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WAR ON JOBS: EXAMINING THE 

OPERATIONS OF THE OFFICE 

OF SURFACE MINING AND THE 

STATUS OF THE STREAM 

BUFFER ZONE RULE

OVERSIGHT HEARING

BEFORE THE

SUBCOMMITTEE ON ENERGY AND 

MINERAL RESOURCES

OF THE

COMMITTEE ON NATURAL RESOURCES 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED THIRTEENTH CONGRESS

FIRST SESSION

Tuesday, July 23, 2013

Serial No. 113–35

Printed for the use of the Committee on Natural Resources

(

Available via the World Wide Web: http://www.fdsys.gov 

or 

Committee address: http://naturalresources.house.gov 

(II)

COMMITTEE ON NATURAL RESOURCES

DOC HASTINGS, WA, Chairman 

PETER A. DEFAZIO, OR, Ranking Democratic Member

Don Young, AK 

Louie Gohmert, TX 

Rob Bishop, UT 

Doug Lamborn, CO 

Robert J. Wittman, VA 

Paul C. Broun, GA 

John Fleming, LA 

Tom McClintock, CA 

Glenn Thompson, PA 

Cynthia M. Lummis, WY 

Dan Benishek, MI 

Jeff Duncan, SC 

Scott R. Tipton, CO 

Paul A. Gosar, AZ 

Rau ́l R. Labrador, ID 

Steve Southerland, II, FL 

Bill Flores, TX 

Jon Runyan, NJ 

Mark E. Amodei, NV 

Markwayne Mullin, OK 

Chris Stewart, UT 

Steve Daines, MT 

Kevin Cramer, ND 

Doug LaMalfa, CA 

Jason T. Smith, MO 

Eni F. H. Faleomavaega, AS 

Frank Pallone, Jr., NJ 

Grace F. Napolitano, CA 

Rush Holt, NJ 

Rau ́l M. Grijalva, AZ 

Madeleine Z. Bordallo, GU 

Jim Costa, CA 

Gregorio Kilili Camacho Sablan, CNMI 

Niki Tsongas, MA 

Pedro R. Pierluisi, PR 

Colleen W. Hanabusa, HI 

Tony Ca ́ rdenas, CA 

Steven A. Horsford, NV 

Jared Huffman, CA 

Raul Ruiz, CA 

Carol Shea-Porter, NH 

Alan S. Lowenthal, CA 

Joe Garcia, FL 

Matt Cartwright, PA 

Vacancy

Todd Young, Chief of Staff 

Lisa Pittman, Chief Legislative Counsel 

Penny Dodge, Democratic Staff Director 

David Watkins, Democratic Chief Counsel 

SUBCOMMITTEE ON ENERGY AND MINERAL RESOURCES 

DOUG LAMBORN, CO, Chairman 

RUSH HOLT, NJ, Ranking Democratic Member

Louie Gohmert, TX 

Rob Bishop, UT 

Robert J. Wittman, VA 

Paul C. Broun, GA 

John Fleming, LA 

Glenn Thompson, PA 

Cynthia M. Lummis, WY 

Dan Benishek, MI 

Jeff Duncan, SC 

Paul A. Gosar, AZ 

Bill Flores, TX 

Mark E. Amodei, NV 

Chris Stewart, UT 

Steve Daines, MT 

Kevin Cramer, ND 

Doc Hastings, WA, ex officio 

Steven A. Horsford, NV 

Matt Cartwright, PA 

Jim Costa, CA 

Niki Tsongas, MA 

Jared Huffman, CA 

Alan S. Lowenthal, CA 

Tony Ca ́ rdenas, CA 

Rau ́l M. Grijalva, AZ 

Colleen W. Hanabusa, HI 

Joe Garcia, FL 

Vacancy 

Vacancy 

Vacancy 

Peter A. DeFazio, OR, ex officio 

(III)

CONTENTS 

Page

Hearing held on Tuesday, July 23, 2013 ............................................................... 1

Statement of Members: 

Huffman, Hon. Jared, a Representative in Congress from the State of 

California ....................................................................................................... 4

Prepared statement of ............................................................................... 6

Lamborn, Hon. Doug, a Representative in Congress from the State of 

Colorado ......................................................................................................... 1

Prepared statement of ............................................................................... 3

Statement of Witnesses: 

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

and Enforcement, U.S. Department of the Interior ................................... 7

Prepared statement of ............................................................................... 8

(1)

OVERSIGHT HEARING ON ‘‘WAR ON JOBS: EXAMINING THE OPERATIONS OF THE OFFICE 

OF SURFACE MINING AND THE STATUS OF 

THE STREAM BUFFER ZONE RULE.’’

Tuesday, July 23, 2013

U.S. House of Representatives 

Subcommittee on Energy and Mineral Resources 

Committee on Natural Resources 

Washington, D.C. 

The Subcommittee met, pursuant to notice, at 10:05 a.m., in 

room 1324, Longworth House Office Building, Hon. Doug Lamborn 

[Chairman of the Subcommittee] presiding. 

Present: Representatives Lamborn, Wittman, Thompson, 

Lummis, Gosar, Cramer, Huffman, Ca ́ rdenas, and Garcia. 

Also Present: Representative Johnson of Ohio. 

Mr. LAMBORN. The Committee will come to order. The Chairman 

notes the presence of a quorum, which, under Rule 3(e), is two 

Members. 

The Subcommittee on Energy and Mineral Resources is meeting 

today to hear testimony on an oversight hearing titled, ‘‘War on 

Jobs: Examining the Operations of the Office of Surface Mining 

and the Status of the Stream Buffer Zone Rule.’’

Under Committee Rule 4(f), opening statements are limited to 

the Chairman and Ranking Member of the Subcommittee. However, I ask unanimous consent to include any other Members’ opening statements in the hearing record if submitted to the clerk by 

close of business today. 

[No response.] 

Mr. LAMBORN. Hearing no objection, so ordered. 

I also ask unanimous consent that Representative Bill Johnson 

of Ohio, a former member of this Committee, be allowed to participate in today’s hearing. 

[No response.] 

Mr. LAMBORN. Hearing no objection, so ordered. I now recognize 

myself for 5 minutes. 

STATEMENT OF THE HON. DOUG LAMBORN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF COLORADO 

Mr. LAMBORN. The people of the United States are desperate for 

jobs, as we now enter our 5th year of the Obama economy. In light 

of this, the President tomorrow will travel to Illinois to give a campaign speech calling for more action on jobs. Yet the American people do not need more rhetoric, especially when the agencies and departments of his Administration are going forward with their war 

on jobs and job creators. 

Some of the hardest hit have been our American coal miners. 

The coal industry lost 4,000 workers between 2011 and 2012. These 

2

workers are simply pleading for the Administration to stop the ongoing war on jobs and embrace a real agenda of job creation. Hence 

the Committee’s focus on the Obama Administration’s ongoing rewrite of a coal production regulation, the 2008 Stream Buffer Zone 

Rule. 

This rule was tossed out by the Obama Administration days after 

taking office, and never fully implemented, simply because they did 

not like it. In fact, in the Office of Surface Mining’s June 18, 2010 

Federal Register notice announcing the new stream protection rule, 

OSM Director Pizarchik, who we are going to hear from soon, 

thank you for being here, stated, ‘‘We have already decided to 

change the rule following the change of Administrations on January 20, 2009.’’

Initially, the Administration tried to illegally vacate the rule. 

However, the court determined that doing so without public notice 

and comment would violate the Administrative Procedures Act, and 

said that OSM could only change or revoke the regulations by 

going through a formal rulemaking process. 

So, instead, the Department reached an out-of-court settlement 

with environmental groups, agreeing to an expedited timeframe for 

writing the rule. It was supposed to be issued by February 28, 

2011, 21⁄2 years ago. This is a glaring example of the non-transparent policy of sue-and-settle, driving the development of public 

policy. Unfortunately, this settlement and the decision to discard 

years of work and create a new rule got caught up in the Administration’s failure to responsibly manage the process. 

When the results of this reckless rewrite became public, including projections of massive job losses, reprogramming of State monies to pay for the rule, failure to responsibly consult with States 

and Tribes, and, finally, the controversial firing of the contractors 

initially hired to facilitate the rewrite, this Committee initiated its 

ongoing investigation into the matter. 

Let’s be clear about the Administration’s legacy on this effort. So 

far, the Administration has spent nearly $9 million rewriting a rule 

that was never implemented. That is an important point, since the 

2008 rule was never enacted so that the Administration can’t actually say what the problems are with it that would need to be addressed with a new rule. 

Furthermore, the ongoing inability to actually conduct rulemaking means the draft of the rewrite isn’t anticipated until late 

in 2014. Maybe that is why in late January 2013 environmental 

groups announced that they were reopening their lawsuit on the 

2008 Stream Buffer Zone Rule, since the Department has missed 

all the agreed-upon deadlines. Since that announcement, this Committee, as part of our ongoing investigation, sent two letters requesting information about the Department’s communications with 

the Plaintiffs and the status of the litigation. Five months later, we 

received some of the documents requested. 

However, as I pointed out to Secretary Jewell last week, these 

documents are not useful, due to their extensive redactions. And in 

an ongoing pattern of deception, the Department forgot to mention 

that they were filing documents with the court just last Wednesday. 

3

Apparently, the Department does not understand that this Committee has a constitutional duty to conduct proper oversight. By 

not complying with the Committee’s request for information and 

subpoenas, treating them as FOIA requests, which they are not, 

this is the opposite of the so-called transparency and openness 

goals of this Administration. Everything associated with the rewrite of the 2008 Stream Buffer Zone Rule has been secretive, 

reckless, wasteful, and unnecessary. 

Meanwhile, coal miners are losing jobs. The regulatory uncertainty is stifling investment and leaving our partner States to issue 

permits with a 1983 law that does need some refinement. Tomorrow, when the President calls on new policies for creating jobs, his 

first call should be to stop the reckless Office of Surface Mining 

Rulemaking and restore certainty to our miners. 

[The prepared statement of Mr. Lamborn follows:]

Statement of The Honorable Doug Lamborn, Chairman,

Subcommittee on Energy and Mineral Resources

The people of the United States are desperate for jobs as we now enter our fifth 

year of the Obama economy. In light of this, the President tomorrow will travel to 

Illinois to hold a campaign speech calling for more action on jobs. Yet the American 

people do not need more empty rhetoric, especially when the agencies and Departments of his Administration will continue forward with their war on jobs and job 

creators. 

Some of the hardest hit have been our American coal miners—the coal industry 

lost 4,000 workers between 2011 and 2012. These workers are simply pleading for 

the Administration to stop the ongoing war on jobs and embrace a real agenda of 

job creation. 

Hence the Committee’s focus on the Obama Administration’s ongoing re-write of 

a coal production regulation, the 2008 Stream Buffer Zone Rule. This rule was 

tossed out by the Obama Administration days after taking office and never fully implemented because they simply decided they didn’t like it. 

In fact, in the Office of Surface Mining’s June 18, 2010 Federal Register Notice 

announcing the new ‘‘Stream Protection Rule’’ OSM Director Pizarchik stated: ‘‘we 

had already decided to change the rule following the change of Administrations on 

January 20, 2009.’’

Initially, the Administration tried to illegally vacate the rule, however the court 

determined that doing so without public notice and comment would violate the Administrative Procedures Act, and said that OSM could only change or revoke the 

regulations by going through a formal rule making process. 

So instead, the Department reached an out-of-court settlement with environmental groups agreeing to an expedited time frame for writing the rule—it was supposed to be issued by February 28, 2011—two and a half years ago; a stellar example of the non-transparent practice of Sue and Settle driving the development of 

public policy. 

Unfortunately, this settlement and the decision to discard years of work and create a new rule ran into the Administration’s failure to responsibly manage the process. When the results of this reckless re-write became public—including projections 

of massive job losses, reprograming of State monies to pay for the rule, failure to 

responsibly consult with states and tribes, and finally the firing of the contractors 

hired to facilitate the re-write of the rule—the Committee initiated its on-going investigation into the matter. 

Let’s be clear about the Administration’s legacy on this effort. So far the Administration has spent nearly $9 million taxpayer dollars re-writing a rule that was never 

implemented. That is an important point because since the 2008 rule was never enacted the Administration actually has no idea if there are any problems with the 

rule that might need to be addressed with a new rule. Furthermore the ongoing inability to actually conduct rulemaking means the draft of the re-write isn’t anticipated until late in 2014. 

Maybe that’s why in late January 2013 environmental groups announced that 

they were reopening their lawsuit on the 2008 ‘Stream Buffer Zone Rule’ since the 

Department has missed all of the agreed upon deadlines. 

4

Since that announcement, the Committee as part of our ongoing investigation 

sent two letters requesting information about the Department’s communications 

with the plaintiffs and the status of the litigation. 

Five months later we received some of the documents requested. However, as I 

pointed out to Secretary Jewell last week, these documents are not particularly useful due to the extensive redactions. And in an ongoing pattern of deception, somehow the Department forgot to mention that they were filing documents with the 

court just last Wednesday. 

Apparently the Department, including Secretary Jewell, does not understand that 

this Committee has a constitutional duty to conduct proper oversight. 

By not complying with the Committee’s requests for information and Subpoenas—

treating them as FOIA requests, which they are not, is the opposite of the ‘Transparency and Openness goals’’ of this Administration. 

Everything associated with the re-write of the 2008 rule has been secretive, reckless and wasteful. 

Meanwhile, coal miners are losing jobs; the regulatory uncertainty is stifling investment and leaving our partner states to permit with a 1983 law that needs some 

refinement. Tomorrow when the President calls on new policies for creating jobs, his 

first call should be to stop the reckless OSM rulemaking and restore certainty to 

our miners. 

Mr. LAMBORN. I would now like to recognize the Ranking Member, Acting Ranking Member. 

STATEMENT OF THE HON. JARED HUFFMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Mr. HUFFMAN. Thank you, Mr. Chairman. Today’s hearing continues a more than 2-year effort by the Committee Majority to stop 

the Office of Surface Mining from protecting Appalachian streams 

and communities from destructive mountaintop removal mining. 

I think it is important to remember what this mountaintop removal process is all about. Waste from mountaintop removal mining has buried or despoiled 2,000 miles of Appalachian streams 

over the last 30 years. New research also links this type of mining 

with cancer, birth defects, lung and heart disease, and other adverse health effects. Nonetheless, President George W. Bush and 

his Administration issued a midnight regulation that loosened 

Reagan-era restrictions on the dumping of mining waste in or near 

streams. 

Now, the Majority blames OSM, the Office of Surface Mining, 

and the Obama Administration for acting to fix the Bush rule. But 

the blame really should lie with the Bush Administration, which 

failed to provide either a reasoned explanation or an evidentiary 

basis for its action. They ignored evidence of adverse environmental impacts and claimed, without supporting evidence, that 

their rule would ‘‘positively impact the environment.’’ The Bush 

rule was likely to be thrown out in court for all of these reasons. 

Now, with the Appalachian region dangerously exposed to the 

ravages of mountaintop removal mining, the Obama Administration had no choice but to initiate a new rulemaking to revise the 

Bush Administration’s rule. Now, the Majority has charged that 

OSM has recklessly rushed this rulemaking. So let’s step back for 

a moment and talk about where this process actually stands. 

OSM has been analyzing and deliberating over options for a new 

stream protection rule for the last 3 years. During that time, OSM 

has overseen unprecedented outreach sessions with coal companies 

and other stakeholders, and solicited comments from the public, 

which the Agency was under no requirement to do at this early 

5

stage. The Agency has already received more than 50,000 comments on its stream protection rulemaking. 

Now, this is more comments, by the way, than were received during the entire Bush rulemaking, even though OSM has not even 

issued a proposed rule yet. That is right. Despite the Majority’s 

claims about the dire consequences of a new stream protection rule, 

despite the loaded title of this hearing, ‘‘The War on Jobs,’’ OSM 

hasn’t even issued a proposed rule and supporting analysis that 

could form the basis for any serious critique. 

Once a proposed rule is actually issued, this Committee can have 

a reasoned debate about what the proposed rule would and 

wouldn’t do. Members of the public, including coal companies, 

would have a chance to weigh in and offer their perspective. And 

OSM will be required to consider these outside perspectives, and 

may adjust its proposed rulemaking based on that input before 

adopting a final rule that actually has the force of law. But at this 

point the Committee Majority is just making blind assertions about 

the consequences of a rule that doesn’t exist and which no one has 

seen. 

Now, let me say a few words about the Majority’s investigation 

into this rulemaking. We, in the Minority, believe that congressional oversight is actually vital to a well-functioning government. 

But the Majority’s endless and frivolous document requests are 

wasting taxpayers’ money, and diverting OSM and the Interior Department from their core responsibilities of serving the American 

people. 

The Interior Department has already produced more than 14,000 

pages of documents in response to the Majority’s inquiries. The Majority has also received documents from the Office of Management 

and Budget, the EPA, the Army Corps of Engineers. And contractors that worked on the rulemaking have provided almost 7,000 

pages of documents and roughly 25 hours of audio recordings of 

meetings with OSM officials. In all of these materials, there is no 

evidence that OSM or the Administration have done anything improper. 

In fact, the documents refute the Majority’s allegations, as shown 

in a report from the Committee’s Democratic staff last year. And 

the Majority was unable to find anything significant in all those 

hours of audio tape. The few snippets of tape used by the Majority 

to attack stream protection rulemaking have been flagrantly misrepresented, as discussed the last time Mr. Pizarchik was before 

this Committee. 

Committee Republicans should end their wasteful and baseless 

investigation, and make their case on the merits. Why should we 

continue allowing mountaintop removal mining to bury hundreds of 

miles of Appalachian streams, destroy mountain towns, and threaten people in the region with cancer, lung and heart disease, and 

other problems? We in the Minority welcome that debate. 

But we should see what OSM actually proposes first. Today’s 

hearing is a premature sideshow. 

And I yield back. 

[The prepared statement of Mr. Huffman follows:]

6

Statement of The Honorable Jared Huffman, a Representative

in Congress from the State of California

Thank you Mr. Chairman. Today’s hearing continues a more than two-year effort 

by the Committee Majority to stop the Office of Surface Mining from protecting Appalachian streams and communities from destructive mountaintop removal mining. 

Waste from mountaintop removal mining has buried or despoiled nearly 2,000 

miles of Appalachian streams over the last 30 years. New research also links this 

type of mining with cancer, birth defects, lung and heart disease, and other adverse 

health effects. Nonetheless, the George W. Bush administration issued a midnight 

regulation that loosened Reagan-era restrictions on the dumping of mining waste in 

or near streams. 

The Majority blames OSM and the Obama administration for acting to fix the 

Bush rule. But blame should lie with the Bush administration, which failed to provide either a reasoned explanation or an evidentiary basis for its action, ignored evidence of adverse environmental impacts, and claimed without supporting evidence 

that the rule would ‘‘positively impact the environment.’’ The Bush rule was likely 

to be thrown out in court for these reasons. 

With the Appalachia region dangerously exposed to the ravages of mountaintop 

removal mining, the Obama administration had no choice but to initiate a new rulemaking to revise the Bush rule. 

The Majority has charged that OSM has ‘‘recklessly rushed’’ this rulemaking, so 

let’s step back now and talk about where the process stands. 

OSM has been analyzing and deliberating over options for a new Stream Protection rule for the last three years. During that time, OSM has overseen unprecedented outreach sessions with coal companies and other stakeholders and solicited 

comments from the public, which the agency was under no requirement to do at this 

early stage. OSM has already received more than 50,000 public comments on its 

Stream Protection rulemaking. 

This is more comments, by the way, than were received during the entire Bush 

rulemaking, even though OSM has not issued a proposed rule yet. 

That’s right: Despite the Majority’s claims about the dire consequences of a new 

Stream Protection rule, OSM hasn’t even issued a proposed rule and supporting 

analysis that could form the basis of critique. 

Once a proposed rule is issued, this Committee can have a reasoned debate about 

what the proposal will and won’t do. Members of the public, including coal companies, will have a chance to weigh in and offer their perspectives. And OSM will be 

required to consider these outside perspectives—and may adjust its proposal based 

on that input—before adopting a final rule that has the force of law. 

At this point, however, the Committee Majority is just making blind assertions 

about the consequences of a rule that doesn’t exist and no one has seen. 

Now let me say a few words about the Majority’s investigation into this rulemaking. We in the Minority believe that congressional oversight is vital to a wellfunctioning government, but the Majority’s endless and frivolous document requests 

are wasting taxpayer money and diverting OSM and the Interior Department from 

their core responsibilities of serving the American people. 

The Interior Department has produced around 14,000 pages of documents in response to the Majority’s inquiries related to this rulemaking. The Majority has also 

received documents from the Office of Management and Budget, EPA, and the Army 

Corps of Engineers. And contractors that worked on the rulemaking have provided 

almost 7,000 pages of documents and roughly 25 hours of audio recordings of meetings with OSM officials. 

In all of these materials, there is no evidence that OSM or the administration 

have done anything improper. In fact, the documents refute the Majority’s allegations—as shown in a report from the Committee’s Democratic staff last year—and 

the Majority was unable to find anything significant in all those hours of tape. 

The few snippets of tape used by the Majority to attack the Stream Protection 

rulemaking have been flagrantly misrepresented, as discussed the last time Mr. 

Pizarchik was before this Committee. 

Committee Republicans should end their wasteful and baseless investigation, and 

make their case on the merits: Why should we continue allowing mountaintop removal mining to bury hundreds of miles of Appalachian streams, destroy mountain 

towns, and threaten people in the region with cancer, lung and heart disease, and 

other health problems? 

We in the Minority welcome that debate, but we should see what OSM proposes 

first. Today’s hearing is a premature sideshow. 

7

Mr. LAMBORN. We will now hear from our witness. I would like 

to welcome The Honorable Joe Pizarchik, Director of the Office of 

Surface Mining, Reclamation, and Enforcement of the Department 

of the Interior. 

Like all of our witnesses, your written testimony will appear in 

full in the hearing record, so I will ask that you keep your oral 

statement to 5 minutes. Our microphones are not automatic, so you 

need to turn them on when you begin speaking. 

I also want to explain how our timing lights work. When you 

begin to speak, our Clerk will start the timer, and a green light 

will appear. After 4 minutes a yellow light will appear. And then, 

after 5 minutes, the red light comes on and I would ask that you 

conclude at that time. 

Director Pizarchik, thank you for being here, and you may begin. 

STATEMENT OF JOSEPH G. PIZARCHIK, DIRECTOR OF THE 

OFFICE OF SURFACE MINING RECLAMATION AND 

ENFORCEMENT, DEPARTMENT OF THE INTERIOR 

Mr. PIZARCHIK. I thank you, Chairman Lamborn and Ranking 

Member Huffman and members of the Committee, for the opportunity to testify on behalf of the Office of Surface Mining Reclamation and Enforcement regarding our operations, the status of the 

Stream Buffer Zone Rule and, equally as important, the Bureau’s 

proposed rulemaking to better protect streams from the adverse effects of coal mining. As always, we look forward to working with 

you on matters relating to our mission under the Surface Mining 

Control and Reclamation Act. 

Congress gave us its regulatory authority and our responsibilities 

36 years ago when it passed SMCRA and mandated that we strike 

a balance between protecting the environment and helping provide 

for the Nation’s energy needs. OSM was established to carry out 

two basic functions. 

First, we are to ensure that mines operate in a manner that protects both people and the environment, and that the land is restored and is as productive after mining as it was before mining. 

Second, we are to provide an abandoned mine land program to 

address hazards to people and the environment that were created 

during the mining for more than 200 years of largely unregulated 

mining. 

As Interior Secretary Sally Jewell has stated, ‘‘Our commitment 

to the President’s all-of-the-above energy strategy will enable us to 

continue with the safe and environmentally responsible expansion 

and diversification of our Nation’s energy production, further reducing our reliance on foreign oil, and protecting our land and 

water at the same time.’’ Protecting people, land, water, and the 

environment, and providing for responsible coal mining are not mutually exclusive. We can have both. 

The all-of-the-above energy strategy is working. Activity in the 

Gulf of Mexico exceeds levels before the Deepwater Horizon spill. 

Onshore oil production from Federal lands is at its highest level in 

over a decade. Although OSM is not involved in coal leasing, the 

Administration is also making more coal available. In 2012, the 

Bureau of Land Management leased more coal than at any other 

time since 2003. 

8

Along with responsible oil and gas development and the growth 

of clean, renewable energy, the production of coal is an important 

component of this Nation’s energy portfolio, as evidenced by the 

President’s support for clean coal technology. The responsible development of this resource is a key part of America’s energy and 

economic security. Coal will remain an important part of our 

energy mix for years to come. 

In December of 2008, OSM published a final rule that modified 

the circumstances under which mining can occur in or near 

streams. It is called the Stream Buffer Zone Rule, and has been 

challenged in court by 10 organizations. While the litigation has 

been pending, the Department has identified additional considerations that the 2008 rule did not address. 

There have been significant advances in science and technology 

since the adoption of the 1983 rule that were not addressed in the 

2008 rule. Incorporating the most up-to-date science, technology, 

and knowledge concerning the effects of coal mining is essential to 

developing modern regulations. In addition, the 2008 rule did not 

provide objective standards for certain important decisions. Therefore, OSM began work to modernize its regulations, incorporating 

new science, technology, and the best practices in areas that can 

improve, update, and more completely implement the law. 

Many scientific advances have occurred in the past 30 years. In 

accordance with the law, OSM can and should consider those advances when modernizing its regulations. The 2008 rule did not incorporate the most modern technology and science that were available at that time, nor does the rule reflect the scientific advances 

that have occurred since that rule was adopted. 

The revised rule that incorporates modern science, technology, 

knowledge, and best practices will enable the industry to do a better job and, in many cases, their work being done in a more economic and efficient manner. These goals are fully consistent with 

Congress’s mandate, while also retaining much needed well-paying 

jobs and generating revenue in the Nation’s energy fields. 

As we develop the rule we are considering ways to improve the 

key provisions of the law in order to be able to minimize disturbances to fish, wildlife, and related environmental values, as is required by the law. 

The development of the proposed rule is an iterative and interactive process. We develop each in concert with the other. The costbenefit analysis and the potential rule changes help inform the decision of what should be in the proposed rule. OSM plans to publish the proposed rule in 2014. Consistent with the law, we will ask 

interested stakeholders and the public to read and comment on the 

proposed rule and draft EIS once those documents have been finalized and are available. 

Thank you for the opportunity to be here today. I am available, 

should you have any questions. 

[The prepared statement of Mr. Pizarchik follows:]

Statement of Joseph G. Pizarchik, Director, Office of Surface Mining 

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

I. INTRODUCTION

Mister Chairman and Members of the Subcommittee, thank you for the opportunity to testify on behalf of the Office of Surface Mining Reclamation and EnforceVerDate 0ct 09 2002 16:31 Feb 03, 2014 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6621 Y:\01ENER~1\01JY23\82128.TXT MARK
9

ment (OSM) regarding our operations, the status of the Stream Buffer Zone Rule, 

and equally as important, the bureau’s proposed rulemaking to better protect 

streams from the adverse effects of coal mining. As always, OSM looks forward to 

working with you on matters relating to its mission under the Surface Mining Control and Reclamation Act (SMCRA). 

Congress gave OSM its regulatory authority and responsibilities nearly 36 years 

ago when it passed SMCRA. At that time, Congress mandated that OSM strike a 

balance between protecting the environment and providing for the nation’s energy 

needs. Specifically, Congress established the bureau to carry out two basic functions. 

First, we are to ensure that coal mines operate in a manner that protects both people and the environment, and that the land is restored and is as productive after 

mining as it was before mining. Second, we are to provide an Abandoned Mine Land 

program to address hazards to people and the environment that were created during 

the more than two hundred years before SMCRA’s enactment when coal mining was 

largely unregulated. 

As Interior Secretary Sally Jewell has stated, our commitment to the President’s 

‘‘all of the above’’ energy strategy will enable us to continue with the safe and environmentally responsible expansion and diversification of our nation’s energy production, further reducing our reliance on foreign oil, and protecting our land and water 

at the same time. Protecting people, land, water, and the environment and promoting responsible coal mining are not mutually exclusive. We can have both. 

The ‘‘all of the above’’ energy strategy is working. Activity in the Gulf of Mexico 

exceeds levels before the Deepwater Horizon spill. Onshore, oil production from Federal lands is at its highest level in over a decade. 

Although OSM is not involved in coal leasing, which is conducted by the Bureau 

of Land Management, the Administration is also making more coal available, with 

the number of producing acres rising four percent from FY 2009 to FY 2012. In fact, 

in FY 2012, the Bureau of Land Management leased more coal than at any other 

time since FY 2003. 

Under SMCRA, most states have primary responsibility, also known as ‘‘primacy’’ 

under SMCRA, to protect people and the environment from the adverse effects of 

surface coal mining. At OSM, we provide assistance to, and oversight of, primacy 

states to help ensure proper regulation of surface coal mining and the protection of 

people and the environment. We are also continuing the reclamation of high-priority 

abandoned mine sites, and are reducing the number of remaining dangerous abandoned mine sites nationwide. 

Along with responsible oil and gas development and the growth of clean, renewable energy, the production of coal is an important component of our nation’s energy 

portfolio, and the responsible development of this important resource is a key part 

of America’s energy and economic security. Coal will remain an important part of 

our energy mix for years to come. We are committed to safe, responsible coal production and the jobs it supports. 

II. UPDATE ON STREAM BUFFER ZONE RULE

In December 2008, OSM published a final rule that modified the circumstances 

under which mining can occur in or near streams. The ‘‘Stream Buffer Zone Rule’’ 

(or ‘‘2008 SBZ Rule’’) has been challenged by ten organizations in two separate complaints filed in District Court for alleged legal deficiencies. 

While the litigation has been pending, the Department of the Interior has identified additional considerations that the 2008 SBZ Rule did not address. As a threshold matter, there have been significant advances in science and technology since the 

promulgation of the 1983 rule that were not addressed in the 2008 SBZ Rule. Incorporating the most up-to-date science, technology, and knowledge concerning the effects of surface coal mining is essential to developing maximally beneficial modern 

regulations. In addition, the 2008 SBZ Rule did not provide objective standards for 

certain important regulatory decisions, such as a requirement to collect baseline information about pre-mining conditions so that the regulatory authority can accurately assess the impacts of mining and assure proper reclamation. Therefore, OSM 

began work to modernize its regulations, incorporating new science, technology, and 

knowledge in areas that can improve, update, and more completely implement 

SMCRA. 

Many scientific advances have occurred in the past 30 years. Under SMCRA, OSM 

can and should consider those advances when modernizing its rules. The 2008 SBZ 

Rule, now almost five years old, did not incorporate the most modern technology and 

science that were available at that time, nor does the rule reflect the scientific advances that have occurred since the rule was promulgated. That is one reason why, 

combining OSM’s on-the-ground experience with peer-reviewed academic study, we 

are modernizing our rules and using the best available technology and science to 

10

improve mining practices in order to minimize and mitigate environmental damage 

from surface coal mining. 

A revised rule that incorporates modern science, technology, and knowledge will 

enable the coal industry to do a better job of reclaiming the land and restoring natural resources, and in many cases, will lead to that work being done in a more economical and efficient manner. These goals are fully consistent with Congress’ mandate and OSM’s mission, while also retaining much-needed, well-paying jobs, and 

generating revenue in the nation’s coal-producing regions. 

As we proceed with development of the Stream Protection Rule, we are considering ways to improve key provisions. SMCRA requires that surface coal mining and 

reclamation operations be conducted to minimize disturbances to fish, wildlife, and 

related environmental values ‘‘to the extent possible using the best technology currently available.’’ We are considering revisions that will provide solid benchmarks 

for companies to meet, and that will be based on the latest accepted scientific methods. Clear and uniform standards provide greater predictability and certainty to the 

mining industry, and can better protect affected communities. 

OSM will also consider the extensive public and agency comments it has received 

to date on the Stream Protection Rule. Further, it will consider the benefits, as well 

as the costs, of the agency’s regulatory alternatives. Development of the proposed 

rule language and the Draft EIS is an iterative and interactive process; we are developing each in concert with the other. The cost/benefit analysis of potential rule 

changes helps inform the decisions of what should be included in the proposed rule. 

OSM plans to publish a proposed rule and associated Draft EIS in 2014. 

Consistent with SMCRA, the National Environmental Policy Act, the Administrative Procedure Act, and other applicable laws, we will ask interested stakeholders—

whether from Congress, industry, environmental organizations, or members of the 

public—to read and comment on the proposed rule and Draft EIS once those documents have been published. We have received extensive input from the public, 

states, and other Federal agencies on issues that we will consider in drafting the 

proposed rule, including more than 32,000 comments in 2009, and more than 20,000 

after we held public scoping meetings in 2010. We look forward to additional public 

review and comment on the proposed rule and Draft EIS once they are published. 

III. CONCLUSION

Thank you for the opportunity to appear before the Committee today to testify on 

operations of OSM, the Stream Buffer Zone Rule, and the development of OSM’s 

Stream Protection Rule. Our efforts will result in regulatory improvements that will 

more completely implement the law, make use of the best available science and 

technology, better protect streams nationwide, and provide greater clarity and certainty to the mining industry and the affected communities. 

We remain committed to providing ample opportunity through the rulemaking 

process for the Congress, public, industry, stakeholders, and others to provide input 

on the proposed rule that will help us develop a balanced and responsible final rule. 

I look forward to working with you to ensure that we protect the nation’s land 

and water while meeting its energy needs. 

Mr. LAMBORN. All right. Thank you for your statement. Thank 

you for being available to answer questions. I will go ahead and 

jump in. 

Mr. Director, in the audio recordings, the Committee found last 

year that there were clips of OSM staff directly explaining that it 

was ‘‘the Director’s goal,’’ that is your goal, to make coal mining 

companies ‘‘make a decision are they willing to risk their ability to 

ever mine coal again against the possibility that they won’t be able 

to restore the stream.’’

As Director of OSM, is it still your goal to use forfeiture rules 

to drive coal companies out of business with the new regulation? 

Mr. PIZARCHIK. What the law provides is that in order to assure 

mining, the applicant can only mine where they can restore the 

land where mining is feasible. The law requires them to post a 

bond to ensure that they meet their statutory requirements. That 

is under Section 509. And if they do not fulfill their requirements, 

the law also requires that their bonds be forfeited. 

11

Now, the comments that you were talking about refer to the 

mere market conditions. What we are trying to do, what staff was 

trying to explain was that in the free market economics set forth 

in the statute, that the mine operator has the option and the duty 

to figure out whether it is technologically and economically feasible 

to mine that coal and to restore the land, as is required by the law. 

Mr. LAMBORN. So, driving companies out of business is not the 

intention, or is the intention? 

Mr. PIZARCHIK. No, it is not. In fact, what we are trying to do 

is modernize our regulations to help ensure that we have a strong, 

viable industry so they do not undertake mining that would result 

in excessive liabilities for perpetual treatment of their water. I 

have seen that happen in Pennsylvania years ago. And sometimes 

in the competitive world of business they make short-term business 

decisions that——

Mr. LAMBORN. OK. 

Mr. PIZARCHIK [continuing]. End up costing them their livelihood 

and the jobs that they actually provide. 

Mr. LAMBORN. Now, Mr. Director, OSM continues to contract 

with many of the same contractors that began working on this rule 

4 years ago, and some are different. Can you tell the Committee 

whether the contractors responsible for drafting the EIS and the 

RIA have been instructed, for the purpose of this rulemaking, to 

pretend that the 2008 rule is in effect and being implemented 

across the country, or whether they were instructed to use on-theground factual information for their research? 

Mr. PIZARCHIK. Our job is to uphold and implement the laws of 

the land. Under the laws of the land, as I understand it, that requires a baseline to take into consideration all the regulations that 

are on the books at the time when we are promulgating the new 

regulations. And according with that, the first contractor and the 

second contractor are looking at what are all the regulations. 

The first contractor included that in Chapters 1 and 2 and the 

first parts of Chapter 4, then inexplicably disregarded the 2008 

rule when doing some of the cost benefit analysis in the latter 

parts of Chapter 4. 

Mr. LAMBORN. Now, let me just step back, Mr. Director, and look 

at the intention of the rule, or the impact of the rule. Is it the intention of the Office of Surface Mining for the Stream Buffer Zone 

Rule to affect the production of longwall mining? 

Mr. PIZARCHIK. The Stream Buffer Zone Rule that is in effect I 

don’t believe specifically addresses longwall mining. If you are talking about the rules that we are working to develop on the stream 

protection rule—is that which one you are asking——

Mr. LAMBORN. Yes, Mr. Director. 

Mr. PIZARCHIK. OK. 

Mr. LAMBORN. The proposed rule that you are working on. 

Mr. PIZARCHIK. All right. The Surface Mining Act, the law, since 

its inception, has always required any type of coal mining to not 

cause material damage in areas adjacent to it. So the law has always required for underground mining, longwall mining, surface 

mining, not to cause material damage to streams adjacent to the 

permitted mining operation. 

12

Mr. LAMBORN. So it is the intention of OSM to affect the production of longwall mining through the proposed rule. 

Mr. PIZARCHIK. No. What our intent is is to better protect 

streams and to more completely implement the statute the way it 

was written in 1977 to protect streams from the adverse effects of 

coal mining. That would include longwall mining as well as surface 

mining. 

Mr. LAMBORN. OK, thank you. I would now recognize the Ranking Member. 

Mr. HUFFMAN. Thank you, Mr. Chairman, and welcome, Director 

Pizarchik. Director Pizarchik, the Surface Mining Control and Reclamation Act requires OSM to set standards based on best-available technology, and to minimize disturbances and adverse impacts 

of surface mining. 

Now, since the Bush Administration issued its Stream Buffer 

Zone Rule in 2008, there has been a growing body of research, including several studies in 2011 and 2012, that show mountaintop 

removal mines not only ruin ecosystems, but can cause human 

health effects like cardio-vascular disease, cancer, birth defects, 

and poor overall health. 

Doesn’t OSM have a legal responsibility to adjust its rules according to the evolving science about the dangers of mountaintop 

removal mining? And are you considering this new research as you 

develop the proposed rule? 

Mr. PIZARCHIK. Yes, we do have that duty. The statute imposes 

the obligation to use the most correct technology and the best 

methods to minimize it. And part of our efforts on developing the 

stream protection rule is to look at all of the existing science, available science, emerging science, and appropriately consider that in 

our rulemaking process. 

Mr. HUFFMAN. Thank you. Director Pizarchik, the Majority has 

made a lot of accusations about the consequences of a new stream 

protection rule. But I want to ask you about the rifeness of these 

accusations and whether they are premature. 

As required by both statute and Executive order, you are going 

to have to engage in a robust economic analysis, including an assessment of costs and benefits, as part of your rulemaking, once a 

proposed rule is actually issued. That proposed rule will then be 

subject to extensive public comment, which will inform the final 

rule that, again, will have to contain a cost benefit analysis. 

So, in light of all that, my question to you is whether the conversation we are having today is premature, when a rule hasn’t 

even been issued. 

Mr. PIZARCHIK. Yes, sir, it is, because we are still in the process 

of developing that rule. We do not yet know what will be in that 

proposed rule. 

Mr. HUFFMAN. And isn’t it true that the analysis you are doing 

is precisely to ensure that the benefits of a new stream protection 

rule will outweigh the costs? 

Mr. PIZARCHIK. Yes, sir. That is what the law requires us to do. 

Mr. HUFFMAN. And just to be clear, coal companies, even Members of Congress and other outside parties, will have an opportunity to weigh in on your proposed rule and the accompanying 

economic analysis, once that work is complete. Is that correct? 

13

Mr. PIZARCHIK. Absolutely, sir. 

Mr. HUFFMAN. Director Pizarchik, I want to ask you about Patriot Coal. This is the second-largest producer of surface-mined coal 

in West Virginia. And they agreed late last year to abandon mountaintop removal mining. According to their CEO, ‘‘We recognize 

that our mining operations impact the communities in which we 

operate in significant ways.’’ And abandoning mountaintop removal 

‘‘will result in a reduction of our environmental footprint.’’ So even 

coal companies are acknowledging what the Majority today fails to 

understand, that mountaintop removal mining is dangerous. We 

risk great harm to children and families in surrounding communities without meaningful protections. 

Mr. Director, what risks to the environment and community has 

caused your Agency to initiate the stream protection rulemaking, 

and why are stronger protections needed? 

Mr. PIZARCHIK. There are a number of risks with that. In regards 

to the mountaintop removal mining, science is showing that we 

have selenium poisoning the streams and the aquatic communities 

from some of the mines. There are high levels of total-dissolved solids that are adversely affecting the aquatic communities, and sometimes have resulted in fishkills. There are dust issues and concerns 

that come off that, but are beyond our authority. 

What we are trying to do is use the most modern science to adequately protect the public with the best technology available. 

Mr. HUFFMAN. Thank you for your testimony. I will yield the balance of my time. 

Mr. LAMBORN. OK, thank you. And I would like to recognize Mr. 

Gosar. 

Dr. GOSAR. Mr. Director, do you believe in the rule of law? 

Mr. PIZARCHIK. Yes, sir. 

Dr. GOSAR. And how about your science? How do you look at your 

science, the facts of science? Are they peer-reviewed science? By the 

way, I am a science guy, so I am really curious about how we look 

at science from——

Mr. PIZARCHIK. From our standpoint, as far as the rulemaking, 

we are considering all the science. Peer-reviewed science obviously 

has more value to it, and is part of our——

Dr. GOSAR. Has more value. So let me stop you right there. So 

it has more value, but other, unsubstantiated science you can use. 

I mean, because that is what you just said. 

Mr. PIZARCHIK. My understanding is the——

Dr. GOSAR. No, no, no. Your understanding. I want to know how 

you apply it. I mean you are the Director; you should know how 

you apply it. 

Mr. PIZARCHIK. That is what I am about to answer, sir. 

It is my understanding that the staff is considering all the 

science that is available. They are the ones who will be making the 

decisions and looking at what the science is and what should be 

considered. Whatever science we have available and what has been 

considered will be documented in the documents that we produce, 

the draft EIS. So the public, scientists like yourself, everyone, will 

have the opportunity to review and comment on that. And if we 

miss something or have other things, we will be able to provide 

their input——

14

Dr. GOSAR. I am glad you brought that up. Because, I am sitting 

here from Arizona, from the Navajo Generating Station, and the 

whole decision process isn’t even made on science. It is just not 

even on science. And so I am also one of these guys about trust is 

a series of promises kept, about having that stewardship. I want 

my environment clean, too, but I also want it based on science, reputable science, and having a dialog. 

And that is why I am kind of having a problem here, because I 

have seen past inferences, and then you provide this track record 

of not complying with some type of oversight with Congress. I 

mean, we get these things severely redacted. I mean it seems like 

this is an MO with this Administration, which brings me to another question. 

Is there new technology in law? 

Mr. PIZARCHIK. I am sorry, could you repeat that? 

Dr. GOSAR. Yes. Is there new technology in law? 

Mr. PIZARCHIK. New technology in law? 

Dr. GOSAR. Yes. Best management practices in law. 

Mr. PIZARCHIK. I am not sure I understand your question. 

Dr. GOSAR. Well, it seems like what we have a problem with is 

that if we don’t like what one judge says, we just call and shop for 

another judge. It seems to be a new vogue type of application about 

how we get our way when we shop judges. It seems to be the Department of Justice just loves doing this, not just here, because it 

is already showing a habit here, but in other places of this Administration, whether it be in civil law, whether it is criminal law. You 

pick and choose. 

I mean, so do we have that intention here? 

Mr. PIZARCHIK. I don’t know what you are referring to. I am not 

familiar——

Dr. GOSAR. You haven’t shopped judges? 

Mr. PIZARCHIK. Not to my knowledge. 

Dr. GOSAR. Really? You find your duty to Congress is to comply 

with oversight? 

Mr. PIZARCHIK. Yes, the Congress has a legitimate role in oversight, and we have also a legitimate role in the executive process. 

The Constitution sets forth the legislative authority under Article 

1–2. Congress reserves the executive authority under Article 2 to 

the President, and we try to work together to accommodate our 

mutual interests in order to have a viable program, and a process——

Dr. GOSAR. OK. So then you actually made a deal that we were 

going to come out with an out-of-court settlement where we had a 

proposed rule on February 28th of 2011. Why did we miss that 

deadline? 

Mr. PIZARCHIK. In the agreement that we had, we thought it was 

in the best interest of government not to be litigating, but to be 

working toward modernizing our regulations. We committed to 

making our best efforts——

Dr. GOSAR. But, I mean, you told me that you agreed with the 

rule of law. So why are we coming with that, making some type 

of deadline, and then pursuing it beyond that point? 

Mr. PIZARCHIK. In the agreement we made a commitment to do 

our best efforts. We made our best efforts. Despite our best efforts, 

15

we were not able to complete a proposed rule in that timeframe. 

Perhaps, having come from the State government into the Federal 

Government, I was a little bit naive as to how long it takes to get 

a rule or anything done in Washington. 

Dr. GOSAR. Are you in the process of reaching another closeddoor settlement with the environmental groups? 

Mr. PIZARCHIK. Not to my knowledge, sir. 

Dr. GOSAR. Have you promised the litigants that you will have 

a date-specific time for the rulemaking process? 

Mr. PIZARCHIK. Not to my knowledge, sir, I have not. 

Dr. GOSAR. Do you have a list of scientific data that you can 

share with us that you are looking at in implementing this buffer 

rule? 

Mr. PIZARCHIK. I personally do not. I know that the staff has 

been working in——

Dr. GOSAR. It would be nice to have the staff share, I mean, correspond with Congress as to what they are looking in the scientific 

method. I think a transparent type of atmosphere will definitely 

help us in that application. 

Mr. PIZARCHIK. We will cooperate whatever way we can with the 

legitimate oversight interest of the Congress, but we also want to 

protect the executive prerogatives of our deliberative process in developing the rulemaking. When we have the draft EIS available 

and published, it will reference all of the science and data that we 

have considered. Everyone will have the opportunity to review that, 

offer any additional ones if we may have missed something, as well 

as provide their comments on our analysis. 

Dr. GOSAR. I, once again, go back to trust is a series of promises 

kept. It is like the Navajo Generating Station. There is no trust. 

And nothing is warranted. So I yield back. 

Mr. LAMBORN. OK, thank you. Mr. Ca ́ rdenas. 

Mr. CA ́ RDENAS. Thank you very much. You do have some trust 

in me. I don’t know what he means by no trust. But you have trust 

in me and my constituents, as well. 

Director Pizarchik, the Majority has inquired about how much 

money has been spent on the Obama Administration’s stream protection rulemaking. However, OSM would not have needed to undertake this rulemaking if the Bush rule promulgated in 2008 was 

sufficiently protective and legally sound. 

The Bush rule failed to provide required justification and ignored 

key evidence of environmental harm, violating the Administrative 

Procedure Act, the Surface Mining Control and Reclamation Act, 

the National Environmental Policy Act, and other environmental 

laws. The Obama Administration saw these problems and consequently settled the lawsuit challenging the rule by agreeing to 

undertake a new rulemaking. 

Can you talk about the problems with the 2008 rule and why 

OSM had no choice but to undertake this rulemaking? 

Mr. PIZARCHIK. Yes, sir. One of the primary problems with it is 

under the law that we are charged with executing, carrying out, 

OSM did not consult with the United States Fish and Wildlife 

Service regarding the impacts of that 2008 rule, as required by the 

law. We have admitted that error. Thinking it is in the best interest of the government not to litigate something where we made a 

16

mistake, but to admit our mistake, minimize the litigation costs, 

and move on, and that is what we are doing. As well, trying to 

modernize our regulations with the most modern science and best 

practices that are being applied in the industry. 

Mr. CA ́ RDENAS. Now, if we were to go ahead and allow activity 

to happen on our lands in this country without sound policy and/

or sound science. Could some of the effects that we would allow 

during a certain period of time, could some of those effects last 

maybe decades, even longer? 

Mr. PIZARCHIK. Yes, sir. In fact, that is exactly what happened 

that led to the Surface Mining Act. We had about 100 years of virtually unregulated mining, and we are still in the process of, billions of dollars later, cleaning up the mess that was created. We 

have miles and miles of streams that were polluted, water supplies 

destroyed. There are just thousands, and hundreds of thousands of 

acres of problems and water pollution out there by unregulated 

mining. 

Mr. CA ́ RDENAS. Now, when those kinds of things occur, could 

those kinds of negative effects affect entire communities and/or jobs 

and/or economic flow of particular communities when we see that 

kind of contamination to our water systems? 

Mr. PIZARCHIK. Absolutely. Any time you talk to any person 

starting a business or expanding it, one of the most important 

things that they want to have is clean water. I have seen parts of 

Appalachia where there is no business, because all the water has 

been polluted by historic mining. 

Mr. CA ́ RDENAS. Yes. And it is my understanding that the title of 

this hearing is, ‘‘War on Jobs: Examining the Operations of the Office of Surface Mining and the Status of the Stream Buffer Zone 

Rule.’’ So, basically, what you just said falls right in line with the 

war on jobs. I guess there is a war on jobs when we don’t protect 

the environment. And, specifically, when we don’t protect potable 

water. 

Mr. PIZARCHIK. Yes. And, not only that, if you have a company 

who doesn’t follow the law and creates post-mining pollutional discharge from their mining, that could go on for centuries, if not 

longer. 

And I know of many instances in the past where companies who 

did that are no longer working today. They have no employees 

working today because their liabilities far exceeded their ability to 

make money, and they are out of business. And those jobs are lost, 

the environment is destroyed, the communities are damaged. We 

don’t need any more of that. 

Mr. CA ́ RDENAS. OK. On to another example. The Twilight mountaintop removal mine in Boone County, West Virginia, has had a 

devastating impact on nearby residents. Many grew weary of 

breathing dust-laden air and communities were transformed into 

ghost towns. 

One former resident explained to the New York Times, ‘‘You 

could wash your car today and tomorrow you could write your 

name on it in the dust. It was just unpleasant to live in that town, 

period.’’

Another resident was quoted as saying, ‘‘This powder from the 

mountaintops was settling on everything, turning to brown paste 

17

in the rain. People no longer hung their whites on the clothes 

lines.’’

To hear the Majority tell it, these people should be grateful for 

their community’s mountaintop removal mine. But that is not exactly the reality to them. Director Pizarchik, has OSM heard these 

sorts of complaints as you conduct outreach in the Appalachian 

communities and develop your rulemaking? 

Mr. PIZARCHIK. Yes, sir. I have. 

Mr. CA ́ RDENAS. You have? 

Mr. PIZARCHIK. Yes, and I have personally seen some of it. I have 

heard complaints about blasting issues and fumes from the blasting operations. I have been in Appalachia where mud is being 

tracked out on the roads, making the roads dangerous for the public to travel, et cetera. 

Mr. CA ́ RDENAS. Thank you very much. I yield back my time. 

Thank you. 

Mr. LAMBORN. I would like to now recognize Representative 

Wittman. 

Dr. WITTMAN. Thank you, Mr. Chairman. Thank you, Director 

Pizarchik, for joining us today. 

I want to start out. You noted that there would be a cost benefit 

analysis that would be done concerning the proposed regulation. 

Tell me a little bit about the cost benefit analysis. It is my understanding that the Agency does a cost benefit analysis. Is there any 

external review or peer review by economists of that to determine 

its validity? 

Mr. PIZARCHIK. I will give you a little bit of an explanation as 

to what we were doing. Because of the cost benefit analysis, we 

don’t have that expertise on OSM staff. So we have contracted out 

for outside experts to do that work. 

Dr. WITTMAN. OK. 

Mr. PIZARCHIK. And within that contract we have also provided, 

on the cost benefit analysis, for there to be expert peer review of 

their particular work. So that is occurring. 

And so, once the cost benefit analysis has been completed by the 

contractor, it will also have been peer-reviewed by other experts. 

Dr. WITTMAN. Is the cost benefit analysis also subjected to public 

comment in the rulemaking process? 

Mr. PIZARCHIK. As I understand the law, and the cost benefit 

analysis, that will be in Chapter 4 of the draft EIS. And, yes, that 

will be subject to public comment. We want to make sure that we 

have an analysis that is sufficiently explained in the document, so 

that anyone who reads it can understand how the numbers were 

derived, the methodology used, and can comment in an educated 

fashion on the results of those numbers. 

Dr. WITTMAN. Can you give me an example, historically, where 

you have had a comment challenging a cost benefit analysis, and 

where you have incorporated public comments challenging the validity of a cost benefit analysis into changing the cost benefit analysis, and therefore, changing the final rule that the Agency makes? 

Mr. PIZARCHIK. I cannot. This is the first rulemaking that has 

been conducted under my tenure that has progressed to this point. 

So I don’t have any examples of that in the past. 

18

Dr. WITTMAN. Well, let me ask you in a broader sense, then. In 

the public comment period the idea is to get comments from the 

public. Can you tell me, on average, about how many comments 

you normally get through the rulemaking process on a proposed 

regulation? 

Mr. PIZARCHIK. Sir, I don’t know what that has been in the past. 

On this particular rulemaking, due to the interest in it, we are expecting in the tens of thousands of comments on it. 

Dr. WITTMAN. All right. Can you tell me, too, in the past, when 

you pursued rulemaking and you have gotten comments, can you 

give me an example of where you have actually incorporated comments into changing the final rule before it goes for final promulgation? 

Mr. PIZARCHIK. I don’t have any personal knowledge of that in 

the past, because we haven’t gotten that far here. 

Dr. WITTMAN. So what you are saying is that you go through the 

public comment process, but the public comment really doesn’t 

make its way into the final rule. 

Mr. PIZARCHIK. Absolutely not. That is not at all what I am saying. What I am saying is I have not been with OSM long enough 

and conducted any rulemaking through the process where we have 

had the types——

Dr. WITTMAN. So you are just not aware that any public comment gets incorporated into the final rule. 

Mr. PIZARCHIK. I have no experience in how it has been handled 

in the past, Congressman. 

Dr. WITTMAN. OK. Let me ask this. The Committee has repeatedly asked for information on the current status of the ongoing litigation and communication with the various plaintiff groups. And 

last week, 5 months after the information was requested, some 

communications were finally received, including 5-year-old emails 

that were completely redacted, and therefore, void of any respective 

information. And I think we have a slide to pull up where it will 

show the Department didn’t produce any documents or information 

indicating that the very next day you intended to file another court 

document supporting the position of the litigants, and requesting 

that the Federal court vacate the 2008 rule. 

And as you can see, when we request information and the document comes back fully redacted, it kind of gets away from the intention of the Committee in trying to get information where we can 

pursue our role in oversight. 

And my question is why is the Administration continuing to 

withhold information by redacting the very information that the 

Committee seeks? And if this is the case, then what is the information that the Agency or the Administration doesn’t want Congress 

to see? I mean it would seem like to me, at least in a letter there, 

there would be something there. You know, there are conjunctions, 

there are the’s and and’s. 

Why would you even want to redact the the’s and the and’s? To 

me, redacting the entire letter is just as illogical. So I just wanted 

to get your comment as to why this would be the way that you 

would respond to the Committee’s request for information. 

Mr. PIZARCHIK. Congressman, we respect the legitimate oversight 

interests of the Committee, and we also are working to protect the 

19

legitimate interests of the executive deliberative process in the 

rulemaking. And——

Dr. WITTMAN. I mean it is hard for me to believe that you are 

protecting the interests by redacting every single word there. You 

are telling me that every single word, including the’s, and’s, I’s, 

they’s, even those, those are critical words that you can’t even reveal in this? 

Mr. PIZARCHIK. Sir, within the Department there are a lot of people who look at and work in responding to try to make sure we are 

as responsive as possible to the Committee. I don’t profess to know 

all the decisions or been part of that. I——

Dr. WITTMAN. Well, Director Pizarchik, let me end with this. Let 

me ask you this. If you made a request of Congress for information, 

and you got back a document like this with everything redacted, 

would that satisfy you, with your request to Congress for information? 

Mr. PIZARCHIK. Well, I don’t think, as part of the executive 

branch, we have oversight of Congress. So——

Dr. WITTMAN. Well, I am not speaking about oversight. I am just 

speaking about just a common-sense request for information. If 

something like this were redacted, and the Committee here, staff 

said this is within the Committee’s interest to do this, would you 

feel comfortable in receiving a document like that? 

Mr. PIZARCHIK. Well, we have been willing to work with the 

Committee and we have offered to work with them, we have had 

reviews of documents, we will cooperate in every way we can within the bounds of the legitimate oversight interests and the executive, deliberative process in order to provide for a productive process. 

Dr. WITTMAN. Mr. Chairman, thank you. Sorry. Sorry for the 

taking too much time. Thanks for your indulgence. 

Mr. LAMBORN. OK, thank you. Mr. Cramer. 

Mr. CRAMER. Thank you, Mr. Chairman and Ranking Member. 

Thank you, Director Pizarchik, for being with us. 

I read some of the transcripts from your Senate confirmation 

hearing, and I know that Senator Murkowski asked you a question 

about whether you thought there should be an official and legitimate role for States in the process of developing recommendations 

or reaching decisions in the context of the inter-agency action plan. 

And sort of in summary, if you will indulge me, you basically said 

that you thought it was critical to the success of the inter-agency 

action plan for State and regulatory authorities to participate in 

developing any recommendations. 

Having said that, is that a fair characterization, first of all, of 

your answer, that you think it is critical? 

Mr. PIZARCHIK. Mr. Congressman, that seems like ages ago. I 

really have no recollection of that conversation. 

Mr. CRAMER. But you still believe that to be true, that——

Mr. PIZARCHIK. I am not familiar with what the inter-agency action plan is——

Mr. CRAMER. OK. 

Mr. PIZARCHIK [continuing]. But the States are a critical part of 

our process. They have provided input. And, for instance, when we 

share drafts of the EIS with them, we got hundreds of comments 

20

from them and they have had input and they are a good source of 

information because, in many instances, they are the on-the-ground 

folks doing the mining——

Mr. CRAMER. Sure. 

Mr. PIZARCHIK [continuing]. Or regulating the mining. 

Mr. CRAMER. In fact, have primacy. 

Mr. PIZARCHIK. Yes, sir. 

Mr. CRAMER. Let me ask then. Have you had a lot of face-to-face 

meetings with some of the cooperative agencies in this process? 

Mr. PIZARCHIK. In which process? 

Mr. CRAMER. In the process of this rule that we are discussing 

today? 

Mr. PIZARCHIK. In the beginning I had a number of meetings 

with States where we solicited input. We had a number of outreach 

sessions where we met with industry, the State regulators, the 

Tribes, on the scope of the thing. So I personally attended a number of those meetings. I think we had about 15 of those. We had 

nine scoping sessions we conducted and the States had an opportunity to provide input on that. We also had input with the States 

from the drafts of the first documents that were prepared by the 

previous contractor. So there has been a tremendous amount of 

input from the States. 

Mr. CRAMER. I just want to be clear, though. So you said sharing 

drafts of the what, now, the first, the previous rule? 

Mr. PIZARCHIK. Back in 2010, our previous contractor, we 

had——

Mr. CRAMER. Oh, I see. 

Mr. PIZARCHIK [continuing]. Had prepared the first draft of various chapters of the Environmental Impact Statement. And those 

drafts were shared with the cooperating States who volunteered to 

be part of the cooperating agencies under the National Environmental Policy Act, and they provided a lot of comments to us during that process. 

Mr. CRAMER. How about since that early phase in that 2010? 

Have there been many face-to-face meetings with the cooperative 

agencies, as well as, even conference calls, realizing that not everybody can get together? 

Mr. PIZARCHIK. One of the things that the States made very clear 

to me, that they had very limited resources. And they didn’t believe 

that reviewing or commenting on those comments was a productive 

use of their limited resources. I recognize the limited resources that 

they have in regards to the budget times, et cetera, and so I did 

not approach them to impose upon their limited resources at this 

time. When we have a document that we believe is satisfactorily 

along so that they can have a productive utilization of their limited 

resources, we will be sharing that with them. 

Mr. CRAMER. Well, it is true that States have limited resources. 

Many of them, in fact, don’t even spend more money than they take 

in, and that is a limiting factor that you are not confined to. I realize that, and it is something we ought to probably correct around 

here, but that is another committee and another hearing. 

Let me ask you this, because I think on a previous question an 

opportunity was missed. Let’s say, regarding the redacted response, 

what if a coal mine responded to you with a redacted document? 

21

I mean that would be a little bit hard to accept, wouldn’t it? I mean 

you have legitimate oversight of coal mines. 

Mr. PIZARCHIK. I don’t think those are equal situations that you 

can equate to. There are certain constitutional parameters that involve our relationship with Congress, and Congress’s relationship 

with the executive branch that don’t exist between OSM as oversight and the mine operator. 

Mr. CRAMER. How about with regard to deadlines? When a regulated mine misses a deadline that you impose upon them, are there 

ever penalties that they are subject to, as a result? 

Mr. PIZARCHIK. The typical process is a notice of violation and 

giving the mine operator an opportunity to correct their violation 

before penalties can be assessed. There can be instances where 

penalties are assessed, as appropriate, and in accordance with the 

statute and regulations. 

Mr. CRAMER. Thank you. Mr. Chairman, as a former coal regulator in North Dakota, I am quite familiar with how onerous this 

process is, onerous to the point where even a wealthy State like 

North Dakota chooses not to participate, because we can’t afford, 

quite frankly, to be part of a process like this. But my time is expired, and I appreciate the gentleman’s indulgence. 

Mr. LAMBORN. Thank you. Representative Johnson. 

Mr. JOHNSON. Thank you, Mr. Chairman, and I appreciate the 

opportunity to participate in the hearing today. 

Director Pizarchik, I heard my colleague on the other side a few 

minutes ago try to make the point that today’s hearing and talking 

about this rule is premature. And you agreed with that. You have 

missed virtually every deadline that the law requires you to meet. 

You have spent millions of taxpayer dollars. You have failed to 

comply with virtually every request in full from this Committee to 

provide information. You have personal knowledge of what you say 

is the damage that coal mining is causing to streams, but yet you 

have no personal knowledge of the scientific data and analysis that 

is going into your rulemaking, or how public comments are being 

fed into your rulemaking process, even though you went through 

a public commenting session in the 2011, 2012 timeframe. 

So, it is pretty clear to me that there is a lot about your Department that you don’t know. And it is very frustrating to this Committee. Do you know what the term ‘‘oversight’’ means? Because I 

think you have a real misconception about the American system. 

This Committee is the voice of the American people. And under the 

Constitution of the United States it is our responsibility to oversee 

the chief executive for whom you work. That means when we ask 

questions, it is the voice of the American people asking the questions, and they demand answers. 

For you to insinuate that you actually have more oversight and 

more legal authority to extract information from coal companies 

than we, the voice of the American people, have to get information 

from you and this Administration on what you are doing to a vital 

energy industry I think is despicable, Mr. Pizarchik, and you ought 

to be ashamed of yourself. 

Let me ask you a couple of questions. You have been working on 

this rewrite of the Stream Buffer Zone Rule since 2009. Four years 

later, there is no final rule, no proposed rule, and the 1983 rule is, 

22

in effect, creating great uncertainty for the industry. Can you confirm for us today that the NEPA-required Environmental Impact 

Statement and the OMB-required Regulatory Impact Analysis have 

not been completed? 

Mr. PIZARCHIK. First, Mr. Congressman, welcome back to the 

Committee. And to answer to your question, yes, those documents 

have not been completed. They are still under the process of being 

developed. 

Mr. JOHNSON. All right. So they have not been completed. Is that 

correct? 

Mr. PIZARCHIK. Yes, they are still being developed. 

Mr. JOHNSON. Well, in a letter sent to Chairman Hastings on April 2nd, you stated that OSM has spent approximately $8.6 million on the rulemaking so far, with $6 million going to contract 

support for the EIS and the RIA. So, your Agency has spent 4 years and $6 million on the EIS and 

the RIA alone, and you have no completed work product. Can you 

inform the Committee today what exactly are you paying for? 

Mr. PIZARCHIK. We are paying for a NEPA-compliant, rule-compliant EIS, a draft EIS, as well as the Regulatory Impact Analysis 

and for peer review of those documents. 

Mr. JOHNSON. Well, according to your office, no aspect of the rewrite of the Stream Buffer Zone Rule is complete, and you have 

been working on it for nearly 5 years. Are you in a position to provide this Committee any information about the current status of 

the rulemaking effort? 

For example, how much has OSM spent on this project since you 

last updated the Committee? 

Mr. PIZARCHIK. When I last updated the Committee—I haven’t 

asked for any updates since——

Mr. JOHNSON. So you don’t know. So you don’t know. That is another ‘‘I don’t know.’’

Let me go to my next question. Since you have already paid $6 

million to contractors to work on the EIS and RIA, can you tell us 

what the total value of the outstanding contracts are, and how 

much this will cost the taxpayers if it is allowed to continue? 

Mr. PIZARCHIK. I don’t have that number——

Mr. JOHNSON. You don’t know. 

Mr. PIZARCHIK [continuing]. Before me, but——

Mr. JOHNSON. You don’t know. I am not surprised that you don’t 

know. Let me ask you one other question. 

Mr. PIZARCHIK. It is in the documents that we provided to you. 

Mr. JOHNSON. Let me ask you one other question, Mr. Pizarchik. 

You said that part of your responsibility is to ensure that the benefits outweigh the costs when you are going through your rulemaking process, correct? 

Mr. PIZARCHIK. NEPA requires us to do a cost benefit analysis——

Mr. JOHNSON. All right——

Mr. PIZARCHIK [continuing]. That is correct. 

Mr. JOHNSON [continuing]. Can you tell me how you plan to offset the cost of the thousands of jobs that are going to be lost, particularly along the Ohio River in coal country, where I represent, 

and the ancillary jobs that are also going to be lost and the families 

23

that are going to be displaced? How is your rulemaking process 

going to address that cost, Mr. Pizarchik? 

Mr. PIZARCHIK. I have been to those mines, sir. And based on my 

analysis and what I saw at the sites and the fact that we do not 

yet have a rule, we do not yet have the analysis completed, it is 

premature to assume that there will be jobs lost, as you have described——

Mr. JOHNSON. Oh, no. 

Mr. PIZARCHIK [continuing]. Jobs created. 

Mr. JOHNSON. We have been around this circle before. You had 

a contractor that verified that the proposed rule that you were putting in place was going to cost tens of thousands of jobs. Not going 

to have that debate with you again today. You can’t dodge that bullet. 

Mr. Chairman, I yield back. 

Mr. LAMBORN. Representative Thompson. 

Mr. THOMPSON. Thank you, Chairman. Director, good to see you. 

I wanted to, and I apologize if some of this area has been covered 

before, I was on the House Floor talking energy, which is important that we talk about all the time, obviously, affordable, reliable 

energy. 

So, my first question is, what is your plan for seeking input from 

State cooperating agencies between now and the time the stream 

protection rule EIS is published for public comment in 2014? 

Mr. PIZARCHIK. Nice seeing you again, Congressman Thompson. 

At this point we haven’t made a decisions on it as far as what we 

would do. As I indicated while you were out, we are still in the 

process of developing the documents. And the input that I had received previously from the States, they pointed out that they had 

very limited resources, and didn’t want to be spending their resources reviewing early drafts, most recently they indicated they 

wanted us to share something with them when it has been complete. 

And respecting their interests and their limited resources, I have 

not yet made a decision as to when we would be sharing something 

with them. But I don’t want to give them something prematurely 

that wasn’t ready for their analysis and that would not be a useful 

expenditure of their limited resources. 

Mr. THOMPSON. OK, because, and I am sure you know your obligation under the Department of the Interior’s own NEPA regulations require collaboration, and I quote, ‘‘to the fullest extent possible with all cooperating agencies concerning issues relating to 

their jurisdiction and special expertise,’’ and that cooperating agencies should be ‘‘evaluating alternatives and estimating the effects 

of implementing each alternative.’’

So, I would just encourage you fulfilling that responsibility and 

I would say provide these drafts as you go along. If the States do 

not have the resources to be able to work on them, that will be the 

decision of the States. But that should not preclude, and I suspect 

there are some States out there that obviously, this is an extremely 

important issue, it is an incredibly important issue in Pennsylvania, as well as I am sure some other States that are represented 

here. 

24

And so, to do a cookie-cutter response that we are not going to 

send it out because you have heard from some that they are not 

ready to use them, get those drafts out. I think that you have, by 

statute and by regulation, a responsibility to do that. 

How many face-to-face meetings has OSM had with cooperating 

agencies this year to discuss their comments on the EIS? 

Mr. PIZARCHIK. I don’t believe we have had any this year. 

Mr. THOMPSON. OK. How many conference calls have there been? 

Mr. PIZARCHIK. I don’t believe there have been any contacts with 

the cooperating agencies this year, conference calls, face-to-face 

meetings, correspondence, or anything regarding their comments 

on the previous drafts or on this work. 

Mr. THOMPSON. The CEQ regulations require lead agencies such 

as OSM to meet with cooperating agencies at the latter’s request, 

and also mandate participation of cooperating agencies in the 

NEPA process at the earliest possible time. 

So, why does that not occur? I mean this is 2013. This is August, 

or July, not too far a reach from August. The reasons why that responsibility hasn’t been fulfilled? 

Mr. PIZARCHIK. No, we had input from them on that first draft. 

And with their limited resources, I will reiterate that we aren’t 

going to impose upon them to review something that isn’t really 

ready for their review in order to not draw down on their limited 

resources. 

Mr. THOMPSON. So you are not going to mandate the review. But 

have you forwarded the drafts to the States so that if this is a priority, and I suspect it is a priority in many States, they have the 

drafts in hand? It should be their decision how thoroughly and 

what due diligence they provide on the reviews. 

Have you provided, and will you provide each of the drafts to the 

States? 

Mr. PIZARCHIK. Actually, it is my decision on when it would be 

productive for them to be getting the drafts, and I don’t believe it 

would be a productive use of their time to have a draft prematurely. 

Mr. THOMPSON. Well, I would respectfully disagree on that. I 

think that the impact on the States—the States should be fully engaged, collaborative partners. I think the regulations you operate 

under with your own NEPA analysis, the Department of the Interior requires you to do this. 

And so, I guess I know the answer to my next question. My next 

question was, will you provide the cooperating agencies with drafts 

of each revised chapter of the EIS as they become available, and 

provide them with an adequate opportunity to comment on the 

chapters and make changes to the EIS, where appropriate? 

Mr. PIZARCHIK. We will be giving them an adequate opportunity 

to review and comment on the draft EIS when it is at the appropriate time. Yes, sir. 

Mr. THOMPSON. Well, I guess it all comes down to our definition 

of the word ‘‘appropriate,’’ where we disagree. Strongly, I believe. 

Mr. Chairman, I am out of time, but if we have a second round 

I will look forward to participating. 

Mr. LAMBORN. Thank you. Representative Lummis. 

25

Mrs. LUMMIS. Thank you, Director. Now, let me get this straight. 

Well, let me start with this preface. Did the States create the Federal Government, or did the Federal Government create the States? 

Mr. PIZARCHIK. We all know that the States ceded their powers 

to the Federal Government. 

Mrs. LUMMIS. They ceded their powers? Did you say ceded their 

powers? 

Mr. PIZARCHIK. Some of their powers, yes. They——

Mrs. LUMMIS. Holy buckets. OK. Now I understand. This makes 

perfect sense now. This makes perfect sense about why we are not 

getting anywhere. The States ceded their powers to the Federal 

Government. Wow. 

Listen. OK. Your views now make it very apparent about why 

you believe that you are in a position to determine when it is appropriate to give States information. 

But let me ask you this. The State of Wyoming and other States 

sent you a letter on July 1st asking for clarification on when, on 

certain points—have you responded to that letter? 

Mr. PIZARCHIK. Not yet. I have not. 

Mrs. LUMMIS. And why is that? 

Mr. PIZARCHIK. Because I am——

Mrs. LUMMIS. The States ask questions of you. And you are going 

to decide when it is appropriate to respond? Is that the case? 

Mr. PIZARCHIK. No. 

Mrs. LUMMIS. When are you going to respond? 

Mr. PIZARCHIK. After I give it careful, deliberative thought, and 

get the appropriate analysis in order to be able to provide an appropriate response. 

Mrs. LUMMIS. And how long will that take? 

Mr. PIZARCHIK. I have learned in Federal Government service I 

can’t predict how long it takes government to do anything. So I 

don’t know, ma’am. 

Mrs. LUMMIS. Who do you work for? Who do you believe you 

work for? 

Mr. PIZARCHIK. The American people. 

Mrs. LUMMIS. And the American people sent you a letter and 

asked, ‘‘When are we going to receive our cooperating responses?’’ 

Are they cooperating agencies or not? 

Mr. PIZARCHIK. There are several of them that have volunteered 

to be cooperating agencies on the rulemaking process, yes. 

Mrs. LUMMIS. OK. So when are they going to find out? 

Mr. PIZARCHIK. Once I have had the opportunity to give it the 

careful thought and get a response back to them. 

Mrs. LUMMIS. Now, let me get this straight. The last stream protection rule was finalized in January of 2009, after 5 years of work, 

with EPA’s concurrence and the input from States and stakeholders. Is that true? 

Mr. PIZARCHIK. That is my understanding, yes. 

Mrs. LUMMIS. OK. And then there is a lawsuit. And the Federal 

Government settles out of court with some environmental groups 

an ESA lawsuit. Correct? 

Mr. PIZARCHIK. [No response.] 

26

Mrs. LUMMIS. And then they agree to issue a new rule, even 

though all of the stakeholders and the States had already been involved for 5 years in negotiating the previous rule. Am I correct? 

Mr. PIZARCHIK. Yes. 

Mrs. LUMMIS. OK. Then, so the Federal Government settles out 

of court with groups that didn’t like this 5-year process that involved all the stakeholders. You guys decide to settle out of court 

and issue a new rule. And now you are cutting the real stakeholders out of the process by deciding when it is appropriate to talk 

to them? Is that what is happening? 

Mr. PIZARCHIK. No, that is not correct. 

Mrs. LUMMIS. OK. What is happening? 

Mr. PIZARCHIK. What has happened is that OSM had made a 

mistake in not fully complying with the law in the 2008 rule. Rather than litigate and waste court resources, government resources, 

the plaintiff’s resources litigating something that we know was 

wrong, we have confessed our error, and we have asked the court 

to take action in accordance with our motion to have the case partially granted, as far as the error that we made, and allow us to 

go back and correct our error. 

And on the second part of it, we have asked the court to dismiss 

the various other counts, because a number of them are out of date, 

as well as some of it would be moved. 

Mrs. LUMMIS. I am going to switch subjects. The abandoned mine 

lands monies that have been contributed by Wyoming amounts to 

how much money this year? 

Mr. PIZARCHIK. I don’t have that number, but——

Mrs. LUMMIS. Well, I do. 

Mr. PIZARCHIK. It is a very large amount. 

Mrs. LUMMIS. It is, indeed: $131 million. But who is counting? 

Then, how much money can Wyoming expect to receive back 

from AML money this year? 

Mr. PIZARCHIK. From this year, from the AML money, the law 

that Congress passed caps it at——

Mrs. LUMMIS. That is right. That is 11 percent——

Mr. PIZARCHIK [continuing]. The sequester. 

Mrs. LUMMIS. And can you explain why Wyoming is getting 11 

percent, when every other State is getting 50 percent? 

Mr. PIZARCHIK. Because that is the law of the land, and we are 

enforcing that law. 

Mrs. LUMMIS. Is there any other State, other than Wyoming, that 

was affected by that decision of Congress? 

Mr. PIZARCHIK. Which decision——

Mrs. LUMMIS. The one that capped everybody at $15 million? 

Mr. PIZARCHIK. No, ma’am. I——

Mrs. LUMMIS. No, that is correct. That is absolutely correct. So 

Congress took one State and punished one State, the one State that 

collects more money for AML than all the other States combined, 

and punished one State. I am not blaming you. That was Congress 

that did that. And that ought to be acknowledged. 

Mr. Chairman, I yield back. 

Mr. LAMBORN. OK, thank you. I would now like to recognize myself for a second round of questions here. 

27

To follow up, Mr. Pizarchik, on something that I was asking you 

earlier, about using the 2008 vacated rule, or you asked to have it 

vacated, as a baseline. Just to clarify, you are using that as a baseline in the assumptions that you are building in to the models for 

formulating the next rule. Is that correct? 

Mr. PIZARCHIK. It is my understanding that, under the law, that 

all of the existing regulations are to be part of the baseline, as far 

as when you engage in a new rulemaking process. That is my understanding of it, yes. 

Mr. LAMBORN. OK. Does that include the 2008 rule that was 

issued at the end of the Bush Administration? 

Mr. PIZARCHIK. That is my understanding. 

Mr. LAMBORN. OK. So that is being used to build on for the assumptions that your contractors are——

Mr. PIZARCHIK. My understanding that the National Environmental Policy Act requires a lot of different things to be looked at 

on the baseline. And the contractors and the career staff have been 

working on developing the appropriate baseline. I do not know all 

of the components of that, but I believe the 2008 rule is part of that 

baseline. 

Mr. LAMBORN. Although it never took effect nationally. 

Mr. PIZARCHIK. Actually, it is in effect nationally. It has been applied on Federal lands and where OSM is the regulator. In the primacy States, where the States are the regulator, we have not required them to implement it. 

Mr. LAMBORN. My notes here say that that is Tennessee only. Is 

that correct? 

Mr. PIZARCHIK. No. We also are the regulator in the Indian country on Hopi, Crow, and Navajo, as well as in the State of Washington. 

Mr. LAMBORN. So, Indian reservation lands and the State of Tennessee. 

Mr. PIZARCHIK. Where coal is actively being mined. Yes, sir. 

Mr. LAMBORN. So that is the only place where the 2008 rule is 

in effect? 

Mr. PIZARCHIK. That is the only place it is being implemented. 

It is in effect nationwide, but the primacy States have not been——

Mr. LAMBORN. Well, the importance of this, though, is that if you 

assume that is the existing rule for purposes of rulemaking, that 

will have a smaller economic impact than if you use the status quo 

in existence before that. 

Mr. PIZARCHIK. Well, again, there are many components that go 

into the baseline. I do not know all of them. I think that a——

Mr. LAMBORN. Well, I would just hate to see fudging, where you 

minimize the economic impact and use false assumptions in order 

to accomplish that. 

Mr. PIZARCHIK. I am sure——

Mr. LAMBORN. When the draft EIS, which apparently has been 

repudiated now, came out, it showed a direct job loss of 7,000 jobs, 

and many more thousands of lost jobs indirectly, with economic 

harm in at least 22 States. 

Is the rule that you are working on now, some kind of modified 

rule, is it going to have these kinds of devastating economic impacts? 

28

Mr. PIZARCHIK. The rule is still under development, as is the economic analysis, the cost analysis and the benefit analysis. So I 

don’t know what those numbers are. But I can tell you that, under 

the NEPA, it is an iterative process. And as we go through it, as 

we learn what potential impacts would be from a change, then that 

helps inform the decisionmaking, so we can decide what would be 

in the proposed rule, and we are not at that point yet. 

Mr. LAMBORN. Well, to drill down on that, we have listened to 

the audio tapes, and we hear someone in your department saying 

that there is only going to be 15 miles of streams protected. 

Now, in coal country, there are hundreds, if not thousands of 

miles of streams. And to have this kind of onerous economic impact 

to protect 15 stream miles, to me, is very disproportionate. Am I 

wrong on that? 

Mr. PIZARCHIK. What you are hearing was our staff trying to understand the analysis that that contractor put forward in order to 

get a better understanding of what is causing those impacts. And 

so they were trying to get that understanding as the way the process is supposed to work. 

What we have learned is that the contractors who came up with 

those numbers based it on estimates, and then those estimates 

were also in part based on a misunderstanding of the draft rule 

language that they were considering at that point in time, and then 

those estimates, which were based on professional judgment, as I 

understand, without any explanation as to what were the assumptions they made on coming up with that professional judgment, it 

was not impossible for us to understand how they came up with 

those numbers, what was causing it or not. 

And, as part of the NEPA process, that is important for us, to 

understand what the potential benefits and costs would be of potential changes in order to be able to make informed decisions. And 

we weren’t able to get that type of information in that exchange or 

from that contractor, due to the methodologies that they had used. 

Mr. LAMBORN. Now, if I heard correctly, someone on the other 

side of the aisle said that there were hundreds or thousands of 

stream miles that this rule needed to protect, and would protect. 

Is that a correct assumption? 

Mr. PIZARCHIK. There has been, I believe it has been documented, there are 2,000 miles of streams that already have been 

buried. That is not counting the ones that have been mined 

through and not restored. We don’t know, right now, what the ultimate numbers will be, because we still are in the process of developing a rule. But we know, based on past history, that there are 

hundreds of miles of streams that have been adversely impacted 

from mining. 

Mr. LAMBORN. And where are those streams? Can you show me 

a map? 

Mr. PIZARCHIK. I don’t have that here, but I believe a number of 

them were documented in some previous studies. But I could get 

that information. I believe that is available. 

Mr. LAMBORN. Would you, please? I would like that for the 

record. 

Mr. PIZARCHIK. I will do my best to get you that. 

Mr. LAMBORN. OK. Ranking Member Huffman. 

29

Mr. HUFFMAN. Thank you, Mr. Chair. 

Director Pizarchik, there has been a lot of discussion about a single document with a large redacted area in it. And I am not a 

science guy, as one other Member characterized themselves, but I 

am a law guy. And I will tell you in my career as a litigator, I certainly saw all kinds of documents that looked just like that. It happens all the time. And so, I want to just take a moment to discuss 

what it means when a document is redacted that way. 

Now, you were being asked about the subject of pending litigation, correct? 

Mr. PIZARCHIK. Yes, sir. There were questions about that. 

Mr. HUFFMAN. All right. And when there is pending litigation, 

there are often documents that contain attorney-client privilege 

material. Is that fair to say? 

Mr. PIZARCHIK. Yes, sir 

Mr. HUFFMAN. And it is your duty to make sure that the attorney-client privilege is not waived or breached by disclosure. Correct? 

Mr. PIZARCHIK. That is correct. 

Mr. HUFFMAN. There may also be deliberative process privileges 

that likewise have to be protected from waiver or disclosure. Is that 

fair to say? 

Mr. PIZARCHIK. Yes, sir. 

Mr. HUFFMAN. And then, finally, personal privacy information 

also would be another concern when you produce documents? 

Mr. PIZARCHIK. Yes, and I believe there are laws that also require that to be kept. 

Mr. HUFFMAN. All right. So, for the one single document about 

which there has been so much excitement and hyperventilation this 

morning, is it fair to say that redaction was because there was 

privileged information and/or personal, private information that 

was being protected from waiver or breach? 

Mr. PIZARCHIK. I believe that is what our lawyers would have 

done, yes, sir. 

Mr. HUFFMAN. And I notice that while so much time has been 

spent on the single mystery document, which really isn’t much of 

a mystery to anybody who has litigated, not a lot of time has been 

spent on the amount of documents you have produced to this Committee. 

We mentioned at the outset that the Department has produced 

about 14,000 pages of documents. Many of the things that you have 

been asked about here today, sometimes interrupted, talked over—

I believe you were starting to say, in response to some questions, 

that that information was actually in the documents that have 

been produced to this Committee. There have been 7,000 pages of 

documents and roughly 25 hours of audio recordings produced from 

contractors that have been working with you on this rulemaking. 

And the Majority, nevertheless, has failed to expose any wrongdoing in all of this material that you have produced to them. 

Is there anything more you want to say about the documents and 

the data and the information that you have produced to this Committee, as opposed to just further talking about the one single mystery document? 

30

Mr. PIZARCHIK. Well, I think they have been responsive to the 

Committee’s oversight. There is a fair amount of information in the 

documents that is, I believe, relevant to the oversight information. 

And we are going to continue to provide what we can, in accordance with the legitimate interests of both branches of government. 

Mr. HUFFMAN. I assume, when you produce this kind of voluminous information in response to a series of requests from a Committee like this, that it takes a lot of staff time, and it costs your 

agency a lot of money. 

Mr. PIZARCHIK. It absolutely does. I believe just for our agency, 

I believe, we had over 2,000 hours in preparing document requests. 

That is just for OSM, it is not for the solicitors and everybody else 

to review them. And I believe at last week’s hearing, Chairman 

Hastings had mentioned that there were 10 document requests 

that the Committee had filed from the Department this year. Those 

are a lot of documents, takes a lot of time, and we respond to them 

as quickly and as timely as we can, but it takes a lot of effort and 

a lot of cost to the government. 

Mr. HUFFMAN. With what is remaining in my time, I want to ask 

you about the contractor, Polu Kai Services, that you parted ways 

with that had at one point prepared a preliminary job analysis. 

And I believe this was called the bullet you can’t dodge. And you 

certainly can’t dodge it if nobody gives you any time to speak to 

it. 

So, whether you want to dodge it or speak to it, I want to at least 

allow you some time to explain what happened with that contractor, what happened with that jobs estimate. And I specifically 

want to ask, it is my understanding that you were in the process 

of getting criticisms about this contractor’s work well before that 

job’s estimate information was released, that the criticisms of this 

person’s work came not only internally, but from other stakeholders who had seen this contractor’s work, and that this was a 

matter of poor performance that forced you to part ways with that 

contractor. But I want to give you a moment to actually speak to 

it. 

Mr. PIZARCHIK. That is correct. We had hired the contractor to 

prepare NEPA documents, and the type of documents that were 

prepared didn’t meet that requirements. We got hundreds of comments from our cooperating agencies, some of them quite strongly 

worded, because of the quality of those documents. And they were 

reinforcing what we were seeing, that the contractor was not performing up to the contract standards or the legal requirements that 

were necessary to meet in order to have a legitimate, defendable 

rulemaking, going forth. 

Mr. HUFFMAN. Thank you, Director. I yield back, Mr. Chair. 

Mr. LAMBORN. Representative Johnson. 

Mr. JOHNSON. Thank you, Mr. Chairman. I want to point out, I 

have never been a litigator, but I have been a job creator, I have 

been a businessman. And I know what this rulemaking is doing to 

the jobs in my district. 

Mr. Director, just a point of clarification to make sure that our 

entire Committee understands this. No audio recordings have been 

provided by your Department. Those are still being withheld. The 

only audio recordings we have gotten we have gotten from outside 

31

sources. This Committee has asked repeatedly for copies of the 

audio recordings of the meetings. Again, to fulfill our responsibility 

under the Constitution for oversight. So, again, shame on you and 

the Department for not complying. 

Mr. Pizarchik, DOI’s own NEPA regulations require collaboration 

to the fullest extent possible with all cooperating agencies concerning issues relating to their jurisdiction, so that they can evaluate alternatives, estimate the effects of implementing alternatives, 

et cetera. 

Specifically, CEQ regulations required lead agencies such as 

OSM to meet with cooperating agencies at the agencies’ request. I 

got a specific citation here that requires that, 40 CFR 1500.6(a)3, 

and also mandates participation of cooperating agencies in the 

NEPA process at the earliest possible time. I find it interesting 

that your interpretation of those directives is that when you deem 

it is appropriate. I don’t get it. 

Economic feasibility. You say that you consider economic feasibility in the rulemaking process. Can you tell me how you think 

it is economically feasible for a longwall mining operation to comply with a Stream Buffer Zone Rule, that, if it looks anything like 

the one that we looked at in the last Congress, would require them 

to spend millions of dollars each and every time they have to move 

that long wall to avoid operations under a stream? Can you explain 

to me how you are evaluating economic feasibility in that regard? 

Mr. PIZARCHIK. It would be premature for me to speculate——

Mr. JOHNSON. You don’t know. 

Mr. PIZARCHIK [continuing]. On this, because we don’t have a 

rule yet, and——

Mr. JOHNSON. You don’t know. 

Mr. PIZARCHIK [continuing]. We don’t know what is going to be 

in the——

Mr. JOHNSON. Now you have been working on this for 5 years, 

5 years. You don’t have scientific analysis, you can’t say what the 

stakeholders comments have done, and whether they have been integrated into the rulemaking process, and it is premature. It is not 

premature, Mr. Pizarchik, and you need to stop dodging the voice 

of the American people and come clean with what this rulemaking 

process is all about. And you and I are going to continue to have 

these dialogs until you do. So I want to make that clear to you. 

In testimony before this Committee last year, and in Federal 

court documents filed just last week, you stated repeatedly that 

OSM believes that a rewrite of the Stream Buffer Zone Rule is a 

top priority, and that OSM will continue to use best efforts. How 

do you define ‘‘best efforts,’’ when you have continuously told this 

Committee that you don’t have any employees working on this fulltime, and you have no work product after 5 years? Is that your best 

effort? Is that what you mean by best effort? 

Mr. PIZARCHIK. We have been working on this, and we are going 

to continue to work and develop it, and we are making progress. 

As I indicated earlier, we anticipate some time in 2014 that we will 

have the——

Mr. JOHNSON. I have heard the deadlines that you keep pushing 

out. I have heard that. I have little confidence that you are going 

to get to it at that point, either. 

32

You stated earlier, when you were asked about whether or not 

stakeholder comments are included, and if they have ever changed 

a rulemaking, and you said this is the first major rulemaking that 

you guys have done since you took over OSM. Correct? This is the 

only one. You are a director, and this is best efforts? You have only 

got one big one going on, and this is best efforts? 

Mr. PIZARCHIK. We have a number of other rulemakings going 

on. What I indicated was this is the one that is the farthest along 

in this process. And best efforts, we are giving it our best shot. We 

have to take staff away from working on the rule to respond to document requests. That is a priority, as well. And——

Mr. JOHNSON. Do you take staff away from the rule to converse 

with stakeholders? 

Mr. PIZARCHIK. I believe when you were in the room we got the 

answer to that question earlier on, that we had our interaction 

with the stakeholders earlier on, on the first drafts. We are still 

working on addressing comments and developing the rule and the 

draft EIS in accordance with those comments. 

Mr. JOHNSON. Five years. Five years and millions of dollars of 

taxpayer funding, Mr. Pizarchik, is not acceptable to me. It 

wouldn’t be acceptable in any business that I run. 

Mr. Chairman, I yield back. 

Mr. LAMBORN. Thank you. Mr. Thompson. 

Mr. THOMPSON. Thank you, Chairman. Director, I want to come 

back to the contractors. 

Now, your own employees have said the contractors were working at the direction of OSM, and that the problems attributed to 

the contractors were actually the responsibility of OSM. As I read 

and look, you are using a process that is destined to fail. And I 

have to wonder if that is on purpose, this is just one more tool on 

the part of the Obama Administration to really kill the coal industry. 

The issue I see, regarding the contractors, it was the behavior 

and demands of your Department. One example is 10 days to review hundreds of pages. And that is just among many. You know, 

it is a process that rushes the contracting agencies in a reckless 

fashion. 

Now, Mr. Director, I think the main question before us today is 

where do we go to from here, looking forward. I mean, what is the 

plan forward? As stated in the Chairman’s opening statement, you, 

the OSM, you have wasted millions, nearly $10 million over the 

past 4 years, with nothing to show. Now, today we hear that your 

hope, not a guarantee, but hope, is that there will be a new rule 

proposed a year from now. 

Now, my question is, how much? How much will it cost us to continue the reckless, unnecessary, poorly managed process before you 

complete a rule? Another $5 million, another $10 million? Almost 

what we have invested already, taxpayers have, $15 million? Is 

there an end to the black hole of waste at OSM? 

So, my question is, where do we go from here, and what is it 

going to cost? 

Mr. PIZARCHIK. Well, I believe it is about $8 million to date, and 

I agree that is a lot of money to the average American. It is a lot 

of money to OSM. Perhaps if we were exempted from all of these 

33

cost benefit analyses we could do the process a lot more efficiently. 

But I would be willing——

Mr. THOMPSON. Well, Director, let me just say the cost benefit 

analysis is a safeguard for American citizens. Regulations come at 

a cost, and it is a cost benefit, the comparison, cost benefit does not 

happen near enough as regulations are proposed by the bureaucracy of government. And so, I think asking for relief from a safeguard, something that safeguards the American taxpayer, the 

American citizens, is not something I would advocate for. 

Mr. PIZARCHIK. OK. Then I would agree with you that spending $8 million is money well spent on figuring out what the costs and 

benefits would be of the rulemaking process. 

Mr. THOMPSON. So do you have an estimate? We have another 

year? I mean you were hoping, no guarantee, hoping for another 

year, based on the past expenditure lines, say $8 million so far. 

What do you think we are going to rack up in bills before this rule 

is actually—well, let me just say, first of all, how much do you 

think we are going to spend on this rule before you actually engage 

the cooperating agencies, because I still want to come back to that 

in my first line of questioning. 

I am just appalled that you are not sending it out there, because 

you assume that the States don’t have resources to do anything 

with it. You have a regulatory responsibility to release these drafts, 

these EIS drafts. You don’t get final pick. The regulations are clear. 

The Department of the Interior is very clear of engaging cooperative agencies. So how much money, additional money, are we going 

to spend until we at least get a draft released to the States? 

Mr. PIZARCHIK. Well, I can get you the total contract dollar 

amount. We have a contract in place. I don’t have that number at 

my fingertips, as far as what we have for the contractors to perform. It is a type of contract that is based on them producing certain documents and certain products, and we are on track for having those products. The contract is capped out at a certain amount. 

I don’t remember the number on that. We have been very cautious. 

And at our meetings, we limit our meetings, we are conducting our 

meetings by teleconference call, minimizing travel, doing whatever 

we can to minimize and control the cost on that, so we do not exceed our existing contract cost on that. 

Mr. THOMPSON. Well, I appreciate you saying you are cautious 

about it, but I will say it has been costly. And up to this point it 

has been quite ineffective and potentially damaging to just a tremendous number of jobs. 

I had an opportunity, I represent western Pennsylvania, it was 

a little further out in western Pennsylvania, having dinner in a 

county out there just a week or so ago, and had a individual from 

the coal industry and his wife walk up to me. Somehow they figured out who I was. That is not always a good thing. I was outside 

my congressional district. Well, this couple, this family, is just devastated with what is going on with the coal industry in Pennsylvania. 

And what is devastating it is—the Congressional Research Service just did a report that shows we have the largest reserve of coal. 

We have 88 billion more short tons than Russia, who is number 

two, of coal remaining. We have the technology to be able to do it 

34

right. And, unfortunately, this Administration is just killing the 

coal industry, just devastating that family. 

So, Mr. Chairman, I am way over my time. Thank you. 

Mr. LAMBORN. OK, thank you. And, Mr. Pizarchik, thank you for 

being here. Thank you for answering questions. Members of the 

Committee may have additional questions for the record, and I 

would ask that you respond to those in writing. 

If there is no further business, without objection, the Committee 

is adjourned. 

[Whereupon, at 11:33 a.m., the Subcommittee was adjourned.]

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