[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
OBAMA ADMINISTRATION'S WAR ON COAL: THE RECENT REPORT BY THE OFFICE OF
THE INSPECTOR GENERAL
=======================================================================
OVERSIGHT HEARING
before the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
Thursday, January 9, 2014
__________
Serial No. 113-56
__________
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
Markwayne Mullin, OK Joe Garcia, FL
Steve Daines, MT Matt Cartwright, PA
Kevin Cramer, ND Katherine M. Clark, MA
Doug LaMalfa, CA
Jason T. Smith, MO
Vance M. McAllister, LA
Bradley Byrne, AL
Todd Young, Chief of Staff
Lisa Pittman, Chief Legislative Counsel
Penny Dodge, Democratic Staff Director
David Watkins, Democratic Chief Counsel
------
CONTENTS
----------
Page
Hearing held on Thursday, January 9, 2014........................ 1
Statement of Members:
DeFazio, Hon. Peter A., a Representative in Congress from the
State of Oregon............................................ 4
Prepared statement of.................................... 5
Hastings, Hon. Doc, a Representative in Congress from the
State of Washington........................................ 1
Prepared statement of.................................... 3
Statement of Witnesses:
Knox, Robert A., Assistant Inspector General for
Investigations, Office of Inspector General, U.S.
Department of the Interior................................. 7
Prepared statement of.................................... 8
Additional Materials Submitted for the Record:
Investigative Report of OSM Environmental Review, December
20, 2013, Office of Inspector General, U.S. Department of
the Interior has been retained in the Committee's official
files.
.................................................................
OVERSIGHT HEARING ON OBAMA ADMINISTRATION'S WAR ON COAL: THE RECENT
REPORT BY THE OFFICE OF THE INSPECTOR GENERAL
----------
Thursday, January 9, 2014
U.S. House of Representatives
Committee on Natural Resources
Washington, DC
----------
The committee met, pursuant to notice, at 10:07 a.m., in
room 1324, Longworth House Office Building, Hon. Doc Hastings
[Chairman of the Committee] presiding.
Present: Representatives Hastings, Gohmert, Bishop,
Lamborn, Wittman, Broun, Fleming, Thompson, Lummis, Duncan,
Tipton, Labrador, Flores, Mullin, Daines, Cramer, LaMalfa,
Smith, McAllister, Byrne, DeFazio, Holt, Grijalva, Cardenas,
Horsford, Shea-Porter, Lowenthal, and Garcia.
The Chairman. The committee will come to order. The Chair
notes the presence of a quorum, and we have far exceeded that;
I thank Members for being here early.
The Committee on Natural Resources is meeting today to hear
testimony on an oversight hearing on ``The Obama
Administration's War on Coal: the Recent Report by the Office
of Inspector General.'' Under Committee Rule 4(f), opening
statements are limited to the Chairman and the Ranking Member
of the Committee. However, I ask unanimous consent that any
Member that wishes to have a statement in the record have it to
the Committee before the close of business, and, without
objection, so ordered.
Also, before I recognize myself for my opening statement, I
want to welcome our newest member to the committee. Mr. Bradley
Byrne was just sworn in yesterday and represents the 1st
district in Alabama. I think he will bring more expertise, that
is, on an issue that we spend a great deal of time on, the
Gulf, with fishing and oil and gas issues. He has experience in
the legislature in the past.
So, Mr. Byrne, welcome to the committee. We look forward to
your input on the issues that we will take up.
Mr. Byrne. Thank you, Mr. Chairman.
The Chairman. I will now recognize myself for 5 minutes for
my opening statement.
STATEMENT OF THE HON. DOC HASTINGS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WASHINGTON
The Chairman. We are here today to discuss the U.S.
Department of the Interior, Office of Inspector General's new
report on the Office of Surface Mining Reclamation and
Enforcement's rewrite of the 2008 Stream Buffer Zone Rule.
By now, everyone on this committee is very familiar with
this rewrite, and it has been the subject of committee
oversight and investigation for well over 2 years. In short,
the administration has spent millions of dollars in secret,
working on a new regulation that will put thousands of
Americans out of work and will increase electricity costs. It
is one of the most covert, but destructive, tactics in
President Obama's war on coal.
Within days of taking office, the Obama administration
discarded a rule that underwent 5 years of environmental review
and public comment, entered into a secret settlement agreement
with environmental groups to rewrite the rule in an
unachievable timeframe, spent millions of taxpayer dollars and
hired contractors to work on the rewrite, then fired the
contractors when it was publicly leaked that the revised
regulation would cost 7,000 jobs, and attempted to manipulate
data to conceal the true economic impact.
In September 2012, the committee released a report based on
our investigation that included internal documents and audio
recordings obtained by the committee. The report exposed gross
mismanagement of the rulemaking process, potential political
interference, and widespread economic harm that the proposed
regulation would impose.
Nearly a year and a half later, the IG has finally released
their report. It includes similar findings. For example:
according to the report, and I quote, ``OSM employees involved
in the project asked contractors to change a variable in the
calculations.'' And further, ``they knew that this would lower
the potential job-loss numbers.'' It also states that, and I
quote again, ``the contractors and career OSM employees
believed this change would produce a less accurate number.''
It is clear, based on the IG report and our findings, that
the Obama administration wanted to hide the real job-loss
numbers. It was only after the job numbers were publicly
revealed by the Associated Press that OSM asked the contractors
to change the baseline number. The decision to change the
baseline numbers appears to be politically motivated. It
appears the Obama administration cared more about avoiding bad
PR than presenting accurate job numbers.
The IG report also points out that despite OSM Director
Pizarchik's testimony to this committee that the 7,000 job
figure was just, as he said, ``a placeholder'', that, in fact,
the numbers that went into that figure were, and I quote from
the report, ``not fabricated.'' This report directly
contradicts the testimony of Director Pizarchik.
This IG report is further evidence of a grossly mismanaged
rulemaking process that has gone on for 5 years and has cost
over $9 million of taxpayer dollars, with absolutely nothing to
show for it.
I must also, again, express my concern that Deputy
Inspector General Mary Kendall is withholding information from
Congress when the IG is charged with being an independent
watchdog for Congress. The IG is refusing to provide Congress
with an unredacted copy of this report, based on instructions
by the Department of the Interior.
For example, large parts of a section of the report
entitled, ``Issues with the New Contract'' have been blacked
out. I have been vocal about the mismanagement of the IG's
office under the leadership of Ms. Kendall. As I said before,
we need a permanent IG.
The redactions are also another example of the lack of
transparency that we continue to see from this administration.
OSM has refused to say where they are in the rulemaking
process, or even when a draft rule on this will be released.
And now the Department is preventing us from even looking at a
section of this report that highlights likely problems with the
new contracts and ongoing efforts to obscure job-loss numbers.
This is why the committee has passed legislation to save
taxpayer dollars and American jobs by stopping the Obama
administration from continuing its reckless and unnecessary
rulemaking process. This legislation is needed now, more than
ever, and it is my hope that the House will advance this
legislation so that we can finally put an end to this wasteful
and destructive rewrite.
At the end of the day, this issue is about protecting the
jobs of thousands of Americans, and ensuring that families have
access to affordable electricity. We must stand up and stop the
Obama administration's attack on American jobs and American-
made energy.
[The prepared statement of Mr. Hastings follows:]
Prepared Statement of the Hon. Doc Hastings, Chairman, Committee on
Natural Resources
We're here today to discuss the U.S. Department of the Interior
Office of Inspector General's new report on the Office of Surface
Mining Reclamation and Enforcement's (OSM) rewrite of the 2008 Stream
Buffer Zone Rule.
By now, everyone on this committee is very familiar with this
rewrite, and it has been the subject of committee oversight and
investigation for well over 2 years. In short, the administration has
spent millions of dollars, in secret, working on a new regulation that
will put thousands of Americans out of work and increase electricity
costs. It is one of the most covert, but destructive tactics in
President Obama's war on coal.
Within days of taking office, the Obama administration discarded a
rule that underwent 5 years of environmental review and public comment;
entered into a secret settlement agreement with environmental groups to
rewrite the rule in an unachievable timeframe; spent millions of
taxpayer dollars and hired contractors to work on the rewrite; fired
the contractors when it was publicly leaked that the revised regulation
would cost 7,000 jobs; and attempted to manipulate data to conceal the
true economic impact.
In September of 2012, the committee released a report based on our
investigation that included internal documents and audio recordings
obtained by the committee. The report exposed gross mismanagement of
the rulemaking process, potential political interference, and
widespread economic harm the proposed regulation would cause.
Nearly a year and a half later, the IG finally released their
report. It includes similar findings. For example: according to the
report, ``OSM employees involved in the project asked contractors to
change a variable in the calculations'' and ``they knew that this would
lower the potential job-loss numbers.'' It also states that ``the
contractors and career-OSM employees believed this change would produce
a less-accurate number.''
It is clear, based on the IG report and our findings, that the
Obama administration wanted to hide the real job-loss numbers. It was
only after the job numbers were publicly revealed by the Associated
Press, that OSM asked the contractors to change the baseline number.
The decision to change the baseline numbers appears to be politically
motivated. It appears the Obama administration cared more about
avoiding bad PR than presenting accurate job numbers.
The IG report also points out that despite OSM Director Pizarchik's
testimony to this committee that the 7,000 job figure was just a
``placeholder,'' that the numbers that went into that figure were ``not
fabricated.'' This report directly contradicts the testimony of
Director Pizarchik.
This IG report is further evidence of a grossly mismanaged
rulemaking process that has gone on for 5 years and has cost over $9
million taxpayer dollars, with absolutely nothing to show for it.
I also must again express my concern that Deputy Inspector General
Mary Kendall is withholding information from Congress when the IG is
charged with being an independent watchdog for Congress. The IG is
refusing to provide Congress with an un-redacted copy of this report
based on directions by the Department of the Interior.
For example, large parts of a section of the report entitled
``Issues with the New Contract,'' have been blacked out. I have been
vocal about the mismanagement of the IG's office under the leadership
of Ms. Kendall. As I've said before, we need a permanent IG.
The redactions are also another example of the lack of transparency
that we continue to see from this administration. OSM has refused to
say where they are in the rulemaking process or even when a draft rule
will be released. And now the Department is preventing us from even
looking at a section of this report that highlights likely problems
with the new contracts and on-going efforts to obscure job loss
numbers.
This is why the committee has passed legislation to save taxpayer
dollars and American jobs by stopping the Obama administration from
continuing with its reckless and unnecessary rulemaking process. This
legislation is needed now more than ever. It is my hope that the House
will advance this legislation so we can finally put an end to this
wasteful and destructive rewrite.
At the end of the day, this issue is about protecting the jobs of
thousands of Americans and ensuring that families have access to
affordable electricity. We must stand up and stop the Obama
administration's attack on American jobs and American-made energy.
______
The Chairman. And, with that, I will recognize the
distinguished Ranking Member for his opening statement.
STATEMENT OF THE HON. PETER A. DeFAZIO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF OREGON
Mr. DeFazio. Thank you, Mr. Chairman. I guess I am going to
say that I feel that there are--you know, we are the Committee
of Natural Resources. And there are some very real natural
resource issues involved in this investigation. Unfortunately,
we are focused on what appears to me the hiring of an
incompetent contractor, tremendous confusion about what the
baseline should be on a rule that hasn't been implemented, and
what that impact would have on the unknown rule, unpublished,
and unseen, that is being developed by the Obama administration
to revise the 2008 rule, which revised the Ronald Reagan rule.
To tell the truth, and I have asked staff, and they can't
figure out either. I don't know, I can't even figure out how
using the 2008 rule, which has been litigated by environmental
groups for loosening the regulations of the Reagan rule, how
using that as a baseline would show, you know, that the job
losses would be mitigated. It would seem to me it would show
higher job losses, because if you regulate less, and you
destroy the environment more, and produce things more cheaply,
you probably can make a case that more people would be
employed.
And then, you know, if we went back to the Reagan-era rule,
which had more restrictions to protect water quality, that
would seem to me, if you use that as a baseline, you would have
a different result. So I don't even know what the ``there'' is,
or what we are trying to get to. I know you have a patented war
on coal, war on coal, war on coal.
You know, I sit on Aviation, and if we were investigating
the Hindenburg disaster, it would be the Obama administration's
war on blimps and against hydrogen. So I would like to get to
the real issue here, which is if you blow the top off a
mountain, and you bulldoze it over into a valley which has a
creek or a river in the bottom of it, and you bury the creek,
but water still flows and all the leachate comes out of there,
with these natural hazardous materials that have been exposed
by, and unearthed by, the explosions and the bulldozing over
into the creek, and the leachate goes downstream with horribly
polluted water, that there are health impacts, there are
environmental impacts.
I would really like to hold a hearing on that issue, and
why the Obama administration hasn't been able to come up with
an adequate revision to the rule. Maybe we should just go back
to the Ronald Reagan rule. Maybe that would be a better way to
go, I don't know. But it seems to me that is where this
committee should be focusing its energies.
I mean we are focusing--it is just like after the Gulf
Horizon explosion. I remember I sat here for hours and hours
and hours over the change in one paragraph and the meaning of
one word which didn't have an impact, because they changed from
a date certain to something that actually would allow you to go
back to leasing more quickly. I brought the dictionary, I read
the dictionary, I said, ``I don't even know why we are here.''
And that is the question today. Why are we here on this?
There was, I believe, incompetence in the contractor. I
believe whoever was responsible for hiring an incompetent
contractor should be disciplined or removed or whatever. We
should be looking at the processes that are used to do that. I
would like to know why there isn't a new rule, and when are we
going to see a new rule, and what might the new rule encompass,
and what protections might it provide for water quality and the
population, you know, downstream in that State.
But none of that is before us today. We are going to go
endlessly thrashing around over what is the difference between
the 2003 rule and the 2008 rule and the proposed rule, which we
haven't seen, which we don't know what it is, and what the
potential job impacts might be, because there was one story,
you know, that was written that purports to have calculated
some job losses.
That is why we are here. And I have to say I think it is a
waste of the taxpayers' money, and it is not the proper focus
for this committee.
Thank you, Mr. Chairman.
[The prepared statement of Mr. DeFazio follows:]
Prepared Statement of Hon. Peter A. DeFazio, Ranking Member, Committee
on Natural Resources
Thank you, Mr. Chairman, and thank you, Mr. Knox, for being here
today and for your office's investigation and report.
When it comes to oversight and investigations, the Majority of this
Committee consistently misses the point.
In the aftermath of the Deepwater Horizon disaster, they did not
call for an investigation into the causes of the explosion or the
environmental impacts; instead the Majority spent years investigating
the editing of one paragraph of one report on the disaster.
Today is no different. As the practice of mountaintop removal
mining buries streams and poisons drinking water, the Majority has
spent years investigating an unfinished Environmental Impact Statement
for a rule that has still yet to be proposed.
The purpose of these hearings is not to gather information on the
real economic or environmental challenges we face; these hearings are
nothing more than political attacks on the Administration.
If the Majority was tasked with investigating the Hindenburg
disaster, the title of the hearing would be: ``The Obama
Administration's War on Blimps.''
It is Mr. Knox's job to make sure the Interior Department meets the
highest ethical standards; it is the job of the Congress to manage this
Nation's natural resources responsibly and protect the American people
from harm. Mr. Knox is doing his job, we should start doing ours.
According to the Natural Resources Defense Council, more than 500
mountains, encompassing more than 1 million acres, have already been
leveled by mountaintop removal mining. As part of this process, it is
estimated that 2,500 tons of fuel-oil explosives are used a day,
creating hundreds of millions of cubic yards of waste--and the
regulations currently in place are plainly inadequate to protect
families living near these mines.
The devastation inflicted by this practice on communities and the
environment is truly scandalous; in contrast, Mr. Knox's report found
no evidence of political interference in this rulemaking, no evidence
to support the questionable job-loss figures used by the contractor and
PLENTY of evidence that the contractor was simply not up to the job.
It is imperative that we get new regulations in place to protect
the families of Appalachia, but the Interior Department hasn't even
issued a proposed rule yet. Once that happens, Members of Congress,
industry, and the American people will have ample opportunity to
evaluate the proposal, provide comments and debate its merits--before a
final rule is issued.
The investigation by this Committee is a politically-motivated
distraction and should be abandoned. It's time to stop the sham
hearings and massive document demands and start getting serious about
protecting the American people from devastating mountaintop removal
mining.
______
The Chairman. I thank the gentleman for his statement. I
just remind him that we solved the blimp problem earlier this
year when we passed the helium legislation on a bipartisan
basis.
[Laughter.]
The Chairman. So I just wanted to make that point. There is
progress here.
I want to welcome our witness today. We have with us Mr.
Robert A. Knox, who is the Assistant Inspector General for
Investigations of the Office of Inspector General within the
U.S. Department of the Interior.
And, Mr. Knox, thank you very much for being here. Let me
explain how that timing light works. Your full statement will
be included in the record. However, if you could keep your oral
remarks within the 5 minutes, and the way that works, when the
green light is on you are doing very well. When the yellow
light comes on, it means you have a minute to go. And, just
like when you are driving, when the red light comes on, it
means you are supposed to stop. But at least you can finish
your thought. But if you could keep your oral remarks within
that timeframe, we would appreciate that. And, Mr. Knox, you
are recognized for your testimony.
STATEMENT OF ROBERT A. KNOX, ASSISTANT INSPECTOR GENERAL FOR
INVESTIGATIONS, OFFICE OF INSPECTOR GENERAL, U.S. DEPARTMENT OF
THE INTERIOR
Mr. Knox. Good morning, Chairman Hastings, Ranking Member
DeFazio, and members of the committee. Thank you for the
opportunity to testify today about our Office of Inspector
General investigation into allegations that the Office of
Surface Mining, or OSM, pressured contractors working on an
Environmental Impact Statement, or an EIS, and a Regulatory
Impact Analysis, or RIA, to lower their estimate of potential
job losses associated with a proposed rule to protect streams
located near coal mines known as the Stream Protection Rule,
and that OSM improperly ended the contract when the contractors
refused.
We also examined the process that led to the calculation of
a figure leaked to the media before these allegations surfaced,
showing that some 7,000 jobs would be lost if the new rule were
implemented.
If adopted, the proposed Stream Protection Rule would place
more requirements on coal mining companies to protect streams
near mine sites from the effects of mining on the environment.
In 2010, OSM contracted engineering and environmental firms to
work on the EIS and RIA which examine the environmental
benefits of the proposed rule, as well as potential associated
economic effects, including cost to the coal-mining industry
and potential job losses.
In developing an RIA, an agency must establish a baseline,
or reference, for comparing the new rule and determining the
associated costs. To establish this baseline for the Stream
Protection Rule, OSM and its contractors needed to look at the
latest coal production data, as well as determine the rules and
regulations that were in place and being enforced at the time.
In this case, there were two versions of a regulation, the
Stream Buffer Zone Rule, that affected the baseline: one
promulgated in 1983 and one promulgated in 2008. The 2008 rule
was intended to replace the 1983 rule. But as soon as it was
issued, the 2008 rule was challenged in court and OSM never
directed the States to adhere to it in their mining programs.
We found that OSM initially directed contractors to use the
1983 rule to estimate coal production losses and job losses
associated with the Stream Protection Rule. In 2011, after the
contractors estimated that there would be high cost to the
industry and significant job losses, OSM told the contractors
that the 2008 rule should be applied in making the
calculations. The OSM employees involved said they understood
that this would lower the potential job-loss numbers.
The Office of Management and Budget, which examines these
economic reviews, originally approved the application of the
1983 rule, but subsequently told us that using either the 1983
or the 2008 rule was acceptable. Clearly, however, the
direction given to the contractor was not consistent, and, in
fact, there was even disagreement within OSM about which rule
to apply in the baseline analysis.
While we found that OSM only began to seriously consider
terminating the EIS contract after the job-loss numbers were
leaked, interviews and internal communications revealed that
OSM's dissatisfaction with the contractor's work product and
overall performance was longstanding. Finally, rather than
terminate the contract, OSM simply chose not to renew it.
While determining the accuracy of the 7,000 job-loss
estimate in the draft EIS was not within the scope of our
investigation, we did examine assertions that the data used to
generate that figure was made up, and the process was flawed.
The OSM Director testified before Congress that the numbers
that went into the figure were merely placeholders, and were
fabricated.
The subcontractor told us that he developed the numbers
based on his review of historic mining data, his knowledge of
mining regions, and what effects the proposed rule would have.
Career OSM employees, however, questioned certain aspects of
the contractor's methods, and the contractors themselves
acknowledged that the project's rushed schedule restricted them
from performing the full analysis they would have preferred.
In conclusion, our investigation revealed a poorly managed
process that resulted in over $3.7 million in contract costs,
over a year of effort, and no final EIS or RIA. The Department
has advised us that it has taken action to correct the
management of developing another EIS or RIA to include
retaining a more technically capable contractor, forming a more
robust project oversight team, and ensuring closer involvement
of OSM senior leadership.
This concludes my testimony today. I would be happy to
answer any questions members of the committee may have.
[The prepared statement of Mr. Knox follows:]
Prepared Statement of Robert A. Knox, Assistant Inspector General for
Investigations for the Office of Inspector General, U.S. Department of
the Interior
Chairman Hastings, Ranking Member DeFazio, and members of the
committee, thank you for the opportunity to testify today about our
Office of Inspector General investigation into allegations that the
Office of Surface Mining (OSM) pressured contractors working on an
environmental impact statement (EIS) and a regulatory impact analysis
(RIA) to lower their estimate of potential job losses associated with a
proposed rule to protect streams located near coal mines (Stream
Protection Rule), and that OSM improperly ended the contract when the
contractors refused. We also examined the process that led to the
calculation of a figure, leaked to the media before these allegations
surfaced, showing that some 7,000 jobs would be lost if the new rule
were implemented.
If adopted, the proposed Stream Protection Rule would place more
requirements on coal mining companies to protect streams near mine
sites from the effects of mining on the environment. In 2010, OSM
contracted engineering and environmental firms to work on the EIS and
RIA, which examined the environmental benefits of the proposed rule as
well as potential socioeconomic effects, including costs to the coal
mining industry and potential job losses.
In developing an RIA, an agency must establish a ``baseline,'' or
reference, for comparing the new rule and determining the associated
costs. To establish this baseline for the Stream Protection Rule, OSM
and its contractors needed to look at the latest coal production data,
as well as determine the rules and regulations that were in place and
being enforced at the time. In this case, there were two versions of a
regulation--the Stream Buffer Zone rule--that affected the baseline:
one promulgated in 1983 and one promulgated in 2008. The 2008 rule was
intended to replace the 1983 rule, but as soon as it was issued, the
2008 rule was challenged in court and OSM never directed the States to
adhere to it in their mining programs.
We found that OSM initially directed contractors to use the 1983
rule to estimate coal production losses and job losses associated with
the Stream Protection Rule. In 2011, after the contractors estimated
that there would be high costs to the industry and significant job
losses, OSM told the contractors that the 2008 rule should be applied
in making the calculations. The OSM employees involved said they
understood that this would lower the potential job-loss numbers. The
Office of Management and Budget, which examines these economic reviews,
originally approved the application of the 1983 rule, but subsequently
told us that using either the 1983 or the 2008 rules was acceptable.
Clearly, however, the direction given to the contractor was not
consistent, and, in fact, there was even disagreement within OSM about
which rule to apply in the baseline analysis. While we found that OSM
only began to seriously consider terminating the EIS contract after the
job-loss numbers were leaked, interviews and internal communications
revealed that OSM's dissatisfaction with the contractors' work product
and overall performance was longstanding. Finally, rather than
terminate the contract, OSM chose simply not to renew it.
While determining the accuracy of the 7,000 job loss estimate in
the draft EIS was not within the scope of our investigation, we did
examine assertions that the data used to generate that figure was made-
up and that the process was flawed. The OSM Director testified before
Congress that the numbers that went into that figure were mere
``placeholders'' and were ``fabricated.'' The subcontractor stated that
he developed the numbers based on his review of historic mining data,
his knowledge of mining regions, and what effects the proposed rule
would have. Career OSM employees, however, questioned certain aspects
of the contractors' methods and the contractors themselves acknowledged
the project's rushed schedule restricted them from performing the full
analysis they would have preferred.
In conclusion, our investigation revealed a poorly managed process
that resulted in over $3.7 million in contract costs, over a year of
effort, and no final EIS/RIA. The Department has advised us that it has
taken action to correct the management of developing another EIS/RIA,
to include retaining a more technically capable contractor, forming a
more robust project oversight team, and ensuring closer involvement of
OSM senior leadership.
This concludes my testimony today. I would be happy to answer any
questions members of the committee may have.
______
The Chairman. Thank you very much, Mr. Knox, for your
testimony. I will recognize myself; I have a few questions that
I want to ask you, and then we will allow Members to have their
questions.
I just want to say again, to remind everyone here on the
committee, that in the last Congress, that Deputy Inspector
General Kendall failed to comply with the congressional
subpoena for documents, because the Department told her not to
provide us with those documents. I dare say that we are seeing
deja vu all over again in this regard.
Mr. Knox, the committee requested a complete and unredacted
copy of the IG's report, along with the attachments, interview
notes, transcripts, and emails referenced in the report.
Instead, the IG has provided only a redacted copy, and none of
the interview notes, transcripts, or emails. Is that correct?
Mr. Knox. Mr. Chairman, my understanding is that was your
request.
The Chairman. Our understanding is that the Department has
instructed your office not to provide a complete report and
supporting documents, because it relates to the ongoing
rulemaking effort. Is that correct?
Mr. Knox. Mr. Chairman, no, I would say that's not correct.
They haven't instructed us to refrain from releasing anything
to this committee.
They have asserted a privilege, and that is with respect to
documents and information related to the ongoing rulemaking on
the Stream Protection Rule. Their assertion to this information
is pre-decisional, and, therefore, privileged. The only
information that was redacted by our office pertains to the
ongoing rulemaking.
The Chairman. Well, when you talk about privilege, has the
President asserted executive privilege in this case?
Mr. Knox. Mr. Chairman, not to my knowledge.
The Chairman. So the issue here is because they are making
rules, that we should not get access to that.
Let me tell you the problem I have with that. The problem I
have with that is the 2008 rule was promulgated in August of
2008, and in early spring, the new administration came in, they
essentially negated that rule, which was hardly in effect.
Now, my first question to OSM is, ``Why did you negate the
rule,'' which, of course, they have never told us why. And so,
to me, there is a direct connection, as we go through, as they
are stumbling through this whole process, if they are having
problems, in other words, with initial contractors, and then in
the redacted report, which we should put up, by the way, let's
put up the redacted report, which is under the title of, where
is that? ``Issues with the New Contract,'' that is what is
redacted.
Now, if the issue and the problem we are having here with
drafting a new rule is with the contractors, and they fired the
contractors, and now they have new contractors, and your report
is issued to us that you are having problems with that,
shouldn't we know that?
And let me ask you this way. What are the problems with the
new contractors?
Mr. Knox. Mr. Chairman, we are not, the OIG that is, is not
asserting a privilege in this situation. We don't feel it is
our privilege to waive, however.
And I understand that our general counsel did consult with
staff from the committee, and discussed this matter in advance
of this hearing.
The Chairman. Well, I knew that you couldn't tell me what
the problems are, and that was probably more a rhetorical
question.
But I just have to tell you my problem is that this whole
process is involving problems with the contractor, the initial
contractor, and they fired him. And now they apparently have
problems with the new contractor. And then the redacting of
that information on a rule that was never really put in place,
that had not even had an opportunity to be fully implemented, I
think that is information that the American people, through
this committee, should have.
So, I will just simply say I have a real problem with the
Acting IG because she is the one that apparently made that
decision. And I will just say that I don't think this issue is
going to go away in the future.
And, with that, I will recognize the Ranking Member for
his----
Mr. DeFazio. Mr. Chairman, I am going to pass at this
point, and go to Mr. Holt, if he is ready, or Ms. Shea-Porter
was here first. Sorry.
The Chairman. You have to pick somebody.
Mr. DeFazio. OK, yes, I know. Mr. Grijalva was next.
Mr. Grijalva. I am going to pass.
[Laughter.]
Mr. DeFazio. I will be back. I have got to do an interview.
So I will be back.
The Chairman. Well, after much discussion, I will now
recognize Mr. Holt for his questions.
Dr. Holt. I am not speaking on behalf of Ms. Shea-Porter,
Mr. Grijalva, or Mr. DeFazio, but I thank Mr. Knox for coming
to testify today.
Let me start with a few questions in series. Is there any
investigation of a regulatory assault on the economy? Was there
any evidence of a war on jobs? Is there any evidence of a war
on coal?
Now, these may sound like odd questions. But I am asking
them because these are the titles of various investigative
hearings this committee has held over years now, looking into
this matter on the Stream Protection Rule. This was all about a
war on the economy, it was all about a war on coal, it was all
about a war on jobs.
In reviewing the report, or let me ask you, in your report,
it seems evident that the management of this contractor by the
OSM certainly could have been better handled, but it is evident
that the contractor was unprepared to complete the work
necessary to prepare the analysis for the rule. Am I reading
that correctly?
Mr. Knox. Congressman, our report identifies failures by
the contractor and failures by the government in the progress
of the performance of that contract.
Dr. Holt. What is getting lost in all of this is the need
for better environmental protection for coal-mining
communities. Mr. DeFazio began to get at this.
My colleagues on the other side of the aisle have focused,
tried to focus, on two things. And it is clear that they are
opposed to any regulation of the mineral extraction industry,
and that they are willing to use any amount of this committee's
time and resources to blame the administration. What we are
trying to get to here is a good rule to protect the people who
live and work in this environment.
Here is my basic question. Do you think your report is
complete? Do you think it is adequate? Do you believe that we
need a further series of congressional investigations on this
matter?
Mr. Knox. Congressman, I would have to respond to that by
saying that we undertook this investigation for two purposes.
The first was to pursue allegations that some improper
influence was applied to decisionmaking, and that a contractor
might have been directed, based on improper influence, to make
changes to their calculations.
The second part was that the contractor was treated
unfairly or improperly in accordance with our procurement
rules.
Our investigation is complete, with respect to those two
allegations, and we did not find evidence to support either.
Dr. Holt. I think that says it. That answers the questions
that I have now. And I will yield back my time. Thank you.
The Chairman. I thank the gentleman. I will now recognize
the gentleman from Texas, Mr. Gohmert, for 5 minutes.
Mr. Gohmert. Thank you, Mr. Chairman. And thank you for
being here today, sir.
We have had a lot of hearings in this room, especially in
my 9 years here in Congress, and some of them had to do, going
back to 1998-1999 in the Clinton administration, regarding
Deepwater Royalty Relief Act leases by the Clinton
administration. And there was a woman named Sylvia Baca that
was involved in that process for the Clinton administration.
And when we had a report in here from a man that investigated
that, he said he had not even questioned Sylvia Baca about why
those leases failed to include the price-controlled thresholds,
which, as some of my Democratic friends have pointed out in
prior hearings, cost this Nation billions and billions of
dollars. And then she ends up going to work for British
Petroleum.
And so, when I had asked at a prior hearing, ``Have you
talked to Sylvia Baca about why she left out those price
threshold languages in the leases,'' we were told, ``Well, she
went to work for British Petroleum, so she is not within our
grasp to get her testimony now.'' And then we find out that
this administration, under Secretary Salazar, hired her back.
Now, I have noted from your report that you talked to her
on July 18th of 2012. So I am asking you, sir. Have you, or
someone finally talked to Sylvia Baca about her duplicity in
leaving out price threshold language that made billions and
billions of dollars for big oil, then going to work for big
oil, and now coming back to work for the Obama administration?
Have you talked to her, or do you know of anybody that has
asked her about those leases that cost this country billions
for her employer that she soon went to?
Mr. Knox. Congressman, we interviewed Ms. Baca in the
course of our investigation pertaining to the allegations that
we were investigating. And----
Mr. Gohmert. But which allegations were they? Was that with
regard to the language she left out of the price thresholds?
Mr. Knox. No, sir. It was pertaining to the questions of
whether undue influence had been applied to the contractor to
change the rule for calculation of job loss; and second, to
determine whether there was some mistreatment of a contractor.
Mr. Gohmert. I know the President has talked so much about
his disdain for big oil, and yet he brings somebody back from
big oil that helped big oil make billions and billions of
dollars to the detriment of this country. Do you anticipate you
or someone in Interior asking her about those, since she is now
back working for this administration?
Mr. Knox. Congressman, I don't have a current allegation or
investigation pertaining to the scope that you are describing.
And so I do not anticipate a discussion with her about that
matter at this point.
Mr. Gohmert. Mr. Chairman, it sounds like we are going to
need to pursue this further to give them the responsibility to
pursue this matter.
But let me ask you, you mentioned earlier there was a
disagreement within OSM about which rule to apply, the one from
2008, the one that was done before that, and also note that on
July 17, 2013, Department of the Interior went back to District
Court, again agreed with the environmental plaintiffs groups,
asking the Federal District Court to vacate the 2008 rule. The
same request was denied in 2009 by Federal District Court that
told the administration then that granting the request to
vacate the rule ``would wrongly allow the Federal defendants to
do what they cannot do under the APA: repeal the rule without
notice and comment.''
So, could I ask you, who are the two sides that were
disagreeing over which rule to apply?
Mr. Knox. Well, in the course of our case, and the very
many people that we spoke to, what emerged was two points of
view on whether the 1983 rule or the 2008 rule----
Mr. Gohmert. That is right. And I am asking you, my time is
running out, so I have to get to the point, what were the two
groups?
Mr. Knox. Generally speaking, the contractors associated
with the work believed the 1983 rule should be applied. And,
generally speaking, the leadership of OSM believed the 2008
rule should be applied. And there were some outlier voices
within OSM that believed that the----
Mr. Gohmert. That sounds very much like the political
appointees of President Obama wanted to apply the new rule, and
the career people there wanted to apply the old rule. And I
would suggest they need to quit costing this country millions
of dollars and apply the rule that the court said they have to
apply. Yield back.
The Chairman. The time of the gentleman has expired. The
Chair recognizes the gentleman from California, Mr. Lowenthal.
The gentleman passes. Mr. Garcia?
Mr. Garcia. I will yield back the time, Mr. Chairman.
The Chairman. Mr. Cardenas?
Mr. Cardenas. I yield back. Thank you, Mr. Chairman.
The Chairman. Ms. Shea-Porter?
Ms. Shea-Porter. Thank you. I think the American public
would be really interested to hear that what we are actually
talking about, ultimately, is it OK to dump mining waste within
100 feet of a stream. Is it OK to pollute, regardless of what
decisions have been made? I think the American public,
especially people who live near that, would be astounded that
we are discussing this part of it, instead of going back to the
crux of it, which is there is something wrong with dumping
mining waste in streams and close to streams. And I just want
to make sure that we all know what we are actually arguing over
here.
So, I just have one question about this whole process, if
you would answer it, please. Was there any evidence at all that
there was political interference here?
Mr. Knox. Congresswoman, there was no evidence uncovered in
our investigation of political interference.
Ms. Shea-Porter. OK. Thank you, and I yield back.
The Chairman. The Chair recognizes the gentleman from
Colorado, Mr. Lamborn.
Mr. Lamborn. Thank you, Mr. Chairman, for having this
hearing. Mr. Knox, thank you for testifying today. I would like
to ask you some questions about your investigation into
statements made by Director Pizarchik in November of 2011.
In an answer to a question from me, Director Pizarchik
stated that the 7,000 job-loss figure was a placeholder, and
had no basis in fact, and based on no evidence. In fact, let's
look at a short clip of his testimony on the screen, here.
[Video shown.]
Mr. Lamborn. There you see he looks pretty confident in his
statements that these numbers are made up. However, your report
lays out how the numbers were not pulled out of thin air; they
were based on assumptions provided by the staff, and were the
result of considerable deliberation by the contractor.
For example, the report describes how he was told, after
the numbers were leaked, that they were based on ``good
engineering practice and best professional judgment.'' And yet,
months later, in front of this very committee, he said that the
numbers were made up. Would you agree with me that Director
Pizarchik's testimony before this committee was not accurate?
Mr. Knox. Congressman, I don't feel I am in a position to
opine on the accuracy of his testimony.
What I can say is that when we spoke to Director Pizarchik
in the course of our investigation, he expressed to us that he
had been led to believe the things he said here before the
committee were true, and that he was less aware of the process
the contractor had undertaken to develop the numbers that were
leaked.
Mr. Lamborn. Isn't the fact that a senior political
appointee may not have provided accurate information to
Congress something serious that the Inspector General's office
should look into?
Mr. Knox. Congressman, our investigations are undertaken
based on allegations of misconduct, of complaints made by
concerned citizens about matters affecting the Department of
the Interior. And, to date, we don't have a clear case of a
member of our Department deliberately misleading the Congress.
Mr. Lamborn. Well, it appears that Director Pizarchik was
either incompetent in not understanding the word
``placeholder,'' at best, or he changed his tune over time to
fit a political narrative, resulting in misleading testimony to
Congress, at worst. Shouldn't his actions be the basis of
further investigation?
Mr. Knox. In the course of our work, the explanation we
received from Director Pizarchik and the other people we spoke
to during the course of the case indicated that there were
reasons for him to believe that the 7,000 figure was a
placeholder, as it was said, that the contractor themselves
might have introduced that word into the description of that
number, but that actually there was more depth to the analysis
that derived the final number of estimated job-loss figures.
Mr. Lamborn. Mr. Knox, isn't it really true, and this is
how it appears to many of us, that the original contractor was
fired because the loss of 7,000 jobs is politically damaging?
In other words, this is a case of killing the messenger because
he carries bad news.
Mr. Knox. Well, sir, we looked very carefully at the
circumstances surrounding the decision not to extend the
contract of the contractor. The fact is, the contract with that
contractor was not, in fact, terminated. It had run its course,
and the option periods that were available for the government
to exercise were not exercised.
Mr. Lamborn. Thank you. Mr. Chairman, I yield back.
The Chairman. I thank the gentleman. Mr. Grijalva.
Mr. Grijalva. Thank you. Mr. Knox, my colleague, Mr.
Gohmert, suggested that the Obama administration, their
political appointees, were at odds with OSM career civil
servants over the baseline issue. Is that an accurate
characterization of that situation?
Mr. Knox. I am sorry, Congressman. Could you repeat part of
that question? Who did you believe was at odds?
Mr. Grijalva. That the political appointments from the
Obama administration and the career civil servants, that that
is where the baseline issue was at debate, the appointees
wanting to insist on a baseline criteria and the civil service
career folk not. Is that accurate?
Mr. Knox. No, sir, that would not be accurate, Congressman.
The investigation found that, within the OSM, there really was
only one politically appointed person, the Director of the
Office of Surface Mining, involved at all. And, in fact, he was
not driving the move toward using the 2008 rule for developing
the baseline. It was, in fact, all the other OSM members
involved in that were career civil service employees.
Mr. Grijalva. So, actually, the debate, for lack of a
better word, was within the career folk at the Department?
Mr. Knox. Congressman, that is accurate.
Mr. Grijalva. Thank you. The Bush administration and
undoing the Reagan rule, in terms of stream protection, that
waiver, I assume, created a significant windfall for the coal
companies in the area, at the expense, as Ms. Shea-Porter said,
to, potentially, the health and the welfare of the region in
general.
Is it prudent, if this committee were to continue to chase
its own tail on this particular issue, would it be prudent to
also look at full implementation of the Reagan rule, or full
implementation of a rule that we have yet to see that is being
prepared with this administration, and what that would do to
the bottom line, in terms of the mitigation that these coal
companies would have to pursue in order to meet the rule, and
to guarantee some protection of both health and welfare
downstream to residents and to the environment in general?
Would that be a prudent exercise?
Mr. Knox. Congressman----
Mr. Grijalva. We are talking about job losses. I want to
see profit gains and what that would mean if even the Reagan
rule was fully implemented.
Mr. Knox. Congressman, I have no opinion about whether that
would be a prudent course or not. Our focus of our
investigation was to determine whether any improper influence,
any political influence, was applied to the decision----
Mr. Grijalva. OK, so let me----
Mr. Knox [continuing]. On the rule.
Mr. Grijalva. Quick question, probably yes or no. And, I
will try not to ask you a question you can't answer.
The contractor that we are categorizing as a victim of
political interference here, their contract was not renewed
because of cause, and that cause being performance.
Mr. Knox. Congressman, in the course of our case, we looked
at various factors and uncovered evidence that the government
was unsatisfied with contractor performance long before the
7,000 job-loss figure was leaked to the press, and that they
were addressing issues of performance.
It is also true that the contractor was unable to, in the
cure notice proceeding, deliver a draft EIS/RIA to the
government, as expected, by the deadline.
Mr. Grijalva. And we have established in your previous
responses that there was no improper undue influence and
political heavy-handedness applied to the contractor in terms
of that contractor's work product.
Mr. Knox. We uncovered no evidence of that.
Mr. Grijalva. And is your office confident that the
investigation is adequate for the purpose of looking into the
allegations of the Stream Buffer Rule, and how it was being
worked? And can this committee gain anything by continuing to
investigate what has been investigated?
Mr. Knox. Sir, we believe our investigation is thorough and
complete, pertaining to the allegations we sought to clear up,
and that involves whether or not political pressure was applied
improperly, or whether the contractor was abused.
Mr. Grijalva. I appreciate that and yield back. Mr.
Chairman, thank you.
The Chairman. Thank you. I thank the gentleman, and
recognize the gentleman from South Carolina, Mr. Duncan.
Mr. Duncan. Thank you, Mr. Chairman. I would like to yield
my time to the lady that understands our energy independence,
and that is the gentlelady from the Equality State, Wyoming.
Mrs. Lummis?
Mrs. Lummis. Well, I thank the gentleman from South
Carolina for yielding me his time.
Mr. Knox, thank you for being here. We know one of the
missions of the Office of the Inspector General is to
investigate waste and to ensure taxpayers are getting what they
pay for.
Last year, Director Pizarchik informed this committee that
the Office of Surface Mining, at the time, had spent $8.6
million to revise the 2008 rule: $6 million was for contractors
and the rest for OSM staff. Do you consider $8.6 million to be
excessive, particularly considering the rule has yet to even be
proposed?
Mr. Knox. Congresswoman, I have not seen the elements of
cost, and couldn't opine on the reasonableness of them. I am
aware that they spent $3.7 million to pay for services acquired
from the first contractor. But, beyond that, I am unaware of
the other expenses.
Mrs. Lummis. Do you know how the $8.6 million compares to
the total cost of the 2008 rule, including proposing and
finalizing it?
Mr. Knox. Congresswoman, I do not.
Mrs. Lummis. Well, I can elucidate this: $5 million over 5
years, as opposed to $8.6 million over 4 years, and without
actually now proposing a rule. Given that information from
Director Pizarchik is 9 months old, do you know how much has
been spent to present date?
Mr. Knox. I do not.
Mrs. Lummis. Mr. Knox, past the issue of spending, the IG
report also identified a number of management problems within
OSM for how it managed the contractors and rulemaking process.
Is that correct?
Mr. Knox. That is correct, Congresswoman.
Mrs. Lummis. The Department said in its response to the IG
report that OSM appears to have learned important lessons from
the experience with the previous contractor, and appears to
have implemented important changes to improve its management of
that project. Do you agree with the Department's statement,
that management problems within OSM have been corrected, and
that the new contracts are being properly managed?
Mr. Knox. Congresswoman, we have not undertaken an effort
to examine those ongoing contracts. And so I do not have an
opinion as to whether they actually implemented those changes
or not.
Mrs. Lummis. Why is there an entire section of the IG's
report on issues within the new contract?
Mr. Knox. The investigative team that looked into the
allegations here, the subject of our investigation, interviewed
people who had roles in both the previous contract and the
current contract. And so, information was obtained that they
felt was relevant to report in our Report of Investigation
pertaining to that ongoing contracting effort. The problem, of
course, is the assertion of privilege by the Department in
releasing that information at this time.
Mrs. Lummis. What steps are you going to take, on an
ongoing basis, to assure the problems have been corrected?
Mr. Knox. At this point, the Office of Investigation
doesn't have a plan to pursue any continuing review of this
Stream Protection Rule process. But I certainly am willing to
talk to my colleagues on the audit side about maybe scheduling
something.
Mrs. Lummis. Given that, how can we be sure that more than
5 years into the process, the Department is not continuing to
waste taxpayer money with its effort to rewrite a 2008 rule
that itself cost millions to issue, and has never had a chance
to go into effect across the country?
Mr. Knox. Well, there were a lot of problems with the
previous contract that related to requirements development and
timeliness, the pressure of time that the government imposed on
the process, that contributed to the failure of the contractor
in the end.
Mrs. Lummis. Do you know if there have been any changes to
OSM senior management, as a result of these problems, or in
response to the IG report? Or is the same senior management
that oversaw this earlier rewrite still overseeing this new
effort?
Mr. Knox. Congresswoman, I am aware that one key person,
the former counselor to the Director of OSM, has left the OSM
and gone to a different agency. So that is one change that I am
aware of. But, other than that, I am not really aware of any
changes.
Mrs. Lummis. Well, Director Pizarchik is still there,
right?
Mr. Knox. That is correct.
Mrs. Lummis. Can OSM really do a better job of managing
this process and being a steward of the taxpayer money, if the
same senior management is in place? And how can you help
alleviate future problems here?
Mr. Knox. Well, I think that the experience of weaknesses
in contract processes are not new to our Department or to the
government, generally, and that the OIG has a role in helping
understand where we could have done better, and communicating
that information to the Department. To that end, we can
certainly assist the OSM in understanding good procedures for
project management and contract administration. Perhaps that is
a start.
Mrs. Lummis. I thank you, Mr. Knox. I also thank the
Chairman for his indulgence. Thank you.
The Chairman. Thank Mr. Duncan, because he had the time. So
should I continue on my side, or----
Mr. DeFazio. Yes, go ahead.
The Chairman. The Chair recognizes the gentleman from
Colorado, Mr. Tipton.
Mr. Tipton. Thank you, Mr. Chairman, for convening the
hearing today, and talking and taking a closer look about the
Obama administration's war on coal.
In January of 2012, President Obama visited my home State
of Colorado to tout what he considered to be an all-of-the-
above energy approach. Unfortunately, the President was merely
paying lip service to the American public. And in June of 2013
he announced his climate action plan. The President's plan,
unfortunately, does not represent a true all-of-the-above
energy approach. Instead, it picks winners and losers, wages
war on coal, and generally is a continuation of the costly,
ineffective policies of his first term that will ultimately
drive up the costs for consumers and destroy thousands of jobs.
My Planning for American Energy Act represents a true all-
of-the-above energy plan that embraces all of America's vast
energy resources, and provides American families and businesses
much-needed relief from the outrageous energy cost without
killing good-paying jobs. Rather than pursuing a true all-of-
the-above energy plan, this administration continues to
circumvent Congress and churn out job-killing regulations
targeting the coal industry.
Just yesterday, the EPA published another rule for new
power plants that will have dramatic economic consequences.
President Obama has acknowledged that some of these regulations
will cost our economy over $1 billion annually, and will
increase energy rates for families and small businesses.
A recent economic analysis found that just one of the
Obama-proposed rules targeting the coal industry could destroy
more than 500,000 jobs, increase electricity prices by a
whopping 20 percent, and cost the average American family an
extra $1,400 a year.
To make matters worse, the OIG report we are discussing
today revealed a taped meeting recording the Office of Surface
Mining counsel encouraging the contracting company to use
different hypothetical variables to arrive at lower job-loss
numbers for the Stream Buffer Zone proposed rule. When the vice
president of the company pushed back, counsel replied, stating,
and I quote, ``This is not the real world. This is
rulemaking.''
This is out-of-touch mentality that is inexcusable and,
unfortunately, this administration fails to recognize that
these rules and regulations advancing an anti-coal agenda have
significant real-world economic consequences for the American
people.
Mr. Knox, thank you for taking the time to be able to be
here. You testified in your report that you found that the
Office of Surface Mining initially directed contractors to use
the 1983 rule to estimate the coal production losses on job
losses. You then testified after the contractors estimated
there would be high cost to the industry and significant job
losses, that OSM told the contractor to use the 2008 rule that
was never implemented to lower the potential job-loss numbers.
Based on your investigation, do you believe that there was
a willingness by certain agency employees to effectively cook
the books in order to lower the potential job-loss numbers?
Mr. Knox. Congressman, our investigation found that when
the decision by OSM was made to use the 2008 rule for
calculating the baseline, there was awareness among the
decisionmakers that it would have the effect of lowering the
estimated job-loss figures.
But our investigation did not discover their motivations
behind that decision. There was no evidence that it was
politically motivated. It was stated that the reasoning behind
using the 2008 rule was based simply on trying to identify the
best possible EIS product in accordance with the National
Environmental Protection Act.
Mr. Tipton. We might tend to disagree on that. I think
that, you know, it looks as though they were attempting to cook
the books, just simply based off of some of the potential
outcome of the loss of job numbers.
Did your investigation reveal any emails exchanged between
the Office of Surface Mining Director and the counsel after the
Associated Press reported the draft Environmental Impact
Statement could kill those 7,000 jobs?
Mr. Knox. Yes, sir. We did.
Mr. Tipton. Would you summarize the content of those
emails?
Mr. Knox. I don't have all of them before me, but there is
one that I am aware of here that I do have, dated January 27,
in the morning, and it is an email from the counselor, Dianne
Shawley, to the Director, in which the title of it is, ``Loss
of Coal Jobs at 7,000.'' And the body of the email states, ``We
should fire the EIS contractor, and put that on the front
page!''
Mr. Tipton. ``We should put that on the front page.''
Did you review the recording that was made discussing the
baseline?
Mr. Knox. I am sorry, could you repeat that?
Mr. Tipton. The February 1, 2011 meeting discussing the
baseline, did you review that----
Mr. Knox. We did.
Mr. Tipton [continuing]. Recording? And can you summarize
the content of that tape?
Mr. Knox. The summary indicates that there was a discussion
between the contractor and the government about the project,
generally, in the context, of course, of following the January
26 leak of the jobs number. And, essentially, the discussion
centered on how to move forward in the project, concerns that
the government had about the contractor's performance, and the
use of the 2008 rule for baselining, as opposed to the 1983
rule.
Mr. Tipton. OK, and this is when the comment was made,
``This is not the real world, this is rulemaking'' ?
Mr. Knox. That is correct, sir.
Mr. Tipton. And so that goes back, I think, to the first
question. Was there some political motivation on this?
Mr. Knox. We found no evidence of political motivation. But
this was an example of where the contractor was alerted very
late in the period of performance about a pretty significant
change to the expectation.
The Chairman. The time of the gentleman has expired. The
Chair recognizes the Ranking Member.
Mr. DeFazio. I thank the Chairman. Mr. Knox, so you just
restated no incidence of political misconduct was found.
Mr. Knox. Yes, sir.
Mr. DeFazio. OK. But you recount the testimony of the
former Office of Surface Mining regulatory support division
chief, who was later relieved, that his testimony makes it
sound like it was all political. Did you have complete
authority to review all of his communications and email? And
did you find any substance to support his allegations?
Mr. Knox. His complaints did indicate that he perceived
political influence as part of the reasoning for the 2008 rule
to be directed to be used. But we found no evidence to
corroborate that others had the same perception. And, in fact,
the independent decisions of other OSM members, aside from the
counselor to the Director, to use the 2008 rule lent
credibility to it being just a reasonable, scientific choice.
Mr. DeFazio. Yes, and I have got to say I still don't quite
understand the rationale between 1983 and 2008. But that is not
your expertise, and we may get into that if we do another
hearing on this.
Yesterday some Senators sent a letter to Janice Schneider.
She is nominated to be Assistant Secretary for Land and
Minerals Management, which oversees the OSM. And in that letter
they said, ``The report shows the political appointees at OSM
ordered career staff and subcontractors to change the method
for estimating job losses largely for political purposes.'' Is
that a true statement?
Mr. Knox. Congressman, as I have stated, we did not find
evidence that there were political motivations behind the
decision to make the changes. We found that the decisions were
made, and we reported how they impacted the contractor and the
contractor's performance. But we did not find evidence of
political influence.
Mr. DeFazio. And what about the contracting process? I mean
it seems to me that an incompetent contractor was hired. I will
just read a couple of quotes here.
West Virginia Department of Environmental Protection, and
this significantly affects them, wrote the draft analysis from
the contractor ``showed very little depth of understanding,''
and that, ``the characterization of this document as junk is
not just one person's observation.''
We had similar analysis from another State where it would
have a major impact, Wyoming. Kathy Ogle, Geological
Supervisor, ``The analysis is insufficient for a document of
this importance.'' And then one from Virginia, another State
where it would have a significant impact, ``I would certainly
hope the EIS is not going to be developed based on this
inaccurate and incomplete information contained in this
document.''
It seems to me like they hired someone who was totally
incompetent and not properly overseen. Now, what are we going
to do about that? That, to me, is a real question for inquiry.
I don't like wasting money.
Mr. Knox. Congressman, what we observed, what we discovered
during the course of our investigation, was that this contract
was awarded to a small and disadvantaged business, probably to
accelerate the timeline of award. And, although procedures were
followed, they chose a contractor that had limited experience
in EIS process and really none in a programmatic EIS, such as
this.
The timeline for the award period of performance was very
restrictive. And it seemed that the requirements that the
government expected were not well-defined from the beginning.
Changes such as even using the 2008 rule, as opposed to the
1983 rule, came very late in the period of performance, and
afforded the contractor a limited amount of time to make
changes.
There were, I could go on and on, but there were----
Mr. DeFazio. But, I mean, given the fact that the
contractor was essentially removed for incompetence, or reason,
not political influence, did they suffer any financial
consequences? Did they rebate some of the money that had been
paid, since they produced a product that was junk, according to
impartial officials from another State?
Mr. Knox. Congressman, the contractor agreed to the terms
and conditions the government came to, in terms of how the
contract was ended. They were not terminated for convenience or
for default. We simply allowed the period of performance to
expire, and the contractor was paid for all the services they
had rendered to date.
Mr. DeFazio. Well, I have to tell you I have an overall
concern with government contracting, generally, when we don't
require performance, and people don't have some flesh on the
line. And coming from the State of Oregon, which has the worst
performance in the entire United States in hiring a contractor
for its online services for the health care bill, the shop, I
mean, I just really think that somehow we need to construct
contracts that have benchmarks. And if you don't reach a
benchmark at a certain point, then you are out or there are
going to be penalties or withholding. And you keep going with
these benchmarks. You don't give somebody a bunch of money,
tell them to go out and do it, and they come back with what is
described as junk, and they say, ``Oh, yeah, well, in the end,
we just let the contract expire and they kept the money.'' That
is just not, as a taxpayer, I don't like that. I have got to
tell you.
Thank you, Mr. Chairman.
The Chairman. Time of the gentleman has expired. The Chair
recognizes the gentleman from Montana, Mr. Daines.
Mr. Daines. Thank you, Mr. Chairman. Mr. Knox, thank you
for being here today. I represent the State of Montana. And the
coal not only powers over 50 percent of our homes and
businesses, but coal mining creates badly needed jobs on our
tribal reservations, in addition to mining off the reservation.
In fact, on Saturday, I was at the Northern Cheyenne
reservation, as well as a Crow reservation. I asked the
chairman of the Crow Tribe, Darrin Old Coyote, I said, ``What
are your three top priorities?''
He said to me, ``Jobs, jobs, and jobs,'' as they face a 50
percent unemployment rate on the reservation. And then he added
this. He said to me, and these are not words coming from the
Chairman of this committee, or from any of our witnesses today;
these are coming from the words of the chairman of the Crow
Tribe of Montana, he said, ``A war on coal is a war on Crow
families.''
This rule that we are seeing is another part of this
President's war on coal. We know that coal is one of our
cheapest forms of electricity, and is a major job-creator. And,
yet, just in the last 18 months, 32,000 people in the coal
industry have lost their jobs.
People like the Crow people in Montana want to be self-
sufficient. They want to control their own destiny. But the
Federal Government too often gets in the way. The Crow people,
they want to grow jobs. They don't want to see their Federal
Government grow with these overreaching regulations.
Mr. Knox, I would like to ask you about the time
constraints that were in place for developing this new Stream
Protection Rule. The 2008 rule underwent years of careful
study. But here, as I have looked at the report and listened to
your testimony, that doesn't seem to be the case. In its
report, the IG found that the EIS process was quite rushed.
Would you agree with that?
Mr. Knox. Congressman, yes, I would agree that it was a
short timeline.
Mr. Daines. I think it was from May, late May of 2010, to
November 19, 2010, if I read the report correctly.
And did the IG's report attribute some of the problems
between OSM and the contractors due to rushing this timeframe?
Mr. Knox. Congressman, yes. We feel, and the government
felt, the contracting officer, in fact, felt, when they made
their decision to allow the period of performance to end,
rather than take a termination action, that the OSM had a part
in the performance failure by this contractor.
Mr. Daines. And so the contractors, I think, said they did
not have enough time to complete a full analysis.
Mr. Knox. That was true. In part, they would have
undertaken different techniques, if they had more time.
Mr. Daines. So the question, I think, for this committee is
why was the OSM so rushed here, when the agency spent years
working on the prior rule?
Mr. Knox. We, through interviews, heard from some witnesses
saying that they felt compelled to adhere to the court decision
where the decision to set aside the 2008 rule was made, with a
promise by the Administration, by the Department, that they
would be able to deliver a draft Stream Protection Rule, I
believe, by February 28, 2011.
Mr. Daines. So it sounds like it was because of the
settlement that the OSM had agreed to with these environmental
groups who had challenged the 2008 rule.
Mr. Knox. I believe that was the driving force, yes,
Congressman.
Mr. Daines. So, would it be fair to say that that closed-
door settlement perhaps determined the timeframe for OSM's
rulemaking in this case?
Mr. Knox. Pertaining to the first contract, and the matter
that we investigated, that seemed to be the case.
Mr. Daines. Well, I find it very troubling here, then, that
the OSM's actions are being determined by court settlements
with habitual litigants. And I think this particular situation
just demonstrates a broader theme with the Obama
administration, where the agency agrees to settle, and then is
bound by the arbitrary and unrealistic demands of these same
organizations.
We see the same thing with the ESA litigation. We see the
same thing in the timber industry. The process is not
transparent, and is not how rulemaking is supposed to be
conducted.
I, frankly, was very disappointed, I recognize the term
``privilege'' was used in this rulemaking process. But when we,
here in Congress, are charged with some oversight
responsibilities to make government more efficient and
effective, and get reports that are redacted to look like this,
and we are trying to get to the bottom of what is going on
here, I find that very, very troubling, when the terms
``privilege'' are being used here to, what I see, hide what is
going on here, in terms of this rulemaking process.
And here is the bottom line. It is not only hurting the way
government operates. But, importantly, it is hurting jobs and
it is hurting taxpayers. I yield back my time.
The Chairman. The time of the gentleman has expired. The
Chair recognizes the gentleman from North Dakota, Mr. Cramer.
Mr. Cramer. Thank you, Mr. Chairman, and thank you for
being here, Mr. Knox.
Before I ask a couple questions, I want to set a couple of
things straight, because prior to coming to Congress I spent
nearly 10 years as a coal mining regulator in North Dakota, and
I know a fair bit about the Stream Buffer Zone Rule and its
history. And a couple of things that some of my colleagues said
earlier bother me, and I want to straighten a couple of them
out.
First of all, not getting to a predetermined, preferred
answer does not constitute incompetence by a contractor. One of
my colleagues claimed that we should be trying to get at a good
rule to protect streams. Another one of my colleagues suggested
that we shouldn't be allowing--or that it shouldn't be OK to
dump mine waste into streams, and that is what we should be
focused on. And I agree that we should be focused on those
things, except that there are good rules that already protect
streams. I don't remember any time in my 10 years as a coal
mining regulator that dumping mining waste into a stream was
OK.
Do you know if that was approved under the 1983 rule or the
2008 rule, which, by the way, the 2008 rule is stricter than
the 1983 Stream Buffer Zone Rule. Do you know?
Mr. Knox. Congressman, it is out of my area of expertise.
Mr. Cramer. Sure. Well, it is well within mine, and I can
assure you that it was never OK, and it is not OK under the
1983 or the 2008 rule to dump mining waste.
I want to follow up a little bit on the Ranking Member and
then my friend from Montana's line of questioning regarding the
constricted timeframe for the EIS. In your investigation, did
you ever examine how the primary contractor was chosen? Because
there seems to be a lot of angst aimed at the contractor, and
yet that contractor was chosen, I assume, by OSM through some
process. Did you look into that at all?
Mr. Knox. We did look at some of that. They are designated
an 8(a) contractor, a small, disadvantaged business concern.
And they were selected through a limited competition that was
held between a handful of 8(a) companies that were deemed
eligible to compete for this work, and they were found to be
the preferred technical choice.
Mr. Cramer. Now, isn't it true that it was the contractor
that really insisted that they needed to hold full scoping
sessions in order to comply with the NEPA requirements, and it
was really the OSM staff that wanted to, you know, sort of cut
the corners, if you will? Is that accurate, that it was, in
fact, the contractor who wanted to extend the process to meet
NEPA, and it was the OSM staff that wanted to confine it?
Mr. Knox. Congressman, the contractor certainly wanted to
pursue the public hearings. But also there was, I believe, our
contracting officer representative, who was there, for large
reason, because of their experience in NEPA, felt the same way.
Mr. Cramer. Then I just think I want to push in at least
one other line of questioning here that I think Mr. Tipton was
on earlier relating to OSM Director's counsel, Dianne Shawley,
and some of what I consider to be pretty disturbing statements,
especially related to that the agency was engaged in what was
``not the real world, this is rulemaking.''
That is sort of something that bureaucrats get accused of a
lot, and some people think, ``Well, certainly they are not that
insensitive to what is really happening in the world.'' The
world is not really that theoretical, and yet it sounds to me
like she believes it is. Does this seem cavalier to you, for
somebody in a position like that, to be overseeing a billion-
dollar rulemaking that is going to impact, you know, thousands
of American jobs, whether it is 7,000 or some other number? I
mean, doesn't that seem a bit cavalier for counsel to----
Mr. Knox. Congressman, I don't have an opinion about what
meaning she meant when she used those words. What I would say
is that our investigation found that the decision by OSM to use
the 2008 rule was based on their belief that, since it was the
rule of law, it was the appropriate rule to use at the time.
Mr. Cramer. Since I have just under a minute, I want to
then pursue the issue of OSM employees, that were, in fact,
embedded in the teams, as I understand it. According to the
contractor, anyway, they were well embedded into the various
working teams that worked on the EIS and the RIA, and that, in
fact, they provided many of the written materials that showed
up in the EIS, in various chapters of the EIS, which then, of
course, they later criticized.
But am I wrong in that? Because I don't see any of that
reflected in your report. And yet, I understand from the
contractor, that was, in fact, the case.
Mr. Knox. Our investigation, of course, was looking at two
points, was there undue political influence, improper
influence, and was the contractor treated unfairly with the end
of their contract. We didn't look at this issue you raise.
Mr. Cramer. My time has expired. Thank you.
Mr. Bishop [presiding]. Thank you. Mr. Byrne, we welcome
you to this committee. You have your first opportunity to ask
questions, if you would like to. You are recognized for 5
minutes.
Mr. Byrne. Thank you very much. Mr. Knox, I am the newest
Member of the House, newest member of the committee, and
perhaps I want to ask some questions of you that may seem
elementary and obvious. But, forgive me, I need to learn.
You asserted, with regard to the redacted document, a
privilege. And I don't know what that privilege is. Could you
tell me what the nature of the privilege is?
Mr. Knox. Congressman, I am not an attorney, in fact. So I
am following the advice of my counsel at the OIG. We, the OIG,
is not asserting a privilege. But----
Mr. Byrne. I understand that. But you are saying that there
is a privilege that somebody has, that you feel like you all
can't waive. So do you even know what the title or the concept
of the privilege is?
Mr. Knox. Yes. My understanding, sir, is that the concept
of the privilege relates to administrative rulemaking, and that
while it is ongoing, that the agency engaged in the rulemaking
might have a privilege as to the information associated with
that ongoing process.
Mr. Byrne. And who has the privilege? And, therefore, who
has the ability to waive or not waive it?
Mr. Knox. My understanding is that the Department would
have the privilege and the ability to waive or not waive it.
Mr. Byrne. Has your office asked them to waive the
privilege?
Mr. Knox. We have not asked them, to my knowledge, to waive
the privilege. We don't feel it is our privilege to waive, and
we feel like if it is information that this committee needs,
that it is a matter that the committee should direct to the
Department.
Mr. Byrne. So you don't think it is the function of your
office to carry your investigation to the point to at least ask
for the waiver of privilege so you can get to the point of
having information that could potentially be important to
rendering your judgment?
Mr. Knox. Actually, sir, I don't feel qualified to answer
that question. I don't think we encounter this kind of stuff
all that often. It seems like we have had a couple of instances
before this committee. But in my personal professional career,
this is perhaps the first time I have dealt with it.
Mr. Byrne. Well, I may be new to the Congress, but I have
practiced law for over 30 years, I am used to the assertion to
privileges and the redaction of documents. That is a pretty
heavily redacted document, from my experience. Do you know who
redacted the document, the exact name of the person or the
office?
Mr. Knox. Congressman, our general counsel, Mr. Bruce
Delaplaine, actually effected the redaction. Or, let me say,
reviewed all the redactions that were proposed by the
Department, and rejected many that he didn't feel directly
related to the ongoing rulemaking, and actually restored
information to what has been delivered to you when he felt it
was legitimately the right thing to do, and just redacted those
things that were deliberate process information.
Mr. Byrne. And do you know, and you may not know, but do
you know what basis he used to make the decision about what is
an allowable redaction and what is not an allowable redaction?
Mr. Knox. Congressman, I would probably say the wrong thing
if I tried to stumble my way through that, so I would have to
say no, I don't know what process he used, except that it was
only information that actually related to the ongoing
deliberative process-making.
I would say there is a second prong to our reasoning behind
this willingness to recognize the Department's exercising of a
privilege, and that is simply that our future access to
information from the Department is related to that. The
Department abides by the Office of Inspector General's need for
access to information, and the IG Act, actually, that provides
us that access.
But they do recognize that there are instances where they
have ongoing processes that are privileged. And when they
release that information to us, they expect us to respect it.
The fear we have is if we don't show that respect, we may lose
the access that we need in our investigations and our audits in
the future.
Mr. Byrne. I want to make sure I understand the answer to
the last question. You have a fear that if you go too far in
pushing back on the assertion of privilege, that you may not
get information that you need to perform your function from a
Department of the United States Government?
Mr. Knox. No, sir, I didn't mean to leave you with that
impression.
Mr. Byrne. Well, what is the fear?
Mr. Knox. We don't have a fear at all.
Mr. Byrne. Well, you used the word ``fear.'' What did you
refer to?
Mr. Knox. I misspoke. We have a concern that if we actually
don't recognize the privilege that they assert, with our own
validation that the information actually falls, in this case,
within this deliberative process-making, that we would not, in
the future, have access to the information that the Department
may have regarding an ongoing process.
Mr. Byrne. Well, I do agree with some of the Members'
assertions that the substance of the policy, or the substance
of the rulemaking is important. But to the people of the United
States, the process is also important. And transparency of
process is critical to the functioning of our government. And
it does give the appearance, in a heavily redacted document
like that, that we don't have true transparency. So I would
urge you and your office to think more and think a little
harder about when and how redactions like that are allowed.
Thank you, Mr. Chairman. I yield back.
The Chairman [presiding]. I thank the gentleman very much
for his line of questioning, and the Chair recognizes the
gentleman from Virginia, Mr. Wittman.
Dr. Wittman. Thank you, Mr. Chairman, and thank you, Mr.
Knox, for joining us today. I want to go to page 17 of your
report. And it states, ``Pizarchik acknowledged the probability
that both OSM staff and the contractor made some bad
judgments''.
The report goes on in quite a bit of detail about the
shortcomings of the contractor. It is short of detail about the
problems within OSM and the decisionmaking there, and where
problems were there. Can you give me a little more detail about
Director Pizarchik's statements about OSM and what your
findings were about what happened within OSM, as far as his
decisionmaking process, and where things went awry?
Mr. Knox. Congressman, are you referring to the
decisionmaking regarding the contractor and the contract, or
regarding the decision to use the 2008 rule?
Dr. Wittman. Actually, both. If you could, comment on both.
Mr. Knox. Well, my understanding, from our investigation,
is that the Director was really not that involved. He was being
briefed by his counselor, but the counsel was much more engaged
in the process, and was really making the decisions and
briefing the Director, who did agree that the use of the 2008
Stream Buffer Zone Rule was the right rule to use for a
baseline determination.
Dr. Wittman. So, from that standpoint, you are saying that,
essentially, internally the direction was going to the
contractor, and that the problems that arose from that were a
result of actions within OSM?
Mr. Knox. Well, the contractor was informed in the summer
that they should use the 1983 rule for building their
calculations, and proceeded with that understanding until the
meeting on February 1, 2011. So that was a considerable period
of time. And by February 1, the contractor was expected to have
a draft EIS delivered to the government on the 23rd of
February, some 22 days later. So that is really where the
problem started.
Dr. Wittman. OK. Let me ask you, going off on a side part
of that line of questioning, in your report you detail how the
former regulatory support division chief told you of receiving
an email from Director Pizarchik's counsel in the last week of
January 2011, essentially saying that there was a push for him
to find a way for contractors to produce more favorable job-
loss numbers. And he went on to say that he felt like Director
Pizarchik and his counsel were trying to cook the books.
My concern is, how did that come about from that
individual's perspective? How did he feel that that was
happening within the agency? And what is your reaction to the
information provided to you by the former regulatory support
division chief?
I am trying to look at the dynamic there for somebody
saying, ``Hey, I feel like they are cooking the books.'' And
what was your reaction to that? Is that something that normally
occurs in that process, if somebody denotes that reservation or
that concern, and then what the reaction is within the agency
to that?
Mr. Knox. Well, our investigation looked very carefully at
the assertions made by that person, and used those assertions
in each of the interviews that followed with other members of
the OSM staff and contract employees. There was no one who
really felt the same way, perceived meetings in the same
manner, and saw this sort of political influence that the
person reported to us in his interview.
So, we were left, well, with a report that informs the
Department, the Bureau, and this Congress of our findings.
Dr. Wittman. Let me ask you. In your experience in doing
these sorts of investigations, is it a normal course in those
findings to see a career employee make these kind of
accusations against a political appointee?
Mr. Knox. I would say that in my experience it is not
unusual that a career employee might make a complaint, or in
this case, make a statement.
But in this case, also, you have to look at, you know, the
whole pattern of work that this person had been involved in,
and the performance of that work. He had made communications to
the contractor that were reversed; he had been slow to inform
the contractor of decisions that needed to be made, even when
asked; and had consistently along the way informed the Director
that all was well, and things were fine, he had control of the
circumstances.
Dr. Wittman. Let me ask you one last question. Do you have
any reason to believe that the former regulatory support
division chief was not telling the truth?
Mr. Knox. We don't have any reason to believe anyone wasn't
telling the truth. I think we have a series of different
perceptions and experiences, based on their part of this whole
process.
Dr. Wittman. All right, very good. Thank you, Mr. Chairman.
I yield back.
The Chairman. I thank the gentleman. The Chair recognizes
the gentleman from Oklahoma, Mr. Mullin.
Mr. Mullin. Thank you, Mr. Chairman. Thank you, Mr. Knox,
for being here. You know, it might come as quite a surprise
that Oklahoma has a very vibrant coal industry. We have over
5,000 direct and indirect jobs in the coal industry. And so it
is quite concerning to me, because those jobs are in my
district, which is considered a pretty poor district, that the
President openly says that he has a war on coal. I mean he is
the one that declared it. Yet it is an important energy source
that we have.
And so, entertain me a little bit by allowing me to
understand what it is exactly you are investigating.
Mr. Knox. Our investigation, sir, was focused just on the
question of whether, in the process of developing a Stream
Protection Rule, the decision to use the 2008 Stream Buffer
Zone Rule was made for political purposes. And then, second,
whether the contractor, who refused--it was alleged----
Mr. Mullin. So why would you even consider it being
politically driven? I mean that seems pretty obvious to me when
he declared a war on coal, and now, all of a sudden we have to
investigate it. I mean, I would be curious how many dollars
have the taxpayers paid out for an investigation, when it is,
you know, open that he doesn't favor coal.
Mr. Knox. I am sorry, Congressman----
Mr. Mullin. My question is do you know how much you guys
have spent, so far, how many man hours you have spent in
investigating something so obvious?
Mr. Knox. I don't have a calculation of the man hours.
Mr. Mullin. Well, let me switch gears then, just a little
bit. Did you prepare your statement, your testimony?
Mr. Knox. Congressman, yes, I did.
Mr. Mullin. You prepared it yourself?
Mr. Knox. I did so.
Mr. Mullin. So, in your belief, do you believe this
administration does or doesn't have a political-driven agenda
on coal, considering that he stated a war on coal?
Mr. Knox. Sir, I really don't have an opinion on the
matter.
Mr. Mullin. OK. Do you know how much we spent, totally, or
total, conducting these studies on this buffer zone?
Mr. Knox. I am only aware of the $3.7 million figure,
$3,700,269, that was paid to this contractor for the----
Mr. Mullin. To this one, or the first one?
Mr. Knox. To the first contractor.
Mr. Mullin. Do you know how much we spent on this current
contractor?
Mr. Knox. Maybe we are not talking about the same thing. I
am talking about the first effort of the Stream Protection
Rule.
Mr. Mullin. OK. On the first contractor that was awarded
the contract, it has been brought up several times that the
contractor was fired because of incompetency. And so, we are
having to go back and redo something that he did.
I am a contractor, myself. And every time I enter a
contract, I have to be bonded. And if I fail to do it right,
and someone else has to come in behind me to redo it, then my
bond is called. And I have to either do it myself, or I lose my
bond on it. No action was taken on this, for the first
contractor?
Mr. Knox. Congressman, this contractor was not terminated
for poor performance. They----
Mr. Mullin. Well, I have heard you say that over and over
again, Mr. Knox. But everybody's perception, because of what
the first reports were, that this administration was putting
out, was that he was fired, that this contractor, ``he,'' I am
using that in a loose term--but this contractor was fired
because of incompetency. That is what we keep hearing. That is
what we heard from the get-go.
Mr. Knox. I understand that. But I am here today to tell
you that, in fact, no termination was made on that contractor's
performance.
Mr. Mullin. So then, part of your investigation maybe
should be why was that used to begin with, then. Why was this
administration putting that out to begin with, if it wasn't
politically driven?
Mr. Knox. The Office of Inspector General for the
Department of the Interior is focused on matters that affect
the programs of our Department. And investigating the----
Mr. Mullin. Well, Mr. Knox, I heard you say that. But the
first question I asked you was what you were investigating, and
you were saying if it was politically driven or not. Did you
not state that?
Mr. Knox. That was one of our----
Mr. Mullin. OK. So the first reports that came out about
this contractor that was no longer able to do this contract was
perceived by the public, because of the words that this
administration was putting out, that he was fired for
incompetency. Now your investigation has shown that he wasn't
actually fired for being incompetent, or the contractor wasn't,
but because the contract ended. So that alone shows that it was
politically driven, in just my simple thinking. Mr. Knox, I
appreciate your time.
And, Mr. Chairman, I yield back.
The Chairman. The time of the gentleman has expired, or,
the Chair recognizes the gentleman from California, Mr.
LaMalfa.
Mr. LaMalfa. Thank you, Mr. Chairman. I appreciate Mr. Knox
taking part here today.
When we look at our whole energy portfolio for our Nation
here, we look at the various options that we have, or maybe we
don't have. You know, hydropower is important, important to us
in northern California. Yet the ability to build new hydro, new
storage, has been severely curtailed by environmental and other
concerns. And, indeed, there is a movement underway to remove
hydro projects in northern California.
Other alternatives, nuclear power in California, the San
Onofre Plant is being closed. And the prospect of building much
more nuclear power in the United States or anywhere, you have
Fukushima in Japan, that certainly put a damper on that.
And so we look at coal, providing to our Nation somewhere
around 40 percent of the entire energy grid for electricity.
And yet we have the war on coal, we have investigations like
this, we have regulations, as my colleague, Mr. Cramer,
mentioned a while ago on the 2008 rule, which is actually more
restrictive on stream buffers versus the 1983 rule. I don't
quite understand what is going on with the changing of the
rules like that, or the move to do so.
As well, what are alternatives going to be in the future,
if coal, presently a very large chunk of the Nation's energy
supply, and how that is going to be replaced with other
alternatives that people keep pushing, like wind, which, I
guess a waiver was just made recently to allow the continued
chopping-up of eagles and other raptor birds, et cetera, by
those plants--and then solar, which, you know, might be OK, but
it is quite expensive, as long as the incentives keep coming.
And then you have the pall over that of things like Solyndra
over solar.
So, it is really difficult for me to understand where our
energy grid is going to be powered by, if this continued effort
to shut coal down, and the jobs that go with that, the economy
that goes with that, is allowed to be perpetrated.
But going back to what my new colleague from Alabama, Mr.
Byrne, was speaking of, I find it incredible that your office
would feel like you have to play nice with the people you are
investigating, in order to have the flow of information either
now or in the future be available. So you really feel that if
you don't play nice in particular ways, that in the future, or
even under current investigations, that they may not make
information available to you?
I think the American public would find that really
interesting. You feel like there is a possibility they may just
clam up on you?
Mr. Knox. Congressman, it is one factor that we are aware
of, that the Department, if they have a privilege to certain
records, and we don't respect that privilege, they may choose
not to release that sort of information to us in the future. It
has never happened, it is just one consideration.
But I think, more fundamentally, we have come here today
providing our report with redaction. But I should point out
that the redaction is really only about a page-and-a-half out
of a very long report of information pertaining to issues on an
ongoing process, ongoing administrative process. It is not at
all focused on the center of our investigation or, I believe,
the purpose that I was asked to come here to testify about
today.
Mr. LaMalfa. Certainly. It may be a small part, it may be
not a big deal, and no real scope, but I think that it just
overturns--for me, as a new Member--that there is the concept
that information would be so privileged that it is not even
available to you, even behind closed doors, to help you doing
your investigation, and that all of this should be above board
in the light of day for the American public, because the
American public is who pays us, and who pays them, and they are
expecting to have that power to go back to the people that are
being the watchdogs, not just within agencies that have behaved
poorly in a lot of cases.
So, Mr. Chairman, I think that might be a further cause for
follow-up in the future, that this sort of privilege can be
abused and even felt that it is warranted. So I appreciate that
line of questioning by my colleague, as well. So, with that, I
will yield back my time. Thank you.
The Chairman. Good. The Chair recognizes the gentleman from
Utah, Mr. Bishop.
Mr. Bishop. Thank you, Mr. Chairman. With all due respect,
I would like to yield my time to the Chairman.
The Chairman. OK. I thank the gentleman for yielding.
Let's kind of put things into perspective here, just to
make sure that--to capsulize everything that has been asked of
you, Mr. Knox.
Prior to January 26, 2011, the direction that the
contractors were given was to use the 1983 baseline and the
main reason why is because that is the one that had been in
effect. The 2008 baseline had not been in effect. In fact, it
was in court. Is that correct?
Mr. Knox. Mr. Chairman, that is correct.
The Chairman. OK. Now----
Mr. Knox. Except for--you mentioned January?
The Chairman. OK.
Mr. Knox. The contractors, I don't believe, were alerted to
this change until the beginning of February.
The Chairman. Well, OK. I should probably explain why
January 26th was so important. And it was important because
that was when AP leaked the story of the job loss.
Now, there were discussions then about the competence of
the contractors. And your IG did say that OSM was certainly
involved because of the confusion and the rush. All that was
true. Is that correct?
Mr. Knox. That is correct, Mr. Chairman.
The Chairman. All right. Now, you were charged with finding
if there was any political motivation, which is a very hard
thing to prove, obviously. But prior to the leak of the AP, you
stated, I think in the IG report, there is no discussion of
firing the contractor. Is that correct?
Mr. Knox. That is correct, Mr. Chairman.
The Chairman. All right. And then, regarding the baseline,
there is no discussion that the baseline was incorrect. In
fact, the contractors were given the direction to use a 1983
baseline. But that changed after January 26. Is that correct,
by your IG report?
Mr. Knox. Mr. Chairman, that is correct.
The Chairman. All right. Now, I understand it is very
difficult to draw political conclusions. But when you look at
the evidence where a contractor was given direction to use this
baseline, because that was the only one that you could probably
get solid facts from, and then after a leak comes out that,
boy, using that baseline means that there will be some job
loss, then all of a sudden there are changes, one has to just
come to maybe a conclusion that you didn't unearth. Let me put
it that way; let me be soft on this issue.
But when you look at the facts, it is hard to come to
another conclusion to suggest that, especially given this
administration's, I guess, announcement--not announcement, or
actions of war on coal, it is pretty hard to come to a
conclusion that where there is smoke, there is not some fire.
Now, I recognize and respect the fact that you didn't come
to that conclusion, based on your interviews. But when you just
look at the timeline, it is hard to not say that there may be
some interference in there. And I will yield back to the
gentleman from Utah.
He yields back his time. The Chair recognizes the gentleman
from Pennsylvania, Mr. Thompson.
Mr. Thompson. Thank you, Chairman. Thanks for hosting this
hearing.
Mr. Knox, thanks for being here. Thank you for your
service. I mean just, initially, a statement. The role of the
OIG, to me, anyway, is about transparency, and transparency
leads to, if not good government, better government. And so,
all of the report redactions, I find that greatly troubling,
given at least my perception of what the OIG should be about.
Greatly troubles me, not just in the area of natural resources,
but what this means for all areas.
First of all, I want to make sure that we understand the
timeline when OSM changed the baseline. OSM awarded the
Environmental Impact Statement contract in May of 2010. In
December of 2010 they were still insisting on using the 1983
rule. Is that correct?
Mr. Knox. That is correct, Congressman.
Mr. Thompson. Thank you. Then, after the job-loss figure
was leaked in January 2011, OSM all of a sudden changed course
and decided to use the 2008 rule. In December 2010, OSM said to
use the 1983 rule. In January 2011, the job figure is leaked.
In February 2011, almost immediately, OSM demands the
contractors use a 2008 rule and moves to terminate the
contract. Is that sequence of events right?
Mr. Knox. The sequence of events is essentially correct,
Congressman, except they did not move to terminate the----
Mr. Thompson. They did not renew. And I appreciate that, in
your testimony, that clarification. OK.
And in the report, did the IG find that a number of OSM
staffers acknowledged that using the 2008 rule as the baseline
would result in a lower job-loss figure than would result if
the 1983 rule was used?
Mr. Knox. Congressman, yes. Many OSM--several OSM employees
expressed a feeling that it would have an effect of lowering
the job-loss----
Mr. Thompson. OK. So OSM knew that changing the baseline
would change the job numbers.
Next I want to ask you about where the two rules apply. The
2008 rule is not in effect in my State of Pennsylvania. In the
vast majority of the country the 1983 rule is still in effect.
And that means that the reality for my constituents, and for
most of the country, is that the 1983 rule is in effect.
So, the number of job losses across the country from this
new rule will actually be more severe, is that correct?
Mr. Knox. It is my understanding that the 2008 rule is only
in effect in the States of Tennessee and Washington, and that
all other States would be affected, therefore, by the use of
the 2008 ruling calculations.
Mr. Thompson. And within your findings was there any
determination of what the consequence of applying the 2008
rule, in what sounds like the vast majority of the country
where it has not been followed, that that would result in, that
that basically would change the job numbers?
Mr. Knox. In our investigation we repeatedly heard that
proposition from people we interviewed. But we never did get
presented with any sort of calculations that would compare----
Mr. Thompson. OK.
Mr. Knox [continuing]. The outcome between the two rules.
Mr. Thompson. But you did affirm in your testimony, in your
findings, that the OSM staffers knew that changing the baseline
would change the job numbers.
Mr. Knox. That is correct, Congressman.
Mr. Thompson. OK. An OSM official was quoted in the IG
report saying that using 1983 rules was more honest and
accurate. Was he right?
Mr. Knox. Again, Congressman, it is not my field of
expertise. But my understanding of the issues surrounding that
kind of a statement from that one individual, and the general
feeling from the others who supported the use of the 1983 rule
is that you are dealing with actual data.
Mr. Thompson. Right.
Mr. Knox. Whereas, in the States, as we mentioned, that are
not currently using the 2008 rule, to apply that rule would
mean coming up with some data speculatively about--
hypothetically about what production would look like in those
States, if they had the use of the 2008 rule.
Mr. Thompson. And certainly, if we are making policy
decisions that we want to be effective, in my opinion, we don't
want to work with speculation. We want to work with good data.
Finally, I would like to ask you about a statement made by
Director Pizarchik's counsel in the IG report. She is quoted as
saying, ``It is not the real world, this is rulemaking.'' Was
OSM in the real world, where the 1983 rule was applied, or are
they often in the Rulemaking Land?
Mr. Knox. Congressman, all I can say is that in our
investigation the OSM staff who supported using the 2008 rule
felt that, because it was on the books, that it was a rule, it
should be applied.
Mr. Thompson. Thank you. Thank you, Chairman. Maybe for the
first time I yield back when the clock ended.
The Chairman. The gentleman did very well, and we are
taking note of that.
The Chair recognizes the gentleman from Missouri, Mr.
Smith.
Mr. Smith. Thank you, Mr. Chairman. While today's hearing
focuses on one specific aspect of the Obama administration's
war on coal, I would like to take a moment and make some
observations about how this administration's war on coal, and
more generally, the use of rules and regulations to bypass the
policy process, will have disastrous consequences to my
congressional district, and to other districts across rural
America.
Whether it was this week's rule from EPA requiring carbon
capture technology on a new coal-fired power plant that is not
yet commercially viable, or future rules that are going to
attempt to cap carbon emissions from existing power plants, it
is clear that this administration is not giving up its quest to
make new coal plants unaffordable, and to shut down the current
coal plants that power over 80 percent of my congressional
district and most of the Midwest.
If we cannot use the reliable energy coal provides, lights
across rural Missouri and America will be out. My constituents
and their employers depend on the affordable, reliable energy
that coal power provides. With the economy as it is, this
certainly isn't the proper time to raise electric rates on
folks that are just scraping by, especially if the
justification for the massive rate hikes are based in pseudo-
science and conjecture.
Time and time again, this Congress has rejected, in a
bipartisan fashion, initiatives like cap and trade that would
make dramatic policy changes to the way that the coal industry
operates. The response to a congressional rejection of policy
change should not be to go around Congress through the
rulemaking process.
Today's hearing about the so-called Stream Protection Rule,
and the outrageous events surrounding its botched roll-out by
this administration highlights the lengths that they will go to
circumvent the policy process by attempting to make changes
through rules and regulations. When you dismiss data based on
what it says in the face of no other alternatives, you are
making a political decision and not a regulatory one.
Mr. Knox, I have a couple questions. The report shows that
the Stream Protection Rule was over a billion-dollar
regulation, and was the top priority by OSM. In the report, you
detail how the Director called the former regulatory support
division chief to his office and expressed concerns about the
leaked job-loss numbers, and how they could embarrass the
President, since he had just delivered the State of the Union
message ``indicating that jobs would grow in the
Administration.''
In addition, the report cites an OSM official, who was the
project manager, who quoted the Director as telling him that
``obviously, something needs to change,'' and that he was to
``figure out a way that the assumptions could be changed so
that the numbers didn't look so bad.''
Another OSM employee testified that ``her impression was
that this direction ultimately came from the Director,'' and
that she heard that the job-loss number ``was going to be hard
to overcome.''
Yet, when reporting on your interview with the Director
regarding changing the baseline, ``He said he didn't know who
made the decision.'' Is that even believable?
Mr. Knox. Congressman, all of the things you have just
expressed are in our report, and we have reported for
consideration by the Department, by the Bureau, and by this
body, by the Congress, for action as appropriate. But the OIG
is responsible for pursuing allegations, gathering facts, and
providing that information back to decisionmakers about what
action might be appropriate to take.
Mr. Smith. All right. Again, how could the Director not be
aware of such an important decision that was getting national
media coverage through the Associated Press story, and was
consuming this agency with meetings, public conferences, and
letters to contractors on a multi-million-dollar contract?
Mr. Knox. I can't speak for what the Director may or may
not have been aware of.
Mr. Smith. Do you believe the Director was being honest in
his response?
Mr. Knox. Congressman, we found no evidence that he was
being dishonest.
Mr. Smith. Those statements that I just quoted, do you
think those were his statements, or were those not correct?
Mr. Knox. He made these statements. Well, we would have to
pick those apart, piece by piece. Most of those statements were
made by the project manager.
Mr. Smith. I hope that you are picking those piece by
piece, and I hope that you are not going to allow politics to
get in the decision. Thank you.
The Chairman. The time of the gentleman has expired. I
understand that Ms. Shea-Porter has a brief question, and the
gentlelady is recognized.
Ms. Shea-Porter. Thank you very much. I had a colleague
state that there was not mining going on inside of streams. So
I just wanted to quote from the Federal Register Friday,
December 12, 2008, the rules and regulations. ``Activities in
or adjacent to perennial or intermittent streams. Application
requirements for surface mining activities in a perennial or
intermittent stream,'' and your application must demonstrate
that ``avoiding disturbance of the stream is not reasonably
possible.'' And application requirements for surface mining
activities within 100 feet of a perennial or intermittent
stream, your application must demonstrate that ``avoiding
disturbance of land within 100 feet of the stream either is not
reasonably possible, or is not necessary to meet
requirements.''
So, actually, I thought it was important. I thank you for
giving me the opportunity to state that this is, indeed, an
issue here for the Natural Resources Committee, because it is
actually in the rule. Thank you very much, and I yield back.
The Chairman. I thank the gentlelady.
I want to thank all of the Members for being here. And, Mr.
Knox, from time to time after these hearings, further questions
arise. And if further questions do arise, we will send you a
letter and ask you to respond back, and we would ask you to
respond back in a very, very timely manner.
But I very much appreciate the report that you have given
us. I appreciate the time that you have given us, and your
answers. And particularly the last exchange you had with Mr.
Smith, where you simply put the facts out there. However those
are to be interpreted are for us to interpret them. And I
alluded to that when I spoke just a moment ago, and I think
that is exactly where Mr. Smith was coming from. And others may
have different views, but you have given us the facts where
these things were said in a timeline that, for lack of a better
word, would be ``curious,'' if there wasn't a motivation other
than what conclusion you came to. But I won't ask you to
respond to that. Thank you very much for your report.
And before we adjourn, I just want to make a brief
statement, because this has been an ongoing issue. We have had
questions and concerns about this rulemaking process for nearly
3 years. This IG report raises further questions about what the
Obama administration did to manipulate the data, to lessen the
economic impacts on what the administration is currently doing
as they move forward with this rewrite.
There is now a bipartisan opposition to this rulemaking
process. This committee will continue our oversight efforts and
our advancement of legislation to put an end to this job-
destroying rewrite. And Mr. LaMalfa alluded to that.
But before we conclude this hearing, I want to follow up on
something that I said last December. One of the topics
mentioned was how we could continue with aggressive oversight
of this administration, how we are running out of patience with
this lack of transparency and ongoing refusal to provide us
with documents and information that we have been seeking, and,
in some cases, seeking for years. As this hearing shows with
many Members, our patience is running out.
It is troubling that the Interior Department continues to
withhold documents about this matter and is again telling the
IG not to provide documents. We have the Department of
Agriculture and the Office of Management and Budget refusing to
turn over all subpoenaed documents and make witnesses available
to the committee for our investigation into the Secure Rural
Schools program. We have the Interior Department refusing to
turn over documents and make witnesses available in a number of
matters, including our investigations into ethics within the
Department, and conflicts of interest by senior officials
within the Department.
We have been exceedingly patient in this past year, and
have waited to give the new Interior Secretary a chance to get
up to speed. But as the administration's refusal to provide the
necessary information has left us no other choice than to
proceed and to utilize all available tools to this committee,
including the uses of subpoenas for documents, and potentially
subpoenas for witnesses.
So I want to tell the committee that we are going to
continue this. But, from my perspective, as I just mentioned,
our patience is wearing thin. And we are going to be very
aggressive on this this year.
So, with that, if there is no further business to come
before the committee, the committee stands adjourned.
[Whereupon, at 11:55 a.m., the committee was adjourned.]
[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE COMMITTEE'S
OFFICIAL FILES]
Investigative Report of OSM Environmental Review, December
20, 2013, Office of Inspector General, U.S. Dept. of the
Interior.