[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
H.R. 2824, PREVENTING GOVERNMENT WASTE
AND PROTECTING COAL MINING JOBS
IN AMERICA
=======================================================================
LEGISLATIVE HEARING
before the
SUBCOMMITTEE ON ENERGY AND
MINERAL RESOURCES
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
Friday, August 2, 2013
__________
Serial No. 113-38
__________
Printed for the use of the Committee on Natural Resources
Available via the World Wide Web: http://www.fdsys.gov
or
Committee address: http://naturalresources.house.gov
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COMMITTEE ON NATURAL RESOURCES
DOC HASTINGS, WA, Chairman
PETER A. DeFAZIO, OR, Ranking Democratic Member
Don Young, AK Eni F. H. Faleomavaega, AS
Louie Gohmert, TX Frank Pallone, Jr., NJ
Rob Bishop, UT Grace F. Napolitano, CA
Doug Lamborn, CO Rush Holt, NJ
Robert J. Wittman, VA Raul M. Grijalva, AZ
Paul C. Broun, GA Madeleine Z. Bordallo, GU
John Fleming, LA Jim Costa, CA
Tom McClintock, CA Gregorio Kilili Camacho Sablan,
Glenn Thompson, PA CNMI
Cynthia M. Lummis, WY Niki Tsongas, MA
Dan Benishek, MI Pedro R. Pierluisi, PR
Jeff Duncan, SC Colleen W. Hanabusa, HI
Scott R. Tipton, CO Tony Cardenas, CA
Paul A. Gosar, AZ Steven A. Horsford, NV
Raul R. Labrador, ID Jared Huffman, CA
Steve Southerland, II, FL Raul Ruiz, CA
Bill Flores, TX Carol Shea-Porter, NH
Jon Runyan, NJ Alan S. Lowenthal, CA
Mark E. Amodei, NV Joe Garcia, FL
Markwayne Mullin, OK Matt Cartwright, PA
Chris Stewart, UT Vacancy
Steve Daines, MT
Kevin Cramer, ND
Doug LaMalfa, CA
Jason T. Smith, MO
Todd Young, Chief of Staff
Lisa Pittman, Chief Legislative Counsel
Penny Dodge, Democratic Staff Director
David Watkins, Democratic Chief Counsel
------
SUBCOMMITTEE ON ENERGY AND MINERAL RESOURCES
DOUG LAMBORN, CO, Chairman
RUSH HOLT, NJ, Ranking Democratic Member
Louie Gohmert, TX Steven A. Horsford, NV
Rob Bishop, UT Matt Cartwright, PA
Robert J. Wittman, VA Jim Costa, CA
Paul C. Broun, GA Niki Tsongas, MA
John Fleming, LA Jared Huffman, CA
Glenn Thompson, PA Alan S. Lowenthal, CA
Cynthia M. Lummis, WY Tony Cardenas, CA
Dan Benishek, MI Raul M. Grijalva, AZ
Jeff Duncan, SC Colleen W. Hanabusa, HI
Paul A. Gosar, AZ Joe Garcia, FL
Bill Flores, TX Vacancy
Mark E. Amodei, NV Vacancy
Chris Stewart, UT Vacancy
Steve Daines, MT Peter A. DeFazio, OR, ex officio
Kevin Cramer, ND
Doc Hastings, WA, ex officio
------
CONTENTS
----------
Page
Hearing held on Friday, August 2, 2013........................... 1
Statement of Members:
Huffman, Hon. Jared, a Representative in Congress from the
State of California........................................ 5
Prepared statement of.................................... 6
Lamborn, Hon. Doug, a Representative in Congress from the
State of Colorado.......................................... 2
Prepared statement of.................................... 4
Statement of Witnesses:
Clarke, Thomas L., Director, Division of Mining and
Reclamation, West Virginia Department of Environmental
Protection................................................. 9
Prepared statement of.................................... 11
Johnson, Hon. Bill, a Representative in Congress from the
State of
Ohio....................................................... 7
Prepared statement of.................................... 8
Jones, John Paul, Vice President, Environmental, Alpha
Natural Resources, Inc., on Behalf of the National Mining
Association................................................ 31
Prepared statement of.................................... 33
Lambert, Bradley C. ``Butch'', Deputy Director, Virginia
Department of Mines, Minerals and Energy................... 21
Prepared statement of.................................... 28
Additional materials submitted for the record:
Interstate Mining Compact Commission, Prepared Statement of.. 24
Johnson, Randall C., Stevens, Bruce, Hohmann, Steve, Caudle,
John, Baza, John, Lambert, Bradley C., Clarke, Thomas L.,
and Parfitt, Todd, Letter submitted for the record......... 22
Mortality Disparities in Appalachia--Reassessment of Major
Risk Factors, JOEM, Volume 54, Number 2, February 2012..... 44
Shope, Thomas D., Letter submitted for the record............ 17
U.S. Department of the Interior, Office of Surface Mining
Reclamation and Enforcement, Prepared statement of......... 66
LEGISLATIVE HEARING ON H.R. 2824, TO AMEND THE SURFACE MINING CONTROL
AND RECLAMATION ACT OF 1977 TO STOP THE ONGOING WASTE BY THE DEPARTMENT
OF THE INTERIOR OF TAXPAYER RESOURCES AND IMPLEMENT THE FINAL RULE ON
EXCESS SPOIL, MINING WASTE, AND BUFFERS FOR PERENNIAL AND INTERMITTENT
STREAMS, AND FOR OTHER PURPOSES. PREVENTING GOVERNMENT WASTE AND
PROTECTING COAL MINING JOBS IN AMERICA
----------
Friday, August 2, 2013
U.S. House of Representatives
Subcommittee on Energy and Mineral Resources
Committee on Natural Resources
Washington, D.C.
----------
The Subcommittee met, pursuant to call, at 9:07 a.m., in
room 1324, Longworth House Office Building, Hon. Doug Lamborn
[Chairman of the Subcommittee] presiding.
Present: Representatives Lamborn, Lummis, Daines, Cramer,
Huffman, and Garcia.
Also present: Mr. Johnson of Ohio.
Mr. Lamborn. The Committee will come to order. The
Committee notes the presence of a quorum, which under Committee
rule 3(e) is two members. The Subcommittee on Energy and
Mineral Resources is meeting today to hear testimony on H.R.
2824, introduced by Representative Bill Johnson of Ohio and
myself, to amend the Surface Mining Control and Reclamation
Act, SMCRA, to stop the ongoing waste by the Department of the
Interior of taxpayer resources and implement the final rule on
excess spoil, mining waste, and buffers for perennial and
intermittent streams, and for other purposes. It is called the
Preventing Government Waste and Protecting Coal Mining Jobs in
America Act.
Under Committee rule 4(f), opening statements are limited
to the Chairman and Ranking Member of the Committee. However, I
ask unanimous consent to include any other Members' opening
statements in the hearing record if submitted to the clerk by
close of business today.
Hearing no objection, so ordered.
I now recognize myself for 5 minutes.
And by the way, we are going to try to get our opening
statements in. Then I will ask the indulgence of the witnesses.
We may have a series of votes called around 9:15, 9:20. We will
make as much progress as we can. We will ask your patience
while we go over and vote and then come back and then try to
conclude the hearing at that point.
STATEMENT OF THE HON. DOUG LAMBORN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF COLORADO
Mr. Lamborn. OK. Today the Subcommittee is considering H.R.
2824, the Preventing Government Waste and Protecting Coal
Mining Jobs in America Act, which along with Representative
Johnson, we have introduced. This legislation is designed to
save taxpayer dollars and protect jobs by putting the Office of
Surface Mining on a responsible path forward with regard to the
management and regulation of coal mining in America.
As I said last week, we need to be clear about this
Administration's legacy on their effort to rewrite the Stream
Buffer Zone Rule. So far, the Administration has spent nearly
$9 million of taxpayer money rewriting a rule that was never
fully implemented in the first place, without ever providing
sound justification for the need for a new rule. This does not
include the amount spent on attorney's fees and costly
litigation or the internal costs borne by the agency, nor, most
of all, the cost to the families of the thousands of workers
who have been displaced or seen work delayed by the regulatory
inaction on the part of the Department.
In fact, we learned just recently that even though the
courts told the Administration in 2009 that they would have to
follow APA and allow for public input to revoke the 2008 rule,
the Administration went back to the court and asked again for
the judicial branch to toss aside a validly promulgated rule
rather than follow the rulemaking process. That is an important
point because since the 2008 rule was never enacted throughout
the country, the Administration has actually no idea if there
are any problems with the rule, that would have to be addressed
with the new rule.
Furthermore, the ongoing inability to actually conduct a
responsible rulemaking process means the draft of the rewrite
isn't anticipated until late in 2014. And as we have heard from
Director Pizarchik, they have no idea how much money it is
going to take to finish the new rule.
This legislation requires the Office of Surface Mining to
implement the 2008 Stream Buffer Zone Rule, a rule developed
over a half a decade through an open, public, and multimillion-
dollar process. Upon implementation, it provides the primacy
States 2 years to admit their State regulations to incorporate
the rule and submit them for approval by the Office of Surface
Mining.
Once all the plans have been approved, the effects of the
new regulations will be analyzed for a period of 5 years. On
completion of the analysis, the Office of Surface Mining is
required to report back to the House and Senate Committees with
jurisdiction over SMCRA on the effectiveness of the rule,
impact on energy production, and identify and justify anything
that should be addressed through a new rulemaking process.
The legislation will stop the massive ongoing waste
currently taking place at the Department and save taxpayer
money. It responsibly updates the 1983 regulation by improving
environmental safeguards and provides regulatory certainty for
an important domestic industry, an industry that not only
provides many family wage jobs with good benefits, but also
provides affordable energy for the American people and the
Nation's manufacturing base. I believe roughly 40 percent of
the Nation's electricity is provided by coal.
The States and tribes participating as cooperating agencies
with the Office of Surface Mining in 2010 raised serious
concerns about the way the Administration was managing the
rulemaking process and the direction the Department was
proceeding with its new rulemaking. If we review the
transcripts and audio tapes of the meetings between OSM and
their original contractors, it should raise concerns across the
board about the way the Administration conducts its business.
Here are a few of the more egregious comments. An OSM
official worrying about how to ``sell,'' quote/unquote, the
proposed rule to the public because it will only save 15 miles
of stream of the many thousands of miles affected while costing
taxpayers millions of dollars and thousands of jobs. It appears
the proposed rule would only save 15 miles of stream upstream
because coal production would be moved to other regions outside
of Appalachia, meaning the rule would have minimal national
environmental benefit but would succeed in causing extreme
economic dislocation and devastation in communities all across
the Appalachian region.
Also, OSM officials told contractors to ``pretend'' that
the 2008 Stream Buffer Zone Rule was implemented and applied
across the country when it was not and explaining that this is
``not the real world, this is rulemaking'' as justifications
for using analysis that does not actually consider conditions
on the ground.
Also, an OSM official admitted that the contractors ``did
exactly what I told them to do'' when completing the draft
environmental impact statement. This conflicts with OSM
Director Pizarchik's sworn testimony to the Committee and
others who have criticized the work performed by the
contractors when completing the draft environmental impact
statement.
The 23 States that have primacy to enforce SMCRA feel very
strongly that the current rulemaking is unnecessary and
unwarranted, as OSM had just issued their final revised Stream
Buffer Zone Rule in December of 2008. That rulemaking process
took 5 years and is supported by 5,000 pages of environmental
analysis, included 30 different studies, and was issued with
the concurrence of the Environmental Protection Agency. OSM
spent approximately $5 million to develop the 2008 rule and
never directed the primacy States to incorporate the rule into
their regulatory program. OSM does use the 2008 rule in
Tennessee, Washington, and for Crow, Navajo, and Hopi Nations.
To conclude, most importantly, the new rule, or what we
know about it from the documents made public in early 2011,
would be injurious and damaging to the domestic coal mining
industry, coal miners and their families and communities, and
local and State economies throughout the Appalachian Basin, the
Illinois Basin, and coal-producing tribal nations. This
legislation is crucial to remedying this sorry situation.
I look forward to hearing from our witnesses today.
I would now like to recognize the Ranking Member for his
opening statement.
[The prepared statement of Mr. Lamborn follows:]
Prepared Statement of The Honorable Doug Lamborn, Chairman,
Subcommittee on Energy and Mineral Resources
Today the Subcommittee is considering H.R. 2824, the ``Preventing
Government Waste and Protecting Coal Mining Jobs in America Act,''
which I introduced along with Representative Johnson. This legislation
is designed to save taxpayer dollars and protect jobs, by putting the
Office of Surface Mining on a responsible path forward with regard to
the management and regulation of coal mining in America.
As I said last week--we need to be clear about the Administration's
legacy on their effort to rewrite the Stream Buffer Zone Rule. So far,
the Administration has spent nearly $9 million taxpayer dollars re-
writing a rule that was never fully implemented without ever providing
sound justification for the need for a new rule. This does not include
the amount spent on attorney fees and costly litigation or the internal
costs borne by the agency. Nor the costs to the families of the
thousands of workers who have been displaced or seen work delayed by
the regulatory inaction of the Department.
In fact, we learned just recently that even though the Courts told
the Administration in 2009 that they would have to follow APA and allow
for public input to revoke the 2008 rule, the Administration went back
to the Court and asked again for the Judicial Branch to toss aside a
validly promulgated rule rather than follow the rulemaking process.
That is an important point because since the 2008 rule was never
enacted throughout the country, the Administration actually has no idea
if there are any problems with the rule that might need to be addressed
with a new rule. Furthermore, the ongoing inability to actually conduct
a responsible rulemaking process means the draft of the re-write isn't
anticipated until late in 2014. And as we heard from Director
Pizarchik--they have no idea how much more money it's going to take to
finish the new rule.
The legislation requires the Office of Surface Mining to implement
the 2008 Stream Buffer Zone Rule, a rule developed over half a decade
through an open public multimillion dollar process. Upon implementation
it provides the primacy States 2 years to amend their State regulations
to incorporate the rule and submit them for approval by the Office of
Surface Mining. Once all of the plans have been approved--the effects
of the new regulations will be analyzed for a period of 5 years. On
completion of the analysis, the Office of Surface Mining is required to
report back to the House and Senate Committees with jurisdiction over
SMCRA on the effectiveness of the rule, impact on energy production,
and identify and justify anything that should be addressed through a
new rulemaking process.
The legislation will stop the massive ongoing waste currently
taking place at the Department and save the taxpayer money. It
responsibly updates the 1983 regulation by improving environmental
safeguards and provides regulatory certainty for an important domestic
industry; an industry that not only provides great family wage jobs
with good benefits but also provides affordable energy for the American
people and the Nation's manufacturing base.
The States and tribes participating as cooperating agencies with
the Office of Surface Mining in 2010 raised serious concerns about the
way the administration was managing the rulemaking process and the
direction the Department was proceeding with its new rulemaking. If we
review the transcripts and audio tapes of the meetings between OSM and
their original contractors it should raise concerns across the board
about the way the Administration conducts its business--a few of the
more egregious comments included:
An OSM official worrying about how to ``sell'' the
proposed rule to the public because it will only save 15 miles of
stream, while costing millions in taxpayer dollars and thousands of
American jobs. It appears the proposed rule would only save 15 miles of
stream because coal production would be moved to other regions outside
of the Appalachia--meaning the rule would have minimal national
environmental benefit but would succeed in causing extreme economic
dislocation and devastation in communities all across Appalachian
region.
OSM officials telling contractors to ``pretend'' that the
2008 Stream Buffer Zone Rule was implemented and applied across the
country when it was not, and explaining that this is ``not the real
world, this is rulemaking'' as justification for using analysis that
does not actually consider ``conditions on the ground.''
An OSM official admitting that the contractors ``did
exactly what I told them to do'' when completing the draft
environmental impact statement. This conflicts with OSM Director
Pizarchik's testimony to the Committee and others who have criticized
the work performed by the contractors when completing the draft
environmental impact statement.
The 23 States that have primacy to enforce SMCRA feel very strongly
that the current rulemaking is unnecessary and unwarranted as OSM had
just issued their final revised Stream Buffer Zone Rule in December of
2008. That rulemaking process took 5-years and is supported by 5,000
pages of environmental analysis, included 30 different studies, and was
issued with the concurrence of the Environmental Protection Agency. OSM
spent approximately $5 million dollars to develop the 2008 rule and
never directed the primacy States to incorporate the rule into their
regulatory program (OSM uses the 2008 rule in Tennessee, Washington and
for the Crow, Navajo and Hopi nations).
More importantly the ``new rule'' or what we know about it from the
documents made public in early 2011, would be injurious to the domestic
coal mining industry, coal miners and their families, and, local and
State economies throughout the Appalachian Basin, the Illinois Basin,
and coal producing tribal nations.
This legislation is crucial to remedying this situation. I look
forward to hearing from our witnesses today.
______
STATEMENT OF THE HON. JARED HUFFMAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Huffman. Thank you, Mr. Chairman.
The bill we are discussing here today would stop the
Interior Department's Office of Surface Mining from adopting a
new rule to protect the people of Appalachia from destructive
mountaintop removal mining. That is the term that the majority
doesn't like to use, but that is what this practice and this
bill are all about, mountaintop removal mining. It would also
require States to implement the Bush Administration's 2008
midnight regulation, which weakened the protections put in
place 25 years earlier during the Reagan Administration.
This is a bill that has no chance of becoming law. And it
is ironic that we are here 2 days after the full Natural
Resources Committee was considering a bill to name much of our
oceans after Ronald Reagan. Today we are here to try to roll
back a very modest stream protection and public health
protection rule that he put in place during his Presidency.
The 1983 Reagan rule stated ``No land within 100 feet of a
perennial stream or an intermittent stream shall be disturbed
by surface mining activities.'' Regulators could allow surface
mining activities ``closer to or through such a stream,'' but
only upon a finding that these activities ``will not cause or
contribute to the violation of applicable State or Federal
water quality standards and will not adversely affect water
quantity and quality or other environmental resources of the
stream.''
Now, the 2008 Bush rule exempts waste disposal practices
associated with mountaintop removal mining from the scope of
this rule, in contravention of the Surface Mining Control and
Reclamation Act. The Bush rule also permits surface coal mining
activities, even if such activities may cause or contribute to
violations of water quality standards.
The majority's legislation would require that we give this
inadequate rule a chance, give it a try, see what happens.
Well, we already know what will happen. Mountaintop removal
mining buried or despoiled around 2,000 miles of stream under
the Reagan rule. The Bush rule weakens the Reagan rule and
would make matters worse: more streams buried, more communities
turned into ghost towns, more people suffering the health
consequences of contaminated air and water.
Now, this Republican plan would be devastating. New studies
link pollution from mountaintop removal mining with cancer,
with birth defects, lung and heart disease. Multiple studies
within the last 3 years found significantly higher rates of
cancer and heart disease in West Virginia residents living near
mountaintop removal mines compared to West Virginia residents
living away from those mines. And the U.S. Geological Survey
recently published preliminary research showing that areas near
mountaintop removal mines have significantly higher
concentrations of some metals in air particulates, which are
known to be associated with cancer and lung disease.
The majority's legislation requires that we ignore all of
these realities. It would lock in a woefully inadequate Bush
rule for as long as 7 years, probably longer, and force OSM to
start its years-long rulemaking process from scratch. In the
name of saving taxpayer dollars, we are undoubtedly with this
bill embarking on a path to spend a whole lot more taxpayer
dollars.
A decade or more of inadequate protection from mountaintop
removal mining would destroy more Appalachian streams and
communities and damage public health. OSM must be allowed to
assess the evolving science on this issue and to set standards
that are based on best technology available in order to
minimize the adverse effects of surface mining as called for by
law.
As I said at our previous hearing on this issue just last
week, we can have an informed debate about what a new stream
protection rule should require. But we can have that debate
only once a proposed rule is issued. And OSM will be required
at that time to consider outside perspectives, including those
of coal companies, Members of Congress, and others before
adopting a final rule that has the force of law.
Unfortunately, the majority has used every imaginable ploy
to disrupt, delay, and prejudice this deliberative process.
They believe coal companies should be allowed to blow the tops
off mountains and dump the waste into streams, no matter what
the science says about the consequence for our environment and
the public health. This legislation should be opposed.
I yield back the balance of my time.
[The prepared statement of Mr. Huffman follows:]
Prepared Statement of The Honorable Jared Huffman, a Representative in
Congress From the State of California
Thank you Mr. Chairman.
The bill we are discussing today would stop the Interior
Department's Office of Surface Mining from adopting a new rule to
protect the people of Appalachia from destructive mountaintop removal
mining. It also would require States to implement the Bush
Administration's 2008 midnight regulation, which weakened protections
put in place 25 years earlier during the Reagan Administration.
The 1983 Reagan rule stated, and I quote, ``No land within 100 feet
of a perennial stream or an intermittent stream shall be disturbed by
surface mining activities.'' Regulators could allow surface mining
activities ``closer to, or through, such a stream,'' but only upon
finding that these activities, ``will not cause or contribute to the
violation of applicable State or Federal water quality standards, and
will not adversely affect the water quantity and quality or other
environmental resources of the stream.''
The 2008 Bush rule exempts waste disposal practices associated with
mountain-top removal mining from the buffer zone requirement, in
contravention of the Surface Mining Control and Reclamation Act. The
Bush rule also permits surface coal mining activities even if such
activities may cause or contribute to violations of water quality
standards.
The Majority's legislation would require that we give the Bush rule
a try and see what happens. We already know what will happen.
Mountaintop removal mining buried or despoiled around 2,000 miles
of streams under the Reagan rule. The Bush rule weakens the Reagan rule
and would make matters worse: more streams buried, more communities
turned into ghost towns, more people suffering the health consequences
of contaminated air and water.
On Wednesday the Majority suggested naming our oceans after Ronald
Reagan; today they propose rolling back the former President's modest
efforts to protect streams from surface mining.
This Republican plan would be devastating. New studies link
pollution from mountaintop removal mining with cancer, birth defects,
lung and heart disease. Multiple studies within the last 3 years found
significantly higher rates of cancer and heart disease in West Virginia
residents living near mountaintop removal mines, compared to West
Virginia residents living away from those mines. And the U.S.
Geological Survey recently published preliminary research showing that
areas near mountaintop removal mines have significantly higher
concentrations of some metals in air particulates, which are known to
be associated with cancer and lung disease.
The Majority's legislation requires that we ignore these realities.
It would lock in the woefully inadequate Bush rule for as long as 7
years and force OSM to start its years-long rulemaking process over
from scratch.
A decade or more of inadequate protection from mountaintop removal
mining would destroy more Appalachian streams and communities, and
damage public health. OSM must be allowed to assess the evolving
science on this issue and set standards based on the best technology
available to minimize the adverse effects of surface mining, as called
for by the law.
As I said at our previous hearing on this issue just last week, we
can have an informed debate about what a new stream protection rule
should require, once a proposed rule is issued. And OSM will be
required to consider outside perspectives, including those of coal
companies and Members of Congress, before adopting a final rule that
has the force of law.
Unfortunately, the Majority has used every imaginable ploy to
disrupt, delay and prejudice this process. They believe coal companies
should be able to blow the tops off mountains and dump waste into
streams, no matter what the science says about the consequences for the
environment and public health.
This legislation should be opposed.
______
Mr. Lamborn. OK. And I also ask unanimous consent that the
gentleman from Ohio, Mr. Johnson, the sponsor of the
legislation and a Natural Resources Committee alumni, be
allowed to sit on the dais and participate in the Committee
today and make a brief opening statement.
Seeing no objection, so ordered.
Now I recognize the Member to make a brief opening
statement. Then we will adjourn and go over to the Floor.
STATEMENT OF THE HON. BILL JOHNSON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF OHIO
Mr. Johnson. Well, thank you, Mr. Chairman, for holding
this important hearing today on the legislation that you and I
introduced last week.
I have to start my comments, you know, it is almost
laughable the comments by the Ranking Member referring to the
Bush rule as a midnight rule. Five years of work to put that
rule in place, thousands and thousands and thousands of pages
of public comments and documentation.
You want to talk about a midnight rule? Look at the time
schedule that was originally proposed by OSM to destroy the
coal industry in a matter of months. And it was only their own
ineptness in the rulemaking process and the work of this
Committee that stopped them from doing that. I am insulted by
it. The people in Appalachia that harvest coal and depend on
coal for their livelihoods, they are insulted by it.
I wish we weren't here today discussing the lackluster
effort by the Office of Surface Mining and Reclamation to
rewrite the Stream Buffer Zone Rule. However, over the last 5
years OSM has engaged in a comedy of errors that have led us to
this point. It would be funny if it didn't include millions of
dollars of taxpayers' money wasted and tens of thousands of
jobs on the line.
OSM has been derelict in their duties since the start of
this Administration because of their mismanagement of the
rulemaking process and their clear desire to virtually shut
down the coal mining industry in Appalachia. This dereliction
of duty and failure of leadership was further confirmed last
week when Director Pizarchik couldn't even answer the most
basic questions about the status of the rule and what it would
mean for jobs and the coal industry, and coal production in
general.
So that is why we are here today, to relieve OSM of their
duties that they have not and cannot meet. With this
legislation, we will save taxpayers untold more millions of
dollars and save thousands of direct and indirect jobs. And I
would invite my colleagues on the left and anyone else that
wants to come to Appalachia, Ohio, and meet the coal miners and
meet the families that are dependent upon the coal industry. We
are not just talking about surface mining here. We are talking
about shutting down underground longwall coal mining in
America. It is disastrous. And I certainly hope that my
colleagues will support this legislation.
With that, I yield back.
Mr. Lamborn. OK. Thank you.
[The prepared statement of Mr. Johnson follows:]
Prepared Statement of The Honorable Bill Johnson, a Representative in
Congress From the State of Ohio
h.r. 2824--preventing government waste and protecting coal mining jobs
in america
Thank you Mr. Chairman for holding this important hearing today on
the legislation that you and I introduced last week.
I have to start my comments . . . you know it is almost laughable,
the comments by the Ranking Member, referring to the Bush rule as a
midnight rule. Five years of work to put that rule in place, thousands,
and thousands, and thousands of pages of public comments and
documentation. You want to talk about a midnight rule? Look at the time
schedule that was originally proposed by OSM to destroy the coal
industry in a matter of months and it was only their only ineptness in
the rulemaking process and the work of this Committee that stopped them
from doing that. I'm insulted by it, the people in Appalachia that
harvest coal and depend on coal for their livelihoods, they're insulted
by it.
I wish we weren't here today discussing the lackluster effort by
the Office of Surface Mining and Reclamation to rewrite the Stream
Buffer Zone Rule. However, over the last 5 years OSM has engaged in a
comedy of errors that have led us to this point. It would be funny if
it didn't include millions of dollars of taxpayer's money wasted, and
tens of thousands of jobs on the line. OSM has been derelict in their
duties since the start of this Administration because of their
mismanagement of the rulemaking process and their clear desire to
virtually shut down the coal mining industry in Appalachia.
This dereliction of duty and failure of leadership was further
confirmed last week when Director Pizarchik couldn't even answer the
most basic questions about the status of the rule and what it would
mean for jobs and the coal industry, and coal production, in general.
So, that is why we are here today; to relieve OSM of their duties that
they have not, and cannot meet. With this legislation we will save
taxpayers untold more millions of dollars and save thousands of direct
and indirect jobs. I would invite my colleagues on the left, and anyone
else who wants to come to Appalachia Ohio and meet the coal miners, and
meet the families that our dependent upon the coal industry. We are not
just talking about surface mining here; we are talking about shutting
down underground longwall coal mining in America. It' is disastrous and
I certainly hope that my colleagues will support this legislation.
With that I yield back.
______
Mr. Lamborn. We have roughly 9 minutes left on the vote, so
we are going to take a recess in this Subcommittee to go over
and vote. We will be back as soon as the vote series is over,
and then we will resume our hearing. And I appreciate the
indulgence of the witnesses.
The Committee will be in recess.
[Recess.]
Mr. Lamborn. The Committee will come back to order. Thank
you for your patience. We will now hear from our witnesses: Mr.
Thomas Clarke, Director of the Division of Mining and
Reclamation, the West Virginia Department of Environmental
Protection; Mr. Bradley Lambert, Deputy Director of the
Virginia Department of Mines, Minerals and Energy; and Mr. John
Paul Jones, Director of Environmental Affairs for Alpha Natural
Resources and a National Mining Association member.
Like all our witnesses, your written testimony will appear
in full in the hearing record, so I ask that you keep your oral
statements to 5 minutes.
Our microphones are not automatic, so you need to turn them
on when you are ready to begin. The timing lights work as the
following: The green light starts up when you begin and start
your 5 minutes. The yellow comes on after 4 minutes. The red
light comes on after 5 minutes. And we ask to conclude at that
time.
Thank you all for being here. We look forward to your
testimony.
And, Mr. Clarke, you may begin.
STATEMENT OF THOMAS L. CLARKE, DIRECTOR, DIVISION OF MINING AND
RECLAMATION, WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL
PROTECTION
Mr. Clarke. Good morning, Mr. Chairman and members of the
Committee. I am Tom Clarke. I am Director of the Division of
Mining and Reclamation of the West Virginia Department of
Environmental Protection. Thank you for the opportunity to
address the Committee concerning H.R. 2824.
Mining fill placement in waters of the United States is
regulated by the Corps of Engineers under section 404 of the
Clean Water Act and by State regulatory programs under SMCRA. I
would like to take the Committee through a brief timeline of
the recent history of regulation of mining fill placement.
From and after 1998, there has been litigation over mining
fill replacement under SMCRA's 1983 Buffer Zone Rule and the
Clean Water Act section 404. The 1983 Buffer Zone Rule
prohibited mining within 100 feet of a perennial or
intermittent stream unless a waiver could be granted. The
requirements for a waiver could not be met in the stream
segment that is filled. However, neither OSM nor States had
ever applied the Buffer Zone Rule as a prohibition of mining
fills. But in lawsuits, environmental groups claimed that the
Buffer Zone Rule did just that.
In response, in January 2004, OSM published a notice of
proposed rulemaking for what became the 2008 Buffer Zone Rule.
In this notice, OSM said it was not aware of the 1983 rule ever
being applied as a prohibition of mining in the buffer zone. It
said it was seeking to clarify circumstances in which mining
activities, including fills, are allowed in the buffer zone. It
also said another purpose of this rulemaking was to align the
rule more closely with its basis in SMCRA and OSM's history of
interpreting it.
In December 2008, OSM finalized the 2008 rule. It added new
requirements for avoidance of fill in waters, analysis of
alternatives to fill in waters, and it was generally harmonious
with the Corps of Engineers requirements under section 404 of
the Clean Water Act. Environmental groups immediately
challenged the 2008 rule in court. Subsequently, on June 11,
2009, the Interior Department, EPA, and the Corps entered into
an MOU that committed OSM to developing the Stream Protection
Measures rule. This MOU and OSM's March 2010 settlement of the
lawsuit over the 2008 rule with environmental groups provided
the impetus for OSM to pursue the Stream Protection Measures
rule. In this settlement, OSM agreed to replace the 2008 rule
by January 2011.
The new rule is not justified by the history of OSM
oversight under SMCRA. OSM's settlement put it under
unrealistically tight timeframes for producing a rule. OSM
initiated the EIS for the new rule in the late summer of 2010.
It was underway in earnest in the fall of 2010. State
cooperating agencies, of which West Virginia is one, were given
very little time to review voluminous chapters of the EIS. In a
letter dated November 23, 2010, the States complained to OSM
about inadequate time to review the EIS and its poor overall
quality. Subsequently, OSM fired its EIS contractor.
Since then, the States have received little or no
information about the EIS despite sending another letter to OSM
on July 3 of this year seeking to reengage the process, and
also despite what we have heard, that OSM employees are
actively working on the EIS rule internally.
A leaked version of the new rule in 2010 shows serious
potential conflicts with the Clean Water Act. It provides a
biologic component of the material damage definition, biologic
performance standards, and quantification methods for
determining material damage. These have great potential to
conflict with water quality standards in the Clean Water Act.
The new rule would also provide corrective action thresholds of
which operations that are otherwise in compliance with Clean
Water Act requirements are subject to regulatory consequences
under surface mining laws.
On the Surface Mining Act side, it also provides national
definitions for Approximate Original Contour and material
damage to the hydrologic balance, thus eliminating the
flexibility that the States are supposed to have under SMCRA.
I understand that OSM has recently projected an August 2014
date for final promulgation of this rule. The timeframes for
public comment on a draft rule in EIS and OSM's development of
responses to these comments in a final rule would appear to
make publication of a proposed rule and EIS imminent. The
States and the public have been shut out of a process that is
expected to bring radical change to surface mining regulation.
This is bad policy. The 2008 rule, which was carefully
considered over a 5-year period, has never been implemented and
should be given a chance to work. If radical change in mining
regulation is to occur, the impetus for that should come from
Congress, not a backroom agreement of bureaucrats or a sue-and-
settle court settlement. An approach like H.R. 2824's is
appropriate.
Again, I would like to thank the Committee for the
opportunity to appear today and would be glad to answer any
questions.
Mr. Lamborn. All right. Thank you.
[The prepared statement of Mr. Clarke follows:]
Prepared Statement of Thomas L. Clarke, Director, Division of Mining
and Reclamation, West Virginia Department of Environmental Protection
The West Virginia Department of Environmental Protection
appreciates the opportunity to submit this testimony regarding a
legislative hearing on H.R. 2824, the Preventing Government Waste and
Protecting Coal Mining Jobs in America Act.
On the eve of the 36th anniversary of the adoption of the Surface
Mining Control and Reclamation Act of 1977 (``SMCRA'' or the ``Act''),
the Office of Surface Mining Reclamation and Enforcement (OSM) is
continuing its efforts to substantially re-write the regulations
governing the way coal mining is conducted in America. Its most recent
projection is that this effort, its Stream Protection Measures
Rulemaking, will be completed a year from now, in August of 2014. In
doing this, OSM is casting aside revisions it made to its Stream Buffer
Zone Rule in 2008, without ever attempting to implement them. The 2008
Stream Buffer Zone Rule was a logical evolution of the surface mining
regulatory program. It was promulgated in an open, transparent manner
accompanied by a multi-year Environmental Impact Statement (EIS)
supporting it. In contrast, the Stream Protection Measures Rule finds
its genesis in a backroom agreement of Federal regulators who sought
not only to impose a regulatory stranglehold on a significant source of
the Nation's energy supply but, also, to radically transform the
economy of the Appalachian region in so doing.
osm's impetus for the stream protection measures rulemaking
From where does OSM get the impetus for its attempt to re-write the
details of a mature regulatory program? Not from thousands of
inspections in its role of oversight over State regulatory agencies to
whom SMCRA gives exclusive regulatory jurisdiction. Not from 30 plus
years of annual evaluations of State regulatory programs. Not from any
demands from Congressional overseers that OSM conform to Congressional
intent. Not from any outcry from State regulators demanding fixes for
broken regulatory programs. No, the impetus comes from two sources: (1)
a June 11, 2009 MOU the Interior Department signed with the
Environmental Protection Agency (EPA) and the Army Corps of Engineers
which targeted Appalachian coal mining for stricter scrutiny; and (2) a
``sue and settle'' lawsuit settlement reached with environmental groups
in their challenge of 2008 revisions to OSM's stream buffer zone rule.
In the June 11, 2009, MOU these agencies agreed to make significant
changes in the way coal mining is regulated in Appalachia. These
agencies made this agreement without advance notice or opportunity for
comment. OSM explained its part under this MOU:
On June 11, 2009, the Secretary of the Department of the
Interior, the Administrator of the U.S. Environmental
Protection Agency (EPA), and the Acting Assistant Secretary of
the Army (Civil Works) entered into a memorandum of
understanding (MOU) implementing an interagency action plan
designed to significantly reduce the harmful environmental
consequences of surface coal mining operations in six
Appalachian States, while ensuring that future mining remains
consistent with Federal law.
Volume 75 Fed. Reg. 34667 (June 18, 2010); 75 Fed. Reg. 22723
(April 30, 2010). The June 11, 2009 MOU committed OSM to making
``[r]evisions to key provisions of current SMCRA regulations, including
the Stream Buffer Zone Rule and Approximate Original Contour (AOC)
requirements''. In addition to the OSM rulemaking effort that is the
subject of the Energy and Mineral Resources Subcommittee's current
focus, this June 11, 2009 MOU has been the basis of other efforts
undertaken by both OSM and the U.S. Environmental Protection Agency
(``USEPA'') to unlawfully seize regulatory authority that legitimately
resides with the States and other agencies under SMCRA and the Clean
Water Act (``CWA'') and adopt what amount to new regulations for the
regulation of coal mining that are contrary to these agencies' enabling
statutes.
The authors of this MOU apparently understood that accomplishment
of their regulatory goals would fundamentally change and, perhaps,
devastate the economy of the Appalachian region, which has historically
been dependent on coal mining. To address this, the MOU anticipates
that, ``the Federal Government will help diversify and strengthen the
Appalachian regional economy. This effort will include the agencies to
this MOU, and other Federal agencies, as appropriate, and will work to
focus clean energy investments and create green jobs in Appalachia.''
Clearly, economic and social engineering is well beyond any legitimate
role Congress has granted to agencies like OSM, EPA and the other
signatories to the June 11, 2009 MOU. These agencies need to be
accountable to Congress and be required to operate within the legal
authority Congress has granted them.
Another impetus for OSM's Stream Protection measures rulemaking was
a court settlement. When the June 11, 2009 MOU committed OSM to
changing its 2008 stream buffer zone rule, OSM was already in
litigation with environmental groups challenging the 2008 rule. On
March 19, 2010, after OSM was unsuccessful in persuading the court to
allow it to simply cast aside the 2008 rule, OSM entered into a
``friendly'' settlement agreement with the opponents of this rule. In
this settlement, OSM committed to issuance of a proposed regulation
replacing the 2008 rule, i.e., the Stream Protection Measures rule, by
February 28, 2011. This necessarily required OSM to complete the draft
EIS for the Stream Protection Measures rule within the same timeframe,
by February 28, 2011. The unreasonableness of the timeframe OSM
targeted for completion of this EIS might be best illustrated by a
comparison with the EIS it conducted for the 2008 stream buffer zone
rule, which it aimed to replace. From OSM's announcement of its intent
to prepare an EIS for the 2008 stream buffer zone rule through issuance
of a draft EIS, a little more than 26 months passed. Importantly, the
EIS for the 2008 rule built upon the more extensive Mountaintop
Mining--Valley Fill EIS that had recently been completed in 2005. In
contrast, the EIS for the Stream Protection Measures Rule has been
conducted as a stand-alone EIS for a much more sweeping regulatory
change than the 2008 stream buffer zone rule. OSM announced its intent
to prepare the Stream Protection Measures EIS in April, 2010 and again
in June, 2010. This allowed OSM only 8 months to complete a draft EIS
for the Stream Protection Measures Rule.
the stream protection measures rulemaking process has been flawed from
the start
OSM correctly realized that its planned Stream Protection Measures
rulemaking was sufficient in scope to require the preparation of an EIS
in accordance with the National Environmental Policy Act (NEPA).
However, in contrast to the transparency and the hard look at
environmental consequences NEPA envisions, OSM has conducted the EIS in
such a manner as to foreclose meaningful participation by cooperating
agencies, of which the West Virginia Department of Environmental
Protection is one. It began the EIS with a ``cram down'' approach.
Under the unrealistically ambitious schedule OSM had established, the
eight cooperating State agencies were denied an opportunity to review
the first chapter of the EIS and were given only a very few days to
review and comment on hundreds of pages of material in chapters two,
three and four. Complicating the process was the fact that the
contractor OSM had hired to produce the EIS was apparently not up to
the task. After having only a brief opportunity to see and comment on
chapters two, three and four of the EIS, the States sent a joint letter
to OSM on November 23, 2010 complaining about the lack of meaningful
opportunity to comment on the EIS and the poor overall quality of the
product. Subsequently, OSM fired its EIS contractor.
Since OSM fired its contractor on the EIS, its process has shifted
to a nearly complete blackout on information about development of the
Stream Protection Measures Rule. Instead of NEPA's ``hard look'' at the
consequences of Federal action, OSM has shifted to a ``no look''
approach. The eight cooperating agency States sent another letter to
OSM on July 3, 2013, inquiring about OSM's intentions to further engage
with the States on the EIS and expressing interest in continued
participation in it. The States requested a reply from OSM by July 10,
2013. To date, no reply or other communication has been received.
Apparently, OSM intends to simply publish a draft EIS and proposed rule
someday without further engagement with the cooperating agency States
or opportunity for them to review substantially re-written versions of
chapters two, three and four and never-before-seen versions of
subsequent chapters.
impacts of the stream protection rule
Figures that became public around the time that OSM fired its
contractor for the EIS projected significant negative economic impacts
for the Appalachian region from the Stream Protection Measures Rule in
terms of job losses in the thousands, even greater population losses
and reduction of the tax base. Because OSM has yet to lift the veil on
the actual language of its proposed rule, a concise assessment of the
rule's regulatory burden on State agencies cannot be performed. From
briefings OSM conducted when it first began to consider this rule,
however, we are aware of many specific concepts that are expected to be
embodied in the Stream Protection Measures Rule. Several of these
concepts are troublesome to the West Virginia Department of
Environmental Protection:
--SMCRA provides that it is not to be applied in a manner that will
supersede, amend or repeal the Federal Clean Water Act. 30
U.S.C. Sec. 1292(a). This provision of SMCRA has been applied
by the courts to reject a past attempt by OSM to establish what
amounted to water quality standards. At the present time,
several of the Appalachian States, including West Virginia, are
in the process of establishing how narrative State water
quality standards for the protection of biologic components of
the aquatic ecosystem are to be applied in the context of the
regulation of coal mining. This process involves great
potential for conflict between USEPA and the States over the
application the Clean Water Act in this area. OSM intends to
interject itself in the middle of the debate between USEPA and
the States over this issue by including a biologic component in
its material damage definition . There is great potential for
this element of OSM's rules to conflict with the Clean Water
Act. The biologic component of the material damage definition
may be another unlawful attempt by OSM to establish what
amounts to a water quality standard.
--A proposed performance standard that would prohibit adverse impacts
to a stream's biologic community. This proposal suffers from
the same defects that affect OSM's proposal to include a
biologic component in its material damage definition, as
discussed in the paragraph above.
--The material damage definition is also expected to include
``quantification methods'' to define what constitutes material
damage. Again, OSM appears to be at risk of interfering with
the Clean Water Act where these quantification methods amount
to de facto numeric water quality standards.
--The material damage definition will also include ``corrective
action thresholds'' to identify trends and require correction
before the level of material damage is reached. This, too,
presents great potential for conflict with the Clean Water Act.
The NPDES permitting program under the Clean Water Act has a
process to establish effluent limitations for protection of
water resources. Discharges from mines or other facilities that
comply with these limitations are lawful and discharges that
exceed these limitations are unlawful. OSM's corrective action
thresholds would appear to be attaching regulatory consequences
to what would otherwise be lawful discharges under the Clean
Water Act's NPDES program, in conflict with the Clean Water
Act.
--The material damage definition is expected to codify OSM's Acid
Mine Drainage Policy. Without getting into an in-depth
discussion of the AMD policy, this probably is a sufficient
enough departure from the statutory language of SMCRA to
require it to be adopted through Congressional action rather
than agency rulemaking.
--OSM will propose that approval to mine through natural drainage
ways or streams be ``sequenced''. By this, OSM means that a
mine must completely reclaim a drainway it has mined through,
including restoration of the pre-mining biologic community in
the drainway, before the mine will be allowed to mine through
any subsequent drainway. In as much as drainways across
Appalachian mountain sides may be separated by only a couple
hundred feet, this proposal is entirely unrealistic.
--The portion of the Stream Protection Measures Rule that deals with
disposal of excess spoil proposes to require constructed
aquatards within excess spoil fills. Historically, nearly all
of the construction standards that have applied to excess spoil
fills have been oriented toward assuring their stability. One
element of the design has been to assure that these structures
drain freely. An aquatard is a layer of decreased permeability
where water will be forced to drain laterally through the
interior of a fill. This has the potential to seriously
compromise the structural integrity of these fills. Our
engineers refer to the aquatard as a ``failure plane.'' The
failure of such a structure would be a threat to public safety.
--The excess spoil disposal rules will also require the tops of fills
to be sloped to cause drainage to run off instead of
infiltrating the fill. Achieving the goal of promoting runoff
will cause peak flow to increase during rain events,
contributing to offsite flooding.
--OSM proposes to place additional restrictions on the granting of
variances from the existing requirement for restoration of the
approximate original contour of mined lands. This proposal has
great potential to conflict with West Virginia land use
planning laws. The coal mining areas of southern West Virginia
have had little economic development because the terrain is too
rugged. The State Legislature has recognized that mining
presents a unique opportunity to provide a resource that these
areas lack, flat land. This is essential to the future, post-
mining economic viability of these areas. The State has adopted
legislation which requires county level economic development
authorities to develop county-wide master land use plans. These
plans are required to be approved by State government and to
meet certain minimum State requirements. Each plan must be
updated and re-approved by the State at 3 year intervals so as
assure that it remains current. Under these plans, land that is
proximal to supporting infrastructure, such as four lane
highways or other transportation corridors, is targeted for
development while forestry and comparable land uses are planned
for more remote lands. New mining operations are required to
attain a post mine land use that comports with the county
master land use plan. OSM's proposal to further restrict
variances from the approximate original contour requirement
conflicts with these State land use laws and may foreclose the
opportunity to provide flat land through the mining process, so
there can be economic development of these historically coal
dependent areas after the coal is gone.
An overarching issue is the fundamental change in the Federal-State
relationship under SMCRA that is expected to come from the Stream
Protection Measures Rule. It is likely to result in elimination of the
ability of States to craft their regulatory programs as necessary to
address local State issues. In the 36 years since SMCRA was adopted,
OSM has left two of the Act's most fundamental concepts ``approximate
original contour'' and ``material damage to the hydrologic balance'',
to the States to apply. This was done with good reason. Application of
``approximate original contour'' in the rugged Appalachian terrain of
eastern Kentucky, southwest Virginia and southern West Virginia raises
far different issues than in the flatter farmland of Indiana or the
western plains. Application of the term, ``material damage to the
hydrologic balance'' necessarily involves vastly different issues in
the arid West than in the more humid East. The Stream Protection
Measures Rule will end the authority to deal with State-specific issues
at the State level that States currently enjoy. It will impose national
one-size-fits-all standards from Washington. This approach runs
contrary to one of the express findings Congress made in adopting
SMCRA:
[B]ecause of the diversity in terrain, climate, biologic,
chemical, and other physical conditions in areas subject to
mining operations, the primary governmental responsibility for
developing, authorizing, issuing, and enforcing regulations for
surface mining and reclamation operations subject to this Act
should rest with the States[.]
30 U.S.C. Sec. 1201(f).
the 2008 stream buffer zone rule
The 2008 Stream Buffer Zone Rule was meant to clarify the 1983
version of this rule. The 1983 Stream Buffer Zone rule was the target
of litigation from and after the late 1990s that sought to re-interpret
this rule in a way that was contrary to both its existing
interpretation, the provisions of SMCRA which govern excess spoil and
fill placement and the authority of the Army Corps of Engineers under
section 404 of the Federal Clean Water Act. The 2008 rule represents a
rational approach to resolution of these potential conflicts. It
clarifies the Stream Buffer Zone Rule in a manner that does not pose
these conflicts and strengthens the previous rule by adding new
requirements which further limit the impact on streams from disposal of
excess spoil and other fill material from coal mining operations. New
requirements of the 2008 rule include standards that require avoidance
of fill in stream channels, analysis of alternatives to filling streams
and standards that are harmonious with requirements of the Army Corps
of Engineers in its permitting program for authorization of fill
placement in waters of the United States under section 404 of the Clean
Water Act.
the west virginia regulatory program's existing stream protection
requirements
The regulatory programs in West Virginia and other States have not
been static. The State programs have evolved over time to deal with
State issues as they have arisen. The current OSM rulemaking will
diminish the regulatory flexibility that States have in favor of
national solutions dictated from Washington. West Virginia has been
successful in addressing new issues as they arise, within SMCRA's
regulatory framework. There are many requirements for the protection of
the hydrologic balance an applicant for a permit must meet before a
surface mining permit will be issued:
--Core drilling must be conducted in the area where surface mining is
proposed. Each layer of rock in the core sample is analyzed for
chemical content. The data is used to determine which rock
layers have potential to leach and produce pollutants. The
principal focus has been on prevention of acid mine drainage
(low pH and iron) and selenium pollution. Rock layers that
exhibit this potential are required to be specially handled and
placed, so the opportunity for these materials to come into
contact with water is minimized.
--The applicant must conduct extensive water sampling to establish
the pre-mining baseline condition for surface and ground water
quality and quantity in the area of the proposed mine. The
number of samples taken must be sufficient to establish the
seasonal variation in these baseline conditions.
--The applicant must perform a detailed analysis of the likely
effects of its proposed mining operation. This analysis is
called a ``PHC'' (prediction of Probable Hydrologic
Consequences).
--The applicant must include a Hydrologic Reclamation Plan (``HRP'')
in its application. The HRP must contain measures the applicant
will take to reduce the hydrologic impact of its proposed
mining operation, comply with effluent limitations imposed
under the CWA and a plan for replacement of the water supply of
anyone whose water supply is unexpectedly contaminated or
interrupted by the mining operation.
--The applicant must perform a Storm Water Runoff Assessment (SWROA).
In the SWROA, the applicant must model storm water runoff from
the proposed mining operation under pre-mining, worst case
during mining, and post mining scenarios. The SWROA must
demonstrate that the mine has been designed so as to not allow
a net increase in peak runoff in comparison to the pre-mining
condition. There is no Federal counterpart to West Virginia's
SWROA requirement.
--The application must contain detailed engineering design
information for all drainage control or water retention
structures.
--The applicant must demonstrate that it has minimized the amount of
mine spoil it is not using in reclamation (excess spoil) and
placing outside the mined area in a drainway or stream. West
Virginia requires applicants to utilize a modeling tool called
AOC+ (approximate original contour) in making this
demonstration. This modeling tool has been in use for more than
10 years and has been approved by USEPA, the Army Corps of
Engineers and OSM as a legitimate means of demonstrating the
amount of mine spoil returned to the mined-out area for use in
reclamation has been optimized and the size of any fill placed
in a stream outside the mined area has been minimized.
--The agency must perform a Cumulative Hydrologic Impact Assessment
(``CHIA'') for the proposed mine and all other existing or
proposed mining in the cumulative impact area for the proposed
operation. A permit will not be issued unless the agency can
make a finding that the applicant has affirmatively
demonstrated that its proposed operation has been designed to
prevent ``material damage to the hydrologic balance outside the
permit area''.
--West Virginia is one of a few States that have promulgated
regulations defining ``material damage to the hydrologic
balance''. There is no Federal definition of this term.
--The agency performs a Buffer Zone Analysis (``BZA'') for any permit
which contemplates placement of spoil within 100 feet of an
intermittent or perennial stream. The BZA involves detailed
environmental analyses of the environmental impacts of spoil
placement in such areas and has been relied upon by the Army
Corps of Engineers in its issuance of permits for mining-
related fills in waters of the United States under section 404
of the Clean Water Act. There is no parallel to the BZA in
Federal surface mining regulations. The BZA is described in
more detail in the attached letter from Thomas D. Shope of OSM
to Joseph M. Lovett dated December 8, 2009. This letter also
contains a detailed discussion of how the West Virginia
regulatory program complies with its stream buffer zone rule,
which the subcommittee may also find to be of interest.
--The permit must establish plans for monitoring surface and ground
water quality and quantity during mining, so predictions in the
applicant's PHC can be verified. It must also include a during-
mining monitoring plan for verification of the predictions of
the SWROA it has conducted.
--The State recently adopted permitting guidance for application of
its narrative water quality standard for the protection of the
biologic component of the aquatic ecosystem in NPDES permitting
under the CWA. As a result, the Aquatic Ecosystem Protection
Plans required under this guidance for the NPDES permitting
program are now also being included in HRPs for mining
operations. CHIAs the agency performs are also addressing
protection of the aquatic ecosystem.
Beyond the permitting requirements outlined above, the West
Virginia regulatory program includes a number of performance standards
that apply to all aspects of hydrologic protection that are addressed
in permitting. The West Virginia Department of Environmental Protection
inspects all permits on a minimum frequency of once per month to assure
that performance standards and permit conditions are being met.
Enforcement action is taken, including notices of violation and
cessation orders, as appropriate, for a mine operator's failure to
comply. Civil penalties are assessed for non-compliance. Operators
which fail to correct violations on a timely basis are blocked from
receiving future permits. A pattern of violations can result in
suspension or revocation of a mine operator's permit.
conclusion
OSM and the other parties to the June 11, 2009 MOU have attempted
to boldly make quantum shifts in regulatory policy that are the
business of Congress and State legislatures to make. The courts have
rejected actions EPA has taken to carry out its tasks under this MOU.
OSM's principal task under the MOU, its Stream Protection Measures
rulemaking is also ill-conceived, is aimed at fixing problems that have
not been demonstrated to exist, has great potential to conflict with
the Clean Water Act and is being undertaken under a veil of secrecy.
Congress should constrain OSM to its proper role under SMCRA and
require it to interpret the law consistent with the congressional
intent behind it.
The 2008 Stream Buffer Zone rule properly resolved issues that
arose in the interpretation of its predecessor rule, did so in a manner
that was harmonious with the Clean Water Act and the congressional
intent behind SMCRA and provided enhanced protection of streams. OSM
has not implemented this rule and has never given it a chance to work.
Before OSM is allowed to complete a radical revision of its surface
mining rules, it should take some time to evaluate the operation of its
2008 rule. The approach of H.R. 2824 is a reasonable way to accomplish
this.
I sincerely hope this written statement, the attachment submitted
herewith and the oral testimony presented before the Subcommittee are
useful to it. If I can be of further assistance to the Subcommittee,
please contact me.
______
Letter Submitted for the Record From Thomas D. Shope
U.S. Department of the Interior,
Office of Surface Mining, Reclamation and Enforcement,
Pittsburgh, PA, December 8, 2009.
Joseph M. Lovett,
Executive Director,
Appalachian Center for the
Economy and the Environment,
Lewisburg, WV 24901.
Re: Response to petition requesting Federal enforcement of West
Virginia's surface mining program pursuant to 30 CFR part
733.
Dear Mr. Lovett:
This letter responds to your August 10, 2009, petition requesting
Federal enforcement, pursuant to 30 CFR part 733, of West Virginia's
stream buffer zone (SBZ) regulation. In reviewing the allegations
raised in your letter, we have found no indication that West Virginia
does not apply its SBZ rules consistent with its historic application
of the SBZ requirements, as approved by OSM. Therefore, and for the
further reasons outlined below, I am denying your request for an
evaluation of the State program at this time. Neither your allegations
nor other available information supports the conclusion that the State
is failing to administer its approved SBZ provisions.
However, it is a high priority of OSM to improve stream protection
in Appalachia, and OSM is in the process of reviewing and revising our
stream protection requirements through an expedited SBZ rulemaking. On
November 30, 2009, OSM published for a 30-day public comment period an
advance notice of proposed rulemaking for its SBZ and related
regulations. Further, to provide increased protection for streams
pending the final outcome of the pending rulemaking, we are currently
seeking comment on a series of State oversight measures, and we are
implementing immediate stream protection measures under existing
program requirements.
In your petition, you made the following allegations:
``. . . WVDEP's decision to exempt valley fills and huge
stream elimination projects from the scope of the rule's
protections renders the regulation meaningless.''
``. . . West Virginia does not apply the buffer zone rule to
the footprints of fills, neither does it consider the buffer
zone rule in regard to permanently eliminating intermittent and
perennial stream segments.''
``. . . we believe that the State has never denied a request
for a variance from the buffer zone rule.''
Your petition also advances numerous legal arguments supporting
your position that West Virginia must construe its rule in a manner
consistent with your interpretation of the 1983 Federal regulation.
We have reviewed the relevant aspects of West Virginia's program
and have found that the factual allegations in your petition are not
supported by the record. However, I encourage you to submit your views
as comments on the current rulemaking.
West Virginia does not interpret its SBZ rule in a manner that
serves as an absolute prohibition of fills and all other coal mining
activities (such as mining through, crossing, relocating or other
activities) within 100 feet of an intermittent or perennial stream.
West Virginia is applying its rule in a manner consistent with OSM's
historical interpretation of the 1983 Federal SBZ rule upon which the
State rule is based. The State program applies the SBZ rule in a manner
that allows the placement of excess spoil fills, refuse piles, slurry
impoundments, and sedimentation ponds in intermittent and perennial
streams. However as explained below, the State uses procedures and
processes to reduce, minimize and in some cases eliminate the placement
of fill in streams in order to reduce the environmental impacts.
West Virginia has previously implemented measures to minimize the
adverse environmental impact of the placement of excess spoil in
streams. As a result of a consent decree in Bragg v. Robertson, Civil
Action No. 2:98-0636 (S.D. W. VA. 1998), which was approved by U.S.
District Court Judge Charles Haden, on February 17, 2000, the West
Virginia Department of Enviromnenta1 Protection (WVDEP) agreed to do
the following, inter alia:
Enforce its SBZ rule and make site-specific written findings
before granting SBZ variances;
Make site-specific written findings showing that ponds are
to be placed as close as practicable to the toes of fills; and
Develop a plan to meet approximate original contour (AOC)
and to optimize spoil placement. The plan does not cover
contour operations. Furthermore, the plan shall only be
implemented pursuant to a memorandum of understanding (MOU) or
agreement among the affected Federal and State agencies.
In response to the consent decree, WVDEP, in cooperation with OSM,
developed procedures for optimizing spoil placement. The guidance
documents were approved by three Federal agencies (USEPA, USACE, OSMRE)
and were implemented by WVDEP in June of 2000. This guidance, known as
``AOC+'', was developed to achieve the following stated objectives:
Provide an objective process for achieving AOC while
ensuring stability of backfill material and minimization of
sedimentation to streams;
Provide an objective process for determining the quantity of
excess spoil that may be disposed of in excess spoil disposal
sites such as valley fills; and
Optimize the placement of spoil to reduce watershed impacts.
The AOC+ method is a reasonable procedure to ensure that an
adequate amount of spoil will be returned to the mine excavation so
that the AOC requirements of configuration, stability, and drainage
will be achieved. This volumetric model (defined backfill template)
expands the in-place overburden and then reduces the total expanded
volume to ensure backfill stability, drainage, access and safety during
the mining and reclamation process. The calculated backfill volume is
placed in the mine excavation. All spoil material in excess of the
backfill volume is placed in excess spoil fills, usually in adjacent
valleys. Minor variations from the model are allowed for the final
grading to blend with surrounding contours and drainage patterns.
West Virginia also incorporates a site-specific ``Buffer Zone
Analysis'' (BZA) into its permitting process whenever an applicant
proposes to conduct mining activities (including fills and mining
through) within 100 feet of an intermittent or perennial stream. This
analysis, which is conducted by WVDEP prior to the issuance of a
permit, addresses the following issues:
1. Disposal Site Selection
Does the site selection of the proposed fills and its
associated drainage structures represent the least
environmentally damaging practicable alternative?
Can the activity operate without fills in an intermittent
or perennial stream?
Has the least adverse impact alternative on special
aquatic sites been identified?
Has the activity's fill volume been minimized?
Has the fill been located and confined to impaired streams
to minimize smothering of organisms?
Are previously used disposal sites available?
2. Fill Material Evaluation
An evaluation of the proposed fill for any indication of
possible contaminants, considering the following physical
characteristics:
Results from previous testing of the material
or similar material in the vicinity of the project.
Protection practices for petroleum products
or designated hazardous substances.
Known existence of substantial material
deposits of substances, which could be released in
harmful quantities to the aquatic environment by
manmade discharge activities.
3. Environmental Analysis
Are the physical and chemical characteristics of the
aquatic ecosystem significantly affected in the following
areas:
Substrate impacts, changes in
physical, chemical and biological
characteristics?
Suspended particulate/turbidity
impacts?
Changes in chemistry and physical
characteristics of the receiving stream?
Alteration of normal water flow which
will result in changes in habitat, food
supplies, and spawning areas?
Do the proposed fills and associated drainage structures
significantly affect the following:
Violate applicable State Water
Quality Standards?
Violate applicable toxic effluent
standard?
Jeopardize the continued existence of
endangered or threatened species or their
habitat?
Aquatic ecosystem diversity,
productivity, and stability?
Other wildlife ecosystem diversity,
productivity, and stability?
Wetlands?
Riffle and pool complexes?
Human health, municipal and private
water supplies?
Recreational, aesthetic and economic
values?
Parks, historical sites and
wilderness areas?
The BZA also includes a table summarizing temporary and permanent
impacts to intermittent and perennial streams within the proposed
permit area. Finally, the BZA makes a specific recommendation, signed
by the reviewing engineer, biologist, geologist and NPDES permit
writer, to the WVDEP Director regarding approval.
In response to your allegations, we have verified that WVDEP is
still using AOC+ and the BZA in its permitting process and conducts a
BZA and corresponding authorization for all mining activities within
100 feet of an intermittent or perennial stream, including mining
through and relocating streams. We have reviewed recently issued
permits and selected four which our staff believe were large enough to
require valley fills. Three of these permits proposed impacts within
stream buffer zones: Alex Energy, Inc., S-3011-07, Raven Crest
Contracting, LLC, S-5006-08, and Alex Energy, Inc., S-3009-07. WVDEP
did prepare BZA's for the permits, and the permit files include AOC+
documentation. Two of the BZA's conducted concerned durable rock fills
while one was for mining through and permanently relocating a stream.
With respect to your last allegation that the WVDEP has never
denied a stream buffer zone variance, neither OSM nor the State
collects or tracks such statistics, and we were unable to verify or
refute that allegation. However, State officials advised us that
requests for the placement of spoil or the conduct of other activities
in streams or stream buffer zones are often modified to reflect the
least environmentally damaging practicable alternative through the
normal permitting process. In addition, during the review process the
applicant may revise the mining plan to avoid certain streams, and that
may avoid the occasion for a denial. WVDEP provided a list of recently
issued permits where proposed stream impacts had been eliminated or
reduced through the permit review process. OSM conducted independent
verification of two instances where proposed fills were in fact
eliminated. The first is S5034-08 (Sandy Gap Surface Mine) in which an
excess spoil fill was proposed, but was subsequently eliminated, with
the excess spoil being placed on an adjacent permit backfill area. The
second is U5013-03 (Jarrell Branch Mine, Portal A) in which
authorization was requested for an existing haul road and a temporary
excess spoil fill in a stream buffer zone. The temporary excess spoil
fill was subsequently eliminated, with the material to be placed in two
locations on existing pre-law benches, and ultimately to be used in
reclaiming the pre-law benches and highwalls.
Previously, for the Environmental Impact Statement conducted for
the Federal 2008 stream buffer zone rule, OSM had reviewed 110 separate
versions of WVDEPs' BZAs. In response to your petition, we reviewed a
sample of those analyses and noted that one BZA resulted in moving the
toe of a durable rock fill upstream approximately 2,800 feet, which
eliminated the need to permanently fill several hundred feet of stream
(SMA # S-5007-01, Apogee Coal Company).
In summary, we found no evidence that West Virginia is implementing
its SBZ rule in any way that substantively deviates from the approved
State program. Therefore, we have no reason to conduct the program
evaluation under 30 CFR 733.12(a)(2) that your petition requests.
In recent litigation, Ohio Valley Environmental Coalition v.
Aracoma Coal Co., 556 F.3d 177, 195 (4th Cir. 2009), the United States
Court of Appeals for the Fourth Circuit discussed requirements of SMCRA
concerning coal mining impacts on streams. In that decision, the court
stated:
Congress clearly contemplated that the regulation of the
disposal of excess spoil and the creation of valley fills fall
under the SMCRA rubric. See 30 U.S.C. Sec. 1265(b)(22)(D)
(2000) (requiring that lateral drains be constructed where a
spoil disposal area contains ``springs, natural water courses
or wet weather seeps''); Kentuckians for the Commonwealth, Inc.
v. Rivenburgh, 317 F.3d 425, 443 (4th Cir. 2003) (``[I]t is
beyond dispute that SMCRA recognizes the possibility of placing
excess spoil material in waters of the United States . . .'').
Thus, Aracoma and Rivenburgh recognize that under SMCRA it may be
appropriate to allow placement of excess spoil in streams. In addition,
the Aracoma court stated:
As part of its federally approved SMCRA regulatory program, the
WVDEP surface mine permitting process examines ``[e]very detail
of the manner in which a coal mining operation is to be
conducted . . . includ[ing] the plan for disposal of excess
spoil for surface . . . mining operations. . . .'' * * * As the
Corps explains in its permits, ``the social and environmental
impacts associated with surface coal mining and reclamation
operations are appropriately analyzed by WVDEP in this context
before that agency decides whether to permit the mining
operation under SMCRA.'' * * * A SMCRA permit applicant must
provide detailed information about possible environmental
consequences of the proposed operations, as well as assurances
that damage to the site will be prevented or minimized during
mining and substantially repaired after mining has come to an
end. The WVDEP must ensure compliance with SMCRA's
environmental protection performance standards. See 30 U.S.C.
Sec. Sec. 1257, 1260, 1265 (2000).
Aracoma. 556 at 195-196. The Aracoma court's opinion recognizes
that the State provides a detailed review of stream and environmental
impacts for mine permit applications, and requires the operator to meet
SMCRA requirements to prevent or minimize damage and to reclaim.
I conclude that there is no requirement for OSM or the State to
change the interpretation of the existing State SBZ rule. Further, as
discussed above, I have reviewed the allegations you have made and I
find that they are not verified by the information we have reviewed. I
have no basis to conclude that the State is failing to effectively
implement its approved stream buffer zone provisions, or that the State
has changed its historic interpretation of those provisions. Therefore,
I find that pursuant to 30 CFR part 733, I have no basis to evaluate
the State's implementation of its stream buffer zone provision at this
time.
Although I have decided not to evaluate West Virginia's
implementation of its provision, OSM believes it is important to
improve protection of streams under SMCRA. Therefore, as mentioned
above, we have started an expedited rulemaking to revise the Federal
2008 SBZ rule to provide better environmental protections from the
impacts of Appalachian surface coal mining. Further, OSM is taking
immediate protective measures for streams pending final action on the
rulemaking.
As you are aware, on December 12, 2008 (73 FR 75814-75885), OSM
published a final rule modifying the circumstances under which mining
activities may be conducted in or near perennial or intermittent
streams. That rule (referred to as the 2008 rule) took effect January
12, 2009. In cases filed on December 22, 2008, and January 16, 2009,
Coal River Mountain Watch, et al. v. Salazar, No. 08-2212 (D.D.C.)
(``Coal River'') and National Parks Conservation Ass'n v. Salazar, No.
09-115 (D.D.C.) (``NPCA''), a total of nine organizations challenged
the validity of the rule.
In NPCA, on April 27, 2009, the Government filed a motion for
voluntary remand and vacatur of the 2008 rule. Granting of the
Government's motion likely would have had the effect of reinstating the
1983 version of the SBZ rule. In Coal River, on April 28, 2009, the
Government filed a motion to dismiss the complaint as moot, which the
Government argued should be granted if the court granted the motion in
NPCA.
On June 11, 2009, the Secretary of the Department of the Interior,
the Administrator of the U.S. Environmental Protection Agency, and the
Acting Assistant Secretary of the Army (Civil Works) entered into a
Memorandum of Understanding (MOU) implementing an interagency action
plan to significantly reduce the harmful environmental consequences of
surface coal mining operations in six States in central and northern
Appalachia. Among other things, the MOU required that we develop
guidance clarifying how the 1983 SBZ rule would be applied to reduce
adverse impacts on streams if the court granted the Government's motion
in NPCA for remand and vacatur of the 2008 SBZ rule.
On August 12, 2009, the court denied the Government's motion in
NPCA, holding that, absent a ruling on the merits, significant new
evidence, or consent of all the parties, a grant of vacatur would allow
the Government to improperly bypass the procedures set forth in the
Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., for repealing
an agency rule.
On November 30, 2009, OSM published an Advance Notice of Proposed
Rulemaking in the Federal Register seeking comments on our intention to
revise our regulations concerning the conduct of mining activities in
or near streams (74 FR 62664-62668). Those revisions would implement,
in part, the MOU. Accomplishing that goal will involve revision or
repeal of certain elements of the Federal 2008 rule. The rulemaking
process will comply with the requirements of the Administrative
Procedure Act, including any applicable notice and comment
requirements, consistent with the court's decision in NPCA. While the
Federal 2008 rule remains in effect, OSM is implementing immediate
steps to improve stream protection pending the final outcome of the SBZ
rulemaking. A copy of those immediate protective measures is enclosed.
It is possible that concerns you have raised may be resolved
through our new SBZ rulemaking initiative, which we plan to complete as
expeditiously as possible. If you have any questions or need further
information, please do not hesitate to contact me.
Sincerely,
Thomas D. Shope,
Regional Director, Appalachian Region.
______
Mr. Lamborn. Mr. Lambert.
STATEMENT OF BRADLEY C. ``BUTCH'' LAMBERT, DEPUTY DIRECTOR,
VIRGINIA DEPARTMENT OF MINES, MINERALS AND ENERGY
Mr. Lambert. Good morning, Mr. Chairman and members of the
Subcommittee. My name is Butch Lambert, and I serve as the
Deputy Director of the Virginia Department of Mines, Minerals
and Energy. Thank you for the opportunity to appear before you
today to offer testimony on H.R. 2824.
On December 12, 2008, OSM issued a news release titled,
``Office of Surface Mining Issues New Mining Rule Tightening
the Restrictions on Excess Spoil, Coal Mine Waste, and Mining
Activities Near Streams.'' OSM and State agencies felt as
though the 2008 Buffer Zone Rule was a rule that would finally
meet the goal of environmental protection while ensuring the
coal production that would meet the energy needs of the Nation.
The development of the 2008 rule was a 5-year process. OSM
solicited public input throughout the process. The agency
received over 43,000 comments and held four public hearings
that were attended by approximately 700 people. The rule was to
take effect on January 12, 2009. However, before the rule was
implemented, it was suspended. The States had no opportunity to
amend our programs to adopt the rule.
We believe the 2008 rule contained provisions that would
allow disposal of excess spoil in such a manner that would
ensure stream protection. We are supportive of the approach
contained in H.R. 2824 and believe the States should be
provided an opportunity to implement the Stream Buffer Zone
Rule following which OSM can prepare an assessment of why a
different rule is needed.
We also would note that given the fact that the States are
implementing a regulatory requirement of SMCRA, we do not see
the adoption of the 2008 rule as an unfunded mandate. Whether
that would hold true for OSM's current intention to move
forward with an expanded stream protection rule remains to be
seen.
For years, the States have been administering stellar
regulatory programs, including the protection of streams.
However, beginning in 2009, OSM moved to impose drastic change
in how the States administer the programs. The OSM has not
provided any information to the States as to the reason for
revising the Stream Buffer Zone Rule that they now have termed
the Stream Protection Rule.
Early in the development of the draft, OSM invited several
States, including Virginia, to participate in the development
of the environmental impact statement as cooperating agencies
under the National Environmental Policy Act. In preparing the
draft EIS, OSM hired a contractor outside of the coal mining
regions who had no mining background. Cooperating agency States
were cautious about the contractor and its ability to develop
the draft EIS. We voiced a concern about developing a new EIS
and a new rule. However, OSM moved forward with the contract
for development of the draft EIS. Following a limited
opportunity to provide comments on a few early chapters of the
draft in 2010, State cooperating agencies have not been
involved in the review of the comments of the draft or any
other portion of the draft EIS.
On July 3, 2013, several cooperating agency States sent a
letter to Director Pizarchik reminding him that the role of the
cooperating agencies included the opportunity to review and
comment on those chapters of the draft that are made available
to us. I would like to submit a copy of that letter for this
record.
Mr. Lamborn. And if there is no objection, that will be
entered into the record.
[The letter submitted for the record by Mr. Lambert
follows:]
Letter Submitted for the Record From, Randall C. Johnson, Bruce
Stevens, Steve Hohmann, John Caudle, John Baza, Bradley C. Lambert,
Thomas L. Clarke, and Todd Parfitt
July 3, 2013.
The Honorable Joseph G. Pizarchik,
Director,
Office of Surface Mining, Reclamation and Enforcement,
U.S. Department of the Interior,
Washington, DC 20240.
Dear Director Pizarchik:
We are writing to you as cooperating agencies that are
participating in the Office of Surface Mining's development of a draft
Environmental Impact Statement (EIS) to accompany a proposed rule on
stream protection. Our role as cooperating agencies, as defined by the
memoranda of understanding that each of us entered into with your
agency, is to review and comment on those chapters of the draft EIS
that are made available to us. Since the initiation of the EIS process
in 2010, the States have had the opportunity to comment on three
initial draft chapters (numbers 2, 3 and 4).
Over the course of the past 2 years, OSM's draft EIS development
process has seen several fits and starts, largely due to issues related
to the work of various contractors OSM engaged to assist the agency
with the draft EIS. Our understanding is that OSM has now addressed
these issues and is once again moving forward with the development of
the draft EIS. As a result, we would like to re-engage with the process
and request an opportunity to review draft chapters and other related
documents as they become available, pursuant to the MOU's we have in
place with the agency. In doing so, we have a few requests.
In the past, we had serious concerns regarding the constrained
timeframes under which we were operating to provide comments on draft
documents. As we have stated from the outset, and as Members of
Congress have also noted, the ability to provide meaningful comments on
OSM's draft documents is extremely difficult with limited working days
to review the material, some of which can be fairly technical in
nature. In order to comply with the deadlines, we have to devote
considerable staff time to the preparation of our comments, generally
to the exclusion of other pressing business. While we are prepared to
reallocate resources to review and comment on the draft EIS Chapters,
adequate time will allow for a more efficient use of those resources
and for the development of more in depth comments.
There is also the matter of completeness of the draft chapters that
we will review. In the case of chapters 2, 3 and 4, several
attachments, exhibits and studies were not provided to us as part of
that review. Some of these were critical to a full and complete
analysis of OSM's discussion in the chapters. It is important for us to
receive all applicable documents that are referenced in draft chapters
in order to conduct a meaningful review.
As part of the EIS process with cooperating agencies, OSM committed
itself to engage in a reconciliation process whereby the agency would
discuss the comments received from the cooperating agencies, especially
for purpose of the disposition of those comments prior to submitting
them to the contractor for inclusion in the final draft. Our experience
with the reconciliation process to date has not been particularly
positive or meaningful. We are hopeful that as we reinitiate the EIS
review and comment process, OSM will engage in a robust reconciliation
process. Among other things, we believe it should include an
explanation of which comments were accepted, which were not, and why.
Frankly, in an effort to provide complete transparency and openness
about the disposition of our comments, we believe the best route is for
OSM to share with us revised versions of the chapters as they are
completed so that we can ascertain for ourselves the degree to which
our comments have been incorporated into the chapters and whether this
was done accurately. We are therefore requesting that the revised
chapters be provided to us as soon as practicable after their
completion.
As OSM considers re-initiation of the review process for
cooperating State agencies, it would be helpful if the agency would
provide us with new time tables as soon as possible so that we can
begin our own internal planning.
Finally, as we noted during the submission of comments by many of
the cooperating agencies in the early rounds of the EIS development
process, there is great concern about how our comments will be used or
referred to by OSM in the final draft EIS that is published for review.
While the MOU s we signed indicate that our participation ``does not
imply endorsement of OSM's action or preferred alternative'', we want
to be certain that our comments and our participation are appropriately
characterized in the final draft. Furthermore, since CEQ regulations
require that our names appear on the cover of the EIS, it is critical
that the public understand the purpose and extent of our participation
as cooperating agencies.
As it is now, the States are uncertain whether their names will
appear on the draft EIS, which was originally anticipated. This of
course would imply tacit approval independent of the State comments
that have/have not been incorporated into the document. And while the
cooperating agency has the authority to terminate cooperating status if
it disagrees with the lead agency (pursuant to NEPA procedures and our
MOUs), the States realize the importance of EIS review and the
opportunity to contribute to, or clarify, the issues presented. We
therefore request an opportunity to jointly draft a statement with you
that will accompany the draft EIS setting out very specifically the
role that we have played as cooperating agencies and the significance
and meaning of the comments that we have submitted during the EIS
development process.
In order to move forward expeditiously, we would appreciate a
response to our request to re-engage with the EIS process no later than
July 10. If we have not heard from you by then, we will contact via
phone to further discuss the matter.
Sincerely,
Randall C. Johnson,
Director, Alabama Surface Mining Commission.
Bruce Stevens,
Director, Division of Reclamation,
Indiana Department of Natural Resources.
Steve Hohmann,
Commissioner, Kentucky Department for Natural Resources.
John Caudle,
Director, Surface Mining and Reclamation Division,
Railroad Commission of Texas.
John Baza,
Director, Utah Division of Oil, Gas and Mining.
Bradley C. Lambert,
Deputy Director, Virginia Department of Mines Minerals and Energy.
Thomas L. Clarke,
Director, Division of Mining and Reclamation,
West Virginia Department of Environmental Protection.
Todd Parfitt,
Director, Wyoming Department of Environmental Quality.
______
Mr. Lambert. Thank you.
The States requested that Director Pizarchik responded to
our request by July 10. To date, we have not received a
response.
We should note here that during the Subcommittee oversight
hearing on OSM's stream protection rulemaking on July 23 of
this year, Director Pizarchik mentioned that one of the reasons
that OSM had not reached out to the States with an opportunity
to reengage in the EIS process and to review the revised
chapters of the draft EIS is because the States expressed
concern about being able to review those chapters given the
limited time and resources available. This is not an accurate
representation of our situation or our concerns. It was the
constrained timeframes on which we were given to operate under
to review those chapters. The agencies stand ready and prepared
to reengage in the process and to fulfill our roles as
cooperating agencies, assuming OSM provides a reasonable time
period within which to review and to comment on the draft EIS.
Mr. Chairman, at this time, I also would like to ask that
the statement from the IMCC be submitted for the record.
Mr. Lamborn. Hearing no objection, so ordered.
[The prepared statement submitted for the record by Mr.
Lambert follows:]
Prepared Statement of the Interstate Mining Compact Commission
h.r. 2824--preventing government waste and protecting coal mining jobs
in america
The Interstate Mining Compact Commission (lMCC) appreciates the
opportunity to submit this statement regarding a legislative hearing on
H.R. 2824, the Preventing Government Waste and Protecting Coal Mining
Jobs in America Act. IMCC is a multi-state governmental organization
representing 25 coal and mineral producing States throughout the United
States, several of whom implement regulatory programs under the Surface
Mining Control and Reclamation Act of 1977 (SMCRA).
H.R. 2824 would amend section 503 of the Surface Mining Control and
Reclamation Act (SMCRA) by requiring States with approved programs
under the act to adopt as part of their programs a rule promulgated by
the Office of Surface Mining (OSM) on December 12, 2008 at 73 Fed. Reg.
75813 concerning excess spoil, coal mine waste and buffers for
perennial and intermittent streams. Pursuant to section 2(b) of H.R.
2824, States would be provided a 2 year period within which to submit a
program amendment pursuant to 30 CFR part 732 that incorporates the
2008 rule. Once OSM has approved amendments from all primacy States,
the agency will issue a notice to that effect and 5 years thereafter
will submit a report to Congress concerning an evaluation of the rule'
s effectiveness, including its impacts on energy production, along with
a description of any proposed changes that may be necessary and are
justified.
We believe that H.R. 2824 is an appropriate way to proceed under
the circumstances, especially given the scrutiny and review that
attended the development of the 2008 rule. The States were prepared to
adopt the final rule as a part of their programs through the State
program amendment process. Since that time, some States have already
incorporated some of the key concepts of the 2008 rule into their
existing regulatory programs. While there are admittedly challenges for
the States associated with the 2008 rule, particularly with regard to
resource implications associated with the required ``alternatives
analyses'', we recognize that the rule addressed and clarified many of
the concerns associated with stream protection and that in many
respects, was an improvement over the 1983 rule.
The current effort by the Office of Surface Mining (OSM) to rewrite
the stream buffer zone rule is in response to two decisions by the
Obama Administration: a settlement agreement with environmental groups
challenging the 2008 final rule and a Memorandum of Understanding (MOU)
signed by the Interior Department, the U.S. Environmental Protection
Agency and the U.S. Army Corps of Engineers in June of 2009. Both of
these decisions committed the agency to develop a new rule for the
protection of streams, with a projected completion date of June 2012.
However, unlike prior rulemakings in this area, OSM appears to be
expanding the scope of the rule well beyond stream buffer zone
requirements, taking on topics such as the definition of material
damage to the hydrologic balance, baseline data collection and
analysis, monitoring requirements, corrective action thresholds, and
fish and wildlife protection and enhancement.
As IMCC has noted in comments that we have submitted to the agency
concerning the anticipated new rule and the underlying environmental
impact statement (EIS), OSM is faced with the challenge of attempting
to address and resolve issues that are much broader than the rule
itself. With each successive reiteration of the stream buffer zone rule
since 1979, more and more pressure has come to bear on the agency to
define the rule in such a way as to completely ban the disposal of
excess spoil in any type of stream that may be impacted by surface coal
mining operations. However, as the U.S. Court of Appeals for the Fourth
Circuit clearly articulated in its 2003 opinion in Kentuckians for the
Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 443 (4th Cir. 2003),
``it is beyond dispute that SMCRA recognizes the possibility of placing
excess spoil material in waters of the United States even though those
materials do not have a beneficial purpose.'' Accord Ohio Valley
Environmental Coalition v. Aracoma Coal Company, 556 F.3d 177, 195 (4th
Cir. 2009). OSM's rule, therefore, should not be about banning the
practice of disposal of excess spoil in streams, but defining how it
can be done in a manner that comports with the law, which is exactly
what the 2008 rulemaking accomplished. And while OSM can prescribe a
national standard for accomplishing this task, it remains the
responsibility of the States, as exclusive regulatory authorities where
primacy programs have been approved, to apply the standard through the
permitting process, in which OSM plays no role other than through
appropriate Federal oversight.
In its draft EIS (and in early drafts of the new rule), OSM appears
to be searching for the ultimate answer to the appropriate protection
of streams that has somehow eluded them. From where we sit, it is not
OSM that has failed to articulate the solution to this matter. The
agency, on more than one occasion, has engaged in comprehensive
analyses through both rulemakings and environmental impact statements
(EIS' s) that address the complexity of the issue and provide solutions
that are consistent with SMCRA, protective of the environment and
respectful of State primacy, including the 2008 final rule. There is
little left to offer. The real dilemma lies not with OSM's rule, but
with the practice of excess spoil disposal itself, which the courts
have authorized and found to be consistent with the way SMCRA is
currently written. Any significant change in direction would therefore
require an amendment to SMCRA.
The problem also does not lie at the footstep of the States as
primary regulators in this area. Over the course of the past 30 years
since States first began to receive primacy, OSM has seldom found
concerns with our implementation of the applicable stream buffer zone
requirement. In fact, as OSM found with respect to West Virginia's
regulatory program, there has been no indication that the States are
applying their respective stream buffer zone rules inconsistently with
the historic application of the buffer zone requirements, as approved
by OSM over the years. See letter to Joseph Lovett from OSM Regional
Director Thomas Shope dated December 8, 2009. Consequently, as OSM
continues to search for any new alternatives to address this matter,
two things must be kept in mind: (1) the States' implementation of this
rule and its many iterations over the years has not been the stumbling
block; and (2) as OSM attempts to move forward once again with a new
variation on a common theme, it is critical to bring the States into
the final solution given our role as sole issuers of permits that
incorporate and implement these standards.
As the States consider their regulatory role in the context of
these rulemakings, they are particularly concerned about a propensity
on OSM's part to insert itself into the State permitting process in
inappropriate ways. For instance, in OSM's ``Immediate Stream
Protection Measures'' which were released in November of 2009, OSM
indicated that it intended to ``coordinate the SMCRA and Clean Water
Act (CWA) permitting processes to ensure effective and coordinated
compliance with provisions of the Clean Water Act.'' While the States
are fully supportive of coordinated approaches to meeting the
objectives of both SMCRA and the CWA, and have in fact advocated this
in the past, they are uncertain of where OSM intends to go with such an
initiative. Time and again in the recent past, States have received
conflicting or incomplete responses from EPA concerning what they
believe the applicable CWA standards are for State-issued surface coal
mining and reclamation permits, especially in Appalachia. Our attempts
to obtain more clarity have been met with either silence or
uncertainty.
Furthermore, there are specific administrative procedures specified
under SMCRA for concurrence by EPA regarding the approval of State
programs or any amendments thereto. EPA is involved with the issuance
of NPDES permits by States under the CWA, which are often coordinated
with the issuance of SMCRA permits. OSM's role is relegated to one of
oversight. Any attempts by the Federal Government to convert their
statutorily designated roles into something more intrusive in the name
of ``coordination'' will be met with suspicion, if not outright
opposition. As the U.S. Court of Appeals for the District of Columbia
has noted, the State, as the sole issuer of permits, decides ``who will
mine in what areas, how long they may conduct mining operations, and
under what conditions the operations will take place. It decides
whether a permittee's techniques for avoiding environmental degradation
are sufficient and whether the proposed reclamation plan is acceptable.
The state . . . inspects the mine to determine compliance; [and] [w]hen
permit conditions are violated, the State is charged with imposing
appropriate penalties.'' In re: Permanent Surface Mining Regulation
Litigation (en banc), 653 F.2d 514, 519 (D.C. Cir. 1981) (citations
omitted).
It is obvious from a review of the June 2009 MOU, as well as OSM's
rulemaking documents to date, that while there may be some merit in
designing a set of regulatory requirements that applies specifically to
mountaintop removal operations in steep slope areas, the stream buffer
zone rule has always had, and will likely continue to have, broad
implications for all regions of the country. In fact, OSM's proposal to
adjust the definitions of ``material damage to the hydrologic balance''
and ``approximate original contour'' confirms the national scope of the
newest rulemaking. As a result, OSM must consider how any reformulation
of the rule will impact each State's program in terms of both
implementation and resources. Given the current fiscal constraints
under which the States are operating, attempting to accommodate these
types of permitting analyses could seriously jeopardize primacy
programs.
There is also the question of how OSM's intentions with regard to
this new rulemaking comport with SMCRA's goal of creating a level
playing field across the 24 State coal regulatory programs. For
instance, the term ``material damage to the hydrologic balance'' is
contained in every State's regulatory program and any effort by OSM to
define that term for the Appalachian region will have consequences for
all other State programs, regardless of how OSM attempts to narrow its
scope or applicability. In fact, given the significant differences in
geology, hydrology and terrain among the various regions of the country
where surface coal mining operations occur, regulatory terms such as
``material damage'' have necessarily been left to each State to define
based on their unique circumstances. This is the very essence of
SMCRA's design, whereby Congress vested primary governmental
responsibility for developing, authorizing, issuing and enforcing
regulations for surface mining and reclamation operations with the
States so as to accommodate the diversity in terrain, climate,
biologic, chemical, and other physical conditions in areas subject to
mining operations.
To date, OSM has set forth in the draft EIS chapters upwards of 55
different options for proceeding forward with a new stream buffer zone
rule. Most of these are variations on themes that have already been
explored in previous rulemakings or EIS's, as noted above. Some
alternatives suggest the use of concepts that have proven elusive or
difficult to implement in the past, such as quantitative or qualitative
thresholds. However, reading between the lines of the draft EIS, what
we sense is an attempt by OSM to reconcile not just its own regulatory
requirements under SMCRA, but a larger, undefined set of standards for
water quality protection being advocated by EPA and the Corps. Any
stream buffer zone rulemaking simply cannot be taken out of context
from all the other activity that has attended the development of the
EPA/DOI/Corps MOU referenced above. While much of that activity has
been focused in central Appalachia at this time, the overarching
concerns regarding conductivity, total dissolved solids, and numerical
and narrative biologic water quality standards have implications
nationwide. And it must be kept in mind that the setting of narrative
water quality standards is a quintessential State function in which the
Federal agencies playa very limited, prescribed role. By and large,
these determinations are left solely to the States under the Clean
Water Act.
If and when OSM moves forward with any adjustments to the stream
buffer zone rule and the EIS, the States believe that it is important
for both State and Federal agencies to agree upon several key issues:
(1) who is taking the lead on the issues; (2) what specific regulatory
standards are in play under both SMCRA and the CWA; (3) how and where
these standards should be incorporated into existing regulatory
programs, especially at the State level; and (4) what the expectations
are for both implementation of and compliance with those standards.
These types of discussions are long overdue and without some resolution
with all parties at the table, rulemakings such as that regarding
stream buffer zones and related issues are likely to fail.
One of the overarching concerns that is anticipated by H.R. 2824
and that should be addressed is why OSM feels compelled to move forward
with a new rulemaking. We are still uncertain, even after all the
debate over the past several years concerning the June 2009 MOU and
OSM' s new stream protection rule, about the basis for the proposed
rulemaking or the problem the agency is attempting to fix. We certainly
understand the high levels of angst associated with mountaintop mining
operations in Central Appalachia, but what OSM is attempting to do with
this new national rulemaking cannot be justified by that public debate.
As we have noted in comments to OSM and testimony to the Subcommittee,
the appropriate forum for that debate is before Congress, not OSM. Nor
can the pending litigation associated with OSM's 2008 stream buffer
zone rule serve as an adequate basis for a new rule. There are other
options available to the agency for the resolution of this litigation
short of a new rulemaking on the matter--one of which is to allow the
2008 rule to be effectuated. And even though we have requested this
information in the past, we are still unaware of any data that supports
the need for this rulemaking. Quite to the contrary, the data and
information we are familiar with (including OSM oversight reports)
indicates that the States have been implementing stream protection
requirements in a fair, balanced and appropriate manner that comports
with the requirements of SMCRA and our approved regulatory programs. It
would therefore be helpful if OSM would finally clarify its goals and
the problems it hopes to address in any new rulemaking process.
As we peruse the various ``principal elements'' of the proposed
action spelled out in OSM's draft EIS to date, one of our primary
concerns relates to resource implications for the States. While much
remains to be seen in terms of details about the rule, what little we
do know signals a major impact on the States in terms of permit
reviews, monitoring requirements, various new technical analyses, and
intergovernmental coordination. In this regard, we believe that it is
critical, as part of any EIS, for OSM to undertake an assessment of the
rule' s impact on both State resources and federalism implications. We
assert that this is required by both the National Environmental Policy
Act (NEPA) and Executive orders that specifically address federalism
impacts.
We also recommend that, before moving forward with the EIS and
proposed rule, OSM seriously consider the other alternatives available
to the agency for addressing stream protection. We believe that there
are opportunities for the States and the affected Federal agencies
(OSM, EPA, the Corps and the U.S. Fish and Wildlife Service) to work
cooperatively together to address stream protection concerns. However,
to date our requests for arranging such meetings have been ignored. We
believe that there are a variety of tools, protocols, policies and
other measures available to us as State and Federal agencies that, with
some coordination, could lead to a comprehensive and effective approach
to protecting streams, particularly in the context of the 2008 rule.
At the point when OSM develops the various alternatives that it
will consider during the EIS process, we suggest that the agency
include an alternative that recognizes the inherent regional
differences, especially between the East and the West, related to
stream protection. We believe that OSM likely gained an appreciation
for these differences during its stakeholder meetings in June and July
of 2010. SMCRA itself recognizes the importance of regional
differences, both in its findings (section 101(f)) and in its
designation of special treatment for mining practices associated with
alluvial valley floors west of the 100th meridian, prime
farmland in the Mid-continent and steep slopes in the East. Failure to
recognize these regional differences could result in the expenditure of
considerable resources to address issues that are of marginal
significance in a particular region of the country.
Another of our concerns is whether the science supports some of
OSM' s proposed concepts. In particular, it seems to us that there are
several technical issues associated with these concepts that require
further thought and research, such as sequencing of stream disturbance,
bottom up fill construction, diverting water around fills to avoid
retention and percolation, and compliance points off the permit area.
We also believe that more can be done in the way of developing tools or
methods for prevention and prediction. By advancing a rule that
embodies some of these concepts without more in the way of scientific
support will complicate the ability of the States to issue and enforce
permits that are sound and defensible. The 2008 rule considered several
of these concepts and settled on a resolution that was reasonable and
workable. We are unaware of any peer reviewed science that would
significantly change the approach contained in the 2008 rule, contrary
to recent statements by OSM Director Pizarchik.
Without rehashing our previously articulated concerns about the
need and justification for both the proposed rule and the accompanying
EIS, we must object to the quality, completeness and accuracy of those
portions of the draft EIS that we have had the opportunity to review
and comment on so far. As indicated in the detailed comments the
cooperating agency States have submitted to date, there are sections of
the draft EIS that are often nonsensical and difficult to follow. Given
that the draft EIS and proposed rule are intended to be national in
scope, the States are also mystified by the paucity of information and
analysis for those areas of the country beyond central Appalachia and
the related tendency to simply expand the latter regional experience to
the rest of the country in an effort to appear complete and
comprehensive. In many respects, the draft EIS appears very much like a
cut-and-paste exercise utilizing sometimes unrelated pieces from
existing documents in an attempt to create a novel approach to the
subject matter. The result so far has been a disjointed, unhelpful
exercise that will do little to support OSM's rulemaking or survive
legal challenges to the rule or the EIS.
The States also have serious concerns regarding the constrained
timeframes under which they have been operating to provide comments on
these flawed documents. As the States have noted from the outset, and
as Members of Congress have also noted in letters to former Interior
Secretary Salazar, the ability to provide meaningful comments on OSM's
draft documents is extremely difficult with only 5 working days to
review the material, some of which is fairly technical in nature. In
order to comply with these deadlines, the States have had to devote
considerable staff time to the preparation of their comments, generally
to the exclusion of other pressing business such as permit reviews.
While the States were prepared to reallocate resources to review and
comment on the draft EIS Chapters, additional time would have allowed
for a more efficient use of those resources and for the development of
more in depth comments.
In this regard, we take issue with recent comments by OSM Director
Pizarchik at a Subcommittee oversight hearing on July 23 that the
States are unable or unwilling to participate in the continued review
of the draft EIS chapters because of limited resources and staff. It
was the constrained timeframes within which we were required to work
that was the issue, not our commitment to fulfill our obligations as
cooperating agencies. In fact, the cooperating agency States recently
sent a letter to Director Pizarchik dated July 3 that reiterated their
commitment and interest to re-engage with the draft EIS process now
that it has apparently been re-initiated following several missteps
with contractors. The States are hopeful that OSM will honor this
request and abide by the memoranda of understanding that these States
have signed with OSM regarding their role as cooperating agencies.
We appreciate the opportunity to provide these comments to the
Subcommittee concerning H.R. 2824 and OSM's proposed stream protection
rule and associated EIS. We urge the Subcommittee to continue its
investigation and oversight of the process with the goal of motivating
OSM to reconsider the need for this rulemaking and the significant
impacts it will have on State regulatory authorities and the
communities we protect, as well as the industry we regulate. We believe
that H.R. 2824 would further that process and as such we strongly
support the bill.
______
Mr. Lambert. Thank you for the opportunity to appear before
you today. I will be happy to answer any questions you may have
or to submit any further information.
Mr. Lamborn. All right. Thank you.
[The prepared statement of Mr. Lambert follows:]
Prepared Statement of Bradley C. ``Butch'' Lambert, Deputy Director,
Virginia Department of Mines, Minerals and Energy
My name is Bradley C. Lambert and I serve as Deputy Director of the
Virginia Department of Mines, Minerals and Energy (DMME). I appreciate
the opportunity to present this statement to the Subcommittee regarding
the views of the DMME on H.R. 2824, the ``Preventing Government Waste
and Protecting Coal Mining Jobs in America Act''.
I would like to begin by providing you with some background
information about the Virginia coal industry and DMME. Coal production
has been important to Virginia's economic development since colonial
days. The first commercial coal production in the United States
occurred in 1748 from the Richmond Coal Basin just west of the State
Capital in Richmond, Virginia. Coal production was important to
Virginia until the Civil War during which much of the coal industry was
destroyed. Commercial coal mining later rebounded in Virginia's
southwestern-most counties in the 1880s and has been conducted
continuously through to the present. Today, coal is produced in the
seven extreme southwest Virginia counties.
Virginia first implemented rules to address coal mining and
reclamation issues in 1966. The minimal requirements of the early law
and regulations failed to keep pace with the rapid expansion of surface
mining activities in the Appalachian region. Following the passage of
the 1977 Federal Surface Mining Control and Reclamation Act, Virginia
sought and obtained primacy from the U.S. Office of Surface Mining
(OSM) as the primary regulatory authority for coal surface mining in
December of 1981. This resulted in a significant expansion and
enhancement of the Virginia regulatory program.
Coal production in Virginia peaked at 47 million tons in 1990.
Production for 2011 reached approximately 23 million tons. Virginia
coal is of a higher British Thermal Unit (BTU) and lower sulfur content
than the national average. This quality has made Virginia coal more
desirable for metallurgical coke production and for the export market.
Virginia's regulatory program is recognized across the Nation as a
leader and an innovator in many areas. Many states have benchmarked
with Virginia on areas such as electronic permitting, underground mine
mapping and the development of a GIS data base that includes all
surface mining areas as well as abandoned mined lands. Virginia
continues to work on making this information available for public
viewing through an outward facing Web site. Through our electronic
permitting system, other State and Federal agencies can access coal
mining permit data and applications and provide comments using the
electronic application.
For years the States have been administering stellar regulatory
programs, including the protection of streams. However, beginning in
2009, OSM embarked on an effort to impose a drastic change in how
States administer their programs. The OSM has not provided any
information to the States as to the reason for revising the Stream
Buffer Zone Rule that they have now termed the ``Stream Protection
Rule''. Nothing in the States' Annual Evaluation Report indicates that
the States are doing a poor job of enforcing the current surface mining
laws. The U.S. Department of the Interior, U.S. Environmental
Protection Agency (EPA) and the U.S. Army Corps of Engineers (ACOE)
signed a Memorandum of Understanding (MOU) in 2009, which appears to be
the basis for the effort by OSM to change/revise the Stream Buffer Zone
Rule. The States were not consulted about or invited to sign this MOU,
which is aimed at altering state regulatory programs. Yet this MOU is
having a direct impact on the implementation of State programs.
One significant item resulting from the MOU was the intention to
propose a new Stream Protection Rule. Early in the development of the
draft rule OSM invited several States, including Virginia, to
participate in the development of the draft Environmental Impact
Statement (DEIS) as ``cooperating agencies'' under the National
Environmental Policy Act (NEPA). In preparing the draft EIS, OSM hired
a contractor from outside the coal mining regions who had no mining
background. Cooperating agency States voiced their concern about the
contractor and its ability to complete the DEIS. We recommended that,
before moving forward with the EIS and proposed rule, OSM seriously
consider the other alternatives available to the agency for addressing
stream protection. We believe that there are opportunities for the
States and the affected Federal agencies (OSM, EPA, the Corps and the
U.S. Fish and Wildlife Service) to work cooperatively together to
address stream protection concerns. However, to date our requests for
arranging such meetings have been ignored. We believe that there are a
variety of tools, protocols, policies and other measures available to
us as State and Federal agencies that, with some coordination, could
lead to a comprehensive and effective approach to protecting streams.
However, OSM moved forward with the contract. Following a limited
opportunity to provide comments on a few early chapters of the draft
EIS in 2010, Virginia and the other State cooperating agencies have not
been involved in the review of comments of the draft or any other
portion of the DEIS.
On July 3, 2013, several of the cooperating agency States sent a
letter to Director Pizarchik reminding him that the role of the
cooperating agencies, as defined by the memoranda of understanding that
each of us entered into with the agency, included an opportunity to
review and comment on those chapters of the draft EIS that are made
available to us. (A copy of the letter is being submitted for the
record).
The cooperating State agencies have had several concerns regarding
the constrained timeframes under which we were operating to provide
comments on the draft documents that were provided to us in 2010. As we
have stated from the outset, and as Members of Congress have also
noted, the ability to provide meaningful comments on OSM's draft
documents has been extremely difficult with limited working days to
review the material, some of which can be fairly technical in nature.
In order to comply with the deadlines, we have devoted considerable
staff time to the preparation of our comments, generally to the
exclusion of other pressing business such as reviewing citizen's
complaints, permit reviews and AML project design.
There is also the matter of completeness of the draft chapters that
we have reviewed to date. In the case of chapters 2, 3 and 4, several
attachments, exhibits and studies were not provided to us as part of
that review. Some of these were critical to a full and complete
analysis of OSM's discussion in the chapters. It is important for us to
receive all applicable documents that are referenced in draft chapters
in order to conduct a meaningful review.
As part of the EIS process with cooperating agencies, OSM committed
itself to engage in a reconciliation process whereby the agency would
discuss the comments received from the cooperating agencies, especially
for purpose of the disposition of those comments prior to submitting
them to the contractor for inclusion in the final draft. Our experience
with the reconciliation process to date has not been particularly
positive or meaningful. We are hopeful that as we reinitiate the EIS
review and comment process, OSM will engage in a robust reconciliation
process. Among other things, we believe it should include an
explanation of which comments were accepted, which were not, and why.
Frankly, in an effort to provide complete transparency and openness
about the disposition of our comments, we believe the best route is for
OSM to share with us revised versions of the chapters as they are
completed so that we can ascertain for ourselves the degree to which
our comments have been incorporated into the chapters and whether this
was done accurately.
As we noted during the submission of comments by many of the
cooperating agencies in the early rounds of the EIS development
process, there is great concern about how our comments will be used or
referred to by OSM in the final draft EIS that is published for review.
While the MOUs we signed indicate that our participation ``does not
imply endorsement of OSM's action or preferred alternative'', we want
to be certain that our comments and our participation are appropriately
characterized in the final draft. Furthermore, since CEQ regulations
require that our names appear on the cover of the EIS, it is critical
that the public understand the purpose and extent of our participation
as cooperating agencies.
As it is now, the States are uncertain whether their names will
appear on the draft EIS, which was originally anticipated. This of
course would imply tacit approval independent of the State comments
that have not been incorporated into the document. And while the
cooperating agency has the authority to terminate cooperating status if
it disagrees with the lead agency (pursuant to NEPA procedures and our
MOUs); the States realize the importance of EIS review and the
opportunity to contribute to, or clarify, the issues presented. We
therefore requested an opportunity to jointly draft a statement that
will accompany the draft EIS setting out very specifically the role
that we have played as cooperating agencies and the significance and
meaning of the comments that we have submitted during the EIS
development process.
The States requested that Director Pizarchik respond to our request
by July 10, 2013 to re-engage in the EIS process. To date, we have not
received a response.
We should note here that during the Subcommittee's oversight
hearing on OSM's stream protection rulemaking on July 23, Director
Pizarchik mentioned that one of the reasons that OSM has not reached
out to the States with an opportunity to re-engage in the EIS process
and to review revised chapters in the draft EIS is because States
expressed concerns about being able to review these chapters given
limited time and resources. This is not an accurate representation of
our situation or our concerns. It was the constrained timeframes under
which we were operating in 2010 that proved problematic for the
cooperating agency States. The States stand prepared to re-engage in
this process and to fulfill their roles as cooperating agencies
assuming OSM provides reasonable time periods within which to review
and comment on draft chapters of the EIS.
history and background of the stream buffer zone rule
On December 12, 2008, OSM issued a news release titled ``Office of
Surface Mining Issues New Mining Rule Tightening Restrictions on Excess
Spoil, Coal Mine Waste, and Mining Activities in or Near Streams''. In
the words of OSM, the agency stated; ``We believe that the new rule is
consistent with a key purpose of the Surface Mining Law, which is to
strike a balance between environmental protection and ensuring
responsible production of coal essential to the Nation's energy
supply''. The statement from the release was from then Assistant
Secretary of the Interior, Land and Minerals Management C. Stephen
Allred. Mr. Allred is speaking of the 2008 Stream Buffer Zone Rule. He
goes on to say that this new rule will clarify the Stream Buffer Zone
rule and resolve any long-standing controversy over how the rule should
be applied. He is referring to the issues raised with disturbances
along stream buffer zones as far back as 1983. There have been several
challenges to the stream buffer zone rule over last decades. OSM and
state agencies felt as though the 2008 buffer zone rule was a rule that
would finally meet the goal of environmental protection while ensuring
coal production that would meet the energy needs of the Nation.
The development of the 2008 rule was a 5 year process. OSM
solicited public input throughout the process. The agency received over
43,000 comments and held 4 public hearings that were attended by
approximately 700 people. The rule was to take effect on January 12,
2009. However, before the rule was implemented it was suspended. The
States had no opportunity to amend our programs to adopt that rule. We
believe the 2008 rule contained provisions that would allow disposal of
excess spoil in such a manner that would ensure stream protection. Even
though Virginia has not formally adopted the 2008 rule, some portions
of the rule have been incorporated into coal surface permit review and
approval. Alternative analysis and fill minimization are two items from
the rule now incorporated into our permitting process. The number of
fills has been reduced, as well as the number of cubic yards being
placed in fills. VA tracks these numbers as part of overall performance
measures on the success of our program.
The data and information we are familiar with (including OSM
oversight reports) indicates that the States have been implementing
stream protection requirements in a fair, balanced and appropriate
manner that comports with the requirements of SMCRA and our approved
regulatory programs. It would therefore be helpful if OSM would finally
clarify its goals and the problems it hopes to address in the
rulemaking process and provide information to States on why the 2008
rule would not be protective of streams. Until OSM is able to do so, we
are supportive of the approach contained in H.R. 2824 and believe that
the States should be provided an opportunity to implement the 2008
stream buffer zone rule, following which OSM can prepare an assessment
of why a different rule is needed. We would also note that given the
fact that States are implementing a statutory requirement under SMCRA,
we do not see the adoption of the 2008 rule as an unfunded mandate.
Whether that would hold true of OSM's current intention to move forward
with an expanded stream protection rule remains to be seen.
In a press release dated 4/27/09, the Interior Secretary Ken
Salazar announced that the mountaintop coal mining ``stream buffer zone
rule'' issued by the Bush Administration is legally defective. Salazar
directed the U.S. Department of Justice (DOJ) to file a pleading with
the U.S. District Court in Washington, DC requesting that the rule be
vacated due to this deficiency and remanded to the Department of the
Interior for further action. This was done without any consideration of
the 5 year process it took to develop the rule, and ignored the public
participation process, including the number of comments received and
the public meetings that were held. And of course the States were never
given an opportunity to adopt the rule so that information could be
gathered regarding the effectiveness of the rule to protect streams.
Without any supporting information on why the 2008 rule was defective,
we believe that the 2008 rule should have not been vacated but should
have been allowed to move forward.
Thank you for the opportunity to testify today. I would be happy to
answer any questions or provide additional information.
______
Mr. Lamborn. Mr. Jones.
STATEMENT OF JOHN PAUL JONES, VICE PRESIDENT, ENVIRONMENTAL,
ALPHA NATURAL RESOURCES, INC., ON BEHALF OF THE NATIONAL MINING
ASSOCIATION
Mr. Jones. Good morning. Thank you for the opportunity to
testify today. My name is John Paul Jones, and I am Vice
President, Environmental, for Alpha Natural Resources. I have
over 30 years experience in the mining industry. And I am
testifying today on behalf of both Alpha and the National
Mining Association, of which we are a member.
Alpha is America's third-largest coal supplier. Alpha and
its affiliates employ nearly 12,000 people in Virginia, West
Virginia, Kentucky, Pennsylvania, and Wyoming. We operate 91
mines and 25 preparation plants, and we produced over 108
million tons of coal in 2012. Exports of our coal have reached
customers in 27 countries, contributing significantly to
America's balance of trade.
Alpha believes in mining coal the right way, which is
embodied in our corporate philosophy we call Running Right. As
a result of our commitment to environmental excellence, Alpha
has been recognized with 17 environmental awards for
outstanding conservation, mine restoration, and environmental
enhancement projects in just the past 3 years. We have
partnered with the U.S. Fish and Wildlife Service, Virginia
Tech, the Nature Conservancy, and other like-minded groups on
numerous environmental restoration and habitat protection
projects, as referenced in my written submitted testimony.
Our operations are also run with a strong commitment to
safety, regularly receiving achievement recognition from the
Mine Safety and Health Administration. Alpha recently dedicated
the Running Right Leadership Academy in June of this year, a
136,000-square foot state-of-the-art education and
comprehensive training facility for mine safety and operational
excellence. There is no other facility like it in the United
States today and quite possibly in the whole world.
Alpha Natural Resources and the National Mining Association
strongly urge this Committee and the Congress to pass H.R.
2824, the Preventing Government Waste and Protecting Coal
Mining Jobs in America Act. The premise of the bill is simple:
It would amend the Surface Mining Control and Reclamation Act
to require States to incorporate the existing Federal Stream
Buffer Zone regulation into their approved State programs. It
would then require the Office of Surface Mining to evaluate the
effectiveness of the existing rule before it issues a new one.
Contrary to what some critics claim, the commonsense
requirements included in the 2008 rules were not at all
midnight rules, nor did it roll back any environmental
protections. The Stream Buffer Zone Rule clarified 30-year-old
interpretations by 24 States. In addition, lawsuits challenging
such interpretations were twice rejected by the Fourth Circuit
Court of Appeals, in 2001 and again in 2003.
Midnight rules, as the name describes, are crafted at the
11th hour of an outgoing Administration with little to no
public input. In contrast, the 2008 rule was promulgated over a
thorough public process spanning over 5 years, including
numerous public hearings and consideration of over 43,000
public comments. The 2008 rule was supported by two
environmental impact statements sponsored by OSM, EPA, the
Corps of Engineers, and the Fish and Wildlife Service, with
over 30 federally funded studies and 5,000 pages of scientific
analysis.
Likewise, the rule was anything but a rollback of current
law. In addition to providing clarification and removing the
threat of unwarranted litigation by those who oppose coal
mining, the rule added significant protections to enhance
environmental performance.
In contrast to the 2008 rule, OSM's ongoing rewrite of the
Stream Buffer Zone Rule has been plagued with controversy that
has been well documented by this Committee. Even a prominent
environmental activist described the rulemaking in his written
testimony before this Committee on April 7, 2011, as an
expensive fiasco.
We are gravely concerned about the impacts this rulemaking
would have on the viability of our mines, our workforce, and
the communities our operations support. Such concerns were
validated by a subsequent analysis of the proposed rule's
likely effects on 75 actual mines by ENVIRON International,
predicting even larger impacts, including 133,000 jobs lost
nationwide, a decrease in recovery of coal reserves by 30 to 41
percent, annual value of coal lost to production restrictions
of $14 billion to $20 billion, and Federal and State tax
revenue reductions of $4 billion to $5 billion.
The choice is clear. OSM's new proposal is unnecessary,
unjustified, and dangerous, and certainly does not meet any
cost-benefit standard. H.R. 2824 provides a reasonable
framework and timetable for implementing the 2008 rule in
primacy States and evaluating an actual record of its
effectiveness before allowing OSM's expensive fiasco to move
forward with a costly and unnecessary rewrite. For these
reasons, we strongly urge this Committee to pass H.R. 2824 and
bring some much-needed finality to this already exhaustive
rulemaking process.
Thank you again for the opportunity to testify today. I
look forward to answering any questions you may have.
Mr. Lamborn. Thank you, and to all of you, for your
testimony and for your statements.
[The prepared statement of Mr. Jones follows:]
Prepare Statement of John Paul Jones, Vice President, Environmental,
Alpha Natural Resources, Inc., on Behalf of the National Mining
Association
Good morning. Thank you for the opportunity to testify today. My
name is John Paul Jones, and I am Vice President, Environmental for
Alpha Natural Resources. I have over 30 years of environmental
experience with the mining industry. I am testifying today on behalf of
both Alpha and the National Mining Association, of which we are a
member.
Alpha is America's third largest coal supplier. Alpha and its
affiliates employ nearly 12,000 people in Virginia, West Virginia,
Kentucky, Pennsylvania and Wyoming; operate 91 active surface and
underground mines and 25 preparation plants; and produced over 108
million tons of coal in 2012. Over 80 percent of our coal is used to
produce electricity, and over 20 million tons is high quality
metallurgical, or ``met'', coal used in the production of steel.
Exports of our coal have reached customers in 27 countries,
contributing significantly to America's balance of trade.
Alpha believes in mining coal the right way, which is embodied in
our corporate philosophy we call ``Running Right.'' As a result of our
commitment to environmental excellence, Alpha has been recognized with
17 environmental awards for outstanding conservation, mine restoration,
and environmental enhancement projects in just the past 3 years. We
have partnered with the U.S. Fish and Wildlife Service and Virginia
Tech to study mining's impact on freshwater mussels and have partnered
with the Nature Conservancy to prioritize abandoned mine land project
restoration opportunities in the Clinch and Powell River watersheds--
home to numerous endangered mussels. Alpha also supports the
Appalachian Regional Reforestation Initiative and the Powell River
Project, both of which are geared toward improving reclamation of mined
lands using native trees. We planted 1.7 million trees on reclaimed
mine sites in 2012.
Our operations are also run with a strong commitment to safety. In
2012, eight of our mines and processing plants received certificates of
achievement for their safety programs from the Mine Safety and Health
Administration, as well as four Holmes Safety Association Awards. Alpha
also recently dedicated the ``Running Right Leadership Academy'' in
June of this year--a 136,000 square foot, state-of-the-art education
and comprehensive training facility for mine safety and operational
excellence. There is no other facility like it in the United States
today, and quite possibly the world.
Alpha Natural Resources and the National Mining Association
strongly urge this Committee and the Congress to pass H.R. 2824, the
``Preventing Government Waste and Protecting Coal Mining Jobs in
America Act.'' The premise of the bill is simple--it would amend the
Surface Mining Control and Reclamation Act (SMCRA) to require States to
incorporate the existing Federal ``stream buffer zone'' (``SBZ'')
regulation into their approved State programs. It would then require
the Office of Surface Mining (OSM) to evaluate the effectiveness of the
existing rule before it continues with the process of issuing a new
one.
Contrary to what some critics claim, the common-sense requirements
included in the 2008 rules were not at all ``midnight rules,'' nor did
it ``roll back'' environmental protections. The SBZ rule clarified 30-
year old interpretations by all 24 State programs (as well as OSM)
regarding the permissibility of mining in and around streams. In
addition, lawsuits challenging such interpretations were twice rejected
by the 4th Circuit Court of Appeals in 2001 and 2003 (See Bragg v.
Robertson and Kentuckians for the Commonwealth v. Rivenburgh). The 2008
SBZ rule was also approved by the then-Administrator of the
Environmental Protection Agency.
Midnight rules, as the name describes, are crafted at the 11th hour
of an outgoing administration, with little to no public input. In
contrast, the 2008 rule was promulgated after a thorough public process
spanning over 5 years (from 2003-2008), including numerous public
hearings, and consideration of over 43,000 public comments. The 2008
rule was supported by two environmental impact statements sponsored by
OSM, the Environmental Protection Agency, the U.S. Army Corps of
Engineers and the Fish and Wildlife Service (FWS), with over 30
federally funded studies and 5,000 pages of scientific analysis.
Following meetings between the Director of OSM and FWS, the agency
decided that formal consultation with FWS on the rule was not necessary
since OSM's existing rules contain numerous provisions to protect
endangered species and their critical habitat--and the 2008 rule did
not amend those rules. The 2008 rule was approved by the Solicitor's
office and the Secretary of the Interior which oversees both FWS and
OSM.
Likewise, the rule was anything but a ``roll back'' of current law.
In addition to providing clarification and removing the threat of
unwarranted litigation by those opposed to coal mining, the rule added
significant protections to enhance environmental performance when
mining in and around streams. Among other things, it requires mines to:
Avoid mining activities in or near streams if reasonably
possible;
Use the best technology currently available to prevent the
contribution of additional suspended solids (sediment) to
stream flow or runoff outside the permit area to the extent
possible;
Minimize the creation of excess spoil (dirt and rock); and
If avoidance of streams is not possible, identify a
reasonable range of alternatives for placing fills, and select
the alternative with the least overall adverse impacts on fish,
wildlife, and related environmental values.
In contrast to the 2008 rule, OSM's ongoing rewrite of the SBZ rule
has been plagued with controversy that has been well documented by this
Committee. A prominent environmental activist described the rulemaking
in his written testimony on April 7, 2011 before this Committee as ``an
expensive fiasco.''
We are gravely concerned about the impacts this rulemaking would
have on the viability of our mining operations, our workforce, and the
communities our operations support. Such concerns were validated by a
subsequent analysis of the proposed rule's likely effects on 75 actual
mines by Environ International predicting even larger impacts
including:
133,000 jobs lost nationwide;
A decrease in recovery of coal reserves by 30-41 percent;
Annual value of coal lost to production restrictions of $14-
$20 billion; and
Federal and State tax revenue reductions of $4-$5 billion.
The choice is clear. OSM's new proposal is unnecessary,
unjustified, and dangerous, and certainly does not meet any cost-
benefit standard. After 5 long years of delay by OSM in refusing to
implement the current common-sense regulations, H.R. 2824 provides a
reasonable framework and timetable for implementing the 2008 rule in
primacy States and evaluating an actual record of its effectiveness
before allowing OSM's ``expensive fiasco'' to move forward with a
costly and unnecessary rewrite of SMCRA regulations that will have
devastating economic impacts. For these reasons, we strongly urge this
Committee to pass H.R. 2824 and bring some much needed finality to this
already exhaustive rulemaking process.
Thank you again for the opportunity to testify today. I look
forward to answering any questions that you might have.
______
Mr. Lamborn. We will now begin questioning. Members are
limited to 5 minutes for their questions, but we may have
additional rounds. And in any case, we will finish by noon or
whenever the second set of votes is called over on the House
Floor.
For any one of you, last week Director Pizarchik said here
that a new rule was necessary because the 2008 rule did not
take into consideration new science and technology when the
rule was drafted. Can any of you tell me what new technology or
science was made public between December 2008 when the rule was
promulgated and early 2009 when the Administration announced
that they were going to vacate the 2008 rule? Does anyone know
of any new technology that came on-stream during that time?
Mr. Clarke. None that I am aware of, Mr. Chairman.
Mr. Lambert. Mr. Chairman, I am not aware of any new
studies.
Mr. Lamborn. OK.
Mr. Jones. Likewise, Mr. Chairman. I am unaware of any new
studies.
Mr. Lamborn. OK. Thank you.
Now, for Mr. Clarke and Mr. Lambert, Director Pizarchik
testified at a previous hearing that the reason that the 1983
rule was more protective, in his opinion, than the 2008 rule
was because the 1983 rule prohibited the placement of fill
material in streams. Is that a correct statement?
Mr. Clarke. No, sir, Mr. Chairman. The 1983 rule has never
been interpreted as a ban on fill placement in streams by our
agency. In fact, such an interpretation would be contrary to
section 515(b)(22) of SMCRA in which there are set forth
performance standards for placing fill in waters of the United
States under SMCRA.
A rule that would have the effect of banning fill would be
contrary to that provision. It would also be contrary to
section 702 of SMCRA, which prohibits SMCRA from superseding,
amending, or repealing the Clean Water Act because such a rule
would have the effect of negating authorizations granted by the
Corps of Engineers under section 404 of the Clean Water Act.
You could also look to the notice of proposed rulemaking
filed in January of 2004 for what became the 2008 Buffer Zone
Rule to see OSM's explanation of the history of the 1983 rule
and the fact that it had never been applied as a ban on fill
placement. And as recently as December 8, 2009, in a letter
from Tom Shope of OSM to Joe Lovett, which is among the written
materials I submitted to the Committee, you will see an
explanation that West Virginia's historic interpretation of the
1983 rule is consistent with OSM's understanding of that rule.
And West Virginia had never applied it as a ban on fill
placement in waters of the United States or, to use the SMCRA
lingo, in intermittent or perennial streams.
Mr. Lamborn. Thank you.
Mr. Lambert, do you have anything to add to that?
Mr. Lambert. I do not, Mr. Chairman. I think Mr. Clarke's
statement was very accurate.
Mr. Lamborn. OK. Thank you.
Now, am I correct in assuming, and you may have alluded to
this, that the 1983 rule is still being implemented in both of
your States? And in fact, in all of the primacy States?
Mr. Clarke. That is correct for West Virginia.
Mr. Lambert. Also, Mr. Chairman, that is correct in
Virginia. With a little bit of interpretation, we are now
incorporating some of the 2008 rule into our permitting
processes, which is fill minimization and avoidance. And also
we are moving forward and trying to use some of the 2008 rule
as well as the 1983 rule.
Mr. Lamborn. OK. And has the Office of Surface Mining ever
raised any objections to those two positions?
Mr. Lambert. No, sir, they have not in Virginia. As a
matter of fact, OSM on their own is using the 2008 rule in
Tennessee as we understand it.
Mr. Clarke. Not to my knowledge in West Virginia. And I
would add that we also have incorporated some of the concepts
of the 2008 rule in our program as well.
Mr. Lamborn. And I think you did talk about this. But how
much work went into the 2008 rule? I mean, some have
characterized it, because it was issued in the closing days, as
a midnight rule, implying that it was done with very little
work and that it was a shoddy product. Is that a correct
characterization?
Mr. Lambert. Mr. Chairman, in our opinion, that is not a
correct characterization because that rule took 5 years. And as
I said in my testimony, 43,000 comments were reviewed, with
four public meetings being held, and approximately 700 people
attended those public meetings. So I don't think you could
characterize that as a midnight rule.
Mr. Lamborn. OK. Thank you for your testimony.
I now recognize the Ranking Member for 5 minutes.
Mr. Huffman. Thank you, Mr. Chairman. And I want to thank
the witnesses for traveling to be with us today and for their
testimony.
As I mentioned in my opening remarks, there have been
multiple studies within the last 3 years that found
significantly higher rates of cancer and heart disease in West
Virginia residents who live near mountaintop removal mines
compared to West Virginia residents who live further away from
those mines. One study, by the University of West Virginia's
Department of Community Medicine, concluded that based on
cancer rates they found, there could be an additional 60,000 to
88,000 people with cancer in central Appalachia because of
mountaintop removal mining. Another 2010 study used GIS
analysis to assess whether proximity to mining activity was
associated with cancer. And sure enough, the closer you live to
mining activity like this, the greater your risk.
So, Mr. Clarke, I want to ask you, based on the science,
isn't there a greater risk of cancer for West Virginia
residents living near mountaintop removal mines?
Mr. Clarke. Well, the studies you speak of, Mr.
Congressman, I believe found a correlation between mining and
various disease rates in the immediate area of the mining. They
didn't address the issue of what is causing any health impacts.
Mr. Huffman. So it is just a coincidence?
Mr. Clarke. Well, let me add that when you look at
potential impacts from mining and how they could affect
residents in the area of the mining, there are two possible
exposure pathways. One of which, and I think is what the Stream
Protection Measures Rule is concerned with, is the exposure
pathway through the water. The other one would be through the
air.
As to the exposure pathway through the water, we already
have a complete regulatory program under the Clean Water Act
that is devoted to placing limits to protect various uses of
water resources, which include protection of human health. And
we have a full set of water quality standards that are being
implemented through the Clean Water Act's permitting program
under the West Virginia Water Pollution Control Act, which
imposed standards on all known pollutants that could impact
human health. So in terms of what the Stream Protection
Measures Rule could do to the water exposure pathway, that is
already being addressed under the Clean Water Act completely.
Mr. Huffman. Are you concerned about the health risks from
mountaintop removal mining to folks who live close to those
activities?
Mr. Clarke. Yes, indeed, I am.
Mr. Huffman. I want to continue on that note a little bit.
A host of studies that were published after the Bush rule show
that mountaintop removal mines not only damaged the
environment, but also caused cardiovascular disease, cancer,
birth defects, and poor overall health. And the USGS just
published preliminary research along the same lines. The
legislation we are discussing today, though, would lock us into
the Bush rule no matter what new research like this tells us.
Doesn't this violate OSM's mandate under the Surface Mining
Control and Reclamation Act, SMCRA, to set standards that are
guided by science and based on best available technology?
Wouldn't it be irresponsible not to adjust these standards if
the science shows a bigger problem than previously thought? And
I would submit that clearly the science is showing a bigger
problem than previously thought.
Mr. Clarke. Respectfully, Mr. Congressman, this bill would
not impact the ability of the States and the EPA under the
Clean Water Act to address pollutants that could reach local
communities through the water exposure pathway. And that would
not be impacted by this rule. In fact, this rule would allow
OSM to establish standards that may conflict with the water
quality standards that are intended to protect human health
under the Clean Water Act.
Mr. Huffman. Any other witnesses want to comment on that?
Mr. Lambert. Yes, sir. My comment would be that we feel
that if we had an opportunity to fully implement the 2008 rule,
some of these issues that are being raised through these
reports could be addressed in the 2008 rule. That we don't know
because we have had no chance to look at what the impacts and
to put together the rule, when implemented, as States. That
rule was subsequently vacated end of January, before we had an
opportunity----
Mr. Huffman. Let's talk about the 2008 rule. We know,
according to a 2005 EPA environmental impact statement, that
waste from mountaintop removal mining buried and despoiled
nearly 2,000 miles of streams in Appalachia over the previous
30 years. We have all of these additional studies. SMCRA
requires OSM to set standards, as we have discussed, based on
best available technology and science in order to minimize
disturbances and avoid adverse impacts on fish, wildlife,
environmental values, et cetera. What in that language would
permit the Bush Administration to simply exempt mountaintop
removal mining?
Mr. Lambert. I don't think that rule, the 2008 rule,
exempts mountaintop mining. What the rules does is, the 2008
rule, has the provision to look at avoidance of streams.
Mr. Huffman. It does, though, exempt excess spoil fills
from the buffer requirement. So what, based on everything we
have learned, based on the EPA findings, based on all the
science, would justify exempting those excess spoil disposals
and in the rule saying that this is good for the environment?
Mr. Lambert. It doesn't give a carte blanche ability to
dump spoil in streams. It asks us to look at avoidance, and it
asks us to look at other alternatives, which we haven't had the
opportunity to do.
Mr. Lamborn. OK. I would like to recognize Mr. Daines.
Mr. Daines. Thank you, Mr. Chairman.
I represent the State of Montana, and we are proud of the
fact that we have more recoverable coal deposits than any other
State in the country. It is a huge issue for our State in terms
of jobs, cheap sources of energy, and I am grateful that we
have the coal in Montana. And I am very concerned about the
tone that we are hearing from the Obama Administration. I think
he really has declared war on the coal industry.
And this is not just war on an industry. This is affecting
families. This is affecting jobs. And importantly, this is a
low-cost source of energy for this country. I was speaking
before a Boys State gathering in Helena about a month ago and
we were talking about energy. And I asked them, where does
electricity come from? And we had a little discussion about the
fact that, in fact, 51 percent of the electricity supplied in
Montana comes from coal. It is over 40 percent for the country.
It is a reliable, clean, cheap source of energy. And I am very
concerned--this is in terms of my opening remarks--about this
Administration's desire to curtail coal production in this
country, because I think that really is the agenda here and the
objective of what is going on in the White House.
Having said that, let me ask our two State witnesses, how
would you characterize the Obama Administration's rulemaking
process? Would you characterize it as being deliberative?
Mr. Clarke, do you want to start.
Mr. Clarke. Well, the OSM rulemaking on this particular
rule that I think is of concern to the Committee, the one that
the OSM is currently considering under the name of the Stream
Protections Measures Rule has really not been a very
transparent process. The States were denied an opportunity to
see the first chapter of the EIS, the cooperating agency States
that signed MOUs that is, entitling them to participate in the
NEPA process, and were given just a matter of days to respond
to hundreds of pages of material on chapters 2, 3, and 4 of
that EIS.
At that point, the ineptitude of OSM's EIS contractor
became abundantly apparent. OSM fired its contractor. And since
then we have received little or no information about what OSM
is doing on this rule, despite hearing rumors that OSM has been
working on it internally.
So in terms of the States as cooperating agencies under
NEPA and being involved in an ongoing EIS rule development, we
have been left out of the process. And I think that it is
important to note that in nearly all of the States that
regulate surface coal mining, the State has primacy. So the
States are the frontline regulators who have the experience
that would better inform the rule than bureaucrats writing it
from Washington.
Mr. Daines. Thank you.
Mr. Lambert?
Mr. Lambert. I would agree with Mr. Clarke 100 percent.
There was a very grave concern of ours that we all of a sudden
were just left out of the process of helping development of
this rule after we signed the MOU. And even given the
timeframes that we were given to review the rule was just
absurd. There was no way we could provide the information that
was needed to move forward with this rule. However, OSM chose
to do so anyway. And then as both of us have stated in our
comments, that we even requested on July the 3rd of this year
to be reengaged. And we have not even received a response from
that request.
So to answer your question, especially on this rule, we
feel it has not been a very transparent rule and involved all
the groups and the agencies that need to be involved in the
development of such a rule.
Mr. Daines. Thanks for the comments.
Mr. Jones, as you know, safe and efficient coal development
is very important to the State of Montana. In fact, our tribal
nations are begging, and I tell you, they are begging right now
for the freedom to develop their own natural resources that are
placed on their reservations, to lift their reservations from
high unemployment, we have north of 40 percent unemployment
rates right now in the reservations in Montana, to take them
out of high unemployment and poverty to prosperity for these
families and for future generations.
In fact, one tribal chairman who especially shares this
vision is Chairman Old Coyote of the Crow Nation. He came to
Washington with his 8-year-old daughter Evelyn. She read me a
little speech pleading with me to please get Washington, DC out
of the way so we can develop these resources on our reservation
and create jobs.
But one thing I have learned since I have been back in this
job in Washington now for about 8 months is how the Obama
Administration doesn't understand that one size does not fit
all. We know the geology of Montana and the Powder River Basin
is very different than West Virginia, Ohio, Virginia, Colorado,
and other coal mining States. It is my understanding that a new
Obama rule could impact longwall mining. Can you address this
and what the impact might be to States that have longwall
mines?
Mr. Jones. Yes, sir, Mr. Congressman. I would be glad to
address that.
In testimony and in discussion today, the new stream
protective rules have been painted as a mountaintop mining
issue. It is anything but. Alpha has operations in all the coal
basins. We don't have any active operations right now in the
Illinois Basins. But in the Powder River Basin, we do have some
operations. And so we had to look at what we saw of the
proposed bill, what was leaked to the press, that we ultimately
were able to get copies from the coal associations and others.
We did a very detailed analysis of the impact both to our
longwall mines in the northern Appalachian region and our
Powder River Basins, and those operations were significantly
impacted as well. So the bill is not just a mountaintop
removal, no valley fill bill. It is going to impact all mining
in America.
Mr. Daines. OK.
I know I am out of time, Mr. Chairman.
Mr. Lamborn. OK. And if you want to follow up on that, we
will have a second round of questions.
Mr. Daines. Thank you.
Mr. Lamborn. Representative Johnson.
Mr. Johnson. Thank you, Mr. Chairman.
Mr. Clarke and Mr. Lambert, in your opinion, was Director
Pizarchik correct when he implied that OSM was doing the States
a favor by not sharing revised drafts of the EIS due to limited
State budgets?
Mr. Clarke. I think what he was probably referring back to
were our complaints to him in 2010 that he was giving us
inadequate time to review hundreds of pages of technical
material and that we had inadequate time and staff to do that.
Mr. Johnson. Which goes to the point that I made earlier in
my opening comments earlier this morning. You are talking about
a midnight rule. This thing was trying to be shoved down the
States' throats, down the coal industry's throats at lightning
speed without giving the States and the industry a chance to
adequately review. Would you agree?
Mr. Clarke. That is correct. The States' involvement began
September to October of 2010 for a rule that OSM had agreed in
the settlement with environmental groups to produce by the end
of February of 2011 which gave a very compressed timeframe for
the process to occur.
Mr. Johnson. Exactly.
Mr. Lambert.
Mr. Lambert. I would agree with that. Sometimes we were
given only 7 to 10 days to review hundreds of pages of a
chapter. And the timeframes that they set upon us were, some of
those days included holidays and weekends. And our staff don't
normally work holidays and weekends. But we did. We did our
best to try to give back some substantive remarks on those
chapters.
Mr. Johnson. It is interesting to me that Mr. Pizarchik,
under his direction, OSM gives States and industry minimal time
to review thousands of pages of documentation. And yet we have
been waiting months, Mr. Chairman, to get information from OSM
on exactly what they are trying to do with this rulemaking. It
certainly is a double standard.
Let me ask you, Mr. Clarke and Mr. Lambert, did the
Director ever discuss with the States how OSM plans to proceed
with State involvement going forward? Did he ever articulate
his plan?
Mr. Lambert. No, sir, not with Virginia. As I stated in my
oral statement, we even sent a letter to him requesting that we
reengage, and today we have not had a response.
Mr. Johnson. OK.
Mr. Clarke. Before they started the EIS process, OSM had a
series of meetings, I think maybe four of them around the
country, where we received very minimal information about their
plans, and I believe we were told we would get more later. And
of course we haven't.
Mr. Johnson. OK. And, gentlemen, are you aware of any
States that support OSM's current efforts to rewrite the Stream
Buffer Zone Rule?
Mr. Lambert. No, sir, I am not.
Mr. Clarke. No, sir.
Mr. Johnson. OK. And now for all three of you, if this
legislation, if H.R. 2824 passed Congress and the 2008 rule
were implemented, would the result be more environmental
protection for streams or less compared to the status quo?
Mr. Clarke. The 2008 rule imposes requirements that go well
beyond those that were in place under the existing
interpretation of the 1983 rule. It requires avoidance
measures, avoidance minimization measures, and analysis of
alternatives. It doesn't completely exempt spoil from
mountaintop mining. It subjects the placement of that spoil to
planning processes which require avoidance minimization,
alternative analysis, and requirements that are generally
harmonious with those applied by the Corps of Engineers in
determining whether to approve a permit under section 404 of
the Clean Water Act.
Mr. Johnson. So it is more environmentally safe?
Mr. Clarke. Yes, sir.
Mr. Johnson. Mr. Lambert?
Mr. Lambert. I would agree. Yes, sir.
Mr. Johnson. Mr. Jones?
Mr. Jones. Yes, I totally agree.
Mr. Johnson. Well, great.
Mr. Chairman, it has also been insinuated this morning that
if the legislation that you and I have proposed were to be
passed, that it would put OSM back at scratch, I think the term
used, at scratch, in terms of rewriting the rule. Well, first
of all, we don't want them to rewrite the rule. The industry
doesn't want them to rewrite the rule. It doesn't make any
sense to rewrite the rule.
But let's examine that idea of scratch. They are at
scratch. They have been at scratch. They have never been able
to emerge from scratch because of their own ineptness, because
of their own dereliction of their responsibility and their
inability and their unwillingness to work with States and
industry in doing the right thing for the American people. This
is an atrocity. And again, I encourage my colleagues to support
our legislation.
Thank you, gentlemen, for your answers.
Mr. Lamborn. Thank you.
Representative Lummis.
Mrs. Lummis. Thank you, Mr. Chairman.
And thank you, gentlemen, for being here today.
I would like to ask the Natural Resources Committee staff
to put up a couple of pictures on the screen so we can talk
about them. First of all, this is an award-winning stream
reclamation project done in Wyoming by Cloud Peak Energy, one
of our coal mines. And you can see the terrific rolling hills
of northeastern Wyoming in the background, and of course, that
is just emblematic of our topography. These are done in a way
that restores to the same elevations and contours the
topography after my reclamation is completed. This is reclaimed
land.
Then, could you put up the next one.
This is an award-winning stream reclamation project done in
Virginia by Alpha Natural Resources.
And since we have a witness here from Alpha, please leave
that up.
And I am going to ask the gentleman from Alpha, Mr. Jones.
Can you describe the process Alpha and other coal companies
take to reclaim streams first in the Powder River Basin and
then moving onto more eastern topography?
Mr. Jones. Be glad to, Congressman, and there are major
differences between the Powder River Basin stream
reconstruction and the reconstruction we do in Appalachia,
particularly in Virginia. We, in the Powder River Basin, since
you don't have so many flowing streams as we do, you have a lot
of subsurface flow of water. So, as you reconstruct a stream in
the Powder River Basin, you also have to reconstruct and ensure
there is connectivity there of the subsurface aquifer, and we
have those ongoing at our operations.
Now, the picture here is from the very first reconstructed
site stream section in the State of Virginia using natural
stream methodology. In fact, the Office of Surface Mining had a
conference on natural stream restoration and landform grading
in the Hilton in Abingdon, Virginia, about 60 miles from this
site. The OSM at that time thought what we were doing was
perfect, I won't say perfect, but so good, that they picked
several of our sites as spots to take a field trip and show the
attendees of the conference that these folks are doing it
right; this is how it should be done.
This one, this site is on our Black Bear operation. We won
multiple national, regional, State, even two OSM awards for the
particular mine site we have here.
But we have very well trained in-house staff and primarily
consultants who oversee the design and the installation of
these operations. They have been through proper training. They
have several levels of the Rosgen, it is called, training, to
make sure they get the natural streams built.
Mrs. Lummis. Let me ask you further. Would OSM's new work
hinder or help your process of stream reclamation?
Mr. Jones. I am going to say it will severely hinder
because----
Mrs. Lummis. Why is that?
Mr. Jones. Well, because presently, for every stream that
we impact, we have to mitigate. And with the new rule, as I
have seen, you are going to have zero impact, so you will not
be doing this. So, I mean----
Mrs. Lummis. May I ask the gentleman from Virginia and West
Virginia the same question? Would OSM's proposals help or
hinder?
Mr. Lambert. Well, in Virginia, remining in Virginia
affects about 88 percent of all mining that takes place. In
other words, 80 percent of the land that our companies are
mining, including Alpha, are abandoned mine lands where streams
have already been impacted.
Under the new rule, none of that would take place anymore.
Those streams that have already been impacted that are
contributing these metals to our environment would not be
cleaned up.
Mrs. Lummis. Why not?
Mr. Lambert. Under the new rule, the companies would not be
remining those areas again. They would avoid those areas.
Mrs. Lummis. May I ask the other gentleman to comment as
well.
Mr. Clarke. I believe the same would be true in West
Virginia. And I would add that Mr. Jones' comment about Rosgen
training, that we in West Virginia have, I think, 18 people on
our staff that have some level of Rosgen training ranging from
Level I to Level IV, so stream restoration has been something
that we have invested heavily in because that training is very
expensive. And it is something that we are already doing in the
absence of a stream protection measures rule.
Mrs. Lummis. I thank you, gentlemen, for being here today.
I yield back.
Mr. Lamborn. OK. Let's have a second round of questions.
And could staff put up that first slide again?
I recently visited the Powder River Basin myself in the
lovely State of Wyoming, and what I learned is that it is not
just restored to the way it was previously; It is better
because you don't have the invasive species that have come
along in recent years when the restoration is done.
OK. My first question is for any one of you and to put
things in context, the EPA says that there are 3\1/2\ million
miles of streams in the United States. In the Appalachian area,
there is 60,000 miles of streams, and mining has impacted a
total of 1,200 miles from 1992 to 2002. This is according to
the EIS for the 2008 rule. So that was 2 percent of the streams
of Appalachia were affected by coal mining in that 10-year
period.
And then the comments that were leaked on the audiotapes
that we subpoenaed or that were given to us said that 15 miles
would be protected under the new rule. I have a hard time
understanding why all of this is being done. I guess that is
more of a comment than a question. I don't understand the
agency doing this, how they are doing it.
Let me go on and move on, though, to a medical science
question. A 2012 Yale study, called ``Mortality Disparities in
Appalachia: Reassessment of Major Risk Factors,'' came up with
the result, and I am going to read the results to you: Age-
adjusted all-cause mortality was independent related to poverty
rate, medium household income, percent high school graduates,
rural-urban location, obesity, sex, and race/ethnicity, but not
unemployment rate, percent uninsured, percent college
graduates, physician supply, smoking, diabetes, or coal mining.
And I would like to ask unanimous consent that this Yale
study be put into the record.
Seeing no objection, so ordered.
[The information follows:]
[From Journal of Occupational and Environmental Medicine, Volume 54,
Number 2, February 2012]
Mortality Disparities in Appalachia--Reassessment of Major Risk Factors
(By Jonathan Borak, MD, Catherine Salipante-Zaidel, MEM, Martin D.
Slade, MPH, and Cheryl A. Fields, MPH)
author information
From the Department of Epidemiology and Public Health (Dr. Borak
and Ms. Fields), Yale University; Department of Medicine (Dr. Borak and
Mr. Slade), Yale University; and Jonathan Borak & Company (Dr. Borak,
Ms. Salipante-Zaidel and Ms. Fields), New Haven, Conn.
Address correspondence to: Jonathan Borak, MD, 234 Church Street
(#1100), New Haven, CT 06510 ([email protected]).
The study was supported by the National Mining Association. The
results presented here represent the conclusions and opinions solely of
the authors. Its publication does not imply endorsement by the National
Mining Association. The study sponsor had no role in the study design,
analysis or interpretation of the data, or in the writing, preparation,
or submission of the manuscript, which was not provided to the sponsors
prior to its submission for publication.
abstract
Objective: To determine the predictive value of coal mining and other
risk factors for explaining disproportionately high mortality rates
across Appalachia. Method: Mortality and covariate data were obtained
from publicly available data bases for 2000 to 2004. Analysis employed
ordinary least square multiple linear regression with age-adjusted
mortality as the dependent variable. Results: Age-adjusted all-cause
mortality was independently related to Poverty Rate, Median Household
Income, Percent High School Graduates, Rural-Urban Location, Obesity,
Sex, and Race/Ethnicity, but not Unemployment Rate, Percent Uninsured,
Percent College Graduates, Physician Supply, Smoking, Diabetes, or Coal
Mining. Conclusions: Coal mining is not per se an independent risk
factor for increased mortality in Appalachia. Nevertheless, our results
underscore the substantial economic and cultural disadvantages that
adversely impact health in Appalachia, especially in the coal-mining
areas of Central Appalachia.
The Appalachian region, as currently defined by the Appalachian
Regional Commission (ARC), is comprised of 420 contiguous counties in
13 States stretching from New York to Mississippi.\1\ (The numbers of
ARC counties has increased from an initial 360 as a result of periodic
acts of Congress. There were 399 counties in 1991, 406 counties in
1998, 410 counties in 2002, and 420 counties since 2008.) Encompassing
an area of 205,000 square miles, the region overlaps and extends beyond
the less sharply demarcated cultural region known as Appalachia. It is
home to about 25 million people. For research and other purposes, the
region is often divided into five geographic subregions of relatively
homogeneous characteristics (eg, topography; demographics) as shown in
Fig. 1. Appalachian Regional Commission, a regional economic
development agency, was created in 1965 by Congress in recognition that
Appalachia suffered disproportionately poor socioeconomic
conditions.\2\
[GRAPHIC] [TIFF OMITTED]
.epsIt is also well recognized that Appalachians suffer
disproportionately poor health and increased risks of adverse health
outcomes compared with the rest of the nation.\3\ \4\ For example, the
Appalachian region suffers higher rates of total and premature
mortality (mortality in persons aged 35 to 64 years),\4\ \5\ heart
disease and cardiac mortality,6-8 cancer incidence \9\ and
cancer mortality,\10\ stroke mortality,\11\ chronic pulmonary
disease,\5\ obesity,\12\ and diabetes.12-14 In the view of
many epidemiologists and public health researchers, Appalachia is
characterized by ``increased chronic disease burden, limited access to
health care, and elevated rates of behavioral risks.''\15\
Significant health disparities have also been documented within the
region, with deficits most consistently found in central and southern
Appalachia. Figures 2 to 5 show the regional distributions of county-
level premature mortality due to all causes, cancer, heart disease, and
stroke. High rates of all-cause mortality are concentrated in eastern
Kentucky, southern Ohio, western Virginia, southern West Virginia,
northern Alabama, and Mississippi.\4\ Cardiac-related death rates are
generally higher in rural areas,\8\ with highest rates of premature
mortality in central and southern Appalachia, particularly eastern
Kentucky.\5\ Premature cancer mortality is dominated by high rates in
the Appalachian counties of Kentucky, Ohio, and West Virginia.\5\ In
eastern Kentucky, mortality rates for total cancer, lung cancer, and
cervical cancer are up to 36 percent greater than overall Appalachian
rates and up to 50 percent greater than corresponding U.S. rates.\10\
[GRAPHIC] [TIFF OMITTED]
.epsSuch disparities impose enormous burdens on the people of
Appalachia and their health care and social service systems. As
discussed later, a variety of risk factors (eg, age, sex, race, income,
and education) have been associated with specific outcomes, but those
factors do not fully explain the disparities. It has been proposed that
health disparities in Appalachia are due to ``highly localized''
factors: ``health disparities . . . result from a combination of
factors that are unique to each local area.''\4\ The public health
policy implications of such localized factors are potentially much
different from those that apply to more systematic barriers to health.
A recent series of ecological studies by researchers at West
Virginia University (WVU) has suggested that age-adjusted Appalachian
county mortality rates are independently related to the presence of
coal mining, but the nature of that relationship was uncertain.16-
18 Increased mortality rates were apparently not due to
occupational exposures and observed mortality patterns differed between
Appalachian coal-mining counties and coal-mining counties outside
Appalachia. For example, county-level lung cancer mortality was
elevated in Appalachian, but not in non-Appalachian coal-mining
areas.\18\ The WVU authors proposed that observed health disparities in
residents of Appalachian mining areas might be attributed to a ``coal
mining-dependent economy,''\16\ or to ``pollution'' and the
``environmental impacts of Appalachian mining,''\17\ \18\ or to
``additional behavioral or demographic characteristics not captured
through other covariates.''\18\
To better understand these possibilities, particularly the role of
coal mining as an independent risk factor for disparate mortality
rates, we undertook a reanalysis of those published studies. Our
objective was to determine the predictive value of coal mining and
other potentially relevant risk factors for explaining differences in
mortality rates across the Appalachian region.
background
A variety of economic measures illustrate how badly the Appalachian
region lagged behind other parts of the United States in 1965, the year
that ARC was founded, and how that status has improved. At that time, 1
in 3 Appalachians lived in poverty, 295 of 360 counties were
categorized as ``high poverty'' (poverty rate >1.5 times U.S. average),
and 223 of 360 counties were classified as ``economically
distressed.''1 a By 2008, the poverty rate had
declined to 18 percent, the number of ``high poverty'' counties had
fallen to 116 of 410 counties, and 78 of 410 counties were classified
as ``distressed.'' Despite such improvement, however, Appalachian per
capita personal income remains about 20 percent lower than the U.S.
average and the region has ``fared far worse than the Nation'' during
the recent recession.\19\
Significant economic disparities occur within the region. For
example, incomes are relatively high in northern and southern
Appalachia, but relatively low in central Appalachia. In 2008, per
capita market income for the region overall was 75 percent of the U.S.
average, but only 51 percent in central Appalachia. Likewise, 57 of the
82 Appalachian counties classified as economically distressed in 2011
were located in the contiguous areas of three central Appalachian
States: eastern Kentucky; northern Tennessee; and southern West
Virginia.\19\ As summarized by ARC, ``the central Appalachian region in
particular still battles economic distress, with concentrated areas of
high poverty, unemployment, poor health, and severe educational
disparities.''\19\ Such economic disparities seem to parallel the
characteristic Appalachian landscape: ``counties classified by ARC as
`distressed' tend to be the mountainous and isolated counties that most
people consider to be Appalachia.''\14\
As expected, poorer health status in Appalachia is associated with
lower economic status. High rates of premature all-cause mortality,
cardiac mortality, and cancer mortality have each been associated with
low income, high poverty, high unemployment, and a high percentage of
people without health insurance.\5\ Similar associations are found when
counties are classified by economic status. As a group, economically
distressed Appalachian counties had the highest mortality rates from
heart disease and stroke.\11\ Likewise, prevalence of diabetes
increases as economic status declines. In 2007, the prevalence of
diabetes was 13 percent in ``economically distressed'' Appalachian
counties, more than twice the 6 percent rate in Appalachian ``economic
attainment'' counties; the corresponding national and regional rates
were 8 percent and 10 percent, respectively.\14\
Education is also strongly linked with health status; limited
education is regarded as a ``precursor to poor health.''3 20
21 The region has long been characterized by ``severe educational
disparities,'' which persist in some areas.\19\ In 2000, the proportion
of adults without high school diplomas or equivalents exceeded the U.S.
average in 11 of the 13 Appalachian States, and the proportion of those
with a college degree was substantially lower. While 24.4 percent of
U.S. adults had college degrees, only 17.7 percent of Appalachian
adults and only 10.2 percent of those residing in economically
distressed Appalachian counties were college graduates.22-24
Only 18 of 410 Appalachian counties had a higher percentage of college
graduates than the national average; most were the homes of large
universities. In general, the counties with lowest educational
attainment were ``concentrated in central Appalachia, especially in the
mining regions,'' where health status is generally worst.\23\
In addition, unhealthy behaviors are more common in the region than
in the rest of the nation.15 25 26 For example,
Appalachians have a higher prevalence of tobacco use than does the U.S.
population.\25\ Five Appalachian States rank among the eight highest
for smoking prevalence,\27\ \28\ and smoking rates are higher in the
Appalachian counties and Labor Market Areas than the non-Appalachian
counties and Labor Market Areas of those five States.4 29
b High rates of smoking cluster in central Appalachia, notably in
eastern Kentucky and West Virginia where smoking rates are the Nation's
highest.4 9 27 In those areas, high smoking
rates coincide with the Nation's highest lung cancer rates, with
similar patterns seen for other tobacco-related cancers.9 30
31
Lack of physical exercise and poor eating habits are two
other behaviors that adversely impact regional health. Compared with
the U.S. population, residents of southern and central Appalachia are
less likely to engage in recommended levels of physical activity and
more likely to have no physical activity during leisure time.\25\ \32\
Residents of rural Appalachia are also more likely to consume less
nutritious, more energy-dense diets.\14\ \25\ Because inactivity and
poor diet are risk factors for obesity, and because inactivity, poor
diet, and obesity are all risk factors for diabetes, it is not
surprising that obesity and diabetes are more prevalent in Appalachia.
Likewise, physical inactivity, poor diet, and obesity are risk factors
likely to contribute to the increased incidence of cancer in rural
Appalachia.\26\ \33\
In 1997, the prevalence of obesity (body mass index > 30kg/m2) in
Appalachian counties ranged from 10.2 percent to 27.6 percent among men
and 7.8 percent to 25.3 percent among women. High rates of obesity
clustered in eastern Kentucky, southern West Virginia, north-central
Pennsylvania, and southeast Ohio.\34\ In 2007, the highest prevalence
rates of obesity and diabetes in the United States were mainly found in
the Appalachian counties of West Virginia, eastern Kentucky, and
northern Tennessee.\12\
Nevertheless, such risk factors, at least as measured by
traditional epidemiologic variables, seem insufficient to fully explain
the region's health disparities. For example, after accounting for a
variety of covariates (eg, age, sex, race, education, income, smoking,
obesity, and physical activity), residents of economically distressed
counties in Appalachian had a statistically significant 33 percent
greater risk of having diabetes than did residents of non-Appalachian
counties; by contrast, risks did not differ between non-Appalachian
counties and the Appalachian counties not classified as distressed.\14\
Some of the health disparities not accounted for by the traditional
risk factors may be attributed to the geographic isolation that
characterizes rural Appalachia. Such isolation adversely impacts
regional health status by creating logistical barriers to health care
access and by limiting employment opportunities, thus contributing to
poverty and lack of health insurance.\25\ For such reasons, residents
of rural Appalachia generally utilize fewer preventive health services
such as routine cancer screening.26 35-38 Geographic
isolation, which leads to fewer local medical and other support
resources, is also a likely explanation for the increased mortality
rates from coronary heart disease in rural versus metropolitan
Appalachian communities.\8\ Other data suggest that rural Appalachians
with cancer have less access to comprehensive diagnostic and treatment
services.\39\ And by limiting access to health care services and
producing physician shortages, the rural geography has seemingly caused
an adverse impact on Appalachia's ``diabetes problem.''\40\
Cultural and social factors associated with residence in distressed
areas are also likely to adversely impact health. Factors suggested as
relevant include ``Appalachian cultural beliefs such as fatalism,''
which reinforces poor health behaviors and discourages seeking of early
health intervention and medical advice. In addition, high rates of
smoking lead to increased exposure to second-hand smoke.\14\ \18\ Local
social conditions also influence dietary habits, and thereby health.
Rural Appalachia is distinguished by a relative lack of full-service
grocery stores and fruit-and-vegetable markets; residents of such
``food deserts'' tend to shop in stores with fewer nutritional choices
and have less nutritious diets.14 34 41 42
methods
Design
This study retrospectively investigated all-cause mortality rates
for residents of Appalachia during the years 2000 to 2004. Mortality
and covariate data were obtained from publicly available data bases.
The time period considered and the data utilized were selected to allow
for analyses that closely resembled those described in the WVU
studies.16-18 Data were collected to represent the same time
period (2000 to 2004) as much as possible given data availability, but
the actual time periods corresponding to specific variables were not
identical. Because the WVU analyses differed from study to study, we
choose to incorporate the least complex of those alternative approaches
for our basic model. The following discussions of Data and Analysis
explain that process in detail.
Data
Mortality
Mortality data were obtained from the Centers for Disease Control
and Prevention.\43\ Reported data described county-level mortality
rates age adjusted to the 2000 U.S. standard population. We utilized
all-cause mortality for all age groups.
Demographic Data
We obtained county-level demographic data from the 2005 Area
Resource File.\44\ The percent men population was calculated as the
arithmetic mean for the years 2000 to 2003. The percentages of the
population who were white, African American, Native American, non-white
Hispanic, and Asian American were determined for the year 2000.
Economic Status
Four measures of economic status have been associated with
mortality rates in Appalachia: median household income; poverty rate;
unemployment rate; and rate of health insurance.\5\ Each was considered
in at least 1 of the 3 WVU analyses. We obtained county-level economic
data from the Area Resource File.\44\ Median Household Income and
Poverty Rate were determined as the arithmetic means for the years 2000
to 2002. Unemployment Rate (persons aged 16 years) and Percent
Uninsured were obtained for the year 2000.
Education
County-level rates of high school graduates and college graduates
were calculated using ARC data for the year 2000.\45\ The number of
persons with a high school diploma or higher (Percent High School
Graduates), and the number of persons with a college diploma or higher
(Percent College Graduates) were each divided by the number of persons
aged 25 years or older.
Location
The location type of each county was characterized using the U.S.
Department of Agriculture (USDA) nine-point rural-urban classification
scheme, which codes metropolitan and nonmetropolitan counties by degree
of urbanization, adjacency to metro areas, and population size of urban
areas.\46\ (For example, ``Code 1'' = ``counties in metro areas of 1
million population or more''; ``Code 5'' = counties with ``urban
population of 20,000 or more, not adjacent to a metro area'', and
``code 9'' = counties that are ``completely rural or < 2,500 urban
population, not adjacent to a metro area''.) We obtained county-
specific rural-urban continuum codes from the Area Resource File.\44\
We divided the USDA rural-urban continuum codes into three categories:
Metropolitan (codes 1 to 3), Micropolitan (codes 4 to 7), and Rural
(codes 8 to 9).
Access to Health Care
County-specific physician supply was used as a measure of access to
health care. Data for the number of active medical doctors (MDs) and
osteopathic doctors (DOs) per 1,000 population were obtained from the
Area Resource File.\44\ Two of the WVU studies used ``number of active
MDs and DOs per 1,000 population,''17 18 whereas the
third included ``physician supply'' not otherwise defined.\16\ In our
analyses, Physician Supply indicates the number of active MDs and DOs
per 1,000 population.
Smoking
Rates of current smokers were obtained from the Centers for Disease
Control and Prevention Behavioral Risk Factor Surveillance System
(BRFSS) \28\ supplemented with smoking rates available from State
public health department Web sites. County-level data were available
for 54 Appalachian counties, of which 9 were reported at the level of
metropolitan statistical areas. For the other 366 counties, smoking
rates were available as the means for each of 84 subgroups of
contiguous counties. When available, we used rates averaged for the
years 2002 to 2004; otherwise, we used data for the year(s) closest to
that time period. (Smoking data were available for the following years
for each State: Alabama: 2009-10; Georgia: 2000-03; Kentucky: 2002-04;
Maryland: 2000-02; Mississippi: 2004; New York: 2003; North Carolina:
2002-04; Ohio: 2002; Pennsylvania: 2002-04; South Carolina: 2002-04;
Tennessee: 2005; Virginia: 2007; West Virginia: 2001-05.)
Obesity and Diabetes
We obtained county-level data for obesity and diabetes from the
National Diabetes Surveillance System for the year 2004.\47\ Obesity
Rate indicates the proportion of adults aged 20 years or older with
body mass index 30 kg/m2 or more. Diabetes Rate indicates
the proportion of adults aged 20 years or older with diagnosed
diabetes.
Coal Mining
County-specific coal production data were obtained from the Energy
Information Administration.\48\ In our analyses, we divided Appalachian
counties into two groups based on whether they produced coal during
2000 to 2004 and we also grouped coal-producing counties into those
above (High) and below (Low) the median coal production level for
Appalachian counties during that time period.
Analysis
The data were analyzed using SAS 9.2 (SAS Institute, Cary, NC).\49\
We conducted ordinary least square multiple linear regression with age-
adjusted mortality as the dependent variable. Our basic regression
model (``Basic Model'') paralleled the WVU analyses, but we considered
only the 420 Appalachian counties, and we did not include coal mining-
related variables or the ``dichotomous Southern variable . . . created
to capture regional effects that partially overlap with
Appalachia.''\18\ The model included the following independent
variables:
Percent Men
Race/Ethnicity Rates
Poverty Rate
Percent High School Graduates
Percent College Graduates
Rural-Urban Category
Physician Supply
Smoking Rate
Next, we added additional independent variables into the basic
model and evaluated their explanatory power by means of partial F
tests. Partial F tests are used to determine whether the addition of
one or more variables to an already specified model significantly
decreases the unexplained variance of the model.\50\ When that occurs,
addition of the variable is said to have significantly improved the
model's fit to the observed data. The partial F test is also known as
Type 3 test for fixed effects when the addition of only one more
variable is contemplated.
Additional variables were added one at a time to the Basic Model,
regression analyses were performed, and the results compared with the
regression results for the Basic Model without that additional
variable. If partial F tests indicated that inclusion of the variable
led to significantly improved model fit, the variable was retained in
an ``Expanded Model.'' Alternatively, if including a variable did not
significantly improve the model, it was excluded. This process was
repeated using Expanded Models in place of the Basic Model, until all
variables had been evaluated. The following is a list of the additional
independent variables that were tested in this way, listed in the order
in which they were added:
Median Household Income
Unemployment Rate
Percent Uninsured
Obesity Rate
Diabetes Rate
Coal Mining (Yes/No)
Coal Mining (High/Low/None)
RESULTS
The results of ordinary least squares multiple linear regression
analysis of the Basic Model are presented in Table 1. These findings
indicate that higher age-adjusted all-cause mortality rate was
independently related to Poverty Rate, Percent High School Graduates,
Rural-Urban Location, and Demographic variables including Sex and Race/
Ethnicity rates. Mortality Rate was not significantly related to
Percent College Graduates, Physician Supply, or Smoking Rate.
TABLE 1. Basic Model: Ordinary Least Squares Multiple Linear Regression
Model; Age-Adjusted All-Causes Mortality Rate
------------------------------------------------------------------------
Basic Model
Data Category -------------------------------------------------------
Variable Coefficient SE P
------------------------------------------------------------------------
Intercept 5179.71 1101.18 < 0.0001
Economic status Poverty Rates 7.99 1.28 < 0.0001
Education Percent High -497.87 87.92 < 0.0001
School
Percent College -174.43 117.46 0.1383
Location Rural-Urban -30.54 5.97 < 0.0001
Category
Access to health MDs and DOs per 2.56 2.61 0.3285
care 1000
Smoking Smoking Rate 90.31 100.38 0.3688
Demographics Percent Men -805.75 320.29 0.0123
Percent White -35.49 11.00 0.0014
Percent Black -35.67 10.98 0.0013
Percent Asian -41.35 14.71 0.0052
Percent Native -33.70 11.94 0.0050
American
Percent Latin -20.48 6.72 0.0025
------------------------------------------------------------------------
Bold and italicized indicates statistically significant variables.
DO, osteopathic doctor; MD, medical doctor.
We then evaluated whether inclusion of additional variables would
significantly reduce the unexplained variance of the Basic Model, thus
improving its fit to the age-adjusted mortality data. Table 2 presents
the results of this sequential testing, indicating F score, P value,
and conclusions for each of the seven variables. Inclusion of Median
Household Income significantly improved the Basic Model
(P < 0.0001) and it was retained in an ``Expanded Model.'' Likewise,
Obesity Rate significantly improved the Expanded Model (P = 0.0022),
and it was retained in a ``Further Expanded Model.'' By contrast, no
improvements resulted from the addition of Unemployment Rate (P =
0.6852), Percent Uninsured (P = 0.3036), Diabetes Rate (P = 0.3704),
Coal Mining: Yes/No (P = 0.6003), or Coal Mining: High/Low/None (P =
0.1047), and they were excluded.
TABLE 2. Explanatory Power of Additional Independent Variables, With Sequential Addition of Significant
Variables to the Basic Model, as Evaluated Using Partial F Test
----------------------------------------------------------------------------------------------------------------
Numerator Denominator
Comparisons df df F Score P Conclusion
----------------------------------------------------------------------------------------------------------------
(1), Basic Model
(1) vs (2) [Basic Model + Income]..... 1 406 15.220 0.0001 Retain income in model
(2) vs (3) [Basic Model + Income + 1 405 0.165 0.6852 Unemployment Rate does
Unemployment Rate]. not improve model;
Exclude
(2) vs (4) [Basic + Income + Percent 1 405 1.065 0.3036 Percent Uninsured does
Uninsured]. not improve model;
Exclude
(2) vs (5) [Basic + Income + Obesity]. 1 405 9.483 0.0022 Retain Obesity in model
(5) vs (6) [Basic + Income + Obesity + 1 404 0.804 0.3704 Diabetes Rate does not
Diabetes]. improve model; Exclude
(5) vs (7) [Basic + Income + Obesity + 1 404 0.275 0.6003 Mining (Yes/No) does not
Mining (Yes/No)]. improve model; Exclude
(5) vs (8) [Basic + Income + Obesity + 2 403 2.269 0.1047 Mining (High/Low/None)
Mining (High/Low/None)]. does not improve model;
Exclude
----------------------------------------------------------------------------------------------------------------
Table 3 presents the results of ordinary least squares multiple
linear regression analysis of the Further Expanded Model. The variable
Coal Mining: Yes/No has been included to demonstrate its lack of
statistical significance when added to the model. These findings
indicate that higher age-adjusted all-cause mortality rate was
independently related to Poverty Rate, Median Household Income, Percent
High School Graduates, Rural-Urban Location, Obesity Rate, and
Demographic variables including Sex and Race/Ethnicity rates. The
relationship between Mortality Rate and Percent College Graduates was
nearly significant (P = 0.0814), but Mortality Rate was not
significantly related to Physician Supply, Smoking Rate, or Coal
Mining: Yes/No.
TABLE 3. Further Expanded Model: Ordinary Least Squares Multiple Linear
Regression Model; Age-Adjusted All-Causes Mortality Rate. Coal Mining
(Yes/No) Has Been Included for Demonstration Purposes, but Is Not a
Component of the Model
------------------------------------------------------------------------
Data Category Variable Coefficient SE P
------------------------------------------------------------------------
Intercept 4977.06 1076.63 < 0.0001
Economic Poverty Rates 10.96 1.90 < 0.0001
status
Median Household 4.86 1.27 0.0001
Income (per $1000)
Education Percent High School -510.44 90.52 < 0.0001
Percent College -222.60 127.42 0.0814
Location Rural-Urban -20.55 6.17 0.0010
Category
Access to MDs and DOs per 2.98 2.59 0.2500
health care 1000
Smoking Smoking Rate 52.67 98.61 0.5935
Obesity and Obesity Rate 5.96 1.97 0.0027
diabetes
Demographics Percent Men -931.40 316.61 0.0035
Percent White -36.39 10.74 0.0008
Percent Black -37.23 10.71 0.0006
Percent Asian -41.38 14.38 0.0042
Percent Native -35.06 11.65 0.0028
American
Percent Latin -21.96 6.56 0.0009
Coal mining Coal Mining (Yes/ 4.68 8.92 0.6003
No)
------------------------------------------------------------------------
Bold and italicized indicates statistically significant variables.
We also performed regression analyses of the Further Expanded Model
after adding each of the excluded variables (Unemployment Rate, Percent
Uninsured, Diabetes Rate, Coal Mining: Yes/No and Coal Mining: High/
Low/None). First, we added a variable and ran the model, and then we
removed that variable and added the next variable and repeated the
process so that all variables were individually tested. Then we
included all variables in the model at one time (but only one of the
Coal Mining variables was included at any time). Adding each or all of
those excluded variables did not significantly change the model's
parameter estimates or their P values (data not shown); hence, all
inferences remained the same.
discussion
Appalachians suffer disproportionately poorer health and
significantly higher mortality rates than the rest of the
Nation.3-5 In general, the Appalachian counties with poorest
health are also the most economically distressed, the least educated,
and those with the most limited access to social and medical services.
In addition, residents of those counties demonstrate generally higher
rates of risky behaviors, for example, higher smoking rates, more
prevalent obesity, less physical activity, less nutritious diets, and
less use of preventive health services. Notably, these often rural,
isolated counties include many of the most productive coal-mining areas
in Appalachia.\51\
Earlier efforts to understand and address the sources of such
health disparities have identified a number of independent risk factors
associated with specific health outcomes, but have not fully explained
the disparities. Some have proposed that health disparities in
Appalachia are due in part to factors ``unique to each local area.''\4\
A recent series of ecological studies has suggested that the presence
of coal mining is such a ``local'' factor, which is independently
related to age-adjusted mortality rates, although the nature of that
relationship is uncertain.
To better understand that relationship, we studied all-cause
mortality rates for Appalachian residents during 2000 to 2004.
Mortality and covariate data were selected to create a Basic Model that
closely resembled the models employed in the UWV ecological studies,
but did not include coal mining. As seen in Table 1, the regression
analysis of that Basic Model indicated that increased mortality rate
was significantly associated with greater poverty, lesser educational
attainment, rural location, and demographic factors including sex and
race. No significant associations were seen for smoking or physician
supply.
We then expanded that Basic Model. First, we considered the
inclusion of three additional economic measures (Median Household
Income, Percent Unemployed, and Percent Uninsured) as independent
variables. Those three measures, along with Poverty Rate, are generally
correlated, but they are nonidentical and reflect different aspects of
socioeconomic status and economic distress.5 52 53
All four have been independently associated with Appalachian mortality
rates.4 5 The WVU model did not include Median
Household Income, Percent Unemployed, or Percent Uninsured.
The inclusion of Median Household Income significantly improved the
model's fit to the observed data and it was included in an Expanded
Model. By contrast, neither of the two other economic variables
significantly reduced the unexplained variance of the Expanded Model
(i.e., Basic Model plus Median Household Income); hence, neither was
retained in the model.
We next considered whether adding Obesity Rate and Diabetes Rate
would improve the Expanded Model's explanatory power. Both are
important risk factors for mortality. The World Health Organization has
determined that ``overweight and obesity'' is the fifth leading risk
factor for deaths worldwide,\54\ and Centers for Disease Control and
Prevention recognizes diabetes as the seventh leading cause of death in
the United States.\55\ Obesity is also seen as a more important risk
factor for chronic disease than either smoking or poverty.56
57 Neither Obesity Rate nor Diabetes Rate was included in the WVU
analytical models.
In our analyses, addition of Obesity Rate significantly improved
the Expanded Model and it was retained in a Further Expanded Model (ie,
Basic Model plus Median Household Income plus Obesity Rate). By
contrast, adding Diabetes Rate to that model yielded no significant
improvement and it was excluded.
Finally, we considered the effects of including either of the two
measures of coal mining in the Further Expanded Model. Neither Coal
Mining: Yes/No nor Coal Mining: High/Low/None significantly improved
the explanatory power of the model. The findings of this analytical
model argue that coal mining is not per se an independent risk factor
for increased mortality in Appalachia. By contrast, we found that
increased mortality was significantly associated with greater poverty,
lower median household income, fewer high school graduates, rural
location, obesity rate, and demographic factors including sex and race.
Lower college graduate rate was nearly significant. Moreover, we found
no significant associations for smoking, physician supply, and
diabetes.
It seems surprising that smoking rate was not significantly
associated with mortality, given that smoking causes about 20 percent
of U.S. deaths,\58\ but similar results were reported in WVU
studies.16 59 This is likely due to limitations of the
available data. BRFSS determines current smoking status, not quantity
or duration (The relevant BRFSS questions are ``Have you smoked at
least 100 cigarettes in your entire life?'' and ``Do you now smoke
cigarettes every day, some days, or not at all?.''\28\), thus BRFSS
data do not capture the substantial dose-response gradient linking
smoking and mortality.\60\ Also, smoking data were available for only
54 of 420 individual Appalachian counties; for the other 366 counties,
the available smoking rate were mean values calculated for each of 84
subgroups of contiguous counties. Thus, Smoking Rate is almost
certainly biased by non-differential misclassification, a particular
concern in light of evidence that smoking rates are increased in coal-
mining areas.17 18 59 To the extent that such
misclassification ``biases toward the null'', the link between smoking
and mortality would be differentially reduced in high-smoking counties.
The available data are not adequate to evaluate whether smoking might
act synergistically with other environmental pollutants.
Likewise, we were surprised that Diabetes Rate failed to improve
the model, but this is likely explained by two factors. First, obesity
is a critical risk factor for diabetes and the two are well correlated.
Risk of diabetes, for example, was increased up to elevenfold in
Medicare recipients with a history of midlife obesity.\61\ Thus
Diabetes Rate may add little explanatory value not associated with
Obesity Rate. Second, BRFSS self-reported diabetes status is likely to
misclassify a substantial proportion of the population because more
than 27 percent of adults with diabetes in the United States have
``undiagnosed diabetes.''\62\ Such misclassification would likely have
greatest impact in the economically distressed Appalachian counties
where reported diabetes rates are generally higher and utilization of
preventive services generally lower than in other counties. Thus, in
those counties apparent associations between diabetes and mortality are
probably understated.
Lack of a significant association between Physician Supply and
mortality rate is also notable. One explanation is that the number of
physicians is ``just one factor within complex environments,'' which
include other health care workers and a variety of health care delivery
systems: ``Higher physician supply per se does not amount to better
access, quality, or outcomes.''\63\ Some studies report that an
increased supply of primary care physicians, but not specialists is
associated with reduced mortality.\64\ Reanalysis of their data,
however, suggested that benefits were region-clustered and less likely
to occur in rural populations.\65\ Finally, there is no standard
approach to quantifying the supply of primary care providers using
secondary data sets; it is likely that some specialists will be
misclassified, while nurse practitioners and physician assistants are
ignored.\65\
We doubt that the differences between our findings and those of the
WVU studies are due to the ways in which covariates were selected and
defined. We chose time periods, variables, and data to closely resemble
those studies. In three cases, the WVU studies incompletely or
inconsistently defined their covariates. In those cases, we chose the
least complex alternative for our model; thus, we used covariates that
were similar, but not necessarily identical. For example, the WVU
studies defined Physician Supply as the number of active MDs and DOs
per 1000 population. Some results were also reported for ``primary care
physicians,'' a category not specifically contained in the 2005 Area
Resource File and no explanation was given as to how ``primary care
physicians'' was defined. We defined Physician Supply as the number of
active MDs and DOs per 1000 population; we did not differentiate
``primary care physicians.''
A second case involves the rural-urban continuum. Two WVU studies
included the nine-point USDA continuum scale,16 17
while the third study, citing concerns for nonlinearity, recoded the
scale into three categories (``metropolitan,'' ``micropolitan,'' and
``rural'').\18\ Nevertheless, that study did not actually define the
categories. To understand how these categories were structured, we
reviewed other studies by those researchers who included the USDA
scale, but found the scale used in still other ways. One study defined
only two categories, ``metropolitan'' (codes 1 to 3) and
``nonmetropolitan'' (codes 4 to 9), but then treated ``rural'' and
``nonmetropolitan'' as equivalent terms: ``The terms rural and
nonmetropolitan will be used interchangeably in this study.''\66\ A
second study coded ``metropolitan'' status as a ``five-level
variable,'' but no further details were provided.\67\ A third \68\
included ``rural-urban setting'' as a covariate that was not defined.
Our analyses included three explicitly defined categories that seem
consistent with the USDA scheme and the least complex of the WVU
approaches.\18\
The third case involves coal mining. The WVU studies each defined
different coal-mining categories. One defined coal-mining areas as
``counties with any amount of coal mining'' during 1994 to 2005; some
analyses also grouped coal-mining counties into those above and below
the median production level.\16\ A second study defined three groups of
counties based on total 2000 to 2004 coal production: more than 3
million tons; less than 3 million tons; and no production.\18\ For some
analyses, counties with more than 3 million tons of production were
compared with all other counties combined and ``per capita coal
production'' (calculated relative to the 2000 census) was also included
in those analysis. The third study also defined three groups of
counties on the basis of total 2000 to 2004 coal production, but groups
were defined differently: more than 4 million tons; less than 4 million
tons; and no production.\17\ Our approach was similar to the first of
those WVU studies, but we considered the time span considered in the
latter two studies. Our analysis divided counties into two groups based
on whether any amount of coal was mined during 2000 to 2004, and coal-
producing counties were further grouped into those above and below the
median production level for Appalachian counties during that time
period.
Our Expanded Model indicates that coal mining is not per se the
cause of increased mortality in rural Appalachia. On the contrary, our
results underscore the substantial economic and cultural disadvantages
that adversely impact the health of many area residents. Particularly
in the coal-mining areas of central Appalachia, there is a potent
combination of greater economic distress, lesser educational
attainment, decreased access to health care, limited availability of
nutritious foods, higher rates of behavior-related risks such as
obesity and smoking, and decreased use of preventive health services.
The conjunction of such factors and their adverse effects can be seen
by comparing Figs. 2 to 5, which show the geographical distributions of
various county-level mortality rates, and Figs. 6 to 9, which show the
distributions of county-level poverty rate, economic distress, percent
high school graduates, and coal mining.
[GRAPHIC] [TIFF OMITTED]
.epsSuch overlapping risk factors and mortality rates illustrate
how difficult it can be to disentangle the effects of the cultural
environment from those of the physical environment, a difficulty made
greater because the two interact. For example, the physical isolation
of the mountainous counties that characterize rural Appalachia poses
barriers to industrial diversification and broadening of employment
options, and also contributes to lower incomes, reduced access to
health care services, reduced availability of nutritious foods, and so
forth.14 25 The interplay of geographical isolation,
kinship, and health-related behaviors further complicates matters.
Rural Appalachia is distinguished by tight-knit social networks,
``cohesive, extended, and geographically connected'' kinships, which
often extend beyond biological families.15 69 Such
networks can exert significant influence on the behaviors and health of
their individual members, as recently documented in the Framingham
Study. In that well-studied New England community, risks of becoming
obese (i.e., the ``induction and person-to-person spread of obesity'')
were predicted by the closeness of social relationships, not by
``common exposure to the local environment.''\70\ Thus, the physical
environment (eg, geographical isolation) can foster cultural practices
(eg, tight-knit kinships) that promote adverse health outcomes (eg,
obesity).
Accordingly, coal mining in Appalachia, an industrial activity
associated with rural, mountainous areas, is likely to be
geographically associated with a variety of economic and cultural
health risk factors. And, for similar reasons, mining is also likely to
be geographically associated with a variety of adverse health outcomes.
Although our results indicate that mining is not the direct cause of
those outcomes, they do not rule out the possibility that mining
contributes to the development of the social environments and cultural
practices that adversely impact health. This possibility seems most
likely in those specific areas where mining is the principal industry.
Likewise, our analyses do not rule out the possibility that some
specific mining methods may have greater adverse effects than others on
the physical environment.
Ultimately, the issue of greatest concern is that Appalachians
suffer disproportionately poor health and increased risks of adverse
health outcomes compared with the rest of the nation.\3\ During the
past 50 years, ARC and others have overseen substantial improvements in
the well-being of regional residents. Nevertheless, significant
shortfalls persist. To eliminate health-related disparities,
substantial efforts must be directed at the region's underlying
economic and social disparities. To the extent that coal mining is a
factor in defining the cultural fabric and socioeconomic environment of
Appalachian communities, the coal-mining industry must play a role in
efforts to increase economic diversity, develop job-creation programs,
ensure access to appropriate heath care services, improve educational
opportunities, and facilitate access to nutritious foods and diets.
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a. According to ARC, a county is ``economically distressed'' if it
ranks in the worst 10 percent of U.S. counties for 3-year
average unemployment rate, per capita market income, and
poverty rate. By contrast, a county has achieved ``economic
attainment'' if it ranks in the best 10 percent of U.S.
counties.\71\
b. The U.S. Department of Labor defines Labor Market Area (LMA) as ``an
economically integrated geographic area within which
individuals can reside and find employment within a reasonable
distance or can readily change employment without changing
their place of residence.'' In Appalachia, non-metropolitan
LMAs are generally identical to counties.\72\
______
Mr. Lamborn. Some people have claimed that there, and maybe
they have a study they can pin their statement on, but this
study from Yale scientists shows that there is not a medical
cause correlation between mortality, in this case, and coal
mining. Is that the understanding that you have? And especially
you two are the State regulators, this has to be a serious
concern of yours that you would be aware of.
Mr. Clarke. Mr. Chairman, we are concerned about the health
impacts. As I pointed out before, we do have a regulatory
program that addresses at least the water exposure pathway, and
if we knew of a causative agent, which those studies don't
identify, then we would attempt to take action to protect the
public.
But as things exist now, we think that we have the water
exposure pathway covered. No causative agent has been
identified through the air exposure pathway. If there were more
science developed on that that would establish a causative
agent for any health impacts from mining, it would be something
that, if we lack the authority to address under our existing
regulatory programs, we would be making recommendations to our
legislators and to our Congress people for additional authority
to address those issues.
Mr. Lambert. And Mr. Chairman, I agree with Mr. Clarke's
comments.
Mr. Lamborn. OK. Thank you.
And my last question, why would a stream protection rule,
which to me sounds like it is above ground, have affect on
underground mining? Could any one of you explain that, please?
Mr. Clarke. It is my understanding, and there was a
presentation at this Committee's appearance in Charleston, West
Virginia, by a representative from Consol Energy that went into
their projection, and that is primarily a longwall mining
company, their projection of impacts to their longwall mining
operations from this rule. And I remember it was quite
substantial, but I don't recall the figures that were cited.
But the requirements of the rule as to protections of streams
on the surface above longwall mining operations would seriously
hamper the ability of coal companies to recover those reserves,
coal reserves by that method.
In addition to that, the fill provisions, and there is this
idea of mountaintop mining in Appalachia just being mountaintop
removal and fills are only accompanying mountaintop removal
mining; fills accompany construction of deep mine face-ups in
Appalachia. The valleys are so narrow, the mountain sides are
so steep, that if you need a level place upon which to stage
your equipment and working area to enter, before you enter the
mine, you have to level off a place to do it.
When you level off that place, that creates spoil material
that has to be placed somewhere. The only place to put it in a
stable, safe fashion in those areas is in a stream bottom,
where you have waters of the United States, and usually it is
an intermittent or perennial stream. So, it impacts deep mining
both in terms of protection of the waters on the surface from
longwall mining underground, and it impacts the mine face-ups
on the surface for underground mining in Appalachia as well.
Mr. Lamborn. OK. Thank you.
Representative Huffman.
Mr. Huffman. Thank you, Mr. Chairman.
It is a lovely picture that we have in the background for
this conversation. I think it is especially lovely since there
is mountaintops in the background. That landscape certainly is
a beautiful thing to see in Wyoming.
I don't suppose we have any pictures of the mountaintops
that have been removed in Appalachia from mountaintop removal
mining. Did staff have anything like that we could put up?
Might be a little less pretty.
I enjoyed the picture of the stream that was restored, and
I thank you and I congratulate you for your stewardship award
on that.
Do we have any pictures of the thousands of miles of
Appalachian streams that don't exist anymore because excess
waste was dumped into them and they are gone forever? We have
any of those pictures that we could maybe put up while we have
this conversation?
I think it is important that no amount of stagecraft can
sort of change the subject from the absolute environmental
destruction that occurs when all streams are despoiled by the
improper disposal of this waste. And we, frankly, have lost a
lot of Appalachian stream, and that is not in dispute. It is a
matter of fact.
We have heard a lot of talk about how terrible and
destructive this new proposed Obama Administration rule would
be. There was talk about how it would be worse for the
environment. Do the witnesses agree that the new Obama
Administration rule would be worse for the environment than the
Bush rule? That was your testimony, right?
Mr. Lambert. No, sir, that wasn't my testimony. My
testimony was we don't know because we haven't seen, we haven't
been able to comment.
Mr. Huffman. Well, we did have testimony that the Obama
Administration rule would make it harder to mitigate and to
restore the environment. Anybody want to change that testimony,
because that is what was said a few moments ago.
Mr. Jones. No, sir. My testimony was that we wouldn't have
the opportunities to do the stream construction because we
wouldn't have the opportunities to----
Mr. Huffman. You were asked which rule would be better for
the environment. You were asked by my colleague from Ohio,
wouldn't the new Obama Administration rule be worse for the
environment than what you have now, and you agreed with that
proposition. You were asked, others were asked about how it
would help or hinder mitigation, environmental mitigation. The
testimony was that it would hinder.
There was also testimony about how this Obama
Administration rule would affect all mining in America. That
was your testimony, sir, correct, not just mountaintop removal
mining?
Mr. Clarke. That is correct.
Mr. Huffman. How many of you have seen the proposed Obama
Administration rule?
Mr. Lambert. Only the chapters that relate to us and those
chapters we were able to comment on. We haven't seen any
additional work that has been done by the internal staff since
the contractor was fired and the State cooperating agencies
were no longer a part of reviewing.
Mr. Huffman. And isn't it true that we don't have a
proposed Obama Administration rule at this point?
Mr. Lambert. We have the proposed rule that was leaked from
OSM.
Mr. Huffman. The proposed rule, it is a term of art. It has
specific legal meaning. There is no proposed rule, correct?
Mr. Lambert. Well, the term that OSM has been using,
especially when the chapters were leaked to us, was this is the
proposal that we plan to move forward with.
Mr. Huffman. All right. So, you agree with me, proposed
rule has specific meaning.
Mr. Lambert. Yes, sir.
Mr. Huffman. It is--it is----
Mr. Lambert. Yes, sir.
Mr. Huffman. It means something. You haven't seen the
proposed rule, right?
Mr. Lambert. We haven't seen the final proposed rule that
is supposed to be----
Mr. Huffman. And have any of the witnesses seen a proposed
rule?
Mr. Jones. No, sir, I have not seen a proposed rule.
Mr. Huffman. Thank you. Because I think that is an
important clarification before we do too much more of this
ready, shoot, aim lawmaking, talking about a proposed rule that
doesn't even exist.
And then I want to use the last bit of my time to revisit
this discussion about the Bush Administration rule being more
environmentally protective than the Reagan Administration rule,
because my understanding of the Reagan Administration rule, my
reading of it, is that it sort of has a presumption of
environmental harm, that the Stream Buffer Rule says that
unless there is a specific finding that going within the buffer
zone would not cause or contribute to the violation of water
quality standards or would not adversely affect water quantity
or other environmental resources, you can't do it. So this
presumption can only be overcome by a very specific agency
finding that there won't be these adverse impacts.
By comparison, the 2008 Bush rule substitutes that for a
rule that states you simply need to make a finding that
avoiding these disturbances is not reasonably possible.
Now, does anybody here believe that a finding of it is not
reasonably possible to avoid impacts is more environmentally
protective than a finding that there won't be any impacts? Is
that seriously the testimony here?
Mr. Clarke. Let me back up from what you are saying and
examine SMCRA when it was passed. When it was passed, section
515(b)(22) established performance standards for placement of
fill in streams, intermittent and perennial streams. It
couldn't have referred to anything else. So there were
performance standards established in the law when Congress
passed it to do what you are talking about, the 1983 rule
prohibiting.
The 1983 rule's requirements for a waiver cannot be met
where fill is placed, but the act that it is attempting to
implement provides performance standards for doing just that.
So the 1983 rule, if it was interpreted to prohibit mining
fills, would be inconsistent with the act passed by Congress
under which it was promulgated. So the reading of the 1983 rule
to prohibit fills has never been one that either OSM or the
States have made. Instead, it has been applied to mining areas
adjacent to streams, to stream crossings, et cetera.
And in that regard, the 2008 rule added new protections by
requiring minimization efforts and analysis of alternatives to
filling streams that did not exist under the previous rule.
Mr. Huffman. I am out of time, but I would just say, with
respect to that, that there was a 1999 district court ruling
that disagreed with your proposition there and that OSM, EPA,
and the Army Corps of Engineers all concurred with that ruling,
so we have a bit of a disagreement on that.
And I am out of time.
Mr. Lamborn. OK.
Representative Lummis.
Mrs. Lummis. Thank you, Mr. Chairman.
I would like to ask Mr. Jones, have you ever been to the
Powder River Basin?
Mr. Jones. Yes, ma'am, I have been there on----
Mrs. Lummis. Is that what it looks like?
Mr. Jones. Yes.
Mrs. Lummis. Is that stagecraft? That is what I want to
know. Is that stagecraft, or does that actually exist?
Mr. Jones. That is the way it looks in the Powder River
Basin where I was in Wyoming, yes.
Mrs. Lummis. May I ask the other slide be put up.
Now, is that stagecraft, or does that stream really exist?
Mr. Jones. That stream exists. In fact, we put together, we
were contacted by an environmental, I can't, I don't even know
how you describe it. It is a guy who goes around the country
and finds these neat little things that have been done
environmentally, and he contacted us and came out and did a
little 20-minute video of this site and in comparison to a
natural stream that is nearby, and----
Mrs. Lummis. I would like to ask--thank you. I would like
to ask the gentleman from Virginia and West Virginia, are these
types of scenes in existence, or is this stagecraft? Is this a
limited Disneyland-like staged example of reclamation?
Mr. Lambert. As Mr. Jones stated, that was the first
natural stream channel reconstruction in Virginia that was
permitted through our agency. Today, we have several streams
that have been restored that look similar to that stream.
Mrs. Lummis. May I ask the other witness, and I am sorry,
my eyesight has gone to heck. I am going to have a little LASIK
surgery over the August recess, but I can't even see your
nameplate anymore.
Mr. Clarke. Tom Clarke.
Mrs. Lummis. That is what happens when you spend too many
years in Congress.
Mr. Clarke. You are reading too much.
I am Tom Clarke from West Virginia. We have streams that
look like that, that have been mined and restored also.
Mrs. Lummis. OK. Are there streams in areas that are
disseminated, as the Ranking Member has said? Are there places
that are just ugly and disseminated and destroyed, honestly?
Mr. Clarke. Generally, not in the post-reclamation state.
Mrs. Lummis. Well, but are there places that have never, in
your State, that have never been reclaimed?
Mr. Clarke. There are still some areas that were mined
prior to 1977 that have not been reclaimed by the Abandoned
Mine Lands Program.
Mrs. Lummis. OK. So----
Mr. Clarke. The areas that are actively mined since are
subject to title V of SMCRA, which is what this rule would be
promulgated pursuant to.
Mrs. Lummis. OK. So SMCRA originally envisioned that those
areas that were blighted or improperly reclaimed or not
reclaimed prior to 1977, when SMCRA passed, would be reclaimed
using funding that was implemented through 5 cents per ton, as
I recall----
Mr. Clarke. That is correct.
Mrs. Lummis [continuing]. On coal in this county, and have
those moneys since 1977 been used to reclaim pre-SMCRA blighted
and abandoned coal mines?
Mr. Clarke. Yes, ma'am, they have. We have been working on
that continuously.
Mrs. Lummis. How far along are you?
Mr. Clarke. We have a separate office in our department
that runs the title IV program. I could give you a better
assessment if I were to go back and consult with those people.
Mrs. Lummis. Would I be able to, if I visited your State,
and you took me to a mine that was done pre-1977 versus post-
1977, do you think I might be able to tell the difference?
Mr. Clarke. For the pre-1977 mines, the ones that haven't
been reclaimed, but basically reclaim themselves through
volunteer vegetation----
Mrs. Lummis. But is it, what about the streambeds, though?
I mean, I am concerned because the gentleman says that these
streams don't exist anymore, and there is blight, and I mean, I
have driven through States in the East that have mountaintops
that have just been buzz cut, and they really do look bad. What
are we doing? My point is, what are we doing to fix that?
Mr. Clarke. Well, let me say that a very small percentage
of the mining operations in our State have received what is
called an AOC variance. An AOC variance, a variance from the
requirement of the law to restore approximate original contour
is granted where there is a commercial development, a
residential development. We have had them for roads, road
construction, things of that nature where there is an
improvement of the land.
Where there is no improvement of the land, there is no AOC
variance, they have to restore the approximate original contour
of the land. There has been the Appalachian regional
reforestation initiative, which has been targeted growing
hardwood forests comparable to what existed on the land before.
Mrs. Lummis. So, would you deny that the gentleman was
correct, that once upon a time in this country, mining was not
properly reclaimed?
Mr. Clarke. That is correct.
Mrs. Lummis. How long has it been since that has been the
case, since we are not doing good mine reclamation?
Mr. Clarke. We changed that in 1977 with the adoption of
SMCRA.
Mrs. Lummis. I thank the gentleman.
I yield back.
Mr. Lamborn. Thank you.
Representative Cramer.
Mr. Cramer. Thank you, Mr. Chairman, Ranking Member.
And I thank the panelists. I apologize. I haven't been here
much this morning, but I have been monitoring it very closely.
And I had to run up here when I saw that pretty picture of
North Dakota disguised as Wyoming. It looks very much like
about 100,000 acres of my primitive land in North Dakota.
And I just have to say that watching this process for the
last 8 years, as a coal mining and reclamation regulator in
North Dakota, now as a Member of Congress, I think in many
respects we debate the rule or the proposed rule or the perhaps
not proposed rule as though the intention is really to have a
certain rule. As we know, with this Administration, no rule is
certain until it meets their demands, and frankly, in the
absence of that, uncertainty is just as good.
And therein, Mr. Chairman, I think is the problem, that the
uncertainty that is created by leaked proposed rules has the
same impact as the worst-case scenario that they aspire to. And
I think that is why it is so important for this Committee and
others to have these oversight hearings to bring people from
the States in to discuss the job killing of all of this.
And so I applaud all of you for being here.
Let's not forget that while there may not be a proposed
rule in front of anybody yet, whether there ever will be or
not, I don't know, but there is a goal that has been stated. It
is called skyrocketing electricity prices and bankrupt coal
companies. That has been a stated goal. And so I am very proud,
when I look at these pictures, I see lots of similarities to
reclaimed land in North Dakota. And frankly, in North Dakota,
we passed our reclamation laws in 1975, pre-SMCRA, to protect
our streams.
And one of the things that we found the most offensive is
that the one size fits all. It just doesn't work and it holds
up the progress, the proud progress that we have made in
protecting our own environment and our own landscape. And I
often say to people, one of my favorite things when people
visit my State is to take them to a power plant at the mine
mouth, go on the roof and then challenge them to point out
reclaimed land and compare it to undisturbed land, point out
the two for me, if you can, and no one has ever been able to
tell the difference. And then we go out and walk the prairie
and we find the streams, and oh, the beautiful fishing holes
that actually weren't there, God didn't even put them there,
they were actually created to enhance the environmental
opportunities and recreational opportunities.
And one of the things I am so proud of is the relationship
between our coal companies, our regulators, and our game and
fish officials, and our State park officials to not just bring
the land back to pre-mining levels but to actually improve it,
make it more productive for the farmer, more productive for the
conservationists and tell a great story. And that is lost, I
think, when we have to all sit around and wonder what the
Federal Government is going to impose upon us when we are doing
it so well at the State level.
So, Mr. Chairman, thank you for not only this hearing but
thank you for the bill and, to my colleague, Mr. Johnson, for
introducing this bill.
And I appreciate you all being here today to help us better
understand it.
I yield back.
Mr. Lamborn. OK. That concludes the witness section of our
testimony and our hearing today.
Thank you all for being here. Thank you for putting up with
us as we went back and forth to the House Floor. Members of the
Committee may have additional questions for the record, and I
would ask that you respond to those in writing.
Finally, I ask unanimous consent to enter into the record
comments submitted for this hearing from the Interstate Mining
Compact Commission and from the Office of Surface Mining
Reclamation and Enforcement.
Hearing no objection, so ordered.
[The information follows:]
Prepared Statement of the Office of Surface Mining Reclamation and
Enforcement, U.S. Department of the Interior
h.r. 2824--preventing government waste and protecting coal mining jobs
in america
Mr. Chairman and members of the Subcommittee, thank you for the
opportunity to provide this statement for the record regarding H.R.
2824, which would direct State surface coal mining regulatory agencies
to implement the Office of Surface Mining Reclamation and Enforcement's
(OSM) 2008 Stream Buffer Zone Rule (2008 SBZ Rule). OSM opposes H.R.
2824; its enactment would force States to spend limited resources to
implement an outdated rule with significant defects. OSM would also
like to take this opportunity to provide the Subcommittee with an
update on the 2008 SBZ Rule litigation and the development of OSM's
Stream Protection Rule.
Congress gave OSM its regulatory authority and responsibilities in
1977, when it passed the Surface Mining Control and Reclamation Act
(SMCRA). At that time, Congress mandated that OSM strike a balance
between protecting the environment and providing for the Nation's
energy needs. Specifically, Congress established the bureau to carry
out two basic functions: First, OSM is responsible for ensuring that
coal mines operate in a manner that protects both people and the
environment, and that the land is restored and is as productive after
mining as it was before mining. Second, OSM is responsible for
establishing and administering an Abandoned Mine Land program to
address hazards to people and the environment that were created during
more than 200 years of inadequately regulated coal mining that occurred
before SMCRA's enactment.
As Interior Secretary Sally Jewell has stated, our commitment to
the President's ``all of the above'' energy strategy will enable us to
continue with the safe and environmentally responsible expansion and
diversification of our Nation's energy production, further reducing our
reliance on foreign oil, and protecting our land and water at the same
time. Protecting people, land, water, and the environment and promoting
responsible coal mining are compatible goals. We can have both. The
``all of the above'' energy strategy is working. Activity in the Gulf
of Mexico exceeds levels before the Deepwater Horizon spill, within an
improved safety and environmental regulatory framework. Similarly,
onshore oil production from Federal lands is at its highest level in
over a decade.
Along with responsible oil and gas development and the growth of
clean, renewable energy, the production of coal is an important
component of our Nation's energy portfolio. The responsible development
of this important resource is a key part of America's energy and
economic security. Coal will remain an important part of our energy mix
for years to come. We are committed to safe, responsible coal
production and the jobs it supports.
Although OSM is not involved in coal leasing, which is conducted by
the Bureau of Land Management for Federal lands, the Administration is
also making more coal available, with the number of producing acres
rising 4 percent from fiscal year 2009 to fiscal year 2012. In fact, in
fiscal year 2012, the Bureau of Land Management leased more Federal
coal than at any other time since fiscal year 2003.
Under SMCRA, most coal-producing States have primary
responsibility, also known as ``primacy'', to protect people and the
environment from the adverse effects of coal mining. States with
primacy have demonstrated that their State regulatory programs satisfy
the minimum statutory and regulatory Federal standards established in
SMCRA and OSM's regulations. OSM provides assistance to, and oversight
of, primacy States to help ensure proper regulation of coal mining and
the protection of people and the environment. We also continue to
ensure the reclamation of high-priority abandoned mine sites, and are
reducing the number of remaining dangerous abandoned mine sites
nationwide.
In December 2008, OSM published a final rule that modified the
circumstances under which mining can occur in or near streams. The 2008
SBZ Rule has been challenged by 10 organizations in 2 separate
complaints filed in Federal District Court for alleged legal
deficiencies. The Department of the Interior recognized error in the
2008 SBZ rulemaking process. In a motion filed with the Court in one of
the cases on July 17, 2013, the Government admitted error in one of the
pending legal challenges to the 2008 SBZ Rule. That error is believed
to be a flaw that could result in invalidation of the 2008 SBZ Rule. In
that case, the Government has asked that the 2008 SBZ Rule be vacated.
While the litigation has been pending, the Department of the
Interior has identified additional considerations that the 2008 SBZ
Rule did not address. As a threshold matter, there have been
significant advances in science and technology since the promulgation
of a 1983 rule, which preceded the 2008 rule. Those advances were not
addressed in the 2008 SBZ Rule. The 2008 SBZ Rule, now almost 5 years
old, did not incorporate the most modern technology and science that
were available at that time, nor does the rule reflect the scientific
advances that have occurred since the rule was promulgated. As we
proceed with development of the Stream Protection Rule, we are
combining on-the-ground experience with peer-reviewed scientific
literature to modernize our rules. We will use the best available
technology and science to improve mining practices in order to minimize
and mitigate environmental damage from coal mining. Our proposed
revisions will provide solid benchmarks for companies to meet, and will
be based on the latest accepted scientific methods. Clear and uniform
standards will provide greater predictability and certainty to the
mining industry, and can better protect affected communities.
A revised rule that more effectively incorporates modem science
will enable the coal industry to do a better job of reclaiming the land
and restoring natural resources, and in many cases, will lead to that
work being done in a more economic and efficient manner. These goals
are fully consistent with Congress' mandate and OSM's mission, while
also retaining much-needed, well-paying jobs, and generating revenue in
the Nation's coal-producing regions.
OSM will consider the extensive public and agency comments it has
received to date on the Stream Protection Rule, and on the comments it
will receive when OSM publishes a proposed rule. Further, it will
consider the benefits, as well as the costs, of the agency's regulatory
alternatives. Development of the proposed rule language and the Draft
environmental impact statement (EIS) is an iterative and interactive
process; we are developing each in concert with the other. The cost/
benefit analysis of potential rule changes helps inform agency
decisions regarding what should be included in the proposed rule. OSM
plans to publish a proposed rule and associated Draft EIS in 2014.
As a result of our extensive outreach efforts, we have already
received significant input from the public, States, and other Federal
agencies on issues that we will consider in drafting the proposed rule,
including more than 32,000 comments in 2009, and more than 20,000 after
we held public scoping meetings in 2010. Consistent with SMCRA, the
National Environmental Policy Act, the Administrative Procedure Act,
and other applicable laws, we will ask interested stakeholders--
Congress, State agencies, industry, environmental organizations, and
members of the public--to comment on the proposed rule and Draft EIS
once those documents have been published. We look forward to additional
public review and comment on the proposed rule and Draft EIS after they
are published.
For the reasons stated we oppose H.R. 2824. We believe the
development of the Stream Protection Rulemaking is the approach that
will best result in regulatory improvements that will more completely
implement the law, make use of the best available science and
technology, provide for a more sustainable coal industry and its jobs,
better protect streams nationwide, and provide greater clarity and
certainty to the mining industry and affected communities.
OSM looks forward to working with you to ensure that we protect the
Nation's land and water while meeting its energy needs.
Mr. Lamborn. If there is no further business, without
objection, the Committee stands adjourned.
[Whereupon, at 11:40 a.m., the Subcommittee was adjourned.]