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STATE PERSPECTIVES ON THE 

STATUS OF COOPERATING 

AGENCIES FOR THE OFFICE 

OF SURFACE MINING’S 

STREAM PROTECTION RULE 

OVERSIGHT HEARING 

BEFORE THE

SUBCOMMITTEE ON OVERSIGHT AND 

INVESTIGATIONS 

OF THE

COMMITTEE ON NATURAL RESOURCES 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

Wednesday, May 20, 2015 

Serial No. 114–10 

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 

ROB BISHOP, UT, Chairman 

RAU ́ L M. GRIJALVA, AZ, Ranking Democratic Member 

Don Young, AK 

Louie Gohmert, TX 

Doug Lamborn, CO 

Robert J. Wittman, VA 

John Fleming, LA 

Tom McClintock, CA 

Glenn Thompson, PA 

Cynthia M. Lummis, WY 

Dan Benishek, MI 

Jeff Duncan, SC 

Paul A. Gosar, AZ 

Rau ́l R. Labrador, ID 

Doug LaMalfa, CA 

Jeff Denham, CA 

Paul Cook, CA 

Bruce Westerman, AR 

Garret Graves, LA 

Dan Newhouse, WA 

Ryan K. Zinke, MT 

Jody B. Hice, GA 

Aumua Amata Coleman Radewagen, AS 

Thomas MacArthur, NJ 

Alexander X. Mooney, WV 

Cresent Hardy, NV 

Vacancy 

Grace F. Napolitano, CA 

Madeleine Z. Bordallo, GU 

Jim Costa, CA 

Gregorio Kilili Camacho Sablan, CNMI 

Niki Tsongas, MA 

Pedro R. Pierluisi, PR 

Jared Huffman, CA 

Raul Ruiz, CA 

Alan S. Lowenthal, CA 

Matt Cartwright, PA 

Donald S. Beyer, Jr., VA 

Norma J. Torres, CA 

Debbie Dingell, MI 

Ruben Gallego, AZ 

Lois Capps, CA 

Jared Polis, CO 

Vacancy 

Jason Knox, Chief of Staff 

Lisa Pittman, Chief Counsel 

David Watkins, Democratic Staff Director 

Sarah Parker, Democratic Deputy Chief Counsel 

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS 

LOUIE GOHMERT, TX, Chairman 

DEBBIE DINGELL, MI, Ranking Democratic Member 

Doug Lamborn, CO 

Rau ́l R. Labrador, ID 

Bruce Westerman, AR 

Jody B. Hice, GA 

Aumua Amata Coleman Radewagen, AS 

Alexander X. Mooney, WV 

Vacancy 

Rob Bishop, UT, ex officio 

Jared Huffman, CA 

Ruben Gallego, AZ 

Jared Polis, CO 

Vacancy 

Vacancy 

Rau ́l M. Grijalva, AZ, ex officio 

(III) 

CONTENTS 

Page 

Hearing held on Wednesday, May 20, 2015 .......................................................... 1 

Statement of Members: 

Dingell, Hon. Debbie, a Representative in Congress from the State of 

Michigan ........................................................................................................ 4 

Prepared statement of ............................................................................... 5 

Gohmert, Hon. Louie, a Representative in Congress from the State of 

Texas .............................................................................................................. 1 

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

Statement of Witnesses: 

Baker, Gregory, Reclamation Program Manager, Virginia Department 

of Mines, Minerals and Energy, Big Stone Gap, Virginia ......................... 18 

Prepared statement of ............................................................................... 20 

Hunter, Russell M., Counsel, Division of Mining and Reclamation, 

West Virginia Department of Environmental Protection, Charleston, 

West Virginia ................................................................................................ 26 

Prepared statement of ............................................................................... 27 

Johnson, Randall, Ph.D., Director, Alabama Surface Mining Commission, 

Jasper, Alabama ........................................................................................... 6 

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

White, Dustin, Community Organizer, Ohio Valley Environmental 

Coalition, Huntington, West Virginia ......................................................... 23 

Prepared statement of ............................................................................... 24 

Additional Materials Submitted for the Record: 

List of documents submitted for the record retained in the Committee’s 

official files .................................................................................................... 56 

Mortality Disparities in Appalachia: Reassessment of Major Risk Factors. 

Jonathon Borak, MD, Catherine Salipante-Zaidel, MEM, Martin D. 

Slade, MPH, and Cheryl A. Fields, MPH. Journal of Occupational 

and Environmental Medicine (February 2012) ........................................... 46 

(1) 

OVERSIGHT HEARING ON STATE PERSPECTIVES ON THE STATUS OF COOPERATING 

AGENCIES FOR THE OFFICE OF SURFACE 

MINING’S STREAM PROTECTION RULE 

Wednesday, May 20, 2015 

U.S. House of Representatives 

Subcommittee on Oversight and Investigations 

Committee on Natural Resources 

Washington, DC 

The subcommittee met, pursuant to notice, at 2:15 p.m., in room 

1334, Longworth House Office Building, Hon. Louie Gohmert 

[Chairman of the Subcommittee] presiding. 

Present: Representatives Gohmert, Lamborn, Labrador, 

Westerman, Radewagen, Mooney; and Dingell. 

Mr. GOHMERT. The Subcommittee on Oversight and Investigations will come to order. 

The subcommittee is meeting today to hear the testimony on 

‘‘State Perspectives on the Status of Cooperating Agencies for the 

Office of Surface Mining’s Stream Protection Rule.’’ Under 

Committee Rule 4(f), any oral opening statements at hearings are 

limited to the Chairman and Ranking Member and the Vice Chair 

and a designee of the Ranking Member. This will allow us to hear 

from our witnesses sooner and help Members to keep to their 

schedules. 

Before I ask unanimous consent, all other Members’ opening 

statements will be made part of the hearing record if they are submitted to the Subcommittee Clerk by 5:00 p.m. today. Hearing no 

objection, it is so ordered. 

At this time I would like ask everyone in the hearing room to 

please silence your cell phones. This will keep distractions to a 

minimum for our Members, witnesses, and attendees, and ensure 

that we can get as much information as possible from our 

witnesses. 

At this time I will now recognize myself for an opening 

statement. 

STATEMENT OF THE HON. LOUIE GOHMERT, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS 

Mr. GOHMERT. This Subcommittee on Oversight and Investigations is meeting today to hear directly from states impacted by 

what appears to be another harmful Federal regulation made by 

yet another Federal agency that is not following the law. 

Since 2009, the Office of Surface Mining Reclamation and 

Enforcement, or OSM, has been trying to issue a new rule to regulate mountaintop mining. I say trying because it is now 6 years 

and millions of dollars later, and OSM still does not even have a 

proposed rule to show for the millions of dollars. 

2 

In the course of trying to make this new rule, the Stream 

Protection Rule, the Department of the Interior and the OSM have 

run roughshod over the very states that they were supposed to be 

working with, according to the law the Department and OSM appear to have been violating. 

The states that are represented here today entered into agreements with OSM that recognized them, and I quote this term because it is in the law, as ‘‘cooperating agencies’’ under NEPA. 

‘‘Cooperating agencies’’ under NEPA are entitled to participate, the 

language says, throughout the environmental review process. 

But instead of including the states, OSM has systemically excluded them from the process. In fact, Secretary Jewell herself recently testified before Congress that the states would have a 

chance to comment on the proposed rule after it is published, and 

then her words were, ‘‘just like everyone else.’’ Let’s see the video 

of that, and maybe hear it, too. 

[Video played.] 

Mr. GOHMERT. All right. So that is deeply troubling, that the 

Secretary herself thinks states should be heard from after they 

come up with a rule, and that is not what the law says. They are 

supposed to be heard from throughout the process. 

States are legally entitled to participate in the NEPA process 

throughout this particular process. They have local expertise and 

practical experience with mining operations in their states that can 

and should actually form the basis of OSM’s rulemaking process, 

particularly since they normally have more experience in these 

matters than those creating the rules from their cubicles. This is 

part of the reason that the cooperating agency process was created 

and even exists in the first place. 

This unfortunately seems to give substance to the view across 

much of the country that Washington arrogance is exceeded only 

by its ignorance of what it regulates, and that, once again, more 

regulations are promulgated that damage states without actually 

taking the states’ expertise and damage into account. 

States are understandably frustrated after years of trying to 

work with OSM and having OSM ignore their concerns. This 

Natural Resources Subcommittee on Oversight is likewise quite 

frustrated at the improprieties of the Interior Department’s responses to this committee’s legitimate request. 

The subcommittee sent a letter to Director Pizarchik back on 

April 2 requesting documents and information on this topic, including copies of the memoranda of understanding that OSM signed 

with the states. Coincidentally, OSM produced copies of those 

MOUs last night—last night—over a month after the documents 

were due. 

To be clear, the majority of the subcommittee’s requests remain 

unfulfilled, and we will continue to seek the outstanding documents 

from OSM. We are also hopefully approaching a time, finally, once 

again, when an agency or department that inappropriately responds or is not properly responsive to congressional oversight 

requests loses a significant amount of funding in the next year. 

This oversight hearing is entitled, ‘‘State Perspectives on the 

Status of Cooperating Agencies for the Office of Service Mining’s 

Stream Protection Rule.’’ As I began looking into these issues 

3 

recently and then began preparing for this hearing, I learned a 

great deal of information about this issue that we simply had not 

dealt with in my own district. 

That is why I am particularly grateful for our witnesses before 

us here today and their expertise, and look forward to hearing 

about their experiences as cooperating agencies. 

[The prepared statement of Mr. Gohmert follows:] 

PREPARED STATEMENT OF THE HON. LOUIE GOHMERT, CHAIRMAN, SUBCOMMITTEE ON

OVERSIGHT AND INVESTIGATIONS

The Subcommittee on Oversight and Investigations is meeting today to hear 

directly from states impacted by what appears to be another harmful Federal regulation made by yet another Federal agency that is not following the law. 

Since 2009, the Office of Surface Mining Reclamation and Enforcement (‘‘OSM’’) 

has been trying to issue a new rule to regulate mountain-top mining. I say ‘‘trying,’’ 

because it’s now 6 years and millions of dollars later and OSM still doesn’t even 

have a proposed rule to show for the millions of dollars. 

In the course of trying to make this new rule—the Stream Protection Rule—the 

Department of the Interior and OSM have run roughshod over the very states that 

they were supposed to be working with, according to the law the Department and 

OSM appear to have been violating. 

The states that are represented here today entered into agreements with OSM 

that recognized them as ‘‘cooperating agencies’’ under NEPA. ‘‘Cooperating agencies’’ 

are entitled to participate throughout the environmental review process. 

But instead of including the states, OSM has systematically excluded them from 

the process. 

In fact, Secretary Jewell herself recently testified before Congress that the states 

would have a chance to comment on the proposed rule after it’s published, ‘‘just like 

everyone else.’’ Let’s see the video of that. 

The problem is that these states aren’t ‘‘just like everyone else.’’ They are legally 

entitled to participate in this NEPA process throughout the process. 

They have local expertise and practical experience with mining operations in their 

states that can and should actually form the basis of OSM’s rulemaking process, 

particularly since they normally have more experience in these matters than those 

creating the rules in their cubicles. This is part of the reason that the cooperating 

agency process was created and even exists in the first place. 

This unfortunately seems to give substance to the view across much of the country 

that Washington arrogance is exceeded only by its ignorance of what it regulates, 

and that, once again, more regulations are promulgated that damage states without 

actually taking the states’ expertise and damage done into account. 

In any event, today, now that we have heard the statement of Secretary Jewell 

by video, we will provide an opportunity for the states to be heard. We will also welcome compliant responses to our prior requests from the Department of Interior 

soon after the hearing today. If the Department wishes to respond to comments 

made by representatives of the three states represented here today, they are welcome to do so when they supply the answers we requested in April. 

This oversight hearing is entitled ‘‘State Perspectives on the Status of Cooperating 

Agencies for the Office of Surface Mining’s Stream Protection Rule.’’ As I began 

looking into these issues recently, and then began preparing for this hearing, I 

learned a great deal of information about this issue that we simply had not dealt 

with in my own district. That is also why I am particularly grateful for our witnesses before us here today and their expertise. I look forward to hearing about 

their experiences as ‘‘cooperating agencies.’’ 

The states are understandably frustrated after years of trying to work with OSM 

and having OSM ignore their concerns. 

This Natural Resources’ Subcommittee on Oversight is likewise quite frustrated 

at the improprieties of the Interior Department’s responses to this committee’s 

legitimate requests. 

This subcommittee sent a letter to Director Pizarchik on April 2 requesting documents and information on this topic, including copies of the MOUs that OSM signed 

with the states. Coincidentally, OSM produced copies of the MOUs only last night— 

LAST NIGHT—over a month after the documents were due. To be clear, the majority of the subcommittee’s requests REMAIN unfulfilled, and we will continue to seek 

the outstanding documents from OSM. 

4 

We are also hopefully approaching a time finally, once again, when an agency or 

department that inappropriately responds or is not properly responsive to congressional oversight requests loses a significant amount of funding in the next year. 

Some of us believe very strongly that if a bureaucracy is not adequately responding to congressional oversight of the people’s funds, then those funds should stop 

being sent by Congress to that nonresponsive bureaucracy. I believe we are quickly 

reapproaching that day, and I, for one, look forward to it. 

With that, I would recognize the Ranking Member, Mrs. Dingell. 

STATEMENT OF THE HON. DEBBIE DINGELL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN 

Mrs. DINGELL. Thank you, Mr. Chairman. And thank you to all 

the witnesses for being here today. It is always good to be in a 

hearing with you. 

This hearing is about the Stream Buffer Protection Rule. An earlier version of the rule was promulgated by the Bush administration on its way out the door in 2008, which was vacated by the D.C. 

District Court. They found that the administration’s determination 

that the weakened rule would have no impact on threatened or endangered species was not a rational conclusion. 

The new version, as we saw the Secretary talk about, is now 

being reviewed by the Office of Management and Budget. The 

Administration is actively looking at this rule, and I think we are 

all looking forward to reviewing it soon; but today we are talking 

about a rule that is yet to be promulgated. 

As a new Member of Congress, I am learning something new 

every day. Last night, as I was studying at my normal 2:00 a.m., 

I learned that the Majority has been investigating the Stream 

Buffer Protection Rule for nearly 4 years. It has resulted in two 

subpoenas, production of 13,500 pages of documents, 25 hours of 

audio recordings, a Majority staff report, three oversight hearings, 

and a legislative hearing on a bill to weaken protections for communities coping with mountaintop mining. This is the fourth oversight hearing being held on this issue; but for several of us here, 

it is the first, so we are all learning. 

We will hear concerns today about the process of developing the 

rule and the environmental impact statement attached to it. I want 

to express my concern that we cannot get to the bottom of these 

complaints if we do not hear from both sides of the story. 

The Office of Surface Mining Reclamation and Enforcement, or 

OSM, which is the primary agency we will hear about today, was 

not invited to testify, to give their side of the story, or answer any 

questions. I hope that future hearings will allow for a fuller exploration of the issues with them included. 

But we can talk about procedure today. One witness, Mr. White, 

will talk about the failure of state regulators to protect the health 

of people in his community. That matters. The West Virginia 

Department of Environmental Quality is the subject of a Section 

733 petition under SMCRA that was filed by a broad coalition of 

organizations. These petitions permit OSM to intervene if a state 

regulator is not living up to its obligations. 

OSM found five separate complaints worthy of investigation in 

response to this petition. And for me personally, that points to 

5 

what this hearing is really about. It is about people, families, and 

the effect that mountaintop removal mining has on their lives. 

Research has proven that it affects the health of communities located near mountaintop removal mines. Many cancers, including: 

lung, colon, kidney, bladder, and leukemia, have all been linked to 

mountaintop removal mines. Birth defect rates were 42 percent 

higher in affected counties between 2000 and 2003 compared to 

non-mining communities. Mountaintop removal mines were also 

linked to increased rates of depression. 

The very least we should be able to do for the hardworking people in these communities is to give them the protections to which 

they are entitled. I look forward to reading OSM’s results of their 

investigation prompted by the community’s petition. But we also 

owe it to them to issue a strong Stream Buffer Protection Rule and 

to give that rule a fair evaluation when it is released. 

Thank you, Mr. Chairman, and I yield back the balance of my 

time. 

[The prepared statement of Mrs. Dingell follows:] 

PREPARED STATEMENT OF THE HON. DEBBIE DINGELL, RANKING MEMBER, SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS

Mr. Chairman, thank you for the recognition, and thank you to all of our 

witnesses for being here today. 

This hearing is about the Stream Buffer Protection Rule. An earlier version of the 

rule promulgated by the Bush administration on its way out the door in 2008 was 

vacated by the D.C. District Court. They found that the administration’s determination that the weakened rule would have no impact on threatened or endangered species was ‘‘not a rational conclusion.’’ 

A new version of the rule is now being reviewed by the Office of Management 

Budget. The Administration is actively looking at this rule and we are all looking 

forward to reviewing it soon. 

As a new Member of Congress, I am learning something new every day. And I 

recently learned that the majority has been investigating the Stream Buffer 

Protection Rule for nearly 4 years. It has resulted in two subpoenas, production of 

over 13,500 pages of documents, 25 hours of audio recordings, a majority staff report, three oversight hearings, and a legislative hearing on a bill to weaken protections for communities coping with mountaintop mining. This is the fourth oversight 

hearing being held on this issue. 

We will hear concerns today about the process of developing the rule and the 

Environmental Impact Statement attached to it. But we cannot get to the bottom 

of these complaints if we don’t hear both sides of the story. The Office of Surface 

Mining Reclamation and Enforcement, or OSM, which is the primary agency we will 

hear about today, was not invited to testify to give their side of the story or answer 

any questions. I hope that future hearings will allow for a fuller exploration of the 

issues. 

We can certainly talk about procedure today. One witness, Dustin White, will talk 

about the failure of state regulators to protect the health of people in his community. The West Virginia Department of Environmental Quality is the subject of a 

section 733 petition under SMCRA, that was filed by a broad coalition of organizations. These petitions permit OSM to intervene if a state regulator is not living up 

to its obligations. OSM found five separate complaints worthy of investigation in response to this petition. 

And for me personally, that points to what this hearing is really about. It’s about 

people, families, and the effect that mountaintop removal mining has on their lives. 

Research has proven that it affects the health of communities located near mountaintop removal mines. Many cancers including, lung, colon, kidney, bladder cancers, and leukemia, have all been linked to mountaintop removal mines. Birth defect 

rates were 42 percent higher in affected counties between 2000 and 2003 compared 

to non-mining communities. Mountaintop removal mines were also linked to increased rates of depression. 

The very least we should be able to do for the hardworking people in these communities is to give them the protections to which they are entitled. I look forward 

to reading OSM’s results of their investigation prompted by the community’s 

6 

petition. But we also owe it to them to issue a strong Stream Buffer Protection Rule 

and to give that rule a fair evaluation when it is released. 

Thank you, Mr. Chairman, and I yield back the balance of my time. 

Mr. GOHMERT. Thank you. I appreciate the statement. 

At this time we will now introduce the witnesses. Our first witness today is Dr. Randall Johnson. He is the director of the 

Alabama Surface Mining Commission. We also have Mr. Gregory 

Baker, who is the Reclamation Program Manager at the Virginia 

Department of Mines, Minerals and Energy. Next is Mr. Dustin 

White, a community organizer with the Ohio Valley Environmental 

Coalition. 

I am going to hold up introducing our fourth witness until Mr. 

Mooney gets here, and that should be before Mr. Hunter speaks. 

With that, let me remind the witnesses that under our 

Committee Rules, oral statements are limited to 5 minutes. You 

have a time clock there. You get a yellow light with a minute to 

go. When your time expires, that is when the statement needs to 

stop, even if you are not finished. 

Of course, your full written statements are part of the record. So, 

if you would care to deviate, then the oral testimony will be in addition to what we already will have in the record from your written 

statement. 

With that, the Chair now recognizes our first witness, Dr. 

Johnson, to testify for 5 minutes. 

STATEMENT OF RANDALL JOHNSON, Ph.D., DIRECTOR, 

ALABAMA SURFACE MINING COMMISSION, JASPER, ALABAMA 

Dr. JOHNSON. Mr. Chairman, good afternoon. My name is 

Randall Johnson. I am Director of the Alabama Surface Mining 

Commission. My agency is the delegated agency for regulation of 

coal mining in the state of Alabama and under the Surface Mining 

Control and Reclamation Act of 1977. I have been employed with 

the agency for more than 34 years, and I have served as its 

Director for 29 years. 

Alabama is one of nine states that signed Memoranda of 

Understanding with the Office of Surface Mining, or OSM, in 2010 

to serve as cooperating agencies related to the preparation of an 

environmental impact statement that was to support the revised 

Stream Protection Rule. 

Following a very brief period of engagement in late 2010 and 

early 2011, we have essentially been shut out of that process as 

OSM moved forward with the EIS. OSM shared three chapters of 

the draft EIS with us between September of 2010 and 2011. In 

each case, comment periods were extremely short, and while reconciliation meetings were supposed to be held on each of the chapters based on our comments, only one such hearing was held on 

one chapter. 

Following the receipt of state comments on the third chapter that 

was shared with us in January of 2011, we once again requested 

additional time for review. Despite our request for more time, we 

were told that the deadlines were going to be met and they were 

7 

firm, and the schedule for the publication of the EIS in 2011 would 

be met. 

As of today, the proposed rule and the draft EIS have still not 

been published. Since that time, we understand that OSM has significantly revised the entire draft EIS, and that several new rule 

alternatives have been considered. We have seen none of this. 

We have sent three letters to OSM Director Joseph Pizarchik expressing concerns with the EIS process and our role as cooperators. 

The first was on November 23, 2010, shortly after the second chapter was provided to us. We expressed concerns about the quality, 

completeness, accuracy, constrained time frames for comments, the 

lack of a reconciliation process, and the need for additional comment on revised chapters. 

Two years after that last engagement with cooperating states, a 

second letter was sent to the Director on July 3, 2013. We requested an opportunity at that time to re-engage with the EIS 

process. The Director never responded to this letter, and no further 

opportunities have been provided for participation. In fact, OSM 

has on several occasions verbally indicated that it does not envision 

re-engaging the states on the draft EIS. 

And yet a third letter was submitted to the Director on February 

23 of this year. We concluded that OSM had not provided for meaningful participation by the cooperating states. Four states, at the 

time of my writing this testimony, including Alabama, have formally withdrawn as cooperating agency states and requested termination of our MOUs. OSM has yet to respond or acknowledge my 

letter of withdrawal dated February 10 of this year. 

The role of cooperating agencies in the National Environmental 

Policy Act, or NEPA, process is well-documented in Federal regulations as well as Council on Environmental Quality documents and 

memoranda. The Federal courts, too, have recognized the importance of providing state agencies an opportunity for meaningful 

participation in the NEPA process. 

It is clear that NEPA recognizes that Federal agencies are not 

the sole repository of all wisdom and knowledge concerning their 

areas of regulatory responsibility. As such, it mandates that 

Federal agencies reach out to states and other governmental agencies to solicit input in the EIS process. It also anticipates that this 

process will provide for meaningful participation. 

It is unfortunate, from my perspective, that circumstances have 

deteriorated to the point where my state and others felt obliged to 

withdraw. Our inability to participate fully and meaningfully from 

February 2011 to the present time casts considerable doubt on 

whether OSM has fully complied with the NEPA process in developing the EIS. 

I thank you for the opportunity to present this testimony. Copies 

of my more detailed written statement have been provided, with 

exhibits. I also have additional copies of the three letters that we 

sent to OSM for the record. And I will be happy to answer any 

questions you may have. 

[The prepared statement of Dr. Johnson follows:] 

8 

PREPARED STATEMENT OF DR. RANDALL C. JOHNSON, DIRECTOR, ALABAMA SURFACE

MINING COMMISSION

Good afternoon. My name is Dr. Randall Johnson and I am Director of the 

Alabama Surface Mining Commission. My agency is responsible for the regulation 

of coal mining operations within the state pursuant to our approved regulatory 

program under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). 

I have been employed with the Surface Mining Commission for more than 34 years 

and have served as its Director for more than 29 years. I was directly involved in 

securing primacy in 1982 for the state of Alabama under Title V of SMCRA. I coauthored or authored all of Alabama’s regulations promulgated, and some of the legislation enacted by the state, during the last 34 years, including those submitted 

for initial program approval. During my tenure at the agency, there have been 20 

Directors or Acting Directors of the U.S. Department of Interior, Office of Surface 

Mining Reclamation and Enforcement (OSMRE). I have dealt directly with all of 

them except one. Our involvement in the state and Federal regulatory process has 

always been proactive. Over the years, we have developed a regulatory program in 

our state that is among the best in the country and we take immense pride in that. 

I and my colleagues appreciate the opportunity to appear before you today to discuss a disturbing chapter in Federal-state relations under SMCRA. Alabama is one 

of nine states that signed Memoranda of Understanding (MOUs) with OSMRE to 

serve as a cooperating agency related to the preparation of an environmental impact 

statement (EIS) by OSMRE to accompany a rulemaking under SMCRA concerning 

stream protection. The MOUs were developed pursuant to the National Environmental Policy Act (NEPA) and the Council on Environmental Quality’s (CEQ) implementing regulations at 40 CFR 1501.6 and 1501.8, as well as CEQ’s January 30, 

2002 Memorandum for the Heads of Federal Agencies regarding cooperating agencies. Although we anticipated a robust opportunity to work with OSMRE as cooperators in the development of this critical EIS, following a brief period of engagement 

in late 2010 and early 2011, the cooperating states have essentially been shut out 

of the process and been relegated to the sidelines as OSMRE moved forward with 

the EIS. 

Some historical perspective may be instructive. During the summer of 2010, 

OSMRE Director Joseph G. Pizarchik offered the opportunity to states to participate 

as cooperating agencies as part of the development of an EIS to accompany a new 

rule on stream protection that would replace the 2008 Stream Buffer Zone Rule. 

OSMRE committed to replacing this rule as part of an interagency effort to address 

stream protection as it relates to mountaintop mining operations in Appalachia. 

(See the July 11, 2009 Memorandum of Understanding between the U.S. Environmental Protection Agency, the Office of Surface Mining and the U.S. Army Corps 

of Engineers). OSMRE also agreed to propose a new rule on stream protection pursuant to a settlement agreement with several environmental groups that had challenged the 2008 rule. The settlement agreement was approved by a U.S. District 

Court in Washington, DC on April 2, 2010. The Court vacated the 2008 rule and 

OSMRE published a notice vacating the 2008 rule and reinstating the previous 

version of the rule on December 22, 2014. 

Ten states (UT, NM, KY, TX, MT, WY, WV, AL, IN and VA) originally agreed 

to serve as cooperating agencies, with the state of Ohio agreeing to participate as 

a state commenter in the process. MOUs were negotiated with nine of these states 

and the first chapter of the draft EIS (Chapter 2) was shared with the states for 

comment in September of 2010. Chapter 3 was shared with the states in October 

of 2010 and Chapter 4 was shared with the states in January of 2011. In each case, 

comment periods were exceedingly short and, while ‘‘reconciliation meetings’’ were 

supposed to be held on each of the chapters, only one such meeting was held. Following the receipt of state comments on Chapter 4 in January of 2011, the remaining chapters of the draft EIS were given to the states with only 8 days to review 

and comment. Despite requests for more time, we were told that the deadlines were 

firm and that the schedule for publication of the EIS in 2011 would be met. As of 

today, the draft rule and draft EIS have still not been published. Since that time, 

we understand that OSMRE has significantly revised the entire draft EIS and that 

several new rule alternatives have been considered. We have not seen these 

revisions. 

The cooperating agency states have sent three letters to OSMRE Director Joseph 

Pizarchik expressing their concerns with the EIS process and their role as cooperators. The first, on November 23, 2010, expressed concerns about the quality, 

completeness and accuracy of the draft EIS; the constrained time frames for the 

submission of comments on draft EIS chapters; the reconciliation process; and the 

need for additional comment on revised chapters. 

9 

Over 2 years after the last engagement by OSMRE with the cooperating states, 

the states sent a second letter to OSMRE Director Pizarchik on July 3, 2013, 

requesting an opportunity to re-engage with the EIS development process. We requested an opportunity to review revised chapters of the draft EIS, and expanded 

time frames for commenting on the chapters; an opportunity to review any attachments and exhibits that are appended to the chapters; a meaningful, robust 

reconciliation process; and a timetable for review of draft chapters. OSMRE never 

responded to this letter, and no further opportunities have been provided by 

OSMRE for participation by the cooperating agency states. In fact, OSMRE has, on 

several occasions, verbally indicated that it does not envision re-engaging with the 

states on the draft EIS and, at most, would provide a briefing, coincident with release of the draft EIS and proposed rule, regarding how the comments originally 

submitted by the states were addressed in the final draft EIS. 

The role of cooperating agencies in the NEPA process is well documented in the 

Federal Regulations at 40 C.F.R. Sections 1501.6 and 1508.5 as well as in the 

Council on Environmental Quality Memorandum for the Heads of Federal Agencies 

entitled ‘‘Cooperating Agencies in Implementing the Procedural Requirements of the 

National Environmental Policy Act’’ dated January 30, 2002. The Federal Courts, 

too, have recognized the importance of providing state agencies the opportunity for 

‘‘meaningful participation’’ in the NEPA process. As an example, I refer you to the 

U.S. District Court for the District of Wyoming in International Snowmobile 

Manufacturers Association et al. v. Norton, 340 F. Supp. 2d 1249 (D.Wyo. 2004). In 

that ruling, the court states ‘‘the purpose of having cooperating agencies is to emphasize agency cooperation early in the NEPA process. 40 C.F.R. § 1501.6 (2004). 

Federal agencies are required to invite the participation of impacted states and provide them with an opportunity for participation in preparing the EIS. 40 C.F.R. 

§ 1501.7 (2004).’’ Further, the Court cites an earlier ruling in Wyoming v. USDA, 277 F. Supp. 2d 1197, 1219 (D. Wyo. 2003) that states, ‘‘When a Federal agency is 

required to invite the participation of other governmental entities and allocate responsibilities to those governmental entities, that participation and delegation of 

duty must be meaningful.’’ 

Given this, the cooperating agency states concluded in yet a third letter submitted 

to Director Pizarchik on February 23, 2015, that OSMRE has not provided for 

meaningful participation by the cooperating agency states in the preparation of the 

EIS and is unlikely to do so prior to release of the draft EIS and proposed rule this 

spring. The cooperating agency states were therefore left with a decision about 

whether and when to withdraw from the process in order to protect their interests 

and to craft an appropriate statement for inclusion in the draft EIS regarding their 

participation and decision to withdraw. CEQ’s regulations provide ample reasons for 

a cooperating agency to end its status as a cooperator, which include: the cooperating agency is unable to identify significant issues, eliminate minor issues, identify 

issues previously studied, or identify conflicts with the objectives of regional, state 

and local land use plans, policies and controls in a timely manner; is unable to assist in preparing portions of the review and analysis and resolving significant environmental issues in a timely manner; is unable to consistently participate in meetings or respond in a timely fashion after adequate time for review of documents, 

issues and analyses; is unable to accept the lead agency’s decisionmaking authority 

regarding the scope of the analysis, including the authority to define the purpose 

and need for the proposed action or to develop information/analyses of alternatives 

they favor or disfavor; or is unable to provide data and rationale underlying the 

analyses or assessment of alternatives. 

While the cooperating agency states were, for the most part, actually able and 

willing to do all of these things, OSMRE’s unwillingness to share revised and new 

draft chapters of the EIS with the states, as well as background and supporting documents, has precluded the states from accomplishing these tasks and hence has undermined their status as cooperating agencies and the meaningfulness of their 

participation. Consequently, since that time, four states, including Alabama (See letter from Johnson to Pizarchik dated February 10, 2015), have formally withdrawn 

as cooperating agency states and requested termination of their MOUs with 

OSMRE. I must also add that OSMRE has yet to respond or acknowledge our letter 

of withdrawal. 

It is clear the National Environmental Policy Act recognizes that Federal agencies 

are not the sole repository of all wisdom and knowledge concerning their areas of 

regulatory responsibility. As such, NEPA mandates that the agencies reach out to 

states and other Federal agencies to solicit input in the EIS process. It also anticipates that the process will provide for meaningful participation. It is unfortunate 

from my perspective that circumstances have deteriorated to the point where my 

state and others felt obligated to withdraw from this process given the importance 

10 

of the EIS and the related rule for our programs. I for one do not want my state’s 

name used to validate the EIS process since our input was limited to the extent that 

it was. In the end, we will be the ones who must implement any new rule and it 

was for this reason that our input and expertise were sought initially, and willingly 

offered, I might add. Our inability to participate fully and meaningfully from 

February 2011 to the present date casts considerable doubt as to whether OSMRE 

has complied fully with the NEPA process in developing the EIS. 

Thank you for the opportunity to present this testimony. Copies of my written 

statement and exhibits have been provided to you. I will be happy to answer any 

questions you may have. 

Attachments 

***** 

LETTERS SUBMITTED AS SUPPLEMENTARY TESTIMONY BY RANDALL C. JOHNSON

November 23, 2010 

Hon. Joseph G. Pizarchik 

Director 

Office of Surface Mining, Reclamation and Enforcement 

U.S. Department of the Interior 

1951 Constitution Avenue, N.W. 

Washington, DC 20540 

Dear Director Pizarchik: 

We are writing to you as cooperating agencies that are participating in the Office 

of Surface Mining’s development of a draft Environmental Impact Statement (EIS) 

to accompany a soon-to-be-proposed rule on stream protection. Our role as cooperating agencies, as defined by the memoranda of understanding that each of us entered into with your agency, is to review and comment on those Chapters of the 

draft EIS that are made available to us (at present, Chapters 2 and 3). Based on 

our participation to date, we have several serious concerns that we feel compelled 

to bring to your attention for resolution. 

Without rehashing our previously articulated concerns about the need and justification for both the proposed rule and the accompanying EIS, we must object to 

the quality, completeness and accuracy of those portions of the draft EIS that we 

have had the opportunity to review and comment on so far. As indicated in the detailed comments we have submitted to date, there are sections of the draft EIS that 

are often nonsensical and difficult to follow. Given that the draft EIS and proposed 

rule are intended to be national in scope, we are also mystified by the paucity of 

information and analysis for those areas of the country beyond central Appalachia 

and the related tendency to simply expand the latter regional experience to the rest 

of the country in an effort to appear complete and comprehensive. In many respects, 

the draft EIS appears very much like a cut-and-paste exercise utilizing sometimes 

unrelated pieces from existing documents in an attempt to create a novel approach 

to the subject matter. The result so far has been a disjointed, unhelpful exercise 

that will do little to support OSM’s rulemaking or survive legal challenges to the 

rule or the EIS. 

We also have serious concerns regarding the constrained timeframes under which 

we have been operating to provide comments on these flawed documents. As we 

have stated from the outset, and as members of Congress have also recently noted, 

the ability to provide meaningful comments on OSM’s draft documents is extremely 

difficult with only five working days to review the material, some of which is fairly 

technical in nature. In order to comply with these deadlines, we have had to devote 

considerable staff time to the preparation of our comments, generally to the exclusion of other pressing business such as permit reviews. While we were prepared to 

reallocate resources to review and comment on the draft EIS Chapters, additional 

time would have allowed for a more efficient use of those resources and for the development of more in depth comments. 

11 

1We also understand that OSM had planned to contact the states to provide estimates of the 

additional time and resources that would be required to review/process a permit under the 

proposed rule. This information would be used by OSM to prepare at least one of the burden 

analyses that are required by various executive orders as part of federal rulemakings. We now 

understand that OSM plans to generate these estimates on its own. We are somewhat mystified 

about how OSM intends to accomplish this without direct state input and urge the agency to 

reconsider the methodology under which they are currently operating. 

There is also the matter of completeness of the draft Chapters that we have reviewed. In the case of both Chapters 2 and 3, there are several attachments, exhibits and studies that were not provided to us as part of that review. Some of these 

are critical to a full and complete analysis of OSM’s discussion in the chapters. OSM 

has developed a SharePoint site that will supposedly include many of the draft materials, but to date the site is either inoperable or incomplete. 

As part of the EIS process with cooperating agencies, OSM committed itself to engage in a reconciliation process whereby the agency would discuss the comments received from the cooperating agencies, especially for purpose of the disposition of 

those comments prior to submitting them to the contractor for inclusion in the final 

draft. The first of those reconciliations (which was focused on Chapter 2) occurred 

via conference call on October 14. The call involved little in the way of actual reconciliation but amounted to more of an update on progress concerning the draft EIS. 

There was talk about another reconciliation session, but to date this has not occurred. There were also several agreements by OSM during the call to provide additional documents to the states for their review, including a document indicating 

which comments on Chapter 2 from cooperating agencies were accepted and passed 

on to the contractor, as well as comments provided by OSM. OSM also agreed to 

consider providing us a copy of a document indicating those comments that were 

not accepted. To date, neither of these documents has been provided to us. And even 

though a draft of Chapter 3 has now been distributed and comments have been provided to OSM, we are still awaiting a reconciliation session on this chapter.1

Frankly, in an effort to provide complete transparency and openness about the 

disposition of our comments, we believe the best route is for OSM to share with us 

revised versions of the Chapters as they are completed so that we can ascertain for 

ourselves the degree to which our comments have been incorporated into the 

Chapters and whether this was done accurately. We are therefore requesting that 

these revised Chapters be provided to us as soon as practicable. 

We understand that OSM is considering further adjustments to the time table for 

review of additional Chapters of the draft EIS. We are hopeful that in doing so, the 

agency will incorporate additional time for review by the cooperating agencies, especially given the size and complexity of Chapter 4 and the full draft EIS. Pushing 

back the time for the completion of these drafts by OSM without additional time 

being provided for review by the cooperating agencies would be wholly inappropriate. We request that you please provide us with these new time tables as soon 

as possible so that we can begin our own internal planning. 

You should know that, as we continue our work with OSM on the development 

of the draft EIS, some of us may find it necessary to reconsider our continued participation as cooperating agencies pursuant to the 30-day renegotiation/termination 

provision in our MOUs. Under the NEPA guidance concerning the status of cooperating agencies, some of the identified reasons for terminating that status include the 

inability to participate throughout the preparation of the analysis and documentation as necessary to meet process milestones; the inability to assist in preparing portions of the review and analysis and help resolve significant environmental issues 

in a timely manner; or the inability to provide resources to support scheduling and 

critical milestones. As is evident from much of the discussion above, these are some 

of the very issues with which many of the cooperating agencies are struggling given 

OSM’s time schedule for the EIS and the content of the documents distributed to 

date. We continue to do our best to meet our commitments under the MOUs but 

based on our experience to date, this has become exceedingly difficult. 

Finally, as you have likely noted throughout the submission of comments by many 

of the cooperating agencies, there is great concern about how our comments (limited 

as some of them are due to time constraints for review) will be used or referred to 

by OSM in the final draft EIS that is published for review. While the MOUs we 

signed indicate that our participation ‘‘does not imply endorsement of OSM’s action 

or preferred alternative’’, given what we have seen so far of the draft EIS we want 

to be certain that our comments and our participation are appropriately characterized in the final draft. Furthermore, since CEQ regulations require that our names 

12 

appear on the cover of the EIS, it is critical that the public understand the purpose 

and extent of our participation as cooperating agencies. 

As it is now, the states are wrestling with the consequences of their names appearing on the EIS, as it would assume tacit approval independent of the comments 

that have/have not been incorporated into the document. And while the cooperating 

agency has the authority to terminate cooperating status if it disagrees with the 

lead agency (pursuant to NEPA procedures and our MOUs), the states realize the 

importance of EIS review and the opportunity to contribute to, or clarify, the issues 

presented. We therefore request an opportunity to jointly draft a statement with you 

that will accompany the draft EIS setting out very specifically the role that we have 

played as cooperating agencies and the significance and meaning of the comments 

that we have submitted during the EIS development process. 

Sincerely, 

Randall C. Johnson, Director, Bruce Stevens, Director, 

Alabama Surface Mining 

Commission 

Division of Reclamation, Indiana 

Department of Natural Resources 

Carl E. Campbell, Commissioner, John Caudle, Director, 

Kentucky Department for Natural 

Resources 

Surface Mining and Reclamation 

Division, Railroad Commission of 

Texas 

John Baza, Director, Bradley C. Lambert, Deputy Director, 

Utah Division of Oil, Gas and 

Mining 

Virginia Department of Mines 

Minerals and Energy 

Thomas L. Clarke, Director, John Corra, Director, 

Division of Mining & Reclamation, 

West Virginia Department of 

Environmental Protection 

Wyoming Department of 

Environmental Quality 

July 3, 2013 

Hon. Joseph G. Pizarchik 

Director 

Office of Surface Mining, Reclamation and Enforcement 

U.S. Department of the Interior 

1951 Constitution Avenue, N.W. 

Washington, DC 20540 

Dear Director Pizarchik: 

We are writing to you as cooperating agencies that are participating in the Office 

of Surface Mining’s development of a draft Environmental Impact Statement (EIS) 

to accompany a proposed rule on stream protection. Our role as cooperating agencies, as defined by the memoranda of understanding that each of us entered into 

with your agency, is to review and comment on those chapters of the draft EIS that 

are made available to us. Since the initiation of the EIS process in 2010, the states 

have had the opportunity to comment on three initial draft chapters (numbers 2, 

3 and 4). 

Over the course of the past two years, OSM’s draft EIS development process has 

seen several fits and starts, largely due to issues related to the work of various contractors OSM engaged to assist the agency with the draft EIS. Our understanding 

is that OSM has now addressed these issues and is once again moving forward with 

the development of the draft EIS. As a result, we would like to re-engage with the 

process and request an opportunity to review draft chapters and other related documents as they become available, pursuant to the MOU’s we have in place with the 

agency. In doing so, we have a few requests. 

13 

In the past, we had serious concerns regarding the constrained timeframes under 

which we were operating to provide comments on draft documents. As we have stated from the outset, and as members of Congress have also noted, the ability to provide meaningful comments on OSM’s draft documents is extremely difficult with 

limited working days to review the material, some of which can be fairly technical 

in nature. In order to comply with the deadlines, we have to devote considerable 

staff time to the preparation of our comments, generally to the exclusion of other 

pressing business. While we are prepared to reallocate resources to review and comment on the draft EIS Chapters, adequate time will allow for a more efficient use 

of those resources and for the development of more in depth comments. 

There is also the matter of completeness of the draft chapters that we will review. 

In the case of Chapters 2, 3 and 4, several attachments, exhibits und studies were 

not provided to us as part of that review. Some of these were critical to a full and 

complete analysis of OSM’s discussion in the chapters. It is important for us to 

receive all applicable documents that are referenced in draft chapters in order to 

conduct a meaningful review. 

As part of the EIS process with cooperating agencies, OSM committed itself to engage in a reconciliation process whereby the agency would discuss the comments received from the cooperating agencies, especially for purpose of the disposition of 

those comments prior to submitting them to the contractor for inclusion in the final 

draft. Our experience with the reconciliation process to date has not been particularly positive or meaningful. We are hopeful that as we reinitiate the EIS review 

and comment process, OSM will engage in a robust reconciliation process. Among 

other things, we believe it should include an explanation of which comments were 

accepted, which were not, and why. Frankly, in an effort to provide complete transparency and openness about the disposition of our comments, we believe the best 

route is for OSM to share with us revised versions of the Chapters as they are completed so that we can ascertain for ourselves the degree to which our comments 

have been incorporated into the Chapters and whether this was done accurately. We 

are therefore requesting that the revised Chapters be provided to us as soon as 

practicable after their completion. 

As OSM considers re-initiation of the review process for cooperating state agencies, it would be helpful if the agency would provide us with new time tables as soon 

as possible so that we can begin our own internal planning. 

Finally, as we noted during the submission of comments by many of the cooperating agencies in the early rounds of the EIS development process, there is great 

concern about how our comments will be used or referred to by OSM in the final 

draft EIS that is published for review. While the MOUs we signed indicate that our 

participation ‘‘does not imply endorsement of OSM’s action or preferred alternative’’, 

we want to be certain that our comments and our participation are appropriately 

characterized in the final draft. Furthermore, since CEQ regulations require that 

our names appear on the cover of the EIS, it is critical that the public understand 

the purpose and extent of our participation as cooperating agencies. 

As it is now, the states are uncertain whether their names will appear on the 

draft EIS, which was originally anticipated. This of course would imply tacit approval independent of the state comments that have/have not been incorporated into 

the document. And while the cooperating agency has the authority to terminate cooperating status if it disagrees with the lead agency (pursuant to NEPA procedures 

and our MOUs), the states realize the importance of EIS review and the opportunity 

to contribute to, or clarify, the issues presented. We therefore request an opportunity to jointly draft a statement with you that will accompany the draft EIS setting out very specifically the role that we have played as cooperating agencies and 

the significance and meaning of the comments that we have submitted during the 

EIS development process. 

14 

In order to move forward expeditiously, we would appreciate a response to our request to re-engage with the EIS process no later than July 10. If we have not heard 

from you by then, we will contact via phone to further discuss the matter. 

Sincerely, 

Randall C. Johnson, Director, Bruce Stevens, Director, 

Alabama Surface Mining 

Commission 

Division of Reclamation, Indiana 

Department of Natural Resources 

Steve Hohmann, Commissioner, John Caudle, Director, 

Kentucky Department for Natural 

Resources 

Surface Mining and Reclamation 

Division, Railroad Commission of 

Texas 

John Baza, Director, Bradley C. Lambert, Deputy Director, 

Utah Division of Oil, Gas and 

Mining 

Virginia Department of Mines 

Minerals and Energy 

Thomas L. Clarke, Director, Todd Parfitt, Director, 

Division of Mining & Reclamation, 

West Virginia Department of 

Environmental Protection 

Wyoming Department of 

Environmental Quality 

February 23, 2015 

Hon. Joseph G. Pizarchik 

Director 

Office of Surface Mining, Reclamation and Enforcement 

U.S. Department of the Interior 

1951 Constitution Avenue, N.W. 

Washington, DC 20540 

Dear Director Pizarchik: 

We are writing to you as cooperating agency states pursuant to the Memoranda 

of Understanding that we negotiated with your agency concerning the development 

of an environmental impact statement (EIS) to accompany a proposed rule on 

stream protection expected to be published by the Office of Surface Mining (OSM) 

sometime this spring. As you know, during the summer of 2010, OSM offered the 

opportunity to states who were interested in participating as cooperating agencies 

as part of the development of an EIS to accompany a new rule on stream protection 

that would replace the 2008 stream buffer zone rule. OSM committed to replace this 

rule as part of an interagency effort to address stream protection as it relates to 

mountaintop mining operations in Appalachia. (See the June 11, 2009 Memorandum 

of Understanding between the U.S. Environmental Protection Agency, the Office of 

Surface Mining and the U.S. Army Corps of Engineers.) OSM also agreed to propose 

a new rule on stream protection pursuant to a settlement agreement with several 

environmental groups that had challenged the 2008 rule. The settlement agreement 

was approved by a U.S. District Court in Washington, DC on April 2, 2010. More 

recently, the Court vacated the 2008 rule and OSM last month published a notice 

vacating the 2008 rule. 

Ten states (UT, NM, KY, TX, MT, WY, WV, AL, IN and VA) originally agreed 

to serve as cooperating agencies, with the state of Ohio agreeing to participate as 

a state commenter in the process. MOUs were negotiated with most of these states 

and the first chapter of the draft EIS (Chapter 2) was shared with the states for 

comment in September of 2010. Chapter 3 was shared with the states in October 

of 2010 and Chapter 4 was shared with the states in January of 2011. In each case, 

comment periods were exceedingly short and, while ‘‘reconciliation meetings’’ were 

supposed to be held on each of the chapters, only one such meeting was held. Following the receipt of state comments on Chapter 4 in January of 2011, no additional 

outreach to the cooperating agency states has occurred. Since that time, OSM has 

significantly revised the draft EIS and we understand that several new alternatives 

are being considered and that each of the chapters has been significantly revised. 

The cooperating agency states have sent two letters to you expressing our concerns with the EIS process and our role as cooperators. The first, on November 23, 

2010, expressed concerns about the quality, completeness and accuracy of the draft 

15 

EIS; the constrained timeframes for the submission of comments on draft EIS chapters; the reconciliation process; and the need for additional comment on revised 

chapters. The letter also alerted OSM to the potential of some states reconsidering 

their continued participation as cooperating agency states pursuant to NEPA guidance concerning the status of cooperators. The letter also expressed concern about 

how the comments of the cooperating agency states will be used or referred to by 

OSM in the final draft EIS and requested the opportunity to draft an appropriate 

statement to accompany the draft EIS setting out the role that the states have 

played as cooperating agencies. OSM responded to this letter on January 24, 2011 

and made a number of commitments regarding continued, robust participation by 

the cooperating agency states in the EIS development process. However, shortly 

thereafter, the agency terminated that involvement without explanation. 

The cooperating agency states sent a second letter to you on July 3, 2013 requesting an opportunity to re-engage with the EIS development process following several 

fits and starts by OSM, largely due to issues related to the work of the various contractors OSM engaged to assist the agency with the draft EIS. In requesting an opportunity to review revised draft chapters of the draft EIS, the states requested 

expanded timeframes for commenting on the chapters; an opportunity to review any 

attachments and exhibits that are appended to the chapters; a meaningful, robust 

reconciliation process; and a timetable for review of draft chapters. The letter reiterated the concern of the states regarding how their comments will be used or referenced by OSM in the final draft EIS, including an appropriate characterization 

of their comments and participation. OSM never responded to this letter and to date 

no further opportunities have been provided by OSM for participation by the cooperating agency states. In fact, OSM has, on several occasions (at meetings of the 

Interstate Mining Compact Commission and other OSM/state meetings), indicated 

that it does not envision re-engaging with the states on the draft EIS and at most 

would provide a briefing, coincident with release of the draft EIS and proposed rule, 

regarding how the comments that were originally submitted by the states were addressed in the final draft EIS. Even this latter opportunity for engagement now appears to have evaporated. 

As noted in a Memorandum for the Heads of Federal Agencies dated January 30, 

2002 entitled ‘‘Cooperating Agencies in Implementing the Procedural Requirements 

of the National Environmental Policy Act’’, the Council on Environmental Quality 

(CEQ) regulations addressing cooperating agency status (40 C.F.R. Sections 1501.6 

and 1508.5) specifically implement the NEPA mandate that Federal agencies responsible for preparing NEPA analyses and documentation do so ‘‘in cooperation 

with State and local governments’’ and other agencies with jurisdiction by law or 

special expertise. The Memorandum goes on to note that the benefits of enhanced 

cooperating agency participation in the preparation of NEPA analyses include: disclosing relevant information early in the analytical process; applying available technical expertise and staff support; avoiding duplication with other Federal, State, 

Tribal or local procedures; and establishing a mechanism for addressing intergovernmental issues. Other benefits of enhanced cooperating agency participation include fostering intra- and inter-governmental trust and a common understanding 

and appreciation for various governmental roles in the NEPA process, as well as enhancing agencies’ ability to adopt environmental documents. 

In litigation interpreting how the federal government must meet its obligation to 

cooperating agencies, the U.S. District Court for the District of Wyoming in 

International Snowmobile Manufacturers Association et al v. Norton, 340 F. Supp. 

2d 1249 (D.Wyo. 2004) ruled as follows: 

the purpose of having cooperating agencies is to emphasize agency cooperation early in the NEPA process. 40 C.F.R. Section 1501.6 (2004). Federal 

agencies are required to invite the participation of impacted states and provide them with an opportunity for participation in preparing the EIS. 40 

C.F.R. Section 1501.7 (2004). ‘‘When a federal agency is required to invite 

the participation of other governmental entities and allocate responsibilities 

to those governmental entities, that participation and delegation of duty 

must be meaningful.’’ Wyoming v. USDA, 277 F. Supp. 2d 1197, 1219 

(D.Wyo. 2003). 

Based on our experience to date with OSM’s development of the draft EIS for the 

stream protection rule, we assert that OSM has not provided for meaningful participation by the cooperating agency states in the preparation of the EIS and it seems 

unlikely that the agency will do so prior to release of the draft EIS and proposed 

rule this spring. The cooperating agency states are therefore left with a decision 

about whether and when to withdraw from the process in order to protect our 

interests and to craft an appropriate statement for inclusion in the draft EIS 

16 

regarding the nature and level of our participation and our decision to withdraw. 

CEQ’s regulations provide sample reasons for why a cooperating agency might end 

its status as a cooperator, including that the cooperating agency is unable to identify 

significant issues, eliminate minor issues, identify issues previously studied, or identify conflicts with the objectives of regional, State and local land use plans, policies 

and controls in a timely manner; is unable to assist in preparing portions of the review and analysis and resolving significant environmental issues in a timely manner; is unable to consistently participate in meetings or respond in a timely fashion 

after adequate time for review of documents, issues and analyses; is unable to accept the lead agency’s decision making authority regarding the scope of the analysis, 

including authority to define the purpose and need for the proposed action or to develop information/analysis of alternatives they favor or disfavor; or is unable to provide data and rationale underlying the analyses or assessment of alternatives. 

While the cooperating agency states were, for the most part, actually able and 

willing to do all of these things, OSM’s unwillingness to share revised and new draft 

chapters of the EIS with the states has precluded the states from doing so and 

hence has undermined their status as cooperating agencies and the meaningfulness 

of their participation. Consequently, the states appear to have more than adequate 

reasons for withdrawing from the process and terminating their status as cooperators based on CEQ’s regulations. We are therefore alerting you that, by separate actions pursuant to the provisions of our respective MOU’s with your agency, several 

of us are seriously contemplating withdrawing from the EIS development process. 

Regardless of individual state determinations regarding withdrawal, we hereby request that the attached statement be included in a conspicuous place at the front 

of the draft EIS explaining the role of the cooperating agency states and any individual state decisions to withdraw. It is also likely that those states who choose to 

continue on as cooperating agency states will request that their state seal not appear on the cover of the draft EIS. We welcome the opportunity to discuss and potentially adjust this statement, but it is critical that we receive assurances from you 

that the statement will appear in the draft EIS at an appropriate place. 

Should you have any questions or wish to discuss the matter further, please communicate with Greg Conrad, Executive Director of the Interstate Mining Compact 

Commission, who is assisting us with the matter. 

Sincerely, 

Randall C. Johnson, Director, Steve Weinzapfel, Director, 

Alabama Surface Mining 

Commission 

Division of Reclamation, Indiana 

Department of Natural Resources 

Steve Hohmann, Commissioner, Ed Coleman, Chief, 

Kentucky Department for Natural 

Resources 

Industrial and Energy Minerals 

Bureau, Montana Department of 

Environmental Quality 

Fernando Martinez, Director, Lanny Erdos, Chief, 

Division of Mining and Minerals, 

New Mexico Department of 

Energy, Minerals & Natural 

Resources 

Division of Mineral Resources 

Management, Ohio Department of 

Natural Resources 

John E. Caudle, Director, John Baza, Director, 

Surface Mining and Reclamation 

Division, Railroad Commission of 

Texas 

Utah Division of Oil, Gas and 

Mining 

Bradley C. Lambert, Deputy Director, Harold Ward, Acting Director, 

Virginia Department of Mines, 

Minerals & Energy 

Division of Mining and Reclamation, 

West Virginia Department of 

Environmental Protection 

Todd Parfitt, Director, 

Wyoming Department of 

Environmental Quality 

Attachment 

17 

ATTACHMENT 

Statement from Cooperating Agency States 

Pursuant to Memoranda of Understanding with the Office of Surface Mining, 

several states that implement regulatory programs under the Surface Mining 

Control and Reclamation Act of 1977 (SMCRA) have participated as cooperating 

agencies in the development of this draft environmental impact statement for the 

proposed stream protection rule. These states include: Alabama, Indiana, Kentucky, 

New Mexico, Texas, Utah, Virginia, West Virginia and Wyoming. The state of 

Montana and Ohio have also participated in an unofficial review role during the 

process. Early in the development of the draft EIS in late 2010 and early 2011, the 

cooperating agency states were provided an opportunity to review three initial draft 

chapters of the EIS (then chapters 2, 3 and 4). The states, under very constrained 

timeframes, provided comments on these draft chapters and engaged in one reconciliation meeting with OSM. The states also alerted the agency to several serious 

concerns that they were encountering with the process via letter of November 23, 

2010. Since January of 2011, the cooperating agencies states have not been involved 

in the EIS development process, despite requests to re-engage with the agency. (See 

letter dated July 3, 2013). Some of this was due to difficulties encountered by OSM 

with its contractors, which resulted in a full scale revamping of the draft EIS. But 

in large measure, OSM simply chose not to pursue further involvement of the cooperating states in the process, in direct contravention of the states’ MOUs with the 

agency, as well as the Council of Environmental Quality (CEQ) regulations and 

guidelines concerning the role of cooperating agencies. As a result, some cooperating 

agency states, via letters dated [list dates of individual state letters], formally withdrew from the EIS process as cooperators. Others [list the states] remained as cooperators, but only to preserve their rights as cooperating agencies. As a result of 

these decisions, any reference to the role of the cooperating agency states should be 

understood to embrace only the early, limited opportunities provided to them to 

comment on draft chapters 2, 3 and 4 in late 2010 and early 2011. It should also 

be noted that the states did not have an opportunity for full reconciliation regarding 

their comments and have not been informed of how and to what extent their comments were taken into account and incorporated in the draft EIS. This limited, constrained role of the cooperating agency states must be understood as such and 

should not be read as an endorsement of any portion of the draft EIS. 

STATE OF ALABAMA 

SURFACE MINING COMMISSION 

JASPER, ALABAMA

February 10, 2015 

Hon. Joseph G. Pizarchik 

Director 

Office of Surface Mining, Reclamation and Enforcement 

U.S. Department of the Interior 

1951 Constitution Avenue, N.W. 

Washington, DC 20540 

Dear Director Pizarchik: 

On August 24, 2010, the Alabama Surface Mining Commission signed a 

Memorandum of Understanding (MOU) to participate as a Cooperating Agency in 

the development of an Environmental Impact Statement (EIS) to support a proposed 

stream protection rule. Since that time we have participated diligently in that process, but with increasing concern and reservation. 

We and other state cooperating agencies have expressed concerns regarding the 

piece-meal approach, the lack of adequate time for review and comment, the overall 

quality of the product, major deficiencies, inconsistencies, and missing reference material evidenced in the draft documents. Federal cooperating agencies have verbally 

echoed similar concerns during reconciliation conference calls. Almost four years 

have now passed since our last interaction on the EIS. 

I have concluded that it is no longer in the best interest of the Alabama Surface 

Mining Commission to continue as a cooperating agency. I hereby give notice to you 

18 

of my decision to terminate the MOU. I request that any references to our participation as a cooperating agency be removed from the proposed EIS and its notice prior 

to publication in the Federal Register. 

Sincerely, 

RANDALL C. JOHNSON, 

Director. 

Mr. GOHMERT. Without objection, those letters will be admitted 

as part of the record. Thank you, Dr. Johnson. 

At this time we will now hear from Mr. Baker. You are 

recognized for 5 minutes. 

STATEMENT OF GREGORY BAKER, RECLAMATION PROGRAM 

MANAGER, VIRGINIA DEPARTMENT OF MINES, MINERALS 

AND ENERGY, BIG STONE GAP, VIRGINIA 

Mr. BAKER. My name is Greg Baker. As you said, I am a 

Reclamation Program Manager as a permitting supervisor with the 

Virginia Department of Mines, Minerals and Energy, or the 

DMME. 

Mr. GOHMERT. Sir, would you mind moving your microphone a 

little closer to you? There you go. Good. Thank you. 

Mr. BAKER. I appreciate the opportunity to present this testimony to the subcommittee regarding our views on the status of cooperating agencies for the Office of Surface Mining’s Stream 

Protection Rule. 

Virginia first implemented rules to address coal mining and reclamation in 1966, and following the passage of the Federal Surface 

Mining Control and Reclamation Act, Virginia sought and obtained 

primacy in December of 1981 from OSM to serve as a primary regulatory authority for the surface coal mining. 

This resulted in a significant expansion and enhancement of 

Virginia’s regulatory program. Virginia’s program is recognized 

across the Nation as a leader and an innovator. Many states have 

benchmarked with Virginia on areas such as electronic permitting, 

underground mine mapping, and the development of a GIS database that includes all surface mining as well as abandoned mine 

lands. 

Beginning in 2009, OSM embarked on an effort to impose a drastic change in state programs regarding stream protection. Despite 

our several requests, OSM has still not provided reliable information to the states as to why it is revising the 1983 Stream Buffer 

Zone Rule. Nothing in the states’ annual evaluation report indicates that states are doing a poor job of enforcing current surface 

mining laws, including the stream buffer zone requirement. 

As a part of its rulemaking effort, OSM is also preparing an environmental impact statement. Early in the development of the draft 

EIS, OSM invited several states, including Virginia, to participate 

as cooperating agencies under the National Environmental Policy 

Act, or NEPA. 

In preparing the EIS, OSM hired a contractor from outside the 

coal mining regions who had no mining background. Cooperating 

19 

state agencies voiced their concern about the contractor and its 

ability to prepare the draft EIS. 

We recommend that before moving forward with the draft EIS 

and a proposed rule, that OSM seriously consider other alternatives available to the Agency for addressing stream protection. 

However, to date, a request for discussing these potential approaches has been ignored. 

Following a limited opportunity to provide comments on a few 

early chapters of the draft EIS in late 2010/early 2011, Virginia 

and other cooperating state agencies have been excluded from the 

process. During the time we were involved, the cooperating state 

agencies voiced several concerns regarding the constrained time 

frames under which we were operating to provide comments on the 

draft documents. 

As we stated from the outset, and as Members of Congress have 

also noted, the ability to provide meaningful comments on OSM’s 

draft documents was extremely difficult. We had limited working 

days to review the material, some of which were fairly technical in 

nature. 

There is also a matter of completeness of the draft chapters that 

we reviewed. Several attachments, exhibits, and studies were not 

provided to us as part of reviewing Chapters 2, 3, and 4. Some of 

these were critical to a full and complete analysis of OSM’s discussion in the chapters. 

As an example, since Virginia reviewed the early EIS chapters 

in 2010, the production and job numbers included therein have 

drastically changed. Coal production in Virginia peaked at 47 million tons in 1990, but it has dropped significantly. Production for 

2014 was approximately 15 million tons. Jobs are also decreasing. 

In 2009, 4,230 people worked in the coal mining industry. That 

number has dropped to 3,723 in 2014. 

As it is now, some of the cooperating agency states have withdrawn from the process, and others are uncertain whether they 

still desire their names to appear on the draft EIS. I would like to 

reiterate Virginia’s interest in continuing to engage in this process, 

as we realize the importance of reviewing the draft EIS and the opportunity to contribute to or clarify the issues presented. 

As a cooperating agency, our intention has been to ensure that 

the most up-to-date data is utilized during the process. For this 

reason, Virginia intends to remain on as a cooperating agency. 

Moving forward, we would like the opportunity to work with 

OSM to draft a joint statement that will accompany the draft EIS, 

outlining very specifically our role as a cooperating agency and the 

significance and meaning of the comments that we have submitted 

during the EIS development process. It is also important to us that 

OSM re-engage with Virginia, and we welcome the subcommittee’s 

assistance in making this a reality. 

Thank you for this opportunity to testify today, and I would be 

happy to answer any questions you might have. 

[The prepared statement of Mr. Baker follows:] 

20 

PREPARED STATEMENT OF GREGORY BAKER, VIRGINIA DEPARTMENT OF MINES, MINERALS AND ENERGY

Good afternoon. Chairman Gohmert, Ranking Member Dingell, members of the 

subcommittee, thank you for giving me the opportunity to testify before you today 

on the Stream Buffer Zone Rule and its implications to the Commonwealth of 

Virginia. My name is Gregory Baker and I serve as the Permit Review Supervisor 

at the Virginia Department of Mines, Minerals, and Energy (DMME) and I hope to 

share with you today background on the importance of Virginia’s coal industry, the 

Stream Buffer Zone Rule, and our continued interest in engaging in the rulemaking 

process as a cooperating agency. 

First, I would like to provide you with background information about the Virginia 

coal industry and our agency. Since colonial days, coal production has been integral 

to Virginia’s economic development. The first commercial coal production in the 

United States occurred in 1748 from the Richmond Coal Basin just west of our State 

Capital in Richmond, Virginia. During the Civil War much of the coal industry in 

Virginia was destroyed; however, commercial coal mining rebounded in our southwestern most counties in the 1880s and mining in those areas continues today. We 

recognize that coal is on the decline as it is currently only produced in five of the 

Virginia counties that were traditionally named the coalfields. 

The Commonwealth first implemented rules to address coal mining and reclamation issues in 1966; however, the minimal requirements of the early law and regulations failed to keep pace with the rapid expansion of surface mining activities in 

the Appalachian region. Following the passage of the 1977 Federal Surface Mining 

Control and Reclamation Act, Virginia sought and on December 1981 Virginia 

obtained primacy from the U.S. Office of Surface Mining (OSM) as the primary regulatory authority for coal surface mining. Regulatory authority resulted in a significant expansion and enhancement of the Virginia regulatory program. 

As OSM moved forward to create the Stream Buffer Zone Rule, Virginia, chose 

to participate as a cooperating agency, in order to ensure that we were included in 

the process. We had the opportunity to review and comment on the initial proposed 

rule; however, since that time, Virginia, as a cooperating agency, has not been given 

the opportunity to review the most current version of the rule. This is concerning 

as the economic impact numbers we previously submitted have drastically changed. 

Coal production in Virginia peaked at 47 million tons in 1990, but it has dropped 

significantly in recent years. Production for 2014 was approximately 15 million tons, 

which has resulted in a decrease in the number of coal mining jobs. In 2009, there 

were 4,230 people working in the coal mining industry in the Commonwealth and 

in 2014, that number dropped to 3,723. We are concerned with OSM using outdated 

data from the Commonwealth. 

Virginia coal is of a higher British Thermal Unit (BTU) and lower sulfur content 

than the national average. This quality has made Virginia coal more desirable for 

metallurgical production as well as for the export market. We understand that there 

has been a reduction in coal production and the coal-producing areas of southwestern Virginia will continue to see a decline in their economy. We are concerned 

with the potential impact the draft rule will have on the economy of these regions 

in Virginia. This may be further exacerbated by the inability to engage in the rule 

process and the continued use of outdated and inaccurate information. 

Virginia’s regulatory program is recognized across the Nation as a leader and an 

innovator. Many states have used Virginia as an example in areas such as electronic 

permitting, underground mine mapping and the development of a GIS database that 

includes all surface mining areas as well as abandoned mined lands. We continue 

to work on making this information public through an outward facing Web site. 

Through our electronic permitting system, other state and Federal agencies can access coal mining permit data and applications and provide comments using the electronic application. 

For years, states have been administering stellar regulatory programs, including 

the protection of streams. However, beginning in 2009, OSM embarked on an effort 

to impose a drastic change in state programs. To date, OSM has not provided information to states as to the reason for revising the Stream Buffer Zone Rule now 

termed the ‘‘Stream Protection Rule.’’ Nothing in the states’ Annual Evaluation 

Report indicates that the states are doing a poor job of enforcing current surface 

mining laws. The U.S. Department of the Interior, U.S. Environmental Protection 

Agency (EPA) and the U.S. Army Corps of Engineers (ACOE) signed a 

Memorandum of Understanding (MOU) in 2009, which appears to be the basis for 

the effort by OSM to change the Stream Buffer Zone Rule. While, the purpose of 

the 2009 MOU was to implement an interagency action plan to reduce harmful environmental consequences of surface coal mining in six states; states were not 

21 

engaged in the process and were not asked to be a part of the MOU but rather join 

as cooperating agencies. 

One significant item resulting from the MOU was the intention to propose a new 

Stream Protection Rule. As previously stated, early in the development of the draft 

rule OSM invited several states, including Virginia, to participate in the development of the Draft Environmental Impact Statement (DEIS) as ‘‘cooperating agencies’’ under the National Environmental Policy Act (NEPA). In preparing the DEIS, 

OSM hired a contractor from outside the coal mining regions and cooperating agencies voiced their concern with the contractor’s lack of knowledge in mining. The cooperating agencies recommended that, before moving forward with the DEIS and 

proposed rule, OSM seriously consider the other alternatives available to the agency 

for addressing stream protection. The cooperating agencies believe that there are opportunities for the states and the affected Federal agencies (OSM, EPA, the ACOE 

and the U.S. Fish and Wildlife Service) to work cooperatively together to address 

stream protection concerns. However, to date, our requests for arranging such meetings have been ignored. We believe that there are a variety of tools, protocols, policies and other measures available to us as state and Federal agencies that, with 

some coordination, could lead to a comprehensive and effective approach to protecting streams. 

Following a limited opportunity to provide comments on a few early chapters of 

the DEIS in 2010, Virginia and the other state cooperating agencies have not been 

involved in the review of comments of the draft or any other portion of the DEIS. 

On July 3, 2013, the cooperating agencies sent a letter to Director Pizarchik reminding him that the role of the cooperating agencies, as defined by the original 

memoranda of understanding, included an opportunity to review and comment on 

the chapters of the DEIS that are made available to us. 

The cooperating state agencies have had several concerns regarding the constrained time frames under which we were operating to provide comments on the 

draft documents that were provided to us in 2010. As we have stated from the outset, and as Members of Congress have also noted, the ability to provide meaningful 

comments on OSM’s draft documents has been extremely difficult with limited 

working days to review the material, some of which can be fairly technical in 

nature. In order to comply with the deadlines, we have devoted considerable staff 

time to the preparation of our comments, generally to the exclusion of other pressing business such as reviewing citizen complaints, permit reviews, and AML project 

design. 

We also have concerns regarding the lack of feedback from states in drafting final 

chapters to date. We noted that several attachments, exhibits and studies were not 

provided to us as part of reviewing Chapters 2, 3, and 4. Having the opportunity 

to review these documents is critical to ensuring our ability to provide a full and 

complete analysis of OSM’s discussion in these chapters. It is important for us to 

receive all applicable documents that are referenced in draft chapters in order to 

conduct a meaningful review. 

As part of the DEIS process with cooperating agencies, OSM committed itself to 

engage in a reconciliation process whereby the agency would discuss the comments 

received from the cooperating agencies, especially for purpose of the disposition of 

those comments prior to submitting them to the contractor for inclusion in the final 

draft. Our experience with the reconciliation process to date has not been particularly positive or meaningful. We are hopeful that as we reinitiate the DEIS review 

and comment process, OSM will engage in a robust reconciliation process. Among 

other things, we believe it should include an explanation of which comments were 

accepted, which were not, and why. In an effort to provide complete transparency 

and openness about the disposition of our comments, we believe the best route is 

for OSM to share with us revised versions of the chapters as they are completed 

so that we can ascertain for ourselves the degree to which our comments have been 

incorporated into the chapters and whether this was done accurately. 

As we noted during the submission of comments by many of the cooperating agencies in the early rounds of the EIS development process, there is great concern 

about how our comments will be used and referred to by OSM in the final DEIS 

that is published for review. Our concern is that we have not been afforded the ability to fully engage in the process as we believe was originally agreed upon. We 

remain interested in engaging in this process and while the MOU we signed as cooperating agencies indicates that our participation ‘‘does not imply endorsement of 

OSM’s action or preferred alternative,’’ we want to be certain that our comments 

and our participation are appropriately characterized in the final draft. Furthermore, since CEQ regulations require that our names appear on the cover of the 

DEIS, it is critical that the public understand the purpose and extent of our participation as cooperating agencies. 

22 

To date, many of the cooperating agency states are uncertain whether they still 

desire their names to appear on the DEIS, which was originally anticipated. I would 

like to reiterate Virginia’s interest in continuing to engage in this process; however, 

the appearance of a state’s seal on the cover of the DEIS would imply tacit approval, 

regardless of whether and to what extent state comments have been incorporated 

into the document. While cooperating agencies have the authority to terminate cooperating status if it disagrees with the lead agency (pursuant to NEPA procedures 

and our MOUs), Virginia realizes the importance of DEIS review and the opportunity to contribute to, or clarify, the issues presented. For this reason, Virginia intends to continue to engage on this proposed rule and remain on as a cooperating 

agency. Moving forward, we would like the opportunity to work with OSM to draft 

a joint statement that will accompany the DEIS outlining, very specifically, our role 

as a cooperating agency and the significance and meaning of the comments that we 

have submitted during the EIS development process. 

Thank you for the opportunity to testify before you today. As a cooperating state, 

Virginia is committed to being constructive partners in the rulemaking process. Our 

intention has been and will continue to be to stay engaged to ensure that the most 

up-to-date data is utilized during this process. It is important to us that OSM reengage Virginia in the process and we welcome the committee’s feedback or assistance in making this a reality. I look forward to answering any questions you may 

have. 

HISTORY AND BACKGROUND OF THE STREAM BUFFER ZONE RULE

On December 12, 2008, OSM issued a news release titled ‘‘Office of Surface 

Mining Issues New Mining Rule Tightening Restrictions on Excess Spoil, Coal Mine 

Waste, and Mining Activities in or Near Streams.’’ In the words of OSM, the agency 

stated, ‘‘We believe that the new rule is consistent with a key purpose of the Surface 

Mining Law, which is to strike a balance between environmental protection and ensuring responsible production of coal essential to the Nation’s energy supply.’’ The 

statement from the release was from then Assistant Secretary of the Interior, Land 

and Minerals Management C. Stephen Allred. Mr. Allred is speaking of the 2008 

Stream Buffer Zone Rule. He goes on to say that this new rule will clarify the 

Stream Buffer Zone Rule and resolve any long-standing controversy over how the 

rule should be applied. He is referring to the issues raised with disturbances along 

stream buffer zones as far back as 1983. There have been several challenges to the 

Stream Buffer Zone Rule over the past several decades. OSM and state agencies felt 

as though the 2008 Buffer Zone Rule was a rule that would finally meet the goal 

of environmental protection while ensuring coal production that would meet the 

energy needs of the Nation. 

The development of the 2008 rule was a 5-year process. OSM solicited public 

input throughout the process. The agency received over 43,000 comments and held 

four public hearings that were attended by approximately 700 people. The rule was 

to take effect on January 12, 2009. However, before the rule was implemented it 

was suspended. The states had no opportunity to amend our programs to adopt that 

rule. We believe the 2008 rule contained provisions that would allow disposal of excess spoil in such a manner that would ensure stream protection. Even though 

Virginia has not formally adopted the 2008 rule, some portions of the rule have been 

incorporated into coal surface permit review and approval. Alternative analysis and 

fill minimization are two items from the rule now incorporated into our permitting 

process. The number of fills has been reduced, as well as the number of cubic yards 

being placed in fills. VA tracks these numbers as part of overall performance measures on the success of our program. 

The data and information we are familiar with (including OSM oversight reports) 

indicates that the states have been implementing stream protection requirements 

in a fair, balanced and appropriate manner that comports with the requirements of 

SMCRA and our approved regulatory programs. It would therefore be helpful if 

OSM would finally clarify its goals and the problems it hopes to address in the rulemaking process and provide information to states on why the 2008 rule would not 

be protective of streams. 

Mr. GOHMERT. Thank you very much, Mr. Baker. 

At this time we will hear from Mr. Dustin White. Mr. White, you 

are recognized for 5 minutes. 

23 

STATEMENT OF DUSTIN WHITE, COMMUNITY ORGANIZER, 

OHIO VALLEY ENVIRONMENTAL COALITION, HUNTINGTON, 

WEST VIRGINIA 

Mr. WHITE. Thank you for the opportunity to speak today. My 

name is Dustin White and I am a community organizer for the 

Ohio Valley Environmental Coalition, or OVEC. For the record, I 

am neither an engineer nor a scientist, so I will hold the technical 

jargon to a minimum. 

As an organizer and lifelong resident of West Virginia, native to 

one of the top coal-producing counties in the state, I have personally been witness to the impacts of mining that include entire communities depopulated and bulldozed; increased flash flooding in 

areas surrounding mountaintop removal; and even streams and rivers that run a wide variety of colors, ranging from orange, red, turquoise, black, and even white due to mine-related incidents. In 

some cases, streams disappear altogether when they are buried by 

valley fills. Known toxins even leach off mine sites and contaminate the streams and ground waters for communities. 

In addition, high rates of health issues such as cancers, gastrointestinal illnesses, kidney problems, and gallbladder issues, just to 

name a few, can also be found in these communities. Residents 

throughout the Appalachian region will attest that these illnesses 

are not just isolated incidences, but are all too common in areas 

with heavy mining. There have also been many peer-reviewed 

scientific studies published that even more directly show the link 

between mountaintop removal and these health issues. 

Most of the Appalachian states with mountaintop removal have 

their own regulatory agencies that are supposed to be the first line 

of defense for communities when coal companies violate the law. 

These agencies exist in Kentucky, Virginia, and West Virginia. In 

West Virginia, we know them as the DEP, or Department of 

Environmental Protection. 

But for many in West Virginia, they say DEP stands for something else, Don’t Expect Protection, as citizens often find themselves doing the job of DEP to monitor the impacts of mining. We 

have found that state regulatory agencies often issue mining permits against objections of citizens and sometimes without the proper environmental surveys required by law. They often allow coal 

companies, that are habitual violators of the law, to operate with 

little to no interruption. Fines issued for violations are little more 

than pocket change for coal companies. 

In at least West Virginia and Kentucky, the regulatory agencies 

and state legislators work to lower water quality standards that go 

against Federal guidances, allowing companies to discharge higher 

levels of selenium and aluminum into streams. 

Agencies like DEP seem to be working against the best interests 

of the people; because of this, citizens often turn to legal action to 

rein in the coal companies. We have even filed a 733 petition under 

SMCRA in West Virginia asking the Office of Surface Mining 

Reclamation and Enforcement to intervene in DEP’s mining 

division for failing to do their job. 

Due to state regulatory failure, a regional coalition known as the 

Alliance for Appalachia was created to circumvent the state authority and go straight to the Federal agencies such as OSMRE and 

24 

EPA. We demand that they take action to rein in coal companies 

who blatantly break the laws where agencies like DEP allow it. 

In 2009, the Alliance worked with the Council on Environmental 

Quality to establish a memorandum of understanding with the 

Federal regulatory agencies outlining steps we would like to see 

taken to lessen the impacts of mountaintop removal, including a 

strong stream protection rule. We will continue to go to the Federal 

agencies as long as the state agencies ignore us and our lives and 

homes are threatened by mountaintop removal. 

In closing, how can state regulatory agencies honestly be expected to be part of a Federal rulemaking process when they have 

proven time and time again that they cannot perform their jobs to 

protect citizens from mining pollution? People living in mountain 

communities are experts in their own lives and know practices like 

mountaintop removal are harmful and want action taken. 

Water is one of the most important resources for life. We all live 

downstream and are all vulnerable to pollution. Stringent action to 

protect the waterways of these United States, no matter the size 

of the stream, should be taken by regulatory agencies and not obstructed. Access to clean, safe water is a human right. Thank you. 

[The prepared statement of Mr. White follows:] 

PREPARED STATEMENT OF DUSTIN C. WHITE, COMMUNITY ORGANIZER, OHIO VALLEY

ENVIRONMENTAL COALITION, HUNTINGTON, WEST VIRGINIA

My name is Dustin White and I am a community organizer with the WV based 

Ohio Valley Environmental Coalition (OVEC) and spend the majority of my time 

working with people living with the day to day impacts of coal and mountaintop removal mining. OVEC is a local grassroots non-profit organization helping communities throughout the state fighting environmental injustice. For the record I am not 

a scientist or engineer, nor do I hold any type specialized degree. What I am, however, is an 11th generation West Virginian who grew up in Boone County, one of 

the state’s top coal producing counties. It also happens to be one of the most ravaged by mountaintop removal. I have been around coal mining all my life and have 

family who’ve worked for the industry since its inception. I am here to speak on behalf of the hundreds of thousands of individuals throughout the Appalachian region 

who live in the wake of the coal extraction process. We often feel that we are ignored or overlooked in the decisionmaking process when it comes to coal. 

One of the most abundant resources in the Appalachian region is in fact water, 

not just coal as many would like to believe. Not only is water one of the few basic 

fundamental elements needed for life, but it is also important to Appalachian culture because our streams and rivers are just as much part of our communities as 

the mountains that surround us. We don’t just use them for recreational purposes 

like fishing and swimming but for many who do not have access to municipal water 

systems, it is the water they use for drinking, cooking, and bathing. Water from the 

Appalachian region was once considered some of the most pure on the planet. However, for the past several decades, our valuable water quality has been threatened 

and in many cases completely obliterated by pollution from mountaintop removal. 

When mining companies dump the overburden from their operations into adjacent 

valleys they destroy ephemeral, intermittent, and perennial streams that act as 

headwaters for larger rivers and as natural channels for rain and snow runoff. This 

causes massive flooding. The mountains and forests of Appalachia are designed by 

nature to absorb and direct water, especially during periods of heavy rainfall. However, because these streams are destroyed, rain runs off the desert like landscape 

created by mountaintop removal into the communities directly below causing flash 

flooding. Now, almost yearly, people in areas with mining have to contend with 

flooding that is devastating to their communities. In the past, massive flooding was 

a rare occurrence but is now commonplace and I have seen the toll it has on already 

economically depressed communities. 

One of the greatest threats from mountaintop removal comes in the form of the 

water contamination mining causes. The blasting of strata subsequently exposes 

naturally occurring elements locked in the ground, which once exposed to air, can 

become toxic. These now toxic elements along with other toxins, such as diesel fuel 

25 

from equipment and the chemicals used in explosives, leach into streams and 

groundwater supplies and eventually find their way into people’s homes that depend 

on these sources for water. As a result people are becoming sick. Cancers, 

gastrointestinal issues, kidney damage, and gallbladder issues among others are 

commonplace throughout Appalachian communities with heavy mining. Not only 

have I witnessed these illnesses as a lifelong native of an area with heavy mining, 

but I often hear stories of commonality in each community impacted by mining I 

work in. People speak of their own wide range of illnesses or tell of family and 

neighbors who have similar health issues described or have even passed away from 

these illnesses; not only adults, but children as well. I myself at 31 years of age 

have outlived people I played with as a child. 

It is well known there are dozens of peer-reviewed scientific studies published 

showing a correlation between mountaintop removal and health issues for people 

living near mining. One study shows a strong correlation between children being 

born with health defects and the proximity their mothers live during pregnancy to 

MTR sites. In medical pathology, correlation is the first key to determining if something has an impact on human health and is often the only way to determine a link 

when causation cannot be shown. In many medical study cases when it comes to 

determining something’s impact to human health it is not causality that medical 

professional go by but the correlation data. I personally believe without a doubt that 

most of these illnesses are caused by pollution from coal operations. 

It is true that laws and regulations like SMCRA (Surface Mine Control and 

Reclamation Act) are in place to prevent or lessen environmental impacts of coal 

mining and mountaintop removal. However, in many cases it seems companies tend 

to ignore, for the most part, these regulations. Under SMCRA, some states are given 

primacy by the Federal Office of Surface Mining Reclamation and Enforcement 

(OSMRE) to have state regulatory agencies that can address issues related to mining. In WV this falls under the jurisdiction of the Division of Mining and 

Reclamation (DMR) inside the WV Department of Environmental Protection (DEP). 

These state agencies are supposed to be the citizens’ first line of defense when coal 

mining companies break the law. However, after years of trying to work with these 

agencies on the state level we have found they do not work the way they were 

intended. 

Citizens often find that they are the ones who have to do the work in determining 

violations from mining companies. With little to no help from state regulatory agencies, citizens take it upon themselves to monitor water quality around areas with 

heavy mining. They are essentially doing the job the state regulatory agency is supposed to do. Independent labs and universities will often have to be consulted by 

community members for water testing because state agencies either dismiss claims 

from citizens or claim that they do not have the capacity to monitor the water 

source in question. In cases where state agencies find violations, fines set by the 

agency are often ineffective at deterring repeat offenders, and many state agencies 

allow habitual offenders of violations to continue operation with only temporary 

delays in production. This often prompts citizens to file lawsuits against the mining 

companies for things like excessive selenium discharges into streams and high conductivity, often an indicator of harmful heavy metals, in streams impacted by mining along with other Clean Water Act violations. Many of these lawsuits are more 

effective at reigning in coal companies over actions taken by state agencies. 

Recently in West Virginia, due to the lack of enforcement by the state, citizens 

filed a 733 petition under SMCRA to have OSMRE investigate and possibly take 

over the DEP’s mining division. The WVDEP has also worked with coal companies 

to weaken water quality standards inside the state that goes against Federal guidances in place. Due to the lack of enforcement in the states where MTR takes place 

and the refusal of agencies to work with impacted communities, people have been 

left with no other choice than going directly to Federal agencies such as the 

Environmental Protection Agency (EPA), OSMRE, the Council on Environmental 

Quality (CEQ), and the Army Corps of Engineers. Impacted citizens have asked 

these agencies, as public servants, to use their authority to provide some relief to 

communities where water quality is being destroyed by mining activity because they 

are receiving little to no assistance from the state level. 

It is true there is a cost to mining coal and we in Appalachia have been paying 

that cost for decades. Mountaintop removal is a continued threat to the safety and 

well-being of people living in the Appalachian region. Citizens not only face the current impacts to their health and environment, but will be left with the legacy pollution costs of mining. Due to their failure to adequately enforce regulations; state 

agencies have contributed to the impacts of mining on communities with little to 

no accountability and have shown that they cannot be a useful part of any nationVerDate Mar 15 2010 08:28 Feb 18, 2016 Jkt 000000 PO 00000 Frm 00029 Fmt 6633 Sfmt 6621 J:\114TH CONGRESS\OVERSIGHT & INVESTIGATIONS\05-20-15\94775.TXT DARLEN
26 

wide rulemaking process. As a result, we will continue to seek rules from Federal 

agencies that will curtail the impacts of mining and threats to human health. 

Mr. GOHMERT. Thank you very much, Mr. White. 

I understand Congressman Mooney has been most unavoidably 

detained, and so it is my pleasure to introduce the Counsel for the 

Division of Mining and Reclamation within the West Virginia 

Department of Environmental Protection. So Mr. Russell Hunter, 

we are delighted to have you. You are recognized for 5 minutes. 

STATEMENT OF RUSSELL M. HUNTER, COUNSEL, DIVISION OF 

MINING AND RECLAMATION, WEST VIRGINIA DEPARTMENT 

OF ENVIRONMENTAL PROTECTION, CHARLESTON, WEST 

VIRGINIA 

Mr. HUNTER. Thank you for your kind introduction, Mr. 

Chairman. Good afternoon. I am appearing on behalf of—— 

Mr. GOHMERT. Is your microphone on? If it is, you might move 

it a little closer. OK. Yes. Then if you would just move it a little 

closer to your—— 

Mr. HUNTER. How about that? Good afternoon. 

Mr. GOHMERT. It is still not picking up. 

Mr. HUNTER. Good afternoon. 

Mr. GOHMERT. I think that is good. Thank you. 

Mr. HUNTER. Good afternoon again, three times. I am appearing 

on behalf of the West Virginia Department of Environmental 

Protection, and we appreciate the opportunity to present this testimony before the subcommittee regarding the state of West 

Virginia’s perspective on the status of cooperating agencies for the 

Office of Surface Mining’s Stream Protection Rule. 

West Virginia is one of nine state agencies that signed 

Memoranda of Understanding with OSM to serve as cooperating 

agencies in development of the Stream Protection Rule’s underlying 

environmental impact statement. Having the states participate as 

cooperating agencies in the NEPA process was envisioned by 

Congress, and particularly by the CEQ. Particularly, CEQ regulations mandate that the Federal agencies responsible for preparing 

NEPA analyses and documentation do so in cooperation with state 

and local governments with jurisdiction by law or special expertise. 

It is important to note that the Department of the Interior and 

CEQ guidance documents make clear the role of cooperating agencies. It is not to be one of a nominal figurehead, but instead a role 

of active participation throughout the development of the EIS. That 

includes providing special expertise, practical knowledge, and primary regulatory experience to the process. 

Since 1981, West Virginia has been a primacy state, with DEP 

implementing and administering SMCRA within our borders. Thus, 

West Virginia felt it could contribute to and learn from participation in the EIS process. It is with these expectations that DEP 

signed the MOU to cooperate in the preparation of the EIS. 

As a means of initiating the cooperative process described in the 

MOUs, OSM released limited sections of their draft for review by 

the cooperating agencies. However, the time periods allowed for review and comment on these sections were impractical. At no point 

27 

during this EIS draft review process was there a face-to-face 

meeting between cooperating agencies and OSM. 

Despite the imposition of unreasonable time constraints and 

other logistical hurdles, DEP and the other cooperating agencies 

conformed to the OSM schedule and provided comments on those 

portions of the working draft that OSM had shared with them. It 

should be noted, however, that OSM did not provide the studies 

and research relied upon in the 2010 working draft. 

In spite of the cooperating agencies’ inquiries and offers to honor 

their MOU commitments, their communication from OSM was 

scant at best during the 4-year period that began in January 2011 

and ended March 2015. From our perspective, OSM’s treatment of 

DEP as a cooperating agency can best be described as limited, abbreviated, and contrary to the terms of the MOU. 

The cooperating agencies, in correspondence dated February 23, 

2015 to OSM, inquired about this EIS process. OSM, via communication on March 17, responded and requested that a meeting be 

held with the cooperating agencies regarding its draft EIS and proposed rules. 

Shortly before the OSM communication of March 17, some of the 

cooperating agencies had already withdrawn from the EIS process. 

Those agencies, as well as IMCC staff, were excluded from the subsequent OSM briefing of April 27. The briefing for the remaining 

cooperating agencies lasted approximately 3 hours and consisted 

solely of a PowerPoint presentation made by OSM, with brief questions and answers. 

The briefing can be characterized as a unilateral presentation 

primarily related to methodology and OSM’s predetermined views 

and conclusions rather than a solicitation of input from the remaining cooperating agencies in attendance. 

Upon inquiry as to OSM’s next step in the EIS preparation process, the cooperating agencies were informed that the draft EIS and 

proposed rule were at the OMB, and it was indicated that if OSM 

needed information from the cooperators, OSM would contact them. 

Based on these succinct statements, the only logical conclusion 

derived from the briefing was that OSM was going to unilaterally 

publish its draft without input from the cooperating agencies. This 

is unfortunate, given the regulatory history, experience and expertise of West Virginia. We signed the OSM MOU expecting DEP to 

meaningfully contribute to the EIS process, while gaining insight 

into new science, technology, or techniques. 

Accordingly, DEP terminated its MOU with OSM, and will respond to the OSM rulemaking through appropriate regulatory procedures in efforts to provide transparent and responsible regulation 

designed to protect the environment and the state of 

West Virginia. 

Thank you, and I will answer any questions. 

[The prepared statement of Mr. Hunter follows:] 

PREPARED STATEMENT OF RUSSELL M. HUNTER, COUNSEL, DIVISION OF MINING AND

RECLAMATION, WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION

Good afternoon. My name is Russell Hunter and I serve as Counsel with the 

Division of Mining and Reclamation of the West Virginia Department of Environmental Protection (WVDEP). I am appearing on behalf of the agency and we appreciate the opportunity to present this testimony before the subcommittee regarding 

28 

the state of West Virginia’s perspective on the Status of Cooperating Agencies for 

the Office of Surface Mining’s (OSM) Stream Protection Rule. 

WVDEP is one of nine states that signed Memoranda of Understanding (MOUs) 

with OSM to prepare an Environmental Impact Statement (EIS) to accompany a 

rulemaking to address the stream buffer zone. The MOUs were developed by OSM 

pursuant to the National Environmental Policy Act (NEPA) and the Council on 

Environmental Quality’s (CEQ) implementing regulations at 40 CFR 1501.6 and 

1501.8, and CEQ’s January 30, 2002 Memorandum for Heads of Federal Agencies 

relative to cooperating agencies. 

The regulations of CEQ that implement NEPA, (40 CFR Parts 1500–1508), allow 

Federal agencies, as lead agencies, to invite state governments to serve as cooperating agencies (CAs) in the preparation of Environmental Impact Statements (EISs) 

and, if a CA is invited, as is the case for the Stream Protection Rule, the CEQ regulations implementing NEPA govern the CA relationship for all Federal agencies preparing EISs, including OSM. More specifically, applicable CEQ regulations state: 

40 CFR 1501.6 (CEQ) Roles of lead and cooperating agencies 

(a) The lead agency shall: 

(1) Request the participation of each cooperating agency in the NEPA 

process at the earliest possible time. 

(2) Use the environmental analysis and proposals of cooperating agencies 

with jurisdiction by law or special expertise, to the maximum extent 

possible consistent with its responsibility as lead agency. 

(3) Meet with a cooperating agency at the latter’s request. 

(b) Each cooperating agency shall: 

(1) Participate in the NEPA process at the earliest possible time. 

(2) Participate in the scoping process . . . , 

(3) Assume on request of the lead agency responsibility for developing information and preparing environmental analyses including portions of the 

environmental impact statement concerning which the cooperating agency has special expertise . . . . 

It can be derived from the CEQ regulations (40 CFR 1501.6) and other 

Department of Interior (DOI) regulations (43 CFR 46.230), throughout the development of an EIS, the lead agency is required to collaborate, to the fullest extent 

possible, with all CAs concerning issues relating to their jurisdiction and special 

expertise. Also, CAs may, by agreement with the lead agency (in this case via signed 

MOUs), assist in doing the following: (i) Identifying issues to be addressed, 

(ii) Arranging for the collection and/or assembly of necessary resource, environmental, social, economic, and institutional data, (iii) Analyzing data, (iv) Developing 

alternatives, (v) Evaluating alternatives and estimating the effects of implementing 

each alternative, and (vi) Carrying out any other tasks necessary for the development of the environmental analysis and documentation. 

As described, the primary purpose of involving CAs is to bring into the process 

knowledge, expertise, and familiarity with matters being considered. It is with these 

expectations that WVDEP, on behalf of the state of West Virginia, signed the MOU 

to cooperate in the preparation of the EIS to support OSM’s current rulemaking. 

West Virginia, since 1981, has been a primacy state, with WVDEP implementing 

and administering the Surface Mining Control and Reclamation Act (SMCRA) for 

West Virginia, under oversight from the OSM. West Virginia, dating back to 1933, 

had a set of laws addressing the environmental ramifications of mining. In fact, 

SMCRA, passed by Congress in 1977 to provide a national framework for the regulation of mining, borrowed heavily from the preexisting state programs of 

West Virginia and Pennsylvania. Given the regulatory history, experience and expertise of West Virginia, we felt WVDEP could meaningfully contribute to the EIS 

process while gaining insight into any new science, technology or techniques, and 

thus signed the MOU. 

WVDEP participated in the scoping process, and signed an MOU (prepared by 

OSM) to serve as a CA, regarding the proposed change to the existing 1983 regulations, which have been commonly referred to as the ‘‘stream buffer zone rule.’’ OSM 

unilaterally developed the scope of the initial 2010 draft EIS and then circulated 

a draft EIS (the ‘2010 working draft EIS’) and packaged it as ‘‘Stream Protection 

Measures.’’ As a result, what had started out as a revision to the stream buffer zone 

rule, pertaining to discernable stream segments, had been expanded by OSM to inVerDate Mar 15 2010 08:28 Feb 18, 2016 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6621 J:\114TH CONGRESS\OVERSIGHT & INVESTIGATIONS\05-20-15\94775.TXT DARLEN
29 

clude topics beyond the stream buffer zone. The expanded topics included, but were 

not limited to, the definition of material damage to the hydrologic balance, baseline 

data collection and analysis, monitoring requirements, the practices of mining 

through and under streams, corrective action thresholds, and fish and wildlife protection and enhancement. (A discussion on some aspects of the expansiveness of the 

OSM rulemaking and the appropriateness of it can be found in written comments 

filed with the Energy and Mineral Resources Subcommittee in conjunction with a 

hearing about H.R. 1644 on May 14, 2015). Essentially, from our perspective, OSM 

has turned its proposed stream buffer zone rulemaking into a rewrite of the permitting and performance standards established by Congress in SMCRA. 

As a means of initiating the cooperative process described in the MOUs, OSM 

released sections of their draft rule for review by the CAs. However, in what appeared to be a mockery of the process, the time periods allowed for review and comment by the CAs were brief and impersonal in that (i) the comment deadlines were 

extremely short and impracticable, and (ii) were to be provided via a share-file on 

a Web site set up by OSM. Consequently, at no point in the draft review process 

was there a face-to-face meeting between cooperating agencies and OSM. Further, 

given OSM’s time constraints, scheduling needed face-to-face meetings was impractical, although it is suggested that convening such a meeting could have been helpful, to address the CAs’ comments and suggestions and to reconcile such comments 

and issues with the 2010 working draft EIS. 

Despite the imposition of these logistical hurdles, WVDEP and the other cooperating agencies provided comments to the portions of the drafts which OSM had 

shared with the CAs. It is noted that OSM did not allow the CAs to comment on 

some portions of their draft 2010 working draft EIS, and OSM failed to provide the 

studies relied upon in the draft or a list of the research or studies it utilized. 

A critical part of an EIS preparation stage is the identification and analysis of 

potential action alternatives and the selection of a preferred alternative. Selection 

of a preferred alternative which is overly restrictive such as categorically preventing 

disturbance of discernable stream segments could have profound effects on permitting decisions and performance standards and ultimately whether certain mining 

operations are authorized to proceed. In addition to limiting the CAs participation 

in the review process, OSM, by selecting a restrictive preferred alternative, would 

undermine the discretionary permitting decisions of approved state regulatory authorities. Also in preparing its version of the EIS, OSM apparently relied upon modeling performed by outside sources to select and analyze alternatives rather than 

seeking input from the CAs. These actions further belie the notion that OSM had 

made its decision as to the outcome of the EIS prior to the actual conclusion of the 

NEPA process. Such an approach to dictate future permitting decisions by state regulatory authorities, without input from primacy programs, is not only contrary to 

NEPA principles, but also contrary to the fundamental concept of state primacy 

under SMCRA. 

Further, OSM’s withholding of ‘‘new science’’ from review by the CAs deprived the 

states of information regarding the appropriate development of the EIS. This approach by OSM also served as a disservice to the primacy regulatory authorities 

charged with making current regulatory decisions as they implement SMCRA on a 

daily basis by keeping from them the latest available information. 

Subsequent to this initial review phase (as described above), conducted in late 

2010 and early 2011, there was no further dialog or input requested of the CAs by 

OSM. The CAs had discussions regarding this dilemma on more than one occasion 

and contacted OSM by letters, offering to honor their MOU commitments and to engage, or re-engage, in the preparation of the draft EIS. These offers were repeatedly 

refused by OSM. In spite of the CAs’ inquiries and offers, the only communication 

from OSM, during this 4-year period from the end of the abbreviated comment period in January 2011 to March 2015, was a general statement that OSM was still 

working on a draft EIS and proposed regulation change. Further, OSM staff working on the draft EIS and proposed rule refrained from discussions with WVDEP personnel and declined to answer particular questions, if inquiries were made. From 

our perspective, OSM’s treatment of the WVDEP, a cooperating agency in the OSMled EIS, can best be described as limited, abbreviated, restricted, and contrary to 

the terms of the MOU. 

From our discussions with other CAs, it is apparent they also felt disenfranchised 

by the OSM approach. In many cases, we were informed that letters of termination 

of their respective MOUs regarding the withdrawal of their participation in the EIS 

process had been sent to OSM. We understand the reasons for termination and 

withdrawal included very short review times, failure to provide reports and relevant 

data, substantial revision of the working draft without the input of the CAs, unwillingness to meaningfully engage the CAs, the overall quality of the work product, 

30 

missing reference material and the overall expansive nature of the rulemaking 

effort. 

As what appeared to be yet another mockery of the CAs’ role in the process and 

apparently as a result of Congressional inquiry into the Stream Protection Rule and 

EIS status, OSM, via a communication on March 17, 2015, requested that a meeting 

be set up with the CAs regarding the draft EIS and proposed rule. Although requests for the meeting were received individually by the CAs, the Interstate Mining 

Compact Commission (IMCC) was involved and handled the meeting arrangements 

on behalf of the cooperating agencies. The OSM ‘‘briefing’’ (the meeting) of the CAs 

was held on April 27, 2015 in Baltimore Maryland and attended by representatives 

from WV, WY, KY, VA, MT, OH, and IN. It is important to note that the CAs that 

had terminated their MOU and withdrawn from the EIS process (UT, NM, AL and 

TX), as well as an IMCC representative, were excluded by OSM from the meeting. 

The briefing for the remaining CAs lasted approximately 3 hours and consisted 

solely of a power point presentation, made by OSM, with brief questions and answers. It is important to note that neither copies of the presentation, nor any other 

materials, were furnished to the CAs, neither prior to or at the meeting. OSM’s 

briefing began with a slide that identified the purpose of their proposed rule by 

using a bullet list of general concepts, with the first bullet in the list being, ‘‘Use 

Advancement in Science.’’ In response to questions regarding such science advancements, it was indicated by OSM that the scientific advances will be seen throughout 

the OSM draft of the EIS, and reference was made to TDS (total dissolved solids), 

selenium, reforestation, and geomorphic reclamation (with no details provided or 

studies referenced as to such science advancements). Similar generalizations can be 

made as to the other general concepts identified in the bullet list presented during 

the briefing. 

This briefing can be characterized, at best, as a unilateral presentation, primarily 

of methodology, of OSM’s views and determinations, rather than a solicitation of 

input from the remaining CAs in attendance. The CAs were informed that, despite 

their doubts, their review comments from 2010/2011 were considered by OSM and 

that the current OSM draft of the EIS and proposed rule (neither of which as of 

today, May 20, 2015, have been seen by the remaining CAs) were revised, and that 

the revisions were peer reviewed by outside experts, based on said comments. Interestingly, despite the terms of the MOUs, neither the WVDEP nor the other CAs had 

been asked to review the revisions or studies relied upon by OSM to revise the limited portions of the 2010 working draft the CAs had previously seen. Upon inquiry 

regarding OSM’s next step in the EIS preparation process, the CAs were informed 

that the draft EIS and proposed rule were at the Office of Management and Budget 

(OMB), specifically Office of Information and Regulatory Affairs (OIRA), and were 

being circulated among other Federal agencies (and not the CAs). The CAs were further informed that, following the Federal agencies’ review, a draft EIS and proposed 

rule would be published and available to the CAs and the public for comment. However, it was indicated that if OSM needed information from the CAs, during or after 

the comment period, then OSM would contact them. Based on this succinct statement, the only logical conclusion derived from the briefing was that OSM was going 

to unilaterally publish its draft without input from the CAs, despite the terms of 

the MOUs. 

The fundamental stages in developing an EIS are scoping, preparing and publishing a draft, receiving comments, responding to comments, and publishing a final 

document. At what stage in the process an action agency (generally the lead agency) 

proceeds with an action (e.g. proposed rule) is determined by that agency. From our 

perspective, OSM perverted the NEPA process because, among other things, the 

CAs’ comments on the initial working draft were being treated as a part of the 

scoping stage, rather than as part of the preparation stage of the EIS process and 

OSM had already determined the preferred alternative (e.g. the proposed rule 

language) it would include in the final document. 

The fact that the 2010/2011 cooperating agency comments on the OSM initial 

working draft is the only involvement of cooperating agencies is disappointing to put 

it mildly. OSM actions during preparation of this EIS denied WVDEP the opportunity to interact with the lead agency, excluded WVDEP from timely receiving information OSM relied on and in effect forestalled WVDEP from performing in the 

process as contemplated in the MOU and NEPA cooperating agency guidance. The 

dismissive approach of OSM necessitates that WVDEP position itself to provide 

transparent and responsible regulatory revisions and decisions to be considered and 

addressed consistent with the appropriate regulatory processes. 

We appreciate the opportunity to provide these comments to the subcommittee. 

We urge the subcommittee to continue its investigation and oversight of the process 

31 

with the goal of motivating OSM to reconsider the need for and breadth as well as 

consequences of its rulemaking. 

Thank you for the opportunity to testify today. I would be happy to answer 

questions. 

Mr. GOHMERT. Thank you very much. 

At this time we will move into a question-and-answer session. 

Normally the Chair recognizes him- or herself first, but I am going 

to wait to ask questions and would recognize my friend Mr. 

Labrador for 5 minutes. 

Mr. LABRADOR. Thank you, Mr. Chairman. Thank you all for 

being here today. 

Mr. Johnson, you write in your written statement that you anticipated a robust opportunity to work with OSMRE, but the cooperating states have essentially been shut out of the process and 

relegated to the sidelines as OSMRE moved forward with the EIS. 

Can you elaborate a little bit on this statement, specifically regarding the commenting process? 

Dr. JOHNSON. Congressman, the first chapter that we were given 

was provided to us in September, which was actually Chapter 2 of 

the EIS. The subsequent two chapters were Chapters 3 and 4. We 

were given approximately 8 to 10 days to look at these chapters. 

We had no prior input in the development of those chapters or 

in providing data or information regarding the substance of the 

proposed EIS. So, what we were relegated to essentially was the 

role of the proofreader. That is the way we feel. 

Mr. LABRADOR. All right. Was the Agency cooperative with you 

at all when you requested documents? 

Dr. JOHNSON. We never received any of the documents that we 

asked for, to my knowledge. Other states may have, but I do not 

recall ever seeing any. 

Mr. LABRADOR. How many times did you request documents? 

Dr. JOHNSON. I think there were at least—individual states, I 

know, requested information from the Director. We requested information in our November 10 letter to the Director, and then expressed concerns about not having received those in our subsequent 

letter in July of 2013. 

Mr. LABRADOR. All right. According to your testimony, when 

draft EIS chapters were shared with the states, you were only 

given a short time to comment. What was the reason given to you 

for the lack of time to comment? 

Dr. JOHNSON. We were told that the schedule had been established on what the review process was going to be, and they would 

not deviate from those schedules. 

Mr. LABRADOR. Established by whom? 

Dr. JOHNSON. The Director. They actually gave us a timetable on 

the development of the EIS, and proposed to have it out, I believe, 

by the end of February of 2011, the entire DEIS. 

Mr. LABRADOR. How long has it been since the last comment 

period closed? 

Dr. JOHNSON. The last time we had any opportunity was in 

January, I believe, of 2011. 

Mr. LABRADOR. Have you requested an opportunity to give any 

additional comments? 

32 

Dr. JOHNSON. Yes, we have. We did on July 3, 2013. 

Mr. LABRADOR. Thank you. 

Mr. Hunter, in your written testimony you state that it can be 

derived from the CEQ regulations and other Department of the 

Interior regulations throughout the development of an EIS, that 

the lead agency is required to collaborate to the fullest extent possible with all cooperating agencies concerning issues relating to jurisdiction and special expertise. Has the Agency collaborated with 

you in such a manner? 

Mr. HUNTER. OSM has not cooperated with us in that manner, 

Congressman. 

Mr. LABRADOR. Have you made your concerns regarding the lack 

of collaboration known to the Agency? 

Mr. HUNTER. That is correct. 

Mr. LABRADOR. And what has the Agency done to address your 

complaints? 

Mr. HUNTER. The briefing was the most recent thing they have 

done, and that was the only thing other than routine updates or 

general updates for a 4-year time period. 

Mr. LABRADOR. Now, as we saw, Secretary Jewell testified that 

the states can comment on the proposed rule once it is released. 

This question is for Mr. Johnson, Mr. Hunter, and Mr. Baker. Is 

that statement consistent with how the regulations require the 

Federal agency to collaborate with a cooperating agency? 

Dr. JOHNSON. Sir, according to my understanding of what the 

NEPA process for involvement of the states is, that is not consistent with it. I believe the process envisions dealing with the 

states all the way up through the development of the entire DEIS, 

or draft EIS, and that has not been done. 

Mr. LABRADOR. Thank you. Mr. Baker? 

Mr. BAKER. The same. We do not agree that we have been involved in the process like it was set out to be for our involvement. 

Mr. LABRADOR. All right. Mr. Hunter? 

Mr. HUNTER. Well, in a previous EIS on the mountaintop mining 

issue, West Virginia was in a co-lead position. In the co-lead 

position, which is distinguished from a cooperating agency position, 

there was more than collaboration; there was actually working together to put a product out. I mean, we labored over each word and 

line. So there was great sharing of information at that time. 

It is my understanding, talking to other states that have Federal 

lands and do EISs more frequently than we have to in 

West Virginia, that as a cooperating agency, they receive almost 

everything that is put out by the lead agency. So I would have to 

say that that was contrary to our experience here. 

Mr. LABRADOR. Thank you very much. Thank you for your time. 

Mr. GOHMERT. I thank the gentleman from Idaho. 

At this time I will recognize the Ranking Member, Mrs. Dingell. 

Mrs. DINGELL. Thank you, Mr. Chairman. 

I just want to follow up on this line of questioning for 1 second 

before I go to the others. This is for all the witnesses that represent 

a state regulatory agency. I want to better understand the level of 

participation in the development of the environmental impact 

statement for the 2008 Stream Buffer Protection Rule under the 

Bush administration. 

33 

By show of hands, which of your agencies was a cooperating 

agency at the time of the EIS attached to the rule? 

[Show of hands.] 

Mrs. DINGELL. So you did not do it back then, either. Did you 

complain at the time that you were not being included when the 

Bush administration issued the rule? 

Mr. HUNTER. Not that I can recall. 

Mrs. DINGELL. So it is my understanding there was very little 

input from the states during the 2008 EIS process, either, and that 

this Administration has actually had a more open process for state 

participation than the earlier one. So I just wanted to get that 

point on record. 

Mr. White, now I would like to ask you some questions. You 

mention in your testimony that a 733 petition was filed because 

there was concern in your community that the West Virginia 

Department of Environmental Protection was not adequately regulating the coal mines. Can you talk about some of the things you 

have seen that have prompted you and other organizations to file 

the petition? 

Mr. WHITE. Absolutely. They range from a wide variety of issues. 

The main issues that OSMRE decided to take a look at from our 

733 petition were the fact that the DEP fails to address potential 

flooding impacts, and they fail to issue SMCRA violations when 

NPDS system violations exist. 

The DEP also fails to regulate selenium pollution. This is one 

key that I can specifically talk about because my organization has 

actually entered into several lawsuits against mining companies 

because of high levels of selenium output into streams. We have 

been very successful in those lawsuits. They also fail to properly 

define impacted areas and cumulative hydrological impact analysis 

results and harm to watershed, and fail to require properly protected soil removal and reclamation measures for MTR mining 

sites. 

With reclamation, the Appalachian forest is one of the most biodiverse forests, second only to the Amazon itself. It is essentially 

a rain forest, with all these different species of plants and animals. 

When they destroy the mountain, they are essentially turning it 

into either a desert landscape or a prairie landscape, and so little 

of the native vegetation is put back on these sites. 

They destroy the topsoil, which is the nutrient-rich soil that provides the life; and plant non-native species of grasses like lespedeza, shrubs, and very few native species. In turn, this also causes 

runoff from water because there is nothing there to catch the rainwater any more. 

Mrs. DINGELL. So I want to talk about health effects, too. We 

heard last week from Dr—our time is short, which is why I am cutting you off there a little—we heard last week from Dr. Michael 

Hendryx in a different hearing on the same subject. As an accomplished epidemiologist, he told us about the health effects we see 

in mountaintop mining and coal mining communities. He was very 

concerned about them. 

Can you talk a little more about some of the health problems you 

have seen in your community firsthand, and whether that is impacting the economics of your region? 

34 

Mr. WHITE. Absolutely. In the communities I work with, I have 

witnessed a lot of folks with cancers. Some even have multiple 

types of cancers. I know of one young lady whose gallbladder completely calcified. Many residents in the region have actually had 

their gallbladders removed. Crohn’s disease is a large problem in 

a lot of these areas, and I encounter them. My own grandmother 

died of kidney failure, and that was something that was very difficult for me to go through because she was the only one in her 

community that was still on well water and was not on a public 

water system. 

It is very hurtful when you see people in your community suffer 

from health effects, and when you know that things are going on 

around them in their environment that are causing their health 

effects. 

Mrs. DINGELL. Thank you. We are sorry you are seeing that. 

Mr. Chair, I only have 1 second, so I will yield it back. 

Mr. GOHMERT. All right. At this time the Chair recognizes Mr. 

Lamborn from Colorado for 5 minutes. 

Mr. LAMBORN. Thank you, Mr. Chairman. I want to commend 

you for having this hearing. In fact, as the chairman of another 

subcommittee who has had some of the previous hearings on this 

important issue, I commend the fact that when you were named as 

Chairman of the new O&I Subcommittee, you immediately saw the 

need to delve into this issue. So I commend you for that. 

For Mr. Johnson, Mr. Baker, and Mr. Hunter, are any of you familiar with the Yale medical study that found that in coal mining 

country, the problems that are identified have to do not with coal 

mining but with poverty? Mr. Johnson? 

Dr. JOHNSON. I for one am, sir. 

Mr. LAMBORN. So you are familiar with that study? OK, that is 

good. 

Let me get into the role of the states. I am concerned OSM has 

been ignoring the states and just putting on a show—just putting 

on the appearance of consulting, trying to meet the regulatory requirements, the statutory requirements, under NEPA. But I am 

afraid that they have been insincere and it will not stand up to 

legal challenge in the future. 

Do any of you, Mr. Johnson, Mr. Baker, or Mr. Hunter, think 

that the OSM has complied with the spirit and letter of the law; 

or are they just going through the motions and not really listening 

to you at all? 

Dr. JOHNSON. Sir, my experience in dealing with this type of operation is that I had never done it before. So this was a first for 

me. Even though I had been there 34 years, I had not been a cooperating agency on an environmental impact statement. 

But, having said that, I think I went into it expecting one thing 

and came out of it seeing that I did not accomplish that. I was expecting to be involved in the process of developing this EIS from 

the very beginning and having some input on what data was looked 

at and what factors might be considered in developing a new rule; 

even though I understood from the very beginning that I was not 

participating in developing the rule itself, only the EIS. 

In the end, as I said before, I think all I got from this was the 

fact that I was a glorified proofreader. 

35 

Mr. LAMBORN. Thank you. Mr. Baker, I will be a little more specific with you in the state of Virginia. Was Virginia able to provide 

substantive comments to OSM? And was the amount of time given 

you to review what they provided reasonable? 

Mr. BAKER. In Virginia we also, as with other states who were 

cooperating agencies, had very short turnaround times on being 

able to provide any information in this process. A lot of the information, as we said, some of the things have changed and needed 

to be updated as far as Virginia production and different issues like 

that that we have not been able to provide because we have not 

been a part of the process. 

Mr. LAMBORN. Mr. Hunter? 

Mr. HUNTER. West Virginia did provide comments to the three 

chapters that were shared via a share file. The abbreviated comment period made some of them substantive, not as substantive as 

we would have liked to have had some of the comments, and some 

of them were procedural. 

I am thinking back in time a little bit. I have not studied those 

comments. But there was an expectation that there would be some 

dialog about the comments and the range of alternatives and the 

possible alternatives, which never followed the initial comment period on those three chapters. 

Mr. LAMBORN. Thank you. 

Now, changing gears just a little bit, those of us who have been 

watching this with a lot of concern remember when the contractor 

who was hired to do economic analysis came out with a finding 

that tens of thousands of jobs—I think 17,000, something like 

that—would be lost; it would be devastating on the communities in 

Appalachia—however you say that properly—and that that would 

have a harmful economic impact. 

Then that contractor was fired and later became a whistleblower, 

and it was almost like OSM was shooting the messenger because 

they did not like the message they were hearing. Then they looked 

for someone else to give a different message, more in keeping with 

what their predetermined outcome wanted to be. 

Are you all familiar with that? Well, I guess I am running out 

of time. But maybe we will get a chance to talk more about that 

next round. Thank you. I yield back. 

Mr. GOHMERT. Thank you. 

At this time I would recognize the gentleman from Arkansas, Mr. 

Westerman, for 5 minutes. 

Mr. WESTERMAN. Thank you, Mr. Chairman. 

Dr. Johnson, I would like to ask about the rationale for cooperating agencies. The NEPA regulations talk about including states 

that have special expertise or jurisdiction by law. What kind of special expertise do states have in this area? 

Dr. JOHNSON. Well, our states, as a group and individually, have 

been in the business of regulating the coal industry for the last 35 

years, or more in some cases. We were granted primacy by the 

Office of Surface Mining to do that, and they have watched over 

our shoulder diligently for the last 35 years to ensure that we are 

enforcing the law and the regulations. 

I do not believe you can get much better expertise in these different fields, particularly dealing with the water quality issues and 

36 

the excess spoil disposal issues that are involved, anywhere else 

but the states that actually regulate. 

Mr. WESTERMAN. So how would the knowledge and experience of 

states benefit in the environmental review process? 

Dr. JOHNSON. It would be beneficial in trying to identify exactly 

what factors are going to come into play on these different alternatives that they are proposing, whether or not they are going to 

be feasible to implement, and whether or not they are going to result in any on-the-ground improvements. 

Mr. WESTERMAN. So would you say that states have a better understanding of mining operations in their own states than OSM 

has in Washington, DC? 

Dr. JOHNSON. I would definitely think that. That is my opinion. 

Mr. WESTERMAN. So what about jurisdiction by law? Do states 

have the level authority to regulate coal mining? 

Dr. JOHNSON. I am not sure of the question, sir? 

Mr. WESTERMAN. Do states have the legal authority to regulate 

coal mining? I believe in Alabama—— 

Dr. JOHNSON. Yes, sir. 

Mr. WESTERMAN [continuing]. You all have that there. 

Dr. JOHNSON. Yes, sir. We do. 

Mr. WESTERMAN. All right. So in Alabama, coal mining is 

primarily regulated by the state? 

Dr. JOHNSON. Yes, it is. 

Mr. WESTERMAN. All right. Do you think OSM has taken the 

states’ input seriously and made an effort to use their expertise to 

inform the environmental review? 

Dr. JOHNSON. I think they missed a good opportunity on this. To 

the extent that they have included or taken our comments to heart, 

reviewed them and given credence to them, we do not know yet because we have not seen a final draft EIS. 

Mr. WESTERMAN. Do you think it makes sense for OSM to ignore 

the special expertise that the states have? 

Dr. JOHNSON. No, sir. I do not. 

Mr. WESTERMAN. So the states have the expertise, and they have 

jurisdiction to regulate mining in their states; yet OSM is trying 

to make a rule without taking that into account. Is that a fair assessment, Dr. Johnson? 

Dr. JOHNSON. That would be my opinion. Yes, sir. 

Mr. WESTERMAN. Mr. Hunter, do you agree with that? 

Mr. HUNTER. In general, yes, Congressman. 

Mr. WESTERMAN. All right. Mr. Chairman, I yield back. 

Mr. GOHMERT. Thank you. I appreciate the gentleman from 

Arkansas. 

At this time I recognize the gentlelady from American Samoa, 

Mrs. Radewagen, for 5 minutes. 

Mrs. RADEWAGEN. Thank you, Mr. Chairman. I want to thank 

the panel for being here today. 

Let me start with Dr. Johnson. When did Alabama first become 

involved in the environmental review for the Stream Protection 

Rule? 

Dr. JOHNSON. We signed an MOU with OSM; I believe the date 

of that MOU was August 26 or 28, 2010. 

37 

Mrs. RADEWAGEN. And then Alabama became a cooperating 

agency. Right? 

Dr. JOHNSON. That is correct. 

Mrs. RADEWAGEN. How did that happen? Did Alabama approach 

OSM or did OSM approach you? 

Dr. JOHNSON. No. OSM sent me a letter, as Director of the agency, and invited me to participate as a cooperating agency. 

Mrs. RADEWAGEN. Did OSM explain why they were asking the 

states to be cooperating agencies? 

Dr. JOHNSON. The letter was fairly explicit on why they were 

asking, yes. It detailed what they were trying to accomplish, and 

the fact that the National Environmental Policy Act also mandated 

that they give the states an opportunity to become cooperating 

agencies. 

Mrs. RADEWAGEN. I see. So looking back, were your expectations 

met? Do you think OSM held up their side of the agreement? 

Dr. JOHNSON. I do not believe that we went into this expecting 

to be brought in so late in the game on developing the EIS. By the 

time we were given any draft materials to look at, the process had 

been drafted out in pretty much a very finished format. 

We really did not get a chance to look at any of the data or studies that were referred to in the EIS. We were never really given 

a complete copy of it to see how it all meshed together. So in the 

end, it was my opinion that it was a waste of my time. 

Mrs. RADEWAGEN. Thank you, Dr. Johnson. 

Mr. Baker, do you have a similar understanding of what it 

means to be a cooperating agency? 

Mr. BAKER. Yes, ma’am. I do. 

Mrs. RADEWAGEN. Do you think the drafts OSM provided to the 

states years ago fully satisfy the NEPA regulations and the MOU, 

or does Virginia expect to be able to participate more 

substantively? 

Mr. BAKER. Virginia would like to participate more substantively. 

What was submitted to us early on was lacking a lot of technical 

information. There were things referenced that we never received 

a copy of, to be able to actually look at the rule as needed. 

Mrs. RADEWAGEN. Do you agree, Mr. Hunter? 

Mr. HUNTER. Yes, Congresswoman. 

Mrs. RADEWAGEN. Thank you, Mr. Chairman. I yield back. 

Mr. GOHMERT. I thank the gentlelady and appreciate her as one 

of the most faithful members of the overall Natural Resources 

Committee. I appreciate all those who have been here for this. 

As the last one who has not asked questions, I want to go back 

to Mr. Hunter. When you were finishing your statement, I want to 

make sure I was clear on what you were saying. Is West Virginia 

withdrawing from the memorandum of understanding with OSM? 

Mr. HUNTER. Yes, Mr. Chairman. 

Mr. GOHMERT. And when was that decision made? 

Mr. HUNTER. That decision was communicated by letter to the 

Director of OSM yesterday, and a copy was sent to him electronically this morning. 

Mr. GOHMERT. I see. Is your microphone on? 

Mr. HUNTER. I believe it is. 

Mr. GOHMERT. Now I hear you, yes, as you lean forward. 

38 

I know you gave your written statement, but since that has just 

occurred yesterday and today, would you summarize in a nutshell 

exactly why that decision was made in the last day or two? 

Mr. HUNTER. The thinking that went into that decision is 

basically what has been the substance of the testimony today. 

Mr. GOHMERT. All right. So did the last meeting you had with 

OSM play a part in the decision of West Virginia? 

Mr. HUNTER. That is correct. When it became clear that the rules 

were going to be published without being circulated back with the 

cooperating agencies for input and collaboration, it is felt that we 

could provide better comments in the public participation process; 

which according to NEPA, they are required to respond to in writing. We felt that we could have a more effective input by assuming 

another role in the process. 

Mr. GOHMERT. I appreciate that. Sorry for the lack of input the 

states have had. I hope all of you appreciate—everybody on this 

committee, on both sides of the aisle, wants a clean environment. 

We want citizens protected. 

I love climbing up mountains. I am not in as good a shape as I 

once was; 16,000 feet is the highest I have ever been. But I love 

mountaintops. I love the outdoors. And I think we all want to see 

our environment preserved and have areas where we can enjoy the 

beauty that God has provided. 

At the same time, Mr. Lamborn brought up the point that when 

people are in poverty—the study indicated people in poverty have 

a lot more problems with health than most other people. That is 

the issue. As I have seen in east Texas, we do not have mountaintop mining; but I have seen people lose their jobs in the energy 

area, and they live day to day. They cannot plan on going to the 

doctor, whether it is because of a deductible or one thing or 

another. 

Anyway, we want to see the economy do well. And it sure appears clear, from everything I have seen in my 10 years on this 

committee and from what you can read and find out, the only place 

that there is really any good done in preserving the environment 

is where the economy is doing well. So there is obviously a tradeoff here. 

Mr. White, I know you had mentioned that you were concerned 

about having a state agency testify, that you did not believe were 

properly concerned for the citizens’ well-being, basically in effect. 

From where I sit, having been a judge and a chief justice, I mean, 

this has been my life—you follow the law, and when the law says 

cooperating agencies are supposed to have input, you let them have 

input. 

Then if they have not been a good agency, then that ends up 

coming in as evidence to show that their opinion should not be 

worth what somebody else’s is. But you do not just fail to follow 

the law when the law says you are going to get input from the cooperating agencies, including the state cooperating agencies, 

throughout the process. 

The process is failing. It is violating the law unless that is followed. We do hope to get responses from OSM on this matter. We 

hope to get the rest of the documents that we have requested. My 

39 

time is expired, but I really appreciate all of you being here today, 

and I do mean all four of you. 

Would you like to have an additional round or questions? Oh, I 

am sorry. I did not look up and see Mr. Mooney has not asked 

questions yet. Mr. Mooney, I had explained earlier that you were 

most unavoidably detained, or otherwise you were going to be here 

to introduce Mr. Hunter. Since you are now here, you are recognized for 5 minutes. 

Mr. MOONEY. Thank you, Mr. Chairman. I just came from the 

Floor. I gave a little talk on the research and development tax 

credit. I actually believe I have two of my constituents here, so welcome, and thanks for coming. 

I actually do want to address my first question to Mr. White. I 

read your testimony last night, and I know you have been very involved in the community and activities. Of course, the concerns 

from the folks that I represent, and that you live and work with, 

and know in the coal industry, is the jobs. 

I have a bill that I think will help save those jobs. I am certain 

it will. I am seeing you are not supportive of it. So what about the 

jobs? Is that a concern to you for your friends and neighbors? 

Mr. WHITE. My primary concern is the health impacts that come 

from this technique of mining, which have been proven through 

multiple studies to have impacts to human health. 

Mr. MOONEY. Not having a job is not good for your health, either. 

Would you agree with that? 

Mr. WHITE. You cannot legislate or deregulate a market value for 

coal. As we know, the market value right now is what is actually 

impeding the coal industry from making a profit. It has nothing to 

do with regulations. 

Mr. MOONEY. I think there are a lot of factors, but appreciate 

you coming and testifying. 

Mr. Hunter, another constituent of mine, has West Virginia 

participated in an environmental review process like this before? 

Mr. HUNTER. Yes. 

Mr. MOONEY. Can you tell me more about what the process was 

like compared to how the Office of Surface Mining has handled this 

environmental review for the Stream Protection Rule? 

Mr. HUNTER. As I explained earlier to the committee while you 

were on the Floor, the agency, West Virginia DEP, participated as 

a co-lead agency with the mountaintop mining EIS that was concluded in basically 2005. 

We did that as a co-lead, and we sat in the room and wrote with 

them. Then, with the EISs concerning public land, we receive information back and forth throughout the process until the draft is 

published, and then after the draft we help them in the final. 

It was my understanding in talking to other people with more familiarity that cooperating agencies generally receive a great 

amount of information from the lead agency, contrary to what happened here. And with regard to the 2008 rulemaking by the Office 

of Surface Mining, it was tiered off, if you will, the 2005 EIS. It 

is my recollection we were not sent a letter requesting to be cooperating agencies in that particular venture. So that is my experience 

with EISs. 

40 

Mr. MOONEY. Do you think it would be a fair characterization, 

would you say, that the Office of Surface Mining’s current treatment of the states is unprecedented? 

Mr. HUNTER. I missed the last part of that question. 

Mr. MOONEY. Unprecedented? 

Mr. HUNTER. That is correct. 

Mr. MOONEY. Without precedent. 

Mr. HUNTER. That is correct. 

Mr. MOONEY. Now, Dr. Johnson, a couple of questions for you. 

What in particular do you think OSM should be doing to better engage with the states? 

Dr. JOHNSON. I believe that, prior to having developed a draft 

EIS, they should have involved the states as cooperating agencies 

in the process of actually putting together the data that was necessary to evaluate the issues that they wanted to evaluate, in 

terms of putting out a new proposed rule—not bring the states in 

in the middle of the process when all of that had already been 

done. 

Keep in mind that we are not necessarily attacking any proposed 

rule, because there has not been one yet. We have not seen that 

rule. All we are attacking is the process by which they went forward with putting together the EIS. We feel like we were told and 

promised that we would get a full copy of the proposed draft EIS 

before it was published and would have a chance to review it, and 

it was not given to us. 

Mr. MOONEY. All right. Just to follow up, generally speaking, is 

OSM’s current treatment of the states in line with your previous 

experiences with OSM, or would you say this is a particularly troublesome period for OSM’s relationship with states like the one you 

represent? 

Dr. JOHNSON. You are talking about outside of the EIS process? 

You are talking about in general? 

Mr. MOONEY. In general. 

Dr. JOHNSON. In general, I would say that our experience with 

OSM over the last 6 or 7 years has not been a very rewarding one. 

Mr. MOONEY. OK, thank you. Mr. Chairman, I will yield back. 

Mr. GOHMERT. I thank the gentleman. 

At this time we will start a second round. Since we have had 

numerous Republicans ask questions, at this time I would like to 

recognize the gentlelady, Mrs. Dingell, for 5 minutes. 

Mrs. DINGELL. Thank you, Mr. Chairman. I will be brief. 

Mr. Mooney, you missed earlier. I did ask them on record before 

the rule was issued in 2008 if the Bush administration had solicited any of them, and they had not. So actually some have said 

that this Administration has been more inclusive than that, and I 

just wanted that on the record. I am not saying it is right or wrong 

for either administration, but I wanted that documented. 

I would also like, Mr. Chairman, to put in the record with reference to a Yale health study, which is actually not a Yale health 

study. It was done by a professor, Dr. Jonathan Borak, who teaches 

in the Public Health Department there; but it was paid for by the 

National Mining Association. When asked if it was a Yale study, 

he said no, because he would have had to have undergone a very 

complicated application process. 

41 

So I do want to, if that is all right with you—— 

Mr. GOHMERT. Without objection. 

Mrs. DINGELL [continuing]. Put that into the record so we have 

exactly that. 

Then, Mr. Hunter, I would just like to ask you a couple questions. There is a concern in some mountaintop communities that 

the state regulators have been, in essence, captured by the industries they regulate. One of the ways this happens is when mining 

companies see violations imposed by the agency as a cost of doing 

business rather than an incentive to avoid collecting notices of 

violation. 

Do you think the West Virginia DEP has sufficient incentives in 

place to defer repeat offenders? 

Mr. HUNTER. I believe the West Virginia DEP has in place an 

effective regulatory program, yes. 

Mrs. DINGELL. So let me ask you, how long has Keystone 

Development No. 2 been in operation? 

Mr. HUNTER. The most recent Keystone permit, I think, has only 

been in operation less than a year. 

Mrs. DINGELL. May 2014 is what I saw. But in that time, do you 

know how many violations have been accumulated? 

Mr. HUNTER. No, Congresswoman. 

Mrs. DINGELL. I am going to put them in the record—over 

20 violations and 3 cessation of work orders. Would it seem to you 

like maybe the coal business sort of regards these violations as the 

cost of doing business? 

Mr. HUNTER. I do not have an opinion on that, really. 

Mrs. DINGELL. So may I put that in the record, Mr. Chair? 

Mr. GOHMERT. Without objection. 

Mrs. DINGELL. I have 2 minutes. Mr. White, let me ask you a 

question. What do you see in your community, and communities 

like yours, when mountaintop removal companies take an abandoned mine but reclaim it? What does the re-reclamation look like? 

Has the mountaintop been restored? What about the vegetation? 

Talk about what really happens. 

Mr. WHITE. Well, to be honest, Congresswoman, you cannot put 

something back that God created the way he created it. It is essentially a lifeless landscape now, not up to Appalachian forest standards, I should add. It may be considered full of life for a Midwest 

prairie, but not for an Appalachian forest. 

There are basically just open expanses of nothingness. Often a 

rebuttal from the mining industry is that they will use this land 

for economic diversification or economic processes that are not existing. When you have MTR sites like the Hobet 21 mine site, that 

is large enough to fit 75 percent of the city of Manhattan in, and 

it is just sitting there vacant, they obviously have no use any 

more—not naturally, not for economic development. 

Mrs. DINGELL. Thank you, Mr. White. I will yield back the 

balance. 

Mr. GOHMERT. All right. Thank you. I have a few questions. 

For one thing, it is my understanding that the report that was 

allegedly leaked regarding an analysis of the effects of the Stream 

Protection Rule indicates or predicted there would be perhaps 

7,000 jobs lost as a result of this rule. 

42 

Mr. White, I wanted to make sure I understood you accurately 

on one of the things you said. Did you say you cannot regulate the 

value of coal? Is that what you were saying? 

Mr. WHITE. Yes. We have known for a very long time that the 

coal industry has been in a downturn. There was even a USGS 

study published. 

Mr. GOHMERT. But I am just particularly curious about your 

feeling you cannot regulate the value of coal. 

Mr. WHITE. Currently, with the market and demand for natural 

gas—— 

Mr. GOHMERT. But you think that the government cannot regulate the value of coal? That government does not have any effect 

on the value of coal? Is that what you believe? 

Mr. WHITE. The stock market is based on supply and demand. 

Mr. GOHMERT. I am asking you, Mr. White, what you believe. Do 

you believe the government cannot have an effect on the value of 

coal? 

Mr. WHITE. I believe that I have answered the question on how 

I believe. 

Mr. GOHMERT. All right, then let me tell you what our President 

said. The President of the United States, while he was a candidate, 

said that if he were President, basically, he would make the value 

or the price of energy produced with coal skyrocket. 

So our President believes he can make the price of coal-powered 

energy skyrocket. That means if he can make the price of energy 

skyrocket, then it will drive down the value of coal and make it almost worthless because nobody is going to use it to power energy. 

And it means people like the 80-plus-year-old lady in my district 

that said, ‘‘I was raised in a home that only had one source of energy—a wood-burning stove. Because of what is now happening to 

the price of energy, I am afraid that is the way I am going to die. 

I am going to die in a home with a wood-burning stove and nothing 

else because I cannot afford it.’’ 

So I would encourage you to do a little more research into just 

how profound the effect on the price of energy by over-regulation 

can be. It really does make a difference. 

And I do want to ask Mr. Hunter—I don’t know if you know or 

not, but are you aware of what happened to the poverty level in 

West Virginia since President Obama took office? 

Mr. HUNTER. Mr. Chairman, I am unfamiliar with those 

numbers. 

Mr. GOHMERT. Well, I am curious. I want to look into it because 

I know that the voters, certainly, in West Virginia felt very strongly about what was happening to their way of life and their standard of living, so much so that they changed people that were 

representing them because of how strongly they felt about what 

was happening to their standard of living. 

So in any event, those are matters that I have observed. I do not 

think there should be any question that, by regulation, the government can completely put one industry out of business. 

I can also tell you that there have been indications if this 

Administration persists with the war on coal that it has basically 

had—and I have to give it to President Obama, that is one campaign promise he is keeping; been a lot of them that he has not, 

43 

that is one he is keeping—but if the EPA does what they are talking about doing, then this Administration could very well force potential brownouts in Texas, where we have more energy than we 

know what to do with it just because of over-regulation. 

Our skies are getting cleaner every year. Our water is getting 

cleaner. The state agencies are doing a good job. But the Federal 

Government can make life absolutely miserable for people in their 

80s that cannot afford energy any more. 

Let’s see. Was there anybody else that had not asked questions 

twice? Did you have another question, Mrs. Radewagen? Yes. Then 

the chair recognizes Mrs. Radewagen for 5 minutes. 

Mrs. RADEWAGEN. Thank you, Mr. Chairman. 

A question for Mr. Hunter. Mr. Hunter, are you concerned about 

West Virginia being associated with this rule and the EIS draft? 

Mr. HUNTER. That is a difficult question to answer. We are concerned more with the effect of what comes out in the rule and how 

it may or may not affect the ability to regulate mining operations, 

which would be permit or not permit them. 

As far as lending credibility to a process where the agency did 

not contribute to what the preferred alternative was, there is some 

concern about the impression it would give the public; but we are 

more concerned about getting it right. 

Mrs. RADEWAGEN. Thank you. I wanted to ask Dr. Johnson the 

same question. 

Dr. JOHNSON. I originally drafted a letter to Director Pizarchik 

in early 2011, shortly after we had received the last chapter of the 

EIS. It was my intention to withdraw at that time as a cooperating 

agency. I did not do it after talking with some of the other cooperating states, because we felt like that it was possible that we would 

be re-engaged in this process some time before publication of the 

final rule and the draft EIS. 

That has not happened, and my sole purpose for withdrawing 

from this was to make it known that the state of Alabama did not 

believe that its participation in this process should be used to validate the draft EIS. 

Mrs. RADEWAGEN. So you had intended to withdraw but did not 

withdraw, or did you withdraw from—— 

Dr. JOHNSON. I did not until February of this year. 

Mrs. RADEWAGEN. Because you were concerned about whether 

the document actually reflected Alabama’s input? 

Dr. JOHNSON. That is correct. 

Mrs. RADEWAGEN. What about the other states that have 

withdrawn? Did they withdraw for similar reasons? 

Dr. JOHNSON. I cannot speak for the other states. Now, Mr. 

Hunter is here, and I think he has already articulated that. I believe I mentioned in my opening statement that there were four 

states that had withdrawn; at the time that I prepared my written 

statement, there were four. But there are now six, counting the 

state of West Virginia. Everything that I have seen in all my discussions with these other states, the reasons are similar. 

Mrs. RADEWAGEN. So are you saying that some states are 

choosing not to withdraw, or to withdraw from their MOUs? 

Dr. JOHNSON. I believe there are two that have chosen not to, out 

of the original nine. 

44 

Mrs. RADEWAGEN. I see. Is it true—and this is my last 

question—is it true that the states that remain as cooperating 

agencies retain their right to sue? 

Dr. JOHNSON. Is that question directed to me? 

Mrs. RADEWAGEN. Yes, sir. 

Dr. JOHNSON. And you asked, is it true that if the states remain, 

they retain the—— 

Mrs. RADEWAGEN. If they remain as cooperating agencies, do 

they retain their right to sue? 

Dr. JOHNSON. I do not know the answer to that question. 

Mrs. RADEWAGEN. Mr. Hunter? 

Mr. HUNTER. That is kind of a legal opinion. I will give you my 

assessment of it; I do not want to be rendering legal advice on the 

matter. But I understand, from the way that it is all structured, 

that when you look at the guidance and the case law, that yes, they 

would retain the right to exercise their right to bring litigation. 

Mrs. RADEWAGEN. What do you say, Mr. Baker? 

Mr. BAKER. Virginia has not made any determinations as far as 

that matter is concerned. 

Mrs. RADEWAGEN. Thank you, gentlemen. 

Mr. Chairman, I yield back. 

Mr. GOHMERT. I thank the gentlelady. 

Mr. Mooney, you are recognized for 5 minutes. 

Mr. MOONEY. Thank you, Mr. Chairman. 

When the environmental impact study is published, the seals of 

the states who acted as cooperating agencies will be on the cover 

tacitly endorsing the document. So Mr. Baker, in your testimony, 

you mention that Virginia has asked to include a statement with 

the draft environmental impact study explaining and clarifying the 

role that the states played in the review process. 

Do you have any concerns about staying in and having Virginia 

associated with this rule and the National Environmental Policy 

Act review? 

Mr. BAKER. Well, our concern is mainly that we have not been 

involved in the process as we feel like the process should go forward. We want to remain in the process, but we would like for the 

process to continue as it is set out to be, with the cooperating agencies being able to participate in this process fully and to have our 

input recognized as we move through this particular process. 

Mr. MOONEY. So what would you like the public to know about 

Virginia’s participation in the environmental impact statement 

drafting process, specifically for the Stream Protection Rule? 

Mr. BAKER. Exactly what our involvement was, not necessarily 

that our seal is on there, but that we had no participation in the 

process. 

Mr. MOONEY. Dr. Johnson, this next one is for you. When was 

the draft environmental impact statement originally supposed to be 

finalized? 

Dr. JOHNSON. I believe the finalization date was February of 

2011. I cannot swear to that, but I believe that is what they had 

on their original schedule. They subsequently pushed that into 

early or late spring, but I do not know the exact date that they put 

on it at that time. 

45 

Mr. MOONEY. So 2011; OSM has delayed this publication for 

years, but could not give the states more time to provide thorough 

comments on the environmental review documents? 

Dr. JOHNSON. That is correct. 

Mr. MOONEY. OK, well that is it for me, Mr. Chairman. Thank 

you very much. I yield back my time. 

Mr. GOHMERT. I thank the gentleman. 

At this time I would like to ask unanimous consent to enter 

these peer-reviewed papers, one on mortality disparities in 

Appalachia, which found that mortality rates in coal mining counties were independently related to poverty, level of education, lifestyle choices, and other factors not related to mining. Do we know 

who that was by so we can—— 

Mrs. DINGELL. I was just going to ask that question. And who 

paid for it? 

Mr. GOHMERT. Is that the one that she is talking about? 

Mrs. DINGELL. So can we just document who has paid for it and 

all that? Thank you, Mr. Chair. 

Mr. GOHMERT. Yes. We will make sure that we get that in the 

record, who exactly did the study and where it came from, because 

you had pointed out it was not an official Yale study, if that is the 

same one. And also another paper, ‘‘The influence of 

misclassification bias on the reported rates of congenital anomalies 

on the birth certificates for West Virginia—A consequence of an 

open-ended query.’’ 

Do we know who did that? It is underneath? Oh, I see. Yes, here 

it is. All right. So that is by Ji Li, Shayhan Robbins and Steven 

Lamm. And then another—oh, that is the same people, actually, 

plus Elizabeth Dissen, Rusan Chen, and Manning Feinleib. And 

that is the one—OK. 

Mrs. DINGELL. Yes. That is the one that was paid for by the 

Mining—— 

Mr. GOHMERT. Yes, that you were talking about. It was not an 

official Yale study, but done by Jonathan Borak, M.D. So without 

objection. And with those clarifications, those will be made part of 

the record. 

Anyway, thank you to each of our four witnesses for being here 

today, for providing the information you have that will allow us to 

look more deeply into the issue and make sure the law is properly 

being followed. 

The members of the committee may have some additional questions for the witnesses, and if so, they would ask you to respond 

in writing. Under Committee Rule 4(h), the hearing record will be 

held open for 10 business days for such responses. 

If there is no further business at this time, without objection, the 

subcommittee is adjourned. 

[Whereupon, at 3:39 p.m., the subcommittee was adjourned.] 

46 

[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]

Article Relating to Impacts of Mountaintop Mining 

47 

48 

49 

50 

51 

52 

53 

54 

55 

56 

***** 

[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE

COMMITTEE’S OFFICIAL FILES]

List of Permit Violations from the West Virginia Department of 

Environmental Protection Web site specifically for Keystone 

Industries 

Memorandum of Understanding between the Office of Surface 

Mining Reclamation and Enforcement and State of Alabama 

Surface Mining Commission for EIS activities under NEPA for 

Stream Protection rulemaking—August 25, 2010 

Letters to Director Joseph Pizarchik from states terminating the 

MOU with participation as a ‘‘cooperating agency’’ 

— Alabama—February 10, 2015 (See page 17 for a copy of this 

letter, submitted as part of Mr. Johnson’s testimony) 

— Indiana—July 7, 2015 

— Kentucky—May 13, 2015 

— Montana—July 9, 2015 

— New Mexico—February 20, 2015 

— Texas—March 12, 2015 

— Utah—February 23, 2015 

— West Virginia—May 19, 2015 

— Wyoming—May 22, 2015 

Other Articles Relating to Impacts of Mountaintop Mining 

— The Influence of Misclassification Bias on the Reported 

Rates of Congenital Anomalies on the Birth Certificates for 

West Virginia—A Consequence of an Open-ended Query. Ji 

Li, Shayhan Robbins, and Steven H. Lamm. Birth Defects 

Research (Part A): Clinical and Molecular Teratology 

97:140–151 (2013). 

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— Are Residents of Mountain-Top Mining Counties More Likely to Have Infants with Birth Defects? The West Virginia 

Experience. Steven H. Lamm, Ji Li, Shayhan A. Robbins, 

Elisabeth Dissen, Rusan Chen, and Manning Feinleib. Wiley 

Periodicals, Inc. (November 12, 2014). 

— Study finds toxins from mountaintop coal mining sites. Alice 

Su. The Center for Public Integrity (July 20, 2012). 

— The association between mountaintop mining and birth 

defects among live births in central Appalachia, 1996–2003. 

Melissa M. Ahern, Michael Hendryx, Jamison Conley, Evan 

Fedorko, Alan Ducatman, and Keith J. Zullig. Environmental Research (May 19, 2011). 

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