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99–405 PDF 2016

S. HRG. 114–379 

THE STREAM PROTECTION RULE: IMPACTS ON 

THE ENVIRONMENT AND IMPLICATIONS FOR 

ENDANGERED SPECIES ACT AND CLEAN WATER 

ACT IMPLEMENTATION 

HEARING 

BEFORE THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

FEBRUARY 3, 2016 

Printed for the use of the Committee on Environment and Public Works 

( 

Available via the World Wide Web: http://www.gpo.gov/fdsys 
(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

JAMES M. INHOFE, Oklahoma, Chairman 

DAVID VITTER, Louisiana 

JOHN BARRASSO, Wyoming 

SHELLEY MOORE CAPITO, West Virginia 

MIKE CRAPO, Idaho 

JOHN BOOZMAN, Arkansas 

JEFF SESSIONS, Alabama 

ROGER WICKER, Mississippi 

DEB FISCHER, Nebraska 

MIKE ROUNDS, South Dakota 

DAN SULLIVAN, Alaska 

BARBARA BOXER, California 

THOMAS R. CARPER, Delaware 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

SHELDON WHITEHOUSE, Rhode Island 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER, New Jersey 

EDWARD J. MARKEY, Massachusetts 

RYAN JACKSON, Majority Staff Director 

BETTINA POIRIER, Democratic Staff Director 
(III) 

C O N T E N T S 

Page 

FEBRUARY 3, 2016 

OPENING STATEMENTS 

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma .................... 1 

Boxer, Hon. Barbara, U.S. Senator from the State of California ........................ 14 

WITNESSES 

Parfitt, Todd, Director, Wyoming Department of Environmental Quality, prepared statement ................................................................................................... 5 

Pizarchik, Joseph, Director, Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior ....................................................... 15 

Prepared statement .......................................................................................... 18 

Erdos, Lanny, Chief, Division of Mineral Resources Management, Ohio Department of Natural Resources ........................................................................... 59 

Prepared statement .......................................................................................... 62 

Larkin, Clay, Partner, Dinsmore and Shohl ......................................................... 65 

Prepared statement .......................................................................................... 67 

Wasson, Matt, Director of Programs, Appalachian Voices ................................... 73 

Prepared statement .......................................................................................... 75 

ADDITIONAL MATERIAL 

Letters: 

To Joseph G. Pizarchik, Director, Office of Surface Mining Reclamation 

and Enforcement, U.S. Department of the Interior: 

From Todd Parfitt, Director, Wyoming Department of Environmental 

Quality, May 22, 2015 ........................................................................... 104 

From Todd Parfitt, Director, Wyoming Department of Environmental 

Quality, October 23, 2015 ..................................................................... 106 

From Russell Kirkham, CPG, Manager, Coal Regulatory Program, 

Alaska Department of Natural Resources, October 26, 2015 ............ 112 

From Daniel Graham, PE, President, Alaska Coal Association, October 26, 2015 ............................................................................................ 157 

From Deantha Crockett, Executive Committee, Alaska Miners Association, October 26, 2015 ....................................................................... 162 

From Marleanna Hall, Executive Director, Resource Development 

Council for Alaska, Inc., October 26, 2015 .......................................... 167 

From Senator James M. Inhofe, September 27, 2016 ............................ 170 

To Janice M. Schneider, Assistant Secretary, Land and Minerals Management, U.S. Department of the Interior: 

From Todd Parfitt, Director, Wyoming Department of Environmental 

Quality, December 3, 2015 .................................................................... 171 

From Todd Parfitt, Director, Wyoming Department of Environmental 

Quality, January 19, 2016 .................................................................... 173 

Statement from the National Endangered Species Act Reform Coalition .......... 176 

Testimony of John Corra, Director, Wyoming Department of Environmental 

Quality before the House Energy and Mineral Resources Subcommittee 

re Oversight Hearing on Jobs at Risk: Community Impacts of the Obama 

Administration’s Effort to Rewrite the Stream Buffer Zone Rule, September 

26, 2011 ................................................................................................................. 178 

The Human Cost of Coal, iLoveMountains.org, printed February 2, 2016 ......... 186 

(1) 

THE STREAM PROTECTION RULE: IMPACTS 

ON THE ENVIRONMENT AND IMPLICATIONS 

FOR ENDANGERED SPECIES ACT AND 

CLEAN WATER ACT IMPLEMENTATION 

WEDNESDAY, FEBRUARY 3, 2016 

U.S. SENATE, COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, Washington, DC. 

The Committee met, pursuant to notice, at 9:35 a.m. in room 

406, Dirksen Senate Office Building, Hon. James M. Inhofe (Chairman of the Committee) presiding. 

Present: Senators Inhofe, Boxer, Barrasso, Capito, Boozman, 

Fischer, Sullivan, Cardin, Gillibrand, and Markey. 

OPENING STATEMENT OF HON. JAMES M. INHOFE, 

U.S. SENATOR FROM THE STATE OF OKLAHOMA 

Senator INHOFE. The hearing will come to order. 

We appreciate you and the witnesses on the second panel being 

here. I think we are going to have a bigger turnout in a few minutes. 

Let’s go ahead and get our opening statements out of the way, 

if that is all right, Senator Boxer. 

Today’s hearing is to examine the Department of Interior’s Office 

of Surface Mining Stream Protection Rule and its nexus with implications to the Clean Water Act and the Endangered Species Act. 

I would also like to discuss the NEPA process for developing this 

rule. In particular OSM’s failure to allow States a meaningful opportunity to participate in the NEPA process, even though they 

were cooperating agencies under NEPA. 

This rule establishes the conditions a coal mining operation is 

going to have to meet to receive a permit under the Surface Mining 

Control and Reclamation Act, also known as SMCRA. 

SMCRA includes provisions for protecting the environment. However, SMCRA also specifically says that it does not authorize duplicative Federal environmental regulation. And under SMCRA, in 24 

authorized States, the State agency—not the Federal Government—makes coal mining permitting decisions. 

Unfortunately, the rule that the Office of Surface Mining proposed just last July would establish new onerous conditions that 

duplicate or supersede existing Clean Water authorities of States 

and the Corps of Engineers, which I contend is an illegal power 

grab. 
2 

Under the Clean Water Act, States establish water quality standards. The so-called Stream Protection Act would override that authority and let OSM set new water quality standards for coal mining operations. These new standards are set at the whim of OSM 

without any of the notice and comment rulemaking required under 

the Clean Water Act and can be used to override State water quality certifications and the State coal mining permitting authorities. 

Again, it is a power grab. 

Under the Clean Water Act, the Corps of Engineers issues permits to fill in streams. The Stream Protection Rule would allow 

OSM to override the Corps’ authority by adding conditions to 

SMCRA permits over and above what the Corps requires in section 

404 permits and by creating even more confusion over the reach of 

the Federal authority under the Clean Water Act, the issue that is 

being litigated as part of the WOTUS rule challenges. Again, a 

power grab. 

Under the Endangered Species Act, the Fish and Wildlife Service 

lists threatened and endangered species. Under the Stream Protection Rule, States are required to meet new conditions that apply 

not only to listed species, but also species that Fish and Wildlife 

have proposed for listing, circumventing the notice and comment 

rulemaking process required for listing new species under the ESA. 

Now, even worse, the proposed rule would give Fish and Wildlife 

unprecedented veto authority over State permits. So that is what 

is all the way through this. 

Under NEPA, cooperating agencies are supposed to be granted 

access to information and an opportunity to provide comments 

while an Environmental Impact Statement is being developed. 

Eleven States became cooperating agencies for the Environmental 

Impact Statement for this rule. However, OSM shut them out of 

the process, failing to provide any information to States since early 

2011. As a result, OSM developed a rule for a State administered 

program without adequate State involvement. 

The unauthorized provisions of this proposed rule will have a significant adverse effect on mining States. It will add so many layers 

of bureaucracy that mining permits will halt and even current permits could be reopened, causing severe economic impacts. 

Now, I know this is true. I spent last Friday out north of Poteau, 

Oklahoma. That is a big mining area that we have historically. It 

has been there for many, many years. People don’t think of Oklahoma as being a coal mining State, but what we have is people 

really hurting out there. It is a serious problem. 

In comments Senator Capito filed on this proposed rule in September of last year, she noted that finalizing this rule would result 

in an annual loss in coal production valued at $14 billion to $20 

billion and losses in Federal and State revenues of $4 billion to $5 

billion a year. 

The coal industry has already lost tens of thousands of jobs in 

the past few years. We have to be cautious to ensure we don’t regulate into extinction one of the most important energy sources for 

this country, which I think is some people’s intention. 

So, this is the situation created by this proposed ‘‘Stream Protection Rule’’—State water quality standards under the Clean Water 

Act will be superseded by new standards that OSM creates. The 
3 

Corps of Engineers’ permits under section 404 of the Clean Water 

Act will be superseded by new conditions imposed by OSM. A permit that a State coal mining permitting authority wants to issue 

can be vetoed by the Fish and Wildlife Service based on impact to 

species that are not even listed under the Endangered Species Act. 

All this Federal overreach is going to impose a hardship on coal 

miners and the States they live in. 

I want to thank our witnesses for being here. Unfortunately, one 

of our witnesses, Director Todd Parfitt from Wyoming, he couldn’t 

do it because of some weather issues they had up there, so I would 

ask unanimous consent that his statement be placed in the record. 

Thankfully, we have Mr. Larkin here with us today who was able 

to step in at the last minute, and I look forward to hearing from 

all of our witnesses. 

Senator Boxer. 

[The prepared statement of Senator Inhofe follows:] 

STATEMENT OF HON. JAMES M. INHOFE, 

U.S. SENATOR FROM THE STATE OF OKLAHOMA

Today’s hearing is to examine the Department of the Interior Office of Surface 

Mining’s Stream Protection Rule and its nexus with implications to the Clean Water 

Act and the Endangered Species Act. I would also like to discuss the NEPA process 

for developing this rule—in particular, OSM’s failure to allow States a meaningful 

opportunity to participate in the NEPA process, even though they were cooperating 

agencies under NEPA. 

This rule establishes the conditions a coal mining operation must meet to receive 

a permit under the Surface Mining Control and Reclamation Act—also known as 

SMCRA. 

SMCRA includes provisions for protecting the environment. However, SMCRA 

also specifically says that it does not authorize duplicative Federal environmental 

regulation. And under SMCRA, in 24 authorized States, the State agency, not the 

Federal Government, makes coal mining permitting decisions. 

Unfortunately, the rule that the Office of Surface Mining proposed last July would 

establish new onerous conditions that duplicate or supersede existing Clean Water 

Act authorities of States and the Corps of Engineers. 

Under the Clean Water Act, States establish water quality standards. The socalled Stream Protection Rule would override that authority and let OSM set new 

water quality standards for coal mining operations. These new standards are set at 

the whim of OSM, without any of the notice and comment rulemaking required 

under the Clean Water Act and can be used to override State water quality certifications and State coal mining permitting authorities. 

Under the Clean Water Act the Corps of Engineers issues permits to fill in 

streams. The so-called Stream Protection Rule would allow OSM to override the 

Corps’ authority by adding conditions to SMCRA permits over and above what the 

Corps requires in a section 404 permit and by creating even more confusion over 

the reach of Federal authority under the Clean Water Act—the issue that is being 

litigated as part of the WOTUS rule challenges. 

Under the Endangered Species Act, the Fish and Wildlife Service lists threatened 

and endangered species. Under the so-called Stream Protection Rule, States are required to meet new conditions that apply not only to listed species, but also species 

that FWS has proposed for listing, circumventing the notice and comment rulemaking process required for listing new species under the ESA. Even worse, the 

proposed rule would give FWS unprecedented veto authority over State permits. 

Under NEPA, cooperating agencies are supposed to be granted access to information and an opportunity to provide comments while an Environmental Impact Statement is being developed. Eleven States became cooperating agencies for the EIS for 

this rule. However, OSM shut them out of the process, failing to provide any information to States since early 2011. As a result, OSM developed a rule for a State 

administered program without adequate State involvement. 

The unauthorized provisions of this proposed rule will have a significant adverse 

effect on mining States. It will add so many layers of bureaucracy that mining permits will halt, and even current permits could be reopened, causing severe economic 

impacts. In comments she filed on this proposed rule in September of last year, Sen-
4 

ator Capito noted that finalizing this rule would result in an annual loss in coal 

production valued at $14 billion to $20 billion and losses in Federal and State revenues of $4 billion to $5 billion a year. 

The coal industry has already lost tens of thousands of jobs in the past few years. 

We must be cautious to ensure we don’t regulate into extinction one of the most important energy sources for this country. 

So, this is the situation created by this proposed ‘‘stream protection rule’’: 

State water quality standards under the Clean Water Act will be superseded by 

new standards that OSM creates. 

The Corps of Engineer’s permits under section 404 of the Clean Water Act will 

be superseded by new conditions imposed by OSM. 

A permit that a State coal mining permitting authority wants to issue can be vetoed by the Fish and Wildlife Service based on impact to species that are not even 

listed under the Endangered Species Act. 

All this Federal overreach is going to impose severe hardship on coal miners and 

the States they live in. 

I want to thank our witnesses for being here today. Unfortunately one of our witnesses, Director Todd Parfitt, was unable to make it to today’s hearing due to 

weather issues. I ask unanimous consent that his statement be placed in the record. 

Thankfully, we have Mr. Larkin here with us today who was able to step in last 

minute. I look forward to hearing all of your testimonies. 

[The prepared statement of Mr. Parfitt follows:] 
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OPENING STATEMENT OF HON. BARBARA BOXER, 

U.S. SENATOR FROM THE STATE OF CALIFORNIA 

Senator BOXER. Thanks so much. 

Mr. Chairman, could I have an additional minute, as you did? 

Senator INHOFE. Sure. 

Senator BOXER. So we have 6 minutes on the clock. Thanks. Because this is really important. Today the majority have decided to 

hold a hearing on the Department of the Interior’s proposed 

Stream Protection Rule. Now, the proposed rule is going to revise 

30-year-old regulations based on significant scientific advances on 

the impacts of surface coal mining on human health. That is important, human health, and the environment. 

Now, coal mining regulations under the Surface Mining Control 

and Reclamation Act, that generally falls under another committee’s jurisdiction, but I appreciate the fact that my chairman, who 

I respect and admire, feels there are implications in our jurisdiction, so we are having this hearing. And I am glad, in a sense, that 

we are because I have a lot to say about it. 

There is a growing body of peer reviewed science that shows that 

people living downstream from coal mines face a greater risk of 

cancer, birth defects and premature death. Let me say it again. We 

are not just talking about some problem far from Earth. A growing 

body of peer reviewed science shows people living downstream from 

coal mines face a greater risk of cancer, birth defects, and premature deaths. We have a witness who will testify to that. 

So what does the majority want to do? It is clear. They want to 

disrupt a rule that is going to protect the people of, particularly, 

Appalachia. The Stream Protection Rule will place limits on the 

dumping of mine waste in headwater streams and mountaintop removal coal mines, one of the most destructive mining practices 

used today. 

This practice involves literally cutting the tops off of mountains 

and dumping the excess rock and soil into headwater streams that 

are critical for flood control, water quality, and the health of some 

of the Nation’s most precious ecosystems. This isn’t made up, this 

is factual. Mountaintop removal coal mining has already destroyed 

more than 500 mountains, buried more than 2,000 miles of headwater streams, and polluted thousands of miles of downstream surface waters. 

And the mining waste associated with these sites can include a 

host of toxic chemicals. Let’s hear what these chemicals are. I am 

sure you would love to drink a glass of water with these chemicals 

in them: selenium, arsenic, lead. How about giving it out to my colleagues here? None of them would drink that, because these toxins 

can leach into streams and rivers, severely degrading water quality. 

For the first time, the proposed Stream Protection Rule coal mining companies to collect baseline data on water quality and require 

mining companies to monitor streams during mining and reclamation to ensure that downstream waters are not harmed. 

Having this information is critical for affected citizens to know 

if their sources of drinking water are being polluted. We just faced 

the Flint, Michigan, travesty, tragedy—whatever you want to call 

it, either one of those words. Don’t you think the people here have 
15 

the right to know what is in their water? You would if it was your 

grandkid. I certainly would if it was mine. And I certainly feel it 

is fair to the people there to know what toxins are in their drinking 

water. 

So what does this Environment Committee do on the heels of 

Flint? First, we pass an amendment last time that says, oh, you 

can take pesticides and spray them on water sources that are for 

drinking water; sure, you don’t need a permit. They passed here. 

They put it in the Sportsmen’s Act. In the base of the Sportsmen’s 

Act it says fishing tackle that has lead can never be regulated 

under TSCA. So they have done those two things. And today is another wonderful thing this Environment Committee is doing. My 

friend, he and I, I hope we can get back to infrastructure issues, 

because on that we work so well. 

Senator INHOFE. WRDA is coming up. 

Senator BOXER. WRDA is coming up, and it makes me so happy. 

But in the meantime, here we go. On the heels of Flint, yet another 

move by this so-called Environment Committee to say that let’s disrupt a rule. 

Now, the Department of Interior is doing the right thing—regardless of what I think we are going to hear—to modernize its 

mining rules, and we are going to say the coal industry has to be 

consistent with national standards of drinking water protection. 

The poisoning, again, by lead of children in Flint has shaken the 

Nation. We can laugh all we want. This is the time for us to protect 

the waters that our kids drink, not to just say, oh, let’s just walk 

away from this rule that is going to strengthen the power of the 

community to know what they are drinking. So stopping the 

Stream Protection Rule is not right. 

Now, we are going to hear from the people of the community. I 

am so glad we have that witness. And here is the deal. No rule is 

perfect. I am sure this one isn’t perfect. I have heard from environmental groups and health organizations that think this is a weak 

sister of a rule; it is not good. And then we have the other side that 

says forget about it, we don’t need any rule, this is just perfect. So 

obviously there is room for us to work together. 

We can craft something that is going to make sense. But to disrupt this rule as we are looking at the poor people of Flint and 

what this is costing them in brain damage, in money, and in fear, 

to disrupt a rule that is protective of the people I think is the 

wrong thing to do. 

Thank you. 

Senator INHOFE. Thank you, Senator Boxer. 

Mr. Pizarchik, you are recognized for your opening statement. 

STATEMENT OF JOSEPH PIZARCHIK, DIRECTOR, OFFICE OF 

SURFACE MINING RECLAMATION AND ENFORCEMENT, U.S. 

DEPARTMENT OF THE INTERIOR 

Mr. PIZARCHIK. Thank you, Chairman Inhofe, Ranking Member 

Boxer, and other members of the Committee for the opportunity to 

be here today. I am here to testify how the proposed Stream Protection Rule complements the Clean Water Act and Endangered 

Species Act and fills the water protection gaps as required by the 

Surface Mining Control and Reclamation Act. 
16 

The proposed Stream Protection Rule includes reasonable and 

straightforward reforms to modernize 30-plus-year-old coal mining 

rules. We recognize that coal mining and coal-fired electricity production will continue to be a part of our energy mix for decades. 

The proposed rule incorporates current science, technology, and 

modern mining practices while also safeguarding communities and 

protecting our streams from the long-term effects of pollution and 

environmental degradation that endanger public health and undermine the future economic viability of coal country communities. 

The proposed rule was available for public review and then comment for over 3 months. We held six public hearings, extended the 

public comment period, and received more than 94,000 comments, 

adding to the more than 50,000 comments previously provided by 

States and other stakeholders. 

We have learned a great deal over the past three decades about 

the impacts of coal mining and how to avoid or minimize those impacts. The final rule will strike an appropriate balance between 

protecting our water and the Nation’s need for coal. The rule will 

provide greater regulatory certainty to the mining industry; it will 

improve consistency with the Endangered Species Act and promote 

coordination and cooperation with the agencies that implement the 

Clean Water Act. 

It is important to note that Congress clearly delegated protection 

of the waters of the United States to the Environmental Protection 

Agency and also provided the Army Corps of Engineers a role to 

play when fill will be placed in a stream. 

It is our expectation that the proposed rule, once finalized, will 

fill regulatory gaps through a more complete implementation of our 

legal obligations under SMCRA. Our rules to fulfill the legal requirements of SMCRA will complement, and not conflict with, the 

Clean Water Act requirements. 

SMCRA specifically requires regulatory authorities to protect 

water resources during coal mining, and these protections go beyond the protections that are provided by the Clean Water Act. 

Most notably, the Surface Mining Act requires coal operators to 

minimize disturbances to the prevailing hydrologic balance in the 

permit area and to prevent material damage to the hydrologic balance outside the permit area. 

It is also important to note that we are not changing our longstanding rules that require mine operators to comply with all applicable Clean Water Act requirements. The proposed rule seeks to 

strike the right balance between fulfilling our statutory obligations 

while providing the appropriate deference to Clean Water Act regulatory authorities to fulfill their duties. The final SPR will do so in 

a complementary and effective manner. 

With regard to the Endangered Species Act, the proposed rule 

would codify the existing process contained in the 1996 biological 

opinion where coal mining may adversely affect species listed or 

threatened as endangered. These provisions will ensure that the incidental take coverage provided by the 1996 bi-op is effective for 

the State regulator and the mine operator when the permit is 

issued. 

Based on comments we received, the final rule will likely include 

changes and modifications to further clarify and make it easier for 
17 

people to understand there are no conflicts with the Clean Water 

Act or the Endangered Species Act. 

OSMRE’s analysis and outreach to stakeholders identified seven 

key areas for improvement to fulfill the requirements of the law. 

They include a better understanding of baseline environmental conditions at mining sites; improved monitoring during mining and 

reclamation; clarity on what constitutes material damage to the hydrologic balance outside the permit area; and enhanced material 

handling and restoration requirements designed to take advantage 

of the advances over the last 30 years, which will enable responsible operators and regulators to better protect people and their 

water from the adverse effects of coal mining; the proposed rule 

would protect several thousand miles of stream. 

The costs contained in the draft Regulatory Impact Analysis compared to the industry total revenues are a fraction of those. The 

proposed rule is what Americans expect from their Government, a 

modern and balanced approach to energy development that protects their water. It provides coalfield communities an economic future. The proposed Stream Protection Rule provides State regulators the flexibility to tailor their protections to individual mines 

or regions. The rule will reduce conflicts, reduce costs, enhance coordination among regulators, and provide for a more effective implementation of the Surface Mining Act, the Clean Water Act, and 

the Endangered Species Act. 

Thank you. 

[The prepared statement of Mr. Pizarchik follows:] 
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Senator INHOFE. Mr. Pizarchik, section 702 of SMCRA says that 

you have no authority to supersede—reading out of the statute 

now—amend, or modify any other Federal law, including laws relating to water quality. You just heard my opening statement. I 

mentioned three specific areas how the Stream Protection Rule 

would expand the Federal authority to do exactly what the law 

says not to do. Three things: by superseding State authority of 

water quality standards under section 303, by superseding the 

Corps’ authority to issue permits to fill in streams under 404, and 

by expanding the Fish and Wildlife authority under the Endangered Species Act. 

Now, I am going to ask you this for the record, because I used 

the rest of my time by verbalizing it. So the question I am going 

to ask you is, do you claim that your rule won’t have these effects, 

and how would you claim that? That would be for the record. 

Farrell Cooper, a mining company in Oklahoma, I was there last 

Friday. I think quite often the regulators here who are usurping 

more powers from State and from local government and from other 

departments, if they just go out and see the people out there. Half 

of Farrell Cooper right now, they are unemployed already as a result of what is anticipated from this. Despite the fact that the State 

controls its own surface, nonetheless, that is happening. 

Now, we talked about this issue before. You claim that they 

haven’t appropriately done reclamation. But I can tell you that the 

reclamation is good. The Oklahoma Department of Mines agrees 

with me and Farrell Cooper, and your own Department of Interior 

Office of Hearings and Appeals and the courts agree with me and 

Farrell Cooper, and they disagree with your interpretation of the 

law. The company spent millions of dollars fighting your accusations in multiple lawsuits, and in the process they have had to lay 

off half of their work force, and these are good paying jobs. 

Now you are trying to bypass the courts and win those lawsuits 

with the regulations that we are talking about today, which would 

overturn 35 years of legal precedence relating to how reclamation 

is done. 

I would like to ask you why don’t we just resolve this issue in 

Federal court? Would you be willing—would you agree to just support moving the case to the Federal District Court so a fair trial 

with a qualified judge could be heard? What do you think? 

Mr. PIZARCHIK. Senator, I appreciated when we visited the Rock 

Island mine together summer before last to look at the reclamation 

that the Arkansan Mining Company did and how it did not restore 

the land to AOC, to the detriment of that farmer with those 45- 

foot spoil piles and 100-foot deep water filled impoundments. And 

you are right, there are three litigation cases out there. I can’t comment on the—it is Department policy not to comment on litigation, 

and we would certainly entertain what you are saying. I would 

have to take that back to the Department, talk with our lawyers 

and talk with the Department of Justice because you are right, two 

of those cases where the court ruled in accordance with what you 

said; the third case actually agrees with us, and that one is still 

being briefed, and they are all under appeal, and we will have to 

see where the courts go. 
29 

Senator INHOFE. In terms of fulfilling this request, you would 

consider doing this? You say take it to the appropriate people. Who 

are they? 

Mr. PIZARCHIK. Senator, I can’t make that decision here; I will 

need to talk to our lawyers and everybody else. I believe we ought 

to allow the courts to continue to fulfill their duties in accordance 

with the law; that is the way it is set up. There are three appeals 

before them, and I think it is appropriate for them to go through 

that process. As I understand the law, once that decision is made, 

there would be opportunities for appeal to a higher level court. So 

I think it would be premature to short circuit the current administrative and legal process. 

Senator INHOFE. So your answer to that question is no, in terms 

of doing it now? 

Mr. PIZARCHIK. I think we should allow the process to continue 

in the courts. 

Senator INHOFE. All right. Now, let me ask you is there anything 

ambiguous about this language in 702? Let me just read it from the 

statute. It says ‘‘Nothing in this chapter shall be construed as superseding, amending, modifying, or reopening the Mining and Minerals Policy Act of 1970, the National Environmental Policy Act of 

1969, or any of the following Acts,’’ and then it lists all eight of the 

acts that fall under this category. Is that ambiguous? 

Mr. PIZARCHIK. I do not find it ambiguous, no. 

Senator INHOFE. OK. I want staff to take this over and give it 

to Mr. Pizarchik. One of the problems we have is getting information from the bureaucracies and making requests, even in those 

that are in the jurisdiction of this committee. In this case, the documents that we have had, all documents, we are going to request 

in writing that within 2 weeks you send to us—now, we have made 

this request before, my junior Senator and I have both made the 

request in June and September, and we haven’t heard back yet. So 

the request is for all documents including, but not limited to, emails, memoranda, legal analysis concerning communications between the OSM reclamation and enforcement, including yourself, 

and the Office of Solicitor regarding the overturn of the decision in 

November 2010 and the issuance of INE–35. No. 2, all documents 

including, but not limited to, e-mails, memos, and legal analysis 

concerning the communications to or from Director Pizarchik, yourself, about the INE–26, including February 2015 and the decision 

to rescind INE–26. 

Now, will you commit to getting this information for us, for this 

Committee? 

Mr. PIZARCHIK. Senator, I am aware of those document requests, 

and it is my understanding that the Department has already provided several thousand pages of documents to the Committee and 

that we are working to continue to provide comments and to supplement those responses, and I anticipate that we will be providing 

supplemental responses, including additional responsive documents, very shortly. I would have to get back to you regarding any 

specific details on that, but we are continuing to process the requests. 

Senator INHOFE. Well, the requests, though, are very specific. 

What we have received is not specific, so we thought we would just 
30 

be more specific. I am just asking for you to stay to us you will supply us this information within 2 weeks. 

Mr. PIZARCHIK. Senator, I have not read these comments. 

Senator INHOFE. I just read them to you. 

Mr. PIZARCHIK. Well, I would be happy to take them back to the 

Department for evaluation so that we can provide an appropriate 

response. 

Senator INHOFE. Well, you have had the request from myself, 

several others, including my junior Senator, for months now, so you 

have had plenty of time to look over. In fact, the very wording that 

you are looking at there you have seen before. So I ask you a third 

time will you give us this information in 2 weeks? 

Mr. PIZARCHIK. We will continue to process the document requests and provide the appropriate response documents as soon as 

we can. We have already provided several thousand pages and we 

will continue to do so. 

Senator INHOFE. Senator Boxer. 

Senator BOXER. Thanks. Again I would ask that I have 2 minutes more. 

Senator INHOFE. I was 1 minute over. 

Senator BOXER. You were 2:43 over. 

Senator INHOFE. You can have 2:44, how is that? 

Senator BOXER. OK, 2:44. 

Senator SULLIVAN. Do we all get 2 minutes more? 

Senator BOXER. No. This is our thing. 

Senator INHOFE. Well, no, no. In that unanimous consent, the 

next two that will be heard will be Senator Markey and Senator 

Sullivan. I ask unanimous consent that they also be given 7 minutes instead of 5 minutes. 

Senator BOXER. Absolutely. 

Senator INHOFE. OK. No objection. Then we go back to 5 minutes. 

Senator BOXER. I want to hear from all of them at great length. 

All right. 

Senator SULLIVAN. We can do it in 5. 

Senator BOXER. I can’t, because there is so much to talk about, 

there really is. 

Now, just in general I want to make a comment, that the majority party here, with all due respect, this is their philosophy, they 

demonize anybody in the Federal Government, my view, who is trying to help protect the environment and public health. They demonize. And I will tell you why it is wrong. But I will wait until 

they are finished. 

[Pause.] 

Senator INHOFE. Go ahead. 

Senator BOXER. I waited. 

OK, I am back. 

Senator INHOFE. Oh, good. 

Senator BOXER. You so don’t want to hear this. 

The majority demonizes any Federal agency that tries to help; it 

doesn’t matter if it is the EPA, they demonize. It doesn’t matter if 

it is you, sir. Do not take what they throw at you personally. They 

don’t mean it personally at all. They just don’t want any involvement. And here is what is so odd. 
31 

I remember the BP oil spill. It went on and on. Senator Markey 

and I, and I remember Senator Nelson, we were so frustrated, 

along with the Senators from Louisiana, both Republican and Democrat, because no one could seem to come up with the answer. You 

know who did? The Secretary of the Interior, Steven Chu. Because 

he got in there, he took charge because he was very smart and 

knew. He happened to be from the Federal Government, and he 

found out there was a technology that needed to be used to really 

look at this spill in a better way. Once they figured it out, they 

stopped it. 

Now, we have a situation in California right now. I am so grateful to my colleagues because we now set up a task force headed by 

the DOE to come in and look. So why do we always have to demonize somebody? 

The fact is wisdom does not reside with the Federal Government, 

with the State government, with the local government, with anybody on this panel. All wisdom doesn’t reside. We all have some 

good ideas. So when we get together and work together, it is fine. 

Now, it is my understanding, sir, that you took a lot of input 

from the public as you put this together. Is that correct? Could you 

describe the process a bit? 

Mr. PIZARCHIK. Yes, Senator, we did. We started off with an advanced notice of proposed rulemaking, which was preceded by some 

stakeholder outreach sessions. We met. I had 15 different meetings 

with industry, environmental community, citizens. Now, we have 

the advanced notice of proposed rulemaking with public comments 

on that. We also did two public scoping sessions, one where we had 

nine public meetings across the country. Those processes generated 

well in excess of 50,000 comments. We shared drafts of the EIA 

with the cooperating agencies and received many, many comments 

from the States, numerous comments that were very helpful and 

are reflected in the final rule. And we proposed the rule and we 

received about 94,000 more comments in addition to what we have. 

The process that we had done has been unprecedented for this 

agency, and the amount of comments we have had is far in excess 

of any rulemaking that we have done in the past. 

Senator BOXER. And sir, isn’t it true that your rule has been 

criticized by the left and the right? In other words, people who 

want to see it be more stringent and those who say you are duplicative and you are surpassing the ESA, as my chairman has said? 

Isn’t it true that those are the comments you received? 

Mr. PIZARCHIK. Yes, Senator, they are. 

Senator BOXER. I think that is an important point. You did something right. Everybody is mad at you. You know, you tried to find 

some ground that you could defend and that you could truly say 

is a compromise, and I thank you for that. 

Now, in your job, you are the Director of the Office of Surface 

Mining Reclamation and Enforcement. Isn’t it true that you are required under the law to protect the environment? Isn’t that actually in the law? 

Mr. PIZARCHIK. Yes, Senator. If you look at the Surface Mining 

Act, there are numerous provisions in it that talk about the purposes of the law and what I am supposed to do. It is protecting the 

people and the environment from the adverse effects of coal min-
32 

ing, preventing the pollution from coal mining. And we have numerous provisions. I also have to strike a balance with coal. But 

the law is an environmental protection and public protection law. 

Senator BOXER. Fine. This is important, because when you get 

criticized by my friends here, they are my friends, I love them 

dearly. When you get criticized by them, you have to understand 

what they are asking you to do, in my opinion, is to walk away 

from your responsibility. And isn’t it true, sir, if you did that, 

wouldn’t you be the subject of lawsuits? Let’s say somebody living 

in Appalachia got cancer, and it was a cluster, and it came from— 

whether it was arsenic or lead, there were problems, you were 

sued. Wouldn’t you have to mount a pretty good defense if you did 

nothing, if you walked away from this challenge? We all know the 

challenge exists. Have you not seen the health impacts? 

Mr. PIZARCHIK. There have been a lot of studies documenting 

health impacts, and we have been working to try to get a review 

of those by the National Academy of Sciences. And yes, I probably 

would be sued. Actually, I get sued all the time for just about everything we did, so it would not be unusual. But it would also be 

an abdication of my duty if I did not promulgate rules that carry 

out and fully implement the statute, and that is what I am trying 

to do. 

Senator BOXER. Well, thank you. And I compliment you from the 

bottom of my heart, because we have seen in Flint, from the State 

government there, and even the EPA that, yes, told Flint but didn’t 

do enough, in my view. We have seen what happens when people 

in positions such as yours get cold feet and back away, and it isn’t 

a pretty story. And I am so pleased that you have done what you 

have done and that you are standing up for what you have done, 

and that you have listened to all the voices. And I know you look 

at the economics of it as well. The fact is the economics that were 

cited by my friend and that will be cited from my friend from West 

Virginia, and I have seen those surveys, those studies, they have 

been refuted, and I think our witness here is going to show that 

those studies are not accurate. 

The bottom line is people have to be kept safe. 

Now, let me ask you a couple of other questions. When you make 

this rule, you look at the health impacts, you look at the economic 

impacts, you look at everything, is that right? 

Mr. PIZARCHIK. We look at, yes, mostly those. Primarily, under 

this rule, it is about protecting the water for people so that water 

is included, the critters aren’t poisoned. 

Senator BOXER. Let’s go there. Your function in this rule is to 

protect people from drinking water that could harm them, is that 

correct? 

Mr. PIZARCHIK. That is one of the roles of it. Also protecting the 

environment is another, yes. 

Senator BOXER. Yes. Well, protecting the environment means 

that you have fish in there that aren’t contaminated, is that correct? 

Mr. PIZARCHIK. Yes. 

Senator BOXER. Sir, I just want to say to you, regardless of what 

you hear, you just stand up and you continue to do that. And when 

people look at you and say, sir, you shouldn’t do this, just tell them 
33 

to look at those families in Flint. This is what happens when we 

don’t do our job. And this committee, the Environment Committee, 

should not be questioning this rule; we should be working to make 

it workable. 

Thank you. 

Senator INHOFE. Thank you, Senator Boxer. 

Senator Sullivan. 

Senator SULLIVAN. Thank you, Mr. Chairman. 

And thank you, Director, for appearing today. I always feel the 

need to start my comments off with a little prefatory remark. I 

have the utmost respect for the Ranking Member here. We all want 

clean water. We all want clean air. We all want healthy kids. And 

I actually think that States are pretty good at this. I think my 

State, for example, Alaska, has the cleanest water, cleanest air, 

best managed fish and wildlife certainly in America; cleaner than 

California, cleaner than Delaware, cleaner than New Jersey. And 

it is State officials that do that. So we all want that. 

But what is always surprising to me on this Committee is that 

we also need agencies to follow the law. You have everybody from 

Laurence Tribe saying burning the Constitution should not be part 

of our energy and environmental responsibilities. And I have a lot 

of experience with SMCRA and what we call ASMCRA in Alaska, 

which is the State version of SMCRA, but this is classic Obama administration action, and you guys are all part of it. You can’t pass 

a law, so you break a law with a regulation. The States that are 

impacted are almost 100 percent against it, which you will get sued 

on this one, trust me. And then you say it is driven by science, and 

I am going to get into that, because with regard to Alaska you 

didn’t cite one scientific study that relates to my State, one of the 

biggest coal reserves in the country, when it is really a power grab 

and politics. Thousands of new pages of regs. 

Then there is this claim that it is partisan. 

Mr. Chairman, for the record, I would like to submit the State 

of Alaska’s letter from our Governor, who is an Independent, our 

lieutenant Governor, who is a Democrat, who are fully, fully opposed to this rule. 

Senator INHOFE. Without objection. 

[The referenced information follows:] 
34 
35 
36 

Senator SULLIVAN. So it is not partisan. The concern is federalism and the law. It is not the environment. We all want a clean 

environment. 

Again, my State has cleaner water and cleaner air than any 

State in the country. And it is not because you are helping; it is 

because State officials do it. 

So there is no demonizing here. The problem is when a Federal 

agency doesn’t follow the law, it is our responsibility to make sure 

that doesn’t happen. And what I am always amazed about is how 

often my colleagues on the other side of the aisle say, fine, go 

ahead, violate a Federal law, violate the Constitution. But Americans are starting to get really, really tired of it. 

So let me go into a couple things on process. You talked about 

the process. 

Alaska is one of the largest coal reserves in the country. Did you 

go to Alaska in terms of public hearings for this rule? 

Mr. PIZARCHIK. No, sir, we did not. 

Senator SULLIVAN. OK. Why? Did you go to any State west of the 

Mississippi? 

Mr. PIZARCHIK. Yes. 

Senator SULLIVAN. How many times? Once. 

Mr. PIZARCHIK. I believe it was twice. There was a hearing in St. 

Louis—— 

Senator SULLIVAN. I believe it was once. 

Mr. PIZARCHIK [continuing]. And also in Denver. 

Senator BOXER. Let me him answer the question. 

Senator INHOFE. Come on, Barbara, don’t do that. 

Senator BOXER. You don’t want people to have—— 

Senator SULLIVAN. Did you have any studies citing Alaska in 

your entire proposed rule? 

Mr. PIZARCHIK. Senator, if you look at what we are proposing—— 

Senator SULLIVAN. Just answer the question. I have a bunch of 

questions. 

Mr. PIZARCHIK. I am attempting to answer that. Yes, the baseline 

data needs to be gathered everywhere. Just because we don’t have 

baseline data does not necessarily mean that mining is not causing 

problems there. I have been across the country, and I have seen 

water pollution in Colorado—— 

Senator SULLIVAN. I am sorry, you are not answering the questions. Do you have any studies citing Alaska coal in your rule? No. 

The answer is no. 

So let me go on to another question. My Governor had requested, 

again, he is an Independent, that you did 5-year rulemaking, thousands of pages, and you gave States 60 days to comment. Do you 

think that was fair? 

Mr. PIZARCHIK. Senator, they had over 100 days, over 3 and a 

half months, to review the documents and to provide comments, 

and we had extended the comment period as well. 

Senator SULLIVAN. No, initially you provided 60 days, isn’t that 

right? 

Mr. PIZARCHIK. Initially we provided a public comment period of 

60 days. 

Senator SULLIVAN. Do you think that is fair? 

Mr. PIZARCHIK. And we extended that. I believe—— 
37 

Senator SULLIVAN. Three thousand pages, 5 years in the making, 

60 days to comment? Do you think that is fair? 

Mr. PIZARCHIK. I believe it was. Based on the quality of the comments that I have seen, it is clear that the States were able to read 

that. 

Senator SULLIVAN. Let me ask another. I am going to get a little 

more legal on you here. Section 101(f) of SMCRA, do you know 

what section 101(f) states? 

Mr. PIZARCHIK. Not off the top of my head, but I have it right 

here, too. 

Senator SULLIVAN. Let me read it to you. So section 101(f) of 

SMCRA states, ‘‘The primary government responsibility for developing, authorizing, issuing, and enforcing regulations for surface 

mining and reclamation operations subject to this chapter shall 

rest with the States.’’ You should be very familiar with that. 

SMCRA is a very interesting statute because a lot of statutes provide veto power of the Federal Government over State programs. 

But SMCRA specifically did not. The primacy of regulatory 

issuance and enforcement lies with—according to section 101(f), 

lies with which entity, you or the States? 

Mr. PIZARCHIK. As you indicated, the Surface Mining Act is very 

complicated. It imposes upon me the obligation to establish the 

minimum Federal standards across the country. 

Senator SULLIVAN. Correct. 

Mr. PIZARCHIK. And under the section that you cited it does give 

States that authority. Now, you need to go a little bit further, because out of the 24 States that have primacy, about half of them 

have State laws that prohibit the State regulators from implementing rules that are more protective then the Federal minimum 

standards. 

Senator SULLIVAN. I just want to make it clear. For the record, 

SMCRA provides States—I just read it. 101(f), the primary government responsibility on developing, authorizing, issuing, and implementing regs belongs with the States. And yet you are making a 

rule that goes into essentially the ability to nullify, so let me get 

into that issue a little bit. 

Are you familiar with the letter that was sent to you by the State 

of Alaska on August 2nd, 2012 from the Department of Natural Resources? I was commissioner at the time. Let me describe it. It was 

OSM, who the State of Alaska had worked closely with for years, 

coming to the State of Alaska and saying there has been a permit 

issued by the State for 20 years. We now want you to pull it. So 

the State of Alaska, when I was a commissioner, looked at the legal 

research, worked with West Virginia, and we politely told you to 

go pound sand, that you didn’t have that authority. Do you think 

you have the authority to look at permits that have been issued by 

States and retroactively nullify them? Is there anything remotely 

in SMCRA that gives you that authority? 

Senator INHOFE. Senator Sullivan, you are over your time. We 

had given you—— 

Senator SULLIVAN. Oh, I thought, Mr. Chairman, we were going 

to do 2 minutes after. 

Senator INHOFE. You have already used those. 

Senator BOXER. Time flies. 
38 

Senator SULLIVAN. May I ask one final question, Mr. Chairman? 

The D.C. Circuit says—— 

Senator BOXER. I object unless you give that extra time to my 

friend over there. Is that all right? 

Senator SULLIVAN. Oh, I would be glad to. 

Senator BOXER. Well, it is up to my Chairman. 

Senator INHOFE. OK, without objection. 

Senator SULLIVAN. I just want that nullification question is a 

really important one, and let me help you with it. The D.C. Circuit, 

talking about this issue in a 1981 decision, said administrative and 

judicial appeals of permit decisions are matters of State jurisdiction 

in which the Secretary of Interior plays no role. 

Your rule provides for the ability for the Federal Government to 

nullify State permitting decisions, and that has been clearly ruled 

by the courts and in the law that say you don’t have that power. 

Can you just address that issue, nullification? 

Mr. PIZARCHIK. Thank you, Senator. If you look at the statute as 

a whole, what it provides is that if States want to be the primary 

regulatory authority, they do so subject to the oversight of Office 

of Surface Mining, Reclamation and Enforcement. That includes everything that they do under the law. And there is plenty of case 

law out there that upholds our ability to look at performance 

standards after the fact, whether a State regulatory authority 

made a mistake. And if you look at that statutory provision about 

that permit you are talking about, the law says that if the mining 

company fails to activate the mining within 3 years, their permit 

shall terminate. 

Senator INHOFE. All right. Let me just go ahead and interrupt 

this. Confession is good for the soul, Senator Boxer, and I confess 

I goofed. One of the reasons I wanted to do this, Senator Sullivan 

has an interesting background. It is not just that he was attorney 

general, but he was also commissioner of natural resources, and I 

knew that he was going to take longer. So I apologize to the other 

members. 

What we are going to do is have a second round, and those individuals who are just taking 5 minutes now can take an additional 

3 minutes if they want to stay. 

Senator BOXER. Good. But my understanding is he—— 

Senator INHOFE. Oh, yes, yes. Don’t feel obligated, however, Senator Markey, to necessarily do—— 

[Laughter.] 

Senator BOXER. Senator, feel obligated. 

Senator INHOFE. Senator Markey. 

Senator MARKEY. Thank you, Mr. Chairman, very much. 

The principal reason why we are here is mountaintop removal 

mining, and it is one of the single most environmentally destructive 

practices on Earth. The streams in the Appalachian region are 

being buried at an estimated rate of 120 miles per year, and the 

regulations governing this harmful mining practice are more than 

30 years old. 

But more than destroying the health of the environment, this 

mining practice is destroying the health of the residents in local 

communities. There are mountains of evidence that mountaintop 

removal mining is significantly harming the health of the residents 
39 

in these areas, and it is well past time for the Interior Department 

to update these regulations to ensure that we can protect the 

health of local communities, our environment, and our climate, and 

I am pleased and proud that the Interior Department is engaged 

in the process of issuing strong new rules that will help protect 

streams and the people and their health in the communities that 

surround them from mountaintop mining. 

So, Director Pizarchik, the Surface Mining Control and Reclamation Act of 1997, which I will now refer to as SMCRA just so anyone who is listening knows what we are talking about, lays out a 

number of purposes of the Act aimed at lessening the impacts of 

mining on the environment. Specifically, it is intended to establish 

‘‘a nationwide program to protect society and the environment from 

the adverse effects of surface coal mining operations and to assure 

that surface coal mining operations are so conducted as to protect 

the environment.’’ 

Isn’t the Interior Department Stream Protection Rule necessary 

to fulfill the Department’s statutory obligations under the law? 

Mr. PIZARCHIK. Absolutely, Senator. 

Senator MARKEY. So it doesn’t go beyond your authority, but in 

fact it is an exercise of your authority and your responsibility to 

protect the environment and the health of those who live near 

these streams, is that correct? 

Mr. PIZARCHIK. Yes, Senator. 

Senator MARKEY. If you did not in fact take these actions, given 

what we now know 30 years later, you would not actually be fulfilling your responsibilities in the job which you have right now, is 

that correct? 

Mr. PIZARCHIK. Yes, sir. 

Senator MARKEY. So would the Department’s proposed Stream 

Protection Rule protect the environment and local communities by 

reducing the number of streams that are buried or adversely affected? 

Mr. PIZARCHIK. Yes, sir, that was the expected outcome, and we 

expected there would be several thousand miles of streams that 

will have been protected. 

Senator MARKEY. That will be protected. And as a result of your 

protection of them, it will reduce the amount of toxic pollution 

which will go into the streams, that otherwise would be in the 

streams, that could have adverse impacts on human beings, is that 

correct? 

Mr. PIZARCHIK. Yes, Senator. 

Senator MARKEY. And you consider that to be your responsibility, 

to protect against deadly toxic materials going into streams, going 

into rivers in America? 

Mr. PIZARCHIK. Not only do I believe that, but that is specifically 

set forth a number of times in SMCRA. 

Senator MARKEY. So that is why it is hard to understand why 

people would object to this. I mean, we just learned the lessons 

once again in Flint, Michigan. But going back all the way to the 

Cuyahoga River in Cleveland, we see what happens when there is 

a callous indifference to using river streams as just dumping 

grounds, toilets, where arsenic, other dangerous materials are just 
40 

poured into these bodies of water. Ultimately, it comes back to 

haunt, to hurt the health of families. 

And we can see in the pictures night after night of how horrified 

ordinary families are in Flint, Michigan, but we know that is not 

the only place in America where there is a danger from lead in 

pipes. This is just one example. But the faces of the people in that 

community are saying pretty much we thought the Government 

was protecting us. We wouldn’t believe that water could come out 

of faucets that could harm our children. We wouldn’t believe anyone would allow the water that our children are exposed to could 

have these dangerous materials in them. And you could almost see 

them saying we trusted you; we wouldn’t think that you would 

allow something so dangerous to occur without the protections 

being put in place. 

So there have been many studies that have been done documenting the adverse health impacts associated with living in areas 

affected by mountaintop removal mining operations. Did your Department take into account the health impacts associated with this 

type of mining in developing your new rule? 

Mr. PIZARCHIK. Senator, as part of our process, we looked at all 

the science that we could get our hands on as far as what the impacts of coal mining were in order to factor that into what we were 

proposing. 

Senator MARKEY. And what was the conclusion which you 

reached? 

Mr. PIZARCHIK. We have concluded, based on the developments 

in science, that we are continuing to have streams that are adversely impacted, water that is adversely impacted by coal mining, 

both groundwater and surface water, and that we need to up our 

game, to modernize our rules to better protect surface and groundwaters from the adverse effects of mining. 

Senator MARKEY. Thank you. So the streams in the Appalachian 

region are the headwaters for the drinking water supply for tens 

of millions of Americans, so it is not just some isolated issue that 

we are talking about. The impact is on tens of millions of people 

and their drinking water, and if arsenic or selenium is going into 

that water, then there is a danger to children, not just in that one 

location, but as it flows down the water bodies that are near those 

headwaters. 

So that is your essential concern, to protect the health and wellbeing of families in our country? 

Mr. PIZARCHIK. Yes, Senator. And just to put it in perspective, 

the headwaters of the Potomac River start in Appalachia. 

Senator MARKEY. Well, I think the water that we are drinking 

right now should be checked immediately so that we understand 

what the impact should be on those of us who are here in this room 

today. It has to be an ongoing quest to ensure that we have the 

highest quality drinking water. Flint, Michigan, has just been the 

poster child for what can happen if you forget the children in our 

country. 

Thank you for all your good work. 

Mr. PIZARCHIK. Thank you, Senator. 

Senator INHOFE. Senator Capito. 

Senator CAPITO. Thank you, Mr. Chairman. 
41 

And thank you, Mr. Pizarchik, for your service and for working 

hard. I want to begin my statement by saying I live in Appalachia, 

that place everybody is talking about. My home is 5 miles from an 

underground mine and a surface mine, maybe 10 miles. So I am 

in and around people and folks all the time; they are my neighbors, 

friends, so I have a deep passion for what we are talking about 

today. 

I have been very frustrated with the Administration because we 

have been fighting for affordable, reliable energy that does all the 

above. We have pushed back on the Clean Power Plan because of 

what it does to the economics of certain regions, picking winners 

and losers. And now we have the Stream Protection Rule, and I 

would like to just talk about some of the economic effects. 

You got into this just very minimally in a response to a question, 

and I would like to preface, too, that living there, being there, clean 

water, clean air are as important to us as it is anybody else. So 

I have a chart here that says that the new Stream Protection Rule 

in Appalachia, which we have been referring to quite a bit, is up 

to about 64,000, $15 million in lost revenues, and many mining 

jobs lost and at risk. Also, the production of coal will go down significantly, as it has been doing. 

Our State is now $300 million underwater, State of West Virginia $300 million underwater in our State budget. We have had 

to cut our education budget because our tax revenues, principally 

from coal, have gone down so much. This is the second hearing that 

we have had, because I am also on the Energy Committee as well, 

where we had testimony much the same that we have today. 

So I just feel like this rule is just so broad and overreaching, and 

we have talked about it minimally here, too, reaching into the 

Clean Water Act and the Endangered Species Act. So one question 

I would like to say is we have talked a lot about the States’ responsibility here and what kind of input the States had. We had testimony over in the Energy Committee that it was rebuffed by OSM, 

and a lot of States signed on originally to be part of the partnerships to develop a rule that made sense for States and for the Federal—but then my understanding is that many States pulled out of 

that partnership—Indiana, Kentucky, Montana, New Mexico, Utah, 

Alabama, West Virginia, and Texas. 

And then in response to Senator Sullivan’s question you said 

that they were given 100 days, I think you said, to respond, 60 

days and then an extension after that, on a 3,000-page rule. So I 

guess I would ask you why, in your opinion, did the States pull out 

of this cooperative arrangement? 

Mr. PIZARCHIK. Senator, thank you for the question. I too grew 

up in Appalachia, in coal country. 

Senator CAPITO. Right, Pennsylvania. 

Mr. PIZARCHIK. And I have relatives and friends, people who 

worked in the coal mines. Some of my classmates from school 

worked in the coal mines. I am very sympathetic to people who are 

losing their jobs, and I know how important coal jobs and coal can 

be in certain parts of the community, and I have traveled across 

the country, been in your States numerous times. I have seen that. 

As far as the States’ motivation, I wouldn’t speculate on that. 
42 

Senator CAPITO. Well, wouldn’t you see, if you have the vast majority of States that are cooperating, who deal with this every day, 

pulling out from any kind of cooperative agreement certainly 

should have been a signal to you that this was highly contentious 

and I think would have been, at least in my case, an impetus to 

rethink the direction that you were going. 

Let me ask you this. What is the impact of this rule? We heard 

about mountaintop. What is the impact of this rule, in your opinion, on underground mines? There is a great concern there this is 

going to eliminate a lot of production in underground mines, which 

it will. We have already lost, just last week, 2,000 jobs in the coal 

mine industry alone, most of these underground mines. Can you 

answer that question? 

Mr. PIZARCHIK. I could, yes, and that is an important point to 

clarify because there is a misperception out there that this rule 

would prohibit all long wall underground mining. That is not the 

case. The term that we are defining, material damage to the hydrologic balance outside the permit area, includes those areas above 

underground mines, and what we are proposing is to give teeth and 

effect to that part of the law so that underground mining that 

would destroy those streams on the surface will not allow those 

streams to be destroyed. So they can do different types of underground mining. 

And the statute has a provision in it that also provides—it is my 

obligation that where reclamation cannot be successfully done, that 

permits should not be issued for that. From the analysis that our 

outside experts looked at, most of the underground mining will be 

able to continue to go forward on that. There are going to be some 

areas where you just can’t undermine because you are going to destroy the water resources, the streams on the surface. That has always been the law. That has been my experience in Pennsylvania. 

Some areas can be mined; some areas cannot. 

So there will be some impact on it, but it will not be a major impact. And as the rules on classifying impacts that we follow under 

this, I believe collectively the impacts on the industry are going to 

be considered small. I think it is less than 0.2 percent of production, and it is a fraction of the total annual revenues of the industry. 

Senator CAPITO. Let me ask you another question on the balance. 

This is the big question that we get in this Committee, and I think 

the Chairman and I join together to try to talk a lot about the economic impacts of rulemaking in all different areas. It is not so 

much the goal that any of us would be rejecting. Who would be rejecting a goal of clean water and clean air? Absolutely not. But 

sometimes it is just not that simple, as you know; you are in the 

business of trying to do that. 

What kind of considerations in this rule, in this specific rule, 

were made in terms of looking at the economic impacts? We can 

talk about creation of pockets of poverty in my State that are growing, the pessimism, the desolate attitude of my Government is 

doing this to me, and nobody cares. So what kind of balance do you 

look for here, and do you look for that? 

Mr. PIZARCHIK. I am very concerned about those people who lose 

their jobs and things of that nature, and yes, we do a balance. The 
43 

statute requires me to balance the interests of protecting society, 

protecting the water resources while ensuring there is sufficient 

coal supply to meet the country’s energy needs. As part of the 

NEPA process what we have done, we hired outside experts to do 

that type of analysis; not relying on my staff or my people, but 

other folks. And their analysis was peer reviewed pursuant to the 

procedures and processes established by the applicable rules. 

That information was used in assessing the potential impacts of 

changes that we were potentially considering. 

Senator CAPITO. I am at the end. Can I get that information, that 

NEPA review? Is that something that I could see, the economic impact statement that they provided for you? 

Mr. PIZARCHIK. That, I believe, is included in the draft Environmental Impact Statement and is publicly available. Yes, we can 

provide that. We have also prepared, in accordance with the rules, 

a regulatory impact analysis. We would be happy to provide that 

to you as well. 

Senator CAPITO. Thank you. Thank you. 

Senator INHOFE. Thank you, Senator Capito. 

Senator Cardin. 

Senator CARDIN. Thank you, Mr. Chairman, and thank you for 

convening this hearing. 

And thank you very much for your attendance and your service, 

your public service. I would hope that all Members of Congress 

want clean air and clean water, but we are judged by our actions, 

not by our words, and each Congress has an opportunity to add to 

that, and certainly not to take away from the protections that we 

provide for clean air and clean water. 

Clean water is vital to our economy, and I think we all can acknowledge that. A child who has suffered from lead poisoning as 

a result of not having safe drinking water, that child will not reach 

his or her full potential, and it is tragic for the individual, and it 

is tragic for our economy. The number of premature deaths due to 

the quality of water, the number of missed days at work because 

of tending to public health issues, the number of missed days at 

school, the importance of industry having sources of clean water for 

their products, all that adds to the economy. 

And as we are all bragging about being in Appalachia, my State, 

of course, has in the western part of the Appalachia region, and I 

have enjoyed camping out with my children and skiing, and just 

enjoying one of the most beautiful places in our country. And yes, 

recreation use depends upon clean water and clean air, and that 

is a huge part of the growth of the economic opportunities in the 

Appalachia region. So all that cries out for you carrying out your 

responsibilities for clean water. 

Surface, underground, or mountaintop removal all have risks involved in our environment, and we need to deal with that. So, yes, 

I also want clean water from our streams in the Chesapeake Bay, 

as many of those waters end up in the Chesapeake Bay of Maryland and this region. 

So my first question is it is difficult to repair the damage once 

it is done, and I would like you to comment about that. Mountaintop removal, we have seen major damages to streams. Once it is 
44 

caused, where are the challenges in trying to clean up the results 

of the damage to our streams? 

Mr. PIZARCHIK. Once you have caused the pollution, typically, it 

is a long-term pollution problem, you cannot eliminate it, and it 

often costs way more money to treat that water than to prevent the 

pollution from occurring in the first place. We are aware of some 

studies that were done where in the mountaintop mining they 

filled in the valleys, and some of these valley fills are decades old 

and they are still discharging high levels of total dissolved solids. 

The only way to take the total dissolved solids out is a reverse osmosis treatment system, the one of which I am aware of was from 

underground mines in West Virginia. It cost over $200 million to 

build and $9 million to $18 million a year to operate. If you are 

mining coal, you can’t build too many of those and continue to stay 

in business. 

Selenium gets elevated on a lot of streams. To build a bioreactors 

for those seleniums costs a couple of million dollars, it is my understanding, in order to take out, and then you have to constantly 

maintain it. It is a whole lot better to prevent the problem. 

The example I can give most effective is from my experience in 

Pennsylvania with acid mine drainage. Until the State was able to 

predict so you could prevent it, a lot of companies went out of business because they couldn’t afford to treat the pollution they created. 

Senator CARDIN. So in the regulatory process, what are you doing 

to preserve and protect buffer zone protections from mining operations? 

Mr. PIZARCHIK. The existing 100-foot provision is still going to be 

in the rule. By creating the definition for material damage to the 

hydrologic balance, that creates a standard so that people can 

know what they are measured against by creating the baseline of 

the stream data to collect that. That helps inform the process so 

we know whether mining is going to occur. 

And while the Surface Mining Act allows people to mine through 

streams, what we are creating is a standard in there that they 

need to gather that baseline on the water quality, the quantity, 

and the aquatic community, the critters living in that stream, to 

be able to make a determination can they restore that, and then 

proposing in our rule that they restore the ecological and geologic 

function and the hydrologic function of that stream. Let them make 

the business decision can they do that. 

Some streams can be rebuilt and repaired; some cannot. And if 

you cannot do it, the law says the permit should not be issued for 

it. 

Senator CARDIN. In the 111th Congress, Senator Alexander and 

I introduced the Appalachia Restoration Act. It was an effort to get 

a real handle on mountaintop removal, recognizing the devastating 

impact that mountaintop removal coal operations have on our environment. Not only destroyed streams; it destroys landscape. It destroys forever. That legislation was not enacted, but as a result of 

that legislation the Administration took certain actions to control 

mountaintop removal coal operations. 

Could you explain what actions you will be taking in this regulation, or how it will affect mountaintop removal? There are many 
45 

people who would like to see this practice totally eliminated, including myself. I understand that you are not taking that tack. 

Could you just explain to us where we are on mountaintop removal? 

Mr. PIZARCHIK. Yes, Senator. Thank you for that question. The 

statute allows mountaintop removal mining, and it sets certain provisions for when it can be conducted. We are proposing to change 

our rules to incorporate those statutory provisions into that provision as well, also requiring that the excess soil be put back and 

that the land be restored to approximate original contour, as mentioned, that means put the mountain back when it is done, and 

changing the bonding requirements so that if the operator has an 

approved post-mining land use, which the law allows, but they 

don’t implement it, then there is enough bond there to put the 

mountain back. 

As well as the practice of it, by protecting those downstreams 

and finding out what kind of resources and stuff are living in the 

streams, having that the baseline to monitor, to make sure that if 

they are creating those valley fields, they are not creating pollution, because we need to know what is in the stream because, 

frankly, I know a lot of people don’t want to hear it, but the days 

of line mining are over. We need to put an end to that. We need 

to get the baseline data, figure out what is there, measure the operation standards against that to make sure that we are not creating more Flint Rivers. 

Senator CARDIN. Well, I appreciate that, and obviously there are 

challenges in our political system. We understand that. But the 

American people understand the importance of the work that you 

are doing, and we thank you very much for your service. 

Senator INHOFE. Thank you, Senator Cardin. 

Senator Barrasso, for 7 minutes. 

Senator BARRASSO. Thank you very much, Mr. Chairman. 

Mr. Pizarchik, I would like to turn to the National Environmental Policy Act, NEPA. NEPA requires every Federal agency to 

assess the environmental impacts that would result from the agency’s actions, actions like approving a permit, issuing a new regulation. Now, a Federal agency assesses environmental impacts in 

what is known as the Environmental Impact Statement, the EIS. 

Prior to issuing an EIS, the Federal agency is required, required 

to consult with other agencies, including State agencies, State 

agencies which have special expertise with respect to the action 

under consideration. The Federal agency preparing the EIS is 

called the lead agency, and then the other agencies are called the 

cooperating agencies. Under NEPA, the lead agency is not only required to consult with cooperating agencies; it must ensure that 

the participation of the cooperating agencies is ‘‘meaningful.’’ 

So when your office began developing the so-called Stream Protection Rule, it identified 10 State agencies as cooperating agencies. 

Your office signed agreements with these agencies, these 10 State 

agencies, in which your office pledged to provide them with, No. 1, 

copies of key or relevant documents underlying the EIS, signed a 

document pledging to provide them with administrative drafts of 

the EIS, and signed a document pledging to provide a reasonable 

time for review and comments. That is your agency, your office. 
46 

Between then, January 2011, and the issuance of the proposed 

rule in July 2015, your office did none of this. For 4 and a half 

years, your office shared neither the drafts of the EIS nor the documents related to the EIS. During this time, your office engaged in 

no meaningful consultation whatsoever with the State agencies. It 

even ignored the States’ repeated requests for consultation. 

In 2015, eight States felt they had no other choice but to withdraw as cooperating agencies. 

Now, Mr. Pizarchik, you have been Director of the Office of Surface Mining since November 2009, before all this started, so why 

have you allowed your staff to make a mockery of its obligation 

under the National Environmental Policy Act, and where does the 

law allow your agency to go dark for 4 and a half years? 

Mr. PIZARCHIK. Thank you, Senator, for that question. The States 

have had a lot of input into this process, and we have requested 

those States who had provided notice that they were not going to 

continue to participate to reengage. I sent that out in October of 

that year. I also sent out a request to the Interstate Mining Compact Commission for them to reengage. They declined. I have not 

heard back from the States. 

Notwithstanding that, we have continued to reach out. We are 

continuing to work with the States. The State regulatory authorities that submitted comments, we have been meeting with them. 

We have had, I believe, about 18 meetings with them over the past 

several weeks, getting input from them on the proposed rule and 

the comments that the provided. We stand ready to meet with 

those. The Assistant Secretary has met with State folks as well. 

She has been to Alaska; she has a trip planned for North Dakota. 

We are continuing to provide outreach to the States. 

Senator BARRASSO. Well, let me be clear. Your agency did not 

consult with the States for 4 and a half years, from January 2011 

until the issuance of the rule of July 2015. You, sir, have made a 

mockery of this process. When, in February 2011, Governor Butch 

Otter of Idaho, a Republican, Chairman of the Western Governors 

Association, as well as a Democrat, the Governor of Washington, 

wrote to the Secretary of the Interior about the rulemaking, they 

asked the Secretary to ensure that your agency engaged States in 

a meaningful and substantial way. The Secretary of the Interior, 

Secretary Salazar, wrote back and said all cooperating agencies 

will have an additional opportunity to review and comment on a 

preliminary draft EIS statement before it is published for public review and comment. Never happened. Never happened in 4 and a 

half years. 

Why did your agency fail to honor Secretary Salazar’s specific 

commitment to cooperating State agencies? 

Mr. PIZARCHIK. Senator, the States have had meaningful input. 

We have received a lot of valuable comments from the State regulatory authorities that has helped us craft this proposed rule and 

informed the process on that, and we have made a number of 

changes. We have continued to reach out to them to meet, reengage 

on that, and that offer continues to be open with them, and we continue to reach out to the States to obtain State input on this rule 

as we go forward. 
47 

Senator BARRASSO. With all due respect, your answer just doesn’t 

pass the smell test. Your agency did not consult with the States between January 2011 and the issuance of the rule, 4 and a half 

years later. Secretary Salazar understood your agency’s obligations 

under NEPA. You continue to give excuses, play this tired game of 

cat and mouse. It really is high time for your agency to at least 

own up to its failure to follow the National Environmental Protection Act and withdraw the rule immediately. 

Thank you, Mr. Chairman. 

[The referenced letter follows:] 
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Senator INHOFE. Thank you, Senator Barrasso. 

Senator Gillibrand. 

Senator GILLIBRAND. Thank you, Mr. Chairman. 

Do you agree that when evaluating the potential cost of a regulation such as the Stream Protection Rule, we should ensure that we 

are also factoring the costs of inaction, which could include the 

costs that families face when their quality of life is significantly impacted by polluted water, including the health impacts and diseases associated with poor water quality and the cost of restoring 

environmental damage if it is not prevented? And can you discuss 

how the Stream Protection Rule will address those types of costs 

and consequences? 

Mr. PIZARCHIK. Thank you for that question, Senator Gillibrand. 

There are rules out there that govern the type of factors that we 

look at and costs that are included in an impact analysis on it, and 

I think there are a lot of things that ought to be included that 

sometimes the existing rule process does not include, for instance 

like the avoided costs if an operator, as I mentioned earlier, if they 

create pollution, they have to perpetually treat that, and they are 

creating pollution. But that is not a cost factor that goes into the 

cost analysis, so in many ways we are actually protecting the industry from these potential costs. 

As far as costs on health and people, I don’t know how to put 

a value on someone’s life, put a value on whether their life has 

been shortened or something like that. I don’t know how that gets 

taken into the thought process. I would much rather approach this 

to carry out my responsibilities to implement the law to prevent 

the pollution from occurring in the first place. 

Senator GILLIBRAND. How has the science used to evaluate the 

effect of mining operations on water quality evolved in the past 30 

years since the Stream Buffer Zone Rule was implemented, and 

how has that influenced the need for this new rule? 

Mr. PIZARCHIK. We know a lot more today than we did 30 years 

ago when these regulations were developed. For instance, we know 

that selenium can be mobilized from coal mining in certain areas, 

and it gets into the water, bioaccumulates in the aquatic community, causes deformities in those critters living in the stream, and 

can be bioaccumulating in unsafe levels for people who were to consume the fish for people that were living in that particular area. 

We also know that total dissolved solids—years ago we did not 

know it was a problem. Even as recently as maybe 10 or 15 years 

ago we did not know total dissolved solids were having an adverse 

impact. In my experience in Pennsylvania, at Dunkard Creek, 

there was a huge fish kill, and it wasn’t based on baseline data 

that West Virginia had collected for those coal mines or that my 

State had collected for those coal mines, it was because people were 

seeing large fish washing up on the shore and floating, and it was 

due to high levels of total dissolved solids. 

We have seen studies in the past few years downstream of valley 

fills that were built sometimes several years or a decade or more 

ago, and the only thing in that watershed is that valley fill. No 

other human activities, and yet the sensitive macro invertebrates, 

the bugs and communities that live in there, they are gone. And 

then if you look at the fish, there is less fish biomass in there, and 
51 

it stands to reason because if there is nothing to eat, there aren’t 

going to be any fish there. And we look at the control stream. 

So we know more about that type of science and how to see 

things that 30 years ago were not known to be a problem. What 

we are proposing in this rule is to deal with that science and also 

ask people to take a broader look, because I am sure there are 

probably things that are in the water today that we have not yet 

recognized as causing pollution problems, and we want to provide 

the States the flexibility to develop those standards at the State 

level, the mine level in order to protect the water and their people. 

Senator GILLIBRAND. Can you elaborate a little more further on 

why you believe this proposed Stream Protection Rule is necessary 

to fill regulatory gaps that can’t be adequately filled by relying on 

the States and the Clean Water Act alone? 

Mr. PIZARCHIK. Yes. The Clean Water Act has had a lot of success over the years, but its primary point is measuring or setting 

effluent limits at the point where the pollution or the water is discharged from the mine into the stream, to meet those limits here. 

They don’t look at a cumulative loading of that water until the 

stream becomes impaired, polluted. Well, from our standpoint, my 

law says that we have to maintain the water quality of that stream 

to protect those resources. It goes beyond the Clean Water Act. 

The Clean Water Act also only looks at the surface waters. The 

Surface Mining Act says I have to look at the surface water and 

the underground water, so protect all of that. 

Clean Water Act, with the Army Corps of Engineers for putting 

fill in the streams, where they look at the cumulative load, they 

look at the stream banks and the high water mark; they don’t look 

at what happens up here or happens over here, the whole watershed. Under my law, we have to do that. We have to take a cumulative look at the entire watershed to see what is happening, as 

well as look at off the permit area. 

So the Clean Water Act has been a great success as far as it 

goes. Congress, I believe, recognized that and reserved that exclusively for EPA. We recognize that, and that is what we are staying 

away from. But we are trying to fill those areas where the Clean 

Water Act just does not come into play, like for groundwater. 

Senator GILLIBRAND. Thank you, Mr. Chairman. 

Senator INHOFE. Thank you, Senator Gillibrand. 

We are going to be dismissing this panel. Senator Boxer wants 

to submit something for the record. 

Senator BOXER. Yes. I want to thank you so much for your patience in the face of some anger here. Thank you. 

I ask unanimous consent to place in the record the statement of 

purpose of the Surface Mining Act, which is to establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations. That is A. That is 

A. And then the second section that deals with your authorities is 

section 304, the duties, which require you to report on every State’s 

status. And the last is the enforcement, which gives you a lot of 

strength here to go after those bad actors. 

So I am putting that in the record, and maybe people will come 

to their senses about what we are supposed to be doing here. 

Senator INHOFE. Without objection. 
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[The referenced information follows:] 
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Senator INHOFE. And for the minute and 15 seconds that I have, 

I will cede that to Senator Capito. 

Senator CAPITO. Thank you, Mr. Chairman. 

I would again like to say that over the years, since 1977, there 

have been improvements of this rule that have resulted in cleaner 

water in and around the area that I live. I think the biggest 

flashpoint for me is just the lack of State cooperation on the 

ground, and the States that I mentioned that are the regulator. 

There is a concern about underground mining. 

And I would like to say anecdotally, I told Senator Cardin with 

his visual, I would have liked to have seen the after picture of that. 

You mentioned all the things that these types of mining operations 

go through on the reclamation process at the end. You have seen 

some of the end products, and when done right can be a benefit to 

some communities for airports, schools, shopping centers, in Appalachia where we have no flat land. So there are some. If it is done 

right, there can be some tremendous economic benefits to this. 

And just to put this in the record, in the State of West Virginia 

there is only active surface mining operation at present time. 

With that, I yield back. 

Senator INHOFE. Thank you, Senator Capito. 

Mr. PIZARCHIK. Could I comment a little on that? 

The Senator is absolutely right, when it is done right, it can 

make sense. And as far as the airports and things, there is specific 

provision for post-mining land uses that allows those to occur, and 

things are a lot better. What we also know, we have room to improve because there are things that are causing pollution that we 

didn’t know about before. 

Senator INHOFE. Thank you, Mr. Pizarchik. We will dismiss you 

now as the first panel. 

Mr. PIZARCHIK. Thank you, Senator. 

Senator INHOFE. We would like to invite the second panel to 

come to the panel. That will be Mr. Lanny Erdos, the Chief of the 

Division of Mineral Resources Management, Ohio Department of 

Natural Resources; Clay Larkin, a partner in Dinsmore; and Matt 

Wasson, Director of Programs for Appalachian Voices. 

We will start with opening statements. We will recognize first 

Mr. Erdos. 

STATEMENT OF LANNY ERDOS, CHIEF, DIVISION OF MINERAL 

RESOURCES MANAGEMENT, OHIO DEPARTMENT OF NATURAL RESOURCES 

Mr. ERDOS. Good afternoon, Mr. Chairman. 

Senator INHOFE. Good afternoon. 

Mr. ERDOS. Good morning, Chairman Inhofe, Ranking Member 

Boxer, and members of the Committee. My name is Lanny Erdos, 

and I serve as Chief of the Ohio Department of Natural Resources, 

Division of Mineral Resources Management. I have worked for the 

Division for nearly 28 years, and I was appointed Chief in October 

2011. 

I appreciate the opportunity to testify in regard to the Stream 

Protection Rule proposed by the U.S. Department of Interior’s Office of Surface Mining Reclamation and Enforcement. Ohio has primacy over the administration of the Surface Mining Control and 
60 

Reclamation Act, SMCRA, and consistently receives high marks on 

our annual evaluations from OSM for our program. Historically, 

Ohio DNR has had a positive working relationship with OSM. 

However, the process that OSM has set forth for the primacy 

States and the proposed Stream Protection Rule has been one-sided 

and not open to productive dialogue. 

In November 2009 OSM offered States the opportunity to participate as a cooperating agency in the development of the Environmental Impact Statement, EIS, for the proposed Stream Protection 

Rule. Ohio DNR agreed to participate only as a State commenter, 

not as a cooperating agency. That decision was made under the 

previous administration, prior to me being appointed as chief. 

Three chapters of the initial draft EIS, which totaled 1,045 pages, 

were shared with the participating States, with only 24 business 

days for review. 

Only once, in late 2010, did OSM arrange a conference call with 

the States to discuss chapter 2 of the draft EIS. This call served 

as more of a briefing to the States rather than an exchange of information or an opportunity to provide meaningful comments. Over 

the course of the past 4 years, following the final opportunity for 

State input in early 2011, OSM significantly revised the draft EIS. 

The cooperating agency States sent three letters to OSM expressing their concerns with the EIS process and their role as cooperators. The first, on November 23rd, 2010, expressed concerns about 

the quality, completeness, and accuracy of the draft EIS, the constrained timeframes for the submission of comments on the draft 

EIS chapters, the reconciliation process, and the need for additional comment on the revised chapters. OSM responded to this letter on January 24, 2011, and made a number of commitments regarding continued robust participation with the cooperating agency 

States in the EIS development process. Shortly thereafter, OSM 

terminated involvement on the draft EIS with the cooperating 

States without explanation. 

The cooperating agency States sent a second letter to OSM on 

July 3rd, 2013, requesting an opportunity to reengage in the EIS 

development process and reiterated the States’ concern regarding 

how their comments would be used or referenced by OSM in the 

final draft EIS. OSM never responded to this letter. 

A third letter was sent to OSM on February 23rd, 2015, by the 

cooperating agency States specifically outlining the States’ ongoing 

concerns about the EIS consultation process. No response was received. 

Based on experiences to date with OSM’s development of the 

draft EIS for the Stream Protection Rule, OSM has not provided 

for meaningful participation with the cooperating or commenting 

agency States. The most recent effort by OSM to communicate with 

the cooperating agency States was made through a general briefing 

and overview of the draft EIS process in April 2015 during an 

Interstate Mining Compact Commission meeting in Baltimore, 

Maryland, a meeting which I personally attended. 

The briefing consisted of a PowerPoint presentation by OSM providing overviews of the proposed rule with no opportunity for the 

cooperating agency States to ask questions. Unfortunately, the 

overview of the EIS was extremely limited, copies of the presen-
61 

tation were not made available, and the meeting did not allow the 

States an opportunity to contribute to the EIS. The cooperating 

agency States present at the meeting communicated to OSM personnel in attendance, including OSM Director Pizarchik, that the 

meeting was not considered a meaningful consultation but rather, 

a briefing. 

One provision in the proposed rule that is problematic requires 

written approval of Protection Enhancement Plans before a permit 

to mine coal can be issued. The proposed rule does not require establishment of timeframes by which the U.S. Fish and Wildlife 

Service must provide a complete evaluation of the proposed mining 

project to allow the State to move forward and/or for the advancement of the permitting process. Not allowing for conditional 

issuance and approval beyond established timeframes to complete 

necessary review is tantamount to providing the Federal Government veto power over a permit without any explanation whatsoever. 

Additionally, Ohio has identified several other critical areas 

where State expertise would have proven to be beneficial in the development of the proposed rule. 

Mr. Chairman, had States been given adequate opportunity to 

provide their technical expertise on the development of the draft 

EIS and proposed rule through a meaningful process, and OSM 

welcomed that input, the rule would have better accounted for the 

diversity in terrain, climate, biological, chemical, and other physical conditions in area subject to mining as anticipated by SMCRA. 

The rule would have also recognized the appropriate discretion 

vested by SMCRA to the primacy States that have been regulating 

coal mining operations in excess of 30 years. 

Thank you again for the opportunity to present this testimony. 

I would be happy to address any questions you may have. 

[The prepared statement of Mr. Erdos follows:] 
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Senator INHOFE. Thank you, Mr. Erdos. 

Mr. Larkin. 

STATEMENT OF CLAY LARKIN, PARTNER, 

DINSMORE AND SHOHL 

Mr. LARKIN. Thank you, Mr. Chairman, and thank you to the 

Committee. 

My name is Clay Larkin. I am a partner at Dinsmore and Shohl 

in Lexington, Kentucky, and also serve as a senior policy advisor 

to the Kentucky Coal Association, or the KCA, which represents 

companies that mine about 90 percent of the coal mined in Kentucky. 

The Stream Protection Rule is a rule in search of a problem. Although OSM has stated that the rule will help reduce offsite impacts from coal mining, by OSM’s own estimates State regulators 

and coal miners are already doing an outstanding job of controlling 

these offsite impacts under existing regulations. 

According to OSM’s own figures, over 90 percent of sites nationwide were free from offsite impacts last year, and in some States 

that figure was 100 percent. Despite this track record, the proposed 

rule would require States to implement duplicative permit review 

procedures that are already addressed by other State and Federal 

agencies at a time when States like Kentucky are already dealing 

with significant budget shortfalls. 

Although there are numerous problems with this rule, I want to 

focus today on the way in which it unlawfully conflicts with the 

Clean Water Act and the Endangered Species Act. 

OSM, simply put, cannot regulate issues within the scope of 

other Federal laws pursuant to section 702(a) of SMCRA, which 

specifically prevents them from regulating in conflict with other environmental protection statutes and specifically mentions both the 

Clean Water Act and NEPA, and courts have held that that list is 

not exhaustive and therefore precludes them from regulating in a 

way that conflicts with the Endangered Species Act. 

In this proposed Stream Protection Rule, OSM has failed to comply with section 702(a) of SMCRA on multiple fronts. First, the proposed rule unlawfully conflicts with the Clean Water Act. State 

Clean Water Act authorities already enforce Clean Water Act programs at the State level. Mining operators must navigate a burdensome and stringent permitting process under multiple sections of 

the Clean Water Act. 

Despite this existing process which fully addresses water quality 

issues related to mining, OSM seeks to appoint itself as the premier water quality regulator for all water quality issues related to 

surface and underground coal mining. This is both illegal and impractical. 

For example, OSM seeks to provide a nationwide, one size fits all 

definition of the term ‘‘material damage to the hydrologic balance 

outside the permit area.’’ This is inconsistent with SMCRA’s State 

primary framework, which gives primary regulatory authority to 

the States, not a Federal agency. There is significant diversity of 

hydrology and geography in different mining States that requires 

a State by State, site by site approach to defining, evaluating, and 

preventing material damage to the hydrologic balance, and States 
66 

have demonstrated that they are better positioned to address the 

unique water quality concerns within their borders. OSM has provided no meaningful justification for its one size fits all Federal approach. 

OSM also seeks to impose a completely duplicative water quality 

permitting process on coal miners and State regulators in which 

OSM will define parameters of concern reasonably foreseeable uses 

of streams and then establish its own numerical criteria for those 

parameters of concern. This directly conflicts with section 303 of 

the Clean Water Act, which already provides the authority for how 

States are to establish water quality standards within their borders 

and includes both designating uses of streams and establishing 

water quality criteria necessary to protect those uses. 

There is also section 402 of the Clean Water Act regarding effluent limitations which are imposed upon coal mining that OSM 

seeks to usurp in the rule as well. 

In addition to section 402, the proposed rule conflicts with the 

section 404 permitting process, which already does what OSM is 

proposing to do in this rule in terms of requiring mine operators 

to avoid impacts to streams where possible, and where those impacts cannot be avoided choosing the least environmentally damaging practicable alternative to those impacts and then mitigating 

whatever impacts they create. This existing and comprehensive 

regulatory program under section 404 of the Clean Water Act does 

not contain any gaps that the State Mining Regulatory or OSM 

must fill. As such, OSM lacks authority to regulate in this area. 

With respect to the Endangered Species Act, the proposed rule 

raises two primary concerns: first, it extends the protection and enhancement plan and other Endangered Species Act review criteria 

within the SMCRA permitting process to cover both listed and nonlisted species, giving OSM itself a power that Congress never saw 

fit to give it with respect to species that are only proposed for listing, and it gives the Federal Fish and Wildlife Service a veto authority over State issued mining permits, in contravention of 

SMCRA. 

[The prepared statement of Mr. Larkin follows:] 
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Senator INHOFE. Thank you. 

Mr. Wasson. 

STATEMENT OF MATT WASSON, DIRECTOR OF PROGRAMS, 

APPALACHIAN VOICES 

Mr. WASSON. Thank you, Chairman Inhofe, Ranking Member 

Boxer, Senator Capito, and other members of the Committee for 

the opportunity to speak today. I hope my testimony is going to 

make clear to this Committee that the people, the wildlife, and 

landscapes of Appalachia cannot afford any more delays in finalizing rules to rein in the damage caused by mountaintop removal 

coal mining. 

In preparing this testimony, I reviewed the statements that dozens of residents of coal mining communities provided to OSM last 

fall in support of a strong Stream Protection Rule. There are a lot 

of reasons local residents gave for supporting a strong rule, but five 

general themes emerged in comments of many coalfield residents 

across many different States. 

The first theme was simply the intolerable scale of damage to 

streams that has occurred under the existing rule. Almost every 

commenter had witnessed the pollution or obliteration of streams 

and springs where they used to swim, fish, and drink water. Gary 

Garrett of Clairfield, Tennessee, wrote to OSM: ‘‘It’s gone! What 

once was a gathering spot for many locals is no longer and will 

never be again. The cold, crystal clear, mountain water that 

brought many folks with empty water jugs in hand to fill to a small 

mountain stream which once flowed down Old Standard Hill in the 

Clairfield area of Claiborne County, Tennessee, is now covered up.’’ 

That is just one example of many powerful statements from local 

residents. 

A second theme brought up by many commenters was their concern about threats to their health, specifically the high rates of 

cancer and other diseases that are strongly correlated with living 

near coal mines in Appalachia. Based on a growing body of scientific evidence, these are legitimate concerns. In the past decade, 

more than 20 different studies published in peer reviewed scientific 

journals and authored by more than 40 different researchers have 

demonstrated pervasive impacts on the health, well-being, and life 

expectancy of people living near mountaintop removal and other 

types of coal mines in Appalachia. 

The result of all these health impacts is that life expectancy for 

both men and women actually declined between 1997 and 2007 in 

Appalachian counties with a lot of surface mining. In 2007 life expectancy in the five Appalachian counties with the most surface 

mining was comparable to that in developing countries like Iran, 

Syria, El Salvador, and Vietnam. 

A third theme in the comments of local residents was the need 

to empower citizen involvement and enforcement of mining and 

clean water acts that, in their experience, State agencies have been 

unwilling or unable to enforce. Citizen enforcement has been the 

only backstop to protect Appalachian streams in States like Kentucky, where Clean Water Act violations have occurred at staggering levels under the noses of State regulators. 
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Even more concerning in that State is the brazen pattern of falsifying records that coal companies employed to avoid accountability under the Clean Water Act. For years, fraud went undetected by State regulators until citizen enforcement actions shined 

a light on, in the words of Kentucky’s largest newspaper, the 

State’s ‘‘failure to oversee a credible water monitoring program by 

the coal industry.’’ 

The fourth thing you might want to talk about was the need for 

strong environmental rules to support economic revitalization. 

Many commenters expressed their concern that continuing to sacrifice their region’s natural capital to benefit coal companies’ bottom lines is a poor long-term investment for their communities. 

Please make no mistake that we have grave concerns about 

OSM’s approach to writing this rule. By abandoning the 1983 

stream buffer zone language, there is no longer a bright line rule 

that prohibits the filling of intermittent and perennial streams by 

waste and debris from surface mining operations. We acknowledge, 

however, that the old rule was never effectively enforced by States, 

which were all too willing to rubber stamp variances at the request 

of mining companies. 

By eliminating clear buffer zone language, however, OSM bears 

a heavy burden to ensure the other provisions of this rule will end 

the wholesale destruction of Appalachian streams and mountains 

that has torn communities and landscapes apart for generations 

and is what led to the multi-agency MOU and action plan that initiated this rulemaking in the first place. 

We believe that constructive participation in the rulemaking 

process, rather than intimidation and obstruction, is the appropriate route for community and environmental advocates for State 

regulatory agencies and for Congress to take as well. 

Thank you. 

[The prepared statement of Mr. Wasson follows:] 
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Senator INHOFE. Thank you, Mr. Wasson. 

In order to accommodate Senator Capito’s schedule, I will exchange order with Senator Capito. 

Senator Capito. 

Senator CAPITO. Thank you, Mr. Chairman. 

Thank all of you for your presentations today. 

I would like to ask you, Mr. Erdos, you heavily emphasize in 

your statement the lack of cooperation and cooperative attitude 

that you felt OSM is moving forward with the rule. One of the 

things really got my attention when you said that there was no 

conditional approval, no timelines. To me, that just sounded like a 

major stall tactic. You can just keep moving on and on and never 

get a resolution. What are investors going to do? How many jobs 

are going to be lost in the process? 

Could you comment on that a little more fully? Would you think 

that would be an improvement to the rule? Was that a suggestion 

that Ohio made, in your opinion? 

Mr. ERDOS. Thank you, Senator. I say that in the context relative 

to the Endangered Species Act and the way that we currently do 

business in the State of Ohio relative to Protection Enhancement 

Plans. The way the rule is written, the proposed rule, the interpretation could be that the U.S. Fish and Wildlife Service would essentially have to approve that PEP plan prior to the State issuing a 

permit. What we have done in Ohio is, if we have a 1,000-acre permit and the PEP may only be a half an acre, in many cases we 

issue those permits conditionally. That requires the operator not to 

affect those areas that are currently being reviewed by the U.S. 

Fish and Wildlife Service. 

The way the rule is written today, the interpretation could be 

that we would no longer be able to do that, so we would have to 

hold a permit up relative to issuance for that half-acre for this 

1,000-acre area. That was my reference. 

Senator CAPITO. Right. So no flexibility there at all. 

Mr. Larkin, you mentioned in your testimony just briefly underground. I asked a question earlier—you might have been here in 

the earlier segment—about there is great concern about what impacts this could have on your ability to mine underground. What 

is your interpretation of this rule in terms of underground mining? 

Mr. LARKIN. Thank you, Senator. The rule absolutely applies to 

both surface and underground mining. 

Senator CAPITO. Right. 

Mr. LARKIN. There seems to be a bit of a misperception here 

today that this is all about mountaintop removal mining. If it had 

been that simple, there were things that OSM could have done 

much differently in this context; they could have simply gone forward with the 2008 rule if that was the intent. As I think the director candidly mentioned, long wall mining, I think he said you 

could continue to long wall mine as long as that wouldn’t cause any 

substantive impacts to streams. I am not sure exactly, but there is 

grave concern that this would, as a practical matter, make it impossible to permit a long wall mine, which of course in your State 

is important and is important to the Nation’s energy needs. Those 

are some of the most efficient mines, and there are some that are 

still running now. 
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So as I read this proposed rule, it will have an impact on both 

surface and underground mining. 

Senator CAPITO. Thank you. 

Mr. Erdos, one thing I have been thinking about as I have been 

listening to the testimony, because we have had testimony in this 

Committee on waters of the U.S. under the Clean Water Act, and 

then we had the stream buffer. 

How do you keep track of all this as a regulator in your State? 

What kind of conflicts are going to exist? To me, I think that would 

create huge burdens on your State regulatory agencies. You have 

talked about Ohio being under budgetary constraint. Certainly the 

State of West Virginia, I mentioned, is over $300 million under our 

tax estimates for this year. What would your response to that be? 

Mr. ERDOS. I believe there are significant challenges, and it will 

be very confusing. As of today, I have had my staff looking into 

that in regard to the Clean Water Act and who enforces what, and 

I think that is going to be a real challenge. In Ohio, the Ohio EPA 

enforces the Clean Water Act under their 402 national discharge 

pollution elimination system permits. Those are also part of our 

SMCRA permits. So it is a little more complicated in Ohio, but it 

a system that works for us. 

Under the proposed rule, it is not clear who has the authority. 

If SMCRA truly has the authority today, how do they interact with 

Ohio EPA, the current authority in regard to the Clean Water Act 

in Ohio? So I think there is much, much to discuss moving forward 

in regard to the Clean Water Act and how it is going to be enforced 

in Ohio, and what I have said and what we have said at Ohio 

DNR, we would like to be reengaged by OSM. Let’s sit down and 

have a conversation relative to these very important issues. 

Senator CAPITO. And that is going to be my final comment. I 

think one of the bottom lines here with a lot of frustrations from 

many State regulators and certainly the States most heavily impacted is the lack of State input on the front end. The States who 

actually were cooperating removing themselves—Kentucky being 

one and West Virginia being one, and now what kind of confidence 

would you have that OSM is going to come in and say, well, here 

is the delineation of this, and this is where we take care of this? 

And before you know it you are either under heavy fines or the balance of the economy, if there is one in this case, is simply non-existent. 

Thank you. 

Senator INHOFE. Thank you, Senator Capito. 

Senator Boxer. 

Senator BOXER. I always find it amazing the criticism that comes 

from that side. How do you know what to do? We have the Clean 

Water Act, we have the Safe Drinking Water Act, we have the Surface Mining Act. Oh, you know why we have those? Because the 

people that Mr. Wasson talks about are real, and the public support these acts by 90 percent. 

So why don’t you who complain about this repeal these? You 

know why? They would love to. They can’t because they would be 

thrown out of office, and the people would rise up, and there would 

be marches all the way to the Capitol from California. That is the 

reason. 
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Now, let’s get real here. We have an attorney here who represents coal companies, is that correct? 

Mr. LARKIN. Yes. 

Senator BOXER. And one of your affiliations and memberships— 

you belong to the Kentucky Coal Association, sir? Are you affiliated 

with them? 

Mr. LARKIN. As I said in my testimony, yes. 

Senator BOXER. So you are affiliated with them. How about the 

Lexington Coal Exchange, are you affiliated with them? 

Mr. LARKIN. Sure. Yes. 

Senator BOXER. And how about the Energy and Mineral Law 

Foundation, are you affiliated with them? 

Mr. LARKIN. Yes. That is a non-partisan—— 

Senator BOXER. Well, whether they are not, I am just asking yes 

or no. OK. 

Mr. LARKIN. Oh, yes. Yes. 

Senator BOXER. So my point is here we have an attorney paid big 

bucks to represent the polluting industries. We don’t have an attorney here who represents the people, who represents the environment, and that is sort of a sad situation. 

Now, you have one witness who says this is a rule in search of 

a problem. Really? So do you discount, Mr. Larkin, the quote that 

Mr. Wasson made by just an ordinary human being who can no 

longer go to a mountain stream? Do you think that that individual 

has a right to say that? And do you agree or disagree with his comments, that he used to go over and fill a bottle with water, and now 

that is gone, no longer possible? Do you think that is a problem? 

Mr. LARKIN. Senator, of course I have no basis to disagree with 

that comment; I don’t know the gentleman who made it. I don’t 

know any of the facts of that situation. 

Senator BOXER. Well, I understand you are an attorney. My point 

is you are saying that this is a rule in search of a problem, and 

yet there is a huge problem, and real people say it who don’t get 

paid by industry. That is my point. 

Now, Mr. Erdos, you point out with great upset that you don’t 

feel the States were respected. However, it is my understanding 

that the role that you did have, you were invited to advance notice 

of proposed rulemaking in 2009, was far in excess of what the Bush 

administration did in 2008. It is my understanding the States did 

not have a similar role, any comments when the Bush administration developed their 2008 stream buffer rule. And this Administration has had a far more open process. 

Did you complain, or your predecessors complain, when Bush administration issued the rule, that you weren’t consulted? 

Mr. ERDOS. Thank you, Senator. It would be difficult for me to 

answer that question relative prior to 2008; I wasn’t in my current 

position. 

Senator BOXER. Fair enough. Well, we will look it up, because 

the record does not show it. This was an unprecedented reach out, 

and all we hear are complaints about it. But the law is not going 

away. 

Now, Mr. Larkin, you say there are no gaps in existing law that 

need to be filled. If this is the case, why are there numerous peer 
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reviewed studies documenting the significant water quality and 

public health impacts near coal mines? 

Mr. LARKIN. Thank you for your question, Senator. First of all, 

those studies that were referenced are subject to significant dispute. The vast majority of them are authored by a single, I believe 

he is a psychologist at Indiana University, Michael—— 

Senator BOXER. Well, let me cut you off. Let me cut you off for 

this reason. 

Mr. LARKIN. Go ahead. 

Senator BOXER. We are running out of time, and you are wrong. 

How about there are 21 peer reviewed studies by different people? 

How about that I am going to put them in the record and these 

are the facts that were found out. I know you are paid by the coal 

companies, but don’t tell me they are one person only, when there 

are 21 separate peer reviewed studies. And we will send this to you 

for your information so at least you can look them all over before 

you criticize them. 

Here’s what they found out. People living near mountaintop mining have cancer rates of 14.4 percent, compared to 9.4 percent for 

people elsewhere in Appalachia. Two, the rate of children born with 

birth defects is 42 percent higher in mountaintop removal mining 

areas. Fact. The public health costs of pollution from coal operations in Appalachia amounts to a staggering $75 billion a year. 

Twenty-one separate peer-reviewed studies. 

I ask unanimous consent to place this in the record. 

Senator INHOFE. Without objection. 

[The referenced information was not received at time of print.] 

Senator BOXER. My time is over, but I have to say bless your 

heart, you do a good job for the companies you represent. But that 

is not my job and is not the job of this U.S. Senate. It is to protect 

the health and safety of the people, while of course looking at the 

economics. And I have to say that the witness we had before who 

talked about this rule seems to understand that balance. Sir, you 

do not. You are not paid to, I get it. 

And I really do want to say, Mr. Wasson, thank you for your testimony. 

Senator INHOFE. Well, Mr. Larkin, I guess industry is bad, right? 

Who employs people out there? 

Mr. LARKIN. Coal companies do, Senator. 

Senator INHOFE. Did you know I was down north of Poteau, 

Oklahoma, last Friday? There are one-half the number of employees there today than there were less than a year ago when I was 

down there. I think I said that in my opening statement. 

Do you care about that? 

Mr. LARKIN. Absolutely, I do care about that, Senator, and that 

is why I am here. I am not being paid to be here today. 

Senator INHOFE. I understand. 

Mr. LARKIN. I am here because I care about my State and what 

is going to happen to it and the economic devastation that rules 

like this can cause. 

Senator INHOFE. Yes. You know, there is one good thing that I 

have always supported as we have had our meetings in this Committee, and that is the Regulatory Impact Analysis that is required 

to be made. I think that is very reasonable, and yet a lot of liberals 
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really object to the fact, well, why should we be concerned about 

jobs? Why should we be concerned about the cost to the American 

people for these various regulations? They even get offended. 

It is my understanding, and I want to ask you about this, that 

in this rule the OSM fired its initial contractors when their estimate—estimate, now we are talking about—under the Regulatory 

Impact Analysis, showed a substantial number of job losses. Do you 

believe that? 

Mr. LARKIN. Yes, I am familiar with that, and I believe there has 

been testimony here in the Congress about how that operated, that 

basically OSM got numbers that they didn’t like and that didn’t 

support the rule, so they fired the contractor. 

Senator INHOFE. So they hired contractors. But they somehow 

perhaps have a little wink and nod understanding before they come 

on. That is what I think. And you see that they come out and talk 

about these people are going to lose their jobs. How dare you do 

that? Let’s find somebody who maybe doesn’t believe that. Do you 

think that happened? 

Mr. LARKIN. Yes, I do. They had very knowledgeable mining consultants working on the project and came back with answers that 

OSM didn’t want to hear, and they were fired. 

Senator INHOFE. Mr. Larkin, sometimes serving in the Senate, I 

have thought of it as being an advantage not to be a lawyer, because when I read the law I know what it says. Now, you heard 

me in my opening statement, maybe it wasn’t in opening statement, it may have been initially in this meeting, read section 702. 

When you read that, which I won’t read again because it takes too 

long, but that is so specific. Do you see there is any room for ambiguities in that law? 

Mr. LARKIN. No, Senator, I don’t. I think we all agree that it is 

pretty clear. 

Senator INHOFE. Mr. Erdos, if a State, like your State of Ohio, 

is authorized to issue permits for coal mining operations—now, I 

am talking about today, not with this rule, but the way it is 

today—who is in charge of making those decisions today? 

Mr. ERDOS. Ultimately, I am, the chief. 

Senator INHOFE. And how would this change if this proposed rule 

would go into effect? 

Mr. ERDOS. I would still have the authority to issue the permits, 

But with that being said, the way the rule is proposed in regard 

to the Endangered Species Act, it would make it challenging to 

issue a permit without the approval of the U.S. Fish and Wildlife 

Service. 

Senator INHOFE. So they would have veto? 

Mr. ERDOS. Ultimately, U.S. Fish and Wildlife Service could have 

veto power, yes, over the permit. 

Senator INHOFE. That is not the way it operates today. So in my 

opening statement I made four different references as to what was 

going to be changed in terms of the Federal takeover, what I consider to be illegal Federal takeover. So as we look at the rule that 

is coming up, yes, we do make considerations, at least I do, in seeing what has happened actually in my State. 
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When we have talked and we have heard the witnesses today, 

and we know that there is another Federal takeover in the wings, 

I have really good friends who are liberals. 

Senator BOXER. You are sitting next to one. 

Senator INHOFE. Well, I am not going to make the direct reference, because then I know what is going to happen. 

I have to say this, that my good friend here, we work together. 

It is Environment and Public Works. On the public works side we 

work together. We recognize that Government does have a role. In 

fact, there is an old, beat up document that nobody reads anymore, 

it is called the Constitution. Article 1, section 5, I think it is, says 

we are really supposed to be doing two things primarily around 

here: defending America, and then roads and bridges. We understand that. 

But a true in his heart or in her heart liberal really believes that 

Government does things better than people do, so we do have basic 

differences and philosophies. And I am going to do what I can as 

Chairman of this Committee and as someone who is desperately 

concerned about what is happening economically with overregulation that we are facing to try to keep this rule from becoming a reality. 

So thank you for being here. We will dismiss this panel and adjourn our meeting. 

Senator BOXER. Mr. Chairman, may I please, since you went over 

a minute, have 1 minute to close with my comments, with, of 

course, your being able to retort? 

Senator INHOFE. Of course. 

Senator BOXER. First, I want to thank the panel. This was important, and we see the conflict. And my colleague, who is a dear 

friend of mine, summed up my remarks in his way: industry is bad. 

That was his word, industry is bad, as if that is what I was saying. 

And I resent it. I come from the largest State in the Union. We 

are the eighth largest country in the world, if we were to be a country, in terms of our gross domestic product. We have more industry 

than anybody, than him, than him, her, everybody. And I have 

great relationships. 

Of course we want industry. Of course we want jobs. You have 

to have that. But industry, as individuals, must be responsible. 

And if they are causing problems, then we ought to work together, 

together. 

And that is why, Mr. Erdos, I question you, because we did open 

up the door to hear from you, and yes, you will have to collaborate 

with Fish and Wildlife before you issue the permit. It is not like 

you are in some kind of vacuum. You are a nice man; you are going 

to meet with a nice person at Fish and Wildlife. You are going to 

find out the best way to go so we don’t poison our fish and we don’t 

poison our children. A very important point. 

And Mr. Larkin, I would just like to finish. Mr. Larkin, you do 

your job well for the coal industry, and good for you. And I didn’t 

mean to suggest that you are doing anything wrong. They deserve 

the best and the brightest. But so do we, and that is why we have 

Mr. Wasson here. 

So I am going to conclude by saying this. I suggest you all read 

the Surface Mining Act, because section 102 says, ‘‘(a) establish a 
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nationwide program to protect society and the environment from 

the adverse effects of surface coal mining operations, and wherever 

necessary, exercise the full reach of the Federal constitutional powers.’’ Constitutional powers that my friend talked about. By the 

way, this is a Government of by and for the people. I don’t view 

the Government as an enemy. ‘‘Exercise the full reach of the Federal constitutional powers to ensure the protection of the public interest through effective control of surface coal mining operations.’’ 

Here it is. We put it in the record before. 

The point is, all right, what the Administration is doing is constitutional, is required under the law. It is to protect the very people that, sir, you spoke about. And again, this is a sharp division, 

and I guess the people will make their judgments every time they 

go to vote. You know, they vote for him in his State; they vote for 

me in my State. 

Senator INHOFE. All right, Senator Boxer. 

Senator BOXER. What a great country is all I can say. 

Senator INHOFE. I am not adjourning the meeting yet, but I will 

in 3 minutes. And I understand that if you haven’t been through 

the experience that a lot of people in this room have been through, 

and I suggest the two of you have, it is a tough world out there. 

I had a career before this, and I was out doing things, I was 

building, developing. Some people think that is bad. I was expanding the tax base. I was doing what Americans are supposed to be 

doing. And the opposition that I had was always overregulation. 

Unless you have lived being overregulated, you don’t understand 

how this can happen. 

So, anyway, we are here now to try to let people have more freedom to do the things they want to do, to hire people, to expand the 

tax base, and to have a more prosperous America. 

Now, a specific comment was made about you, Mr. Erdos, about 

they opened up everything to you. Would you like to respond to 

that? Was everything opened up to you? 

Mr. ERDOS. I am sorry? 

Senator INHOFE. The comment was made that all this was 

opened up to you at the State level. 

Mr. ERDOS. Oh, yes. Yes, thank you. Yes, it was, and we certainly appreciated that. We have said from the very beginning that 

we want to be engaged with OSM. We want to be engaged in this 

process, and initially we were. 

Our concern is over the 4-year period where that one-way communication developed. And again, we want to work with OSM, and 

we continue today to want to work with OSM. So it is not that we 

don’t want to be part of the process. We want to be part of the 

process. We want to say to you, OSM, come back to the table. We 

want to sit down with you. We think we can help you. And that 

is essentially what we are saying at Ohio DNR, just talk to us. 

Senator INHOFE. And Mr. Larkin, a job description was commented about you, what your job is. Do you want to characterize 

what your job is and what your personal feelings are, how that 

interacts with whose payroll you are on? 

Mr. LARKIN. I do represent coal companies, Senator, and I am 

proud to do it because of how important they are to the State 

where I live. But I am here today both in that role, as someone 
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who has gained knowledge about what it is like to be overregulated 

and because through representing coal companies I have met those 

people who live in the coalfields, and a significant number of them 

are coal miners. 

And because coal miners live in the coalfields, they are not going 

to do anything that is going to put something that is toxic or dangerous into the water, and they are going to do everything they can 

to be as responsible to the areas where they live because they live 

there. 

So I think it is a misperception that there is this vast majority 

of people out there that somehow oppose mining in the areas where 

mining occurs, because a tremendous number of those people are 

in fact coal miners themselves. So it is for them that I am here 

today as much as anything. 

Senator INHOFE. We thank the panels, and we are adjourned. 

[Whereupon, at 11:39 a.m., the Committee was adjourned.] 

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