[Senate Hearing 114-463]
[From the U.S. Government Publishing Office]





                                                        S. Hrg. 114-463
 
 THE DEVELOPMENT AND POTENTIAL IMPLEMENTATION OF THE OFFICE OF SURFACE 
 MINING, RECLAMATION, AND ENFORCEMENT'S PROPOSED STREAM PROTECTION RULE

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

                                HEARING

                               BEFORE THE

                              COMMITTEE ON
                      ENERGY AND NATURAL RESOURCES
                          UNITED STATES SENATE

                    ONE HUNDRED FOURTEENTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 27, 2015
                            
                            
                            
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               COMMITTEE ON ENERGY AND NATURAL RESOURCES

                    LISA MURKOWSKI, Alaska, Chairman
JOHN BARRASSO, Wyoming               MARIA CANTWELL, Washington
JAMES E. RISCH, Idaho                RON WYDEN, Oregon
MIKE LEE, Utah                       BERNARD SANDERS, Vermont
JEFF FLAKE, Arizona                  DEBBIE STABENOW, Michigan
STEVE DAINES, Montana                AL FRANKEN, Minnesota
BILL CASSIDY, Louisiana              JOE MANCHIN III, West Virginia
CORY GARDNER, Colorado               MAZIE K. HIRONO, Hawaii
ROB PORTMAN, Ohio                    ANGUS S. KING, JR., Maine
JOHN HOEVEN, North Dakota            ELIZABETH WARREN, Massachusetts
LAMAR ALEXANDER, Tennessee
SHELLEY MOORE CAPITO, West Virginia
                    Karen K. Billups, Staff Director
                Patrick J. McCormick III, Chief Counsel
                         Heidi Hansen, Counsel
            Angela Becker-Dippman, Democratic Staff Director
                Sam E. Fowler, Democratic Chief Counsel
           Spencer Gray, Democratic Professional Staff Member
           
           
                            C O N T E N T S

                              ----------                              

                           OPENING STATEMENTS

                                                                   Page
Murkowski, Hon. Lisa, Chairman and a U.S. Senator from Alaska....     1
Cantwell, Hon. Maria. Ranking Member and a U.S. Senator from 
  Washington.....................................................     2
Barrasso, Hon. John, a U.S. Senator from Wyoming.................     4

                               WITNESSES

Schneider, Hon. Janice, Assistant Secretary, Land and Minerals 
  Management, U.S. Department of the Interior....................     4
Huffman, Randy, Cabinet Secretary, West Virginia Department of 
  Environmental Protection.......................................    19
Hecker, Jim, Environmental Enforcement Director, Public Justice..    31
Parfitt, Todd, Director, Wyoming Department of Environmental 
  Quality........................................................    38
Quinn, Hal, President and CEO, National Mining Association.......    45

          ALPHABETICAL LISTING AND APPENDIX MATERIAL SUBMITTED

Barrasso, Hon. John:
    Opening Statement............................................     4
Cantwell, Hon. Maria:
    Opening Statement............................................     2
Center for Biological Diversity:
    Letter for the Record........................................   144
Hecker, Jim:
    Opening Statement............................................    31
    Written Testimony............................................    33
Huffman, Randy:
    Opening Statement............................................    19
    Written Testimony............................................    21
Manchin III, Hon. Joe:
    Chart entitled ``2013 State Net Energy Independence''........    62
    Chart entitled ``2012 State Net Energy Independence''........    64
Montana Coal Council:
    Letter for the Record........................................   191
Murkowski, Hon. Lisa:
    Opening Statement............................................     1
National Parks Conservation Association and the Southern 
  Environmental Law Center:
    Letter for the Record........................................   207
Parfitt, Todd:
    Opening Statement............................................    38
    Written Testimony............................................    40
    Responses to Questions for the Record........................   126
Quinn, Hal:
    Opening Statement............................................    45
    Photo........................................................    46
    Written Testimony............................................    48
    Responses to Questions for the Record........................   131
Salazar, Hon. Ken:
    Letter to Idaho Governor Butch Otter dated April 15, 2011....   285
Schneider, Hon. Janice:
    Opening Statement............................................     4
    Written Testimony............................................     7
    Responses to Questions for the Record........................    85
Sierra Club, et al:
    Letter for the Record........................................   210
U.S. Senate:
    Letter to the Office of Surface Mining Reclamation and 
      Enforcement (OSMRE) dated August 7, 2015 requesting an 
      extension to respond to the proposed ``Stream Protection 
      Rule''.....................................................   287


 THE DEVELOPMENT AND POTENTIAL IMPLEMENTATION OF THE OFFICE OF SURFACE 
 MINING, RECLAMATION, AND ENFORCEMENT'S PROPOSED STREAM PROTECTION RULE

                              ----------                              


                       Tuesday, October 27, 2015

                               U.S. Senate,
         Committee on Energy and Natural Resources,
                                            Washington, DC.
    The Committee met, pursuant to notice, at 9:06 a.m. in Room 
SD-366, Dirksen Senate Office Building, Hon. Lisa Murkowski, 
Chairman of the Committee, presiding.

  OPENING STATEMENT OF HON. LISA MURKOWSKI, U.S. SENATOR FROM 
                             ALASKA

    The Chairman. Good morning. The Committee will come to 
order.
    We are here this morning to discuss a very important topic, 
the Interior Department's rule making to significantly revise 
its existing stream protection regulation under the Surface 
Mining Control and Reclamation Act (SMCRA). This proposed rule 
was published in the Federal Register in July. It has clearly 
risen to a level of controversy that I think we will hear 
reflected this morning before the Committee.
    This Committee has spent some time this year examining the 
Administration's action and resulting Federal overreach. I 
think what we are seeing with this particular rule, again, is a 
rule that has generated a level of controversy and concern, and 
the purpose for this hearing this morning is to review and 
discuss it.
    For the proposed Stream Protection Rule, those affects have 
been quantified. There is, clearly, some disagreement in terms 
of our numbers here, so I think it is important that we look to 
some of what we have been given. The coal industry estimates 
that between 40,000 and 78,000 direct jobs could be lost. That 
is on top of the almost $29 billion in lost annual resource 
value and up to as much as $6.4 billion in foregone State and 
Federal revenue.
    Now for its part, the Interior Department concedes that the 
rule would cost industry $52 million in annual compliance costs 
but somehow calculates that into a loss of only a maximum of 
590 jobs. So you have a wide, wide discrepancy in terms of 
number of jobs and the revenues that we are discussing. It is 
going to be interesting and, I think, important to get down to 
some accurate numbers.
    To date, the Administration has reportedly spent over $10 
million in taxpayer funds preparing for this proposal. I would 
like to find out, okay, $10 million--what have we seen as a 
consequence of that expenditure?
    The scientific studies that reportedly justify the proposed 
rule appear anemic at best. Studies with concentrated focus on 
a single geographic region are hardly a representative sample 
that can be applied nationwide. I doubt very much that the 
Interior Department bothered to conduct any research in Alaska 
where climate and permafrost alone will likely prohibit 
compliance with the new regulation, if finalized.
    I am concerned with what appears to be limited stakeholder 
involvement in the development of the proposal despite the 
Administration's assurances to the contrary. Our state partners 
share responsibility for implementing SMCRA, and it is my 
understanding that they have been trying to engage with the 
Department on these issues for the past four years without 
success.
    Finally, I question the legal underpinnings of the proposed 
rule, particularly as the rule pertains to the Clean Water Act 
as well as the proposal's ill-defined requirements that the 
states will have to enforce. I fear the end result of this 
process will be never ending litigation at taxpayer expense.
    We have a lot to cover this morning. We do have a series of 
five votes that begin at 11 o'clock, so it is my intention to 
try to move through all the witnesses, get through members' 
questions and hopefully we will be able to wrap up before the 
votes commence at 11 o'clock.
    With that, I turn to Ranking Member Cantwell for her 
opening comments.

 STATEMENT OF HON. MARIA CANTWELL, U.S. SENATOR FROM WASHINGTON

    Senator Cantwell. Thank you, Madam Chair, and thank you for 
holding this important hearing on the Stream Protection Rule.
    The Department of the Interior's Office of Surface Mining 
Reclamation Enforcement has worked hard on this rule for six 
years to update regulations that really should have been on the 
books for the last 32 years, so I hope our conversation today 
can provide constructive input to Ms. Schneider and her 
colleagues at the Department of the Interior on the proposed 
rule.
    I know these issues are hard. I know that with any debate 
you have to start with scientific data that is available. I 
know for us in the Pacific Northwest we made substantial 
investments in hydropower after we learned the impacts on 
salmon.
    It took us decades of hard battles involving many 
stakeholders before we started mitigating the impacts on our 
main source of the environment and electricity. So if you look 
at the salmon runs today versus 20 years ago, the change is 
remarkable and very positive. We wouldn't have gotten there, 
though, without everybody working together and major new 
investments.
    So as we look at these issues, we need to understand you 
just can't pollute the environment and run. It is the ultimate 
test of fairness in the minds of many of my constituents that 
we make sure polluters pay for environmental damages. In my 
view, without the Stream Protection Rule, we would be allowing 
the coal industry to continue business as usual.
    I have many concerns with our coal policy in general, but 
we'll leave those for another Committee discussion. But you can 
say that typically we lease a ton of Federal coal for less, a 
dollar or less, and the taxpayer gets a dollar. Then years 
later we have to deal with about two tons of carbon dioxide 
from the one ton of coal. And the Government's current best 
guess is that two tons of carbon pollution will cost the 
American public over $70 in damages. So what can we do to 
mitigate this issue?
    The Stream Protection Rule is first and foremost about 
water quality. It's about holding the industry consistent 
baseline standards of protection and reclamation. When Congress 
passed SMCRA in 1977, the Clean Water Act was already on the 
books. But Congress understood that strip mining had a 
significant and growing impact that was in need of its own 
statute.
    So what we're going to hear from Mr. Huffman shows that 
data in West Virginia alone, the incidents of valleys fills 
from mountain top mining increased from 330 in 1984 to 1,821 in 
2009, resulting in over 680 miles of buried headwater streams.
    Our understanding of the impacts of mining has also 
changed. Biologists have found that streams downstream of 
valleys fill in the Appalachia support just half of the number 
of fish species they should. Scientists have also studied the 
long-term impacts and effects of mountain top mining approved 
under existing state programs. The results are in. A study 
found that ``sustained ecological damage in the headwater 
streams draining valleys fills long after reclamation was 
completed.'' Given these facts, Interior has an obligation to 
modernize its SMCRA rules. I want to emphasize that the Stream 
Protection Rule is important for the entire nation. Even my own 
state is dealing with the legacy of coal.
    There are over 250 abandoned coal mines in Washington, and 
these are from all over the state. We even have one in King 
County. There are more, probably, to be even mapped. As 
recently as 2003, Washington produced over six million tons of 
coal per year from surface mines that are now being reclaimed, 
so it isn't just coal country on the hook under these new 
regulations. I want to make sure that we're doing everything we 
can to clean our waters.
    As we're seeing the industry today, coal companies are not 
too big to fail. I think that will be part of the discussion 
this morning with over $3 billion of outstanding self-bonds we 
should all be worried about who picks up the tab. This was an 
issue in our state with ASARCO. When ASARCO went bankrupt, they 
left with backyards all through Tacoma torn up trying to get 
rid of pollution. Then they just literally walked off the job. 
So to me this is a very important issue to understand. Who is 
going to be responsible?
    Madam Chair, I think I'll conclude there, and just say that 
I hope that during today's hearing that we'll have an important 
discussion on this. I know previously when President Ford 
vetoed a weaker bill they said well we're going to lose all 
these jobs. We ended up in 1977 producing a stronger bill. In 
that bill saw an increase in coal production. So I think the 
issues are here. We want to get this right so that everybody 
can be assured that polluters are paying and that we're moving 
forward with clean water in the United States.
    Thank you very much.
    The Chairman. Thank you, Senator Cantwell.
    Before we begin the general introductions I would ask that 
Senator Barrasso introduce one of our witnesses today from the 
State of Wyoming.

   STATEMENT OF HON. JOHN BARRASSO, U.S. SENATOR FROM WYOMING

    Senator Barrasso. Thank you very much, Madam Chairman.
    I would like to welcome to the Committee today Todd 
Parfitt, who is the Director of the Wyoming Department of 
Environmental Quality. He lives in Cheyenne, and he has spent 
the last 21 years at the Wyoming DEQ, and the last three years 
as Director.
    Many mistakenly believe that this rule, the subject of 
today's hearing, will only affect coal production in 
Appalachia. That is simply not the case. This rule will cost 
thousands of jobs across the country, including many jobs in 
Wyoming. For that reason, I am very grateful that Todd is here 
to testify and to share his expertise with the Committee.
    Thank you, Madam Chairman.
    The Chairman. Thank you, Senator Barrasso.
    With that, we will begin with the general introductions. I 
would ask each of you to try to limit your comments to five 
minutes or less. Your full written statements will be included 
as part of the record.
    We are joined this morning by the Honorable Janice 
Schneider, the Assistant Secretary for Land and Minerals 
Management at the U.S. Department of the Interior.
    We are also joined by Mr. Randy Huffman, who is a Cabinet 
Secretary for the West Virginia Department of Environmental 
Protection.
    We have Mr. Jim Hecker, who is the Director of 
Environmental Enforcement Project for the Public Justice.
    Mr. Todd Parfitt, again from Wyoming, has been introduced 
by Senator Barrasso. He is from the Department of Environmental 
Quality.
    Finally we have before the Committee Mr. Hal Quinn, who is 
the President and CEO of the National Mining Association.
    Ms. Schneider, gentlemen, welcome to the Committee. With 
that, Ms. Schneider, if you would like to kick off here this 
morning?

 STATEMENT OF HON. JANICE SCHNEIDER, ASSISTANT SECRETARY, LAND 
    AND MINERALS MANAGEMENT, U.S. DEPARTMENT OF THE INTERIOR

    Ms. Schneider. Thank you, Chairman Murkowski and members of 
the Committee and thank you for the opportunity to testify 
today on the proposed Stream Protection Rule.
    The proposed Stream Protection Rule includes reasonable and 
straight forward reforms to revise 30-year old regulations for 
coal mining. The proposed rule recognizes, as the Energy 
Information Administration (EIA) does in its forecast, that 
coal mining and coal-fired electricity production will be a 
part of our energy mix for decades to come. And so the proposed 
rule is designed to keep pace with current science, technology 
and modern mining practices while also safeguarding communities 
from the long term effects of pollution and environmental 
degradation that endanger public health and undermine future 
economic opportunities.
    Every Reclamation practice contained in the proposed rule 
has been successfully implemented by a mine operator somewhere 
in this country. Through this proposed rule we are leveraging 
innovations of the industry by adopting best practices 
developed over the last 30 years to improve the regulations. I 
would like to stress that this is a proposed rule. It has been 
available for public review and comment for close to three and 
a half months including one extension of the comment period 
that was already granted.
    We have actively sought public comment in some of the most 
impacted areas of the country holding six public hearings last 
month, and to date there have been more than 94,000 comments 
received on the proposed rule. We will evaluate all comments 
received in detail in developing a final rule.
    In 1977 Congress enacted SMCRA which established a program 
to regulate coal mining. Over the years OSMRE has adopted four 
different sets of regulations on the topic we are discussing 
today, most recently in 2008. Last year, however, a Federal 
court vacated the 2008 rule due to Endangered Species Act 
violations and ordered reinstatement of the 1983 version of the 
Stream Buffer Zone Rule. That rule was adopted over 30 years 
ago, and it is the base for state programs today.
    We have learned a great deal over the last three decades 
about the impacts of coal mining operations and how to prevent 
it. We believe that the proposed rule strikes an appropriate 
balance between environmental protection, agricultural 
productivity and the nation's need for coal as an essential 
source of energy while providing greater regulatory certainty 
for the mining industry.
    OSMRE's outreach to stakeholders identified seven key areas 
for improvement to uphold the obligations SMCRA. The time 
allotted does not allow for me to elaborate on all of these key 
areas, but they are described in my written statement. I would 
like to highlight the key aspects of the proposed revisions.
    They include a better understanding of baseline conditions 
at mining sites, improved monitoring, clarity on what 
constitutes material damage to the hydrologic balance outside 
the permit area and enhanced materials handling and restoration 
requirements designed to take into account advances in 
information technology, science and methodologies over the last 
three years, excuse me, 30 years.
    We have used a highly experienced team to develop the draft 
Regulatory Impact Analysis (RIA) for the proposed rule. Among 
the many benefits the draft RIA estimates that for the period 
from 2020 to 2040 thousands of miles of streams will be in 
better condition if the proposed rule is adopted and nearly 
60,000 acres would be reforested or reforested in an approved 
manner.
    Consistent with EIA forecasts the draft RIA finds that 
while coal will be a part of our energy mix well into the 
future, coal production is expected to decline even under the 
existing regulations. This is being driven by market conditions 
including the low price of natural gas which are anticipated to 
result in a further decline in demand for coal and reduced 
coal, annual coal production, of approximately 15 percent.
    The draft RIA estimates that over the same period the 
proposed rules economic effects are minimal. Annual coal 
production is anticipated to be reduced by only 0.2 percent and 
total coal production related job losses estimated at 260 jobs 
would be largely offset by increases in compliance related jobs 
estimated at 250 jobs.
    The draft RIA also estimates that industry compliance costs 
are small as is the rule's impact on electricity prices for 
utilities.
    Thank you for the opportunity to appear before the 
Committee today and testify on the proposed stream protection 
rule. The proposed rule reflects what Americans expect from 
their government, a modern and balanced approach to energy 
development that safeguards our environment, protects water 
quality, supports the energy needs of our nation and makes coal 
filled communities more resilient for a diversified economic 
future for generations to come.
    I would be happy to answer your questions.
    [The prepared statement of Ms. Schneider follows:]
    
    
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    The Chairman. Thank you, Ms. Schneider.
    Mr. Huffman, welcome.

 STATEMENT OF RANDY HUFFMAN, CABINET SECRETARY, WEST VIRGINIA 
             DEPARTMENT OF ENVIRONMENTAL PROTECTION

    Mr. Huffman. Thank you, Chairman Murkowski, Senator Capito, 
good to see you again, and members of the Committee, good 
morning. Thank you for the opportunity to speak on behalf of 
West Virginia concerning OSM's proposed Stream Protection Rule.
    As Cabinet Secretary for the West Virginia DEP, the agency 
responsible for regulating coal mining in the mountain state, I 
am very concerned about the impacts this rule would have on 
West Virginia and our nation. West Virginia has had laws 
addressing the environmental effects of mining since the 1930s 
and has been a primacy state for implementation of the Surface 
Mining Acts since 1981. This experience makes West Virginia 
uniquely qualified to speak about the proposed Stream 
Protection Rule.
    OSM worked on this proposed rule and the accompanying draft 
environmental impact statement and draft regulatory impact 
analysis for over five years. These documents, together, make 
up more than 3,000 pages of very complex material, material 
that represents, based on our initial review, the most 
significant rewrite of Surface Mining Act regulations since 
they first went into effect.
    The proposed Stream Protection Rule is an ill-conceived, 
unlawful overreach. It would effectively override a long-
standing act of Congress and, therefore, should not be adopted 
without a Congressional mandate. When the Surface Mining Act 
was enacted nearly four decades ago, Congress stated that one 
of the expressed purposes of the act was to assure that the 
coal supply, essential to the nation's energy requirements and 
to its economic and social well being, would be provided.
    Congress also said there must be a balance between the 
protection of the environment and agricultural productivity and 
the nation's need for coal as an energy source. Yet, this 
proposed rule does not take that need into account. What OSM is 
proposing would impose costly, new regulatory burdens without 
any established necessity for them. That balance that Congress 
intended to remain in place would be erased. In its place would 
be a law that is contrary to the very spirit of SMCRA.
    One of the most obvious shortcomings of the rule is that it 
is full of unlawful conflicts with Federal and State clean 
water laws. The Surface Mining Act makes it clear that nothing 
in the act should be allowed to supersede, amend, modify or 
repeal the Clean Water Act or any state laws adopted to 
implement it. The Surface Mining Act is meant to take a back 
seat to both Federal and State laws when there are conflicts.
    The Clean Water Act gives the states primary responsibility 
for the development of water quality standards including 
designated uses of the waters of the state and water quality 
criteria based on such uses. The U.S. EPA, not OSM, can 
promulgate a water quality standard for a state and then only 
in limited circumstances. There are multiple instances 
throughout this stream rule in which existing Federal and State 
laws related to water quality standards would be usurped.
    The rule also contradicts the primacy authority of states. 
For instance, the proposal would insert the U.S. Fish and 
Wildlife Service into state level permit decisions. It also 
unlawfully merges Clean Water Act and Surface Mining Act permit 
requirements which, we believe, would inevitably lead to OSM 
seeking oversight of those merged permits.
    Additionally, the permit process OSM seeks to establish 
with this rule violates the Surface Mining Act by eliminating 
the exclusive regulatory jurisdiction of the states. The 
Surface Mining Act provides for either state regulation of 
surface coal mining or Federal regulation, not both.
    Also, in developing this rule, OSM flouted the cooperating 
agency process. It enlisted the cooperation of ten state 
regulatory agencies including the West Virginia DEP in drafting 
an environmental impact statement, yet shortly after bringing 
those states on board, it excluded them from the process even 
though this rule will drastically affect how those states 
regulate mining.
    Essentially, OSM conducted the NEPA process for the Stream 
Rule for more than four years by itself in secret. The Federal 
agency was apparently not willing to consider comments or 
challenges by state regulators who were ready, willing and able 
to participate. The Stream Protection Rule is an unnecessary 
and, we believe, uncalled for political gesture.
    What prompted OSM to make these changes? There were no 
demands from Congress that OSM conform to congressional intent 
nor was there an outcry from state regulators demanding fixes 
for broken regulatory programs. There is nothing throughout the 
history of the Surface Mining Act to indicate a need for this 
radical rewrite of the regulations.
    In conclusion, we believe the proposed Stream Rule is 
actually illegal. It subverts Federal statutory authority and 
state primacy jurisdiction, and it upsets the balance Congress 
intended to create between environmental protection and coal 
production. Therefore, West Virginia DEP wholeheartedly 
believes OSM should withdraw this rule and abandon this 
rulemaking effort.
    Thank you.
    [The prepared statement of Mr. Huffman follows:]
    
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    The Chairman. Thank you, Mr. Huffman.
    Mr. Hecker, welcome.

 STATEMENT OF JIM HECKER, ENVIRONMENTAL ENFORCEMENT DIRECTOR, 
                         PUBLIC JUSTICE

    Mr. Hecker. Chairman Murkowski and members of the 
Committee, thank you for the opportunity to testify about OSM's 
proposed Stream Protection Rule.
    For the past 17 years I have litigated mountain top mining 
cases on behalf of environmental groups in Federal Courts in 
the Appalachia region. The cases have focused on the harm to 
streams caused by valley fills and mine runoff. I believe that 
a stronger stream protection rule is needed.
    The existing rules for protecting streams are over 30 years 
old. They do not incorporate the best available science. They 
are not preventing serious, persistent and unmitigated 
environmental harm. In Appalachia two of the most serious harms 
are stream burial and stream degradation.
    First, about 1,000 miles of streams in Appalachia have been 
buried by valley fills on mountaintop mining sites. Efforts to 
compensate for that loss have mostly failed. A recent peer 
reviewed, scientific study concluded that mitigation is not 
replacing lost or degraded streams or their functions.
    Second, mine drainage contains toxic chemicals like 
selenium and dissolved salts like sulfate that harm fish and 
aquatic life. The sulfate and dissolved salts in streams below 
valley fills are often 30 to 40 times higher than the levels in 
un-mined streams. EPA found in 2009 that 90 percent of the 
streams below valley fills were biologically impaired.
    The excessive selenium is only being treated and removed at 
a fraction of mine sites. The elevated conductivity from 
dissolved salts is not being treated anywhere. This pollution 
will persist long after mining is completed. One recent study 
found that it has persisted for 30 years after reclamation. In 
short, the harms are serious and persistent, and mitigation is 
not working.
    Compounding this problem is the fact that several large 
coal companies have recently declared bankruptcy. One large 
bankrupt company listed a selenium treatment liability of $411 
million that it did not plan to cover. These continuing costs 
for long-term treatment will fall on an already overburdened 
state bonding system that is--that cannot even handle existing 
problems.
    The OSM Stream Protection Rule contains four provisions 
that I support and would significantly improve the existing 
rules.
    First, the proposed rule requires more extensive monitoring 
of water quality and stream flow. This information is essential 
to establish baseline conditions and to monitor adverse affects 
after mining begins.
    Second, the proposed rule would improve two aspects of 
mining impact analysis, the requirement to avoid material 
damage and the requirement to conduct a thorough pre-permit 
analysis of hydrologic impacts. Existing rules do not define 
these requirements well. The proposed rule would require site 
specific numerical damage criteria and make those two 
requirements much more specific and enforceable.
    Third, the proposed rule would require mine operators to 
restore both the hydrologic form and the ecological functions 
of streams disturbed by mining. Presently mines only have to 
restore form, just the structure of the stream, not the 
function, not the biological health of the stream. Restoring 
both will increase the chance that stream health is restored.
    Fourth, the proposed rule strengthens bonding requirements 
by requiring financial assurance that long term pollution 
discharges will be treated.
    There is one important area that I want to highlight where 
the proposed rule should be clarified and strengthened. The 
most important principle is making sure mining activities have 
to comply with water quality standards. Those standards are the 
foundation for protecting water quality under both the Clean 
Water Act and SMCRA.
    Coal mining states have often allowed mining companies to 
evade compliance with the standards for selenium and biological 
integrity. It is essential the proposed rule impose a clear 
requirement to comply with those standards and make that 
requirement directly enforceable by citizens.
    In conclusion, while I think that the proposed rule would 
be an improvement, it is not a complete solution to the 
problem. Many mountaintop mining impacts are permanent or of 
very long duration and the measure OSM is proposing would help 
but not completely fix that. The rule does not prevent stream 
burial and its proposed methods for reducing dissolved salts 
and sulfate are not likely to be successful.
    The best solution is not filling or mining through streams 
in the first place.
    Thank you.
    [The prepared statement of Mr. Hecker follows:]
    
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    The Chairman. Thank you, Mr. Hecker.
    Mr. Parfitt, welcome.

  STATEMENT OF TODD PARFITT, DIRECTOR, WYOMING DEPARTMENT OF 
                     ENVIRONMENTAL QUALITY

    Mr. Parfitt. Thank you and good morning, Chairman 
Murkowski, Ranking Member Cantwell and members of the Senate 
Energy and Natural Resources Committee. My name is Todd 
Parfitt. I am the Director of the Wyoming Department of 
Environmental Quality.
    I thank the Committee for inviting the State of Wyoming to 
share our perspective on the development of the proposed Stream 
Protection Rule by the Office of Surface Mining Reclamation 
Enforcement, or OSM.
    In Wyoming, we manage our natural resources exceptionally 
well providing for both environmental stewardship and energy 
production. As our Governor, Matt Mead, has stated, ``It is a 
false question to ask do we want energy production or 
environmental stewardship. In Wyoming, we must and do have 
both.''
    In August 2010, Wyoming entered into a memorandum of 
understanding with OSM to become a cooperating state agency in 
the NEPA process on the draft environmental impact statement 
that OSM intended to prepare in support of the Stream 
Protection Rule. OSM entered into similar MOUs with nine other 
states. OSM provided Wyoming and other states the opportunity 
to review three draft chapters of the EIS, two in late 2010 and 
one in early 2011. Even though the review period was 
exceedingly short, Wyoming made efforts to review the documents 
and provide comments back to OSM.
    The initial review of those early chapters was the last 
involvement Wyoming was provided as a cooperating agency. The 
cooperating agency process provided OSM an opportunity to take 
advantage of the wealth of knowledge residing within the states 
to shape an appropriate and well-written draft EIS and draft 
rule. Unfortunately, OSM chose to disengage with the states and 
this opportunity was not realized.
    OSM's lack of engagement is frustrating not only because 
the MOU was not honored, but also because the lack of 
engagement since January 2011 is in direct conflict with the 
commitment made by Secretary of the Interior, Ken Salazar, in 
an April 15, 2011 response to the Western Governors' 
Association in which he states, ``All cooperating agencies will 
have an additional opportunity to review and comment on a 
preliminary draft EIS before it is published for public review 
and comment.''
    This never happened. The draft EIS and draft rule were 
published without the opportunity for review and comment that 
we were promised. Given the failure of OSM to effectively 
engage with the states, eight of the ten cooperating states 
withdrew from their MOUs and abandoned the cooperating agency 
process earlier this year.
    While tempted, Wyoming did not withdraw from its 
cooperating agency status. Wyoming did send a letter to OSM on 
May 22nd expressing serious disappointment with the process and 
concerns that the state's views were being ignored.
    I received a reply on October 19, 2015. The response letter 
extended an invitation to review draft responses to public 
comments received on the draft EIS and rules specific to our 
state and region. I find this to be a hollow gesture given the 
loss of trust experienced during the pre-draft process.
    Wyoming did not withdraw from the cooperating agency 
process because, amongst other things, we remained optimistic 
that OSM would honor their commitment and the commitment of 
Secretary Salazar. We were also concerned about potentially 
losing standing in any legal challenges that may arise out of 
the faulty NEPA process.
    Wyoming has reviewed the materials distributed by OSM on 
July 27, 2015 and I will share a few of our main concerns. OSM 
has used a court order and an agreement with other Federal 
agencies that were into tackling a problem in Appalachia as an 
excuse to then pose unnecessary and costly overregulation 
across all coal mining states. The proposed rule is a one-size-
fits-all regulation, imposing nationwide standards without 
consideration for the fundamental regulatory, environmental, 
ecological or economic differences amongst the states.
    The Regulatory Impact Analysis grossly underestimates the 
financial impact of implementing the new standards and grossly 
underestimates the impact of the proposed rule on Wyoming and 
Federal tax revenue, understating that impact by more than $1.3 
million per year.
    The proposed rule also imposes extensive monitoring and 
reclamation requirements without sound scientific 
justification.
    In summary, the failure of OSM to engage cooperating agency 
states throughout this process is reflected in the poor quality 
of the proposed rule and inaccuracies in the draft EIS and 
regulatory impact analysis. OSM should withdraw the rule and 
work in a meaningful way with the states to put forth a more 
appropriate proposal. I ask the Committee for any help that it 
may provide in securing that outcome.
    Thank you for the opportunity to provide Wyoming's 
perspective on these important matters. I look forward to your 
questions.
    [The prepared statement of Mr. Parfitt follows:]
    
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    The Chairman. Thank you, Mr. Parfitt.
    Mr. Quinn, welcome back to the Committee.

  STATEMENT OF HAL QUINN, PRESIDENT AND CEO, NATIONAL MINING 
                          ASSOCIATION

    Mr. Quinn. Thank you, Chairman.
    Good morning, Chairman Murkowski and members of the 
Committee. I appreciate the invitation to testify before you 
today on the Stream Protection Rule.
    I think that there is one thing clear from the testimony we 
have heard, and also from the history of this rule and what we 
see today. If truth-in-advertising laws applied to regulations, 
then the title ``Stream Protection Rule'' should be taken off 
the cover of this regulation.
    The process began focusing on a single rule called the 
Stream Buffer Zone Rule. It is four or five lines. Today we 
confront a thousand pages of proposed regulatory changes, 
changing 475 regulations, and adding more. This is over a dozen 
pages from the Federal Register notice containing the rule. A 
dozen pages simply list all the regulations that are proposed 
to be changed or added in single space in single type. That's 
just the list of rules.
    This is not about stream protection at all. Many of the 
changes OSM is now attempting to make are duplicative. They 
show OSM attempting to hijack and interfere with the program 
missions of other Federal and State agencies, including the 
Environmental Protection Agency, the Army Corps of Engineers 
and, of course, the states, who have been the on-the-ground 
regulators for the past 30 years for 97 percent of the coal 
production in this country. The rest of the changes reveal an 
agency desire to simply undo 30 years of regulatory history and 
many of which are just brazen attempts to amend the law itself.
    Reading the rule gives one the impression that somebody 
came into office and decided, ``How would I have written the 
law had I been in Congress when it was being debated?'' In 
addition, ``How would I have decided many of the cases that 
have occurred under this Act before the Federal Courts had I 
been a Federal judge at that time?''
    I often hear about how this program needs to be updated. It 
hasn't been updated in 30 years.
    This is a photograph of all, no, actually not all, but most 
of the regulatory changes over the past 25 years. This is a 
foot tall.
    [The information referred to follows:]
    
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    So, it is not as if this program has been stagnant for the 
last 30 years.
    And, of course, the state regulatory authorities have been 
constantly innovating and updating their programs as we move 
forward. Not to mention that many regulations proposed to being 
added here relate to what EPA and the Army Corps already do on 
water quality. OSM is really trying to duplicate and interfere 
with their missions.
    When it comes to the need, a question that is often heard 
is, ``What is the need of this rule?'' Over the past six years, 
the explanations offered by OSM have constantly changed. As 
each explanation has not withstood scrutiny, they've just 
rolled out another one.
    But one thing has been constant throughout this process. 
That's the ever-continuing improvement on the ground. OSM's old 
records show that 90 percent of the operations in this country 
operate without any adverse offsite impacts. In fact, as my 
testimony shows in a chart, 75 percent of the coal production 
occurs in states without any--their operations have no or 
virtually no--offsite impacts at all.
    So, I think, it's an understatement to say this is not a 
rule designed to address a problem, rather it's a rule that's 
actually searching for one.
    So what will be the accomplishments under this rule? Well, 
from our perspective, there's one thing that is certain, that's 
separating more coal miners from their jobs.
    A study of this rule that we commissioned shows that at 
least 43,000 coal miners will lose their jobs, and that total 
could rise as high as 78,000. You roll in the other jobs that 
depend on the coal industry because of services and products 
they sell the industry, as well as downstream industries that 
depend on the industry, and what it produces, that total could 
rise to over a quarter of a million jobs over time.
    This rule would also place off limits anywhere from a 
third- to two-thirds of the nation's recoverable coal reserves. 
We're talking about the reserves, the largest reserves of a 
single energy source in any country on the globe.
    One of the more stunning outcomes of this rule is that it 
would actually have a greater impact on underground coal mines. 
I say stunning because the original reason for the rulemaking 
was surface mining in three states, and SMCRA actually has the 
stated purpose to encourage underground mining.
    There is also one unintended consequence. This will, in our 
view, showcase why the agency has become increasingly 
irrelevant and unnecessary. States on the ground have been on-
the-ground regulators for 30 years. In that time, on-the-ground 
performance improved and offsite impacts have diminished. So if 
there's anything the agency in their proposal share in common 
is that they're both looking for a purpose. We will just say 
that whatever midlife crisis the agency is going through, coal 
miners should not have to pay for it with their jobs.
    Thank you very much, Chairman.
    [The prepared statement of Mr. Quinn follows:]
    
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    The Chairman. Thank you, Mr. Quinn. Thank you all for your 
comments here this morning.
    Let me start by trying to divine, a little bit better, 
where we are when we are talking about the estimate of costs 
and the impact to jobs. Both Ms. Schneider and you, Mr. Quinn, 
have touched on this.
    Ms. Schneider, the Interior Department estimates the 
proposed rule will cost industry $52 million in annual 
compliance. Interior calculates 41 to 590 coal-related jobs 
would actually be lost. Then you contrast this with what the 
industry is claiming which, as you have indicated, I think you 
said, Mr. Quinn, 43,000 jobs in that range to potentially 
78,000 jobs.
    You have both ends of the table. This is a huge divergence 
in terms of numbers here. How do you reconcile what industry 
has suggested versus what Interior has suggested?
    Ms. Schneider and then Mr. Quinn?
    Ms. Schneider. Chairman, thank you for that question.
    I've had the opportunity to take a look at the report that 
was issued by the National Mining Association yesterday. Based 
on my review it assumes, the analysis appears to assume, that 
the proposed rule would prohibit long wall mining. That is not 
correct. And all of the numbers on job losses appear to flow 
from very conservative estimates that long wall mining would 
not be allowed.
    There are also a lot of estimates with respect to 
ephemeral, the impacts of ephemeral streams that, I think, are 
also assumptions that result in an extraordinary overestimate 
in the job losses as well as other impacts associated with coal 
production.
    The rule does not propose to do those things. And 
obviously, you know, we'll take a closer look at the material 
that they provided and we'll be in a position to make any 
clarifications. But I think that's really the basis for it, the 
distinctions.
    The Chairman. Okay.
    Mr. Quinn, your response to that?
    Mr. Quinn. Well there are two differences between the 
studies. The OSM study actually is based on hypothetical mines. 
Mines that they actually hypothetically came up with and then 
they spin their view of what the rule means.
    Our study is based on actual mines. We went out to 36 
actual operating mines in every part of the country, 
underground and surface. So it is based on actually going to 
the mines, talking to the engineers and talking to the 
management people about how this rule would apply. The ranges 
are there because the low range is what would be the least 
problematic interpretation of the regulations and questions. 
The higher one is potentially where we'd see subjective 
judgment used. And there's often, in this regulation, some 
vague terms that will do that.
    The only thing else I will add is that I'm, and I think the 
industry and others will be, very skeptical of any numbers 
coming out from the agency. After all, this was an agency that 
fired a contractor who was the first contractor on this project 
because they declined to change assumptions to lower the job 
impacts to begin with on an earlier rule, which was much more 
modest than this rule.
    The Chairman. Let me ask another question of you, Ms. 
Schneider. This is the concern that I have heard expressed 
coming from folks in Alaska. Under the proposed rule, a mine 
permit would be void retroactively to the date of issuance if 
the issuance is found to have been based on substantially 
inaccurate baseline information. What I am told is that this is 
absolutely frightening, that it brings about immeasurable 
liability issues and considerable uncertainty.
    Let me ask how you define the test or threshold for 
substantially inaccurate information? As you are addressing 
that and your understanding of and your response to the concern 
that this injects a level of uncertainty that is immeasurable 
and that liability issues are also immeasurable, know that the 
Governor in Alaska has indicated in comments to your office 
that he is concerned that the permit nullification clause may 
remove administrative due process that is afforded to 
operations in Alaska. So how do you respond to all of this 
notion that a permit could be void retroactively if it is 
determined it was based on substantially inaccurate baseline?
    Ms. Schneider. Senator, thank you.
    I was not aware of those concerns. I will obviously take a 
very close look at the comments that the Governor and the State 
of Alaska has supplied on the proposed rule.
    Again, we are not--we want to make sure that there are not 
unintended consequences, and we'll look very closely at all of 
the comments that have come in when we look at the issues that 
you've raised.
    The Chairman. Would you not agree that when the Department 
can, in effect, retroactively act on a permit, a valid permit, 
that has been issued and you have operations moving forward, 
that that injects incredible uncertainty?
    Why would I, as an operator, have any confidence going 
forward if I have a Department that could basically, at any 
point in time, come forward and say, well there is 
substantially inaccurate information and we have not defined 
what substantially inaccurate information might be. It seems to 
me that is something that is not just the Governor of Alaska 
weighing in. I think this is an issue where there is genuine 
concern about what this actually may mean, and the implications 
going forward.
    Ms. Schneider. Senator, we'll take a very close look at 
that language. I would add that in the primacy states it would 
be the state agencies, the regulatory authorities.
    The Chairman. Right.
    Ms. Schneider. That would be making that interpretation, 
not the Department.
    The Chairman. That was, I think, going to the Governor's 
concern that this may remove the administrative due process 
that is afforded to the State of Alaska on this and that 
somehow or other this provision, this opportunity, for the 
Department to void retroactively would somehow or other usurp 
that. So I think that is something we need to look at very, 
very critically because this is, I mean, you effectively wipe 
everybody out. They are not going to move forward with----
    Ms. Schneider. And Senator, I would say that's certainly 
not our intent. We'll take a very close look at those comments.
    The Chairman. Let's go to Senator Franken.
    Senator Franken. Okay, well we have, obviously, wide 
disparities in what the effect, the judgments of the witnesses 
and what this rule would do.
    It seems to me, looking at the history of this, Mr. 
Huffman, you said that West Virginia has regulated its own 
mining industry since the 30s. Is that right?
    Mr. Huffman. Sorry, I certainly would hesitate to overstate 
what we did between the 30s and 1977. We've been a primacy 
state recognized by OSM under the Surface Mining Act since 
1981. Some regulatory issues were handled prior to that, but 
not as robust as the Surface Mining Act, sir.
    Senator Franken. So now the Surface Mining Act, because I--
SMCRA was opposed by the industry back in the 70s right? Am I 
right, Mr. Quinn?
    Mr. Quinn. Not the entire industry, but many parts of the 
industry, yes.
    Senator Franken. Yes, vehemently. In fact, as I recall, 
President Ford vetoed it.
    Mr. Quinn. Correct.
    Senator Franken. And the veto was upheld. So previous to 
SMCRA I remember visiting West Virginia and I went to Keystone, 
West Virginia where a friend of mine is and the water was 
black.
    Is that right, Mr. Huffman? Would you say, would you 
characterize the water as being black?
    Mr. Huffman. I would characterize the environmental 
protections during that time as being minimal, yes. I can't 
speak to the color of the water in Keystone in the 70s.
    Senator Franken. Sure, sure. I can and it was black, and 
yet the mining industry was opposing this enough so that the 
President vetoed this legislation and the veto was upheld. So, 
Mr. Hecker, your opinion of this is that this rule is not 
strong enough. Is that correct?
    Mr. Hecker. That's correct.
    Senator Franken. Okay, so we are trying to protect the 
water and such, but we are trying to make sure that this 
industry can produce coal because, as Ms. Schneider said, this 
is an important industry in our country. I think we all agree 
with that, and it still is and will be for quite a while.
    How many jobs are there? How many coal miners are there in 
the industry nationwide? Coal miners?
    Mr. Quinn. Currently there's a little over 100,000, 40,000 
less than two years ago.
    Senator Franken. Okay. And you would say this could, out of 
100,000, that it could cost 78,000, up to 78,000?
    Mr. Quinn. Over time, potentially, yes.
    Senator Franken. So, three quarters of the--does that make 
sense to--I mean, there is such a wide disparity. It just seems 
like three quarters of all mining, of all coal miners, would be 
displaced by this rule.
    Mr. Hecker, you have had a lot of experience and all of you 
have experience in this industry, but I want to hear your point 
of view on this.
    Mr. Hecker. I don't believe that's a fair estimate. But I 
haven't done the analysis.
    Senator Franken. Okay, that is fair.
    Let's talk about the bonding. We have a mining project, 
very different, in Minnesota, a copper, nickel mine that is 
being proposed. People worried about if it goes south, if 
something bad happens who is going to be able to pay for it.
    Tell me about the bonding problems here in terms of 
companies going bankrupt and not being able--but they have 
bonded themselves, right? Does this address that, Ms. 
Schneider?
    Ms. Schneider. The proposed rule would strengthen some of 
the bonding requirements. The rule itself is not focused on 
fixing all of the bonding issues. We've seen some very serious 
issues develop in Wyoming recently with respect to self-bonding 
or the process of self-bonding allows companies to essentially 
guarantee their liabilities based upon the magnitude of their 
assets.
    Over the last five years there's been a precipitous decline 
in stock values for a lot of these companies that have self-
bonded. And recently Alpha Resources has declared bankruptcy. 
And so we've been working with the State of Wyoming in the 
bankruptcy court on that issue. There are over $400 million of 
liabilities associated with that company alone in Wyoming, as I 
understand it. And there are billions of dollars of 
environmental liabilities that are self-bonded by the agencies. 
This is a very serious issue that we are looking very closely 
at now in the Department, and we are going to be working 
closely with the states to make sure that the states have the 
tools they need to address these situations.
    Senator Franken. Thank you and thank you, Madam Chair.
    The Chairman. Thank you.
    Senator Capito, you may proceed. I also understand you 
wanted to help introduce a witness.
    Senator Capito. Yes, I am going to introduce, but after his 
statements, Secretary Randy Huffman, who has been with the 
Department of Environmental Protection in West Virginia for 
over 20 years. He was appointed by now-Senator Manchin, to be 
the Cabinet Secretary in May of 2008. He is a great West 
Virginian with three sons, and he is also a colonel who serves 
in the West Virginia National Guard. So welcome. We have seen 
each other on many occasions, so it is nice to see you here 
today.
    I think Secretary Huffman and I, we have met on more than a 
few occasions on a lot of these matters. These hit very, very 
close to home in West Virginia. We have suffered great job loss 
up to this point, and some of the numbers that I see in the 
studies are quite frightening.
    I would like to start with the similarities between 
Director Parfitt and Secretary Huffman's statements on the 
state primacy issues, basically the confusion that is going to 
be coming about with where does the state come in? Where does 
the EPA come in? Where does the Clean Water Act come in? If the 
state is supposed to have primacy, shouldn't the state be 
making the primary decisions?
    Secretary Huffman, how do you see this? You mentioned it in 
your statement. How do you see this rolling out if this rule 
were to come out as it is, in terms of trying to regulate at 
the state level?
    Mr. Huffman. Well, Senator, I hope I don't butcher this. 
Todd or someone else may be able to help understand the primacy 
question.
    The Surface Mining Act is very different than the Clean 
Water Act in how it is regulated in this country. Under the 
Clean Water Act, the state and the EPA are co-regulators, 
meaning that anytime that the state is failing or if the state 
and the EPA have some disagreement, or if the EPA chooses to 
use discretion that the state didn't use in whatever way, they 
can come in and take action on their own either in the 
permitting process or the enforcement process.
    The Surface Mining Act is very different. The Surface 
Mining Act operates under the idea of primacy, which means we 
make applications to the Office of Surface Mining with our set 
of rules and processes and procedures and guidelines, and the 
Office of Surface Mining approves or not.
    Senator Capito. Right. And what you said in your statement 
and also the Director from Wyoming said was that basically OSM 
did not enlist heavily with your opinions on what direction to 
go here.
    Mr. Huffman. Well, I might. I would say that we received 
that primacy approval from OSM in 1981. There have been many 
program amendments, some initiated by OSM, some initiated by 
us, to change the program to what it is today. But we are the 
on-the-ground regulator.
    Senator Capito. Right.
    Mr. Huffman. We do this every day. It's the way the Surface 
Mining Act is designed. It's not a criticism of OSM. They're 
not built to do this.
    Senator Capito. Right.
    Mr. Huffman. They're not built to regulate. They have 
oversight responsibilities under the way this program operates. 
Enlisting the cooperation of the states would have been really 
the only logical thing to do.
    Senator Capito. That did not happen.
    Mr. Huffman. No, it didn't.
    Senator Capito. Mr. Parfitt, would you like to just quickly 
respond and then I want to move to another question.
    Mr. Parfitt. Yes. So under the Clean Water Act, as was 
mentioned, there is a differentiation. Our concern is that you 
would have this crossover with the way the rule is drafted that 
you would have confusion over who has authority.
    Senator Capito. Right.
    Mr. Parfitt. Over making Clean Water Act decisions. And, 
more importantly, there's reference to the Clean Water Rule or 
Waters of the U.S. in the draft, which is problematic to us 
considering that there are 31 states that are opposing that 
currently.
    Senator Capito. Right.
    Mr. Parfitt. And it's in litigation.
    Senator Capito. Right. Okay, thank you.
    We have heard a lot of talk about bankrupt coal companies. 
We are seeing it in West Virginia. We have thousands of miners 
who have already lost their jobs, and a lot are going to be 
laid off at Alpha, Patriot and others.
    I cannot let this opportunity go without echoing the 
President's statement when he was campaigning in 2008. He said 
if you attempt to build a new coal-fired power plant, we will 
bankrupt you. This is what has happened in our state.
    So Mr. Quinn, I would like to ask about the discrepancy on 
the jobs which obviously is an enormous concern to us, all of 
us, who have large employment in this area. Also, did you have 
anything you wanted to add in terms of underground mining and 
long wall mining? Obviously that is a large part of your study.
    Mr. Quinn. Yes, Senator. That's why the impacts, ironically 
for this rule, are even greater for underground mining is 
because underground mining is more labor intensive. They are 
applying some concepts to underground mining for the first 
time, and then they're changing the concepts in terms of how we 
assess and how wide of an area we assess, hydrologic impacts.
    So the bottom line is this is going to take longer to get 
permits. It's going to increase the likelihood they'll be 
denied. It's going to create a lot of regulatory uncertainty 
and risk. A company is going to have to say when they go to 
expand their existing operations, is it really going to be 
worth the investment to do so with all of those risks at hand, 
not to mention the permit nullification provision that the 
Chairman mentioned, which is completely unlawful and 
unprecedented.
    If there's a question about information that was provided, 
there is a process and the states, I think, use it all the 
time. They go to the operator and say, hey, give me a permit 
revision. We don't think that information is accurate. It's not 
a punitive approach about let's shut you down retroactively.
    Senator Capito. Well, we have already seen the 
Administration retroactively cancel.
    Mr. Quinn. Yes, we have.
    Senator Capito. At least one major permit in our state.
    Mr. Quinn. And again, it looks like they always want to 
copycat EPA, and do their job as well.
    Senator Capito. Thank you.
    The Chairman. Senator Cantwell?
    Senator Cantwell. Thank you, Madam Chair, and thank you so 
much, again, for all the witnesses being here.
    I have been following along with staff some of this 
discussion as it relates to the self-bonding issue. I don't 
know if Mr. Parfitt and Mr. Huffman, but the State of West 
Virginia has revoked Alpha's self-bonding status. Obviously 
Wyoming basically agreed in Bankruptcy Court. I think it is 
basically a 15 cents on the dollar agreement. Why are two 
different parts of the country treating this issue two separate 
ways, and Ms. Schneider do you have any comments on that?
    So first let them explain why they are doing this.
    Mr. Huffman. Senator, it's actually the State of Wyoming 
that has revoked Alpha's self-bonding status, so I'm going to 
let him speak to that.
    Senator Cantwell. Okay, West Virginia has not.
    Mr. Huffman. That's correct.
    Senator Cantwell. Okay.
    Mr. Parfitt. Okay, so with regard to Alpha, Wyoming did 
revoke the self-bond eligibility for Alpha in the spring. We 
followed the same process that OSM follows in terms of the 
rules for being able to qualify for self-bonding. In our review 
at that time, we made the decision that Alpha no longer 
qualified for the self-bond, and we had requested at that time 
per the rules for a replacement surety.
    In between that time frame, Alpha filed for bankruptcy, in 
Chapter 11. As part of that process with the Bankruptcy Court, 
as you pointed out, and I wouldn't characterize it maybe the 
same way, we secured a $60 million super priority in the 
Bankruptcy Court, and then we did not waive the rest of the 
obligation for the bond, which was over $300 million. I'll just 
point out $411 million is the amount of the bond requirement 
that exists for those two mines.
    What we did was position ourselves better than where we 
were previously which would have been at the end of the line 
for the entire $411 million by placing $60 million in a super 
priority, at the front of the line, for reclaiming funds.
    Senator Cantwell. Then what would happen if those assets in 
bankruptcy were acquired in the future? How would you guarantee 
that you get your revenue?
    Mr. Parfitt. Senator, if you might repeat the questions. 
I'm not sure----
    Senator Cantwell. So one of my concerns--we saw this same 
play in Washington State as it related to our Sarco being 
bought by a group in Mexico and then basically leaving the U.S. 
taxpayer without the cleanup responsibility. They got to buy 
the assets, but they did not acquire any of the responsibility.
    So I was questioning. Now I like your strategy of saying 
let's make sure we get the cleanup responsibilities and let's 
get in position to get that. Now I am saying, after the 
bankruptcy, if their assets are acquired, how are you going to 
make sure that you get the rest of the money out of the $300 
million?
    Mr. Parfitt. So Senator, if Alpha were to transition the 
facilities to another entity, they would be required to come up 
with a secured bond to continue the operation. I would also 
point out that the other advantage of the position that we're 
in now is that Alpha is allowed to continue to operate, the 
over 1,000 jobs are continued to be. Over 1,000 employees are 
continued to be employed, and they have maintained their 
required reclamation throughout this whole process. They are 
not behind on their reclamation. They are still operating and 
reclaiming in accordance with their permit conditions.
    Senator Cantwell. Mr. Huffman, did you have any comments?
    Mr. Huffman. We are working with Alpha. Not all of their 
bonds are a self-bonding type. They have other bonding 
instruments in West Virginia. I'm not sure of the percentage. 
But we have two things to help us get those kinds of 
assurances.
    First of all, we're in negotiations with them to develop a 
plan for how they will eliminate their self-bonding, and move 
to other bonding instruments so that we take away some of that 
uncertainty that comes up when a company fails and the only 
assets you can get are the ones that failed that can be 
problematic.
    The other thing that West Virginia has that's unique is in 
our bonding program, is that that program is subsidized with a 
trust fund that's funded through a coal tax. We do actuarial 
studies and make recommendations to the legislature for 
increases to that tax in order for the fund to be capitalized, 
and that's working very well for us.
    Senator Cantwell. Okay.
    I see my time has expired, Madam Chair. Maybe, I could get 
from Ms. Schneider what we need to do in general on this issue 
of assurety for cleanup? That is all. For the record, that 
would be great.
    Ms. Schneider. Senator, we completely agree with your 
position that the taxpayers should not be saddled with the 
bill, and so we are looking at all possible avenues to make 
sure that the appropriate financial assurances are in place, 
looking at developing tools to assist the states to do just 
that.
    Senator Cantwell. Thank you.
    The Chairman. Senator Daines?
    Senator Daines. Thank you, Chair Murkowski and Ranking 
Member Cantwell, for holding this hearing today.
    I see the so-called Stream Protection Rule as yet another 
front to this Administration's war on affordable energy and 
good paying jobs. This Administration is shutting down coal-
fired power plants here in the U.S. They are killing good 
paying jobs for union workers and tribal members in my home 
State of Montana while stifling investments that could lead to 
innovation to make coal cleaner here in the U.S.
    Let's just set the stage here for a moment. You know when 
you ask, sometimes, a kid in the city where does milk come from 
they will say the store? You ask a kid from Montana where his 
milk comes from they will tell you a cow. Similarly when a kid 
is plugging in their phone to charge it, if you ask him where 
his electricity comes from he might say that plug, but the 
reality is it probably comes from coal. In fact, in the United 
States about 40 percent of electricity comes from coal. In my 
home State of Montana, it is over 50 percent.
    We have a Tesla charge station in my hometown of Bozeman. I 
am a big fan of innovation and technology. I am a chemical 
engineer. That is what I am trained in. I love technology, and 
what Elon Musk has done is amazing with Tesla. When you plug 
that Tesla into a charging station in Montana, probably in the 
back of that Tesla it ought to say, ``This Tesla powered by 
coal'' because that is where that electricity is coming from.
    As we think about the global situation, the United States 
consumes about ten percent of the coal in the world. This needs 
to be looked at from a global perspective. Said another way, 90 
percent of the coal in the world is consumed outside of the 
U.S.
    Japan is building 43 coal-fired plants. I used to have an 
office in Tokyo. After the big quake, they had to replace their 
nuclear energy there in Fukushima. They are replacing it with 
coal-fired plants.
    China is building a new coal-fired plant, one every ten 
days, likely for the next ten years or more.
    So I think the right answer is to continue to work with the 
coal industry to encourage innovation because that will help 
take U.S. innovation technology around the world to help ensure 
that we protect our streams and protect our air and protect, 
certainly, the overall environment in the world.
    Earlier this month a customer of Crow Tribe coal, the Crow 
Tribe are in Montana, the Sherco coal plant in Minnesota, this 
month announced it would need to shut down two units which 
would cut off a significant portion of the customer base for 
the Crow coal. I am on the Indian Affairs Committee with Al 
Franken. We talk about what is going on in Indian Country.
    If they lose these jobs, the unemployment rate is going to 
go from about 45 percent to north of 80 percent because they 
mine coal on the Crow Reservation. The tribe relies on these 
coal-fired, Midwest utilities for most of its non-Federal 
revenue and for good paying jobs at what they call the Absaloka 
Mine.
    Ironically, some of the first impacted by the President's 
Clean Power Plan are those who can least afford it where 
poverty is rampant in places like the Crow Tribe, in places 
like West Virginia. Moreover, the Administration is doing 
little to facilitate domestic supplies on the global market as 
we struggle with approval for coal export terminals in the U.S. 
because some of the coal that comes out of Montana is much 
cleaner coal than coal that is in Indonesia. Again, looking at 
this globally from an environmental stewardship view, we should 
incentivize and encourage U.S. coal and U.S. coal-fired plants.
    Now the Administration is trying to stop low cost energy 
and good paying jobs at the mine itself with the Stream 
Protection Rule, and still the Administration wants coal 
producers to pay more royalties through changes to evaluation 
and potential increases in coal royalty rates. But here is a 
question. Where are we going to replace these tax revenues when 
there is no more coal industry in the U.S.?
    The Administration's efforts with the Stream Protection 
Rule seem to be a solution in search of a problem, especially 
to mines in the West. I would encourage the other members of 
this Committee to come out to Montana and look at the way we 
mine coal. I have been out there in our treasured landscapes. I 
am an avid elk hunter, mule deer hunter, antelope hunter, fly 
fisherman. We need to protect our landscapes and our streams.
    Our outdoor lifestyle is critical to our way of life 
because our outdoor industry is a $6 billion industry in 
consumer spending per year for our state's economy, so it is 
important that coal producers are good stewards of the land.
    We have won a lot of awards on reclamation at the sites in 
Montana. I would encourage, again, members to come out and see 
it for themselves, what it is like after the mining is 
completed. Look what is going on with sage grouse habitat where 
we are mining coal. More wildlife enjoy the lands now than when 
they were there before the mines existed. That is a fact. 
Again, you are entitled to your own opinion, but we have to 
come back and look at what the facts are.
    Mr. Quinn, I am running out of time. But I cannot help but 
wonder what is the purpose of this new rule and should we be 
worried about unintended consequences, impacts on responsible 
mining going on in the Powder River Basin, especially 
compounded with other assaults on this industry, its affordable 
electricity, and jobs that it supports from other angles in the 
Administration?
    Mr. Quinn. Absolutely, Senator. But for all states, 
actually, even eastern states that were originally supposedly 
the focus of this rule, here's what this is an exercise in. 
This is an exercise in going back to a failed experiment of 
using design standards to apply nationwide. That was abandoned 
when we went to performance standards, which was what was 
contemplated in the act to begin with. Allow the states to 
flush it out, to apply them to the particular needs and also 
work with their companion agencies dealing with clean water, 
and blend it all in together. So here we have a nationwide, 
one-size-fits-all, go back to the future to these old design 
standards. It's going to be problematic across the board, not 
just in the Powder River Basin.
    Senator Daines. Thank you, Mr. Quinn.
    The Chairman. Senator Manchin?
    Senator Manchin. Thank you, Madam Chairman, and thank all 
of you for being here.
    I have a chart here. We are going to hold this chart up and 
basically show you what we are doing within America right now.
    [The information referred to follows:]
    
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    And what he just said, you know, you are entitled to your 
opinion, you are just not entitled to your own facts.
    The facts are that we only have 13 states in the United 
States, this is as of 2013, that are energy independent. They 
are basically what we would call net-energy independent states, 
producing more energy than they consume.
    Look at all the states in the blue or dark blue or really 
dark blue that show how dependent they are on energy from 
somewhere else than their own state. They are not producing 
what they consume.
    If you start looking at that, and then you look at what 
would happen with this new rule if it goes into effect. Look at 
what happens now.
    [The information referred to follows:]
    
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    We lose five of those states from being net-energy states. 
Now we only have eight.
    If you start looking at the type of consumption that the 
states and the people that are complaining most about not using 
the fossil or the coal that we have and trying to use it by 
creating more technology to use it cleaner, basically, they are 
consuming ten times more than they are producing. I do not know 
how we effectively operate or compete as a nation when we have 
so many states depending on so few states for the energy they 
are getting. It is just a fact. I mean, as we transition there 
should be a logical transition, not just a desire to say, okay, 
we do not like this anymore.
    So I would ask this question. What would this country look 
like if there was no production of coal for the next 90 days, 
just 90 days? Just tell everybody what the country would look 
like and how many Americans would be in jeopardy if there was 
no coal for 90 days?
    Mr. Quinn, and then I will go to Mr. Huffman on this rule 
basically because I know Randy. I have worked with him for 
many, many years. But try to do it, what would you say?
    Mr. Quinn. Well, I would say it would make a great movie 
but it, well, if you are talking about 40 percent of your 
electricity.
    Senator Manchin. The country cannot function, can it?
    Mr. Quinn. We're talking about a major input into the steel 
industry. We're talking about major industry, we're talking 
about the whole country grinding to a halt.
    Interesting perspective on your map, Senator. I think it's 
a great way of showing another perspective for what will happen 
is some of these blue states become even deeper blue because 
they are depending on the export of electricity from those red 
states. And so those get even deeper blue and more expensive in 
terms of their energy costs. And that's what's happening 
under----
    Senator Manchin. Well the people who get hurt the most are 
the elderly and the poor who pay the higher prices and cannot 
afford it.
    Mr. Quinn. Absolutely.
    Senator Manchin. We are driving the prices to the point 
there has to be a balance. All we are looking for is that 
balance.
    Mr. Quinn. The diversity of our electric grid anchored by 
coal saves American consumers about $93 billion a year and 
reduces the volatility of their power bills by half.
    Senator Manchin. Well, here is the thing.
    Mr. Quinn. 90 days without it.
    Senator Manchin. Yes.
    Mr. Quinn. You can see the impact.
    Senator Manchin. I will go to Mr. Huffman right now. Randy 
is from West Virginia and, like you say, he is Secretary of the 
DEP.
    Randy, on this SMCRA rule that we have had since 1981, of 
all the things that have happened because West Virginia has 
taken the lead on some of this stuff, what is this new rule, 
the Stream Protection Rule?
    First of all, identifying what a stream is?
    Mr. Huffman. Well----
    Senator Manchin. What would it have in our production?
    Mr. Huffman. Senator, we could get into the weeds of the 
rule and the thing that's most problematic for me as a 
regulator because we regulate more than just mining. We 
regulate all industrial activities in the state, and we are 
responsible for the Clean Water Act and the Clean Air Act.
    And what we see here and what I see is a regulator. The 
Surface Mining Act expressly prohibits establishing water 
quality standards, for example, because it conflicts with the 
Clean Water Act. The Surface Mining Act defers to the Clean 
Water Act. And, it is expressly written in the Surface Mining 
Act to do so.
    We've heard testimony here today talk about, and others 
talk about, establishing numeric, as an example, established 
numeric water quality standards, numbers, on these mining 
discharges under the Mining Act. It's illegal. You can't do it. 
And I mean, so there's a fatal flaw, in my view, of this 
proposed rule before we ever get into the debate of whether 
it's necessary or how much of it is necessary.
    Senator Manchin. How does the rule affect our State of West 
Virginia, not only just all the mining communities around the 
country, but our State of West Virginia because of our terrain?
    Mr. Huffman. We are concerned that there's going to be a 
great sterilization of a lot of reserves due to the inability 
to do long wall mining. And I know that's been debated here 
some today and the mine through of headwater streams from 
surface mining activities. Those two things, I mean, you don't 
have to go very far to hit something that is defined as a 
stream. So we're concerned that it could sterilize the 
reserves.
    Senator Manchin. Basically this rule takes an awful lot of 
the resources this country has had and it has depended on over 
the years basically out of any type of production.
    Mr. Huffman. Yes, we believe it does.
    Senator Manchin. It will affect, well I don't mean that, we 
are already affected in our state drastically by some of these 
rules.
    Mr. Hecker, do you all at least look for some type of a 
balance to a transition that might be going on and realize that 
you just cannot turn it off from fossil as far as what we are 
doing, and the rest of the world is using more fossil than ever 
before?
    Mr. Hecker. I'm not advocating stopping the mining of coal. 
What I'm advocating is that all industries, the coal industry 
included, should have to meet minimum Federal floor of 
compliance with water quality standards. Currently that is not 
happening.
    Senator Manchin. Can I just have one follow up? I am so 
sorry.
    The Chairman. Quickly.
    Senator Manchin. Do you agree on the definition of streams? 
What is a stream or what would be water? What they should 
regulate or not regulate but basically overreaching to the 
point to where streams that do not have any activity, do not 
run all year long and maybe drainage ditches and this and that 
should be controlled, too, to where you have no ability 
whatsoever to operate?
    We have a challenging terrain in West Virginia. If you are 
saying that the Stream Buffer Rule, should it be an active 
stream with water in it, that has aquatic life in it and also 
is basically providing water for the citizens? There is a 
definition of a stream, I guess, there.
    Mr. Hecker. I think the Clean Water Act definition should 
apply. And they've been well established over the years and 
what ephemeral, intermittent and perennial streams. We think 
all three types of streams as defined in the Clean Water Act 
should be covered under this pool. I mean that's not an 
expansion. That's just using existing law.
    Senator Manchin. Alright.
    I have follow up, but I will do it later.
    The Chairman. Senator Lee?
    Senator Lee. Thank you, Madam Chair.
    Many of my colleagues have already talked about, in great 
detail, the potentially disastrous effect of the new Stream 
Protection Rule. In Utah, one of our operators estimates that 
the regulation will reduce its own recoverable reserves by 30 
to 50 percent in all three of its long wall mines, and notes 
that reductions of such large magnitudes would render those 
mines uneconomical. They would end up having to be shut down. 
Now, this Utah case study is not unique. It is rather 
illustrative of how the Stream Protection Rule could impact the 
entire coal industry.
    Estimates on how many jobs this will cost vary widely. 
According to the Administration, it is relatively low, but 
according to another study the Stream Protection Rule could 
eliminate between 40,000 and 78,000 coal mining jobs 
nationally.
    So how did we get here? What process produced this? Well, 
in September 2010 the Utah Division of Oil, Gas and Mining 
entered into a Memorandum of Understanding (MOU) with the 
Office of Surface Mining Reclamation and Enforcement. The 
Memorandum of Understanding created a cooperative partnership 
between the two agencies regarding the preparation of the 
Environmental Impact Statement associated with the Stream 
Protection Rule. Since signing the MOU, however, the Office of 
Surface Mining has failed to involve the Division of Oil, Gas 
and Mining in the rulemaking process.
    For instance, although the draft Environmental Impact 
Statement was released in July of this year, the Office of 
Surface Mining has not contacted the Division about the EIS 
since January 2011. Furthermore, the Office of Surface Mining 
never allowed the Division sufficient time to review the EIS. 
In one particular instance, the Office of Surface Mining 
provided for the Division's review of a 961 page draft chapter 
of the EIS, but gave the Division only five business days to 
reply. Reviewing a document of that size is, itself, an onerous 
task, but reviewing it and responding to it within a five-day 
period is really, really difficult.
    Mr. Parfitt, let me start with you. Does the State of 
Wyoming feel like it was adequately consulted during the 
drafting of the Stream Protection Rule?
    Mr. Parfitt. No. And as I've stated, we made several 
attempts to participate in the process. We have written letters 
through the Interstate Mining Compact Commission requesting 
that OSM engage with the states. And we did not, we were not 
given the opportunity for additional participation, like Utah, 
since January 2011.
    Senator Lee. Okay, so Utah was not alone in that regard.
    What about you, Mr. Huffman? Does the State of West 
Virginia feel like it was adequately consulted during the 
drafting of the Stream Protection Rule?
    Mr. Huffman. No, Senator. In fact, it gave the appearance 
that there was just an attempt to fill the squares as they went 
through the process so that they--because they had to enlist us 
as cooperating agencies. And once they did that, for four years 
we were just left out without any contact at all, even though 
we reached out to them, they never responded until after this 
proposed rule was published in July of this year.
    Senator Lee. So a token gesture at the outset, but not much 
after that.
    Mr. Huffman. Yes, sir.
    Senator Lee. Ms. Schneider, is it the policy of the Office 
of Surface Mining to exclude states when drafting regulations 
and to enter into Memoranda of Understanding that it intends to 
violate?
    Ms. Schneider. No, sir. Back in 2010/2011 there was 
coordination with the states. The MOUs were entered into. 
During that process we got a lot of, as I understand it, a lot 
of very good comments from the various states including the 
need to develop a more regionally specific analysis. OSMRE took 
those comments back and developed a proposed rule.
    We have actually had more meetings with the states than 
some of the testimony would suggest. We met with the states 
back in April at the IMCC meeting in Baltimore. We have had 
meetings on Endangered Species Act compliance associated with 
stream protection with the states, provided them with a draft 
MOU that we're working on right now. We're meeting with the 
states at IMCC in Santa Fe today. I am aware that the director 
has reached out to a number of the states to try and continue 
to engage them in this process. I have as well. I have an open 
door policy. I am happy to meet with any state that would like 
to meet with me, and I would very much encourage the states to 
re-engage in this process so that we can spend more time 
working with them.
    Senator Lee. Okay, I am out of time.
    Let me just say in closing, it is nice to know that the 
Office of Surface Mining thinks that it engaged states in a 
meaningful way in this process. None of the participating 
states feel the same way, and none of the participating states 
share the Office of Surface Mining's assessment of its own 
actions.
    A letter written on February 23, 2015 signed by the states 
of Alabama, Indiana, Kentucky, Montana, New Mexico, Ohio, 
Texas, Virginia, West Virginia, Wyoming and Utah stated, ``in 
large measure OSM simply chose not to pursue further 
involvement of the cooperating states in the process in direct 
contravention of the states' Memorandum Of Understanding with 
the agency.'' I find that very, very troubling to say the 
least.
    Thank you, Madam Chair.
    The Chairman. Thank you, Senator Lee.
    Senator Warren?
    Senator Warren. Thank you, Madam Chair.
    So we are talking about updating an old rule that was 
written to protect streams that are near coal mining and over 
in our work coal companies and their friends deny that there is 
a problem with coal mining leaking filth into the streams or 
burying creeks in waste. So I want to start at that point.
    Mr. Hecker, you have spent decades working on the 
relationship between coal mining and the condition of nearby 
water. Based on your years of study can you summarize what is 
known about the impact of mining coal on nearby waters?
    Mr. Hecker. Sure, the peer reviewed scientific research 
shows three things.
    First, mountain top mining increases the surges of selenium 
which causes fish deformities and harms fishery production. In 
West Virginia alone 438 miles of streams are impaired by 
excessive selenium.
    Second, mountain top mining in valley fills increase 
discharges of dissolved salts which increase stream 
conductivity and cause biological impairment. Sensitive aquatic 
species are lost and only pollution tolerant species survive. 
Again in West Virginia, over 5,000 miles of streams are 
biologically impaired by excessive conductivity.
    Third, as the scope of mining increases in a watershed the 
cumulative impacts of these two types of stream impacts also 
increases. One study, again, peer reviewed, published in a 
scientific literature recently found that a stream becomes 
impaired when more than 5.4 percent of the land in a watershed 
is mined. Some watersheds in West Virginia have more than 50 
percent of their land impacted by mining.
    Senator Warren. Wow. So in your view, does the existing 
rule, the rule we have right now that the Department of the 
Interior is trying to update, sufficiently protect water 
sources?
    Mr. Hecker. No, it does not. It does not reflect any of the 
current science that I just spoke about like selenium and 
conductivity.
    Senator Warren. Alright, so I think the science is clear on 
what you are saying here. The damage that coal mining can cause 
to surrounding waters, to the wildlife that depend on those 
waters, is well documented and it is serious. I am glad that 
the Administration is taking this action, although I think the 
rule could be improved, particularly by safeguarding areas 
immediately surrounding streams and making sure that water 
quality standards are actually enforceable.
    While the rule is a step in the right direction, let's not 
kid ourselves about the scope of this rule, what kind of impact 
it is going to have on the coal industry. There are huge 
problems that this rule does not even try to address.
    For example, peer reviewed studies have found that surface 
coal mining is connected to higher levels of cancer, birth 
defects, heart disease and a long list of other health problems 
for those who live nearby. One researcher found that after 
controlling for other factors, increased mortality rates in 
regions with mountaintop removal translates to about 1,500 
additional deaths every year. Many of these serious problems 
stem from the effect of mining on air quality and not just 
water quality. So let me ask, Assistant Secretary Schneider, 
does the Stream Protection Rule attempt to address the impact 
of mining on air quality?
    Ms. Schneider. Senator, this is a rule about water quality 
primarily. The Congress in 1977, after passage of the Clean 
Water Act in 1972, looked at the situation and felt that more 
needed to be done. This proposed rule seeks to further the 
purposes of SMCRA as set out in that statute by Congress.
    Senator Warren. So Assistant Secretary, I am not trying to 
give you a hard time about it other than to say there is also a 
problem with air quality and does this rule do anything about 
that? I am just talking about how limited this rule is.
    Ms. Schneider. Senator, you are right. I mean, the rule is 
narrowly constrained toward the water quality----
    Senator Warren. Okay, so this is a very narrow rule. It is 
not doing anything about air quality.
    Let me ask one more question about climate change. We know 
that coal mining and other forms of fossil fuel extraction put 
more greenhouse gases into the air which increases climate 
change. Is this proposed rule designed in any way to reduce the 
greenhouse gas impact of coal mining?
    Ms. Schneider. Senator, this is not a greenhouse gas rule. 
It is not designed for that purpose.
    Senator Warren. Alright.
    So it seems to me that a strong stream protection rule will 
make a real difference in protecting areas immediately 
surrounding coal mining, but this rule does not cover some of 
the most devastating public health effects of mining and it 
does not cover climate change. The industry reflectively 
attacks even the most limited efforts to address these 
problems, and they are doing that with the newly proposed rule. 
But updating a 30-year old rule is the least of what we should 
be doing. It is a modest step in the right direction, but a 
step that still does not address some of the most severe health 
and environmental consequences of coal mining.
    I thank the Administration for taking these steps, but I 
urge the Administration to do more.
    Thank you.
    Ms. Schneider. Thank you, Senator.
    The Chairman. Senator Barrasso?
    Senator Barrasso. Thank you very much, Madam Chairman.
    Ms. Schneider, I want to follow up on Senator Lee's 
questions related to the National Environmental Policy Act, 
NEPA.
    NEPA requires every Federal agency to assess the 
environmental impacts that would result from its actions like 
approving a permit or issuing a new regulation. A Federal 
agency assesses environmental impacts in what is known as the 
environmental impact statement. Prior to issuing an 
environmental impact statement, a Federal agency is required to 
consult with other agencies including state agencies, which 
have special expertise with respect to the action under 
consideration.
    The Federal agency preparing the environmental impact 
statement is called the lead agency. The other agencies are 
called cooperating agencies. Under NEPA, the lead agency is not 
only required to consult with cooperating agencies, it must 
ensure that the participation of the cooperating agencies is 
meaningful.
    When the Office of Surface Mining began developing the so-
called Stream Protection Rule, it identified ten state agencies 
as cooperating agencies. The Office signed agreements with each 
of these state agencies in which it pledged to provide them 
with copies of the key or relevant documents underlined in the 
EIS, Administrative drafts of the EIS and a reasonable time for 
review and return of comprehensive comments. That is what you 
promised. However, between January 2011 and the issuance of the 
proposed rule in July 2015, the Office of Surface Mining did 
none of this. For four and a half years, the Office of Surface 
Mining shared neither drafts of the EIS nor documents related 
to the EIS. During this time, it engaged in no meaningful 
consultation whatsoever with the agencies. It ignored the 
states' repeated requests for consultation, and in response, 
eight of the ten states, the agencies felt they had no other 
choice but to withdraw as cooperating agencies.
    Now, you have overseen the Office of Surface Mining since 
May 2014. Why is the Office of Surface Mining allowed to make a 
mockery, a mockery, of its obligation under the National 
Environmental Policy Act?
    Ms. Schneider. Senator, as we've discussed previously, 
three chapters of the Administrative Draft EIS were distributed 
to the cooperating agencies. They were put up on a share point 
for them to access. We did receive very meaningful comments 
from the states. They were extremely helpful in developing the 
draft EIS.
    The draft EIS is now out on the streets. We are looking 
forward to reviewing the comments from all of the states that 
have come in on the draft EIS and moving forward with them in a 
more cooperative and collaborative process. I strongly believe 
that it's important to engage the states.
    I personally have worked for two states in my career, for 
the State of Colorado, excuse me, the State of Florida and the 
State of Oregon, so I understand the importance of state 
perspectives. And I will commit to you that we will continue to 
engage the states as we move forward.
    Senator Barrasso. Let's be clear. That sharing was done 
before January 2011. I want to know where this law allows your 
agency to go dark for four and a half years, and how is this 
consistent with the President's claim that his Administration 
is the most transparent Administration in history?
    Ms. Schneider. Senator, there was a lot of information 
provided to the Office of Surface Mining. They are, candidly, 
under resourced and they are trying to do the best work that 
they can.
    In--since 2000, I would note that they have been reduced in 
terms of FTEs by about 30 percent, so we are trying to engage 
as best we can.
    Senator Barrasso. These seem like lame excuses to me.
    I would like to turn to the Office of Surface Mining and 
draft Regulatory Impact Analysis or the RIA. The Regulatory 
Impact Analysis estimates the cost of a rule or an industry as 
well as the Federal Government or the states.
    Office of Surface Mining states that the total annual cost 
of the Proposed Stream Rule to the states within the entire 
Rocky Mountain region is $29,000.
    Now Mr. Parfitt has testified. On its face he says the 
figure is laughable. He says the State of Wyoming spent more 
than that to simply read and analyze the proposed rule and 
associated documents, an effort that is not even remotely close 
to being finished. He goes on to say that the Office of Surface 
Mining grossly underestimates the impact of the proposed rule 
on Wyoming and Federal tax revenue by more than $1.3 million a 
year.
    Wouldn't you agree that the Office of Surface Mining's 
annual cost estimate of $29,000 for the entire Rocky Mountain 
region is, on its face, ridiculous?
    Ms. Schneider. Senator, no, I would not.
    We have used a set of highly qualified experts to develop 
our regulatory impact analysis. They've put together, I think, 
a very robust analysis of what the costs and estimates are 
going to be. Administrative costs, for example, are estimated 
at one cent per ton of coal mined on average. The analysis was 
peer reviewed by PhDs from a host of different----
    Senator Barrasso. Ph.D.s who have no practical experience 
in what is going on. Mr. Parfitt, I would like you to respond 
to that.
    Mr. Parfitt. Yes. So the $29,000 for the entire Western 
region we, as you mentioned, thought was unrealistic. We did 
our own assessment just for Wyoming, and estimated that it 
would cost $550,000 a year just for Wyoming alone to implement 
that rule.
    The other key factor is that in terms of the lost tax 
revenue to the State and to the Federal Government was 
estimated at $360,000 a year. But that did not take into 
account mineral royalties that are paid to the State of Wyoming 
and also the royalties that are paid to the Federal Government. 
So there would be an additional cost of $291,000 to the Federal 
Government. Also there would be additional costs to the program 
and to the black lung fee.
    Senator Barrasso. Thank you.
    Thank you, Madam Chairman.
    The Chairman. Thank you.
    Senator Hoeven?
    Senator Hoeven. Thank you, Madam Chairman.
    I just want to be careful here in front of my esteemed 
colleague from West Virginia.
    Senator Manchin. I am waiting on the second round.
    Senator Hoeven. Wonderful, okay.
    Thank you, Madam Chairman.
    Secretary Schneider, my first question goes to why this 
rule is being applied nationally? The Office of Surface Mining 
has continued to frame this proposed rule as addressing 
environmental impacts from coal mining in the Appalachian 
region. So why is this rule being applied nationally?
    Ms. Schneider. Senator, when we look at the impacts of coal 
operations we see impacts in Appalachia, yes. We also see 
impacts in other parts of the country.
    SMCRA does provide that we should not develop rules that 
might result in unfair competition between the states. What 
we're trying to do is set minimum national standards that would 
set a base. The states, of course, are free to regulate, the 
ones with primacy, are free to regulate on top of that if they 
so choose. But that's the basis for why we're choosing to 
develop a nationwide rule.
    Senator Hoeven. So one-size-fits-all even though you have 
different geology and different practices and different types 
of mining in different parts of the country. That does not make 
sense, does it?
    Ms. Schneider. Well, we're very interested in looking at 
these regional differences, and I would note that we've 
received comments from 13 states on the proposals. We're going 
to take a very close look at those. If there are appropriate 
regional differences that should be made, we're certainly open 
to considering those sorts of distinctions.
    Senator Hoeven. Well, I am very pleased that you said that 
because according to the Office of Surface Mining's 2015 Annual 
Evaluation Report for North Dakota, the agency concluded that 
the state, ``has an effective program with no issues that need 
corrective action.'' I'll read it one more time, ``has an 
effective program with no issues that need corrective action.''
    It goes on to say the state has done an appropriate job of 
tracking and assessing reclamation success, and that it 
conducts the appropriate number of thorough and complete 
inspections. I might point out we are number one in the country 
among all states in land reclamation; therefore, it does not 
seem reasonable to apply this rule, and additional rules and 
requirements, to North Dakota. Wouldn't you agree?
    Ms. Schneider. Well, what I would say, particularly with 
respect to the annual evaluations and the budget information 
that Mr. Quinn identified, those numbers are based on the 
existing program, right? So if there is an issue that would not 
be considered a violation of the existing program. They're not 
captured by those numbers. It's a bit of a chicken and egg sort 
of example.
    The selenium, I think, is a perfect example of that. Many 
states you're not required to look for selenium. It's not 
considered to be a violation of state standards under their 
existing programs. And therefore, the numbers that are reported 
to us in the annual evaluations don't capture those as being a 
problem.
    But what we do know, when you look at the scientific 
evidence is that there continued to be significant problems 
associated with water quality as a result of coal mining 
operations. That's why we think it's appropriate to propose 
this rule for folks to comment on and for us to further 
evaluate.
    Senator Hoeven. But you are open to addressing the 
circumstances that I have outlined where we are meeting all the 
requirements and acknowledged that there are differences and 
that you cannot apply a one-size-fits-all. Is that correct?
    Ms. Schneider. I think that is right. I mean we do think we 
do need to have minimum base standards so that we make sure 
that there isn't the adverse competition that I talked about. 
But I do recognize that there are differences in geology and in 
terrain and it's important to take those into consideration as 
we move forward.
    Senator Hoeven. I think that is very important because you 
have not hosted meetings in the Western states--at least in 
Wyoming or North Dakota. You have had meetings in Colorado, 
Kentucky, Missouri, Pennsylvania, Virginia and West Virginia. 
So Colorado is the only Western state. All the rest are Eastern 
states since it is primarily an Appalachian region issue.
    So I want to know--are you going to then come out to North 
Dakota and other places before you start applying standards 
that apply for different type of mining in a different part of 
the country?
    Ms. Schneider. Yeah. I'm happy to come out to North Dakota. 
I've been there previously, but I'm more than happy to come and 
take a look at how things are being taken care of on the ground 
there.
    Senator Hoeven. And then what about the comment period? We 
had asked for a 120-day comment period, and you have only 
extended 30 days. What about that issue to make sure that these 
issues are addressed fairly?
    Ms. Schneider. The comment period is now closed. We've 
received over 94,000 comments on the proposed rule and the 
other materials. We think that, you know, the materials have 
been available for review for over, for about three and a half 
months now. We think that's an adequate time and I think the 
response that we've gotten demonstrates that.
    Senator Hoeven. Well that will depend on whether you apply 
the one-size-fits-all or in fact you are willing to work with 
regions like ours that are meeting all the requirements and 
even by your own review, doing an outstanding result, No. 1 in 
land reclamation in the country.
    So again, how do you then make sure that that is 
accomplished if you go ahead with your rule at this point?
    Ms. Schneider. Well certainly one of the things we'd like 
to see is make sure that all the states are engaged in a robust 
manner, and I would encourage all of them to become cooperating 
agencies again. I would like to commend the State of Wyoming 
for staying at the table.
    Senator Hoeven. So your commitment is to come out and meet 
with our industry before you issue the rule?
    Ms. Schneider. Yes, sir.
    Senator Hoeven. Alright.
    Thank you, Madam Secretary.
    The Chairman. We will begin a second round here for 
purposes of the Committee's information.
    I would encourage you, Secretary Schneider, to do the same 
in Alaska.
    Ms. Schneider. I would be happy to----
    The Chairman. Our USGS estimates show that over 50 percent 
of the U.S. coal reserves are in Alaska. As you know, we do not 
have the same level of operation that you might have in some of 
the other states because of our geography and our remoteness, 
but I think it speaks very clearly to some of the issues that 
we face as a state, that again, it is the geology that is 
different. What happens in Alaska is entirely different than 
what happens in the Powder River Basin or what happens out in 
Appalachia. I would concur with my colleague from North Dakota 
that a one-size-fits-all application just simply does not work, 
cannot work.
    Let me ask you, Mr. Quinn, and this is kind of along the 
same lines here in terms of recognizing the diversity that we 
have within the coal industry and recognizing some of the 
regional differences that we see. As I mentioned, the reserves, 
the known reserves in Alaska, are enormous. But, we also have 
issues as they relate, of course, to our waters and the fact 
that about 50 percent, actually a little over 50 percent, of 
the state is considered wetlands or jurisdictional waters. The 
implications there for our rule, such as this, I think, are 
considerable. Are you aware of any state-specific analysis that 
has been conducted alongside this rule that would give me, as 
one of the two Senators from the State of Alaska, some comfort 
that what they have been doing within the agency shows an 
understanding and a recognition of that difference?
    Mr. Quinn. No, Senator. I cannot. I am not aware of any, 
particularly in Alaska. But I think the same concerns should go 
to any Senator, Senator Hoeven in North Dakota and others, 
because unlike our study that went actually out to the mines. 
They went and studied, and measured impacts based on 
hypothetical mines they've built.
    It's nice that they're committing now to go out to the coal 
states, but that was something they probably should have done 
before they even put pen to paper. And as you've heard from the 
states here and through the correspondence, they basically went 
into a four-year dark calm period and didn't even communicate 
with the states. So no, I cannot.
    Of course, Alaska has huge challenges. We talk about the 
diversity of terrain and physical conditions just across the 
United States. I mean, Alaska is just a microcosm of that as 
well in terms of the weather, the physical terrain. So it's so 
unique in Alaska as well as there, SMCRA has a requirement for 
a special study of these provisions in Alaska which this rule 
may have to reopen to all that.
    The Chairman. Well, again, when you think about this whole 
one-size-fits-all approach, I think so many of us are saying 
this is not reasonable. It is not rational. The proposed rule 
requires monthly reporting of data before you can get the 
permit.
    Okay, well, come and talk to me about how you are going to 
get that monthly reporting of data when several months out of 
the year, maybe more than several months out of the year, it is 
frozen.
    Mr. Quinn. Right.
    The Chairman. Or you are dealing with permafrost. How do 
you account for these characteristics in a state that is 
entirely different? Yet this is where your proposed rule, Ms. 
Schneider, is taking us. Again, you have indicated a 
willingness, and you have said you are open to considering 
distinctions with Senator Hoeven. You are saying it is not 
necessarily going to be a one-size-fits-all application. But it 
started out with, effectively, a rule that was directed toward 
one part of the country and now it has become this nationwide 
approach. I think it has all of us more than a little bit 
concerned.
    Let me ask very quickly, and this will be my last question, 
about how this rule is going to affect mine operators' ability 
to obtain a permit and what it might mean just in terms of 
timing or delays. I will ask you, Mr. Parfitt, Mr. Huffman, if 
you have anything that you would like to contribute on that, 
your analysis in terms of what it is going to mean for 
obtaining a permit?
    Mr. Parfitt. Well, I think this gets back to the point 
originally--this was a rule that was to address issues in 
Appalachia. It doesn't take into consideration regional 
differences, so the one-size-fits-all. And so I think it will 
be more complicated, as you've pointed out, in terms of 
collecting the baseline data.
    We have a similar issue, maybe for different reasons, with 
ephemeral streams in an arid state, collecting monthly data to 
collect your baseline isn't always a practical thing to do. So 
I think it would slow the process down, for sure, and it would 
be more costly.
    The Chairman. Mr. Huffman?
    Mr. Huffman. Madam Chairman, I think that our experience 
with when the Federal Government is involved in the permitting 
process, it's a moving target that only gets hit whenever they 
want it to be hit. And that's the problem, I think, with the 
way this rule is drafted--it inserts the Federal agencies into 
the permitting process rather than just that of an oversight 
responsibility. I don't know that we could ever land the plane 
if they didn't want it to land. That's just my opinion.
    The Chairman. Senator Portman came in while I was asking my 
questions and he has not yet had an opportunity to participate 
in the first round. If you would like to ask your questions?
    Senator Portman. Great, thank you, Madam Chair.
    I apologize. I was at another hearing, but I really wanted 
to be here today, and I appreciate the witnesses and the 
testimony you have already given. Secretary Schneider, thank 
you for being here.
    I think we all agree on this panel that we need to take 
steps to protect the environment. The question is balance, and 
the question is the economy. What is the impact on jobs, in 
particular?
    Our concern in Ohio, of course, is that we are a state that 
is dependent on coal for our electricity, about 70 percent of 
our electricity comes from coal. We also mine coal, and we move 
coal. We see in a state that, you know, depends greatly on the 
coal industry for jobs that this will have an impact that will 
be very negative on jobs and on production.
    Your Office of Surface Mining has said the rule is going to 
cost the industry millions of dollars but also decrease coal 
production by 1.9 million tons. You say it is going to cost 
between 41 and 590 jobs annually. Mr. Quinn has an analysis 
that shows it is going to result in 40,000 to 78,000 coal 
miners losing their jobs. That is a pretty big disparity, but 
even with the DOI estimate we see the impact on the economy.
    So I would just ask you this, how did you estimate your 
cost on jobs and energy production and why do your figures 
differ so dramatically from studies done from other independent 
sources?
    Ms. Schneider. Senator, thank you for the question.
    The way we handled the analysis is we engaged a series of 
experts as consultants to assist us with doing the work.
    I will take issue, take the opportunity to take issue, with 
Mr. Quinn's characterization of our analysis as using 
hypothetical mines. We developed models based actually on input 
from the states that we needed to look at regional differences. 
And so we developed model mines to help support the analysis 
and look at what the various provisions of the rule might do 
and how it might change and affect mines that were, 
essentially, standard recognizing that every mine is different 
in, you know, even in each state all the mines are a little bit 
different.
    So we tried to standardize it so that we could have an 
apples to apples comparison across the country. We used actual 
data to develop that information. So we looked at topography, 
geography, coal production by mine type, etcetera, etcetera, in 
developing these analyses.
    That is the basis of the work that the experts have done. 
That work was peer reviewed, as I mentioned before, by 
professors at, for example, the Colorado Department of Mines, 
etcetera. So these are robust economic analyses done by the 
consultants.
    I have had a chance to review the work that was done and 
issued by the National Mining Association yesterday. It appears 
as though that work assumes that long wall mining will stop as 
a result of the proposed rule. That is not the case and 
therefore the numbers in their report are not accurate.
    Senator Portman. Well, I would like to hear from Mr. Quinn 
on this. I have been with some of our miners over the last 
year. Ohio has different kinds of mines, as you know, including 
long wall. I was down 300 feet below with some miners recently 
talking to them about the impact of this rule.
    I will tell you, I do not know about your model mines, but 
on the real mines, there is a deep concern about what is going 
to happen to them, their families, their communities and areas 
of our state that already have relatively high unemployment.
    Mr. Quinn, maybe you could talk about why there is such a 
disparity?
    Mr. Quinn. Well, I think you hit it right on the head, 
Senator. Actually their report does say it is hypothetical 
mines. Yes, they are modeled, the 13 models, I believe.
    Our study is based on 36 actual, real mines operating, 
going to the mines, taking the provisions and then a range of 
different applications from the most--the least burdensome to 
potentially, the most burdensome. So that's why you see a range 
in our numbers on impacts of employment, impacts on value, a 
loss of production and sterilized reserves. I will also say 
that, I take--I'm confident in this study. I take comfort in 
our past studies.
    When the EPA mercury rule came out, EPA said it would only 
require five gigawatts of power. We had an independent analysis 
done that said 55 gigawatts. We were actually low and the 
Department of Energy said it's going to be 60, 60,000 megawatts 
of power taken off.
    So we're not prone to just overestimate for the sake of 
overestimating. I just think that the regulatory accounting 
cost and benefits at the government level of late has been very 
wanting and has proven to be very wanting as well.
    Senator Portman. Yes.
    We do not have a great track record do we, not looking at 
the cumulative effect.
    The other thing that concerns me about this rule is the 
lack of coordination with Ohio. I know a number of states have 
raised this. Probably you have heard this today, but basically 
we feel like we were left in the dark, you know, for a period 
of four plus years until the rule came out. That lack of 
communication with the operating agencies makes it very 
difficult for these states. They have challenged the proposed 
rule in part because some of the definitions are unworkable, 
and because they believe that it superseded some of the state's 
regulatory authority.
    So my question to you this morning, Secretary Schneider, is 
do you intend to work with the states to ensure that the rule 
provides the states with adequate flexibility and jurisdiction 
to be able to implement and enforce this rule?
    Ms. Schneider. Yes I am, Senator.
    Senator Portman. Are you working with my State of Ohio?
    Ms. Schneider. I would like to.
    Senator Portman. We would like you to also.
    Look, my time is expired. Again, we look at this as another 
example of where the overreach is causing more problems for our 
economy, and specifically jobs, and electricity costs in Ohio 
than it needs to if it was done in a way that focused on the 
costs and the benefits. That is our concern with this.
    Even your own analysis shows a significant decrease in coal 
production, jobs lost and compliance costs. We just need to be 
sure we are using the right figures and that we are approaching 
this in a smart way.
    Thank you, Madam Chair.
    The Chairman. Senator Cantwell?
    Senator Cantwell. Thank you, Madam Chair.
    I have enjoyed this discussion of my colleagues and their 
various states. I, too, mentioned my state and the fact that we 
had 250 sites that we wanted to make sure were afforded 
protection of clean water. I always find it interesting that 
sometimes people go to the argument that states should regulate 
something that is regulated by the Federal Government that we 
want input, but I am pretty sure that the Surface Mining 
Control and Reclamation Act requires you to make sure that 
there has been a diagnosis and a prevention of material damage 
to the hydrological balance outside of the permitted areas. Is 
that not correct? That is what you are charged with doing?
    Ms. Schneider. Yes, Senator.
    Senator Cantwell. And isn't it such that the science that 
we are now looking at, I mean, that the current regulations do 
not basically enable the science to be dealt with? Science is 
telling us there is pollution and we have a problem and you 
have to fix it. You are required by law to do that, is that not 
correct?
    Ms. Schneider. Right. Well, that term is not defined by 
SMCRA, and it's also not defined by the 1983 regulations that 
folks are operating under. When OSMRE actually adopted----
    Senator Cantwell. So basically you are out of compliance?
    Ms. Schneider. Well, what is happening is it's almost as we 
know it when we see it sort of a standard. It's like putting up 
a no speeding sign without putting a number. So folks don't 
really know what causes material damage to the hydrologic 
balance.
    That's why we are suggesting, as part of the proposed rule, 
that there be clear standards for what constitutes material 
damage. We think it will provide a lot of regulatory certainty 
for operators and be a much more straight forward way of doing 
business.
    Senator Cantwell. But you are required to do that, to 
basically in the offset areas, ``minimize disturbances and 
adverse impacts on operations of fish, wildlife and related 
environmental values.''
    Ms. Schneider. Correct. And you know, for the last 30 plus 
years we have deferred to the states. We have encouraged the 
states to adopt numeric standards, and they've not done so. As 
part of this we are underscoring that need.
    Senator Cantwell. But it is all about clean water, correct?
    Ms. Schneider. Correct.
    Senator Cantwell. Okay. But the agency in this process has 
sought to incorporate the best available science in these 
proposed regulations. Is that correct?
    Ms. Schneider. That is correct.
    Senator Cantwell. How have you done that?
    Ms. Schneider. We did a robust draft Environmental Impact 
Statement in which we sought to gather the best in scientific 
literature and the latest in state-of-the-art of current 
science, and that is reflected in our analysis. Obviously we're 
taking comment on that. If there are studies that have not been 
included we hope that they are included as part of the comment 
process.
    Senator Cantwell. I mean my understanding is that there was 
a completed literature review of science of headwater streams 
and published a report summarizing the findings of more than 
1,200 peer reviewed articles.
    Ms. Schneider. That's correct.
    Senator Cantwell. So, for example, one study found the 
adverse impacts from surface and underground mines on water 
quality in the Appalachian streams extended to an average of 
6.2 miles downstream from the mine. Those are the kinds of 
reports, right? So basically, your analysis based on science 
was about categorizing the mining impacts, how far downstream 
they went?
    Ms. Schneider. Right. I mean what we're seeing is that 
existing regulations are not addressing the impacts. We're 
still continuing to see adverse impacts associated with mining 
operations. It's one of the reasons Mr. Hecker is still in 
business.
    And you know, we think it's important that we have 
appropriate balance, but that we make sure that the work that 
is being done to mine coal in this country is being done in as 
environmentally responsible manner as is possible.
    Senator Cantwell. But it is all based on science?
    Ms. Schneider. It is all based on science, that's correct.
    Senator Cantwell. Okay.
    So I think to my colleagues, I know that they are concerned 
about the impacts in their state, but we also have to be 
concerned about the impacts in their state and it has to be 
based on science. I don't know what else we can base it on. It 
has to be based on science.
    Thank you, Madam Chair.
    The Chairman. Senator Portman, did you have any further 
questions?
    Senator Portman. No.
    The Chairman. Senator Manchin?
    Senator Manchin. Thank you, Madam Chairman.
    Ms. Schneider, has any improvement been made at all? Do you 
see any improvement made over the last 30 years?
    Ms. Schneider. I think there have been improvements made. I 
think what we're saying is based on our review of the science 
and on the ground situations that we're aware of that further 
improvement can and should be made.
    Senator Manchin. Well, I think your only report states that 
mining impact performance shows continuous performance 
improvement with 90 percent of active operations free of any 
adverse off-site impacts.
    Ms. Schneider. Well as I mentioned those reports are based 
on data that the states provide to us. They're based on the 
state's existing programs, so they don't take into account--
violate or--issues that are occurring on the ground that would 
not be viewed as violations under the existing state programs.
    So it's, you know, it is a little bit of this chicken and 
egg sort of a situation. What we do know is that the science 
shows that there continue to be adverse impacts notwithstanding 
the state programs that we have on the books.
    Senator Manchin. Improvements have been made. I would say I 
know that Senator Warren's questioning and Mr. Hecker's 
response basically has West Virginia in the crosshairs. I guess 
we are the ones. We are the poster child right now.
    Secretary Huffman, I think you have been on the front lines 
for quite some time.
    I would ask Mr. Hecker, Ms. Schneider and all that, if you 
lived in West Virginia, would you think there is a war on coal? 
If you lived in West Virginia and your family or your community 
basically is trying to make improvements and trying to do 
things with what they are supposed to be able to do what is 
reasonable, would you think that there is a continued attack of 
war on coal?
    Mr. Hecker. No. I think----
    Senator Manchin. You do not think there is a war on coal in 
West Virginia?
    Mr. Hecker. The effort is to make the coal industry like 
every other industry, satisfy the minimum Federal requirement 
of compliance with water quality standards. And that is what my 
litigation----
    Senator Manchin. Any improvements West Virginia----
    Mr. Hecker. There are widespread violations of those 
standards and the rule would level the playing field so the 
coal industry has to meet the same standards that other 
industries do.
    Senator Manchin. But I am saying have you not seen any 
improvements whatsoever?
    Mr. Hecker. Pardon me?
    Senator Manchin. Have you seen any improvements in water 
quality?
    Mr. Hecker. Sure there have been improvements. The problem 
is that the standards don't match the impacts on the ground. 
Selenium and conductivity are unregulated. And they weren't 
even--no one was even aware of them until we brought an action 
to require an EIS.
    In 2003 the scientists went into the field and they said, 
look, all these problems were here we didn't know about. And so 
since then the science has just exploded. And now there's a 
consensus that these are the worst issues, said worst harms.
    Senator Manchin. Secretary Huffman, basically as they have 
identified what they consider to be the gravest problems that 
we have, how have we identified that in West Virginia, and what 
actions have been taken? Is it even feasible to meet the 
standards or requests they are requiring?
    Mr. Huffman. Well there are continuous improvements being 
made. Those improvements are made over time as a result of the 
agency, through science, through even the impacts of third 
party lawsuits. We make adjustments to the program.
    Selenium is a water quality standard, and it is what it is. 
It's the toxicity and the damage being caused by selenium has 
been--is overstated and it's being used inappropriately to 
express damages in the coal fields that simply are not 
occurring. And that's an example of the dishonesty in this 
debate.
    It's hard to get to a place where the coal miner on the 
ground who feels like his job or whose job has been impacted, 
it's hard to look him in the eye and convince him that there's 
not some deliberate action against him when he knows that that 
selenium is not killing anything. So there's not a--it's 
frustrating to not get a--to not be able to make a practical 
application.
    So anytime, so now anytime that these issues come up on us 
from outside of our state, there's a tendency to resist 
everything. It's hard, it's just difficult to have that honest 
debate about what really is wrong.
    Senator Manchin. You think it has all been because of a 
target on mountain top mining?
    Mr. Huffman. I think because of what mountain top mining is 
and what it represents and what people believe it to be, I 
think that that was the target, initially. Unfortunately, the 
other types of coal mining are suffering the consequences.
    Senator Manchin. Being from West Virginia, I know you were 
born and raised the same place I was born and raised, it is 
hard not to believe there has not been a war on coal. Do you 
see that, basically, a lot of these regulations that are coming 
out that are targeting our state?
    Mr. Huffman. Oh yes, absolutely.
    We're, you know, being in Appalachian highlands, the 
highest of the Appalachian highlands, and that's--these rules 
are focused on that region, absolutely.
    Senator Manchin. So you see that.
    I mean, the push back that we get and just trying to find 
it reasonable. They make it look like that in West Virginia we 
don't care about water or don't care about air. I have not 
found a person in my state that does not care, that's not just 
the environmentalists that wanted the clean air and clean 
water, but also they want to have a balance to where they can 
make a living and provide the energy.
    It would be different if the country did not need it. The 
country is depending on what we do.
    Mr. Huffman. It's very insulting because our Federal 
counterparts do, I think, believe that we don't get it. We 
absolutely do get it, and that's part of the frustration in 
dealing with----
    Senator Manchin. Well, it is just beyond me. Understanding 
how this country, Ms. Schneider and Mr. Heckler, all of you 
believe that you can go without the resources that we have been 
providing and we are trying to do that in a better way. We 
really are. We just cannot hit a moving target, and the 
technology is not there to do what you want done.
    I think that has been proven, but you all still double 
down. You go to court and you fight it out in court and it just 
exacerbates the whole problem. No one seems to want to come to 
a balance where we can provide between the environment and the 
economy, and I think that's our biggest frustration.
    The Chairman. Senator Manchin, thank you.
    We will go ahead and conclude today's hearing. We have 
votes that have started, as I mentioned.
    You mentioned the word, Senator Manchin, several others 
have as well, that what we are seeking to do is try to find a 
balance. I think we recognize that coal is our most affordable 
source of energy power in this country, has been for decades 
and still remains so in much of the country. It is not for lack 
of resource that we are not accessing it. It is because of what 
we are seeing with regard to many of the regulations. We 
recognize that natural gas and those low prices are having an 
impact.
    I think part of our role here as an energy committee is to 
make sure that as we are accessing our energy resources, as we 
are acting as that energy super power, which I know, we are as 
a nation, we need to act as one. How do we do so in a way that 
is responsible, that does achieve the balance between accessing 
resource, providing for the jobs and the economic benefit while 
also showing stewardship for our land, our air and our water?
    I think that we can do that. I do not think that these are 
mutually exclusive goals, but I think that we need to be 
careful as we try to advance regulations with an assumption 
that what works in one part of the country is equally 
applicable in others. I think we need to make sure that 
regulations that we impose are rational and reasonable, and are 
not onerous in their overall impact.
    I know, Ms. Schneider, that a bipartisan group of some 33 
Senators has asked the Office of Surface Mining to extend the 
public comment period by 120 days. Before we close, I would ask 
that you reconsider opening the comment period to account for a 
more complete set of comments. I think the fact that you have 
33 members making the request is pretty significant. I would 
certainly hope that the Office of Surface Mining and you, 
yourself, would look to that and act accordingly.
    Ms. Schneider. Thank you, Senator.
    Certainly we take the views of Members of Congress very 
seriously into consideration. We do think that the almost three 
and a half months to review the rule and provide comments is 
sufficient. We have received over 94,000 comments on the rule, 
and so it would be very difficult for us to reopen the comment 
period at this time.
    The Chairman. I would suggest that you give due 
consideration to those 33 members and perhaps others who have 
not signed it. As Mr. Quinn pointed out, this is not just a 
couple pages of regulation. This is extraordinary in its size 
and its scope. Again, the impact on people around the country 
from Alaska to the East Coast is considerable. So I would 
appreciate that courtesy.
    Senator Cantwell. Not to create a debate here at the end of 
our hearing because I do think we got a lot of information out 
there, but I think the counter to that is how long have we 
waited for them to actually implement what is science and an 
inadequate law to give definition to what needs to be there for 
hydraulic impact. There are many places in my state where we 
have seen the impacts of this and we have some of the most 
beautiful streams in the country. We want them to be cleaned 
up, and we want them to be protected. So I guess the counter to 
that would be how long have we waited already? I think we have 
waited a long time to get clean water protected under this act.
    I thank the Chair for allowing me to make that comment.
    The Chairman. With that, the Committee stands adjourned. 
Thank you.
    Ms. Schneider. Thank you, Chairman.
    [Whereupon, at 11:12 a.m. the hearing was adjourned.]

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