation, West Virginia coal offers a fuel 
source that is both high in BTU content and low in emissions. For 
domestic and international steel producers, coal from West Virginia and 
Appalachia is irreplaceable as a feedstock for the production of iron 
and steel. Our coal is also used in a variety of manufacturing 
processes that produce everything from plastics, to medication to 
cosmetics.
    In short, West Virginia coal does everything from charging your 
iphone to forging the steel for our nation's infrastructure to making 
the plastic bottle for your soda. Our coal is shipped to 33 states and 
23 countries. Energy produced in West Virginia fuels 40 percent of all 
electrical consumption on the east coast.
    Coal is also the broad-shouldered Atlas of West Virginia's economy. 
In addition to the 21,000 coal miners directly employed by the mining 
industry, coal production supports another 42,000 jobs throughout the 
economy. These are jobs that pay twice the average annual state wage 
and represent $3.4 billion in direct wages annually. Coal is also the 
backbone of West Virginia's government and social program structure, 
providing almost $500 million in severance taxes to support vital 
state, county and local services. Together with the electric utility 
industry, coal provides upwards of 60 percent of all business taxes 
collected in West Virginia.
    The thousands of coal miners in West Virginia, Appalachia and 
across the nation need your help.
    While the President speaks of stimulating the economy, at every 
turn his regulatory agencies are erecting substantial barriers to the 
expansion of the mining industry. While he pleads the case for more 
jobs the agencies under his authority seem determined to drastically 
increase unemployment and increase those living below the poverty 
level. As the President calls for review of administrative actions, one 
of his executive agencies appears determined to push through a 
regulation with little public participation.
    All of the benefits provided by the coal industry, and all that 
results from having a domestic source of energy that is so versatile in 
the economy, has been placed in jeopardy by the actions of the current 
administration. With its current initiative to re-write the Stream 
Buffer Zone Rule, the federal Office of Surface Mining (OSM) has joined 
the Environmental Protection Agency (EPA) in advancing an anti-coal 
agenda that targets all coal production but seems to focus specifically 
on the Appalachian coal basin. To implement this agenda, these agencies 
rely on policy, guidance and, in the case of OSM, secretive regulatory 
revisions that are developed behind closed doors, wrapped in 
bureaucratic intrigue. As the mining industry and our employees 
struggle to decipher and cope with this assault, we cannot help but 
marvel how this administration's stated commitment to transparency 
stops at Appalachia and the coal industry.
    At the very outset of the new administration, the White House 
Council on Environmental Quality engineered a ``blueprint'' that 
committed the entire federal regulatory structure to restricting coal 
production and unfairly targeting Appalachian coal miners. The ideology 
expressed in this June 11, 2009 Memo (copy provided an as attachment) 
has been used by EPA to halt the legal and orderly processing of mining 
permit applications. Marching to its orders under the June 11 memo, EPA 
embarked on an unprecedented campaign to twist the federal-state 
relationship under the Clean Water Act (CWA) to nullify the rights of 
individual states with respect to water quality standards. So bad are 
the actions of EPA that individual states, including West Virginia, 
have sued in federal court to preserve their sovereign authority.
    The rulemaking from OSM that is the subject of the hearing today is 
particularly offensive. The agency has set out to radically change the 
mining regulatory program with no justification. As the agency itself 
admitted in the Federal Register, ``. . .we had already decided to 
change the rule following the change of administrations on January 20, 
2009'' (75 Fed. Reg. 34667, June 18, 2010)
    The path to revise the Stream Buffer Zone rule began by way of 
settlement agreement between OSM and anti-mining factions that have 
consistently, yet unsuccessfully, legally harassed the orderly 
regulation of coal mining. From there, came the June 11 memo and an OSM 
established rulemaking schedule that will astonish most observers- the 
agency committed to rewrite its regulations and complete an 
Environmental Impact Statement by February 2012--perhaps the fastest 
rulemaking exercise ever undertaken by a federal agency.
    Under this record-breaking rulemaking schedule, OSM would quash a 
prior effort that took four years to complete and certainly included 
more public comment opportunities than the current initiative.
    Far from being the ``midnight regulation'' as accused by OSM and 
this administration, the 2008 revisions were a thoughtful and inclusive 
change to federal mining regulations that remained faithful to the 
federal Surface Mining Control and Reclamation Act (SMCRA) and 
reflected several federal court decisions. Under this current regime, 
OSM has embarked on the most sweeping changes to the mining regulatory 
program since its creation in 1977 by Congress.
    OSM's political leadership would have you believe these changes are 
but mere clarifications. Changes that, by OSM's own conservative 
estimates, stand to potentially reduce coal production in Appalachia by 
as much 30 percent and throw 20,000 people out of work are not minor. 
Further, and we can't stress this important fact enough, despite the 
efforts of some to mask the impact of these revisions as confined to 
surface mining, the changes being contemplated by OSM could 
dramatically impact underground coal mines. They are in fact changes 
that betray the very will and intent of Congress as expressed in SMCRA.
    Just as we have seen from EPA and its actions under the CWA, 
unelected bureaucrats within OSM are set to radically alter the place 
of coal in our nation's energy mix. They will do so with a stroke of 
the regulatory pen, ignoring public scrutiny and debate before 
Congress. Even the regulatory process associated with these changes has 
become secretive. Individual states, which SMCRA envisioned as the 
primary regulators of mining activity, have been locked out of the 
process by OSM.
    The coal industry is not alone in its observation that OSM is 
attempting to change an act of Congress by way of regulation. 
Individual mining states have been openly critical of this process, 
with one state agency properly characterizing the rulemaking as 
``junk'' and many others alleging the rule will clearly violate SMCRA.
    It is against this backdrop of a federal assault, waged by EPA and 
OSM on coal that we welcome the Subcommittee's interest in this rule 
change. The strong demand for West Virginia coal should be reassuring 
to our mining families and encouraging investment and expansion that 
puts even more people to work. But that is not the case.
    The politically-motivated actions of OSM and EPA have cast a long 
shadow of uncertainty over the coal industry. For our mining families 
and their communities these mysterious rule changes hang over their 
heads like an ominous cloud. They worry about their jobs, their 
children, paying their bills and the fabric of their communities. We 
are left to ponder why, if Washington is so concerned about creating 
good jobs, that it seems so determined to take away those that already 
exist.
    Coal has allowed West Virginia and other mining states to survive 
recent economic disruptions relatively unscathed without massive budget 
deficits and drastic reductions in social services. Coal production in 
West Virginia and elsewhere in this nation has a potentially bright 
future as the country struggles to regain its economic footing. We will 
need coal to power factories and forge steel. We will need coal to 
provide reliable, affordable electricity to our citizens. Coal cannot 
only sustain current jobs but could add even more if these arbitrary 
actions from Washington are contained through effective oversight from 
Congress.
    We seek not a subsidy or handout. We just need the permission to 
work. To continue doing for this country what we've done for years--
providing it with the energy and industrial fuel that so many in the 
developing world crave as they aspire to economic greatness and 
providing the wages and taxes that support our states and communities.
    We ask that you pull OSM and the other regulatory agencies from the 
shadows of their secretive routines and demand real answers.
    Thank You.
                                 ______
                                 

                 MEMORANDUM OF UNDERSTANDING AMONG THE

                      U.S. DEPARTMENT OF THE ARMY,

                    U.S. DEPARTMENT OF THE INTERIOR,

                AND U.S. ENVIRONMENTAL PROTECTION AGENCY

              IMPLEMENTING THE INTERAGENCY ACTION PLAN ON

                  APPALACHIAN SURFACE COAL MINING \1\
---------------------------------------------------------------------------

    \1\ For purposes of this MOU, ``Appalachian surface coal mining'' 
refers to mining techniques requiring permits under both the Surface 
Mining Control and Reclamation Act (SMCRA) and Section 404 of the Clean 
Water Act (CWA), in the states of Kentucky, Ohio, Pennsylvania, 
Tennessee, Virginia, and West Virginia.
---------------------------------------------------------------------------

                             JUNE 11, 2009

PREAMBLE
    The mountains of Appalachia possess unique biological diversity, 
forests, and freshwater streams that historically have sustained rich 
and vibrant American communities. These mountains also contain some of 
the nation's richest deposits of coal, which have been mined by 
generations of Americans to provide heat and electricity to millions in 
the U.S. and around the world. After generations of mining, however, 
the region's most readily available coal resources have diminished, and 
the remaining coal seams are less accessible to non-surface mining 
methods.
    In response, a surface mining technique commonly referred to as 
``mountaintop mining'' \2\ has become increasingly prevalent in the 
Appalachian region. Although its scale and efficiency has enabled the 
mining of once-inaccessible coal seams, this mining practice often 
stresses the natural environment and impacts the health and welfare of 
surrounding human communities. Streams once used for swimming, fishing, 
and drinking water have been adversely impacted, and groundwater 
resources used for drinking water have been contaminated. Some forest 
lands that sustain water quality and habitat and contribute to the 
Appalachian way of life have been fragmented or lost. These negative 
impacts are likely to further increase as mines transition to less 
accessible coal resources within already affected watersheds and 
communities.
---------------------------------------------------------------------------
    \2\ The term ``mountaintop mining'' may also be referred to as 
``mountaintop removal'' or ``valley fill mining.''
---------------------------------------------------------------------------
    With this Memorandum of Understanding (MOU), the Department of the 
Interior (DOI), U.S. Environmental Protection Agency (EPA), and the 
U.S. Army Corps of Engineers (Corps) are announcing this Interagency 
Action Plan (IAP) designed to significantly reduce the harmful 
environmental consequences of Appalachian surface coal mining 
operations, while ensuring that future mining remains consistent with 
federal law. This IAP includes a set of short-term actions to be 
implemented in 2009 to existing policy and guidance, and a longer term 
process for gathering public input, assessing the effectiveness of 
current policy, and developing regulatory actions.
    The Federal government has made a commitment to move America toward 
a 21st-century clean energy economy based on the recognition that a 
sustainable economy and environment must work hand in hand. Federal 
Agencies will work in coordination with appropriate regional, state, 
and local entities to help diversify and strengthen the Appalachian 
regional economy and promote the health and welfare of Appalachian 
communities. This interagency effort will have a special focus on 
stimulating clean enterprise and green jobs development, encouraging 
better coordination among existing federal efforts, and supporting 
innovative new ideas and initiatives.

                        Interagency Action Plan

I. COORDINATION ON REGULATORY PROGRAMS
    This MOU formalizes the agencies' IAP for coordinating the 
regulation of Appalachian surface coal mining. The elements of the plan 
are:
          A series of interim actions under existing 
        authorities to minimize the adverse environmental consequences 
        of Appalachian surface coal mining;
          A commitment by the agencies to investigate and, if 
        appropriate, undertake longer term regulatory actions related 
        to Appalachian surface coal mining;
          Coordinated environmental reviews of pending permit 
        applications under the Clean Water Act (CWA) and Surface Mining 
        Control and Reclamation Act (SMCRA); and
          A commitment to engage in robust public 
        participation, through public comment mechanisms and 
        Appalachian public outreach events, helping to inform Federal, 
        State, and local decisions.
    In addition to the steps taken above, the Federal government will 
help diversify and strengthen the Appalachian regional economy. This 
effort will include the agencies to this MOU, and other Federal 
agencies, as appropriate, and will work to focus clean energy 
investments and create green jobs in Appalachia.
    Coordination of interagency policy discussions and assessment of 
policy effectiveness will be achieved in consultation with the Council 
on Environmental Quality.
II. SHORT-TERM ACTIONS TO MINIMIZE ENVIRONMENTAL HARM
    The signatory agencies will take the following short-term actions 
under existing laws, regulations, and other authorities to reduce the 
harmful environmental consequences of Appalachian surface coal mining.
    Before the end of 2009, the Corps and EPA will take the following 
steps:
          Within 30 days of the date of this MOU, the Corps 
        will issue a public notice pursuant to 33 C.F.R. Sec. 330.5 
        proposing to modify Nationwide Permit (NWP) 21 to preclude its 
        use to authorize the discharge of fill material into streams 
        for surface coal mining activities in the Appalachian region, 
        and will seek public comment on the proposed action.
          EPA and the Corps, in coordination with DOI's Fish 
        and Wildlife Service (FWS), will jointly develop guidance to 
        strengthen the environmental review of proposed surface coal 
        mining projects in Appalachia under the CWA Section 404(b)(1) 
        Guidelines.
          Recognizing that the regulation of surface coal 
        mining extends beyond CWA Section 404, EPA will improve and 
        strengthen oversight and review of water pollution permits for 
        discharges from valley fills under CWA Section 402, and of 
        state water quality certifications under CWA Section 401, by 
        taking appropriate steps to assist the States to strengthen 
        state regulation, enforcement, and permitting of surface mining 
        operations under these programs.
          The Corps and EPA, in coordination with FWS and 
        consistent with the agencies' regulations governing 
        compensatory mitigation, will jointly issue guidance clarifying 
        how impacts to streams should be evaluated and how to evaluate 
        proposed mitigation projects to improve the ecological 
        performance of such mitigation implemented to compensate for 
        losses of waters of the United States authorized by Section 404 
        permits.
          EPA, in coordination with the Corps, will clarify the 
        applicability of the CWA waste treatment exemption for 
        treatment facilities constructed in waters of the United States 
        in order to minimize the temporary impacts of mining operations 
        on streams.
    Before the end of 2009, DOI will take the following steps:
          If the 2008 Stream Buffer Zone Rule is vacated by the 
        U.S. District Court for the District of Columbia in Coal River 
        Mountain Watch et al v. Kempthorne, 1:08-cv-02212-HHK C, as 
        requested by the Secretary of the Interior on April 27, 2009, 
        the Office of Surface Mining Reclamation and Enforcement (OSM) 
        will issue guidance clarifying the application of the 1983 
        stream buffer zone provisions to further reduce adverse stream 
        impacts.
          OSM will reevaluate and determine how it will more 
        effectively conduct oversight of State permitting, State 
        enforcement, and regulatory activities under SMCRA.
          OSM will remove impediments to its ability to require 
        correction of permit defects in SMCRA primacy states.
III. DEVELOPMENT OF LONGER TERM REGULATORY ACTIONS TO BETTER MANAGE 
        APPALACHIAN SURFACE COAL MINING
  A. OBJECTIVES

    The signatory agencies will review their existing regulatory 
authorities and procedures to determine whether regulatory 
modifications should be proposed to better protect the environment and 
public health from the impacts of Appalachian surface coal mining. At a 
minimum, the agencies will consider:
          Revisions to key provisions of current SMCRA 
        regulations, including the Stream Buffer Zone Rule and 
        Approximate Original Contour (AOC) requirements;
          Eliminating use of Nationwide Permit 21 in connection 
        with surface coal mining in the Appalachian region when the 
        Nationwide Permit Program is reauthorized in 2012; and
          Revisions to how surface coal mining activities are 
        evaluated, authorized, and regulated under the CWA.
  B. PROCESS

    The signatory agencies will create an interagency working group to 
coordinate the development of short-term actions, longer term 
regulatory actions, and coordination procedures for Appalachian surface 
coal mining. The group will ensure robust public involvement in the 
development of any proposed actions or regulatory reforms.
    For any proposed regulatory revision or other action under this MOU 
that is a major federal action significantly affecting the quality of 
the human environment (and is an action subject to NEPA), an 
Environmental Impact Statement (EIS) will be prepared to inform the 
decision-making process. At an early stage in the interagency 
coordination process, the working group will determine whether 
coordinating these NEPA processes programmatically would more 
effectively guide regulatory development and decision-making. The 
interagency group will coordinate with CEQ regarding the implementation 
of the National Environmental Policy Act (NEPA) in the development of 
regulatory reforms.
IV. INTERIM INTERAGENCY COORDINATION PROCEDURES
  A. Clean Water Act

    EPA and the Corps will begin immediately to implement enhanced 
coordination procedures applicable to the Clean Water Act review of 
Section 404 permit applications for Appalachian surface coal mining 
activities that have been submitted prior to execution of this MOU. The 
goal of these procedures is to ensure more timely, consistent, 
transparent, and environmentally effective review of permit 
applications under existing law and regulations. The agencies are 
issuing these enhanced joint procedures concurrently with this MOU. 
Also concurrently, EPA is clarifying the factual considerations it is 
using to evaluate pending CWA permit applications under the 404(b)(1) 
Guidelines.
    Pending Clean Water Act Section 404 permit applications for 
Appalachian surface coal mining activities will continue to be 
evaluated by the Corps and EPA on a case-by-case basis. The agencies 
will focus their reviews of Appalachian surface coal mining permit 
applications based on likely environmental impacts with the goal of 
avoiding, minimizing, and mitigating such impacts to the extent 
practicable under the CWA Section 404(b)(1) Guidelines and consistent 
with NEPA. This approach will enable the continued permitting of 
environmentally responsible projects.
  B. Surface Mining Control and Reclamation Act

    During 2009, OSM will issue guidance concerning appropriate 
application of the Stream Buffer Zone rule and other related rules and 
will ensure that states are implementing their counterpart provisions 
and SMCRA regulatory programs consistent with the guidance.
V. PUBLIC INVOLVEMENT
    This IAP will be accompanied by robust public comment on its short- 
and longer term actions. The agencies will hold public meetings in 
Appalachia during 2009 to gather on-the-ground input and encourage 
ongoing local engagement in the environmental assessment and decision-
making process. Additional public participation will occur as agency 
actions move forward.
VI. GENERAL
    A. The policy and procedures contained within this MOU are intended 
solely as guidance and do not create any rights, substantive or 
procedural, enforceable by any party. This MOU does not constitute 
final agency action on any issue, and any actions contemplated by this 
MOU will be carried out in an appropriate administrative process by the 
action agency in accordance with all applicable laws and regulations.
    B. This document does not, and is not intended to, impose any 
legally binding requirements on Federal agencies, States, or the 
regulated public, and does not restrict the authority of the employees 
of the signatory agencies to exercise their discretion in each case to 
make regulatory decisions based on their judgment about the specific 
facts and application of relevant statutes and regulations.
    C. Nothing in this MOU is intended to diminish, modify, or 
otherwise affect statutory or regulatory authorities of any of the 
signatory agencies. All formal guidance interpreting this MOU and 
background materials upon which this MOU is based will be issued 
jointly by the appropriate agencies.
    D. Nothing in this MOU will be construed as indicating a financial 
commitment by DOI, the Corps, EPA, or any cooperating State agency for 
the expenditure of funds except as authorized in specific 
appropriations.
    E. This MOU will take effect on the date shown above and will 
continue in effect until permanent procedures are established, or 
unless earlier modified or revoked by agreement of all signatory 
agencies. Modifications to this MOU may be made by mutual agreement of 
all the signatory agencies. Modifications to the MOU must be made in 
writing.

Signed,

Lisa P. Jacks
Administrator
U.S. Environmental Protection Agency

Ken Salazar
Secretary
U.S. Department of the Interior

Terrence ``Rock'' Salt
Acting Assistant Secretary of the Army (Civil Works)
U.S. Department of the Army
                                 ______
                                 
    Mr. Lamborn. All right. Thank you. Ms. Fredriksen?

 STATEMENT OF KATHARINE A. FREDRIKSEN, SENIOR VICE PRESIDENT, 
   ENVIRONMENTAL STRATEGY & REGULATORY AFFAIRS, CONSOL ENERGY

    Ms. Fredriksen. Good morning, Mr. Chairman, and 
distinguished Subcommittee members. My name is Katharine 
Fredriksen and I am the Senior Vice President of Environmental 
Strategy & Regulatory Affairs for CONSOL Energy. I'd like to 
thank you for inviting me to participate today in this very 
important hearing.
    CONSOL Energy holds the largest proven reserves of minable 
bituminous coal of 4.4 billion tons. We are the nation's 
largest underground producer of coal and will produce 62 
million tons this year alone.
    My comments today are based on the draft Office of Surface 
Mining stream buffer zone rule that is available in the public 
forum. Based on our analysis of this draft rule, CONSOL has 
very serious concerns about the jobs at risk and the 
significant impact on coal mining if this rule were to go 
forward as drafted.
    Eighty-eight percent of our coal is produced using the 
longwall method of mining. Longwall mines are the safest method 
of underground mining and at CONSOL, safety is absolutely our 
number one core value. Currently, we operate active mining 
complexes across five states. Eight of our mining complexes are 
longwall mines, with five of those eight located right here in 
northern West Virginia. We also have surface and underground 
mining operations in central and southern West Virginia.
    As the Subcommittee knows, SMCRA not only regulates surface 
coal mines, but it also regulates the surface effects of 
underground coal mines. Thus, all of CONSOL Energy's longwall 
mining operations operate pursuant to and in accordance with a 
SMCRA permit.
    OSM's revised SBZ rule appears to include, among other 
things, a prohibition of mining in, near or through 
intermittent and perennial streams and within 100 feet of such 
streams, very restrictive provisions for excess spoil fills and 
new and expansive standards for what constitutes a material 
damage to the hydrologic balance.
    These standards could make longwall mines impossible to 
permit or operate. In the locations where we operate, it is 
impossible for longwall mining to avoid impacts to intermittent 
and perennial streams because such streams are ubiquitous atop 
our operations. The proposed definition of material damage 
could further prohibit subsidence of streams and thus eliminate 
our ability to extract coal via longwall mining.
    Using a moderate interpretation, and I stress moderate, 
instead of extreme or worse case, CONSOL conducted a 
preliminary engineering analysis of the impacts of this rule in 
its current draft form. If you'll indulge me, I have a graphic 
to represent this because they always say a picture is worth a 
thousand words.
    Mr. Lamborn. Ms. Fredriksen, is this in your testimony or 
do we need to have it added to the record?
    Ms. Fredriksen. Yes, it's included. I can include this as a 
part of the written, if you would like. I have it as an 
exhibit.
    Mr. Lamborn. OK. If there's no objection, that will be 
added to the record.
    Ms. Fredriksen. Thank you. Our analysis indicated that the 
rule would result in a 40 percent loss of eastern longwall 
minable reserves to CONSOL. That is over one billion tons 
CONSOL would be prohibited from mining. At current market 
prices, this translates to a reduction in future revenues of 
over $66 billion.
    Additionally, the increased quantity and frequency of 
longwall moves to avoid protected streams could further reduce 
the mine's annual production by 25 to 30 percent and 
potentially increase production costs by 20 to 35 percent. For 
CONSOL alone, this would mean many of our longwall mines would 
be unprofitable at today's coal prices.
    Please note that streams typical of the streams that are to 
be protected by this proposed rule have been undermined by 
longwall operations for over 35 years. To date, over 172 square 
miles in Pennsylvania and West Virginia have been undermined by 
CONSOL's longwall operations with no material damage to the 
hydrologic balance.
    CONSOL believes that coal production, safety of personnel 
and environmental stewardship are not mutually exclusive goals. 
Impacts to the environment as a result of longwall mining are 
regulated by the state environmental agencies through NPDES 
permits and by the Army Corps of Engineers through 404 permits. 
These permits account for the hydrological, stream baseline, 
ecological and geologic impacts. A complete listing of all of 
the permits we are subject to is included in my written 
testimony.
    But this hearing is entitled ``Jobs at Risk,'' so if you'll 
indulge me, I'd like to take a few moments to discuss the 
impacts this rule will have on our communities in which we 
operate and on our employees.
    By way of example, and attached as Exhibit D to my written 
testimony, we analyzed the 2010 year end economic impacts of 
our Pennsylvania mining complex called Bailey-Enlow, two of our 
larger mines that would be significantly impacted by this rule. 
There are a total of 1,348 CONSOL employees at this complex, as 
well as an average of 412 contractor employees onsite every 
day. The total direct expenditures from the complex in the 
local economy is $763 million, with an additional $98 million 
in Federal, state and local taxes. Using a five to one 
multiplier effect, the estimated local economy impact is $1.7 
billion, creating 6,740 jobs, bringing the total economic 
impact to $2.6 billion for 2010 alone.
    But we've got five longwall mining complexes in West 
Virginia and they provide similar high-paying jobs and economic 
benefits. We directly employ 3,035 employees at these mines and 
approximately 264 contractors. The total direct expenditures 
from these five complexes in the local economies in West 
Virginia are $872 million, with an additional $146 million in 
Federal, state and local taxes. The local economy multiplier 
effect for northern West Virginia mines brings the local impact 
to $1,017 billion for 2010, with an estimated 15,175 jobs. 
We've additionally provided $2.4 million in philanthropic 
donations to the communities where we operate in 2010 alone.
    In conclusion, Mr. Chairman, please allow me to say that at 
a time when our nation's economy is still struggling to regain 
its former balance, and with unemployment remaining stubbornly 
high, one of the few relatively robust sectors is the coal 
mining industry. In this regard, we are particularly pleased 
and proud of our longwall operations and of all the men and 
women who work so tirelessly toward the safe, environmentally 
protective and economically successful operation of these 
mines.
    The stream buffer zone rule, if promulgated in its current 
form, would mean the loss of billions of dollars to the economy 
and literally thousands of jobs. On behalf of CONSOL, I 
fervently hope that the Administration will proceed in a 
different direction. Thank you.
    [The prepared statement of Ms. Fredriksen follows:]

     Statement of Katharine A. Fredriksen, Senior Vice President, 
       Environmental Strategy & Regulatory Affairs, CONSOL Energy

Introduction
    Good Morning Mr. Chairman and distinguished Subcommittee Members 
and guests. My name is Katharine Fredriksen and I am the Senior Vice 
President, Environmental Strategy & Regulatory Affairs for CONSOL 
Energy. Thank you for inviting me to participate in this very important 
Subcommittee oversight hearing. CONSOL Energy holds the largest proven 
reserves of minable bituminous coal of 4.4 billion tons. We are the 
nation's largest underground miner of coal, and will produce some 62 
million tons of coal this year alone. My comments today are based on 
the draft Office of Surface Mining (``OSM'') Stream Buffer Zone rule 
available in the public forum. Based on our analysis of that draft 
rule, CONSOL has serious concerns about the jobs at risk and the 
significant impacts on coal mining if this rule were to go forward as 
any of the proposed alternatives other than ``no action''.
    Eighty-eight percent of our coal is produced using the longwall 
method of mining. As Members of this Subcommittee may know, longwall 
systems have their own hydraulic roof supports called shields for 
overlying rock that move with the machine as mining progresses into the 
coal seam. Rock that is no longer supported by the coal that has been 
removed is allowed to fall behind the operation in a controlled manner, 
always keeping the miners under the shields. Longwall mines are the 
safest method of underground mining, and at CONSOL, safety is 
absolutely our number one core value.
    Currently, we operate active mining complexes across five states. 
Eight of our mining complexes are longwall mines, as follows; (1) 
Buchanan in Southwest Virginia; (2) Shoemaker in Northern West Virginia 
near Wheeling; (3) McElroy in Northern West Virginia near Moundsville; 
(4) Blacksville in Northern West Virginia near the Pennsylvania border; 
(5) Loveridge in Northern West Virginia near Fairmont; (6) Robinson 
Run, also near Fairmont in Northern West Virginia; (7) Bailey Mine in 
Pennsylvania; and 8) Enlow Fork Mine, also in Pennsylvania. We also 
have surface and underground mine operations in central and southern 
West Virginia, namely our Fola and Miller Creek mines.
SMCRA Regulates the Surface Effects of Underground Coal Mines
    As the Subcommittee knows, SMCRA not only regulates surface coal 
mines, but also, as specified in SMCRA Sec. 516, the surface effects of 
underground coal mining operations. Importantly, however, SMCRA 
Sec. 516 mandates that in adopting any rules and regulations for the 
surface effects of underground coal mines, OSM ``shall consider the 
distinct difference between surface coal mining and underground coal 
mining.'' Thus, all of CONSOL Energy's longwall mining operations 
operate pursuant to and in accordance with SMCRA permits issued by the 
state regulatory authorities in the states where we operate. The 
programs of these state regulatory authorities have been approved by 
OSM as being as stringent as federal SMCRA and they are subject to 
strict oversight by OSM. In addition, Congress in SMCRA specifically 
encouraged the use of planned subsidence such as that which occurs with 
longwall mining.
    Consequently, CONSOL Energy will be directly affected by any 
changes OSM makes to its stream buffer zone rule. As I describe in more 
detail below, everything we have learned to date about these changes 
causes us to be gravely concerned about the economic viability of our 
longwall mines, and the adverse impacts on employment at the mines, as 
well as the effects on the local communities that depend on these 
operations.
What is the Stream Buffer Zone Rule?
    Rules and policies on stream buffer zones have been in existence 
from almost the very beginning of the implementation of SMCRA by OSM 
and the regulatory authorities of the coal mining states. The current 
stream buffer zone rule was published in the Federal Register on 
December 12, 2008 in a document entitled ``Excess Spoil, Coal Mine 
Waste, and Buffers for Perennial and Intermittent Streams.'' 73 Fed. 
Reg. 75,814. A copy of the first page of the preamble to the stream 
buffer zone rule and the rule itself is attached as Exhibit A to my 
prepared statement. As you heard in earlier testimony, the existing 
rule is a is a very comprehensive and detailed rule.
    This 2008 rule resulted from a careful and well-executed public 
process completed over more than a five-year period. It included public 
hearings and consideration of over 45,000 public comments. The 2008 
rule was also supported by an October 2005 programmatic environmental 
impact statement (``EIS''), which was sponsored by four federal 
agencies: OSM; EPA; the Corps of Engineers; and the Fish and Wildlife 
Service. This EIS included 30 scientific and economic studies. OSM also 
completed another separate EIS to support the final rule. The 2008 rule 
clarified existing agency policy on stream buffer zones that had been 
consistently used and applied by both OSM and state regulatory 
authorities for over 25 years. However, it also added and strengthened 
significant new environmental requirements for the placement of excess 
spoil. These new requirements included provisions for:
          minimizing excess spoil, avoiding mining activities 
        in or near perennial and intermittent streams, if reasonably 
        possible;
          requiring an analysis of alternatives; and
          selection of the option for placement of spoil with 
        the least environmental impact on fish, wildlife, and related 
        environmental values, to the extent possible.
    The 2008 rule was challenged in court, but instead of remanding or 
vacating the rule, the court instructed OSM that any changes the agency 
wanted to make would have to be done through notice and comment 
rulemaking, with full public participation. In the meantime, the 2008 
stream buffer zone rule would remain in effect. A copy of the court's 
August 2009 decision in this case is attached to my prepared statement 
as Exhibit B.
Impacts Resulting from Revisions to the SBZ rule
    OSM's revised SBZ rule appears to include, among other things:
          prohibition of mining in, near, or through 
        intermittent and perennial streams and within 100 feet of such 
        streams;
          very restrictive provisions for excess spoil fills; 
        and
          new and expansive standards for what constitutes 
        material damage to the hydrologic balance.
    These standards could make longwall mines impossible to permit or 
operate. In the locations where we operate, it is impossible for 
longwall mining to avoid impacts to intermittent and perennial streams 
because such streams are ubiquitous atop our operations and we cannot 
avoid mining beneath them. The proposed definition of material damage 
could prohibit subsidence of streams, thus eliminating our ability to 
extract the coal via longwall mining.
    Using a moderate interpretation of a protected stream, CONSOL 
conducted a preliminary engineering analysis of the impacts this rule, 
in its current draft form, could have if finalized. Our analysis 
indicates that the rule would result in a 40% loss of eastern longwall 
minable reserves to CONSOL--that is over 1 billion tons CONSOL would be 
prohibited from mining. At current market prices, this translates to a 
reduction in future revenues by over $66 billion. Additionally, the 
increased quantity and frequency of longwall moves due to avoidance of 
protected streams could further reduce the mine's annual production by 
25 to 30 percent, and potentially increases production costs by 20 to 
35 percent. For CONSOL alone, this would mean many of CONSOL's longwall 
mines would be unprofitable at today's coal prices.
    Please note that streams typical of the streams ``to be protected'' 
by this proposed rule have been undermined by longwall operations for 
35 years. This mining has been conducted consistent with the 
Congressional intent that underground mining cause ``subsidence to 
occur at a predictable time and in a relatively uniform and predictable 
manner'' (Report of the House Committee on Interior and Insular Affairs 
to Accompany H.R. 2; April 22, 1977). To date, over 172 square miles in 
PA and WV have been undermined by CONSOL's longwall operations with no 
material damage to the hydrologic balance. And in those infrequent 
circumstances where subsidence does impact streams, states require 
those impacts to be addressed. We suggest that it would be educational 
for the committee members to take the time to drive through these areas 
that have been undermined to see for themselves that environmental 
normalcy exists in those areas.
Existing Environmental Regulations Already Address the SBZ Issues
    CONSOL believes that coal production, safety of personnel and 
environmental stewardship are not mutually exclusive goals. Impacts to 
the environment as a result of longwall mining can be, and have been, 
addressed in a manner that complies with the existing laws and 
regulations of the states in which CONSOL operates these mines.
    The following environmental permits must be obtained for our mining 
operations. These permits incorporate ALL the provisions of the federal 
Clean Water Act, Clean Air Act, NEPA and SMCRA.
United States Army Corps of Engineers (USACE) 404
    Permit to impact jurisdictional waters and wetlands. The permit 
includes mitigation to offset the stream and wetland impacts from the 
project, a cumulative impact statement or environmental impact 
statement, a jurisdictional determination for the streams and wetlands, 
long term maintenance plan for mitigation sites, long term monitoring 
plan and a description of the project and direct impacts.
    PA Department of Environmental Protection (PA DEP) 401/NPDES Coal 
Mining Activity permit application--The permit includes the design, 
purpose and details of the project, hydrological, stream baseline, 
ecological and geological evaluations, construction specifications, and 
bonding.
    PA DEP Chapter 105--Permit for water obstructions and 
encroachments. The permit includes mitigation to offset the stream and 
wetland impacts from the project, a long term maintenance plan for 
mitigation sites, long term monitoring plan and a description of the 
project and direct impacts. As part of the Chapter 105 approval an 
erosion and sedimentation/NPDES plan approval is obtained by either the 
Conservation District or DEP.
    PA DEP Chapter 105 and Mine Safety and Health Administration 
(MSHA)--Permit for Dam construction and maintenance. The permit 
includes design, construction specifications, and bonding, Emergency 
Action Plan and Operation and Maintenance Plan.
VA Department of Mines, Minerals and Energy Surface Mine Control and 
        Reclamation Act Permit (SMCRA)
    The permit includes the design, purpose and details of the project, 
hydrological, stream baseline, ecological and geological evaluations, 
construction specifications, and bonding. This permit is issued as a 
combined SMCRA/NPDES Permit.
WV DEP 401/NPDES Coal Mining Activity permit application.
    The permit includes the design, purpose and details of the project, 
hydrological, stream baseline, ecological and geological evaluations, 
construction specifications, and bonding.
Jobs at Risk and Impacts on Our Communities
    By way of example, we wish to provide the Subcommittee with our 
analysis (attached as Exhibit D to my statement) of the year-end 2010 
economic impacts of our Bailey-Enlow Fork complex in Southwestern 
Pennsylvania. To briefly summarize this analysis, there are a total of 
1,348 CONSOL employees at this complex, as well as an average of 412 
contractor employees on-site every day. The total direct expenditures 
from the complex in the local economy is almost $763 million, not 
including almost $98 million in federal, state, and local taxes. This 
results in a total direct economic impact from the mining complex on 
the local economy of almost $861 million. In addition, the estimated 
local economy multiplier effect is about $1.7 billion, with the 
estimated ``spin-off'' effect of jobs resulting from the Bailey-Enlow 
Complex at 5 to 1--creating 6,740 jobs. Thus, the total economic impact 
of the Bailey-Enlow Fork Complex on the local community is almost $2.6 
billion for 2010.
    Our other five longwall mining complexes in WV provide similar 
high-paying jobs and economic benefits to the communities in which they 
operate. We directly employ 3,035 employees at those mines, and 
approximately 264 contractors. At a 5 to 1 spin-off that equals about 
15,175 jobs. The total direct expenditures from these five complexes in 
the local economies in WV is almost $871 million, not including almost 
$146 million in federal, state, and local taxes. This resulted in a 
total direct economic impact from the mining complex on the economy of 
almost $1,017 billion for 2010 to the communities of northern West 
Virginia.
    Also please note that CONSOL provided approximately $2,363,000 in 
philanthropic donations to the communities in which we operated in PA, 
VA and WV in 2010. Should our longwall mines be forced to close or 
curtail business as a result of OSM's SBZ rule, then those donations 
would be substantially reduced.
    We would be happy to provide the Subcommittee with analyses for 
each of these operations.
Conclusion
    Mr. Chairman, and Members of the Subcommittee, please allow me to 
conclude by saying that at a time when our Nation's economy is still 
struggling to regain its former balance, and with unemployment 
remaining stubbornly high, one of the few relatively robust sectors is 
the coal mining industry. In this regard, we are particularly pleased 
and proud of our longwall operations and all of the men and women who 
work so tirelessly toward the safe, environmentally protective, and 
economically successful operation of these mines. The coal we produce 
is ``America's on Switch.''TM The SBZ rule, if promulgated 
in its current form, would mean the loss of billions of dollars to the 
economy, and literally thousands of jobs. On behalf of CONSOL, I 
fervently hope that the Administration will proceed in a different 
direction.
    Thank you.
    [NOTE: Attachments have been retained in the Committee's official 
files.]
                                 ______
                                 
    Mr. Lamborn. Thank you. Mr. Webb?

  STATEMENT OF BO WEBB, FORMER PRESIDENT/CURRENT MEMBER, COAL 
                      RIVER MOUNTAIN WATCH

    Mr. Webb. Good morning. For the record, let's just be 
clear, that as of right now, at this moment, there is no 
rewrite and what we're hearing here this morning is a lot of 
speculation. I won't be speculating about anything I'm talking 
about.
    The title of this hearing, ``Jobs at Risk, Community 
Impacts of the Obama Administration's Effort to Rewrite the 
Stream Buffer Zone Rule,'' is offensive to me. It's offensive 
to anyone that is living and dying in mountaintop removal 
communities, and that's what I'm here to talk about. I am not 
opposed to underground mining.
    I don't believe any rewrite of the SBZ rule in any way, 
shape or form is going to curtail jobs or lose jobs. I have 
some evidence that I have submitted to this Committee in 
writing that reference sources from the Mine Safety and Health 
Administration and the Bureau of Labor Statistics that say that 
won't happen.
    The SBZ rule must be corrected in order to protect the 
people's health. It was rewritten by George W. Bush as a 
parting gift to the coal industry at the cost of people's 
health and it needs to be fixed.
    Let us not forget, President Ronald Reagan, your President, 
my President, in 1983 created the stream buffer zone rule 
because he realized the responsibility he had to protect 
America's water supply in the face of a coal industry that was 
moving more rapidly toward a method of mining that would turn 
entire mountains into ruin and destroy head water source 
streams that carry drinking water to millions of Americans. 
That responsibility now sits on your shoulders, on current 
President's shoulder, on every Member of Congress' shoulders. 
No one gets a free pass, not you and certainly not those that 
seek the subvert protection of our water.
    Protecting our water is far more important than money, 
power and politics. To date, there are 19 peer-reviewed science 
papers addressing human health in mountaintop removal 
communities. A few of the titles are, ``The association between 
mountaintop mining and birth defects among live births in 
central Appalachia;'' ``Self-Reported Cancer Rates in Two Rural 
Areas of West Virginia With and Without Mountaintop Coal 
Mining;'' ``Cardiovascular Disease Mortality in Mountaintop 
Mining Areas of Central Appalachian States.'' It goes on and 
on, there's nineteen of these. And yet, not one of these have 
been refuted, scientifically refuted, not one. Yet no one in 
Congress, nor the coal industry will acknowledge these papers, 
these science papers, exist. Now, you either believe in science 
or you choose to put your head in the sand and revert back to 
the dark ages.
    With some of the rhetoric that's coming from the coal 
industry these days, one must wonder about their acceptance of 
modern science and living in the 21st century. The coal 
industry's latest comment on the recent alarming birth defects 
research in mountaintop removal communities is that the 
research did not take into account that those of us living in 
mountaintop removal communities are a bunch of inbreeds. I 
think that perhaps they need to look inside their own gene 
pool. It's a scientific fact that inbreeding can't account for 
ignorance and low IQs.
    Mountaintop removal is an unprecedented form of coal 
extraction. Nearly a million acres of forested mountains have 
been obliterated. Two thousand miles or more of headwater 
source streams have been contaminated and countless water wells 
have been rendered unsafe for human consumption. Entire 
ecosystems have been wiped out. Mountaintop removal has been in 
full stride now for about 15 to 20 years and already we are 
witnessing health effects of human exposure to the fallout of 
this insane method of mining, and it is insane. What will be 
the long-term effects?
    Statistical research on Appalachian birth defects that I 
mentioned a moment ago has found that a woman pregnant living 
near mountaintop removal has a 42 percent greater chance of a 
baby born with birth defects than a pregnant woman living in a 
non-mountaintop removal community. You equate that to cigarette 
smoking. A baby born in mountaintop removal community has a 181 
percent greater chance of heart or lung birth defects while the 
risk related to the mother's smoking was only 17 percent 
higher. That, Committee Members, that's staggering. If that 
doesn't get your attention, it doesn't spur you to some sort of 
action, then you've sold your very heart and soul. And your 
pro-life stamps that you claim you have is not credible. It's 
phony. It's transparent. You stand on a soapbox and claim to be 
pro-life yet allow our babies to be poisoned, disregarded like 
yesterday's garbage, ignored. I think a dog probably has more 
rights and protection that an unborn baby in a mountaintop 
removal community. I'm beginning to wonder if Congress has any 
decency left.
    I ask each of you, in the name of our great nation, to put 
your politics aside, stand for what's right, protect our 
citizens and do not oppose change to the current SBZ's rule 
that will help protect American lives. At the very least, 
support it being rolled back to the Reagan Rule, with 
enforcement.
    Let us be reminded that regulatory agencies are created to 
protect the people from industries that may cause harm to the 
people. When these agencies or legislators, for that matter, 
become ill- influenced by those they oversee or their power to 
regulate is circumvented by acts such as the Bush trashing of 
the SBZ rule, the people are not well served. America is not 
well served.
    Please remember this each and every waking moment of your 
service to our country. Our future, our children's future, your 
children's future and our lives depend on it. And I would 
simply ask, and I'll request here right now, that there should 
be an immediate moratorium placed on all mountaintop removal 
operations until the Federal Government can take a look and see 
what is happening in southern West Virginia and eastern 
Kentucky with this type of mining. Thank you.
    [The prepared statement of Mr. Webb follows:]

       Statement of Bo Webb, President, Coal River Mountain Watch

    The very title of this hearing indicates a bias against those of us 
who are living (and dying) in mountaintop removal mining communities. 
The title suggests that jobs are at risk if the SBZ rule is corrected. 
The SBZ rule must be corrected in order to protect The People's health. 
It's been broken and it needs fixed.
    Let us not forget, President Ronald Reagan, your president, my 
president, in 1983 created the Stream Buffer Zone Rule because he 
realized the responsibility he had to protect America's water supply in 
the face of an industry that was moving more rapidly toward a method of 
mining that would turn entire mountains into ruin and destroy head 
water source streams that carry drinking water to millions of American 
citizens. This committee now shares that responsibility because 
President George W. Bush, with the stroke of a pen, trashed the Reagan 
SBZ rule just before leaving office as a present to a coal industry 
that wills itself to increase profit at all cost, even at the cost of 
human health.
    I will first address the fallacy of job loss with factual data 
providing referenced resources. This committee would serve The People 
well if its actions are based upon fact and not coal industry deception 
and often outright deceit.
    Fallacy: Stopping the destruction of Appalachian mountains and 
streams would cost jobs.
    Fact 1: Underground mines create over 50% more jobs than 
mountaintop removal mines. Underground mines create 52% more jobs than 
mountaintop removal mines for every ton they produce--they employ 
nearly two thirds of the miners in Central Appalachia while producing 
just over half of the coal\1\.
    Fact 2: Unemployment in counties where a high proportion of coal is 
mined by mountaintop removal is higher than in counties where coal is 
mined mostly underground. According to data from the Bureau of Labor 
Statistics from 2000 through 2010, the average annual unemployment rate 
was 8.6% in Central Appalachian counties where more than 75% of coal 
production was by mountaintop removal, compared to 6.7% in counties 
where mountaintop removal accounted for less than 25% of production\2\.
    See: http://www.flickr.com/photos/appvoices/5938215752/
    Fact 3: Historically, the total number of mining jobs has fallen in 
places where the proportion of coal mined by mountaintop removal has 
increased. According to the West Virginia Geologic and Economic Survey, 
the proportion of coal production in West Virginia that came from 
mountaintop removal mines increased from 19% to 42% of production 
between 1982 and 2006\3\. Even though overall production increased, the 
number of mining jobs was cut in half over the same period\4\.
    See: http://www.flickr.com/photos/appvoices/6167625000/
    Fallacy: More stringent enforcement of the Clean Water Act by the 
EPA and other federal agencies is creating an economic crisis in 
Central Appalachia.
    Fact: The number of mining jobs in Appalachia has increased since 
the start of the recession, since the EPA began enhanced review of 
mountaintop removal permits, and since the EPA released its interim 
guidance in April, 2010. Since 2007, as production in Central 
Appalachia has shifted away from mountaintop removal in favor of 
underground mining techniques, the increase in employment at 
underground mines has more than offset declines at other types of 
mines. Employment is up 11.5% since the start of the recession 
(December, 2007), up 2.5% since Enhanced Coordination Procedures on 
mountaintop removal permitting were announced among three federal 
agencies (June, 2009), and up almost 6% since the EPA announced a new 
guidance on Appalachian mine permitting (April, 2010).
    See: http://www.flickr.com/photos/appvoices/6130794844/
    Fallacy: Ending mountaintop removal would put US energy supply at 
risk.
    Fact: U.S. coal production is limited by demand for coal, not by 
the ability of companies to obtain permits for mountaintop removal 
mines. According to energy analysts\8\ as well as executives from Arch 
Coal\9\, Peabody Energy\10\ and Southern Company\11\, declining Central 
Appalachian coal production is the result of competition from lower 
cost natural gas. Mines across the country are producing at just 75% of 
their capacity\12\--down from 85% in 2008--and the Energy Information 
Administration projects that coal demand won't recover to 2008 levels 
for another 15 years\13\. Coal from mountaintop removal mines could 
easily be replaced if other US mines were operating at just 81% of 
their capacity.
    See: http://www.flickr.com/photos/appvoices/5937661551/
    Fact: Coal from mountaintop removal mines accounts for less than 5% 
of US electricity generation. While coal accounts for nearly 45% of US 
electricity generation\14\, only 15% of that is mined in Central 
Appalachia\15\. Coal from all of Appalachia accounts for less than 9% 
of US electricity generation, and coal from mountaintop removal less 
than 5%.
    See: http://www.flickr.com/photos/appvoices/5818441741/
    Fallacy: Prohibiting valley fills would prevent all forms of coal 
mining in Appalachia.
    Fact: The majority of recently approved permits for new mines in 
Central Appalachia do not use valley fills. A survey of all 
applications for new mine permits in Central Appalachia that were 
approved by state agencies in 2009 revealed that just 44% used valley 
fills to dispose of mine waste\16\.
    See: http://www.flickr.com/photos/appvoices/5938219772/
References and Notes
     1.  Calculated from MSHA Part 50 data files ; Mountaintop removal production and 
employment calculated from ``strip'' mines, as defined by MSHA for 
mines in Central Appalachian counties.
     2.  Ibid; Unemployment data from the Bureau of Labor Statistics 

     3.  Hendryx, 2008. ``Mortality Rates in Appalachian Coal Mining 
Counties: 24 Years Behind the Nation.'' Environmental Justice; Volume 
1, Number 1
     4.  MSHA op. cit. 2000-2010
     5.  MSHA op. cit. 2007-2010; Bureau of Labor Statistics op. cit.
     6.  EIA/DOE ``EIA-923'' Database 
     7.  DOE/EIA Cost and Quality of Fuels for Electric Plants, Table 
3.2 for 2007- 2009; Adjusted to 2009 $ based on Budget of the United 
States Government: Gross Domestic Product and Implicit Outlay 
Deflators;
     8.  Bernstein Commodities & Power Report, 2/18/2011: ``No Light 
for Dark Spreads: How the Ruinous Economics of Coal-Fired Power Plants 
Affect the Markets for Coal and Gas''
     9.  Steve Leer, Chairman and CEO, Arch Coal, Inc. presentation to 
Barclays 2010 CEO Energy-Power Conference on 9/15/2010;
    10.  Rick Navarre, President and Chief Commercial Officer, Peabody 
Energy, ``Expanding Markets and Peabody Growth Opportunities,'' a 
presentation to the 2010 Analyst and Investor Forum on 6/17/2010
    11.  Chad Hewitt, Southern Company, ``Utility Perspective on the 
Future of Coal'' presented at American Coal Council's Spring Forum on 
February 3, 2011;
    12.  DOE/EIA Annual Coal Report for 2009. Analysis by Appalachian 
Voices.
    13.  DOE/EIA Annual Energy Outlook, 2011 Early Release edition
    14.  EIA/DOE Electric Power Monthly with data for December 2010, 
Table 1.1: ``Net Generation by Energy Source: Total (All Sectors) ``; 

    15.  EIA/DOE ``EIA-923'' Database op. cit.
    16.  Applications for new mine permits approved in 2009 obtained 
from: Kentucky Department of Natural Resources; West Virginia 
Department of Environmental Protection; Virginia Department of Mines, 
Minerals and Energy; US Office of Surface Mining Reclamation and 
Enforcement, Knoxville Office
    I doubt very much if the coal industry has provided any factual 
evidence whatsoever of jobs loss risk if the SBZ rule is fixed. If so, 
please provide that evidence to The People.
    It would be shameful and woefully incompetent if a Unites States 
Congressional committee would take action based upon misleading and 
false coal industry information. A question of ethics and suspicion 
would be ever glaring with a hearing that in reality was nothing more 
than political grandstanding, organized as a ``stacked deck'' against 
those who are simply asking for our most basic human needs, clean water 
and a safe environment. This hearing should desire a just outcome for 
The People. The outcome of this hearing should not be one that supports 
those who are benefitting from an endeavor that is killing people in 
mountain communities. To do so will be a shameful affront to American 
Democracy. People, American citizens, are dying at the hands of an 
insatiable coal industry profit machine, and this committee has the 
nerve to label this hearing with a title that is clearly an attempt to 
mislead the American people.
Mountaintop Removal and Human Health
    Now, I will address the issue that we should be here for, and that 
is the human health crisis we are facing in mountaintop removal 
communities.
    To date there are 19 peer-reviewed science papers addressing human 
health in mountaintop removal communities. Just to name a few: 
Environmental Research Journal ``The association between mountaintop 
mining and birth defects among live births in central Appalachia''. The 
Journal of Rural Health, 2011 '' Chronic Cardiovascular Disease 
Mortality in Mountaintop Mining Areas of Central Appalachian States''. 
Community Health July 2011 ``Self Reported Cancer Rates in Two Rural 
Areas of West Virginia with and without Mountaintop Coal Mining''. And 
it goes on. To place the matter in a national perspective that members 
of Congress might appreciate, the three congressional districts with 
the most mountaintop removal consistently rank at or near the three 
with the worst well-being, according to the annual Gallup-Healthways 
survey. In 2009 and 2010, the states of West Virginia and Kentucky 
ranked as the states with the worst and next worst well-being in the 
country (http://www.gallup.com/poll/125066/State-
States.aspx?wbTabOnly=true). In 2010, the 3rd Congressional District of 
West Virginia, where I live, ranked 435th for both physical and 
emotional health (http://www.well-beingindex.com/files/2011WBIrankings/
LowRes/WV_StateReport.pdf). The 5th Congressional District of Kentucky 
ranks 435th overall in well-being, (http://www.well-beingindex.com/
files/2011WBIrankings/LowRes/KY_State
Report.pdf), and the 9th District of Virginia ranks 434th in both 
physical and emotional health (http://www.well-beingindex.com/files/
2011WBIrankings/LowRes/VA_
StateReport.pdf). Clearly, the prevalence of mountaintop removal has 
not brought about the happy, healthy, prosperous communities that the 
coal industry has promised. This committee should be alarmed, yet 
remains silent. The silence has become deafening.
    Science does not allow a choice or preference of what to believe 
and what not to believe. You either believe in science or choose to put 
your head in the sand and revert to the dark ages. With some of the 
rhetoric coming from the coal industry today, one must wonder about 
their acceptance of modern science and living in the 21st century. One 
of their more recent comments on the alarming birth defects research in 
mountaintop removal communities is that the research did not take into 
account that those of us living in mountaintop removal communities are 
a bunch of inbreds. And while the researchers consistently account for 
other factors that affect the health of an impoverished community, the 
coal industry and its political apologists consistently deny the 
conclusions without offering any credible science as refutation.
    Mountaintop removal is an unprecedented form of coal extraction. 
Nearly a million acres of forested mountains have been obliterated. 
2000 miles or more of headwater source streams have been buried or 
contaminated and countless water wells have been rendered unsafe for 
human consumption. Mountaintop removal has been in full stride now for 
only 15-20 years, and already we are witnessing the short term effects 
of human exposure to this mad method of mining. What are the long term 
effects? Statistical research on Appalachian birth defects found that a 
woman pregnant with child has a 42% greater chance of a baby born with 
birth defects than a pregnant woman living in a non-mountaintop removal 
community. Equate that to cigarette smoking: a baby born in a 
mountaintop removal community has a 181% greater chance of a 
circulatory or respiratory birth defect, while the risk related to 
mother's smoking was only 17% higher. That, committee members, is 
staggering. If that does not get your attention, then you simply don't 
care. Your pro-life claim is no longer credible; it's tossed out the 
window.
    For those of us living beneath mountaintop removal sites, the cold 
statistics do not compare to the real flesh-and-blood loved ones, the 
friends and family, that we see perishing from cancer all around us. 
The industry claims that we cannot prove that they are responsible, yet 
our common sense tells us that the clouds of silica dust, ammonium 
nitrate, fuel oil, and blasting residue that smother our communities 
are a likely culprit. When we raise the issue with the state Department 
of Environmental Protection, they take no action, either refusing to 
investigate, showing up after the dust has cleared, or offering a lame 
excuse. At best, after citizens doggedly pursue follow-up to the 
complaints, the agency may issue a fine so low that it serves as no 
deterrent whatsoever to continued bad behavior. When a federal agency 
takes even the smallest of baby steps to reign in the worst offenders 
and protect the citizens, Congress responds by shackling that agency. 
Our own representatives not only ignore our pleas, but lead the charge 
to enable further poisoning of our communities. We are consistently 
told that we must accept what the industry calls ``balance.'' What this 
really means is that we must sacrifice everything we have--our homes, 
our health, our lives, and the lives of our children--so that wealthy 
coal executives and their Wall Street funders can continue their 
unfettered extraction of wealth.
    While I offer these documents and my statements in the spirit of 
truth and justice, I have no illusions that they will be seriously 
considered by this Committee. After all, I have made no campaign 
contribution. I do not operate a company or media outlet that can 
deliver votes through an endorsement. The citizens of communities most 
directly impacted by mountaintop removal lack access to the wealth and 
power that may sway congressional opinion. Instead, our lives and 
health suffer from the actions of the companies that do hold that 
wealth and power.
    I ask each of you in the name of our great American democracy to 
protect our citizens and do not oppose any change to the Bush stream 
buffer zone rule that will help protect American lives. At the very 
least, support it being rolled back to the Reagan rule with real and 
total enforcement.
    Let us be reminded that regulatory agencies are created to protect 
The People from industries that may cause harm to The People. When 
these agencies, or legislators for that matter, become captured by 
those they oversee, or their power to regulate is circumvented by acts 
such as the Bush trashing of the SBZ rule, The People are not well 
served; America is not well served. Please remember this each and every 
waking moment of your service to our country. Our future, our 
children's future, and our lives depend on it.
Bo Webb
    Referenced peer reviewed science research publications associating 
mountain top removal with negative human health:
    American Journal of Public Health Mar. 2011 ``Health-Related 
Quality of Life Among Central Appalachian Residents in Mountaintop 
Mining Communities''
    Journal of Health Disparities Research and Practice Volume 4, 
number 3, Spring 2011 pp. 44-53 ``Poverty and Mortality Disparities in 
Central Appalachia: Mountaintop Mining and Environmental Justice''
    Environmental Research Journal ``The association between 
mountaintop mining and birth defects among live births in central 
Appalachia, 1996-2003''
    Community Health July 2011 ``Self Reported Cancer Rates in Two 
Rural Areas of West Virginia with and without Mountaintop Coal Mining''
    The Journal of Rural Health, 2011 '' Chronic Cardiovascular Disease 
Mortality in Mountaintop Mining Areas of Central Appalachian States''
    Science Mag. Jan. 8 2010 volume 327 ``Mountaintop Mining 
Consequences''
    Eco Health April 02, 2010: Ecological Integrity of Streams Related 
to Human Cancer Mortality Rates
    Geospatial Health 4 (2), 2010, pp 243-256 ``A geographical 
information system-based analysis of cancer mortality and population 
exposure to coal mining activities in West Virginia, United States of 
America''
    Matern Child Health Journal, Jan. 2010 ``Residence in Coal-Mining 
Areas Low-Birth- Weight Outcomes''
    Preventative Medicine 49 (2009) 355-359 ``Higher coronary heart 
disease and heart attack morbidity in Appalachian coal mining regions''
    Public Health Reports/July-August 2009 volume 124 ``Mortality in 
Appalachian Coal Mining Regions: The value of statistical life lost'' 
24 years behind the nation.''
    American Journal of Public Health Vol 98 No 4 '' Relations between 
health and residential proximity to coal mining in West Virginia''
    Journal of Toxicology and Environmental Health Part A, 70: 2064-
2070, 2007 ``Hospitalization patterns associated with Appalachian coal 
mining''
    Annals of the New York Academy of Sciences Issue: Ecological 
Economics Reviews ``Full cost accounting for the life cycle of coal''
    Public Health Reports/July-August 2010 volume 125 ``A comparative 
analysis of health-related quality of life for residents of U.S. 
counties with and without coal mining''
    Environmental Justice volume 3, number 2, 2010 ``Learning outcomes 
among students relation to West Virginia coal mining: an environmental 
riskscape approach''
                                 ______
                                 
    Mr. Lamborn. OK. Ms. Gunnoe?

         STATEMENT OF MARIA GUNNOE, COMMUNITY ORGANIZER

    Ms. Gunnoe. Hello. My name is Maria Gunnoe. I'm a native 
West Virginian and I and my family before me have lived the 
history that this coal industry has left in its path. We 
settled this area before coal was discovered. I am a Daughter 
of the American Revolutionary War.
    Throughout all the boom and bust, manmade catastrophes and 
massive death and sickness, some members of my family tell 
their generational part of coal's history in Southern 
Appalachia. All my life, every political move has always been 
directed at propping up the coal industry in West Virginia. 
This industry and our politicians have held jobs over our heads 
for 150 years. We know only too well what it's like to do 
without.
    The fear that we as Appalachians have experienced 
throughout time of being without jobs is nothing compared to 
the fear of living without healthy, clean water in our streams 
and homes and fresh mountain air to breathe.
    We, as a family, for many generations have survived some of 
the most historically horrible poverty in this country by 
sustaining our lives from these mountains and streams. Now 
rules changes such as the buffer zone rule threaten to 
permanently annihilate all that supports the real mountaineer's 
culture. Jobs in surface mining are dependent on blowing up the 
next mountain and burying the next stream. When will we say 
enough is enough?
    The buffer zone rule from the Reagan era was historically 
intended to be a good thing for the people who live in the 
valleys where these intermittent and perennial streams flow. 
Over the years, it's been crooked politics and coal money 
influence that has gutted the intent of this law. In my 
lifetime, I do not know of this law ever being fully enforced. 
The coal industry in West Virginia states politicians have 
manipulated and twisted this law in order to legally break this 
law. Surface mining has demolished our quality of life and life 
expectancy in our native homes. Our communities are now war 
zones with constant blasting, pollution and death. All area 
surface mining has stolen our ability to recreate our mountains 
and do what we culturally always have. We are being shut out of 
areas that we have always enjoyed. Even our historic cemeteries 
are left inaccessible to the public.
    We, like the Obama Administration, know what it's like to 
go up against impossible odds created by the coal and energy 
industries that have a stranglehold on our Congressional 
Members. We suffer these very real consequences daily and we, 
too, have drawn a line and dug our heels in. We refuse to 
tolerate inhumane treatment of our people and their homes, 
communities and jobs. We, too, have taken a stand and it's been 
one without the basic of protections. We refuse to tolerate 
this industry in our schools, attempting to brainwash our kids 
into being the next generation of slaves by influencing the 
curriculum with their big money.
    My children's history book says that surface mining, in 
some instances, leaves the land in better than before 
condition. This, alone, is outrageous. Our children are not 
subjects. Leave them alone in their schools. We will not 
tolerate violence because of our open opposition to our 
mountains blowing up over our homes and our streams, wells and 
air to be poisoned.
    This industry is pitting their workers against the 
community members in violent attacks because we won't die 
quietly. We refuse to continue to tolerate the terror of the 
flooding from these stream fill experiments and sludge dams. We 
have, throughout the years of manipulations of this law 
governing surface mining, been traumatized by what has happened 
in our communities. Studies have shown 40 to 200 percent 
increase in peak flow caused by surface mining runoff during 
rainfall periods. FEMA and we, as individuals, pick up this 
cost. The coal industry continues mining our mountains, 
destroying our very existence for these jobs.
    A majority of voters in West Virginia, Kentucky and 
Virginia and Tennessee reject mountaintop removal mining. The 
number of voters who oppose mountaintop removal dwarfs the 
number who supports it. Fifty-seven percent opposed mountaintop 
removal and with a noticeable intensity; 42 percent strongly 
opposed it, compared to 20 percent who support it. Voters who 
strongly support mountaintop removal in these states are a very 
small minority, only 10 percent.
    ``Jobs at Risk'' is also insulting as anything I have ever 
read. We have worked consistently in Washington, D.C., and 
southern Appalachia to get our political leaders to enact a 
moratorium on any further surface mining permits because 
studies have proved that this type of mining is killing the 
people who live in our communities. It's about our lives and 
our livelihoods. These jobs are for mostly outsiders from other 
states. Our people tend to not want to blow up their mountains 
and homes and communities.
    In Twilight, West Virginia there's imported workers coming 
in by the busloads. The driver of this--of the busload convoy, 
a non-English speaking gentleman, asked me for directions to 
Progress Coal, which is the Twilight surface mine now owned by 
Alpha and Massey. There was an incident where a drunk imported 
worker from A Elk Run mines in Sylvester killed a child while 
racing on our roads as school was being dismissed. This is what 
kind of jobs we're talking about, and this is what they're 
doing to our communities. This shows that this hearing is about 
the company's bottom line and not about jobs for poor people or 
at least not poor people from this country.
    The southern mountains people are fully expected to give up 
everything that sustains life, enforce the buffer zone rule and 
protect the water and very existence of the culture of people 
known as Appalachians. This history is unimaginable to most 
people in this country. Mountaineers will never be free until 
this madness ends.
    Reinstate the stream buffer zone rule to at least the 
Reagan era and for the first time in history enforce it, to 
protect American lives from this criminal industry. We will 
continue to demand better for our children. We will continue to 
demand better for our children's future and in all that we do. 
The impacts of coal are not acceptable losses for our 
children's future. It would benefit all of our children if we 
take this very seriously and fix this problem right away. We 
can no longer excuse the fact that coal is a finite resource 
and we are running out. Not to mention the fact that we are 
poisoning our water and our air for electricity.
    My seven year old nephew reminds me of what----
    Mr. Lamborn. Ms. Gunnoe, I'd ask that you----
    Ms. Gunnoe. I'm wrapping up. I'm wrapping up. Thank you. My 
seven-year-old nephew reminds me of what surface mining looks 
like from a child's eyes. As we were driving through our 
community, he looks up and says, ``Aunt Sissy, what's wrong 
with these people? Don't they know we're down here?'' I had to 
honestly look at him and say, ``Yes, they know, they just don't 
care.''
    [The prepared statement of Ms. Gunnoe follows:]

   Statement of Maria Gunnoe, Community Organizer, Van, West Virginia

    My name is Maria Gunnoe I am a native West Virginian. I and my 
family before me have lived the history that the coal industry has left 
in its path. We settled this area before coal was discovered. I am a 
Daughter of the American Revolution. Throughout all the ``boom and 
bust'', manmade catastrophes, and massive deaths and sicknesses some 
members of my family tell their generational part of coal's history in 
Southern Appalachia. This history is one of the many lessons of life we 
learned at a young age growing up in these communities. We learned from 
our hard schooled fathers and grandfathers that coal is mean and one 
thing you simply could not do was to trust this industry. No matter 
what the subject the conversation always come down to the coal 
company's bottom line. All my life every political move has always been 
directed at propping up the coal industry in WV. The fear that we as 
Appalachians have experienced throughout time of being without jobs is 
nothing compared to the fear of living without healthy, clean water in 
our streams and homes. We as families for many generations have 
survived some of the most historically horrible poverty in this country 
by sustaining our lives from these mountains and streams. The 
biodiversity in S WV is what created the culture of the real 
mountaineers that we grew up being. Now rule changes such as Stream 
Buffer Zone threaten to permanently annihilate all that supports the 
real mountaineer's culture. The coal industry obviously wants to bury 
and pollute all of our water and all of who we are for temporary jobs. 
Jobs in surface mining are dependent on blowing up the next mountain 
and burying the next stream. When are we going to say enough is enough?
    The Buffer Zone Rule from the Regan era was historically was 
intended as a good thing for people who lived in the valleys where 
these intermittent and perennial streams flow. Over the years it has 
been crooked politics and coal money influence that has gutted the 
intent of this law. In my lifetime I do not know of this law ever being 
fully enforced. The coal industry and the politicians have for most of 
my life manipulated and twisted the law in order to legally break this 
law by destroying our valuable headwater streams.. Surface mining has 
demolished our quality of life and life expectancy in our native homes. 
Our communities are now war zones with constant blasting, pollution and 
all area surface mining has stolen our ability to recreate in the 
mountains and do what we culturally always have. We are being shut out 
of areas that we have always enjoyed. Even our historic cemeteries are 
left in accessible to the public.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    This photo shows Jarrell Cemetery and the town of Lindytown in 
Boone County WV. This is one of my many family mountain cemeteries. We 
as family members must go through training and guards to visit our 
loved ones in these now active destruction sites.
    The town in this photo is nearly gone. One family is all that 
remains in this town. The homes that you see are now gone now. The 
people that were bought out signed contracts that clearly violated 
their rights to contact state or federal regulatory agencies to 
complain about blasting dust, water pollution, or health and safety 
concerns.
    Here is a link to those contracts.
    Our regulatory agencies are allowing this to happen. I have been 
told that the WV state DEP is a PERMITTING AGENCY by one of their 
agents. The DEP is allowing these companies to destroy our mountains 
and our waters and in turn this destroys our towns and runs away all 
the people. The WVDEP treats us less than human. The WV DEP is 
permitting the destruction of our homes and we are not even supposed to 
get upset. See this and this.
    Below is a text copy of the NY Times article that Dan Barry wrote 
about Lindytown. In reading this article please recognize that 
Lindytown is only one of the recent towns that this has disappeared. 
There are many of our rural communities depopulated to expand surface 
mining and stream fills. How could anyone say that these temporary jobs 
is worth the permanent displacement of our people and the destruction 
of their waters, mountains and culture.
The New York Times
April 12, 2011
As the Mountaintops Fall, a Coal Town Vanishes
http://www.nytimes.com/2011/04/13/us/13lindytown.html?_r=2
By DAN BARRY
LINDYTOWN, W.Va.
    To reach a lost American place, here just a moment ago, follow a 
thin country road as it unspools across an Appalachian valley's grimy 
floor, past a coal operation or two, a church or two, a village called 
Twilight. Beware of the truck traffic. Watch out for that car-chasing 
dog.
    After passing an abandoned union hall with its front door agape, 
look to the right for a solitary house, tidy, yellow and tucked into 
the stillness. This is nearly all that remains of a West Virginia 
community called Lindytown.
    In the small living room, five generations of family portraits gaze 
upon Quinnie Richmond, 85, who has trouble summoning the memories, and 
her son, Roger, 62, who cannot forget them: the many children all 
about, enough to fill Mr. Cook's school bus every morning; the Sunday 
services at the simple church; the white laundry strung on 
clotheslines; the echoing clatter of evening horseshoes; the sense of 
home.
    But the coal that helped to create Lindytown also destroyed it. 
Here was the church; here was its steeple; now it's all gone, along 
with its people. Gone, too, are the surrounding mountaintops. To mine 
the soft rock that we burn to help power our light bulbs, our laptops, 
our way of life, heavy equipment has stripped away the trees, the soil, 
the rock--what coal companies call the ``overburden.''
    Now, the faint, mechanical beeps and grinds from above are all that 
disturb the Lindytown quiet, save for the occasional, seam-splintering 
blast.
    A couple of years ago, a subsidiary of Massey Energy, which owns a 
sprawling mine operation behind and above the Richmond home, bought up 
Lindytown. Many of its residents signed Massey-proffered documents in 
which they also agreed not to sue, testify against, seek inspection of 
or ``make adverse comment'' about coal-mining operations in the 
vicinity.
    You might say that both parties were motivated. Massey preferred 
not to have people living so close to its mountaintop mining 
operations. And the residents, some with area roots deep into the 19th 
century, preferred not to live amid a dusty industrial operation that 
was altering the natural world about them. So the Greens sold, as did 
the Cooks, and the Workmans, and the Webbs ...
    But Quinnie Richmond's husband, Lawrence--who died a few months 
ago, at 85--feared that leaving the home they built in 1947 might upset 
his wife, who has Alzheimer's. He and his son Roger, a retired coal 
miner who lives next door, chose instead to sign easements granting the 
coal company certain rights over their properties. In exchange for also 
agreeing not to make adverse comment, the two Richmond households 
received $25,000 each, Roger Richmond recalls.
    ``Hush money,'' he says, half-smiling.
    As Mr. Richmond speaks, the mining on the mountain behind him 
continues to transform, if not erase, the woodsy stretches he explored 
in boyhood. It has also exposed a massive rock that almost seems to be 
teetering above the Richmond home. Some days, an anxious Mrs. Richmond 
will check on the rock from her small kitchen window, step away, then 
come back to check again.
    And again.
A Dictator of Destiny
    Here in Boone County, coal rules. The rich seams of bituminous 
black have dictated the region's destiny for many generations: through 
the advent of railroads; the company-controlled coal camps; the bloody 
mine wars; the increased use of mechanization and surface mining, 
including mountaintop removal; the related decrease in jobs.
    The county has the largest surface-mining project (the Massey 
operation) in the state and the largest number of coal-company 
employees (more than 3,600). Every year it receives several million 
dollars in tax severance payments from the coal industry, and every 
June it plays host to the West Virginia Coal Festival, with fireworks, 
a beauty pageant, a memorial service for dead miners, and displays of 
the latest mining equipment. Without coal, says Larry V. Lodato, the 
director of the county's Community and Economic Development 
Corporation, ``You might as well turn out the lights and leave.''
    In recent years, surface mining has eclipsed underground mining as 
the county's most productive method. This includes mountaintop 
removal--or, as the industry prefers to call it, mountaintop mining--a 
now-commonplace technique that remains startling in its capacity to 
change things.
    Various government regulations require that coal companies return 
the stripped area to its ``approximate original contour,'' or 
``reclaim'' the land for development in a state whose undulating 
topography can thwart plans for even a simple parking lot. As a result, 
the companies often dump the removed earth into a nearby valley to 
create a plateau, and then spray this topsy-turvy land with seed, 
fertilizer and mulch.
    The coal industry maintains that by removing some mountaintops from 
the ``Mountain State,'' it is creating developable land that makes the 
state more economically viable. State and coal officials point to 
successful developments on land reclaimed by surface mining, 
developments that they say have led to the creation of some 13,000 
jobs.
    But Ken Ward Jr., a reporter for The Charleston Gazette, has 
pointed out that two-fifths of these jobs are seasonal or temporary; a 
third of the full-time jobs are at one project, in the northern part of 
the state; and the majority of the jobs are far from southern West 
Virginia, where most of the mountaintop removal is occurring, and where 
unemployment is most dire. In Boone County, development on reclaimed 
land has basically meant the building of the regional headquarters for 
the county's dominant employer--Massey Energy.
    And with reclamation, there is also loss.
    ``I'm not familiar at all with Lindytown,'' says Mr. Lodato, the 
county's economic development director. ``I know it used to be a 
community, and it's close to Twilight.''
A Fighter
    About 10 miles from Lindytown, outside a drab convenience store in 
the unincorporated town of Van, a rake-thin woman named Maria Gunnoe 
climbs into a maroon Ford pickup that is adorned with a bumper sticker 
reading: ``Mountains Matter--Organize.'' The daughter, granddaughter 
and sister of union coal miners, Ms. Gunnoe is 42, with sorrowful dark 
eyes, long black hair and a desire to be on the road only between shift 
changes at the local mining operations--and only with her German 
shepherd and her gun.
    Less than a decade ago, Ms. Gunnoe was working as a waitress, just 
trying to get along, when a mountaintop removal operation in the small 
map dot of Bob White disrupted her ``home place.'' It filled the valley 
behind her house, flooded her property, contaminated her well and 
transformed her into a fierce opponent of mountaintop removal. Through 
her work with the Ohio Valley Environmental Coalition, she has become 
such an effective environmental advocate that in 2009 she received the 
prestigious Goldman Environmental Prize. But no one threw a parade for 
her in Boone County, where some deride her as anti-coal; that is, anti-
job.
    Ms. Gunnoe turns onto the two-lane road, Route 26, and heads toward 
the remains of Lindytown. On her right stands Van High School, her alma 
mater, where D. Ray White, the gifted and doomed Appalachian dancer, 
used to kick up his heels at homecomings. On her left, the community 
center where dozens of coal-company workers disrupted a meeting of 
environmentalists back in 2007.
    ``There was a gentleman who pushed me backward, over my daughter, 
who was about 12 or 13, and crying,'' Ms. Gunnoe later recalls. ``I 
pushed him back, and he filed charges against me for battery. He was 
250 pounds, and I had a broken arm.''
    A jury acquitted her within minutes.
    Ms. Gunnoe drives on. Past the long-closed Grill bar, its facade 
marred by graffiti. Past an out-of-context clot of land that rises 
hundreds of feet in the air--``a valley fill,'' she says, that has been 
``hydroseeded'' with fast-growing, non-native plants to replace the 
area's lost natural growth: its ginseng root, its goldenseal, it 
hickory and oak, maple and poplar, black cherry and sassafras.
    ``And it will never be back,'' she says.
    Ms. Gunnoe has a point. James Burger, a professor emeritus of 
forestry and soil science at Virginia Tech University, said the valley 
fill process often sends the original topsoil to the bottom and crushed 
rock from deeper in the ground to the top. With the topography and soil 
properties altered, Dr. Burger says, native plants and trees do not 
grow as well.
    ``You have hundreds of species of flora and fauna that have 
acclimated to the native, undisturbed conditions over the millennia,'' 
he says. ``And now you're inverting the geologic profile.''
    Dr. Burger says that he and other scientists have developed a 
reclamation approach that uses native seeds, trees, topsoil and 
selected rock material to help restore an area's natural diversity, at 
no additional expense. Unfortunately, he says, these methods have not 
been adopted in most Appalachian states, including West Virginia.
    Past a coal operation called a loadout, an oversized Tinker Toy 
structure where coal is crushed and loaded on trucks and rail cars. 
Past the house cluster called Bandytown, home of Leo Cook, 75, the 
former school bus driver who once collected Roger Richmond and the 
other kids from Lindytown, where he often spent evenings at a horseshoe 
pit, now overgrown.
    ``We got to have coal,'' says Mr. Cook, a retired miner. ``What's 
going to keep the power on? But I believe with all my heart that 
there's a better way to get that coal.''
    Ms. Gunnoe continues deeper into the mud-brown landscape, where the 
fleeting appearance of trucks animates the flattened mountaintops. On 
her right, a dark, winding stream damaged by mining; on her left, 
several sediment-control ponds that filter out pollutants from the 
runoff of mining operations. Past the place called Twilight, a jumble 
of homes and trailers, where the faded sign of the old Twilight Super 
Market still promises Royal Crown Cola for sale.
    Soon she passes the abandoned hall for Local 8377 of the United 
Mine Workers of America, empty since some underground mining operations 
shut down a couple of decades ago. Its open door beckons you to examine 
the papers piled on the floor: a Wages, Lost Time, and Expense Voucher 
booklet from 1987; the burial fund's bylaws; canceled checks bearing 
familiar surnames.
    On, finally, to Lindytown.
The Company Line
    According to a statement from Shane Harvey, the general counsel for 
Massey, this is what happened: Many of Lindytown's residents were 
either retired miners or their widows and descendants who welcomed the 
opportunity to move to places more metropolitan or with easier access 
to medical facilities. Interested in selling their properties, they 
contacted Massey, which began making offers in December 2008--offers 
that for the most part were accepted.
    ``It is important to note that none of these properties had to be 
bought,'' Mr. Harvey said. ``The entire mine plan could have been 
legally mined without the purchase of these homes. We agreed to 
purchase the properties as an additional precaution.''
    When asked to elaborate, Mr. Harvey responded, in writing, that 
Massey voluntarily bought the properties ``as an additional backup to 
the state and federal regulations'' that protect people who live near 
mining operations.
    James Smith, 68, a retired coal miner from Lindytown, says the 
company's statement is true, as far as it goes. Yes, Lindytown had 
become home mostly to retired union miners and their families; when the 
Robin Hood No. 8 mine shut down, for example, his three sons had to 
leave the state to work. And yes, some people approached Massey about 
selling their homes.
    But, Mr. Smith says, many residents wanted to leave Lindytown only 
because the mountaintop operations above had ruined the quality of life 
below.
    His family went back generations here. He married a local woman, 
raised kids, became widowed and married again. A brother lived in one 
house, a sister lived in another, and nieces, nephews and cousins were 
all around. And there was this God-given setting, where he could wander 
for days, hunting raccoon or searching for ginseng.
    But when the explosions began, dust filled the air. ``You could 
wash your car today, and tomorrow you could write your name on it in 
the dust,'' he says. ``It was just unpleasant to live in that town. 
Period.''
    Massey was a motivated buyer, he argues, given that it was probably 
cheaper to buy out a small community than to deal with all the 
complaint-generated inspections, or the possible lawsuits over silica 
dust and ``fly rock.''
    ``Hell, what they paid for that wasn't a drop in the bucket,'' he 
says.
    Massey did not elaborate on why it bought out Lindytown, though 
general concerns about public health have been mounting. In blocking 
another West Virginia mountaintop-removal project earlier this year, 
the Environmental Protection Agency cited research suggesting that 
health disparities in the Appalachian region are ``concentrated where 
surface coal mining activity takes place.''
    In the end, Mr. Smith says, he would not be living 150 miles away, 
far from relations and old neighbors, if mountaintop removal hadn't 
ruined Lindytown. ``You might as well take the money and get rid of 
your torment,'' he says, adding that he received more than $300,000 for 
his property. ``After they destroyed our place, they done us a favor 
and bought it.''
Memories, What's Left
    Ms. Gunnoe pulls up to one of the last houses in Lindytown, the 
tidy yellow one, and visits with Quinnie and Roger Richmond. He uses 
his words to re-animate the community he knew.
    For many years, his grandfather was the preacher at the small 
church down the road, where the ringing of a bell gave fair warning 
that Sunday service was about to begin. And his grandmother lived in 
the house still standing next door; she toiled in her garden well past 
100, growing the kale, spinach and mustard greens that she loved so 
much.
    His father, Lawrence, joined the military in World War II after his 
older brother, Carson, was killed in Sicily. He returned, married 
Quinnie, and built this house. Before long, he became a section foreman 
in the mines, beloved by his men in part because of Quinnie's fried-
apple pies.
    After graduating from Van High School--that's his senior 
photograph, there on the wall--Roger Richmond followed his father into 
the mines. He married, had children, divorced, made do when the local 
mine shut down, eventually retired and, in 2001, set up his mobile home 
beside his parents' house.
    By now, things had changed. With the local underground mine shut 
down, there were nowhere near as many jobs, or kids. And this powder 
from the mountaintops was settling on everything, turning to brown 
paste in the rain. People no long hung their whites on the 
clotheslines.
    Soon, rumors of buyouts from Massey became fact, as neighbors began 
selling and moving away. ``Some of them were tired of fighting it,'' 
Mr. Richmond says. ``Of having to put up with all the dust. Plus, you 
couldn't get out into the hills the way you used to.''
    One example. Mr. Richmond's Uncle Carson, killed in World War II, 
is buried in one of the small cemeteries scattered about the mountains. 
If he wanted to pay his respects, in accordance with government 
regulations for active surface-mining areas, he would have to make an 
appointment with a coal company, be certified in work site safety, don 
a construction helmet and be escorted by a coal-company representative.
    In the end, the Richmonds decided to sell various land rights to 
Massey, but remain in Lindytown, as the homes of longtime neighbors 
were boarded up and knocked down late last year, and as looters arrived 
at all hours of the day to steal the windows, the wiring, the pillars 
from Elmer Smith's front porch--even the peaches, every one of them, 
growing from trees on the Richmond property.
    ``They was good peaches, too,'' says Mr. Richmond.
    ``I like peaches,'' says his mother.
    Would Lindytown have died anyway? Would it have died even without 
the removal of its surrounding mountaintops? These are the questions 
that Bill Raney, the president of the West Virginia Coal Association, 
raises. Sometimes, he says, depopulation is part of the natural order 
of things. People move to be closer to hospitals, or restaurants, or 
the Wal-Mart. There is also that West Virginia truism, he adds:
    ``When the coal's gone, you go to where the next coal seam is.''
    Of course, in the case of Lindytown, the coal is still here; it's 
the people who are mostly gone. Now, when darkness comes to this 
particular hollow, you can see a small light shining from the kitchen 
window of a solitary, yellow house--and, sometimes, a face, peering 
out.
                                 ______
                                 
    We as community members have been forced to reach out to the state 
and national environmental and social justice organization and 
foundations across the country to help us end the Appalachian 
Apocalypse that this committee dismisses as being benign simply by 
changing words of laws and buying time before they are reviewed again. 
The people who have lived and died with these impacts are the people 
who have helped to form a national movement to end all surface mining 
in Appalachia. http://appalachiarising.org/We have had no choice but to 
take these measures to protect our own lives and the future existence 
of who we are from this out of control industry and their big money 
backing in DC. We like the Obama Administration know what it is like to 
go up against impossible odds created by the coal and energy industries 
that have control of our Congress.
    We suffer these very real consequences daily and we to have drawn a 
line and dug in our heels. We refuse to tolerate inhumane treatment of 
our people in their homes, communities and jobs. We too have taken a 
stand and it has been a tough one with basically no protection and 
still we refuse to back down.
The New York Times
July 14, 2010
http://www.nytimes.com/2010/07/15/us/
15mining.html?scp=1&sq=Jimmy+Weekley&st=nyt
Project's Fate May Predict the Future of Mining
By ERIK ECKHOLM
    BLAIR, W.Va.--Federal officials are considering whether to veto 
mountaintop mining above a little Appalachian valley called Pigeonroost 
Hollow, a step that could be a turning point for one of the country's 
most contentious environmental disputes.
    The Army Corps of Engineers approved a permit in 2007 to blast 400 
feet off the hilltops here to expose the rich coal seams, disposing of 
the debris in the upper reaches of six valleys, including Pigeonroost 
Hollow.
    But the Environmental Protection Agency under the Obama 
administration, in a break with President George W. Bush's more coal-
friendly approach, has threatened to halt or sharply scale back the 
project known as Spruce 1. The agency asserts that the project would 
irrevocably damage streams and wildlife and violate the Clean Water 
Act.
    Because it is one of the largest mountaintop mining projects ever 
and because it has been hotly disputed for a dozen years, Spruce 1 is 
seen as a bellwether by conservation groups and the coal industry.
    The fate of the project could also have national reverberations, 
affecting Democratic Party prospects in coal states. While extensive 
research and public hearings on the plan have been completed, federal 
officials said that their final decision would not be announced until 
late this year--perhaps, conveniently, after the midterm elections.
    Environmental groups say that approval of the project in anything 
like its current form would be a betrayal.
    ``Spruce 1 is a test of whether the E.P.A. is going to follow 
through with its promises,'' said Bill Price, director of environmental 
justice with the Sierra Club in West Virginia.
    ``If the administration sticks to its guns,'' Mr. Price predicted, 
``mountaintop removal is going to be severely curtailed.''
    Coal companies say politics, not science, is threatening a practice 
vital to local economies and energy independence. ``After years of 
study, with the company doing everything any agency asked, and three 
years after a permit was issued, the E.P.A. now wants to stop Spruce 
1,'' said Bill Raney, president of the West Virginia Coal Association. 
``It's political; the only thing that has changed is the 
administration.''
    While the government does not collect statistics on mountaintop 
mining, data suggest that it may account for about 10 percent of 
American coal output, yielding 5 percent of the nation's electricity. 
The method plays a bigger economic role in the two states where it is 
concentrated, Kentucky and West Virginia.
    The proposal to strip a large area above the home of 70-year-old 
Jimmy Weekley, Pigeonroost Hollow's last remaining inhabitant, was 
first made in 1997 by Arch Coal, Inc., of St. Louis. The legal ups and 
downs of Spruce 1 have come to symbolize the broader battle over a 
method that produces inexpensive coal while drastically altering the 
landscape.
    Spruce 1 started as the largest single proposal ever for hilltop 
mining, in which mountains are carved off to expose coal seams and much 
of the debris, often leaking toxic substances, is placed in adjacent 
valleys.
    After years of negotiations and a scaling back of the mining area 
to 2,278 acres, from its original 3,113 acres, the Spruce 1 permit was 
approved by the Army Corps of Engineers in 2007 and limited 
construction began. But this spring, the E.P.A. proposed halting the 
project.
    The announcement caused an uproar in West Virginia. The E.P.A. held 
an emotional public hearing in May and stopped accepting written 
comments in June. Arch Coal has objected publicly, but did not respond 
to requests to comment for this article.
    The Obama administration's E.P.A. has already riled the coal 
companies by tightening procedures for issuing new mining permits and 
imposing stronger stream protections. But environmental groups were 
worried in June, when the agency approved a curtailed mountaintop plan 
in another site in Logan County, W.Va. Now, as negotiations between the 
E.P.A. and Arch Coal continue, the Spruce 1 battle is being closely 
watched as a sign of mountaintop mining's future.
    Feelings run high in the counties right around the project area.
    ``Spruce 1 is extremely important to all of southern West Virginia 
because if this permit is pulled back, every mine site is going to be 
vulnerable to having its permits pulled,'' said James Milan, manager of 
Walker Machinery in Logan, which sells gargantuan Caterpillar 
equipment.
    The loss of jobs, Mr. Milan said, would have devastating effects on 
struggling communities.
    Maria Gunnoe, an organizer for the Ohio Valley Environmental 
Coalition and a director of SouthWings, which organizes flights to 
document environmental damages, said that if Spruce 1 went forward, 
``it's going to mean the permanent erasure of part of our land and our 
legacy.''
    ``We can't keep blowing up mountains to keep the lights on,'' said 
Ms. Gunnoe, a resident of nearby Boone County who has received death 
threats and travels with a 9 millimeter pistol.
    Mr. Weekley, whose house is in sight of the project boundary, 
remembers the day in 1997 when he decided to fight it. Nearby mining 
under previous permits had filled his wooded valley with dust and 
noise.
    ``You couldn't see out of this hollow,'' he recalled. ``I said, 
Something's got to be done or we're not going to have a community 
left.''
    He and his late wife became plaintiffs in a 1998 suit claiming that 
the project violated environmental laws. A ruling in their favor was 
overturned, setting off litigation that continues.
    Mr. Weekley said that he had rejected offers of close to $2 million 
for his eight acres and that he had seen the population of the nearby 
town of Blair dwindle to 60 from 600, with most residents bought out by 
Arch Coal.
    A rail-thin man who enjoys sitting on his porch with a dog on his 
lap, Mr. Weekley uttered an expletive when told that coal industry 
representatives, including Mr. Raney in an interview, referred to the 
upper tributaries filled in by mining as ``ditches'' that can be 
rebuilt. In fact, some of the streams to be filled by Spruce 1 are 
intermittent, while others, including Pigeonroost Creek, flow year-
round.
    ``I caught fish in that stream as a child, using a safety pin for a 
hook,'' Mr. Weekley said. ``If they get that permit, there won't be a 
stream here.''
    In documents issued in March, the E.P.A. said the project as 
approved would still smother seven miles of streambed.
    Filling in headwaters damages the web of life downstream, from 
aquatic insects to salamanders to fish, and temporary channels and 
rebuilt streams are no substitute, the agency said. The pulverized rock 
can release toxic levels of selenium and other pollutants, it noted.
    The effects of Spruce 1 would be added to those of 34 other past 
and present projects that together account for more than one-third of 
the area of the Spruce Fork watershed, the agency said.
    The debate over Spruce 1 and other mountaintop mine permits has 
been a source of division and anguish among local residents.
    Michael Fox, 39, of Gilbert, is a mine worker who like many other 
miners here thinks the objections are overblown. ``I have three kids I 
want to send to college,'' Mr. Fox said.
    One former mountaintop miner who says he now regrets his 
involvement is Charles Bella, 60. He is one of the remaining residents 
on Blair's main street, along the Spruce Fork, which is fed in turn by 
Pigeonroost Creek.
    ``I know it put bread on my table, but I hate destroying the 
mountains like that,'' Mr. Bella said.
                                 ______
                                 
    We refuse to tolerate this industry in our schools attempting to 
brain wash our kids into being their next generation of slaves by 
influencing the curriculum with big money. Below is a scanned copy of 
my children's history book. Notice it says that ``surface mining in 
some instances leaves the land in better than before condition''. In 
reality no one is stupid enough to believe this, not even 
impressionable kids. We all know that no one can improve on God's work. 
This alone is outrageous behavior.
    More links to what is going on in schools. ``It's predatory 
marketing. By selling its privileged access to children to the coal 
industry, Scholastic is commercializing classrooms and undermining 
education.''
    http://www.cedarinc.org/
    http://www.nytimes.com/2011/05/12/education/12coal.html?_r=1
The New York Times
May 11, 2011
Coal Curriculum Called Unfit for 4th Graders
By TAMAR LEWIN
    Three advocacy groups have started a letter-writing campaign asking 
Scholastic Inc. to stop distributing the fourth-grade curriculum 
materials that the American Coal Foundation paid the company to 
develop.
    The three groups--Rethinking Schools, the Campaign for a 
Commercial-Free Childhood and Friends of the Earth--say that 
Scholastic's ``United States of Energy'' package gives children a one-
sided view of coal, failing to mention its negative effects on the 
environment and human health.
    Kyle Good, Scholastic's vice president for corporate 
communications, was traveling for much of Wednesday and said she could 
not comment until she had all the ``United States of Energy'' materials 
in hand.
    Others at the company said Ms. Good was the only one who could 
discuss the matter. The company would not comment on how much it was 
paid for its partnership with the coal foundation.
    Scholastic's InSchool Marketing division, which produced the coal 
curriculum in partnership with the coal foundation, often works with 
groups like the American Society of Hematology, the Federal Trade 
Commission and the Census Bureau to create curriculum materials.
    The division's programs are ``designed to promote client objectives 
and meet the needs of target teachers, students, and parents'' and 
``make a difference by influencing attitudes and behaviors,'' according 
to the company Web site.
    ``Promoting `client objectives' to a captive student audience isn't 
education,'' Susan Linn, director of the Campaign for a Commercial-Free 
Childhood, said in a statement. ``It's predatory marketing. By selling 
its privileged access to children to the coal industry, Scholastic is 
commercializing classrooms and undermining education.''
    The Campaign for Commercial-Free Childhood, a tiny group in Boston, 
has often been at odds with Scholastic, a $2 billion company whose 
books and other educational materials are in 9 of 10 American 
classrooms. Last year, the group criticized the company for its 
``SunnyD Book Spree,'' featured in Scholastic's Parent and Child 
magazine, in which teachers were encouraged to have classroom parties 
with, and collect labels from, Sunny Delight, a sugary juice beverage, 
to win free books. The campaign has also objected to Scholastic's 
promotion of Children's Claritin in materials it distributed on spring 
allergies.
    And in 2005, the campaign tangled with the company over its 
``Tickle U'' curriculum for the Cartoon Network, in which posters of 
cartoon characters were sent to preschools and promoted as helping 
young children develop a sense of humor.
    None of the previous episodes led to any specific action.
    The coal controversy seems to be the first time the campaign and 
its allies have challenged Scholastic lesson plans.
    11The United States of Energy'' is designed to paste a smiley face 
on the dirtiest form of energy in the world,'' said Bill Bigelow, an 
editor of Rethinking Schools magazine. ``These materials teach children 
only the story the coal industry has paid Scholastic to tell.''
    The Scholastic materials say that coal is produced in half of the 
50 states, that America has 27 percent of the world's coal resources, 
and that it is the source of half the electricity produced in the 
nation, with about 600 coal-powered plants operating around the clock 
to provide electricity.
    What they do not mention are the negative effects of mining and 
burning coal: the removal of Appalachian mountaintops; the release of 
sulfur dioxide, mercury and arsenic; the toxic wastes; the mining 
accidents; the lung disease.
    ``The curriculum pretends that it's going to talk about the 
advantages and disadvantages of different energy choices, to align with 
national learning standards, but it doesn't,'' Mr. Bigelow said.
    ``The fact that coal is the major source of greenhouse gases in the 
United States is entirely left out,'' he said. ``There's no hint that 
coal has any disadvantages.''
    In a statement, Ben Schreiber, a climate and energy tax analyst at 
Friends of the Earth, called the curriculum ``the worst kind of 
corporate brainwashing.''
    According to an article by Alma Hale Paty, the executive director 
of the American Coal Foundation, and posted on Coalblog, ``The United 
States of Energy'' went to 66,000 fourth-grade teachers in 2009.
    There was no answer at the foundation Wednesday, and Ms. Paty did 
not return calls.
                                 ______
                                 
    We refuse to tolerate violent attacks on ourselves and our family 
members because of our open opposition to our mountains blowing up over 
our homes and our streams, wells, and air being poisoned.
    This link is where we were attacked by men on Larry Gibson's 
property on Kayford Mountain. These men were out to defend their jobs 
at all cost. One went as far as to threaten to cut a child's throat. 
This is what is happening to us as our politicians turn a blind eye and 
pretends as if it didn't happen. There is no ``balance'' when people 
are dying. This industry is pitting their workers against the community 
members in violent attacks.
    http://www.youtube.com/watch?v=Gjc7Jg_gMy0&feature=related
    http://www.youtube.com/watch?v=7XSTrXX7hbo
    Judy Bonds being smacked at a peaceful protest.
    http://www.youtube.com/watch?v=8dP27PKnCG0&feature=related
    We have even been brutalized by our local law enforcement while 
attempting to protect a school full of children from a leaking sludge 
dam and coal load out facility. The officers actually carried one 
protestor out by the cuffs. http://www.youtube.com/watch?v=3jqENyow0cQ
    Even our elders have been attacked at federal hearing while the 
officials pretended as if they had no control. http://www.youtube.com/
watch?v=EtwceseZz4w
    I too have been personally attacked while attempting to speak at a 
permit hearing in Charleston WV. I was nearly assaulted as I left this 
federal hearing. The officers told us that ``we got what we deserved''. 
No one should have to be subjected to this treatment to defend their 
home. http://www.youtube.com/watch?v=5WeJgX7vmgE Because of my out 
spoken opposition I currently live on high alert 24/7.
    In 2007 there was an occasion where myself and other participants 
was attacked during a media training at the local community building by 
60 men that were told that we were going to shut down their operation. 
When in reality we were organizing to stop an ILLEGAL permit.
    http://noacentral.org/page.php?id=191
    I was charged with battery because I defended myself from a 250 
pound man who was pushing me over my daughter to defend his job. This 
individual filed battery charges against me. ME an individual that had 
already been put through everything imaginable by this coal company was 
being arrested for battery. I was found not guilty of these charges. 
After nearly 2 years of litigation the jury vote was unanimously not 
guilty.
    Our industry controlled Government continued their violent rhetoric 
even today as they up hold the practice of blowing up mountain over our 
homes and filling our streams for jobs. After meetings with Joe Manchin 
and all our state leaders we still face these attacks in our 
communities and homes. Only because we don't agree that blowing up our 
mountains and putting them into our valleys and calling it jobs is a 
good thing. Here is one article about this meeting. After all the 
discussion about death and sickness caused by surface mining and water 
pollution Then Governor now Senator Manchin words were ``every job in 
the state of WV is a precious one''. Shame on all of our state and 
federal politicians! Not one will stand up to the industry that is 
responsible for demise of southern Appalachia. They are all responsible 
putting temporary jobs above the importance of human health, lives, 
communities and long term livelihoods.
    Here a good insight. . .http://www.youtube.com/watch?v=g24tpXtJ540 
They try to make us lo0k like extremist by saying we only care about 
mayflies..
Manchin calls for calm in the coalfields
http://blogs.wvgazette.com/coaltattoo/2010/01/25/manchin-calls-for-
calm-in-the-coalfields/
Ken Ward, January 25, 2010
    Well, here's the answer to the question posed on my previous post, 
``What's Gov. Manchin going to say?'' For starters, Manchin emerged 
from a long meeting with coalfield citizens and issued a call for an 
end to threats and intimidation against West Virginians who are 
fighting to stop mountaintop removal:
    We will not in any way, shape or form in this state of West 
Virginia tolerate any violence against anyone on any side. If you're 
going to have the dialogue, have respect for each other.
    Manchin also promised he would look into citizen complaints about 
lax enforcement of strip-mining rules by the West Virginia Department 
of Environmental Protection, but he certainly wasn't persuaded to drop 
his strong support for mountaintop removal. He said he told the 
citizens they would have to agree to disagree about that one.
Singer and West Virginia native Kathy Mattea was among those who met 
        with Gov. Manchin.
    This meeting was slightly different in format than the one Manchin 
held back in early November with coal executives. For one thing, the 
citizen groups offered to have a couple of coal industry lobbyists sit 
in, and they did. Reps. Rahall and Capito of West Virginia both 
attended, but Sen. Jay Rockefeller (who did have time to meet with the 
industry executives) didn't show up. Rockfeller sent a staffer. (Senate 
records indicate there was just one floor vote yesterday in Washington, 
D.C.)
    And more importantly, the citizen groups brought some experts with 
them--including WVU's Michael Hendryx, who told me he tried to explain 
to the governor his research about coal's harsh impacts on public 
health and a study that showed the industry costs the Appalachian 
region more than it provides in economic benefits.
    I'm not sure Manchin heard that, given his comment about how 
``every job in West Virginia is a precious job.'' I got the idea that 
Manchin is still focused on just trying to preserve existing jobs, not 
finding ways to ``embrace the future,'' as the Central Appalachian coal 
industry continues its inevitable decline.
    Bo Webb, the Raleigh County resident and activist who asked Manchin 
for the meeting, seemed pretty pleased, but he also emphasized ``there 
is an urgency to address some serious issues, and hopefully some of 
those concerns will begin to be addressed very soon.''
    And while Rep. Shelley Moore Capito, R-W.Va., was busy filing for 
re-election and also forming a ``coal caucus'' in Washington, D.C., 
even she was talking about trying to find ways to ``bridge that gap'' 
between the coal industry and folks who want to stop mountaintop 
removal.
    Activist Maria Gunnoe--not really one to settle for just talk when 
it comes to mountaintop removal--assessed the meeting by saying it 
needs to be just the start of such talks:
    It's very important that this not be a one-time thing. We live in 
these communities, and we're not going anywhere. This can't be where it 
ends. This is the beginning of a long process
    It is important to know that this was the end of these discussions 
about the violent attacks and violent rhetoric that we refuse to 
tolerate.
    If you will notice that there are members of the group that formed 
in support of surface mining our homes present at this hearing today. 
They call themselves FACES of coal. http://www.facesofcoal.org/Here is 
a photo of a screen shot that I saved from their website. This is only 
one example of ``what we get'' for opposing them blowing up the 
mountains over our homes and dumping them into the valleys where we 
live polluting our headwater streams and destroying everything that 
support our lives.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    I believe the ``They'' above would be people that live here and 
oppose what is happening to them.
    We refuse to continue to tolerate the terror of the flooding from 
these stream fill experiments and sludge dams. Throughout the years of 
the manipulations of the laws governing the impacts on our streams we 
have always been the ones at risk. We live daily hoping that they don't 
fail yet knowing that someday they will. As a child I experience the 
loss of family members in the Buffalo creek flood that brought about 
the Surface Mining and Reclamation Act Laws. Then in 2001 our neighbors 
in KY suffered the Martin County Coal Spill. These laws didn't help us 
sleep at night knowing that these very operations were being permitted 
all over southern Appalachia. To us this was no more than words on 
paper. Living here you know that these laws were not being enforced 
then and they are not being enforced now. The present day generations 
of children and their families live terrified of the rains. It nearly 
always brings flooding when you have surface mining and plugged valleys 
nearby. Studies have shown 40%to 200% increase in peak flows caused by 
surface mining runoff during rainfall periods. FEMA and we as 
individuals picks up this cost while companies go on with business as 
usual keeping their men working destroying our very existence. At what 
cost do we excuse these illegal jobs?
    Surveys show that most voters in 4 regional states dislike 
mountaintop removal. http://earthjustice.org/features/campaigns/poll-
strong-opposition-to-mtr A majority of voters in WV, KY, VA, and TN 
reject mountaintop removal mining: The number of voters who oppose 
mountaintop removal dwarfs the number who support it: 57% oppose 
mountaintop removal, and with noticeable intensity (42% strongly 
oppose), compared to just 20% who support it. Voters who strongly 
support mountaintop removal mining in these states are a very small 
minority (at 10%).
    ``Jobs at risk'' is as insulting as anything I have ever read. We 
have worked consistently in DC and in Southern Appalachia to get our 
political leaders to enact a moratorium on any further surface mining 
permits because studies prove that this type of mining is killing the 
people who live in our communities. All of our politicians continue to 
ignore our plea for help. This blatantly says that none of you care 
about the Appalachians who are paying the real cost of this so called 
``cheap energy'' with their very existence. IT IS LIVES AND LIVLIHOODS 
AT RISK. This industry is willing to take this risk for their bottom 
line. The National Mining Association attorney called us inbreeds. This 
again shows the total and complete disrespect for our people. This 
hearing really isn't about jobs. This hearing is about the coal bosses 
bottom line. This hearing was staged as a political platform to get out 
their message that'' jobs are at risk in the already impoverished WV''. 
Let's talk about those jobs, why we are still one of the poorest states 
with the richest resources and what is really at risk.
    These jobs are people from the outside. Very few of our local 
people work these jobs. This is mostly outsiders from other states here 
doing this work. In Twilight, WV there is imported workers coming in by 
the busloads. Some of which are not legal to be in the US. Here is a 
photo taken from my vehicle along RT 26 where this non-English speaking 
gentleman ask me for directions to Progress Coal which is the Twilight 
surface mines. The buses were packed with imported workers and marked 
as school buses with PA plates. These same people show up drunk at our 
community church outings so they can eat. There was also an incident 
where a drunk imported worker from the Elk Run mines in Sylvester 
killed a child while racing on our roads as school was letting out. 
This is what kind of jobs we are talking about.

    This again shows that this is all about the company's bottom 
line and not about jobs for poor people.
Fallacy and Facts About Jobs in Appalachia
Fallacy: Stopping the destruction of Appalachian mountains and streams 
        would cost jobs
Fact 1:
    Underground mines create 50% more jobs than mountaintop removal 
mines.
    Underground mines create 52% more jobs than mountaintop removal 
mines for every ton they produce--they employ nearly two thirds of the 
miners in Central Appalachia while producing just over half of the 
coal1.
Fact 2:
    Unemployment in counties where a high proportion of coal is mined 
by mountaintop removal is higher than in counties where coal is mined 
mostly underground. According to data from the Bureau of Labor 
Statistics from 2000 through 2010, the average annual unemployment rate 
was 8.6% in Central Appalachian counties where more than 75% of coal 
production was by mountaintop removal, compared to 6.7% in counties 
where mountaintop removal accounted for less than 25% of production2.
    See: http://www.flickr.com/photos/appvoices/5938215752/
Fact 3:
    Historically, the total number of mining jobs has fallen in places 
where the proportion of coal mined by mountaintop removal has 
increased. According to the West Virginia Geologic and Economic Survey, 
the proportion of coal production in West Virginia that came from 
mountaintop removal mines increased from 19% to 42% of production 
between 1982 and 20063. Even though overall production increased, the 
number of mining jobs was cut in half over the same period4.
    See: http://www.flickr.com/photos/appvoices/6167625000/
Fallacy: More stringent enforcement of the Clean Water Act by the EPA 
        and other federal agencies is creating an economic crisis in 
        Central Appalachia
    Fact: The number of mining jobs in Appalachia has increased since 
the start of the recession, since the EPA began enhanced review of 
mountaintop removal permits, and since the EPA released its interim 
guidance in April, 2010. Since 2007, as production in Central 
Appalachia has shifted away from mountaintop removal in favor of 
underground mining techniques, the increase in employment at 
underground mines has more than offset declines at other types of 
mines. Employment is up 11.5% since the start of the recession 
(December, 2007), up 2.5% since Enhanced Coordination Procedures on 
mountaintop removal permitting were announced between 3 federal 
agencies (June, 2009), and up almost 6% since the EPA announced a new 
guidance on Appalachian mine permitting (April, 2010).
    See: http://www.flickr.com/photos/appvoices/6130794844/
Fallacy: Ending mountaintop removal would put US energy supply at risk
    Fact: U.S. coal production is limited by demand for coal, not by 
the ability of companies to obtain permits for mountaintop removal 
mines. According to energy analysts8 as well as executives from Arch 
Coal9, Peabody Energy10 and Southern Company11, declining Central 
Appalachian coal production is the result of competition from lower 
cost natural gas. Mines across the country are producing at just 75% of 
their capacity12--down from 85% in 2008--and the Energy Information 
Administration projects that coal demand won't recover to 2008 levels 
for another 15 years13. Coal from mountaintop removal mines could 
easily be replaced if other US mines were operating at just 81% of 
their capacity.
    See: http://www.flickr.com/photos/appvoices/5937661551/
    Fact: Coal from mountaintop removal mines accounts for less than 5% 
of US electricity generation. While coal accounts for nearly 45% of US 
electricity generation14, only 15% of that is mined in Central 
Appalachia15. Coal from all of Appalachia accounts for less than 9% of 
US electricity generation, and coal from mountaintop removal less than 
5%.
    See: http://www.flickr.com/photos/appvoices/5818441741/
Fallacy: Prohibiting valley fills would prevent all forms of coal 
        mining in Appalachia
    Fact: The majority of recently approved permits for new mines in 
Central Appalachia do not use valley fills. A survey of all 
applications for new mine permits in Central Appalachia that were 
approved by state agencies in 2009 revealed that just 44% used valley 
fills to dispose of mine waste16. See: http://www.flickr.com/photos/
appvoices/5938219772/
References and Notes
         1.  Calculated from MSHA Part 50 data files < http://
        www.msha.gov/stats/part50/p50y2k/p50y2k.htm>; Mountaintop 
        removal production and employment calculated from ``strip'' 
        mines, as defined by MSHA for mines in Central Appalachian 
        counties.
         2.  Ibid; Unemployment data from the Bureau of Labor 
        Statistics < http://www.bls.gov/ces/>
         3.  Hendryx, 2008. ``Mortality Rates in Appalachian Coal 
        Mining Counties: 24 Years Behind the Nation.'' Environmental 
        Justice; Volume 1, Number 1
         4.  MSHA op. cit. 2000-2010
         5.  MSHA op. cit. 2007-2010; Bureau of Labor Statistics op. 
        cit.
         6.  EIA/DOE ``EIA-923'' Database 
         7.  DOE/EIA Cost and Quality of Fuels for Electric Plants, 
        Table 3.2 for 2007- 2009; Adjusted to 2009 $ based on Budget of 
        the United States Government: Gross Domestic Product and 
        Implicit Outlay Deflators;
         8.  Bernstein Commodities & Power Report, 2/18/2011: ``No 
        Light for Dark Spreads: How the Ruinous Economics of Coal-Fired 
        Power Plants Affect the Markets for Coal and Gas''
         9.  Steve Leer, Chairman and CEO, Arch Coal, Inc. presentation 
        to Barclays 2010 CEO Energy-Power Conference on 9/15/2010;
        10.  Rick Navarre, President and Chief Commercial Officer, 
        Peabody Energy, ``Expanding Markets and Peabody Growth 
        Opportunities,'' a presentation to the 2010 Analyst and 
        Investor Forum on 6/17/2010
        11.  Chad Hewitt, Southern Company, ``Utility Perspective on 
        the Future of Coal'' presented at American Coal Council's 
        Spring Forum on February 3, 2011;
        12.  DOE/EIA Annual Coal Report for 2009. Analysis by 
        Appalachian Voices.
        13.  DOE/EIA Annual Energy Outlook, 2011 Early Release edition
        14.  EIA/DOE Electric Power Monthly with data for December 
        2010, Table 1.1: ``Net Generation by Energy Source: Total (All 
        Sectors) ``; 
        15.  EIA/DOE ``EIA-923'' Database op. cit.
        16.  Applications for new mine permits approved in 2009 
        obtained from: Kentucky Department of Natural Resources; West 
        Virginia Department of Environmental Protection; Virginia 
        Department of Mines, Minerals and Energy; US Office of Surface 
        Mining Reclamation and Enforcement, Knoxville Office Produced 
        by Appalachian Voices on behalf of the Alliance for Appalachia 
        Spreadsheets and details of all analyses available at: 
        www.appvoices.org/resources/mtr_facts.zip
    The Obama administration has stated that they would follow the 
science. That is what I see that this administration is doing SLOWLY. 
Simple fact is science doesn't favor jobs over human health so this 
administration is being attacked by the extractive industries who now 
call themselves ``job creators''. It's true that we all need jobs. 
However we cannot depend on jobs that destroy other's lives and 
livelihoods. Frasure Creek Mining is owned by an INDIAN Company and 
they are blowing up my homeland. I feel the vibrations of the core 
driller in the floors of my home and impacts of the blasting near my 
home are horrendous. This is absolutely against everything that America 
stands for. When someone destroys water in a foreign country it is 
called an act of war. When the coal industry destroys Appalachia's 
water it's said to be in the best interest of our homeland security.
    Here is what the Scientist says. . .What are we waiting on? People 
are dying!
    http://blogs.wvgazette.com/coaltattoo/2010/01/07/bombshell-study-
mtr-impacts-pervasive-and-irreversible/
Mountaintop Mining Impacts Serious and Irreversible
    Led by Chesapeake Biological Laboratory Director Margaret Palmer, a 
team of the nation's leading environmental scientists completed a 
comprehensive analysis of the latest scientific findings and emerging 
data related to the controversial practice of mountaintop mining. In 
this practice massive amounts of rock are removed to expose coal seams, 
valleys and streams are filled with the rock debris. Dr. Palmer's team 
concluded that peer-reviewed research unequivocally documents 
irreversible environmental impacts from this form of mining and also 
exposes local residents to a higher risk of serious health problems.
    At one time even Jay Rockefeller support banning surface mining. He 
openly admitted that strip mining was not a good economic future. Here 
is a few quotes from him.
    December 20, 1970--''I will fight for the abolition of strip mining 
completely and forever.'' John D. Rockefeller IV while running for 
governor of WV as a stripmine abolitionist.
    After getting beat by republican Arch Moore with the help of 
concerned corrupt democrat politicians and huge contributions from coal 
companies, Rockefeller followed the advice of his advisors and changed 
his mind on strip mining and on attacking corrupt politicians in 
southern WV. He won the following election for Governor as an advocate 
of strip mining and shut up about corruption.
    ``We know that strip mining is tearing up the beauty of our state. 
We know that strip mining is not a good economic future for West 
Virginia and not a good economic future for our children. And we know 
that, whatever advantage it has now, the damage that it leave is a 
permanent damage.'' -Jay Rockefeller, 1972
    March 2, 1977--``...mountaintop removal should certainly be 
encouraged, if not specifically dictated.'' Gov. Rockefeller's 
testimony to the U. S. Senate Subcommittee on Energy and Natural 
Resources, March 12, 1977.
    Southern Mountains Community members speak out against the 
atrocities of surface mining in Appalachia.
    http://www.wvphotovoice.org/
    www.plunderingappalachia.org
    www.burningthefuture.com
    www.oncoalrivermovie.com
    http://lowcoalexplicit.org/
    www.coalcountrythemovie.com
    We know we have options and that we do not have to blow up our 
mountains and poison our water to create energy. This was our idea. 
Hopefully it will catch on. www.thelastmountainmovie.com We will 
continue to demand better for our children's future in all that we do. 
Here is a short list of the impacts of coal on our lives nationally. It 
would benefit all our children if we take this very serious and fix 
this problem right away. We can no longer excuse the fact that coal is 
a finite resource and we are running out. Enforce the stream buffer 
zone rule and protect the very existence of a culture of people known 
as Appalachians. We have witnessed the history that the coal industry 
has left in its path. Let me say that this history is unimaginable by 
most people in this country. Mountaineers will never be free until this 
madness ends. Reinstate the stream buffer zone rule to at least the 
Regan Era Rule and (for the first time in history) enforce it to 
protect American lives from this criminal industry. My nephew reminds 
me of what surface mining looks like from a child's eyes. As we were 
driving through our community he looks up and says ``Aunt Sissy what is 
wrong with these people don't they know we live down here?'' I had to 
be honest with him and say ``yes they know they just simply don't 
care.''
                                 ______
                                 
    Mr. Lamborn. All right. Thank you. OK. Thank you all for 
your statements. We will now begin our questions. Members are 
limited to five minutes. We may have additional rounds. I'll 
begin the first round of questions.
    Mr. Bostic, your organization was involved in the 1999 
lawsuit that began this process of mountaintop mining EIS with 
the affiliated rule. Some of this was driven by settlements 
between the Administration and environmental groups. In your 
view, were those settlements prior to the 2008 rule 
appropriate?
    Mr. Bostic. Thank you for that question, Mr. Chairman. I 
think that's a very appropriate one to ask. The litigation you 
refer to we call that brag here in West Virginia. And as a 
result of that initial litigation, the Federal Government 
negotiated a settlement agreement with the environmental 
plaintiffs that committed the first environmental impact 
statement on mountaintop mining and this stream buffer zone. As 
part of that settlement agreement the government agreed to name 
as government contractors pre-picked certain experts selected 
by the environmental community. We had a great deal of concern 
by that inclusion of those outside parties in an EIS, as you 
can imagine. But as the EIS progressed and the studies 
progressed and the programmatic EIS was a much more complicated 
and more intense effort than the 2008 or even the rule changes 
now, and it ultimately found that surface mining was not having 
an inordinate amount of impact on the resources of the area.
    Mr. Lamborn. OK. Thank you. Ms. Fredriksen, I have a 
question for you. The original focus of the rule is on 
mountaintop mining and streams. In fact, one of the witnesses 
just a moment ago stated that he had no objection to 
restrictions on underground mining, if I understood what he 
said correctly. However, after listening to your testimony, it 
seems that the rule could have or even would have a large 
impact on underground mining operations. Could you elaborate on 
that, please?
    Ms. Fredriksen. Yes. As the graphic demonstrated, if you 
take the new standards that they've put in place, which is go 
to the middle of the stream, go out 50 feet and go down a 15-
degree angle of draw until you hit the coal. So you have to 
protect that buffer around the stream. So that's how we looked 
at the rule, and when you do that, even our deepest mines, for 
example, in southern Virginia, where we mine a lot of met coal, 
loses almost have of its reserves based on this rule.
    In addition, what we did not include in that calculation, 
while the stream buffer zone rule currently, that's in the 
public forum for the draft, states that coal refuse disposal 
areas on the surface are not impacted, since they are very 
similar to a valley fill and are permitted similarly, if that 
coal refuse disposal area were to be not allowed either, then 
that wipes out all ability to even room and pillar, much less 
longwall mine underground.
    So it's the nuances of those sweeping changes that they 
propose to make that really impact the longwall mines, 
particularly for CONSOL, but if we stretch that across the 
nation, there's probably roughly 200 million tons that are 
longwalled per year in the U.S., so you're talking about a 
fifth of that being subject to potentially restricted mining.
    Mr. Lamborn. Well, I find that really ironic because SMCRA 
is the Surface Mining Control and Reclamation Act. Surface 
mining control, so ostensibly, it's not supposed to dictate 
underground mining, if I heard you correctly?
    Ms. Fredriksen. We have SMCRA permits for every one of our 
mines. Every one of our longwall mines has a SMCRA permit. And 
then as you heard from the previous panel, we also have 
combined NPDES permits with those SMCRA permits.
    Mr. Lamborn. OK. Well, thank you for your clarifying that. 
And for any of you, would the effect of this, especially if it 
includes the underground impacts that we've just discussed, 
have a tendency to push coal production away from private lands 
owned in the east to the Federal lands that are predominantly 
where coal comes from in the west? Mr. Carey?
    Mr. Carey. Mr. Chairman, I think the idea that those coals 
would have to be replaced from someplace, but I think also the 
panel prior to our panel also outlined the fact that what you 
would see is power producers ultimately switch to another fuel 
source, which would not be cost effective to the average 
consumer or to the manufacturing base in the Midwest. In the 
short term, it would actually probably be replaced by western 
coal.
    Mr. Lamborn. OK. But ultimately to natural gas, if that's 
still allowed to be produced?
    Mr. Carey. That's correct, Mr. Chairman.
    Mr. Lamborn. OK. Thank you. I'd like to recognize Mr. 
Johnson.
    Mr. Johnson. Thank you, Mr. Chairman. Mr. Carey, first of 
all, it's good to see a fellow buckeye here today as we talk 
about this very, very important topic.
    In your testimony, you spoke about the jobs that could be 
lost nationwide if this rewrite as proposed by OSM goes into 
effect. Could you elaborate and shed some light on the number 
of direct and indirect jobs that are at stake in our home state 
of Ohio?
    Mr. Carey. Mr. Chairman, Congressman Johnson, certainly. 
The effect just looking at the numbers we've calculated that 
about 30 percent of the surface mining would be affected 
immediately. That roughly makes up 45 percent of Ohio's coal 
production. So if you look at the spin-off jobs to whatever 
number you want, six to ten jobs--up to ten jobs, according to 
Penn State, we would be looking in the thousands in 
southeastern, and primarily in your district, Congressman.
    Mr. Johnson. That's exactly why I have been fighting so 
hard against this rule rewrite because most of those jobs, as 
you and I know, come from Ohio's sixth congressional district 
and the people that I represent. Mr. Carey and Mr. Bostic, much 
of the press has been on potential impacts on surface mining. 
We've talked a little bit about the effects on longwall mining. 
How many longwall mines could be affected in the rewrite, if it 
goes through?
    Mr. Bostic. Well, sir, based on the information that we 
have that's in the public domain from OSM now, virtually every 
underground mine, whether it's longwall or otherwise, could be 
impacted. And it's over this concept of fill construction. And, 
again, the detractors, the Administration wants you to believe 
this is about surface mining. It's not true. When you 
underground mine coal, you're going to impact streams, whether 
it's through the longwall subsidence that was mentioned earlier 
or through the construction of refuse areas.
    Coal seams are not all coal. There are certain splits of 
shale and clay that lie within the coal seam, and when you 
extract that coal underground, it's brought to the surface. 
Those impurities have to be removed from the coal so that it 
will burn, and meet air emission properties or meet coking 
properties for the metallurgical industry. And you have to have 
a place to put that material and that's typically in a refuse 
fill. About 98 percent of all of West Virginia's underground 
coal production has to be cleaned, so there's a potential 
impact on all underground mines, longwall or otherwise.
    Mr. Johnson. Ms. Fredriksen, can you talk about the 
planning preparation and caution that CONSOL undertakes before 
they begin surface mining?
    Ms. Fredriksen. Yes. As the SMCRA requirements, the NPDES 
requirements, we also have the various state laws and 
regulations that we apply, the 404 permits. So everything--your 
entire mine plan, your impacts--you have to do an environmental 
impact assessment, you have to do hydrologic balance. You have 
to look at geology and the impacts of that. And so every bit of 
that is incorporated, and it's about a five-year process to go 
through and obtain your mining permit. And like I said before, 
they have a combined SMCRA/NPDES permit in all of our states 
where we operate. And so that process is a very lengthy one, 
it's a very thoughtful one and it's also a public process. 
Those are put up for public comments when our limits are 
assessed on us for what we can do and we have to operate 
according to that plan.
    Mr. Johnson. And can you also briefly talk about the 
reclamation efforts that CONSOL engages in after the surface 
mining is completed?
    Ms. Fredriksen. Yes. In fact, in the State of Ohio, closed 
mine operations are also in my department, and I'm very proud 
that we have received numerous awards on our reclamation 
efforts on those mines. We have bonding. Those are financial 
obligations that we carry through the SEC process and annual 
10K filings that we are required to meet. And until we meet 
those obligations and get full bond release on our reclaimed 
sites, that's the financial obligation that CONSOL must state 
for its shareholders. So it is in our interest to get those 
reclaimed and to get those bonds released.
    Mr. Johnson. OK. Thank you very much. Mr. Chairman, I don't 
have any further questions and I yield back the balance of my 
time.
    Mr. Lamborn. OK. Thank you. We'll begin our last round of 
questioning.
    Mr. Bostic, do you have any thoughts or suggestions on what 
might have be the origin of the current proposed stream buffer 
zone rule as opposed to the 2008 settlement?
    Mr. Bostic. Yes, sir. I have a couple speculations to make 
there. I think if you look, attached to my written testimony 
submission there is a June 11, what's referred to as the MOU, 
Memorandum of Understanding between the primary agencies that 
regulate coal mining under the Federal Government. It was 
written by and with the influence of the White House Counsel on 
Environmental Quality. Those actions, which began in 2009, 
followed a Federal court decision that we received here in West 
Virginia. That somewhat, we think, landmark decision that 
clarified the proper role of all of these agencies, whether it 
be the Corps of Engineers, EPA, our own Department of 
Environmental Protection. With that landmark decision, we had 
some degree of hope that now we'll have certainty and 
predictability in the permitting process. I think there are 
those within the Administration, within EPA, that disagreed 
with that decision, and then set out the promulgate this MOU 
and to force these rule changes through to restrict mining. Now 
that the Federal courts had found it to be proper, the balance 
of separation of power between those agencies to be 
appropriate, they set out to change all that by way of 
regulation.
    And Congressman, I use the term ``regulations'' very 
loosely. For the most part, the agencies set out to do this by 
policy or by reinterpretation. Only by way of a lawsuit from 
the National Mining Association was OSM forced to undertake the 
proper rulemaking process with this stream buffer zone rule. 
What we've seen from EPA, what we've seen from the other 
agencies within the Federal Government has been policy and it's 
going to trample, we think, congressional intent, whether it's 
under the Surface Mining Act or under the Clean Water Act.
    Mr. Lamborn. All right. Thank you. Now, some people have 
said that they don't like the 2008 rule, they think that the 
earlier Reagan rule was better. Do you think that that rule was 
stronger or is the 2008 rule actually stronger?
    Mr. Bostic. Well, Congressman, to be honest with you, if 
you look at the history of the 1983 version of the rule, the 
Reagan era stream buffer zone rule, in a history that's very 
well articulated through the programmatic environmental impact 
statement or through the 2008 EIS, the 1983 rule wasn't never, 
ever interpreted nor intended to ban or prohibit mining in and 
around streams. That was made consistently clear through its 
entire rulemaking history leading up to its final inclusion in 
the program in '83.
    Having said that, going to the 2008 rule, if you look 
through the administrative record, you'll find some concern 
expressed on behalf of the mining industry, including West 
Virginia, that it increased certain requirements, certain 
analysis, certain things that the companies had to do with 
respect to the SMCRA permit. And we at several steps opposed 
those changes.
    So if you peel back the rhetoric presented by the current 
OSM and the current Administration, that the 2008 rule was a 
give-away or a midnight regulation. It actually made mining and 
permitting of these operations tougher.
    Mr. Lamborn. OK. Thank you. And Mr. Horton, if I could turn 
to you, you spoke very movingly on the impacts of the loss of 
jobs. Now we've also heard some very passionate testimony on 
negative impacts of mountaintop mining. How would you respond 
to someone who says it only does bad things, or the bad things 
outweigh the good things? How do you respond to that on a human 
level?
    Mr. Horton. There have been bad operators that have done 
negative things to the coal industry, just as there has been 
bad automobile manufacturers who have built bad cars and killed 
people, and there have been bad steel mills who do things that 
are not right in the sight of the public. Not every coal 
operator should be considered in that light. Mountaintop mining 
can be done in an environmentally safe manner and it can be 
done and is done by a lot of coal operations and provides good 
employment for a lot of people and it can be done even better, 
and we strive to do that each and every day.
    In fact, if rewritten, this rule will affect, as Jason has 
said, the underground industry because mountaintop mining today 
is used in a lot of advancements of the underground sector. 
We'll come in and develop an area through the mountaintop 
mining method for the underground mining method to proceed. And 
it's a much more cost effective way of doing so. And that's 
done in both West Virginia and Virginia and I'm sure in parts 
of Ohio, as well.
    Any time anyone has an issue with anything that we're doing 
in our operation, we'll talk to them, and if we're doing 
something that's not right, we'll try to make it right.
    Mr. Lamborn. And finally, Mr. Carey, is there a 
contradiction between responsible stewardship of the 
environment and keeping jobs available and the economy strong?
    Mr. Carey. Mr. Chairman, I don't believe there's a 
contradiction. I believe that if you're operating under the 
letter of the law and you're doing what you need to be doing, 
these companies are responsible and I think that there is a 
balance and we are meeting that.
    Mr. Webb. May I comment, please, on that question?
    Mr. Lamborn. I'm afraid our time is up. Let's talk 
afterward.
    Mr. Webb. I would like to comment for the record about what 
he's talking about.
    Mr. Lamborn. I want to thank the members of the panel for 
their testimony. I want to ask unanimous consent----
    Ms. Gunnoe. Mountaintop removal jobs are killing people.
    Mr. Lamborn. I would ask for civility, please. I would like 
to ask unanimous consent that Representative Nick Rahall's 
press statement be put into the hearing record and I'm going to 
ask each member of the panel that if anyone submits questions 
to you in writing, that you would respond to those as well.
    [The press release follows:]

       Rahall Welcomes Monday Hearing on Stream Buffer Zone Rule

    Washington, D.C.--U.S. Representative Nick J. Rahall, D-WV, Friday, 
welcomed a hearing in Charleston to examine the proposed ``stream 
buffer zone'' rule, scheduled for Monday, September 26th, by the 
Subcommittee on Energy and Mineral Resources of the House Natural 
Resources Committee.
    ``I am glad that the Subcommittee has chosen to get to the heart of 
the matter and conduct a hearing in West Virginia, where Members can 
hear first-hand about the negative effects a revised stream buffer zone 
rule would have on our coal miners,'' said Rahall. ``It is always a 
good thing for Members of Congress to get out of Washington and spend 
time in the communities that are being affected by the laws we write 
and the regulations being handed down by agencies.''
    Rahall is a former Member of the Natural Resources Committee, 
serving on that Committee for 34 years until taking over the top 
Democratic spot on the Transportation and Infrastructure Committee 
earlier this year. While Chairman of the Natural Resources Committee, 
Rahall pressed EPA and the Corps of Engineers for expeditious 
consideration of coal mining permits and continually urged federal 
agencies to work together with the State of West Virginia to ensure 
that coal mining jobs were not put at risk by unfair and inequitable 
regulations.
    Rahall's work on that front has continued in his new post. Earlier 
this year, the House passed H.R. 2018, the ``Clean Water Cooperative 
Federalism Act of 2011,'' authored by Rahall. Rahall's legislation, 
which has been sent to the Senate for consideration, would rein in 
EPA's overreach in the Clean Water Act permitting process that is 
threatening the future of coal mining jobs and communities throughout 
Appalachia.
    Although previously scheduled commitments, including an oversight 
tour of the Coalfields Expressway--a road needed for the efficient 
transport of West Virginia coal and other products--prevented Rahall 
from attending the Monday hearing, he sent an unequivocal message to 
participants.
    ``Without a doubt, the new stream buffer zone rule under 
consideration by the Office of Surface Mining Reclamation and 
Enforcement is unworkable; it would, unquestionably, adversely affect 
coal mining and eliminate mining jobs so important to our West Virginia 
economy. The message I send to the agency is this: `Go back to the 
drawing board' said Rahall.
                                 ______
                                 
    Mr. Lamborn. Thank you for being here. If there's no 
further business, the Subcommittee stands adjourned.
    [Whereupon, the Subcommittee was adjourned.]

    [Additional material submitted for the record follows:]

    [A Letter from the Alabama Surface Mining Commission; 
Indiana Department of Natural Resources; Kentucky Department of 
Natural Resources; Railroad Commission of Texas; Utah Division 
of Oil, Gas and Mining; Virginia Department of Mines, Minerals 
and Energy; and Wyoming Department of Environmental Quality, to 
The Honorable Joseph Pizarchik dated November 23, 2010, 
submitted for the record follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    [A statement submitted for the record by the Interstate 
Mining Compact Commission (IMCC) follows:]

               Statement submitted for the record by the 
                  Interstate Mining Compact Commission

    The Interstate Mining Compact Commission (IMCC) appreciates the 
opportunity to submit this statement regarding an oversight hearing on 
``Jobs at Risk: Community Impacts of the Obama Administration's Effort 
to Rewrite the Stream Buffer Zone Rule'' held on September 26, 2011 in 
Charleston, West Virginia. IMCC is a multi-state governmental 
organization representing 24 coal and mineral producing states 
throughout the U.S., several of whom implement regulatory programs 
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA).
    The current effort by the Office of Surface Mining (OSM) to rewrite 
the stream buffer zone rule is in response to two decisions by the 
Obama Administration: a settlement agreement with environmental groups 
challenging a final rule promulgated by the previous Administration in 
December of 2008 and a Memorandum of Understanding (MOU) signed by the 
Interior Department, the U.S. Environmental Protection Agency and the 
U.S. Army Corps of Engineers in June of 2009. Both of these decisions 
committed the agency to develop a new rule for the protection of 
streams, with a projected completion date of June 2012. However, unlike 
prior rulemakings in this area, OSM appears to be expanding the scope 
of the rule well beyond stream buffer zone requirements, taking on 
topics such as the definition of material damage to the hydrologic 
balance, baseline data collection and analysis, monitoring 
requirements, corrective action thresholds, and fish and wildlife 
protection and enhancement.
    As IMCC has noted in comments that we have submitted to the agency 
concerning this rule and the underlying environmental impact statement 
(EIS), OSM is faced with the challenge of attempting to address and 
resolve issues that are much broader than the rule itself. With each 
successive reiteration of the stream buffer zone rule since 1979, more 
and more pressure has come to bear on the agency to define the rule in 
such a way as to completely ban the disposal of excess spoil in any 
type of stream that may be impacted by surface coal mining operations. 
However, as the U.S. Court of Appeals for the Fourth Circuit clearly 
articulated in its 2003 opinion in Kentuckians for the Commonwealth, 
Inc. v. Rivenburgh, 317 F.3d 425, 443 (4th Cir. 2003), ``it is beyond 
dispute that SMCRA recognizes the possibility of placing excess spoil 
material in waters of the United States even though those materials do 
not have a beneficial purpose.'' Accord Ohio Valley Environmental 
Coalition v. Aracoma Coal Company, 556 F.3d 177, 195 (4th Cir. 2009). 
OSM's rule, therefore, should not be about banning the practice of 
disposal of excess spoil in streams, but defining how it can be done in 
a manner that comports with the law. And while OSM can prescribe a 
national standard for accomplishing this task, it remains the 
responsibility of the states, as exclusive regulatory authorities where 
primacy programs have been approved, to apply the standard through the 
permitting process, in which OSM plays no role other than through 
appropriate federal oversight.
    In its draft EIS (and in early drafts of the new rule), OSM appears 
to be searching for the ultimate answer to the appropriate protection 
of streams that has somehow eluded them. From where we sit, it is not 
OSM that has failed to articulate the solution to this matter. The 
agency, on more than one occasion, has engaged in comprehensive 
analyses through both rulemakings and environmental impact statements 
(EIS's) that address the complexity of the issue and provide solutions 
that are consistent with SMCRA, protective of the environment and 
respectful of state primacy. There is little left to offer. OSM has 
examined every possible combination of alternatives and analyses that 
attend this issue. The real dilemma lies not with OSM's rule, but with 
the practice of excess spoil disposal itself, which the courts have 
authorized and found to be consistent with the way SMCRA is currently 
written. Any significant change in direction would therefore require an 
amendment to SMCRA.
    The problem also does not lie at the footstep of the states as 
primary regulators in this area. Over the course of the past 30 years 
since states first began to receive primacy, OSM has seldom found 
concerns with our implementation of the applicable stream buffer zone 
requirement. In fact, as OSM recently found with respect to West 
Virginia's regulatory program, there has been no indication that the 
states do not apply their respective SBZ rules consistent with the 
historic application of the SBZ requirements, as approved by OSM over 
the years. See letter to Joseph Lovett from OSM Regional Director 
Thomas Shope dated December 8, 2009. Consequently, as OSM continues to 
search for new alternatives to address this matter, two things must be 
kept in mind: 1) the states' implementation of this rule and its many 
iterations over the years has not been the stumbling block; and 2) as 
OSM attempts to move forward once again with a new variation on a 
common theme, it is critical to bring the states into the final 
solution given our role as sole issuers of permits that incorporate and 
implement these standards.
    As the states consider their regulatory role in the context of this 
potential rulemaking, they are particularly concerned about a 
propensity on OSM's part to insert itself into the state permitting 
process in inappropriate ways. In OSM's ``Immediate Stream Protection 
Measures'' which were released in November of 2009, for instance, OSM 
indicates that it intends to ``coordinate the SMCRA and Clean Water Act 
(CWA) permitting processes to ensure effective and coordinated 
compliance with provisions of the Clean Water Act.'' While the states 
are fully supportive of coordinated approaches to meeting the 
objectives of both SMCRA and the CWA, and have in fact advocated this 
in the past, they are uncertain of where OSM intends to go with this 
initiative. Time and again in the recent past, states have received 
conflicting or incomplete responses from EPA concerning what they 
believe the applicable CWA standards are for state-issued surface coal 
mining and reclamation permits, especially in Appalachia. Our attempts 
to obtain more clarity have been met with either silence or 
uncertainty.
    Furthermore, there are specific administrative procedures specified 
under SMCRA for concurrence by EPA regarding the approval of state 
programs or any amendments thereto. EPA and the Corps are involved with 
the issuance of NPDES permits by states under the CWA, which are often 
coordinated with the issuance of SMCRA permits. OSM's role is relegated 
to one of oversight. Any attempts by the federal government to convert 
their statutorily designated roles into something more intrusive in the 
name of ``coordination'' will be met with suspicion, if not outright 
opposition. As the U.S. Court of Appeals for the District of Columbia 
has noted, the state, as the sole issuer of permits, decides ``who will 
mine in what areas, how long they may conduct mining operations, and 
under what conditions the operations will take place. It decides 
whether a permittee's techniques for avoiding environmental degradation 
are sufficient and whether the proposed reclamation plan is acceptable. 
The state. . .inspects the mine to determine compliance; [and] [w]hen 
permit conditions are violated, the states is charged with imposing 
appropriate penalties.'' In re: Permanent Surface Mining Regulation 
Litigation (en banc), 653 F.2d 514, 519 (D.C. Cir. 1981) (citations 
omitted).
    It is obvious from a review the June 2009 MOU, as well as OSM's 
rulemaking documents to date, that while there may be some merit in 
designing a set of regulatory requirements that applies specifically to 
mountaintop removal operations in steep slope areas, the stream buffer 
zone rule has always had, and will likely continue to have, broad 
implications for all regions of the country. In fact, OSM's proposal to 
adjust the definitions of ``material damage to the hydrologic balance'' 
and ``approximate original contour'' confirms the national scope of the 
rulemaking. As a result, OSM must consider how any reformulation of the 
rule will impact each state's program in terms of both implementation 
and resources. As we noted in our comments on the 2007 proposed rule, 
the incorporation of approaches such as the ``alternatives analysis'' 
contained in that proposal (and ultimately embodied in the 2008 final 
rule) will require the investment of considerable time and effort by 
state permitting personnel that could prove to be overwhelming. Given 
the current fiscal constraints under which the states are operating, 
attempting to accommodate these types of permitting analyses could 
seriously jeopardize primacy programs.
    There is also the question of how OSM's intentions with regard to 
this new rulemaking comport with SMCRA's goal of creating a level 
playing field across the 24 state coal regulatory programs. For 
instance, the term ``material damage to the hydrologic balance'' is 
contained in every state's regulatory program and any effort by OSM to 
define that term for the Appalachian region will have consequences for 
all other state programs, regardless of how OSM attempts to narrow its 
scope or applicability. In fact, given the significant differences in 
geology, hydrology and terrain among the various regions of the country 
where surface coal mining operations occur, regulatory terms such as 
``material damage'' have necessarily been left to each state to define 
based on their unique circumstances. This is the very essence of 
SMCRA's design, whereby Congress vested primary governmental 
responsibility for developing, authorizing, issuing and enforcing 
regulations for surface mining and reclamation operations with the 
states so as to accommodate the diversity in terrain, climate, 
biologic, chemical, and other physical conditions in areas subject to 
mining operations.
    OSM has set forth in the draft EIS chapters upwards of 55 different 
options for proceeding forward with a new SBZ rule. Most of these are 
variations on themes that have already been explored in previous 
rulemakings or EIS's, as noted above. Some alternatives suggest the use 
of concepts that have proven elusive or difficult to implement in the 
past, such as quantitative or qualitative thresholds. However, reading 
between the lines of the draft EIS, what we sense is an attempt by OSM 
to reconcile not just its own regulatory requirements under SMCRA, but 
a larger, undefined set of standards for water quality protection being 
advocated by EPA and the Corps. This rulemaking simply cannot be taken 
out of context from all the other activity that has attended the 
development of the EPA/DOI/Corps MOU referenced above. While much of 
that activity has been focused in central Appalachia at this time, the 
overarching concerns regarding conductivity, total dissolved solids, 
and numerical and narrative biologic water quality standards have 
implications nationwide. Furthermore, there is simply no agreement 
among the affected federal agencies on what those standards should be. 
In some circumstances, such as the setting of narrative water quality 
standards, the federal agencies play no role whatsoever. These 
determinations are left solely to the states under the Clean Water Act.
    As OSM moves forward with this rule and the EIS, the states believe 
that it is important for both state and federal agencies to agree upon 
several key issues: 1) who is taking the lead on the issues; 2) what 
specific regulatory standards are in play under both SMCRA and the CWA; 
3) how and where these standards should be incorporated into existing 
regulatory programs, especially at the state level; and 4) what the 
expectations are for both implementation of and compliance with those 
standards. These types of discussions are long overdue and without some 
resolution with all parties at the table, rulemakings such as that 
regarding SBZ and related issues are likely to fail.
    An overarching concern that should also be addressed is why OSM 
feels compelled to move forward with this rulemaking. We are still 
uncertain, even after all the debate over the past several months 
concerning the June 11 MOU and OSM's stream protection rule, about the 
basis for the proposed rulemaking or the problem the agency is 
attempting to fix. We certainly understand the high levels of angst 
associated with mountaintop mining operations in Central Appalachia, 
but what OSM is attempting to do with this national rulemaking cannot 
be justified by that public debate. As we have noted in comments to OSM 
and testimony to the Subcommittee, the appropriate forum for that 
debate is before Congress, not OSM. Nor can the pending litigation 
associated with OSM's 2008 stream buffer zone rule serve as an adequate 
basis for a new rule. There are other options available to the agency 
for the resolution of this litigation short of a new rulemaking on the 
matter. And even though we have requested this information in the past, 
we are still unaware of any data that supports the need for this 
rulemaking. Quite to the contrary, the data and information we are 
familiar with (including OSM oversight reports) indicates that the 
states have been implementing stream protection requirements in a fair, 
balanced and appropriate manner that comports with the requirements of 
SMCRA and our approved regulatory programs. It would therefore be 
helpful if OSM would finally clarify its goals and the problems it 
hopes to address in the rulemaking process.
    As we peruse the various ``principal elements'' of the proposed 
action spelled out in OSM's draft EIS, one of our primary concerns 
relates to resource implications for the states. While much remains to 
be seen in terms of details about the rule, what little we do know 
signals a major impact on the states in terms of permit reviews, 
monitoring requirements, various new technical analyses, and 
intergovernmental coordination. In this regard, we believe that it is 
critical, as part of the EIS, for OSM to undertake an assessment of the 
rule's impact on both state resources and federalism implications. We 
assert that this is required by both the National Environmental Policy 
Act (NEPA) and Executive Orders that specifically address federalism 
impacts.
    We also recommend that, before moving forward with the EIS and 
proposed rule, OSM seriously consider the other alternatives available 
to the agency for addressing stream protection. We believe that there 
are opportunities for the states and the affected federal agencies 
(OSM, EPA, the Corps and the U.S. Fish and Wildlife Service) to work 
cooperatively together to address stream protection concerns. However, 
to date our requests for arranging such meetings have been ignored. We 
believe that there are a variety of tools, protocols, policies and 
other measures available to us as state and federal agencies that, with 
some coordination, could lead to a comprehensive and effective approach 
to protecting streams.
    As OSM develops the various alternatives that it will consider 
during the EIS process, we suggest that the agency include an 
alternative that recognizes the inherent regional differences, 
especially between the East and the West, related to stream protection. 
We believe that OSM likely gained an appreciation for these differences 
during its stakeholder meetings in June and July of 2010. SMCRA itself 
recognizes the importance of regional differences, both in its findings 
(Section 101(f)) and in its designation of special treatment for mining 
practices associated with alluvial valley floors west of the 100th 
meridian, prime farmland in the Mid-continent and steep slopes in the 
East. Failure to recognize these regional differences could result in 
the expenditure of considerable resources to address issues that are of 
marginal significance in a particular region of the country.
    Before delving into some of the very practical implications and 
impacts associated with implementation of the elements listed in OSM's 
draft EIS, we want to note our concern about whether the science 
supports some of OSM's proposed concepts. In particular, it seems to us 
that there are several technical issues associated with the concepts 
that require further thought and research, such as sequencing of stream 
disturbance, bottom up fill construction, diverting water around fills 
to avoid retention and percolation, and compliance points off the 
permit area. We also believe that more can be done in the way of 
developing tools or methods for prevention and prediction. By advancing 
a rule that embodies some of these concepts without more in the way of 
scientific support will complicate the ability of the states to issue 
and enforce permits that are sound and defensible.
    The balance of our statement will focus on some of the practical 
implications associated with implementation of the various ``principal 
elements'' of OSM's proposed action.
          New Permit Application Requirements--the states have 
        several questions with regard to these new requirements, as 
        follows: what is a ``new permit'' for purposes of prospective 
        application of the new rule? Will states be required to 
        reassess discharge monitoring reports at permit mid-term 
        review? Will this serve as a potential re-opener? When will we 
        see definitions of ``preferred watersheds'' and ``hydrologic 
        equilibrium''? These are new terms and could have significant 
        implications for program implementation. How will some of the 
        new permit application requirements impact us as regulatory 
        authorities, e.g. 12 months of baseline monitoring data 
        (instead of six) and requiring alternative analyses to include 
        depositions within one mile of the mining operation?
          Definition of ``material damage''--OSM's new 
        definition appears to be based on a stream classification and 
        use concept pursuant to which OSM seems to be moving toward 
        establishing a narrative water quality standard based on 
        aquatic life. As noted previously, those standards are solely 
        within the province of the states. Additionally, OSM's approach 
        could result in much duplication with EPA and Corps 
        requirements. OSM's concept of ``enhancement'' sounds very much 
        like mitigation under Section 404 of the Clean Water Act, again 
        raising concerns about potential conflicts. With respect to 
        mining operations in the western states, a broad, national 
        definition of material damage could prove problematic due to 
        the unique issues associated with water rights and interstate 
        compacts.
          Mining through streams--the states have concerns 
        about whether sequencing of streams is feasible. If an 
        assessment of the success of stream restoration must include 
        the hydrologic regime and benthics, this could take well over 
        six months to accomplish. How many hydrologic cycles will be 
        needed to prove restoration? If we have to require full cost 
        bonding for these stream restoration projects, how will this be 
        effectuated? How will we track these bonds in conjunction with 
        other reclamation bonds? How do we avoid duplication with bonds 
        required by the Corps under Section 404? How will sequencing 
        impact the permit revision process? For instance, even if mine 
        throughs are focused on form and function, if there are 
        multiple cuts that impact the same stream over and over (as is 
        often the case with multiple contour cuts in the Appalachian 
        coalfields and multiple dragline pits in the Midwest and West), 
        how will this impact the mining operation and permitting? Does 
        OSM envision the states using CHIA monitoring/networking 
        stations to measure off-site damage? How can we predict the 
        probability that the stream will be fully restored--are there 
        interim benchmarks anticipated?
          Monitoring requirements--there are potential right of 
        entry/access concerns for gathering some of this data off the 
        permit area that will need to be addressed. For biologic 
        monitoring--what system/standard of scoring do we use? Is there 
        an expectation of consistency among the states? For instance, 
        it has been suggested that biological monitoring would not be 
        required for ephemeral streams in the West. However, there is 
        some uncertainty associated with this issue given the fact that 
        the monitoring of biota in ephemeral streams is an emerging 
        area of science. The U.S. Geological Survey, under the 
        sponsorship of EPA, has been examining biological information 
        on ephemeral drainages and recent research at Pennsylvania 
        State University is focused on the biological component of 
        ``dry streams'', which may be analogous to ephemeral streams in 
        the West. How do we accurately attribute changes in stream 
        quality to mining, as opposed to some other activity--
        especially as the applicable watershed is expanded under the 
        rule? How far up and down the stream must we monitor--where is 
        the compliance point? It should be kept in mind that limiting 
        the percentage of a watershed has the potential for significant 
        implications, depending on how the watershed is defined. 
        Watersheds can vary in size from less than one square mile to 
        over a hundred square miles, especially in the West. Small 
        watersheds are sometimes completely disturbed by a single mine 
        and are reclaimed at a later time depending on pit advancement 
        and configuration. A constraint on the percentage of 
        disturbance would greatly limit operations that are dependent 
        upon large pits and large equipment. Finally, if the intent is 
        to address all impacts in a watershed, such a change would 
        likely overlap into land use planning, which would be outside 
        the authority of OSM and the states under SMCRA. It would also 
        require extensive program resources to undertake such planning.
          Backfilling and grading and approximate original 
        contour requirements--is OSM attempting to limit postmining 
        land uses, regardless of what a landowner may desire--
        especially where reforestation is concerned? What about 
        situations, as in West Virginia, where there is a mandate to 
        comply with county land development and master plans? We have 
        serious concerns about the impacts of bottom up fills and the 
        use of aquitards which can result in failure planes being 
        created in the fills, the overall stability of fills and 
        flooding potential.
          Coordination of permitting processes--if we attempt 
        to coordinate SMCRA and Clean Water Act permits, can we expect 
        to see mandated time frames for final action by EPA and the 
        Corps? We also have a concern that the more permitting activity 
        that is undertaken by the state mining agencies under the SMCRA 
        umbrella, the more these agencies will be expected to assume 
        duties that are currently those of state water quality 
        divisions. It will important to avoid duplication of effort and 
        have clear lines of authority.
    Without rehashing our previously articulated concerns about the 
need and justification for both the proposed rule and the accompanying 
EIS, we must object to the quality, completeness and accuracy of those 
portions of the draft EIS that we have had the opportunity to review 
and comment on so far. As indicated in the detailed comments the 
cooperating agency states have submitted to date, there are sections of 
the draft EIS that are often nonsensical and difficult to follow. Given 
that the draft EIS and proposed rule are intended to be national in 
scope, the states are also mystified by the paucity of information and 
analysis for those areas of the country beyond central Appalachia and 
the related tendency to simply expand the latter regional experience to 
the rest of the country in an effort to appear complete and 
comprehensive. In many respects, the draft EIS appears very much like a 
cut-and-paste exercise utilizing sometimes unrelated pieces from 
existing documents in an attempt to create a novel approach to the 
subject matter. The result so far has been a disjointed, unhelpful 
exercise that will do little to support OSM's rulemaking or survive 
legal challenges to the rule or the EIS.
    The states also have serious concerns regarding the constrained 
timeframes under which they have been operating to provide comments on 
these flawed documents. As the states have noted from the outset, and 
as members of Congress have also noted in letters to Secretary Salazar, 
the ability to provide meaningful comments on OSM's draft documents is 
extremely difficult with only five working days to review the material, 
some of which is fairly technical in nature. In order to comply with 
these deadlines, the states have had to devote considerable staff time 
to the preparation of their comments, generally to the exclusion of 
other pressing business such as permit reviews. While the states were 
prepared to reallocate resources to review and comment on the draft EIS 
Chapters, additional time would have allowed for a more efficient use 
of those resources and for the development of more in depth comments.
    The states understand that OSM is considering further adjustments 
to the time table for review of additional parts of the draft EIS. The 
stats are hopeful that in doing so, the agency will incorporate 
additional time for review by the cooperating agencies, especially 
given the size and complexity of the full draft EIS. The states have 
requested OSM to provide these new time tables as soon as possible so 
that the states can begin their own internal planning.
    As you know, several cooperating agency states testified before the 
Subcommittee's oversight hearing on September 26 regarding their 
concerns with both OSM's rulemaking and the EIS development process. 
Those comments are incorporated here by reference. The state of Ohio 
was also a participant in the EIS development process, although not as 
a formal cooperating agency. As noted above, Ohio also found the EIS 
process to be flawed and unworkable. Insufficient time was provided to 
review and comment on the various draft chapters and there was no 
meaningful feedback from OSM to the state comments that were provided. 
The rulemaking appears to be based on two relatively small research 
studies in the states of West Virginia and Kentucky with differing 
geology, stream morphology and aquatic resources than is found in Ohio. 
For this reason, Ohio is conducting its own study of the potential 
long-term impacts to stream resources following final reclamation on 
mine sites in various geographic regions of the state and that analysis 
should be completed by June of 2013.
    As part of its approved regulatory program, Ohio has undertaken 
efforts to limit impacts from mining to not only intermittent and 
perennial streams, but also in valuable headwater streams and habitat. 
Prohibition of permanent impoundments in streams and reconstruction of 
natural stream channels are an integral part of the program. Improved 
coordination with other state and federal agencies also insures 
protection and restoration of stream resources both during and after 
mining and reclamation. Ohio is concerned that if OSM were to move 
forward with the stream protection rule as drafted, it would result in 
a steep learning curve for current state program staff in both the 
permitting, technical review and enforcement areas. Additional 
specialized staff would be needed, including field biologists and 
hydrologists.
    In terms of the impacts to the Ohio coal mining industry, the state 
anticipates that it will be difficult to permit most surface and 
underground mining operations given the requirements of the proposed 
rule, especially when combined with EPA's proposed numeric effluent 
criteria for specific conductance and sulfates. This is particularly 
true with respect to treating the water using conventional active or 
passive treatment methods. Additionally, the proposed requirement to 
``hold bond until the hydrologic balance reaches equilibrium (including 
biological resources)'' would require an extension of the current 
maintenance period following final reclamation that could extend well 
beyond the current five years, thereby adding considerable costs.
    We appreciate the opportunity to provide these comments to the 
Subcommittee concerning OSM's proposed stream protection rule and 
associated EIS. We urge the Subcommittee to continue its investigation 
and oversight of the process with the goal of motivating OSM to 
reconsider the need for this rulemaking and the significant impacts it 
will have on state regulatory authorities and the communities we 
protect, as well as the industry we regulate.

                                 
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