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



 
                H.R. 2824, PREVENTING GOVERNMENT WASTE 
                  AND PROTECTING COAL MINING JOBS 
                  IN AMERICA
=======================================================================


                          LEGISLATIVE 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

                               __________

                         Friday, August 2, 2013

                               __________

                           Serial No. 113-38

                               __________

       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 Friday, August 2, 2013...........................     1

Statement of Members:
    Huffman, Hon. Jared, a Representative in Congress from the 
      State of California........................................     5
        Prepared statement of....................................     6
    Lamborn, Hon. Doug, a Representative in Congress from the 
      State of Colorado..........................................     2
        Prepared statement of....................................     4

Statement of Witnesses:
    Clarke, Thomas L., Director, Division of Mining and 
      Reclamation, West Virginia Department of Environmental 
      Protection.................................................     9
        Prepared statement of....................................    11
    Johnson, Hon. Bill, a Representative in Congress from the 
      State of 
      Ohio.......................................................     7
        Prepared statement of....................................     8
    Jones, John Paul, Vice President, Environmental, Alpha 
      Natural Resources, Inc., on Behalf of the National Mining 
      Association................................................    31
        Prepared statement of....................................    33
    Lambert, Bradley C. ``Butch'', Deputy Director, Virginia 
      Department of Mines, Minerals and Energy...................    21
        Prepared statement of....................................    28

Additional materials submitted for the record:
    Interstate Mining Compact Commission, Prepared Statement of..    24
    Johnson, Randall C., Stevens, Bruce, Hohmann, Steve, Caudle, 
      John, Baza, John, Lambert, Bradley C., Clarke, Thomas L., 
      and Parfitt, Todd, Letter submitted for the record.........    22
    Mortality Disparities in Appalachia--Reassessment of Major 
      Risk Factors, JOEM, Volume 54, Number 2, February 2012.....    44
    Shope, Thomas D., Letter submitted for the record............    17
    U.S. Department of the Interior, Office of Surface Mining 
      Reclamation and Enforcement, Prepared statement of.........    66
                                     



 LEGISLATIVE HEARING ON H.R. 2824, TO AMEND THE SURFACE MINING CONTROL 
AND RECLAMATION ACT OF 1977 TO STOP THE ONGOING WASTE BY THE DEPARTMENT 
 OF THE INTERIOR OF TAXPAYER RESOURCES AND IMPLEMENT THE FINAL RULE ON 
EXCESS SPOIL, MINING WASTE, AND BUFFERS FOR PERENNIAL AND INTERMITTENT 
   STREAMS, AND FOR OTHER PURPOSES. PREVENTING GOVERNMENT WASTE AND 
                 PROTECTING COAL MINING JOBS IN AMERICA

                              ----------                              


                         Friday, August 2, 2013

                     U.S. House of Representatives

              Subcommittee on Energy and Mineral Resources

                     Committee on Natural Resources

                            Washington, D.C.

                              ----------                              

    The Subcommittee met, pursuant to call, at 9:07 a.m., in 
room 1324, Longworth House Office Building, Hon. Doug Lamborn 
[Chairman of the Subcommittee] presiding.
    Present: Representatives Lamborn, Lummis, Daines, Cramer, 
Huffman, and Garcia.
    Also present: Mr. Johnson of Ohio.
    Mr. Lamborn. The Committee will come to order. The 
Committee notes the presence of a quorum, which under Committee 
rule 3(e) is two members. The Subcommittee on Energy and 
Mineral Resources is meeting today to hear testimony on H.R. 
2824, introduced by Representative Bill Johnson of Ohio and 
myself, to amend the Surface Mining Control and Reclamation 
Act, SMCRA, to stop the ongoing waste by the Department of the 
Interior of taxpayer resources and implement the final rule on 
excess spoil, mining waste, and buffers for perennial and 
intermittent streams, and for other purposes. It is called the 
Preventing Government Waste and Protecting Coal Mining Jobs in 
America Act.
    Under Committee rule 4(f), opening statements are limited 
to the Chairman and Ranking Member of the Committee. 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.
    Hearing no objection, so ordered.
    I now recognize myself for 5 minutes.
    And by the way, we are going to try to get our opening 
statements in. Then I will ask the indulgence of the witnesses. 
We may have a series of votes called around 9:15, 9:20. We will 
make as much progress as we can. We will ask your patience 
while we go over and vote and then come back and then try to 
conclude the hearing at that point.

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

    Mr. Lamborn. OK. Today the Subcommittee is considering H.R. 
2824, the Preventing Government Waste and Protecting Coal 
Mining Jobs in America Act, which along with Representative 
Johnson, we have introduced. This legislation is designed to 
save taxpayer dollars and protect jobs by putting the Office of 
Surface Mining on a responsible path forward with regard to the 
management and regulation of coal mining in America.
    As I said last week, we need to be clear about this 
Administration's legacy on their effort to rewrite the Stream 
Buffer Zone Rule. So far, the Administration has spent nearly 
$9 million of taxpayer money rewriting a rule that was never 
fully implemented in the first place, without ever providing 
sound justification for the need for a new rule. This does not 
include the amount spent on attorney's fees and costly 
litigation or the internal costs borne by the agency, nor, most 
of all, the cost to the families of the thousands of workers 
who have been displaced or seen work delayed by the regulatory 
inaction on the part of the Department.
    In fact, we learned just recently that even though the 
courts told the Administration in 2009 that they would have to 
follow APA and allow for public input to revoke the 2008 rule, 
the Administration went back to the court and asked again for 
the judicial branch to toss aside a validly promulgated rule 
rather than follow the rulemaking process. That is an important 
point because since the 2008 rule was never enacted throughout 
the country, the Administration has actually no idea if there 
are any problems with the rule, that would have to be addressed 
with the new rule.
    Furthermore, the ongoing inability to actually conduct a 
responsible rulemaking process means the draft of the rewrite 
isn't anticipated until late in 2014. And as we have heard from 
Director Pizarchik, they have no idea how much money it is 
going to take to finish the new rule.
    This legislation requires the Office of Surface Mining to 
implement the 2008 Stream Buffer Zone Rule, a rule developed 
over a half a decade through an open, public, and multimillion-
dollar process. Upon implementation, it provides the primacy 
States 2 years to admit their State regulations to incorporate 
the rule and submit them for approval by the Office of Surface 
Mining.
    Once all the plans have been approved, the effects of the 
new regulations will be analyzed for a period of 5 years. On 
completion of the analysis, the Office of Surface Mining is 
required to report back to the House and Senate Committees with 
jurisdiction over SMCRA on the effectiveness of the rule, 
impact on energy production, and identify and justify anything 
that should be addressed through a new rulemaking process.
    The legislation will stop the massive ongoing waste 
currently taking place at the Department and save taxpayer 
money. It responsibly updates the 1983 regulation by improving 
environmental safeguards and provides regulatory certainty for 
an important domestic industry, an industry that not only 
provides many family wage jobs with good benefits, but also 
provides affordable energy for the American people and the 
Nation's manufacturing base. I believe roughly 40 percent of 
the Nation's electricity is provided by coal.
    The States and tribes participating as cooperating agencies 
with the Office of Surface Mining in 2010 raised serious 
concerns about the way the Administration was managing the 
rulemaking process and the direction the Department was 
proceeding with its new rulemaking. If we review the 
transcripts and audio tapes of the meetings between OSM and 
their original contractors, it should raise concerns across the 
board about the way the Administration conducts its business.
    Here are a few of the more egregious comments. An OSM 
official worrying about how to ``sell,'' quote/unquote, the 
proposed rule to the public because it will only save 15 miles 
of stream of the many thousands of miles affected while costing 
taxpayers millions of dollars and thousands of jobs. It appears 
the proposed rule would only save 15 miles of stream upstream 
because coal production would be moved to other regions outside 
of Appalachia, meaning the rule would have minimal national 
environmental benefit but would succeed in causing extreme 
economic dislocation and devastation in communities all across 
the Appalachian region.
    Also, OSM officials told contractors to ``pretend'' that 
the 2008 Stream Buffer Zone Rule was implemented and applied 
across the country when it was not and explaining that this is 
``not the real world, this is rulemaking'' as justifications 
for using analysis that does not actually consider conditions 
on the ground.
    Also, an OSM official admitted that the contractors ``did 
exactly what I told them to do'' when completing the draft 
environmental impact statement. This conflicts with OSM 
Director Pizarchik's sworn testimony to the Committee and 
others who have criticized the work performed by the 
contractors when completing the draft environmental impact 
statement.
    The 23 States that have primacy to enforce SMCRA feel very 
strongly that the current rulemaking is unnecessary and 
unwarranted, as OSM had just issued their final revised Stream 
Buffer Zone Rule in December of 2008. That rulemaking process 
took 5 years and is supported by 5,000 pages of environmental 
analysis, included 30 different studies, and was issued with 
the concurrence of the Environmental Protection Agency. OSM 
spent approximately $5 million to develop the 2008 rule and 
never directed the primacy States to incorporate the rule into 
their regulatory program. OSM does use the 2008 rule in 
Tennessee, Washington, and for Crow, Navajo, and Hopi Nations.
    To conclude, most importantly, the new rule, or what we 
know about it from the documents made public in early 2011, 
would be injurious and damaging to the domestic coal mining 
industry, coal miners and their families and communities, and 
local and State economies throughout the Appalachian Basin, the 
Illinois Basin, and coal-producing tribal nations. This 
legislation is crucial to remedying this sorry situation.
    I look forward to hearing from our witnesses today.
    I would now like to recognize the Ranking Member for his 
opening statement.
    [The prepared statement of Mr. Lamborn follows:]
      Prepared Statement of The Honorable Doug Lamborn, Chairman, 
              Subcommittee on Energy and Mineral Resources
    Today the Subcommittee is considering H.R. 2824, the ``Preventing 
Government Waste and Protecting Coal Mining Jobs in America Act,'' 
which I introduced along with Representative Johnson. This legislation 
is designed to save taxpayer dollars and protect jobs, by putting the 
Office of Surface Mining on a responsible path forward with regard to 
the management and regulation of coal mining in America.
    As I said last week--we need to be clear about the Administration's 
legacy on their effort to rewrite the Stream Buffer Zone Rule. So far, 
the Administration has spent nearly $9 million taxpayer dollars re-
writing a rule that was never fully implemented without ever providing 
sound justification for the need for a new rule. This does not include 
the amount spent on attorney fees and costly litigation or the internal 
costs borne by the agency. Nor the costs to the families of the 
thousands of workers who have been displaced or seen work delayed by 
the regulatory inaction of the Department.
    In fact, we learned just recently that even though the Courts told 
the Administration in 2009 that they would have to follow APA and allow 
for public input to revoke the 2008 rule, the Administration went back 
to the Court and asked again for the Judicial Branch to toss aside a 
validly promulgated rule rather than follow the rulemaking process. 
That is an important point because since the 2008 rule was never 
enacted throughout the country, 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 
a responsible rulemaking process means the draft of the re-write isn't 
anticipated until late in 2014. And as we heard from Director 
Pizarchik--they have no idea how much more money it's going to take to 
finish the new rule.
    The legislation requires the Office of Surface Mining to implement 
the 2008 Stream Buffer Zone Rule, a rule developed over half a decade 
through an open public multimillion dollar process. Upon implementation 
it provides the primacy States 2 years to amend their State regulations 
to incorporate the rule and submit them for approval by the Office of 
Surface Mining. Once all of the plans have been approved--the effects 
of the new regulations will be analyzed for a period of 5 years. On 
completion of the analysis, the Office of Surface Mining is required to 
report back to the House and Senate Committees with jurisdiction over 
SMCRA on the effectiveness of the rule, impact on energy production, 
and identify and justify anything that should be addressed through a 
new rulemaking process.
    The legislation will stop the massive ongoing waste currently 
taking place at the Department and save the taxpayer money. It 
responsibly updates the 1983 regulation by improving environmental 
safeguards and provides regulatory certainty for an important domestic 
industry; an industry that not only provides great family wage jobs 
with good benefits but also provides affordable energy for the American 
people and the Nation's manufacturing base.
    The States and tribes participating as cooperating agencies with 
the Office of Surface Mining in 2010 raised serious concerns about the 
way the administration was managing the rulemaking process and the 
direction the Department was proceeding with its new rulemaking. If we 
review the transcripts and audio tapes of the meetings between OSM and 
their original contractors it should raise concerns across the board 
about the way the Administration conducts its business--a few of the 
more egregious comments included:

     An OSM official worrying about how to ``sell'' the 
proposed rule to the public because it will only save 15 miles of 
stream, while costing millions in taxpayer dollars and thousands of 
American jobs. It appears the proposed rule would only save 15 miles of 
stream because coal production would be moved to other regions outside 
of the Appalachia--meaning the rule would have minimal national 
environmental benefit but would succeed in causing extreme economic 
dislocation and devastation in communities all across Appalachian 
region.

     OSM officials telling contractors to ``pretend'' that the 
2008 Stream Buffer Zone Rule was implemented and applied across the 
country when it was not, and explaining that this is ``not the real 
world, this is rulemaking'' as justification for using analysis that 
does not actually consider ``conditions on the ground.''

     An OSM official admitting that the contractors ``did 
exactly what I told them to do'' when completing the draft 
environmental impact statement. This conflicts with OSM Director 
Pizarchik's testimony to the Committee and others who have criticized 
the work performed by the contractors when completing the draft 
environmental impact statement.
    The 23 States that have primacy to enforce SMCRA feel very strongly 
that the current rulemaking is unnecessary and unwarranted as OSM had 
just issued their final revised Stream Buffer Zone Rule in December of 
2008. That rulemaking process took 5-years and is supported by 5,000 
pages of environmental analysis, included 30 different studies, and was 
issued with the concurrence of the Environmental Protection Agency. OSM 
spent approximately $5 million dollars to develop the 2008 rule and 
never directed the primacy States to incorporate the rule into their 
regulatory program (OSM uses the 2008 rule in Tennessee, Washington and 
for the Crow, Navajo and Hopi nations).
    More importantly the ``new rule'' or what we know about it from the 
documents made public in early 2011, would be injurious to the domestic 
coal mining industry, coal miners and their families, and, local and 
State economies throughout the Appalachian Basin, the Illinois Basin, 
and coal producing tribal nations.
    This legislation is crucial to remedying this situation. I look 
forward to hearing from our witnesses today.
                                 ______
                                 

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

    Mr. Huffman. Thank you, Mr. Chairman.
    The bill we are discussing here today would stop the 
Interior Department's Office of Surface Mining from adopting a 
new rule to protect the people of Appalachia from destructive 
mountaintop removal mining. That is the term that the majority 
doesn't like to use, but that is what this practice and this 
bill are all about, mountaintop removal mining. It would also 
require States to implement the Bush Administration's 2008 
midnight regulation, which weakened the protections put in 
place 25 years earlier during the Reagan Administration.
    This is a bill that has no chance of becoming law. And it 
is ironic that we are here 2 days after the full Natural 
Resources Committee was considering a bill to name much of our 
oceans after Ronald Reagan. Today we are here to try to roll 
back a very modest stream protection and public health 
protection rule that he put in place during his Presidency.
    The 1983 Reagan rule stated ``No land within 100 feet of a 
perennial stream or an intermittent stream shall be disturbed 
by surface mining activities.'' Regulators could allow surface 
mining activities ``closer to or through such a stream,'' but 
only upon a finding that these activities ``will not cause or 
contribute to the violation of applicable State or Federal 
water quality standards and will not adversely affect water 
quantity and quality or other environmental resources of the 
stream.''
    Now, the 2008 Bush rule exempts waste disposal practices 
associated with mountaintop removal mining from the scope of 
this rule, in contravention of the Surface Mining Control and 
Reclamation Act. The Bush rule also permits surface coal mining 
activities, even if such activities may cause or contribute to 
violations of water quality standards.
    The majority's legislation would require that we give this 
inadequate rule a chance, give it a try, see what happens. 
Well, we already know what will happen. Mountaintop removal 
mining buried or despoiled around 2,000 miles of stream under 
the Reagan rule. The Bush rule weakens the Reagan rule and 
would make matters worse: more streams buried, more communities 
turned into ghost towns, more people suffering the health 
consequences of contaminated air and water.
    Now, this Republican plan would be devastating. New studies 
link pollution from mountaintop removal mining with cancer, 
with birth defects, lung and heart disease. Multiple studies 
within the last 3 years found significantly higher rates of 
cancer and heart disease in West Virginia residents living near 
mountaintop removal mines compared to West Virginia residents 
living away from those mines. And the U.S. Geological Survey 
recently published preliminary research showing that areas near 
mountaintop removal mines have significantly higher 
concentrations of some metals in air particulates, which are 
known to be associated with cancer and lung disease.
    The majority's legislation requires that we ignore all of 
these realities. It would lock in a woefully inadequate Bush 
rule for as long as 7 years, probably longer, and force OSM to 
start its years-long rulemaking process from scratch. In the 
name of saving taxpayer dollars, we are undoubtedly with this 
bill embarking on a path to spend a whole lot more taxpayer 
dollars.
    A decade or more of inadequate protection from mountaintop 
removal mining would destroy more Appalachian streams and 
communities and damage public health. OSM must be allowed to 
assess the evolving science on this issue and to set standards 
that are based on best technology available in order to 
minimize the adverse effects of surface mining as called for by 
law.
    As I said at our previous hearing on this issue just last 
week, we can have an informed debate about what a new stream 
protection rule should require. But we can have that debate 
only once a proposed rule is issued. And OSM will be required 
at that time to consider outside perspectives, including those 
of coal companies, Members of Congress, and others before 
adopting a final rule that has the force of law.
    Unfortunately, the majority has used every imaginable ploy 
to disrupt, delay, and prejudice this deliberative process. 
They believe coal companies should be allowed to blow the tops 
off mountains and dump the waste into streams, no matter what 
the science says about the consequence for our environment and 
the public health. This legislation should be opposed.
    I yield back the balance of my time.
    [The prepared statement of Mr. Huffman follows:]
Prepared Statement of The Honorable Jared Huffman, a Representative in 
                 Congress From the State of California
    Thank you Mr. Chairman.

    The bill we are discussing today would stop the Interior 
Department's Office of Surface Mining from adopting a new rule to 
protect the people of Appalachia from destructive mountaintop removal 
mining. It also would require States to implement the Bush 
Administration's 2008 midnight regulation, which weakened protections 
put in place 25 years earlier during the Reagan Administration.
    The 1983 Reagan rule stated, and I quote, ``No land within 100 feet 
of a perennial stream or an intermittent stream shall be disturbed by 
surface mining activities.'' Regulators could allow surface mining 
activities ``closer to, or through, such a stream,'' but only upon 
finding that these activities, ``will not cause or contribute to the 
violation of applicable State or Federal water quality standards, and 
will not adversely affect the water quantity and quality or other 
environmental resources of the stream.''
    The 2008 Bush rule exempts waste disposal practices associated with 
mountain-top removal mining from the buffer zone requirement, in 
contravention of the Surface Mining Control and Reclamation Act. The 
Bush rule also permits surface coal mining activities even if such 
activities may cause or contribute to violations of water quality 
standards.
    The Majority's legislation would require that we give the Bush rule 
a try and see what happens. We already know what will happen.
    Mountaintop removal mining buried or despoiled around 2,000 miles 
of streams under the Reagan rule. The Bush rule weakens the Reagan rule 
and would make matters worse: more streams buried, more communities 
turned into ghost towns, more people suffering the health consequences 
of contaminated air and water.
    On Wednesday the Majority suggested naming our oceans after Ronald 
Reagan; today they propose rolling back the former President's modest 
efforts to protect streams from surface mining.
    This Republican plan would be devastating. New studies link 
pollution from mountaintop removal mining with cancer, birth defects, 
lung and heart disease. Multiple studies within the last 3 years found 
significantly higher rates of cancer and heart disease in West Virginia 
residents living near mountaintop removal mines, compared to West 
Virginia residents living away from those mines. And the U.S. 
Geological Survey recently published preliminary research showing that 
areas near mountaintop removal mines have significantly higher 
concentrations of some metals in air particulates, which are known to 
be associated with cancer and lung disease.
    The Majority's legislation requires that we ignore these realities. 
It would lock in the woefully inadequate Bush rule for as long as 7 
years and force OSM to start its years-long rulemaking process over 
from scratch.
    A decade or more of inadequate protection from mountaintop removal 
mining would destroy more Appalachian streams and communities, and 
damage public health. OSM must be allowed to assess the evolving 
science on this issue and set standards based on the best technology 
available to minimize the adverse effects of surface mining, as called 
for by the law.
    As I said at our previous hearing on this issue just last week, we 
can have an informed debate about what a new stream protection rule 
should require, once a proposed rule is issued. And OSM will be 
required to consider outside perspectives, including those of coal 
companies and Members of Congress, before adopting a final rule that 
has the force of law.
    Unfortunately, the Majority has used every imaginable ploy to 
disrupt, delay and prejudice this process. They believe coal companies 
should be able to blow the tops off mountains and dump waste into 
streams, no matter what the science says about the consequences for the 
environment and public health.
    This legislation should be opposed.
                                 ______
                                 
    Mr. Lamborn. OK. And I also ask unanimous consent that the 
gentleman from Ohio, Mr. Johnson, the sponsor of the 
legislation and a Natural Resources Committee alumni, be 
allowed to sit on the dais and participate in the Committee 
today and make a brief opening statement.
    Seeing no objection, so ordered.
    Now I recognize the Member to make a brief opening 
statement. Then we will adjourn and go over to the Floor.

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

    Mr. Johnson. Well, thank you, Mr. Chairman, for holding 
this important hearing today on the legislation that you and I 
introduced last week.
    I have to start my comments, you know, it is almost 
laughable the comments by the Ranking Member referring to the 
Bush rule as a midnight rule. Five years of work to put that 
rule in place, thousands and thousands and thousands of pages 
of public comments and documentation.
    You want to talk about a midnight rule? Look at the time 
schedule that was originally proposed by OSM to destroy the 
coal industry in a matter of months. And it was only their own 
ineptness in the rulemaking process and the work of this 
Committee that stopped them from doing that. I am insulted by 
it. The people in Appalachia that harvest coal and depend on 
coal for their livelihoods, they are insulted by it.
    I wish we weren't here today discussing the lackluster 
effort by the Office of Surface Mining and Reclamation to 
rewrite the Stream Buffer Zone Rule. However, over the last 5 
years OSM has engaged in a comedy of errors that have led us to 
this point. It would be funny if it didn't include millions of 
dollars of taxpayers' money wasted and tens of thousands of 
jobs on the line.
    OSM has been derelict in their duties since the start of 
this Administration because of their mismanagement of the 
rulemaking process and their clear desire to virtually shut 
down the coal mining industry in Appalachia. This dereliction 
of duty and failure of leadership was further confirmed last 
week when Director Pizarchik couldn't even answer the most 
basic questions about the status of the rule and what it would 
mean for jobs and the coal industry, and coal production in 
general.
    So that is why we are here today, to relieve OSM of their 
duties that they have not and cannot meet. With this 
legislation, we will save taxpayers untold more millions of 
dollars and save thousands of direct and indirect jobs. And I 
would invite my colleagues on the left and anyone else that 
wants to come to Appalachia, Ohio, and meet the coal miners and 
meet the families that are dependent upon the coal industry. We 
are not just talking about surface mining here. We are talking 
about shutting down underground longwall coal mining in 
America. It is disastrous. And I certainly hope that my 
colleagues will support this legislation.
    With that, I yield back.
    Mr. Lamborn. OK. Thank you.
    [The prepared statement of Mr. Johnson follows:]
 Prepared Statement of The Honorable Bill Johnson, a Representative in 
                    Congress From the State of Ohio
h.r. 2824--preventing government waste and protecting coal mining jobs 
                               in america
    Thank you Mr. Chairman for holding this important hearing today on 
the legislation that you and I introduced last week.
    I have to start my comments . . . you know it is almost laughable, 
the comments by the Ranking Member, referring to the Bush rule as a 
midnight rule. Five years of work to put that rule in place, thousands, 
and thousands, and thousands of pages of public comments and 
documentation. You want to talk about a midnight rule? Look at the time 
schedule that was originally proposed by OSM to destroy the coal 
industry in a matter of months and it was only their only ineptness in 
the rulemaking process and the work of this Committee that stopped them 
from doing that. I'm insulted by it, the people in Appalachia that 
harvest coal and depend on coal for their livelihoods, they're insulted 
by it.
    I wish we weren't here today discussing the lackluster effort by 
the Office of Surface Mining and Reclamation to rewrite the Stream 
Buffer Zone Rule. However, over the last 5 years OSM has engaged in a 
comedy of errors that have led us to this point. It would be funny if 
it didn't include millions of dollars of taxpayer's money wasted, and 
tens of thousands of jobs on the line. OSM has been derelict in their 
duties since the start of this Administration because of their 
mismanagement of the rulemaking process and their clear desire to 
virtually shut down the coal mining industry in Appalachia.
    This dereliction of duty and failure of leadership was further 
confirmed last week when Director Pizarchik couldn't even answer the 
most basic questions about the status of the rule and what it would 
mean for jobs and the coal industry, and coal production, in general. 
So, that is why we are here today; to relieve OSM of their duties that 
they have not, and cannot meet. With this legislation we will save 
taxpayers untold more millions of dollars and save thousands of direct 
and indirect jobs. I would invite my colleagues on the left, and anyone 
else who wants to come to Appalachia Ohio and meet the coal miners, and 
meet the families that our dependent upon the coal industry. We are not 
just talking about surface mining here; we are talking about shutting 
down underground longwall coal mining in America. It' is disastrous and 
I certainly hope that my colleagues will support this legislation.
    With that I yield back.
                                 ______
                                 
    Mr. Lamborn. We have roughly 9 minutes left on the vote, so 
we are going to take a recess in this Subcommittee to go over 
and vote. We will be back as soon as the vote series is over, 
and then we will resume our hearing. And I appreciate the 
indulgence of the witnesses.
    The Committee will be in recess.
    [Recess.]
    Mr. Lamborn. The Committee will come back to order. Thank 
you for your patience. We will now hear from our witnesses: Mr. 
Thomas Clarke, Director of the Division of Mining and 
Reclamation, the West Virginia Department of Environmental 
Protection; Mr. Bradley Lambert, Deputy Director of the 
Virginia Department of Mines, Minerals and Energy; and Mr. John 
Paul Jones, Director of Environmental Affairs for Alpha Natural 
Resources and a National Mining Association member.
    Like all our witnesses, your written testimony will appear 
in full in the hearing record, so I ask that you keep your oral 
statements to 5 minutes.
    Our microphones are not automatic, so you need to turn them 
on when you are ready to begin. The timing lights work as the 
following: The green light starts up when you begin and start 
your 5 minutes. The yellow comes on after 4 minutes. The red 
light comes on after 5 minutes. And we ask to conclude at that 
time.
    Thank you all for being here. We look forward to your 
testimony.
    And, Mr. Clarke, you may begin.

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

    Mr. Clarke. Good morning, Mr. Chairman and members of the 
Committee. I am Tom Clarke. I am Director of the Division of 
Mining and Reclamation of the West Virginia Department of 
Environmental Protection. Thank you for the opportunity to 
address the Committee concerning H.R. 2824.
    Mining fill placement in waters of the United States is 
regulated by the Corps of Engineers under section 404 of the 
Clean Water Act and by State regulatory programs under SMCRA. I 
would like to take the Committee through a brief timeline of 
the recent history of regulation of mining fill placement.
    From and after 1998, there has been litigation over mining 
fill replacement under SMCRA's 1983 Buffer Zone Rule and the 
Clean Water Act section 404. The 1983 Buffer Zone Rule 
prohibited mining within 100 feet of a perennial or 
intermittent stream unless a waiver could be granted. The 
requirements for a waiver could not be met in the stream 
segment that is filled. However, neither OSM nor States had 
ever applied the Buffer Zone Rule as a prohibition of mining 
fills. But in lawsuits, environmental groups claimed that the 
Buffer Zone Rule did just that.
    In response, in January 2004, OSM published a notice of 
proposed rulemaking for what became the 2008 Buffer Zone Rule. 
In this notice, OSM said it was not aware of the 1983 rule ever 
being applied as a prohibition of mining in the buffer zone. It 
said it was seeking to clarify circumstances in which mining 
activities, including fills, are allowed in the buffer zone. It 
also said another purpose of this rulemaking was to align the 
rule more closely with its basis in SMCRA and OSM's history of 
interpreting it.
    In December 2008, OSM finalized the 2008 rule. It added new 
requirements for avoidance of fill in waters, analysis of 
alternatives to fill in waters, and it was generally harmonious 
with the Corps of Engineers requirements under section 404 of 
the Clean Water Act. Environmental groups immediately 
challenged the 2008 rule in court. Subsequently, on June 11, 
2009, the Interior Department, EPA, and the Corps entered into 
an MOU that committed OSM to developing the Stream Protection 
Measures rule. This MOU and OSM's March 2010 settlement of the 
lawsuit over the 2008 rule with environmental groups provided 
the impetus for OSM to pursue the Stream Protection Measures 
rule. In this settlement, OSM agreed to replace the 2008 rule 
by January 2011.
    The new rule is not justified by the history of OSM 
oversight under SMCRA. OSM's settlement put it under 
unrealistically tight timeframes for producing a rule. OSM 
initiated the EIS for the new rule in the late summer of 2010. 
It was underway in earnest in the fall of 2010. State 
cooperating agencies, of which West Virginia is one, were given 
very little time to review voluminous chapters of the EIS. In a 
letter dated November 23, 2010, the States complained to OSM 
about inadequate time to review the EIS and its poor overall 
quality. Subsequently, OSM fired its EIS contractor.
    Since then, the States have received little or no 
information about the EIS despite sending another letter to OSM 
on July 3 of this year seeking to reengage the process, and 
also despite what we have heard, that OSM employees are 
actively working on the EIS rule internally.
    A leaked version of the new rule in 2010 shows serious 
potential conflicts with the Clean Water Act. It provides a 
biologic component of the material damage definition, biologic 
performance standards, and quantification methods for 
determining material damage. These have great potential to 
conflict with water quality standards in the Clean Water Act. 
The new rule would also provide corrective action thresholds of 
which operations that are otherwise in compliance with Clean 
Water Act requirements are subject to regulatory consequences 
under surface mining laws.
    On the Surface Mining Act side, it also provides national 
definitions for Approximate Original Contour and material 
damage to the hydrologic balance, thus eliminating the 
flexibility that the States are supposed to have under SMCRA.
    I understand that OSM has recently projected an August 2014 
date for final promulgation of this rule. The timeframes for 
public comment on a draft rule in EIS and OSM's development of 
responses to these comments in a final rule would appear to 
make publication of a proposed rule and EIS imminent. The 
States and the public have been shut out of a process that is 
expected to bring radical change to surface mining regulation. 
This is bad policy. The 2008 rule, which was carefully 
considered over a 5-year period, has never been implemented and 
should be given a chance to work. If radical change in mining 
regulation is to occur, the impetus for that should come from 
Congress, not a backroom agreement of bureaucrats or a sue-and-
settle court settlement. An approach like H.R. 2824's is 
appropriate.
    Again, I would like to thank the Committee for the 
opportunity to appear today and would be glad to answer any 
questions.
    Mr. Lamborn. All right. Thank you.
    [The prepared statement of Mr. Clarke follows:]
 Prepared Statement of Thomas L. Clarke, Director, Division of Mining 
 and Reclamation, West Virginia Department of Environmental Protection
    The West Virginia Department of Environmental Protection 
appreciates the opportunity to submit this testimony regarding a 
legislative hearing on H.R. 2824, the Preventing Government Waste and 
Protecting Coal Mining Jobs in America Act.
    On the eve of the 36th anniversary of the adoption of the Surface 
Mining Control and Reclamation Act of 1977 (``SMCRA'' or the ``Act''), 
the Office of Surface Mining Reclamation and Enforcement (OSM) is 
continuing its efforts to substantially re-write the regulations 
governing the way coal mining is conducted in America. Its most recent 
projection is that this effort, its Stream Protection Measures 
Rulemaking, will be completed a year from now, in August of 2014. In 
doing this, OSM is casting aside revisions it made to its Stream Buffer 
Zone Rule in 2008, without ever attempting to implement them. The 2008 
Stream Buffer Zone Rule was a logical evolution of the surface mining 
regulatory program. It was promulgated in an open, transparent manner 
accompanied by a multi-year Environmental Impact Statement (EIS) 
supporting it. In contrast, the Stream Protection Measures Rule finds 
its genesis in a backroom agreement of Federal regulators who sought 
not only to impose a regulatory stranglehold on a significant source of 
the Nation's energy supply but, also, to radically transform the 
economy of the Appalachian region in so doing.
      osm's impetus for the stream protection measures rulemaking
    From where does OSM get the impetus for its attempt to re-write the 
details of a mature regulatory program? Not from thousands of 
inspections in its role of oversight over State regulatory agencies to 
whom SMCRA gives exclusive regulatory jurisdiction. Not from 30 plus 
years of annual evaluations of State regulatory programs. Not from any 
demands from Congressional overseers that OSM conform to Congressional 
intent. Not from any outcry from State regulators demanding fixes for 
broken regulatory programs. No, the impetus comes from two sources: (1) 
a June 11, 2009 MOU the Interior Department signed with the 
Environmental Protection Agency (EPA) and the Army Corps of Engineers 
which targeted Appalachian coal mining for stricter scrutiny; and (2) a 
``sue and settle'' lawsuit settlement reached with environmental groups 
in their challenge of 2008 revisions to OSM's stream buffer zone rule.
    In the June 11, 2009, MOU these agencies agreed to make significant 
changes in the way coal mining is regulated in Appalachia. These 
agencies made this agreement without advance notice or opportunity for 
comment. OSM explained its part under this MOU:

        On June 11, 2009, the Secretary of the Department of the 
        Interior, the Administrator of the U.S. Environmental 
        Protection Agency (EPA), and the Acting Assistant Secretary of 
        the Army (Civil Works) entered into a memorandum of 
        understanding (MOU) implementing an interagency action plan 
        designed to significantly reduce the harmful environmental 
        consequences of surface coal mining operations in six 
        Appalachian States, while ensuring that future mining remains 
        consistent with Federal law.

    Volume 75 Fed. Reg. 34667 (June 18, 2010); 75 Fed. Reg. 22723 
(April 30, 2010). The June 11, 2009 MOU committed OSM to making 
``[r]evisions to key provisions of current SMCRA regulations, including 
the Stream Buffer Zone Rule and Approximate Original Contour (AOC) 
requirements''. In addition to the OSM rulemaking effort that is the 
subject of the Energy and Mineral Resources Subcommittee's current 
focus, this June 11, 2009 MOU has been the basis of other efforts 
undertaken by both OSM and the U.S. Environmental Protection Agency 
(``USEPA'') to unlawfully seize regulatory authority that legitimately 
resides with the States and other agencies under SMCRA and the Clean 
Water Act (``CWA'') and adopt what amount to new regulations for the 
regulation of coal mining that are contrary to these agencies' enabling 
statutes.
    The authors of this MOU apparently understood that accomplishment 
of their regulatory goals would fundamentally change and, perhaps, 
devastate the economy of the Appalachian region, which has historically 
been dependent on coal mining. To address this, the MOU anticipates 
that, ``the Federal Government will help diversify and strengthen the 
Appalachian regional economy. This effort will include the agencies to 
this MOU, and other Federal agencies, as appropriate, and will work to 
focus clean energy investments and create green jobs in Appalachia.'' 
Clearly, economic and social engineering is well beyond any legitimate 
role Congress has granted to agencies like OSM, EPA and the other 
signatories to the June 11, 2009 MOU. These agencies need to be 
accountable to Congress and be required to operate within the legal 
authority Congress has granted them.
    Another impetus for OSM's Stream Protection measures rulemaking was 
a court settlement. When the June 11, 2009 MOU committed OSM to 
changing its 2008 stream buffer zone rule, OSM was already in 
litigation with environmental groups challenging the 2008 rule. On 
March 19, 2010, after OSM was unsuccessful in persuading the court to 
allow it to simply cast aside the 2008 rule, OSM entered into a 
``friendly'' settlement agreement with the opponents of this rule. In 
this settlement, OSM committed to issuance of a proposed regulation 
replacing the 2008 rule, i.e., the Stream Protection Measures rule, by 
February 28, 2011. This necessarily required OSM to complete the draft 
EIS for the Stream Protection Measures rule within the same timeframe, 
by February 28, 2011. The unreasonableness of the timeframe OSM 
targeted for completion of this EIS might be best illustrated by a 
comparison with the EIS it conducted for the 2008 stream buffer zone 
rule, which it aimed to replace. From OSM's announcement of its intent 
to prepare an EIS for the 2008 stream buffer zone rule through issuance 
of a draft EIS, a little more than 26 months passed. Importantly, the 
EIS for the 2008 rule built upon the more extensive Mountaintop 
Mining--Valley Fill EIS that had recently been completed in 2005. In 
contrast, the EIS for the Stream Protection Measures Rule has been 
conducted as a stand-alone EIS for a much more sweeping regulatory 
change than the 2008 stream buffer zone rule. OSM announced its intent 
to prepare the Stream Protection Measures EIS in April, 2010 and again 
in June, 2010. This allowed OSM only 8 months to complete a draft EIS 
for the Stream Protection Measures Rule.
the stream protection measures rulemaking process has been flawed from 
                               the start
    OSM correctly realized that its planned Stream Protection Measures 
rulemaking was sufficient in scope to require the preparation of an EIS 
in accordance with the National Environmental Policy Act (NEPA). 
However, in contrast to the transparency and the hard look at 
environmental consequences NEPA envisions, OSM has conducted the EIS in 
such a manner as to foreclose meaningful participation by cooperating 
agencies, of which the West Virginia Department of Environmental 
Protection is one. It began the EIS with a ``cram down'' approach. 
Under the unrealistically ambitious schedule OSM had established, the 
eight cooperating State agencies were denied an opportunity to review 
the first chapter of the EIS and were given only a very few days to 
review and comment on hundreds of pages of material in chapters two, 
three and four. Complicating the process was the fact that the 
contractor OSM had hired to produce the EIS was apparently not up to 
the task. After having only a brief opportunity to see and comment on 
chapters two, three and four of the EIS, the States sent a joint letter 
to OSM on November 23, 2010 complaining about the lack of meaningful 
opportunity to comment on the EIS and the poor overall quality of the 
product. Subsequently, OSM fired its EIS contractor.
    Since OSM fired its contractor on the EIS, its process has shifted 
to a nearly complete blackout on information about development of the 
Stream Protection Measures Rule. Instead of NEPA's ``hard look'' at the 
consequences of Federal action, OSM has shifted to a ``no look'' 
approach. The eight cooperating agency States sent another letter to 
OSM on July 3, 2013, inquiring about OSM's intentions to further engage 
with the States on the EIS and expressing interest in continued 
participation in it. The States requested a reply from OSM by July 10, 
2013. To date, no reply or other communication has been received. 
Apparently, OSM intends to simply publish a draft EIS and proposed rule 
someday without further engagement with the cooperating agency States 
or opportunity for them to review substantially re-written versions of 
chapters two, three and four and never-before-seen versions of 
subsequent chapters.
                 impacts of the stream protection rule
    Figures that became public around the time that OSM fired its 
contractor for the EIS projected significant negative economic impacts 
for the Appalachian region from the Stream Protection Measures Rule in 
terms of job losses in the thousands, even greater population losses 
and reduction of the tax base. Because OSM has yet to lift the veil on 
the actual language of its proposed rule, a concise assessment of the 
rule's regulatory burden on State agencies cannot be performed. From 
briefings OSM conducted when it first began to consider this rule, 
however, we are aware of many specific concepts that are expected to be 
embodied in the Stream Protection Measures Rule. Several of these 
concepts are troublesome to the West Virginia Department of 
Environmental Protection:

  --SMCRA provides that it is not to be applied in a manner that will 
        supersede, amend or repeal the Federal Clean Water Act. 30 
        U.S.C. Sec. 1292(a). This provision of SMCRA has been applied 
        by the courts to reject a past attempt by OSM to establish what 
        amounted to water quality standards. At the present time, 
        several of the Appalachian States, including West Virginia, are 
        in the process of establishing how narrative State water 
        quality standards for the protection of biologic components of 
        the aquatic ecosystem are to be applied in the context of the 
        regulation of coal mining. This process involves great 
        potential for conflict between USEPA and the States over the 
        application the Clean Water Act in this area. OSM intends to 
        interject itself in the middle of the debate between USEPA and 
        the States over this issue by including a biologic component in 
        its material damage definition . There is great potential for 
        this element of OSM's rules to conflict with the Clean Water 
        Act. The biologic component of the material damage definition 
        may be another unlawful attempt by OSM to establish what 
        amounts to a water quality standard.

  --A proposed performance standard that would prohibit adverse impacts 
        to a stream's biologic community. This proposal suffers from 
        the same defects that affect OSM's proposal to include a 
        biologic component in its material damage definition, as 
        discussed in the paragraph above.

  --The material damage definition is also expected to include 
        ``quantification methods'' to define what constitutes material 
        damage. Again, OSM appears to be at risk of interfering with 
        the Clean Water Act where these quantification methods amount 
        to de facto numeric water quality standards.

  --The material damage definition will also include ``corrective 
        action thresholds'' to identify trends and require correction 
        before the level of material damage is reached. This, too, 
        presents great potential for conflict with the Clean Water Act. 
        The NPDES permitting program under the Clean Water Act has a 
        process to establish effluent limitations for protection of 
        water resources. Discharges from mines or other facilities that 
        comply with these limitations are lawful and discharges that 
        exceed these limitations are unlawful. OSM's corrective action 
        thresholds would appear to be attaching regulatory consequences 
        to what would otherwise be lawful discharges under the Clean 
        Water Act's NPDES program, in conflict with the Clean Water 
        Act.

  --The material damage definition is expected to codify OSM's Acid 
        Mine Drainage Policy. Without getting into an in-depth 
        discussion of the AMD policy, this probably is a sufficient 
        enough departure from the statutory language of SMCRA to 
        require it to be adopted through Congressional action rather 
        than agency rulemaking.

  --OSM will propose that approval to mine through natural drainage 
        ways or streams be ``sequenced''. By this, OSM means that a 
        mine must completely reclaim a drainway it has mined through, 
        including restoration of the pre-mining biologic community in 
        the drainway, before the mine will be allowed to mine through 
        any subsequent drainway. In as much as drainways across 
        Appalachian mountain sides may be separated by only a couple 
        hundred feet, this proposal is entirely unrealistic.

  --The portion of the Stream Protection Measures Rule that deals with 
        disposal of excess spoil proposes to require constructed 
        aquatards within excess spoil fills. Historically, nearly all 
        of the construction standards that have applied to excess spoil 
        fills have been oriented toward assuring their stability. One 
        element of the design has been to assure that these structures 
        drain freely. An aquatard is a layer of decreased permeability 
        where water will be forced to drain laterally through the 
        interior of a fill. This has the potential to seriously 
        compromise the structural integrity of these fills. Our 
        engineers refer to the aquatard as a ``failure plane.'' The 
        failure of such a structure would be a threat to public safety.

  --The excess spoil disposal rules will also require the tops of fills 
        to be sloped to cause drainage to run off instead of 
        infiltrating the fill. Achieving the goal of promoting runoff 
        will cause peak flow to increase during rain events, 
        contributing to offsite flooding.

  --OSM proposes to place additional restrictions on the granting of 
        variances from the existing requirement for restoration of the 
        approximate original contour of mined lands. This proposal has 
        great potential to conflict with West Virginia land use 
        planning laws. The coal mining areas of southern West Virginia 
        have had little economic development because the terrain is too 
        rugged. The State Legislature has recognized that mining 
        presents a unique opportunity to provide a resource that these 
        areas lack, flat land. This is essential to the future, post-
        mining economic viability of these areas. The State has adopted 
        legislation which requires county level economic development 
        authorities to develop county-wide master land use plans. These 
        plans are required to be approved by State government and to 
        meet certain minimum State requirements. Each plan must be 
        updated and re-approved by the State at 3 year intervals so as 
        assure that it remains current. Under these plans, land that is 
        proximal to supporting infrastructure, such as four lane 
        highways or other transportation corridors, is targeted for 
        development while forestry and comparable land uses are planned 
        for more remote lands. New mining operations are required to 
        attain a post mine land use that comports with the county 
        master land use plan. OSM's proposal to further restrict 
        variances from the approximate original contour requirement 
        conflicts with these State land use laws and may foreclose the 
        opportunity to provide flat land through the mining process, so 
        there can be economic development of these historically coal 
        dependent areas after the coal is gone.

    An overarching issue is the fundamental change in the Federal-State 
relationship under SMCRA that is expected to come from the Stream 
Protection Measures Rule. It is likely to result in elimination of the 
ability of States to craft their regulatory programs as necessary to 
address local State issues. In the 36 years since SMCRA was adopted, 
OSM has left two of the Act's most fundamental concepts ``approximate 
original contour'' and ``material damage to the hydrologic balance'', 
to the States to apply. This was done with good reason. Application of 
``approximate original contour'' in the rugged Appalachian terrain of 
eastern Kentucky, southwest Virginia and southern West Virginia raises 
far different issues than in the flatter farmland of Indiana or the 
western plains. Application of the term, ``material damage to the 
hydrologic balance'' necessarily involves vastly different issues in 
the arid West than in the more humid East. The Stream Protection 
Measures Rule will end the authority to deal with State-specific issues 
at the State level that States currently enjoy. It will impose national 
one-size-fits-all standards from Washington. This approach runs 
contrary to one of the express findings Congress made in adopting 
SMCRA:

        [B]ecause of the diversity in terrain, climate, biologic, 
        chemical, and other physical conditions in areas subject to 
        mining operations, the primary governmental responsibility for 
        developing, authorizing, issuing, and enforcing regulations for 
        surface mining and reclamation operations subject to this Act 
        should rest with the States[.]

30 U.S.C. Sec. 1201(f).
                    the 2008 stream buffer zone rule
    The 2008 Stream Buffer Zone Rule was meant to clarify the 1983 
version of this rule. The 1983 Stream Buffer Zone rule was the target 
of litigation from and after the late 1990s that sought to re-interpret 
this rule in a way that was contrary to both its existing 
interpretation, the provisions of SMCRA which govern excess spoil and 
fill placement and the authority of the Army Corps of Engineers under 
section 404 of the Federal Clean Water Act. The 2008 rule represents a 
rational approach to resolution of these potential conflicts. It 
clarifies the Stream Buffer Zone Rule in a manner that does not pose 
these conflicts and strengthens the previous rule by adding new 
requirements which further limit the impact on streams from disposal of 
excess spoil and other fill material from coal mining operations. New 
requirements of the 2008 rule include standards that require avoidance 
of fill in stream channels, analysis of alternatives to filling streams 
and standards that are harmonious with requirements of the Army Corps 
of Engineers in its permitting program for authorization of fill 
placement in waters of the United States under section 404 of the Clean 
Water Act.
   the west virginia regulatory program's existing stream protection 
                              requirements
    The regulatory programs in West Virginia and other States have not 
been static. The State programs have evolved over time to deal with 
State issues as they have arisen. The current OSM rulemaking will 
diminish the regulatory flexibility that States have in favor of 
national solutions dictated from Washington. West Virginia has been 
successful in addressing new issues as they arise, within SMCRA's 
regulatory framework. There are many requirements for the protection of 
the hydrologic balance an applicant for a permit must meet before a 
surface mining permit will be issued:

  --Core drilling must be conducted in the area where surface mining is 
        proposed. Each layer of rock in the core sample is analyzed for 
        chemical content. The data is used to determine which rock 
        layers have potential to leach and produce pollutants. The 
        principal focus has been on prevention of acid mine drainage 
        (low pH and iron) and selenium pollution. Rock layers that 
        exhibit this potential are required to be specially handled and 
        placed, so the opportunity for these materials to come into 
        contact with water is minimized.

  --The applicant must conduct extensive water sampling to establish 
        the pre-mining baseline condition for surface and ground water 
        quality and quantity in the area of the proposed mine. The 
        number of samples taken must be sufficient to establish the 
        seasonal variation in these baseline conditions.

  --The applicant must perform a detailed analysis of the likely 
        effects of its proposed mining operation. This analysis is 
        called a ``PHC'' (prediction of Probable Hydrologic 
        Consequences).

  --The applicant must include a Hydrologic Reclamation Plan (``HRP'') 
        in its application. The HRP must contain measures the applicant 
        will take to reduce the hydrologic impact of its proposed 
        mining operation, comply with effluent limitations imposed 
        under the CWA and a plan for replacement of the water supply of 
        anyone whose water supply is unexpectedly contaminated or 
        interrupted by the mining operation.

  --The applicant must perform a Storm Water Runoff Assessment (SWROA). 
        In the SWROA, the applicant must model storm water runoff from 
        the proposed mining operation under pre-mining, worst case 
        during mining, and post mining scenarios. The SWROA must 
        demonstrate that the mine has been designed so as to not allow 
        a net increase in peak runoff in comparison to the pre-mining 
        condition. There is no Federal counterpart to West Virginia's 
        SWROA requirement.

  --The application must contain detailed engineering design 
        information for all drainage control or water retention 
        structures.

  --The applicant must demonstrate that it has minimized the amount of 
        mine spoil it is not using in reclamation (excess spoil) and 
        placing outside the mined area in a drainway or stream. West 
        Virginia requires applicants to utilize a modeling tool called 
        AOC+ (approximate original contour) in making this 
        demonstration. This modeling tool has been in use for more than 
        10 years and has been approved by USEPA, the Army Corps of 
        Engineers and OSM as a legitimate means of demonstrating the 
        amount of mine spoil returned to the mined-out area for use in 
        reclamation has been optimized and the size of any fill placed 
        in a stream outside the mined area has been minimized.

  --The agency must perform a Cumulative Hydrologic Impact Assessment 
        (``CHIA'') for the proposed mine and all other existing or 
        proposed mining in the cumulative impact area for the proposed 
        operation. A permit will not be issued unless the agency can 
        make a finding that the applicant has affirmatively 
        demonstrated that its proposed operation has been designed to 
        prevent ``material damage to the hydrologic balance outside the 
        permit area''.

  --West Virginia is one of a few States that have promulgated 
        regulations defining ``material damage to the hydrologic 
        balance''. There is no Federal definition of this term.

  --The agency performs a Buffer Zone Analysis (``BZA'') for any permit 
        which contemplates placement of spoil within 100 feet of an 
        intermittent or perennial stream. The BZA involves detailed 
        environmental analyses of the environmental impacts of spoil 
        placement in such areas and has been relied upon by the Army 
        Corps of Engineers in its issuance of permits for mining-
        related fills in waters of the United States under section 404 
        of the Clean Water Act. There is no parallel to the BZA in 
        Federal surface mining regulations. The BZA is described in 
        more detail in the attached letter from Thomas D. Shope of OSM 
        to Joseph M. Lovett dated December 8, 2009. This letter also 
        contains a detailed discussion of how the West Virginia 
        regulatory program complies with its stream buffer zone rule, 
        which the subcommittee may also find to be of interest.

  --The permit must establish plans for monitoring surface and ground 
        water quality and quantity during mining, so predictions in the 
        applicant's PHC can be verified. It must also include a during-
        mining monitoring plan for verification of the predictions of 
        the SWROA it has conducted.

  --The State recently adopted permitting guidance for application of 
        its narrative water quality standard for the protection of the 
        biologic component of the aquatic ecosystem in NPDES permitting 
        under the CWA. As a result, the Aquatic Ecosystem Protection 
        Plans required under this guidance for the NPDES permitting 
        program are now also being included in HRPs for mining 
        operations. CHIAs the agency performs are also addressing 
        protection of the aquatic ecosystem.

    Beyond the permitting requirements outlined above, the West 
Virginia regulatory program includes a number of performance standards 
that apply to all aspects of hydrologic protection that are addressed 
in permitting. The West Virginia Department of Environmental Protection 
inspects all permits on a minimum frequency of once per month to assure 
that performance standards and permit conditions are being met. 
Enforcement action is taken, including notices of violation and 
cessation orders, as appropriate, for a mine operator's failure to 
comply. Civil penalties are assessed for non-compliance. Operators 
which fail to correct violations on a timely basis are blocked from 
receiving future permits. A pattern of violations can result in 
suspension or revocation of a mine operator's permit.
                               conclusion
    OSM and the other parties to the June 11, 2009 MOU have attempted 
to boldly make quantum shifts in regulatory policy that are the 
business of Congress and State legislatures to make. The courts have 
rejected actions EPA has taken to carry out its tasks under this MOU. 
OSM's principal task under the MOU, its Stream Protection Measures 
rulemaking is also ill-conceived, is aimed at fixing problems that have 
not been demonstrated to exist, has great potential to conflict with 
the Clean Water Act and is being undertaken under a veil of secrecy. 
Congress should constrain OSM to its proper role under SMCRA and 
require it to interpret the law consistent with the congressional 
intent behind it.
    The 2008 Stream Buffer Zone rule properly resolved issues that 
arose in the interpretation of its predecessor rule, did so in a manner 
that was harmonious with the Clean Water Act and the congressional 
intent behind SMCRA and provided enhanced protection of streams. OSM 
has not implemented this rule and has never given it a chance to work. 
Before OSM is allowed to complete a radical revision of its surface 
mining rules, it should take some time to evaluate the operation of its 
2008 rule. The approach of H.R. 2824 is a reasonable way to accomplish 
this.
    I sincerely hope this written statement, the attachment submitted 
herewith and the oral testimony presented before the Subcommittee are 
useful to it. If I can be of further assistance to the Subcommittee, 
please contact me.
                                 ______
                                 
          Letter Submitted for the Record From Thomas D. Shope
                   U.S. Department of the Interior,
     Office of Surface Mining, Reclamation and Enforcement,
                                  Pittsburgh, PA, December 8, 2009.
Joseph M. Lovett,
Executive Director,
Appalachian Center for the
Economy and the Environment,
Lewisburg, WV 24901.
Re:   Response to petition requesting Federal enforcement of West 
            Virginia's surface mining program pursuant to 30 CFR part 
            733.

    Dear Mr. Lovett:

    This letter responds to your August 10, 2009, petition requesting 
Federal enforcement, pursuant to 30 CFR part 733, of West Virginia's 
stream buffer zone (SBZ) regulation. In reviewing the allegations 
raised in your letter, we have found no indication that West Virginia 
does not apply its SBZ rules consistent with its historic application 
of the SBZ requirements, as approved by OSM. Therefore, and for the 
further reasons outlined below, I am denying your request for an 
evaluation of the State program at this time. Neither your allegations 
nor other available information supports the conclusion that the State 
is failing to administer its approved SBZ provisions.
    However, it is a high priority of OSM to improve stream protection 
in Appalachia, and OSM is in the process of reviewing and revising our 
stream protection requirements through an expedited SBZ rulemaking. On 
November 30, 2009, OSM published for a 30-day public comment period an 
advance notice of proposed rulemaking for its SBZ and related 
regulations. Further, to provide increased protection for streams 
pending the final outcome of the pending rulemaking, we are currently 
seeking comment on a series of State oversight measures, and we are 
implementing immediate stream protection measures under existing 
program requirements.

    In your petition, you made the following allegations:

   ``. . . WVDEP's decision to exempt valley fills and huge 
        stream elimination projects from the scope of the rule's 
        protections renders the regulation meaningless.''

   ``. . . West Virginia does not apply the buffer zone rule to 
        the footprints of fills, neither does it consider the buffer 
        zone rule in regard to permanently eliminating intermittent and 
        perennial stream segments.''

   ``. . . we believe that the State has never denied a request 
        for a variance from the buffer zone rule.''

    Your petition also advances numerous legal arguments supporting 
your position that West Virginia must construe its rule in a manner 
consistent with your interpretation of the 1983 Federal regulation.
    We have reviewed the relevant aspects of West Virginia's program 
and have found that the factual allegations in your petition are not 
supported by the record. However, I encourage you to submit your views 
as comments on the current rulemaking.
    West Virginia does not interpret its SBZ rule in a manner that 
serves as an absolute prohibition of fills and all other coal mining 
activities (such as mining through, crossing, relocating or other 
activities) within 100 feet of an intermittent or perennial stream. 
West Virginia is applying its rule in a manner consistent with OSM's 
historical interpretation of the 1983 Federal SBZ rule upon which the 
State rule is based. The State program applies the SBZ rule in a manner 
that allows the placement of excess spoil fills, refuse piles, slurry 
impoundments, and sedimentation ponds in intermittent and perennial 
streams. However as explained below, the State uses procedures and 
processes to reduce, minimize and in some cases eliminate the placement 
of fill in streams in order to reduce the environmental impacts.
    West Virginia has previously implemented measures to minimize the 
adverse environmental impact of the placement of excess spoil in 
streams. As a result of a consent decree in Bragg v. Robertson, Civil 
Action No. 2:98-0636 (S.D. W. VA. 1998), which was approved by U.S. 
District Court Judge Charles Haden, on February 17, 2000, the West 
Virginia Department of Enviromnenta1 Protection (WVDEP) agreed to do 
the following, inter alia:

   Enforce its SBZ rule and make site-specific written findings 
        before granting SBZ variances;

   Make site-specific written findings showing that ponds are 
        to be placed as close as practicable to the toes of fills; and

   Develop a plan to meet approximate original contour (AOC) 
        and to optimize spoil placement. The plan does not cover 
        contour operations. Furthermore, the plan shall only be 
        implemented pursuant to a memorandum of understanding (MOU) or 
        agreement among the affected Federal and State agencies.

    In response to the consent decree, WVDEP, in cooperation with OSM, 
developed procedures for optimizing spoil placement. The guidance 
documents were approved by three Federal agencies (USEPA, USACE, OSMRE) 
and were implemented by WVDEP in June of 2000. This guidance, known as 
``AOC+'', was developed to achieve the following stated objectives:

   Provide an objective process for achieving AOC while 
        ensuring stability of backfill material and minimization of 
        sedimentation to streams;
   Provide an objective process for determining the quantity of 
        excess spoil that may be disposed of in excess spoil disposal 
        sites such as valley fills; and
   Optimize the placement of spoil to reduce watershed impacts.

    The AOC+ method is a reasonable procedure to ensure that an 
adequate amount of spoil will be returned to the mine excavation so 
that the AOC requirements of configuration, stability, and drainage 
will be achieved. This volumetric model (defined backfill template) 
expands the in-place overburden and then reduces the total expanded 
volume to ensure backfill stability, drainage, access and safety during 
the mining and reclamation process. The calculated backfill volume is 
placed in the mine excavation. All spoil material in excess of the 
backfill volume is placed in excess spoil fills, usually in adjacent 
valleys. Minor variations from the model are allowed for the final 
grading to blend with surrounding contours and drainage patterns.
    West Virginia also incorporates a site-specific ``Buffer Zone 
Analysis'' (BZA) into its permitting process whenever an applicant 
proposes to conduct mining activities (including fills and mining 
through) within 100 feet of an intermittent or perennial stream. This 
analysis, which is conducted by WVDEP prior to the issuance of a 
permit, addresses the following issues:

  1. Disposal Site Selection
     Does the site selection of the proposed fills and its 
            associated drainage structures represent the least 
            environmentally damaging practicable alternative?
     Can the activity operate without fills in an intermittent 
            or perennial stream?
     Has the least adverse impact alternative on special 
            aquatic sites been identified?
     Has the activity's fill volume been minimized?
     Has the fill been located and confined to impaired streams 
            to minimize smothering of organisms?
     Are previously used disposal sites available?

  2. Fill Material Evaluation
     An evaluation of the proposed fill for any indication of 
            possible contaminants, considering the following physical 
            characteristics:
                  Results from previous testing of the material 
                or similar material in the vicinity of the project.
                  Protection practices for petroleum products 
                or designated hazardous substances.
                  Known existence of substantial material 
                deposits of substances, which could be released in 
                harmful quantities to the aquatic environment by 
                manmade discharge activities.

  3. Environmental Analysis
     Are the physical and chemical characteristics of the 
            aquatic ecosystem significantly affected in the following 
            areas:
                          Substrate impacts, changes in 
                        physical, chemical and biological 
                        characteristics?
                          Suspended particulate/turbidity 
                        impacts?
                          Changes in chemistry and physical 
                        characteristics of the receiving stream?
                          Alteration of normal water flow which 
                        will result in changes in habitat, food 
                        supplies, and spawning areas?

     Do the proposed fills and associated drainage structures 
            significantly affect the following:
                          Violate applicable State Water 
                        Quality Standards?
                          Violate applicable toxic effluent 
                        standard?
                          Jeopardize the continued existence of 
                        endangered or threatened species or their 
                        habitat?
                          Aquatic ecosystem diversity, 
                        productivity, and stability?
                          Other wildlife ecosystem diversity, 
                        productivity, and stability?
                          Wetlands?
                          Riffle and pool complexes?
                          Human health, municipal and private 
                        water supplies?
                          Recreational, aesthetic and economic 
                        values?
                          Parks, historical sites and 
                        wilderness areas?

    The BZA also includes a table summarizing temporary and permanent 
impacts to intermittent and perennial streams within the proposed 
permit area. Finally, the BZA makes a specific recommendation, signed 
by the reviewing engineer, biologist, geologist and NPDES permit 
writer, to the WVDEP Director regarding approval.
    In response to your allegations, we have verified that WVDEP is 
still using AOC+ and the BZA in its permitting process and conducts a 
BZA and corresponding authorization for all mining activities within 
100 feet of an intermittent or perennial stream, including mining 
through and relocating streams. We have reviewed recently issued 
permits and selected four which our staff believe were large enough to 
require valley fills. Three of these permits proposed impacts within 
stream buffer zones: Alex Energy, Inc., S-3011-07, Raven Crest 
Contracting, LLC, S-5006-08, and Alex Energy, Inc., S-3009-07. WVDEP 
did prepare BZA's for the permits, and the permit files include AOC+ 
documentation. Two of the BZA's conducted concerned durable rock fills 
while one was for mining through and permanently relocating a stream.
    With respect to your last allegation that the WVDEP has never 
denied a stream buffer zone variance, neither OSM nor the State 
collects or tracks such statistics, and we were unable to verify or 
refute that allegation. However, State officials advised us that 
requests for the placement of spoil or the conduct of other activities 
in streams or stream buffer zones are often modified to reflect the 
least environmentally damaging practicable alternative through the 
normal permitting process. In addition, during the review process the 
applicant may revise the mining plan to avoid certain streams, and that 
may avoid the occasion for a denial. WVDEP provided a list of recently 
issued permits where proposed stream impacts had been eliminated or 
reduced through the permit review process. OSM conducted independent 
verification of two instances where proposed fills were in fact 
eliminated. The first is S5034-08 (Sandy Gap Surface Mine) in which an 
excess spoil fill was proposed, but was subsequently eliminated, with 
the excess spoil being placed on an adjacent permit backfill area. The 
second is U5013-03 (Jarrell Branch Mine, Portal A) in which 
authorization was requested for an existing haul road and a temporary 
excess spoil fill in a stream buffer zone. The temporary excess spoil 
fill was subsequently eliminated, with the material to be placed in two 
locations on existing pre-law benches, and ultimately to be used in 
reclaiming the pre-law benches and highwalls.
    Previously, for the Environmental Impact Statement conducted for 
the Federal 2008 stream buffer zone rule, OSM had reviewed 110 separate 
versions of WVDEPs' BZAs. In response to your petition, we reviewed a 
sample of those analyses and noted that one BZA resulted in moving the 
toe of a durable rock fill upstream approximately 2,800 feet, which 
eliminated the need to permanently fill several hundred feet of stream 
(SMA # S-5007-01, Apogee Coal Company).
    In summary, we found no evidence that West Virginia is implementing 
its SBZ rule in any way that substantively deviates from the approved 
State program. Therefore, we have no reason to conduct the program 
evaluation under 30 CFR 733.12(a)(2) that your petition requests.
    In recent litigation, Ohio Valley Environmental Coalition v. 
Aracoma Coal Co., 556 F.3d 177, 195 (4th Cir. 2009), the United States 
Court of Appeals for the Fourth Circuit discussed requirements of SMCRA 
concerning coal mining impacts on streams. In that decision, the court 
stated:

        Congress clearly contemplated that the regulation of the 
        disposal of excess spoil and the creation of valley fills fall 
        under the SMCRA rubric. See 30 U.S.C. Sec. 1265(b)(22)(D) 
        (2000) (requiring that lateral drains be constructed where a 
        spoil disposal area contains ``springs, natural water courses 
        or wet weather seeps''); Kentuckians for the Commonwealth, Inc. 
        v. Rivenburgh, 317 F.3d 425, 443 (4th Cir. 2003) (``[I]t is 
        beyond dispute that SMCRA recognizes the possibility of placing 
        excess spoil material in waters of the United States . . .'').

    Thus, Aracoma and Rivenburgh recognize that under SMCRA it may be 
appropriate to allow placement of excess spoil in streams. In addition, 
the Aracoma court stated:

        As part of its federally approved SMCRA regulatory program, the 
        WVDEP surface mine permitting process examines ``[e]very detail 
        of the manner in which a coal mining operation is to be 
        conducted . . . includ[ing] the plan for disposal of excess 
        spoil for surface . . . mining operations. . . .'' * * * As the 
        Corps explains in its permits, ``the social and environmental 
        impacts associated with surface coal mining and reclamation 
        operations are appropriately analyzed by WVDEP in this context 
        before that agency decides whether to permit the mining 
        operation under SMCRA.'' * * * A SMCRA permit applicant must 
        provide detailed information about possible environmental 
        consequences of the proposed operations, as well as assurances 
        that damage to the site will be prevented or minimized during 
        mining and substantially repaired after mining has come to an 
        end. The WVDEP must ensure compliance with SMCRA's 
        environmental protection performance standards. See 30 U.S.C. 
        Sec. Sec. 1257, 1260, 1265 (2000).

    Aracoma. 556 at 195-196. The Aracoma court's opinion recognizes 
that the State provides a detailed review of stream and environmental 
impacts for mine permit applications, and requires the operator to meet 
SMCRA requirements to prevent or minimize damage and to reclaim.
    I conclude that there is no requirement for OSM or the State to 
change the interpretation of the existing State SBZ rule. Further, as 
discussed above, I have reviewed the allegations you have made and I 
find that they are not verified by the information we have reviewed. I 
have no basis to conclude that the State is failing to effectively 
implement its approved stream buffer zone provisions, or that the State 
has changed its historic interpretation of those provisions. Therefore, 
I find that pursuant to 30 CFR part 733, I have no basis to evaluate 
the State's implementation of its stream buffer zone provision at this 
time.
    Although I have decided not to evaluate West Virginia's 
implementation of its provision, OSM believes it is important to 
improve protection of streams under SMCRA. Therefore, as mentioned 
above, we have started an expedited rulemaking to revise the Federal 
2008 SBZ rule to provide better environmental protections from the 
impacts of Appalachian surface coal mining. Further, OSM is taking 
immediate protective measures for streams pending final action on the 
rulemaking.
    As you are aware, on December 12, 2008 (73 FR 75814-75885), OSM 
published a final rule modifying the circumstances under which mining 
activities may be conducted in or near perennial or intermittent 
streams. That rule (referred to as the 2008 rule) took effect January 
12, 2009. In cases filed on December 22, 2008, and January 16, 2009, 
Coal River Mountain Watch, et al. v. Salazar, No. 08-2212 (D.D.C.) 
(``Coal River'') and National Parks Conservation Ass'n v. Salazar, No. 
09-115 (D.D.C.) (``NPCA''), a total of nine organizations challenged 
the validity of the rule.
    In NPCA, on April 27, 2009, the Government filed a motion for 
voluntary remand and vacatur of the 2008 rule. Granting of the 
Government's motion likely would have had the effect of reinstating the 
1983 version of the SBZ rule. In Coal River, on April 28, 2009, the 
Government filed a motion to dismiss the complaint as moot, which the 
Government argued should be granted if the court granted the motion in 
NPCA.
    On June 11, 2009, the Secretary of the Department of the Interior, 
the Administrator of the U.S. Environmental Protection Agency, and the 
Acting Assistant Secretary of the Army (Civil Works) entered into a 
Memorandum of Understanding (MOU) implementing an interagency action 
plan to significantly reduce the harmful environmental consequences of 
surface coal mining operations in six States in central and northern 
Appalachia. Among other things, the MOU required that we develop 
guidance clarifying how the 1983 SBZ rule would be applied to reduce 
adverse impacts on streams if the court granted the Government's motion 
in NPCA for remand and vacatur of the 2008 SBZ rule.
    On August 12, 2009, the court denied the Government's motion in 
NPCA, holding that, absent a ruling on the merits, significant new 
evidence, or consent of all the parties, a grant of vacatur would allow 
the Government to improperly bypass the procedures set forth in the 
Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., for repealing 
an agency rule.
    On November 30, 2009, OSM published an Advance Notice of Proposed 
Rulemaking in the Federal Register seeking comments on our intention to 
revise our regulations concerning the conduct of mining activities in 
or near streams (74 FR 62664-62668). Those revisions would implement, 
in part, the MOU. Accomplishing that goal will involve revision or 
repeal of certain elements of the Federal 2008 rule. The rulemaking 
process will comply with the requirements of the Administrative 
Procedure Act, including any applicable notice and comment 
requirements, consistent with the court's decision in NPCA. While the 
Federal 2008 rule remains in effect, OSM is implementing immediate 
steps to improve stream protection pending the final outcome of the SBZ 
rulemaking. A copy of those immediate protective measures is enclosed.
    It is possible that concerns you have raised may be resolved 
through our new SBZ rulemaking initiative, which we plan to complete as 
expeditiously as possible. If you have any questions or need further 
information, please do not hesitate to contact me.
            Sincerely,
                                           Thomas D. Shope,
                             Regional Director, Appalachian Region.
                                 ______
                                 
    Mr. Lamborn. Mr. Lambert.

  STATEMENT OF BRADLEY C. ``BUTCH'' LAMBERT, DEPUTY DIRECTOR, 
       VIRGINIA DEPARTMENT OF MINES, MINERALS AND ENERGY

    Mr. Lambert. Good morning, Mr. Chairman and members of the 
Subcommittee. My name is Butch Lambert, and I serve as the 
Deputy Director of the Virginia Department of Mines, Minerals 
and Energy. Thank you for the opportunity to appear before you 
today to offer testimony on H.R. 2824.
    On December 12, 2008, OSM issued a news release titled, 
``Office of Surface Mining Issues New Mining Rule Tightening 
the Restrictions on Excess Spoil, Coal Mine Waste, and Mining 
Activities Near Streams.'' OSM and State agencies felt as 
though the 2008 Buffer Zone Rule was a rule that would finally 
meet the goal of environmental protection while ensuring the 
coal production that would meet the energy needs of the Nation.
    The development of the 2008 rule was a 5-year process. OSM 
solicited public input throughout the process. The agency 
received over 43,000 comments and held four public hearings 
that were attended by approximately 700 people. The rule was to 
take effect on January 12, 2009. However, before the rule was 
implemented, it was suspended. The States had no opportunity to 
amend our programs to adopt the rule.
    We believe the 2008 rule contained provisions that would 
allow disposal of excess spoil in such a manner that would 
ensure stream protection. We are supportive of the approach 
contained in H.R. 2824 and believe the States should be 
provided an opportunity to implement the Stream Buffer Zone 
Rule following which OSM can prepare an assessment of why a 
different rule is needed.
    We also would note that given the fact that the States are 
implementing a regulatory requirement of SMCRA, we do not see 
the adoption of the 2008 rule as an unfunded mandate. Whether 
that would hold true for OSM's current intention to move 
forward with an expanded stream protection rule remains to be 
seen.
    For years, the States have been administering stellar 
regulatory programs, including the protection of streams. 
However, beginning in 2009, OSM moved to impose drastic change 
in how the States administer the programs. The OSM has not 
provided any information to the States as to the reason for 
revising the Stream Buffer Zone Rule that they now have termed 
the Stream Protection Rule.
    Early in the development of the draft, OSM invited several 
States, including Virginia, to participate in the development 
of the environmental impact statement as cooperating agencies 
under the National Environmental Policy Act. In preparing the 
draft EIS, OSM hired a contractor outside of the coal mining 
regions who had no mining background. Cooperating agency States 
were cautious about the contractor and its ability to develop 
the draft EIS. We voiced a concern about developing a new EIS 
and a new rule. However, OSM moved forward with the contract 
for development of the draft EIS. Following a limited 
opportunity to provide comments on a few early chapters of the 
draft in 2010, State cooperating agencies have not been 
involved in the review of the comments of the draft or any 
other portion of the draft EIS.
    On July 3, 2013, several cooperating agency States sent a 
letter to Director Pizarchik reminding him that the role of the 
cooperating agencies included the opportunity to review and 
comment on those chapters of the draft that are made available 
to us. I would like to submit a copy of that letter for this 
record.
    Mr. Lamborn. And if there is no objection, that will be 
entered into the record.
    [The letter submitted for the record by Mr. Lambert 
follows:]
    Letter Submitted for the Record From, Randall C. Johnson, Bruce 
  Stevens, Steve Hohmann, John Caudle, John Baza, Bradley C. Lambert, 
                   Thomas L. Clarke, and Todd Parfitt
                                                      July 3, 2013.
The Honorable Joseph G. Pizarchik,
Director,
Office of Surface Mining, Reclamation and Enforcement,
U.S. Department of the Interior,
Washington, DC 20240.

    Dear Director Pizarchik:

    We are writing to you as cooperating agencies that are 
participating in the Office of Surface Mining's development of a draft 
Environmental Impact Statement (EIS) to accompany a proposed rule on 
stream protection. Our role as cooperating agencies, as defined by the 
memoranda of understanding that each of us entered into with your 
agency, is to review and comment on those chapters of the draft EIS 
that are made available to us. Since the initiation of the EIS process 
in 2010, the States have had the opportunity to comment on three 
initial draft chapters (numbers 2, 3 and 4).
    Over the course of the past 2 years, OSM's draft EIS development 
process has seen several fits and starts, largely due to issues related 
to the work of various contractors OSM engaged to assist the agency 
with the draft EIS. Our understanding is that OSM has now addressed 
these issues and is once again moving forward with the development of 
the draft EIS. As a result, we would like to re-engage with the process 
and request an opportunity to review draft chapters and other related 
documents as they become available, pursuant to the MOU's we have in 
place with the agency. In doing so, we have a few requests.
    In the past, we had serious concerns regarding the constrained 
timeframes under which we were operating to provide comments on draft 
documents. As we have stated from the outset, and as Members of 
Congress have also noted, the ability to provide meaningful comments on 
OSM's draft documents is extremely difficult with limited working days 
to review the material, some of which can be fairly technical in 
nature. In order to comply with the deadlines, we have to devote 
considerable staff time to the preparation of our comments, generally 
to the exclusion of other pressing business. While we are prepared to 
reallocate resources to review and comment on the draft EIS Chapters, 
adequate time will allow for a more efficient use of those resources 
and for the development of more in depth comments.
    There is also the matter of completeness of the draft chapters that 
we will review. In the case of chapters 2, 3 and 4, several 
attachments, exhibits and studies were not provided to us as part of 
that review. Some of these were critical to a full and complete 
analysis of OSM's discussion in the chapters. It is important for us to 
receive all applicable documents that are referenced in draft chapters 
in order to conduct a meaningful review.
    As part of the EIS process with cooperating agencies, OSM committed 
itself to engage in a reconciliation process whereby the agency would 
discuss the comments received from the cooperating agencies, especially 
for purpose of the disposition of those comments prior to submitting 
them to the contractor for inclusion in the final draft. Our experience 
with the reconciliation process to date has not been particularly 
positive or meaningful. We are hopeful that as we reinitiate the EIS 
review and comment process, OSM will engage in a robust reconciliation 
process. Among other things, we believe it should include an 
explanation of which comments were accepted, which were not, and why. 
Frankly, in an effort to provide complete transparency and openness 
about the disposition of our comments, we believe the best route is for 
OSM to share with us revised versions of the chapters as they are 
completed so that we can ascertain for ourselves the degree to which 
our comments have been incorporated into the chapters and whether this 
was done accurately. We are therefore requesting that the revised 
chapters be provided to us as soon as practicable after their 
completion.
    As OSM considers re-initiation of the review process for 
cooperating State agencies, it would be helpful if the agency would 
provide us with new time tables as soon as possible so that we can 
begin our own internal planning.
    Finally, as we noted during the submission of comments by many of 
the cooperating agencies in the early rounds of the EIS development 
process, there is great concern about how our comments will be used or 
referred to by OSM in the final draft EIS that is published for review. 
While the MOU s we signed indicate that our participation ``does not 
imply endorsement of OSM's action or preferred alternative'', we want 
to be certain that our comments and our participation are appropriately 
characterized in the final draft. Furthermore, since CEQ regulations 
require that our names appear on the cover of the EIS, it is critical 
that the public understand the purpose and extent of our participation 
as cooperating agencies.
    As it is now, the States are uncertain whether their names will 
appear on the draft EIS, which was originally anticipated. This of 
course would imply tacit approval independent of the State comments 
that have/have not been incorporated into the document. And while the 
cooperating agency has the authority to terminate cooperating status if 
it disagrees with the lead agency (pursuant to NEPA procedures and our 
MOUs), the States realize the importance of EIS review and the 
opportunity to contribute to, or clarify, the issues presented. We 
therefore request an opportunity to jointly draft a statement with you 
that will accompany the draft EIS setting out very specifically the 
role that we have played as cooperating agencies and the significance 
and meaning of the comments that we have submitted during the EIS 
development process.
    In order to move forward expeditiously, we would appreciate a 
response to our request to re-engage with the EIS process no later than 
July 10. If we have not heard from you by then, we will contact via 
phone to further discuss the matter.
            Sincerely,
                                        Randall C. Johnson,
                       Director, Alabama Surface Mining Commission.
                                             Bruce Stevens,
                                 Director, Division of Reclamation,
                           Indiana Department of Natural Resources.
                                             Steve Hohmann,
           Commissioner, Kentucky Department for Natural Resources.
                                               John Caudle,
                 Director, Surface Mining and Reclamation Division,
                                      Railroad Commission of Texas.
                                                 John Baza,
                    Director, Utah Division of Oil, Gas and Mining.
                                        Bradley C. Lambert,
 Deputy Director, Virginia Department of Mines Minerals and Energy.
                                          Thomas L. Clarke,
                      Director, Division of Mining and Reclamation,
              West Virginia Department of Environmental Protection.
                                              Todd Parfitt,
             Director, Wyoming Department of Environmental Quality.
                                 ______
                                 
    Mr. Lambert. Thank you.
    The States requested that Director Pizarchik responded to 
our request by July 10. To date, we have not received a 
response.
    We should note here that during the Subcommittee oversight 
hearing on OSM's stream protection rulemaking on July 23 of 
this year, Director Pizarchik mentioned that one of the reasons 
that OSM had not reached out to the States with an opportunity 
to reengage in the EIS process and to review the revised 
chapters of the draft EIS is because the States expressed 
concern about being able to review those chapters given the 
limited time and resources available. This is not an accurate 
representation of our situation or our concerns. It was the 
constrained timeframes on which we were given to operate under 
to review those chapters. The agencies stand ready and prepared 
to reengage in the process and to fulfill our roles as 
cooperating agencies, assuming OSM provides a reasonable time 
period within which to review and to comment on the draft EIS.
    Mr. Chairman, at this time, I also would like to ask that 
the statement from the IMCC be submitted for the record.
    Mr. Lamborn. Hearing no objection, so ordered.
    [The prepared statement submitted for the record by Mr. 
Lambert follows:]
     Prepared Statement of the Interstate Mining Compact Commission
h.r. 2824--preventing government waste and protecting coal mining jobs 
                               in america
    The Interstate Mining Compact Commission (lMCC) appreciates the 
opportunity to submit this statement regarding a legislative hearing on 
H.R. 2824, the Preventing Government Waste and Protecting Coal Mining 
Jobs in America Act. IMCC is a multi-state governmental organization 
representing 25 coal and mineral producing States throughout the United 
States, several of whom implement regulatory programs under the Surface 
Mining Control and Reclamation Act of 1977 (SMCRA).
    H.R. 2824 would amend section 503 of the Surface Mining Control and 
Reclamation Act (SMCRA) by requiring States with approved programs 
under the act to adopt as part of their programs a rule promulgated by 
the Office of Surface Mining (OSM) on December 12, 2008 at 73 Fed. Reg. 
75813 concerning excess spoil, coal mine waste and buffers for 
perennial and intermittent streams. Pursuant to section 2(b) of H.R. 
2824, States would be provided a 2 year period within which to submit a 
program amendment pursuant to 30 CFR part 732 that incorporates the 
2008 rule. Once OSM has approved amendments from all primacy States, 
the agency will issue a notice to that effect and 5 years thereafter 
will submit a report to Congress concerning an evaluation of the rule' 
s effectiveness, including its impacts on energy production, along with 
a description of any proposed changes that may be necessary and are 
justified.
    We believe that H.R. 2824 is an appropriate way to proceed under 
the circumstances, especially given the scrutiny and review that 
attended the development of the 2008 rule. The States were prepared to 
adopt the final rule as a part of their programs through the State 
program amendment process. Since that time, some States have already 
incorporated some of the key concepts of the 2008 rule into their 
existing regulatory programs. While there are admittedly challenges for 
the States associated with the 2008 rule, particularly with regard to 
resource implications associated with the required ``alternatives 
analyses'', we recognize that the rule addressed and clarified many of 
the concerns associated with stream protection and that in many 
respects, was an improvement over the 1983 rule.
    The current effort by the Office of Surface Mining (OSM) to rewrite 
the stream buffer zone rule is in response to two decisions by the 
Obama Administration: a settlement agreement with environmental groups 
challenging the 2008 final rule and a Memorandum of Understanding (MOU) 
signed by the Interior Department, the U.S. Environmental Protection 
Agency and the U.S. Army Corps of Engineers in June of 2009. Both of 
these decisions committed the agency to develop a new rule for the 
protection of streams, with a projected completion date of June 2012. 
However, unlike prior rulemakings in this area, OSM appears to be 
expanding the scope of the rule well beyond stream buffer zone 
requirements, taking on topics such as the definition of material 
damage to the hydrologic balance, baseline data collection and 
analysis, monitoring requirements, corrective action thresholds, and 
fish and wildlife protection and enhancement.
    As IMCC has noted in comments that we have submitted to the agency 
concerning the anticipated new rule and the underlying environmental 
impact statement (EIS), OSM is faced with the challenge of attempting 
to address and resolve issues that are much broader than the rule 
itself. With each successive reiteration of the stream buffer zone rule 
since 1979, more and more pressure has come to bear on the agency to 
define the rule in such a way as to completely ban the disposal of 
excess spoil in any type of stream that may be impacted by surface coal 
mining operations. However, as the U.S. Court of Appeals for the Fourth 
Circuit clearly articulated in its 2003 opinion in Kentuckians for the 
Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 443 (4th Cir. 2003), 
``it is beyond dispute that SMCRA recognizes the possibility of placing 
excess spoil material in waters of the United States even though those 
materials do not have a beneficial purpose.'' Accord Ohio Valley 
Environmental Coalition v. Aracoma Coal Company, 556 F.3d 177, 195 (4th 
Cir. 2009). OSM's rule, therefore, should not be about banning the 
practice of disposal of excess spoil in streams, but defining how it 
can be done in a manner that comports with the law, which is exactly 
what the 2008 rulemaking accomplished. And while OSM can prescribe a 
national standard for accomplishing this task, it remains the 
responsibility of the States, as exclusive regulatory authorities where 
primacy programs have been approved, to apply the standard through the 
permitting process, in which OSM plays no role other than through 
appropriate Federal oversight.
    In its draft EIS (and in early drafts of the new rule), OSM appears 
to be searching for the ultimate answer to the appropriate protection 
of streams that has somehow eluded them. From where we sit, it is not 
OSM that has failed to articulate the solution to this matter. The 
agency, on more than one occasion, has engaged in comprehensive 
analyses through both rulemakings and environmental impact statements 
(EIS' s) that address the complexity of the issue and provide solutions 
that are consistent with SMCRA, protective of the environment and 
respectful of State primacy, including the 2008 final rule. There is 
little left to offer. The real dilemma lies not with OSM's rule, but 
with the practice of excess spoil disposal itself, which the courts 
have authorized and found to be consistent with the way SMCRA is 
currently written. Any significant change in direction would therefore 
require an amendment to SMCRA.
    The problem also does not lie at the footstep of the States as 
primary regulators in this area. Over the course of the past 30 years 
since States first began to receive primacy, OSM has seldom found 
concerns with our implementation of the applicable stream buffer zone 
requirement. In fact, as OSM found with respect to West Virginia's 
regulatory program, there has been no indication that the States are 
applying their respective stream buffer zone rules inconsistently with 
the historic application of the buffer zone requirements, as approved 
by OSM over the years. See letter to Joseph Lovett from OSM Regional 
Director Thomas Shope dated December 8, 2009. Consequently, as OSM 
continues to search for any new alternatives to address this matter, 
two things must be kept in mind: (1) the States' implementation of this 
rule and its many iterations over the years has not been the stumbling 
block; and (2) as OSM attempts to move forward once again with a new 
variation on a common theme, it is critical to bring the States into 
the final solution given our role as sole issuers of permits that 
incorporate and implement these standards.
    As the States consider their regulatory role in the context of 
these rulemakings, they are particularly concerned about a propensity 
on OSM's part to insert itself into the State permitting process in 
inappropriate ways. For instance, in OSM's ``Immediate Stream 
Protection Measures'' which were released in November of 2009, OSM 
indicated that it intended to ``coordinate the SMCRA and Clean Water 
Act (CWA) permitting processes to ensure effective and coordinated 
compliance with provisions of the Clean Water Act.'' While the States 
are fully supportive of coordinated approaches to meeting the 
objectives of both SMCRA and the CWA, and have in fact advocated this 
in the past, they are uncertain of where OSM intends to go with such an 
initiative. Time and again in the recent past, States have received 
conflicting or incomplete responses from EPA concerning what they 
believe the applicable CWA standards are for State-issued surface coal 
mining and reclamation permits, especially in Appalachia. Our attempts 
to obtain more clarity have been met with either silence or 
uncertainty.
    Furthermore, there are specific administrative procedures specified 
under SMCRA for concurrence by EPA regarding the approval of State 
programs or any amendments thereto. EPA is involved with the issuance 
of NPDES permits by States under the CWA, which are often coordinated 
with the issuance of SMCRA permits. OSM's role is relegated to one of 
oversight. Any attempts by the Federal Government to convert their 
statutorily designated roles into something more intrusive in the name 
of ``coordination'' will be met with suspicion, if not outright 
opposition. As the U.S. Court of Appeals for the District of Columbia 
has noted, the State, as the sole issuer of permits, decides ``who will 
mine in what areas, how long they may conduct mining operations, and 
under what conditions the operations will take place. It decides 
whether a permittee's techniques for avoiding environmental degradation 
are sufficient and whether the proposed reclamation plan is acceptable. 
The state . . . inspects the mine to determine compliance; [and] [w]hen 
permit conditions are violated, the State is charged with imposing 
appropriate penalties.'' In re: Permanent Surface Mining Regulation 
Litigation (en banc), 653 F.2d 514, 519 (D.C. Cir. 1981) (citations 
omitted).
    It is obvious from a review of the June 2009 MOU, as well as OSM's 
rulemaking documents to date, that while there may be some merit in 
designing a set of regulatory requirements that applies specifically to 
mountaintop removal operations in steep slope areas, the stream buffer 
zone rule has always had, and will likely continue to have, broad 
implications for all regions of the country. In fact, OSM's proposal to 
adjust the definitions of ``material damage to the hydrologic balance'' 
and ``approximate original contour'' confirms the national scope of the 
newest rulemaking. As a result, OSM must consider how any reformulation 
of the rule will impact each State's program in terms of both 
implementation and resources. Given the current fiscal constraints 
under which the States are operating, attempting to accommodate these 
types of permitting analyses could seriously jeopardize primacy 
programs.
    There is also the question of how OSM's intentions with regard to 
this new rulemaking comport with SMCRA's goal of creating a level 
playing field across the 24 State coal regulatory programs. For 
instance, the term ``material damage to the hydrologic balance'' is 
contained in every State's regulatory program and any effort by OSM to 
define that term for the Appalachian region will have consequences for 
all other State programs, regardless of how OSM attempts to narrow its 
scope or applicability. In fact, given the significant differences in 
geology, hydrology and terrain among the various regions of the country 
where surface coal mining operations occur, regulatory terms such as 
``material damage'' have necessarily been left to each State to define 
based on their unique circumstances. This is the very essence of 
SMCRA's design, whereby Congress vested primary governmental 
responsibility for developing, authorizing, issuing and enforcing 
regulations for surface mining and reclamation operations with the 
States so as to accommodate the diversity in terrain, climate, 
biologic, chemical, and other physical conditions in areas subject to 
mining operations.
    To date, OSM has set forth in the draft EIS chapters upwards of 55 
different options for proceeding forward with a new stream buffer zone 
rule. Most of these are variations on themes that have already been 
explored in previous rulemakings or EIS's, as noted above. Some 
alternatives suggest the use of concepts that have proven elusive or 
difficult to implement in the past, such as quantitative or qualitative 
thresholds. However, reading between the lines of the draft EIS, what 
we sense is an attempt by OSM to reconcile not just its own regulatory 
requirements under SMCRA, but a larger, undefined set of standards for 
water quality protection being advocated by EPA and the Corps. Any 
stream buffer zone rulemaking simply cannot be taken out of context 
from all the other activity that has attended the development of the 
EPA/DOI/Corps MOU referenced above. While much of that activity has 
been focused in central Appalachia at this time, the overarching 
concerns regarding conductivity, total dissolved solids, and numerical 
and narrative biologic water quality standards have implications 
nationwide. And it must be kept in mind that the setting of narrative 
water quality standards is a quintessential State function in which the 
Federal agencies playa very limited, prescribed role. By and large, 
these determinations are left solely to the States under the Clean 
Water Act.
    If and when OSM moves forward with any adjustments to the stream 
buffer zone rule and the EIS, the States believe that it is important 
for both State and Federal agencies to agree upon several key issues: 
(1) who is taking the lead on the issues; (2) what specific regulatory 
standards are in play under both SMCRA and the CWA; (3) how and where 
these standards should be incorporated into existing regulatory 
programs, especially at the State level; and (4) what the expectations 
are for both implementation of and compliance with those standards. 
These types of discussions are long overdue and without some resolution 
with all parties at the table, rulemakings such as that regarding 
stream buffer zones and related issues are likely to fail.
    One of the overarching concerns that is anticipated by H.R. 2824 
and that should be addressed is why OSM feels compelled to move forward 
with a new rulemaking. We are still uncertain, even after all the 
debate over the past several years concerning the June 2009 MOU and 
OSM' s new stream protection rule, about the basis for the proposed 
rulemaking or the problem the agency is attempting to fix. We certainly 
understand the high levels of angst associated with mountaintop mining 
operations in Central Appalachia, but what OSM is attempting to do with 
this new national rulemaking cannot be justified by that public debate. 
As we have noted in comments to OSM and testimony to the Subcommittee, 
the appropriate forum for that debate is before Congress, not OSM. Nor 
can the pending litigation associated with OSM's 2008 stream buffer 
zone rule serve as an adequate basis for a new rule. There are other 
options available to the agency for the resolution of this litigation 
short of a new rulemaking on the matter--one of which is to allow the 
2008 rule to be effectuated. And even though we have requested this 
information in the past, we are still unaware of any data that supports 
the need for this rulemaking. Quite to the contrary, the data and 
information we are familiar with (including OSM oversight reports) 
indicates that the States have been implementing stream protection 
requirements in a fair, balanced and appropriate manner that comports 
with the requirements of SMCRA and our approved regulatory programs. It 
would therefore be helpful if OSM would finally clarify its goals and 
the problems it hopes to address in any new rulemaking process.
    As we peruse the various ``principal elements'' of the proposed 
action spelled out in OSM's draft EIS to date, one of our primary 
concerns relates to resource implications for the States. While much 
remains to be seen in terms of details about the rule, what little we 
do know signals a major impact on the States in terms of permit 
reviews, monitoring requirements, various new technical analyses, and 
intergovernmental coordination. In this regard, we believe that it is 
critical, as part of any EIS, for OSM to undertake an assessment of the 
rule' s impact on both State resources and federalism implications. We 
assert that this is required by both the National Environmental Policy 
Act (NEPA) and Executive orders that specifically address federalism 
impacts.
    We also recommend that, before moving forward with the EIS and 
proposed rule, OSM seriously consider the other alternatives available 
to the agency for addressing stream protection. We believe that there 
are opportunities for the States and the affected Federal agencies 
(OSM, EPA, the Corps and the U.S. Fish and Wildlife Service) to work 
cooperatively together to address stream protection concerns. However, 
to date our requests for arranging such meetings have been ignored. We 
believe that there are a variety of tools, protocols, policies and 
other measures available to us as State and Federal agencies that, with 
some coordination, could lead to a comprehensive and effective approach 
to protecting streams, particularly in the context of the 2008 rule.
    At the point when OSM develops the various alternatives that it 
will consider during the EIS process, we suggest that the agency 
include an alternative that recognizes the inherent regional 
differences, especially between the East and the West, related to 
stream protection. We believe that OSM likely gained an appreciation 
for these differences during its stakeholder meetings in June and July 
of 2010. SMCRA itself recognizes the importance of regional 
differences, both in its findings (section 101(f)) and in its 
designation of special treatment for mining practices associated with 
alluvial valley floors west of the 100th meridian, prime 
farmland in the Mid-continent and steep slopes in the East. Failure to 
recognize these regional differences could result in the expenditure of 
considerable resources to address issues that are of marginal 
significance in a particular region of the country.
    Another of our concerns is whether the science supports some of 
OSM' s proposed concepts. In particular, it seems to us that there are 
several technical issues associated with these concepts that require 
further thought and research, such as sequencing of stream disturbance, 
bottom up fill construction, diverting water around fills to avoid 
retention and percolation, and compliance points off the permit area. 
We also believe that more can be done in the way of developing tools or 
methods for prevention and prediction. By advancing a rule that 
embodies some of these concepts without more in the way of scientific 
support will complicate the ability of the States to issue and enforce 
permits that are sound and defensible. The 2008 rule considered several 
of these concepts and settled on a resolution that was reasonable and 
workable. We are unaware of any peer reviewed science that would 
significantly change the approach contained in the 2008 rule, contrary 
to recent statements by OSM Director Pizarchik.
    Without rehashing our previously articulated concerns about the 
need and justification for both the proposed rule and the accompanying 
EIS, we must object to the quality, completeness and accuracy of those 
portions of the draft EIS that we have had the opportunity to review 
and comment on so far. As indicated in the detailed comments the 
cooperating agency States have submitted to date, there are sections of 
the draft EIS that are often nonsensical and difficult to follow. Given 
that the draft EIS and proposed rule are intended to be national in 
scope, the States are also mystified by the paucity of information and 
analysis for those areas of the country beyond central Appalachia and 
the related tendency to simply expand the latter regional experience to 
the rest of the country in an effort to appear complete and 
comprehensive. In many respects, the draft EIS appears very much like a 
cut-and-paste exercise utilizing sometimes unrelated pieces from 
existing documents in an attempt to create a novel approach to the 
subject matter. The result so far has been a disjointed, unhelpful 
exercise that will do little to support OSM's rulemaking or survive 
legal challenges to the rule or the EIS.
    The States also have serious concerns regarding the constrained 
timeframes under which they have been operating to provide comments on 
these flawed documents. As the States have noted from the outset, and 
as Members of Congress have also noted in letters to former Interior 
Secretary Salazar, the ability to provide meaningful comments on OSM's 
draft documents is extremely difficult with only 5 working days to 
review the material, some of which is fairly technical in nature. In 
order to comply with these deadlines, the States have had to devote 
considerable staff time to the preparation of their comments, generally 
to the exclusion of other pressing business such as permit reviews. 
While the States were prepared to reallocate resources to review and 
comment on the draft EIS Chapters, additional time would have allowed 
for a more efficient use of those resources and for the development of 
more in depth comments.
    In this regard, we take issue with recent comments by OSM Director 
Pizarchik at a Subcommittee oversight hearing on July 23 that the 
States are unable or unwilling to participate in the continued review 
of the draft EIS chapters because of limited resources and staff. It 
was the constrained timeframes within which we were required to work 
that was the issue, not our commitment to fulfill our obligations as 
cooperating agencies. In fact, the cooperating agency States recently 
sent a letter to Director Pizarchik dated July 3 that reiterated their 
commitment and interest to re-engage with the draft EIS process now 
that it has apparently been re-initiated following several missteps 
with contractors. The States are hopeful that OSM will honor this 
request and abide by the memoranda of understanding that these States 
have signed with OSM regarding their role as cooperating agencies.
    We appreciate the opportunity to provide these comments to the 
Subcommittee concerning H.R. 2824 and OSM's proposed stream protection 
rule and associated EIS. We urge the Subcommittee to continue its 
investigation and oversight of the process with the goal of motivating 
OSM to reconsider the need for this rulemaking and the significant 
impacts it will have on State regulatory authorities and the 
communities we protect, as well as the industry we regulate. We believe 
that H.R. 2824 would further that process and as such we strongly 
support the bill.
                                 ______
                                 
    Mr. Lambert. Thank you for the opportunity to appear before 
you today. I will be happy to answer any questions you may have 
or to submit any further information.
    Mr. Lamborn. All right. Thank you.
    [The prepared statement of Mr. Lambert follows:]
 Prepared Statement of Bradley C. ``Butch'' Lambert, Deputy Director, 
           Virginia Department of Mines, Minerals and Energy
    My name is Bradley C. Lambert and I serve as Deputy Director of the 
Virginia Department of Mines, Minerals and Energy (DMME). I appreciate 
the opportunity to present this statement to the Subcommittee regarding 
the views of the DMME on H.R. 2824, the ``Preventing Government Waste 
and Protecting Coal Mining Jobs in America Act''.
    I would like to begin by providing you with some background 
information about the Virginia coal industry and DMME. Coal production 
has been important to Virginia's economic development since colonial 
days. The first commercial coal production in the United States 
occurred in 1748 from the Richmond Coal Basin just west of the State 
Capital in Richmond, Virginia. Coal production was important to 
Virginia until the Civil War during which much of the coal industry was 
destroyed. Commercial coal mining later rebounded in Virginia's 
southwestern-most counties in the 1880s and has been conducted 
continuously through to the present. Today, coal is produced in the 
seven extreme southwest Virginia counties.
    Virginia first implemented rules to address coal mining and 
reclamation issues in 1966. The minimal requirements of the early law 
and regulations failed to keep pace with the rapid expansion of surface 
mining activities in the Appalachian region. Following the passage of 
the 1977 Federal Surface Mining Control and Reclamation Act, Virginia 
sought and obtained primacy from the U.S. Office of Surface Mining 
(OSM) as the primary regulatory authority for coal surface mining in 
December of 1981. This resulted in a significant expansion and 
enhancement of the Virginia regulatory program.
    Coal production in Virginia peaked at 47 million tons in 1990. 
Production for 2011 reached approximately 23 million tons. Virginia 
coal is of a higher British Thermal Unit (BTU) and lower sulfur content 
than the national average. This quality has made Virginia coal more 
desirable for metallurgical coke production and for the export market.
    Virginia's regulatory program is recognized across the Nation as a 
leader and an innovator in many areas. Many states have benchmarked 
with Virginia on areas such as electronic permitting, underground mine 
mapping and the development of a GIS data base that includes all 
surface mining areas as well as abandoned mined lands. Virginia 
continues to work on making this information available for public 
viewing through an outward facing Web site. Through our electronic 
permitting system, other State and Federal agencies can access coal 
mining permit data and applications and provide comments using the 
electronic application.
    For years the States have been administering stellar regulatory 
programs, including the protection of streams. However, beginning in 
2009, OSM embarked on an effort to impose a drastic change in how 
States administer their programs. The OSM has not provided any 
information to the States as to the reason for revising the Stream 
Buffer Zone Rule that they have now termed the ``Stream Protection 
Rule''. Nothing in the States' Annual Evaluation Report indicates that 
the States are doing a poor job of enforcing the current surface mining 
laws. The U.S. Department of the Interior, U.S. Environmental 
Protection Agency (EPA) and the U.S. Army Corps of Engineers (ACOE) 
signed a Memorandum of Understanding (MOU) in 2009, which appears to be 
the basis for the effort by OSM to change/revise the Stream Buffer Zone 
Rule. The States were not consulted about or invited to sign this MOU, 
which is aimed at altering state regulatory programs. Yet this MOU is 
having a direct impact on the implementation of State programs.
    One significant item resulting from the MOU was the intention to 
propose a new Stream Protection Rule. Early in the development of the 
draft rule OSM invited several States, including Virginia, to 
participate in the development of the draft Environmental Impact 
Statement (DEIS) as ``cooperating agencies'' under the National 
Environmental Policy Act (NEPA). In preparing the draft EIS, OSM hired 
a contractor from outside the coal mining regions who had no mining 
background. Cooperating agency States voiced their concern about the 
contractor and its ability to complete the DEIS. We recommended that, 
before moving forward with the EIS and proposed rule, OSM seriously 
consider the other alternatives available to the agency for addressing 
stream protection. We believe that there are opportunities for the 
States and the affected Federal agencies (OSM, EPA, the Corps and the 
U.S. Fish and Wildlife Service) to work cooperatively together to 
address stream protection concerns. However, to date our requests for 
arranging such meetings have been ignored. We believe that there are a 
variety of tools, protocols, policies and other measures available to 
us as State and Federal agencies that, with some coordination, could 
lead to a comprehensive and effective approach to protecting streams.
    However, OSM moved forward with the contract. Following a limited 
opportunity to provide comments on a few early chapters of the draft 
EIS in 2010, Virginia and the other State cooperating agencies have not 
been involved in the review of comments of the draft or any other 
portion of the DEIS.
    On July 3, 2013, several of the cooperating agency States sent a 
letter to Director Pizarchik reminding him that the role of the 
cooperating agencies, as defined by the memoranda of understanding that 
each of us entered into with the agency, included an opportunity to 
review and comment on those chapters of the draft EIS that are made 
available to us. (A copy of the letter is being submitted for the 
record).
    The cooperating State agencies have had several concerns regarding 
the constrained timeframes under which we were operating to provide 
comments on the draft documents that were provided to us in 2010. As we 
have stated from the outset, and as Members of Congress have also 
noted, the ability to provide meaningful comments on OSM's draft 
documents has been extremely difficult with limited working days to 
review the material, some of which can be fairly technical in nature. 
In order to comply with the deadlines, we have devoted considerable 
staff time to the preparation of our comments, generally to the 
exclusion of other pressing business such as reviewing citizen's 
complaints, permit reviews and AML project design.
    There is also the matter of completeness of the draft chapters that 
we have reviewed to date. In the case of chapters 2, 3 and 4, several 
attachments, exhibits and studies were not provided to us as part of 
that review. Some of these were critical to a full and complete 
analysis of OSM's discussion in the chapters. It is important for us to 
receive all applicable documents that are referenced in draft chapters 
in order to conduct a meaningful review.
    As part of the EIS process with cooperating agencies, OSM committed 
itself to engage in a reconciliation process whereby the agency would 
discuss the comments received from the cooperating agencies, especially 
for purpose of the disposition of those comments prior to submitting 
them to the contractor for inclusion in the final draft. Our experience 
with the reconciliation process to date has not been particularly 
positive or meaningful. We are hopeful that as we reinitiate the EIS 
review and comment process, OSM will engage in a robust reconciliation 
process. Among other things, we believe it should include an 
explanation of which comments were accepted, which were not, and why. 
Frankly, in an effort to provide complete transparency and openness 
about the disposition of our comments, we believe the best route is for 
OSM to share with us revised versions of the chapters as they are 
completed so that we can ascertain for ourselves the degree to which 
our comments have been incorporated into the chapters and whether this 
was done accurately.
    As we noted during the submission of comments by many of the 
cooperating agencies in the early rounds of the EIS development 
process, there is great concern about how our comments will be used or 
referred to by OSM in the final draft EIS that is published for review. 
While the MOUs we signed indicate that our participation ``does not 
imply endorsement of OSM's action or preferred alternative'', we want 
to be certain that our comments and our participation are appropriately 
characterized in the final draft. Furthermore, since CEQ regulations 
require that our names appear on the cover of the EIS, it is critical 
that the public understand the purpose and extent of our participation 
as cooperating agencies.
    As it is now, the States are uncertain whether their names will 
appear on the draft EIS, which was originally anticipated. This of 
course would imply tacit approval independent of the State comments 
that have not been incorporated into the document. And while the 
cooperating agency has the authority to terminate cooperating status if 
it disagrees with the lead agency (pursuant to NEPA procedures and our 
MOUs); the States realize the importance of EIS review and the 
opportunity to contribute to, or clarify, the issues presented. We 
therefore requested an opportunity to jointly draft a statement that 
will accompany the draft EIS setting out very specifically the role 
that we have played as cooperating agencies and the significance and 
meaning of the comments that we have submitted during the EIS 
development process.
    The States requested that Director Pizarchik respond to our request 
by July 10, 2013 to re-engage in the EIS process. To date, we have not 
received a response.
    We should note here that during the Subcommittee's oversight 
hearing on OSM's stream protection rulemaking on July 23, Director 
Pizarchik mentioned that one of the reasons that OSM has not reached 
out to the States with an opportunity to re-engage in the EIS process 
and to review revised chapters in the draft EIS is because States 
expressed concerns about being able to review these chapters given 
limited time and resources. This is not an accurate representation of 
our situation or our concerns. It was the constrained timeframes under 
which we were operating in 2010 that proved problematic for the 
cooperating agency States. The States stand prepared to re-engage in 
this process and to fulfill their roles as cooperating agencies 
assuming OSM provides reasonable time periods within which to review 
and comment on draft chapters of the EIS.
         history and background of the stream buffer zone rule
    On December 12, 2008, OSM issued a news release titled ``Office of 
Surface Mining Issues New Mining Rule Tightening Restrictions on Excess 
Spoil, Coal Mine Waste, and Mining Activities in or Near Streams''. In 
the words of OSM, the agency stated; ``We believe that the new rule is 
consistent with a key purpose of the Surface Mining Law, which is to 
strike a balance between environmental protection and ensuring 
responsible production of coal essential to the Nation's energy 
supply''. The statement from the release was from then Assistant 
Secretary of the Interior, Land and Minerals Management C. Stephen 
Allred. Mr. Allred is speaking of the 2008 Stream Buffer Zone Rule. He 
goes on to say that this new rule will clarify the Stream Buffer Zone 
rule and resolve any long-standing controversy over how the rule should 
be applied. He is referring to the issues raised with disturbances 
along stream buffer zones as far back as 1983. There have been several 
challenges to the stream buffer zone rule over last decades. OSM and 
state agencies felt as though the 2008 buffer zone rule was a rule that 
would finally meet the goal of environmental protection while ensuring 
coal production that would meet the energy needs of the Nation.
    The development of the 2008 rule was a 5 year process. OSM 
solicited public input throughout the process. The agency received over 
43,000 comments and held 4 public hearings that were attended by 
approximately 700 people. The rule was to take effect on January 12, 
2009. However, before the rule was implemented it was suspended. The 
States had no opportunity to amend our programs to adopt that rule. We 
believe the 2008 rule contained provisions that would allow disposal of 
excess spoil in such a manner that would ensure stream protection. Even 
though Virginia has not formally adopted the 2008 rule, some portions 
of the rule have been incorporated into coal surface permit review and 
approval. Alternative analysis and fill minimization are two items from 
the rule now incorporated into our permitting process. The number of 
fills has been reduced, as well as the number of cubic yards being 
placed in fills. VA tracks these numbers as part of overall performance 
measures on the success of our program.
    The data and information we are familiar with (including OSM 
oversight reports) indicates that the States have been implementing 
stream protection requirements in a fair, balanced and appropriate 
manner that comports with the requirements of SMCRA and our approved 
regulatory programs. It would therefore be helpful if OSM would finally 
clarify its goals and the problems it hopes to address in the 
rulemaking process and provide information to States on why the 2008 
rule would not be protective of streams. Until OSM is able to do so, we 
are supportive of the approach contained in H.R. 2824 and believe that 
the States should be provided an opportunity to implement the 2008 
stream buffer zone rule, following which OSM can prepare an assessment 
of why a different rule is needed. We would also note that given the 
fact that States are implementing a statutory requirement under SMCRA, 
we do not see the adoption of the 2008 rule as an unfunded mandate. 
Whether that would hold true of OSM's current intention to move forward 
with an expanded stream protection rule remains to be seen.
    In a press release dated 4/27/09, the Interior Secretary Ken 
Salazar announced that the mountaintop coal mining ``stream buffer zone 
rule'' issued by the Bush Administration is legally defective. Salazar 
directed the U.S. Department of Justice (DOJ) to file a pleading with 
the U.S. District Court in Washington, DC requesting that the rule be 
vacated due to this deficiency and remanded to the Department of the 
Interior for further action. This was done without any consideration of 
the 5 year process it took to develop the rule, and ignored the public 
participation process, including the number of comments received and 
the public meetings that were held. And of course the States were never 
given an opportunity to adopt the rule so that information could be 
gathered regarding the effectiveness of the rule to protect streams. 
Without any supporting information on why the 2008 rule was defective, 
we believe that the 2008 rule should have not been vacated but should 
have been allowed to move forward.
    Thank you for the opportunity to testify today. I would be happy to 
answer any questions or provide additional information.
                                 ______
                                 
    Mr. Lamborn. Mr. Jones.

 STATEMENT OF JOHN PAUL JONES, VICE PRESIDENT, ENVIRONMENTAL, 
ALPHA NATURAL RESOURCES, INC., ON BEHALF OF THE NATIONAL MINING 
                          ASSOCIATION

    Mr. Jones. Good morning. Thank you for the opportunity to 
testify today. My name is John Paul Jones, and I am Vice 
President, Environmental, for Alpha Natural Resources. I have 
over 30 years experience in the mining industry. And I am 
testifying today on behalf of both Alpha and the National 
Mining Association, of which we are a member.
    Alpha is America's third-largest coal supplier. Alpha and 
its affiliates employ nearly 12,000 people in Virginia, West 
Virginia, Kentucky, Pennsylvania, and Wyoming. We operate 91 
mines and 25 preparation plants, and we produced over 108 
million tons of coal in 2012. Exports of our coal have reached 
customers in 27 countries, contributing significantly to 
America's balance of trade.
    Alpha believes in mining coal the right way, which is 
embodied in our corporate philosophy we call Running Right. As 
a result of our commitment to environmental excellence, Alpha 
has been recognized with 17 environmental awards for 
outstanding conservation, mine restoration, and environmental 
enhancement projects in just the past 3 years. We have 
partnered with the U.S. Fish and Wildlife Service, Virginia 
Tech, the Nature Conservancy, and other like-minded groups on 
numerous environmental restoration and habitat protection 
projects, as referenced in my written submitted testimony.
    Our operations are also run with a strong commitment to 
safety, regularly receiving achievement recognition from the 
Mine Safety and Health Administration. Alpha recently dedicated 
the Running Right Leadership Academy in June of this year, a 
136,000-square foot state-of-the-art education and 
comprehensive training facility for mine safety and operational 
excellence. There is no other facility like it in the United 
States today and quite possibly in the whole world.
    Alpha Natural Resources and the National Mining Association 
strongly urge this Committee and the Congress to pass H.R. 
2824, the Preventing Government Waste and Protecting Coal 
Mining Jobs in America Act. The premise of the bill is simple: 
It would amend the Surface Mining Control and Reclamation Act 
to require States to incorporate the existing Federal Stream 
Buffer Zone regulation into their approved State programs. It 
would then require the Office of Surface Mining to evaluate the 
effectiveness of the existing rule before it issues a new one.
    Contrary to what some critics claim, the commonsense 
requirements included in the 2008 rules were not at all 
midnight rules, nor did it roll back any environmental 
protections. The Stream Buffer Zone Rule clarified 30-year-old 
interpretations by 24 States. In addition, lawsuits challenging 
such interpretations were twice rejected by the Fourth Circuit 
Court of Appeals, in 2001 and again in 2003.
    Midnight rules, as the name describes, are crafted at the 
11th hour of an outgoing Administration with little to no 
public input. In contrast, the 2008 rule was promulgated over a 
thorough public process spanning over 5 years, including 
numerous public hearings and consideration of over 43,000 
public comments. The 2008 rule was supported by two 
environmental impact statements sponsored by OSM, EPA, the 
Corps of Engineers, and the Fish and Wildlife Service, with 
over 30 federally funded studies and 5,000 pages of scientific 
analysis.
    Likewise, the rule was anything but a rollback of current 
law. In addition to providing clarification and removing the 
threat of unwarranted litigation by those who oppose coal 
mining, the rule added significant protections to enhance 
environmental performance.
    In contrast to the 2008 rule, OSM's ongoing rewrite of the 
Stream Buffer Zone Rule has been plagued with controversy that 
has been well documented by this Committee. Even a prominent 
environmental activist described the rulemaking in his written 
testimony before this Committee on April 7, 2011, as an 
expensive fiasco.
    We are gravely concerned about the impacts this rulemaking 
would have on the viability of our mines, our workforce, and 
the communities our operations support. Such concerns were 
validated by a subsequent analysis of the proposed rule's 
likely effects on 75 actual mines by ENVIRON International, 
predicting even larger impacts, including 133,000 jobs lost 
nationwide, a decrease in recovery of coal reserves by 30 to 41 
percent, annual value of coal lost to production restrictions 
of $14 billion to $20 billion, and Federal and State tax 
revenue reductions of $4 billion to $5 billion.
    The choice is clear. OSM's new proposal is unnecessary, 
unjustified, and dangerous, and certainly does not meet any 
cost-benefit standard. H.R. 2824 provides a reasonable 
framework and timetable for implementing the 2008 rule in 
primacy States and evaluating an actual record of its 
effectiveness before allowing OSM's expensive fiasco to move 
forward with a costly and unnecessary rewrite. For these 
reasons, we strongly urge this Committee to pass H.R. 2824 and 
bring some much-needed finality to this already exhaustive 
rulemaking process.
    Thank you again for the opportunity to testify today. I 
look forward to answering any questions you may have.
    Mr. Lamborn. Thank you, and to all of you, for your 
testimony and for your statements.
    [The prepared statement of Mr. Jones follows:]
 Prepare Statement of John Paul Jones, Vice President, Environmental, 
    Alpha Natural Resources, Inc., on Behalf of the National Mining 
                              Association
    Good morning. Thank you for the opportunity to testify today. My 
name is John Paul Jones, and I am Vice President, Environmental for 
Alpha Natural Resources. I have over 30 years of environmental 
experience with the mining industry. I am testifying today on behalf of 
both Alpha and the National Mining Association, of which we are a 
member.
    Alpha is America's third largest coal supplier. Alpha and its 
affiliates employ nearly 12,000 people in Virginia, West Virginia, 
Kentucky, Pennsylvania and Wyoming; operate 91 active surface and 
underground mines and 25 preparation plants; and produced over 108 
million tons of coal in 2012. Over 80 percent of our coal is used to 
produce electricity, and over 20 million tons is high quality 
metallurgical, or ``met'', coal used in the production of steel. 
Exports of our coal have reached customers in 27 countries, 
contributing significantly to America's balance of trade.
    Alpha believes in mining coal the right way, which is embodied in 
our corporate philosophy we call ``Running Right.'' As a result of our 
commitment to environmental excellence, Alpha has been recognized with 
17 environmental awards for outstanding conservation, mine restoration, 
and environmental enhancement projects in just the past 3 years. We 
have partnered with the U.S. Fish and Wildlife Service and Virginia 
Tech to study mining's impact on freshwater mussels and have partnered 
with the Nature Conservancy to prioritize abandoned mine land project 
restoration opportunities in the Clinch and Powell River watersheds--
home to numerous endangered mussels. Alpha also supports the 
Appalachian Regional Reforestation Initiative and the Powell River 
Project, both of which are geared toward improving reclamation of mined 
lands using native trees. We planted 1.7 million trees on reclaimed 
mine sites in 2012.
    Our operations are also run with a strong commitment to safety. In 
2012, eight of our mines and processing plants received certificates of 
achievement for their safety programs from the Mine Safety and Health 
Administration, as well as four Holmes Safety Association Awards. Alpha 
also recently dedicated the ``Running Right Leadership Academy'' in 
June of this year--a 136,000 square foot, state-of-the-art education 
and comprehensive training facility for mine safety and operational 
excellence. There is no other facility like it in the United States 
today, and quite possibly the world.
    Alpha Natural Resources and the National Mining Association 
strongly urge this Committee and the Congress to pass H.R. 2824, the 
``Preventing Government Waste and Protecting Coal Mining Jobs in 
America Act.'' The premise of the bill is simple--it would amend the 
Surface Mining Control and Reclamation Act (SMCRA) to require States to 
incorporate the existing Federal ``stream buffer zone'' (``SBZ'') 
regulation into their approved State programs. It would then require 
the Office of Surface Mining (OSM) to evaluate the effectiveness of the 
existing rule before it continues with the process of issuing a new 
one.
    Contrary to what some critics claim, the common-sense requirements 
included in the 2008 rules were not at all ``midnight rules,'' nor did 
it ``roll back'' environmental protections. The SBZ rule clarified 30-
year old interpretations by all 24 State programs (as well as OSM) 
regarding the permissibility of mining in and around streams. In 
addition, lawsuits challenging such interpretations were twice rejected 
by the 4th Circuit Court of Appeals in 2001 and 2003 (See Bragg v. 
Robertson and Kentuckians for the Commonwealth v. Rivenburgh). The 2008 
SBZ rule was also approved by the then-Administrator of the 
Environmental Protection Agency.
    Midnight rules, as the name describes, are crafted at the 11th hour 
of an outgoing administration, with little to no public input. In 
contrast, the 2008 rule was promulgated after a thorough public process 
spanning over 5 years (from 2003-2008), including numerous public 
hearings, and consideration of over 43,000 public comments. The 2008 
rule was supported by two environmental impact statements sponsored by 
OSM, the Environmental Protection Agency, the U.S. Army Corps of 
Engineers and the Fish and Wildlife Service (FWS), with over 30 
federally funded studies and 5,000 pages of scientific analysis. 
Following meetings between the Director of OSM and FWS, the agency 
decided that formal consultation with FWS on the rule was not necessary 
since OSM's existing rules contain numerous provisions to protect 
endangered species and their critical habitat--and the 2008 rule did 
not amend those rules. The 2008 rule was approved by the Solicitor's 
office and the Secretary of the Interior which oversees both FWS and 
OSM.
    Likewise, the rule was anything but a ``roll back'' of current law. 
In addition to providing clarification and removing the threat of 
unwarranted litigation by those opposed to coal mining, the rule added 
significant protections to enhance environmental performance when 
mining in and around streams. Among other things, it requires mines to:

   Avoid mining activities in or near streams if reasonably 
        possible;
   Use the best technology currently available to prevent the 
        contribution of additional suspended solids (sediment) to 
        stream flow or runoff outside the permit area to the extent 
        possible;
   Minimize the creation of excess spoil (dirt and rock); and
   If avoidance of streams is not possible, identify a 
        reasonable range of alternatives for placing fills, and select 
        the alternative with the least overall adverse impacts on fish, 
        wildlife, and related environmental values.

    In contrast to the 2008 rule, OSM's ongoing rewrite of the SBZ rule 
has been plagued with controversy that has been well documented by this 
Committee. A prominent environmental activist described the rulemaking 
in his written testimony on April 7, 2011 before this Committee as ``an 
expensive fiasco.''
    We are gravely concerned about the impacts this rulemaking would 
have on the viability of our mining operations, our workforce, and the 
communities our operations support. Such concerns were validated by a 
subsequent analysis of the proposed rule's likely effects on 75 actual 
mines by Environ International predicting even larger impacts 
including:

   133,000 jobs lost nationwide;
   A decrease in recovery of coal reserves by 30-41 percent;
   Annual value of coal lost to production restrictions of $14-
        $20 billion; and
   Federal and State tax revenue reductions of $4-$5 billion.

    The choice is clear. OSM's new proposal is unnecessary, 
unjustified, and dangerous, and certainly does not meet any cost-
benefit standard. After 5 long years of delay by OSM in refusing to 
implement the current common-sense regulations, H.R. 2824 provides a 
reasonable framework and timetable for implementing the 2008 rule in 
primacy States and evaluating an actual record of its effectiveness 
before allowing OSM's ``expensive fiasco'' to move forward with a 
costly and unnecessary rewrite of SMCRA regulations that will have 
devastating economic impacts. For these reasons, we strongly urge this 
Committee to pass H.R. 2824 and bring some much needed finality to this 
already exhaustive rulemaking process.
    Thank you again for the opportunity to testify today. I look 
forward to answering any questions that you might have.
                                 ______
                                 
    Mr. Lamborn. We will now begin questioning. Members are 
limited to 5 minutes for their questions, but we may have 
additional rounds. And in any case, we will finish by noon or 
whenever the second set of votes is called over on the House 
Floor.
    For any one of you, last week Director Pizarchik said here 
that a new rule was necessary because the 2008 rule did not 
take into consideration new science and technology when the 
rule was drafted. Can any of you tell me what new technology or 
science was made public between December 2008 when the rule was 
promulgated and early 2009 when the Administration announced 
that they were going to vacate the 2008 rule? Does anyone know 
of any new technology that came on-stream during that time?
    Mr. Clarke. None that I am aware of, Mr. Chairman.
    Mr. Lambert. Mr. Chairman, I am not aware of any new 
studies.
    Mr. Lamborn. OK.
    Mr. Jones. Likewise, Mr. Chairman. I am unaware of any new 
studies.
    Mr. Lamborn. OK. Thank you.
    Now, for Mr. Clarke and Mr. Lambert, Director Pizarchik 
testified at a previous hearing that the reason that the 1983 
rule was more protective, in his opinion, than the 2008 rule 
was because the 1983 rule prohibited the placement of fill 
material in streams. Is that a correct statement?
    Mr. Clarke. No, sir, Mr. Chairman. The 1983 rule has never 
been interpreted as a ban on fill placement in streams by our 
agency. In fact, such an interpretation would be contrary to 
section 515(b)(22) of SMCRA in which there are set forth 
performance standards for placing fill in waters of the United 
States under SMCRA.
    A rule that would have the effect of banning fill would be 
contrary to that provision. It would also be contrary to 
section 702 of SMCRA, which prohibits SMCRA from superseding, 
amending, or repealing the Clean Water Act because such a rule 
would have the effect of negating authorizations granted by the 
Corps of Engineers under section 404 of the Clean Water Act.
    You could also look to the notice of proposed rulemaking 
filed in January of 2004 for what became the 2008 Buffer Zone 
Rule to see OSM's explanation of the history of the 1983 rule 
and the fact that it had never been applied as a ban on fill 
placement. And as recently as December 8, 2009, in a letter 
from Tom Shope of OSM to Joe Lovett, which is among the written 
materials I submitted to the Committee, you will see an 
explanation that West Virginia's historic interpretation of the 
1983 rule is consistent with OSM's understanding of that rule. 
And West Virginia had never applied it as a ban on fill 
placement in waters of the United States or, to use the SMCRA 
lingo, in intermittent or perennial streams.
    Mr. Lamborn. Thank you.
    Mr. Lambert, do you have anything to add to that?
    Mr. Lambert. I do not, Mr. Chairman. I think Mr. Clarke's 
statement was very accurate.
    Mr. Lamborn. OK. Thank you.
    Now, am I correct in assuming, and you may have alluded to 
this, that the 1983 rule is still being implemented in both of 
your States? And in fact, in all of the primacy States?
    Mr. Clarke. That is correct for West Virginia.
    Mr. Lambert. Also, Mr. Chairman, that is correct in 
Virginia. With a little bit of interpretation, we are now 
incorporating some of the 2008 rule into our permitting 
processes, which is fill minimization and avoidance. And also 
we are moving forward and trying to use some of the 2008 rule 
as well as the 1983 rule.
    Mr. Lamborn. OK. And has the Office of Surface Mining ever 
raised any objections to those two positions?
    Mr. Lambert. No, sir, they have not in Virginia. As a 
matter of fact, OSM on their own is using the 2008 rule in 
Tennessee as we understand it.
    Mr. Clarke. Not to my knowledge in West Virginia. And I 
would add that we also have incorporated some of the concepts 
of the 2008 rule in our program as well.
    Mr. Lamborn. And I think you did talk about this. But how 
much work went into the 2008 rule? I mean, some have 
characterized it, because it was issued in the closing days, as 
a midnight rule, implying that it was done with very little 
work and that it was a shoddy product. Is that a correct 
characterization?
    Mr. Lambert. Mr. Chairman, in our opinion, that is not a 
correct characterization because that rule took 5 years. And as 
I said in my testimony, 43,000 comments were reviewed, with 
four public meetings being held, and approximately 700 people 
attended those public meetings. So I don't think you could 
characterize that as a midnight rule.
    Mr. Lamborn. OK. Thank you for your testimony.
    I now recognize the Ranking Member for 5 minutes.
    Mr. Huffman. Thank you, Mr. Chairman. And I want to thank 
the witnesses for traveling to be with us today and for their 
testimony.
    As I mentioned in my opening remarks, there have been 
multiple studies within the last 3 years that found 
significantly higher rates of cancer and heart disease in West 
Virginia residents who live near mountaintop removal mines 
compared to West Virginia residents who live further away from 
those mines. One study, by the University of West Virginia's 
Department of Community Medicine, concluded that based on 
cancer rates they found, there could be an additional 60,000 to 
88,000 people with cancer in central Appalachia because of 
mountaintop removal mining. Another 2010 study used GIS 
analysis to assess whether proximity to mining activity was 
associated with cancer. And sure enough, the closer you live to 
mining activity like this, the greater your risk.
    So, Mr. Clarke, I want to ask you, based on the science, 
isn't there a greater risk of cancer for West Virginia 
residents living near mountaintop removal mines?
    Mr. Clarke. Well, the studies you speak of, Mr. 
Congressman, I believe found a correlation between mining and 
various disease rates in the immediate area of the mining. They 
didn't address the issue of what is causing any health impacts.
    Mr. Huffman. So it is just a coincidence?
    Mr. Clarke. Well, let me add that when you look at 
potential impacts from mining and how they could affect 
residents in the area of the mining, there are two possible 
exposure pathways. One of which, and I think is what the Stream 
Protection Measures Rule is concerned with, is the exposure 
pathway through the water. The other one would be through the 
air.
    As to the exposure pathway through the water, we already 
have a complete regulatory program under the Clean Water Act 
that is devoted to placing limits to protect various uses of 
water resources, which include protection of human health. And 
we have a full set of water quality standards that are being 
implemented through the Clean Water Act's permitting program 
under the West Virginia Water Pollution Control Act, which 
imposed standards on all known pollutants that could impact 
human health. So in terms of what the Stream Protection 
Measures Rule could do to the water exposure pathway, that is 
already being addressed under the Clean Water Act completely.
    Mr. Huffman. Are you concerned about the health risks from 
mountaintop removal mining to folks who live close to those 
activities?
    Mr. Clarke. Yes, indeed, I am.
    Mr. Huffman. I want to continue on that note a little bit. 
A host of studies that were published after the Bush rule show 
that mountaintop removal mines not only damaged the 
environment, but also caused cardiovascular disease, cancer, 
birth defects, and poor overall health. And the USGS just 
published preliminary research along the same lines. The 
legislation we are discussing today, though, would lock us into 
the Bush rule no matter what new research like this tells us.
    Doesn't this violate OSM's mandate under the Surface Mining 
Control and Reclamation Act, SMCRA, to set standards that are 
guided by science and based on best available technology? 
Wouldn't it be irresponsible not to adjust these standards if 
the science shows a bigger problem than previously thought? And 
I would submit that clearly the science is showing a bigger 
problem than previously thought.
    Mr. Clarke. Respectfully, Mr. Congressman, this bill would 
not impact the ability of the States and the EPA under the 
Clean Water Act to address pollutants that could reach local 
communities through the water exposure pathway. And that would 
not be impacted by this rule. In fact, this rule would allow 
OSM to establish standards that may conflict with the water 
quality standards that are intended to protect human health 
under the Clean Water Act.
    Mr. Huffman. Any other witnesses want to comment on that?
    Mr. Lambert. Yes, sir. My comment would be that we feel 
that if we had an opportunity to fully implement the 2008 rule, 
some of these issues that are being raised through these 
reports could be addressed in the 2008 rule. That we don't know 
because we have had no chance to look at what the impacts and 
to put together the rule, when implemented, as States. That 
rule was subsequently vacated end of January, before we had an 
opportunity----
    Mr. Huffman. Let's talk about the 2008 rule. We know, 
according to a 2005 EPA environmental impact statement, that 
waste from mountaintop removal mining buried and despoiled 
nearly 2,000 miles of streams in Appalachia over the previous 
30 years. We have all of these additional studies. SMCRA 
requires OSM to set standards, as we have discussed, based on 
best available technology and science in order to minimize 
disturbances and avoid adverse impacts on fish, wildlife, 
environmental values, et cetera. What in that language would 
permit the Bush Administration to simply exempt mountaintop 
removal mining?
    Mr. Lambert. I don't think that rule, the 2008 rule, 
exempts mountaintop mining. What the rules does is, the 2008 
rule, has the provision to look at avoidance of streams.
    Mr. Huffman. It does, though, exempt excess spoil fills 
from the buffer requirement. So what, based on everything we 
have learned, based on the EPA findings, based on all the 
science, would justify exempting those excess spoil disposals 
and in the rule saying that this is good for the environment?
    Mr. Lambert. It doesn't give a carte blanche ability to 
dump spoil in streams. It asks us to look at avoidance, and it 
asks us to look at other alternatives, which we haven't had the 
opportunity to do.
    Mr. Lamborn. OK. I would like to recognize Mr. Daines.
    Mr. Daines. Thank you, Mr. Chairman.
    I represent the State of Montana, and we are proud of the 
fact that we have more recoverable coal deposits than any other 
State in the country. It is a huge issue for our State in terms 
of jobs, cheap sources of energy, and I am grateful that we 
have the coal in Montana. And I am very concerned about the 
tone that we are hearing from the Obama Administration. I think 
he really has declared war on the coal industry.
    And this is not just war on an industry. This is affecting 
families. This is affecting jobs. And importantly, this is a 
low-cost source of energy for this country. I was speaking 
before a Boys State gathering in Helena about a month ago and 
we were talking about energy. And I asked them, where does 
electricity come from? And we had a little discussion about the 
fact that, in fact, 51 percent of the electricity supplied in 
Montana comes from coal. It is over 40 percent for the country. 
It is a reliable, clean, cheap source of energy. And I am very 
concerned--this is in terms of my opening remarks--about this 
Administration's desire to curtail coal production in this 
country, because I think that really is the agenda here and the 
objective of what is going on in the White House.
    Having said that, let me ask our two State witnesses, how 
would you characterize the Obama Administration's rulemaking 
process? Would you characterize it as being deliberative?
    Mr. Clarke, do you want to start.
    Mr. Clarke. Well, the OSM rulemaking on this particular 
rule that I think is of concern to the Committee, the one that 
the OSM is currently considering under the name of the Stream 
Protections Measures Rule has really not been a very 
transparent process. The States were denied an opportunity to 
see the first chapter of the EIS, the cooperating agency States 
that signed MOUs that is, entitling them to participate in the 
NEPA process, and were given just a matter of days to respond 
to hundreds of pages of material on chapters 2, 3, and 4 of 
that EIS.
    At that point, the ineptitude of OSM's EIS contractor 
became abundantly apparent. OSM fired its contractor. And since 
then we have received little or no information about what OSM 
is doing on this rule, despite hearing rumors that OSM has been 
working on it internally.
    So in terms of the States as cooperating agencies under 
NEPA and being involved in an ongoing EIS rule development, we 
have been left out of the process. And I think that it is 
important to note that in nearly all of the States that 
regulate surface coal mining, the State has primacy. So the 
States are the frontline regulators who have the experience 
that would better inform the rule than bureaucrats writing it 
from Washington.
    Mr. Daines. Thank you.
    Mr. Lambert?
    Mr. Lambert. I would agree with Mr. Clarke 100 percent. 
There was a very grave concern of ours that we all of a sudden 
were just left out of the process of helping development of 
this rule after we signed the MOU. And even given the 
timeframes that we were given to review the rule was just 
absurd. There was no way we could provide the information that 
was needed to move forward with this rule. However, OSM chose 
to do so anyway. And then as both of us have stated in our 
comments, that we even requested on July the 3rd of this year 
to be reengaged. And we have not even received a response from 
that request.
    So to answer your question, especially on this rule, we 
feel it has not been a very transparent rule and involved all 
the groups and the agencies that need to be involved in the 
development of such a rule.
    Mr. Daines. Thanks for the comments.
    Mr. Jones, as you know, safe and efficient coal development 
is very important to the State of Montana. In fact, our tribal 
nations are begging, and I tell you, they are begging right now 
for the freedom to develop their own natural resources that are 
placed on their reservations, to lift their reservations from 
high unemployment, we have north of 40 percent unemployment 
rates right now in the reservations in Montana, to take them 
out of high unemployment and poverty to prosperity for these 
families and for future generations.
    In fact, one tribal chairman who especially shares this 
vision is Chairman Old Coyote of the Crow Nation. He came to 
Washington with his 8-year-old daughter Evelyn. She read me a 
little speech pleading with me to please get Washington, DC out 
of the way so we can develop these resources on our reservation 
and create jobs.
    But one thing I have learned since I have been back in this 
job in Washington now for about 8 months is how the Obama 
Administration doesn't understand that one size does not fit 
all. We know the geology of Montana and the Powder River Basin 
is very different than West Virginia, Ohio, Virginia, Colorado, 
and other coal mining States. It is my understanding that a new 
Obama rule could impact longwall mining. Can you address this 
and what the impact might be to States that have longwall 
mines?
    Mr. Jones. Yes, sir, Mr. Congressman. I would be glad to 
address that.
    In testimony and in discussion today, the new stream 
protective rules have been painted as a mountaintop mining 
issue. It is anything but. Alpha has operations in all the coal 
basins. We don't have any active operations right now in the 
Illinois Basins. But in the Powder River Basin, we do have some 
operations. And so we had to look at what we saw of the 
proposed bill, what was leaked to the press, that we ultimately 
were able to get copies from the coal associations and others. 
We did a very detailed analysis of the impact both to our 
longwall mines in the northern Appalachian region and our 
Powder River Basins, and those operations were significantly 
impacted as well. So the bill is not just a mountaintop 
removal, no valley fill bill. It is going to impact all mining 
in America.
    Mr. Daines. OK.
    I know I am out of time, Mr. Chairman.
    Mr. Lamborn. OK. And if you want to follow up on that, we 
will have a second round of questions.
    Mr. Daines. Thank you.
    Mr. Lamborn. Representative Johnson.
    Mr. Johnson. Thank you, Mr. Chairman.
    Mr. Clarke and Mr. Lambert, in your opinion, was Director 
Pizarchik correct when he implied that OSM was doing the States 
a favor by not sharing revised drafts of the EIS due to limited 
State budgets?
    Mr. Clarke. I think what he was probably referring back to 
were our complaints to him in 2010 that he was giving us 
inadequate time to review hundreds of pages of technical 
material and that we had inadequate time and staff to do that.
    Mr. Johnson. Which goes to the point that I made earlier in 
my opening comments earlier this morning. You are talking about 
a midnight rule. This thing was trying to be shoved down the 
States' throats, down the coal industry's throats at lightning 
speed without giving the States and the industry a chance to 
adequately review. Would you agree?
    Mr. Clarke. That is correct. The States' involvement began 
September to October of 2010 for a rule that OSM had agreed in 
the settlement with environmental groups to produce by the end 
of February of 2011 which gave a very compressed timeframe for 
the process to occur.
    Mr. Johnson. Exactly.
    Mr. Lambert.
    Mr. Lambert. I would agree with that. Sometimes we were 
given only 7 to 10 days to review hundreds of pages of a 
chapter. And the timeframes that they set upon us were, some of 
those days included holidays and weekends. And our staff don't 
normally work holidays and weekends. But we did. We did our 
best to try to give back some substantive remarks on those 
chapters.
    Mr. Johnson. It is interesting to me that Mr. Pizarchik, 
under his direction, OSM gives States and industry minimal time 
to review thousands of pages of documentation. And yet we have 
been waiting months, Mr. Chairman, to get information from OSM 
on exactly what they are trying to do with this rulemaking. It 
certainly is a double standard.
    Let me ask you, Mr. Clarke and Mr. Lambert, did the 
Director ever discuss with the States how OSM plans to proceed 
with State involvement going forward? Did he ever articulate 
his plan?
    Mr. Lambert. No, sir, not with Virginia. As I stated in my 
oral statement, we even sent a letter to him requesting that we 
reengage, and today we have not had a response.
    Mr. Johnson. OK.
    Mr. Clarke. Before they started the EIS process, OSM had a 
series of meetings, I think maybe four of them around the 
country, where we received very minimal information about their 
plans, and I believe we were told we would get more later. And 
of course we haven't.
    Mr. Johnson. OK. And, gentlemen, are you aware of any 
States that support OSM's current efforts to rewrite the Stream 
Buffer Zone Rule?
    Mr. Lambert. No, sir, I am not.
    Mr. Clarke. No, sir.
    Mr. Johnson. OK. And now for all three of you, if this 
legislation, if H.R. 2824 passed Congress and the 2008 rule 
were implemented, would the result be more environmental 
protection for streams or less compared to the status quo?
    Mr. Clarke. The 2008 rule imposes requirements that go well 
beyond those that were in place under the existing 
interpretation of the 1983 rule. It requires avoidance 
measures, avoidance minimization measures, and analysis of 
alternatives. It doesn't completely exempt spoil from 
mountaintop mining. It subjects the placement of that spoil to 
planning processes which require avoidance minimization, 
alternative analysis, and requirements that are generally 
harmonious with those applied by the Corps of Engineers in 
determining whether to approve a permit under section 404 of 
the Clean Water Act.
    Mr. Johnson. So it is more environmentally safe?
    Mr. Clarke. Yes, sir.
    Mr. Johnson. Mr. Lambert?
    Mr. Lambert. I would agree. Yes, sir.
    Mr. Johnson. Mr. Jones?
    Mr. Jones. Yes, I totally agree.
    Mr. Johnson. Well, great.
    Mr. Chairman, it has also been insinuated this morning that 
if the legislation that you and I have proposed were to be 
passed, that it would put OSM back at scratch, I think the term 
used, at scratch, in terms of rewriting the rule. Well, first 
of all, we don't want them to rewrite the rule. The industry 
doesn't want them to rewrite the rule. It doesn't make any 
sense to rewrite the rule.
    But let's examine that idea of scratch. They are at 
scratch. They have been at scratch. They have never been able 
to emerge from scratch because of their own ineptness, because 
of their own dereliction of their responsibility and their 
inability and their unwillingness to work with States and 
industry in doing the right thing for the American people. This 
is an atrocity. And again, I encourage my colleagues to support 
our legislation.
    Thank you, gentlemen, for your answers.
    Mr. Lamborn. Thank you.
    Representative Lummis.
    Mrs. Lummis. Thank you, Mr. Chairman.
    And thank you, gentlemen, for being here today.
    I would like to ask the Natural Resources Committee staff 
to put up a couple of pictures on the screen so we can talk 
about them. First of all, this is an award-winning stream 
reclamation project done in Wyoming by Cloud Peak Energy, one 
of our coal mines. And you can see the terrific rolling hills 
of northeastern Wyoming in the background, and of course, that 
is just emblematic of our topography. These are done in a way 
that restores to the same elevations and contours the 
topography after my reclamation is completed. This is reclaimed 
land.
    Then, could you put up the next one.
    This is an award-winning stream reclamation project done in 
Virginia by Alpha Natural Resources.
    And since we have a witness here from Alpha, please leave 
that up.
    And I am going to ask the gentleman from Alpha, Mr. Jones. 
Can you describe the process Alpha and other coal companies 
take to reclaim streams first in the Powder River Basin and 
then moving onto more eastern topography?
    Mr. Jones. Be glad to, Congressman, and there are major 
differences between the Powder River Basin stream 
reconstruction and the reconstruction we do in Appalachia, 
particularly in Virginia. We, in the Powder River Basin, since 
you don't have so many flowing streams as we do, you have a lot 
of subsurface flow of water. So, as you reconstruct a stream in 
the Powder River Basin, you also have to reconstruct and ensure 
there is connectivity there of the subsurface aquifer, and we 
have those ongoing at our operations.
    Now, the picture here is from the very first reconstructed 
site stream section in the State of Virginia using natural 
stream methodology. In fact, the Office of Surface Mining had a 
conference on natural stream restoration and landform grading 
in the Hilton in Abingdon, Virginia, about 60 miles from this 
site. The OSM at that time thought what we were doing was 
perfect, I won't say perfect, but so good, that they picked 
several of our sites as spots to take a field trip and show the 
attendees of the conference that these folks are doing it 
right; this is how it should be done.
    This one, this site is on our Black Bear operation. We won 
multiple national, regional, State, even two OSM awards for the 
particular mine site we have here.
    But we have very well trained in-house staff and primarily 
consultants who oversee the design and the installation of 
these operations. They have been through proper training. They 
have several levels of the Rosgen, it is called, training, to 
make sure they get the natural streams built.
    Mrs. Lummis. Let me ask you further. Would OSM's new work 
hinder or help your process of stream reclamation?
    Mr. Jones. I am going to say it will severely hinder 
because----
    Mrs. Lummis. Why is that?
    Mr. Jones. Well, because presently, for every stream that 
we impact, we have to mitigate. And with the new rule, as I 
have seen, you are going to have zero impact, so you will not 
be doing this. So, I mean----
    Mrs. Lummis. May I ask the gentleman from Virginia and West 
Virginia the same question? Would OSM's proposals help or 
hinder?
    Mr. Lambert. Well, in Virginia, remining in Virginia 
affects about 88 percent of all mining that takes place. In 
other words, 80 percent of the land that our companies are 
mining, including Alpha, are abandoned mine lands where streams 
have already been impacted.
    Under the new rule, none of that would take place anymore. 
Those streams that have already been impacted that are 
contributing these metals to our environment would not be 
cleaned up.
    Mrs. Lummis. Why not?
    Mr. Lambert. Under the new rule, the companies would not be 
remining those areas again. They would avoid those areas.
    Mrs. Lummis. May I ask the other gentleman to comment as 
well.
    Mr. Clarke. I believe the same would be true in West 
Virginia. And I would add that Mr. Jones' comment about Rosgen 
training, that we in West Virginia have, I think, 18 people on 
our staff that have some level of Rosgen training ranging from 
Level I to Level IV, so stream restoration has been something 
that we have invested heavily in because that training is very 
expensive. And it is something that we are already doing in the 
absence of a stream protection measures rule.
    Mrs. Lummis. I thank you, gentlemen, for being here today.
    I yield back.
    Mr. Lamborn. OK. Let's have a second round of questions.
    And could staff put up that first slide again?
    I recently visited the Powder River Basin myself in the 
lovely State of Wyoming, and what I learned is that it is not 
just restored to the way it was previously; It is better 
because you don't have the invasive species that have come 
along in recent years when the restoration is done.
    OK. My first question is for any one of you and to put 
things in context, the EPA says that there are 3\1/2\ million 
miles of streams in the United States. In the Appalachian area, 
there is 60,000 miles of streams, and mining has impacted a 
total of 1,200 miles from 1992 to 2002. This is according to 
the EIS for the 2008 rule. So that was 2 percent of the streams 
of Appalachia were affected by coal mining in that 10-year 
period.
    And then the comments that were leaked on the audiotapes 
that we subpoenaed or that were given to us said that 15 miles 
would be protected under the new rule. I have a hard time 
understanding why all of this is being done. I guess that is 
more of a comment than a question. I don't understand the 
agency doing this, how they are doing it.
    Let me go on and move on, though, to a medical science 
question. A 2012 Yale study, called ``Mortality Disparities in 
Appalachia: Reassessment of Major Risk Factors,'' came up with 
the result, and I am going to read the results to you: Age-
adjusted all-cause mortality was independent related to poverty 
rate, medium household income, percent high school graduates, 
rural-urban location, obesity, sex, and race/ethnicity, but not 
unemployment rate, percent uninsured, percent college 
graduates, physician supply, smoking, diabetes, or coal mining.
    And I would like to ask unanimous consent that this Yale 
study be put into the record.
    Seeing no objection, so ordered.
    [The information follows:]

 [From Journal of Occupational and Environmental Medicine, Volume 54, 
                        Number 2, February 2012]

Mortality Disparities in Appalachia--Reassessment of Major Risk Factors
  (By Jonathan Borak, MD, Catherine Salipante-Zaidel, MEM, Martin D. 
                 Slade, MPH, and Cheryl A. Fields, MPH)
                           author information
    From the Department of Epidemiology and Public Health (Dr. Borak 
and Ms. Fields), Yale University; Department of Medicine (Dr. Borak and 
Mr. Slade), Yale University; and Jonathan Borak & Company (Dr. Borak, 
Ms. Salipante-Zaidel and Ms. Fields), New Haven, Conn.
    Address correspondence to: Jonathan Borak, MD, 234 Church Street 
(#1100), New Haven, CT 06510 ([email protected]).
    The study was supported by the National Mining Association. The 
results presented here represent the conclusions and opinions solely of 
the authors. Its publication does not imply endorsement by the National 
Mining Association. The study sponsor had no role in the study design, 
analysis or interpretation of the data, or in the writing, preparation, 
or submission of the manuscript, which was not provided to the sponsors 
prior to its submission for publication.
                                abstract
Objective: To determine the predictive value of coal mining and other 
risk factors for explaining disproportionately high mortality rates 
across Appalachia. Method: Mortality and covariate data were obtained 
from publicly available data bases for 2000 to 2004. Analysis employed 
ordinary least square multiple linear regression with age-adjusted 
mortality as the dependent variable. Results: Age-adjusted all-cause 
mortality was independently related to Poverty Rate, Median Household 
Income, Percent High School Graduates, Rural-Urban Location, Obesity, 
Sex, and Race/Ethnicity, but not Unemployment Rate, Percent Uninsured, 
Percent College Graduates, Physician Supply, Smoking, Diabetes, or Coal 
Mining. Conclusions: Coal mining is not per se an independent risk 
factor for increased mortality in Appalachia. Nevertheless, our results 
underscore the substantial economic and cultural disadvantages that 
adversely impact health in Appalachia, especially in the coal-mining 
areas of Central Appalachia.

    The Appalachian region, as currently defined by the Appalachian 
Regional Commission (ARC), is comprised of 420 contiguous counties in 
13 States stretching from New York to Mississippi.\1\ (The numbers of 
ARC counties has increased from an initial 360 as a result of periodic 
acts of Congress. There were 399 counties in 1991, 406 counties in 
1998, 410 counties in 2002, and 420 counties since 2008.) Encompassing 
an area of 205,000 square miles, the region overlaps and extends beyond 
the less sharply demarcated cultural region known as Appalachia. It is 
home to about 25 million people. For research and other purposes, the 
region is often divided into five geographic subregions of relatively 
homogeneous characteristics (eg, topography; demographics) as shown in 
Fig. 1. Appalachian Regional Commission, a regional economic 
development agency, was created in 1965 by Congress in recognition that 
Appalachia suffered disproportionately poor socioeconomic 
conditions.\2\
[GRAPHIC] [TIFF OMITTED] 

    .epsIt is also well recognized that Appalachians suffer 
disproportionately poor health and increased risks of adverse health 
outcomes compared with the rest of the nation.\3\ \4\ For example, the 
Appalachian region suffers higher rates of total and premature 
mortality (mortality in persons aged 35 to 64 years),\4\ \5\ heart 
disease and cardiac mortality,6-8 cancer incidence \9\ and 
cancer mortality,\10\ stroke mortality,\11\ chronic pulmonary 
disease,\5\ obesity,\12\ and diabetes.12-14 In the view of 
many epidemiologists and public health researchers, Appalachia is 
characterized by ``increased chronic disease burden, limited access to 
health care, and elevated rates of behavioral risks.''\15\
    Significant health disparities have also been documented within the 
region, with deficits most consistently found in central and southern 
Appalachia. Figures 2 to 5 show the regional distributions of county-
level premature mortality due to all causes, cancer, heart disease, and 
stroke. High rates of all-cause mortality are concentrated in eastern 
Kentucky, southern Ohio, western Virginia, southern West Virginia, 
northern Alabama, and Mississippi.\4\ Cardiac-related death rates are 
generally higher in rural areas,\8\ with highest rates of premature 
mortality in central and southern Appalachia, particularly eastern 
Kentucky.\5\ Premature cancer mortality is dominated by high rates in 
the Appalachian counties of Kentucky, Ohio, and West Virginia.\5\ In 
eastern Kentucky, mortality rates for total cancer, lung cancer, and 
cervical cancer are up to 36 percent greater than overall Appalachian 
rates and up to 50 percent greater than corresponding U.S. rates.\10\

[GRAPHIC] [TIFF OMITTED] 

    .epsSuch disparities impose enormous burdens on the people of 
Appalachia and their health care and social service systems. As 
discussed later, a variety of risk factors (eg, age, sex, race, income, 
and education) have been associated with specific outcomes, but those 
factors do not fully explain the disparities. It has been proposed that 
health disparities in Appalachia are due to ``highly localized'' 
factors: ``health disparities . . . result from a combination of 
factors that are unique to each local area.''\4\ The public health 
policy implications of such localized factors are potentially much 
different from those that apply to more systematic barriers to health.
    A recent series of ecological studies by researchers at West 
Virginia University (WVU) has suggested that age-adjusted Appalachian 
county mortality rates are independently related to the presence of 
coal mining, but the nature of that relationship was uncertain.16-
18 Increased mortality rates were apparently not due to 
occupational exposures and observed mortality patterns differed between 
Appalachian coal-mining counties and coal-mining counties outside 
Appalachia. For example, county-level lung cancer mortality was 
elevated in Appalachian, but not in non-Appalachian coal-mining 
areas.\18\ The WVU authors proposed that observed health disparities in 
residents of Appalachian mining areas might be attributed to a ``coal 
mining-dependent economy,''\16\ or to ``pollution'' and the 
``environmental impacts of Appalachian mining,''\17\ \18\ or to 
``additional behavioral or demographic characteristics not captured 
through other covariates.''\18\
    To better understand these possibilities, particularly the role of 
coal mining as an independent risk factor for disparate mortality 
rates, we undertook a reanalysis of those published studies. Our 
objective was to determine the predictive value of coal mining and 
other potentially relevant risk factors for explaining differences in 
mortality rates across the Appalachian region.
                               background
    A variety of economic measures illustrate how badly the Appalachian 
region lagged behind other parts of the United States in 1965, the year 
that ARC was founded, and how that status has improved. At that time, 1 
in 3 Appalachians lived in poverty, 295 of 360 counties were 
categorized as ``high poverty'' (poverty rate >1.5 times U.S. average), 
and 223 of 360 counties were classified as ``economically 
distressed.''1 a By 2008, the poverty rate had 
declined to 18 percent, the number of ``high poverty'' counties had 
fallen to 116 of 410 counties, and 78 of 410 counties were classified 
as ``distressed.'' Despite such improvement, however, Appalachian per 
capita personal income remains about 20 percent lower than the U.S. 
average and the region has ``fared far worse than the Nation'' during 
the recent recession.\19\
    Significant economic disparities occur within the region. For 
example, incomes are relatively high in northern and southern 
Appalachia, but relatively low in central Appalachia. In 2008, per 
capita market income for the region overall was 75 percent of the U.S. 
average, but only 51 percent in central Appalachia. Likewise, 57 of the 
82 Appalachian counties classified as economically distressed in 2011 
were located in the contiguous areas of three central Appalachian 
States: eastern Kentucky; northern Tennessee; and southern West 
Virginia.\19\ As summarized by ARC, ``the central Appalachian region in 
particular still battles economic distress, with concentrated areas of 
high poverty, unemployment, poor health, and severe educational 
disparities.''\19\ Such economic disparities seem to parallel the 
characteristic Appalachian landscape: ``counties classified by ARC as 
`distressed' tend to be the mountainous and isolated counties that most 
people consider to be Appalachia.''\14\
    As expected, poorer health status in Appalachia is associated with 
lower economic status. High rates of premature all-cause mortality, 
cardiac mortality, and cancer mortality have each been associated with 
low income, high poverty, high unemployment, and a high percentage of 
people without health insurance.\5\ Similar associations are found when 
counties are classified by economic status. As a group, economically 
distressed Appalachian counties had the highest mortality rates from 
heart disease and stroke.\11\ Likewise, prevalence of diabetes 
increases as economic status declines. In 2007, the prevalence of 
diabetes was 13 percent in ``economically distressed'' Appalachian 
counties, more than twice the 6 percent rate in Appalachian ``economic 
attainment'' counties; the corresponding national and regional rates 
were 8 percent and 10 percent, respectively.\14\
    Education is also strongly linked with health status; limited 
education is regarded as a ``precursor to poor health.''3 20 
21 The region has long been characterized by ``severe educational 
disparities,'' which persist in some areas.\19\ In 2000, the proportion 
of adults without high school diplomas or equivalents exceeded the U.S. 
average in 11 of the 13 Appalachian States, and the proportion of those 
with a college degree was substantially lower. While 24.4 percent of 
U.S. adults had college degrees, only 17.7 percent of Appalachian 
adults and only 10.2 percent of those residing in economically 
distressed Appalachian counties were college graduates.22-24 
Only 18 of 410 Appalachian counties had a higher percentage of college 
graduates than the national average; most were the homes of large 
universities. In general, the counties with lowest educational 
attainment were ``concentrated in central Appalachia, especially in the 
mining regions,'' where health status is generally worst.\23\
    In addition, unhealthy behaviors are more common in the region than 
in the rest of the nation.15 25 26 For example, 
Appalachians have a higher prevalence of tobacco use than does the U.S. 
population.\25\ Five Appalachian States rank among the eight highest 
for smoking prevalence,\27\ \28\ and smoking rates are higher in the 
Appalachian counties and Labor Market Areas than the non-Appalachian 
counties and Labor Market Areas of those five States.4 29 
b High rates of smoking cluster in central Appalachia, notably in 
eastern Kentucky and West Virginia where smoking rates are the Nation's 
highest.4 9 27 In those areas, high smoking 
rates coincide with the Nation's highest lung cancer rates, with 
similar patterns seen for other tobacco-related cancers.9 30 
31
    Lack of physical exercise and poor eating habits are two 
other behaviors that adversely impact regional health. Compared with 
the U.S. population, residents of southern and central Appalachia are 
less likely to engage in recommended levels of physical activity and 
more likely to have no physical activity during leisure time.\25\ \32\ 
Residents of rural Appalachia are also more likely to consume less 
nutritious, more energy-dense diets.\14\ \25\ Because inactivity and 
poor diet are risk factors for obesity, and because inactivity, poor 
diet, and obesity are all risk factors for diabetes, it is not 
surprising that obesity and diabetes are more prevalent in Appalachia. 
Likewise, physical inactivity, poor diet, and obesity are risk factors 
likely to contribute to the increased incidence of cancer in rural 
Appalachia.\26\ \33\
    In 1997, the prevalence of obesity (body mass index > 30kg/m2) in 
Appalachian counties ranged from 10.2 percent to 27.6 percent among men 
and 7.8 percent to 25.3 percent among women. High rates of obesity 
clustered in eastern Kentucky, southern West Virginia, north-central 
Pennsylvania, and southeast Ohio.\34\ In 2007, the highest prevalence 
rates of obesity and diabetes in the United States were mainly found in 
the Appalachian counties of West Virginia, eastern Kentucky, and 
northern Tennessee.\12\
    Nevertheless, such risk factors, at least as measured by 
traditional epidemiologic variables, seem insufficient to fully explain 
the region's health disparities. For example, after accounting for a 
variety of covariates (eg, age, sex, race, education, income, smoking, 
obesity, and physical activity), residents of economically distressed 
counties in Appalachian had a statistically significant 33 percent 
greater risk of having diabetes than did residents of non-Appalachian 
counties; by contrast, risks did not differ between non-Appalachian 
counties and the Appalachian counties not classified as distressed.\14\
    Some of the health disparities not accounted for by the traditional 
risk factors may be attributed to the geographic isolation that 
characterizes rural Appalachia. Such isolation adversely impacts 
regional health status by creating logistical barriers to health care 
access and by limiting employment opportunities, thus contributing to 
poverty and lack of health insurance.\25\ For such reasons, residents 
of rural Appalachia generally utilize fewer preventive health services 
such as routine cancer screening.26 35-38 Geographic 
isolation, which leads to fewer local medical and other support 
resources, is also a likely explanation for the increased mortality 
rates from coronary heart disease in rural versus metropolitan 
Appalachian communities.\8\ Other data suggest that rural Appalachians 
with cancer have less access to comprehensive diagnostic and treatment 
services.\39\ And by limiting access to health care services and 
producing physician shortages, the rural geography has seemingly caused 
an adverse impact on Appalachia's ``diabetes problem.''\40\
    Cultural and social factors associated with residence in distressed 
areas are also likely to adversely impact health. Factors suggested as 
relevant include ``Appalachian cultural beliefs such as fatalism,'' 
which reinforces poor health behaviors and discourages seeking of early 
health intervention and medical advice. In addition, high rates of 
smoking lead to increased exposure to second-hand smoke.\14\ \18\ Local 
social conditions also influence dietary habits, and thereby health. 
Rural Appalachia is distinguished by a relative lack of full-service 
grocery stores and fruit-and-vegetable markets; residents of such 
``food deserts'' tend to shop in stores with fewer nutritional choices 
and have less nutritious diets.14 34 41 42
                             methods
Design
    This study retrospectively investigated all-cause mortality rates 
for residents of Appalachia during the years 2000 to 2004. Mortality 
and covariate data were obtained from publicly available data bases. 
The time period considered and the data utilized were selected to allow 
for analyses that closely resembled those described in the WVU 
studies.16-18 Data were collected to represent the same time 
period (2000 to 2004) as much as possible given data availability, but 
the actual time periods corresponding to specific variables were not 
identical. Because the WVU analyses differed from study to study, we 
choose to incorporate the least complex of those alternative approaches 
for our basic model. The following discussions of Data and Analysis 
explain that process in detail.
Data
            Mortality
    Mortality data were obtained from the Centers for Disease Control 
and Prevention.\43\ Reported data described county-level mortality 
rates age adjusted to the 2000 U.S. standard population. We utilized 
all-cause mortality for all age groups.
Demographic Data
    We obtained county-level demographic data from the 2005 Area 
Resource File.\44\ The percent men population was calculated as the 
arithmetic mean for the years 2000 to 2003. The percentages of the 
population who were white, African American, Native American, non-white 
Hispanic, and Asian American were determined for the year 2000.
Economic Status
    Four measures of economic status have been associated with 
mortality rates in Appalachia: median household income; poverty rate; 
unemployment rate; and rate of health insurance.\5\ Each was considered 
in at least 1 of the 3 WVU analyses. We obtained county-level economic 
data from the Area Resource File.\44\ Median Household Income and 
Poverty Rate were determined as the arithmetic means for the years 2000 
to 2002. Unemployment Rate (persons aged  16 years) and Percent 
Uninsured were obtained for the year 2000.
Education
    County-level rates of high school graduates and college graduates 
were calculated using ARC data for the year 2000.\45\ The number of 
persons with a high school diploma or higher (Percent High School 
Graduates), and the number of persons with a college diploma or higher 
(Percent College Graduates) were each divided by the number of persons 
aged 25 years or older.
Location
    The location type of each county was characterized using the U.S. 
Department of Agriculture (USDA) nine-point rural-urban classification 
scheme, which codes metropolitan and nonmetropolitan counties by degree 
of urbanization, adjacency to metro areas, and population size of urban 
areas.\46\ (For example, ``Code 1'' = ``counties in metro areas of 1 
million population or more''; ``Code 5'' = counties with ``urban 
population of 20,000 or more, not adjacent to a metro area'', and 
``code 9'' = counties that are ``completely rural or < 2,500 urban 
population, not adjacent to a metro area''.) We obtained county-
specific rural-urban continuum codes from the Area Resource File.\44\ 
We divided the USDA rural-urban continuum codes into three categories: 
Metropolitan (codes 1 to 3), Micropolitan (codes 4 to 7), and Rural 
(codes 8 to 9).
Access to Health Care
    County-specific physician supply was used as a measure of access to 
health care. Data for the number of active medical doctors (MDs) and 
osteopathic doctors (DOs) per 1,000 population were obtained from the 
Area Resource File.\44\ Two of the WVU studies used ``number of active 
MDs and DOs per 1,000 population,''17 18 whereas the 
third included ``physician supply'' not otherwise defined.\16\ In our 
analyses, Physician Supply indicates the number of active MDs and DOs 
per 1,000 population.
Smoking
    Rates of current smokers were obtained from the Centers for Disease 
Control and Prevention Behavioral Risk Factor Surveillance System 
(BRFSS) \28\ supplemented with smoking rates available from State 
public health department Web sites. County-level data were available 
for 54 Appalachian counties, of which 9 were reported at the level of 
metropolitan statistical areas. For the other 366 counties, smoking 
rates were available as the means for each of 84 subgroups of 
contiguous counties. When available, we used rates averaged for the 
years 2002 to 2004; otherwise, we used data for the year(s) closest to 
that time period. (Smoking data were available for the following years 
for each State: Alabama: 2009-10; Georgia: 2000-03; Kentucky: 2002-04; 
Maryland: 2000-02; Mississippi: 2004; New York: 2003; North Carolina: 
2002-04; Ohio: 2002; Pennsylvania: 2002-04; South Carolina: 2002-04; 
Tennessee: 2005; Virginia: 2007; West Virginia: 2001-05.)
Obesity and Diabetes
    We obtained county-level data for obesity and diabetes from the 
National Diabetes Surveillance System for the year 2004.\47\ Obesity 
Rate indicates the proportion of adults aged 20 years or older with 
body mass index 30 kg/m2 or more. Diabetes Rate indicates 
the proportion of adults aged 20 years or older with diagnosed 
diabetes.
Coal Mining
    County-specific coal production data were obtained from the Energy 
Information Administration.\48\ In our analyses, we divided Appalachian 
counties into two groups based on whether they produced coal during 
2000 to 2004 and we also grouped coal-producing counties into those 
above (High) and below (Low) the median coal production level for 
Appalachian counties during that time period.
Analysis
    The data were analyzed using SAS 9.2 (SAS Institute, Cary, NC).\49\ 
We conducted ordinary least square multiple linear regression with age-
adjusted mortality as the dependent variable. Our basic regression 
model (``Basic Model'') paralleled the WVU analyses, but we considered 
only the 420 Appalachian counties, and we did not include coal mining-
related variables or the ``dichotomous Southern variable . . . created 
to capture regional effects that partially overlap with 
Appalachia.''\18\ The model included the following independent 
variables:

   Percent Men
   Race/Ethnicity Rates
   Poverty Rate
   Percent High School Graduates
   Percent College Graduates
   Rural-Urban Category
   Physician Supply
   Smoking Rate

    Next, we added additional independent variables into the basic 
model and evaluated their explanatory power by means of partial F 
tests. Partial F tests are used to determine whether the addition of 
one or more variables to an already specified model significantly 
decreases the unexplained variance of the model.\50\ When that occurs, 
addition of the variable is said to have significantly improved the 
model's fit to the observed data. The partial F test is also known as 
Type 3 test for fixed effects when the addition of only one more 
variable is contemplated.
    Additional variables were added one at a time to the Basic Model, 
regression analyses were performed, and the results compared with the 
regression results for the Basic Model without that additional 
variable. If partial F tests indicated that inclusion of the variable 
led to significantly improved model fit, the variable was retained in 
an ``Expanded Model.'' Alternatively, if including a variable did not 
significantly improve the model, it was excluded. This process was 
repeated using Expanded Models in place of the Basic Model, until all 
variables had been evaluated. The following is a list of the additional 
independent variables that were tested in this way, listed in the order 
in which they were added:

   Median Household Income
   Unemployment Rate
   Percent Uninsured
   Obesity Rate
   Diabetes Rate
   Coal Mining (Yes/No)
   Coal Mining (High/Low/None)
RESULTS
    The results of ordinary least squares multiple linear regression 
analysis of the Basic Model are presented in Table 1. These findings 
indicate that higher age-adjusted all-cause mortality rate was 
independently related to Poverty Rate, Percent High School Graduates, 
Rural-Urban Location, and Demographic variables including Sex and Race/
Ethnicity rates. Mortality Rate was not significantly related to 
Percent College Graduates, Physician Supply, or Smoking Rate.

 TABLE 1. Basic Model: Ordinary Least Squares Multiple Linear Regression
              Model; Age-Adjusted All-Causes Mortality Rate
------------------------------------------------------------------------
                                        Basic Model
  Data Category  -------------------------------------------------------
                      Variable     Coefficient       SE           P
------------------------------------------------------------------------
                  Intercept            5179.71      1101.18     < 0.0001
Economic status   Poverty Rates           7.99         1.28     < 0.0001
Education         Percent High         -497.87        87.92     < 0.0001
                   School
                  Percent College      -174.43       117.46       0.1383
Location          Rural-Urban           -30.54         5.97     < 0.0001
                   Category
Access to health  MDs and DOs per         2.56         2.61       0.3285
 care              1000
Smoking           Smoking Rate           90.31       100.38       0.3688
Demographics      Percent Men          -805.75       320.29       0.0123
                  Percent White         -35.49        11.00       0.0014
                  Percent Black         -35.67        10.98       0.0013
                  Percent Asian         -41.35        14.71       0.0052
                  Percent Native        -33.70        11.94       0.0050
                   American
                  Percent Latin         -20.48         6.72       0.0025
------------------------------------------------------------------------
Bold and italicized indicates statistically significant variables.
DO, osteopathic doctor; MD, medical doctor.

    We then evaluated whether inclusion of additional variables would 
significantly reduce the unexplained variance of the Basic Model, thus 
improving its fit to the age-adjusted mortality data. Table 2 presents 
the results of this sequential testing, indicating F score, P value, 
and conclusions for each of the seven variables. Inclusion of Median 
Household Income significantly improved the Basic Model 
(P < 0.0001) and it was retained in an ``Expanded Model.'' Likewise, 
Obesity Rate significantly improved the Expanded Model (P = 0.0022), 
and it was retained in a ``Further Expanded Model.'' By contrast, no 
improvements resulted from the addition of Unemployment Rate (P = 
0.6852), Percent Uninsured (P = 0.3036), Diabetes Rate (P = 0.3704), 
Coal Mining: Yes/No (P = 0.6003), or Coal Mining: High/Low/None (P = 
0.1047), and they were excluded.

     TABLE 2. Explanatory Power of Additional Independent Variables, With Sequential Addition of Significant
                         Variables to the Basic Model, as Evaluated Using Partial F Test
----------------------------------------------------------------------------------------------------------------
                                         Numerator    Denominator
              Comparisons                    df           df        F Score      P             Conclusion
----------------------------------------------------------------------------------------------------------------
(1), Basic Model
(1) vs (2) [Basic Model + Income].....           1           406    15.220    0.0001   Retain income in model
(2) vs (3) [Basic Model + Income +               1           405     0.165    0.6852   Unemployment Rate does
 Unemployment Rate].                                                                    not improve model;
                                                                                        Exclude
(2) vs (4) [Basic + Income + Percent             1           405     1.065    0.3036   Percent Uninsured does
 Uninsured].                                                                            not improve model;
                                                                                        Exclude
(2) vs (5) [Basic + Income + Obesity].           1           405     9.483    0.0022   Retain Obesity in model
(5) vs (6) [Basic + Income + Obesity +           1           404     0.804    0.3704   Diabetes Rate does not
 Diabetes].                                                                             improve model; Exclude
(5) vs (7) [Basic + Income + Obesity +           1           404     0.275    0.6003   Mining (Yes/No) does not
 Mining (Yes/No)].                                                                      improve model; Exclude
(5) vs (8) [Basic + Income + Obesity +           2           403     2.269    0.1047   Mining (High/Low/None)
 Mining (High/Low/None)].                                                               does not improve model;
                                                                                        Exclude
----------------------------------------------------------------------------------------------------------------

    Table 3 presents the results of ordinary least squares multiple 
linear regression analysis of the Further Expanded Model. The variable 
Coal Mining: Yes/No has been included to demonstrate its lack of 
statistical significance when added to the model. These findings 
indicate that higher age-adjusted all-cause mortality rate was 
independently related to Poverty Rate, Median Household Income, Percent 
High School Graduates, Rural-Urban Location, Obesity Rate, and 
Demographic variables including Sex and Race/Ethnicity rates. The 
relationship between Mortality Rate and Percent College Graduates was 
nearly significant (P = 0.0814), but Mortality Rate was not 
significantly related to Physician Supply, Smoking Rate, or Coal 
Mining: Yes/No.

 TABLE 3. Further Expanded Model: Ordinary Least Squares Multiple Linear
  Regression Model; Age-Adjusted All-Causes Mortality Rate. Coal Mining
   (Yes/No) Has Been Included for Demonstration Purposes, but Is Not a
                         Component of the Model
------------------------------------------------------------------------
 Data Category        Variable       Coefficient      SE          P
------------------------------------------------------------------------
                Intercept                4977.06    1076.63     < 0.0001
Economic        Poverty Rates              10.96       1.90     < 0.0001
 status
                Median Household            4.86       1.27       0.0001
                 Income (per $1000)
Education       Percent High School      -510.44      90.52     < 0.0001
                Percent College          -222.60     127.42       0.0814
Location        Rural-Urban               -20.55       6.17       0.0010
                 Category
Access to       MDs and DOs per             2.98       2.59       0.2500
 health care     1000
Smoking         Smoking Rate               52.67      98.61       0.5935
Obesity and     Obesity Rate                5.96       1.97       0.0027
 diabetes
Demographics    Percent Men              -931.40     316.61       0.0035
                Percent White             -36.39      10.74       0.0008
                Percent Black             -37.23      10.71       0.0006
                Percent Asian             -41.38      14.38       0.0042
                Percent Native            -35.06      11.65       0.0028
                 American
                Percent Latin             -21.96       6.56       0.0009
Coal mining     Coal Mining (Yes/           4.68       8.92       0.6003
                 No)
------------------------------------------------------------------------
Bold and italicized indicates statistically significant variables.

    We also performed regression analyses of the Further Expanded Model 
after adding each of the excluded variables (Unemployment Rate, Percent 
Uninsured, Diabetes Rate, Coal Mining: Yes/No and Coal Mining: High/
Low/None). First, we added a variable and ran the model, and then we 
removed that variable and added the next variable and repeated the 
process so that all variables were individually tested. Then we 
included all variables in the model at one time (but only one of the 
Coal Mining variables was included at any time). Adding each or all of 
those excluded variables did not significantly change the model's 
parameter estimates or their P values (data not shown); hence, all 
inferences remained the same.
                               discussion
    Appalachians suffer disproportionately poorer health and 
significantly higher mortality rates than the rest of the 
Nation.3-5 In general, the Appalachian counties with poorest 
health are also the most economically distressed, the least educated, 
and those with the most limited access to social and medical services. 
In addition, residents of those counties demonstrate generally higher 
rates of risky behaviors, for example, higher smoking rates, more 
prevalent obesity, less physical activity, less nutritious diets, and 
less use of preventive health services. Notably, these often rural, 
isolated counties include many of the most productive coal-mining areas 
in Appalachia.\51\
    Earlier efforts to understand and address the sources of such 
health disparities have identified a number of independent risk factors 
associated with specific health outcomes, but have not fully explained 
the disparities. Some have proposed that health disparities in 
Appalachia are due in part to factors ``unique to each local area.''\4\ 
A recent series of ecological studies has suggested that the presence 
of coal mining is such a ``local'' factor, which is independently 
related to age-adjusted mortality rates, although the nature of that 
relationship is uncertain.
    To better understand that relationship, we studied all-cause 
mortality rates for Appalachian residents during 2000 to 2004. 
Mortality and covariate data were selected to create a Basic Model that 
closely resembled the models employed in the UWV ecological studies, 
but did not include coal mining. As seen in Table 1, the regression 
analysis of that Basic Model indicated that increased mortality rate 
was significantly associated with greater poverty, lesser educational 
attainment, rural location, and demographic factors including sex and 
race. No significant associations were seen for smoking or physician 
supply.
    We then expanded that Basic Model. First, we considered the 
inclusion of three additional economic measures (Median Household 
Income, Percent Unemployed, and Percent Uninsured) as independent 
variables. Those three measures, along with Poverty Rate, are generally 
correlated, but they are nonidentical and reflect different aspects of 
socioeconomic status and economic distress.5 52 53 
All four have been independently associated with Appalachian mortality 
rates.4 5 The WVU model did not include Median 
Household Income, Percent Unemployed, or Percent Uninsured.
    The inclusion of Median Household Income significantly improved the 
model's fit to the observed data and it was included in an Expanded 
Model. By contrast, neither of the two other economic variables 
significantly reduced the unexplained variance of the Expanded Model 
(i.e., Basic Model plus Median Household Income); hence, neither was 
retained in the model.
    We next considered whether adding Obesity Rate and Diabetes Rate 
would improve the Expanded Model's explanatory power. Both are 
important risk factors for mortality. The World Health Organization has 
determined that ``overweight and obesity'' is the fifth leading risk 
factor for deaths worldwide,\54\ and Centers for Disease Control and 
Prevention recognizes diabetes as the seventh leading cause of death in 
the United States.\55\ Obesity is also seen as a more important risk 
factor for chronic disease than either smoking or poverty.56 
57 Neither Obesity Rate nor Diabetes Rate was included in the WVU 
analytical models.
    In our analyses, addition of Obesity Rate significantly improved 
the Expanded Model and it was retained in a Further Expanded Model (ie, 
Basic Model plus Median Household Income plus Obesity Rate). By 
contrast, adding Diabetes Rate to that model yielded no significant 
improvement and it was excluded.
    Finally, we considered the effects of including either of the two 
measures of coal mining in the Further Expanded Model. Neither Coal 
Mining: Yes/No nor Coal Mining: High/Low/None significantly improved 
the explanatory power of the model. The findings of this analytical 
model argue that coal mining is not per se an independent risk factor 
for increased mortality in Appalachia. By contrast, we found that 
increased mortality was significantly associated with greater poverty, 
lower median household income, fewer high school graduates, rural 
location, obesity rate, and demographic factors including sex and race. 
Lower college graduate rate was nearly significant. Moreover, we found 
no significant associations for smoking, physician supply, and 
diabetes.
    It seems surprising that smoking rate was not significantly 
associated with mortality, given that smoking causes about 20 percent 
of U.S. deaths,\58\ but similar results were reported in WVU 
studies.16 59 This is likely due to limitations of the 
available data. BRFSS determines current smoking status, not quantity 
or duration (The relevant BRFSS questions are ``Have you smoked at 
least 100 cigarettes in your entire life?'' and ``Do you now smoke 
cigarettes every day, some days, or not at all?.''\28\), thus BRFSS 
data do not capture the substantial dose-response gradient linking 
smoking and mortality.\60\ Also, smoking data were available for only 
54 of 420 individual Appalachian counties; for the other 366 counties, 
the available smoking rate were mean values calculated for each of 84 
subgroups of contiguous counties. Thus, Smoking Rate is almost 
certainly biased by non-differential misclassification, a particular 
concern in light of evidence that smoking rates are increased in coal-
mining areas.17 18 59 To the extent that such 
misclassification ``biases toward the null'', the link between smoking 
and mortality would be differentially reduced in high-smoking counties. 
The available data are not adequate to evaluate whether smoking might 
act synergistically with other environmental pollutants.
    Likewise, we were surprised that Diabetes Rate failed to improve 
the model, but this is likely explained by two factors. First, obesity 
is a critical risk factor for diabetes and the two are well correlated. 
Risk of diabetes, for example, was increased up to elevenfold in 
Medicare recipients with a history of midlife obesity.\61\ Thus 
Diabetes Rate may add little explanatory value not associated with 
Obesity Rate. Second, BRFSS self-reported diabetes status is likely to 
misclassify a substantial proportion of the population because more 
than 27 percent of adults with diabetes in the United States have 
``undiagnosed diabetes.''\62\ Such misclassification would likely have 
greatest impact in the economically distressed Appalachian counties 
where reported diabetes rates are generally higher and utilization of 
preventive services generally lower than in other counties. Thus, in 
those counties apparent associations between diabetes and mortality are 
probably understated.
    Lack of a significant association between Physician Supply and 
mortality rate is also notable. One explanation is that the number of 
physicians is ``just one factor within complex environments,'' which 
include other health care workers and a variety of health care delivery 
systems: ``Higher physician supply per se does not amount to better 
access, quality, or outcomes.''\63\ Some studies report that an 
increased supply of primary care physicians, but not specialists is 
associated with reduced mortality.\64\ Reanalysis of their data, 
however, suggested that benefits were region-clustered and less likely 
to occur in rural populations.\65\ Finally, there is no standard 
approach to quantifying the supply of primary care providers using 
secondary data sets; it is likely that some specialists will be 
misclassified, while nurse practitioners and physician assistants are 
ignored.\65\
    We doubt that the differences between our findings and those of the 
WVU studies are due to the ways in which covariates were selected and 
defined. We chose time periods, variables, and data to closely resemble 
those studies. In three cases, the WVU studies incompletely or 
inconsistently defined their covariates. In those cases, we chose the 
least complex alternative for our model; thus, we used covariates that 
were similar, but not necessarily identical. For example, the WVU 
studies defined Physician Supply as the number of active MDs and DOs 
per 1000 population. Some results were also reported for ``primary care 
physicians,'' a category not specifically contained in the 2005 Area 
Resource File and no explanation was given as to how ``primary care 
physicians'' was defined. We defined Physician Supply as the number of 
active MDs and DOs per 1000 population; we did not differentiate 
``primary care physicians.''
    A second case involves the rural-urban continuum. Two WVU studies 
included the nine-point USDA continuum scale,16 17 
while the third study, citing concerns for nonlinearity, recoded the 
scale into three categories (``metropolitan,'' ``micropolitan,'' and 
``rural'').\18\ Nevertheless, that study did not actually define the 
categories. To understand how these categories were structured, we 
reviewed other studies by those researchers who included the USDA 
scale, but found the scale used in still other ways. One study defined 
only two categories, ``metropolitan'' (codes 1 to 3) and 
``nonmetropolitan'' (codes 4 to 9), but then treated ``rural'' and 
``nonmetropolitan'' as equivalent terms: ``The terms rural and 
nonmetropolitan will be used interchangeably in this study.''\66\ A 
second study coded ``metropolitan'' status as a ``five-level 
variable,'' but no further details were provided.\67\ A third \68\ 
included ``rural-urban setting'' as a covariate that was not defined. 
Our analyses included three explicitly defined categories that seem 
consistent with the USDA scheme and the least complex of the WVU 
approaches.\18\
    The third case involves coal mining. The WVU studies each defined 
different coal-mining categories. One defined coal-mining areas as 
``counties with any amount of coal mining'' during 1994 to 2005; some 
analyses also grouped coal-mining counties into those above and below 
the median production level.\16\ A second study defined three groups of 
counties based on total 2000 to 2004 coal production: more than 3 
million tons; less than 3 million tons; and no production.\18\ For some 
analyses, counties with more than 3 million tons of production were 
compared with all other counties combined and ``per capita coal 
production'' (calculated relative to the 2000 census) was also included 
in those analysis. The third study also defined three groups of 
counties on the basis of total 2000 to 2004 coal production, but groups 
were defined differently: more than 4 million tons; less than 4 million 
tons; and no production.\17\ Our approach was similar to the first of 
those WVU studies, but we considered the time span considered in the 
latter two studies. Our analysis divided counties into two groups based 
on whether any amount of coal was mined during 2000 to 2004, and coal-
producing counties were further grouped into those above and below the 
median production level for Appalachian counties during that time 
period.
    Our Expanded Model indicates that coal mining is not per se the 
cause of increased mortality in rural Appalachia. On the contrary, our 
results underscore the substantial economic and cultural disadvantages 
that adversely impact the health of many area residents. Particularly 
in the coal-mining areas of central Appalachia, there is a potent 
combination of greater economic distress, lesser educational 
attainment, decreased access to health care, limited availability of 
nutritious foods, higher rates of behavior-related risks such as 
obesity and smoking, and decreased use of preventive health services. 
The conjunction of such factors and their adverse effects can be seen 
by comparing Figs. 2 to 5, which show the geographical distributions of 
various county-level mortality rates, and Figs. 6 to 9, which show the 
distributions of county-level poverty rate, economic distress, percent 
high school graduates, and coal mining.

[GRAPHIC] [TIFF OMITTED] 

    .epsSuch overlapping risk factors and mortality rates illustrate 
how difficult it can be to disentangle the effects of the cultural 
environment from those of the physical environment, a difficulty made 
greater because the two interact. For example, the physical isolation 
of the mountainous counties that characterize rural Appalachia poses 
barriers to industrial diversification and broadening of employment 
options, and also contributes to lower incomes, reduced access to 
health care services, reduced availability of nutritious foods, and so 
forth.14 25 The interplay of geographical isolation, 
kinship, and health-related behaviors further complicates matters. 
Rural Appalachia is distinguished by tight-knit social networks, 
``cohesive, extended, and geographically connected'' kinships, which 
often extend beyond biological families.15 69 Such 
networks can exert significant influence on the behaviors and health of 
their individual members, as recently documented in the Framingham 
Study. In that well-studied New England community, risks of becoming 
obese (i.e., the ``induction and person-to-person spread of obesity'') 
were predicted by the closeness of social relationships, not by 
``common exposure to the local environment.''\70\ Thus, the physical 
environment (eg, geographical isolation) can foster cultural practices 
(eg, tight-knit kinships) that promote adverse health outcomes (eg, 
obesity).
    Accordingly, coal mining in Appalachia, an industrial activity 
associated with rural, mountainous areas, is likely to be 
geographically associated with a variety of economic and cultural 
health risk factors. And, for similar reasons, mining is also likely to 
be geographically associated with a variety of adverse health outcomes. 
Although our results indicate that mining is not the direct cause of 
those outcomes, they do not rule out the possibility that mining 
contributes to the development of the social environments and cultural 
practices that adversely impact health. This possibility seems most 
likely in those specific areas where mining is the principal industry. 
Likewise, our analyses do not rule out the possibility that some 
specific mining methods may have greater adverse effects than others on 
the physical environment.
    Ultimately, the issue of greatest concern is that Appalachians 
suffer disproportionately poor health and increased risks of adverse 
health outcomes compared with the rest of the nation.\3\ During the 
past 50 years, ARC and others have overseen substantial improvements in 
the well-being of regional residents. Nevertheless, significant 
shortfalls persist. To eliminate health-related disparities, 
substantial efforts must be directed at the region's underlying 
economic and social disparities. To the extent that coal mining is a 
factor in defining the cultural fabric and socioeconomic environment of 
Appalachian communities, the coal-mining industry must play a role in 
efforts to increase economic diversity, develop job-creation programs, 
ensure access to appropriate heath care services, improve educational 
opportunities, and facilitate access to nutritious foods and diets.
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        2006;295:190-198.
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        Services, 2011. Available at: http://www.cdc.gov/diabetes/pubs/
        factsheet11.htm. Accessed August 2011.
63. Goodman DC, Grumbach K. Does having more physicians lead to better 
        health system performance. J Am Med Assoc. 2008;299:335-337.
64. Starfield B, Shi L, Grover A, Macinko J. The effects of specialist 
        supply on populations' health: assessing the evidence. Health 
        Aff (Millwood). 2005;Suppl Web (Jan-Jun):W5-97-W5-107.
65. Ricketts TC, Holmes GM. Mortality and physician supply: does region 
        hold the key to the paradox? Health Serv Res. 2007;42:2233-
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66. Hendryx M, Fedorko E, Halverson J. Pollution sources and mortality 
        rates across rural-urban areas in the United States. J Rural 
        Health. 2010;26:383-391.
67. Zullig KJ, Hendryx M. A comparative analysis of health-related 
        quality of life for residents of U.S. countries with and 
        without coal mining. Pub Health Rep. 2010;125:548-555.
68. Ahern MM, Hendryx M, Conley J, Fedorko E, Ducatman A, Zullig KJ. 
        The association between mountaintop mining and birth defects 
        among live births in central Appalachia, 1996-2003. Environ 
        Res. 2011;111:838-846.
69. Stewart Burns SL, Scott SL, Thompson DJ. Family and community. In: 
        Abramson R, Haskell J, eds. Encyclopedia of Appalachia. 
        Knoxville, TN: University of Tennessee Press; 2006:149-197.
70. Christakis NA, Fowler JH. The spread of obesity in a large social 
        network over 32 years. N Engl J Med. 2007;357:370-379.
71. Appalachian Regional Commission. Source and Methodology. 
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a. According to ARC, a county is ``economically distressed'' if it 
        ranks in the worst 10 percent of U.S. counties for 3-year 
        average unemployment rate, per capita market income, and 
        poverty rate. By contrast, a county has achieved ``economic 
        attainment'' if it ranks in the best 10 percent of U.S. 
        counties.\71\
b. The U.S. Department of Labor defines Labor Market Area (LMA) as ``an 
        economically integrated geographic area within which 
        individuals can reside and find employment within a reasonable 
        distance or can readily change employment without changing 
        their place of residence.'' In Appalachia, non-metropolitan 
        LMAs are generally identical to counties.\72\
                                 ______
                                 
    Mr. Lamborn. Some people have claimed that there, and maybe 
they have a study they can pin their statement on, but this 
study from Yale scientists shows that there is not a medical 
cause correlation between mortality, in this case, and coal 
mining. Is that the understanding that you have? And especially 
you two are the State regulators, this has to be a serious 
concern of yours that you would be aware of.
    Mr. Clarke. Mr. Chairman, we are concerned about the health 
impacts. As I pointed out before, we do have a regulatory 
program that addresses at least the water exposure pathway, and 
if we knew of a causative agent, which those studies don't 
identify, then we would attempt to take action to protect the 
public.
    But as things exist now, we think that we have the water 
exposure pathway covered. No causative agent has been 
identified through the air exposure pathway. If there were more 
science developed on that that would establish a causative 
agent for any health impacts from mining, it would be something 
that, if we lack the authority to address under our existing 
regulatory programs, we would be making recommendations to our 
legislators and to our Congress people for additional authority 
to address those issues.
    Mr. Lambert. And Mr. Chairman, I agree with Mr. Clarke's 
comments.
    Mr. Lamborn. OK. Thank you.
    And my last question, why would a stream protection rule, 
which to me sounds like it is above ground, have affect on 
underground mining? Could any one of you explain that, please?
    Mr. Clarke. It is my understanding, and there was a 
presentation at this Committee's appearance in Charleston, West 
Virginia, by a representative from Consol Energy that went into 
their projection, and that is primarily a longwall mining 
company, their projection of impacts to their longwall mining 
operations from this rule. And I remember it was quite 
substantial, but I don't recall the figures that were cited. 
But the requirements of the rule as to protections of streams 
on the surface above longwall mining operations would seriously 
hamper the ability of coal companies to recover those reserves, 
coal reserves by that method.
    In addition to that, the fill provisions, and there is this 
idea of mountaintop mining in Appalachia just being mountaintop 
removal and fills are only accompanying mountaintop removal 
mining; fills accompany construction of deep mine face-ups in 
Appalachia. The valleys are so narrow, the mountain sides are 
so steep, that if you need a level place upon which to stage 
your equipment and working area to enter, before you enter the 
mine, you have to level off a place to do it.
    When you level off that place, that creates spoil material 
that has to be placed somewhere. The only place to put it in a 
stable, safe fashion in those areas is in a stream bottom, 
where you have waters of the United States, and usually it is 
an intermittent or perennial stream. So, it impacts deep mining 
both in terms of protection of the waters on the surface from 
longwall mining underground, and it impacts the mine face-ups 
on the surface for underground mining in Appalachia as well.
    Mr. Lamborn. OK. Thank you.
    Representative Huffman.
    Mr. Huffman. Thank you, Mr. Chairman.
    It is a lovely picture that we have in the background for 
this conversation. I think it is especially lovely since there 
is mountaintops in the background. That landscape certainly is 
a beautiful thing to see in Wyoming.
    I don't suppose we have any pictures of the mountaintops 
that have been removed in Appalachia from mountaintop removal 
mining. Did staff have anything like that we could put up? 
Might be a little less pretty.
    I enjoyed the picture of the stream that was restored, and 
I thank you and I congratulate you for your stewardship award 
on that.
    Do we have any pictures of the thousands of miles of 
Appalachian streams that don't exist anymore because excess 
waste was dumped into them and they are gone forever? We have 
any of those pictures that we could maybe put up while we have 
this conversation?
    I think it is important that no amount of stagecraft can 
sort of change the subject from the absolute environmental 
destruction that occurs when all streams are despoiled by the 
improper disposal of this waste. And we, frankly, have lost a 
lot of Appalachian stream, and that is not in dispute. It is a 
matter of fact.
    We have heard a lot of talk about how terrible and 
destructive this new proposed Obama Administration rule would 
be. There was talk about how it would be worse for the 
environment. Do the witnesses agree that the new Obama 
Administration rule would be worse for the environment than the 
Bush rule? That was your testimony, right?
    Mr. Lambert. No, sir, that wasn't my testimony. My 
testimony was we don't know because we haven't seen, we haven't 
been able to comment.
    Mr. Huffman. Well, we did have testimony that the Obama 
Administration rule would make it harder to mitigate and to 
restore the environment. Anybody want to change that testimony, 
because that is what was said a few moments ago.
    Mr. Jones. No, sir. My testimony was that we wouldn't have 
the opportunities to do the stream construction because we 
wouldn't have the opportunities to----
    Mr. Huffman. You were asked which rule would be better for 
the environment. You were asked by my colleague from Ohio, 
wouldn't the new Obama Administration rule be worse for the 
environment than what you have now, and you agreed with that 
proposition. You were asked, others were asked about how it 
would help or hinder mitigation, environmental mitigation. The 
testimony was that it would hinder.
    There was also testimony about how this Obama 
Administration rule would affect all mining in America. That 
was your testimony, sir, correct, not just mountaintop removal 
mining?
    Mr. Clarke. That is correct.
    Mr. Huffman. How many of you have seen the proposed Obama 
Administration rule?
    Mr. Lambert. Only the chapters that relate to us and those 
chapters we were able to comment on. We haven't seen any 
additional work that has been done by the internal staff since 
the contractor was fired and the State cooperating agencies 
were no longer a part of reviewing.
    Mr. Huffman. And isn't it true that we don't have a 
proposed Obama Administration rule at this point?
    Mr. Lambert. We have the proposed rule that was leaked from 
OSM.
    Mr. Huffman. The proposed rule, it is a term of art. It has 
specific legal meaning. There is no proposed rule, correct?
    Mr. Lambert. Well, the term that OSM has been using, 
especially when the chapters were leaked to us, was this is the 
proposal that we plan to move forward with.
    Mr. Huffman. All right. So, you agree with me, proposed 
rule has specific meaning.
    Mr. Lambert. Yes, sir.
    Mr. Huffman. It is--it is----
    Mr. Lambert. Yes, sir.
    Mr. Huffman. It means something. You haven't seen the 
proposed rule, right?
    Mr. Lambert. We haven't seen the final proposed rule that 
is supposed to be----
    Mr. Huffman. And have any of the witnesses seen a proposed 
rule?
    Mr. Jones. No, sir, I have not seen a proposed rule.
    Mr. Huffman. Thank you. Because I think that is an 
important clarification before we do too much more of this 
ready, shoot, aim lawmaking, talking about a proposed rule that 
doesn't even exist.
    And then I want to use the last bit of my time to revisit 
this discussion about the Bush Administration rule being more 
environmentally protective than the Reagan Administration rule, 
because my understanding of the Reagan Administration rule, my 
reading of it, is that it sort of has a presumption of 
environmental harm, that the Stream Buffer Rule says that 
unless there is a specific finding that going within the buffer 
zone would not cause or contribute to the violation of water 
quality standards or would not adversely affect water quantity 
or other environmental resources, you can't do it. So this 
presumption can only be overcome by a very specific agency 
finding that there won't be these adverse impacts.
    By comparison, the 2008 Bush rule substitutes that for a 
rule that states you simply need to make a finding that 
avoiding these disturbances is not reasonably possible.
    Now, does anybody here believe that a finding of it is not 
reasonably possible to avoid impacts is more environmentally 
protective than a finding that there won't be any impacts? Is 
that seriously the testimony here?
    Mr. Clarke. Let me back up from what you are saying and 
examine SMCRA when it was passed. When it was passed, section 
515(b)(22) established performance standards for placement of 
fill in streams, intermittent and perennial streams. It 
couldn't have referred to anything else. So there were 
performance standards established in the law when Congress 
passed it to do what you are talking about, the 1983 rule 
prohibiting.
    The 1983 rule's requirements for a waiver cannot be met 
where fill is placed, but the act that it is attempting to 
implement provides performance standards for doing just that. 
So the 1983 rule, if it was interpreted to prohibit mining 
fills, would be inconsistent with the act passed by Congress 
under which it was promulgated. So the reading of the 1983 rule 
to prohibit fills has never been one that either OSM or the 
States have made. Instead, it has been applied to mining areas 
adjacent to streams, to stream crossings, et cetera.
    And in that regard, the 2008 rule added new protections by 
requiring minimization efforts and analysis of alternatives to 
filling streams that did not exist under the previous rule.
    Mr. Huffman. I am out of time, but I would just say, with 
respect to that, that there was a 1999 district court ruling 
that disagreed with your proposition there and that OSM, EPA, 
and the Army Corps of Engineers all concurred with that ruling, 
so we have a bit of a disagreement on that.
    And I am out of time.
    Mr. Lamborn. OK.
    Representative Lummis.
    Mrs. Lummis. Thank you, Mr. Chairman.
    I would like to ask Mr. Jones, have you ever been to the 
Powder River Basin?
    Mr. Jones. Yes, ma'am, I have been there on----
    Mrs. Lummis. Is that what it looks like?
    Mr. Jones. Yes.
    Mrs. Lummis. Is that stagecraft? That is what I want to 
know. Is that stagecraft, or does that actually exist?
    Mr. Jones. That is the way it looks in the Powder River 
Basin where I was in Wyoming, yes.
    Mrs. Lummis. May I ask the other slide be put up.
    Now, is that stagecraft, or does that stream really exist?
    Mr. Jones. That stream exists. In fact, we put together, we 
were contacted by an environmental, I can't, I don't even know 
how you describe it. It is a guy who goes around the country 
and finds these neat little things that have been done 
environmentally, and he contacted us and came out and did a 
little 20-minute video of this site and in comparison to a 
natural stream that is nearby, and----
    Mrs. Lummis. I would like to ask--thank you. I would like 
to ask the gentleman from Virginia and West Virginia, are these 
types of scenes in existence, or is this stagecraft? Is this a 
limited Disneyland-like staged example of reclamation?
    Mr. Lambert. As Mr. Jones stated, that was the first 
natural stream channel reconstruction in Virginia that was 
permitted through our agency. Today, we have several streams 
that have been restored that look similar to that stream.
    Mrs. Lummis. May I ask the other witness, and I am sorry, 
my eyesight has gone to heck. I am going to have a little LASIK 
surgery over the August recess, but I can't even see your 
nameplate anymore.
    Mr. Clarke. Tom Clarke.
    Mrs. Lummis. That is what happens when you spend too many 
years in Congress.
    Mr. Clarke. You are reading too much.
    I am Tom Clarke from West Virginia. We have streams that 
look like that, that have been mined and restored also.
    Mrs. Lummis. OK. Are there streams in areas that are 
disseminated, as the Ranking Member has said? Are there places 
that are just ugly and disseminated and destroyed, honestly?
    Mr. Clarke. Generally, not in the post-reclamation state.
    Mrs. Lummis. Well, but are there places that have never, in 
your State, that have never been reclaimed?
    Mr. Clarke. There are still some areas that were mined 
prior to 1977 that have not been reclaimed by the Abandoned 
Mine Lands Program.
    Mrs. Lummis. OK. So----
    Mr. Clarke. The areas that are actively mined since are 
subject to title V of SMCRA, which is what this rule would be 
promulgated pursuant to.
    Mrs. Lummis. OK. So SMCRA originally envisioned that those 
areas that were blighted or improperly reclaimed or not 
reclaimed prior to 1977, when SMCRA passed, would be reclaimed 
using funding that was implemented through 5 cents per ton, as 
I recall----
    Mr. Clarke. That is correct.
    Mrs. Lummis [continuing]. On coal in this county, and have 
those moneys since 1977 been used to reclaim pre-SMCRA blighted 
and abandoned coal mines?
    Mr. Clarke. Yes, ma'am, they have. We have been working on 
that continuously.
    Mrs. Lummis. How far along are you?
    Mr. Clarke. We have a separate office in our department 
that runs the title IV program. I could give you a better 
assessment if I were to go back and consult with those people.
    Mrs. Lummis. Would I be able to, if I visited your State, 
and you took me to a mine that was done pre-1977 versus post-
1977, do you think I might be able to tell the difference?
    Mr. Clarke. For the pre-1977 mines, the ones that haven't 
been reclaimed, but basically reclaim themselves through 
volunteer vegetation----
    Mrs. Lummis. But is it, what about the streambeds, though? 
I mean, I am concerned because the gentleman says that these 
streams don't exist anymore, and there is blight, and I mean, I 
have driven through States in the East that have mountaintops 
that have just been buzz cut, and they really do look bad. What 
are we doing? My point is, what are we doing to fix that?
    Mr. Clarke. Well, let me say that a very small percentage 
of the mining operations in our State have received what is 
called an AOC variance. An AOC variance, a variance from the 
requirement of the law to restore approximate original contour 
is granted where there is a commercial development, a 
residential development. We have had them for roads, road 
construction, things of that nature where there is an 
improvement of the land.
    Where there is no improvement of the land, there is no AOC 
variance, they have to restore the approximate original contour 
of the land. There has been the Appalachian regional 
reforestation initiative, which has been targeted growing 
hardwood forests comparable to what existed on the land before.
    Mrs. Lummis. So, would you deny that the gentleman was 
correct, that once upon a time in this country, mining was not 
properly reclaimed?
    Mr. Clarke. That is correct.
    Mrs. Lummis. How long has it been since that has been the 
case, since we are not doing good mine reclamation?
    Mr. Clarke. We changed that in 1977 with the adoption of 
SMCRA.
    Mrs. Lummis. I thank the gentleman.
    I yield back.
    Mr. Lamborn. Thank you.
    Representative Cramer.
    Mr. Cramer. Thank you, Mr. Chairman, Ranking Member.
    And I thank the panelists. I apologize. I haven't been here 
much this morning, but I have been monitoring it very closely. 
And I had to run up here when I saw that pretty picture of 
North Dakota disguised as Wyoming. It looks very much like 
about 100,000 acres of my primitive land in North Dakota.
    And I just have to say that watching this process for the 
last 8 years, as a coal mining and reclamation regulator in 
North Dakota, now as a Member of Congress, I think in many 
respects we debate the rule or the proposed rule or the perhaps 
not proposed rule as though the intention is really to have a 
certain rule. As we know, with this Administration, no rule is 
certain until it meets their demands, and frankly, in the 
absence of that, uncertainty is just as good.
    And therein, Mr. Chairman, I think is the problem, that the 
uncertainty that is created by leaked proposed rules has the 
same impact as the worst-case scenario that they aspire to. And 
I think that is why it is so important for this Committee and 
others to have these oversight hearings to bring people from 
the States in to discuss the job killing of all of this.
    And so I applaud all of you for being here.
    Let's not forget that while there may not be a proposed 
rule in front of anybody yet, whether there ever will be or 
not, I don't know, but there is a goal that has been stated. It 
is called skyrocketing electricity prices and bankrupt coal 
companies. That has been a stated goal. And so I am very proud, 
when I look at these pictures, I see lots of similarities to 
reclaimed land in North Dakota. And frankly, in North Dakota, 
we passed our reclamation laws in 1975, pre-SMCRA, to protect 
our streams.
    And one of the things that we found the most offensive is 
that the one size fits all. It just doesn't work and it holds 
up the progress, the proud progress that we have made in 
protecting our own environment and our own landscape. And I 
often say to people, one of my favorite things when people 
visit my State is to take them to a power plant at the mine 
mouth, go on the roof and then challenge them to point out 
reclaimed land and compare it to undisturbed land, point out 
the two for me, if you can, and no one has ever been able to 
tell the difference. And then we go out and walk the prairie 
and we find the streams, and oh, the beautiful fishing holes 
that actually weren't there, God didn't even put them there, 
they were actually created to enhance the environmental 
opportunities and recreational opportunities.
    And one of the things I am so proud of is the relationship 
between our coal companies, our regulators, and our game and 
fish officials, and our State park officials to not just bring 
the land back to pre-mining levels but to actually improve it, 
make it more productive for the farmer, more productive for the 
conservationists and tell a great story. And that is lost, I 
think, when we have to all sit around and wonder what the 
Federal Government is going to impose upon us when we are doing 
it so well at the State level.
    So, Mr. Chairman, thank you for not only this hearing but 
thank you for the bill and, to my colleague, Mr. Johnson, for 
introducing this bill.
    And I appreciate you all being here today to help us better 
understand it.
    I yield back.
    Mr. Lamborn. OK. That concludes the witness section of our 
testimony and our hearing today.
    Thank you all for being here. Thank you for putting up with 
us as we went back and forth to the House Floor. Members of the 
Committee may have additional questions for the record, and I 
would ask that you respond to those in writing.
    Finally, I ask unanimous consent to enter into the record 
comments submitted for this hearing from the Interstate Mining 
Compact Commission and from the Office of Surface Mining 
Reclamation and Enforcement.
    Hearing no objection, so ordered.
    [The information follows:]
  Prepared Statement of the Office of Surface Mining Reclamation and 
              Enforcement, U.S. Department of the Interior
h.r. 2824--preventing government waste and protecting coal mining jobs 
                               in america
    Mr. Chairman and members of the Subcommittee, thank you for the 
opportunity to provide this statement for the record regarding H.R. 
2824, which would direct State surface coal mining regulatory agencies 
to implement the Office of Surface Mining Reclamation and Enforcement's 
(OSM) 2008 Stream Buffer Zone Rule (2008 SBZ Rule). OSM opposes H.R. 
2824; its enactment would force States to spend limited resources to 
implement an outdated rule with significant defects. OSM would also 
like to take this opportunity to provide the Subcommittee with an 
update on the 2008 SBZ Rule litigation and the development of OSM's 
Stream Protection Rule.
    Congress gave OSM its regulatory authority and responsibilities in 
1977, when it passed the Surface Mining Control and Reclamation Act 
(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, OSM is responsible for ensuring 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, OSM is responsible for 
establishing and administering an Abandoned Mine Land program to 
address hazards to people and the environment that were created during 
more than 200 years of inadequately regulated coal mining that occurred 
before SMCRA's enactment.
    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 compatible goals. 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, within an 
improved safety and environmental regulatory framework. Similarly, 
onshore oil production from Federal lands is at its highest level in 
over a decade.
    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. 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.
    Although OSM is not involved in coal leasing, which is conducted by 
the Bureau of Land Management for Federal lands, the Administration is 
also making more coal available, with the number of producing acres 
rising 4 percent from fiscal year 2009 to fiscal year 2012. In fact, in 
fiscal year 2012, the Bureau of Land Management leased more Federal 
coal than at any other time since fiscal year 2003.
    Under SMCRA, most coal-producing States have primary 
responsibility, also known as ``primacy'', to protect people and the 
environment from the adverse effects of coal mining. States with 
primacy have demonstrated that their State regulatory programs satisfy 
the minimum statutory and regulatory Federal standards established in 
SMCRA and OSM's regulations. OSM provides assistance to, and oversight 
of, primacy States to help ensure proper regulation of coal mining and 
the protection of people and the environment. We also continue to 
ensure the reclamation of high-priority abandoned mine sites, and are 
reducing the number of remaining dangerous abandoned mine sites 
nationwide.
    In December 2008, OSM published a final rule that modified the 
circumstances under which mining can occur in or near streams. The 2008 
SBZ Rule has been challenged by 10 organizations in 2 separate 
complaints filed in Federal District Court for alleged legal 
deficiencies. The Department of the Interior recognized error in the 
2008 SBZ rulemaking process. In a motion filed with the Court in one of 
the cases on July 17, 2013, the Government admitted error in one of the 
pending legal challenges to the 2008 SBZ Rule. That error is believed 
to be a flaw that could result in invalidation of the 2008 SBZ Rule. In 
that case, the Government has asked that the 2008 SBZ Rule be vacated.
    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 a 1983 rule, which preceded the 2008 rule. Those advances were not 
addressed in the 2008 SBZ Rule. The 2008 SBZ Rule, now almost 5 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. As we 
proceed with development of the Stream Protection Rule, we are 
combining on-the-ground experience with peer-reviewed scientific 
literature to modernize our rules. We will use the best available 
technology and science to improve mining practices in order to minimize 
and mitigate environmental damage from coal mining. Our proposed 
revisions will provide solid benchmarks for companies to meet, and will 
be based on the latest accepted scientific methods. Clear and uniform 
standards will provide greater predictability and certainty to the 
mining industry, and can better protect affected communities.
    A revised rule that more effectively incorporates modem science 
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 economic 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.
    OSM will consider the extensive public and agency comments it has 
received to date on the Stream Protection Rule, and on the comments it 
will receive when OSM publishes a proposed 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 
environmental impact statement (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 agency 
decisions regarding what should be included in the proposed rule. OSM 
plans to publish a proposed rule and associated Draft EIS in 2014.
    As a result of our extensive outreach efforts, we have already 
received significant 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. Consistent with SMCRA, the 
National Environmental Policy Act, the Administrative Procedure Act, 
and other applicable laws, we will ask interested stakeholders--
Congress, State agencies, industry, environmental organizations, and 
members of the public--to comment on the proposed rule and Draft EIS 
once those documents have been published. We look forward to additional 
public review and comment on the proposed rule and Draft EIS after they 
are published.
    For the reasons stated we oppose H.R. 2824. We believe the 
development of the Stream Protection Rulemaking is the approach that 
will best result in regulatory improvements that will more completely 
implement the law, make use of the best available science and 
technology, provide for a more sustainable coal industry and its jobs, 
better protect streams nationwide, and provide greater clarity and 
certainty to the mining industry and affected communities.
    OSM looks forward to working with you to ensure that we protect the 
Nation's land and water while meeting its energy needs.
    Mr. Lamborn. If there is no further business, without 
objection, the Committee stands adjourned.
    [Whereupon, at 11:40 a.m., the Subcommittee was adjourned.]

                                 
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