[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

                               __________

       Printed for the use of the Committee on Natural Resources


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


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

                                  ______

                         U.S. GOVERNMENT PUBLISHING OFFICE 

94-775 PDF                     WASHINGTON : 2016 
-----------------------------------------------------------------------
  For sale by the Superintendent of Documents, U.S. Government Publishing 
  Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; 
         DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, 
                          Washington, DC 20402-0001
                          










      

                     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\
---------------------------------------------------------------------------
    \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).

                                 [all]