[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]




 
WAR ON JOBS: EXAMINING THE OPERATIONS OF THE OFFICE OF SURFACE MINING 
             AND THE STATUS OF THE STREAM BUFFER ZONE RULE

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

                           OVERSIGHT HEARING

                               before the

                       SUBCOMMITTEE ON ENERGY AND
                           MINERAL RESOURCES

                                 of the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                         Tuesday, July 23, 2013

                               __________

                           Serial No. 113-35

                               __________

       Printed for the use of the Committee on Natural Resources



         Available via the World Wide Web: http://www.fdsys.gov
                                   or
          Committee address: http://naturalresources.house.gov
      


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                     COMMITTEE ON NATURAL RESOURCES

                       DOC HASTINGS, WA, Chairman
            PETER A. DeFAZIO, OR, Ranking Democratic Member

Don Young, AK                        Eni F. H. Faleomavaega, AS
Louie Gohmert, TX                    Frank Pallone, Jr., NJ
Rob Bishop, UT                       Grace F. Napolitano, CA
Doug Lamborn, CO                     Rush Holt, NJ
Robert J. Wittman, VA                Raul M. Grijalva, AZ
Paul C. Broun, GA                    Madeleine Z. Bordallo, GU
John Fleming, LA                     Jim Costa, CA
Tom McClintock, CA                   Gregorio Kilili Camacho Sablan, 
Glenn Thompson, PA                       CNMI
Cynthia M. Lummis, WY                Niki Tsongas, MA
Dan Benishek, MI                     Pedro R. Pierluisi, PR
Jeff Duncan, SC                      Colleen W. Hanabusa, HI
Scott R. Tipton, CO                  Tony Cardenas, CA
Paul A. Gosar, AZ                    Steven A. Horsford, NV
Raul R. Labrador, ID                 Jared Huffman, CA
Steve Southerland, II, FL            Raul Ruiz, CA
Bill Flores, TX                      Carol Shea-Porter, NH
Jon Runyan, NJ                       Alan S. Lowenthal, CA
Mark E. Amodei, NV                   Joe Garcia, FL
Markwayne Mullin, OK                 Matt Cartwright, PA
Chris Stewart, UT                    Vacancy
Steve Daines, MT
Kevin Cramer, ND
Doug LaMalfa, CA
Jason T. Smith, MO

                       Todd Young, Chief of Staff
                Lisa Pittman, Chief Legislative Counsel
                 Penny Dodge, Democratic Staff Director
                David Watkins, Democratic Chief Counsel
                                 ------                                

              SUBCOMMITTEE ON ENERGY AND MINERAL RESOURCES

                       DOUG LAMBORN, CO, Chairman
                RUSH HOLT, NJ, Ranking Democratic Member

Louie Gohmert, TX                    Steven A. Horsford, NV
Rob Bishop, UT                       Matt Cartwright, PA
Robert J. Wittman, VA                Jim Costa, CA
Paul C. Broun, GA                    Niki Tsongas, MA
John Fleming, LA                     Jared Huffman, CA
Glenn Thompson, PA                   Alan S. Lowenthal, CA
Cynthia M. Lummis, WY                Tony Cardenas, CA
Dan Benishek, MI                     Raul M. Grijalva, AZ
Jeff Duncan, SC                      Colleen W. Hanabusa, HI
Paul A. Gosar, AZ                    Joe Garcia, FL
Bill Flores, TX                      Vacancy
Mark E. Amodei, NV                   Vacancy
Chris Stewart, UT                    Vacancy
Steve Daines, MT                     Peter A. DeFazio, OR, ex officio
Kevin Cramer, ND
Doc Hastings, WA, ex officio
                                 ------                                
      

                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Tuesday, July 23, 2013...........................     1

Statement of Members:
    Huffman, Hon. Jared, a Representative in Congress from the 
      State of California........................................     4
        Prepared statement of....................................     6
    Lamborn, Hon. Doug, a Representative in Congress from the 
      State of Colorado..........................................     1
        Prepared statement of....................................     3

Statement of Witnesses:
    Pizarchik, Hon. Joseph G., Director, Office of Surface Mining 
      Reclamation and Enforcement, U.S. Department of the 
      Interior...................................................     7
        Prepared statement of....................................     8

                                     



  OVERSIGHT HEARING ON ``WAR ON JOBS: EXAMINING THE OPERATIONS OF THE 
   OFFICE OF SURFACE MINING AND THE STATUS OF THE STREAM BUFFER ZONE 
                                RULE.''

                              ----------                              


                         Tuesday, July 23, 2013

                     U.S. House of Representatives

              Subcommittee on Energy and Mineral Resources

                     Committee on Natural Resources

                            Washington, D.C.

                              ----------                              

    The Subcommittee met, pursuant to notice, at 10:05 a.m., in 
room 1324, Longworth House Office Building, Hon. Doug Lamborn 
[Chairman of the Subcommittee] presiding.
    Present: Representatives Lamborn, Wittman, Thompson, 
Lummis, Gosar, Cramer, Huffman, Cardenas, and Garcia.
    Also Present: Representative Johnson of Ohio.
    Mr. Lamborn. The Committee will come to order. The Chairman 
notes the presence of a quorum, which, under Rule 3(e), is two 
Members.
    The Subcommittee on Energy and Mineral Resources is meeting 
today to hear testimony on an oversight hearing titled, ``War 
on Jobs: Examining the Operations of the Office of Surface 
Mining and the Status of 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 to include any other Members' 
opening statements in the hearing record if submitted to the 
clerk by close of business today.
    [No response.]
    Mr. Lamborn. Hearing no objection, so ordered.
    I also ask unanimous consent that Representative Bill 
Johnson of Ohio, a former member of this Committee, be allowed 
to participate in today's hearing.
    [No response.]
    Mr. Lamborn. Hearing no objection, so ordered. I now 
recognize myself for 5 minutes.

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

    Mr. Lamborn. The people of the United States are desperate 
for jobs, as we now enter our 5th year of the Obama economy. In 
light of this, the President tomorrow will travel to Illinois 
to give a campaign speech calling for more action on jobs. Yet 
the American people do not need more rhetoric, especially when 
the agencies and departments of his Administration are going 
forward with their war on jobs and job creators.
    Some of the hardest hit have been our American coal miners. 
The coal industry lost 4,000 workers between 2011 and 2012. 
These workers are simply pleading for the Administration to 
stop the ongoing war on jobs and embrace a real agenda of job 
creation. Hence the Committee's focus on the Obama 
Administration's ongoing rewrite of a coal production 
regulation, the 2008 Stream Buffer Zone Rule.
    This rule was tossed out by the Obama Administration days 
after taking office, and never fully implemented, simply 
because they did not like it. In fact, in the Office of Surface 
Mining's June 18, 2010 Federal Register notice announcing the 
new stream protection rule, OSM Director Pizarchik, who we are 
going to hear from soon, thank you for being here, stated, ``We 
have already decided to change the rule following the change of 
Administrations on January 20, 2009.''
    Initially, the Administration tried to illegally vacate the 
rule. However, the court determined that doing so without 
public notice and comment would violate the Administrative 
Procedures Act, and said that OSM could only change or revoke 
the regulations by going through a formal rulemaking process.
    So, instead, the Department reached an out-of-court 
settlement with environmental groups, agreeing to an expedited 
timeframe for writing the rule. It was supposed to be issued by 
February 28, 2011, 2\1/2\ years ago. This is a glaring example 
of the non-transparent policy of sue-and-settle, driving the 
development of public policy. Unfortunately, this settlement 
and the decision to discard years of work and create a new rule 
got caught up in the Administration's failure to responsibly 
manage the process.
    When the results of this reckless rewrite became public, 
including projections of massive job losses, reprogramming of 
State monies to pay for the rule, failure to responsibly 
consult with States and Tribes, and, finally, the controversial 
firing of the contractors initially hired to facilitate the 
rewrite, this Committee initiated its ongoing investigation 
into the matter.
    Let's be clear about the Administration's legacy on this 
effort. So far, the Administration has spent nearly $9 million 
rewriting a rule that was never implemented. That is an 
important point, since the 2008 rule was never enacted so that 
the Administration can't actually say what the problems are 
with it that would need to be addressed with a new rule.
    Furthermore, the ongoing inability to actually conduct 
rulemaking means the draft of the rewrite isn't anticipated 
until late in 2014. Maybe that is why in late January 2013 
environmental groups announced that they were reopening their 
lawsuit on the 2008 Stream Buffer Zone Rule, since the 
Department has missed all the agreed-upon deadlines. Since that 
announcement, this Committee, as part of our ongoing 
investigation, sent two letters requesting information about 
the Department's communications with the Plaintiffs and the 
status of the litigation. Five months later, we received some 
of the documents requested.
    However, as I pointed out to Secretary Jewell last week, 
these documents are not useful, due to their extensive 
redactions. And in an ongoing pattern of deception, the 
Department forgot to mention that they were filing documents 
with the court just last Wednesday.
    Apparently, the Department does not understand that this 
Committee has a constitutional duty to conduct proper 
oversight. By not complying with the Committee's request for 
information and subpoenas, treating them as FOIA requests, 
which they are not, this is the opposite of the so-called 
transparency and openness goals of this Administration. 
Everything associated with the rewrite of the 2008 Stream 
Buffer Zone Rule has been secretive, reckless, wasteful, and 
unnecessary.
    Meanwhile, coal miners are losing jobs. The regulatory 
uncertainty is stifling investment and leaving our partner 
States to issue permits with a 1983 law that does need some 
refinement. Tomorrow, when the President calls on new policies 
for creating jobs, his first call should be to stop the 
reckless Office of Surface Mining Rulemaking and restore 
certainty to our miners.
    [The prepared statement of Mr. Lamborn follows:]

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

    The people of the United States are desperate for jobs as we now 
enter our fifth year of the Obama economy. In light of this, the 
President tomorrow will travel to Illinois to hold a campaign speech 
calling for more action on jobs. Yet the American people do not need 
more empty rhetoric, especially when the agencies and Departments of 
his Administration will continue forward with their war on jobs and job 
creators.
    Some of the hardest hit have been our American coal miners--the 
coal industry lost 4,000 workers between 2011 and 2012. These workers 
are simply pleading for the Administration to stop the ongoing war on 
jobs and embrace a real agenda of job creation.
    Hence the Committee's focus on the Obama Administration's ongoing 
re-write of a coal production regulation, the 2008 Stream Buffer Zone 
Rule. This rule was tossed out by the Obama Administration days after 
taking office and never fully implemented because they simply decided 
they didn't like it.
    In fact, in the Office of Surface Mining's June 18, 2010 Federal 
Register Notice announcing the new ``Stream Protection Rule'' OSM 
Director Pizarchik stated: ``we had already decided to change the rule 
following the change of Administrations on January 20, 2009.''
    Initially, the Administration tried to illegally vacate the rule, 
however the court determined that doing so without public notice and 
comment would violate the Administrative Procedures Act, and said that 
OSM could only change or revoke the regulations by going through a 
formal rule making process.
    So instead, the Department reached an out-of-court settlement with 
environmental groups agreeing to an expedited time frame for writing 
the rule--it was supposed to be issued by February 28, 2011--two and a 
half years ago; a stellar example of the non-transparent practice of 
Sue and Settle driving the development of public policy.
    Unfortunately, this settlement and the decision to discard years of 
work and create a new rule ran into the Administration's failure to 
responsibly manage the process. When the results of this reckless re-
write became public--including projections of massive job losses, 
reprograming of State monies to pay for the rule, failure to 
responsibly consult with states and tribes, and finally the firing of 
the contractors hired to facilitate the re-write of the rule--the 
Committee initiated its on-going investigation into the matter.
    Let's be clear about the Administration's legacy on this effort. So 
far the Administration has spent nearly $9 million taxpayer dollars re-
writing a rule that was never implemented. That is an important point 
because since the 2008 rule was never enacted the Administration 
actually has no idea if there are any problems with the rule that might 
need to be addressed with a new rule. Furthermore the ongoing inability 
to actually conduct rulemaking means the draft of the re-write isn't 
anticipated until late in 2014.
    Maybe that's why in late January 2013 environmental groups 
announced that they were reopening their lawsuit on the 2008 `Stream 
Buffer Zone Rule' since the Department has missed all of the agreed 
upon deadlines.
    Since that announcement, the Committee as part of our ongoing 
investigation sent two letters requesting information about the 
Department's communications with the plaintiffs and the status of the 
litigation.
    Five months later we received some of the documents requested. 
However, as I pointed out to Secretary Jewell last week, these 
documents are not particularly useful due to the extensive redactions. 
And in an ongoing pattern of deception, somehow the Department forgot 
to mention that they were filing documents with the court just last 
Wednesday.
    Apparently the Department, including Secretary Jewell, does not 
understand that this Committee has a constitutional duty to conduct 
proper oversight.
    By not complying with the Committee's requests for information and 
Subpoenas--treating them as FOIA requests, which they are not, is the 
opposite of the `Transparency and Openness goals'' of this 
Administration.
    Everything associated with the re-write of the 2008 rule has been 
secretive, reckless and wasteful.
    Meanwhile, coal miners are losing jobs; the regulatory uncertainty 
is stifling investment and leaving our partner states to permit with a 
1983 law that needs some refinement. Tomorrow when the President calls 
on new policies for creating jobs, his first call should be to stop the 
reckless OSM rulemaking and restore certainty to our miners.
                                 ______
                                 
    Mr. Lamborn. I would now like to recognize the Ranking 
Member, Acting Ranking Member.

   STATEMENT OF THE HON. JARED HUFFMAN, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. Huffman. Thank you, Mr. Chairman. Today's hearing 
continues a more than 2-year effort by the Committee Majority 
to stop the Office of Surface Mining from protecting 
Appalachian streams and communities from destructive 
mountaintop removal mining.
    I think it is important to remember what this mountaintop 
removal process is all about. Waste from mountaintop removal 
mining has buried or despoiled 2,000 miles of Appalachian 
streams over the last 30 years. New research also links this 
type of mining with cancer, birth defects, lung and heart 
disease, and other adverse health effects. Nonetheless, 
President George W. Bush and his Administration issued a 
midnight regulation that loosened Reagan-era restrictions on 
the dumping of mining waste in or near streams.
    Now, the Majority blames OSM, the Office of Surface Mining, 
and the Obama Administration for acting to fix the Bush rule. 
But the blame really should lie with the Bush Administration, 
which failed to provide either a reasoned explanation or an 
evidentiary basis for its action. They ignored evidence of 
adverse environmental impacts and claimed, without supporting 
evidence, that their rule would ``positively impact the 
environment.'' The Bush rule was likely to be thrown out in 
court for all of these reasons.
    Now, with the Appalachian region dangerously exposed to the 
ravages of mountaintop removal mining, the Obama Administration 
had no choice but to initiate a new rulemaking to revise the 
Bush Administration's rule. Now, the Majority has charged that 
OSM has recklessly rushed this rulemaking. So let's step back 
for a moment and talk about where this process actually stands.
    OSM has been analyzing and deliberating over options for a 
new stream protection rule for the last 3 years. During that 
time, OSM has overseen unprecedented outreach sessions with 
coal companies and other stakeholders, and solicited comments 
from the public, which the Agency was under no requirement to 
do at this early stage. The Agency has already received more 
than 50,000 comments on its stream protection rulemaking.
    Now, this is more comments, by the way, than were received 
during the entire Bush rulemaking, even though OSM has not even 
issued a proposed rule yet. That is right. Despite the 
Majority's claims about the dire consequences of a new stream 
protection rule, despite the loaded title of this hearing, 
``The War on Jobs,'' OSM hasn't even issued a proposed rule and 
supporting analysis that could form the basis for any serious 
critique.
    Once a proposed rule is actually issued, this Committee can 
have a reasoned debate about what the proposed rule would and 
wouldn't do. Members of the public, including coal companies, 
would have a chance to weigh in and offer their perspective. 
And OSM will be required to consider these outside 
perspectives, and may adjust its proposed rulemaking based on 
that input before adopting a final rule that actually has the 
force of law. But at this point the Committee Majority is just 
making blind assertions about the consequences of a rule that 
doesn't exist and which no one has seen.
    Now, let me say a few words about the Majority's 
investigation into this rulemaking. We, in the Minority, 
believe that congressional oversight is actually vital to a 
well-functioning government. But the Majority's endless and 
frivolous document requests are wasting taxpayers' money, and 
diverting OSM and the Interior Department from their core 
responsibilities of serving the American people.
    The Interior Department has already produced more than 
14,000 pages of documents in response to the Majority's 
inquiries. The Majority has also received documents from the 
Office of Management and Budget, the EPA, the Army Corps of 
Engineers. And contractors that worked on the rulemaking have 
provided almost 7,000 pages of documents and roughly 25 hours 
of audio recordings of meetings with OSM officials. In all of 
these materials, there is no evidence that OSM or the 
Administration have done anything improper.
    In fact, the documents refute the Majority's allegations, 
as shown in a report from the Committee's Democratic staff last 
year. And the Majority was unable to find anything significant 
in all those hours of audio tape. The few snippets of tape used 
by the Majority to attack stream protection rulemaking have 
been flagrantly misrepresented, as discussed the last time Mr. 
Pizarchik was before this Committee.
    Committee Republicans should end their wasteful and 
baseless investigation, and make their case on the merits. Why 
should we continue allowing mountaintop removal mining to bury 
hundreds of miles of Appalachian streams, destroy mountain 
towns, and threaten people in the region with cancer, lung and 
heart disease, and other problems? We in the Minority welcome 
that debate.
    But we should see what OSM actually proposes first. Today's 
hearing is a premature sideshow.
    And I yield back.
    [The prepared statement of Mr. Huffman follows:]

      Statement of The Honorable Jared Huffman, a Representative 
                in Congress from the State of California

    Thank you Mr. Chairman. Today's hearing continues a more than two-
year effort by the Committee Majority to stop the Office of Surface 
Mining from protecting Appalachian streams and communities from 
destructive mountaintop removal mining.
    Waste from mountaintop removal mining has buried or despoiled 
nearly 2,000 miles of Appalachian streams over the last 30 years. New 
research also links this type of mining with cancer, birth defects, 
lung and heart disease, and other adverse health effects. Nonetheless, 
the George W. Bush administration issued a midnight regulation that 
loosened Reagan-era restrictions on the dumping of mining waste in or 
near streams.
    The Majority blames OSM and the Obama administration for acting to 
fix the Bush rule. But blame should lie with the Bush administration, 
which failed to provide either a reasoned explanation or an evidentiary 
basis for its action, ignored evidence of adverse environmental 
impacts, and claimed without supporting evidence that the rule would 
``positively impact the environment.'' The Bush rule was likely to be 
thrown out in court for these reasons.
    With the Appalachia region dangerously exposed to the ravages of 
mountaintop removal mining, the Obama administration had no choice but 
to initiate a new rulemaking to revise the Bush rule.
    The Majority has charged that OSM has ``recklessly rushed'' this 
rulemaking, so let's step back now and talk about where the process 
stands.
    OSM has been analyzing and deliberating over options for a new 
Stream Protection rule for the last three years. During that time, OSM 
has overseen unprecedented outreach sessions with coal companies and 
other stakeholders and solicited comments from the public, which the 
agency was under no requirement to do at this early stage. OSM has 
already received more than 50,000 public comments on its Stream 
Protection rulemaking.
    This is more comments, by the way, than were received during the 
entire Bush rulemaking, even though OSM has not issued a proposed rule 
yet.
    That's right: Despite the Majority's claims about the dire 
consequences of a new Stream Protection rule, OSM hasn't even issued a 
proposed rule and supporting analysis that could form the basis of 
critique.
    Once a proposed rule is issued, this Committee can have a reasoned 
debate about what the proposal will and won't do. Members of the 
public, including coal companies, will have a chance to weigh in and 
offer their perspectives. And OSM will be required to consider these 
outside perspectives--and may adjust its proposal based on that input--
before adopting a final rule that has the force of law.
    At this point, however, the Committee Majority is just making blind 
assertions about the consequences of a rule that doesn't exist and no 
one has seen.
    Now let me say a few words about the Majority's investigation into 
this rulemaking. We in the Minority believe that congressional 
oversight is vital to a well-functioning government, but the Majority's 
endless and frivolous document requests are wasting taxpayer money and 
diverting OSM and the Interior Department from their core 
responsibilities of serving the American people.
    The Interior Department has produced around 14,000 pages of 
documents in response to the Majority's inquiries related to this 
rulemaking. The Majority has also received documents from the Office of 
Management and Budget, EPA, and the Army Corps of Engineers. And 
contractors that worked on the rulemaking have provided almost 7,000 
pages of documents and roughly 25 hours of audio recordings of meetings 
with OSM officials.
    In all of these materials, there is no evidence that OSM or the 
administration have done anything improper. In fact, the documents 
refute the Majority's allegations--as shown in a report from the 
Committee's Democratic staff last year--and the Majority was unable to 
find anything significant in all those hours of tape.
    The few snippets of tape used by the Majority to attack the Stream 
Protection rulemaking have been flagrantly misrepresented, as discussed 
the last time Mr. Pizarchik was before this Committee.
    Committee Republicans should end their wasteful and baseless 
investigation, and make their case on the merits: Why should we 
continue allowing mountaintop removal mining to bury hundreds of miles 
of Appalachian streams, destroy mountain towns, and threaten people in 
the region with cancer, lung and heart disease, and other health 
problems?
    We in the Minority welcome that debate, but we should see what OSM 
proposes first. Today's hearing is a premature sideshow.
                                 ______
                                 
    Mr. Lamborn. We will now hear from our witness. I would 
like to welcome The Honorable Joe Pizarchik, Director of the 
Office of Surface Mining, Reclamation, and Enforcement of the 
Department of the Interior.
    Like all of our witnesses, your written testimony will 
appear in full in the hearing record, so I will ask that you 
keep your oral statement to 5 minutes. Our microphones are not 
automatic, so you need to turn them on when you begin speaking.
    I also want to explain how our timing lights work. When you 
begin to speak, our Clerk will start the timer, and a green 
light will appear. After 4 minutes a yellow light will appear. 
And then, after 5 minutes, the red light comes on and I would 
ask that you conclude at that time.
    Director Pizarchik, thank you for being here, and you may 
begin.

  STATEMENT OF JOSEPH G. PIZARCHIK, DIRECTOR OF THE OFFICE OF 
 SURFACE MINING RECLAMATION AND ENFORCEMENT, DEPARTMENT OF THE 
                            INTERIOR

    Mr. Pizarchik. I thank you, Chairman Lamborn and Ranking 
Member Huffman and members of the Committee, for the 
opportunity to testify on behalf of the Office of Surface 
Mining Reclamation and Enforcement regarding our operations, 
the status of the Stream Buffer Zone Rule and, equally as 
important, the Bureau's proposed rulemaking to better protect 
streams from the adverse effects of coal mining. As always, we 
look forward to working with you on matters relating to our 
mission under the Surface Mining Control and Reclamation Act.
    Congress gave us its regulatory authority and our 
responsibilities 36 years ago when it passed SMCRA and mandated 
that we strike a balance between protecting the environment and 
helping provide for the Nation's energy needs. OSM was 
established to carry out two basic functions.
    First, we are to ensure that mines operate in a manner that 
protects both people and the environment, and that the land is 
restored and is as productive after mining as it was before 
mining.
    Second, we are to provide an abandoned mine land program to 
address hazards to people and the environment that were created 
during the mining for more than 200 years of largely 
unregulated mining.
    As Interior Secretary Sally Jewell has stated, ``Our 
commitment to the President's all-of-the-above energy strategy 
will enable us to continue with the safe and environmentally 
responsible expansion and diversification of our Nation's 
energy production, further reducing our reliance on foreign 
oil, and protecting our land and water at the same time.'' 
Protecting people, land, water, and the environment, and 
providing for responsible coal mining are not mutually 
exclusive. We can have both.
    The all-of-the-above energy strategy is working. Activity 
in the Gulf of Mexico exceeds levels before the Deepwater 
Horizon spill. Onshore oil production from Federal lands is at 
its highest level in over a decade. Although OSM is not 
involved in coal leasing, the Administration is also making 
more coal available. In 2012, the Bureau of Land Management 
leased more coal than at any other time since 2003.
    Along with responsible oil and gas development and the 
growth of clean, renewable energy, the production of coal is an 
important component of this Nation's energy portfolio, as 
evidenced by the President's support for clean coal technology. 
The responsible development of this resource is a key part of 
America's energy and economic security. Coal will remain an 
important part of our energy mix for years to come.
    In December of 2008, OSM published a final rule that 
modified the circumstances under which mining can occur in or 
near streams. It is called the Stream Buffer Zone Rule, and has 
been challenged in court by 10 organizations. While the 
litigation has been pending, the Department has identified 
additional considerations that the 2008 rule did not address.
    There have been significant advances in science and 
technology since the adoption of the 1983 rule that were not 
addressed in the 2008 rule. Incorporating the most up-to-date 
science, technology, and knowledge concerning the effects of 
coal mining is essential to developing modern regulations. In 
addition, the 2008 rule did not provide objective standards for 
certain important decisions. Therefore, OSM began work to 
modernize its regulations, incorporating new science, 
technology, and the best practices in areas that can improve, 
update, and more completely implement the law.
    Many scientific advances have occurred in the past 30 
years. In accordance with the law, OSM can and should consider 
those advances when modernizing its regulations. The 2008 rule 
did not incorporate the most modern technology and science that 
were available at that time, nor does the rule reflect the 
scientific advances that have occurred since that rule was 
adopted.
    The revised rule that incorporates modern science, 
technology, knowledge, and best practices will enable the 
industry to do a better job and, in many cases, their work 
being done in a more economic and efficient manner. These goals 
are fully consistent with Congress's mandate, while also 
retaining much needed well-paying jobs and generating revenue 
in the Nation's energy fields.
    As we develop the rule we are considering ways to improve 
the key provisions of the law in order to be able to minimize 
disturbances to fish, wildlife, and related environmental 
values, as is required by the law.
    The development of the proposed rule is an iterative and 
interactive process. We develop each in concert with the other. 
The cost-benefit analysis and the potential rule changes help 
inform the decision of what should be in the proposed rule. OSM 
plans to publish the proposed rule in 2014. Consistent with the 
law, we will ask interested stakeholders and the public to read 
and comment on the proposed rule and draft EIS once those 
documents have been finalized and are available.
    Thank you for the opportunity to be here today. I am 
available, should you have any questions.
    [The prepared statement of Mr. Pizarchik follows:]

 Statement of Joseph G. Pizarchik, Director, Office of Surface Mining 
      Reclamation and Enforcement, U.S. Department of the Interior

I. INTRODUCTION
    Mister Chairman and Members of the Subcommittee, thank you for the 
opportunity to testify on behalf of the Office of Surface Mining 
Reclamation and Enforcement (OSM) regarding our operations, the status 
of the Stream Buffer Zone Rule, and equally as important, the bureau's 
proposed rulemaking to better protect streams from the adverse effects 
of coal mining. As always, OSM looks forward to working with you on 
matters relating to its mission under the Surface Mining Control and 
Reclamation Act (SMCRA).
    Congress gave OSM its regulatory authority and responsibilities 
nearly 36 years ago when it passed SMCRA. At that time, Congress 
mandated that OSM strike a balance between protecting the environment 
and providing for the nation's energy needs. Specifically, Congress 
established the bureau to carry out two basic functions. First, we are 
to ensure that coal mines operate in a manner that protects both people 
and the environment, and that the land is restored and is as productive 
after mining as it was before mining. Second, we are to provide an 
Abandoned Mine Land program to address hazards to people and the 
environment that were created during the more than two hundred years 
before SMCRA's enactment when coal mining was largely unregulated.
    As Interior Secretary Sally Jewell has stated, our commitment to 
the President's ``all of the above'' energy strategy will enable us to 
continue with the safe and environmentally responsible expansion and 
diversification of our nation's energy production, further reducing our 
reliance on foreign oil, and protecting our land and water at the same 
time. Protecting people, land, water, and the environment and promoting 
responsible coal mining are not mutually exclusive. We can have both.
    The ``all of the above'' energy strategy is working. Activity in 
the Gulf of Mexico exceeds levels before the Deepwater Horizon spill. 
Onshore, oil production from Federal lands is at its highest level in 
over a decade.
    Although OSM is not involved in coal leasing, which is conducted by 
the Bureau of Land Management, the Administration is also making more 
coal available, with the number of producing acres rising four percent 
from FY 2009 to FY 2012. In fact, in FY 2012, the Bureau of Land 
Management leased more coal than at any other time since FY 2003.
    Under SMCRA, most states have primary responsibility, also known as 
``primacy'' under SMCRA, to protect people and the environment from the 
adverse effects of surface coal mining. At OSM, we provide assistance 
to, and oversight of, primacy states to help ensure proper regulation 
of surface coal mining and the protection of people and the 
environment. We are also continuing the reclamation of high-priority 
abandoned mine sites, and are reducing the number of remaining 
dangerous abandoned mine sites nationwide.
    Along with responsible oil and gas development and the growth of 
clean, renewable energy, the production of coal is an important 
component of our nation's energy portfolio, and the responsible 
development of this important resource is a key part of America's 
energy and economic security. Coal will remain an important part of our 
energy mix for years to come. We are committed to safe, responsible 
coal production and the jobs it supports.

II. UPDATE ON STREAM BUFFER ZONE RULE
    In December 2008, OSM published a final rule that modified the 
circumstances under which mining can occur in or near streams. The 
``Stream Buffer Zone Rule'' (or ``2008 SBZ Rule'') has been challenged 
by ten organizations in two separate complaints filed in District Court 
for alleged legal deficiencies.
    While the litigation has been pending, the Department of the 
Interior has identified additional considerations that the 2008 SBZ 
Rule did not address. As a threshold matter, there have been 
significant advances in science and technology since the promulgation 
of the 1983 rule that were not addressed in the 2008 SBZ Rule. 
Incorporating the most up-to-date science, technology, and knowledge 
concerning the effects of surface coal mining is essential to 
developing maximally beneficial modern regulations. In addition, the 
2008 SBZ Rule did not provide objective standards for certain important 
regulatory decisions, such as a requirement to collect baseline 
information about pre-mining conditions so that the regulatory 
authority can accurately assess the impacts of mining and assure proper 
reclamation. Therefore, OSM began work to modernize its regulations, 
incorporating new science, technology, and knowledge in areas that can 
improve, update, and more completely implement SMCRA.
    Many scientific advances have occurred in the past 30 years. Under 
SMCRA, OSM can and should consider those advances when modernizing its 
rules. The 2008 SBZ Rule, now almost five years old, did not 
incorporate the most modern technology and science that were available 
at that time, nor does the rule reflect the scientific advances that 
have occurred since the rule was promulgated. That is one reason why, 
combining OSM's on-the-ground experience with peer-reviewed academic 
study, we are modernizing our rules and using the best available 
technology and science to improve mining practices in order to minimize 
and mitigate environmental damage from surface coal mining.
    A revised rule that incorporates modern science, technology, and 
knowledge will enable the coal industry to do a better job of 
reclaiming the land and restoring natural resources, and in many cases, 
will lead to that work being done in a more economical and efficient 
manner. These goals are fully consistent with Congress' mandate and 
OSM's mission, while also retaining much-needed, well-paying jobs, and 
generating revenue in the nation's coal-producing regions.
    As we proceed with development of the Stream Protection Rule, we 
are considering ways to improve key provisions. SMCRA requires that 
surface coal mining and reclamation operations be conducted to minimize 
disturbances to fish, wildlife, and related environmental values ``to 
the extent possible using the best technology currently available.'' We 
are considering revisions that will provide solid benchmarks for 
companies to meet, and that will be based on the latest accepted 
scientific methods. Clear and uniform standards provide greater 
predictability and certainty to the mining industry, and can better 
protect affected communities.
    OSM will also consider the extensive public and agency comments it 
has received to date on the Stream Protection Rule. Further, it will 
consider the benefits, as well as the costs, of the agency's regulatory 
alternatives. Development of the proposed rule language and the Draft 
EIS is an iterative and interactive process; we are developing each in 
concert with the other. The cost/benefit analysis of potential rule 
changes helps inform the decisions of what should be included in the 
proposed rule. OSM plans to publish a proposed rule and associated 
Draft EIS in 2014.
    Consistent with SMCRA, the National Environmental Policy Act, the 
Administrative Procedure Act, and other applicable laws, we will ask 
interested stakeholders--whether from Congress, industry, environmental 
organizations, or members of the public--to read and comment on the 
proposed rule and Draft EIS once those documents have been published. 
We have received extensive input from the public, states, and other 
Federal agencies on issues that we will consider in drafting the 
proposed rule, including more than 32,000 comments in 2009, and more 
than 20,000 after we held public scoping meetings in 2010. We look 
forward to additional public review and comment on the proposed rule 
and Draft EIS once they are published.

III. CONCLUSION
    Thank you for the opportunity to appear before the Committee today 
to testify on operations of OSM, the Stream Buffer Zone Rule, and the 
development of OSM's Stream Protection Rule. Our efforts will result in 
regulatory improvements that will more completely implement the law, 
make use of the best available science and technology, better protect 
streams nationwide, and provide greater clarity and certainty to the 
mining industry and the affected communities.
    We remain committed to providing ample opportunity through the 
rulemaking process for the Congress, public, industry, stakeholders, 
and others to provide input on the proposed rule that will help us 
develop a balanced and responsible final rule.
    I look forward to working with you to ensure that we protect the 
nation's land and water while meeting its energy needs.
                                 ______
                                 
    Mr. Lamborn. All right. Thank you for your statement. Thank 
you for being available to answer questions. I will go ahead 
and jump in.
    Mr. Director, in the audio recordings, the Committee found 
last year that there were clips of OSM staff directly 
explaining that it was ``the Director's goal,'' that is your 
goal, to make coal mining companies ``make a decision are they 
willing to risk their ability to ever mine coal again against 
the possibility that they won't be able to restore the 
stream.''
    As Director of OSM, is it still your goal to use forfeiture 
rules to drive coal companies out of business with the new 
regulation?
    Mr. Pizarchik. What the law provides is that in order to 
assure mining, the applicant can only mine where they can 
restore the land where mining is feasible. The law requires 
them to post a bond to ensure that they meet their statutory 
requirements. That is under Section 509. And if they do not 
fulfill their requirements, the law also requires that their 
bonds be forfeited.
    Now, the comments that you were talking about refer to the 
mere market conditions. What we are trying to do, what staff 
was trying to explain was that in the free market economics set 
forth in the statute, that the mine operator has the option and 
the duty to figure out whether it is technologically and 
economically feasible to mine that coal and to restore the 
land, as is required by the law.
    Mr. Lamborn. So, driving companies out of business is not 
the intention, or is the intention?
    Mr. Pizarchik. No, it is not. In fact, what we are trying 
to do is modernize our regulations to help ensure that we have 
a strong, viable industry so they do not undertake mining that 
would result in excessive liabilities for perpetual treatment 
of their water. I have seen that happen in Pennsylvania years 
ago. And sometimes in the competitive world of business they 
make short-term business decisions that----
    Mr. Lamborn. OK.
    Mr. Pizarchik [continuing]. End up costing them their 
livelihood and the jobs that they actually provide.
    Mr. Lamborn. Now, Mr. Director, OSM continues to contract 
with many of the same contractors that began working on this 
rule 4 years ago, and some are different. Can you tell the 
Committee whether the contractors responsible for drafting the 
EIS and the RIA have been instructed, for the purpose of this 
rulemaking, to pretend that the 2008 rule is in effect and 
being implemented across the country, or whether they were 
instructed to use on-the-ground factual information for their 
research?
    Mr. Pizarchik. Our job is to uphold and implement the laws 
of the land. Under the laws of the land, as I understand it, 
that requires a baseline to take into consideration all the 
regulations that are on the books at the time when we are 
promulgating the new regulations. And according with that, the 
first contractor and the second contractor are looking at what 
are all the regulations.
    The first contractor included that in Chapters 1 and 2 and 
the first parts of Chapter 4, then inexplicably disregarded the 
2008 rule when doing some of the cost benefit analysis in the 
latter parts of Chapter 4.
    Mr. Lamborn. Now, let me just step back, Mr. Director, and 
look at the intention of the rule, or the impact of the rule. 
Is it the intention of the Office of Surface Mining for the 
Stream Buffer Zone Rule to affect the production of longwall 
mining?
    Mr. Pizarchik. The Stream Buffer Zone Rule that is in 
effect I don't believe specifically addresses longwall mining. 
If you are talking about the rules that we are working to 
develop on the stream protection rule--is that which one you 
are asking----
    Mr. Lamborn. Yes, Mr. Director.
    Mr. Pizarchik. OK.
    Mr. Lamborn. The proposed rule that you are working on.
    Mr. Pizarchik. All right. The Surface Mining Act, the law, 
since its inception, has always required any type of coal 
mining to not cause material damage in areas adjacent to it. So 
the law has always required for underground mining, longwall 
mining, surface mining, not to cause material damage to streams 
adjacent to the permitted mining operation.
    Mr. Lamborn. So it is the intention of OSM to affect the 
production of longwall mining through the proposed rule.
    Mr. Pizarchik. No. What our intent is is to better protect 
streams and to more completely implement the statute the way it 
was written in 1977 to protect streams from the adverse effects 
of coal mining. That would include longwall mining as well as 
surface mining.
    Mr. Lamborn. OK, thank you. I would now recognize the 
Ranking Member.
    Mr. Huffman. Thank you, Mr. Chairman, and welcome, Director 
Pizarchik. Director Pizarchik, the Surface Mining Control and 
Reclamation Act requires OSM to set standards based on best-
available technology, and to minimize disturbances and adverse 
impacts of surface mining.
    Now, since the Bush Administration issued its Stream Buffer 
Zone Rule in 2008, there has been a growing body of research, 
including several studies in 2011 and 2012, that show 
mountaintop removal mines not only ruin ecosystems, but can 
cause human health effects like cardio-vascular disease, 
cancer, birth defects, and poor overall health.
    Doesn't OSM have a legal responsibility to adjust its rules 
according to the evolving science about the dangers of 
mountaintop removal mining? And are you considering this new 
research as you develop the proposed rule?
    Mr. Pizarchik. Yes, we do have that duty. The statute 
imposes the obligation to use the most correct technology and 
the best methods to minimize it. And part of our efforts on 
developing the stream protection rule is to look at all of the 
existing science, available science, emerging science, and 
appropriately consider that in our rulemaking process.
    Mr. Huffman. Thank you. Director Pizarchik, the Majority 
has made a lot of accusations about the consequences of a new 
stream protection rule. But I want to ask you about the 
rifeness of these accusations and whether they are premature.
    As required by both statute and Executive order, you are 
going to have to engage in a robust economic analysis, 
including an assessment of costs and benefits, as part of your 
rulemaking, once a proposed rule is actually issued. That 
proposed rule will then be subject to extensive public comment, 
which will inform the final rule that, again, will have to 
contain a cost benefit analysis.
    So, in light of all that, my question to you is whether the 
conversation we are having today is premature, when a rule 
hasn't even been issued.
    Mr. Pizarchik. Yes, sir, it is, because we are still in the 
process of developing that rule. We do not yet know what will 
be in that proposed rule.
    Mr. Huffman. And isn't it true that the analysis you are 
doing is precisely to ensure that the benefits of a new stream 
protection rule will outweigh the costs?
    Mr. Pizarchik. Yes, sir. That is what the law requires us 
to do.
    Mr. Huffman. And just to be clear, coal companies, even 
Members of Congress and other outside parties, will have an 
opportunity to weigh in on your proposed rule and the 
accompanying economic analysis, once that work is complete. Is 
that correct?
    Mr. Pizarchik. Absolutely, sir.
    Mr. Huffman. Director Pizarchik, I want to ask you about 
Patriot Coal. This is the second-largest producer of surface-
mined coal in West Virginia. And they agreed late last year to 
abandon mountaintop removal mining. According to their CEO, 
``We recognize that our mining operations impact the 
communities in which we operate in significant ways.'' And 
abandoning mountaintop removal ``will result in a reduction of 
our environmental footprint.'' So even coal companies are 
acknowledging what the Majority today fails to understand, that 
mountaintop removal mining is dangerous. We risk great harm to 
children and families in surrounding communities without 
meaningful protections.
    Mr. Director, what risks to the environment and community 
has caused your Agency to initiate the stream protection 
rulemaking, and why are stronger protections needed?
    Mr. Pizarchik. There are a number of risks with that. In 
regards to the mountaintop removal mining, science is showing 
that we have selenium poisoning the streams and the aquatic 
communities from some of the mines. There are high levels of 
total-dissolved solids that are adversely affecting the aquatic 
communities, and sometimes have resulted in fishkills. There 
are dust issues and concerns that come off that, but are beyond 
our authority.
    What we are trying to do is use the most modern science to 
adequately protect the public with the best technology 
available.
    Mr. Huffman. Thank you for your testimony. I will yield the 
balance of my time.
    Mr. Lamborn. OK, thank you. And I would like to recognize 
Mr. Gosar.
    Dr. Gosar. Mr. Director, do you believe in the rule of law?
    Mr. Pizarchik. Yes, sir.
    Dr. Gosar. And how about your science? How do you look at 
your science, the facts of science? Are they peer-reviewed 
science? By the way, I am a science guy, so I am really curious 
about how we look at science from----
    Mr. Pizarchik. From our standpoint, as far as the 
rulemaking, we are considering all the science. Peer-reviewed 
science obviously has more value to it, and is part of our----
    Dr. Gosar. Has more value. So let me stop you right there. 
So it has more value, but other, unsubstantiated science you 
can use. I mean, because that is what you just said.
    Mr. Pizarchik. My understanding is the----
    Dr. Gosar. No, no, no. Your understanding. I want to know 
how you apply it. I mean you are the Director; you should know 
how you apply it.
    Mr. Pizarchik. That is what I am about to answer, sir.
    It is my understanding that the staff is considering all 
the science that is available. They are the ones who will be 
making the decisions and looking at what the science is and 
what should be considered. Whatever science we have available 
and what has been considered will be documented in the 
documents that we produce, the draft EIS. So the public, 
scientists like yourself, everyone, will have the opportunity 
to review and comment on that. And if we miss something or have 
other things, we will be able to provide their input----
    Dr. Gosar. I am glad you brought that up. Because, I am 
sitting here from Arizona, from the Navajo Generating Station, 
and the whole decision process isn't even made on science. It 
is just not even on science. And so I am also one of these guys 
about trust is a series of promises kept, about having that 
stewardship. I want my environment clean, too, but I also want 
it based on science, reputable science, and having a dialog.
    And that is why I am kind of having a problem here, because 
I have seen past inferences, and then you provide this track 
record of not complying with some type of oversight with 
Congress. I mean, we get these things severely redacted. I mean 
it seems like this is an MO with this Administration, which 
brings me to another question.
    Is there new technology in law?
    Mr. Pizarchik. I am sorry, could you repeat that?
    Dr. Gosar. Yes. Is there new technology in law?
    Mr. Pizarchik. New technology in law?
    Dr. Gosar. Yes. Best management practices in law.
    Mr. Pizarchik. I am not sure I understand your question.
    Dr. Gosar. Well, it seems like what we have a problem with 
is that if we don't like what one judge says, we just call and 
shop for another judge. It seems to be a new vogue type of 
application about how we get our way when we shop judges. It 
seems to be the Department of Justice just loves doing this, 
not just here, because it is already showing a habit here, but 
in other places of this Administration, whether it be in civil 
law, whether it is criminal law. You pick and choose.
    I mean, so do we have that intention here?
    Mr. Pizarchik. I don't know what you are referring to. I am 
not familiar----
    Dr. Gosar. You haven't shopped judges?
    Mr. Pizarchik. Not to my knowledge.
    Dr. Gosar. Really? You find your duty to Congress is to 
comply with oversight?
    Mr. Pizarchik. Yes, the Congress has a legitimate role in 
oversight, and we have also a legitimate role in the executive 
process. The Constitution sets forth the legislative authority 
under Article 1-2. Congress reserves the executive authority 
under Article 2 to the President, and we try to work together 
to accommodate our mutual interests in order to have a viable 
program, and a process----
    Dr. Gosar. OK. So then you actually made a deal that we 
were going to come out with an out-of-court settlement where we 
had a proposed rule on February 28th of 2011. Why did we miss 
that deadline?
    Mr. Pizarchik. In the agreement that we had, we thought it 
was in the best interest of government not to be litigating, 
but to be working toward modernizing our regulations. We 
committed to making our best efforts----
    Dr. Gosar. But, I mean, you told me that you agreed with 
the rule of law. So why are we coming with that, making some 
type of deadline, and then pursuing it beyond that point?
    Mr. Pizarchik. In the agreement we made a commitment to do 
our best efforts. We made our best efforts. Despite our best 
efforts, we were not able to complete a proposed rule in that 
timeframe. Perhaps, having come from the State government into 
the Federal Government, I was a little bit naive as to how long 
it takes to get a rule or anything done in Washington.
    Dr. Gosar. Are you in the process of reaching another 
closed-door settlement with the environmental groups?
    Mr. Pizarchik. Not to my knowledge, sir.
    Dr. Gosar. Have you promised the litigants that you will 
have a date-specific time for the rulemaking process?
    Mr. Pizarchik. Not to my knowledge, sir, I have not.
    Dr. Gosar. Do you have a list of scientific data that you 
can share with us that you are looking at in implementing this 
buffer rule?
    Mr. Pizarchik. I personally do not. I know that the staff 
has been working in----
    Dr. Gosar. It would be nice to have the staff share, I 
mean, correspond with Congress as to what they are looking in 
the scientific method. I think a transparent type of atmosphere 
will definitely help us in that application.
    Mr. Pizarchik. We will cooperate whatever way we can with 
the legitimate oversight interest of the Congress, but we also 
want to protect the executive prerogatives of our deliberative 
process in developing the rulemaking. When we have the draft 
EIS available and published, it will reference all of the 
science and data that we have considered. Everyone will have 
the opportunity to review that, offer any additional ones if we 
may have missed something, as well as provide their comments on 
our analysis.
    Dr. Gosar. I, once again, go back to trust is a series of 
promises kept. It is like the Navajo Generating Station. There 
is no trust. And nothing is warranted. So I yield back.
    Mr. Lamborn. OK, thank you. Mr. Cardenas.
    Mr. Cardenas. Thank you very much. You do have some trust 
in me. I don't know what he means by no trust. But you have 
trust in me and my constituents, as well.
    Director Pizarchik, the Majority has inquired about how 
much money has been spent on the Obama Administration's stream 
protection rulemaking. However, OSM would not have needed to 
undertake this rulemaking if the Bush rule promulgated in 2008 
was sufficiently protective and legally sound.
    The Bush rule failed to provide required justification and 
ignored key evidence of environmental harm, violating the 
Administrative Procedure Act, the Surface Mining Control and 
Reclamation Act, the National Environmental Policy Act, and 
other environmental laws. The Obama Administration saw these 
problems and consequently settled the lawsuit challenging the 
rule by agreeing to undertake a new rulemaking.
    Can you talk about the problems with the 2008 rule and why 
OSM had no choice but to undertake this rulemaking?
    Mr. Pizarchik. Yes, sir. One of the primary problems with 
it is under the law that we are charged with executing, 
carrying out, OSM did not consult with the United States Fish 
and Wildlife Service regarding the impacts of that 2008 rule, 
as required by the law. We have admitted that error. Thinking 
it is in the best interest of the government not to litigate 
something where we made a mistake, but to admit our mistake, 
minimize the litigation costs, and move on, and that is what we 
are doing. As well, trying to modernize our regulations with 
the most modern science and best practices that are being 
applied in the industry.
    Mr. Cardenas. Now, if we were to go ahead and allow 
activity to happen on our lands in this country without sound 
policy and/or sound science. Could some of the effects that we 
would allow during a certain period of time, could some of 
those effects last maybe decades, even longer?
    Mr. Pizarchik. Yes, sir. In fact, that is exactly what 
happened that led to the Surface Mining Act. We had about 100 
years of virtually unregulated mining, and we are still in the 
process of, billions of dollars later, cleaning up the mess 
that was created. We have miles and miles of streams that were 
polluted, water supplies destroyed. There are just thousands, 
and hundreds of thousands of acres of problems and water 
pollution out there by unregulated mining.
    Mr. Cardenas. Now, when those kinds of things occur, could 
those kinds of negative effects affect entire communities and/
or jobs and/or economic flow of particular communities when we 
see that kind of contamination to our water systems?
    Mr. Pizarchik. Absolutely. Any time you talk to any person 
starting a business or expanding it, one of the most important 
things that they want to have is clean water. I have seen parts 
of Appalachia where there is no business, because all the water 
has been polluted by historic mining.
    Mr. Cardenas. Yes. And it is my understanding that the 
title of this hearing is, ``War on Jobs: Examining the 
Operations of the Office of Surface Mining and the Status of 
the Stream Buffer Zone Rule.'' So, basically, what you just 
said falls right in line with the war on jobs. I guess there is 
a war on jobs when we don't protect the environment. And, 
specifically, when we don't protect potable water.
    Mr. Pizarchik. Yes. And, not only that, if you have a 
company who doesn't follow the law and creates post-mining 
pollutional discharge from their mining, that could go on for 
centuries, if not longer.
    And I know of many instances in the past where companies 
who did that are no longer working today. They have no 
employees working today because their liabilities far exceeded 
their ability to make money, and they are out of business. And 
those jobs are lost, the environment is destroyed, the 
communities are damaged. We don't need any more of that.
    Mr. Cardenas. OK. On to another example. The Twilight 
mountaintop removal mine in Boone County, West Virginia, has 
had a devastating impact on nearby residents. Many grew weary 
of breathing dust-laden air and communities were transformed 
into ghost towns.
    One former resident explained to the New York Times, ``You 
could wash your car today and tomorrow you could write your 
name on it in the dust. It was just unpleasant to live in that 
town, period.''
    Another resident was quoted as saying, ``This powder from 
the mountaintops was settling on everything, turning to brown 
paste in the rain. People no longer hung their whites on the 
clothes lines.''
    To hear the Majority tell it, these people should be 
grateful for their community's mountaintop removal mine. But 
that is not exactly the reality to them. Director Pizarchik, 
has OSM heard these sorts of complaints as you conduct outreach 
in the Appalachian communities and develop your rulemaking?
    Mr. Pizarchik. Yes, sir. I have.
    Mr. Cardenas. You have?
    Mr. Pizarchik. Yes, and I have personally seen some of it. 
I have heard complaints about blasting issues and fumes from 
the blasting operations. I have been in Appalachia where mud is 
being tracked out on the roads, making the roads dangerous for 
the public to travel, et cetera.
    Mr. Cardenas. Thank you very much. I yield back my time. 
Thank you.
    Mr. Lamborn. I would like to now recognize Representative 
Wittman.
    Dr. Wittman. Thank you, Mr. Chairman. Thank you, Director 
Pizarchik, for joining us today.
    I want to start out. You noted that there would be a cost 
benefit analysis that would be done concerning the proposed 
regulation. Tell me a little bit about the cost benefit 
analysis. It is my understanding that the Agency does a cost 
benefit analysis. Is there any external review or peer review 
by economists of that to determine its validity?
    Mr. Pizarchik. I will give you a little bit of an 
explanation as to what we were doing. Because of the cost 
benefit analysis, we don't have that expertise on OSM staff. So 
we have contracted out for outside experts to do that work.
    Dr. Wittman. OK.
    Mr. Pizarchik. And within that contract we have also 
provided, on the cost benefit analysis, for there to be expert 
peer review of their particular work. So that is occurring.
    And so, once the cost benefit analysis has been completed 
by the contractor, it will also have been peer-reviewed by 
other experts.
    Dr. Wittman. Is the cost benefit analysis also subjected to 
public comment in the rulemaking process?
    Mr. Pizarchik. As I understand the law, and the cost 
benefit analysis, that will be in Chapter 4 of the draft EIS. 
And, yes, that will be subject to public comment. We want to 
make sure that we have an analysis that is sufficiently 
explained in the document, so that anyone who reads it can 
understand how the numbers were derived, the methodology used, 
and can comment in an educated fashion on the results of those 
numbers.
    Dr. Wittman. Can you give me an example, historically, 
where you have had a comment challenging a cost benefit 
analysis, and where you have incorporated public comments 
challenging the validity of a cost benefit analysis into 
changing the cost benefit analysis, and therefore, changing the 
final rule that the Agency makes?
    Mr. Pizarchik. I cannot. This is the first rulemaking that 
has been conducted under my tenure that has progressed to this 
point. So I don't have any examples of that in the past.
    Dr. Wittman. Well, let me ask you in a broader sense, then. 
In the public comment period the idea is to get comments from 
the public. Can you tell me, on average, about how many 
comments you normally get through the rulemaking process on a 
proposed regulation?
    Mr. Pizarchik. Sir, I don't know what that has been in the 
past. On this particular rulemaking, due to the interest in it, 
we are expecting in the tens of thousands of comments on it.
    Dr. Wittman. All right. Can you tell me, too, in the past, 
when you pursued rulemaking and you have gotten comments, can 
you give me an example of where you have actually incorporated 
comments into changing the final rule before it goes for final 
promulgation?
    Mr. Pizarchik. I don't have any personal knowledge of that 
in the past, because we haven't gotten that far here.
    Dr. Wittman. So what you are saying is that you go through 
the public comment process, but the public comment really 
doesn't make its way into the final rule.
    Mr. Pizarchik. Absolutely not. That is not at all what I am 
saying. What I am saying is I have not been with OSM long 
enough and conducted any rulemaking through the process where 
we have had the types----
    Dr. Wittman. So you are just not aware that any public 
comment gets incorporated into the final rule.
    Mr. Pizarchik. I have no experience in how it has been 
handled in the past, Congressman.
    Dr. Wittman. OK. Let me ask this. The Committee has 
repeatedly asked for information on the current status of the 
ongoing litigation and communication with the various plaintiff 
groups. And last week, 5 months after the information was 
requested, some communications were finally received, including 
5-year-old emails that were completely redacted, and therefore, 
void of any respective information. And I think we have a slide 
to pull up where it will show the Department didn't produce any 
documents or information indicating that the very next day you 
intended to file another court document supporting the position 
of the litigants, and requesting that the Federal court vacate 
the 2008 rule.
    And as you can see, when we request information and the 
document comes back fully redacted, it kind of gets away from 
the intention of the Committee in trying to get information 
where we can pursue our role in oversight.
    And my question is why is the Administration continuing to 
withhold information by redacting the very information that the 
Committee seeks? And if this is the case, then what is the 
information that the Agency or the Administration doesn't want 
Congress to see? I mean it would seem like to me, at least in a 
letter there, there would be something there. You know, there 
are conjunctions, there are the's and and's.
    Why would you even want to redact the the's and the and's? 
To me, redacting the entire letter is just as illogical. So I 
just wanted to get your comment as to why this would be the way 
that you would respond to the Committee's request for 
information.
    Mr. Pizarchik. Congressman, we respect the legitimate 
oversight interests of the Committee, and we also are working 
to protect the legitimate interests of the executive 
deliberative process in the rulemaking. And----
    Dr. Wittman. I mean it is hard for me to believe that you 
are protecting the interests by redacting every single word 
there. You are telling me that every single word, including 
the's, and's, I's, they's, even those, those are critical words 
that you can't even reveal in this?
    Mr. Pizarchik. Sir, within the Department there are a lot 
of people who look at and work in responding to try to make 
sure we are as responsive as possible to the Committee. I don't 
profess to know all the decisions or been part of that. I----
    Dr. Wittman. Well, Director Pizarchik, let me end with 
this. Let me ask you this. If you made a request of Congress 
for information, and you got back a document like this with 
everything redacted, would that satisfy you, with your request 
to Congress for information?
    Mr. Pizarchik. Well, I don't think, as part of the 
executive branch, we have oversight of Congress. So----
    Dr. Wittman. Well, I am not speaking about oversight. I am 
just speaking about just a common-sense request for 
information. If something like this were redacted, and the 
Committee here, staff said this is within the Committee's 
interest to do this, would you feel comfortable in receiving a 
document like that?
    Mr. Pizarchik. Well, we have been willing to work with the 
Committee and we have offered to work with them, we have had 
reviews of documents, we will cooperate in every way we can 
within the bounds of the legitimate oversight interests and the 
executive, deliberative process in order to provide for a 
productive process.
    Dr. Wittman. Mr. Chairman, thank you. Sorry. Sorry for the 
taking too much time. Thanks for your indulgence.
    Mr. Lamborn. OK, thank you. Mr. Cramer.
    Mr. Cramer. Thank you, Mr. Chairman and Ranking Member. 
Thank you, Director Pizarchik, for being with us.
    I read some of the transcripts from your Senate 
confirmation hearing, and I know that Senator Murkowski asked 
you a question about whether you thought there should be an 
official and legitimate role for States in the process of 
developing recommendations or reaching decisions in the context 
of the inter-agency action plan. And sort of in summary, if you 
will indulge me, you basically said that you thought it was 
critical to the success of the inter-agency action plan for 
State and regulatory authorities to participate in developing 
any recommendations.
    Having said that, is that a fair characterization, first of 
all, of your answer, that you think it is critical?
    Mr. Pizarchik. Mr. Congressman, that seems like ages ago. I 
really have no recollection of that conversation.
    Mr. Cramer. But you still believe that to be true, that----
    Mr. Pizarchik. I am not familiar with what the inter-agency 
action plan is----
    Mr. Cramer. OK.
    Mr. Pizarchik [continuing]. But the States are a critical 
part of our process. They have provided input. And, for 
instance, when we share drafts of the EIS with them, we got 
hundreds of comments from them and they have had input and they 
are a good source of information because, in many instances, 
they are the on-the-ground folks doing the mining----
    Mr. Cramer. Sure.
    Mr. Pizarchik [continuing]. Or regulating the mining.
    Mr. Cramer. In fact, have primacy.
    Mr. Pizarchik. Yes, sir.
    Mr. Cramer. Let me ask then. Have you had a lot of face-to-
face meetings with some of the cooperative agencies in this 
process?
    Mr. Pizarchik. In which process?
    Mr. Cramer. In the process of this rule that we are 
discussing today?
    Mr. Pizarchik. In the beginning I had a number of meetings 
with States where we solicited input. We had a number of 
outreach sessions where we met with industry, the State 
regulators, the Tribes, on the scope of the thing. So I 
personally attended a number of those meetings. I think we had 
about 15 of those. We had nine scoping sessions we conducted 
and the States had an opportunity to provide input on that. We 
also had input with the States from the drafts of the first 
documents that were prepared by the previous contractor. So 
there has been a tremendous amount of input from the States.
    Mr. Cramer. I just want to be clear, though. So you said 
sharing drafts of the what, now, the first, the previous rule?
    Mr. Pizarchik. Back in 2010, our previous contractor, we 
had----
    Mr. Cramer. Oh, I see.
    Mr. Pizarchik [continuing]. Had prepared the first draft of 
various chapters of the Environmental Impact Statement. And 
those drafts were shared with the cooperating States who 
volunteered to be part of the cooperating agencies under the 
National Environmental Policy Act, and they provided a lot of 
comments to us during that process.
    Mr. Cramer. How about since that early phase in that 2010? 
Have there been many face-to-face meetings with the cooperative 
agencies, as well as, even conference calls, realizing that not 
everybody can get together?
    Mr. Pizarchik. One of the things that the States made very 
clear to me, that they had very limited resources. And they 
didn't believe that reviewing or commenting on those comments 
was a productive use of their limited resources. I recognize 
the limited resources that they have in regards to the budget 
times, et cetera, and so I did not approach them to impose upon 
their limited resources at this time. When we have a document 
that we believe is satisfactorily along so that they can have a 
productive utilization of their limited resources, we will be 
sharing that with them.
    Mr. Cramer. Well, it is true that States have limited 
resources. Many of them, in fact, don't even spend more money 
than they take in, and that is a limiting factor that you are 
not confined to. I realize that, and it is something we ought 
to probably correct around here, but that is another committee 
and another hearing.
    Let me ask you this, because I think on a previous question 
an opportunity was missed. Let's say, regarding the redacted 
response, what if a coal mine responded to you with a redacted 
document? I mean that would be a little bit hard to accept, 
wouldn't it? I mean you have legitimate oversight of coal 
mines.
    Mr. Pizarchik. I don't think those are equal situations 
that you can equate to. There are certain constitutional 
parameters that involve our relationship with Congress, and 
Congress's relationship with the executive branch that don't 
exist between OSM as oversight and the mine operator.
    Mr. Cramer. How about with regard to deadlines? When a 
regulated mine misses a deadline that you impose upon them, are 
there ever penalties that they are subject to, as a result?
    Mr. Pizarchik. The typical process is a notice of violation 
and giving the mine operator an opportunity to correct their 
violation before penalties can be assessed. There can be 
instances where penalties are assessed, as appropriate, and in 
accordance with the statute and regulations.
    Mr. Cramer. Thank you. Mr. Chairman, as a former coal 
regulator in North Dakota, I am quite familiar with how onerous 
this process is, onerous to the point where even a wealthy 
State like North Dakota chooses not to participate, because we 
can't afford, quite frankly, to be part of a process like this. 
But my time is expired, and I appreciate the gentleman's 
indulgence.
    Mr. Lamborn. Thank you. Representative Johnson.
    Mr. Johnson. Thank you, Mr. Chairman, and I appreciate the 
opportunity to participate in the hearing today.
    Director Pizarchik, I heard my colleague on the other side 
a few minutes ago try to make the point that today's hearing 
and talking about this rule is premature. And you agreed with 
that. You have missed virtually every deadline that the law 
requires you to meet. You have spent millions of taxpayer 
dollars. You have failed to comply with virtually every request 
in full from this Committee to provide information. You have 
personal knowledge of what you say is the damage that coal 
mining is causing to streams, but yet you have no personal 
knowledge of the scientific data and analysis that is going 
into your rulemaking, or how public comments are being fed into 
your rulemaking process, even though you went through a public 
commenting session in the 2011, 2012 timeframe.
    So, it is pretty clear to me that there is a lot about your 
Department that you don't know. And it is very frustrating to 
this Committee. Do you know what the term ``oversight'' means? 
Because I think you have a real misconception about the 
American system. This Committee is the voice of the American 
people. And under the Constitution of the United States it is 
our responsibility to oversee the chief executive for whom you 
work. That means when we ask questions, it is the voice of the 
American people asking the questions, and they demand answers.
    For you to insinuate that you actually have more oversight 
and more legal authority to extract information from coal 
companies than we, the voice of the American people, have to 
get information from you and this Administration on what you 
are doing to a vital energy industry I think is despicable, Mr. 
Pizarchik, and you ought to be ashamed of yourself.
    Let me ask you a couple of questions. You have been working 
on this rewrite of the Stream Buffer Zone Rule since 2009. Four 
years later, there is no final rule, no proposed rule, and the 
1983 rule is, in effect, creating great uncertainty for the 
industry. Can you confirm for us today that the NEPA-required 
Environmental Impact Statement and the OMB-required Regulatory 
Impact Analysis have not been completed?
    Mr. Pizarchik. First, Mr. Congressman, welcome back to the 
Committee. And to answer to your question, yes, those documents 
have not been completed. They are still under the process of 
being developed.
    Mr. Johnson. All right. So they have not been completed. Is 
that correct?
    Mr. Pizarchik. Yes, they are still being developed.
    Mr. Johnson. Well, in a letter sent to Chairman Hastings on 
April 2nd, you stated that OSM has spent approximately $8.6 
million on the rulemaking so far, with $6 million going to 
contract support for the EIS and the RIA.
    So, your Agency has spent 4 years and $6 million on the EIS 
and the RIA alone, and you have no completed work product. Can 
you inform the Committee today what exactly are you paying for?
    Mr. Pizarchik. We are paying for a NEPA-compliant, rule-
compliant EIS, a draft EIS, as well as the Regulatory Impact 
Analysis and for peer review of those documents.
    Mr. Johnson. Well, according to your office, no aspect of 
the rewrite of the Stream Buffer Zone Rule is complete, and you 
have been working on it for nearly 5 years. Are you in a 
position to provide this Committee any information about the 
current status of the rulemaking effort?
    For example, how much has OSM spent on this project since 
you last updated the Committee?
    Mr. Pizarchik. When I last updated the Committee--I haven't 
asked for any updates since----
    Mr. Johnson. So you don't know. So you don't know. That is 
another ``I don't know.''
    Let me go to my next question. Since you have already paid 
$6 million to contractors to work on the EIS and RIA, can you 
tell us what the total value of the outstanding contracts are, 
and how much this will cost the taxpayers if it is allowed to 
continue?
    Mr. Pizarchik. I don't have that number----
    Mr. Johnson. You don't know.
    Mr. Pizarchik [continuing]. Before me, but----
    Mr. Johnson. You don't know. I am not surprised that you 
don't know. Let me ask you one other question.
    Mr. Pizarchik. It is in the documents that we provided to 
you.
    Mr. Johnson. Let me ask you one other question, Mr. 
Pizarchik. You said that part of your responsibility is to 
ensure that the benefits outweigh the costs when you are going 
through your rulemaking process, correct?
    Mr. Pizarchik. NEPA requires us to do a cost benefit 
analysis----
    Mr. Johnson. All right----
    Mr. Pizarchik [continuing]. That is correct.
    Mr. Johnson [continuing]. Can you tell me how you plan to 
offset the cost of the thousands of jobs that are going to be 
lost, particularly along the Ohio River in coal country, where 
I represent, and the ancillary jobs that are also going to be 
lost and the families that are going to be displaced? How is 
your rulemaking process going to address that cost, Mr. 
Pizarchik?
    Mr. Pizarchik. I have been to those mines, sir. And based 
on my analysis and what I saw at the sites and the fact that we 
do not yet have a rule, we do not yet have the analysis 
completed, it is premature to assume that there will be jobs 
lost, as you have described----
    Mr. Johnson. Oh, no.
    Mr. Pizarchik [continuing]. Jobs created.
    Mr. Johnson. We have been around this circle before. You 
had a contractor that verified that the proposed rule that you 
were putting in place was going to cost tens of thousands of 
jobs. Not going to have that debate with you again today. You 
can't dodge that bullet.
    Mr. Chairman, I yield back.
    Mr. Lamborn. Representative Thompson.
    Mr. Thompson. Thank you, Chairman. Director, good to see 
you. I wanted to, and I apologize if some of this area has been 
covered before, I was on the House Floor talking energy, which 
is important that we talk about all the time, obviously, 
affordable, reliable energy.
    So, my first question is, what is your plan for seeking 
input from State cooperating agencies between now and the time 
the stream protection rule EIS is published for public comment 
in 2014?
    Mr. Pizarchik. Nice seeing you again, Congressman Thompson. 
At this point we haven't made a decisions on it as far as what 
we would do. As I indicated while you were out, we are still in 
the process of developing the documents. And the input that I 
had received previously from the States, they pointed out that 
they had very limited resources, and didn't want to be spending 
their resources reviewing early drafts, most recently they 
indicated they wanted us to share something with them when it 
has been complete.
    And respecting their interests and their limited resources, 
I have not yet made a decision as to when we would be sharing 
something with them. But I don't want to give them something 
prematurely that wasn't ready for their analysis and that would 
not be a useful expenditure of their limited resources.
    Mr. Thompson. OK, because, and I am sure you know your 
obligation under the Department of the Interior's own NEPA 
regulations require collaboration, and I quote, ``to the 
fullest extent possible with all cooperating agencies 
concerning issues relating to their jurisdiction and special 
expertise,'' and that cooperating agencies should be 
``evaluating alternatives and estimating the effects of 
implementing each alternative.''
    So, I would just encourage you fulfilling that 
responsibility and I would say provide these drafts as you go 
along. If the States do not have the resources to be able to 
work on them, that will be the decision of the States. But that 
should not preclude, and I suspect there are some States out 
there that obviously, this is an extremely important issue, it 
is an incredibly important issue in Pennsylvania, as well as I 
am sure some other States that are represented here.
    And so, to do a cookie-cutter response that we are not 
going to send it out because you have heard from some that they 
are not ready to use them, get those drafts out. I think that 
you have, by statute and by regulation, a responsibility to do 
that.
    How many face-to-face meetings has OSM had with cooperating 
agencies this year to discuss their comments on the EIS?
    Mr. Pizarchik. I don't believe we have had any this year.
    Mr. Thompson. OK. How many conference calls have there 
been?
    Mr. Pizarchik. I don't believe there have been any contacts 
with the cooperating agencies this year, conference calls, 
face-to-face meetings, correspondence, or anything regarding 
their comments on the previous drafts or on this work.
    Mr. Thompson. The CEQ regulations require lead agencies 
such as OSM to meet with cooperating agencies at the latter's 
request, and also mandate participation of cooperating agencies 
in the NEPA process at the earliest possible time.
    So, why does that not occur? I mean this is 2013. This is 
August, or July, not too far a reach from August. The reasons 
why that responsibility hasn't been fulfilled?
    Mr. Pizarchik. No, we had input from them on that first 
draft. And with their limited resources, I will reiterate that 
we aren't going to impose upon them to review something that 
isn't really ready for their review in order to not draw down 
on their limited resources.
    Mr. Thompson. So you are not going to mandate the review. 
But have you forwarded the drafts to the States so that if this 
is a priority, and I suspect it is a priority in many States, 
they have the drafts in hand? It should be their decision how 
thoroughly and what due diligence they provide on the reviews.
    Have you provided, and will you provide each of the drafts 
to the States?
    Mr. Pizarchik. Actually, it is my decision on when it would 
be productive for them to be getting the drafts, and I don't 
believe it would be a productive use of their time to have a 
draft prematurely.
    Mr. Thompson. Well, I would respectfully disagree on that. 
I think that the impact on the States--the States should be 
fully engaged, collaborative partners. I think the regulations 
you operate under with your own NEPA analysis, the Department 
of the Interior requires you to do this.
    And so, I guess I know the answer to my next question. My 
next question was, will you provide the cooperating agencies 
with drafts of each revised chapter of the EIS as they become 
available, and provide them with an adequate opportunity to 
comment on the chapters and make changes to the EIS, where 
appropriate?
    Mr. Pizarchik. We will be giving them an adequate 
opportunity to review and comment on the draft EIS when it is 
at the appropriate time. Yes, sir.
    Mr. Thompson. Well, I guess it all comes down to our 
definition of the word ``appropriate,'' where we disagree. 
Strongly, I believe.
    Mr. Chairman, I am out of time, but if we have a second 
round I will look forward to participating.
    Mr. Lamborn. Thank you. Representative Lummis.
    Mrs. Lummis. Thank you, Director. Now, let me get this 
straight. Well, let me start with this preface. Did the States 
create the Federal Government, or did the Federal Government 
create the States?
    Mr. Pizarchik. We all know that the States ceded their 
powers to the Federal Government.
    Mrs. Lummis. They ceded their powers? Did you say ceded 
their powers?
    Mr. Pizarchik. Some of their powers, yes. They----
    Mrs. Lummis. Holy buckets. OK. Now I understand. This makes 
perfect sense now. This makes perfect sense about why we are 
not getting anywhere. The States ceded their powers to the 
Federal Government. Wow.
    Listen. OK. Your views now make it very apparent about why 
you believe that you are in a position to determine when it is 
appropriate to give States information.
    But let me ask you this. The State of Wyoming and other 
States sent you a letter on July 1st asking for clarification 
on when, on certain points--have you responded to that letter?
    Mr. Pizarchik. Not yet. I have not.
    Mrs. Lummis. And why is that?
    Mr. Pizarchik. Because I am----
    Mrs. Lummis. The States ask questions of you. And you are 
going to decide when it is appropriate to respond? Is that the 
case?
    Mr. Pizarchik. No.
    Mrs. Lummis. When are you going to respond?
    Mr. Pizarchik. After I give it careful, deliberative 
thought, and get the appropriate analysis in order to be able 
to provide an appropriate response.
    Mrs. Lummis. And how long will that take?
    Mr. Pizarchik. I have learned in Federal Government service 
I can't predict how long it takes government to do anything. So 
I don't know, ma'am.
    Mrs. Lummis. Who do you work for? Who do you believe you 
work for?
    Mr. Pizarchik. The American people.
    Mrs. Lummis. And the American people sent you a letter and 
asked, ``When are we going to receive our cooperating 
responses?'' Are they cooperating agencies or not?
    Mr. Pizarchik. There are several of them that have 
volunteered to be cooperating agencies on the rulemaking 
process, yes.
    Mrs. Lummis. OK. So when are they going to find out?
    Mr. Pizarchik. Once I have had the opportunity to give it 
the careful thought and get a response back to them.
    Mrs. Lummis. Now, let me get this straight. The last stream 
protection rule was finalized in January of 2009, after 5 years 
of work, with EPA's concurrence and the input from States and 
stakeholders. Is that true?
    Mr. Pizarchik. That is my understanding, yes.
    Mrs. Lummis. OK. And then there is a lawsuit. And the 
Federal Government settles out of court with some environmental 
groups an ESA lawsuit. Correct?
    Mr. Pizarchik. [No response.]
    Mrs. Lummis. And then they agree to issue a new rule, even 
though all of the stakeholders and the States had already been 
involved for 5 years in negotiating the previous rule. Am I 
correct?
    Mr. Pizarchik. Yes.
    Mrs. Lummis. OK. Then, so the Federal Government settles 
out of court with groups that didn't like this 5-year process 
that involved all the stakeholders. You guys decide to settle 
out of court and issue a new rule. And now you are cutting the 
real stakeholders out of the process by deciding when it is 
appropriate to talk to them? Is that what is happening?
    Mr. Pizarchik. No, that is not correct.
    Mrs. Lummis. OK. What is happening?
    Mr. Pizarchik. What has happened is that OSM had made a 
mistake in not fully complying with the law in the 2008 rule. 
Rather than litigate and waste court resources, government 
resources, the plaintiff's resources litigating something that 
we know was wrong, we have confessed our error, and we have 
asked the court to take action in accordance with our motion to 
have the case partially granted, as far as the error that we 
made, and allow us to go back and correct our error.
    And on the second part of it, we have asked the court to 
dismiss the various other counts, because a number of them are 
out of date, as well as some of it would be moved.
    Mrs. Lummis. I am going to switch subjects. The abandoned 
mine lands monies that have been contributed by Wyoming amounts 
to how much money this year?
    Mr. Pizarchik. I don't have that number, but----
    Mrs. Lummis. Well, I do.
    Mr. Pizarchik. It is a very large amount.
    Mrs. Lummis. It is, indeed: $131 million. But who is 
counting?
    Then, how much money can Wyoming expect to receive back 
from AML money this year?
    Mr. Pizarchik. From this year, from the AML money, the law 
that Congress passed caps it at----
    Mrs. Lummis. That is right. That is 11 percent----
    Mr. Pizarchik [continuing]. The sequester.
    Mrs. Lummis. And can you explain why Wyoming is getting 11 
percent, when every other State is getting 50 percent?
    Mr. Pizarchik. Because that is the law of the land, and we 
are enforcing that law.
    Mrs. Lummis. Is there any other State, other than Wyoming, 
that was affected by that decision of Congress?
    Mr. Pizarchik. Which decision----
    Mrs. Lummis. The one that capped everybody at $15 million?
    Mr. Pizarchik. No, ma'am. I----
    Mrs. Lummis. No, that is correct. That is absolutely 
correct. So Congress took one State and punished one State, the 
one State that collects more money for AML than all the other 
States combined, and punished one State. I am not blaming you. 
That was Congress that did that. And that ought to be 
acknowledged.
    Mr. Chairman, I yield back.
    Mr. Lamborn. OK, thank you. I would now like to recognize 
myself for a second round of questions here.
    To follow up, Mr. Pizarchik, on something that I was asking 
you earlier, about using the 2008 vacated rule, or you asked to 
have it vacated, as a baseline. Just to clarify, you are using 
that as a baseline in the assumptions that you are building in 
to the models for formulating the next rule. Is that correct?
    Mr. Pizarchik. It is my understanding that, under the law, 
that all of the existing regulations are to be part of the 
baseline, as far as when you engage in a new rulemaking 
process. That is my understanding of it, yes.
    Mr. Lamborn. OK. Does that include the 2008 rule that was 
issued at the end of the Bush Administration?
    Mr. Pizarchik. That is my understanding.
    Mr. Lamborn. OK. So that is being used to build on for the 
assumptions that your contractors are----
    Mr. Pizarchik. My understanding that the National 
Environmental Policy Act requires a lot of different things to 
be looked at on the baseline. And the contractors and the 
career staff have been working on developing the appropriate 
baseline. I do not know all of the components of that, but I 
believe the 2008 rule is part of that baseline.
    Mr. Lamborn. Although it never took effect nationally.
    Mr. Pizarchik. Actually, it is in effect nationally. It has 
been applied on Federal lands and where OSM is the regulator. 
In the primacy States, where the States are the regulator, we 
have not required them to implement it.
    Mr. Lamborn. My notes here say that that is Tennessee only. 
Is that correct?
    Mr. Pizarchik. No. We also are the regulator in the Indian 
country on Hopi, Crow, and Navajo, as well as in the State of 
Washington.
    Mr. Lamborn. So, Indian reservation lands and the State of 
Tennessee.
    Mr. Pizarchik. Where coal is actively being mined. Yes, 
sir.
    Mr. Lamborn. So that is the only place where the 2008 rule 
is in effect?
    Mr. Pizarchik. That is the only place it is being 
implemented. It is in effect nationwide, but the primacy States 
have not been----
    Mr. Lamborn. Well, the importance of this, though, is that 
if you assume that is the existing rule for purposes of 
rulemaking, that will have a smaller economic impact than if 
you use the status quo in existence before that.
    Mr. Pizarchik. Well, again, there are many components that 
go into the baseline. I do not know all of them. I think that 
a----
    Mr. Lamborn. Well, I would just hate to see fudging, where 
you minimize the economic impact and use false assumptions in 
order to accomplish that.
    Mr. Pizarchik. I am sure----
    Mr. Lamborn. When the draft EIS, which apparently has been 
repudiated now, came out, it showed a direct job loss of 7,000 
jobs, and many more thousands of lost jobs indirectly, with 
economic harm in at least 22 States.
    Is the rule that you are working on now, some kind of 
modified rule, is it going to have these kinds of devastating 
economic impacts?
    Mr. Pizarchik. The rule is still under development, as is 
the economic analysis, the cost analysis and the benefit 
analysis. So I don't know what those numbers are. But I can 
tell you that, under the NEPA, it is an iterative process. And 
as we go through it, as we learn what potential impacts would 
be from a change, then that helps inform the decisionmaking, so 
we can decide what would be in the proposed rule, and we are 
not at that point yet.
    Mr. Lamborn. Well, to drill down on that, we have listened 
to the audio tapes, and we hear someone in your department 
saying that there is only going to be 15 miles of streams 
protected.
    Now, in coal country, there are hundreds, if not thousands 
of miles of streams. And to have this kind of onerous economic 
impact to protect 15 stream miles, to me, is very 
disproportionate. Am I wrong on that?
    Mr. Pizarchik. What you are hearing was our staff trying to 
understand the analysis that that contractor put forward in 
order to get a better understanding of what is causing those 
impacts. And so they were trying to get that understanding as 
the way the process is supposed to work.
    What we have learned is that the contractors who came up 
with those numbers based it on estimates, and then those 
estimates were also in part based on a misunderstanding of the 
draft rule language that they were considering at that point in 
time, and then those estimates, which were based on 
professional judgment, as I understand, without any explanation 
as to what were the assumptions they made on coming up with 
that professional judgment, it was not impossible for us to 
understand how they came up with those numbers, what was 
causing it or not.
    And, as part of the NEPA process, that is important for us, 
to understand what the potential benefits and costs would be of 
potential changes in order to be able to make informed 
decisions. And we weren't able to get that type of information 
in that exchange or from that contractor, due to the 
methodologies that they had used.
    Mr. Lamborn. Now, if I heard correctly, someone on the 
other side of the aisle said that there were hundreds or 
thousands of stream miles that this rule needed to protect, and 
would protect. Is that a correct assumption?
    Mr. Pizarchik. There has been, I believe it has been 
documented, there are 2,000 miles of streams that already have 
been buried. That is not counting the ones that have been mined 
through and not restored. We don't know, right now, what the 
ultimate numbers will be, because we still are in the process 
of developing a rule. But we know, based on past history, that 
there are hundreds of miles of streams that have been adversely 
impacted from mining.
    Mr. Lamborn. And where are those streams? Can you show me a 
map?
    Mr. Pizarchik. I don't have that here, but I believe a 
number of them were documented in some previous studies. But I 
could get that information. I believe that is available.
    Mr. Lamborn. Would you, please? I would like that for the 
record.
    Mr. Pizarchik. I will do my best to get you that.
    Mr. Lamborn. OK. Ranking Member Huffman.
    Mr. Huffman. Thank you, Mr. Chair.
    Director Pizarchik, there has been a lot of discussion 
about a single document with a large redacted area in it. And I 
am not a science guy, as one other Member characterized 
themselves, but I am a law guy. And I will tell you in my 
career as a litigator, I certainly saw all kinds of documents 
that looked just like that. It happens all the time. And so, I 
want to just take a moment to discuss what it means when a 
document is redacted that way.
    Now, you were being asked about the subject of pending 
litigation, correct?
    Mr. Pizarchik. Yes, sir. There were questions about that.
    Mr. Huffman. All right. And when there is pending 
litigation, there are often documents that contain attorney-
client privilege material. Is that fair to say?
    Mr. Pizarchik. Yes, sir
    Mr. Huffman. And it is your duty to make sure that the 
attorney-client privilege is not waived or breached by 
disclosure. Correct?
    Mr. Pizarchik. That is correct.
    Mr. Huffman. There may also be deliberative process 
privileges that likewise have to be protected from waiver or 
disclosure. Is that fair to say?
    Mr. Pizarchik. Yes, sir.
    Mr. Huffman. And then, finally, personal privacy 
information also would be another concern when you produce 
documents?
    Mr. Pizarchik. Yes, and I believe there are laws that also 
require that to be kept.
    Mr. Huffman. All right. So, for the one single document 
about which there has been so much excitement and 
hyperventilation this morning, is it fair to say that redaction 
was because there was privileged information and/or personal, 
private information that was being protected from waiver or 
breach?
    Mr. Pizarchik. I believe that is what our lawyers would 
have done, yes, sir.
    Mr. Huffman. And I notice that while so much time has been 
spent on the single mystery document, which really isn't much 
of a mystery to anybody who has litigated, not a lot of time 
has been spent on the amount of documents you have produced to 
this Committee.
    We mentioned at the outset that the Department has produced 
about 14,000 pages of documents. Many of the things that you 
have been asked about here today, sometimes interrupted, talked 
over--I believe you were starting to say, in response to some 
questions, that that information was actually in the documents 
that have been produced to this Committee. There have been 
7,000 pages of documents and roughly 25 hours of audio 
recordings produced from contractors that have been working 
with you on this rulemaking. And the Majority, nevertheless, 
has failed to expose any wrongdoing in all of this material 
that you have produced to them.
    Is there anything more you want to say about the documents 
and the data and the information that you have produced to this 
Committee, as opposed to just further talking about the one 
single mystery document?
    Mr. Pizarchik. Well, I think they have been responsive to 
the Committee's oversight. There is a fair amount of 
information in the documents that is, I believe, relevant to 
the oversight information. And we are going to continue to 
provide what we can, in accordance with the legitimate 
interests of both branches of government.
    Mr. Huffman. I assume, when you produce this kind of 
voluminous information in response to a series of requests from 
a Committee like this, that it takes a lot of staff time, and 
it costs your agency a lot of money.
    Mr. Pizarchik. It absolutely does. I believe just for our 
agency, I believe, we had over 2,000 hours in preparing 
document requests. That is just for OSM, it is not for the 
solicitors and everybody else to review them. And I believe at 
last week's hearing, Chairman Hastings had mentioned that there 
were 10 document requests that the Committee had filed from the 
Department this year. Those are a lot of documents, takes a lot 
of time, and we respond to them as quickly and as timely as we 
can, but it takes a lot of effort and a lot of cost to the 
government.
    Mr. Huffman. With what is remaining in my time, I want to 
ask you about the contractor, Polu Kai Services, that you 
parted ways with that had at one point prepared a preliminary 
job analysis. And I believe this was called the bullet you 
can't dodge. And you certainly can't dodge it if nobody gives 
you any time to speak to it.
    So, whether you want to dodge it or speak to it, I want to 
at least allow you some time to explain what happened with that 
contractor, what happened with that jobs estimate. And I 
specifically want to ask, it is my understanding that you were 
in the process of getting criticisms about this contractor's 
work well before that job's estimate information was released, 
that the criticisms of this person's work came not only 
internally, but from other stakeholders who had seen this 
contractor's work, and that this was a matter of poor 
performance that forced you to part ways with that contractor. 
But I want to give you a moment to actually speak to it.
    Mr. Pizarchik. That is correct. We had hired the contractor 
to prepare NEPA documents, and the type of documents that were 
prepared didn't meet that requirements. We got hundreds of 
comments from our cooperating agencies, some of them quite 
strongly worded, because of the quality of those documents. And 
they were reinforcing what we were seeing, that the contractor 
was not performing up to the contract standards or the legal 
requirements that were necessary to meet in order to have a 
legitimate, defendable rulemaking, going forth.
    Mr. Huffman. Thank you, Director. I yield back, Mr. Chair.
    Mr. Lamborn. Representative Johnson.
    Mr. Johnson. Thank you, Mr. Chairman. I want to point out, 
I have never been a litigator, but I have been a job creator, I 
have been a businessman. And I know what this rulemaking is 
doing to the jobs in my district.
    Mr. Director, just a point of clarification to make sure 
that our entire Committee understands this. No audio recordings 
have been provided by your Department. Those are still being 
withheld. The only audio recordings we have gotten we have 
gotten from outside sources. This Committee has asked 
repeatedly for copies of the audio recordings of the meetings. 
Again, to fulfill our responsibility under the Constitution for 
oversight. So, again, shame on you and the Department for not 
complying.
    Mr. Pizarchik, DOI's own NEPA regulations require 
collaboration to the fullest extent possible with all 
cooperating agencies concerning issues relating to their 
jurisdiction, so that they can evaluate alternatives, estimate 
the effects of implementing alternatives, et cetera.
    Specifically, CEQ regulations required lead agencies such 
as OSM to meet with cooperating agencies at the agencies' 
request. I got a specific citation here that requires that, 40 
CFR 1500.6(a)3, and also mandates participation of cooperating 
agencies in the NEPA process at the earliest possible time. I 
find it interesting that your interpretation of those 
directives is that when you deem it is appropriate. I don't get 
it.
    Economic feasibility. You say that you consider economic 
feasibility in the rulemaking process. Can you tell me how you 
think it is economically feasible for a longwall mining 
operation to comply with a Stream Buffer Zone Rule, that, if it 
looks anything like the one that we looked at in the last 
Congress, would require them to spend millions of dollars each 
and every time they have to move that long wall to avoid 
operations under a stream? Can you explain to me how you are 
evaluating economic feasibility in that regard?
    Mr. Pizarchik. It would be premature for me to speculate--
--
    Mr. Johnson. You don't know.
    Mr. Pizarchik [continuing]. On this, because we don't have 
a rule yet, and----
    Mr. Johnson. You don't know.
    Mr. Pizarchik [continuing]. We don't know what is going to 
be in the----
    Mr. Johnson. Now you have been working on this for 5 years, 
5 years. You don't have scientific analysis, you can't say what 
the stakeholders comments have done, and whether they have been 
integrated into the rulemaking process, and it is premature. It 
is not premature, Mr. Pizarchik, and you need to stop dodging 
the voice of the American people and come clean with what this 
rulemaking process is all about. And you and I are going to 
continue to have these dialogs until you do. So I want to make 
that clear to you.
    In testimony before this Committee last year, and in 
Federal court documents filed just last week, you stated 
repeatedly that OSM believes that a rewrite of the Stream 
Buffer Zone Rule is a top priority, and that OSM will continue 
to use best efforts. How do you define ``best efforts,'' when 
you have continuously told this Committee that you don't have 
any employees working on this full-time, and you have no work 
product after 5 years? Is that your best effort? Is that what 
you mean by best effort?
    Mr. Pizarchik. We have been working on this, and we are 
going to continue to work and develop it, and we are making 
progress. As I indicated earlier, we anticipate some time in 
2014 that we will have the----
    Mr. Johnson. I have heard the deadlines that you keep 
pushing out. I have heard that. I have little confidence that 
you are going to get to it at that point, either.
    You stated earlier, when you were asked about whether or 
not stakeholder comments are included, and if they have ever 
changed a rulemaking, and you said this is the first major 
rulemaking that you guys have done since you took over OSM. 
Correct? This is the only one. You are a director, and this is 
best efforts? You have only got one big one going on, and this 
is best efforts?
    Mr. Pizarchik. We have a number of other rulemakings going 
on. What I indicated was this is the one that is the farthest 
along in this process. And best efforts, we are giving it our 
best shot. We have to take staff away from working on the rule 
to respond to document requests. That is a priority, as well. 
And----
    Mr. Johnson. Do you take staff away from the rule to 
converse with stakeholders?
    Mr. Pizarchik. I believe when you were in the room we got 
the answer to that question earlier on, that we had our 
interaction with the stakeholders earlier on, on the first 
drafts. We are still working on addressing comments and 
developing the rule and the draft EIS in accordance with those 
comments.
    Mr. Johnson. Five years. Five years and millions of dollars 
of taxpayer funding, Mr. Pizarchik, is not acceptable to me. It 
wouldn't be acceptable in any business that I run.
    Mr. Chairman, I yield back.
    Mr. Lamborn. Thank you. Mr. Thompson.
    Mr. Thompson. Thank you, Chairman. Director, I want to come 
back to the contractors.
    Now, your own employees have said the contractors were 
working at the direction of OSM, and that the problems 
attributed to the contractors were actually the responsibility 
of OSM. As I read and look, you are using a process that is 
destined to fail. And I have to wonder if that is on purpose, 
this is just one more tool on the part of the Obama 
Administration to really kill the coal industry.
    The issue I see, regarding the contractors, it was the 
behavior and demands of your Department. One example is 10 days 
to review hundreds of pages. And that is just among many. You 
know, it is a process that rushes the contracting agencies in a 
reckless fashion.
    Now, Mr. Director, I think the main question before us 
today is where do we go to from here, looking forward. I mean, 
what is the plan forward? As stated in the Chairman's opening 
statement, you, the OSM, you have wasted millions, nearly $10 
million over the past 4 years, with nothing to show. Now, today 
we hear that your hope, not a guarantee, but hope, is that 
there will be a new rule proposed a year from now.
    Now, my question is, how much? How much will it cost us to 
continue the reckless, unnecessary, poorly managed process 
before you complete a rule? Another $5 million, another $10 
million? Almost what we have invested already, taxpayers have, 
$15 million? Is there an end to the black hole of waste at OSM?
    So, my question is, where do we go from here, and what is 
it going to cost?
    Mr. Pizarchik. Well, I believe it is about $8 million to 
date, and I agree that is a lot of money to the average 
American. It is a lot of money to OSM. Perhaps if we were 
exempted from all of these cost benefit analyses we could do 
the process a lot more efficiently. But I would be willing----
    Mr. Thompson. Well, Director, let me just say the cost 
benefit analysis is a safeguard for American citizens. 
Regulations come at a cost, and it is a cost benefit, the 
comparison, cost benefit does not happen near enough as 
regulations are proposed by the bureaucracy of government. And 
so, I think asking for relief from a safeguard, something that 
safeguards the American taxpayer, the American citizens, is not 
something I would advocate for.
    Mr. Pizarchik. OK. Then I would agree with you that 
spending $8 million is money well spent on figuring out what 
the costs and benefits would be of the rulemaking process.
    Mr. Thompson. So do you have an estimate? We have another 
year? I mean you were hoping, no guarantee, hoping for another 
year, based on the past expenditure lines, say $8 million so 
far. What do you think we are going to rack up in bills before 
this rule is actually--well, let me just say, first of all, how 
much do you think we are going to spend on this rule before you 
actually engage the cooperating agencies, because I still want 
to come back to that in my first line of questioning.
    I am just appalled that you are not sending it out there, 
because you assume that the States don't have resources to do 
anything with it. You have a regulatory responsibility to 
release these drafts, these EIS drafts. You don't get final 
pick. The regulations are clear. The Department of the Interior 
is very clear of engaging cooperative agencies. So how much 
money, additional money, are we going to spend until we at 
least get a draft released to the States?
    Mr. Pizarchik. Well, I can get you the total contract 
dollar amount. We have a contract in place. I don't have that 
number at my fingertips, as far as what we have for the 
contractors to perform. It is a type of contract that is based 
on them producing certain documents and certain products, and 
we are on track for having those products. The contract is 
capped out at a certain amount. I don't remember the number on 
that. We have been very cautious. And at our meetings, we limit 
our meetings, we are conducting our meetings by teleconference 
call, minimizing travel, doing whatever we can to minimize and 
control the cost on that, so we do not exceed our existing 
contract cost on that.
    Mr. Thompson. Well, I appreciate you saying you are 
cautious about it, but I will say it has been costly. And up to 
this point it has been quite ineffective and potentially 
damaging to just a tremendous number of jobs.
    I had an opportunity, I represent western Pennsylvania, it 
was a little further out in western Pennsylvania, having dinner 
in a county out there just a week or so ago, and had a 
individual from the coal industry and his wife walk up to me. 
Somehow they figured out who I was. That is not always a good 
thing. I was outside my congressional district. Well, this 
couple, this family, is just devastated with what is going on 
with the coal industry in Pennsylvania.
    And what is devastating it is--the Congressional Research 
Service just did a report that shows we have the largest 
reserve of coal. We have 88 billion more short tons than 
Russia, who is number two, of coal remaining. We have the 
technology to be able to do it right. And, unfortunately, this 
Administration is just killing the coal industry, just 
devastating that family.
    So, Mr. Chairman, I am way over my time. Thank you.
    Mr. Lamborn. OK, thank you. And, Mr. Pizarchik, thank you 
for being here. Thank you for answering questions. Members of 
the Committee may have additional questions for the record, and 
I would ask that you respond to those in writing.
    If there is no further business, without objection, the 
Committee is adjourned.
    [Whereupon, at 11:33 a.m., the Subcommittee was adjourned.]

                                 
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