[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
STATE PERSPECTIVES ON THE STATUS OF COOPERATING AGENCIES FOR THE
OFFICE OF SURFACE MINING'S STREAM PROTECTION RULE
=======================================================================
OVERSIGHT HEARING
before the
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
Wednesday, May 20, 2015
__________
Serial No. 114-10
__________
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COMMITTEE ON NATURAL RESOURCES
ROB BISHOP, UT, Chairman
RAUL M. GRIJALVA, AZ, Ranking Democratic Member
Don Young, AK Grace F. Napolitano, CA
Louie Gohmert, TX Madeleine Z. Bordallo, GU
Doug Lamborn, CO Jim Costa, CA
Robert J. Wittman, VA Gregorio Kilili Camacho Sablan,
John Fleming, LA CNMI
Tom McClintock, CA Niki Tsongas, MA
Glenn Thompson, PA Pedro R. Pierluisi, PR
Cynthia M. Lummis, WY Jared Huffman, CA
Dan Benishek, MI Raul Ruiz, CA
Jeff Duncan, SC Alan S. Lowenthal, CA
Paul A. Gosar, AZ Matt Cartwright, PA
Raul R. Labrador, ID Donald S. Beyer, Jr., VA
Doug LaMalfa, CA Norma J. Torres, CA
Jeff Denham, CA Debbie Dingell, MI
Paul Cook, CA Ruben Gallego, AZ
Bruce Westerman, AR Lois Capps, CA
Garret Graves, LA Jared Polis, CO
Dan Newhouse, WA Vacancy
Ryan K. Zinke, MT
Jody B. Hice, GA
Aumua Amata Coleman Radewagen, AS
Thomas MacArthur, NJ
Alexander X. Mooney, WV
Cresent Hardy, NV
Vacancy
Jason Knox, Chief of Staff
Lisa Pittman, Chief Counsel
David Watkins, Democratic Staff Director
Sarah Parker, Democratic Deputy Chief Counsel
------
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
LOUIE GOHMERT, TX, Chairman
DEBBIE DINGELL, MI, Ranking Democratic Member
Doug Lamborn, CO Jared Huffman, CA
Raul R. Labrador, ID Ruben Gallego, AZ
Bruce Westerman, AR Jared Polis, CO
Jody B. Hice, GA Vacancy
Aumua Amata Coleman Radewagen, AS Vacancy
Alexander X. Mooney, WV Raul M. Grijalva, AZ, ex officio
Vacancy
Rob Bishop, UT, ex officio
------
CONTENTS
----------
Page
Hearing held on Wednesday, May 20, 2015.......................... 1
Statement of Members:
Dingell, Hon. Debbie, a Representative in Congress from the
State of Michigan.......................................... 4
Prepared statement of.................................... 5
Gohmert, Hon. Louie, a Representative in Congress from the
State of Texas............................................. 1
Prepared statement of.................................... 3
Statement of Witnesses:
Baker, Gregory, Reclamation Program Manager, Virginia
Department of Mines, Minerals and Energy, Big Stone Gap,
Virginia................................................... 18
Prepared statement of.................................... 20
Hunter, Russell M., Counsel, Division of Mining and
Reclamation, West Virginia Department of Environmental
Protection, Charleston, West Virginia...................... 26
Prepared statement of.................................... 27
Johnson, Randall, Ph.D., Director, Alabama Surface Mining
Commission, Jasper, Alabama................................ 6
Prepared statement of.................................... 8
White, Dustin, Community Organizer, Ohio Valley Environmental
Coalition, Huntington, West Virginia....................... 23
Prepared statement of.................................... 24
Additional Materials Submitted for the Record:
List of documents submitted for the record retained in the
Committee's official files................................. 56
Mortality Disparities in Appalachia: Reassessment of Major
Risk Factors. Jonathon Borak, MD, Catherine Salipante-
Zaidel, MEM, Martin D. Slade, MPH, and Cheryl A. Fields,
MPH. Journal of Occupational and Environmental Medicine
(February 2012)............................................ 46
OVERSIGHT HEARING ON STATE PERSPECTIVES ON THE STATUS OF COOPERATING
AGENCIES FOR THE OFFICE OF SURFACE MINING'S STREAM PROTECTION RULE
----------
Wednesday, May 20, 2015
U.S. House of Representatives
Subcommittee on Oversight and Investigations
Committee on Natural Resources
Washington, DC
----------
The subcommittee met, pursuant to notice, at 2:15 p.m., in
room 1334, Longworth House Office Building, Hon. Louie Gohmert
[Chairman of the Subcommittee] presiding.
Present: Representatives Gohmert, Lamborn, Labrador,
Westerman, Radewagen, Mooney; and Dingell.
Mr. Gohmert. The Subcommittee on Oversight and
Investigations will come to order.
The subcommittee is meeting today to hear the testimony on
``State Perspectives on the Status of Cooperating Agencies for
the Office of Surface Mining's Stream Protection Rule.'' Under
Committee Rule 4(f), any oral opening statements at hearings
are limited to the Chairman and Ranking Member and the Vice
Chair and a designee of the Ranking Member. This will allow us
to hear from our witnesses sooner and help Members to keep to
their schedules.
Before I ask unanimous consent, all other Members' opening
statements will be made part of the hearing record if they are
submitted to the Subcommittee Clerk by 5:00 p.m. today. Hearing
no objection, it is so ordered.
At this time I would like ask everyone in the hearing room
to please silence your cell phones. This will keep distractions
to a minimum for our Members, witnesses, and attendees, and
ensure that we can get as much information as possible from our
witnesses.
At this time I will now recognize myself for an opening
statement.
STATEMENT OF THE HON. LOUIE GOHMERT, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Mr. Gohmert. This Subcommittee on Oversight and
Investigations is meeting today to hear directly from states
impacted by what appears to be another harmful Federal
regulation made by yet another Federal agency that is not
following the law.
Since 2009, the Office of Surface Mining Reclamation and
Enforcement, or OSM, has been trying to issue a new rule to
regulate mountaintop mining. I say trying because it is now 6
years and millions of dollars later, and OSM still does not
even have a proposed rule to show for the millions of dollars.
In the course of trying to make this new rule, the Stream
Protection Rule, the Department of the Interior and the OSM
have run roughshod over the very states that they were supposed
to be working with, according to the law the Department and OSM
appear to have been violating.
The states that are represented here today entered into
agreements with OSM that recognized them, and I quote this term
because it is in the law, as ``cooperating agencies'' under
NEPA. ``Cooperating agencies'' under NEPA are entitled to
participate, the language says, throughout the environmental
review process.
But instead of including the states, OSM has systemically
excluded them from the process. In fact, Secretary Jewell
herself recently testified before Congress that the states
would have a chance to comment on the proposed rule after it is
published, and then her words were, ``just like everyone
else.'' Let's see the video of that, and maybe hear it, too.
[Video played.]
Mr. Gohmert. All right. So that is deeply troubling, that
the Secretary herself thinks states should be heard from after
they come up with a rule, and that is not what the law says.
They are supposed to be heard from throughout the process.
States are legally entitled to participate in the NEPA
process throughout this particular process. They have local
expertise and practical experience with mining operations in
their states that can and should actually form the basis of
OSM's rulemaking process, particularly since they normally have
more experience in these matters than those creating the rules
from their cubicles. This is part of the reason that the
cooperating agency process was created and even exists in the
first place.
This unfortunately seems to give substance to the view
across much of the country that Washington arrogance is
exceeded only by its ignorance of what it regulates, and that,
once again, more regulations are promulgated that damage states
without actually taking the states' expertise and damage into
account.
States are understandably frustrated after years of trying
to work with OSM and having OSM ignore their concerns. This
Natural Resources Subcommittee on Oversight is likewise quite
frustrated at the improprieties of the Interior Department's
responses to this committee's legitimate request.
The subcommittee sent a letter to Director Pizarchik back
on April 2 requesting documents and information on this topic,
including copies of the memoranda of understanding that OSM
signed with the states. Coincidentally, OSM produced copies of
those MOUs last night--last night--over a month after the
documents were due.
To be clear, the majority of the subcommittee's requests
remain unfulfilled, and we will continue to seek the
outstanding documents from OSM. We are also hopefully
approaching a time, finally, once again, when an agency or
department that inappropriately responds or is not properly
responsive to congressional oversight requests loses a
significant amount of funding in the next year.
This oversight hearing is entitled, ``State Perspectives on
the Status of Cooperating Agencies for the Office of Service
Mining's Stream Protection Rule.'' As I began looking into
these issues recently and then began preparing for this
hearing, I learned a great deal of information about this issue
that we simply had not dealt with in my own district.
That is why I am particularly grateful for our witnesses
before us here today and their expertise, and look forward to
hearing about their experiences as cooperating agencies.
[The prepared statement of Mr. Gohmert follows:]
Prepared Statement of the Hon. Louie Gohmert, Chairman, Subcommittee on
Oversight and Investigations
The Subcommittee on Oversight and Investigations is meeting today
to hear directly from states impacted by what appears to be another
harmful Federal regulation made by yet another Federal agency that is
not following the law.
Since 2009, the Office of Surface Mining Reclamation and
Enforcement (``OSM'') has been trying to issue a new rule to regulate
mountain-top mining. I say ``trying,'' because it's now 6 years and
millions of dollars later and OSM still doesn't even have a proposed
rule to show for the millions of dollars.
In the course of trying to make this new rule--the Stream
Protection Rule--the Department of the Interior and OSM have run
roughshod over the very states that they were supposed to be working
with, according to the law the Department and OSM appear to have been
violating.
The states that are represented here today entered into agreements
with OSM that recognized them as ``cooperating agencies'' under NEPA.
``Cooperating agencies'' are entitled to participate throughout the
environmental review process.
But instead of including the states, OSM has systematically
excluded them from the process.
In fact, Secretary Jewell herself recently testified before
Congress that the states would have a chance to comment on the proposed
rule after it's published, ``just like everyone else.'' Let's see the
video of that.
The problem is that these states aren't ``just like everyone
else.'' They are legally entitled to participate in this NEPA process
throughout the process.
They have local expertise and practical experience with mining
operations in their states that can and should actually form the basis
of OSM's rulemaking process, particularly since they normally have more
experience in these matters than those creating the rules in their
cubicles. This is part of the reason that the cooperating agency
process was created and even exists in the first place.
This unfortunately seems to give substance to the view across much
of the country that Washington arrogance is exceeded only by its
ignorance of what it regulates, and that, once again, more regulations
are promulgated that damage states without actually taking the states'
expertise and damage done into account.
In any event, today, now that we have heard the statement of
Secretary Jewell by video, we will provide an opportunity for the
states to be heard. We will also welcome compliant responses to our
prior requests from the Department of Interior soon after the hearing
today. If the Department wishes to respond to comments made by
representatives of the three states represented here today, they are
welcome to do so when they supply the answers we requested in April.
This oversight hearing is entitled ``State Perspectives on the
Status of Cooperating Agencies for the Office of Surface Mining's
Stream Protection Rule.'' As I began looking into these issues
recently, and then began preparing for this hearing, I learned a great
deal of information about this issue that we simply had not dealt with
in my own district. That is also why I am particularly grateful for our
witnesses before us here today and their expertise. I look forward to
hearing about their experiences as ``cooperating agencies.''
The states are understandably frustrated after years of trying to
work with OSM and having OSM ignore their concerns.
This Natural Resources' Subcommittee on Oversight is likewise quite
frustrated at the improprieties of the Interior Department's responses
to this committee's legitimate requests.
This subcommittee sent a letter to Director Pizarchik on April 2
requesting documents and information on this topic, including copies of
the MOUs that OSM signed with the states. Coincidentally, OSM produced
copies of the MOUs only last night--LAST NIGHT--over a month after the
documents were due. To be clear, the majority of the subcommittee's
requests REMAIN unfulfilled, and we will continue to seek the
outstanding documents from OSM.
We are also hopefully approaching a time finally, once again, when
an agency or department that inappropriately responds or is not
properly responsive to congressional oversight requests loses a
significant amount of funding in the next year.
Some of us believe very strongly that if a bureaucracy is not
adequately responding to congressional oversight of the people's funds,
then those funds should stop being sent by Congress to that
nonresponsive bureaucracy. I believe we are quickly reapproaching that
day, and I, for one, look forward to it.
______
With that, I would recognize the Ranking Member, Mrs.
Dingell.
STATEMENT OF THE HON. DEBBIE DINGELL, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MICHIGAN
Mrs. Dingell. Thank you, Mr. Chairman. And thank you to all
the witnesses for being here today. It is always good to be in
a hearing with you.
This hearing is about the Stream Buffer Protection Rule. An
earlier version of the rule was promulgated by the Bush
administration on its way out the door in 2008, which was
vacated by the D.C. District Court. They found that the
administration's determination that the weakened rule would
have no impact on threatened or endangered species was not a
rational conclusion.
The new version, as we saw the Secretary talk about, is now
being reviewed by the Office of Management and Budget. The
Administration is actively looking at this rule, and I think we
are all looking forward to reviewing it soon; but today we are
talking about a rule that is yet to be promulgated.
As a new Member of Congress, I am learning something new
every day. Last night, as I was studying at my normal 2:00
a.m., I learned that the Majority has been investigating the
Stream Buffer Protection Rule for nearly 4 years. It has
resulted in two subpoenas, production of 13,500 pages of
documents, 25 hours of audio recordings, a Majority staff
report, three oversight hearings, and a legislative hearing on
a bill to weaken protections for communities coping with
mountaintop mining. This is the fourth oversight hearing being
held on this issue; but for several of us here, it is the
first, so we are all learning.
We will hear concerns today about the process of developing
the rule and the environmental impact statement attached to it.
I want to express my concern that we cannot get to the bottom
of these complaints if we do not hear from both sides of the
story.
The Office of Surface Mining Reclamation and Enforcement,
or OSM, which is the primary agency we will hear about today,
was not invited to testify, to give their side of the story, or
answer any questions. I hope that future hearings will allow
for a fuller exploration of the issues with them included.
But we can talk about procedure today. One witness, Mr.
White, will talk about the failure of state regulators to
protect the health of people in his community. That matters.
The West Virginia Department of Environmental Quality is the
subject of a Section 733 petition under SMCRA that was filed by
a broad coalition of organizations. These petitions permit OSM
to intervene if a state regulator is not living up to its
obligations.
OSM found five separate complaints worthy of investigation
in response to this petition. And for me personally, that
points to what this hearing is really about. It is about
people, families, and the effect that mountaintop removal
mining has on their lives.
Research has proven that it affects the health of
communities located near mountaintop removal mines. Many
cancers, including: lung, colon, kidney, bladder, and leukemia,
have all been linked to mountaintop removal mines. Birth defect
rates were 42 percent higher in affected counties between 2000
and 2003 compared to non-mining communities. Mountaintop
removal mines were also linked to increased rates of
depression.
The very least we should be able to do for the hardworking
people in these communities is to give them the protections to
which they are entitled. I look forward to reading OSM's
results of their investigation prompted by the community's
petition. But we also owe it to them to issue a strong Stream
Buffer Protection Rule and to give that rule a fair evaluation
when it is released.
Thank you, Mr. Chairman, and I yield back the balance of my
time.
[The prepared statement of Mrs. Dingell follows:]
Prepared Statement of the Hon. Debbie Dingell, Ranking Member,
Subcommittee on Oversight and Investigations
Mr. Chairman, thank you for the recognition, and thank you to all
of our witnesses for being here today.
This hearing is about the Stream Buffer Protection Rule. An earlier
version of the rule promulgated by the Bush administration on its way
out the door in 2008 was vacated by the D.C. District Court. They found
that the administration's determination that the weakened rule would
have no impact on threatened or endangered species was ``not a rational
conclusion.''
A new version of the rule is now being reviewed by the Office of
Management Budget. The Administration is actively looking at this rule
and we are all looking forward to reviewing it soon.
As a new Member of Congress, I am learning something new every day.
And I recently learned that the majority has been investigating the
Stream Buffer Protection Rule for nearly 4 years. It has resulted in
two subpoenas, production of over 13,500 pages of documents, 25 hours
of audio recordings, a majority staff report, three oversight hearings,
and a legislative hearing on a bill to weaken protections for
communities coping with mountaintop mining. This is the fourth
oversight hearing being held on this issue.
We will hear concerns today about the process of developing the
rule and the Environmental Impact Statement attached to it. But we
cannot get to the bottom of these complaints if we don't hear both
sides of the story. The Office of Surface Mining Reclamation and
Enforcement, or OSM, which is the primary agency we will hear about
today, was not invited to testify to give their side of the story or
answer any questions. I hope that future hearings will allow for a
fuller exploration of the issues.
We can certainly talk about procedure today. One witness, Dustin
White, will talk about the failure of state regulators to protect the
health of people in his community. The West Virginia Department of
Environmental Quality is the subject of a section 733 petition under
SMCRA, that was filed by a broad coalition of organizations. These
petitions permit OSM to intervene if a state regulator is not living up
to its obligations. OSM found five separate complaints worthy of
investigation in response to this petition.
And for me personally, that points to what this hearing is really
about. It's about people, families, and the effect that mountaintop
removal mining has on their lives.
Research has proven that it affects the health of communities
located near mountaintop removal mines. Many cancers including, lung,
colon, kidney, bladder cancers, and leukemia, have all been linked to
mountaintop removal mines. Birth defect rates were 42 percent higher in
affected counties between 2000 and 2003 compared to non-mining
communities. Mountaintop removal mines were also linked to increased
rates of depression.
The very least we should be able to do for the hardworking people
in these communities is to give them the protections to which they are
entitled. I look forward to reading OSM's results of their
investigation prompted by the community's petition. But we also owe it
to them to issue a strong Stream Buffer Protection Rule and to give
that rule a fair evaluation when it is released.
Thank you, Mr. Chairman, and I yield back the balance of my time.
______
Mr. Gohmert. Thank you. I appreciate the statement.
At this time we will now introduce the witnesses. Our first
witness today is Dr. Randall Johnson. He is the director of the
Alabama Surface Mining Commission. We also have Mr. Gregory
Baker, who is the Reclamation Program Manager at the Virginia
Department of Mines, Minerals and Energy. Next is Mr. Dustin
White, a community organizer with the Ohio Valley Environmental
Coalition.
I am going to hold up introducing our fourth witness until
Mr. Mooney gets here, and that should be before Mr. Hunter
speaks.
With that, let me remind the witnesses that under our
Committee Rules, oral statements are limited to 5 minutes. You
have a time clock there. You get a yellow light with a minute
to go. When your time expires, that is when the statement needs
to stop, even if you are not finished.
Of course, your full written statements are part of the
record. So, if you would care to deviate, then the oral
testimony will be in addition to what we already will have in
the record from your written statement.
With that, the Chair now recognizes our first witness, Dr.
Johnson, to testify for 5 minutes.
STATEMENT OF RANDALL JOHNSON, Ph.D., DIRECTOR, ALABAMA SURFACE
MINING COMMISSION, JASPER, ALABAMA
Dr. Johnson. Mr. Chairman, good afternoon. My name is
Randall Johnson. I am Director of the Alabama Surface Mining
Commission. My agency is the delegated agency for regulation of
coal mining in the state of Alabama and under the Surface
Mining Control and Reclamation Act of 1977. I have been
employed with the agency for more than 34 years, and I have
served as its Director for 29 years.
Alabama is one of nine states that signed Memoranda of
Understanding with the Office of Surface Mining, or OSM, in
2010 to serve as cooperating agencies related to the
preparation of an environmental impact statement that was to
support the revised Stream Protection Rule.
Following a very brief period of engagement in late 2010
and early 2011, we have essentially been shut out of that
process as OSM moved forward with the EIS. OSM shared three
chapters of the draft EIS with us between September of 2010 and
2011. In each case, comment periods were extremely short, and
while reconciliation meetings were supposed to be held on each
of the chapters based on our comments, only one such hearing
was held on one chapter.
Following the receipt of state comments on the third
chapter that was shared with us in January of 2011, we once
again requested additional time for review. Despite our request
for more time, we were told that the deadlines were going to be
met and they were firm, and the schedule for the publication of
the EIS in 2011 would be met.
As of today, the proposed rule and the draft EIS have still
not been published. Since that time, we understand that OSM has
significantly revised the entire draft EIS, and that several
new rule alternatives have been considered. We have seen none
of this.
We have sent three letters to OSM Director Joseph Pizarchik
expressing concerns with the EIS process and our role as
cooperators. The first was on November 23, 2010, shortly after
the second chapter was provided to us. We expressed concerns
about the quality, completeness, accuracy, constrained time
frames for comments, the lack of a reconciliation process, and
the need for additional comment on revised chapters.
Two years after that last engagement with cooperating
states, a second letter was sent to the Director on July 3,
2013. We requested an opportunity at that time to re-engage
with the EIS process. The Director never responded to this
letter, and no further opportunities have been provided for
participation. In fact, OSM has on several occasions verbally
indicated that it does not envision re-engaging the states on
the draft EIS.
And yet a third letter was submitted to the Director on
February 23 of this year. We concluded that OSM had not
provided for meaningful participation by the cooperating
states. Four states, at the time of my writing this testimony,
including Alabama, have formally withdrawn as cooperating
agency states and requested termination of our MOUs. OSM has
yet to respond or acknowledge my letter of withdrawal dated
February 10 of this year.
The role of cooperating agencies in the National
Environmental Policy Act, or NEPA, process is well-documented
in Federal regulations as well as Council on Environmental
Quality documents and memoranda. The Federal courts, too, have
recognized the importance of providing state agencies an
opportunity for meaningful participation in the NEPA process.
It is clear that NEPA recognizes that Federal agencies are
not the sole repository of all wisdom and knowledge concerning
their areas of regulatory responsibility. As such, it mandates
that Federal agencies reach out to states and other
governmental agencies to solicit input in the EIS process. It
also anticipates that this process will provide for meaningful
participation.
It is unfortunate, from my perspective, that circumstances
have deteriorated to the point where my state and others felt
obliged to withdraw. Our inability to participate fully and
meaningfully from February 2011 to the present time casts
considerable doubt on whether OSM has fully complied with the
NEPA process in developing the EIS.
I thank you for the opportunity to present this testimony.
Copies of my more detailed written statement have been
provided, with exhibits. I also have additional copies of the
three letters that we sent to OSM for the record. And I will be
happy to answer any questions you may have.
[The prepared statement of Dr. Johnson follows:]
Prepared Statement of Dr. Randall C. Johnson, Director, Alabama Surface
Mining Commission
Good afternoon. My name is Dr. Randall Johnson and I am Director of
the Alabama Surface Mining Commission. My agency is responsible for the
regulation of coal mining operations within the state pursuant to our
approved regulatory program under the Surface Mining Control and
Reclamation Act of 1977 (SMCRA). I have been employed with the Surface
Mining Commission for more than 34 years and have served as its
Director for more than 29 years. I was directly involved in securing
primacy in 1982 for the state of Alabama under Title V of SMCRA. I co-
authored or authored all of Alabama's regulations promulgated, and some
of the legislation enacted by the state, during the last 34 years,
including those submitted for initial program approval. During my
tenure at the agency, there have been 20 Directors or Acting Directors
of the U.S. Department of Interior, Office of Surface Mining
Reclamation and Enforcement (OSMRE). I have dealt directly with all of
them except one. Our involvement in the state and Federal regulatory
process has always been proactive. Over the years, we have developed a
regulatory program in our state that is among the best in the country
and we take immense pride in that.
I and my colleagues appreciate the opportunity to appear before you
today to discuss a disturbing chapter in Federal-state relations under
SMCRA. Alabama is one of nine states that signed Memoranda of
Understanding (MOUs) with OSMRE to serve as a cooperating agency
related to the preparation of an environmental impact statement (EIS)
by OSMRE to accompany a rulemaking under SMCRA concerning stream
protection. The MOUs were developed pursuant to the National
Environmental Policy Act (NEPA) and the Council on Environmental
Quality's (CEQ) implementing regulations at 40 CFR 1501.6 and 1501.8,
as well as CEQ's January 30, 2002 Memorandum for the Heads of Federal
Agencies regarding cooperating agencies. Although we anticipated a
robust opportunity to work with OSMRE as cooperators in the development
of this critical EIS, following a brief period of engagement in late
2010 and early 2011, the cooperating states have essentially been shut
out of the process and been relegated to the sidelines as OSMRE moved
forward with the EIS.
Some historical perspective may be instructive. During the summer
of 2010, OSMRE Director Joseph G. Pizarchik offered the opportunity to
states to participate as cooperating agencies as part of the
development of an EIS to accompany a new rule on stream protection that
would replace the 2008 Stream Buffer Zone Rule. OSMRE committed to
replacing this rule as part of an interagency effort to address stream
protection as it relates to mountaintop mining operations in
Appalachia. (See the July 11, 2009 Memorandum of Understanding between
the U.S. Environmental Protection Agency, the Office of Surface Mining
and the U.S. Army Corps of Engineers). OSMRE also agreed to propose a
new rule on stream protection pursuant to a settlement agreement with
several environmental groups that had challenged the 2008 rule. The
settlement agreement was approved by a U.S. District Court in
Washington, DC on April 2, 2010. The Court vacated the 2008 rule and
OSMRE published a notice vacating the 2008 rule and reinstating the
previous version of the rule on December 22, 2014.
Ten states (UT, NM, KY, TX, MT, WY, WV, AL, IN and VA) originally
agreed to serve as cooperating agencies, with the state of Ohio
agreeing to participate as a state commenter in the process. MOUs were
negotiated with nine of these states and the first chapter of the draft
EIS (Chapter 2) was shared with the states for comment in September of
2010. Chapter 3 was shared with the states in October of 2010 and
Chapter 4 was shared with the states in January of 2011. In each case,
comment periods were exceedingly short and, while ``reconciliation
meetings'' were supposed to be held on each of the chapters, only one
such meeting was held. Following the receipt of state comments on
Chapter 4 in January of 2011, the remaining chapters of the draft EIS
were given to the states with only 8 days to review and comment.
Despite requests for more time, we were told that the deadlines were
firm and that the schedule for publication of the EIS in 2011 would be
met. As of today, the draft rule and draft EIS have still not been
published. Since that time, we understand that OSMRE has significantly
revised the entire draft EIS and that several new rule alternatives
have been considered. We have not seen these revisions.
The cooperating agency states have sent three letters to OSMRE
Director Joseph Pizarchik expressing their concerns with the EIS
process and their role as cooperators. The first, on November 23, 2010,
expressed concerns about the quality, completeness and accuracy of the
draft EIS; the constrained time frames for the submission of comments
on draft EIS chapters; the reconciliation process; and the need for
additional comment on revised chapters.
Over 2 years after the last engagement by OSMRE with the
cooperating states, the states sent a second letter to OSMRE Director
Pizarchik on July 3, 2013, requesting an opportunity to re-engage with
the EIS development process. We requested an opportunity to review
revised chapters of the draft EIS, and expanded time frames for
commenting on the chapters; an opportunity to review any attachments
and exhibits that are appended to the chapters; a meaningful, robust
reconciliation process; and a timetable for review of draft chapters.
OSMRE never responded to this letter, and no further opportunities have
been provided by OSMRE for participation by the cooperating agency
states. In fact, OSMRE has, on several occasions, verbally indicated
that it does not envision re-engaging with the states on the draft EIS
and, at most, would provide a briefing, coincident with release of the
draft EIS and proposed rule, regarding how the comments originally
submitted by the states were addressed in the final draft EIS.
The role of cooperating agencies in the NEPA process is well
documented in the Federal Regulations at 40 C.F.R. Sections 1501.6 and
1508.5 as well as in the Council on Environmental Quality Memorandum
for the Heads of Federal Agencies entitled ``Cooperating Agencies in
Implementing the Procedural Requirements of the National Environmental
Policy Act'' dated January 30, 2002. The Federal Courts, too, have
recognized the importance of providing state agencies the opportunity
for ``meaningful participation'' in the NEPA process. As an example, I
refer you to the U.S. District Court for the District of Wyoming in
International Snowmobile Manufacturers Association et al. v. Norton,
340 F. Supp. 2d 1249 (D.Wyo. 2004). In that ruling, the court states
``the purpose of having cooperating agencies is to emphasize agency
cooperation early in the NEPA process. 40 C.F.R. Sec. 1501.6 (2004).
Federal agencies are required to invite the participation of impacted
states and provide them with an opportunity for participation in
preparing the EIS. 40 C.F.R. Sec. 1501.7 (2004).'' Further, the Court
cites an earlier ruling in Wyoming v. USDA, 277 F. Supp. 2d 1197, 1219
(D. Wyo. 2003) that states, ``When a Federal agency is required to
invite the participation of other governmental entities and allocate
responsibilities to those governmental entities, that participation and
delegation of duty must be meaningful.''
Given this, the cooperating agency states concluded in yet a third
letter submitted to Director Pizarchik on February 23, 2015, that OSMRE
has not provided for meaningful participation by the cooperating agency
states in the preparation of the EIS and is unlikely to do so prior to
release of the draft EIS and proposed rule this spring. The cooperating
agency states were therefore left with a decision about whether and
when to withdraw from the process in order to protect their interests
and to craft an appropriate statement for inclusion in the draft EIS
regarding their participation and decision to withdraw. CEQ's
regulations provide ample reasons for a cooperating agency to end its
status as a cooperator, which include: the cooperating agency is unable
to identify significant issues, eliminate minor issues, identify issues
previously studied, or identify conflicts with the objectives of
regional, state and local land use plans, policies and controls in a
timely manner; is unable to assist in preparing portions of the review
and analysis and resolving significant environmental issues in a timely
manner; is unable to consistently participate in meetings or respond in
a timely fashion after adequate time for review of documents, issues
and analyses; is unable to accept the lead agency's decisionmaking
authority regarding the scope of the analysis, including the authority
to define the purpose and need for the proposed action or to develop
information/analyses of alternatives they favor or disfavor; or is
unable to provide data and rationale underlying the analyses or
assessment of alternatives.
While the cooperating agency states were, for the most part,
actually able and willing to do all of these things, OSMRE's
unwillingness to share revised and new draft chapters of the EIS with
the states, as well as background and supporting documents, has
precluded the states from accomplishing these tasks and hence has
undermined their status as cooperating agencies and the meaningfulness
of their participation. Consequently, since that time, four states,
including Alabama (See letter from Johnson to Pizarchik dated February
10, 2015), have formally withdrawn as cooperating agency states and
requested termination of their MOUs with OSMRE. I must also add that
OSMRE has yet to respond or acknowledge our letter of withdrawal.
It is clear the National Environmental Policy Act recognizes that
Federal agencies are not the sole repository of all wisdom and
knowledge concerning their areas of regulatory responsibility. As such,
NEPA mandates that the agencies reach out to states and other Federal
agencies to solicit input in the EIS process. It also anticipates that
the process will provide for meaningful participation. It is
unfortunate from my perspective that circumstances have deteriorated to
the point where my state and others felt obligated to withdraw from
this process given the importance of the EIS and the related rule for
our programs. I for one do not want my state's name used to validate
the EIS process since our input was limited to the extent that it was.
In the end, we will be the ones who must implement any new rule and it
was for this reason that our input and expertise were sought initially,
and willingly offered, I might add. Our inability to participate fully
and meaningfully from February 2011 to the present date casts
considerable doubt as to whether OSMRE has complied fully with the NEPA
process in developing the EIS.
Thank you for the opportunity to present this testimony. Copies of
my written statement and exhibits have been provided to you. I will be
happy to answer any questions you may have.
Attachments
*****
letters submitted as supplementary testimony by randall c. johnson
November 23, 2010
Hon. Joseph G. Pizarchik
Director
Office of Surface Mining, Reclamation and Enforcement
U.S. Department of the Interior
1951 Constitution Avenue, N.W.
Washington, DC 20540
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 soon-to-be-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 (at present, Chapters 2 and 3). Based
on our participation to date, we have several serious concerns that we
feel compelled to bring to your attention for resolution.
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 we 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, we 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.
We also have serious concerns regarding the constrained timeframes
under which we have been operating to provide comments on these flawed
documents. As we have stated from the outset, and as members of
Congress have also recently noted, the ability to provide meaningful
comments on OSM's draft documents is extremely difficult with only five
working days to review the material, some of which is fairly technical
in nature. In order to comply with these deadlines, we have had to
devote considerable staff time to the preparation of our comments,
generally to the exclusion of other pressing business such as permit
reviews. While we 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.
There is also the matter of completeness of the draft Chapters that
we have reviewed. In the case of both Chapters 2 and 3, there are
several attachments, exhibits and studies that were not provided to us
as part of that review. Some of these are critical to a full and
complete analysis of OSM's discussion in the chapters. OSM has
developed a SharePoint site that will supposedly include many of the
draft materials, but to date the site is either inoperable or
incomplete.
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. The first of
those reconciliations (which was focused on Chapter 2) occurred via
conference call on October 14. The call involved little in the way of
actual reconciliation but amounted to more of an update on progress
concerning the draft EIS. There was talk about another reconciliation
session, but to date this has not occurred. There were also several
agreements by OSM during the call to provide additional documents to
the states for their review, including a document indicating which
comments on Chapter 2 from cooperating agencies were accepted and
passed on to the contractor, as well as comments provided by OSM. OSM
also agreed to consider providing us a copy of a document indicating
those comments that were not accepted. To date, neither of these
documents has been provided to us. And even though a draft of Chapter 3
has now been distributed and comments have been provided to OSM, we are
still awaiting a reconciliation session on this chapter.\1\
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\1\ We also understand that OSM had planned to contact the states
to provide estimates of the additional time and resources that would be
required to review/process a permit under the proposed rule. This
information would be used by OSM to prepare at least one of the burden
analyses that are required by various executive orders as part of
federal rulemakings. We now understand that OSM plans to generate these
estimates on its own. We are somewhat mystified about how OSM intends
to accomplish this without direct state input and urge the agency to
reconsider the methodology under which they are currently operating.
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 these revised
---------------------------------------------------------------------------
Chapters be provided to us as soon as practicable.
We understand that OSM is considering further adjustments to the
time table for review of additional Chapters of the draft EIS. We are
hopeful that in doing so, the agency will incorporate additional time
for review by the cooperating agencies, especially given the size and
complexity of Chapter 4 and the full draft EIS. Pushing back the time
for the completion of these drafts by OSM without additional time being
provided for review by the cooperating agencies would be wholly
inappropriate. We request that you please provide us with these new
time tables as soon as possible so that we can begin our own internal
planning.
You should know that, as we continue our work with OSM on the
development of the draft EIS, some of us may find it necessary to
reconsider our continued participation as cooperating agencies pursuant
to the 30-day renegotiation/termination provision in our MOUs. Under
the NEPA guidance concerning the status of cooperating agencies, some
of the identified reasons for terminating that status include the
inability to participate throughout the preparation of the analysis and
documentation as necessary to meet process milestones; the inability to
assist in preparing portions of the review and analysis and help
resolve significant environmental issues in a timely manner; or the
inability to provide resources to support scheduling and critical
milestones. As is evident from much of the discussion above, these are
some of the very issues with which many of the cooperating agencies are
struggling given OSM's time schedule for the EIS and the content of the
documents distributed to date. We continue to do our best to meet our
commitments under the MOUs but based on our experience to date, this
has become exceedingly difficult.
Finally, as you have likely noted throughout the submission of
comments by many of the cooperating agencies, there is great concern
about how our comments (limited as some of them are due to time
constraints for review) 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'', given what we have seen so far of
the draft EIS 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 wrestling with the consequences of
their names appearing on the EIS, as it would assume tacit approval
independent of the 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.
Sincerely,
Randall C. Johnson,
Director, Bruce Stevens, Director,
Alabama Surface Mining
Commission Division of Reclamation, Indiana
Department of Natural Resources
Carl E. Campbell,
Commissioner, John Caudle, Director,
Kentucky Department for
Natural Resources Surface Mining and Reclamation
Division, Railroad Commission of
Texas
John Baza, Director, Bradley C. Lambert, Deputy
Director,
Utah Division of Oil, Gas
and Mining Virginia Department of Mines
Minerals and Energy
Thomas L. Clarke, Director, John Corra, Director,
Division of Mining &
Reclamation, West Virginia
Department of Environmental
Protection Wyoming Department of
Environmental Quality
______
July 3, 2013
Hon. Joseph G. Pizarchik
Director
Office of Surface Mining, Reclamation and Enforcement
U.S. Department of the Interior
1951 Constitution Avenue, N.W.
Washington, DC 20540
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 two 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 und 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 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/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, Bruce Stevens, Director,
Alabama Surface Mining
Commission Division of Reclamation, Indiana
Department of Natural Resources
Steve Hohmann,
Commissioner, John Caudle, Director,
Kentucky Department for
Natural Resources Surface Mining and Reclamation
Division, Railroad Commission of
Texas
John Baza, Director, Bradley C. Lambert, Deputy
Director,
Utah Division of Oil, Gas
and Mining Virginia Department of Mines
Minerals and Energy
Thomas L. Clarke, Director, Todd Parfitt, Director,
Division of Mining &
Reclamation, West Virginia
Department of Environmental
Protection Wyoming Department of
Environmental Quality
______
February 23, 2015
Hon. Joseph G. Pizarchik
Director
Office of Surface Mining, Reclamation and Enforcement
U.S. Department of the Interior
1951 Constitution Avenue, N.W.
Washington, DC 20540
Dear Director Pizarchik:
We are writing to you as cooperating agency states pursuant to the
Memoranda of Understanding that we negotiated with your agency
concerning the development of an environmental impact statement (EIS)
to accompany a proposed rule on stream protection expected to be
published by the Office of Surface Mining (OSM) sometime this spring.
As you know, during the summer of 2010, OSM offered the opportunity to
states who were interested in participating as cooperating agencies as
part of the development of an EIS to accompany a new rule on stream
protection that would replace the 2008 stream buffer zone rule. OSM
committed to replace this rule as part of an interagency effort to
address stream protection as it relates to mountaintop mining
operations in Appalachia. (See the June 11, 2009 Memorandum of
Understanding between the U.S. Environmental Protection Agency, the
Office of Surface Mining and the U.S. Army Corps of Engineers.) OSM
also agreed to propose a new rule on stream protection pursuant to a
settlement agreement with several environmental groups that had
challenged the 2008 rule. The settlement agreement was approved by a
U.S. District Court in Washington, DC on April 2, 2010. More recently,
the Court vacated the 2008 rule and OSM last month published a notice
vacating the 2008 rule.
Ten states (UT, NM, KY, TX, MT, WY, WV, AL, IN and VA) originally
agreed to serve as cooperating agencies, with the state of Ohio
agreeing to participate as a state commenter in the process. MOUs were
negotiated with most of these states and the first chapter of the draft
EIS (Chapter 2) was shared with the states for comment in September of
2010. Chapter 3 was shared with the states in October of 2010 and
Chapter 4 was shared with the states in January of 2011. In each case,
comment periods were exceedingly short and, while ``reconciliation
meetings'' were supposed to be held on each of the chapters, only one
such meeting was held. Following the receipt of state comments on
Chapter 4 in January of 2011, no additional outreach to the cooperating
agency states has occurred. Since that time, OSM has significantly
revised the draft EIS and we understand that several new alternatives
are being considered and that each of the chapters has been
significantly revised.
The cooperating agency states have sent two letters to you
expressing our concerns with the EIS process and our role as
cooperators. The first, on November 23, 2010, expressed concerns about
the quality, completeness and accuracy of the draft EIS; the
constrained timeframes for the submission of comments on draft EIS
chapters; the reconciliation process; and the need for additional
comment on revised chapters. The letter also alerted OSM to the
potential of some states reconsidering their continued participation as
cooperating agency states pursuant to NEPA guidance concerning the
status of cooperators. The letter also expressed concern about how the
comments of the cooperating agency states will be used or referred to
by OSM in the final draft EIS and requested the opportunity to draft an
appropriate statement to accompany the draft EIS setting out the role
that the states have played as cooperating agencies. OSM responded to
this letter on January 24, 2011 and made a number of commitments
regarding continued, robust participation by the cooperating agency
states in the EIS development process. However, shortly thereafter, the
agency terminated that involvement without explanation.
The cooperating agency states sent a second letter to you on July
3, 2013 requesting an opportunity to re-engage with the EIS development
process following several fits and starts by OSM, largely due to issues
related to the work of the various contractors OSM engaged to assist
the agency with the draft EIS. In requesting an opportunity to review
revised draft chapters of the draft EIS, the states requested expanded
timeframes for commenting on the chapters; an opportunity to review any
attachments and exhibits that are appended to the chapters; a
meaningful, robust reconciliation process; and a timetable for review
of draft chapters. The letter reiterated the concern of the states
regarding how their comments will be used or referenced by OSM in the
final draft EIS, including an appropriate characterization of their
comments and participation. OSM never responded to this letter and to
date no further opportunities have been provided by OSM for
participation by the cooperating agency states. In fact, OSM has, on
several occasions (at meetings of the Interstate Mining Compact
Commission and other OSM/state meetings), indicated that it does not
envision re-engaging with the states on the draft EIS and at most would
provide a briefing, coincident with release of the draft EIS and
proposed rule, regarding how the comments that were originally
submitted by the states were addressed in the final draft EIS. Even
this latter opportunity for engagement now appears to have evaporated.
As noted in a Memorandum for the Heads of Federal Agencies dated
January 30, 2002 entitled ``Cooperating Agencies in Implementing the
Procedural Requirements of the National Environmental Policy Act'', the
Council on Environmental Quality (CEQ) regulations addressing
cooperating agency status (40 C.F.R. Sections 1501.6 and 1508.5)
specifically implement the NEPA mandate that Federal agencies
responsible for preparing NEPA analyses and documentation do so ``in
cooperation with State and local governments'' and other agencies with
jurisdiction by law or special expertise. The Memorandum goes on to
note that the benefits of enhanced cooperating agency participation in
the preparation of NEPA analyses include: disclosing relevant
information early in the analytical process; applying available
technical expertise and staff support; avoiding duplication with other
Federal, State, Tribal or local procedures; and establishing a
mechanism for addressing intergovernmental issues. Other benefits of
enhanced cooperating agency participation include fostering intra- and
inter-governmental trust and a common understanding and appreciation
for various governmental roles in the NEPA process, as well as
enhancing agencies' ability to adopt environmental documents.
In litigation interpreting how the federal government must meet its
obligation to cooperating agencies, the U.S. District Court for the
District of Wyoming in International Snowmobile Manufacturers
Association et al v. Norton, 340 F. Supp. 2d 1249 (D.Wyo. 2004) ruled
as follows:
the purpose of having cooperating agencies is to emphasize
agency cooperation early in the NEPA process. 40 C.F.R. Section
1501.6 (2004). Federal agencies are required to invite the
participation of impacted states and provide them with an
opportunity for participation in preparing the EIS. 40 C.F.R.
Section 1501.7 (2004). ``When a federal agency is required to
invite the participation of other governmental entities and
allocate responsibilities to those governmental entities, that
participation and delegation of duty must be meaningful.''
Wyoming v. USDA, 277 F. Supp. 2d 1197, 1219 (D.Wyo. 2003).
Based on our experience to date with OSM's development of the draft
EIS for the stream protection rule, we assert that OSM has not provided
for meaningful participation by the cooperating agency states in the
preparation of the EIS and it seems unlikely that the agency will do so
prior to release of the draft EIS and proposed rule this spring. The
cooperating agency states are therefore left with a decision about
whether and when to withdraw from the process in order to protect our
interests and to craft an appropriate statement for inclusion in the
draft EIS regarding the nature and level of our participation and our
decision to withdraw. CEQ's regulations provide sample reasons for why
a cooperating agency might end its status as a cooperator, including
that the cooperating agency is unable to identify significant issues,
eliminate minor issues, identify issues previously studied, or identify
conflicts with the objectives of regional, State and local land use
plans, policies and controls in a timely manner; is unable to assist in
preparing portions of the review and analysis and resolving significant
environmental issues in a timely manner; is unable to consistently
participate in meetings or respond in a timely fashion after adequate
time for review of documents, issues and analyses; is unable to accept
the lead agency's decision making authority regarding the scope of the
analysis, including authority to define the purpose and need for the
proposed action or to develop information/analysis of alternatives they
favor or disfavor; or is unable to provide data and rationale
underlying the analyses or assessment of alternatives.
While the cooperating agency states were, for the most part,
actually able and willing to do all of these things, OSM's
unwillingness to share revised and new draft chapters of the EIS with
the states has precluded the states from doing so and hence has
undermined their status as cooperating agencies and the meaningfulness
of their participation. Consequently, the states appear to have more
than adequate reasons for withdrawing from the process and terminating
their status as cooperators based on CEQ's regulations. We are
therefore alerting you that, by separate actions pursuant to the
provisions of our respective MOU's with your agency, several of us are
seriously contemplating withdrawing from the EIS development process.
Regardless of individual state determinations regarding withdrawal, we
hereby request that the attached statement be included in a conspicuous
place at the front of the draft EIS explaining the role of the
cooperating agency states and any individual state decisions to
withdraw. It is also likely that those states who choose to continue on
as cooperating agency states will request that their state seal not
appear on the cover of the draft EIS. We welcome the opportunity to
discuss and potentially adjust this statement, but it is critical that
we receive assurances from you that the statement will appear in the
draft EIS at an appropriate place.
Should you have any questions or wish to discuss the matter
further, please communicate with Greg Conrad, Executive Director of the
Interstate Mining Compact Commission, who is assisting us with the
matter.
Sincerely,
Randall C. Johnson,
Director, Steve Weinzapfel, Director,
Alabama Surface Mining
Commission Division of Reclamation, Indiana
Department of Natural Resources
Steve Hohmann,
Commissioner, Ed Coleman, Chief,
Kentucky Department for
Natural Resources Industrial and Energy Minerals
Bureau, Montana Department of
Environmental Quality
Fernando Martinez,
Director, Lanny Erdos, Chief,
Division of Mining and
Minerals, New Mexico
Department of Energy,
Minerals & Natural
Resources Division of Mineral Resources
Management, Ohio Department of
Natural Resources
John E. Caudle, Director, John Baza, Director,
Surface Mining and
Reclamation Division,
Railroad Commission of
Texas Utah Division of Oil, Gas and
Mining
Bradley C. Lambert, Deputy
Director, Harold Ward, Acting Director,
Virginia Department of
Mines, Minerals & Energy Division of Mining and
Reclamation, West Virginia
Department of Environmental
Protection
Todd Parfitt, Director,
Wyoming Department of
Environmental Quality
Attachment
ATTACHMENT
Statement from Cooperating Agency States
Pursuant to Memoranda of Understanding with the Office of Surface
Mining, several states that implement regulatory programs under the
Surface Mining Control and Reclamation Act of 1977 (SMCRA) have
participated as cooperating agencies in the development of this draft
environmental impact statement for the proposed stream protection rule.
These states include: Alabama, Indiana, Kentucky, New Mexico, Texas,
Utah, Virginia, West Virginia and Wyoming. The state of Montana and
Ohio have also participated in an unofficial review role during the
process. Early in the development of the draft EIS in late 2010 and
early 2011, the cooperating agency states were provided an opportunity
to review three initial draft chapters of the EIS (then chapters 2, 3
and 4). The states, under very constrained timeframes, provided
comments on these draft chapters and engaged in one reconciliation
meeting with OSM. The states also alerted the agency to several serious
concerns that they were encountering with the process via letter of
November 23, 2010. Since January of 2011, the cooperating agencies
states have not been involved in the EIS development process, despite
requests to re-engage with the agency. (See letter dated July 3, 2013).
Some of this was due to difficulties encountered by OSM with its
contractors, which resulted in a full scale revamping of the draft EIS.
But in large measure, OSM simply chose not to pursue further
involvement of the cooperating states in the process, in direct
contravention of the states' MOUs with the agency, as well as the
Council of Environmental Quality (CEQ) regulations and guidelines
concerning the role of cooperating agencies. As a result, some
cooperating agency states, via letters dated [list dates of individual
state letters], formally withdrew from the EIS process as cooperators.
Others [list the states] remained as cooperators, but only to preserve
their rights as cooperating agencies. As a result of these decisions,
any reference to the role of the cooperating agency states should be
understood to embrace only the early, limited opportunities provided to
them to comment on draft chapters 2, 3 and 4 in late 2010 and early
2011. It should also be noted that the states did not have an
opportunity for full reconciliation regarding their comments and have
not been informed of how and to what extent their comments were taken
into account and incorporated in the draft EIS. This limited,
constrained role of the cooperating agency states must be understood as
such and should not be read as an endorsement of any portion of the
draft EIS.
______
STATE OF ALABAMA
SURFACE MINING COMMISSION
Jasper, Alabama
February 10, 2015
Hon. Joseph G. Pizarchik
Director
Office of Surface Mining, Reclamation and Enforcement
U.S. Department of the Interior
1951 Constitution Avenue, N.W.
Washington, DC 20540
Dear Director Pizarchik:
On August 24, 2010, the Alabama Surface Mining Commission signed a
Memorandum of Understanding (MOU) to participate as a Cooperating
Agency in the development of an Environmental Impact Statement (EIS) to
support a proposed stream protection rule. Since that time we have
participated diligently in that process, but with increasing concern
and reservation.
We and other state cooperating agencies have expressed concerns
regarding the piece-meal approach, the lack of adequate time for review
and comment, the overall quality of the product, major deficiencies,
inconsistencies, and missing reference material evidenced in the draft
documents. Federal cooperating agencies have verbally echoed similar
concerns during reconciliation conference calls. Almost four years have
now passed since our last interaction on the EIS.
I have concluded that it is no longer in the best interest of the
Alabama Surface Mining Commission to continue as a cooperating agency.
I hereby give notice to you of my decision to terminate the MOU. I
request that any references to our participation as a cooperating
agency be removed from the proposed EIS and its notice prior to
publication in the Federal Register.
Sincerely,
Randall C. Johnson,
Director.
______
Mr. Gohmert. Without objection, those letters will be
admitted as part of the record. Thank you, Dr. Johnson.
At this time we will now hear from Mr. Baker. You are
recognized for 5 minutes.
STATEMENT OF GREGORY BAKER, RECLAMATION PROGRAM MANAGER,
VIRGINIA DEPARTMENT OF MINES, MINERALS AND ENERGY, BIG STONE
GAP, VIRGINIA
Mr. Baker. My name is Greg Baker. As you said, I am a
Reclamation Program Manager as a permitting supervisor with the
Virginia Department of Mines, Minerals and Energy, or the DMME.
Mr. Gohmert. Sir, would you mind moving your microphone a
little closer to you? There you go. Good. Thank you.
Mr. Baker. I appreciate the opportunity to present this
testimony to the subcommittee regarding our views on the status
of cooperating agencies for the Office of Surface Mining's
Stream Protection Rule.
Virginia first implemented rules to address coal mining and
reclamation in 1966, and following the passage of the Federal
Surface Mining Control and Reclamation Act, Virginia sought and
obtained primacy in December of 1981 from OSM to serve as a
primary regulatory authority for the surface coal mining.
This resulted in a significant expansion and enhancement of
Virginia's regulatory program. Virginia's program is recognized
across the Nation as a leader and an innovator. Many states
have benchmarked with Virginia on areas such as electronic
permitting, underground mine mapping, and the development of a
GIS database that includes all surface mining as well as
abandoned mine lands.
Beginning in 2009, OSM embarked on an effort to impose a
drastic change in state programs regarding stream protection.
Despite our several requests, OSM has still not provided
reliable information to the states as to why it is revising the
1983 Stream Buffer Zone Rule. Nothing in the states' annual
evaluation report indicates that states are doing a poor job of
enforcing current surface mining laws, including the stream
buffer zone requirement.
As a part of its rulemaking effort, OSM is also preparing
an environmental impact statement. Early in the development of
the draft EIS, OSM invited several states, including Virginia,
to participate as cooperating agencies under the National
Environmental Policy Act, or NEPA.
In preparing the EIS, OSM hired a contractor from outside
the coal mining regions who had no mining background.
Cooperating state agencies voiced their concern about the
contractor and its ability to prepare the draft EIS.
We recommend that before moving forward with the draft EIS
and a proposed rule, that OSM seriously consider other
alternatives available to the Agency for addressing stream
protection. However, to date, a request for discussing these
potential approaches has been ignored.
Following a limited opportunity to provide comments on a
few early chapters of the draft EIS in late 2010/early 2011,
Virginia and other cooperating state agencies have been
excluded from the process. During the time we were involved,
the cooperating state agencies voiced several concerns
regarding the constrained time frames under which we were
operating to provide comments on the draft documents.
As we stated from the outset, and as Members of Congress
have also noted, the ability to provide meaningful comments on
OSM's draft documents was extremely difficult. We had limited
working days to review the material, some of which were fairly
technical in nature.
There is also a matter of completeness of the draft
chapters that we reviewed. Several attachments, exhibits, and
studies were not provided to us as part of reviewing Chapters
2, 3, and 4. Some of these were critical to a full and complete
analysis of OSM's discussion in the chapters.
As an example, since Virginia reviewed the early EIS
chapters in 2010, the production and job numbers included
therein have drastically changed. Coal production in Virginia
peaked at 47 million tons in 1990, but it has dropped
significantly. Production for 2014 was approximately 15 million
tons. Jobs are also decreasing. In 2009, 4,230 people worked in
the coal mining industry. That number has dropped to 3,723 in
2014.
As it is now, some of the cooperating agency states have
withdrawn from the process, and others are uncertain whether
they still desire their names to appear on the draft EIS. I
would like to reiterate Virginia's interest in continuing to
engage in this process, as we realize the importance of
reviewing the draft EIS and the opportunity to contribute to or
clarify the issues presented.
As a cooperating agency, our intention has been to ensure
that the most up-to-date data is utilized during the process.
For this reason, Virginia intends to remain on as a cooperating
agency.
Moving forward, we would like the opportunity to work with
OSM to draft a joint statement that will accompany the draft
EIS, outlining very specifically our role as a cooperating
agency and the significance and meaning of the comments that we
have submitted during the EIS development process. It is also
important to us that OSM re-engage with Virginia, and we
welcome the subcommittee's assistance in making this a reality.
Thank you for this opportunity to testify today, and I
would be happy to answer any questions you might have.
[The prepared statement of Mr. Baker follows:]
Prepared Statement of Gregory Baker, Virginia Department of Mines,
Minerals and Energy
Good afternoon. Chairman Gohmert, Ranking Member Dingell, members
of the subcommittee, thank you for giving me the opportunity to testify
before you today on the Stream Buffer Zone Rule and its implications to
the Commonwealth of Virginia. My name is Gregory Baker and I serve as
the Permit Review Supervisor at the Virginia Department of Mines,
Minerals, and Energy (DMME) and I hope to share with you today
background on the importance of Virginia's coal industry, the Stream
Buffer Zone Rule, and our continued interest in engaging in the
rulemaking process as a cooperating agency.
First, I would like to provide you with background information
about the Virginia coal industry and our agency. Since colonial days,
coal production has been integral to Virginia's economic development.
The first commercial coal production in the United States occurred in
1748 from the Richmond Coal Basin just west of our State Capital in
Richmond, Virginia. During the Civil War much of the coal industry in
Virginia was destroyed; however, commercial coal mining rebounded in
our southwestern most counties in the 1880s and mining in those areas
continues today. We recognize that coal is on the decline as it is
currently only produced in five of the Virginia counties that were
traditionally named the coalfields.
The Commonwealth first implemented rules to address coal mining and
reclamation issues in 1966; however, 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 on December 1981 Virginia obtained primacy from the
U.S. Office of Surface Mining (OSM) as the primary regulatory authority
for coal surface mining. Regulatory authority resulted in a significant
expansion and enhancement of the Virginia regulatory program.
As OSM moved forward to create the Stream Buffer Zone Rule,
Virginia, chose to participate as a cooperating agency, in order to
ensure that we were included in the process. We had the opportunity to
review and comment on the initial proposed rule; however, since that
time, Virginia, as a cooperating agency, has not been given the
opportunity to review the most current version of the rule. This is
concerning as the economic impact numbers we previously submitted have
drastically changed. Coal production in Virginia peaked at 47 million
tons in 1990, but it has dropped significantly in recent years.
Production for 2014 was approximately 15 million tons, which has
resulted in a decrease in the number of coal mining jobs. In 2009,
there were 4,230 people working in the coal mining industry in the
Commonwealth and in 2014, that number dropped to 3,723. We are
concerned with OSM using outdated data from the Commonwealth.
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 production as well as
for the export market. We understand that there has been a reduction in
coal production and the coal-producing areas of southwestern Virginia
will continue to see a decline in their economy. We are concerned with
the potential impact the draft rule will have on the economy of these
regions in Virginia. This may be further exacerbated by the inability
to engage in the rule process and the continued use of outdated and
inaccurate information.
Virginia's regulatory program is recognized across the Nation as a
leader and an innovator. Many states have used Virginia as an example
in areas such as electronic permitting, underground mine mapping and
the development of a GIS database that includes all surface mining
areas as well as abandoned mined lands. We continue to work on making
this information public 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, 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 state
programs. To date, OSM has not provided information to states as to the
reason for revising the Stream Buffer Zone Rule now termed the ``Stream
Protection Rule.'' Nothing in the states' Annual Evaluation Report
indicates that the states are doing a poor job of enforcing 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 the
Stream Buffer Zone Rule. While, the purpose of the 2009 MOU was to
implement an interagency action plan to reduce harmful environmental
consequences of surface coal mining in six states; states were not
engaged in the process and were not asked to be a part of the MOU but
rather join as cooperating agencies.
One significant item resulting from the MOU was the intention to
propose a new Stream Protection Rule. As previously stated, 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 DEIS, OSM hired a
contractor from outside the coal mining regions and cooperating
agencies voiced their concern with the contractor's lack of knowledge
in mining. The cooperating agencies recommended that, before moving
forward with the DEIS and proposed rule, OSM seriously consider the
other alternatives available to the agency for addressing stream
protection. The cooperating agencies believe that there are
opportunities for the states and the affected Federal agencies (OSM,
EPA, the ACOE 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.
Following a limited opportunity to provide comments on a few early
chapters of the DEIS 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, the cooperating agencies sent a letter to Director
Pizarchik reminding him that the role of the cooperating agencies, as
defined by the original memoranda of understanding, included an
opportunity to review and comment on the chapters of the DEIS that are
made available to us.
The cooperating state agencies have had several concerns regarding
the constrained time frames 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
complaints, permit reviews, and AML project design.
We also have concerns regarding the lack of feedback from states in
drafting final chapters to date. We noted that several attachments,
exhibits and studies were not provided to us as part of reviewing
Chapters 2, 3, and 4. Having the opportunity to review these documents
is critical to ensuring our ability to provide a full and complete
analysis of OSM's discussion in these 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 DEIS 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 DEIS 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. 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 and
referred to by OSM in the final DEIS that is published for review. Our
concern is that we have not been afforded the ability to fully engage
in the process as we believe was originally agreed upon. We remain
interested in engaging in this process and while the MOU we signed as
cooperating agencies indicates 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 DEIS, it is critical
that the public understand the purpose and extent of our participation
as cooperating agencies.
To date, many of the cooperating agency states are uncertain
whether they still desire their names to appear on the DEIS, which was
originally anticipated. I would like to reiterate Virginia's interest
in continuing to engage in this process; however, the appearance of a
state's seal on the cover of the DEIS would imply tacit approval,
regardless of whether and to what extent state comments have been
incorporated into the document. While cooperating agencies have the
authority to terminate cooperating status if it disagrees with the lead
agency (pursuant to NEPA procedures and our MOUs), Virginia realizes
the importance of DEIS review and the opportunity to contribute to, or
clarify, the issues presented. For this reason, Virginia intends to
continue to engage on this proposed rule and remain on as a cooperating
agency. Moving forward, we would like the opportunity to work with OSM
to draft a joint statement that will accompany the DEIS outlining, very
specifically, our role as a cooperating agency and the significance and
meaning of the comments that we have submitted during the EIS
development process.
Thank you for the opportunity to testify before you today. As a
cooperating state, Virginia is committed to being constructive partners
in the rulemaking process. Our intention has been and will continue to
be to stay engaged to ensure that the most up-to-date data is utilized
during this process. It is important to us that OSM re-engage Virginia
in the process and we welcome the committee's feedback or assistance in
making this a reality. I look forward to answering any questions you
may have.
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 the past several
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 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 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.
______
Mr. Gohmert. Thank you very much, Mr. Baker.
At this time we will hear from Mr. Dustin White. Mr. White,
you are recognized for 5 minutes.
STATEMENT OF DUSTIN WHITE, COMMUNITY ORGANIZER, OHIO VALLEY
ENVIRONMENTAL COALITION, HUNTINGTON, WEST VIRGINIA
Mr. White. Thank you for the opportunity to speak today. My
name is Dustin White and I am a community organizer for the
Ohio Valley Environmental Coalition, or OVEC. For the record, I
am neither an engineer nor a scientist, so I will hold the
technical jargon to a minimum.
As an organizer and lifelong resident of West Virginia,
native to one of the top coal-producing counties in the state,
I have personally been witness to the impacts of mining that
include entire communities depopulated and bulldozed; increased
flash flooding in areas surrounding mountaintop removal; and
even streams and rivers that run a wide variety of colors,
ranging from orange, red, turquoise, black, and even white due
to mine-related incidents. In some cases, streams disappear
altogether when they are buried by valley fills. Known toxins
even leach off mine sites and contaminate the streams and
ground waters for communities.
In addition, high rates of health issues such as cancers,
gastrointestinal illnesses, kidney problems, and gallbladder
issues, just to name a few, can also be found in these
communities. Residents throughout the Appalachian region will
attest that these illnesses are not just isolated incidences,
but are all too common in areas with heavy mining. There have
also been many peer-reviewed scientific studies published that
even more directly show the link between mountaintop removal
and these health issues.
Most of the Appalachian states with mountaintop removal
have their own regulatory agencies that are supposed to be the
first line of defense for communities when coal companies
violate the law. These agencies exist in Kentucky, Virginia,
and West Virginia. In West Virginia, we know them as the DEP,
or Department of Environmental Protection.
But for many in West Virginia, they say DEP stands for
something else, Don't Expect Protection, as citizens often find
themselves doing the job of DEP to monitor the impacts of
mining. We have found that state regulatory agencies often
issue mining permits against objections of citizens and
sometimes without the proper environmental surveys required by
law. They often allow coal companies, that are habitual
violators of the law, to operate with little to no
interruption. Fines issued for violations are little more than
pocket change for coal companies.
In at least West Virginia and Kentucky, the regulatory
agencies and state legislators work to lower water quality
standards that go against Federal guidances, allowing companies
to discharge higher levels of selenium and aluminum into
streams.
Agencies like DEP seem to be working against the best
interests of the people; because of this, citizens often turn
to legal action to rein in the coal companies. We have even
filed a 733 petition under SMCRA in West Virginia asking the
Office of Surface Mining Reclamation and Enforcement to
intervene in DEP's mining division for failing to do their job.
Due to state regulatory failure, a regional coalition known
as the Alliance for Appalachia was created to circumvent the
state authority and go straight to the Federal agencies such as
OSMRE and EPA. We demand that they take action to rein in coal
companies who blatantly break the laws where agencies like DEP
allow it.
In 2009, the Alliance worked with the Council on
Environmental Quality to establish a memorandum of
understanding with the Federal regulatory agencies outlining
steps we would like to see taken to lessen the impacts of
mountaintop removal, including a strong stream protection rule.
We will continue to go to the Federal agencies as long as the
state agencies ignore us and our lives and homes are threatened
by mountaintop removal.
In closing, how can state regulatory agencies honestly be
expected to be part of a Federal rulemaking process when they
have proven time and time again that they cannot perform their
jobs to protect citizens from mining pollution? People living
in mountain communities are experts in their own lives and know
practices like mountaintop removal are harmful and want action
taken.
Water is one of the most important resources for life. We
all live downstream and are all vulnerable to pollution.
Stringent action to protect the waterways of these United
States, no matter the size of the stream, should be taken by
regulatory agencies and not obstructed. Access to clean, safe
water is a human right. Thank you.
[The prepared statement of Mr. White follows:]
Prepared Statement of Dustin C. White, Community Organizer, Ohio Valley
Environmental Coalition, Huntington, West Virginia
My name is Dustin White and I am a community organizer with the WV
based Ohio Valley Environmental Coalition (OVEC) and spend the majority
of my time working with people living with the day to day impacts of
coal and mountaintop removal mining. OVEC is a local grassroots non-
profit organization helping communities throughout the state fighting
environmental injustice. For the record I am not a scientist or
engineer, nor do I hold any type specialized degree. What I am,
however, is an 11th generation West Virginian who grew up in Boone
County, one of the state's top coal producing counties. It also happens
to be one of the most ravaged by mountaintop removal. I have been
around coal mining all my life and have family who've worked for the
industry since its inception. I am here to speak on behalf of the
hundreds of thousands of individuals throughout the Appalachian region
who live in the wake of the coal extraction process. We often feel that
we are ignored or overlooked in the decisionmaking process when it
comes to coal.
One of the most abundant resources in the Appalachian region is in
fact water, not just coal as many would like to believe. Not only is
water one of the few basic fundamental elements needed for life, but it
is also important to Appalachian culture because our streams and rivers
are just as much part of our communities as the mountains that surround
us. We don't just use them for recreational purposes like fishing and
swimming but for many who do not have access to municipal water
systems, it is the water they use for drinking, cooking, and bathing.
Water from the Appalachian region was once considered some of the most
pure on the planet. However, for the past several decades, our valuable
water quality has been threatened and in many cases completely
obliterated by pollution from mountaintop removal.
When mining companies dump the overburden from their operations
into adjacent valleys they destroy ephemeral, intermittent, and
perennial streams that act as headwaters for larger rivers and as
natural channels for rain and snow runoff. This causes massive
flooding. The mountains and forests of Appalachia are designed by
nature to absorb and direct water, especially during periods of heavy
rainfall. However, because these streams are destroyed, rain runs off
the desert like landscape created by mountaintop removal into the
communities directly below causing flash flooding. Now, almost yearly,
people in areas with mining have to contend with flooding that is
devastating to their communities. In the past, massive flooding was a
rare occurrence but is now commonplace and I have seen the toll it has
on already economically depressed communities.
One of the greatest threats from mountaintop removal comes in the
form of the water contamination mining causes. The blasting of strata
subsequently exposes naturally occurring elements locked in the ground,
which once exposed to air, can become toxic. These now toxic elements
along with other toxins, such as diesel fuel from equipment and the
chemicals used in explosives, leach into streams and groundwater
supplies and eventually find their way into people's homes that depend
on these sources for water. As a result people are becoming sick.
Cancers, gastrointestinal issues, kidney damage, and gallbladder issues
among others are commonplace throughout Appalachian communities with
heavy mining. Not only have I witnessed these illnesses as a lifelong
native of an area with heavy mining, but I often hear stories of
commonality in each community impacted by mining I work in. People
speak of their own wide range of illnesses or tell of family and
neighbors who have similar health issues described or have even passed
away from these illnesses; not only adults, but children as well. I
myself at 31 years of age have outlived people I played with as a
child.
It is well known there are dozens of peer-reviewed scientific
studies published showing a correlation between mountaintop removal and
health issues for people living near mining. One study shows a strong
correlation between children being born with health defects and the
proximity their mothers live during pregnancy to MTR sites. In medical
pathology, correlation is the first key to determining if something has
an impact on human health and is often the only way to determine a link
when causation cannot be shown. In many medical study cases when it
comes to determining something's impact to human health it is not
causality that medical professional go by but the correlation data. I
personally believe without a doubt that most of these illnesses are
caused by pollution from coal operations.
It is true that laws and regulations like SMCRA (Surface Mine
Control and Reclamation Act) are in place to prevent or lessen
environmental impacts of coal mining and mountaintop removal. However,
in many cases it seems companies tend to ignore, for the most part,
these regulations. Under SMCRA, some states are given primacy by the
Federal Office of Surface Mining Reclamation and Enforcement (OSMRE) to
have state regulatory agencies that can address issues related to
mining. In WV this falls under the jurisdiction of the Division of
Mining and Reclamation (DMR) inside the WV Department of Environmental
Protection (DEP). These state agencies are supposed to be the citizens'
first line of defense when coal mining companies break the law.
However, after years of trying to work with these agencies on the state
level we have found they do not work the way they were intended.
Citizens often find that they are the ones who have to do the work
in determining violations from mining companies. With little to no help
from state regulatory agencies, citizens take it upon themselves to
monitor water quality around areas with heavy mining. They are
essentially doing the job the state regulatory agency is supposed to
do. Independent labs and universities will often have to be consulted
by community members for water testing because state agencies either
dismiss claims from citizens or claim that they do not have the
capacity to monitor the water source in question. In cases where state
agencies find violations, fines set by the agency are often ineffective
at deterring repeat offenders, and many state agencies allow habitual
offenders of violations to continue operation with only temporary
delays in production. This often prompts citizens to file lawsuits
against the mining companies for things like excessive selenium
discharges into streams and high conductivity, often an indicator of
harmful heavy metals, in streams impacted by mining along with other
Clean Water Act violations. Many of these lawsuits are more effective
at reigning in coal companies over actions taken by state agencies.
Recently in West Virginia, due to the lack of enforcement by the
state, citizens filed a 733 petition under SMCRA to have OSMRE
investigate and possibly take over the DEP's mining division. The WVDEP
has also worked with coal companies to weaken water quality standards
inside the state that goes against Federal guidances in place. Due to
the lack of enforcement in the states where MTR takes place and the
refusal of agencies to work with impacted communities, people have been
left with no other choice than going directly to Federal agencies such
as the Environmental Protection Agency (EPA), OSMRE, the Council on
Environmental Quality (CEQ), and the Army Corps of Engineers. Impacted
citizens have asked these agencies, as public servants, to use their
authority to provide some relief to communities where water quality is
being destroyed by mining activity because they are receiving little to
no assistance from the state level.
It is true there is a cost to mining coal and we in Appalachia have
been paying that cost for decades. Mountaintop removal is a continued
threat to the safety and well-being of people living in the Appalachian
region. Citizens not only face the current impacts to their health and
environment, but will be left with the legacy pollution costs of
mining. Due to their failure to adequately enforce regulations; state
agencies have contributed to the impacts of mining on communities with
little to no accountability and have shown that they cannot be a useful
part of any nationwide rulemaking process. As a result, we will
continue to seek rules from Federal agencies that will curtail the
impacts of mining and threats to human health.
______
Mr. Gohmert. Thank you very much, Mr. White.
I understand Congressman Mooney has been most unavoidably
detained, and so it is my pleasure to introduce the Counsel for
the Division of Mining and Reclamation within the West Virginia
Department of Environmental Protection. So Mr. Russell Hunter,
we are delighted to have you. You are recognized for 5 minutes.
STATEMENT OF RUSSELL M. HUNTER, COUNSEL, DIVISION OF MINING AND
RECLAMATION, WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL
PROTECTION, CHARLESTON, WEST VIRGINIA
Mr. Hunter. Thank you for your kind introduction, Mr.
Chairman. Good afternoon. I am appearing on behalf of----
Mr. Gohmert. Is your microphone on? If it is, you might
move it a little closer. OK. Yes. Then if you would just move
it a little closer to your----
Mr. Hunter. How about that? Good afternoon.
Mr. Gohmert. It is still not picking up.
Mr. Hunter. Good afternoon.
Mr. Gohmert. I think that is good. Thank you.
Mr. Hunter. Good afternoon again, three times. I am
appearing on behalf of the West Virginia Department of
Environmental Protection, and we appreciate the opportunity to
present this testimony before the subcommittee regarding the
state of West Virginia's perspective on the status of
cooperating agencies for the Office of Surface Mining's Stream
Protection Rule.
West Virginia is one of nine state agencies that signed
Memoranda of Understanding with OSM to serve as cooperating
agencies in development of the Stream Protection Rule's
underlying environmental impact statement. Having the states
participate as cooperating agencies in the NEPA process was
envisioned by Congress, and particularly by the CEQ.
Particularly, CEQ regulations mandate that the Federal agencies
responsible for preparing NEPA analyses and documentation do so
in cooperation with state and local governments with
jurisdiction by law or special expertise.
It is important to note that the Department of the Interior
and CEQ guidance documents make clear the role of cooperating
agencies. It is not to be one of a nominal figurehead, but
instead a role of active participation throughout the
development of the EIS. That includes providing special
expertise, practical knowledge, and primary regulatory
experience to the process.
Since 1981, West Virginia has been a primacy state, with
DEP implementing and administering SMCRA within our borders.
Thus, West Virginia felt it could contribute to and learn from
participation in the EIS process. It is with these expectations
that DEP signed the MOU to cooperate in the preparation of the
EIS.
As a means of initiating the cooperative process described
in the MOUs, OSM released limited sections of their draft for
review by the cooperating agencies. However, the time periods
allowed for review and comment on these sections were
impractical. At no point during this EIS draft review process
was there a face-to-face meeting between cooperating agencies
and OSM.
Despite the imposition of unreasonable time constraints and
other logistical hurdles, DEP and the other cooperating
agencies conformed to the OSM schedule and provided comments on
those portions of the working draft that OSM had shared with
them. It should be noted, however, that OSM did not provide the
studies and research relied upon in the 2010 working draft.
In spite of the cooperating agencies' inquiries and offers
to honor their MOU commitments, their communication from OSM
was scant at best during the 4-year period that began in
January 2011 and ended March 2015. From our perspective, OSM's
treatment of DEP as a cooperating agency can best be described
as limited, abbreviated, and contrary to the terms of the MOU.
The cooperating agencies, in correspondence dated February
23, 2015 to OSM, inquired about this EIS process. OSM, via
communication on March 17, responded and requested that a
meeting be held with the cooperating agencies regarding its
draft EIS and proposed rules.
Shortly before the OSM communication of March 17, some of
the cooperating agencies had already withdrawn from the EIS
process. Those agencies, as well as IMCC staff, were excluded
from the subsequent OSM briefing of April 27. The briefing for
the remaining cooperating agencies lasted approximately 3 hours
and consisted solely of a PowerPoint presentation made by OSM,
with brief questions and answers.
The briefing can be characterized as a unilateral
presentation primarily related to methodology and OSM's
predetermined views and conclusions rather than a solicitation
of input from the remaining cooperating agencies in attendance.
Upon inquiry as to OSM's next step in the EIS preparation
process, the cooperating agencies were informed that the draft
EIS and proposed rule were at the OMB, and it was indicated
that if OSM needed information from the cooperators, OSM would
contact them.
Based on these succinct statements, the only logical
conclusion derived from the briefing was that OSM was going to
unilaterally publish its draft without input from the
cooperating agencies. This is unfortunate, given the regulatory
history, experience and expertise of West Virginia. We signed
the OSM MOU expecting DEP to meaningfully contribute to the EIS
process, while gaining insight into new science, technology, or
techniques.
Accordingly, DEP terminated its MOU with OSM, and will
respond to the OSM rulemaking through appropriate regulatory
procedures in efforts to provide transparent and responsible
regulation designed to protect the environment and the state of
West Virginia.
Thank you, and I will answer any questions.
[The prepared statement of Mr. Hunter follows:]
Prepared Statement of Russell M. Hunter, Counsel, Division of Mining
and Reclamation, West Virginia Department of Environmental Protection
Good afternoon. My name is Russell Hunter and I serve as Counsel
with the Division of Mining and Reclamation of the West Virginia
Department of Environmental Protection (WVDEP). I am appearing on
behalf of the agency and we appreciate the opportunity to present this
testimony before the subcommittee regarding the state of West
Virginia's perspective on the Status of Cooperating Agencies for the
Office of Surface Mining's (OSM) Stream Protection Rule.
WVDEP is one of nine states that signed Memoranda of Understanding
(MOUs) with OSM to prepare an Environmental Impact Statement (EIS) to
accompany a rulemaking to address the stream buffer zone. The MOUs were
developed by OSM pursuant to the National Environmental Policy Act
(NEPA) and the Council on Environmental Quality's (CEQ) implementing
regulations at 40 CFR 1501.6 and 1501.8, and CEQ's January 30, 2002
Memorandum for Heads of Federal Agencies relative to cooperating
agencies.
The regulations of CEQ that implement NEPA, (40 CFR Parts 1500-
1508), allow Federal agencies, as lead agencies, to invite state
governments to serve as cooperating agencies (CAs) in the preparation
of Environmental Impact Statements (EISs) and, if a CA is invited, as
is the case for the Stream Protection Rule, the CEQ regulations
implementing NEPA govern the CA relationship for all Federal agencies
preparing EISs, including OSM. More specifically, applicable CEQ
regulations state:
40 CFR 1501.6 (CEQ) Roles of lead and cooperating agencies
(a) The lead agency shall:
(1) Request the participation of each cooperating agency in
the NEPA process at the earliest possible time.
(2) Use the environmental analysis and proposals of
cooperating agencies with jurisdiction by law or special
expertise, to the maximum extent possible consistent with its
responsibility as lead agency.
(3) Meet with a cooperating agency at the latter's request.
(b) Each cooperating agency shall:
(1) Participate in the NEPA process at the earliest
possible time.
(2) Participate in the scoping process . . . ,
(3) Assume on request of the lead agency responsibility for
developing information and preparing environmental analyses
including portions of the environmental impact statement
concerning which the cooperating agency has special expertise .
. . .
It can be derived from the CEQ regulations (40 CFR 1501.6) and
other Department of Interior (DOI) regulations (43 CFR 46.230),
throughout the development of an EIS, the lead agency is required to
collaborate, to the fullest extent possible, with all CAs concerning
issues relating to their jurisdiction and special expertise. Also, CAs
may, by agreement with the lead agency (in this case via signed MOUs),
assist in doing the following: (i) Identifying issues to be addressed,
(ii) Arranging for the collection and/or assembly of necessary
resource, environmental, social, economic, and institutional data,
(iii) Analyzing data, (iv) Developing alternatives, (v) Evaluating
alternatives and estimating the effects of implementing each
alternative, and (vi) Carrying out any other tasks necessary for the
development of the environmental analysis and documentation.
As described, the primary purpose of involving CAs is to bring into
the process knowledge, expertise, and familiarity with matters being
considered. It is with these expectations that WVDEP, on behalf of the
state of West Virginia, signed the MOU to cooperate in the preparation
of the EIS to support OSM's current rulemaking. West Virginia, since
1981, has been a primacy state, with WVDEP implementing and
administering the Surface Mining Control and Reclamation Act (SMCRA)
for West Virginia, under oversight from the OSM. West Virginia, dating
back to 1933, had a set of laws addressing the environmental
ramifications of mining. In fact, SMCRA, passed by Congress in 1977 to
provide a national framework for the regulation of mining, borrowed
heavily from the preexisting state programs of West Virginia and
Pennsylvania. Given the regulatory history, experience and expertise of
West Virginia, we felt WVDEP could meaningfully contribute to the EIS
process while gaining insight into any new science, technology or
techniques, and thus signed the MOU.
WVDEP participated in the scoping process, and signed an MOU
(prepared by OSM) to serve as a CA, regarding the proposed change to
the existing 1983 regulations, which have been commonly referred to as
the ``stream buffer zone rule.'' OSM unilaterally developed the scope
of the initial 2010 draft EIS and then circulated a draft EIS (the
`2010 working draft EIS') and packaged it as ``Stream Protection
Measures.'' As a result, what had started out as a revision to the
stream buffer zone rule, pertaining to discernable stream segments, had
been expanded by OSM to include topics beyond the stream buffer zone.
The expanded topics included, but were not limited to, the definition
of material damage to the hydrologic balance, baseline data collection
and analysis, monitoring requirements, the practices of mining through
and under streams, corrective action thresholds, and fish and wildlife
protection and enhancement. (A discussion on some aspects of the
expansiveness of the OSM rulemaking and the appropriateness of it can
be found in written comments filed with the Energy and Mineral
Resources Subcommittee in conjunction with a hearing about H.R. 1644 on
May 14, 2015). Essentially, from our perspective, OSM has turned its
proposed stream buffer zone rulemaking into a rewrite of the permitting
and performance standards established by Congress in SMCRA.
As a means of initiating the cooperative process described in the
MOUs, OSM released sections of their draft rule for review by the CAs.
However, in what appeared to be a mockery of the process, the time
periods allowed for review and comment by the CAs were brief and
impersonal in that (i) the comment deadlines were extremely short and
impracticable, and (ii) were to be provided via a share-file on a Web
site set up by OSM. Consequently, at no point in the draft review
process was there a face-to-face meeting between cooperating agencies
and OSM. Further, given OSM's time constraints, scheduling needed face-
to-face meetings was impractical, although it is suggested that
convening such a meeting could have been helpful, to address the CAs'
comments and suggestions and to reconcile such comments and issues with
the 2010 working draft EIS.
Despite the imposition of these logistical hurdles, WVDEP and the
other cooperating agencies provided comments to the portions of the
drafts which OSM had shared with the CAs. It is noted that OSM did not
allow the CAs to comment on some portions of their draft 2010 working
draft EIS, and OSM failed to provide the studies relied upon in the
draft or a list of the research or studies it utilized.
A critical part of an EIS preparation stage is the identification
and analysis of potential action alternatives and the selection of a
preferred alternative. Selection of a preferred alternative which is
overly restrictive such as categorically preventing disturbance of
discernable stream segments could have profound effects on permitting
decisions and performance standards and ultimately whether certain
mining operations are authorized to proceed. In addition to limiting
the CAs participation in the review process, OSM, by selecting a
restrictive preferred alternative, would undermine the discretionary
permitting decisions of approved state regulatory authorities. Also in
preparing its version of the EIS, OSM apparently relied upon modeling
performed by outside sources to select and analyze alternatives rather
than seeking input from the CAs. These actions further belie the notion
that OSM had made its decision as to the outcome of the EIS prior to
the actual conclusion of the NEPA process. Such an approach to dictate
future permitting decisions by state regulatory authorities, without
input from primacy programs, is not only contrary to NEPA principles,
but also contrary to the fundamental concept of state primacy under
SMCRA.
Further, OSM's withholding of ``new science'' from review by the
CAs deprived the states of information regarding the appropriate
development of the EIS. This approach by OSM also served as a
disservice to the primacy regulatory authorities charged with making
current regulatory decisions as they implement SMCRA on a daily basis
by keeping from them the latest available information.
Subsequent to this initial review phase (as described above),
conducted in late 2010 and early 2011, there was no further dialog or
input requested of the CAs by OSM. The CAs had discussions regarding
this dilemma on more than one occasion and contacted OSM by letters,
offering to honor their MOU commitments and to engage, or re-engage, in
the preparation of the draft EIS. These offers were repeatedly refused
by OSM. In spite of the CAs' inquiries and offers, the only
communication from OSM, during this 4-year period from the end of the
abbreviated comment period in January 2011 to March 2015, was a general
statement that OSM was still working on a draft EIS and proposed
regulation change. Further, OSM staff working on the draft EIS and
proposed rule refrained from discussions with WVDEP personnel and
declined to answer particular questions, if inquiries were made. From
our perspective, OSM's treatment of the WVDEP, a cooperating agency in
the OSM-led EIS, can best be described as limited, abbreviated,
restricted, and contrary to the terms of the MOU.
From our discussions with other CAs, it is apparent they also felt
disenfranchised by the OSM approach. In many cases, we were informed
that letters of termination of their respective MOUs regarding the
withdrawal of their participation in the EIS process had been sent to
OSM. We understand the reasons for termination and withdrawal included
very short review times, failure to provide reports and relevant data,
substantial revision of the working draft without the input of the CAs,
unwillingness to meaningfully engage the CAs, the overall quality of
the work product, missing reference material and the overall expansive
nature of the rulemaking effort.
As what appeared to be yet another mockery of the CAs' role in the
process and apparently as a result of Congressional inquiry into the
Stream Protection Rule and EIS status, OSM, via a communication on
March 17, 2015, requested that a meeting be set up with the CAs
regarding the draft EIS and proposed rule. Although requests for the
meeting were received individually by the CAs, the Interstate Mining
Compact Commission (IMCC) was involved and handled the meeting
arrangements on behalf of the cooperating agencies. The OSM
``briefing'' (the meeting) of the CAs was held on April 27, 2015 in
Baltimore Maryland and attended by representatives from WV, WY, KY, VA,
MT, OH, and IN. It is important to note that the CAs that had
terminated their MOU and withdrawn from the EIS process (UT, NM, AL and
TX), as well as an IMCC representative, were excluded by OSM from the
meeting.
The briefing for the remaining CAs lasted approximately 3 hours and
consisted solely of a power point presentation, made by OSM, with brief
questions and answers. It is important to note that neither copies of
the presentation, nor any other materials, were furnished to the CAs,
neither prior to or at the meeting. OSM's briefing began with a slide
that identified the purpose of their proposed rule by using a bullet
list of general concepts, with the first bullet in the list being,
``Use Advancement in Science.'' In response to questions regarding such
science advancements, it was indicated by OSM that the scientific
advances will be seen throughout the OSM draft of the EIS, and
reference was made to TDS (total dissolved solids), selenium,
reforestation, and geomorphic reclamation (with no details provided or
studies referenced as to such science advancements). Similar
generalizations can be made as to the other general concepts identified
in the bullet list presented during the briefing.
This briefing can be characterized, at best, as a unilateral
presentation, primarily of methodology, of OSM's views and
determinations, rather than a solicitation of input from the remaining
CAs in attendance. The CAs were informed that, despite their doubts,
their review comments from 2010/2011 were considered by OSM and that
the current OSM draft of the EIS and proposed rule (neither of which as
of today, May 20, 2015, have been seen by the remaining CAs) were
revised, and that the revisions were peer reviewed by outside experts,
based on said comments. Interestingly, despite the terms of the MOUs,
neither the WVDEP nor the other CAs had been asked to review the
revisions or studies relied upon by OSM to revise the limited portions
of the 2010 working draft the CAs had previously seen. Upon inquiry
regarding OSM's next step in the EIS preparation process, the CAs were
informed that the draft EIS and proposed rule were at the Office of
Management and Budget (OMB), specifically Office of Information and
Regulatory Affairs (OIRA), and were being circulated among other
Federal agencies (and not the CAs). The CAs were further informed that,
following the Federal agencies' review, a draft EIS and proposed rule
would be published and available to the CAs and the public for comment.
However, it was indicated that if OSM needed information from the CAs,
during or after the comment period, then OSM would contact them. Based
on this succinct statement, the only logical conclusion derived from
the briefing was that OSM was going to unilaterally publish its draft
without input from the CAs, despite the terms of the MOUs.
The fundamental stages in developing an EIS are scoping, preparing
and publishing a draft, receiving comments, responding to comments, and
publishing a final document. At what stage in the process an action
agency (generally the lead agency) proceeds with an action (e.g.
proposed rule) is determined by that agency. From our perspective, OSM
perverted the NEPA process because, among other things, the CAs'
comments on the initial working draft were being treated as a part of
the scoping stage, rather than as part of the preparation stage of the
EIS process and OSM had already determined the preferred alternative
(e.g. the proposed rule language) it would include in the final
document.
The fact that the 2010/2011 cooperating agency comments on the OSM
initial working draft is the only involvement of cooperating agencies
is disappointing to put it mildly. OSM actions during preparation of
this EIS denied WVDEP the opportunity to interact with the lead agency,
excluded WVDEP from timely receiving information OSM relied on and in
effect forestalled WVDEP from performing in the process as contemplated
in the MOU and NEPA cooperating agency guidance. The dismissive
approach of OSM necessitates that WVDEP position itself to provide
transparent and responsible regulatory revisions and decisions to be
considered and addressed consistent with the appropriate regulatory
processes.
We appreciate the opportunity to provide these comments to the
subcommittee. We urge the subcommittee to continue its investigation
and oversight of the process with the goal of motivating OSM to
reconsider the need for and breadth as well as consequences of its
rulemaking.
Thank you for the opportunity to testify today. I would be happy to
answer questions.
______
Mr. Gohmert. Thank you very much.
At this time we will move into a question-and-answer
session. Normally the Chair recognizes him- or herself first,
but I am going to wait to ask questions and would recognize my
friend Mr. Labrador for 5 minutes.
Mr. Labrador. Thank you, Mr. Chairman. Thank you all for
being here today.
Mr. Johnson, you write in your written statement that you
anticipated a robust opportunity to work with OSMRE, but the
cooperating states have essentially been shut out of the
process and relegated to the sidelines as OSMRE moved forward
with the EIS. Can you elaborate a little bit on this statement,
specifically regarding the commenting process?
Dr. Johnson. Congressman, the first chapter that we were
given was provided to us in September, which was actually
Chapter 2 of the EIS. The subsequent two chapters were Chapters
3 and 4. We were given approximately 8 to 10 days to look at
these chapters.
We had no prior input in the development of those chapters
or in providing data or information regarding the substance of
the proposed EIS. So, what we were relegated to essentially was
the role of the proofreader. That is the way we feel.
Mr. Labrador. All right. Was the Agency cooperative with
you at all when you requested documents?
Dr. Johnson. We never received any of the documents that we
asked for, to my knowledge. Other states may have, but I do not
recall ever seeing any.
Mr. Labrador. How many times did you request documents?
Dr. Johnson. I think there were at least--individual
states, I know, requested information from the Director. We
requested information in our November 10 letter to the
Director, and then expressed concerns about not having received
those in our subsequent letter in July of 2013.
Mr. Labrador. All right. According to your testimony, when
draft EIS chapters were shared with the states, you were only
given a short time to comment. What was the reason given to you
for the lack of time to comment?
Dr. Johnson. We were told that the schedule had been
established on what the review process was going to be, and
they would not deviate from those schedules.
Mr. Labrador. Established by whom?
Dr. Johnson. The Director. They actually gave us a
timetable on the development of the EIS, and proposed to have
it out, I believe, by the end of February of 2011, the entire
DEIS.
Mr. Labrador. How long has it been since the last comment
period closed?
Dr. Johnson. The last time we had any opportunity was in
January, I believe, of 2011.
Mr. Labrador. Have you requested an opportunity to give any
additional comments?
Dr. Johnson. Yes, we have. We did on July 3, 2013.
Mr. Labrador. Thank you.
Mr. Hunter, in your written testimony you state that it can
be derived from the CEQ regulations and other Department of the
Interior regulations throughout the development of an EIS, that
the lead agency is required to collaborate to the fullest
extent possible with all cooperating agencies concerning issues
relating to jurisdiction and special expertise. Has the Agency
collaborated with you in such a manner?
Mr. Hunter. OSM has not cooperated with us in that manner,
Congressman.
Mr. Labrador. Have you made your concerns regarding the
lack of collaboration known to the Agency?
Mr. Hunter. That is correct.
Mr. Labrador. And what has the Agency done to address your
complaints?
Mr. Hunter. The briefing was the most recent thing they
have done, and that was the only thing other than routine
updates or general updates for a 4-year time period.
Mr. Labrador. Now, as we saw, Secretary Jewell testified
that the states can comment on the proposed rule once it is
released. This question is for Mr. Johnson, Mr. Hunter, and Mr.
Baker. Is that statement consistent with how the regulations
require the Federal agency to collaborate with a cooperating
agency?
Dr. Johnson. Sir, according to my understanding of what the
NEPA process for involvement of the states is, that is not
consistent with it. I believe the process envisions dealing
with the states all the way up through the development of the
entire DEIS, or draft EIS, and that has not been done.
Mr. Labrador. Thank you. Mr. Baker?
Mr. Baker. The same. We do not agree that we have been
involved in the process like it was set out to be for our
involvement.
Mr. Labrador. All right. Mr. Hunter?
Mr. Hunter. Well, in a previous EIS on the mountaintop
mining issue, West Virginia was in a co-lead position. In the
co-lead position, which is distinguished from a cooperating
agency position, there was more than collaboration; there was
actually working together to put a product out. I mean, we
labored over each word and line. So there was great sharing of
information at that time.
It is my understanding, talking to other states that have
Federal lands and do EISs more frequently than we have to in
West Virginia, that as a cooperating agency, they receive
almost everything that is put out by the lead agency. So I
would have to say that that was contrary to our experience
here.
Mr. Labrador. Thank you very much. Thank you for your time.
Mr. Gohmert. I thank the gentleman from Idaho.
At this time I will recognize the Ranking Member, Mrs.
Dingell.
Mrs. Dingell. Thank you, Mr. Chairman.
I just want to follow up on this line of questioning for 1
second before I go to the others. This is for all the witnesses
that represent a state regulatory agency. I want to better
understand the level of participation in the development of the
environmental impact statement for the 2008 Stream Buffer
Protection Rule under the Bush administration.
By show of hands, which of your agencies was a cooperating
agency at the time of the EIS attached to the rule?
[Show of hands.]
Mrs. Dingell. So you did not do it back then, either. Did
you complain at the time that you were not being included when
the Bush administration issued the rule?
Mr. Hunter. Not that I can recall.
Mrs. Dingell. So it is my understanding there was very
little input from the states during the 2008 EIS process,
either, and that this Administration has actually had a more
open process for state participation than the earlier one. So I
just wanted to get that point on record.
Mr. White, now I would like to ask you some questions. You
mention in your testimony that a 733 petition was filed because
there was concern in your community that the West Virginia
Department of Environmental Protection was not adequately
regulating the coal mines. Can you talk about some of the
things you have seen that have prompted you and other
organizations to file the petition?
Mr. White. Absolutely. They range from a wide variety of
issues. The main issues that OSMRE decided to take a look at
from our 733 petition were the fact that the DEP fails to
address potential flooding impacts, and they fail to issue
SMCRA violations when NPDS system violations exist.
The DEP also fails to regulate selenium pollution. This is
one key that I can specifically talk about because my
organization has actually entered into several lawsuits against
mining companies because of high levels of selenium output into
streams. We have been very successful in those lawsuits. They
also fail to properly define impacted areas and cumulative
hydrological impact analysis results and harm to watershed, and
fail to require properly protected soil removal and reclamation
measures for MTR mining sites.
With reclamation, the Appalachian forest is one of the most
biodiverse forests, second only to the Amazon itself. It is
essentially a rain forest, with all these different species of
plants and animals. When they destroy the mountain, they are
essentially turning it into either a desert landscape or a
prairie landscape, and so little of the native vegetation is
put back on these sites.
They destroy the topsoil, which is the nutrient-rich soil
that provides the life; and plant non-native species of grasses
like lespedeza, shrubs, and very few native species. In turn,
this also causes runoff from water because there is nothing
there to catch the rainwater any more.
Mrs. Dingell. So I want to talk about health effects, too.
We heard last week from Dr--our time is short, which is why I
am cutting you off there a little--we heard last week from Dr.
Michael Hendryx in a different hearing on the same subject. As
an accomplished epidemiologist, he told us about the health
effects we see in mountaintop mining and coal mining
communities. He was very concerned about them.
Can you talk a little more about some of the health
problems you have seen in your community firsthand, and whether
that is impacting the economics of your region?
Mr. White. Absolutely. In the communities I work with, I
have witnessed a lot of folks with cancers. Some even have
multiple types of cancers. I know of one young lady whose
gallbladder completely calcified. Many residents in the region
have actually had their gallbladders removed. Crohn's disease
is a large problem in a lot of these areas, and I encounter
them. My own grandmother died of kidney failure, and that was
something that was very difficult for me to go through because
she was the only one in her community that was still on well
water and was not on a public water system.
It is very hurtful when you see people in your community
suffer from health effects, and when you know that things are
going on around them in their environment that are causing
their health effects.
Mrs. Dingell. Thank you. We are sorry you are seeing that.
Mr. Chair, I only have 1 second, so I will yield it back.
Mr. Gohmert. All right. At this time the Chair recognizes
Mr. Lamborn from Colorado for 5 minutes.
Mr. Lamborn. Thank you, Mr. Chairman. I want to commend you
for having this hearing. In fact, as the chairman of another
subcommittee who has had some of the previous hearings on this
important issue, I commend the fact that when you were named as
Chairman of the new O&I Subcommittee, you immediately saw the
need to delve into this issue. So I commend you for that.
For Mr. Johnson, Mr. Baker, and Mr. Hunter, are any of you
familiar with the Yale medical study that found that in coal
mining country, the problems that are identified have to do not
with coal mining but with poverty? Mr. Johnson?
Dr. Johnson. I for one am, sir.
Mr. Lamborn. So you are familiar with that study? OK, that
is good.
Let me get into the role of the states. I am concerned OSM
has been ignoring the states and just putting on a show--just
putting on the appearance of consulting, trying to meet the
regulatory requirements, the statutory requirements, under
NEPA. But I am afraid that they have been insincere and it will
not stand up to legal challenge in the future.
Do any of you, Mr. Johnson, Mr. Baker, or Mr. Hunter, think
that the OSM has complied with the spirit and letter of the
law; or are they just going through the motions and not really
listening to you at all?
Dr. Johnson. Sir, my experience in dealing with this type
of operation is that I had never done it before. So this was a
first for me. Even though I had been there 34 years, I had not
been a cooperating agency on an environmental impact statement.
But, having said that, I think I went into it expecting one
thing and came out of it seeing that I did not accomplish that.
I was expecting to be involved in the process of developing
this EIS from the very beginning and having some input on what
data was looked at and what factors might be considered in
developing a new rule; even though I understood from the very
beginning that I was not participating in developing the rule
itself, only the EIS.
In the end, as I said before, I think all I got from this
was the fact that I was a glorified proofreader.
Mr. Lamborn. Thank you. Mr. Baker, I will be a little more
specific with you in the state of Virginia. Was Virginia able
to provide substantive comments to OSM? And was the amount of
time given you to review what they provided reasonable?
Mr. Baker. In Virginia we also, as with other states who
were cooperating agencies, had very short turnaround times on
being able to provide any information in this process. A lot of
the information, as we said, some of the things have changed
and needed to be updated as far as Virginia production and
different issues like that that we have not been able to
provide because we have not been a part of the process.
Mr. Lamborn. Mr. Hunter?
Mr. Hunter. West Virginia did provide comments to the three
chapters that were shared via a share file. The abbreviated
comment period made some of them substantive, not as
substantive as we would have liked to have had some of the
comments, and some of them were procedural.
I am thinking back in time a little bit. I have not studied
those comments. But there was an expectation that there would
be some dialog about the comments and the range of alternatives
and the possible alternatives, which never followed the initial
comment period on those three chapters.
Mr. Lamborn. Thank you.
Now, changing gears just a little bit, those of us who have
been watching this with a lot of concern remember when the
contractor who was hired to do economic analysis came out with
a finding that tens of thousands of jobs--I think 17,000,
something like that--would be lost; it would be devastating on
the communities in Appalachia--however you say that properly--
and that that would have a harmful economic impact.
Then that contractor was fired and later became a
whistleblower, and it was almost like OSM was shooting the
messenger because they did not like the message they were
hearing. Then they looked for someone else to give a different
message, more in keeping with what their predetermined outcome
wanted to be.
Are you all familiar with that? Well, I guess I am running
out of time. But maybe we will get a chance to talk more about
that next round. Thank you. I yield back.
Mr. Gohmert. Thank you.
At this time I would recognize the gentleman from Arkansas,
Mr. Westerman, for 5 minutes.
Mr. Westerman. Thank you, Mr. Chairman.
Dr. Johnson, I would like to ask about the rationale for
cooperating agencies. The NEPA regulations talk about including
states that have special expertise or jurisdiction by law. What
kind of special expertise do states have in this area?
Dr. Johnson. Well, our states, as a group and individually,
have been in the business of regulating the coal industry for
the last 35 years, or more in some cases. We were granted
primacy by the Office of Surface Mining to do that, and they
have watched over our shoulder diligently for the last 35 years
to ensure that we are enforcing the law and the regulations.
I do not believe you can get much better expertise in these
different fields, particularly dealing with the water quality
issues and the excess spoil disposal issues that are involved,
anywhere else but the states that actually regulate.
Mr. Westerman. So how would the knowledge and experience of
states benefit in the environmental review process?
Dr. Johnson. It would be beneficial in trying to identify
exactly what factors are going to come into play on these
different alternatives that they are proposing, whether or not
they are going to be feasible to implement, and whether or not
they are going to result in any on-the-ground improvements.
Mr. Westerman. So would you say that states have a better
understanding of mining operations in their own states than OSM
has in Washington, DC?
Dr. Johnson. I would definitely think that. That is my
opinion.
Mr. Westerman. So what about jurisdiction by law? Do states
have the level authority to regulate coal mining?
Dr. Johnson. I am not sure of the question, sir?
Mr. Westerman. Do states have the legal authority to
regulate coal mining? I believe in Alabama----
Dr. Johnson. Yes, sir.
Mr. Westerman [continuing]. You all have that there.
Dr. Johnson. Yes, sir. We do.
Mr. Westerman. All right. So in Alabama, coal mining is
primarily regulated by the state?
Dr. Johnson. Yes, it is.
Mr. Westerman. All right. Do you think OSM has taken the
states' input seriously and made an effort to use their
expertise to inform the environmental review?
Dr. Johnson. I think they missed a good opportunity on
this. To the extent that they have included or taken our
comments to heart, reviewed them and given credence to them, we
do not know yet because we have not seen a final draft EIS.
Mr. Westerman. Do you think it makes sense for OSM to
ignore the special expertise that the states have?
Dr. Johnson. No, sir. I do not.
Mr. Westerman. So the states have the expertise, and they
have jurisdiction to regulate mining in their states; yet OSM
is trying to make a rule without taking that into account. Is
that a fair assessment, Dr. Johnson?
Dr. Johnson. That would be my opinion. Yes, sir.
Mr. Westerman. Mr. Hunter, do you agree with that?
Mr. Hunter. In general, yes, Congressman.
Mr. Westerman. All right. Mr. Chairman, I yield back.
Mr. Gohmert. Thank you. I appreciate the gentleman from
Arkansas.
At this time I recognize the gentlelady from American
Samoa, Mrs. Radewagen, for 5 minutes.
Mrs. Radewagen. Thank you, Mr. Chairman. I want to thank
the panel for being here today.
Let me start with Dr. Johnson. When did Alabama first
become involved in the environmental review for the Stream
Protection Rule?
Dr. Johnson. We signed an MOU with OSM; I believe the date
of that MOU was August 26 or 28, 2010.
Mrs. Radewagen. And then Alabama became a cooperating
agency. Right?
Dr. Johnson. That is correct.
Mrs. Radewagen. How did that happen? Did Alabama approach
OSM or did OSM approach you?
Dr. Johnson. No. OSM sent me a letter, as Director of the
agency, and invited me to participate as a cooperating agency.
Mrs. Radewagen. Did OSM explain why they were asking the
states to be cooperating agencies?
Dr. Johnson. The letter was fairly explicit on why they
were asking, yes. It detailed what they were trying to
accomplish, and the fact that the National Environmental Policy
Act also mandated that they give the states an opportunity to
become cooperating agencies.
Mrs. Radewagen. I see. So looking back, were your
expectations met? Do you think OSM held up their side of the
agreement?
Dr. Johnson. I do not believe that we went into this
expecting to be brought in so late in the game on developing
the EIS. By the time we were given any draft materials to look
at, the process had been drafted out in pretty much a very
finished format.
We really did not get a chance to look at any of the data
or studies that were referred to in the EIS. We were never
really given a complete copy of it to see how it all meshed
together. So in the end, it was my opinion that it was a waste
of my time.
Mrs. Radewagen. Thank you, Dr. Johnson.
Mr. Baker, do you have a similar understanding of what it
means to be a cooperating agency?
Mr. Baker. Yes, ma'am. I do.
Mrs. Radewagen. Do you think the drafts OSM provided to the
states years ago fully satisfy the NEPA regulations and the
MOU, or does Virginia expect to be able to participate more
substantively?
Mr. Baker. Virginia would like to participate more
substantively. What was submitted to us early on was lacking a
lot of technical information. There were things referenced that
we never received a copy of, to be able to actually look at the
rule as needed.
Mrs. Radewagen. Do you agree, Mr. Hunter?
Mr. Hunter. Yes, Congresswoman.
Mrs. Radewagen. Thank you, Mr. Chairman. I yield back.
Mr. Gohmert. I thank the gentlelady and appreciate her as
one of the most faithful members of the overall Natural
Resources Committee. I appreciate all those who have been here
for this.
As the last one who has not asked questions, I want to go
back to Mr. Hunter. When you were finishing your statement, I
want to make sure I was clear on what you were saying. Is West
Virginia withdrawing from the memorandum of understanding with
OSM?
Mr. Hunter. Yes, Mr. Chairman.
Mr. Gohmert. And when was that decision made?
Mr. Hunter. That decision was communicated by letter to the
Director of OSM yesterday, and a copy was sent to him
electronically this morning.
Mr. Gohmert. I see. Is your microphone on?
Mr. Hunter. I believe it is.
Mr. Gohmert. Now I hear you, yes, as you lean forward.
I know you gave your written statement, but since that has
just occurred yesterday and today, would you summarize in a
nutshell exactly why that decision was made in the last day or
two?
Mr. Hunter. The thinking that went into that decision is
basically what has been the substance of the testimony today.
Mr. Gohmert. All right. So did the last meeting you had
with OSM play a part in the decision of West Virginia?
Mr. Hunter. That is correct. When it became clear that the
rules were going to be published without being circulated back
with the cooperating agencies for input and collaboration, it
is felt that we could provide better comments in the public
participation process; which according to NEPA, they are
required to respond to in writing. We felt that we could have a
more effective input by assuming another role in the process.
Mr. Gohmert. I appreciate that. Sorry for the lack of input
the states have had. I hope all of you appreciate--everybody on
this committee, on both sides of the aisle, wants a clean
environment. We want citizens protected.
I love climbing up mountains. I am not in as good a shape
as I once was; 16,000 feet is the highest I have ever been. But
I love mountaintops. I love the outdoors. And I think we all
want to see our environment preserved and have areas where we
can enjoy the beauty that God has provided.
At the same time, Mr. Lamborn brought up the point that
when people are in poverty--the study indicated people in
poverty have a lot more problems with health than most other
people. That is the issue. As I have seen in east Texas, we do
not have mountaintop mining; but I have seen people lose their
jobs in the energy area, and they live day to day. They cannot
plan on going to the doctor, whether it is because of a
deductible or one thing or another.
Anyway, we want to see the economy do well. And it sure
appears clear, from everything I have seen in my 10 years on
this committee and from what you can read and find out, the
only place that there is really any good done in preserving the
environment is where the economy is doing well. So there is
obviously a trade-off here.
Mr. White, I know you had mentioned that you were concerned
about having a state agency testify, that you did not believe
were properly concerned for the citizens' well-being, basically
in effect. From where I sit, having been a judge and a chief
justice, I mean, this has been my life--you follow the law, and
when the law says cooperating agencies are supposed to have
input, you let them have input.
Then if they have not been a good agency, then that ends up
coming in as evidence to show that their opinion should not be
worth what somebody else's is. But you do not just fail to
follow the law when the law says you are going to get input
from the cooperating agencies, including the state cooperating
agencies, throughout the process.
The process is failing. It is violating the law unless that
is followed. We do hope to get responses from OSM on this
matter. We hope to get the rest of the documents that we have
requested. My time is expired, but I really appreciate all of
you being here today, and I do mean all four of you.
Would you like to have an additional round or questions?
Oh, I am sorry. I did not look up and see Mr. Mooney has not
asked questions yet. Mr. Mooney, I had explained earlier that
you were most unavoidably detained, or otherwise you were going
to be here to introduce Mr. Hunter. Since you are now here, you
are recognized for 5 minutes.
Mr. Mooney. Thank you, Mr. Chairman. I just came from the
Floor. I gave a little talk on the research and development tax
credit. I actually believe I have two of my constituents here,
so welcome, and thanks for coming.
I actually do want to address my first question to Mr.
White. I read your testimony last night, and I know you have
been very involved in the community and activities. Of course,
the concerns from the folks that I represent, and that you live
and work with, and know in the coal industry, is the jobs.
I have a bill that I think will help save those jobs. I am
certain it will. I am seeing you are not supportive of it. So
what about the jobs? Is that a concern to you for your friends
and neighbors?
Mr. White. My primary concern is the health impacts that
come from this technique of mining, which have been proven
through multiple studies to have impacts to human health.
Mr. Mooney. Not having a job is not good for your health,
either. Would you agree with that?
Mr. White. You cannot legislate or deregulate a market
value for coal. As we know, the market value right now is what
is actually impeding the coal industry from making a profit. It
has nothing to do with regulations.
Mr. Mooney. I think there are a lot of factors, but
appreciate you coming and testifying.
Mr. Hunter, another constituent of mine, has West Virginia
participated in an environmental review process like this
before?
Mr. Hunter. Yes.
Mr. Mooney. Can you tell me more about what the process was
like compared to how the Office of Surface Mining has handled
this environmental review for the Stream Protection Rule?
Mr. Hunter. As I explained earlier to the committee while
you were on the Floor, the agency, West Virginia DEP,
participated as a co-lead agency with the mountaintop mining
EIS that was concluded in basically 2005.
We did that as a co-lead, and we sat in the room and wrote
with them. Then, with the EISs concerning public land, we
receive information back and forth throughout the process until
the draft is published, and then after the draft we help them
in the final.
It was my understanding in talking to other people with
more familiarity that cooperating agencies generally receive a
great amount of information from the lead agency, contrary to
what happened here. And with regard to the 2008 rulemaking by
the Office of Surface Mining, it was tiered off, if you will,
the 2005 EIS. It is my recollection we were not sent a letter
requesting to be cooperating agencies in that particular
venture. So that is my experience with EISs.
Mr. Mooney. Do you think it would be a fair
characterization, would you say, that the Office of Surface
Mining's current treatment of the states is unprecedented?
Mr. Hunter. I missed the last part of that question.
Mr. Mooney. Unprecedented?
Mr. Hunter. That is correct.
Mr. Mooney. Without precedent.
Mr. Hunter. That is correct.
Mr. Mooney. Now, Dr. Johnson, a couple of questions for
you. What in particular do you think OSM should be doing to
better engage with the states?
Dr. Johnson. I believe that, prior to having developed a
draft EIS, they should have involved the states as cooperating
agencies in the process of actually putting together the data
that was necessary to evaluate the issues that they wanted to
evaluate, in terms of putting out a new proposed rule--not
bring the states in in the middle of the process when all of
that had already been done.
Keep in mind that we are not necessarily attacking any
proposed rule, because there has not been one yet. We have not
seen that rule. All we are attacking is the process by which
they went forward with putting together the EIS. We feel like
we were told and promised that we would get a full copy of the
proposed draft EIS before it was published and would have a
chance to review it, and it was not given to us.
Mr. Mooney. All right. Just to follow up, generally
speaking, is OSM's current treatment of the states in line with
your previous experiences with OSM, or would you say this is a
particularly troublesome period for OSM's relationship with
states like the one you represent?
Dr. Johnson. You are talking about outside of the EIS
process? You are talking about in general?
Mr. Mooney. In general.
Dr. Johnson. In general, I would say that our experience
with OSM over the last 6 or 7 years has not been a very
rewarding one.
Mr. Mooney. OK, thank you. Mr. Chairman, I will yield back.
Mr. Gohmert. I thank the gentleman.
At this time we will start a second round. Since we have
had numerous Republicans ask questions, at this time I would
like to recognize the gentlelady, Mrs. Dingell, for 5 minutes.
Mrs. Dingell. Thank you, Mr. Chairman. I will be brief.
Mr. Mooney, you missed earlier. I did ask them on record
before the rule was issued in 2008 if the Bush administration
had solicited any of them, and they had not. So actually some
have said that this Administration has been more inclusive than
that, and I just wanted that on the record. I am not saying it
is right or wrong for either administration, but I wanted that
documented.
I would also like, Mr. Chairman, to put in the record with
reference to a Yale health study, which is actually not a Yale
health study. It was done by a professor, Dr. Jonathan Borak,
who teaches in the Public Health Department there; but it was
paid for by the National Mining Association. When asked if it
was a Yale study, he said no, because he would have had to have
undergone a very complicated application process.
So I do want to, if that is all right with you----
Mr. Gohmert. Without objection.
Mrs. Dingell [continuing]. Put that into the record so we
have exactly that.
Then, Mr. Hunter, I would just like to ask you a couple
questions. There is a concern in some mountaintop communities
that the state regulators have been, in essence, captured by
the industries they regulate. One of the ways this happens is
when mining companies see violations imposed by the agency as a
cost of doing business rather than an incentive to avoid
collecting notices of violation.
Do you think the West Virginia DEP has sufficient
incentives in place to defer repeat offenders?
Mr. Hunter. I believe the West Virginia DEP has in place an
effective regulatory program, yes.
Mrs. Dingell. So let me ask you, how long has Keystone
Development No. 2 been in operation?
Mr. Hunter. The most recent Keystone permit, I think, has
only been in operation less than a year.
Mrs. Dingell. May 2014 is what I saw. But in that time, do
you know how many violations have been accumulated?
Mr. Hunter. No, Congresswoman.
Mrs. Dingell. I am going to put them in the record--over 20
violations and 3 cessation of work orders. Would it seem to you
like maybe the coal business sort of regards these violations
as the cost of doing business?
Mr. Hunter. I do not have an opinion on that, really.
Mrs. Dingell. So may I put that in the record, Mr. Chair?
Mr. Gohmert. Without objection.
Mrs. Dingell. I have 2 minutes. Mr. White, let me ask you a
question. What do you see in your community, and communities
like yours, when mountaintop removal companies take an
abandoned mine but reclaim it? What does the re-reclamation
look like? Has the mountaintop been restored? What about the
vegetation? Talk about what really happens.
Mr. White. Well, to be honest, Congresswoman, you cannot
put something back that God created the way he created it. It
is essentially a lifeless landscape now, not up to Appalachian
forest standards, I should add. It may be considered full of
life for a Midwest prairie, but not for an Appalachian forest.
There are basically just open expanses of nothingness.
Often a rebuttal from the mining industry is that they will use
this land for economic diversification or economic processes
that are not existing. When you have MTR sites like the Hobet
21 mine site, that is large enough to fit 75 percent of the
city of Manhattan in, and it is just sitting there vacant, they
obviously have no use any more--not naturally, not for economic
development.
Mrs. Dingell. Thank you, Mr. White. I will yield back the
balance.
Mr. Gohmert. All right. Thank you. I have a few questions.
For one thing, it is my understanding that the report that
was allegedly leaked regarding an analysis of the effects of
the Stream Protection Rule indicates or predicted there would
be perhaps 7,000 jobs lost as a result of this rule.
Mr. White, I wanted to make sure I understood you
accurately on one of the things you said. Did you say you
cannot regulate the value of coal? Is that what you were
saying?
Mr. White. Yes. We have known for a very long time that the
coal industry has been in a downturn. There was even a USGS
study published.
Mr. Gohmert. But I am just particularly curious about your
feeling you cannot regulate the value of coal.
Mr. White. Currently, with the market and demand for
natural gas----
Mr. Gohmert. But you think that the government cannot
regulate the value of coal? That government does not have any
effect on the value of coal? Is that what you believe?
Mr. White. The stock market is based on supply and demand.
Mr. Gohmert. I am asking you, Mr. White, what you believe.
Do you believe the government cannot have an effect on the
value of coal?
Mr. White. I believe that I have answered the question on
how I believe.
Mr. Gohmert. All right, then let me tell you what our
President said. The President of the United States, while he
was a candidate, said that if he were President, basically, he
would make the value or the price of energy produced with coal
skyrocket.
So our President believes he can make the price of coal-
powered energy skyrocket. That means if he can make the price
of energy skyrocket, then it will drive down the value of coal
and make it almost worthless because nobody is going to use it
to power energy.
And it means people like the 80-plus-year-old lady in my
district that said, ``I was raised in a home that only had one
source of energy--a wood-burning stove. Because of what is now
happening to the price of energy, I am afraid that is the way I
am going to die. I am going to die in a home with a wood-
burning stove and nothing else because I cannot afford it.''
So I would encourage you to do a little more research into
just how profound the effect on the price of energy by over-
regulation can be. It really does make a difference.
And I do want to ask Mr. Hunter--I don't know if you know
or not, but are you aware of what happened to the poverty level
in West Virginia since President Obama took office?
Mr. Hunter. Mr. Chairman, I am unfamiliar with those
numbers.
Mr. Gohmert. Well, I am curious. I want to look into it
because I know that the voters, certainly, in West Virginia
felt very strongly about what was happening to their way of
life and their standard of living, so much so that they changed
people that were representing them because of how strongly they
felt about what was happening to their standard of living.
So in any event, those are matters that I have observed. I
do not think there should be any question that, by regulation,
the government can completely put one industry out of business.
I can also tell you that there have been indications if
this Administration persists with the war on coal that it has
basically had--and I have to give it to President Obama, that
is one campaign promise he is keeping; been a lot of them that
he has not, that is one he is keeping--but if the EPA does what
they are talking about doing, then this Administration could
very well force potential brownouts in Texas, where we have
more energy than we know what to do with it just because of
over-regulation.
Our skies are getting cleaner every year. Our water is
getting cleaner. The state agencies are doing a good job. But
the Federal Government can make life absolutely miserable for
people in their 80s that cannot afford energy any more.
Let's see. Was there anybody else that had not asked
questions twice? Did you have another question, Mrs. Radewagen?
Yes. Then the chair recognizes Mrs. Radewagen for 5 minutes.
Mrs. Radewagen. Thank you, Mr. Chairman.
A question for Mr. Hunter. Mr. Hunter, are you concerned
about West Virginia being associated with this rule and the EIS
draft?
Mr. Hunter. That is a difficult question to answer. We are
concerned more with the effect of what comes out in the rule
and how it may or may not affect the ability to regulate mining
operations, which would be permit or not permit them.
As far as lending credibility to a process where the agency
did not contribute to what the preferred alternative was, there
is some concern about the impression it would give the public;
but we are more concerned about getting it right.
Mrs. Radewagen. Thank you. I wanted to ask Dr. Johnson the
same question.
Dr. Johnson. I originally drafted a letter to Director
Pizarchik in early 2011, shortly after we had received the last
chapter of the EIS. It was my intention to withdraw at that
time as a cooperating agency. I did not do it after talking
with some of the other cooperating states, because we felt like
that it was possible that we would be re-engaged in this
process some time before publication of the final rule and the
draft EIS.
That has not happened, and my sole purpose for withdrawing
from this was to make it known that the state of Alabama did
not believe that its participation in this process should be
used to validate the draft EIS.
Mrs. Radewagen. So you had intended to withdraw but did not
withdraw, or did you withdraw from----
Dr. Johnson. I did not until February of this year.
Mrs. Radewagen. Because you were concerned about whether
the document actually reflected Alabama's input?
Dr. Johnson. That is correct.
Mrs. Radewagen. What about the other states that have
withdrawn? Did they withdraw for similar reasons?
Dr. Johnson. I cannot speak for the other states. Now, Mr.
Hunter is here, and I think he has already articulated that. I
believe I mentioned in my opening statement that there were
four states that had withdrawn; at the time that I prepared my
written statement, there were four. But there are now six,
counting the state of West Virginia. Everything that I have
seen in all my discussions with these other states, the reasons
are similar.
Mrs. Radewagen. So are you saying that some states are
choosing not to withdraw, or to withdraw from their MOUs?
Dr. Johnson. I believe there are two that have chosen not
to, out of the original nine.
Mrs. Radewagen. I see. Is it true--and this is my last
question--is it true that the states that remain as cooperating
agencies retain their right to sue?
Dr. Johnson. Is that question directed to me?
Mrs. Radewagen. Yes, sir.
Dr. Johnson. And you asked, is it true that if the states
remain, they retain the----
Mrs. Radewagen. If they remain as cooperating agencies, do
they retain their right to sue?
Dr. Johnson. I do not know the answer to that question.
Mrs. Radewagen. Mr. Hunter?
Mr. Hunter. That is kind of a legal opinion. I will give
you my assessment of it; I do not want to be rendering legal
advice on the matter. But I understand, from the way that it is
all structured, that when you look at the guidance and the case
law, that yes, they would retain the right to exercise their
right to bring litigation.
Mrs. Radewagen. What do you say, Mr. Baker?
Mr. Baker. Virginia has not made any determinations as far
as that matter is concerned.
Mrs. Radewagen. Thank you, gentlemen.
Mr. Chairman, I yield back.
Mr. Gohmert. I thank the gentlelady.
Mr. Mooney, you are recognized for 5 minutes.
Mr. Mooney. Thank you, Mr. Chairman.
When the environmental impact study is published, the seals
of the states who acted as cooperating agencies will be on the
cover tacitly endorsing the document. So Mr. Baker, in your
testimony, you mention that Virginia has asked to include a
statement with the draft environmental impact study explaining
and clarifying the role that the states played in the review
process.
Do you have any concerns about staying in and having
Virginia associated with this rule and the National
Environmental Policy Act review?
Mr. Baker. Well, our concern is mainly that we have not
been involved in the process as we feel like the process should
go forward. We want to remain in the process, but we would like
for the process to continue as it is set out to be, with the
cooperating agencies being able to participate in this process
fully and to have our input recognized as we move through this
particular process.
Mr. Mooney. So what would you like the public to know about
Virginia's participation in the environmental impact statement
drafting process, specifically for the Stream Protection Rule?
Mr. Baker. Exactly what our involvement was, not
necessarily that our seal is on there, but that we had no
participation in the process.
Mr. Mooney. Dr. Johnson, this next one is for you. When was
the draft environmental impact statement originally supposed to
be finalized?
Dr. Johnson. I believe the finalization date was February
of 2011. I cannot swear to that, but I believe that is what
they had on their original schedule. They subsequently pushed
that into early or late spring, but I do not know the exact
date that they put on it at that time.
Mr. Mooney. So 2011; OSM has delayed this publication for
years, but could not give the states more time to provide
thorough comments on the environmental review documents?
Dr. Johnson. That is correct.
Mr. Mooney. OK, well that is it for me, Mr. Chairman. Thank
you very much. I yield back my time.
Mr. Gohmert. I thank the gentleman.
At this time I would like to ask unanimous consent to enter
these peer-reviewed papers, one on mortality disparities in
Appalachia, which found that mortality rates in coal mining
counties were independently related to poverty, level of
education, lifestyle choices, and other factors not related to
mining. Do we know who that was by so we can----
Mrs. Dingell. I was just going to ask that question. And
who paid for it?
Mr. Gohmert. Is that the one that she is talking about?
Mrs. Dingell. So can we just document who has paid for it
and all that? Thank you, Mr. Chair.
Mr. Gohmert. Yes. We will make sure that we get that in the
record, who exactly did the study and where it came from,
because you had pointed out it was not an official Yale study,
if that is the same one. And also another paper, ``The
influence of misclassification bias on the reported rates of
congenital anomalies on the birth certificates for West
Virginia--A consequence of an open-ended query.''
Do we know who did that? It is underneath? Oh, I see. Yes,
here it is. All right. So that is by Ji Li, Shayhan Robbins and
Steven Lamm. And then another--oh, that is the same people,
actually, plus Elizabeth Dissen, Rusan Chen, and Manning
Feinleib. And that is the one--OK.
Mrs. Dingell. Yes. That is the one that was paid for by the
Mining----
Mr. Gohmert. Yes, that you were talking about. It was not
an official Yale study, but done by Jonathan Borak, M.D. So
without objection. And with those clarifications, those will be
made part of the record.
Anyway, thank you to each of our four witnesses for being
here today, for providing the information you have that will
allow us to look more deeply into the issue and make sure the
law is properly being followed.
The members of the committee may have some additional
questions for the witnesses, and if so, they would ask you to
respond in writing. Under Committee Rule 4(h), the hearing
record will be held open for 10 business days for such
responses.
If there is no further business at this time, without
objection, the subcommittee is adjourned.
[Whereupon, at 3:39 p.m., the subcommittee was adjourned.]
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
Article Relating to Impacts of Mountaintop Mining
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE COMMITTEE'S
OFFICIAL FILES]
List of Permit Violations from the West Virginia Department of
Environmental Protection Web site specifically for Keystone
Industries
Memorandum of Understanding between the Office of Surface
Mining Reclamation and Enforcement and State of Alabama Surface
Mining Commission for EIS activities under NEPA for Stream
Protection rulemaking--August 25, 2010
Letters to Director Joseph Pizarchik from states terminating
the MOU with participation as a ``cooperating agency''
-- Alabama--February 10, 2015 (See page 17 for a copy of
this letter, submitted as part of Mr. Johnson's
testimony)
-- Indiana--July 7, 2015
-- Kentucky--May 13, 2015
-- Montana--July 9, 2015
-- New Mexico--February 20, 2015
-- Texas--March 12, 2015
-- Utah--February 23, 2015
-- West Virginia--May 19, 2015
-- Wyoming--May 22, 2015
Other Articles Relating to Impacts of Mountaintop Mining
-- The Influence of Misclassification Bias on the Reported
Rates of Congenital Anomalies on the Birth
Certificates for West Virginia--A Consequence of an
Open-ended Query. Ji Li, Shayhan Robbins, and
Steven H. Lamm. Birth Defects Research (Part A):
Clinical and Molecular Teratology 97:140-151
(2013).
-- Are Residents of Mountain-Top Mining Counties More
Likely to Have Infants with Birth Defects? The West
Virginia Experience. Steven H. Lamm, Ji Li, Shayhan
A. Robbins, Elisabeth Dissen, Rusan Chen, and
Manning Feinleib. Wiley Periodicals, Inc. (November
12, 2014).
-- Study finds toxins from mountaintop coal mining sites.
Alice Su. The Center for Public Integrity (July 20,
2012).
-- The association between mountaintop mining and birth
defects among live births in central Appalachia,
1996-2003. Melissa M. Ahern, Michael Hendryx,
Jamison Conley, Evan Fedorko, Alan Ducatman, and
Keith J. Zullig. Environmental Research (May 19,
2011).
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