[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
WAR ON JOBS: EXAMINING THE OPERATIONS OF THE OFFICE OF SURFACE MINING
AND THE STATUS OF THE STREAM BUFFER ZONE RULE
=======================================================================
OVERSIGHT HEARING
before the
SUBCOMMITTEE ON ENERGY AND
MINERAL RESOURCES
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
Tuesday, July 23, 2013
__________
Serial No. 113-35
__________
Printed for the use of the Committee on Natural Resources
Available via the World Wide Web: http://www.fdsys.gov
or
Committee address: http://naturalresources.house.gov
U.S. GOVERNMENT PRINTING OFFICE
82-128 WASHINGTON : 2014
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing Office,
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202�09512�091800, or 866�09512�091800 (toll-free). E-mail, [email protected].
COMMITTEE ON NATURAL RESOURCES
DOC HASTINGS, WA, Chairman
PETER A. DeFAZIO, OR, Ranking Democratic Member
Don Young, AK Eni F. H. Faleomavaega, AS
Louie Gohmert, TX Frank Pallone, Jr., NJ
Rob Bishop, UT Grace F. Napolitano, CA
Doug Lamborn, CO Rush Holt, NJ
Robert J. Wittman, VA Raul M. Grijalva, AZ
Paul C. Broun, GA Madeleine Z. Bordallo, GU
John Fleming, LA Jim Costa, CA
Tom McClintock, CA Gregorio Kilili Camacho Sablan,
Glenn Thompson, PA CNMI
Cynthia M. Lummis, WY Niki Tsongas, MA
Dan Benishek, MI Pedro R. Pierluisi, PR
Jeff Duncan, SC Colleen W. Hanabusa, HI
Scott R. Tipton, CO Tony Cardenas, CA
Paul A. Gosar, AZ Steven A. Horsford, NV
Raul R. Labrador, ID Jared Huffman, CA
Steve Southerland, II, FL Raul Ruiz, CA
Bill Flores, TX Carol Shea-Porter, NH
Jon Runyan, NJ Alan S. Lowenthal, CA
Mark E. Amodei, NV Joe Garcia, FL
Markwayne Mullin, OK Matt Cartwright, PA
Chris Stewart, UT Vacancy
Steve Daines, MT
Kevin Cramer, ND
Doug LaMalfa, CA
Jason T. Smith, MO
Todd Young, Chief of Staff
Lisa Pittman, Chief Legislative Counsel
Penny Dodge, Democratic Staff Director
David Watkins, Democratic Chief Counsel
------
SUBCOMMITTEE ON ENERGY AND MINERAL RESOURCES
DOUG LAMBORN, CO, Chairman
RUSH HOLT, NJ, Ranking Democratic Member
Louie Gohmert, TX Steven A. Horsford, NV
Rob Bishop, UT Matt Cartwright, PA
Robert J. Wittman, VA Jim Costa, CA
Paul C. Broun, GA Niki Tsongas, MA
John Fleming, LA Jared Huffman, CA
Glenn Thompson, PA Alan S. Lowenthal, CA
Cynthia M. Lummis, WY Tony Cardenas, CA
Dan Benishek, MI Raul M. Grijalva, AZ
Jeff Duncan, SC Colleen W. Hanabusa, HI
Paul A. Gosar, AZ Joe Garcia, FL
Bill Flores, TX Vacancy
Mark E. Amodei, NV Vacancy
Chris Stewart, UT Vacancy
Steve Daines, MT Peter A. DeFazio, OR, ex officio
Kevin Cramer, ND
Doc Hastings, WA, ex officio
------
CONTENTS
----------
Page
Hearing held on Tuesday, July 23, 2013........................... 1
Statement of Members:
Huffman, Hon. Jared, a Representative in Congress from the
State of California........................................ 4
Prepared statement of.................................... 6
Lamborn, Hon. Doug, a Representative in Congress from the
State of Colorado.......................................... 1
Prepared statement of.................................... 3
Statement of Witnesses:
Pizarchik, Hon. Joseph G., Director, Office of Surface Mining
Reclamation and Enforcement, U.S. Department of the
Interior................................................... 7
Prepared statement of.................................... 8
OVERSIGHT HEARING ON ``WAR ON JOBS: EXAMINING THE OPERATIONS OF THE
OFFICE OF SURFACE MINING AND THE STATUS OF THE STREAM BUFFER ZONE
RULE.''
----------
Tuesday, July 23, 2013
U.S. House of Representatives
Subcommittee on Energy and Mineral Resources
Committee on Natural Resources
Washington, D.C.
----------
The Subcommittee met, pursuant to notice, at 10:05 a.m., in
room 1324, Longworth House Office Building, Hon. Doug Lamborn
[Chairman of the Subcommittee] presiding.
Present: Representatives Lamborn, Wittman, Thompson,
Lummis, Gosar, Cramer, Huffman, Cardenas, and Garcia.
Also Present: Representative Johnson of Ohio.
Mr. Lamborn. The Committee will come to order. The Chairman
notes the presence of a quorum, which, under Rule 3(e), is two
Members.
The Subcommittee on Energy and Mineral Resources is meeting
today to hear testimony on an oversight hearing titled, ``War
on Jobs: Examining the Operations of the Office of Surface
Mining and the Status of the Stream Buffer Zone Rule.''
Under Committee Rule 4(f), opening statements are limited
to the Chairman and Ranking Member of the Subcommittee.
However, I ask unanimous consent to include any other Members'
opening statements in the hearing record if submitted to the
clerk by close of business today.
[No response.]
Mr. Lamborn. Hearing no objection, so ordered.
I also ask unanimous consent that Representative Bill
Johnson of Ohio, a former member of this Committee, be allowed
to participate in today's hearing.
[No response.]
Mr. Lamborn. Hearing no objection, so ordered. I now
recognize myself for 5 minutes.
STATEMENT OF THE HON. DOUG LAMBORN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF COLORADO
Mr. Lamborn. The people of the United States are desperate
for jobs, as we now enter our 5th year of the Obama economy. In
light of this, the President tomorrow will travel to Illinois
to give a campaign speech calling for more action on jobs. Yet
the American people do not need more rhetoric, especially when
the agencies and departments of his Administration are going
forward with their war on jobs and job creators.
Some of the hardest hit have been our American coal miners.
The coal industry lost 4,000 workers between 2011 and 2012.
These workers are simply pleading for the Administration to
stop the ongoing war on jobs and embrace a real agenda of job
creation. Hence the Committee's focus on the Obama
Administration's ongoing rewrite of a coal production
regulation, the 2008 Stream Buffer Zone Rule.
This rule was tossed out by the Obama Administration days
after taking office, and never fully implemented, simply
because they did not like it. In fact, in the Office of Surface
Mining's June 18, 2010 Federal Register notice announcing the
new stream protection rule, OSM Director Pizarchik, who we are
going to hear from soon, thank you for being here, stated, ``We
have already decided to change the rule following the change of
Administrations on January 20, 2009.''
Initially, the Administration tried to illegally vacate the
rule. However, the court determined that doing so without
public notice and comment would violate the Administrative
Procedures Act, and said that OSM could only change or revoke
the regulations by going through a formal rulemaking process.
So, instead, the Department reached an out-of-court
settlement with environmental groups, agreeing to an expedited
timeframe for writing the rule. It was supposed to be issued by
February 28, 2011, 2\1/2\ years ago. This is a glaring example
of the non-transparent policy of sue-and-settle, driving the
development of public policy. Unfortunately, this settlement
and the decision to discard years of work and create a new rule
got caught up in the Administration's failure to responsibly
manage the process.
When the results of this reckless rewrite became public,
including projections of massive job losses, reprogramming of
State monies to pay for the rule, failure to responsibly
consult with States and Tribes, and, finally, the controversial
firing of the contractors initially hired to facilitate the
rewrite, this Committee initiated its ongoing investigation
into the matter.
Let's be clear about the Administration's legacy on this
effort. So far, the Administration has spent nearly $9 million
rewriting a rule that was never implemented. That is an
important point, since the 2008 rule was never enacted so that
the Administration can't actually say what the problems are
with it that would need to be addressed with a new rule.
Furthermore, the ongoing inability to actually conduct
rulemaking means the draft of the rewrite isn't anticipated
until late in 2014. Maybe that is why in late January 2013
environmental groups announced that they were reopening their
lawsuit on the 2008 Stream Buffer Zone Rule, since the
Department has missed all the agreed-upon deadlines. Since that
announcement, this Committee, as part of our ongoing
investigation, sent two letters requesting information about
the Department's communications with the Plaintiffs and the
status of the litigation. Five months later, we received some
of the documents requested.
However, as I pointed out to Secretary Jewell last week,
these documents are not useful, due to their extensive
redactions. And in an ongoing pattern of deception, the
Department forgot to mention that they were filing documents
with the court just last Wednesday.
Apparently, the Department does not understand that this
Committee has a constitutional duty to conduct proper
oversight. By not complying with the Committee's request for
information and subpoenas, treating them as FOIA requests,
which they are not, this is the opposite of the so-called
transparency and openness goals of this Administration.
Everything associated with the rewrite of the 2008 Stream
Buffer Zone Rule has been secretive, reckless, wasteful, and
unnecessary.
Meanwhile, coal miners are losing jobs. The regulatory
uncertainty is stifling investment and leaving our partner
States to issue permits with a 1983 law that does need some
refinement. Tomorrow, when the President calls on new policies
for creating jobs, his first call should be to stop the
reckless Office of Surface Mining Rulemaking and restore
certainty to our miners.
[The prepared statement of Mr. Lamborn follows:]
Statement of The Honorable Doug Lamborn, Chairman,
Subcommittee on Energy and Mineral Resources
The people of the United States are desperate for jobs as we now
enter our fifth year of the Obama economy. In light of this, the
President tomorrow will travel to Illinois to hold a campaign speech
calling for more action on jobs. Yet the American people do not need
more empty rhetoric, especially when the agencies and Departments of
his Administration will continue forward with their war on jobs and job
creators.
Some of the hardest hit have been our American coal miners--the
coal industry lost 4,000 workers between 2011 and 2012. These workers
are simply pleading for the Administration to stop the ongoing war on
jobs and embrace a real agenda of job creation.
Hence the Committee's focus on the Obama Administration's ongoing
re-write of a coal production regulation, the 2008 Stream Buffer Zone
Rule. This rule was tossed out by the Obama Administration days after
taking office and never fully implemented because they simply decided
they didn't like it.
In fact, in the Office of Surface Mining's June 18, 2010 Federal
Register Notice announcing the new ``Stream Protection Rule'' OSM
Director Pizarchik stated: ``we had already decided to change the rule
following the change of Administrations on January 20, 2009.''
Initially, the Administration tried to illegally vacate the rule,
however the court determined that doing so without public notice and
comment would violate the Administrative Procedures Act, and said that
OSM could only change or revoke the regulations by going through a
formal rule making process.
So instead, the Department reached an out-of-court settlement with
environmental groups agreeing to an expedited time frame for writing
the rule--it was supposed to be issued by February 28, 2011--two and a
half years ago; a stellar example of the non-transparent practice of
Sue and Settle driving the development of public policy.
Unfortunately, this settlement and the decision to discard years of
work and create a new rule ran into the Administration's failure to
responsibly manage the process. When the results of this reckless re-
write became public--including projections of massive job losses,
reprograming of State monies to pay for the rule, failure to
responsibly consult with states and tribes, and finally the firing of
the contractors hired to facilitate the re-write of the rule--the
Committee initiated its on-going investigation into the matter.
Let's be clear about the Administration's legacy on this effort. So
far the Administration has spent nearly $9 million taxpayer dollars re-
writing a rule that was never implemented. That is an important point
because since the 2008 rule was never enacted the Administration
actually has no idea if there are any problems with the rule that might
need to be addressed with a new rule. Furthermore the ongoing inability
to actually conduct rulemaking means the draft of the re-write isn't
anticipated until late in 2014.
Maybe that's why in late January 2013 environmental groups
announced that they were reopening their lawsuit on the 2008 `Stream
Buffer Zone Rule' since the Department has missed all of the agreed
upon deadlines.
Since that announcement, the Committee as part of our ongoing
investigation sent two letters requesting information about the
Department's communications with the plaintiffs and the status of the
litigation.
Five months later we received some of the documents requested.
However, as I pointed out to Secretary Jewell last week, these
documents are not particularly useful due to the extensive redactions.
And in an ongoing pattern of deception, somehow the Department forgot
to mention that they were filing documents with the court just last
Wednesday.
Apparently the Department, including Secretary Jewell, does not
understand that this Committee has a constitutional duty to conduct
proper oversight.
By not complying with the Committee's requests for information and
Subpoenas--treating them as FOIA requests, which they are not, is the
opposite of the `Transparency and Openness goals'' of this
Administration.
Everything associated with the re-write of the 2008 rule has been
secretive, reckless and wasteful.
Meanwhile, coal miners are losing jobs; the regulatory uncertainty
is stifling investment and leaving our partner states to permit with a
1983 law that needs some refinement. Tomorrow when the President calls
on new policies for creating jobs, his first call should be to stop the
reckless OSM rulemaking and restore certainty to our miners.
______
Mr. Lamborn. I would now like to recognize the Ranking
Member, Acting Ranking Member.
STATEMENT OF THE HON. JARED HUFFMAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Huffman. Thank you, Mr. Chairman. Today's hearing
continues a more than 2-year effort by the Committee Majority
to stop the Office of Surface Mining from protecting
Appalachian streams and communities from destructive
mountaintop removal mining.
I think it is important to remember what this mountaintop
removal process is all about. Waste from mountaintop removal
mining has buried or despoiled 2,000 miles of Appalachian
streams over the last 30 years. New research also links this
type of mining with cancer, birth defects, lung and heart
disease, and other adverse health effects. Nonetheless,
President George W. Bush and his Administration issued a
midnight regulation that loosened Reagan-era restrictions on
the dumping of mining waste in or near streams.
Now, the Majority blames OSM, the Office of Surface Mining,
and the Obama Administration for acting to fix the Bush rule.
But the blame really should lie with the Bush Administration,
which failed to provide either a reasoned explanation or an
evidentiary basis for its action. They ignored evidence of
adverse environmental impacts and claimed, without supporting
evidence, that their rule would ``positively impact the
environment.'' The Bush rule was likely to be thrown out in
court for all of these reasons.
Now, with the Appalachian region dangerously exposed to the
ravages of mountaintop removal mining, the Obama Administration
had no choice but to initiate a new rulemaking to revise the
Bush Administration's rule. Now, the Majority has charged that
OSM has recklessly rushed this rulemaking. So let's step back
for a moment and talk about where this process actually stands.
OSM has been analyzing and deliberating over options for a
new stream protection rule for the last 3 years. During that
time, OSM has overseen unprecedented outreach sessions with
coal companies and other stakeholders, and solicited comments
from the public, which the Agency was under no requirement to
do at this early stage. The Agency has already received more
than 50,000 comments on its stream protection rulemaking.
Now, this is more comments, by the way, than were received
during the entire Bush rulemaking, even though OSM has not even
issued a proposed rule yet. That is right. Despite the
Majority's claims about the dire consequences of a new stream
protection rule, despite the loaded title of this hearing,
``The War on Jobs,'' OSM hasn't even issued a proposed rule and
supporting analysis that could form the basis for any serious
critique.
Once a proposed rule is actually issued, this Committee can
have a reasoned debate about what the proposed rule would and
wouldn't do. Members of the public, including coal companies,
would have a chance to weigh in and offer their perspective.
And OSM will be required to consider these outside
perspectives, and may adjust its proposed rulemaking based on
that input before adopting a final rule that actually has the
force of law. But at this point the Committee Majority is just
making blind assertions about the consequences of a rule that
doesn't exist and which no one has seen.
Now, let me say a few words about the Majority's
investigation into this rulemaking. We, in the Minority,
believe that congressional oversight is actually vital to a
well-functioning government. But the Majority's endless and
frivolous document requests are wasting taxpayers' money, and
diverting OSM and the Interior Department from their core
responsibilities of serving the American people.
The Interior Department has already produced more than
14,000 pages of documents in response to the Majority's
inquiries. The Majority has also received documents from the
Office of Management and Budget, the EPA, the Army Corps of
Engineers. And contractors that worked on the rulemaking have
provided almost 7,000 pages of documents and roughly 25 hours
of audio recordings of meetings with OSM officials. In all of
these materials, there is no evidence that OSM or the
Administration have done anything improper.
In fact, the documents refute the Majority's allegations,
as shown in a report from the Committee's Democratic staff last
year. And the Majority was unable to find anything significant
in all those hours of audio tape. The few snippets of tape used
by the Majority to attack stream protection rulemaking have
been flagrantly misrepresented, as discussed the last time Mr.
Pizarchik was before this Committee.
Committee Republicans should end their wasteful and
baseless investigation, and make their case on the merits. Why
should we continue allowing mountaintop removal mining to bury
hundreds of miles of Appalachian streams, destroy mountain
towns, and threaten people in the region with cancer, lung and
heart disease, and other problems? We in the Minority welcome
that debate.
But we should see what OSM actually proposes first. Today's
hearing is a premature sideshow.
And I yield back.
[The prepared statement of Mr. Huffman follows:]
Statement of The Honorable Jared Huffman, a Representative
in Congress from the State of California
Thank you Mr. Chairman. Today's hearing continues a more than two-
year effort by the Committee Majority to stop the Office of Surface
Mining from protecting Appalachian streams and communities from
destructive mountaintop removal mining.
Waste from mountaintop removal mining has buried or despoiled
nearly 2,000 miles of Appalachian streams over the last 30 years. New
research also links this type of mining with cancer, birth defects,
lung and heart disease, and other adverse health effects. Nonetheless,
the George W. Bush administration issued a midnight regulation that
loosened Reagan-era restrictions on the dumping of mining waste in or
near streams.
The Majority blames OSM and the Obama administration for acting to
fix the Bush rule. But blame should lie with the Bush administration,
which failed to provide either a reasoned explanation or an evidentiary
basis for its action, ignored evidence of adverse environmental
impacts, and claimed without supporting evidence that the rule would
``positively impact the environment.'' The Bush rule was likely to be
thrown out in court for these reasons.
With the Appalachia region dangerously exposed to the ravages of
mountaintop removal mining, the Obama administration had no choice but
to initiate a new rulemaking to revise the Bush rule.
The Majority has charged that OSM has ``recklessly rushed'' this
rulemaking, so let's step back now and talk about where the process
stands.
OSM has been analyzing and deliberating over options for a new
Stream Protection rule for the last three years. During that time, OSM
has overseen unprecedented outreach sessions with coal companies and
other stakeholders and solicited comments from the public, which the
agency was under no requirement to do at this early stage. OSM has
already received more than 50,000 public comments on its Stream
Protection rulemaking.
This is more comments, by the way, than were received during the
entire Bush rulemaking, even though OSM has not issued a proposed rule
yet.
That's right: Despite the Majority's claims about the dire
consequences of a new Stream Protection rule, OSM hasn't even issued a
proposed rule and supporting analysis that could form the basis of
critique.
Once a proposed rule is issued, this Committee can have a reasoned
debate about what the proposal will and won't do. Members of the
public, including coal companies, will have a chance to weigh in and
offer their perspectives. And OSM will be required to consider these
outside perspectives--and may adjust its proposal based on that input--
before adopting a final rule that has the force of law.
At this point, however, the Committee Majority is just making blind
assertions about the consequences of a rule that doesn't exist and no
one has seen.
Now let me say a few words about the Majority's investigation into
this rulemaking. We in the Minority believe that congressional
oversight is vital to a well-functioning government, but the Majority's
endless and frivolous document requests are wasting taxpayer money and
diverting OSM and the Interior Department from their core
responsibilities of serving the American people.
The Interior Department has produced around 14,000 pages of
documents in response to the Majority's inquiries related to this
rulemaking. The Majority has also received documents from the Office of
Management and Budget, EPA, and the Army Corps of Engineers. And
contractors that worked on the rulemaking have provided almost 7,000
pages of documents and roughly 25 hours of audio recordings of meetings
with OSM officials.
In all of these materials, there is no evidence that OSM or the
administration have done anything improper. In fact, the documents
refute the Majority's allegations--as shown in a report from the
Committee's Democratic staff last year--and the Majority was unable to
find anything significant in all those hours of tape.
The few snippets of tape used by the Majority to attack the Stream
Protection rulemaking have been flagrantly misrepresented, as discussed
the last time Mr. Pizarchik was before this Committee.
Committee Republicans should end their wasteful and baseless
investigation, and make their case on the merits: Why should we
continue allowing mountaintop removal mining to bury hundreds of miles
of Appalachian streams, destroy mountain towns, and threaten people in
the region with cancer, lung and heart disease, and other health
problems?
We in the Minority welcome that debate, but we should see what OSM
proposes first. Today's hearing is a premature sideshow.
______
Mr. Lamborn. We will now hear from our witness. I would
like to welcome The Honorable Joe Pizarchik, Director of the
Office of Surface Mining, Reclamation, and Enforcement of the
Department of the Interior.
Like all of our witnesses, your written testimony will
appear in full in the hearing record, so I will ask that you
keep your oral statement to 5 minutes. Our microphones are not
automatic, so you need to turn them on when you begin speaking.
I also want to explain how our timing lights work. When you
begin to speak, our Clerk will start the timer, and a green
light will appear. After 4 minutes a yellow light will appear.
And then, after 5 minutes, the red light comes on and I would
ask that you conclude at that time.
Director Pizarchik, thank you for being here, and you may
begin.
STATEMENT OF JOSEPH G. PIZARCHIK, DIRECTOR OF THE OFFICE OF
SURFACE MINING RECLAMATION AND ENFORCEMENT, DEPARTMENT OF THE
INTERIOR
Mr. Pizarchik. I thank you, Chairman Lamborn and Ranking
Member Huffman and members of the Committee, for the
opportunity to testify on behalf of the Office of Surface
Mining Reclamation and Enforcement regarding our operations,
the status of the Stream Buffer Zone Rule and, equally as
important, the Bureau's proposed rulemaking to better protect
streams from the adverse effects of coal mining. As always, we
look forward to working with you on matters relating to our
mission under the Surface Mining Control and Reclamation Act.
Congress gave us its regulatory authority and our
responsibilities 36 years ago when it passed SMCRA and mandated
that we strike a balance between protecting the environment and
helping provide for the Nation's energy needs. OSM was
established to carry out two basic functions.
First, we are to ensure that mines operate in a manner that
protects both people and the environment, and that the land is
restored and is as productive after mining as it was before
mining.
Second, we are to provide an abandoned mine land program to
address hazards to people and the environment that were created
during the mining for more than 200 years of largely
unregulated mining.
As Interior Secretary Sally Jewell has stated, ``Our
commitment to the President's all-of-the-above energy strategy
will enable us to continue with the safe and environmentally
responsible expansion and diversification of our Nation's
energy production, further reducing our reliance on foreign
oil, and protecting our land and water at the same time.''
Protecting people, land, water, and the environment, and
providing for responsible coal mining are not mutually
exclusive. We can have both.
The all-of-the-above energy strategy is working. Activity
in the Gulf of Mexico exceeds levels before the Deepwater
Horizon spill. Onshore oil production from Federal lands is at
its highest level in over a decade. Although OSM is not
involved in coal leasing, the Administration is also making
more coal available. In 2012, the Bureau of Land Management
leased more coal than at any other time since 2003.
Along with responsible oil and gas development and the
growth of clean, renewable energy, the production of coal is an
important component of this Nation's energy portfolio, as
evidenced by the President's support for clean coal technology.
The responsible development of this resource is a key part of
America's energy and economic security. Coal will remain an
important part of our energy mix for years to come.
In December of 2008, OSM published a final rule that
modified the circumstances under which mining can occur in or
near streams. It is called the Stream Buffer Zone Rule, and has
been challenged in court by 10 organizations. While the
litigation has been pending, the Department has identified
additional considerations that the 2008 rule did not address.
There have been significant advances in science and
technology since the adoption of the 1983 rule that were not
addressed in the 2008 rule. Incorporating the most up-to-date
science, technology, and knowledge concerning the effects of
coal mining is essential to developing modern regulations. In
addition, the 2008 rule did not provide objective standards for
certain important decisions. Therefore, OSM began work to
modernize its regulations, incorporating new science,
technology, and the best practices in areas that can improve,
update, and more completely implement the law.
Many scientific advances have occurred in the past 30
years. In accordance with the law, OSM can and should consider
those advances when modernizing its regulations. The 2008 rule
did not incorporate the most modern technology and science that
were available at that time, nor does the rule reflect the
scientific advances that have occurred since that rule was
adopted.
The revised rule that incorporates modern science,
technology, knowledge, and best practices will enable the
industry to do a better job and, in many cases, their work
being done in a more economic and efficient manner. These goals
are fully consistent with Congress's mandate, while also
retaining much needed well-paying jobs and generating revenue
in the Nation's energy fields.
As we develop the rule we are considering ways to improve
the key provisions of the law in order to be able to minimize
disturbances to fish, wildlife, and related environmental
values, as is required by the law.
The development of the proposed rule is an iterative and
interactive process. We develop each in concert with the other.
The cost-benefit analysis and the potential rule changes help
inform the decision of what should be in the proposed rule. OSM
plans to publish the proposed rule in 2014. Consistent with the
law, we will ask interested stakeholders and the public to read
and comment on the proposed rule and draft EIS once those
documents have been finalized and are available.
Thank you for the opportunity to be here today. I am
available, should you have any questions.
[The prepared statement of Mr. Pizarchik follows:]
Statement of Joseph G. Pizarchik, Director, Office of Surface Mining
Reclamation and Enforcement, U.S. Department of the Interior
I. INTRODUCTION
Mister Chairman and Members of the Subcommittee, thank you for the
opportunity to testify on behalf of the Office of Surface Mining
Reclamation and Enforcement (OSM) regarding our operations, the status
of the Stream Buffer Zone Rule, and equally as important, the bureau's
proposed rulemaking to better protect streams from the adverse effects
of coal mining. As always, OSM looks forward to working with you on
matters relating to its mission under the Surface Mining Control and
Reclamation Act (SMCRA).
Congress gave OSM its regulatory authority and responsibilities
nearly 36 years ago when it passed SMCRA. At that time, Congress
mandated that OSM strike a balance between protecting the environment
and providing for the nation's energy needs. Specifically, Congress
established the bureau to carry out two basic functions. First, we are
to ensure that coal mines operate in a manner that protects both people
and the environment, and that the land is restored and is as productive
after mining as it was before mining. Second, we are to provide an
Abandoned Mine Land program to address hazards to people and the
environment that were created during the more than two hundred years
before SMCRA's enactment when coal mining was largely unregulated.
As Interior Secretary Sally Jewell has stated, our commitment to
the President's ``all of the above'' energy strategy will enable us to
continue with the safe and environmentally responsible expansion and
diversification of our nation's energy production, further reducing our
reliance on foreign oil, and protecting our land and water at the same
time. Protecting people, land, water, and the environment and promoting
responsible coal mining are not mutually exclusive. We can have both.
The ``all of the above'' energy strategy is working. Activity in
the Gulf of Mexico exceeds levels before the Deepwater Horizon spill.
Onshore, oil production from Federal lands is at its highest level in
over a decade.
Although OSM is not involved in coal leasing, which is conducted by
the Bureau of Land Management, the Administration is also making more
coal available, with the number of producing acres rising four percent
from FY 2009 to FY 2012. In fact, in FY 2012, the Bureau of Land
Management leased more coal than at any other time since FY 2003.
Under SMCRA, most states have primary responsibility, also known as
``primacy'' under SMCRA, to protect people and the environment from the
adverse effects of surface coal mining. At OSM, we provide assistance
to, and oversight of, primacy states to help ensure proper regulation
of surface coal mining and the protection of people and the
environment. We are also continuing the reclamation of high-priority
abandoned mine sites, and are reducing the number of remaining
dangerous abandoned mine sites nationwide.
Along with responsible oil and gas development and the growth of
clean, renewable energy, the production of coal is an important
component of our nation's energy portfolio, and the responsible
development of this important resource is a key part of America's
energy and economic security. Coal will remain an important part of our
energy mix for years to come. We are committed to safe, responsible
coal production and the jobs it supports.
II. UPDATE ON STREAM BUFFER ZONE RULE
In December 2008, OSM published a final rule that modified the
circumstances under which mining can occur in or near streams. The
``Stream Buffer Zone Rule'' (or ``2008 SBZ Rule'') has been challenged
by ten organizations in two separate complaints filed in District Court
for alleged legal deficiencies.
While the litigation has been pending, the Department of the
Interior has identified additional considerations that the 2008 SBZ
Rule did not address. As a threshold matter, there have been
significant advances in science and technology since the promulgation
of the 1983 rule that were not addressed in the 2008 SBZ Rule.
Incorporating the most up-to-date science, technology, and knowledge
concerning the effects of surface coal mining is essential to
developing maximally beneficial modern regulations. In addition, the
2008 SBZ Rule did not provide objective standards for certain important
regulatory decisions, such as a requirement to collect baseline
information about pre-mining conditions so that the regulatory
authority can accurately assess the impacts of mining and assure proper
reclamation. Therefore, OSM began work to modernize its regulations,
incorporating new science, technology, and knowledge in areas that can
improve, update, and more completely implement SMCRA.
Many scientific advances have occurred in the past 30 years. Under
SMCRA, OSM can and should consider those advances when modernizing its
rules. The 2008 SBZ Rule, now almost five years old, did not
incorporate the most modern technology and science that were available
at that time, nor does the rule reflect the scientific advances that
have occurred since the rule was promulgated. That is one reason why,
combining OSM's on-the-ground experience with peer-reviewed academic
study, we are modernizing our rules and using the best available
technology and science to improve mining practices in order to minimize
and mitigate environmental damage from surface coal mining.
A revised rule that incorporates modern science, technology, and
knowledge will enable the coal industry to do a better job of
reclaiming the land and restoring natural resources, and in many cases,
will lead to that work being done in a more economical and efficient
manner. These goals are fully consistent with Congress' mandate and
OSM's mission, while also retaining much-needed, well-paying jobs, and
generating revenue in the nation's coal-producing regions.
As we proceed with development of the Stream Protection Rule, we
are considering ways to improve key provisions. SMCRA requires that
surface coal mining and reclamation operations be conducted to minimize
disturbances to fish, wildlife, and related environmental values ``to
the extent possible using the best technology currently available.'' We
are considering revisions that will provide solid benchmarks for
companies to meet, and that will be based on the latest accepted
scientific methods. Clear and uniform standards provide greater
predictability and certainty to the mining industry, and can better
protect affected communities.
OSM will also consider the extensive public and agency comments it
has received to date on the Stream Protection Rule. Further, it will
consider the benefits, as well as the costs, of the agency's regulatory
alternatives. Development of the proposed rule language and the Draft
EIS is an iterative and interactive process; we are developing each in
concert with the other. The cost/benefit analysis of potential rule
changes helps inform the decisions of what should be included in the
proposed rule. OSM plans to publish a proposed rule and associated
Draft EIS in 2014.
Consistent with SMCRA, the National Environmental Policy Act, the
Administrative Procedure Act, and other applicable laws, we will ask
interested stakeholders--whether from Congress, industry, environmental
organizations, or members of the public--to read and comment on the
proposed rule and Draft EIS once those documents have been published.
We have received extensive input from the public, states, and other
Federal agencies on issues that we will consider in drafting the
proposed rule, including more than 32,000 comments in 2009, and more
than 20,000 after we held public scoping meetings in 2010. We look
forward to additional public review and comment on the proposed rule
and Draft EIS once they are published.
III. CONCLUSION
Thank you for the opportunity to appear before the Committee today
to testify on operations of OSM, the Stream Buffer Zone Rule, and the
development of OSM's Stream Protection Rule. Our efforts will result in
regulatory improvements that will more completely implement the law,
make use of the best available science and technology, better protect
streams nationwide, and provide greater clarity and certainty to the
mining industry and the affected communities.
We remain committed to providing ample opportunity through the
rulemaking process for the Congress, public, industry, stakeholders,
and others to provide input on the proposed rule that will help us
develop a balanced and responsible final rule.
I look forward to working with you to ensure that we protect the
nation's land and water while meeting its energy needs.
______
Mr. Lamborn. All right. Thank you for your statement. Thank
you for being available to answer questions. I will go ahead
and jump in.
Mr. Director, in the audio recordings, the Committee found
last year that there were clips of OSM staff directly
explaining that it was ``the Director's goal,'' that is your
goal, to make coal mining companies ``make a decision are they
willing to risk their ability to ever mine coal again against
the possibility that they won't be able to restore the
stream.''
As Director of OSM, is it still your goal to use forfeiture
rules to drive coal companies out of business with the new
regulation?
Mr. Pizarchik. What the law provides is that in order to
assure mining, the applicant can only mine where they can
restore the land where mining is feasible. The law requires
them to post a bond to ensure that they meet their statutory
requirements. That is under Section 509. And if they do not
fulfill their requirements, the law also requires that their
bonds be forfeited.
Now, the comments that you were talking about refer to the
mere market conditions. What we are trying to do, what staff
was trying to explain was that in the free market economics set
forth in the statute, that the mine operator has the option and
the duty to figure out whether it is technologically and
economically feasible to mine that coal and to restore the
land, as is required by the law.
Mr. Lamborn. So, driving companies out of business is not
the intention, or is the intention?
Mr. Pizarchik. No, it is not. In fact, what we are trying
to do is modernize our regulations to help ensure that we have
a strong, viable industry so they do not undertake mining that
would result in excessive liabilities for perpetual treatment
of their water. I have seen that happen in Pennsylvania years
ago. And sometimes in the competitive world of business they
make short-term business decisions that----
Mr. Lamborn. OK.
Mr. Pizarchik [continuing]. End up costing them their
livelihood and the jobs that they actually provide.
Mr. Lamborn. Now, Mr. Director, OSM continues to contract
with many of the same contractors that began working on this
rule 4 years ago, and some are different. Can you tell the
Committee whether the contractors responsible for drafting the
EIS and the RIA have been instructed, for the purpose of this
rulemaking, to pretend that the 2008 rule is in effect and
being implemented across the country, or whether they were
instructed to use on-the-ground factual information for their
research?
Mr. Pizarchik. Our job is to uphold and implement the laws
of the land. Under the laws of the land, as I understand it,
that requires a baseline to take into consideration all the
regulations that are on the books at the time when we are
promulgating the new regulations. And according with that, the
first contractor and the second contractor are looking at what
are all the regulations.
The first contractor included that in Chapters 1 and 2 and
the first parts of Chapter 4, then inexplicably disregarded the
2008 rule when doing some of the cost benefit analysis in the
latter parts of Chapter 4.
Mr. Lamborn. Now, let me just step back, Mr. Director, and
look at the intention of the rule, or the impact of the rule.
Is it the intention of the Office of Surface Mining for the
Stream Buffer Zone Rule to affect the production of longwall
mining?
Mr. Pizarchik. The Stream Buffer Zone Rule that is in
effect I don't believe specifically addresses longwall mining.
If you are talking about the rules that we are working to
develop on the stream protection rule--is that which one you
are asking----
Mr. Lamborn. Yes, Mr. Director.
Mr. Pizarchik. OK.
Mr. Lamborn. The proposed rule that you are working on.
Mr. Pizarchik. All right. The Surface Mining Act, the law,
since its inception, has always required any type of coal
mining to not cause material damage in areas adjacent to it. So
the law has always required for underground mining, longwall
mining, surface mining, not to cause material damage to streams
adjacent to the permitted mining operation.
Mr. Lamborn. So it is the intention of OSM to affect the
production of longwall mining through the proposed rule.
Mr. Pizarchik. No. What our intent is is to better protect
streams and to more completely implement the statute the way it
was written in 1977 to protect streams from the adverse effects
of coal mining. That would include longwall mining as well as
surface mining.
Mr. Lamborn. OK, thank you. I would now recognize the
Ranking Member.
Mr. Huffman. Thank you, Mr. Chairman, and welcome, Director
Pizarchik. Director Pizarchik, the Surface Mining Control and
Reclamation Act requires OSM to set standards based on best-
available technology, and to minimize disturbances and adverse
impacts of surface mining.
Now, since the Bush Administration issued its Stream Buffer
Zone Rule in 2008, there has been a growing body of research,
including several studies in 2011 and 2012, that show
mountaintop removal mines not only ruin ecosystems, but can
cause human health effects like cardio-vascular disease,
cancer, birth defects, and poor overall health.
Doesn't OSM have a legal responsibility to adjust its rules
according to the evolving science about the dangers of
mountaintop removal mining? And are you considering this new
research as you develop the proposed rule?
Mr. Pizarchik. Yes, we do have that duty. The statute
imposes the obligation to use the most correct technology and
the best methods to minimize it. And part of our efforts on
developing the stream protection rule is to look at all of the
existing science, available science, emerging science, and
appropriately consider that in our rulemaking process.
Mr. Huffman. Thank you. Director Pizarchik, the Majority
has made a lot of accusations about the consequences of a new
stream protection rule. But I want to ask you about the
rifeness of these accusations and whether they are premature.
As required by both statute and Executive order, you are
going to have to engage in a robust economic analysis,
including an assessment of costs and benefits, as part of your
rulemaking, once a proposed rule is actually issued. That
proposed rule will then be subject to extensive public comment,
which will inform the final rule that, again, will have to
contain a cost benefit analysis.
So, in light of all that, my question to you is whether the
conversation we are having today is premature, when a rule
hasn't even been issued.
Mr. Pizarchik. Yes, sir, it is, because we are still in the
process of developing that rule. We do not yet know what will
be in that proposed rule.
Mr. Huffman. And isn't it true that the analysis you are
doing is precisely to ensure that the benefits of a new stream
protection rule will outweigh the costs?
Mr. Pizarchik. Yes, sir. That is what the law requires us
to do.
Mr. Huffman. And just to be clear, coal companies, even
Members of Congress and other outside parties, will have an
opportunity to weigh in on your proposed rule and the
accompanying economic analysis, once that work is complete. Is
that correct?
Mr. Pizarchik. Absolutely, sir.
Mr. Huffman. Director Pizarchik, I want to ask you about
Patriot Coal. This is the second-largest producer of surface-
mined coal in West Virginia. And they agreed late last year to
abandon mountaintop removal mining. According to their CEO,
``We recognize that our mining operations impact the
communities in which we operate in significant ways.'' And
abandoning mountaintop removal ``will result in a reduction of
our environmental footprint.'' So even coal companies are
acknowledging what the Majority today fails to understand, that
mountaintop removal mining is dangerous. We risk great harm to
children and families in surrounding communities without
meaningful protections.
Mr. Director, what risks to the environment and community
has caused your Agency to initiate the stream protection
rulemaking, and why are stronger protections needed?
Mr. Pizarchik. There are a number of risks with that. In
regards to the mountaintop removal mining, science is showing
that we have selenium poisoning the streams and the aquatic
communities from some of the mines. There are high levels of
total-dissolved solids that are adversely affecting the aquatic
communities, and sometimes have resulted in fishkills. There
are dust issues and concerns that come off that, but are beyond
our authority.
What we are trying to do is use the most modern science to
adequately protect the public with the best technology
available.
Mr. Huffman. Thank you for your testimony. I will yield the
balance of my time.
Mr. Lamborn. OK, thank you. And I would like to recognize
Mr. Gosar.
Dr. Gosar. Mr. Director, do you believe in the rule of law?
Mr. Pizarchik. Yes, sir.
Dr. Gosar. And how about your science? How do you look at
your science, the facts of science? Are they peer-reviewed
science? By the way, I am a science guy, so I am really curious
about how we look at science from----
Mr. Pizarchik. From our standpoint, as far as the
rulemaking, we are considering all the science. Peer-reviewed
science obviously has more value to it, and is part of our----
Dr. Gosar. Has more value. So let me stop you right there.
So it has more value, but other, unsubstantiated science you
can use. I mean, because that is what you just said.
Mr. Pizarchik. My understanding is the----
Dr. Gosar. No, no, no. Your understanding. I want to know
how you apply it. I mean you are the Director; you should know
how you apply it.
Mr. Pizarchik. That is what I am about to answer, sir.
It is my understanding that the staff is considering all
the science that is available. They are the ones who will be
making the decisions and looking at what the science is and
what should be considered. Whatever science we have available
and what has been considered will be documented in the
documents that we produce, the draft EIS. So the public,
scientists like yourself, everyone, will have the opportunity
to review and comment on that. And if we miss something or have
other things, we will be able to provide their input----
Dr. Gosar. I am glad you brought that up. Because, I am
sitting here from Arizona, from the Navajo Generating Station,
and the whole decision process isn't even made on science. It
is just not even on science. And so I am also one of these guys
about trust is a series of promises kept, about having that
stewardship. I want my environment clean, too, but I also want
it based on science, reputable science, and having a dialog.
And that is why I am kind of having a problem here, because
I have seen past inferences, and then you provide this track
record of not complying with some type of oversight with
Congress. I mean, we get these things severely redacted. I mean
it seems like this is an MO with this Administration, which
brings me to another question.
Is there new technology in law?
Mr. Pizarchik. I am sorry, could you repeat that?
Dr. Gosar. Yes. Is there new technology in law?
Mr. Pizarchik. New technology in law?
Dr. Gosar. Yes. Best management practices in law.
Mr. Pizarchik. I am not sure I understand your question.
Dr. Gosar. Well, it seems like what we have a problem with
is that if we don't like what one judge says, we just call and
shop for another judge. It seems to be a new vogue type of
application about how we get our way when we shop judges. It
seems to be the Department of Justice just loves doing this,
not just here, because it is already showing a habit here, but
in other places of this Administration, whether it be in civil
law, whether it is criminal law. You pick and choose.
I mean, so do we have that intention here?
Mr. Pizarchik. I don't know what you are referring to. I am
not familiar----
Dr. Gosar. You haven't shopped judges?
Mr. Pizarchik. Not to my knowledge.
Dr. Gosar. Really? You find your duty to Congress is to
comply with oversight?
Mr. Pizarchik. Yes, the Congress has a legitimate role in
oversight, and we have also a legitimate role in the executive
process. The Constitution sets forth the legislative authority
under Article 1-2. Congress reserves the executive authority
under Article 2 to the President, and we try to work together
to accommodate our mutual interests in order to have a viable
program, and a process----
Dr. Gosar. OK. So then you actually made a deal that we
were going to come out with an out-of-court settlement where we
had a proposed rule on February 28th of 2011. Why did we miss
that deadline?
Mr. Pizarchik. In the agreement that we had, we thought it
was in the best interest of government not to be litigating,
but to be working toward modernizing our regulations. We
committed to making our best efforts----
Dr. Gosar. But, I mean, you told me that you agreed with
the rule of law. So why are we coming with that, making some
type of deadline, and then pursuing it beyond that point?
Mr. Pizarchik. In the agreement we made a commitment to do
our best efforts. We made our best efforts. Despite our best
efforts, we were not able to complete a proposed rule in that
timeframe. Perhaps, having come from the State government into
the Federal Government, I was a little bit naive as to how long
it takes to get a rule or anything done in Washington.
Dr. Gosar. Are you in the process of reaching another
closed-door settlement with the environmental groups?
Mr. Pizarchik. Not to my knowledge, sir.
Dr. Gosar. Have you promised the litigants that you will
have a date-specific time for the rulemaking process?
Mr. Pizarchik. Not to my knowledge, sir, I have not.
Dr. Gosar. Do you have a list of scientific data that you
can share with us that you are looking at in implementing this
buffer rule?
Mr. Pizarchik. I personally do not. I know that the staff
has been working in----
Dr. Gosar. It would be nice to have the staff share, I
mean, correspond with Congress as to what they are looking in
the scientific method. I think a transparent type of atmosphere
will definitely help us in that application.
Mr. Pizarchik. We will cooperate whatever way we can with
the legitimate oversight interest of the Congress, but we also
want to protect the executive prerogatives of our deliberative
process in developing the rulemaking. When we have the draft
EIS available and published, it will reference all of the
science and data that we have considered. Everyone will have
the opportunity to review that, offer any additional ones if we
may have missed something, as well as provide their comments on
our analysis.
Dr. Gosar. I, once again, go back to trust is a series of
promises kept. It is like the Navajo Generating Station. There
is no trust. And nothing is warranted. So I yield back.
Mr. Lamborn. OK, thank you. Mr. Cardenas.
Mr. Cardenas. Thank you very much. You do have some trust
in me. I don't know what he means by no trust. But you have
trust in me and my constituents, as well.
Director Pizarchik, the Majority has inquired about how
much money has been spent on the Obama Administration's stream
protection rulemaking. However, OSM would not have needed to
undertake this rulemaking if the Bush rule promulgated in 2008
was sufficiently protective and legally sound.
The Bush rule failed to provide required justification and
ignored key evidence of environmental harm, violating the
Administrative Procedure Act, the Surface Mining Control and
Reclamation Act, the National Environmental Policy Act, and
other environmental laws. The Obama Administration saw these
problems and consequently settled the lawsuit challenging the
rule by agreeing to undertake a new rulemaking.
Can you talk about the problems with the 2008 rule and why
OSM had no choice but to undertake this rulemaking?
Mr. Pizarchik. Yes, sir. One of the primary problems with
it is under the law that we are charged with executing,
carrying out, OSM did not consult with the United States Fish
and Wildlife Service regarding the impacts of that 2008 rule,
as required by the law. We have admitted that error. Thinking
it is in the best interest of the government not to litigate
something where we made a mistake, but to admit our mistake,
minimize the litigation costs, and move on, and that is what we
are doing. As well, trying to modernize our regulations with
the most modern science and best practices that are being
applied in the industry.
Mr. Cardenas. Now, if we were to go ahead and allow
activity to happen on our lands in this country without sound
policy and/or sound science. Could some of the effects that we
would allow during a certain period of time, could some of
those effects last maybe decades, even longer?
Mr. Pizarchik. Yes, sir. In fact, that is exactly what
happened that led to the Surface Mining Act. We had about 100
years of virtually unregulated mining, and we are still in the
process of, billions of dollars later, cleaning up the mess
that was created. We have miles and miles of streams that were
polluted, water supplies destroyed. There are just thousands,
and hundreds of thousands of acres of problems and water
pollution out there by unregulated mining.
Mr. Cardenas. Now, when those kinds of things occur, could
those kinds of negative effects affect entire communities and/
or jobs and/or economic flow of particular communities when we
see that kind of contamination to our water systems?
Mr. Pizarchik. Absolutely. Any time you talk to any person
starting a business or expanding it, one of the most important
things that they want to have is clean water. I have seen parts
of Appalachia where there is no business, because all the water
has been polluted by historic mining.
Mr. Cardenas. Yes. And it is my understanding that the
title of this hearing is, ``War on Jobs: Examining the
Operations of the Office of Surface Mining and the Status of
the Stream Buffer Zone Rule.'' So, basically, what you just
said falls right in line with the war on jobs. I guess there is
a war on jobs when we don't protect the environment. And,
specifically, when we don't protect potable water.
Mr. Pizarchik. Yes. And, not only that, if you have a
company who doesn't follow the law and creates post-mining
pollutional discharge from their mining, that could go on for
centuries, if not longer.
And I know of many instances in the past where companies
who did that are no longer working today. They have no
employees working today because their liabilities far exceeded
their ability to make money, and they are out of business. And
those jobs are lost, the environment is destroyed, the
communities are damaged. We don't need any more of that.
Mr. Cardenas. OK. On to another example. The Twilight
mountaintop removal mine in Boone County, West Virginia, has
had a devastating impact on nearby residents. Many grew weary
of breathing dust-laden air and communities were transformed
into ghost towns.
One former resident explained to the New York Times, ``You
could wash your car today and tomorrow you could write your
name on it in the dust. It was just unpleasant to live in that
town, period.''
Another resident was quoted as saying, ``This powder from
the mountaintops was settling on everything, turning to brown
paste in the rain. People no longer hung their whites on the
clothes lines.''
To hear the Majority tell it, these people should be
grateful for their community's mountaintop removal mine. But
that is not exactly the reality to them. Director Pizarchik,
has OSM heard these sorts of complaints as you conduct outreach
in the Appalachian communities and develop your rulemaking?
Mr. Pizarchik. Yes, sir. I have.
Mr. Cardenas. You have?
Mr. Pizarchik. Yes, and I have personally seen some of it.
I have heard complaints about blasting issues and fumes from
the blasting operations. I have been in Appalachia where mud is
being tracked out on the roads, making the roads dangerous for
the public to travel, et cetera.
Mr. Cardenas. Thank you very much. I yield back my time.
Thank you.
Mr. Lamborn. I would like to now recognize Representative
Wittman.
Dr. Wittman. Thank you, Mr. Chairman. Thank you, Director
Pizarchik, for joining us today.
I want to start out. You noted that there would be a cost
benefit analysis that would be done concerning the proposed
regulation. Tell me a little bit about the cost benefit
analysis. It is my understanding that the Agency does a cost
benefit analysis. Is there any external review or peer review
by economists of that to determine its validity?
Mr. Pizarchik. I will give you a little bit of an
explanation as to what we were doing. Because of the cost
benefit analysis, we don't have that expertise on OSM staff. So
we have contracted out for outside experts to do that work.
Dr. Wittman. OK.
Mr. Pizarchik. And within that contract we have also
provided, on the cost benefit analysis, for there to be expert
peer review of their particular work. So that is occurring.
And so, once the cost benefit analysis has been completed
by the contractor, it will also have been peer-reviewed by
other experts.
Dr. Wittman. Is the cost benefit analysis also subjected to
public comment in the rulemaking process?
Mr. Pizarchik. As I understand the law, and the cost
benefit analysis, that will be in Chapter 4 of the draft EIS.
And, yes, that will be subject to public comment. We want to
make sure that we have an analysis that is sufficiently
explained in the document, so that anyone who reads it can
understand how the numbers were derived, the methodology used,
and can comment in an educated fashion on the results of those
numbers.
Dr. Wittman. Can you give me an example, historically,
where you have had a comment challenging a cost benefit
analysis, and where you have incorporated public comments
challenging the validity of a cost benefit analysis into
changing the cost benefit analysis, and therefore, changing the
final rule that the Agency makes?
Mr. Pizarchik. I cannot. This is the first rulemaking that
has been conducted under my tenure that has progressed to this
point. So I don't have any examples of that in the past.
Dr. Wittman. Well, let me ask you in a broader sense, then.
In the public comment period the idea is to get comments from
the public. Can you tell me, on average, about how many
comments you normally get through the rulemaking process on a
proposed regulation?
Mr. Pizarchik. Sir, I don't know what that has been in the
past. On this particular rulemaking, due to the interest in it,
we are expecting in the tens of thousands of comments on it.
Dr. Wittman. All right. Can you tell me, too, in the past,
when you pursued rulemaking and you have gotten comments, can
you give me an example of where you have actually incorporated
comments into changing the final rule before it goes for final
promulgation?
Mr. Pizarchik. I don't have any personal knowledge of that
in the past, because we haven't gotten that far here.
Dr. Wittman. So what you are saying is that you go through
the public comment process, but the public comment really
doesn't make its way into the final rule.
Mr. Pizarchik. Absolutely not. That is not at all what I am
saying. What I am saying is I have not been with OSM long
enough and conducted any rulemaking through the process where
we have had the types----
Dr. Wittman. So you are just not aware that any public
comment gets incorporated into the final rule.
Mr. Pizarchik. I have no experience in how it has been
handled in the past, Congressman.
Dr. Wittman. OK. Let me ask this. The Committee has
repeatedly asked for information on the current status of the
ongoing litigation and communication with the various plaintiff
groups. And last week, 5 months after the information was
requested, some communications were finally received, including
5-year-old emails that were completely redacted, and therefore,
void of any respective information. And I think we have a slide
to pull up where it will show the Department didn't produce any
documents or information indicating that the very next day you
intended to file another court document supporting the position
of the litigants, and requesting that the Federal court vacate
the 2008 rule.
And as you can see, when we request information and the
document comes back fully redacted, it kind of gets away from
the intention of the Committee in trying to get information
where we can pursue our role in oversight.
And my question is why is the Administration continuing to
withhold information by redacting the very information that the
Committee seeks? And if this is the case, then what is the
information that the Agency or the Administration doesn't want
Congress to see? I mean it would seem like to me, at least in a
letter there, there would be something there. You know, there
are conjunctions, there are the's and and's.
Why would you even want to redact the the's and the and's?
To me, redacting the entire letter is just as illogical. So I
just wanted to get your comment as to why this would be the way
that you would respond to the Committee's request for
information.
Mr. Pizarchik. Congressman, we respect the legitimate
oversight interests of the Committee, and we also are working
to protect the legitimate interests of the executive
deliberative process in the rulemaking. And----
Dr. Wittman. I mean it is hard for me to believe that you
are protecting the interests by redacting every single word
there. You are telling me that every single word, including
the's, and's, I's, they's, even those, those are critical words
that you can't even reveal in this?
Mr. Pizarchik. Sir, within the Department there are a lot
of people who look at and work in responding to try to make
sure we are as responsive as possible to the Committee. I don't
profess to know all the decisions or been part of that. I----
Dr. Wittman. Well, Director Pizarchik, let me end with
this. Let me ask you this. If you made a request of Congress
for information, and you got back a document like this with
everything redacted, would that satisfy you, with your request
to Congress for information?
Mr. Pizarchik. Well, I don't think, as part of the
executive branch, we have oversight of Congress. So----
Dr. Wittman. Well, I am not speaking about oversight. I am
just speaking about just a common-sense request for
information. If something like this were redacted, and the
Committee here, staff said this is within the Committee's
interest to do this, would you feel comfortable in receiving a
document like that?
Mr. Pizarchik. Well, we have been willing to work with the
Committee and we have offered to work with them, we have had
reviews of documents, we will cooperate in every way we can
within the bounds of the legitimate oversight interests and the
executive, deliberative process in order to provide for a
productive process.
Dr. Wittman. Mr. Chairman, thank you. Sorry. Sorry for the
taking too much time. Thanks for your indulgence.
Mr. Lamborn. OK, thank you. Mr. Cramer.
Mr. Cramer. Thank you, Mr. Chairman and Ranking Member.
Thank you, Director Pizarchik, for being with us.
I read some of the transcripts from your Senate
confirmation hearing, and I know that Senator Murkowski asked
you a question about whether you thought there should be an
official and legitimate role for States in the process of
developing recommendations or reaching decisions in the context
of the inter-agency action plan. And sort of in summary, if you
will indulge me, you basically said that you thought it was
critical to the success of the inter-agency action plan for
State and regulatory authorities to participate in developing
any recommendations.
Having said that, is that a fair characterization, first of
all, of your answer, that you think it is critical?
Mr. Pizarchik. Mr. Congressman, that seems like ages ago. I
really have no recollection of that conversation.
Mr. Cramer. But you still believe that to be true, that----
Mr. Pizarchik. I am not familiar with what the inter-agency
action plan is----
Mr. Cramer. OK.
Mr. Pizarchik [continuing]. But the States are a critical
part of our process. They have provided input. And, for
instance, when we share drafts of the EIS with them, we got
hundreds of comments from them and they have had input and they
are a good source of information because, in many instances,
they are the on-the-ground folks doing the mining----
Mr. Cramer. Sure.
Mr. Pizarchik [continuing]. Or regulating the mining.
Mr. Cramer. In fact, have primacy.
Mr. Pizarchik. Yes, sir.
Mr. Cramer. Let me ask then. Have you had a lot of face-to-
face meetings with some of the cooperative agencies in this
process?
Mr. Pizarchik. In which process?
Mr. Cramer. In the process of this rule that we are
discussing today?
Mr. Pizarchik. In the beginning I had a number of meetings
with States where we solicited input. We had a number of
outreach sessions where we met with industry, the State
regulators, the Tribes, on the scope of the thing. So I
personally attended a number of those meetings. I think we had
about 15 of those. We had nine scoping sessions we conducted
and the States had an opportunity to provide input on that. We
also had input with the States from the drafts of the first
documents that were prepared by the previous contractor. So
there has been a tremendous amount of input from the States.
Mr. Cramer. I just want to be clear, though. So you said
sharing drafts of the what, now, the first, the previous rule?
Mr. Pizarchik. Back in 2010, our previous contractor, we
had----
Mr. Cramer. Oh, I see.
Mr. Pizarchik [continuing]. Had prepared the first draft of
various chapters of the Environmental Impact Statement. And
those drafts were shared with the cooperating States who
volunteered to be part of the cooperating agencies under the
National Environmental Policy Act, and they provided a lot of
comments to us during that process.
Mr. Cramer. How about since that early phase in that 2010?
Have there been many face-to-face meetings with the cooperative
agencies, as well as, even conference calls, realizing that not
everybody can get together?
Mr. Pizarchik. One of the things that the States made very
clear to me, that they had very limited resources. And they
didn't believe that reviewing or commenting on those comments
was a productive use of their limited resources. I recognize
the limited resources that they have in regards to the budget
times, et cetera, and so I did not approach them to impose upon
their limited resources at this time. When we have a document
that we believe is satisfactorily along so that they can have a
productive utilization of their limited resources, we will be
sharing that with them.
Mr. Cramer. Well, it is true that States have limited
resources. Many of them, in fact, don't even spend more money
than they take in, and that is a limiting factor that you are
not confined to. I realize that, and it is something we ought
to probably correct around here, but that is another committee
and another hearing.
Let me ask you this, because I think on a previous question
an opportunity was missed. Let's say, regarding the redacted
response, what if a coal mine responded to you with a redacted
document? I mean that would be a little bit hard to accept,
wouldn't it? I mean you have legitimate oversight of coal
mines.
Mr. Pizarchik. I don't think those are equal situations
that you can equate to. There are certain constitutional
parameters that involve our relationship with Congress, and
Congress's relationship with the executive branch that don't
exist between OSM as oversight and the mine operator.
Mr. Cramer. How about with regard to deadlines? When a
regulated mine misses a deadline that you impose upon them, are
there ever penalties that they are subject to, as a result?
Mr. Pizarchik. The typical process is a notice of violation
and giving the mine operator an opportunity to correct their
violation before penalties can be assessed. There can be
instances where penalties are assessed, as appropriate, and in
accordance with the statute and regulations.
Mr. Cramer. Thank you. Mr. Chairman, as a former coal
regulator in North Dakota, I am quite familiar with how onerous
this process is, onerous to the point where even a wealthy
State like North Dakota chooses not to participate, because we
can't afford, quite frankly, to be part of a process like this.
But my time is expired, and I appreciate the gentleman's
indulgence.
Mr. Lamborn. Thank you. Representative Johnson.
Mr. Johnson. Thank you, Mr. Chairman, and I appreciate the
opportunity to participate in the hearing today.
Director Pizarchik, I heard my colleague on the other side
a few minutes ago try to make the point that today's hearing
and talking about this rule is premature. And you agreed with
that. You have missed virtually every deadline that the law
requires you to meet. You have spent millions of taxpayer
dollars. You have failed to comply with virtually every request
in full from this Committee to provide information. You have
personal knowledge of what you say is the damage that coal
mining is causing to streams, but yet you have no personal
knowledge of the scientific data and analysis that is going
into your rulemaking, or how public comments are being fed into
your rulemaking process, even though you went through a public
commenting session in the 2011, 2012 timeframe.
So, it is pretty clear to me that there is a lot about your
Department that you don't know. And it is very frustrating to
this Committee. Do you know what the term ``oversight'' means?
Because I think you have a real misconception about the
American system. This Committee is the voice of the American
people. And under the Constitution of the United States it is
our responsibility to oversee the chief executive for whom you
work. That means when we ask questions, it is the voice of the
American people asking the questions, and they demand answers.
For you to insinuate that you actually have more oversight
and more legal authority to extract information from coal
companies than we, the voice of the American people, have to
get information from you and this Administration on what you
are doing to a vital energy industry I think is despicable, Mr.
Pizarchik, and you ought to be ashamed of yourself.
Let me ask you a couple of questions. You have been working
on this rewrite of the Stream Buffer Zone Rule since 2009. Four
years later, there is no final rule, no proposed rule, and the
1983 rule is, in effect, creating great uncertainty for the
industry. Can you confirm for us today that the NEPA-required
Environmental Impact Statement and the OMB-required Regulatory
Impact Analysis have not been completed?
Mr. Pizarchik. First, Mr. Congressman, welcome back to the
Committee. And to answer to your question, yes, those documents
have not been completed. They are still under the process of
being developed.
Mr. Johnson. All right. So they have not been completed. Is
that correct?
Mr. Pizarchik. Yes, they are still being developed.
Mr. Johnson. Well, in a letter sent to Chairman Hastings on
April 2nd, you stated that OSM has spent approximately $8.6
million on the rulemaking so far, with $6 million going to
contract support for the EIS and the RIA.
So, your Agency has spent 4 years and $6 million on the EIS
and the RIA alone, and you have no completed work product. Can
you inform the Committee today what exactly are you paying for?
Mr. Pizarchik. We are paying for a NEPA-compliant, rule-
compliant EIS, a draft EIS, as well as the Regulatory Impact
Analysis and for peer review of those documents.
Mr. Johnson. Well, according to your office, no aspect of
the rewrite of the Stream Buffer Zone Rule is complete, and you
have been working on it for nearly 5 years. Are you in a
position to provide this Committee any information about the
current status of the rulemaking effort?
For example, how much has OSM spent on this project since
you last updated the Committee?
Mr. Pizarchik. When I last updated the Committee--I haven't
asked for any updates since----
Mr. Johnson. So you don't know. So you don't know. That is
another ``I don't know.''
Let me go to my next question. Since you have already paid
$6 million to contractors to work on the EIS and RIA, can you
tell us what the total value of the outstanding contracts are,
and how much this will cost the taxpayers if it is allowed to
continue?
Mr. Pizarchik. I don't have that number----
Mr. Johnson. You don't know.
Mr. Pizarchik [continuing]. Before me, but----
Mr. Johnson. You don't know. I am not surprised that you
don't know. Let me ask you one other question.
Mr. Pizarchik. It is in the documents that we provided to
you.
Mr. Johnson. Let me ask you one other question, Mr.
Pizarchik. You said that part of your responsibility is to
ensure that the benefits outweigh the costs when you are going
through your rulemaking process, correct?
Mr. Pizarchik. NEPA requires us to do a cost benefit
analysis----
Mr. Johnson. All right----
Mr. Pizarchik [continuing]. That is correct.
Mr. Johnson [continuing]. Can you tell me how you plan to
offset the cost of the thousands of jobs that are going to be
lost, particularly along the Ohio River in coal country, where
I represent, and the ancillary jobs that are also going to be
lost and the families that are going to be displaced? How is
your rulemaking process going to address that cost, Mr.
Pizarchik?
Mr. Pizarchik. I have been to those mines, sir. And based
on my analysis and what I saw at the sites and the fact that we
do not yet have a rule, we do not yet have the analysis
completed, it is premature to assume that there will be jobs
lost, as you have described----
Mr. Johnson. Oh, no.
Mr. Pizarchik [continuing]. Jobs created.
Mr. Johnson. We have been around this circle before. You
had a contractor that verified that the proposed rule that you
were putting in place was going to cost tens of thousands of
jobs. Not going to have that debate with you again today. You
can't dodge that bullet.
Mr. Chairman, I yield back.
Mr. Lamborn. Representative Thompson.
Mr. Thompson. Thank you, Chairman. Director, good to see
you. I wanted to, and I apologize if some of this area has been
covered before, I was on the House Floor talking energy, which
is important that we talk about all the time, obviously,
affordable, reliable energy.
So, my first question is, what is your plan for seeking
input from State cooperating agencies between now and the time
the stream protection rule EIS is published for public comment
in 2014?
Mr. Pizarchik. Nice seeing you again, Congressman Thompson.
At this point we haven't made a decisions on it as far as what
we would do. As I indicated while you were out, we are still in
the process of developing the documents. And the input that I
had received previously from the States, they pointed out that
they had very limited resources, and didn't want to be spending
their resources reviewing early drafts, most recently they
indicated they wanted us to share something with them when it
has been complete.
And respecting their interests and their limited resources,
I have not yet made a decision as to when we would be sharing
something with them. But I don't want to give them something
prematurely that wasn't ready for their analysis and that would
not be a useful expenditure of their limited resources.
Mr. Thompson. OK, because, and I am sure you know your
obligation under the Department of the Interior's own NEPA
regulations require collaboration, and I quote, ``to the
fullest extent possible with all cooperating agencies
concerning issues relating to their jurisdiction and special
expertise,'' and that cooperating agencies should be
``evaluating alternatives and estimating the effects of
implementing each alternative.''
So, I would just encourage you fulfilling that
responsibility and I would say provide these drafts as you go
along. If the States do not have the resources to be able to
work on them, that will be the decision of the States. But that
should not preclude, and I suspect there are some States out
there that obviously, this is an extremely important issue, it
is an incredibly important issue in Pennsylvania, as well as I
am sure some other States that are represented here.
And so, to do a cookie-cutter response that we are not
going to send it out because you have heard from some that they
are not ready to use them, get those drafts out. I think that
you have, by statute and by regulation, a responsibility to do
that.
How many face-to-face meetings has OSM had with cooperating
agencies this year to discuss their comments on the EIS?
Mr. Pizarchik. I don't believe we have had any this year.
Mr. Thompson. OK. How many conference calls have there
been?
Mr. Pizarchik. I don't believe there have been any contacts
with the cooperating agencies this year, conference calls,
face-to-face meetings, correspondence, or anything regarding
their comments on the previous drafts or on this work.
Mr. Thompson. The CEQ regulations require lead agencies
such as OSM to meet with cooperating agencies at the latter's
request, and also mandate participation of cooperating agencies
in the NEPA process at the earliest possible time.
So, why does that not occur? I mean this is 2013. This is
August, or July, not too far a reach from August. The reasons
why that responsibility hasn't been fulfilled?
Mr. Pizarchik. No, we had input from them on that first
draft. And with their limited resources, I will reiterate that
we aren't going to impose upon them to review something that
isn't really ready for their review in order to not draw down
on their limited resources.
Mr. Thompson. So you are not going to mandate the review.
But have you forwarded the drafts to the States so that if this
is a priority, and I suspect it is a priority in many States,
they have the drafts in hand? It should be their decision how
thoroughly and what due diligence they provide on the reviews.
Have you provided, and will you provide each of the drafts
to the States?
Mr. Pizarchik. Actually, it is my decision on when it would
be productive for them to be getting the drafts, and I don't
believe it would be a productive use of their time to have a
draft prematurely.
Mr. Thompson. Well, I would respectfully disagree on that.
I think that the impact on the States--the States should be
fully engaged, collaborative partners. I think the regulations
you operate under with your own NEPA analysis, the Department
of the Interior requires you to do this.
And so, I guess I know the answer to my next question. My
next question was, will you provide the cooperating agencies
with drafts of each revised chapter of the EIS as they become
available, and provide them with an adequate opportunity to
comment on the chapters and make changes to the EIS, where
appropriate?
Mr. Pizarchik. We will be giving them an adequate
opportunity to review and comment on the draft EIS when it is
at the appropriate time. Yes, sir.
Mr. Thompson. Well, I guess it all comes down to our
definition of the word ``appropriate,'' where we disagree.
Strongly, I believe.
Mr. Chairman, I am out of time, but if we have a second
round I will look forward to participating.
Mr. Lamborn. Thank you. Representative Lummis.
Mrs. Lummis. Thank you, Director. Now, let me get this
straight. Well, let me start with this preface. Did the States
create the Federal Government, or did the Federal Government
create the States?
Mr. Pizarchik. We all know that the States ceded their
powers to the Federal Government.
Mrs. Lummis. They ceded their powers? Did you say ceded
their powers?
Mr. Pizarchik. Some of their powers, yes. They----
Mrs. Lummis. Holy buckets. OK. Now I understand. This makes
perfect sense now. This makes perfect sense about why we are
not getting anywhere. The States ceded their powers to the
Federal Government. Wow.
Listen. OK. Your views now make it very apparent about why
you believe that you are in a position to determine when it is
appropriate to give States information.
But let me ask you this. The State of Wyoming and other
States sent you a letter on July 1st asking for clarification
on when, on certain points--have you responded to that letter?
Mr. Pizarchik. Not yet. I have not.
Mrs. Lummis. And why is that?
Mr. Pizarchik. Because I am----
Mrs. Lummis. The States ask questions of you. And you are
going to decide when it is appropriate to respond? Is that the
case?
Mr. Pizarchik. No.
Mrs. Lummis. When are you going to respond?
Mr. Pizarchik. After I give it careful, deliberative
thought, and get the appropriate analysis in order to be able
to provide an appropriate response.
Mrs. Lummis. And how long will that take?
Mr. Pizarchik. I have learned in Federal Government service
I can't predict how long it takes government to do anything. So
I don't know, ma'am.
Mrs. Lummis. Who do you work for? Who do you believe you
work for?
Mr. Pizarchik. The American people.
Mrs. Lummis. And the American people sent you a letter and
asked, ``When are we going to receive our cooperating
responses?'' Are they cooperating agencies or not?
Mr. Pizarchik. There are several of them that have
volunteered to be cooperating agencies on the rulemaking
process, yes.
Mrs. Lummis. OK. So when are they going to find out?
Mr. Pizarchik. Once I have had the opportunity to give it
the careful thought and get a response back to them.
Mrs. Lummis. Now, let me get this straight. The last stream
protection rule was finalized in January of 2009, after 5 years
of work, with EPA's concurrence and the input from States and
stakeholders. Is that true?
Mr. Pizarchik. That is my understanding, yes.
Mrs. Lummis. OK. And then there is a lawsuit. And the
Federal Government settles out of court with some environmental
groups an ESA lawsuit. Correct?
Mr. Pizarchik. [No response.]
Mrs. Lummis. And then they agree to issue a new rule, even
though all of the stakeholders and the States had already been
involved for 5 years in negotiating the previous rule. Am I
correct?
Mr. Pizarchik. Yes.
Mrs. Lummis. OK. Then, so the Federal Government settles
out of court with groups that didn't like this 5-year process
that involved all the stakeholders. You guys decide to settle
out of court and issue a new rule. And now you are cutting the
real stakeholders out of the process by deciding when it is
appropriate to talk to them? Is that what is happening?
Mr. Pizarchik. No, that is not correct.
Mrs. Lummis. OK. What is happening?
Mr. Pizarchik. What has happened is that OSM had made a
mistake in not fully complying with the law in the 2008 rule.
Rather than litigate and waste court resources, government
resources, the plaintiff's resources litigating something that
we know was wrong, we have confessed our error, and we have
asked the court to take action in accordance with our motion to
have the case partially granted, as far as the error that we
made, and allow us to go back and correct our error.
And on the second part of it, we have asked the court to
dismiss the various other counts, because a number of them are
out of date, as well as some of it would be moved.
Mrs. Lummis. I am going to switch subjects. The abandoned
mine lands monies that have been contributed by Wyoming amounts
to how much money this year?
Mr. Pizarchik. I don't have that number, but----
Mrs. Lummis. Well, I do.
Mr. Pizarchik. It is a very large amount.
Mrs. Lummis. It is, indeed: $131 million. But who is
counting?
Then, how much money can Wyoming expect to receive back
from AML money this year?
Mr. Pizarchik. From this year, from the AML money, the law
that Congress passed caps it at----
Mrs. Lummis. That is right. That is 11 percent----
Mr. Pizarchik [continuing]. The sequester.
Mrs. Lummis. And can you explain why Wyoming is getting 11
percent, when every other State is getting 50 percent?
Mr. Pizarchik. Because that is the law of the land, and we
are enforcing that law.
Mrs. Lummis. Is there any other State, other than Wyoming,
that was affected by that decision of Congress?
Mr. Pizarchik. Which decision----
Mrs. Lummis. The one that capped everybody at $15 million?
Mr. Pizarchik. No, ma'am. I----
Mrs. Lummis. No, that is correct. That is absolutely
correct. So Congress took one State and punished one State, the
one State that collects more money for AML than all the other
States combined, and punished one State. I am not blaming you.
That was Congress that did that. And that ought to be
acknowledged.
Mr. Chairman, I yield back.
Mr. Lamborn. OK, thank you. I would now like to recognize
myself for a second round of questions here.
To follow up, Mr. Pizarchik, on something that I was asking
you earlier, about using the 2008 vacated rule, or you asked to
have it vacated, as a baseline. Just to clarify, you are using
that as a baseline in the assumptions that you are building in
to the models for formulating the next rule. Is that correct?
Mr. Pizarchik. It is my understanding that, under the law,
that all of the existing regulations are to be part of the
baseline, as far as when you engage in a new rulemaking
process. That is my understanding of it, yes.
Mr. Lamborn. OK. Does that include the 2008 rule that was
issued at the end of the Bush Administration?
Mr. Pizarchik. That is my understanding.
Mr. Lamborn. OK. So that is being used to build on for the
assumptions that your contractors are----
Mr. Pizarchik. My understanding that the National
Environmental Policy Act requires a lot of different things to
be looked at on the baseline. And the contractors and the
career staff have been working on developing the appropriate
baseline. I do not know all of the components of that, but I
believe the 2008 rule is part of that baseline.
Mr. Lamborn. Although it never took effect nationally.
Mr. Pizarchik. Actually, it is in effect nationally. It has
been applied on Federal lands and where OSM is the regulator.
In the primacy States, where the States are the regulator, we
have not required them to implement it.
Mr. Lamborn. My notes here say that that is Tennessee only.
Is that correct?
Mr. Pizarchik. No. We also are the regulator in the Indian
country on Hopi, Crow, and Navajo, as well as in the State of
Washington.
Mr. Lamborn. So, Indian reservation lands and the State of
Tennessee.
Mr. Pizarchik. Where coal is actively being mined. Yes,
sir.
Mr. Lamborn. So that is the only place where the 2008 rule
is in effect?
Mr. Pizarchik. That is the only place it is being
implemented. It is in effect nationwide, but the primacy States
have not been----
Mr. Lamborn. Well, the importance of this, though, is that
if you assume that is the existing rule for purposes of
rulemaking, that will have a smaller economic impact than if
you use the status quo in existence before that.
Mr. Pizarchik. Well, again, there are many components that
go into the baseline. I do not know all of them. I think that
a----
Mr. Lamborn. Well, I would just hate to see fudging, where
you minimize the economic impact and use false assumptions in
order to accomplish that.
Mr. Pizarchik. I am sure----
Mr. Lamborn. When the draft EIS, which apparently has been
repudiated now, came out, it showed a direct job loss of 7,000
jobs, and many more thousands of lost jobs indirectly, with
economic harm in at least 22 States.
Is the rule that you are working on now, some kind of
modified rule, is it going to have these kinds of devastating
economic impacts?
Mr. Pizarchik. The rule is still under development, as is
the economic analysis, the cost analysis and the benefit
analysis. So I don't know what those numbers are. But I can
tell you that, under the NEPA, it is an iterative process. And
as we go through it, as we learn what potential impacts would
be from a change, then that helps inform the decisionmaking, so
we can decide what would be in the proposed rule, and we are
not at that point yet.
Mr. Lamborn. Well, to drill down on that, we have listened
to the audio tapes, and we hear someone in your department
saying that there is only going to be 15 miles of streams
protected.
Now, in coal country, there are hundreds, if not thousands
of miles of streams. And to have this kind of onerous economic
impact to protect 15 stream miles, to me, is very
disproportionate. Am I wrong on that?
Mr. Pizarchik. What you are hearing was our staff trying to
understand the analysis that that contractor put forward in
order to get a better understanding of what is causing those
impacts. And so they were trying to get that understanding as
the way the process is supposed to work.
What we have learned is that the contractors who came up
with those numbers based it on estimates, and then those
estimates were also in part based on a misunderstanding of the
draft rule language that they were considering at that point in
time, and then those estimates, which were based on
professional judgment, as I understand, without any explanation
as to what were the assumptions they made on coming up with
that professional judgment, it was not impossible for us to
understand how they came up with those numbers, what was
causing it or not.
And, as part of the NEPA process, that is important for us,
to understand what the potential benefits and costs would be of
potential changes in order to be able to make informed
decisions. And we weren't able to get that type of information
in that exchange or from that contractor, due to the
methodologies that they had used.
Mr. Lamborn. Now, if I heard correctly, someone on the
other side of the aisle said that there were hundreds or
thousands of stream miles that this rule needed to protect, and
would protect. Is that a correct assumption?
Mr. Pizarchik. There has been, I believe it has been
documented, there are 2,000 miles of streams that already have
been buried. That is not counting the ones that have been mined
through and not restored. We don't know, right now, what the
ultimate numbers will be, because we still are in the process
of developing a rule. But we know, based on past history, that
there are hundreds of miles of streams that have been adversely
impacted from mining.
Mr. Lamborn. And where are those streams? Can you show me a
map?
Mr. Pizarchik. I don't have that here, but I believe a
number of them were documented in some previous studies. But I
could get that information. I believe that is available.
Mr. Lamborn. Would you, please? I would like that for the
record.
Mr. Pizarchik. I will do my best to get you that.
Mr. Lamborn. OK. Ranking Member Huffman.
Mr. Huffman. Thank you, Mr. Chair.
Director Pizarchik, there has been a lot of discussion
about a single document with a large redacted area in it. And I
am not a science guy, as one other Member characterized
themselves, but I am a law guy. And I will tell you in my
career as a litigator, I certainly saw all kinds of documents
that looked just like that. It happens all the time. And so, I
want to just take a moment to discuss what it means when a
document is redacted that way.
Now, you were being asked about the subject of pending
litigation, correct?
Mr. Pizarchik. Yes, sir. There were questions about that.
Mr. Huffman. All right. And when there is pending
litigation, there are often documents that contain attorney-
client privilege material. Is that fair to say?
Mr. Pizarchik. Yes, sir
Mr. Huffman. And it is your duty to make sure that the
attorney-client privilege is not waived or breached by
disclosure. Correct?
Mr. Pizarchik. That is correct.
Mr. Huffman. There may also be deliberative process
privileges that likewise have to be protected from waiver or
disclosure. Is that fair to say?
Mr. Pizarchik. Yes, sir.
Mr. Huffman. And then, finally, personal privacy
information also would be another concern when you produce
documents?
Mr. Pizarchik. Yes, and I believe there are laws that also
require that to be kept.
Mr. Huffman. All right. So, for the one single document
about which there has been so much excitement and
hyperventilation this morning, is it fair to say that redaction
was because there was privileged information and/or personal,
private information that was being protected from waiver or
breach?
Mr. Pizarchik. I believe that is what our lawyers would
have done, yes, sir.
Mr. Huffman. And I notice that while so much time has been
spent on the single mystery document, which really isn't much
of a mystery to anybody who has litigated, not a lot of time
has been spent on the amount of documents you have produced to
this Committee.
We mentioned at the outset that the Department has produced
about 14,000 pages of documents. Many of the things that you
have been asked about here today, sometimes interrupted, talked
over--I believe you were starting to say, in response to some
questions, that that information was actually in the documents
that have been produced to this Committee. There have been
7,000 pages of documents and roughly 25 hours of audio
recordings produced from contractors that have been working
with you on this rulemaking. And the Majority, nevertheless,
has failed to expose any wrongdoing in all of this material
that you have produced to them.
Is there anything more you want to say about the documents
and the data and the information that you have produced to this
Committee, as opposed to just further talking about the one
single mystery document?
Mr. Pizarchik. Well, I think they have been responsive to
the Committee's oversight. There is a fair amount of
information in the documents that is, I believe, relevant to
the oversight information. And we are going to continue to
provide what we can, in accordance with the legitimate
interests of both branches of government.
Mr. Huffman. I assume, when you produce this kind of
voluminous information in response to a series of requests from
a Committee like this, that it takes a lot of staff time, and
it costs your agency a lot of money.
Mr. Pizarchik. It absolutely does. I believe just for our
agency, I believe, we had over 2,000 hours in preparing
document requests. That is just for OSM, it is not for the
solicitors and everybody else to review them. And I believe at
last week's hearing, Chairman Hastings had mentioned that there
were 10 document requests that the Committee had filed from the
Department this year. Those are a lot of documents, takes a lot
of time, and we respond to them as quickly and as timely as we
can, but it takes a lot of effort and a lot of cost to the
government.
Mr. Huffman. With what is remaining in my time, I want to
ask you about the contractor, Polu Kai Services, that you
parted ways with that had at one point prepared a preliminary
job analysis. And I believe this was called the bullet you
can't dodge. And you certainly can't dodge it if nobody gives
you any time to speak to it.
So, whether you want to dodge it or speak to it, I want to
at least allow you some time to explain what happened with that
contractor, what happened with that jobs estimate. And I
specifically want to ask, it is my understanding that you were
in the process of getting criticisms about this contractor's
work well before that job's estimate information was released,
that the criticisms of this person's work came not only
internally, but from other stakeholders who had seen this
contractor's work, and that this was a matter of poor
performance that forced you to part ways with that contractor.
But I want to give you a moment to actually speak to it.
Mr. Pizarchik. That is correct. We had hired the contractor
to prepare NEPA documents, and the type of documents that were
prepared didn't meet that requirements. We got hundreds of
comments from our cooperating agencies, some of them quite
strongly worded, because of the quality of those documents. And
they were reinforcing what we were seeing, that the contractor
was not performing up to the contract standards or the legal
requirements that were necessary to meet in order to have a
legitimate, defendable rulemaking, going forth.
Mr. Huffman. Thank you, Director. I yield back, Mr. Chair.
Mr. Lamborn. Representative Johnson.
Mr. Johnson. Thank you, Mr. Chairman. I want to point out,
I have never been a litigator, but I have been a job creator, I
have been a businessman. And I know what this rulemaking is
doing to the jobs in my district.
Mr. Director, just a point of clarification to make sure
that our entire Committee understands this. No audio recordings
have been provided by your Department. Those are still being
withheld. The only audio recordings we have gotten we have
gotten from outside sources. This Committee has asked
repeatedly for copies of the audio recordings of the meetings.
Again, to fulfill our responsibility under the Constitution for
oversight. So, again, shame on you and the Department for not
complying.
Mr. Pizarchik, DOI's own NEPA regulations require
collaboration to the fullest extent possible with all
cooperating agencies concerning issues relating to their
jurisdiction, so that they can evaluate alternatives, estimate
the effects of implementing alternatives, et cetera.
Specifically, CEQ regulations required lead agencies such
as OSM to meet with cooperating agencies at the agencies'
request. I got a specific citation here that requires that, 40
CFR 1500.6(a)3, and also mandates participation of cooperating
agencies in the NEPA process at the earliest possible time. I
find it interesting that your interpretation of those
directives is that when you deem it is appropriate. I don't get
it.
Economic feasibility. You say that you consider economic
feasibility in the rulemaking process. Can you tell me how you
think it is economically feasible for a longwall mining
operation to comply with a Stream Buffer Zone Rule, that, if it
looks anything like the one that we looked at in the last
Congress, would require them to spend millions of dollars each
and every time they have to move that long wall to avoid
operations under a stream? Can you explain to me how you are
evaluating economic feasibility in that regard?
Mr. Pizarchik. It would be premature for me to speculate--
--
Mr. Johnson. You don't know.
Mr. Pizarchik [continuing]. On this, because we don't have
a rule yet, and----
Mr. Johnson. You don't know.
Mr. Pizarchik [continuing]. We don't know what is going to
be in the----
Mr. Johnson. Now you have been working on this for 5 years,
5 years. You don't have scientific analysis, you can't say what
the stakeholders comments have done, and whether they have been
integrated into the rulemaking process, and it is premature. It
is not premature, Mr. Pizarchik, and you need to stop dodging
the voice of the American people and come clean with what this
rulemaking process is all about. And you and I are going to
continue to have these dialogs until you do. So I want to make
that clear to you.
In testimony before this Committee last year, and in
Federal court documents filed just last week, you stated
repeatedly that OSM believes that a rewrite of the Stream
Buffer Zone Rule is a top priority, and that OSM will continue
to use best efforts. How do you define ``best efforts,'' when
you have continuously told this Committee that you don't have
any employees working on this full-time, and you have no work
product after 5 years? Is that your best effort? Is that what
you mean by best effort?
Mr. Pizarchik. We have been working on this, and we are
going to continue to work and develop it, and we are making
progress. As I indicated earlier, we anticipate some time in
2014 that we will have the----
Mr. Johnson. I have heard the deadlines that you keep
pushing out. I have heard that. I have little confidence that
you are going to get to it at that point, either.
You stated earlier, when you were asked about whether or
not stakeholder comments are included, and if they have ever
changed a rulemaking, and you said this is the first major
rulemaking that you guys have done since you took over OSM.
Correct? This is the only one. You are a director, and this is
best efforts? You have only got one big one going on, and this
is best efforts?
Mr. Pizarchik. We have a number of other rulemakings going
on. What I indicated was this is the one that is the farthest
along in this process. And best efforts, we are giving it our
best shot. We have to take staff away from working on the rule
to respond to document requests. That is a priority, as well.
And----
Mr. Johnson. Do you take staff away from the rule to
converse with stakeholders?
Mr. Pizarchik. I believe when you were in the room we got
the answer to that question earlier on, that we had our
interaction with the stakeholders earlier on, on the first
drafts. We are still working on addressing comments and
developing the rule and the draft EIS in accordance with those
comments.
Mr. Johnson. Five years. Five years and millions of dollars
of taxpayer funding, Mr. Pizarchik, is not acceptable to me. It
wouldn't be acceptable in any business that I run.
Mr. Chairman, I yield back.
Mr. Lamborn. Thank you. Mr. Thompson.
Mr. Thompson. Thank you, Chairman. Director, I want to come
back to the contractors.
Now, your own employees have said the contractors were
working at the direction of OSM, and that the problems
attributed to the contractors were actually the responsibility
of OSM. As I read and look, you are using a process that is
destined to fail. And I have to wonder if that is on purpose,
this is just one more tool on the part of the Obama
Administration to really kill the coal industry.
The issue I see, regarding the contractors, it was the
behavior and demands of your Department. One example is 10 days
to review hundreds of pages. And that is just among many. You
know, it is a process that rushes the contracting agencies in a
reckless fashion.
Now, Mr. Director, I think the main question before us
today is where do we go to from here, looking forward. I mean,
what is the plan forward? As stated in the Chairman's opening
statement, you, the OSM, you have wasted millions, nearly $10
million over the past 4 years, with nothing to show. Now, today
we hear that your hope, not a guarantee, but hope, is that
there will be a new rule proposed a year from now.
Now, my question is, how much? How much will it cost us to
continue the reckless, unnecessary, poorly managed process
before you complete a rule? Another $5 million, another $10
million? Almost what we have invested already, taxpayers have,
$15 million? Is there an end to the black hole of waste at OSM?
So, my question is, where do we go from here, and what is
it going to cost?
Mr. Pizarchik. Well, I believe it is about $8 million to
date, and I agree that is a lot of money to the average
American. It is a lot of money to OSM. Perhaps if we were
exempted from all of these cost benefit analyses we could do
the process a lot more efficiently. But I would be willing----
Mr. Thompson. Well, Director, let me just say the cost
benefit analysis is a safeguard for American citizens.
Regulations come at a cost, and it is a cost benefit, the
comparison, cost benefit does not happen near enough as
regulations are proposed by the bureaucracy of government. And
so, I think asking for relief from a safeguard, something that
safeguards the American taxpayer, the American citizens, is not
something I would advocate for.
Mr. Pizarchik. OK. Then I would agree with you that
spending $8 million is money well spent on figuring out what
the costs and benefits would be of the rulemaking process.
Mr. Thompson. So do you have an estimate? We have another
year? I mean you were hoping, no guarantee, hoping for another
year, based on the past expenditure lines, say $8 million so
far. What do you think we are going to rack up in bills before
this rule is actually--well, let me just say, first of all, how
much do you think we are going to spend on this rule before you
actually engage the cooperating agencies, because I still want
to come back to that in my first line of questioning.
I am just appalled that you are not sending it out there,
because you assume that the States don't have resources to do
anything with it. You have a regulatory responsibility to
release these drafts, these EIS drafts. You don't get final
pick. The regulations are clear. The Department of the Interior
is very clear of engaging cooperative agencies. So how much
money, additional money, are we going to spend until we at
least get a draft released to the States?
Mr. Pizarchik. Well, I can get you the total contract
dollar amount. We have a contract in place. I don't have that
number at my fingertips, as far as what we have for the
contractors to perform. It is a type of contract that is based
on them producing certain documents and certain products, and
we are on track for having those products. The contract is
capped out at a certain amount. I don't remember the number on
that. We have been very cautious. And at our meetings, we limit
our meetings, we are conducting our meetings by teleconference
call, minimizing travel, doing whatever we can to minimize and
control the cost on that, so we do not exceed our existing
contract cost on that.
Mr. Thompson. Well, I appreciate you saying you are
cautious about it, but I will say it has been costly. And up to
this point it has been quite ineffective and potentially
damaging to just a tremendous number of jobs.
I had an opportunity, I represent western Pennsylvania, it
was a little further out in western Pennsylvania, having dinner
in a county out there just a week or so ago, and had a
individual from the coal industry and his wife walk up to me.
Somehow they figured out who I was. That is not always a good
thing. I was outside my congressional district. Well, this
couple, this family, is just devastated with what is going on
with the coal industry in Pennsylvania.
And what is devastating it is--the Congressional Research
Service just did a report that shows we have the largest
reserve of coal. We have 88 billion more short tons than
Russia, who is number two, of coal remaining. We have the
technology to be able to do it right. And, unfortunately, this
Administration is just killing the coal industry, just
devastating that family.
So, Mr. Chairman, I am way over my time. Thank you.
Mr. Lamborn. OK, thank you. And, Mr. Pizarchik, thank you
for being here. Thank you for answering questions. Members of
the Committee may have additional questions for the record, and
I would ask that you respond to those in writing.
If there is no further business, without objection, the
Committee is adjourned.
[Whereupon, at 11:33 a.m., the Subcommittee was adjourned.]