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68-511 PDF 2012

JOBS AT RISK: COMMUNITY IMPACTS 

OF THE OBAMA ADMINISTRATION’S 

EFFORT TO REWRITE THE STREAM 

BUFFER ZONE RULE 

OVERSIGHT FIELD HEARING 

BEFORE THE

SUBCOMMITTEE ON ENERGY AND 

MINERAL RESOURCES 

OF THE

COMMITTEE ON NATURAL RESOURCES 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

Monday, September 26, 2011, in Charleston, West Virginia 

Serial No. 112-66 

Printed for the use of the Committee on Natural Resources 

( 

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

or 

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

(II) 

COMMITTEE ON NATURAL RESOURCES 

DOC HASTINGS, WA, Chairman 

EDWARD J. MARKEY, MA, Ranking Democrat Member 

Don Young, AK 

John J. Duncan, Jr., TN 

Louie Gohmert, TX 

Rob Bishop, UT 

Doug Lamborn, CO 

Robert J. Wittman, VA 

Paul C. Broun, GA 

John Fleming, LA 

Mike Coffman, CO 

Tom McClintock, CA 

Glenn Thompson, PA 

Jeff Denham, CA 

Dan Benishek, MI 

David Rivera, FL 

Jeff Duncan, SC 

Scott R. Tipton, CO 

Paul A. Gosar, AZ 

Rau ́l R. Labrador, ID 

Kristi L. Noem, SD 

Steve Southerland II, FL 

Bill Flores, TX 

Andy Harris, MD 

Jeffrey M. Landry, LA 

Charles J. ‘‘Chuck’’ Fleischmann, TN 

Jon Runyan, NJ 

Bill Johnson, OH 

Dale E. Kildee, MI 

Peter A. DeFazio, OR 

Eni F.H. Faleomavaega, AS 

Frank Pallone, Jr., NJ 

Grace F. Napolitano, CA 

Rush D. Holt, NJ 

Rau ́l M. Grijalva, AZ 

Madeleine Z. Bordallo, GU 

Jim Costa, CA 

Dan Boren, OK 

Gregorio Kilili Camacho Sablan, CNMI 

Martin Heinrich, NM 

Ben Ray Luja ́n, NM 

John P. Sarbanes, MD 

Betty Sutton, OH 

Niki Tsongas, MA 

Pedro R. Pierluisi, PR 

John Garamendi, CA 

Colleen W. Hanabusa, HI 

Vacancy 

Todd Young, Chief of Staff 

Lisa Pittman, Chief Counsel 

Jeffrey Duncan, Democrat Staff Director 

David Watkins, Democrat Chief Counsel 

SUBCOMMITTEE ON ENERGY AND MINERAL RESOURCES 

DOUG LAMBORN, CO, Chairman 

RUSH D. HOLT, NJ, Ranking Democrat Member 

Louie Gohmert, TX 

Paul C. Broun, GA 

John Fleming, LA 

Mike Coffman, CO 

Glenn Thompson, PA 

Dan Benishek, MI 

David Rivera, FL 

Jeff Duncan, SC 

Paul A. Gosar, AZ 

Bill Flores, TX 

Jeffrey M. Landry, LA 

Charles J. ‘‘Chuck’’ Fleischmann, TN 

Bill Johnson, OH 

Doc Hastings, WA, ex officio 

Peter A. DeFazio, OR 

Madeleine Z. Bordallo, GU 

Jim Costa, CA 

Dan Boren, OK 

Gregorio Kilili Camacho Sablan, CNMI 

Martin Heinrich, NM 

John P. Sarbanes, MD 

Betty Sutton, OH 

Niki Tsongas, MA 

Vacancy 

Edward J. Markey, MA, ex officio 

(III) 

CONTENTS 

Page 

Hearing held on Monday, September 26, 2011 ..................................................... 1 

Statement of Members: 

Capito, Hon. Shelley Moore, a Representative in Congress from the State 

of West Virginia ............................................................................................ 5 

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

Johnson, Hon. Bill, a Representative in Congress from the State of Ohio .. 7 

Prepared statement of ............................................................................... 9 

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

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

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

Statement of Witnesses: 

Bostic, Jason D., Vice-President, West Virginia Coal Association ............... 70 

Prepared statement of ............................................................................... 72 

Carey, Michael, President, Ohio Coal Association ......................................... 66 

Prepared statement of ............................................................................... 68 

Clarke, Thomas L., Director, Division of Mining and Reclamation, West 

Virginia Department of Environmental Protection .................................... 15 

Prepared statement of ............................................................................... 17 

Corra, John, Director, Wyoming Department of Environmental Quality .... 42 

Prepared statement of ............................................................................... 46 

Fredriksen, Katharine A., Senior Vice President, Environmental Strategy 

& Regulatory Affairs, CONSOL Energy ..................................................... 77 

Prepared statement of ............................................................................... 79 

Gunnoe, Maria, Community Organizer .......................................................... 88 

Prepared statement of ............................................................................... 90 

Horton, Roger D., Co-Founder, Mountaintop Mining Coalition ................... 60 

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

Lambert, Bradley C., Deputy Director, Virginia Department of Mines, 

Minerals and Energy .................................................................................... 31 

Prepared statement of ............................................................................... 37 

Manchin, Hon. Joe, a Senator in Congress from the State of West 

Virginia .......................................................................................................... 14 

Tomblin, Hon. Earl Ray, Governor, State of West Virginia .......................... 10 

Prepared statement of ............................................................................... 11 

Webb, Bo, President/Current Member, Coal River Mountain Watch .......... 82 

Prepared statement of ............................................................................... 84 

Additional materials supplied: 

Alabama Surface Mining Commission; Indiana Department of Natural 

Resources; Kentucky Department of Natural Resources; Railroad 

Commission of Texas; Utah Division of Oil, Gas and Mining; Virginia 

Department of Mines, Minerals and Energy; and Wyoming Department 

of Environmental Quality, Letter to The Honorable Joseph Pizarchik 

dated November 23, 2010, submitted for the record .................................. 110 

Interstate Mining Compact Commission (IMCC), Statement submitted 

for the record ................................................................................................. 114 

McDonnell, Hon. Robert F., Governor, Commonwealth of Virginia, Letter 

to The Honorable Ken Salazar dated March 8, 2011, submitted for 

the record ....................................................................................................... 33 

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

Reclamation and Enforcement, Response to Virginia Governor Robert 

McDonnell dated May 6, 2011 ..................................................................... 35 

‘‘Rahall Welcomes Monday Hearing on Stream Buffer Zone,’’ Press release 

submitted for the record ............................................................................... 109 

Western Governors’ Association, Letter to The Honorable Ken Salazar 

dated February 27, 2011, submitted for the record ................................... 43 

(1) 

OVERSIGHT FIELD HEARING ON ‘‘JOBS AT 

RISK: COMMUNITY IMPACTS OF THE OBAMA 

ADMINISTRATION’S EFFORT TO REWRITE 

THE STREAM BUFFER ZONE RULE.’’ 

Monday, September 26, 2011 

U.S. House of Representatives 

Subcommittee on Energy and Mineral Resources 

Committee on Natural Resources 

Charleston, West Virginia 

The Subcommittee met, pursuant to call, at 9:00 a.m., in the 

Historical Courtroom 4, 407 Virginia Street, East, Charleston, West 

Virginia, The Honorable Doug Lamborn [Chairman of the Subcommittee] presiding. 

Present: Representatives Lamborn and Johnson. 

Also Present: Representative Capito. 

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

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

is two Members. The Subcommittee on Energy and Mineral Resources is meeting today to hear testimony for an oversight hearing 

on ‘‘Jobs at Risk: Community Impacts of the Obama Administration’s Effort to Rewrite the Stream Buffer Zone Rule.’’ Under Committee Rule 4(f), opening statements are limited to the Chairman 

and Ranking Member of the Subcommittee. However, I ask unanimous consent that Mrs. Capito and Mr. Johnson be permitted to 

give an opening statement and to include any other Members’ 

opening statements in the hearing record submitted to the Clerk by 

close of business today. 

Hearing no objection, so ordered. I now recognize myself for five 

minutes. 

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

Mr. LAMBORN. Thank you everyone for being here today. I’m 

Congressman Doug Lamborn of Colorado, and I am the Chairman 

of the House Natural Resources Committee’s Subcommittee on 

Energy and Mineral Resources. 

We are here today to hear testimony on the job and community 

impacts stemming from the Obama Administration’s rewrite of the 

stream buffer zone rule. 

All right. Thank you. OK. Thank you for your patience. Technical 

glitch there. 

In 1996, the National Wilderness Institute published the American Conservation Ethic, which comprised eight principles that the 

nation’s policymakers should consider in the development of environmental policies and associated laws, rules and regulations. Several of those principles are worth examining in light of the topic 

of today’s hearing, ‘‘Jobs at Risk, Community Impacts of the 

2 

Obama Administration’s Effort to Rewrite the Stream Buffer Zone 

Rule.’’ 

An independent contractor hired by the Administration found 

that the rewritten stream buffer zone rule will result in the direct 

loss of over 7,000 jobs nationwide and place an additional 29,000 

people living in the Appalachian Basin below the poverty level. 

Some believe that this is a low number. In any case, the numbers 

do not even begin to assess the indirect cost to jobs and to our 

economy if and when the price of electricity goes up. 

The first principle of the American Conservation Ethic provides 

important insight that we should all take to heart—that is, people 

are the most important resource. Continuing to work on a rule that 

knowingly will directly eliminate thousands of jobs and will result 

in 29,000 people living below the poverty level is inexcusable policy. It is our job as lawmakers to institute policies that create jobs 

and make lives better for Americans. Instead, this Administration 

is pursuing a rule that will do exactly the opposite. 

However, rather than reinstating the 2008 rule after the economic impacts of the Administration’s preferred alternative in the 

proposed rule were leaked to the press, the Administration instead 

severed ties with the initial contractor, Polu Kai, and has continued down this ill-advised path of rulemaking. 

I am deeply concerned that the Obama Administration may be 

guilty of suppressing inconvenient facts simply because they stand 

in the way of a different agenda. Chairman Hastings and I have 

initiated an investigation into the Office of Surface Mining’s attempt to rewrite the 2008 stream buffer zone rule and the ongoing 

fiasco resulting from the Administration’s rushed effort to fast 

track major changes to the nation’s coal mining regulatory program 

established by the Surface Mining Control and Reclamation Act of 

1977. 

Let’s examine Principle Four of the American Conservation 

Ethic, which states, ‘‘Our efforts to reduce, control and remediate 

pollution should achieve real environmental benefits.’’ The environmental benefit of the proposed stream buffer zone rule is achieved 

through less mining; that is, less mining of a vital national resource, coal, a resource that currently provides thousands of Americans with good-paying jobs and more than 45 percent of the nation’s electrical power. 

Twenty-two of the 25 states with the lowest electricity costs get 

at least 40 percent or more of their electricity from coal-fired power 

plants. And just exactly what are the so-called benefits of less coal 

mining? Certainly not monetary. 

Reducing coal production nationwide will adversely impact revenues to Federal, State and local treasuries. It will reduce monies 

flowing into the Surface Mining Control and Reclamation Act 

Abandoned Mine Land Fund, where some of the interest earned is 

used to support the United Mine Workers of America retirees. 

Furthermore, reducing the amount of coal available for power 

generation will lead to higher electricity costs for American businesses and families, which lowers our standard of living, and thousands of Americans will be put out of work. 

We have repeatedly seen the unforeseen consequences and job 

loss that can follow unnecessary regulatory changes. The final 

3 

stream buffer zone rule issued in December of 2008 was the result 

of a rulemaking process that took five years and was supported by 

5,000 pages of environmental analysis and included thirty original 

research projects. 

That brings me to the final principle from the American Conservation Ethic that I’ll share with you this morning. Principle 

Seven states, ‘‘Science should be employed as a tool to guide public 

policy.’’ The 2008 stream buffer zone rule employed science to guide 

public policy as exemplified by the extensive research conducted 

during the rulemaking process. 

The 2008 rule was more protective of the environment than the 

original 1983 rule issued during the Reagan Administration, the 

rule that is now in effect since the 2008 rule has been shelved by 

the current Administration. 

We have a full hearing today with ten witnesses, including 

Governor Earl Ray Tomblin, regulators from the states of West 

Virginia, Virginia and Wyoming, the West Virginia and Ohio Coal 

Associations, the Mountaintop Mining Coalition, CONSOL Energy, 

Coal River Community Watch and a community organizer. 

I look forward to hearing from all of our witnesses. I know many 

of you have been involved in the development of the programmatic 

mountaintop mining environmental impact statement, the 2008 

stream buffer zone rule and the litigation that precipitated the production of the environmental impact statement, the rule in the current rulemaking process. 

In closing, I would like to reaffirm my belief that the United 

States is a nation of excellence. Our achievements through the development of our abundant natural resources have allowed America 

to prosper and constantly raise the standard of living for the next 

generation. Increasing responsible access to these resources will 

allow us to be less dependent on foreign sources of energy and mineral resources, will create new, private-sector jobs and will add revenue to government coffers, reducing the national debt and thereby 

increasing our national and economic security. 

I will now recognize Congresswoman Capito for five minutes for 

an opening statement. 

[The prepared statement of Mr. Lamborn follows:] 

Statement of The Honorable Doug Lamborn, Chairman, 

Subcommittee on Energy and Mineral Resources 

Thank you everyone for being here today. I’m Congressman Doug Lamborn, and 

I am Chairman of the House Natural Resources Committee Energy and Minerals 

Subcommittee. We are here today to hear testimony on the job and community impacts stemming from the Obama Administration’s rewrite of the Stream Buffer Zone 

Rule. 

In 1996, the National Wilderness Institute published the ‘‘American Conservation 

Ethic,’’ which comprised eight principles that the Nation’s policy makers should consider in the development of environmental policies and associated laws, rules and 

regulations. 

Several of those principles are worth examining in light of the topic of today’s 

hearing: Jobs at Risk: Community Impacts of the Obama Administration’s Effort to 

Rewrite the Stream Buffer Zone Rule.’’ 

An independent contractor, hired by the Administration, found the rewritten 

Stream Buffer Zone Rule will result in the loss of over 7,000 direct jobs nationwide 

and place an additional 29,000 people living in the Appalachian basin below the 

poverty level. 

The first principle of the American Conservation Ethic provides important insight 

that we should all take to heart. And that is: 

4 

‘‘People are the most important resource: 

Continuing to work on a rule that knowingly will eliminate thousands of jobs and 

will result in 29,000 people living below the poverty level is inexcusable policy It 

is our job as lawmakers to institute policies that create jobs and make lives better 

for Americans—instead, this Administration is pursuing a rule that will do exactly 

the opposite. 

However, rather than reinstating the 2008 rule after the economic impacts of the 

Administration’s preferred alternative in the proposed rule were leaked to the 

press,, the Administration instead severed ties with the initial contractor Polu Kai, 

and has continued down this ill advised path of rulemaking. 

Chairman Hastings and I have initiated an investigation into the Office of Surface 

Mining’s attempt to rewrite the 2008 stream buffer zone rule and the ongoing fiasco 

resulting from the Administration’s rushed effort to fast track major changes to the 

Nation’s coal mining regulatory program established by the Surface Mining Control 

and Reclamation Act of 1977. 

Let’s examine Principle Four of the American Conservation Ethic which states: 

‘‘Our efforts to reduce, control and remediate pollution should 

achieve real environmental benefits. 

The ‘environmental benefit’ of the proposed rule is achieved through less mining. 

That is less mining of a vital national resource—Coal—a resource that currently 

provides thousands of Americans with good paying jobs, and more than forty-five 

percent of the Nation’s electrical power. Twenty-two of the 25 states with the lowest 

electricity costs get at least 40 percent or more of their electricity from coal-fired 

power plants. 

And just exactly what are the benefits of less coal mining? 

Certainly not monetary; reducing coal production nationwide will adversely impact revenues to Federal, State and local treasuries, and monies flowing into the 

Surface Mining Control and Reclamation Act Abandoned Mine Land fund where 

some of the interest earned is used to support the United Mine Workers of America 

retirees. 

Furthermore, reducing the amount of coal available for power generation will lead 

to higher electricity costs for American businesses and families and thousands of 

Americans being put out of work. We have repeatedly seen the unforeseen consequences and job loss that can follow unnecessary regulatory changes. 

The final Stream Buffer Zone Rule, issued in December of 2008, was the result 

of a rulemaking process that took five-years and was supported by 5,000 pages of 

environmental analysis and included thirty original research projects. That brings 

me to the final principle from the American Conservation Ethic that I’ll share with 

you this morning. 

Principle Seven states: ‘‘Science should be employed as a tool to guide public 

policy. 

The 2008 Stream Buffer Zone Rule employed ‘Science’ to guide public policy as 

exemplified by the extensive research conducted during the rule making process. 

The 2008 rule was more protective of the environment than the original 1983 rule 

issued during the Reagan Administration, the rule that is now in effect since the 

2008 rule has been shelved by the current Administration. 

We have a full hearing today with ten witnesses, including Governor Earl Ray 

Tomblin; regulators from the states of West Virginia, Virginia and Wyoming; the 

West Virginia and Ohio Coal Associations; the Mountaintop Mining Coalition; 

Consol Energy; coal River Community Watch; and a Community Organizer. 

I look forward to hearing from our witnesses. I know many of you have been involved in the development of the Programmatic Mountain Top Mining Environmental Impact Statement, the 2008 Stream Buffer Zone Rule, and the litigation that 

precipitated the production of the EIS, the Rule and the current rulemaking process. 

In closing I would like to reaffirm my belief that the United States is a nation 

of excellence. Our achievements through the development of our abundant natural 

resources have allowed America to prosper and constantly raise the standard of living for the next generation. Increasing access to those resources will allow us to become less dependent on foreign sources of energy and mineral resources, create new 

private sector jobs and add revenue to government coffers reducing the national 

debt and thereby increasing our national and economic security. 

5 

STATEMENT OF THE HON. SHELLEY MOORE CAPITO, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF WEST 

VIRGINIA 

Mrs. CAPITO. Thank you, Chairman Lamborn and welcome to 

West Virginia. For those of you in the audience, most of you know 

this is my home county and my hometown and you know me well, 

and I would like to just give you a little lay of the land. This is 

basically what goes on in our committee hearings in Washington. 

Many of you have been to the committee hearings. We have panels 

where everybody will give five minutes of testimony and then questioning from the Members of Congress. 

But the whole point is to get the information from you all to us 

as we do our policies and make legislative decisions in Washington. 

And while we can sit in Washington and listen to what people are 

saying, it’s so helpful to come out to the different regions that are 

most highly impacted to really get a flavor for the impact of a regulation such as we’re talking about today or any kind of legislative 

endeavor that we’re engaged in. 

Mr. Lamborn is from the Natural Resources Committee, Chairman of the Subcommittee, and Mr. Johnson is from Ohio, just 

drove in from Marietta. They’re well aware of energy and energy 

production in their own states and the important and critical economic impacts that regulations can make. I welcome you on behalf 

of my fellow West Virginians. 

As you know, West Virginia is one of the largest coal producing 

states in the nation, and is home to some of the most valuable coal 

reserves. But in West Virginia, since I’ve been in the Legislature 

in 1996 and certainly living here, weaving the balance between the 

environment and the economy has been a challenge, as it is for the 

nation, it has certainly been a challenge here in West Virginia. 

As we know, the West Virginia coal mining industry itself 

employs over 50,000 people with some incomes reaching $80,000 a 

year, and we’re proud of our natural resources here. We’re proud 

that we have the natural resources that can help bring this country 

out of a national recession. 

But we do have an issue with the Federal regulatory actions that 

have been taking place most recently because I believe that it inhibits job growth and it sometimes can stymie our economic development. 

So in this hearing we’re going to be examining, as you’ve heard, 

the Office of Surface Mining’s proposed stream protection rule. 

How does that impact our job growth, our community and economic 

growth, because I think these are issues that we need to look at, 

as we’re also looking at the environmental impacts, as well. 

The original rule mining activities of perennial and intermittent 

streams and was a clarification of the long-term regulatory interpretation of a prior rule. However, less than a year after that rule 

was finalized, and before the rule would even be in effect, the Administration tried to vacate the rulemaking review, but their actions were overturned by a Federal court. 

So what we’re looking at now is sweeping changes to OSM’s regulatory programs and expanding the scope of its stream protection 

rules. But the Office of Surface Mining’s own analysis says—and 

Chairman Lamborn mentioned this in his statement—that this 

6 

stream protection rule could result in 29,000 hard working American coal miners losing their jobs and wiping out $650 million in 

wages, and certainly here in the Appalachian Basin we take those 

numbers very seriously. It could result, and it would result most 

certainly, I think I’ve seen numbers anywhere from a 10 to 20 percent increase in energy prices. When you think about that, we all 

live with neighbors who are on fixed incomes, trying to pay their 

electric bills through a cold winter and a hot summer, and we know 

that that’s difficult, especially with our economy in such a stagnant 

pace. And I think it could eliminate as much as twenty to thirty 

percent of West Virginia’s surface mining production. 

It’s important to remember, too, that this rule does influence, 

and we’ll hear this, I’m sure, in the committee testimony, does influence the underground mine industry as a fact. 

Now, one of the rules in Congress is when the red light goes off, 

you’re supposed to stop talking. And so I see the red light went off 

when I was not watching, so I don’t want to abuse my privilege. 

But I do welcome you. I know that there are many in the audience 

that we’ve met in my office who are opposed to looking at maybe 

job impacts and are very heavily influenced by the environmental 

impacts and very passionate about that, and your testimony will be 

a part of the record and will be heard by all the gentlemen and this 

is being streamed on the web, so a lot of people will hear this. 

So I want to thank you so much for the opportunity. I also am 

going to apologize because I am going to have to leave and not be 

able to attend the entire hearing. But thank you for coming to my 

hometown. Thanks. 

[The prepared statement of Mrs. Capito follows:] 

Statement of The Honorable Shelley Moore Capito, 

a Representative in Congress from the State of West Virginia 

Chairman Lamborn, I would like to welcome you and your subcommittee to West 

Virginia. On behalf of my constituents, let me thank you for your leadership on this 

issue and your efforts to prevent the Obama administration from destroying West 

Virginia jobs. 

My home state of West Virginia is one of the largest coal producing states in the 

nation, and is home to some of the most valuable coal reserves in the world. The 

coal industry is one of the state’s largest sources of jobs and tax revenue. As of 2008, 

the mining industry employed over 50,000 West Virginians, with incomes often 

reaching $80,000 per year. 

West Virginia has the natural resources to help create jobs and bring this economy out of recession. However, the federal government continues to take regulatory 

actions that inhibit job growth, and prevent West Virginian’s from putting food on 

their tables. In this hearing, you will be examining the Office of Surface Mining’s 

proposed Stream Protection Rule. In 2008, OSM’s initial Stream Buffer Rule was 

finalized after several years of review by multiple federal regulators. The original 

rule governed mining activities near perennial and intermittent streams, and was 

a clarification of the longstanding regulatory interpretation of a prior rule with enhanced environmental protections. However, less than a year after the rule was finalized, and before the rule could even go into effect, this Administration attempted 

to vacate the rule without any rulemaking review, or opportunity for public comment. The Administration’s actions were rightly ruled a violation of law by a federal 

court. 

The administration subsequently invoked upon a new rulemaking process that includes sweeping changes to OSM’s regulatory programs, while expanding the scope 

of its stream protection rules to include both surface and underground mining activities. Some have claimed that these rules are of questionable environmental benefit, according to the West Virginia DEP, the environmental review conducted in 

support of the Stream Protection Rule has been universally characterized as junk. 

7 

OSM’s own analysis says that the Stream Protection Rule will result in 20,000 hardworking American coal miners losing their jobs, wiping out $650 million in 

wages. In the Appalachian basis alone, this rule would throw nearly 30,000 folks 

into poverty. The rule would also necessarily result in increased energy prices, including my constituent’s electric bills, as it would eliminate 20 to 30 percent of West 

Virginia’s surface mining production, while also eliminating 50% of West Virginia’s 

underground coal mining activity. 

Mr. Chairman, West Virginian’s are ready to lead this nation out of recession 

while making us more energy independent. Unfortunately, this cannot happen in 

the current regulatory environment. Folks I talk to back here West Virginia keep 

telling me that they are ready and willing to create jobs if only the federal government would get off their backs. 

If the administration thinks their policies are helping folks across the country, I 

invite them to visit my state to see how their actions are hurting families across 

Appalachia. It’s time to take advantage of the resources found right here in America. Doing so will launch our economy in the right direction and create thousands 

of good-paying jobs. 

West Virginia is truly blessed to have abundant supplies of natural resources. As 

a native West Virginian I enjoy my State’s beauty and appreciate its pristine water, 

and want to do what is reasonably necessary to maintain our state’s environment. 

But instead of helping West Virginian’s tap into our full economic potential while 

implementing common sense environmental regulations, this Administration would 

rather implement its ideologically driven agenda. 

It is time for this administration to get off the backs of West Virginia’s job creators by using common sense and not ideology. Thank you again for holding this 

very important hearing. 

Mr. LAMBORN. Thank you, Representative. It’s an honor to be 

here in your district and to be in the great State of West Virginia, 

so thank you for your opening statement. 

And before we hear our first panel, we’ll have one more opening 

statement, and this is from Representative Bill Johnson of Ohio. 

STATEMENT OF THE HON. BILL JOHNSON, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO 

Mr. JOHNSON. Well, thank you, Mr. Chairman, for holding this 

important hearing on the economic impact that the Department of 

the Interior’s Office of Surface Mining Reclamation’s rewrite of the 

stream buffer zone rule could have on local communities like 

Charleston and other mining towns across the country. And I’d like 

to thank Congresswoman Capito for hosting us here in her hometown and all the great folks from West Virginia. It’s good to see all 

of you out here this morning. Thanks for letting us come in. 

I represent eastern and southeastern Ohio and live just 90 miles 

away in Marietta, Ohio. In the parts of eastern and southeastern 

Ohio that I represent, we have double-digit unemployment, reaching as high as 12.7 percent. There are entire communities that depend largely on the coal industry both for direct and indirect jobs 

and they would be devastated by this proposed rule change. 

According to the Obama Administration’s own analysis of the 

rule, it would eliminate up to 7,000 direct coal jobs and tens of 

thousands of indirect jobs, cut coal mining production by 50 percent 

and increase the cost of electricity for families and small businesses. 

As most of you may know, OSM, the Office of Surface Mining 

and Reclamation in December of 2008 issued a clarification of the 

stream buffer zone rules after a five-year process that included 

40,000 public comments, two proposed rules and 5,000 pages of environmental analysis from five different agencies. 

8 

The final rule clarified and codified coal surface mining practices 

that had been in effect for over 30 years. But on January 20th, 

2009, the Obama Administration decided to reopen the carefully 

crafted and properly vetted stream buffer zone rule. 

This proposed sweeping regulatory action would radically alter 

the definition of a stream, as well as how the agency measures material damage outside of the permit area. To date, the agency has 

provided no studies, no data or support to justify these radical 

changes. A judge later ruled that the Administration could not reopen the rulemaking process without cause. So what did the Administration do? They did what we’ve seen over and over again 

when settled rules by the Administration, if they don’t like them. 

They practically sent out invitations to environmental groups to 

sue the Department of the Interior over the rule. Not surprisingly, 

they got their desired result, and before too long, two environmental groups filed a lawsuit protesting the rule. 

Then, instead of fighting the lawsuit in court, they entered into 

closed-door negotiations with the environmentalists and reached a 

settlement that would allow them to do what they wanted to do all 

along, rewrite the stream buffer zone rule and make it more restrictive. 

I don’t know about you, but this sounds like collusion to me. And 

then in a slap to all tax payers, the same environmental groups 

that sued the Department of the Interior had their legal fees paid 

back by the taxpayer funded Judgment Fund. Now, I wish I could 

say that this is a special circumstance and that it doesn’t happen 

often, but there are at least fifteen instances of this so-called practice of sue and settle that this Administration has participated in, 

to reopen rules they don’t like. However, that’s a problem and a 

discussion for a different day. 

Let me get back to the Administration’s economic analysis of the 

rewrite of the stream buffer zone. Like I said, before this analysis 

completed by a leading environmental consulting firm showed that 

7,000 direct and tens of thousands of indirect jobs would be lost if 

the rule went forward as written. This firm was paid millions of 

dollars to conduct this study. However, once the analysis leaked to 

the public, OSM fired the contractor without getting any of the 

money back. OSM claims that the contractor miscalculated the job 

loss, but it seems to me that they simply didn’t like the results of 

the analysis and the press reports that came with it. 

For these reasons, I offered an amendment to the first continuing 

resolution from this year that would have stopped OSM from going 

forward with the proposed rewrite, their revision to the stream 

buffer zone. The amendment passed the House on a bipartisan vote 

of 239 to 186. Unfortunately, the language did not make the final 

continuing resolution that eventually became law. However, I have 

and I will continue to fight to have this language included in any 

new spending bill passed by Congress. 

The President, as you all know, has been touring the Midwest 

trying to promote what he calls a jobs bill. I find it ironic that this 

Administration has admitted that the rewrite of the stream buffer 

zone rule will cost thousands of direct and indirect jobs. If the 

President was serious about job creation, he would direct OSM to 

9 

stop going forward with a regulation that will result in thousands 

of hard-working Americans losing their jobs. 

Thanks again, Mr. Chairman, for hosting this hearing and I look 

forward to hearing from the witnesses and their testimony today 

and I yield back the balance of my time. 

[The prepared statement of Mr. Johnson follows:] 

Statement of The Honorable Bill Johnson, 

a Representative in Congress from the State of Ohio 

Thank you, Mr. Chairman for holding this important hearing on the economic impact that the Department of Interior’s Office of Surface Mining, Reclamation rewrite of the Stream Buffer Zone rule could have on local communities like Charleston and other mining towns across the country. 

I represent Eastern and Southern Ohio and live just 90 minutes away from 

Charleston in Marietta, Ohio. 

In the parts of eastern and southeastern Ohio that I represent, we have doubledigit unemployment reaching as high as 12.7%. There are entire communities that 

depend largely on the coal industry—both direct and indirect jobs—that would be 

devastated by this proposed rules change. 

According to the Obama Administration’s own analysis of the rule—eliminate up 

to 7,000 direct coal jobs and tens of thousands of indirect jobs, cut coal mining production by 50%, and increase the cost of electricity for families and small businesses. 

As most of you may know, OSM in December of 2008 issued a clarification of the 

stream buffer zone rules after a five-year process that included 40,000 public comments, two proposed rules, and 5,000 pages of environmental analysis from 5 different agencies. The final rule clarified and codified coal surface mining practices 

that had been in effect for over 30 years. 

But on January 20, 2009, the Obama Administration decided to re-open the carefully crafted and properly vetted stream buffer zone rule. This proposed sweeping 

regulatory action would radically alter the definition of a stream as well as how the 

agency measures material damage outside of the permit area. 

To date, the agency has provided no studies, data, or support to justify these radical changes. A judge later ruled that the Administration couldn’t reopen the rulemaking process without cause. 

So what did the Administration do? They did what we have seen over and over 

again with settled rules the Administration does not like, they practically sent out 

invitations to environmental groups to sue the Department of Interior over the rule. 

Not surprisingly they got their desired result and before long two environmental 

groups filed a lawsuit protesting the rule. 

Then, instead of fighting the lawsuit in court, they entered in closed-door negotiations with the environmentalists and reached a settlement that would allow them 

to do what they wanted all along, to re-write the stream buffer zone rule. 

I don’t know about you, but this sounds like collusion to me. 

And then in a slap to all taxpayers, the same environmental groups that sued the 

Department of Interior had their legal fees paid back by the taxpayer funded Judgment Fund. 

I wish I could say that this is a special circumstance and that this doesn’t happen 

often, but there are at least 15 instances of this so called practice of ‘sue-and-settle’ 

that this Administration has participated in to reopen rules they don’t like. However, that is a problem and a discussion for a different day. 

Let me get back to the Administration’s economic analysis of the rewrite of the 

rule. Like I said before this analysis, complete by a leading environment consulting 

firm, showed that 7,000 direct and tens of thousands of direct jobs would be lost 

if the rule went forward as written. 

This firm was paid millions of dollars to conduct the study. However, once the 

analysis leaked to the public, OSM fired the contractor, without getting any of the 

money back. 

OSM claims that the contractor miscalculated the job loss, but it seems to me that 

they simply didn’t like the results of the analysis and the press reports that came 

with it. 

For these reasons, I offered an amendment to the first Continuing Resolution 

from this year that would have stopped OSM from going forward with a proposed 

revision to the ‘Stream Buffer Zone’ rule. 

The amendment passed the House on a bipartisan vote of 239—186. 

10 

Unfortunately, the language did not make the final Continuing Resolution that 

eventually became law. 

However, I have and will continue to fight to have this language included in any 

new spending bill passed by Congress. 

The President as you all know has been touring the Midwest trying to promote 

what he calls a jobs bill. I find it ironic that his Administration has admitted that 

the rewrite of the Stream Buffer zone rule will cost thousands of direct and indirect 

jobs. 

If the President was serious about job creation, he would direct OSM to stop going 

forward with a regulation that will result in thousands of hard-working Americans 

losing their jobs. 

Thanks again for the Chairman for hosting this hearing and I look forward to 

hearing from our witnesses. I yield back the balance of my time. 

Mr. LAMBORN. OK. Thank you. We will now hear from our witnesses. The first panel consists of The Honorable Earl Ray 

Tomblin, the Governor of West Virginia. Thank you, Governor, for 

being here. It’s an honor to be in West Virginia today and so I welcome you to be our first witness in this important hearing. Like all 

of our witnesses, your written testimony will appear in full in the 

hearing record, so I ask that you keep your oral statement to five 

minutes, as outlined in the invitation letter. Our microphones are 

not automatic, so you need to turn them on when you’re ready to 

begin. And after four minutes a yellow light will come on, then 

after five minutes a red light will come on, and you may complete 

at that time. Thank you again for being here, and you may begin, 

Governor. 

STATEMENT OF THE HON. EARL RAY TOMBLIN, 

GOVERNOR, STATE OF WEST VIRGINIA 

Governor TOMBLIN. Thank you very much and welcome to West 

Virginia. We’re pleased to have you here today. I’m Governor Earl 

Ray Tomblin and I would like to thank you for the opportunity to 

testify today. I’d also like to thank you for taking time to come to 

West Virginia and listen to the voices of people who, perhaps more 

than anyone, are threatened by the regulatory philosophy of the 

Environmental Protection Agency and the Federal Office of Surface 

Mining. 

Coal mining has always been a vital part of West Virginia and 

the national economy. For West Virginia, coal mining provides a 

significant number of jobs for our citizens and substantial tax revenue for the operation of our state and local governments. 

As a lifelong resident of a coal-producing area of southern West 

Virginia, I have a deep personal understanding of the importance 

of this industry to our state. There are millions of Americans who 

are unemployed. Millions more are struggling to make ends meet, 

working two or three jobs. Millions more have lost their homes and 

have had to declare bankruptcy. American families are suffering. 

They don’t want a handout. All they want is a job. 

In contrast to most of America, we are fortunate in West Virginia, we are one of only a small handful of states that have been 

able to balance our budget and add to our rainy day fund reserves. 

For example, I’m proud to tell you that last year West Virginia had 

a surplus of approximately $330 million. In large part, we owe our 

current financial health to coal. We’ve had a crisis in waiting with 

11 

implementation of the rule before you today and other Federal initiatives hanging in the balance. 

Over the past three years the EPA and other regulatory agencies 

have relentlessly pursued an ill-advised agenda, threatening one of 

our state’s leading industries and tens of thousands of West Virginia jobs. I am deeply concerned about the direction the Federal 

agencies, including the EPA and OSM have recently taken in the 

regulation of the coal industry. It has been well-publicized that the 

preferred alternative for the stream protection measures rule that 

OSM identified in a draft environmental impact statement is one 

that will cause drastic reductions in coal production in the Appalachian region. 

These impacts are entirely inconsistent with the mandate Congress gave OSM in the Surface Mining Act and unacceptable to any 

type of economic development and job creation for my home state. 

For the good of West Virginia and other coal producing states, I 

hope the Energy and Natural Resources Subcommittee will take 

appropriate action to force OSM to act within its Congressional 

authority. 

EPA’s obstruction of mining permits and this rule from OSM 

threatens the very existence of the coal industry in West Virginia 

and across the nation. These actions by the EPA and OSM are doubly problematic. Not only are they destroying coal mining and 

other good paying industrial jobs, but they are also increasing the 

cost of electricity and every product made using electricity. I think 

the Congress must act to restrain the OSM and the EPA. You must 

restore balance to the relationship of the states and the Federal 

Government. You must demand an end to legislation by regulation 

and restore the proper constitutional balance between the executive 

and legislative branches. 

I thank you and I apologize, I’ve got another appointment I must 

go to, but I certainly appreciate you being here today to listen to 

comments of the audience today. Thank you. 

[The prepared statement of Governor Tomblin follows:] 

Statement of The Honorable Earl Ray Tomblin, 

Governor of West Virginia 

Good afternoon. I am Governor Earl Ray Tomblin. I would like to thank you for 

the opportunity to testify today. I would also like to thank you for taking time to 

come to West Virginia and listen to the voices of people who, perhaps more than 

anyone, are threatened by the regulatory philosophy of the Environmental Protection Agency (EPA) and the federal Office of Surface Mining (OSM). 

The EPA’s anti-coal agenda is having an extraordinarily negative effect on the 

spirit and minds of every hard working West Virginian. And it should be setting 

off alarm bells for our Country. 

Coal mining has always been a vital part of the West Virginia and National economy. For West Virginia, coal mining provides a significant number of jobs for our 

citizens and substantial tax revenue for the operation of our state and local governments. As a lifelong resident of the coal-producing area of Southern West Virginia, 

I have a deep, personal understanding of the importance of this industry to our 

State. 

All told, more than 63,000 West Virginians work in jobs provided by the coal industry. That is 63,000 families. Think about it for a moment—that means approximately 250,000 people in a state with less than 2 million citizens are supported, in 

one way or another by the mining of coal. 

There are millions of Americans who are unemployed. Millions more are struggling to make ends meet working two or three jobs. Millions more have lost their 

homes and have had to declare bankruptcy. American families are suffering. They 

don’t want a handout. All they want is a job. 

12 

In contrast to most of America, we are fortunate in West Virginia. We are one 

of only a small handful of states that have been able to balance our budget and add 

to our Rainy Day Reserves. For example, I am proud to tell you that last year West 

Virginia had a surplus of approximately $330 million. In large part, we owe our current financial health to ‘‘Coal.’’ West Virginia has also been successful in attracting 

several new businesses to our state due to our aggressive team of economic development professionals. But we have a ‘‘crisis in waiting’’ with the implementation of 

the rule before you today and other federal initiatives hanging in the balance. 

Over the past three years, the EPA and other regulatory agencies have relentlessly pursued an ill-advised agenda, threatening one of our state’s leading industries and tens of thousands of West Virginia jobs. I am deeply concerned about the 

direction federal agencies, including the EPA and the OSM, have recently taken in 

the regulation of the coal industry. Since the EPA, the Interior Department, and the 

Corps of Engineers signed a Memorandum of Understanding on June 11, 2009, 

these agencies have undertaken extraordinary efforts to seize regulatory authority 

that legitimately resides with the states and Congress. The EPA has attempted to 

re-write the Clean Water Act and regulations to incorporate new policy judgments, 

without the benefit of a new mandate from Congress or at least the transparency 

and opportunity for public involvement that would accompany formal rulemaking. 

With the OSM Stream Protection Measures Rulemaking that is the subject of the 

subcommittee’s current focus, I am concerned that OSM is also acting in contravention of its mandate from Congress. OSM’s actions must be based on the federal Surface Mining Act. One of the principal purposes Congress established in the Surface 

Mining Act was to: ‘‘assure that the coal supply essential to the Nation’s energy requirements and to its economic and social well-being is provided and strike a balance between protection of the environment and agricultural productivity and the 

Nation’s need for coal as an essential source of energy.’’ 

It has been well publicized that the preferred alternative for the Stream Protection Measures rule OSM identified in the draft environmental impact statement is 

one that will cause drastic reductions in coal production in the Appalachian region. 

As I understand it, OSM’s draft environmental impact statement projects the following impacts from its proposed alternative: 

• A decrease in surface mine coal production in the Appalachian Basin of approximately 30%; 

• A loss of approximately 10,00 jobs in the Appalachian basin under the worst 

case scenario; 

• An approximate 13.1% loss in severance tax; and 

• An approximate 11.7% decrease in income taxes. 

These impacts are entirely inconsistent with the mandate Congress gave OSM in 

the Surface Mining Act and unacceptable to any type of economic development and 

job creation for my home State. For the good of West Virginia and other coal producing states, I hope the Energy and Natural Resources Subcommittee will take appropriate action to force OSM to act within the limits of the authority Congress has 

given it. 

West Virginia’s coal miners, the bravest workers in world, should be confident 

about their future, enjoying the fruits of their hard work, building new homes, and 

saving for their children’s education and their own retirement. They should not be 

worrying about an overbearing federal bureaucracy that threatens the very backbone of their lives. 

EPA’s obstruction of mining permits and this rule from OSM threatens the very 

existence of the coal industry, in West Virginia and across the nation. These actions 

by the EPA and OSM are doubly problematic. Not only are they destroying coal 

mining and other good-paying industrial jobs, but they are also increasing the cost 

of electricity and every product made using electricity. 

If enacted, OSM’s proposed re-write of the Stream Buffer Zone rule will drastically reduce coal production in West Virginia and across the nation. It will apply 

new standards that have no basis in the law. 

Congress must act to restrain the OSM and the EPA. You must restore balance 

to the relationship of the states and the federal government. You must demand an 

end to legislation by regulation and restore the proper Constitutional balance between the executive and legislative branches. 

Tens of thousands of coal miners in West Virginia, Appalachia and across the nation need your help. While our national leaders speak of stimulating the economy, 

federal regulatory agencies are erecting substantial barriers to the continued existence of the mining industry at every turn. 

While national leaders plead their case for more jobs, the agencies under their authority seem determined to drastically increase unemployment in our region. 

13 

We, here in the great state of West Virginia, do not seek subsidies or handouts. 

We just want to continue to work at the jobs we know and love. To continue doing 

what we’ve done for decades—providing our nation and the world with the energy 

and industrial fuel it needs to pull itself out of a global economic recession. Industries fueled by West Virginia coal provide the wages and taxes that support our 

states and communities. I call on you to restore balance in the federal government— 

to reign in the out-of-control EPA and OSM—and to give our great nation a chance 

to lead the world out of its current economic downturn. We are leading the nation 

here in West Virginia with the help of Coal—let us now take a great step forward 

and use our Coal to lead the world forward into a prosperous new era. 

Thank you. 

Mr. LAMBORN. I would like to also mention that we’ve been 

joined by the U.S. Senator for West Virginia and former Governor, 

Manchin, who’s in the back of the room. If he would like to come 

up and if the Governor has no objection, and you have a comment 

or two to add on this important subject, you’re very welcome to do 

that. And this is an example of how well the House and the Senate 

tries to work together in Washington. 

Governor, if you have to go, I have one question for you. If you 

have to go right this minute, let me ask you the question before 

the Senator speaks. 

Governor TOMBLIN. Sure. 

Mr. LAMBORN. Some have said, and I happen to share this concern, so I could be saying this just as well as anyone else out there, 

that the Obama Administration seems to be waging a war on coal. 

Do you agree with that statement? 

Governor TOMBLIN. Well, I feel that the OSM and EPA are being 

completely unrealistic as far as the mining of coal goes. And obviously, under the previous Administration and my Administration, 

we have a lawsuit in the Federal court in Washington, D.C., questioning their authority and we feel like they’ve overstepped their 

bounds as far as the regulation of the coal industry. 

Mr. LAMBORN. Did anyone else on the panel have a question for 

the Governor before the Senator speaks? 

Mr. JOHNSON. I actually do, and I’ll make it quick because I 

know the Governor has got to go. Governor, do you think OSM is 

being a good steward of taxpayer dollars after spending millions on 

the first contractor, firing them because they didn’t like the answers they got and then spending millions more on a new contractor? 

Governor TOMBLIN. Well, I feel my focus today is on coal mining 

and coal mining jobs in West Virginia, and I feel that some of the 

actions they’re taking are overstepping the bounds that Congress 

has authorized them to have in West Virginia, or across the country, as far as coal mining goes. And obviously, my biggest concern 

is about the jobs of West Virginians here today and the continued 

production, responsible production of coal in the State of West Virginia. 

Mr. JOHNSON. Thank you, Governor. 

Mr. LAMBORN. Governor, we know you’re on a tight schedule, so 

at any time that you feel you need to leave, please do so, and thank 

you for being here. 

Governor TOMBLIN. Thank you, sir. 

14 

Mr. LAMBORN. And Senator Manchin, thank you for joining us, 

and if you have any comments that you would care to add on this 

important subject, we’d love to hear to from you. 

STATEMENT OF THE HON. JOE MANCHIN, A SENATOR IN 

CONGRESS FROM THE STATE OF WEST VIRGINIA 

Senator MANCHIN. More than happy. Thank you so much for the 

courtesy and the kindness, and to all my colleagues, to you all for 

coming. I know that our Congresswoman Capito from our wonderful state here has been a good hostess and I know that she’s very 

appreciative and, I am, too, of you all bringing this inquiry down 

here. 

Let me just say that under this Administration it’s been very onerous as far as trying to get a level playing field or a balance. And 

all we’re saying is this country needs coal. It can turn its back all 

it wants to, but the bottom line, when it’s all said and done, there’s 

about 150 million people in America that depend on the energy 

that we have produced for a hundred years and we’ll continue for 

as long as needed. We don’t have a fuel of the future. In West Virginia, people don’t realize we probably have more wind farms east 

of the Mississippi than most any other state. We’re trying everything we can to be diverse and be totally independent of foreign oil. 

And we believe security of the Nation is the most important thing. 

West Virginia has always done the heavy lifting. We’re not afraid 

of hard work. We’ve helped build this great country by producing 

the coal and make the steel and build the factories in defense of 

our country. 

So with all that being said, we think it’s really unreasonable the 

approach that they’re taking in making one so onerous. You’ve just 

heard where we have to close maybe five power plants. I don’t 

think that that’s necessary. I think there’s a better way that we 

could save some of those plants, giving dependable, reliable and affordable energy. Coal has been able to do that and it will continue 

to. 

We know that with some of the investments that’s been made in 

the sake of clean energy, we know that didn’t go as well as it 

should have gone. Solyndra, I don’t need to tell you all about it, 

$538 million. It was something that was rushed to show as the 

poster child that didn’t work. Fine, those things happen. I understand that. But the bottom line is we could have used half of that 

money to complete a commercial operation as far as coal sequestration, showing that we could take the clear stream of carbon, sequester it, and also find better uses for it. We could have finished 

that project, so we know that has a payback and guarantee to the 

American taxpayers. 

I know that what you talked about, the amount of money that 

was spent in a prior Administration for a three- and four-year 

study, then the new Administration comes and rushes it through 

in five or six months and they found out that it had a tremendous, 

tremendous employment impact; a lot of people would have been 

displaced. And I think Congresswoman Capito will tell you, in West 

Virginia all we want is a balance between the environment and the 

economy. Can we do it better? Absolutely. But we need government 

as our partner, not our adversary. 

15 

And we’ll continue, if you’ve seen our terrain flying in here, you 

know that we have some challenges, but we have been blessed with 

the beauty and the natural resources. We can’t build a road in 

West Virginia without making some adjustments. And if they take 

the approach that OSM is willing to take or wanting to take, it 

would stop everything as you know it. The economy would go to 

‘‘you-know-what’’ in a handbasket and we’d be in serious trouble. 

Can we do it better? Absolutely. Can we do it? I always said this. 

If it’s unreasonable, it’s unattainable. The approach they’re taking—and I’ve spoken to the OSM officials—it is totally unreasonable. The aggressive approach they’re taking, it makes no sense at 

all when we’re in such dire need of the energy that we have in this 

great country and we’ve been blessed with in our state. 

I just thank all of you and I thank Shelley for bringing everybody 

and for you all coming down. I know that Congressman Rahall 

feels the same, Congressman McKinley feels the same, Senator 

Rockefeller feels the same. We’re all in on this one. It doesn’t have 

a party here. This is the most bipartisan approach I think you can 

take and it’s refreshing because we don’t see it too much in Washington. And I appreciate you all being here. 

Mr. LAMBORN. Senator, thank you so much for your comments. 

Does anyone on the Committee have a comment in response? 

Thank you so much for being here. We appreciate it. 

Senator MANCHIN. Thank you for allowing me to say it. I appreciate it very much. Thank you. 

Mr. LAMBORN. Thank you. We will now have our second panel 

and the witnesses on the second panel, of the three panels that 

we’ll be hearing from today, and we’re going to be getting all kinds 

of views on this important subject. But the second panel will consist of Mr. Thomas L. Clarke, Director of the West Virginia Division of Mining and Reclamation, Department of Environmental 

Protection; Mr. Bradley C. Lambert, Deputy Director of the Virginia Department of Mines, Minerals and Energy; and Mr. John 

Corra, Director of the Wyoming Department of Environmental 

Quality. 

And I would remind the witnesses as they come forward and get 

seated that members of the Committee may have additional questions for the record. I would ask for you to respond to these in writing. Like all of our witnesses, your written testimony will appear 

in full in the hearing record, so I ask that you keep your oral statements to five minutes as outlined in the invitation letter. You have 

to push a button at the base of the microphone to get them to work. 

And if you watch the light, you’ll see that you have five minutes. 

And the yellow light comes on when you have one minute. The red 

light comes on when your five minutes are over. 

We will now begin with Mr. Clarke, and you may begin. Thank 

you for being here. 

STATEMENT OF THOMAS L. CLARKE, DIRECTOR OF MINING 

AND RECLAMATION, WEST VIRGINIA DEPARTMENT OF 

ENVIRONMENTAL PROTECTION 

Mr. CLARKE. Good morning. My name is Tom Clarke. I’m 

Director of the West Virginia—— 

Mr. LAMBORN. Could you speak into the microphone, please? 

16 

Mr. CLARKE. OK. Good morning. My name is Tom Clarke. I’m Director of the West Virginia Department of Environmental Protection’s Division of Mining and Reclamation. I would like to welcome 

the Subcommittee to West Virginia and thank it for allowing me 

to talk about the Office of Surface Mining’s Stream Protection 

measures environmental impact statement and rulemaking. 

What OSM is contemplating is a rewrite of all the rules governing the way coal mining is conducted in America. The Federal 

Surface Mining Act, SMCRA, governs OSM in this rulemaking. 

SMCRA was adopted in 1977, after six years of debate. This was 

in the midst of the energy crisis. In light of this, and in spite of 

the positions of those who advocated abolition or severe limitations 

on mining, Congress decided to strike a balance between environmental protection and meeting the nation’s energy needs. 

With stream protection measures rulemaking, OSM is trying to 

alter the balance Congress establishment in 1977. This balance involved increased production of coal with environmental controls. 

Against the balance that Congress struck, consider that OSM’s proposal by OSM’s own numbers would radically alter the economy in 

the Appalachian region. Results like these are wholly inconsistent 

with the balance Congress struck in OSM should not be allowed to 

defy the intent Congress expressed in the Act establishing it. 

Mining, particularly mountaintop mining has been controversial. 

However, instead of abolishing surface mining or mountaintop mining, as some called for at the time, Congress authorized both and 

contemplated expansion of coal mining to meet the nation’s energy 

needs. If there’s political will to change this, the change needs to 

come from Congress, not from OSM. With this EIS and rulemaking, OSM is going to once again destabilize the regulatory 

structure for mining. Consider that every regulation of any significance that OSM originally promulgated to implement was challenged. Only in the last few years have legal challenges to the rules 

implementing some of its basic concepts been resolved and a degree 

of regulatory stability achieved. It took thirty years to get to this 

point. OSM’s rulemaking will end that and is likely to lead to years 

of litigation and the uncertainty that goes with it. 

The EIS OSM is conducting has been a debacle. It engaged a contractor for this that apparently had never done an EIS and knew 

nothing about mining or the regulatory structure. On top of this, 

OMS expected the EIS to be completed in record time. It expected 

a draft EIS in eight months. By comparison, the draft EIS for the 

2008 stream buffer zone rule, which OSM intends to replace with 

the stream protection measures rule, took 26 months, knowing this 

EIS built upon a previous one. 

The stream protection measures EIS is being performed as a 

standalone EIS. My agency and other state agencies have been cooperating agencies on this EIS. As the entities with 30 years of experience directly applying, we have valuable perspective to lend if 

OSM is really interested in taking the hard look at its proposed actions that NEPA contemplates. Instead, thus far the process has 

been conducted so as to effectively deny meaningful state participation. We were allowed five, four and nine business days to review 

and comment on Chapters 2, 3 and 4, respectively. This involved 

hundreds of pages of material. 

17 

There is no indication that OSM paid any attention to our comments. Under the circumstances, it is not surprising that the drafts 

OSM’s contractor provided were very poor. My Deputy Director, 

who led our effort to review and comment on the drafts, said that 

the draft EIS looked like something a college student put together 

by cutting and pasting from the Internet. 

In SMCRA, Congress recognized that the terrain and climate 

vary widely across the country, and accordingly, chose to assign 

primary responsibility for implementing it to the states. Two of the 

concepts in that most peculiarly warrant the state specific approach are approximate original contour and material damage to 

the hydrologic balance. Contrary to the expressed purposes of Congress, in this rulemaking OSM intends to seize the authority to define these terms from the states and dictate Federal standards for 

them from Washington. 

Several other aspects of OSM’s attempt to define material damage are troubling. One of them is that OSM has indicated it will 

include a biologic component in this definition. The Subcommittee 

may be aware that an emerging issue in the regulation of mining 

has been the extent of the protection provided for by Biota, an 

aquatic ecosystem under state water quality standards issued 

under the Clean Water Act. It’s fair to say that EPA and states are 

not quite seeing eye to eye on this. OSM’s entry into this debate 

by establishing biologic standards may violate SMCRA. SMCRA 

states that it does not supersede, amend or repeal the Clean Water 

Act. Because of this, a previous account by OSM to establish what 

amounted to water quality standards was rejected by the courts. 

There are many more troubling aspects to the proposed stream 

protection measures rulemaking. In the interest of staying within 

our time limits, I won’t go into them further, but I encourage the 

Subcommittee to examine my written submission where I have 

summarized some of them. 

In closing, OSM needs to be held accountable to Congress. And 

I thank you again for taking the opportunity and time to hear from 

me. 

[The prepared statement of Mr. Clarke follows:] 

Statement of Thomas L. Clarke, Director, Division of Mining and 

Reclamation, West Virginia Department of Environmental Protection 

The Decision as to Where the Balance Between Environmental Protection 

and Energy Production Should be Struck is for Congress to Make, Not 

OSM 

Somewhere along the path that Congress established for it in the Surface Mining 

Control and Reclamation Act (‘‘SMCRA’’ or the ‘‘Act’’), the Office of Surface Mining 

Reclamation and Enforcement (OSM) has lost its way. SMCRA was adopted in the 

midst of the Energy Crisis in 1977. Accordingly, a balance between environmental 

protection and energy production through coal mining was central to the policy Congress established in this Act. Thirty four years after Congress established the guiding principles for OSM’s existence in SMCRA, OSM is disregarding its Congressional charter in favor of an aggressive regulatory agenda that runs directly contrary to these principles. In Appalachia, the country’s top coal producing region at 

SMCRA’s adoption, by OSM’s own projections, the set of new regulations OSM is 

pursuing, the Stream Protection Measures Rule, would cause: 

• A decrease in surface mine coal production in the Appalachian Basin of 30%; 

• A loss of 10,749 jobs in the Appalachian basin under the worst case scenario; 

• Lowering an additional 29,000 people in the Appalachian Basin beneath the 

poverty level; 

• A 13.1% loss in severance tax; and, 

18 

• An 11.7% decrease in income taxes. 

Recently, there has been a good deal of public discourse over the appropriate level 

of environmental protection that should govern the coal mining industry. The debate 

is reminiscent of the issues that were debated publicly and in Congress in the years 

leading up to SMCRA’s adoption. In OSM’s Stream Protection Measures environmental impact statement and rulemaking, it is playing to a constituency that, like 

their predecessors a generation ago, favors abolishing or greatly restricting surface 

coal mining in Appalachia. After at least six years of debate in the 1970’s, Congress 

rejected this approach and chose to strike a balance between energy production and 

environmental protection. In adopting SMCRA, Congress found, ‘‘expansion of coal 

mining to meet the Nation’s energy needs makes even more urgent the establishment of appropriate standards to minimize damage to the environment and to productivity of the soil and to protect the health and safety of the public’’ 30 U.S.C. 

§ 1201(d). Among the express purposes Congress set forth in the Act was to: 

[A]ssure that the coal supply essential to the Nation’s energy requirements, 

and to its economic and social well-being is provided and strike a balance 

between protection of the environment and agricultural productivity and 

the Nation’s need for coal as an essential source of energy. . . 

30 U.S.C. § 1202(f). First among the requirements Congress included in the performance standards section of SMCRA is a mandate that operators ‘‘conduct surface coal 

mining operations so as to maximize the utilization and conservation of the solid 

fuel source. . .’’. 30 U.S.C. § 1265(b)(1). OSM is now trying to significantly alter the 

balance struck by Congress in SMCRA and substitute its judgment as the appropriate level of environmental protection for the well-considered judgment Congress 

made on this subject in the Act. Policy judgments that would radically change the 

economy of West Virginia and Appalachia need to be made by Congress or the states 

and not federal bureaucrats at OSM. 

The Basis for OSM’s Decision to Undertake the Stream Protection Measures Rulemaking 

With neither a new mandate from Congress, nor a record developed over the 

many years of experience under this Act to support OSM’s regulatory agenda, one 

might wonder what the impetus behind this attempt to totally change the rules on 

how coal mining is conducted in America might be. The agency’s only formal answer 

is disclosed in two Federal Register notices it has published. OSM explained: 

On June 11, 2009, the Secretary of the Department of the Interior, the Administrator of the U.S. Environmental Protection Agency (EPA), and the 

Acting Assistant Secretary of the Army (Civil Works) entered into a memorandum of understanding (MOU) implementing an interagency action plan 

designed to significantly reduce the harmful environmental consequences of 

surface coal mining operations in six Appalachian states, while ensuring 

that future mining remains consistent with Federal law. 

75 Fed. Reg. 34667 (June 18, 2010); 75 Fed. Reg. 22723 (April 30, 2010). The June 

11, 2009 MOU committed OSM to making ‘‘[r]evisions to key provisions of current 

SMCRA regulations, including the Stream Buffer Zone Rule and Approximate Original Contour (AOC) requirements’’. In addition to the OSM rulemaking effort that 

is the subject of the Energy and Mineral Resources Subcommittee’s current focus, 

this June 11, 2009 MOU has been the genesis of other efforts undertaken by both 

OSM and the United States Environmental Protection Agency (‘‘USEPA’’) to unlawfully seize regulatory authority that legitimately resides with the states and other 

agencies under SMCRA and the Clean Water Act (‘‘CWA’’) and adopt what amount 

to new regulations for the regulation of coal mining that are contrary to these agencies’ enabling statutes. 

The authors of this MOU apparently understood that accomplishment of their regulatory goals would fundamentally change and, perhaps, devastate the economy of 

the Appalachian region, which has historically been dependent on coal mining. To 

address this, the MOU anticipates that, ‘‘the Federal government will help diversify 

and strengthen the Appalachian regional economy. This effort will include the agencies to this MOU, and other Federal agencies, as appropriate, and will work to focus 

clean energy investments and create green jobs in Appalachia.’’ Clearly, economic 

and social engineering is well beyond any legitimate role Congress has granted to 

agencies like OSM, EPA and the other signatories to the June 11, 2009 MOU. These 

agencies need to be accountable to Congress and be required to operate within the 

legal authority Congress has granted them. 

OSM is Promoting Regulatory Uncertainty 

SMCRA was adopted thirty four years ago. Through years of regulatory experience under the Act since then, we have only recently arrived at a point at which 

19 

some regulatory certainty exists. Litigation has been said to follow the promulgation 

of regulations under the Act ‘‘as night follows day’’. Nearly all of the regulations promulgated to implement the Act, mostly from the late 1970’s and early 1980’s, have 

been challenged in court. Only in the past few years have challenges to some of the 

regulations implementing some of the Act’s basic concepts been finally resolved (e.g., 

ownership and control, valid existing rights, subsidence impacts). A degree of regulatory certainty has only recently been achieved under this thirty-plus year old law. 

Just as this has happened, and without the benefit of a new mandate from Congress 

supporting its actions or even a basis in the regulatory record developed over years 

of oversight of state regulatory programs, OSM is attempting to undertake a radical 

re-write of nearly all of the rules governing the manner in which coal mining operations are conducted. After over thirty years of efforts by OSM leadership, through 

administrations of differing political viewpoints, to ‘‘get it right’’ under SMCRA, today’s OSM has decided that everyone who has preceded it has gotten it one hundred 

percent wrong. In doing so, the current OSM is boldly making quantum shifts in 

regulatory policy that are Congress’ business to make. 

The EIS Process Has Excluded Meaningful State Participation 

OSM correctly realized that its planned Stream Protection Measures rulemaking 

was sufficient in scope to require the preparation of an environmental impact statement (EIS) in accordance with the National Environmental Policy Act. However, 

OSM’s schedule for completing this EIS was unrealistically ambitious. When the 

June 11, 2009 MOU committed OSM to changing its 2008 stream buffer zone rule, 

OSM was already in litigation with environmental groups challenging the 2008 rule. 

On March 19, 2010, after OSM was unsuccessful in persuading the court to allow 

it to simply cast aside the 2008 rule, OSM entered into a ‘‘friendly’’ settlement 

agreement with the opponents of this rule. In this settlement, OSM committed to 

issuance of a proposed regulation replacing the 2008 rule, i.e., the Stream Protection 

Measures rule, by February 28, 2011. This necessarily required OSM to complete 

the draft EIS for the Stream Protection Measures rule within the same time frame, 

by February 28, 2011. The unreasonableness of the timeframe OSM targeted for 

completion of this EIS might be best illustrated by a comparison with the EIS it 

conducted for the 2008 stream buffer zone rule, which it aimed to replace. From 

OSM’s announcement of its intent to prepare an EIS for the 2008 stream buffer 

zone rule through issuance of a draft EIS, a little more than 26 months passed. Importantly, the EIS for the 2008 rule built upon the more extensive Mountaintop 

Mining—Valley Fill EIS that had recently been completed in 2005. In contrast, the 

EIS for the Stream Protection Measures Rule has been conducted as a stand-alone 

EIS for a much more sweeping regulatory change than the 2008 stream buffer zone 

rule. OSM announced its intent to prepare the Stream Protection Measures EIS in 

April, 2010 and again in June, 2010. This allowed OSM only eight months to complete a draft EIS for the Stream Protection Measures Rule. 

OSM’s schedule for the Stream Protection Measures EIS was totally inadequate 

for the undertaking involved. Cooperating agencies on the EIS, like the West Virginia Department of Environmental Protection, were not allowed to comment on 

Chapter 1 of the preliminary draft EIS that OSM prepared. The time cooperating 

agencies were allowed for comment on hundreds of pages of material in Chapters 

2, 3 and 4 was 5, 4 and 9 business days, respectively. OSM has either allowed the 

time commitments it made in its settlement with environmental groups to turn 

what should be an open, transparent EIS process into a sham or it has intentionally 

designed a process so as to avoid a transparent, hard look at the consequences of 

its proposed actions. Either way, OSM’s procedure thus far has been a rush to a 

predetermined result, without any indication that it has paid attention to the comments of state agencies that have years of valuable experience directly regulating 

the coal industry under SMCRA. 

It is difficult to discuss the shortcomings of OSM’s process for the EIS for the 

Stream Protection Measures Rule without also mentioning the problems with the 

content of the portions of the draft EIS cooperating agencies have been permitted 

to review. The contractor OSM engaged to prepare the draft EIS had no experience 

with coal mining or the surface mining regulatory program. This lack of experience 

shows throughout the drafts OSM has shared. We understand that OSM has been 

re-writing the drafts its contractor produced. It is our hope that this will result in 

a greatly improved product. However, with the way OSM has proceeded on the previous drafts of the EIS, we are greatly concerned about whether we will be given 

an adequate opportunity to review and comment on OSM’s re-draft of the EIS. 

Again, the process for a change as significant as OSM’s complete re-write of the 

rules on how coal mining is conducted in America should be done in a much more 

transparent fashion. 

20 

The West Virginia Regulatory Program’s Existing Stream Protection Requirements 

The regulatory programs in West Virginia and other states have not been static. 

The state programs have evolved over time to deal with state issues as they have 

arisen. The current OSM rulemaking will diminish the regulatory flexibility that 

states have in favor of national solutions dictated from Washington. West Virginia 

has been successful in addressing new issues as they arise, within SMCRA’s regulatory framework. There are many requirements for the protection of the hydrologic 

balance an applicant for a permit must meet before a surface mining permit will 

be issued: 

• Core drilling must be conducted in the area where surface mining is proposed. 

Each layer of rock in the core sample is analyzed for chemical content. The 

data is used to determine which rock layers have potential to leach and 

produce pollutants. The principal focus has been on prevention of acid mine 

drainage (low pH and iron) and selenium pollution. Rock layers that exhibit 

this potential are required to be specially handled and placed, so the opportunity for these materials to come into contact with water is minimized. 

• The applicant must conduct extensive water sampling to establish the premining baseline condition for surface and ground water quality and quantity 

in the area of the proposed mine. The number of samples taken must be sufficient to establish the seasonal variation in these baseline conditions. 

• The applicant must perform a detailed analysis of the likely effects of its proposed mining operation. This analysis is called a ‘‘PHC’’ (prediction of Probable Hydrologic Consequences). 

• The applicant must include a Hydrologic Reclamation Plan (‘‘HRP’’) in its application. The HRP must contain measures the applicant will take to reduce 

the hydrologic impact of its proposed mining operation, comply with effluent 

limitations imposed under the CWA and a plan for replacement of the water 

supply of anyone whose water supply is unexpectedly contaminated or interrupted by the mining operation. 

• The applicant must perform a Storm Water Runoff Assessment (SWROA). In 

the SWROA, the applicant must model storm water runoff from the proposed 

mining operation under pre-mining, worst case during mining, and post mining scenarios. The SWROA must demonstrate that the mine has been designed so as to not allow a net increase in peak runoff in comparison to the 

pre-mining condition. There is no federal counterpart to West Virginia’s 

SWROA requirement. 

• The application must contain detailed engineering design information for all 

drainage control or water retention structures. 

• The applicant must demonstrate that it has minimized the amount of mine 

spoil it is not using in reclamation (excess spoil) and placing outside the 

mined area in a drainway or stream. West Virginia requires applicants to utilize a modeling tool called AOC+ (approximate original contour) in making 

this demonstration. This modeling tool has been in use for more than ten 

years and has been approved by USEPA, the Army Corps of Engineers and 

OSM as a legitimate means of demonstrating the amount of mine spoil returned to the mined-out area for use in reclamation has been optimized and 

the size of any fill placed in a stream outside the mined area has been minimized. 

• The agency must perform a Cumulative Hydrologic Impact Assessment 

(‘‘CHIA’’) for the proposed mine and all other existing or proposed mining in 

the cumulative impact area for the proposed operation. A permit will not be 

issued unless the agency can make a finding that the applicant has affirmatively demonstrated that its proposed operation has been designed to prevent 

‘‘material damage to the hydrologic balance outside the permit area’’. 

• West Virginia is one of a few states that have promulgated regulations defining ‘‘material damage to the hydrologic balance’’. There is no federal definition of this term. 

• The agency performs a Buffer Zone Analysis (‘‘BZA’’) for any permit which 

contemplates placement of spoil within one hundred feet of an intermittent 

or perennial stream. The BZA involves detailed environmental analyses of the 

environmental impacts of spoil placement in such areas and has been relied 

upon by the Army Corps of Engineers in its issuance of permits for miningrelated fills in waters of the United States under section 404 of the Clean 

Water Act. There is no parallel to the BZA in federal surface mining regulations. The BZA is described in more detail in the attached letter from Thomas 

D. Shope of OSM to Joseph M. Lovett dated December 8, 2009. This letter 

also contains a detailed discussion of how the West Virginia regulatory proVerDate Nov 24 2008 10:58 Nov 06, 2012 Jkt 000000 PO 00000 Frm 00024 Fmt 6633 Sfmt 6621 L:\DOCS\68511.TXT Hresour1 PsN: KATHY
21 

gram complies with the State stream buffer zone rule, which the subcommittee may also find to be of interest. • The permit must establish plans for monitoring surface and ground water 

quality and quantity during mining, so predictions in the applicant’s PHC can 

be verified. It must also include a during-mining monitoring plan for 

verification of the predictions of the SWROA it has conducted. • The State recently adopted permitting guidance for application of its narrative water quality standard for the protection of the biologic component of 

the aquatic ecosystem in NPDES permitting under the CWA. As a result, the 

Aquatic Ecosystem Protection Plans required under this guidance for the 

NPDES permitting program are now also being included in HRPs for mining 

operations. CHIAs the agency performs are also addressing protection of the 

aquatic ecosystem. 

Beyond the permitting requirements outlined above, the West Virginia regulatory 

program includes a number of performance standards that apply to all aspects of 

hydrologic protection that are addressed in permitting. The West Virginia Department of Environmental Protection inspects all permits on a minimum frequency of 

once per month to assure that performance standards and permit conditions are 

being met. Enforcement action is taken, including notices of violation and cessation 

orders, as appropriate, for a mine operator’s failure to comply. Civil penalties are 

assessed for non-compliance. Operators which fail to correct violations on a timely 

basis are blocked from receiving future permits. A pattern of violations can result 

in suspension or revocation of a mine operator’s permit. 

Impacts of the Stream Protection Rule 

As discussed above, the negative economic impacts OSM projects for the Appalachian region are quite substantial. Because OSM has yet to lift the veil on the 

actual language of its proposed rule, a concise assessment of the rule’s regulatory 

burden on state agencies cannot be performed. However, some observations can be 

made, based on the actions OSM has otherwise taken since the Interior Department 

signed on to the June 11, 2009 MOU and the concepts of the Stream Protection 

Measures Rule that state agencies have been able to glean from portions of the draft 

EIS and briefings OSM has provided. 

If the general direction OSM has taken since the June11, 2009 MOU is any indication, the regulatory burden the Stream Protection Measures Rule will impose on 

state regulatory programs can be expected to be quite substantial. Nearly every action OSM has taken since the June 11, 2009 MOU has increased the burden on the 

states. Consider that OSM: 

• Has unlawfully terminated the Abandoned Mine Lands emergency program 

and indicated that it will transfer the personnel OSM had previously dedicated to this program to oversight of state programs; 

• Proposed a draft budget that cuts funding of state regulatory programs by 

15%; and, 

• Promulgated, without formal rulemaking, three new policies governing oversight of state regulatory programs, REG–8, REG–23 and INE–35, which each 

alter the federal-state relationship that previously existed and impose substantial new bureaucratic regulatory burdens on the states. 

At the same time OSM is adding more sets of eyes to watch state regulators and 

increase the number of federal inquiries to which states must respond, it is proposing to reduce the amount of money available to the states to operate their programs and has aggressively increased the bureaucratic burden it imposes on the 

states. With a total re-write of all of the rules on how coal mining is conducted, the 

changes states must undergo to implement the Stream Protection Measures Rule 

may represent the most significant of any of the new burdens the current OSM has 

thrust upon the states. 

Another fundamental shift in the federal-state relationship under SMCRA that 

will come from the Stream Protection Measures Rule is in the ability of states to 

craft their regulatory programs as necessary to address local state issues. In the 

thirty four years since SMCRA was adopted, OSM has left two of the Act’s most 

fundamental concepts ‘‘approximate original contour’’ and ‘‘material damage to the 

hydrologic balance’’, to the states to apply. This was done with good reason. Application of ‘‘approximate original contour’’ in the rugged Appalachian terrain of eastern 

Kentucky, southwest Virginia and southern West Virginia raises far different issues 

than in the flatter farmland of Indiana or the western plains. Application of the 

term, ‘‘material damage to the hydrologic balance’’ necessarily involves vastly different issues in the arid west than in the more humid east. The Stream Protection 

Measures Rule will end the authority to deal with state-specific issues at the state 

level that states currently enjoy. It will impose national one-size-fits-all standards 

22 

from Washington. This approach runs contrary to one of the express findings Congress made in adopting SMCRA: 

[B]ecause of the diversity in terrain, climate, biologic, chemical, and other 

physical conditions in areas subject to mining operations, the primary governmental responsibility for developing, authorizing, issuing, and enforcing 

regulations for surface mining and reclamation operations subject to this 

Act should rest with the States[.] 

30 U.S.C. § 1201(f). 

There are many other specific issues with concepts that are expected to be embodied in the Stream Protection Measures Rule that are troublesome to the West 

Virginia Department of Environmental Protection. Some of them are: • SMCRA provides that it is not to be applied in a manner that will supersede, 

amend or repeal the federal Clean Water Act. 30 U.S.C. § 1292(a). This provision of SMCRA has been applied by the courts to reject a past attempt by 

OSM to establish what amounted to water quality standards. At the present 

time, several of the Appalachian states, including West Virginia, are in the 

process of establishing how narrative state water quality standards for the 

protection of biologic components of the aquatic ecosystem are to be applied 

in the context of the regulation of coal mining. This process involves great potential for conflict between USEPA and the states over the application the 

Clean Water Act in this area. OSM intends to interject itself in the middle 

of the debate between USEPA and the states over this issue by including a 

biologic component in its material damage definition . There is great potential 

for this element of OSM’s rules to conflict with the Clean Water Act. The biologic component of the material damage definition may be another unlawful 

attempt by OSM to establish what amounts to a water quality standard. • A proposed performance standard that would prohibit adverse impacts to a 

stream’s biologic community. This proposal suffers from the same defects that 

affect OSM’s proposal to include a biologic component in its material damage 

definition, as discussed in the paragraph above. • The material damage definition is also expected to include ‘‘quantification 

methods’’ to define what constitutes material damage. Again, OSM appears 

to be at risk of interfering with the Clean Water Act where these quantification methods amount to de facto numeric water quality standards. • The material damage definition will also include ‘‘corrective action thresholds’’ 

to identify trends and require correction before the level of material damage 

is reached. This, too, presents great potential for conflict with the Clean 

Water Act. The NPDES permitting program under the Clean Water Act has 

a process to establish effluent limitations for protection of water resources. 

Discharges from mines or other facilities that comply with these limitations 

are lawful and discharges that exceed these limitations are unlawful. OSM’s 

corrective action thresholds would appear to be attaching regulatory consequences to what would otherwise be lawful discharges under the Clean 

Water Act’s NPDES program, in conflict with the Clean Water Act. 

• The material damage definition is expected to codify OSM’s Acid Mine Drainage Policy. Without getting into an in-depth discussion of the AMD policy, 

this probably is a sufficient enough departure from the statutory language of 

SMCRA to require it to be adopted through Congressional action rather than 

agency rulemaking. 

• OSM will propose that approval to mine through natural drainage ways or 

streams be ‘‘sequenced’’. By this, OSM means that a mine must completely 

reclaim a drainway it has mined through, including restoration of the premining biologic community in the drainway, before the mine will be allowed 

to mine through any subsequent drainway. In as much as drainways across 

Appalachian mountain sides may be separated by only a couple hundred feet, 

this proposal is entirely unrealistic. 

• The portion of the Stream Protection Measures Rule that deals with disposal 

of excess spoil proposes to require constructed aquatards within excess spoil 

fills. Historically, nearly all of the construction standards that have applied 

to excess spoil fills have been oriented toward assuring their stability. One 

element of the design has been to assure that these structures drain freely. 

An aquatard is a layer of decreased permeability where water will be forced 

to drain laterally through the interior of a fill. This has the potential to seriously compromise the structural integrity of these fills. Our engineers refer 

to the aquatard as a ‘‘failure plane.’’ The failure of such a structure would 

be a threat to public safety. 

• The excess spoil disposal rules will also require the tops of fills to be sloped 

to cause drainage to run off instead of infiltrating the fill. Achieving the goal 

23 

of promoting runoff will cause peak flow to increase during rain events, contributing to offsite flooding. 

• OSM proposes to place additional restrictions on the granting of variances 

from the existing requirement for restoration of the approximate original contour of mined lands. This proposal has great potential to conflict with West 

Virginia land use planning laws. The coal mining areas of southern West Virginia have had little economic development because the terrain is too rugged. 

The State Legislature has recognized that mining presents a unique opportunity to provide a resource that these areas lack, flat land. This is essential 

to the future, post-mining economic viability of these areas. The State has 

adopted legislation which requires county level economic development authorities to develop county-wide master land use plans. These plans are required to be approved by state government and to meet certain minimum 

state requirements. Each plan must be updated and re-approved by the State 

at three year intervals so as assure that it remains current. Under these 

plans, land that is proximal to supporting infrastructure, such as four lane 

highways or other transportation corridors, is targeted for development while 

forestry and comparable land uses are planned for more remote lands. New 

mining operations are required to attain a post mine land use that comports 

with the county master land use plan. OSM’s proposal to further restrict 

variances from the approximate original contour requirement conflicts with 

these State land use laws and may foreclose the opportunity to provide flat 

land through the mining process, so there can be economic development of 

these historically coal dependent areas after the coal is gone. 

Conclusion 

I sincerely hope this written statement, the attachment submitted herewith and 

the oral testimony presented before the subcommittee are useful to it. If I can be 

of further assistance to the subcommittee, please contact me. 

Attachment 

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68511.010.eps
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68511.011.eps
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68511.012.eps
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Mr. LAMBORN. Thank you, Mr. Clarke. Mr. Lambert? 


68511.014.eps 68511.015.eps
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STATEMENT OF BRADLEY C. LAMBERT, DEPUTY DIRECTOR, 

VIRGINIA DEPARTMENT OF MINES, MINERALS & ENERGY 

Mr. LAMBERT. Good morning, Mr Chairman and members of the 

Subcommittee. My name is Bradley Lambert and I serve as the 

Deputy Director of the Virginia Department of Mines, Minerals and 

Energy. Thank you for this opportunity to appear before you today. 

The coalfields of Virginia are characterized by steep slopes and 

narrow valleys. The mines in Virginia predominantly consist of underground and contour surface operations. Without coal surface 

mining, land uses such as hospitals, schools, shopping centers, airports, residential development, commercial and industrial development would not exist. 

Virginia obtained primacy from OSM as a regulatory authority 

for coal surface mining in December of 1981. OSM’s annual oversight reports for Virginia have not identified any problems that 

would necessitate such a drastic rule change as we’re here today 

to testify about. OSM stated in a 2010 report that they did not 

identify any systemic failures within the Virginia state program. 

Mr. Chairman, I’d like to submit for the record a copy of the 

2010 Annual Report from OSM on Virginia. 

Mr. LAMBORN. If there is no objection, that will be included in 

the record. 

[NOTE: The reports for Virginia and Wyoming can be 

found at http://www.osmre.gov/Reports/EvalInfo/2010/VA10- 

aml-reg.pdf and http://www.osmre.gov/Reports/EvalInfo/ 

2010/WY10-reg.pdf] 

Mr. LAMBERT. After implementing years of stellar regulatory programs, OSM appears to be determined to impose a drastic change 

in how states administer our programs. In 2009, three Federal 

agencies including OSM, EPA and the Army Corps of Engineers, 

signed a MOU that appears to be the basis for the effort by OSM 

to change or revise the long-standing stream buffer zone rule. 

Early in the development of the draft EIS of the rule, OSM invited 

several states to participate as cooperating agencies. OSM hired a 

contractor from outside the coal mining regions who had no coal 

mining background. State cooperating agencies voiced their concern 

about the contractor and its ability to complete the draft EIS. 

OSM set an unreasonable time schedule for the review of each 

chapter of the draft and provide comments. In most cases, only five 

days were allowed for the review. The cooperating agencies expressed concerns regarding the timeframes under which they had 

to provide comments and many times requested an extension for 

the submission of comments. OSM never granted these requests. 

This proposed rulemaking will almost completely revise and undo 

30 years of progress in the developing of regulatory framework in 

which primacy states, such as Virginia, administer their program. 

It has been learned that OSM dedicated $7 million to completing 

the draft EIS. After the state cooperating agencies and other organizations outlined grave deficiencies in the draft of the EIS from 

the contractor, OSM removed the contractor as the lead and 

stopped their work. However, the contractor was paid $3.5 million 

for their deficient, inaccurate work. Now, it’s been learned that 

OSM has hired another contractor for an additional $1 million for 

32 

work on the draft EIS. To date, $4.5 million has been spent on the 

draft with nothing completed. 

On March 8, 2011, Virginia Governor Robert F. McDonnell wrote 

a letter to the Interior Secretary, Ken Salazar, expressing deep concerns about the draft EIS and other regulatory actions taken by 

OSM. Among those concerns were the potential significant and 

negative impacts of these actions on Virginia’s coal industry and 

the economy. OSM director Joseph Pizarchik responded on behalf 

of Secretary Salazar. Mr. Chairman, I’d like to submit for the 

record both the letter from Governor McDonnell and a response letter from OSM Director Pizarchik. 

Mr. LAMBORN. If there is no objection, that will be entered into 

the record. 

[The letters submitted for the record follow:] 

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68511.021.eps
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Mr. LAMBERT. Another major assumption in the draft EIS is that 

metallurgical coal production from the Appalachian Basin, including Virginia, would be offset with production from other sources. 

Virginia coal has a higher BTU and lower sulfur content than the 

national average. This quality makes Virginia coal more desirable 

for metallurgical coke production and export overseas for the export 

market. 

Finally, in a July 9, 2010 OSM press release titled, ‘‘Reducing 

the Social Cost of Energy,’’ the agency stated that the intent of 

their oversight role. The release points out that the role of OSM 

is to help states maintain high standards and maintain a level 

playing field so that the industry in any one state does not have 

an unfair advantage in interstate competition. 

Mr. Chairman, clearly this is not the direction set out in the 

draft EIS. As pointed out by the contractor, coal production would 


68511.022.eps
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be shifted from the Appalachian Basin to the western region and, 

in most cases, metallurgical coal production would have to be provided from overseas sources. 

Thank you for this opportunity this morning and I will be happy 

to answer any questions you may have. 

[The prepared statement of Mr. Lambert follows:] 

Statement of Bradley C. (Butch) Lambert, Deputy Director, 

Virginia Department of Mines, Minerals and Energy 

My name is Bradley C. Lambert and I serve as Deputy Director of the Virginia 

Department of Mines, Minerals and Energy (DMME). I appreciate the opportunity 

to present this statement to the Subcommittee regarding the views of the DMME 

on the rewrite on the Stream Buffer Zone Rule. 

I would like to begin by providing you with some background information about 

the Virginia coal industry and DMME. Coal production has been important to Virginia’s economic development since colonial days. The first commercial coal production in the United States occurred in 1748 from the Richmond Coal Basin just west 

of the State Capital in Richmond, Virginia. Coal production was important to Virginia until the Civil War during which much of the coal industry was destroyed. 

Commercial coal mining later rebounded in Virginia’s southwestern-most counties 

in the 1880’s and has been conducted continuously through to the present. Today, 

coal is produced in the seven extreme southwest Virginia counties. 

Virginia first implemented rules to address coal mining and reclamation issues in 

1966. The minimal requirements of the early law and regulations failed to keep pace 

with the rapid expansion of surface mining activities in the Appalachian region. Following the passage of the 1977 Federal Surface Mining Control and Reclamation 

Act, Virginia sought and obtained primacy from the U.S. Office of Surface Mining 

(OSM) as the primary regulatory authority for coal surface mining in December of 

1981. 

The coalfields of Virginia are characterized by steep slopes and narrow valleys. 

The mines in Virginia predominantly consist of underground and contour surface 

operations. Other operations include auger and highwall mining. Presently, Virginia 

has four mountaintop removal coal mines. These four operations have post mining 

land uses that include farm land, industrial, commercial or residential. Without 

mountaintop mining operations, land uses such as hospitals, schools, shopping centers, airports, and residential and commercial/industrial development would not 

exist. 

Coal production in Virginia peaked at 47 million tons in 1990. Expected production for 2011 will reach approximately 23 million tons. Virginia coal is of a higher 

British Thermal Unit (BTU) and lower sulfur content than the national average. 

This quality has made Virginia coal more desirable for metallurgical coke production 

and for the export market. 

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

innovator in many areas. Many states have benchmarked with Virginia on areas 

such as electronic permitting, underground mine mapping and the development of 

a GIS database that includes all surface mining areas as well as abandoned mined 

lands. Virginia continues to work on making this information available for public 

viewing through an outward facing web site. Through our electronic permitting system, other state and federal agencies can access coal mining permit data and applications and provide comments using the electronic application. 

OSM’s Draft Environmental Impact Statement for the Proposed Stream 

Buffer Zone Rule 

The OSM’s annual oversight reports for Virginia have not identified any problems 

that would necessitate such a drastic rule making. In fact, in the OSM Annual Evaluation Summary Report for the evaluation year of 2011, OSM writes ‘‘Since the mid 

1990’s OSM has focused oversight on the ‘‘on ground’’ results that states are achieving. OSM is proposing that future oversight will likely include review of state permitting processes more closely. Yet, even when evaluated with a slightly different view 

on oversight, OSM finds that DMLR has successfully implemented both its regulatory and abandoned mine land program during the past year. OSM did not identify any systemic failures within the State program.’’ We are submitting for the 

record a copy of the OSM’s Annual Evaluation Summary Report for the Regulatory 

and Abandoned Mine Land Programs Administered by the Commonwealth of Virginia for 2010. 

38 

For years the states have been administering stellar regulatory programs. Now 

the OSM appears to be determined to impose a drastic change in how states administer their programs. The OSM has not provided any information to the states as 

to the reason for revising the Stream Buffer Zone Rule that they have now termed 

the Stream Protection Rule. Nothing in the states’ Annual Evaluation Report indicates that the states are doing a poor job of enforcing the current surface mining 

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

(EPA) and the U.S. Army Corps of Engineers (ACOE) signed a Memorandum of Understanding (MOU) in 2009, that appears to be the basis for the effort by OSM to 

change/revise the long standing Stream Buffer Zone Rule. The states were not consulted about or invited to sign this MOU, which is aimed at altering state regulatory programs. Yet this MOU is having a direct impact on the implementation of 

state programs. One significant item resulting from the MOU was the proposed the 

Stream Buffer Zone Rule. Early in the development of the draft rule OSM invited 

several states; including Virginia to participate in the development of the draft Environmental Impact Statement (DEIS) as cooperating agencies. OSM hired a contractor from outside the coal mining regions who had no mining background. Cooperating agency states voiced their concern about the contactor and its ability to 

complete the DEIS; however OSM moved forward with the contract. 

OSM set an unreasonable time schedule for cooperating agencies to review each 

chapter of the DEIS and provide comments back to OSM. In most cases only five 

days were allowed for the review. Due to such short timeframes for review and comment, meaningful input was made nearly impossible. In order to comply with these 

deadlines, states had to devote considerable staff time to the preparation of their 

comments which left less time for review of permit applications, answering citizen’s 

complaints and completing required permit inspections. The cooperating agencies 

expressed concerns regarding the constrained timeframes under which they had to 

operate to provide comments and requested an extension for submission of comments on many occasions. 

OSM never granted these requests, even though OSM allowed additional time for 

the contractor to complete their work. It was made clear that if comments were not 

provided, they would not be accepted. However, any conflicting or critical statements 

from the cooperating agencies were ignored and not addressed in the DEIS. Later 

it was learned that other federal agencies that were reviewing the DEIS were not 

under the same time constraints for providing comments as were the states. 

The DEIS provided to cooperating agencies for their review and comments appears to be a document designed to support and rationalize OSM’s decision to promulgate rules to diminish or eliminate Appalachian surface coal mining. All the action alternatives examined in the DEIS, other than taking no action, predict that 

the proposed stream protection rules would decrease Appalachian surface coal mining significantly. The predictions of decrease range from 10% to 100%—with OSM’s 

preferred alternative (Alternative 5 in the DEIS) predicting a 30% decrease. 

A major assumption is that metallurgical coal production from the Appalachian 

regions would need to be offset with production from other areas. The DEIS does 

not identify any other possible sources of metallurgical coal. This implies metallurgical coal would have to be obtained outside the United States. As metallurgical coal 

sale prices are usually three or four times higher than coal used for electricity generation, this would have a major economic impact (as inferred in the DEIS) since 

there will be a significant loss of coal needed for steel production. 

The DEIS appears to have been developed by individuals who are unfamiliar with 

the ecological functions, geology, hydrology, and mining practices in individual 

states. The data and impacts identified are limited to specific states within the Appalachian Region; however, the requirements contained within this document will 

pertain to each state within the entire Region. 

Instead of a document designed to support and rationalize a pre-determined outcome, the DEIS should be a statement of fact-based alternative environmental results. Furthermore, the alternative outcomes should seriously consider the single 

most significant factor influencing environmental conditions in Virginia’s coalfields—old abandoned mined lands (AML). The DEIS does not address the existing 

impacts to watersheds from pre-law mining and other non-point sources of impairments which affect most streams in the mining areas in Virginia. Approximately 90 

percent of the streams in the Virginia coalfields have been impacted by water quality degradation, stream function degradation, loss of riparian habitat, etc. Surface 

mining has been used effectively in conjunction with Total Maximum Daily Load 

(TMDL) requirements to correct AML features which would never be addressed with 

AML funding. In fact, the TMDL implementation plans rely almost exclusively on 

remining, TMDL offsets and no-cost agreements to restore these streams to an 

unimpaired level. 

39 

Reduction/elimination of surface mining in Virginia will severely impact stream 

restoration efforts. There are no other resources available to the coalfield communities to restore impaired streams. The shift of coal mining to the western United 

States will also reduce the AML funding available to restore impacted eastern 

streams through the OSM Clean Streams Initiative. 

The lack of attention to AML is one of several technical concerns that our agency 

has with the information in the DEIS. Other technical issues include OSM’s efforts 

to define material damage, mandate post mining land uses, and misrepresent some 

of the scientific data. 

OSM is proposing that material damage to the hydrologic balance be defined as 

a measurable adverse impact on water quality and quantity resulting from degraded 

biological conditions in the intermittent and perennial stream network within the 

watershed. The concept that any measurable adverse impact be considered ‘‘material damage’’ is contrary to the plain language of SMCRA which states in Section 

515 (b): ‘‘General performance standards shall be applicable to all surface coal mining and reclamation operations and shall require the operation to minimize the disturbances to the prevailing hydrologic balance at the mine-site and in associated offsite areas and to the quality and quantity of water in surface and ground water systems both during and after surface coal mining operations and during reclamation 

to the extent possible using the best technology currently available.’’ As can be seen 

by this language the intent is to ‘‘minimize’’ adverse impacts to the hydrological balance—not to prevent any adverse impact. It is impossible to conduct surface disturbance operations such as coal mining or even underground mining operations, without temporarily leaving a footprint of some sort on the environment. 

The DEIS proposes a mandated post-mining land use. This is contrary to the spirit of SMCRA. Even though Virginia encourages reforestation, we recognize the environmental and economical value in a range of post mining land uses and the landowner’s rights to implement land uses that are approved and properly implemented. 

Mandatory post mining land use requirements appear to be designed as simply another general obstacle to surface mining, as opposed to the idea of improving conditions after mining in such a way that mined lands properly reclaimed. 

Virginia has been a leader in promoting successful reclamation of mined lands. 

Working closely with Virginia Tech and other colleges and universities, Virginia and 

other Appalachian states and OSM developed a method for reclaiming mined lands 

to a reforestation land use. In 2011 in Virginia, 2226.75 acres were planted with 

a total of 1,475,293 trees. Of that total, 98.20% of the acres were reclaimed using 

the method developed. The reforestation method was accomplished in cooperation 

with the request of the landowner. The DEIS would not take into account the landowner’s request for a post mining land use. The statement in the DEIS of post mining land uses going to hay/land pasture is not true in Virginia. The majority of coal 

mine reclamation returns land to an unmanaged forest post mining land use. 

Many of the scientific studies referenced throughout this EIS have been misrepresented and taken out of context. Others were not extracted from peer reviewed journals and should not be included in a decision document. Studies involving the effects of total dissolved solids (TDS) on coalfield streams did not include data collected from Virginia, even though our agency has been effectively addressing TDS 

through the TMDL program since 2005. Yet findings of the cited studies are being 

broadly applied to Virginia. 

OSM’s proposed rulemaking on ‘‘stream protection measures’’ appears to be headed in a direction that will jeopardize the coal mining industry in Virginia. This proposed rulemaking will almost completely revise the Surface Mining Control and Reclamation Act (SMCRA) of 1977. This will undo over 30 years of progress in developing a regulatory framework in which primacy states, such as Virginia, administer 

a state-specific program, approved by the Secretary of the Interior, that is as effective as and no less stringent than the federal program. 

Several proposals in the OSM DEIS regarding ‘‘preferred alternatives’’ (such as 

not allowing a mine-through of a stream or drain way) are troubling. The requirements that, before a stream or drain way could be mined through, there must be 

a demonstration made by the applicant that the stream ‘‘form and function’’ can be 

restored, and that a premining impaired condition of a stream would not be accepted as the standard for measurement of success fly in the face of the Clean Water 

Act Rahall Amendment. This amendment authorizes the discharge of impaired 

waters from reclaimed remining operations as long as it is as good as or better than 

the premining baseline water quality. 

40 

Virginia mining operations containing stream channel reconstructions, such as the 

one pictured above, have won numerous awards including the Appalachian Region 

Reforestation Initiative Award presented by OSM, the National Association of State 

Land Reclamationist Award and the Interstate Mining Compact Commission’s 

Kenes C. Bowling Award. 

OSM does not have the statutory authority to over ride Clean Water Act provisions such as the Rahall Amendment. The proposed rule contains numerous statements that OSM does not intend to utilize Clean Water Act provisions. For instance, 

in the preferred alternative for stream definition, OSM’s DEIS preferred alternative 

states, ‘‘This Proposed Action does not follow. . .Alternative #4’s reliance on the 

CWA definitions.’’ As the Army Corps of Engineers (CORPS) is charged with designating jurisdictional waters for the purposes of Section 404 mining permits, OSM 

is establishing a separate stream designation process that it clearly intends to set 

up at its own discretion. This will most likely result in confusion and litigation, allowing second guessing of Corps’ jurisdictional determinations. 

Statements in the DEIS lead the readers to believe that underground mining 

methods such as longwall mining will not be impacted. Underground mining can 

and will in some cases cause subsidence which will impact surface structures including streams. One statement in the document says that longwall mining does not 

cause subsidence even at depth. Those familiar with this type of mining know that 

this statement is not true. In fact, these operations plan for subsidence well in advance of mining. Underground mining, especially longwall mining, would be significantly restricted not only in the Appalachian region but any area where this type 

of mining is used since streams would be impacted by subsidence. 

Turning to the cost of the EIS, it has been determined that OSM had dedicated 

seven million dollars to completing the DEIS. These are funds that were originally 

identified for state regulatory programs. After the state cooperating agencies and 

other organizations outlined grave deficiencies in the DEIS from the contractor, 

OSM removed the contractor and stopped their work in developing the DEIS. However, the contractor was paid $3.5 million for their substandard and inaccurate 

work. OSM never had any discussions with the cooperating agencies about the problem with the contractor and were never notified that the contractor had been removed until after the fact. Now it has been learned that OSM has hired another 

contractor for $1 million for additional work on the DEIS. To date, $4.5 million has 

been spent on this DEIS with nothing completed. 

The impact of the DEIS alternatives on state regulatory programs has not been 

studied. The implications of these alternatives, such as increased permitting and 

monitoring requirements would be staggering. The changes proposed by the DEIS 

would create changes to the permitting process, which would mean increased staff 

for permit review, bonding review and most of all an increase in required funding 

for state programs. OSM’s proposed funding for state programs has been decreasing 

over the last several years. In April of this year, states appeared before this subcommittee to express concerns about the potential federal budget reduction for state 

programs. At no time in the development of the DEIS has OSM consulted with 

states for input regarding the impact on additional resources and additional permit 

review times that the various alternatives would require. 

On March 8, 2011, Virginia Governor Robert F. McDonnell wrote a letter to Interior Secretary Ken Salazar expressing deep concerns about the DEIS and other regulatory action taken by OSM. (Governor McDonnell’s letter and a response from 

OSM Director Joseph Pizarchik on behalf of Secretary Salazar are submitted for the 


68511.001.eps
41 

record.) Among those concerns were the potential significant and negative impacts 

of these actions on Virginia’s coal industry and economy. One of Virginia’s vital resources, coal is used to produce 48% of the electricity consumed in the state, and 

much of Virginia’s coals are of high grade metallurgical grade. Governor McDonnell 

also noted that coal production in the southwest region of the state is the primary 

economic engine for the region. Coal mining jobs are among the highest paying in 

the area, and many small businesses depend on the coal industry for their livelihood. 

The authors of the DEIS did not consider the census data for population trends. 

There are continuing out-migrations of people from the Appalachian coalfields, and 

any loss of jobs from the coal industry will only hasten the exodus. The employment 

in Virginia’s mining industry has continued to decline during the past decade, not 

grow as indicated in the DEIS. The authors did not consult with state agencies for 

any employment numbers; they only made assumptions. Throughout the DEIS, the 

loss of direct service jobs, local retail jobs, as well as other indirect employment appears not to have been considered. In fact, projected employment loss is sometimes 

noted in the DEIS as being minor. However, local planning agencies in Virginia estimate that the multiplier effect of one coal mining job is from 4–6 additional jobs. 

In addition to the impacts of the stream protection measures on the industry and 

economy, Governor McDonnell noted that these requirements would have a detrimental effect on the remining of previously mined lands where lower priority abandoned mine land (AML) features continue to impact the environment. These impacts 

are not addressed in the DEIS. Nearly 80% of surface coal mining in Virginia involves some remining, including the use of no-cost AML projects where mining companies can reclaim AML features adjacent to permitted active coal mining sites. Remining has proven to be a viable method of correcting serious environmental and 

other problems that would not otherwise be funded under the Abandoned Mine 

Land Program. 

Finally, Governor McDonnell voiced his concerns that OSM has failed to follow 

Administrative Procedures Act and National Environmental Policy Act requirements 

in their rulemaking process. This equated to OSM writing the rule without completing a valid EIS and stating what the ‘‘answer’’ is without defining the ‘‘problem.’’ 

Contrary to OSM’s assertion in OSM Director Pizarchik’s response to Governor 

McDonnell that such failures did not take place, state agencies learned from information leaked on OSM’s Share Point website that indeed OSM had developed a 

draft Stream Protection Rule. 

In summary, although the DEIS regarding OSM’s proposed Stream Protection 

Rule examines the effects of the rulemaking on the 25 coal producing states, during 

the review of the document, staff from Virginia’s Department of Mines, Minerals 

and Energy discovered that the majority of the adverse impacts will be within the 

Appalachian Basin. The effects of this rulemaking would eliminate many jobs and 

millions of dollars of revenue in Virginia. Virginia does not agree with the proposed 

rulemaking and the findings of the DEIS. Much, if not most, of the data included 

in the DEIS are not supported by any actual facts or figures. The information provided in the DEIS is often and inexcusably biased against the Appalachian Basin 

especially, in Virginia. OSM has a predetermined outcome (elimination of surface 

coal mining in the Appalachian Basin) and has not analyzed data nor conducted any 

studies to support their conclusions. 

Virginia believes that the state’s environmental resources are protected by Virginia’s current mining laws and regulations. We also believe that the economic impacts of the rulemaking are severely understated. Local level impacts would be intense and a global impact would be expected. A major assumption in the DEIS is 

that metallurgical coal production from the Appalachian Basin, including Virginia, 

would be offset with production from other sources. However, high value metallurgical coal would have to be obtained from outside the United States which is another example of industries moving overseas to the detriment of domestic production. 

In a July 9, 2002, OSM press release titled, ‘‘Reducing the Social Cost of Energy,’’ 

the agency stated the intent of their oversight role. The release points out that the 

role of OSM is to help states maintain high standards and maintain a level playing 

field so the industry in any one state does not have an unfair advantage in interstate competition. Clearly, this is not the direction of the DEIS. As pointed out by 

the contractor, coal production would be shifted for the Appalachian Basin to the 

western region, and in the case of metallurgical coal, that production may be moved 

overseas. 

One impact that has not been fully explored is the impacts to the AML program 

that may see human and health and safety problems go unabated with the loss of 

AML taxes on coal production. Employment opportunities in the Appalachian Basin 

42 

are very limited and the loss of over seven thousand jobs as predicted in the DEIS 

would only increase the poverty level in the area. Mining provides some of the highest paying jobs in Southwest Virginia, and many small businesses depend upon coal 

companies for the bulk if not all of their income. Coal mining plays a major role 

in the opening up of areas for development. The Virginia Coalfield Economic Development Authority works closely with the respective county Industrial Development 

Authorities and coal companies to locate and acquire reclaimed level land for industrial development. 

It is also of note that the OSM DEIS does not include any changes to mining and 

permitting due to EPA’s reinterpretation of the Clean Water Act. The combined impacts of these agencies’ actions are devastating to the nation’s economic and energy 

future. OSM’s rulemaking proposes to shift coal mining production from the eastern 

United States to the western region to the detriment of the Appalachian Basin’s 

economy. 

Mr. LAMBORN. Thank you for your testimony and now to help us 

get a national perspective, the gentleman from Wyoming, Mr. 

Corra. 

STATEMENT OF JOHN CORRA, DIRECTOR, 

WYOMING DEPARTMENT OF ENVIRONMENTAL QUALITY 

Mr. CORRA. Thank you, Mr. Chairman. My name is John Corra. 

I’m the Director of the Wyoming Department of Environmental 

Quality. And I thank the Subcommittee for inviting us to testify 

today. 

The OSM has used a court order and an agreement with other 

Federal agencies aimed at tackling a problem in Appalachia as an 

excuse to impose unnecessary and costly over-regulation across all 

coal mining states. OSM’s rush for completing the rulemaking is 

limited to the thoughtful and reasonable ‘‘hard look’’ as required 

under NEPA. 

The memorandum of understanding between the U.S. EPA, the 

Army Corps of Engineers and the Department of the Interior was 

specifically targeted at Appalachian coal mining, yet OSM has 

launched a nationwide overhaul of its program. As noted in a Western Governors’ Association letter to Secretary Salazar in February 

of this year, a copy of which I submit for the record, we are unaware of any objective data, scientific or otherwise, that supports 

this level of change to SMCRA. 

Mr. LAMBORN. And if there is no objection, we will enter that 

into the record, as well. 

[The letter from the Western Governors’ Association follows:] 

43 


68511.016.eps
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68511.017.eps
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Mr. CORRA. In fact, there is significant evidence from OSM’s own 

evaluation reports for Wyoming and other western states that current regulatory programs are working well. I would urge the OSM 

to reexamine the purpose and need for these rules. Now, if OSM 

proceeds with this rulemaking, it should be reminded not only of 

the MOU but also its own recognition of differences between east 

and west, and thereby apply the proposed regulations only east of 

the 100th meridian. This approach would parallel SMCRA’s current legal framework and guidance documents. 

For example, alluvial valley floor protection is only west of the 

100th meridian and, likewise, a bond release clock is only five 

years east of that line, ten years west of that line. 

Also, recognizing differences in water uses, quality and availability, Clean Water Act regulations have also treated area of the 

country west of the 98th meridian differently than the east. We 

can’t help but think that both the Corps and EPA had this historical perspective about the nation’s waters outside of Appalachia in 

mind when they signed the MOU. 

This rulemaking may also conflict with state authorities under 

the Clean Water Act. OSM does not have the authority to attempt 

to broaden a state’s water quality standards by adopting new 

stream definitions, criteria and other restrictions. OSM’s actions 

consistently appear to avoid or limit public and state comment. 

They have done so throughout the process. Scoping meetings were 

a sham because the public was not even allowed to speak at the 

agency’s public meetings. The open house meeting in Gillette, Wyoming, for example, which is the center of 40 percent of the coal production in the United States, was held on the evening of July 29, 

2010. The comment period ended the next day. 

The proposed rules will result in massive increases of information and data collection that may not even be useful or practical 

in improving environmental performance. To elaborate on just one 

aspect of those changes, the use of climax communities as a vegetation standard, it is widely recognized that periodic drought conditions, grazing impacts, and other pre-mining land uses make it 

nearly impossible to determine what the climax state of vegetation 


68511.018.eps
46 

was or might be, let alone how accurately to measure it in the 

west. 

OSM also appears to be ignoring the substantial resource implications for these proposed rules. We find this particularly disturbing in light of the fact that OSM has a goal of significantly reducing their share of funding for our regulatory programs, while simultaneously considering adding significant staff for oversight activities, as well as significant staff to implement the stream protection rule. 

We’re hopeful that OSM will comply with its obligations under 

NEPA and conduct a genuine EIS process where states are engaged in meaningful discussions. It must also make the effort to 

conduct a thorough economic analysis. What we have seen so far 

is inadequate, given the complex decision making process end users 

use when they make fuel-switching decisions. Just the myriad air 

and water rules that are either published or pending regarding the 

utility industry alone is enough to throw into question any simple 

assumptions that coal production will simply shift around the country as a result of OSM’s proposal. 

Mr. Chairman, in my written testimony I presented some photographs of how we do it in Wyoming and I’ll quickly refer to those. 

On page seven of my written testimony, if you have it in front 

of you, is a picture of North Tisdale Creek. It was mined in the 

1990s. It’s been restored. That mine received an OSM Director 

Award in 2003 and again in 2009 for successful reclamation and 

creation of wildlife habitat. 

On page eight, you’ll see Exhibits 2A and 2B. This is the Tongue 

River Stream Restoration Project, which won this year’s OSM Director’s Excellence in Surface Coal Mining Award. The mining operation passed through Goose Creek and the Tongue River, which 

are fisheries in that part of Wyoming. Note how the stream had to 

be relocated during mining and how it took care of some post—or 

pre-mining underground subsidence features as well. 

Last, Exhibits 3A and 3B on page nine show another restoration 

project at Caballo Creek, which won the 2007 OSM Director’s 

Award. Note the preservation of the stream gradient. Lots of things 

were done that you can’t see below the surface. 

Mr. Chairman, we think that the State of Wyoming knows how 

to do this. We understand the previous stream buffer zone rules. 

We think we did it right and we do not understand the need for 

us to have this new rule. 

Thank you. 

[The prepared statement of Mr. Corra follows:] 

Statement of John Corra, Director, 

Wyoming Department of Environmental Quality 

My name is John Corra. I am the Director of the Wyoming Department of Environmental Quality. I wish to thank the Subcommittee for inviting the State of Wyoming to testify at this hearing today. Wyoming coal mines produced 442 million tons 

of coal in 2010, over 40% of the nation’s total production. This was accomplished 

by 6,800 miners operating some the most advanced equipment at 18 mines across 

the state. Production generates over $1.8 billion in taxes, royalties and fees for use 

by federal, state and local governments. The economic impact to the state is much 

greater. The industry has been recognized many times for both its superior safety 

programs and its innovative reclamation efforts. We have primacy for the administration of the Surface Mining Control and Reclamation Act (SMCRA) in Wyoming, 

47 

and year over year receive high marks from the Office of Surface Mining (OSM) for 

our regulatory programs. 

I would like to talk with you today about how Wyoming protects its waters and 

why this rule has little value for us. I will also speak to the disappointing process 

that has been followed to date relative to the Environmental Impact Statement 

(EIS) for this rule. 

The OSM has used a court order and an agreement with other federal agencies 

that were aimed at tackling a problem in Appalachia as an excuse to impose unnecessary and costly over regulation across all coal mining states. The action OSM 

is undertaking is a comprehensive rewrite of regulations under SMCRA, not just a 

stream protection rule. The packaging of this major revision to a law that has 

served the country well for over 40 years as a ‘‘stream protection rule’’ is misleading. 

Some of the changes being contemplated have broad implications and deserve 

thoughtful re-evaluation. 

We are unaware of any objective data, scientific or otherwise, that supports this 

level of change to SMCRA. The agency has not provided any objective data to support such comprehensive regulatory changes. In fact, OSM’s most recent evaluation 

reports for 2010 strongly suggest otherwise. For example, the report for our state 

says that:’’. . .the Wyoming program is being carried out in an effective manner.’’ 

The report also shows that we have gained much ground in increasing the ratio of 

acres reclaimed to disturbed acres over the past 12 years. The report also mentions 

no issues with regard to restoring mined land to approximate original contour or 

reclamation bonding. The report goes on to say that: ‘‘this lack of additional enforcement actions, despite increased inspection frequency, helps illustrate the effectiveness of Wyoming’s regulatory program.’’ And, inspections increased during the reporting period by a very significant 78%! While we are not perfect, and OSM does 

at times ask us to correct deficiencies, there is significant evidence from the OSM’s 

own evaluation reports for Wyoming and other western states that current regulatory programs are working. Wyoming sees no justification for these significant 

rule changes or for the necessity of applying them nationwide. 

OSM’s rush for completing the rulemaking is at the expense of thoughtful discourse as required by National Environmental Policy Act (NEPA). This undue haste 

is limiting the thoughtful and reasonable ‘‘hard look’’ as required under NEPA. Although OSM had earlier identified an option to apply the regulations only to mountaintop removal and steep slope operations in Appalachia, that alternative seems to 

have been dropped. One of the primary justifications put forward by the agency in 

its Federal Register notice is a June 11, 2009 memorandum of understanding 

(MOU) between the U.S. Environmental Protection Agency, the U.S. Army Corps of 

Engineers and the Department of Interior. The MOU was specifically targeted at 

‘‘Appalachian Surface Coal Mining’’, and Section 404 of the Clean Water Act (CWA) 

in the states of Kentucky, Ohio, Pennsylvania, Tennessee, Virginia and West Virginia. Despite this clear limitation in the MOU, the OSM rules are written to apply 

everywhere, including Wyoming. 

NEPA requires an EIS to examine all reasonable alternatives to the proposal. If 

OSM proceeds with this rulemaking, it should be reminded not only of the MOU, 

but also its own recognition of differences between east and west and thereby apply 

the proposed regulations only east of the 100th Meridian. This approach would parallel SMCRA’s (30 CFR Chapter VII 785.19) current legal framework and guidance 

documents reflecting recognition of hydrologic and reclamation changes at the 100th 

Meridian. For example, alluvial valley floor protection is only applied west of the 

100th meridian. Likewise, the bond release clock is 5 years east of this line and 10 

years for the west, which is a recognition of the arid and semi-arid environment in 

the western U.S. 

The Clean Water Act also recognizes the unique differences between the arid west 

and the eastern part of the U.S. as noted in the National Pollutant Discharge Elimination System (NPDES) surface discharge regulatory program. This rulemaking 

may also conflict with state authorities under both the state SMCRA programs and 

under the Clean Water Act (CWA). OSM does not have the authority to attempt to 

broaden a state’s water quality standards by adding new stream definitions, criteria, 

and restrictions such as ‘‘material damage to the hydrologic balance.’’ There are no 

federal water quality standards in Wyoming and OSM lacks the authority to establish any. OSM must work through the State rulemaking process since the authority 

to establish water quality standards rests solely with the state. OSM cannot do an 

end run around the prohibition against setting water quality standards by requiring 

state regulatory authorities to establish more stringent ‘‘corrective action thresholds’’ at the direction of OSM. In addition, ‘‘enhancement’’ concepts are likely to conflict with mitigation requirements under the Corps’ § 404 program. OSM’s proposals 

48 

have serious potential to directly conflict with and/or duplicate CWA requirements 

of the state and/or the Corps. 

There are good reasons to make a distinction between the management and regulation of water in the western U.S. as compared to the east. Recognizing differences 

in water uses, quality and availability, Clean Water Act regulations have historically treated the area of the country west of the 98th meridian (arid west) differently than the eastern portions. We can’t help but think that both the Corps and 

EPA had this historical perspective about the nation’s waters outside of Appalachia 

in mind when they signed the MOU. If OSM insists upon a national approach, we 

hope that the parties re-open the MOU and make it available for public comment. 

The resource requirements and associated costs of implementing the proposed 

rules are of particular concern to the states. Proposed concepts regarding stream 

definitions, expanded biologic criteria, definition of material damage to the hydrologic balance and the replacement of Post Mining Land Uses with ‘‘climax communities’’ as a reclamation requirement all trample on effective and time-proven mining and reclamation efforts by the states. To elaborate on just one of these changes, 

the use of climax communities as a standard, it is widely recognized that the periodic drought conditions, grazing impacts, and other pre-mining land uses and climatic variables make it nearly impossible to determine what the state of vegetation 

was, or might be, let alone how to accurately measure it given the scale of variability that exists in the west. 

Wyoming has the necessary regulations in place to assure stream protection and 

when necessary, stream diversion and reclamation, as evidenced by successful efforts that have been recognized by OSM over the years. I would like to review just 

a few examples. 

North Tisdale Creek Stream Restoration, Caballo Coal Mine, Caballo Mining Company. This area was mined in the 1990’s. The mine was required to record 

the pre-mining conditions, preserve topsoil, and reclaim the mining area to an approved post mining land use. As can be seen by the photo, restoration of a wetlands 

area has been successful. In fact the mine received awards in 2003 and again in 

2009 for the successful reclamation of the North Tisdale Creek Wetlands, and the 

creation of wildlife habitat. Please see Exhibit 1. 

Tongue River Stream Restoration, Big Horn Coal Mine, Big Horn Coal 

Company (subsidiary of Kiewit Mining). This project won the OSM 2011 Excellence in Surface Coal Mining Award. The Tongue River in northern Wyoming is a 

trout fishery at this location. As can be seen in the following photos, the mining operation progressed through the intersection of Goose Creek and the Tongue River. 

Note that the stream had to be relocated to accommodate mining. Stream function 

was modestly impaired for a period of time until restoration. It is unclear if this 

would be allowed under OSM’s proposed rules concerning material damage and biologic thresholds for action. Note the reclaimed grasslands on both sides of the 

stream, and how it is beginning to blend in with the pre-mining vegetation shown 

in the background. Please see Exhibits 2a and 2b. 

Caballo Creek Restoration, Belle Ayr Mine, Alpha Resources. This project 

won the 2007 OSM Reclamation and Enforcement Director’s Award. Note the preservation of the stream gradient to ensure against excess erosion. Additionally, rock 

weirs were incorporated in the reclaimed channel to mimic the pre-mine riffle/pool 

structure of this intermittent prairie stream. Please see Exhibits 3a and 3b. 

Other projects worth noting, but with no exhibits are: 

Wyodak Mine: ∼ 1.7 miles of Donkey Creek reclaimed with water flows returned 

to reclaimed channel in 2005. 

Cordero-Rojo Mine: ∼ 3.9 miles of Belle Fourche River reclaimed with water 

flows scheduled to be returned to reclaimed channel in December, 2012. CorderoRojo Mine received 2006 Excellence in Surface Mining and Reclamation Award from 

the WDEQ for design of this river channel reconstruction. 

Eagle Butte Mine: ∼ 2.0 miles of Little Rawhide Creek reclaimed. 

Buckskin Mine: ∼0.90 mile of Rawhide Creek; received the 1997 OSM Reclamation and Enforcement Director’s Award for successful reclamation. 

North Antelope Rochelle Mine: ∼ 2.1 miles of Porcupine Creek reclaimed with 

water flows returned to two of the three reaches. 

There are also cases where we refuse mining through important areas that, in our 

belief have key hydrologic issues or would not be capable of restoration. For example, Wyoming affords a high level of protection to alluvial valley floors, or stream 

valleys underlain by unconsolidated stream-laid deposits which have sufficient 

water availability to be important to agriculture. 

Each mine application is reviewed carefully and the applicants are required to accurately describe the pre-mining conditions and land uses. An approvable mine permit application must contain a reclamation plan that assures achievement of post 

49 

mining land uses, and a return of the land to a use equal to or better than before. 

We are proud of our regulatory efforts, and have had a long history of mine regulation and restoration, even prior to the enactment of SMCRA. We don’t believe we 

would be the nation’s largest coal supplier, as well as one of its most beautiful 

places, without the commitment of both our regulators and our industry. We are 

perplexed that the EIS process to date has been so distant from Wyoming. 

OSM actions consistently appear to avoid or limit public and state comment 

throughout this rulemaking. Initially the agency tried to avoid rulemaking altogether by asking a federal court to allow it to revise the stream buffer zone rule 

through a guidance document. This request was denied. Next, OSM denied multiple 

requests for additional time to comment on their advanced notice of proposed rulemaking on this issue in December, 2009, providing the bare bones minimum period 

of time required by law for one of the most complicated rulemaking efforts in OSM’s 

history. The agency’s initial scoping notice was so deficient that OSM had to issue 

a second notice providing more information in June 2010. Scoping meetings were 

a sham, because the public was not even allowed to speak publicly at the agency’s 

public meetings. The public open house meeting in Gillette, Wyoming, which is the 

center of 40 percent of the coal production in the US, was held the evening of July 

29, 2010. The comment period ended July 30, 2010. This hardly represents time for 

thoughtful discourse. 

The EIS documents provided by OSM have-been poorly written, unclear and 

sometimes internally inconsistent. The unreasonably complex process of 5 alternatives with 11 items for each alternative results in 55 options to evaluate. It has 

been difficult to follow. 

Wyoming is a ‘‘cooperating agency’’ in preparation of the EIS. Yet, we do not believe we have been given meaningful opportunity to comment and participate. Sections of the EIS with 25, 50, and even 100’s of pages were distributed to the States 

with only a few days to read, review, and provide comment back to the agency. 

States were forced to withdraw staff from permitting and other critical areas in 

order to have any opportunity to provide feedback to OSM within the required timeframe. Even when states take such measures, meaningful comments could not be 

provided in an appropriate manner. 

OSM appears to be ignoring the resource implications for these proposed rules. 

We find this particularly disturbing in light of the fact that OSM has a goal of significantly reducing their share of funding for our regulatory program. 

The proposed rules will result in massive increases of information and data collection that may not even be useful or practical in improving environmental performance. This is a significant resource burden and suggests that OSM pay close attention to the cost/benefits of forcing a solution to an eastern problem upon western 

states, such as Wyoming. We are hopeful, now that OSM has retained a new contractor and pressed the pause button on the EIS process, that it will comply with 

its obligations under NEPA and conduct a genuine EIS process where States are 

engaged in real discussions of the regulatory options and EIS alternatives. They 

have committed to do so, and I hope we get the chance to share Wyoming’s expertise. 

I also suggest that OSM extend its deadline so that it can re-examine the ‘‘purpose and need’’ for these rules, provide appropriate scientific and factual information 

to support a rule change of this magnitude on a national scale, and engage Wyoming and other states in a more meaningful way. An extension would also allow 

enough time to thoroughly evaluate the economic impacts of the rule. The analysis 

that we have seen so far is inadequate especially given the complex decision making 

process that a customer using a given type of coal uses in fuel-switching decisions. 

The myriad air and water rules that are either published or pending regarding just 

the utility industry alone is enough to throw into question any simple assumptions 

that coal production will simply shift around the country as a result of OSM’s proposal. 

50 

EXHIBITS 


68511.002.eps
51 


68511.003.eps
52 

Mr. LAMBORN. Thank each of you for being here. Thank you for 

your statements and we will now begin questioning. Members are 

limited to five minutes, but we may have additional rounds on this 


68511.004.eps
53 

important subject and I recognize myself for five minutes for questions. 

Each one of you have referred to the compressed time schedule 

that you were given to respond. Can a state even give an adequate 

response in five or ten days? I find that when I send something to 

a state, or even worse, maybe a Federal bureaucracy, it takes them 

that long to open the envelope and get it to the right desk. Could 

any of you care to respond to that, please? And does this reach the 

level of making it hard to respond that creates possible legal challenges to the process? 

Mr. CLARKE. I think I’m on. I’m not sure. The light is not on. But 

I’ll take that, Mr. Chairman. Absolutely, we didn’t have 

enough—— 

Mr. LAMBORN. Just speak into the microphone. I think it’s on. 

Mr. CLARKE. Absolutely, we didn’t have enough time to review 

that. We had to pull in all of our staff for those short periods of 

time, three, five and nine days. Even our field staff we had working 

on this effort, which took away time from permit reviews that we 

couldn’t address. We couldn’t address citizen’s complaints because 

we were in such a short time constraints. Every state was told, if 

you didn’t submit your comment within this time allowed, your 

comments would not be received. So we had a special effort to try 

to do that with in mind that we weren’t going to be able to fully 

address hundreds of pages of documents within such a short timeframe. So to answer your question—No, we could not. 

Mr. LAMBORN. Mr. Corra? 

Mr. CORRA. Mr. Chairman, thank you. I would echo those remarks, but also note that the State of Wyoming is a cooperating 

agency with many Federal partners on many different EIS’s and 

this one was absolutely different from anything else. And being a 

cooperating agency carries with it some access to both the people 

that are writing these documents, as well as people inside the Federal agency that are reviewing them. We never had that opportunity either. 

Mr. LAMBORN. What is the normal process for a cooperating 

agency, as far as timeframe for making comments on an environmental impact statement, in your experience? 

Mr. CLARKE. Mr. Chairman—— 

Mr. LAMBORN. Mr. Clarke. 

Mr. CLARKE.—I would think that would have to vary with the 

complexity of the issues being examined. Here we were confronted 

with each of these chapters with many, many pages of what should 

have been technically oriented material, and with that kind of material to be examined, some reasoned amount of time to respond, 

which we were not given, should be allowed. 

Mr. LAMBORN. What would you have preferred? 

Mr. CLARKE. I think when I saw it, probably applies to other 

states, but in West Virginia each person who was involved in responding with comments on the EIS has a real job aside from doing 

that. People were taken away from their real jobs. Here—three 

weeks to a month. You know, I don’t want to make it take forever. 

I don’t want to create additional bureaucratic mechanisms, but that 

would have been a much fairer amount of time to really dig into 

54 

something that is involved in such a sweeping change as what 

OSM is proposing to make. 

Mr. LAMBORN. And how much time were you given? 

Mr. CLARKE. We had five business days on Chapter 2, four business days on Chapter 3, and nine business days on Chapter 4. 

Mr. LAMBORN. OK. Now, changing subjects slightly, do you believe that the proposed rule may violate SMCRA or the Clean 

Water Act? And I know, Mr. Corra, you made a quick reference to 

that. Could you elaborate a little bit and then if either one of you 

could add to that, I’d appreciate it? 

Mr. CORRA. Yeah. Mr. Chairman, the Clean Water Act gives—if 

the states seek primacy, gives the states the authority and responsibility for setting water quality standards and setting—and establishing uses for various streams—well, all the streams, for that 

matter. And so we see this as sort of an end-around to our responsibilities and authorities where they set them through another Federal statute and come in and set those standards instead of the 

state. And we’re very unclear as to whether that would end up 

being the result from this rulemaking. 

Mr. LAMBORN. Either one of you gentlemen? 

Mr. LAMBERT. Yes, Mr. Chairman. In the draft rule, OSM is proposing to eliminate the Rahall amendment to the Clean Water Act 

but not allowing discharges from pre-mining sites to be as good as 

or better than what the pre-mining discharge was. That’s specifically what the Rahall amendment to the Clean Water Act was 

about. And this proposal by OSM, they would have eliminated that 

totally. 

Mr. CLARKE. I think I’d point to at least three areas at SMCRA 

to say that there’s significant tension, if not just a violation of the 

enabling act that OSM is operating under. First, as I suggested in 

both my written and oral statement, SMCRA envisioned an increase in coal production in the country after its adoption to meet 

the nation’s energy needs, which was a significant concern at the 

time in light of the energy crisis that was prevalent in the development of social and economic policy for the country. This aims to reduce coal production significantly in Appalachia, the number one 

coal producing region in the country at the time of SMCRA’s adoption. That could not have been the policy envisioned by the people 

who voted for this law in 1977. 

Also, SMCRA envisioned that because of the diversity in climate 

and terrain, that states would be the primary regulators and would 

have some freedom to tailor their state programs individually to 

state specific concerns. What we have now is a one-size-fits-all approach that’s going to be imposed in the stream protection measures rule on things like approximate original contour and material 

damage. The issues that John faces on material damage to hydrologic balance in Wyoming are vastly different than what Mr. Lambert and I face in a more humid east. Approximate original contour, I believe the area of eastern Wyoming is pretty flat, plain 

type area, Indiana and Illinois much the same way. What Mr. 

Lambert and I face in southern West Virginia and southwest Virginia are very steep, very rugged topography, and so for those reasons—and they were good reasons—the states were given the auVerDate Nov 24 2008 10:58 Nov 06, 2012 Jkt 000000 PO 00000 Frm 00058 Fmt 6633 Sfmt 6602 L:\DOCS\68511.TXT Hresour1 PsN: KATHY
55 

thority to define and apply terms like these, and OSM wants to 

take that away. 

But the third area, and one you touched on in your question, is 

potential violation of the Clean Water Act. And as I suggested before, the states particularly in the Appalachian region are in the 

midst of deciding how to go about implementing state narrative 

water quality standards for protection of the aquatic ecosystem. 

EPA has its own idea how to do that. The states, I think it’s fair 

to say, we differ on that. OSM intends to jump right in the middle 

of the fray by adding a biologic component to this material damage 

standard. 

While the states and EPA are working out what these water 

quality standards mean, I think that OSM is treading the same 

ground that the courts rejected its rulemaking on in the early 

eighties, where it attempted to establish what amounted to water 

quality standards. OSM can’t do that under SMCRA. That’s a 

Clean Water Act function. 

So again, SMCRA can’t supersede or amend, repeal the Clean 

Water Act, and we believe that the path they’re on is fraught with 

peril in that area. 

Mr. LAMBORN. OK. Thank you all for the answers. I now recognize Representative Johnson for five minutes. 

Mr. JOHNSON. Mr. Chairman, in listening to this, before I ask my 

question, it’s interesting to me and it’s astounding to me that this 

Administration thinks that it’s acceptable that it takes four to six 

months, in some cases longer, to process a claim for America’s veterans returning from the war zone to get the benefits and the care 

that’s needed to them, and yet when they want to reach out with 

these over regulated, over burdensome rules like this one, they give 

the states mere days to respond. I don’t understand the logic there. 

Director Clarke, and really any of the three of you, can you briefly describe the role that, in this case West Virginia, but your other 

states, as well, played in general in what became the 2008 stream 

buffer zone rule, the one that was finished back in 2008? 

Mr. CLARKE. Yes, sir, we in West Virginia probably were in compliance with most of the 2008 buffer zone rule through state-specific adjustments we made to our regulatory program prior to the 

adoption of that rule. Many of the aspects of what that rule would 

require were the same things we were already doing in our state 

program, and we were involved in the EIS that was conducted. I 

can’t tell you how long we were given for comment, although I’d be 

glad to check on that and get back to the Subcommittee with a response if you would be interested in the number of days, for example, for comparison that we were allowed for response on that. 

Mr. JOHNSON. I’m mostly curious as to how, in your assessment, 

the 2008 version that took five years to do, how that rulemaking 

process has differed, from your perspective, to this current process. 

Mr. CLARKE. As I suggested, OSM wants, or appears to want, to 

conduct this rulemaking and EIS at a world-record pace, which is 

unrealistic, given that the earlier rulemaking, as you observed, 

took five years to conclude, and this one is much more sweeping, 

a broader in scope rulemaking that intends to not only replace the 

buffer zone rule but rewrite the rules for almost every aspect of the 

way mining is conducted. 

56 

Mr. JOHNSON. Has OSM provided any documentation or evidence 

suggesting widespread problems with the current regulations on 

surface mining operations? And, in fact, aren’t most of your state 

evaluation reports from OSM generally positive? 

Mr. CLARKE. We, as always, have a number of issues to address 

with OSM. We believe that, generally, we are in full compliance 

and taking every effort to improve our program. But to answer 

your question briefly, we don’t believe there is any basis in the regulatory record developed on oversight of the West Virginia program 

to support the need for a huge rewrite of all the rules on how mining is conducted. 

Mr. JOHNSON. Just in general, do you feel that OSM has respected the states during this current rulemaking process and has 

the agency conducted a fair rulemaking process? 

Mr. CLARKE. No, sir, I do not. I think that in hearkening back 

to one of Mr. Lamborn’s questions, it’s almost as if the process that 

they have established for this EIS is designed to prevent any 

meaningful input from the states and the states are the primary 

regulators under SMCRA and do have probably the most valid experience that ought to be taken into account. 

Mr. LAMBERT. Mr. Johnson, Virginia would probably not use the 

word ‘‘respected.’’ I would like to use the word ‘‘ignored.’’ We were 

invited but comments weren’t received, weren’t included in the 

other drafts that came out. 

Mr. JOHNSON. OK. 

Mr. CORRA. Mr. Chairman, Wyoming would echo the sentiments 

there and if I may, could I go back one and just read a quote from 

one of OSM’s annual reports that talks about Wyoming this year. 

And, quote, ‘‘The lack of additional enforcement actions, despite increased inspection frequency, helps illustrate the effectiveness of 

Wyoming’s regulatory programs.’’ And these Federal inspections increased by 78 percent during the period of time reviewed. They 

noted, ‘‘We have no issues with the proximate original contour’’ and 

they have no issues with our reclamation bonding program either. 

Mr. JOHNSON. One final question. If OSM were to proceed with 

this version, the draft rule that’s now being proposed that we’ve 

seen, what would be the impact on your state, on state agency resources to both amend the approved state program and then implement the new rule? Any idea? 

Mr. CORRA. Since we haven’t seen the complete text of the rule, 

it’s hard to give you a really precise answer. If everything else, the 

current version of OSM has done in the context of State/Federal relationship is borne out in the rule that’s ultimately adopted, I can 

predict that it would be a quite significant increase in the burden 

on states. 

Mr. JOHNSON. That’s what I was going to say. Isn’t it safe to say 

with it being very much more restrictive, it’s going to be onerous 

on the states to put in the people and the processes and the planning to implement? 

Mr. CORRA. Well, necessarily, radical change in all the regulations is going to require significant effort on the states’ part to adjust. In addition to that, we have the issue of OSM adopting three 

new regulatory policies called Reg 8, Reg 23 and INE 35, which 

also have significantly increased the burden on the state, and at 

57 

the same time, they’re doing that, they have proposed to cut grants 

to the state by 15 percent. So they are putting more eyes on the 

state. They are adding more bureaucratic requirements to respond 

to state, or to Federal authorities on, and so when you have a new 

set of rules that are completely new, with a new set of procedures 

governing the Federal/State relationship, it gets into more than 

just the rule, the stream protection measures rule, itself. It’s a 

whole new way of dealing with the Federal Government that is 

much more burdensome than what has existed in the past. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

Mr. LAMBORN. OK. Thank you, Representative Johnson. We’ll 

have our second round of questions. You have some very valuable 

information to give us on this important subject. I’m going to step 

back a step and although you’ve done a really good job of talking 

about the impacts on your regulatory process as a state and your 

ability or inability to comply with the requests of OSM, I want to 

talk about the impact to your state on a community level because 

the subject of our hearing today is the community impacts of the 

efforts to rewrite the stream buffer zone. 

So if this rule were to take effect as it’s currently written, despite 

the problems that we’ve looked at so far in our hearing, what 

would be the impact on employment in your state or the economy 

in your state or coal production or the cost of electricity? And I just 

want to step back and look at a little broader perspective on what 

this rule could do. 

So if either one of you could comment on that, I would appreciate 

it. And I understand that we always have to strike a balance between protecting the environment and being responsible there, as 

well as not having a hit on our economy that destroys jobs and 

adds to the cost of living when people’s dollars are already 

stretched too thin as it is. So we always have to strike that balance 

and I understand that. Mr. Lambert, would you care to respond to 

that? 

Mr. LAMBERT. Thank you, Mr. Chairman, for the question. Just 

using the numbers in the draft that we have seen to date, we understand that OSM is continuing to work on revising those numbers and we don’t know what those are because they haven’t involved the cooperating agencies any further after the contractor 

was let go. 

But just using their numbers, the impact to the economy in Virginia would be devastating. As I mentioned in my oral statement, 

metallurgical coal production in Virginia is, at this point in time, 

given the process of metallurgical coal on the market, would probably take away 60 percent of our coal production, and with the exodus out of Virginia right now, just because of the poverty level, the 

mining industry is the only thing that’s supporting that economy 

in southwest Virginia. So just using OSM’s numbers, I think it 

would be devastated to the economy in Virginia. 

Mr. LAMBORN. Thank you. Mr. Clarke or Mr. Corra? 

Mr. LAMBERT. May I add, Mr. Lamborn, before we go on, using 

our planning districts in southwest Virginia, using their numbers, 

for every one coal job, that equates to four to six additional jobs 

that are ancillary to the mining industry. So, you know, that’s just 

a multiplier that I’m not sure how we could survive. 

58 

Mr. LAMBORN. Thank you. 

Mr. LAMBERT. OSM’s own numbers were a decrease in surface 

coal production in Appalachia by 30 percent. They didn’t address 

the potential decrease in underground coal production. The new 

material damage regulation will have an impact negatively on the 

ability to permit underground mining operations as well. OSM’s 

own numbers predict job loss of 10,749 jobs in Appalachia. That 

doesn’t take into account what they’re going to do, I don’t think, 

to underground mining production. Thirty thousand people below 

the poverty line, those are real economic impacts to our state. I believe that it’s contrary to what Congress envisioned in 1977. 

There’s a constituency out there that would like to see mining severely restricted or eliminated. That results in a much higher degree of environment protection, but those policy calls are calls I 

think for Congress to make and not for OSM. Congress hasn’t put 

OSM in charge of economic policy for the Appalachian region and 

it’s something that OSM should not be allowed to get into, I don’t 

think. 

Mr. LAMBORN. And Mr. Clarke, do you agree with what Mr. Lambert just said, that when you lose direct mining jobs that there are 

indirect job losses, as well, in your state? 

Mr. CLARKE. Absolutely. I’ve heard, you know, multipliers anywhere, three indirect jobs for every one direct job, some multipliers 

I’ve heard higher than that. But that would have a devastating effect on the West Virginia economy. 

Mr. LAMBORN. Mr. Corra? 

Mr. CORRA. Mr. Chairman, we have not conducted a detailed 

analysis at that level to be able to answer your question directly. 

We’ve quite honestly been waiting to see how the smorgasbord of 

55 different options that they teed up in the original draft shakes 

out. It has been said at one point that Wyoming coal production 

could actually go up and I’m not totally convinced that that’s the 

case. I do want to repeat what I said earlier, that the customers 

of Appalachian coal, if something changes there with regard to 

their fuel supply, it is not an automatic to assume that they will 

just go buy coal from somewhere else. Simply for no other reason 

just because of the additional regulations that are coming down the 

road with regards to the utility industry. And I think the abundance of natural gas now in the eastern part of the United States 

will also play a factor in that. So, for us, it’s too early to tell. 

Mr. LAMBORN. All right. Thank you. Representative Johnson, you 

are recognized for five minutes. 

Mr. JOHNSON. Gentlemen, is it true that several states have actually considered withdrawing from the process as a cooperating 

agency? Are you aware of this and have either of your states considered doing so on this rewrite? 

Mr. CLARKE. I think it was November or thereabouts of last year, 

West Virginia and, I believe, Virginia and Wyoming signed onto a 

joint letter of concern to OSM which, I believe, suggested that that 

was a possibility. Where we find ourselves is we have to put forth 

a lot of effort to provide meaningful comments and to review the 

documents. It doesn’t appear like they’re paying any attention to 

the input we provide. The process, as far as we can see what has 

happened, is a sham, and it’s like a box they need to check to do 

59 

an EIS. Yes, we had cooperating agencies. Yes, we gave them an 

opportunity to comment. We checked the box. And with the result 

that they’re working toward, we don’t want to necessarily be seen 

has having contributed or endorsed the result. 

Mr. LAMBERT. I would agree with Mr. Clarke’s statement. Virginia did consider in the letter that was sent to OSM of withdrawing from the process. 

Mr. LAMBORN. Mr. Corra? 

Mr. CORRA. Mr. Chairman, I also agree. I mean, it’s similar. I 

couldn’t add anything more to what’s already been said. 

Mr. JOHNSON. OK. Do your states implement an NPDES program under the authority of the CWA that requires the protection 

of streams potentially impacted by mining, and is that program implemented by the same agency that enforces the SMCRA program? 

Mr. CLARKE. Yes, sir. In West Virginia we do. The Division of 

Mining and Reclamation within the State Department of Environmental Protection issues both the SMCRA permit and the NPDES 

permit for mining operations. 

Mr. JOHNSON. OK. 

Mr. LAMBERT. And that is true in Virginia, as well. We have the 

regulatory authority or delegated authority for the NPDES process 

within the SMCRA permit. 

Mr. CORRA. Mr. Chairman, the Department of Environmental 

Quality for the State of Wyoming has both jurisdictions. 

Mr. JOHNSON. So if OSM implements its proposed rule, we would 

have, in addition to the EPA, the state CWA authority and in 

many cases, the COE, two additional agencies, OSM and the State 

Mining Authority, implementing programs to protect streams using 

different criteria and imposing different and possibly conflicting requirements. Do you see it the same way? 

Mr. CLARKE. Yes, sir, I do. 

Mr. LAMBERT. Yes, sir, we see that as the same issue, as conflicting agencies. 

Mr. CORRA. Mr. Chairman, yes. 

Mr. JOHNSON. OK. Would you then expect this rule, if it is implemented, to lead to more litigation, more confusion and uncertainty? 

Mr. CLARKE. Yes. Yes, we do. 

Mr. LAMBERT. Yes, sir, we do. 

Mr. CORRA. Mr. Chairman, yes, we do. 

Mr. JOHNSON. I think we know the answers. So it doesn’t sound 

like a real good deal for the American tax payer and for the industry, the coal industry, and certainly the people of West Virginia 

and Ohio and Virginia and Wyoming. 

Mr. Chairman, I think I’ve exhausted my questions. 

Mr. LAMBORN. All right. Thank you all for being here. I want to 

thank you for your testimony. Members of the Committee may 

have additional questions for the record, and I would ask that you 

respond to those in writing. Thank you. We will now hear from our 

third panel of witnesses. And we’re going to have a diversity of 

views on this panel. 

I’d like to invite forward Mr. Roger Horton, the West Virginia 

Co-Chair of the Mountaintop Mining Coalition; Mr. Michael Carey, 

President of Ohio Coal Association; Mr. Jason Bostic, West Virginia 

Coal Association; Ms. Katharine Fredriksen, Senior Vice President 

60 

of Environmental & Regulatory Affairs for CONSOL Energy, Inc.; 

Mr. Bo Webb, former President and current member of Coal River 

Mountain Watch; and Ms. Maria Gunnoe, community organizer. I 

hope I pronounced the names correctly. 

Please come forward. Like all of our witnesses, your written testimony will appear in full in the hearing record, so I ask that you 

keep your oral statements to five minutes, as outlined in our invitation letter to you. The microphones are not automatic, so you 

need to turn them on when you’re ready to begin. And I’ll explain 

how the timing lights work. When you begin to speak, the timer 

will start and a green light will appear. After four minutes a yellow 

light comes on, and at five minutes, the red light comes on and we 

would ask that you conclude at that time. We will have one or 

more rounds of questions for all of you afterwards. 

So Mr. Horton, you may begin. 

STATEMENT OF ROGER HORTON, WEST VIRGINIA CO-CHAIR, 

MOUNTAINTOP MINING COALITION 

Mr. HORTON. Thank you. Mr. Lamborn, first of all I want to 

thank you for recognizing a very valuable point, one that I’ve discussed with a lot of the people prior to coming here today. The 

money that’s generated from the levies placed upon coal that is 

mined that’s diverted to the surface mine reclamation, the abandoned mine reclamation does, in fact, provide healthcare for many 

thousands of United Mine Workers recipients, whose businesses 

have gone out of business. And for that reason, I thank you for that 

recognition. And I will begin. 

My name is Roger Horton. I am the founder of Citizens for Coal, 

a co-founder of the Mountaintop Mining Coalition, and a member 

of Local Union 5958 of the United Mine Workers of America. I have 

spent over 30 years in the West Virginia mining industry beginning in 1974, as an underground coal miner. During my career, I 

have also been active in union activities, serving as various official 

capacities for my UMWA local union. I am proud to say that I am 

still a coal miner and a local union officer on a surface coal mine 

in West Virginia. 

A native West Virginian, I have lived virtually all my life in the 

coalfields of the Mountain State, spending most of that time in 

Logan, West Virginia, where I live today in the community of Holden. I built a home, raised two children, participated and enriched 

my community all because of my employment in the coal industry. 

Because of my rewarding experiences in and around the coal industry and its communities, that in 2008 I founded Citizens for 

Coal, a group open to everyone, no matter their employment or affiliation, dedicated only to preserving the future of coal mining 

jobs, to actively participate in the debate surrounding coal mining 

in West Virginia and Appalachia. It is in this capacity that I appear before you today, as well. 

I am deeply concerned and troubled by the rulemaking currently 

being conducted by the Federal Office of Surface Mining. By virtue 

of regulatory revisions, OSM would rewrite the Surface Mining 

Control and Reclamation Act, otherwise known as SMCRA, and 

drastically alter the role of coal in the nation’s energy mix envisioned by Congress when it passed in 1977. 

61 

This proposal from OSM is but one part of an open war on American coal being waged by bureaucrats in Washington, Pittsburgh 

and Philadelphia. The assault begins with the permit application 

process and continues through the mining process and finally to 

the end use of coal, where EPA announced sweeping regulatory 

changes as it relates to air emissions from coal fired power plants 

and the placement of coal combustion residuals, such as boiler ash. 

These end use initiatives coupled with the EPA’s obstruction of 

mining permits and now this outrageous rule from the Office of 

Surface Mining threatens to cripple the viability of West Virginia 

and other coal producing states as sources of domestic energy. 

In its proposed rewrite of the stream buffer zone rule, OSM 

would drastically reduce coal production in West Virginia and 

across the Nation by applying new standards that have no basis in 

law and serve only to satisfy a very warped political agenda. 

OSM is unable to identify any rational basis for revising these 

regulations and potentially eliminating 90 percent of the coal production in this country. All forms of mining across the country, surface and underground, are at risk. Amazingly, the rule changes appear poised to dramatically impact underground mining and perhaps more than surface mining. If finalized, the rule will throw the 

Nation into an energy crisis, the likes of which has never been 

seen. 

Unless restrained by Congress, OSM will destroy the economies 

of states that produce coal and propel thousands of coal miners on 

the jobless roles. OSM appears to have advanced these positions 

without regard to jobs and communities that depend on those occupations for their very survival. If left unchecked, OSM threatens to 

strip our citizens, our communities and the very social fabric of 

West Virginia and other coal producing areas of their most important source of existence, and that is coal. 

These are not just idle observations. I have personally witnessed 

the social and economic disruptions that occur when unelected bureaucrats make arbitrary decisions about what is best for my fellow 

coal miners, my friends and my community. 

About eleven years ago, through a combination of government interference and frivolous legal challenge, a large-scale surface mine 

in Logan County, West Virginia, was forced to close because it 

could not obtain the permits necessary to continue mining the operation. The results were devastating. Some 400 members of Local 

Union 2935 were out of a job, not because there was no demand 

for the coal or because the coal reserve had been exhausted, but because of pure legal and regulatory interference. The workforce and 

Local were obviously devastated, but the county was also damaged. 

The school system and social welfare programs lost revenue that 

was vital to their existence and operation. Entire communities 

were devastated. With nowhere to work and no prospect of the 

mine reopening any time soon, residents packed up and moved to 

other states to find lower paying jobs. 

Businesses that relied on the mine for their income, gas stations, 

restaurants, repairs shops and equipment vendors, vanished. Families suffered and disintegrated. Substance abuse and divorces skyrocketed and these folks struggled to come to terms with the loss 

of good paying jobs that were forecast to last decades. In fact, it 

62 

is fair to say that our communities and certain families have never 

recovered from the loss of these jobs. That experience and those 

troubling, painful memories motivated me to start Citizens for 

Coal, and I hope this Committee and the entire Congress is mindful that Washington, D.C.’s assault on the coal industry has real, 

often dramatic effects on our workplace, our people, our schools, 

our churches and our communities. 

Mr. LAMBORN. Mr. Horton, if you would wrap up. 

Mr. HORTON. Pardon me? 

Mr. LAMBORN. You need to conclude now. 

Mr. HORTON. Yes. Finally, as a life-long citizen of the coalfields 

of Logan, West Virginia, I would like the Committee to carefully 

consider the excuse for these rule changes offered by OSM. Whether they are from the OSM or the EPA or some other agency, we 

don’t need their help. We can do just fine on our own, mine our 

own coal. 

[The prepared statement of Mr. Horton follows:] 

Statement of Roger D. Horton, Co-Founder, Mountaintop Mining Coalition 

Good afternoon and thank you for the opportunity to testify today on this very 

important subject. My name is Roger Horton. I am the founder of Citizens for Coal, 

a co-founder of the Mountaintop Mining Coalition and a member of Local 5958 of 

the United Mine Workers of America (UMWA). I have spent over 30 years in the 

West Virginia mining industry beginning in 1974 as an underground coal miner. 

During my career I have also been active in union activities, serving in various official capacities for my UMWA local. I am proud to say that I am still a coal miner 

and a local union officer on a surface coal mine in West Virginia. 

A native West Virginian, I have lived virtually all my life in the coalfields of the 

Mountain State, spending most of that time in Logan County West Virginia, where 

I live today in the community of Holden. I built a home, raised two children, participated and enriched my community all because of my employment in the coal 

industry. 

Because of my rewarding experiences in and around the coal industry and its 

communities that in 2008 I founded Citizens for Coal, a group open to everyone no 

mater their employment or other affiliation, dedicated only to preserving the future 

of coal mining jobs, to actively participate in the debate surrounding coal mining 

in West Virginia and Appalachia. It is in this capacity that I appear before you 

today. I am deeply concerned and troubled by the rulemaking currently being conducted by the federal Office of Surface Mining (OSM). By virtue of regulatory revisions, OSM would re-write the Surface Mining Control and Reclamation Act 

(SMCRA) and drastically alter the role of coal in the nation’s energy mix envisioned 

by Congress when it passed that law in 1977. 

This proposal from OSM is but one part of an ‘‘open war’’ on American coal being 

waged by bureaucrats in Washington, Pittsburgh and Philadelphia. This assault begins with the permit application process and continues throughout the mining process and finally to the end use of the coal, where EPA announced sweeping regulatory changes as it relates to air emissions from coal fired power plants and the 

placement of coal combustion residuals such as boiler ash. These end use initiatives, 

coupled with EPA’s obstruction of mining permits and now this outrageous rule 

from OSM threatens to cripple the viability of West Virginia and other coal producing states as sources of domestic energy. 

In its proposed re-write of the Stream Buffer Zone rule, OSM would drastically 

reduce coal production in West Virginia and across the nation by applying new 

standards that have no basis in the law and serve only to satisfy a warped political 

agenda. OSM is unable to identify any rational basis for revising these regulations 

and potentially eliminating 90 percent of the coal production in this country. All 

forms of mining across the country, surface and underground are at risk. Amazingly, the rule changes appear poised to dramatically impact underground mining 

perhaps more than surface mining. If finalized, the rule will throw the nation into 

an energy crisis the likes of which it has never seen. Unless restrained by this Congress, OSM will destroy the economies of state that produce coal and propel thousands of coal miners on the jobless roles. OSM appears to have advanced these positions without regard to jobs and communities that depend on those occupations for 

63 

their very survival. If left unchecked, OSM threatens to strip our citizens, our communities and the very social fabric of West Virginia and other coal producing areas 

of their most important source of existence- coal. 

These are not just idle observations. I have personally witnessed the social and 

economic disruptions that occur when unelected bureaucrats make arbitrary decisions about what is best for my fellow coal miners, my friends and community. 

About 11 years ago, through a combination of government interference and frivolous legal challenges, a large scale surface mine in Logan County West Virginia was 

forced to close because it could not obtain the permits necessary to continue the 

mining operation. The results were devastating. Some 400 members of Local Union 

2935 were out of a job. . .not because there was no demand for the coal or because 

the coal reserve had been exhausted but because of pure legal and regulatory interference. The workforce and local were obviously devastated but the county was damaged. The school system and social welfare programs lost revenue that was vital to 

their existence and operation. 

Entire communities were devastated. With nowhere to work and no prospect of 

the mine reopening any time soon, residents packed up and moved to other states 

to find lower paying jobs. 

Businesses that relied on the mine for their income- gas stations, restaurants, repair shops and equipment vendors vanished. 

Families suffered and disintegrated. . .substance abuse and divorces skyrocketed 

as these folks struggled to come to terms with the loss of good-paying jobs that were 

forecast to last decades. In fact, it fair to say that our communities and certain families have never recovered from the loss of those jobs. That experience and those 

troubling, painful memories motivated me to start the Citizens for Coal organization, and I hope this Committee and the entire Congress is mindful that Washington D.C.’s assault on the coal industry has real, often dramatic effects on our 

workforce, our people, our schools, our churches and our communities. OSM has chosen to conveniently ignore these effects. OSM has also disregarded the charge given 

to it by Congress when it created the agency 34 years ago- to balance environmental 

and community protection with the increased production of coal. Unfortunately, 

OSM has joined the ranks of other federal agencies intent on ignoring Congress by 

regulating what it cannot legislate. This dangerous attitude must be changed and, 

given the behavior of OSM and EPA in Appalachia and West Virginia, needs to be 

changed quickly. 

OSM’s proposed rules cast a long shadow of uncertainly over our coal miners and 

communities by placing our entire economic livelihood in jeopardy. People are not 

buying cars or homes or vacationing. . .we are not spending money. . .we are not 

contributing to the economy. 

I have been fortunate to be able to spend the majority of my life living and working in my native West Virginia. Every day I enjoy the benefits of our rural way of 

life. . .I hope that my children could live and work in West Virginia and enjoy that 

same lifestyle and experience but everyday that OSM continues its reckless disregard for the rule of law those chances decline. 

Finally, as I life-long citizen of the coalfields of Logan County West Virginia, I 

would like the Committee to carefully consider the excuses for these rule changes 

offered by OSM. They will come before you as false prophets, claiming to represent 

the people of the coalfields and our environment and offering to ’’help’’ us survive 

or transition to other forms of employment when they destroy our coal industry. 

Whether they are from OSM or EPA or some other agency, we don’t need their help 

or assistance. We can do just fine on our own. 

Thank you. 

Brian Sanson 

United Mine Workers of America 

8315 Lee Highway 

Fairfax, VA 22031 

bsanson@umwa.org 

703–208–7220 

Department of the Interior 

Office of Surface Mining Reclamation and Enforcement 

Comments on: 

As proposed in 74 FR No. 228/11–30–2009/Proposed Rules; 30 CFR Parts 780, 

784,816, and 817 

[Docket ID OSM–2009–0009] 

RIN: 1029–AC63 

64 

Stream Buffer Zone and Related Rules 

The United Mine Workers of America, International Union (UMWA) offers the following comments on the above-captioned notice. Our comments are focused on the 

implications of revisions to regulations concerning the conduct of mining activities 

in or near streams. We have concerns that revision of the stream buffer zone (SBZ) 

rule published on December 12, 2008, as part of the interagency action plan that 

the Administration has developed to significantly reduce the harmful environmental 

consequences of surface coal mining operations in Appalachia, may negatively impact workers’ economic security in Appalachia. 

The June 11, 2009 Memorandum of Understanding (MOU). 

The UMWA has long supported responsible enforcement of rules and laws used 

to regulate surface mining. Per the June 11, 2009 Memorandum of Understanding, 

OSM is proposing Oversight Improvement Actions that will increase OSM’s oversight of state surface mining programs. This action is taken as part of an agreement 

of the MOU’s signatory agencies to create an interagency working group to coordinate the development of short-term actions, longer term regulatory actions, and coordination procedures for Appalachian surface coal mining. Unfortunately, these coordinating efforts have resulted in increased time frames, regulatory uncertainty, 

and a lack of private and public understanding with respect to the criteria that has 

been established for surface mine permit approval. 

Disclosure and Transparency 

The UMWA is a primary stakeholder of the Department of the Interior’s Office 

of Surface Mining Reclamation (OSM). When OSM embarks on a rule making the 

Agency solicits written comments and it also holds public hearings. The process is 

carried out in full view of the interested parties: Miners, mine operators, equipment 

manufacturers, and others, as it should be. 

We suggest that OSM procedures for evaluating additional rules in the process 

should be subject to the same level of public disclosure and scrutiny. This is necessary both to ensure public accountability, but also to ensure the necessary expertise be brought to bear in the highly technical nature of water quality subject matter. What to OSM may seem like a trivial ‘‘correction’’ could in fact have important 

consequences. One way to guard against this would be to have public review of OSM 

decisions about rules. 

Encouraging Public Participation in Agency Rulemaking Processes 

Public participation is essential for development of good and useful rules. Encouraging public participation will help ensure that broad based, first-hand knowledge 

will be considered in the rule-making process, and it helps lead to the creation of 

rules that will be understandable. 

One way to encourage public participation is to require hearings to be held at 

times and places that are convenient for and accessible to the stakeholders. Sometimes more work is needed to promote active participation. Coal miners wanting to 

participate in OSM hearings generally must leave work, and may forfeit their income and pay their own travel expenses to participate. Those testifying for environmental groups or coal operators, on the other hand, generally suffer no such loss. 

The real consequence of this economic inequality means that there are often fewer 

workers participating in a public hearing than are the numbers of workers who are 

interested in the particular subject. Likewise, blue-collar workers like those the 

UMWA represents sometimes tend to be less comfortable with the written word, so 

few submit written comments. While we support the holding of public hearings, we 

also urge changes so the hearings’ system will better balance the access for workers. 

Regulatory Uncertainty 

Regulatory uncertainty has caused many operators to cease capital expenditures 

related to UMWA operations, thus negatively impacting our members who live and 

work in Appalachia. To illustrate this problem, we use an example pertinent to the 

mining industry. Over the last year the surface mining permitting system has been 

reduced to an extremely slow pace. 

Currently many factors are considered when requiring the various permit applicants with respect to the protection of the health and safety of those living within 

the communities in which the mining occurs. It is important to first define the public health goals, and then to discuss them with the appropriate stakeholders in the 

states in which these rules are specifically targeted. As an alternative to unilateral 

rulemaking based on yet-to-be established procedures to best guarantee water quality, we suggest that it may be appropriate to effectively communicate the agencies’ 

criteria to those operators who mine coal in a responsible manner and identify the 

65 

most reasonable and efficient way to reach goals without compromising the ability 

of these coal operators to employ our members. 

Oversight is always welcome by the UMWA but any oversight which impedes the 

ability of a state to issue permits based on established permitting criteria has resulted in a ‘‘logjam’’ of applications. We represent workers who have considerable 

firsthand practical knowledge about how things get done—or not done—at work. In 

fact, they have knowledge that so-called experts sometimes lack. Incorporating the 

knowledge of miners and coal operators is essential when designing policy that will 

succeed. Different kinds of knowledge are needed to create effective policies and no 

single approach will ultimately be most successful. 

Methods of Ensuring That Regulatory Review Does Not Produce Undue 

Delay 

The principal aim of this process should be to address the need to issue regulations that protect public health and allow coal miners to continue to produce coal. 

One primary objective of this should be to clarify the regulatory review process, thus 

reducing the delay in the established permitting process. This is an important objective and, whatever else OSM may do it should not unnecessarily delay the current 

rules. There should be no additional delays while the current rule making process 

is underway. 

There are no magic formulae for achieving this. It requires setting deadlines and 

allocating sufficient resources so that agencies can meet such deadlines. In this case, 

in which admittedly the scientific data has yet to be established in some areas or 

additional studies are clearly needed in others, the ability of mine operators to secure permits should not be delayed due to unproven theory or speculation. 

Scope of Proposed Changes 

In view of the complexity of this proposal and the fact that it extends beyond 

issues related to the stream buffer zone we believe that additional time should have 

been granted for public comment. The UMWA is disappointed that various requests 

for extensions were not granted. 

Any proposed changes to return to some version of the 1983 rule should be entered into with clear guidance and an understanding that conducting surface coal 

mining activities in the stream buffer zone are not prohibited. Rules must be clear 

that the protections of the SBZ rule are meant to conduct surface coal mining operations so as to prevent, to the extent possible using best technology currently available, additional contributions of suspended solids to stream flow or runoff outside 

the permit area. 

Conclusion 

In the past, regulatory reform has generally proceeded with the assumption that 

federal regulations create better compliance in areas where there is a clear need. 

The rules OSM promulgates generally promote the requirements of the Surface 

Mining Control and Reclamation Act (SMCRA) in cooperation with States and 

Tribes. The primary objectives are to ensure that coal mines are operated in a manner that protects citizens and the environment during mining and assures that the 

land is restored to beneficial use following mining, and to mitigate the effects of past 

mining by aggressively pursuing reclamation of abandoned coal mines. 

Indeed, the history of regulation in the coal mining industry demonstrates the effectiveness of direct regulation, i.e., creating rules and a means for enforcing them. 

However, the UMWA vigorously opposes any unnecessary regulation that results in 

a loss of employment for the members of our union. Such unnecessary rules would 

likely deter future capital investment in UMWA represented operations and will 

prohibit expansion of existing mining operations. This lack of investment will prematurely cause the displacement of UMWA members working at these facilities. 

The Surface Mining Control and Reclamation Act of 1977 clearly allows for the 

extraction of coal using surface mining methods and one of the express purposes of 

SMCRA is to assure that the coal supply essential to the Nation’s energy requirements, and to its economic and social well-being is provided and to strike a balance 

between protection of the environment and the Nation’s need for coal as an essential 

source of energy. 

In proposing changes to the SBZ and related rules, the agency must also guard 

against unintended regulatory consequences of its actions. We have concerns that 

actions that the agency takes that are aimed at surface mining in Appalachia could 

have a significant impact on mining in other areas, or even on underground operations in the same region. Rules that could potentially impede an operator’s ability 

to store and treat coal mine waste causes serious concerns. The preamble discussion 

to the 2008 rule (73 FR 75815) makes clear Congress recognized that coal mine 

66 

waste had been and would continue to be placed in streams. Congress found and 

declared, in Section 101(b) of SMCRA: 

the overwhelming percentage of the Nation’s coal reserves can only be extracted by underground mining methods, and it is, therefore, essential to 

the national interest to insure the existence of an expanding and economically healthy underground coal mining industry; 

The vast majority of coal produced by underground mining in the states targeted 

by the proposed rules must be processed through preparation plants to remove impurities. The waste byproduct lacks the stability of excess spoil and must be placed 

in disposal areas that extend fuither down into valleys than excess spoil fills. To 

prohibit coal mine waste disposal sites in areas that extend into perennial streams 

in the states targeted by the proposed rules could result in the elimination of the 

underground coal mine industry throughout Appalachia. There are no provisions in 

the Act that support or authorize these types of restrictions on coal mine waste 

placement. Specifically, it would seem that such restrictions would be in conflict 

with the provisions of SMCRA. 

The original intent of the SBZ rule is to ensure compliance with SMCRA’s requirements to use caution when mining near streams and to use the best technology 

currently available to avoid, to the extent possible, the contributions of suspended 

solids to streamflow or runoff outside the permit area. The rule was never meant 

as a ban on surface mining activities in streams. As part of the process the Agency 

should carefully consider past litigation, similar to which caused the elimination of 

hundreds of UMWA member’s jobs at the Ach Coal’s Daltex operation, as well as 

other surface mining complexes over the past decade. If the intent of OSM is to repeal the current version of the SBZ rule then OSM has a duty to clarify what this 

means for valley fills, coal refuse pile, and impoundments. OSM has applied the 

1983 version of the SBZ rule in the past and coal companies have always had the 

ability to secure permits required to maintain their operations. However, due to litigation and various rulings from the courts the 2008 rule was put into place by OSM. 

In repealing such rule OSM should have provisions in place to ensure the ability 

of surface mining to continue while scientific data is gathered and reviewed by experts from the various stakeholders. 

Would future research and analysis accurately reflect the positions held by the 

stakeholders on either side of the surface mining issue? We do not know. But we 

do know that premature rulemaking absent creditable studies can cause job loss and 

financial hardships to communities already suffering from the effects of a worldwide 

recession. Many of the measures proposed in this notice could affect large numbers 

of miners working today and many miners’ families that rely on these good-paying 

jobs. 

We support the promulgation by OSM of protective rules that allow UMWA members to continue to mine coal in a responsible manner, but let us not venture down 

a path of potential hardship for those who rely on this vital component of the Appalachian economy. Let us not restrain the regulations necessary to address real problems but let us do so with a clear and decisive plan that will preserve this vital 

part of our nation’s energy needs. 

Mr. LAMBORN. Thank you. Mr. Carey? 

STATEMENT OF MICHAEL CAREY, PRESIDENT, 

OHIO COAL ASSOCIATION 

Mr. CAREY. Chairman Lamborn, members of the Subcommittee, 

I appreciate the opportunity to testify at this very important Subcommittee hearing today on the Office of Surface Mining. 

My name is Mike Carey. I am President of the Ohio Coal Association, a trade organization that represents Ohio’s coal producing 

companies. I also serve on the National Coal Council and I serve 

as the Chairman of the Ohio Coal Technical Advisory Committee, 

and serving as Chair for the last seven years. 

In our country today, coal is mined in 27 states across this country and provides affordable, reliable energy in 48 of them. Coal is 

not only America’s most abundant energy resource, but it is by far 

our lowest cost domestic energy resource. Now, today it will be difficult for me to confine my remarks only to the stream buffer zone 

67 

rule because nationwide, our industry is facing an unprecedented 

onslaught of new regulations that are, simply put, designed to 

eliminate the American coal industry and the thousands of jobs associated with it. 

The Obama Administration and its allies have declared a de 

facto war on coal across this country. The Department of the Interior’s OSM stream buffer zone rule, the EPA’s various rules, including the greenhouse gas rule, the Cross-State Air Pollution Rule, the 

Utility MACT, have one purpose—to force coal out of business. 

Mr. Chairman, the Obama Administration’s attempts to rewrite 

the stream buffer zone rule is nothing but a blatant attempt, again, 

to kill coal in Appalachia. The last rewrite undertaken in 2008, 

only three years ago, was a thoughtful process involving all of the 

stakeholders and examining all of the major issues. The Administration’s efforts were a rush job done solely to placate their environmental allies. When the environmental impact statement was 

criticized for its bluntness of the potential job losses, instead of admitting that there was a problem, they fired the contractor who 

made those observations. 

Now, there’s a right way to conduct rulemaking, as Congressman 

Johnson pointed out in his opening remarks. When OSM revised 

the stream buffer zone rule in December of 2008, it was the product of over five years, millions of taxpayers’ dollars in research, two 

environmental impact statements and over 43,000 public comments. The wrong way, that contrasted directly with the Obama 

Administration’s closed and rushed efforts to ram a new rule 

through the process to placate environmentalist allies. 

Fire the messenger. The Administration had hired the outside 

contractor, as previously mentioned, to prepare the EIS without the 

benefit of any new Federal studies. After the EIS draft was completed, the press seized upon the study, which predicted that at 

least, at least, 20,000 jobs would be lost, and the elimination of up 

to 20 to 30 percent of all surface mines in the east. 

Two months later, instead of changing direction on the regulation 

and announcing that they were wrong to eliminate the jobs or that 

they would change their approach, they instead blamed the contractor and they fired him and announced that they would hire a 

new contractor to start the EIS all over again. This is a classic example of shooting the messenger, but not changing the message. 

Now, what’s at stake? OSM’s stream buffer zone rule is the most 

comprehensive, far-reaching revision of SMCRA rule in over 30 

years. Rather than providing regulatory clarity as the 2008 rule 

did, the new rule replaces decades of interpretation of law, prohibits standard mining practices and has nationwide application. 

In light that it took five years to come up with the OSM 2008 rule, 

they could not possibly responsibly rewrite such a rule in such a 

short period of time. 

Rural regions of West Virginia, Ohio, Pennsylvania, Illinois, Indiana, Kentucky, Tennessee, would all be economically devastated by 

losing major employers such as the coal industry. The number, in 

fact, could be 20,000, might be low, but 70,000 coal-related jobs 

could also be affected. 

Mr. Chairman, when an agency ignores the previous open rulemaking process of its past, i.e. The 2008 stream buffer zone ruleVerDate Nov 24 2008 10:58 Nov 06, 2012 Jkt 000000 PO 00000 Frm 00071 Fmt 6633 Sfmt 6602 L:\DOCS\68511.TXT Hresour1 PsN: KATHY
68 

making process, rushes its replacement through after meeting in 

secret with environmental organizations and ignoring the stakeholders and the states themselves and shoots their own messenger 

when the work is was derided in the press, then one can only conclude that this proposal was intentional and they knew exactly 

what they were doing. 

Thank you, Mr. Chairman, for the opportunity to testify and I 

look forward to any questions. 

[The prepared statement of Mr. Carey follows:] 

Statement of Mike Carey, President, Ohio Coal Association 

Chairman Lamborn, Ranking Member Holt, Members of the Subcommittee, good 

morning. 

Thank you for inviting me to testify at this very important hearing on Office of 

Surface Mining, Reclamation, and Enforcement’s (OSM) Stream Buffer Zone Rule 

and its impact on American jobs. My name is Mike Carey and I serve as President 

of the Ohio Coal Association (OCA). I am also a member of The National Coal Council, which serves as an advisory committee for the Secretary of Energy on energy 

resource issues. 

In our country today, coal is mined in 27 states and produces affordable electricity 

for 48 states. Coal provides 86 percent of the electricity needs for powering Ohio’s 

business and residential sectors. The OCA provides a voice for the many thousands 

of our citizens working in Ohio’s coal sector. The companies we represent are proud 

to directly employ over 3,000 individuals in Ohio alone and the over 30,000 additional jobs dependent on our industry. 

The OCA seeks to continually educate state and federal lawmakers on the effects 

that policies have on American jobs, the economy, the reliability of electric power 

production and our global energy manufacturing competitiveness. This is why I am 

here today. Coal provides our country with a strong international competitive advantage, as we have more coal than Saudi Arabia has oil and gas. Energy Information Administration data shows that at least 261.5 billion tons of coal reserves are 

available in America, making our recoverable coal reserves almost 1/3 of the world’s 

total supply. 

Coal is not only America’s most abundant energy resource, but it is, by far, our 

lowest cost domestic energy resource. Cheap, affordable coal is what powers the nation’s manufacturing base and keeps the lights on for millions of America families. 

The low cost electricity that coal provides is a staple of American life and is essential to many Americans’ standard of living. 

It is difficult for me to confine my remarks today to only the Stream Buffer rule, 

because nationwide our industry is facing an unprecedented onslaught of new regulations that are, simply put, designed to eliminate America’s coal industry and the 

thousands of jobs associated with coal. The Obama Administration and its allies 

have declared a de facto war on coal across Appalachia and America. The Department of Interior’s (DOI) OSM Stream Buffer rule and EPA’s various rules, including 

greenhouse gas rule, the Cross-State Air Pollution Rule (CSAPR) and Utility MACT, 

have one purpose: to force coal out of business. These regulations, coupled with the 

permit delays across the entire Obama Administration, will be economically devastating and will have an inevitable adverse effect on our nation. Hard-working 

Americans will lose their jobs, businesses will shutter, families will be forced to pay 

more to keep warm in the upcoming winter months as we are forced to supplant 

our nation’s most abundant and affordable energy resource. 

Mr. Chairman, the Obama Administration’s attempts to rewrite the Stream Buffer Zone Rule is nothing but a blatant attempt to kill coal in Appalachia, which will 

destroy jobs across the industrial Midwest. Why do I say this? 

1) The last rewrite undertaken in 2008—only three years ago—was a thoughtful process involving all of the stakeholders and examining all of the major 

issues. 

2) The Obama Administration’s efforts were a rushed job done solely to placate 

their environmental allies, ignoring stakeholders and the impacted States 

themselves. 

3) When the Obama Environmental Impact Statement (EIS) was criticized for 

the bluntness of the potential job losses, instead of admitting the problem, 

they fired the contractor who made the informed observations. 

69 

The Right Way to Conduct a Rulemaking 

When OSM revised the Stream Buffer Zone rule in December 2008 it was the 

product of over five years of studies, millions of taxpayers’ money spent on research, 

two environmental impact statements, over 43,000 public comments, and 30 economic and scientific studies. 

OSM began the process in 2003, releasing a discussion draft of methods to clarify 

the older 1983 rule. Later that year OSM, working with the EPA, Army Corps of 

Engineers, Fish and Wildlife Service, and importantly the State of West Virginia 

completed a 5,000-page programmatic ESI on mountaintop mining. This EIS contained 30 separate federal studies on all aspects of Mountaintop Mining. They later 

proposed additional changes to the rule based upon public comments. Then in 2007 

they completed another EIS which examined more specifically the stream buffer 

zone rule, addressed further comments and involved all stakeholders. The final regulation was issued in 2008. 

The Wrong Way to Conduct a Rulemaking 

This is contrasted directly with the Obama Administration’s closed and rushed efforts to ram a new rule through the process to placate their environmentalist allies. 

In 2009, at the beginning of the Obama Administration Secretary Salazar signed 

an memorandum of understanding (MOU) vowing to revisit the stream buffer zone 

rule and then attempted to vacate the 2008 rule by guidance document. It took a 

federal court telling them they had to use the APA rulemaking process. 

They later published an advanced notice of proposed rulemaking, making 10 significant changes to the stream buffer zone rule. They only allowed 30 days comment 

and ran the clock between Thanksgiving and just after Christmas. 

In 2010, they entered into secret negotiations with several environmental organizations, emerging with a signed settlement agreement and also agreeing to pay 

their legal fees. They then started a new EIS and decided to expand the scope of 

the Stream Buffer Zone rules to include major changes to the underlying Surface 

Mining Control and Reclamation Act regulations. 

As opposed to the 2008 efforts, eight States and the Western Governors Association wrote the Agency objecting to the draft EIS conclusions and the lack of opportunity to participate in the process. 

Fire the Messenger 

The Administration hired an outside contractor to prepare the EIS, without the 

benefit of any new federal studies. After the EIS draft was completed, the press 

seized upon the study which predicted at least 20,000 jobs would be lost including 

the elimination of 20–30 percent of all surface mining in the East. 

Two months later, instead of changing direction on the regulation, announcing 

they were wrong to eliminate jobs, or that they would change their approach, they 

instead blamed the contractor, fired them, and announced they would hire a new 

contractor to start the EIS over again. This is a classic example of shooting the messenger, but not changing the message. If this example wasn’t so real and troubling, 

I would swear that they took their strategy from watching the movie Casablanca. 

Just like Captain Renault was shocked that gambling was going on, OSM Director 

Pizarchik was shocked that his regulation would lead to job losses. It’s not very 

credible. One can only surmise that the new contractor has either explicitly or at 

least implicitly been told to steer clear of any job loss projections. 

What’s at Stake? 

OSM’s Stream Buffer Rule is the most comprehensive and far-reaching revision 

of a SMCRA rule in more than 30 years. Rather than providing regulatory clarity 

as the 2008 rule did, the new rule replaces decades of interpretation of the law, prohibits standard mining practices and has nationwide application. In light of the five 

years it took to come up with the 2008 rule, OSM could not properly and responsibly 

rewrite this rule in such a short period. OSM’s rulemaking process and the new rule 

have been widely criticized by states and state agencies responsible for implementing the rule. Moreover, this rule will have damaging effects throughout the 

states where the mining industry operates and will destroy tens of thousands of coal 

related jobs. 

It is imperative that this Subcommittee and Congress carefully review OSM’s 

rules in order to protect American jobs. We are always concerned when regulatory 

overreaching negatively impacts job security and growth in our region. We are in 

difficult economic times when many Ohioans and Americans find themselves out of 

work. Unemployment in Ohio is 9.1 percent, the same as the overall unemployment 

rate in the U.S. 

70 

Rural regions in West Virginia, Ohio, Pennsylvania, Illinois, Indiana, Kentucky 

and Tennessee would be economically devastated from losing a major employer such 

as the coal industry due to the OSM rule. By OSM’s own admission, more than 

7,000 jobs in Appalachia would be lost. This is an optimistic, underestimated assessment; we believe Appalachia will lose more than 20,000 jobs and nearly 70,000 coal 

related jobs would also be lost nationwide. This would mean the unemployment rate 

rising in these states and a loss of more than $650 million of earnings and state 

revenue. According to the agency’s draft ESI, the Stream Buffer rule would annihilate approximately 1/3 of surface mines in the East and up to 50 percent of underground 

mines nationwide. In addition to closures of Eastern mines, the OSM rule would 

cause closures in coal production of 20 percent of Illinois’ Basin mines, over 25 percent of the Gulf region and 84 percent of Alaska’s mines. 

This rule will be economically devastating to many states and communities in the 

East, but its impacts will be far-reaching effecting the nation’s economy, employment rate and energy affordability. Decreases in Eastern coal production will increase electric prices, a fact which OSM did not take into consideration while rulemaking. Twenty-two of the 25 states with lowest electricity costs rely on coal for 

at least 40 percent of their electricity needs. 

Mr. Chairman, when an agency: 

1) Ignores the previous open rulemaking processes of its past, ie the 2008 

Stream Buffer rulemaking process, and 

2) Rushes its replacement through after meeting in secret with environmental 

organizations and ignoring the stakeholders and the States in the process, 

and 

3) Shoots their own messenger, only after the work is derided by the press, 

Then one can only conclude that their proposal was intentional and that they 

knew exactly what they were doing to the coal industry. 

I ask that you help reign in OSM and do all that you can to stop this rulemaking. 

Americans have lost enough jobs; don’t allow tens of thousands of additional families to suffer for OSM’s misguided and unjustified rule. 

Thank you for this opportunity to testify, Mr. Chairman, and stand ready to answer any questions the subcommittee may have about this attack on coal jobs, 

power providers and businesses throughout the United States. 

Mr. LAMBORN. Thank you. Mr. Bostic? 

STATEMENT OF JASON D. BOSTIC, VICE-PRESIDENT, 

WEST VIRGINIA COAL ASSOCIATION 

Mr. BOSTIC. Good morning and thank you for the opportunity to 

address this Committee. I am Jason Bostic with the West Virginia 

Coal Association. 

Mr. LAMBORN. If you can get just a little closer. 

Mr. BOSTIC. Is that better? 

Mr. LAMBORN. A little bit more. 

Mr. BOSTIC. OK. Sorry about that. On behalf of our membership, 

which accounts for 98 percent of West Virginia’s underground and 

surface coal production, we are grateful for the opportunity to address this Subcommittee and we welcome your interest in these 

rule changes. 

West Virginia is the nation’s second largest coal producing state, 

averaging about 155 million tons of annual production, 60 percent 

of which comes from underground coal mining operations. West 

Virginia is the nation’s leading underground coal producer. 

As you’ve heard from others this morning, coal is the broadshouldered atlas of West Virginia’s economy. In addition to the 

21,000 miners directly employed in the industry, coal production 

supports another 42,000 jobs throughout our economy. Coal is also 

the backbone of West Virginia’s government and social program 

structure, providing almost $500 million in severance taxes to support vital county and state, local services. 

71 

The thousands of coal miners in West Virginia, Appalachia and 

across this nation desperately need your help. While the President 

speaks of stimulating the economy, at every turn his regulatory 

agencies are erecting substantial barriers to the expansion of the 

coal industry. While he pleads the case for more jobs, the agencies 

under his authority seem determined to drastically increase unemployment and outright poverty. 

All of the benefits provided by the coal industry have been placed 

in jeopardy by the actions of the current Administration. With this 

current initiative, OSM has joined EPA in advancing an anti-coal 

agenda that targets all coal production. To implement this agenda, 

these agencies rely on policy, guidance and secretive revisions that 

are developed behind closed doors, wrapped in bureaucratic intrigue. 

As the mining industry and our employees struggle to decipher 

and cope with this assault, we cannot help but marvel how this Administration’s commitment to transparency stops at Appalachia 

and with the coal industry. 

At the very outset of the new Administration, the White House 

Council on Environmental Quality engineered a blueprint that 

committed the entire Federal regulatory structure to target Appalachian coal miners. Following its orders from CEQ, for example, 

the EPA embarked on an unprecedented campaign to twist the 

Federal/State relationship under the Clean Water Act to nullify the 

rights of individual states. So bad are the actions of the EPA that 

individual states, including West Virginia, have sued in Federal 

court to preserve their sovereign authority. 

The rulemaking from OSM that is the subject of the hearing 

today is particularly offensive. The agency has set out to radically 

change the mining regulatory program with absolutely no justification. The path to revise the stream buffer zone rule began by way 

of a settlement agreement between OSM and certain anti-mining 

factions. From there, OSM established a rulemaking schedule that 

you’ve heard from others that would astonish most of the world. 

Under this record-breaking schedule, OSM would quash a prior effort that took four years to complete. 

Far from being the midnight regulation as accused by the Administration, the 2008 revisions were actually comprehensive 

changes that remained faithful to the Surface Mine Law. According 

to OSM’s own estimates, these changes stand to potentially reduce 

coal production in Appalachia by as much as 30 percent and throw 

thousands out of work. Further, despite the efforts of some to mask 

the impact of these revisions as confined to surface mining, and we 

cannot emphasis this point enough, the changes that OSM is currently contemplating could dramatically impact the underground 

production of coal in West Virginia and across this country. 

The coal industry is not alone in its observation that OSM is attempting to change an act of Congress by way of a regulation. Individual mining states have been openly critically of this process, as 

you’ve already heard this morning, with one state agency properly 

characterizing the rulemaking as junk and with the remainder of 

those agencies alleging the rule will violate the surface mining law. 

It is against this backdrop of a Federal assault, waged by the 

EPA and OSM on coal, that we welcome your interest in these rule 

72 

changes. The strong demand for West Virginia coal should be reassuring to our mining families and encouraging investment and expansion that puts even more people to work, but unfortunately, 

that is not the case. The politically motivated actions of OSM and 

EPA have cast a long shadow of uncertainty over the coal industry. 

For our mining families and their communities, these mysterious 

rule changes hang over their heads like an ominous cloud. 

Coal cannot only sustain current jobs but could add even more 

if these arbitrary actions from Washington are restrained through 

effective oversight from Congress. We seek not a subsidy or a handout. We just need the permission to work. To continue to do for this 

country what we’ve done for years, providing it with energy and industrial fuel that so many others in the developing world crave as 

they aspire to economic greatness, we urge you and we applaud 

your efforts to pull OSM and the other regulatory agencies from 

the shadows of their secretive routines and to demand real, hard 

answers. 

Thank you again. 

[The prepared statement of Mr. Bostic follows:] 

Statement of Jason D. Bostic, Vice-President, 

West Virginia Coal Association 

Good morning and thank you for the opportunity to address this Committee. I am 

Jason Bostic with the West Virginia Coal Association. On behalf of our membership, 

which accounts for 98 percent of West Virginia’s underground and surface coal production, we are grateful for the opportunity to address this Subcommittee. 

West Virginia is the nation’s second largest coal producing state, averaging 155 

million tons of annual coal production, 60 percent of which comes from underground 

mining operations. 

West Virginia is the nation’s leading underground coal producer and 21,000 men 

and women show up every day at mines in West Virginia to produce one of the most 

valuable energy resources found anywhere in the world. For electrical generation, 

West Virginia coal offers a fuel source that is both high in BTU content and low 

in emissions. For domestic and international steel producers, coal from West Virginia and Appalachia is irreplaceable as a feedstock for the production of iron and 

steel. Our coal is also used in a variety of manufacturing processes that produce everything from plastics, to medication to cosmetics. 

In short, West Virginia coal does everything from charging your iphone to forging 

the steel for our nation’s infrastructure to making the plastic bottle for your soda. 

Our coal is shipped to 33 states and 23 countries. Energy produced in West Virginia 

fuels 40 percent of all electrical consumption on the east coast. 

Coal is also the broad-shouldered Atlas of West Virginia’s economy. In addition 

to the 21,000 coal miners directly employed by the mining industry, coal production 

supports another 42,000 jobs throughout the economy. These are jobs that pay twice 

the average annual state wage and represent $3.4 billion in direct wages annually. 

Coal is also the backbone of West Virginia’s government and social program structure, providing almost $500 million in severance taxes to support vital state, county 

and local services. Together with the electric utility industry, coal provides upwards 

of 60 percent of all business taxes collected in West Virginia. 

The thousands of coal miners in West Virginia, Appalachia and across the nation 

need your help. 

While the President speaks of stimulating the economy, at every turn his regulatory agencies are erecting substantial barriers to the expansion of the mining industry. While he pleads the case for more jobs the agencies under his authority 

seem determined to drastically increase unemployment and increase those living 

below the poverty level. As the President calls for review of administrative actions, 

one of his executive agencies appears determined to push through a regulation with 

little public participation. 

All of the benefits provided by the coal industry, and all that results from having 

a domestic source of energy that is so versatile in the economy, has been placed in 

jeopardy by the actions of the current administration. With its current initiative to 

re-write the Stream Buffer Zone Rule, the federal Office of Surface Mining (OSM) 

73 

has joined the Environmental Protection Agency (EPA) in advancing an anti-coal 

agenda that targets all coal production but seems to focus specifically on the Appalachian coal basin. To implement this agenda, these agencies rely on policy, guidance and, in the case of OSM, secretive regulatory revisions that are developed behind closed doors, wrapped in bureaucratic intrigue. As the mining industry and our 

employees struggle to decipher and cope with this assault, we cannot help but marvel how this administration’s stated commitment to transparency stops at Appalachia and the coal industry. 

At the very outset of the new administration, the White House Council on Environmental Quality engineered a ‘‘blueprint’’ that committed the entire federal regulatory structure to restricting coal production and unfairly targeting Appalachian 

coal miners. The ideology expressed in this June 11, 2009 Memo (copy provided an 

as attachment) has been used by EPA to halt the legal and orderly processing of 

mining permit applications. Marching to its orders under the June 11 memo, EPA 

embarked on an unprecedented campaign to twist the federal-state relationship 

under the Clean Water Act (CWA) to nullify the rights of individual states with respect to water quality standards. So bad are the actions of EPA that individual 

states, including West Virginia, have sued in federal court to preserve their sovereign authority. 

The rulemaking from OSM that is the subject of the hearing today is particularly 

offensive. The agency has set out to radically change the mining regulatory program 

with no justification. As the agency itself admitted in the Federal Register, ‘‘. . .we 

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

January 20, 2009’’ (75 Fed. Reg. 34667, June 18, 2010) 

The path to revise the Stream Buffer Zone rule began by way of settlement agreement between OSM and anti-mining factions that have consistently, yet unsuccessfully, legally harassed the orderly regulation of coal mining. From there, came the 

June 11 memo and an OSM established rulemaking schedule that will astonish 

most observers- the agency committed to rewrite its regulations and complete an 

Environmental Impact Statement by February 2012—perhaps the fastest rulemaking exercise ever undertaken by a federal agency. 

Under this record-breaking rulemaking schedule, OSM would quash a prior effort 

that took four years to complete and certainly included more public comment opportunities than the current initiative. 

Far from being the ‘‘midnight regulation’’ as accused by OSM and this administration, the 2008 revisions were a thoughtful and inclusive change to federal mining 

regulations that remained faithful to the federal Surface Mining Control and Reclamation Act (SMCRA) and reflected several federal court decisions. Under this current regime, OSM has embarked on the most sweeping changes to the mining regulatory program since its creation in 1977 by Congress. 

OSM’s political leadership would have you believe these changes are but mere 

clarifications. Changes that, by OSM’s own conservative estimates, stand to potentially reduce coal production in Appalachia by as much 30 percent and throw 20,000 

people out of work are not minor. Further, and we can’t stress this important fact 

enough, despite the efforts of some to mask the impact of these revisions as confined 

to surface mining, the changes being contemplated by OSM could dramatically impact underground coal mines. They are in fact changes that betray the very will and 

intent of Congress as expressed in SMCRA. 

Just as we have seen from EPA and its actions under the CWA, unelected bureaucrats within OSM are set to radically alter the place of coal in our nation’s energy 

mix. They will do so with a stroke of the regulatory pen, ignoring public scrutiny 

and debate before Congress. Even the regulatory process associated with these 

changes has become secretive. Individual states, which SMCRA envisioned as the 

primary regulators of mining activity, have been locked out of the process by OSM. 

The coal industry is not alone in its observation that OSM is attempting to change 

an act of Congress by way of regulation. Individual mining states have been openly 

critical of this process, with one state agency properly characterizing the rulemaking 

as ‘‘junk’’ and many others alleging the rule will clearly violate SMCRA. 

It is against this backdrop of a federal assault, waged by EPA and OSM on coal 

that we welcome the Subcommittee’s interest in this rule change. The strong demand for West Virginia coal should be reassuring to our mining families and encouraging investment and expansion that puts even more people to work. But that 

is not the case. 

The politically-motivated actions of OSM and EPA have cast a long shadow of uncertainty over the coal industry. For our mining families and their communities 

these mysterious rule changes hang over their heads like an ominous cloud. They 

worry about their jobs, their children, paying their bills and the fabric of their comVerDate Nov 24 2008 10:58 Nov 06, 2012 Jkt 000000 PO 00000 Frm 00077 Fmt 6633 Sfmt 6621 L:\DOCS\68511.TXT Hresour1 PsN: KATHY
74 

1For purposes of this MOU, ‘‘Appalachian surface coal mining’’ refers to mining techniques 

requiring permits under both the Surface Mining Control and Reclamation Act (SMCRA) and 

Section 404 of the Clean Water Act (CWA), in the states of Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia. 2The term ‘‘mountaintop mining’’ may also be referred to as ‘‘mountaintop removal’’ or ‘‘valley 

fill mining.’’ 

munities. We are left to ponder why, if Washington is so concerned about creating 

good jobs, that it seems so determined to take away those that already exist. 

Coal has allowed West Virginia and other mining states to survive recent economic disruptions relatively unscathed without massive budget deficits and drastic 

reductions in social services. Coal production in West Virginia and elsewhere in this 

nation has a potentially bright future as the country struggles to regain its economic 

footing. We will need coal to power factories and forge steel. We will need coal to 

provide reliable, affordable electricity to our citizens. Coal cannot only sustain current jobs but could add even more if these arbitrary actions from Washington are 

contained through effective oversight from Congress. 

We seek not a subsidy or handout. We just need the permission to work. To continue doing for this country what we’ve done for years—providing it with the energy 

and industrial fuel that so many in the developing world crave as they aspire to 

economic greatness and providing the wages and taxes that support our states and 

communities. 

We ask that you pull OSM and the other regulatory agencies from the shadows 

of their secretive routines and demand real answers. 

Thank You. 

MEMORANDUM OF UNDERSTANDING AMONG THE 

U.S. DEPARTMENT OF THE ARMY, 

U.S. DEPARTMENT OF THE INTERIOR, 

AND U.S. ENVIRONMENTAL PROTECTION AGENCY 

IMPLEMENTING THE INTERAGENCY ACTION PLAN ON 

APPALACHIAN SURFACE COAL MINING 1

JUNE 11, 2009 

PREAMBLE 

The mountains of Appalachia possess unique biological diversity, forests, and 

freshwater streams that historically have sustained rich and vibrant American communities. These mountains also contain some of the nation’s richest deposits of coal, 

which have been mined by generations of Americans to provide heat and electricity 

to millions in the U.S. and around the world. After generations of mining, however, 

the region’s most readily available coal resources have diminished, and the remaining coal seams are less accessible to non-surface mining methods. 

In response, a surface mining technique commonly referred to as ‘‘mountaintop 

mining’’ 2 has become increasingly prevalent in the Appalachian region. Although its 

scale and efficiency has enabled the mining of once-inaccessible coal seams, this 

mining practice often stresses the natural environment and impacts the health and 

welfare of surrounding human communities. Streams once used for swimming, fishing, and drinking water have been adversely impacted, and groundwater resources 

used for drinking water have been contaminated. Some forest lands that sustain 

water quality and habitat and contribute to the Appalachian way of life have been 

fragmented or lost. These negative impacts are likely to further increase as mines 

transition to less accessible coal resources within already affected watersheds and 

communities. 

With this Memorandum of Understanding (MOU), the Department of the Interior 

(DOI), U.S. Environmental Protection Agency (EPA), and the U.S. Army Corps of 

Engineers (Corps) are announcing this Interagency Action Plan (IAP) designed to 

significantly reduce the harmful environmental consequences of Appalachian surface 

coal mining operations, while ensuring that future mining remains consistent with 

federal law. This IAP includes a set of short-term actions to be implemented in 2009 

to existing policy and guidance, and a longer term process for gathering public 

input, assessing the effectiveness of current policy, and developing regulatory actions. 

The Federal government has made a commitment to move America toward a 21stcentury clean energy economy based on the recognition that a sustainable economy 

75 

and environment must work hand in hand. Federal Agencies will work in coordination with appropriate regional, state, and local entities to help diversify and 

strengthen the Appalachian regional economy and promote the health and welfare 

of Appalachian communities. This interagency effort will have a special focus on 

stimulating clean enterprise and green jobs development, encouraging better coordination among existing federal efforts, and supporting innovative new ideas and initiatives. 

Interagency Action Plan 

I. COORDINATION ON REGULATORY PROGRAMS 

This MOU formalizes the agencies’ IAP for coordinating the regulation of Appalachian surface coal mining. The elements of the plan are: 

• A series of interim actions under existing authorities to minimize the adverse 

environmental consequences of Appalachian surface coal mining; 

• A commitment by the agencies to investigate and, if appropriate, undertake 

longer term regulatory actions related to Appalachian surface coal mining; 

• Coordinated environmental reviews of pending permit applications under the 

Clean Water Act (CWA) and Surface Mining Control and Reclamation Act 

(SMCRA); and 

• A commitment to engage in robust public participation, through public comment mechanisms and Appalachian public outreach events, helping to inform 

Federal, State, and local decisions. 

In addition to the steps taken above, the Federal government will help diversify 

and strengthen the Appalachian regional economy. This effort will include the agencies to this MOU, and other Federal agencies, as appropriate, and will work to focus 

clean energy investments and create green jobs in Appalachia. 

Coordination of interagency policy discussions and assessment of policy effectiveness will be achieved in consultation with the Council on Environmental Quality. 

II. SHORT–TERM ACTIONS TO MINIMIZE ENVIRONMENTAL HARM 

The signatory agencies will take the following short-term actions under existing 

laws, regulations, and other authorities to reduce the harmful environmental consequences of Appalachian surface coal mining. 

Before the end of 2009, the Corps and EPA will take the following steps: 

• Within 30 days of the date of this MOU, the Corps will issue a public notice 

pursuant to 33 C.F.R. § 330.5 proposing to modify Nationwide Permit (NWP) 

21 to preclude its use to authorize the discharge of fill material into streams 

for surface coal mining activities in the Appalachian region, and will seek 

public comment on the proposed action. 

• EPA and the Corps, in coordination with DOI’s Fish and Wildlife Service 

(FWS), will jointly develop guidance to strengthen the environmental review 

of proposed surface coal mining projects in Appalachia under the CWA Section 404(b)(1) Guidelines. 

• Recognizing that the regulation of surface coal mining extends beyond CWA 

Section 404, EPA will improve and strengthen oversight and review of water 

pollution permits for discharges from valley fills under CWA Section 402, and 

of state water quality certifications under CWA Section 401, by taking appropriate steps to assist the States to strengthen state regulation, enforcement, 

and permitting of surface mining operations under these programs. 

• The Corps and EPA, in coordination with FWS and consistent with the agencies’ regulations governing compensatory mitigation, will jointly issue guidance clarifying how impacts to streams should be evaluated and how to evaluate proposed mitigation projects to improve the ecological performance of such 

mitigation implemented to compensate for losses of waters of the United 

States authorized by Section 404 permits. 

• EPA, in coordination with the Corps, will clarify the applicability of the CWA 

waste treatment exemption for treatment facilities constructed in waters of 

the United States in order to minimize the temporary impacts of mining operations on streams. 

Before the end of 2009, DOI will take the following steps: 

• If the 2008 Stream Buffer Zone Rule is vacated by the U.S. District Court 

for the District of Columbia in Coal River Mountain Watch et al v. Kempthorne, 1:08-cv-02212–HHK C, as requested by the Secretary of the Interior 

on April 27, 2009, the Office of Surface Mining Reclamation and Enforcement 

(OSM) will issue guidance clarifying the application of the 1983 stream buffer 

zone provisions to further reduce adverse stream impacts. 

76 

• OSM will reevaluate and determine how it will more effectively conduct oversight of State permitting, State enforcement, and regulatory activities under 

SMCRA. 

• OSM will remove impediments to its ability to require correction of permit defects in SMCRA primacy states. 

III. DEVELOPMENT OF LONGER TERM REGULATORY ACTIONS TO BETTER 

MANAGE APPALACHIAN SURFACE COAL MINING 

A. OBJECTIVES 

The signatory agencies will review their existing regulatory authorities and procedures to determine whether regulatory modifications should be proposed to better 

protect the environment and public health from the impacts of Appalachian surface 

coal mining. At a minimum, the agencies will consider: 

• Revisions to key provisions of current SMCRA regulations, including the 

Stream Buffer Zone Rule and Approximate Original Contour (AOC) requirements; 

• Eliminating use of Nationwide Permit 21 in connection with surface coal mining in the Appalachian region when the Nationwide Permit Program is reauthorized in 2012; and 

• Revisions to how surface coal mining activities are evaluated, authorized, and 

regulated under the CWA. 

B. PROCESS 

The signatory agencies will create an interagency working group to coordinate the 

development of short-term actions, longer term regulatory actions, and coordination 

procedures for Appalachian surface coal mining. The group will ensure robust public 

involvement in the development of any proposed actions or regulatory reforms. 

For any proposed regulatory revision or other action under this MOU that is a 

major federal action significantly affecting the quality of the human environment 

(and is an action subject to NEPA), an Environmental Impact Statement (EIS) will 

be prepared to inform the decision-making process. At an early stage in the interagency coordination process, the working group will determine whether coordinating 

these NEPA processes programmatically would more effectively guide regulatory development and decision-making. The interagency group will coordinate with CEQ regarding the implementation of the National Environmental Policy Act (NEPA) in 

the development of regulatory reforms. 

IV. INTERIM INTERAGENCY COORDINATION PROCEDURES 

A. Clean Water Act 

EPA and the Corps will begin immediately to implement enhanced coordination 

procedures applicable to the Clean Water Act review of Section 404 permit applications for Appalachian surface coal mining activities that have been submitted prior 

to execution of this MOU. The goal of these procedures is to ensure more timely, 

consistent, transparent, and environmentally effective review of permit applications 

under existing law and regulations. The agencies are issuing these enhanced joint 

procedures concurrently with this MOU. Also concurrently, EPA is clarifying the 

factual considerations it is using to evaluate pending CWA permit applications 

under the 404(b)(1) Guidelines. 

Pending Clean Water Act Section 404 permit applications for Appalachian surface 

coal mining activities will continue to be evaluated by the Corps and EPA on a caseby-case basis. The agencies will focus their reviews of Appalachian surface coal mining permit applications based on likely environmental impacts with the goal of 

avoiding, minimizing, and mitigating such impacts to the extent practicable under 

the CWA Section 404(b)(1) Guidelines and consistent with NEPA. This approach 

will enable the continued permitting of environmentally responsible projects. 

B. Surface Mining Control and Reclamation Act 

During 2009, OSM will issue guidance concerning appropriate application of the 

Stream Buffer Zone rule and other related rules and will ensure that states are implementing their counterpart provisions and SMCRA regulatory programs consistent 

with the guidance. 

V. PUBLIC INVOLVEMENT 

This IAP will be accompanied by robust public comment on its short- and longer 

term actions. The agencies will hold public meetings in Appalachia during 2009 to 

gather on-the-ground input and encourage ongoing local engagement in the environmental assessment and decision-making process. Additional public participation will 

occur as agency actions move forward. 

77 

VI. GENERAL 

A. The policy and procedures contained within this MOU are intended solely as 

guidance and do not create any rights, substantive or procedural, enforceable by any 

party. This MOU does not constitute final agency action on any issue, and any actions contemplated by this MOU will be carried out in an appropriate administrative process by the action agency in accordance with all applicable laws and regulations. 

B. This document does not, and is not intended to, impose any legally binding requirements on Federal agencies, States, or the regulated public, and does not restrict the authority of the employees of the signatory agencies to exercise their discretion in each case to make regulatory decisions based on their judgment about the 

specific facts and application of relevant statutes and regulations. 

C. Nothing in this MOU is intended to diminish, modify, or otherwise affect statutory or regulatory authorities of any of the signatory agencies. All formal guidance 

interpreting this MOU and background materials upon which this MOU is based 

will be issued jointly by the appropriate agencies. 

D. Nothing in this MOU will be construed as indicating a financial commitment 

by DOI, the Corps, EPA, or any cooperating State agency for the expenditure of 

funds except as authorized in specific appropriations. 

E. This MOU will take effect on the date shown above and will continue in effect 

until permanent procedures are established, or unless earlier modified or revoked 

by agreement of all signatory agencies. Modifications to this MOU may be made by 

mutual agreement of all the signatory agencies. Modifications to the MOU must be 

made in writing. 

Signed, 

Lisa P. Jacks 

Administrator 

U.S. Environmental Protection Agency 

Ken Salazar 

Secretary 

U.S. Department of the Interior 

Terrence ‘‘Rock’’ Salt 

Acting Assistant Secretary of the Army (Civil Works) 

U.S. Department of the Army 

Mr. LAMBORN. All right. Thank you. Ms. Fredriksen? 

STATEMENT OF KATHARINE A. FREDRIKSEN, SENIOR VICE 

PRESIDENT, ENVIRONMENTAL STRATEGY & REGULATORY 

AFFAIRS, CONSOL ENERGY 

Ms. FREDRIKSEN. Good morning, Mr. Chairman, and distinguished Subcommittee members. My name is Katharine Fredriksen 

and I am the Senior Vice President of Environmental Strategy & 

Regulatory Affairs for CONSOL Energy. I’d like to thank you for 

inviting me to participate today in this very important hearing. 

CONSOL Energy holds the largest proven reserves of minable bituminous coal of 4.4 billion tons. We are the nation’s largest underground producer of coal and will produce 62 million tons this year 

alone. 

My comments today are based on the draft Office of Surface Mining stream buffer zone rule that is available in the public forum. 

Based on our analysis of this draft rule, CONSOL has very serious 

concerns about the jobs at risk and the significant impact on coal 

mining if this rule were to go forward as drafted. 

Eighty-eight percent of our coal is produced using the longwall 

method of mining. Longwall mines are the safest method of underground mining and at CONSOL, safety is absolutely our number 

one core value. Currently, we operate active mining complexes 

across five states. Eight of our mining complexes are longwall 

78 

mines, with five of those eight located right here in northern West 

Virginia. We also have surface and underground mining operations 

in central and southern West Virginia. 

As the Subcommittee knows, SMCRA not only regulates surface 

coal mines, but it also regulates the surface effects of underground 

coal mines. Thus, all of CONSOL Energy’s longwall mining operations operate pursuant to and in accordance with a SMCRA permit. 

OSM’s revised SBZ rule appears to include, among other things, 

a prohibition of mining in, near or through intermittent and perennial streams and within 100 feet of such streams, very restrictive 

provisions for excess spoil fills and new and expansive standards 

for what constitutes a material damage to the hydrologic balance. 

These standards could make longwall mines impossible to permit 

or operate. In the locations where we operate, it is impossible for 

longwall mining to avoid impacts to intermittent and perennial 

streams because such streams are ubiquitous atop our operations. 

The proposed definition of material damage could further prohibit 

subsidence of streams and thus eliminate our ability to extract coal 

via longwall mining. 

Using a moderate interpretation, and I stress moderate, instead 

of extreme or worse case, CONSOL conducted a preliminary engineering analysis of the impacts of this rule in its current draft 

form. If you’ll indulge me, I have a graphic to represent this because they always say a picture is worth a thousand words. 

Mr. LAMBORN. Ms. Fredriksen, is this in your testimony or do we 

need to have it added to the record? 

Ms. FREDRIKSEN. Yes, it’s included. I can include this as a part 

of the written, if you would like. I have it as an exhibit. 

Mr. LAMBORN. OK. If there’s no objection, that will be added to 

the record. 

Ms. FREDRIKSEN. Thank you. Our analysis indicated that the 

rule would result in a 40 percent loss of eastern longwall minable 

reserves to CONSOL. That is over one billion tons CONSOL would 

be prohibited from mining. At current market prices, this translates to a reduction in future revenues of over $66 billion. 

Additionally, the increased quantity and frequency of longwall 

moves to avoid protected streams could further reduce the mine’s 

annual production by 25 to 30 percent and potentially increase production costs by 20 to 35 percent. For CONSOL alone, this would 

mean many of our longwall mines would be unprofitable at today’s 

coal prices. 

Please note that streams typical of the streams that are to be 

protected by this proposed rule have been undermined by longwall 

operations for over 35 years. To date, over 172 square miles in 

Pennsylvania and West Virginia have been undermined by 

CONSOL’s longwall operations with no material damage to the hydrologic balance. 

CONSOL believes that coal production, safety of personnel and 

environmental stewardship are not mutually exclusive goals. Impacts to the environment as a result of longwall mining are regulated by the state environmental agencies through NPDES permits 

and by the Army Corps of Engineers through 404 permits. These 

permits account for the hydrological, stream baseline, ecological 

79 

and geologic impacts. A complete listing of all of the permits we are 

subject to is included in my written testimony. 

But this hearing is entitled ‘‘Jobs at Risk,’’ so if you’ll indulge 

me, I’d like to take a few moments to discuss the impacts this rule 

will have on our communities in which we operate and on our employees. 

By way of example, and attached as Exhibit D to my written testimony, we analyzed the 2010 year end economic impacts of our 

Pennsylvania mining complex called Bailey-Enlow, two of our larger mines that would be significantly impacted by this rule. There 

are a total of 1,348 CONSOL employees at this complex, as well 

as an average of 412 contractor employees onsite every day. The 

total direct expenditures from the complex in the local economy is 

$763 million, with an additional $98 million in Federal, state and 

local taxes. Using a five to one multiplier effect, the estimated local 

economy impact is $1.7 billion, creating 6,740 jobs, bringing the 

total economic impact to $2.6 billion for 2010 alone. 

But we’ve got five longwall mining complexes in West Virginia 

and they provide similar high-paying jobs and economic benefits. 

We directly employ 3,035 employees at these mines and approximately 264 contractors. The total direct expenditures from these 

five complexes in the local economies in West Virginia are $872 

million, with an additional $146 million in Federal, state and local 

taxes. The local economy multiplier effect for northern West Virginia mines brings the local impact to $1,017 billion for 2010, with 

an estimated 15,175 jobs. We’ve additionally provided $2.4 million 

in philanthropic donations to the communities where we operate in 

2010 alone. 

In conclusion, Mr. Chairman, please allow me to say that at a 

time when our nation’s economy is still struggling to regain its 

former balance, and with unemployment remaining stubbornly 

high, one of the few relatively robust sectors is the coal mining industry. In this regard, we are particularly pleased and proud of our 

longwall operations and of all the men and women who work so 

tirelessly toward the safe, environmentally protective and economically successful operation of these mines. 

The stream buffer zone rule, if promulgated in its current form, 

would mean the loss of billions of dollars to the economy and literally thousands of jobs. On behalf of CONSOL, I fervently hope 

that the Administration will proceed in a different direction. Thank 

you. 

[The prepared statement of Ms. Fredriksen follows:] 

Statement of Katharine A. Fredriksen, Senior Vice President, 

Environmental Strategy & Regulatory Affairs, CONSOL Energy 

Introduction 

Good Morning Mr. Chairman and distinguished Subcommittee Members and 

guests. My name is Katharine Fredriksen and I am the Senior Vice President, Environmental Strategy & Regulatory Affairs for CONSOL Energy. Thank you for inviting me to participate in this very important Subcommittee oversight hearing. 

CONSOL Energy holds the largest proven reserves of minable bituminous coal of 

4.4 billion tons. We are the nation’s largest underground miner of coal, and will 

produce some 62 million tons of coal this year alone. My comments today are based 

on the draft Office of Surface Mining (‘‘OSM’’) Stream Buffer Zone rule available in 

the public forum. Based on our analysis of that draft rule, CONSOL has serious conVerDate Nov 24 2008 10:58 Nov 06, 2012 Jkt 000000 PO 00000 Frm 00083 Fmt 6633 Sfmt 6621 L:\DOCS\68511.TXT Hresour1 PsN: KATHY
80 

cerns about the jobs at risk and the significant impacts on coal mining if this rule 

were to go forward as any of the proposed alternatives other than ‘‘no action’’. 

Eighty-eight percent of our coal is produced using the longwall method of mining. 

As Members of this Subcommittee may know, longwall systems have their own hydraulic roof supports called shields for overlying rock that move with the machine 

as mining progresses into the coal seam. Rock that is no longer supported by the 

coal that has been removed is allowed to fall behind the operation in a controlled 

manner, always keeping the miners under the shields. Longwall mines are the 

safest method of underground mining, and at CONSOL, safety is absolutely our 

number one core value. 

Currently, we operate active mining complexes across five states. Eight of our 

mining complexes are longwall mines, as follows; (1) Buchanan in Southwest Virginia; (2) Shoemaker in Northern West Virginia near Wheeling; (3) McElroy in 

Northern West Virginia near Moundsville; (4) Blacksville in Northern West Virginia 

near the Pennsylvania border; (5) Loveridge in Northern West Virginia near Fairmont; (6) Robinson Run, also near Fairmont in Northern West Virginia; (7) Bailey 

Mine in Pennsylvania; and 8) Enlow Fork Mine, also in Pennsylvania. We also have 

surface and underground mine operations in central and southern West Virginia, 

namely our Fola and Miller Creek mines. 

SMCRA Regulates the Surface Effects of Underground Coal Mines 

As the Subcommittee knows, SMCRA not only regulates surface coal mines, but 

also, as specified in SMCRA § 516, the surface effects of underground coal mining 

operations. Importantly, however, SMCRA § 516 mandates that in adopting any 

rules and regulations for the surface effects of underground coal mines, OSM ‘‘shall 

consider the distinct difference between surface coal mining and underground coal 

mining.’’ Thus, all of CONSOL Energy’s longwall mining operations operate pursuant to and in accordance with SMCRA permits issued by the state regulatory authorities in the states where we operate. The programs of these state regulatory authorities have been approved by OSM as being as stringent as federal SMCRA and 

they are subject to strict oversight by OSM. In addition, Congress in SMCRA specifically encouraged the use of planned subsidence such as that which occurs with 

longwall mining. 

Consequently, CONSOL Energy will be directly affected by any changes OSM 

makes to its stream buffer zone rule. As I describe in more detail below, everything 

we have learned to date about these changes causes us to be gravely concerned 

about the economic viability of our longwall mines, and the adverse impacts on employment at the mines, as well as the effects on the local communities that depend 

on these operations. 

What is the Stream Buffer Zone Rule? 

Rules and policies on stream buffer zones have been in existence from almost the 

very beginning of the implementation of SMCRA by OSM and the regulatory authorities of the coal mining states. The current stream buffer zone rule was published in the Federal Register on December 12, 2008 in a document entitled ‘‘Excess 

Spoil, Coal Mine Waste, and Buffers for Perennial and Intermittent Streams.’’ 73 

Fed. Reg. 75,814. A copy of the first page of the preamble to the stream buffer zone 

rule and the rule itself is attached as Exhibit A to my prepared statement. As you 

heard in earlier testimony, the existing rule is a is a very comprehensive and detailed rule. 

This 2008 rule resulted from a careful and well-executed public process completed 

over more than a five-year period. It included public hearings and consideration of 

over 45,000 public comments. The 2008 rule was also supported by an October 2005 

programmatic environmental impact statement (‘‘EIS’’), which was sponsored by 

four federal agencies: OSM; EPA; the Corps of Engineers; and the Fish and Wildlife 

Service. This EIS included 30 scientific and economic studies. OSM also completed 

another separate EIS to support the final rule. The 2008 rule clarified existing agency policy on stream buffer zones that had been consistently used and applied by 

both OSM and state regulatory authorities for over 25 years. However, it also added 

and strengthened significant new environmental requirements for the placement of 

excess spoil. These new requirements included provisions for: 

• minimizing excess spoil, avoiding mining activities in or near perennial and 

intermittent streams, if reasonably possible; 

• requiring an analysis of alternatives; and 

• selection of the option for placement of spoil with the least environmental impact on fish, wildlife, and related environmental values, to the extent possible. 

81 

The 2008 rule was challenged in court, but instead of remanding or vacating the 

rule, the court instructed OSM that any changes the agency wanted to make would 

have to be done through notice and comment rulemaking, with full public participation. In the meantime, the 2008 stream buffer zone rule would remain in effect. A 

copy of the court’s August 2009 decision in this case is attached to my prepared 

statement as Exhibit B. 

Impacts Resulting from Revisions to the SBZ rule 

OSM’s revised SBZ rule appears to include, among other things: 

• prohibition of mining in, near, or through intermittent and perennial streams 

and within 100 feet of such streams; 

• very restrictive provisions for excess spoil fills; and 

• new and expansive standards for what constitutes material damage to the hydrologic balance. 

These standards could make longwall mines impossible to permit or operate. In 

the locations where we operate, it is impossible for longwall mining to avoid impacts 

to intermittent and perennial streams because such streams are ubiquitous atop our 

operations and we cannot avoid mining beneath them. The proposed definition of 

material damage could prohibit subsidence of streams, thus eliminating our ability 

to extract the coal via longwall mining. 

Using a moderate interpretation of a protected stream, CONSOL conducted a preliminary engineering analysis of the impacts this rule, in its current draft form, 

could have if finalized. Our analysis indicates that the rule would result in a 40% 

loss of eastern longwall minable reserves to CONSOL—that is over 1 billion tons 

CONSOL would be prohibited from mining. At current market prices, this translates to a reduction in future revenues by over $66 billion. Additionally, the increased quantity and frequency of longwall moves due to avoidance of protected 

streams could further reduce the mine’s annual production by 25 to 30 percent, and 

potentially increases production costs by 20 to 35 percent. For CONSOL alone, this 

would mean many of CONSOL’s longwall mines would be unprofitable at today’s 

coal prices. 

Please note that streams typical of the streams ‘‘to be protected’’ by this proposed 

rule have been undermined by longwall operations for 35 years. This mining has 

been conducted consistent with the Congressional intent that underground mining 

cause ‘‘subsidence to occur at a predictable time and in a relatively uniform and predictable manner’’ (Report of the House Committee on Interior and Insular Affairs 

to Accompany H.R. 2; April 22, 1977). To date, over 172 square miles in PA and 

WV have been undermined by CONSOL’s longwall operations with no material 

damage to the hydrologic balance. And in those infrequent circumstances where subsidence does impact streams, states require those impacts to be addressed. We suggest that it would be educational for the committee members to take the time to 

drive through these areas that have been undermined to see for themselves that environmental normalcy exists in those areas. 

Existing Environmental Regulations Already Address the SBZ Issues 

CONSOL believes that coal production, safety of personnel and environmental 

stewardship are not mutually exclusive goals. Impacts to the environment as a result of longwall mining can be, and have been, addressed in a manner that complies 

with the existing laws and regulations of the states in which CONSOL operates 

these mines. 

The following environmental permits must be obtained for our mining operations. 

These permits incorporate ALL the provisions of the federal Clean Water Act, Clean 

Air Act, NEPA and SMCRA. 

United States Army Corps of Engineers (USACE) 404 

Permit to impact jurisdictional waters and wetlands. The permit includes mitigation to offset the stream and wetland impacts from the project, a cumulative impact 

statement or environmental impact statement, a jurisdictional determination for the 

streams and wetlands, long term maintenance plan for mitigation sites, long term 

monitoring plan and a description of the project and direct impacts. 

PA Department of Environmental Protection (PA DEP) 401/NPDES Coal Mining 

Activity permit application—The permit includes the design, purpose and details of 

the project, hydrological, stream baseline, ecological and geological evaluations, construction specifications, and bonding. 

PA DEP Chapter 105—Permit for water obstructions and encroachments. The permit includes mitigation to offset the stream and wetland impacts from the project, 

a long term maintenance plan for mitigation sites, long term monitoring plan and 

a description of the project and direct impacts. As part of the Chapter 105 approval 

82 

an erosion and sedimentation/NPDES plan approval is obtained by either the Conservation District or DEP. 

PA DEP Chapter 105 and Mine Safety and Health Administration (MSHA)—Permit for Dam construction and maintenance. The permit includes design, construction specifications, and bonding, Emergency Action Plan and Operation and Maintenance Plan. 

VA Department of Mines, Minerals and Energy Surface Mine Control and 

Reclamation Act Permit (SMCRA) 

The permit includes the design, purpose and details of the project, hydrological, 

stream baseline, ecological and geological evaluations, construction specifications, 

and bonding. This permit is issued as a combined SMCRA/NPDES Permit. 

WV DEP 401/NPDES Coal Mining Activity permit application. 

The permit includes the design, purpose and details of the project, hydrological, 

stream baseline, ecological and geological evaluations, construction specifications, 

and bonding. 

Jobs at Risk and Impacts on Our Communities 

By way of example, we wish to provide the Subcommittee with our analysis (attached as Exhibit D to my statement) of the year-end 2010 economic impacts of our 

Bailey-Enlow Fork complex in Southwestern Pennsylvania. To briefly summarize 

this analysis, there are a total of 1,348 CONSOL employees at this complex, as well 

as an average of 412 contractor employees on-site every day. The total direct expenditures from the complex in the local economy is almost $763 million, not including almost $98 million in federal, state, and local taxes. This results in a total direct 

economic impact from the mining complex on the local economy of almost $861 million. In addition, the estimated local economy multiplier effect is about $1.7 billion, 

with the estimated ‘‘spin-off’’ effect of jobs resulting from the Bailey-Enlow Complex 

at 5 to 1—creating 6,740 jobs. Thus, the total economic impact of the Bailey-Enlow 

Fork Complex on the local community is almost $2.6 billion for 2010. 

Our other five longwall mining complexes in WV provide similar high-paying jobs 

and economic benefits to the communities in which they operate. We directly employ 

3,035 employees at those mines, and approximately 264 contractors. At a 5 to 1 

spin-off that equals about 15,175 jobs. The total direct expenditures from these five 

complexes in the local economies in WV is almost $871 million, not including almost 

$146 million in federal, state, and local taxes. This resulted in a total direct economic impact from the mining complex on the economy of almost $1,017 billion for 

2010 to the communities of northern West Virginia. 

Also please note that CONSOL provided approximately $2,363,000 in philanthropic donations to the communities in which we operated in PA, VA and WV in 

2010. Should our longwall mines be forced to close or curtail business as a result 

of OSM’s SBZ rule, then those donations would be substantially reduced. 

We would be happy to provide the Subcommittee with analyses for each of these 

operations. 

Conclusion 

Mr. Chairman, and Members of the Subcommittee, please allow me to conclude 

by saying that at a time when our Nation’s economy is still struggling to regain its 

former balance, and with unemployment remaining stubbornly high, one of the few 

relatively robust sectors is the coal mining industry. In this regard, we are particularly pleased and proud of our longwall operations and all of the men and women 

who work so tirelessly toward the safe, environmentally protective, and economically 

successful operation of these mines. The coal we produce is ‘‘America’s on Switch.’’TM

The SBZ rule, if promulgated in its current form, would mean the loss of billions 

of dollars to the economy, and literally thousands of jobs. On behalf of CONSOL, 

I fervently hope that the Administration will proceed in a different direction. 

Thank you. 

[NOTE: Attachments have been retained in the Committee’s official files.] 

Mr. LAMBORN. Thank you. Mr. Webb? 

STATEMENT OF BO WEBB, FORMER PRESIDENT/CURRENT 

MEMBER, COAL RIVER MOUNTAIN WATCH 

Mr. WEBB. Good morning. For the record, let’s just be clear, that 

as of right now, at this moment, there is no rewrite and what we’re 

83 

hearing here this morning is a lot of speculation. I won’t be speculating about anything I’m talking about. 

The title of this hearing, ‘‘Jobs at Risk, Community Impacts of 

the Obama Administration’s Effort to Rewrite the Stream Buffer 

Zone Rule,’’ is offensive to me. It’s offensive to anyone that is living 

and dying in mountaintop removal communities, and that’s what 

I’m here to talk about. I am not opposed to underground mining. 

I don’t believe any rewrite of the SBZ rule in any way, shape or 

form is going to curtail jobs or lose jobs. I have some evidence that 

I have submitted to this Committee in writing that reference 

sources from the Mine Safety and Health Administration and the 

Bureau of Labor Statistics that say that won’t happen. 

The SBZ rule must be corrected in order to protect the people’s 

health. It was rewritten by George W. Bush as a parting gift to the 

coal industry at the cost of people’s health and it needs to be fixed. 

Let us not forget, President Ronald Reagan, your President, my 

President, in 1983 created the stream buffer zone rule because he 

realized the responsibility he had to protect America’s water supply 

in the face of a coal industry that was moving more rapidly toward 

a method of mining that would turn entire mountains into ruin and 

destroy head water source streams that carry drinking water to 

millions of Americans. That responsibility now sits on your shoulders, on current President’s shoulder, on every Member of Congress’ shoulders. No one gets a free pass, not you and certainly not 

those that seek the subvert protection of our water. 

Protecting our water is far more important than money, power 

and politics. To date, there are 19 peer-reviewed science papers addressing human health in mountaintop removal communities. A 

few of the titles are, ‘‘The association between mountaintop mining 

and birth defects among live births in central Appalachia;’’ ‘‘SelfReported Cancer Rates in Two Rural Areas of West Virginia With 

and Without Mountaintop Coal Mining;’’ ‘‘Cardiovascular Disease 

Mortality in Mountaintop Mining Areas of Central Appalachian 

States.’’ It goes on and on, there’s nineteen of these. And yet, not 

one of these have been refuted, scientifically refuted, not one. Yet 

no one in Congress, nor the coal industry will acknowledge these 

papers, these science papers, exist. Now, you either believe in 

science or you choose to put your head in the sand and revert back 

to the dark ages. 

With some of the rhetoric that’s coming from the coal industry 

these days, one must wonder about their acceptance of modern 

science and living in the 21st century. The coal industry’s latest 

comment on the recent alarming birth defects research in mountaintop removal communities is that the research did not take into 

account that those of us living in mountaintop removal communities are a bunch of inbreeds. I think that perhaps they need to 

look inside their own gene pool. It’s a scientific fact that inbreeding 

can’t account for ignorance and low IQs. 

Mountaintop removal is an unprecedented form of coal extraction. Nearly a million acres of forested mountains have been obliterated. Two thousand miles or more of headwater source streams 

have been contaminated and countless water wells have been rendered unsafe for human consumption. Entire ecosystems have been 

wiped out. Mountaintop removal has been in full stride now for 

84 

about 15 to 20 years and already we are witnessing health effects 

of human exposure to the fallout of this insane method of mining, 

and it is insane. What will be the long-term effects? 

Statistical research on Appalachian birth defects that I mentioned a moment ago has found that a woman pregnant living near 

mountaintop removal has a 42 percent greater chance of a baby 

born with birth defects than a pregnant woman living in a nonmountaintop removal community. You equate that to cigarette 

smoking. A baby born in mountaintop removal community has a 

181 percent greater chance of heart or lung birth defects while the 

risk related to the mother’s smoking was only 17 percent higher. 

That, Committee Members, that’s staggering. If that doesn’t get 

your attention, it doesn’t spur you to some sort of action, then 

you’ve sold your very heart and soul. And your pro-life stamps that 

you claim you have is not credible. It’s phony. It’s transparent. You 

stand on a soapbox and claim to be pro-life yet allow our babies to 

be poisoned, disregarded like yesterday’s garbage, ignored. I think 

a dog probably has more rights and protection that an unborn baby 

in a mountaintop removal community. I’m beginning to wonder if 

Congress has any decency left. 

I ask each of you, in the name of our great nation, to put your 

politics aside, stand for what’s right, protect our citizens and do not 

oppose change to the current SBZ’s rule that will help protect 

American lives. At the very least, support it being rolled back to 

the Reagan Rule, with enforcement. 

Let us be reminded that regulatory agencies are created to protect the people from industries that may cause harm to the people. 

When these agencies or legislators, for that matter, become ill- influenced by those they oversee or their power to regulate is circumvented by acts such as the Bush trashing of the SBZ rule, the 

people are not well served. America is not well served. 

Please remember this each and every waking moment of your 

service to our country. Our future, our children’s future, your children’s future and our lives depend on it. And I would simply ask, 

and I’ll request here right now, that there should be an immediate 

moratorium placed on all mountaintop removal operations until the 

Federal Government can take a look and see what is happening in 

southern West Virginia and eastern Kentucky with this type of 

mining. Thank you. 

[The prepared statement of Mr. Webb follows:] 

Statement of Bo Webb, President, Coal River Mountain Watch 

The very title of this hearing indicates a bias against those of us who are living 

(and dying) in mountaintop removal mining communities. The title suggests that 

jobs are at risk if the SBZ rule is corrected. The SBZ rule must be corrected in order 

to protect The People’s health. It’s been broken and it needs fixed. 

Let us not forget, President Ronald Reagan, your president, my president, in 1983 

created the Stream Buffer Zone Rule because he realized the responsibility he had 

to protect America’s water supply in the face of an industry that was moving more 

rapidly toward a method of mining that would turn entire mountains into ruin and 

destroy head water source streams that carry drinking water to millions of American citizens. This committee now shares that responsibility because President 

George W. Bush, with the stroke of a pen, trashed the Reagan SBZ rule just before 

leaving office as a present to a coal industry that wills itself to increase profit at 

all cost, even at the cost of human health. 

85 

I will first address the fallacy of job loss with factual data providing referenced 

resources. This committee would serve The People well if its actions are based upon 

fact and not coal industry deception and often outright deceit. 

Fallacy: Stopping the destruction of Appalachian mountains and streams would 

cost jobs. 

Fact 1: Underground mines create over 50% more jobs than mountaintop 

removal mines. Underground mines create 52% more jobs than mountaintop removal mines for every ton they produce—they employ nearly two thirds of the miners in Central Appalachia while producing just over half of the coal1. Fact 2: Unemployment in counties where a high proportion of coal is 

mined by mountaintop removal is higher than in counties where coal is 

mined mostly underground. According to data from the Bureau of Labor Statistics from 2000 through 2010, the average annual unemployment rate was 8.6% in 

Central Appalachian counties where more than 75% of coal production was by 

mountaintop removal, compared to 6.7% in counties where mountaintop removal accounted for less than 25% of production2. See: http://www.flickr.com/photos/appvoices/5938215752/ 

Fact 3: Historically, the total number of mining jobs has fallen in places 

where the proportion of coal mined by mountaintop removal has increased. 

According to the West Virginia Geologic and Economic Survey, the proportion of coal 

production in West Virginia that came from mountaintop removal mines increased 

from 19% to 42% of production between 1982 and 20063. Even though overall production increased, the number of mining jobs was cut in half over the same period4. 

See: http://www.flickr.com/photos/appvoices/6167625000/ 

Fallacy: More stringent enforcement of the Clean Water Act by the EPA and 

other federal agencies is creating an economic crisis in Central Appalachia. 

Fact: The number of mining jobs in Appalachia has increased since the 

start of the recession, since the EPA began enhanced review of mountaintop removal permits, and since the EPA released its interim guidance in 

April, 2010. Since 2007, as production in Central Appalachia has shifted away from 

mountaintop removal in favor of underground mining techniques, the increase in 

employment at underground mines has more than offset declines at other types of 

mines. Employment is up 11.5% since the start of the recession (December, 2007), 

up 2.5% since Enhanced Coordination Procedures on mountaintop removal permitting were announced among three federal agencies (June, 2009), and up almost 6% 

since the EPA announced a new guidance on Appalachian mine permitting (April, 

2010). 

See: http://www.flickr.com/photos/appvoices/6130794844/ 

Fallacy: Ending mountaintop removal would put US energy supply at risk. 

Fact: U.S. coal production is limited by demand for coal, not by the ability of companies to obtain permits for mountaintop removal mines. According to energy analysts8 as well as executives from Arch Coal9, Peabody Energy10

and Southern Company11, declining Central Appalachian coal production is the result of competition from lower cost natural gas. Mines across the country are producing at just 75% of their capacity12—down from 85% in 2008—and the Energy 

Information Administration projects that coal demand won’t recover to 2008 levels 

for another 15 years13. Coal from mountaintop removal mines could easily be replaced if other US mines were operating at just 81% of their capacity. 

See: http://www.flickr.com/photos/appvoices/5937661551/ 

Fact: Coal from mountaintop removal mines accounts for less than 5% of 

US electricity generation. While coal accounts for nearly 45% of US electricity 

generation14, only 15% of that is mined in Central Appalachia15. Coal from all of 

Appalachia accounts for less than 9% of US electricity generation, and coal from 

mountaintop removal less than 5%. 

See: http://www.flickr.com/photos/appvoices/5818441741/ 

Fallacy: Prohibiting valley fills would prevent all forms of coal mining in Appalachia. 

Fact: The majority of recently approved permits for new mines in Central 

Appalachia do not use valley fills. A survey of all applications for new mine permits in Central Appalachia that were approved by state agencies in 2009 revealed 

that just 44% used valley fills to dispose of mine waste16. 

See: http://www.flickr.com/photos/appvoices/5938219772/ 

References and Notes 

1. Calculated from MSHA Part 50 data files <http://www.msha.gov/stats/part50/ 

p50y2k/p50y2k.htm>; Mountaintop removal production and employment calculated from ‘‘strip’’ mines, as defined by MSHA for mines in Central Appalachian counties. 

86 

2. Ibid; Unemployment data from the Bureau of Labor Statistics <http:// 

www.bls.gov/ces/> 

3. Hendryx, 2008. ‘‘Mortality Rates in Appalachian Coal Mining Counties: 24 

Years Behind the Nation.’’ Environmental Justice; Volume 1, Number 1 

4. MSHA op. cit. 2000–2010 

5. MSHA op. cit. 2007–2010; Bureau of Labor Statistics op. cit. 

6. EIA/DOE ‘‘EIA–923’’ Database <http://eia.doe.gov/cneaf/electricity/page/ 

eia906_920.html> 

7. DOE/EIA Cost and Quality of Fuels for Electric Plants, Table 3.2 for 2007- 2009; Adjusted to 2009 $ based on Budget of the United States Government: 

Gross Domestic Product and Implicit Outlay Deflators; 

8. Bernstein Commodities & Power Report, 2/18/2011: ‘‘No Light for Dark 

Spreads: How the Ruinous Economics of Coal-Fired Power Plants Affect the 

Markets for Coal and Gas’’ 

9. Steve Leer, Chairman and CEO, Arch Coal, Inc. presentation to Barclays 

2010 CEO Energy-Power Conference on 9/15/2010; 

10. Rick Navarre, President and Chief Commercial Officer, Peabody Energy, ‘‘Expanding Markets and Peabody Growth Opportunities,’’ a presentation to the 

2010 Analyst and Investor Forum on 6/17/2010 

11. Chad Hewitt, Southern Company, ‘‘Utility Perspective on the Future of Coal’’ 

presented at American Coal Council’s Spring Forum on February 3, 2011; 

12. DOE/EIA Annual Coal Report for 2009. Analysis by Appalachian Voices. 

13. DOE/EIA Annual Energy Outlook, 2011 Early Release edition 

14. EIA/DOE Electric Power Monthly with data for December 2010, Table 1.1: 

‘‘Net Generation by Energy Source: Total (All Sectors) ‘‘; <http://eia.doe.gov/ 

cneaf/electricity/epm/table1_1.html> 

15. EIA/DOE ‘‘EIA–923’’ Database op. cit. 

16. Applications for new mine permits approved in 2009 obtained from: Kentucky 

Department of Natural Resources; West Virginia Department of Environmental Protection; Virginia Department of Mines, Minerals and Energy; US 

Office of Surface Mining Reclamation and Enforcement, Knoxville Office 

I doubt very much if the coal industry has provided any factual evidence whatsoever of jobs loss risk if the SBZ rule is fixed. If so, please provide that evidence to 

The People. 

It would be shameful and woefully incompetent if a Unites States Congressional 

committee would take action based upon misleading and false coal industry information. A question of ethics and suspicion would be ever glaring with a hearing that 

in reality was nothing more than political grandstanding, organized as a ‘‘stacked 

deck’’ against those who are simply asking for our most basic human needs, clean 

water and a safe environment. This hearing should desire a just outcome for The 

People. The outcome of this hearing should not be one that supports those who are 

benefitting from an endeavor that is killing people in mountain communities. To do 

so will be a shameful affront to American Democracy. People, American citizens, are 

dying at the hands of an insatiable coal industry profit machine, and this committee 

has the nerve to label this hearing with a title that is clearly an attempt to mislead 

the American people. 

Mountaintop Removal and Human Health 

Now, I will address the issue that we should be here for, and that is the human 

health crisis we are facing in mountaintop removal communities. 

To date there are 19 peer-reviewed science papers addressing human health in 

mountaintop removal communities. Just to name a few: Environmental Research 

Journal ‘‘The association between mountaintop mining and birth defects among live 

births in central Appalachia’’. The Journal of Rural Health, 2011 ’’ Chronic Cardiovascular Disease Mortality in Mountaintop Mining Areas of Central Appalachian 

States’’. Community Health July 2011 ‘‘Self Reported Cancer Rates in Two Rural 

Areas of West Virginia with and without Mountaintop Coal Mining’’. And it goes on. 

To place the matter in a national perspective that members of Congress might appreciate, the three congressional districts with the most mountaintop removal consistently rank at or near the three with the worst well-being, according to the annual Gallup-Healthways survey. In 2009 and 2010, the states of West Virginia and 

Kentucky ranked as the states with the worst and next worst well-being in the 

country (http://www.gallup.com/poll/125066/State-States.aspx?wbTabOnly=true). In 

2010, the 3rd Congressional District of West Virginia, where I live, ranked 435th 

for both physical and emotional health (http://www.well-beingindex.com/files/ 

2011WBIrankings/LowRes/WV_StateReport.pdf). The 5th Congressional District of 

Kentucky ranks 435th overall in well-being, (http://www.well-beingindex.com/files/ 

2011WBIrankings/LowRes/KY_State 

87 

Report.pdf), and the 9th District of Virginia ranks 434th in both physical and emotional health (http://www.well-beingindex.com/files/2011WBIrankings/LowRes/VA_ 

StateReport.pdf). Clearly, the prevalence of mountaintop removal has not brought 

about the happy, healthy, prosperous communities that the coal industry has promised. This committee should be alarmed, yet remains silent. The silence has become 

deafening. 

Science does not allow a choice or preference of what to believe and what not to 

believe. You either believe in science or choose to put your head in the sand and 

revert to the dark ages. With some of the rhetoric coming from the coal industry 

today, one must wonder about their acceptance of modern science and living in the 

21st century. One of their more recent comments on the alarming birth defects research in mountaintop removal communities is that the research did not take into 

account that those of us living in mountaintop removal communities are a bunch 

of inbreds. And while the researchers consistently account for other factors that affect the health of an impoverished community, the coal industry and its political 

apologists consistently deny the conclusions without offering any credible science as 

refutation. 

Mountaintop removal is an unprecedented form of coal extraction. Nearly a million acres of forested mountains have been obliterated. 2000 miles or more of headwater source streams have been buried or contaminated and countless water wells 

have been rendered unsafe for human consumption. Mountaintop removal has been 

in full stride now for only 15–20 years, and already we are witnessing the short 

term effects of human exposure to this mad method of mining. What are the long 

term effects? Statistical research on Appalachian birth defects found that a woman 

pregnant with child has a 42% greater chance of a baby born with birth defects than 

a pregnant woman living in a non-mountaintop removal community. Equate that to 

cigarette smoking: a baby born in a mountaintop removal community has a 181% 

greater chance of a circulatory or respiratory birth defect, while the risk related to 

mother’s smoking was only 17% higher. That, committee members, is staggering. If 

that does not get your attention, then you simply don’t care. Your pro-life claim is 

no longer credible; it’s tossed out the window. 

For those of us living beneath mountaintop removal sites, the cold statistics do 

not compare to the real flesh-and-blood loved ones, the friends and family, that we 

see perishing from cancer all around us. The industry claims that we cannot prove 

that they are responsible, yet our common sense tells us that the clouds of silica 

dust, ammonium nitrate, fuel oil, and blasting residue that smother our communities are a likely culprit. When we raise the issue with the state Department of 

Environmental Protection, they take no action, either refusing to investigate, showing up after the dust has cleared, or offering a lame excuse. At best, after citizens 

doggedly pursue follow-up to the complaints, the agency may issue a fine so low that 

it serves as no deterrent whatsoever to continued bad behavior. When a federal 

agency takes even the smallest of baby steps to reign in the worst offenders and 

protect the citizens, Congress responds by shackling that agency. Our own representatives not only ignore our pleas, but lead the charge to enable further poisoning of our communities. We are consistently told that we must accept what the 

industry calls ‘‘balance.’’ What this really means is that we must sacrifice everything we have—our homes, our health, our lives, and the lives of our children—so 

that wealthy coal executives and their Wall Street funders can continue their unfettered extraction of wealth. 

While I offer these documents and my statements in the spirit of truth and justice, I have no illusions that they will be seriously considered by this Committee. 

After all, I have made no campaign contribution. I do not operate a company or 

media outlet that can deliver votes through an endorsement. The citizens of communities most directly impacted by mountaintop removal lack access to the wealth and 

power that may sway congressional opinion. Instead, our lives and health suffer 

from the actions of the companies that do hold that wealth and power. 

I ask each of you in the name of our great American democracy to protect our 

citizens and do not oppose any change to the Bush stream buffer zone rule that will 

help protect American lives. At the very least, support it being rolled back to the 

Reagan rule with real and total enforcement. 

Let us be reminded that regulatory agencies are created to protect The People 

from industries that may cause harm to The People. When these agencies, or legislators for that matter, become captured by those they oversee, or their power to regulate is circumvented by acts such as the Bush trashing of the SBZ rule, The People 

are not well served; America is not well served. Please remember this each and 

every waking moment of your service to our country. Our future, our children’s future, and our lives depend on it. 

88 

Bo Webb 

Referenced peer reviewed science research publications associating mountain top 

removal with negative human health: 

American Journal of Public Health Mar. 2011 ‘‘Health-Related Quality of Life 

Among Central Appalachian Residents in Mountaintop Mining Communities’’ 

Journal of Health Disparities Research and Practice Volume 4, number 3, Spring 

2011 pp. 44–53 ‘‘Poverty and Mortality Disparities in Central Appalachia: Mountaintop Mining and Environmental Justice’’ 

Environmental Research Journal ‘‘The association between mountaintop mining 

and birth defects among live births in central Appalachia, 1996–2003’’ 

Community Health July 2011 ‘‘Self Reported Cancer Rates in Two Rural Areas of 

West Virginia with and without Mountaintop Coal Mining’’ 

The Journal of Rural Health, 2011 ’’ Chronic Cardiovascular Disease Mortality in 

Mountaintop Mining Areas of Central Appalachian States’’ 

Science Mag. Jan. 8 2010 volume 327 ‘‘Mountaintop Mining Consequences’’ 

Eco Health April 02, 2010: Ecological Integrity of Streams Related to Human Cancer Mortality Rates 

Geospatial Health 4 (2), 2010, pp 243–256 ‘‘A geographical information systembased analysis of cancer mortality and population exposure to coal mining activities 

in West Virginia, United States of America’’ 

Matern Child Health Journal, Jan. 2010 ‘‘Residence in Coal-Mining Areas LowBirth- Weight Outcomes’’ 

Preventative Medicine 49 (2009) 355–359 ‘‘Higher coronary heart disease and 

heart attack morbidity in Appalachian coal mining regions’’ 

Public Health Reports/July-August 2009 volume 124 ‘‘Mortality in Appalachian 

Coal Mining Regions: The value of statistical life lost’’ 24 years behind the nation.’’ 

American Journal of Public Health Vol 98 No 4 ’’ Relations between health and 

residential proximity to coal mining in West Virginia’’ 

Journal of Toxicology and Environmental Health Part A, 70: 2064–2070, 2007 

‘‘Hospitalization patterns associated with Appalachian coal mining’’ 

Annals of the New York Academy of Sciences Issue: Ecological Economics Reviews 

‘‘Full cost accounting for the life cycle of coal’’ 

Public Health Reports/July-August 2010 volume 125 ‘‘A comparative analysis of 

health-related quality of life for residents of U.S. counties with and without coal mining’’ 

Environmental Justice volume 3, number 2, 2010 ‘‘Learning outcomes among students relation to West Virginia coal mining: an environmental riskscape approach’’ 

Mr. LAMBORN. OK. Ms. Gunnoe? 

STATEMENT OF MARIA GUNNOE, COMMUNITY ORGANIZER 

Ms. GUNNOE. Hello. My name is Maria Gunnoe. I’m a native 

West Virginian and I and my family before me have lived the history that this coal industry has left in its path. We settled this area 

before coal was discovered. I am a Daughter of the American Revolutionary War. 

Throughout all the boom and bust, manmade catastrophes and 

massive death and sickness, some members of my family tell their 

generational part of coal’s history in Southern Appalachia. All my 

life, every political move has always been directed at propping up 

the coal industry in West Virginia. This industry and our politicians have held jobs over our heads for 150 years. We know only 

too well what it’s like to do without. 

The fear that we as Appalachians have experienced throughout 

time of being without jobs is nothing compared to the fear of living 

without healthy, clean water in our streams and homes and fresh 

mountain air to breathe. 

We, as a family, for many generations have survived some of the 

most historically horrible poverty in this country by sustaining our 

lives from these mountains and streams. Now rules changes such 

as the buffer zone rule threaten to permanently annihilate all that 

89 

supports the real mountaineer’s culture. Jobs in surface mining are 

dependent on blowing up the next mountain and burying the next 

stream. When will we say enough is enough? 

The buffer zone rule from the Reagan era was historically intended to be a good thing for the people who live in the valleys 

where these intermittent and perennial streams flow. Over the 

years, it’s been crooked politics and coal money influence that has 

gutted the intent of this law. In my lifetime, I do not know of this 

law ever being fully enforced. The coal industry in West Virginia 

states politicians have manipulated and twisted this law in order 

to legally break this law. Surface mining has demolished our quality of life and life expectancy in our native homes. Our communities are now war zones with constant blasting, pollution and 

death. All area surface mining has stolen our ability to recreate our 

mountains and do what we culturally always have. We are being 

shut out of areas that we have always enjoyed. Even our historic 

cemeteries are left inaccessible to the public. 

We, like the Obama Administration, know what it’s like to go up 

against impossible odds created by the coal and energy industries 

that have a stranglehold on our Congressional Members. We suffer 

these very real consequences daily and we, too, have drawn a line 

and dug our heels in. We refuse to tolerate inhumane treatment of 

our people and their homes, communities and jobs. We, too, have 

taken a stand and it’s been one without the basic of protections. We 

refuse to tolerate this industry in our schools, attempting to brainwash our kids into being the next generation of slaves by influencing the curriculum with their big money. 

My children’s history book says that surface mining, in some instances, leaves the land in better than before condition. This, alone, 

is outrageous. Our children are not subjects. Leave them alone in 

their schools. We will not tolerate violence because of our open opposition to our mountains blowing up over our homes and our 

streams, wells and air to be poisoned. 

This industry is pitting their workers against the community 

members in violent attacks because we won’t die quietly. We refuse 

to continue to tolerate the terror of the flooding from these stream 

fill experiments and sludge dams. We have, throughout the years 

of manipulations of this law governing surface mining, been traumatized by what has happened in our communities. Studies have 

shown 40 to 200 percent increase in peak flow caused by surface 

mining runoff during rainfall periods. FEMA and we, as individuals, pick up this cost. The coal industry continues mining our 

mountains, destroying our very existence for these jobs. 

A majority of voters in West Virginia, Kentucky and Virginia and 

Tennessee reject mountaintop removal mining. The number of voters who oppose mountaintop removal dwarfs the number who supports it. Fifty-seven percent opposed mountaintop removal and 

with a noticeable intensity; 42 percent strongly opposed it, compared to 20 percent who support it. Voters who strongly support 

mountaintop removal in these states are a very small minority, 

only 10 percent. 

‘‘Jobs at Risk’’ is also insulting as anything I have ever read. We 

have worked consistently in Washington, D.C., and southern Appalachia to get our political leaders to enact a moratorium on any furVerDate Nov 24 2008 10:58 Nov 06, 2012 Jkt 000000 PO 00000 Frm 00093 Fmt 6633 Sfmt 6602 L:\DOCS\68511.TXT Hresour1 PsN: KATHY
90 

ther surface mining permits because studies have proved that this 

type of mining is killing the people who live in our communities. 

It’s about our lives and our livelihoods. These jobs are for mostly 

outsiders from other states. Our people tend to not want to blow 

up their mountains and homes and communities. 

In Twilight, West Virginia there’s imported workers coming in by 

the busloads. The driver of this—of the busload convoy, a nonEnglish speaking gentleman, asked me for directions to Progress 

Coal, which is the Twilight surface mine now owned by Alpha and 

Massey. There was an incident where a drunk imported worker 

from A Elk Run mines in Sylvester killed a child while racing on 

our roads as school was being dismissed. This is what kind of jobs 

we’re talking about, and this is what they’re doing to our communities. This shows that this hearing is about the company’s bottom 

line and not about jobs for poor people or at least not poor people 

from this country. 

The southern mountains people are fully expected to give up everything that sustains life, enforce the buffer zone rule and protect 

the water and very existence of the culture of people known as Appalachians. This history is unimaginable to most people in this 

country. Mountaineers will never be free until this madness ends. 

Reinstate the stream buffer zone rule to at least the Reagan era 

and for the first time in history enforce it, to protect American lives 

from this criminal industry. We will continue to demand better for 

our children. We will continue to demand better for our children’s 

future and in all that we do. The impacts of coal are not acceptable 

losses for our children’s future. It would benefit all of our children 

if we take this very seriously and fix this problem right away. We 

can no longer excuse the fact that coal is a finite resource and we 

are running out. Not to mention the fact that we are poisoning our 

water and our air for electricity. 

My seven year old nephew reminds me of what—— 

Mr. LAMBORN. Ms. Gunnoe, I’d ask that you—— 

Ms. GUNNOE. I’m wrapping up. I’m wrapping up. Thank you. My 

seven-year-old nephew reminds me of what surface mining looks 

like from a child’s eyes. As we were driving through our community, he looks up and says, ‘‘Aunt Sissy, what’s wrong with these 

people? Don’t they know we’re down here?’’ I had to honestly look 

at him and say, ‘‘Yes, they know, they just don’t care.’’ 

[The prepared statement of Ms. Gunnoe follows:] 

Statement of Maria Gunnoe, Community Organizer, Van, West Virginia 

My name is Maria Gunnoe I am a native West Virginian. I and my family before 

me have lived the history that the coal industry has left in its path. We settled this 

area before coal was discovered. I am a Daughter of the American Revolution. 

Throughout all the ‘‘boom and bust’’, manmade catastrophes, and massive deaths 

and sicknesses some members of my family tell their generational part of coal’s history in Southern Appalachia. This history is one of the many lessons of life we 

learned at a young age growing up in these communities. We learned from our hard 

schooled fathers and grandfathers that coal is mean and one thing you simply could 

not do was to trust this industry. No matter what the subject the conversation always come down to the coal company’s bottom line. All my life every political move 

has always been directed at propping up the coal industry in WV. The fear that we 

as Appalachians have experienced throughout time of being without jobs is nothing 

compared to the fear of living without healthy, clean water in our streams and 

homes. We as families for many generations have survived some of the most historically horrible poverty in this country by sustaining our lives from these mountains 

91 

and streams. The biodiversity in S WV is what created the culture of the real mountaineers that we grew up being. Now rule changes such as Stream Buffer Zone 

threaten to permanently annihilate all that supports the real mountaineer’s culture. 

The coal industry obviously wants to bury and pollute all of our water and all of 

who we are for temporary jobs. Jobs in surface mining are dependent on blowing 

up the next mountain and burying the next stream. When are we going to say 

enough is enough? 

The Buffer Zone Rule from the Regan era was historically was intended as a good 

thing for people who lived in the valleys where these intermittent and perennial 

streams flow. Over the years it has been crooked politics and coal money influence 

that has gutted the intent of this law. In my lifetime I do not know of this law ever 

being fully enforced. The coal industry and the politicians have for most of my life 

manipulated and twisted the law in order to legally break this law by destroying 

our valuable headwater streams.. Surface mining has demolished our quality of life 

and life expectancy in our native homes. Our communities are now war zones with 

constant blasting, pollution and all area surface mining has stolen our ability to 

recreate in the mountains and do what we culturally always have. We are being 

shut out of areas that we have always enjoyed. Even our historic cemeteries are left 

in accessible to the public. 

This photo shows Jarrell Cemetery and the town of Lindytown in Boone County 

WV. This is one of my many family mountain cemeteries. We as family members 

must go through training and guards to visit our loved ones in these now active destruction sites. 

The town in this photo is nearly gone. One family is all that remains in this town. 

The homes that you see are now gone now. The people that were bought out signed 

contracts that clearly violated their rights to contact state or federal regulatory 

agencies to complain about blasting dust, water pollution, or health and safety concerns. Here is a link to those contracts. 

Our regulatory agencies are allowing this to happen. I have been told that the 

WV state DEP is a PERMITTING AGENCY by one of their agents. The DEP is allowing these companies to destroy our mountains and our waters and in turn this 

destroys our towns and runs away all the people. The WVDEP treats us less than 

human. The WV DEP is permitting the destruction of our homes and we are not 

even supposed to get upset. See this and this. 

Below is a text copy of the NY Times article that Dan Barry wrote about 

Lindytown. In reading this article please recognize that Lindytown is only one of 

the recent towns that this has disappeared. There are many of our rural communities depopulated to expand surface mining and stream fills. How could anyone say 

that these temporary jobs is worth the permanent displacement of our people and 

the destruction of their waters, mountains and culture. 


68511.005.eps
92 

The New York Times 

April 12, 2011 

As the Mountaintops Fall, a Coal Town Vanishes 

http://www.nytimes.com/2011/04/13/us/13lindytown.html?_r=2 

By DAN BARRY 

LINDYTOWN, W.Va. 

To reach a lost American place, here just a moment ago, follow a thin country 

road as it unspools across an Appalachian valley’s grimy floor, past a coal operation 

or two, a church or two, a village called Twilight. Beware of the truck traffic. Watch 

out for that car-chasing dog. 

After passing an abandoned union hall with its front door agape, look to the right 

for a solitary house, tidy, yellow and tucked into the stillness. This is nearly all that 

remains of a West Virginia community called Lindytown. 

In the small living room, five generations of family portraits gaze upon Quinnie 

Richmond, 85, who has trouble summoning the memories, and her son, Roger, 62, 

who cannot forget them: the many children all about, enough to fill Mr. Cook’s 

school bus every morning; the Sunday services at the simple church; the white laundry strung on clotheslines; the echoing clatter of evening horseshoes; the sense of 

home. 

But the coal that helped to create Lindytown also destroyed it. Here was the 

church; here was its steeple; now it’s all gone, along with its people. Gone, too, are 

the surrounding mountaintops. To mine the soft rock that we burn to help power 

our light bulbs, our laptops, our way of life, heavy equipment has stripped away the 

trees, the soil, the rock—what coal companies call the ‘‘overburden.’’ 

Now, the faint, mechanical beeps and grinds from above are all that disturb the 

Lindytown quiet, save for the occasional, seam-splintering blast. 

A couple of years ago, a subsidiary of Massey Energy, which owns a sprawling 

mine operation behind and above the Richmond home, bought up Lindytown. Many 

of its residents signed Massey-proffered documents in which they also agreed not 

to sue, testify against, seek inspection of or ‘‘make adverse comment’’ about coalmining operations in the vicinity. 

You might say that both parties were motivated. Massey preferred not to have 

people living so close to its mountaintop mining operations. And the residents, some 

with area roots deep into the 19th century, preferred not to live amid a dusty industrial operation that was altering the natural world about them. So the Greens sold, 

as did the Cooks, and the Workmans, and the Webbs ... 

But Quinnie Richmond’s husband, Lawrence—who died a few months ago, at 85— 

feared that leaving the home they built in 1947 might upset his wife, who has Alzheimer’s. He and his son Roger, a retired coal miner who lives next door, chose instead to sign easements granting the coal company certain rights over their properties. In exchange for also agreeing not to make adverse comment, the two Richmond households received $25,000 each, Roger Richmond recalls. 

‘‘Hush money,’’ he says, half-smiling. 

As Mr. Richmond speaks, the mining on the mountain behind him continues to 

transform, if not erase, the woodsy stretches he explored in boyhood. It has also exposed a massive rock that almost seems to be teetering above the Richmond home. 

Some days, an anxious Mrs. Richmond will check on the rock from her small kitchen 

window, step away, then come back to check again. 

And again. 

A Dictator of Destiny 

Here in Boone County, coal rules. The rich seams of bituminous black have dictated the region’s destiny for many generations: through the advent of railroads; the 

company-controlled coal camps; the bloody mine wars; the increased use of mechanization and surface mining, including mountaintop removal; the related decrease 

in jobs. 

The county has the largest surface-mining project (the Massey operation) in the 

state and the largest number of coal-company employees (more than 3,600). Every 

year it receives several million dollars in tax severance payments from the coal industry, and every June it plays host to the West Virginia Coal Festival, with fireworks, a beauty pageant, a memorial service for dead miners, and displays of the 

latest mining equipment. Without coal, says Larry V. Lodato, the director of the 

county’s Community and Economic Development Corporation, ‘‘You might as well 

turn out the lights and leave.’’ 

In recent years, surface mining has eclipsed underground mining as the county’s 

most productive method. This includes mountaintop removal—or, as the industry 

93 

prefers to call it, mountaintop mining—a now-commonplace technique that remains 

startling in its capacity to change things. 

Various government regulations require that coal companies return the stripped 

area to its ‘‘approximate original contour,’’ or ‘‘reclaim’’ the land for development in 

a state whose undulating topography can thwart plans for even a simple parking 

lot. As a result, the companies often dump the removed earth into a nearby valley 

to create a plateau, and then spray this topsy-turvy land with seed, fertilizer and 

mulch. 

The coal industry maintains that by removing some mountaintops from the 

‘‘Mountain State,’’ it is creating developable land that makes the state more economically viable. State and coal officials point to successful developments on land 

reclaimed by surface mining, developments that they say have led to the creation 

of some 13,000 jobs. 

But Ken Ward Jr., a reporter for The Charleston Gazette, has pointed out that 

two-fifths of these jobs are seasonal or temporary; a third of the full-time jobs are 

at one project, in the northern part of the state; and the majority of the jobs are 

far from southern West Virginia, where most of the mountaintop removal is occurring, and where unemployment is most dire. In Boone County, development on reclaimed land has basically meant the building of the regional headquarters for the 

county’s dominant employer—Massey Energy. 

And with reclamation, there is also loss. 

‘‘I’m not familiar at all with Lindytown,’’ says Mr. Lodato, the county’s economic 

development director. ‘‘I know it used to be a community, and it’s close to Twilight.’’ 

A Fighter 

About 10 miles from Lindytown, outside a drab convenience store in the unincorporated town of Van, a rake-thin woman named Maria Gunnoe climbs into a maroon 

Ford pickup that is adorned with a bumper sticker reading: ‘‘Mountains Matter— 

Organize.’’ The daughter, granddaughter and sister of union coal miners, Ms. 

Gunnoe is 42, with sorrowful dark eyes, long black hair and a desire to be on the 

road only between shift changes at the local mining operations—and only with her 

German shepherd and her gun. 

Less than a decade ago, Ms. Gunnoe was working as a waitress, just trying to 

get along, when a mountaintop removal operation in the small map dot of Bob 

White disrupted her ‘‘home place.’’ It filled the valley behind her house, flooded her 

property, contaminated her well and transformed her into a fierce opponent of 

mountaintop removal. Through her work with the Ohio Valley Environmental Coalition, she has become such an effective environmental advocate that in 2009 she received the prestigious Goldman Environmental Prize. But no one threw a parade 

for her in Boone County, where some deride her as anti-coal; that is, anti-job. 

Ms. Gunnoe turns onto the two-lane road, Route 26, and heads toward the remains of Lindytown. On her right stands Van High School, her alma mater, where 

D. Ray White, the gifted and doomed Appalachian dancer, used to kick up his heels 

at homecomings. On her left, the community center where dozens of coal-company 

workers disrupted a meeting of environmentalists back in 2007. 

‘‘There was a gentleman who pushed me backward, over my daughter, who was 

about 12 or 13, and crying,’’ Ms. Gunnoe later recalls. ‘‘I pushed him back, and he 

filed charges against me for battery. He was 250 pounds, and I had a broken arm.’’ 

A jury acquitted her within minutes. 

Ms. Gunnoe drives on. Past the long-closed Grill bar, its facade marred by graffiti. 

Past an out-of-context clot of land that rises hundreds of feet in the air—‘‘a valley 

fill,’’ she says, that has been ‘‘hydroseeded’’ with fast-growing, non-native plants to 

replace the area’s lost natural growth: its ginseng root, its goldenseal, it hickory and 

oak, maple and poplar, black cherry and sassafras. 

‘‘And it will never be back,’’ she says. 

Ms. Gunnoe has a point. James Burger, a professor emeritus of forestry and soil 

science at Virginia Tech University, said the valley fill process often sends the original topsoil to the bottom and crushed rock from deeper in the ground to the top. 

With the topography and soil properties altered, Dr. Burger says, native plants and 

trees do not grow as well. 

‘‘You have hundreds of species of flora and fauna that have acclimated to the native, undisturbed conditions over the millennia,’’ he says. ‘‘And now you’re inverting 

the geologic profile.’’ 

Dr. Burger says that he and other scientists have developed a reclamation approach that uses native seeds, trees, topsoil and selected rock material to help restore an area’s natural diversity, at no additional expense. Unfortunately, he says, 

these methods have not been adopted in most Appalachian states, including West 

Virginia. 

94 

Past a coal operation called a loadout, an oversized Tinker Toy structure where 

coal is crushed and loaded on trucks and rail cars. Past the house cluster called 

Bandytown, home of Leo Cook, 75, the former school bus driver who once collected 

Roger Richmond and the other kids from Lindytown, where he often spent evenings 

at a horseshoe pit, now overgrown. 

‘‘We got to have coal,’’ says Mr. Cook, a retired miner. ‘‘What’s going to keep the 

power on? But I believe with all my heart that there’s a better way to get that coal.’’ 

Ms. Gunnoe continues deeper into the mud-brown landscape, where the fleeting 

appearance of trucks animates the flattened mountaintops. On her right, a dark, 

winding stream damaged by mining; on her left, several sediment-control ponds that 

filter out pollutants from the runoff of mining operations. Past the place called Twilight, a jumble of homes and trailers, where the faded sign of the old Twilight Super 

Market still promises Royal Crown Cola for sale. 

Soon she passes the abandoned hall for Local 8377 of the United Mine Workers 

of America, empty since some underground mining operations shut down a couple 

of decades ago. Its open door beckons you to examine the papers piled on the floor: 

a Wages, Lost Time, and Expense Voucher booklet from 1987; the burial fund’s bylaws; canceled checks bearing familiar surnames. 

On, finally, to Lindytown. 

The Company Line 

According to a statement from Shane Harvey, the general counsel for Massey, this 

is what happened: Many of Lindytown’s residents were either retired miners or 

their widows and descendants who welcomed the opportunity to move to places 

more metropolitan or with easier access to medical facilities. Interested in selling 

their properties, they contacted Massey, which began making offers in December 

2008—offers that for the most part were accepted. 

‘‘It is important to note that none of these properties had to be bought,’’ Mr. Harvey said. ‘‘The entire mine plan could have been legally mined without the purchase 

of these homes. We agreed to purchase the properties as an additional precaution.’’ 

When asked to elaborate, Mr. Harvey responded, in writing, that Massey voluntarily bought the properties ‘‘as an additional backup to the state and federal regulations’’ that protect people who live near mining operations. 

James Smith, 68, a retired coal miner from Lindytown, says the company’s statement is true, as far as it goes. Yes, Lindytown had become home mostly to retired 

union miners and their families; when the Robin Hood No. 8 mine shut down, for 

example, his three sons had to leave the state to work. And yes, some people approached Massey about selling their homes. 

But, Mr. Smith says, many residents wanted to leave Lindytown only because the 

mountaintop operations above had ruined the quality of life below. 

His family went back generations here. He married a local woman, raised kids, 

became widowed and married again. A brother lived in one house, a sister lived in 

another, and nieces, nephews and cousins were all around. And there was this Godgiven setting, where he could wander for days, hunting raccoon or searching for ginseng. 

But when the explosions began, dust filled the air. ‘‘You could wash your car 

today, and tomorrow you could write your name on it in the dust,’’ he says. ‘‘It was 

just unpleasant to live in that town. Period.’’ 

Massey was a motivated buyer, he argues, given that it was probably cheaper to 

buy out a small community than to deal with all the complaint-generated inspections, or the possible lawsuits over silica dust and ‘‘fly rock.’’ 

‘‘Hell, what they paid for that wasn’t a drop in the bucket,’’ he says. 

Massey did not elaborate on why it bought out Lindytown, though general concerns about public health have been mounting. In blocking another West Virginia 

mountaintop-removal project earlier this year, the Environmental Protection Agency 

cited research suggesting that health disparities in the Appalachian region are ‘‘concentrated where surface coal mining activity takes place.’’ 

In the end, Mr. Smith says, he would not be living 150 miles away, far from relations and old neighbors, if mountaintop removal hadn’t ruined Lindytown. ‘‘You 

might as well take the money and get rid of your torment,’’ he says, adding that 

he received more than $300,000 for his property. ‘‘After they destroyed our place, 

they done us a favor and bought it.’’ 

Memories, What’s Left 

Ms. Gunnoe pulls up to one of the last houses in Lindytown, the tidy yellow one, 

and visits with Quinnie and Roger Richmond. He uses his words to re-animate the 

community he knew. 

95 

For many years, his grandfather was the preacher at the small church down the 

road, where the ringing of a bell gave fair warning that Sunday service was about 

to begin. And his grandmother lived in the house still standing next door; she toiled 

in her garden well past 100, growing the kale, spinach and mustard greens that she 

loved so much. 

His father, Lawrence, joined the military in World War II after his older brother, 

Carson, was killed in Sicily. He returned, married Quinnie, and built this house. 

Before long, he became a section foreman in the mines, beloved by his men in part 

because of Quinnie’s fried-apple pies. 

After graduating from Van High School—that’s his senior photograph, there on 

the wall—Roger Richmond followed his father into the mines. He married, had children, divorced, made do when the local mine shut down, eventually retired and, in 

2001, set up his mobile home beside his parents’ house. 

By now, things had changed. With the local underground mine shut down, there 

were nowhere near as many jobs, or kids. And this powder from the mountaintops 

was settling on everything, turning to brown paste in the rain. People no long hung 

their whites on the clotheslines. 

Soon, rumors of buyouts from Massey became fact, as neighbors began selling and 

moving away. ‘‘Some of them were tired of fighting it,’’ Mr. Richmond says. ‘‘Of having to put up with all the dust. Plus, you couldn’t get out into the hills the way 

you used to.’’ 

One example. Mr. Richmond’s Uncle Carson, killed in World War II, is buried in 

one of the small cemeteries scattered about the mountains. If he wanted to pay his 

respects, in accordance with government regulations for active surface-mining areas, 

he would have to make an appointment with a coal company, be certified in work 

site safety, don a construction helmet and be escorted by a coal-company representative. 

In the end, the Richmonds decided to sell various land rights to Massey, but remain in Lindytown, as the homes of longtime neighbors were boarded up and 

knocked down late last year, and as looters arrived at all hours of the day to steal 

the windows, the wiring, the pillars from Elmer Smith’s front porch—even the 

peaches, every one of them, growing from trees on the Richmond property. 

‘‘They was good peaches, too,’’ says Mr. Richmond. 

‘‘I like peaches,’’ says his mother. 

Would Lindytown have died anyway? Would it have died even without the removal of its surrounding mountaintops? These are the questions that Bill Raney, 

the president of the West Virginia Coal Association, raises. Sometimes, he says, depopulation is part of the natural order of things. People move to be closer to hospitals, or restaurants, or the Wal-Mart. There is also that West Virginia truism, he 

adds: 

‘‘When the coal’s gone, you go to where the next coal seam is.’’ 

Of course, in the case of Lindytown, the coal is still here; it’s the people who are 

mostly gone. Now, when darkness comes to this particular hollow, you can see a 

small light shining from the kitchen window of a solitary, yellow house—and, sometimes, a face, peering out. 

We as community members have been forced to reach out to the state and national environmental and social justice organization and foundations across the 

country to help us end the Appalachian Apocalypse that this committee dismisses 

as being benign simply by changing words of laws and buying time before they are 

reviewed again. The people who have lived and died with these impacts are the people who have helped to form a national movement to end all surface mining in Appalachia. http://appalachiarising.org/We have had no choice but to take these measures to protect our own lives and the future existence of who we are from this out 

of control industry and their big money backing in DC. We like the Obama Administration know what it is like to go up against impossible odds created by the coal 

and energy industries that have control of our Congress. 

We suffer these very real consequences daily and we to have drawn a line and 

dug in our heels. We refuse to tolerate inhumane treatment of our people in their 

homes, communities and jobs. We too have taken a stand and it has been a tough 

one with basically no protection and still we refuse to back down. 

The New York Times 

July 14, 2010 

http://www.nytimes.com/2010/07/15/us/ 

15mining.html?scp=1&sq=Jimmy+Weekley&st=nyt 

96 

Project’s Fate May Predict the Future of Mining 

By ERIK ECKHOLM 

BLAIR, W.Va.—Federal officials are considering whether to veto mountaintop 

mining above a little Appalachian valley called Pigeonroost Hollow, a step that 

could be a turning point for one of the country’s most contentious environmental disputes. 

The Army Corps of Engineers approved a permit in 2007 to blast 400 feet off the 

hilltops here to expose the rich coal seams, disposing of the debris in the upper 

reaches of six valleys, including Pigeonroost Hollow. 

But the Environmental Protection Agency under the Obama administration, in a 

break with President George W. Bush’s more coal-friendly approach, has threatened 

to halt or sharply scale back the project known as Spruce 1. The agency asserts that 

the project would irrevocably damage streams and wildlife and violate the Clean 

Water Act. 

Because it is one of the largest mountaintop mining projects ever and because it 

has been hotly disputed for a dozen years, Spruce 1 is seen as a bellwether by conservation groups and the coal industry. 

The fate of the project could also have national reverberations, affecting Democratic Party prospects in coal states. While extensive research and public hearings 

on the plan have been completed, federal officials said that their final decision 

would not be announced until late this year—perhaps, conveniently, after the midterm elections. 

Environmental groups say that approval of the project in anything like its current 

form would be a betrayal. 

‘‘Spruce 1 is a test of whether the E.P.A. is going to follow through with its promises,’’ said Bill Price, director of environmental justice with the Sierra Club in West 

Virginia. 

‘‘If the administration sticks to its guns,’’ Mr. Price predicted, ‘‘mountaintop removal is going to be severely curtailed.’’ 

Coal companies say politics, not science, is threatening a practice vital to local 

economies and energy independence. ‘‘After years of study, with the company doing 

everything any agency asked, and three years after a permit was issued, the E.P.A. 

now wants to stop Spruce 1,’’ said Bill Raney, president of the West Virginia Coal 

Association. ‘‘It’s political; the only thing that has changed is the administration.’’ 

While the government does not collect statistics on mountaintop mining, data suggest that it may account for about 10 percent of American coal output, yielding 5 

percent of the nation’s electricity. The method plays a bigger economic role in the 

two states where it is concentrated, Kentucky and West Virginia. 

The proposal to strip a large area above the home of 70-year-old Jimmy Weekley, 

Pigeonroost Hollow’s last remaining inhabitant, was first made in 1997 by Arch 

Coal, Inc., of St. Louis. The legal ups and downs of Spruce 1 have come to symbolize 

the broader battle over a method that produces inexpensive coal while drastically 

altering the landscape. 

Spruce 1 started as the largest single proposal ever for hilltop mining, in which 

mountains are carved off to expose coal seams and much of the debris, often leaking 

toxic substances, is placed in adjacent valleys. 

After years of negotiations and a scaling back of the mining area to 2,278 acres, 

from its original 3,113 acres, the Spruce 1 permit was approved by the Army Corps 

of Engineers in 2007 and limited construction began. But this spring, the E.P.A. 

proposed halting the project. 

The announcement caused an uproar in West Virginia. The E.P.A. held an emotional public hearing in May and stopped accepting written comments in June. Arch 

Coal has objected publicly, but did not respond to requests to comment for this 

article. 

The Obama administration’s E.P.A. has already riled the coal companies by tightening procedures for issuing new mining permits and imposing stronger stream protections. But environmental groups were worried in June, when the agency approved a curtailed mountaintop plan in another site in Logan County, W.Va. Now, 

as negotiations between the E.P.A. and Arch Coal continue, the Spruce 1 battle is 

being closely watched as a sign of mountaintop mining’s future. 

Feelings run high in the counties right around the project area. 

‘‘Spruce 1 is extremely important to all of southern West Virginia because if this 

permit is pulled back, every mine site is going to be vulnerable to having its permits 

pulled,’’ said James Milan, manager of Walker Machinery in Logan, which sells gargantuan Caterpillar equipment. 

The loss of jobs, Mr. Milan said, would have devastating effects on struggling communities. 

97 

Maria Gunnoe, an organizer for the Ohio Valley Environmental Coalition and a 

director of SouthWings, which organizes flights to document environmental damages, said that if Spruce 1 went forward, ‘‘it’s going to mean the permanent erasure 

of part of our land and our legacy.’’ 

‘‘We can’t keep blowing up mountains to keep the lights on,’’ said Ms. Gunnoe, 

a resident of nearby Boone County who has received death threats and travels with 

a 9 millimeter pistol. 

Mr. Weekley, whose house is in sight of the project boundary, remembers the day 

in 1997 when he decided to fight it. Nearby mining under previous permits had 

filled his wooded valley with dust and noise. 

‘‘You couldn’t see out of this hollow,’’ he recalled. ‘‘I said, Something’s got to be 

done or we’re not going to have a community left.’’ 

He and his late wife became plaintiffs in a 1998 suit claiming that the project 

violated environmental laws. A ruling in their favor was overturned, setting off litigation that continues. 

Mr. Weekley said that he had rejected offers of close to $2 million for his eight 

acres and that he had seen the population of the nearby town of Blair dwindle to 

60 from 600, with most residents bought out by Arch Coal. 

A rail-thin man who enjoys sitting on his porch with a dog on his lap, Mr. 

Weekley uttered an expletive when told that coal industry representatives, including 

Mr. Raney in an interview, referred to the upper tributaries filled in by mining as 

‘‘ditches’’ that can be rebuilt. In fact, some of the streams to be filled by Spruce 1 

are intermittent, while others, including Pigeonroost Creek, flow year-round. 

‘‘I caught fish in that stream as a child, using a safety pin for a hook,’’ Mr. 

Weekley said. ‘‘If they get that permit, there won’t be a stream here.’’ 

In documents issued in March, the E.P.A. said the project as approved would still 

smother seven miles of streambed. 

Filling in headwaters damages the web of life downstream, from aquatic insects 

to salamanders to fish, and temporary channels and rebuilt streams are no substitute, the agency said. The pulverized rock can release toxic levels of selenium and 

other pollutants, it noted. 

The effects of Spruce 1 would be added to those of 34 other past and present 

projects that together account for more than one-third of the area of the Spruce 

Fork watershed, the agency said. 

The debate over Spruce 1 and other mountaintop mine permits has been a source 

of division and anguish among local residents. 

Michael Fox, 39, of Gilbert, is a mine worker who like many other miners here 

thinks the objections are overblown. ‘‘I have three kids I want to send to college,’’ 

Mr. Fox said. 

One former mountaintop miner who says he now regrets his involvement is 

Charles Bella, 60. He is one of the remaining residents on Blair’s main street, along 

the Spruce Fork, which is fed in turn by Pigeonroost Creek. 

‘‘I know it put bread on my table, but I hate destroying the mountains like that,’’ 

Mr. Bella said. 

We refuse to tolerate this industry in our schools attempting to brain wash our 

kids into being their next generation of slaves by influencing the curriculum with 

big money. Below is a scanned copy of my children’s history book. Notice it says that 

‘‘surface mining in some instances leaves the land in better than before condition’’. 

In reality no one is stupid enough to believe this, not even impressionable kids. We 

all know that no one can improve on God’s work. This alone is outrageous behavior. 

More links to what is going on in schools. ‘‘It’s predatory marketing. By selling 

its privileged access to children to the coal industry, Scholastic is commercializing 

classrooms and undermining education.’’ 

http://www.cedarinc.org/ 

http://www.nytimes.com/2011/05/12/education/12coal.html?_r=1 

The New York Times 

May 11, 2011 

Coal Curriculum Called Unfit for 4th Graders 

By TAMAR LEWIN 

Three advocacy groups have started a letter-writing campaign asking Scholastic 

Inc. to stop distributing the fourth-grade curriculum materials that the American 

Coal Foundation paid the company to develop. 

The three groups—Rethinking Schools, the Campaign for a Commercial-Free 

Childhood and Friends of the Earth—say that Scholastic’s ‘‘United States of Energy’’ 

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package gives children a one-sided view of coal, failing to mention its negative effects on the environment and human health. 

Kyle Good, Scholastic’s vice president for corporate communications, was traveling 

for much of Wednesday and said she could not comment until she had all the 

‘‘United States of Energy’’ materials in hand. 

Others at the company said Ms. Good was the only one who could discuss the 

matter. The company would not comment on how much it was paid for its partnership with the coal foundation. 

Scholastic’s InSchool Marketing division, which produced the coal curriculum in 

partnership with the coal foundation, often works with groups like the American Society of Hematology, the Federal Trade Commission and the Census Bureau to create curriculum materials. 

The division’s programs are ‘‘designed to promote client objectives and meet the 

needs of target teachers, students, and parents’’ and ‘‘make a difference by influencing attitudes and behaviors,’’ according to the company Web site. 

‘‘Promoting ‘client objectives’ to a captive student audience isn’t education,’’ Susan 

Linn, director of the Campaign for a Commercial-Free Childhood, said in a statement. ‘‘It’s predatory marketing. By selling its privileged access to children to the 

coal industry, Scholastic is commercializing classrooms and undermining education.’’ 

The Campaign for Commercial-Free Childhood, a tiny group in Boston, has often been at odds with Scholastic, a $2 billion company whose books and other educational materials are in 9 of 10 American classrooms. Last year, the group criticized the company for its ‘‘SunnyD Book Spree,’’ featured in Scholastic’s Parent and 

Child magazine, in which teachers were encouraged to have classroom parties with, 

and collect labels from, Sunny Delight, a sugary juice beverage, to win free books. 

The campaign has also objected to Scholastic’s promotion of Children’s Claritin in 

materials it distributed on spring allergies. 

And in 2005, the campaign tangled with the company over its ‘‘Tickle U’’ curriculum for the Cartoon Network, in which posters of cartoon characters were sent 

to preschools and promoted as helping young children develop a sense of humor. 

None of the previous episodes led to any specific action. 

The coal controversy seems to be the first time the campaign and its allies have 

challenged Scholastic lesson plans. 

11The United States of Energy’’ is designed to paste a smiley face on the dirtiest 

form of energy in the world,’’ said Bill Bigelow, an editor of Rethinking Schools magazine. ‘‘These materials teach children only the story the coal industry has paid 

Scholastic to tell.’’ 

The Scholastic materials say that coal is produced in half of the 50 states, that 

America has 27 percent of the world’s coal resources, and that it is the source of 

half the electricity produced in the nation, with about 600 coal-powered plants operating around the clock to provide electricity. 

What they do not mention are the negative effects of mining and burning coal: 

the removal of Appalachian mountaintops; the release of sulfur dioxide, mercury 

and arsenic; the toxic wastes; the mining accidents; the lung disease. 

‘‘The curriculum pretends that it’s going to talk about the advantages and disadvantages of different energy choices, to align with national learning standards, 

but it doesn’t,’’ Mr. Bigelow said. 

‘‘The fact that coal is the major source of greenhouse gases in the United States 

is entirely left out,’’ he said. ‘‘There’s no hint that coal has any disadvantages.’’ 

In a statement, Ben Schreiber, a climate and energy tax analyst at Friends of the 

Earth, called the curriculum ‘‘the worst kind of corporate brainwashing.’’ 

According to an article by Alma Hale Paty, the executive director of the American 

Coal Foundation, and posted on Coalblog, ‘‘The United States of Energy’’ went to 

66,000 fourth-grade teachers in 2009. 

There was no answer at the foundation Wednesday, and Ms. Paty did not return 

calls. 

We refuse to tolerate violent attacks on ourselves and our family members because of our open opposition to our mountains blowing up over our homes and our 

streams, wells, and air being poisoned. 

This link is where we were attacked by men on Larry Gibson’s property on 

Kayford Mountain. These men were out to defend their jobs at all cost. One went 

as far as to threaten to cut a child’s throat. This is what is happening to us as our 

politicians turn a blind eye and pretends as if it didn’t happen. There is no ‘‘balance’’ 

when people are dying. This industry is pitting their workers against the community members in violent attacks. 

http://www.youtube.com/watch?v=Gjc7Jg_gMy0&feature=related 

99 

http://www.youtube.com/watch?v=7XSTrXX7hbo 

Judy Bonds being smacked at a peaceful protest. 

http://www.youtube.com/watch?v=8dP27PKnCG0&feature=related 

We have even been brutalized by our local law enforcement while attempting to 

protect a school full of children from a leaking sludge dam and coal load out facility. 

The officers actually carried one protestor out by the cuffs. http://www.youtube.com/ 

watch?v=3jqENyow0cQ 

Even our elders have been attacked at federal hearing while the officials pretended as if they had no control. http://www.youtube.com/watch?v=EtwceseZz4w 

I too have been personally attacked while attempting to speak at a permit hearing 

in Charleston WV. I was nearly assaulted as I left this federal hearing. The officers 

told us that ‘‘we got what we deserved’’. No one should have to be subjected to this 

treatment to defend their home. http://www.youtube.com/watch?v=5WeJgX7vmgE 

Because of my out spoken opposition I currently live on high alert 24/7. 

In 2007 there was an occasion where myself and other participants was attacked 

during a media training at the local community building by 60 men that were told 

that we were going to shut down their operation. When in reality we were organizing to stop an ILLEGAL permit. 

http://noacentral.org/page.php?id=191 

I was charged with battery because I defended myself from a 250 pound man who 

was pushing me over my daughter to defend his job. This individual filed battery 

charges against me. ME an individual that had already been put through everything 

imaginable by this coal company was being arrested for battery. I was found not 

guilty of these charges. After nearly 2 years of litigation the jury vote was unanimously not guilty. 

Our industry controlled Government continued their violent rhetoric even today 

as they up hold the practice of blowing up mountain over our homes and filling our 

streams for jobs. After meetings with Joe Manchin and all our state leaders we still 

face these attacks in our communities and homes. Only because we don’t agree that 

blowing up our mountains and putting them into our valleys and calling it jobs is 

a good thing. Here is one article about this meeting. After all the discussion about 

death and sickness caused by surface mining and water pollution Then Governor 

now Senator Manchin words were ‘‘every job in the state of WV is a precious one’’. 

Shame on all of our state and federal politicians! Not one will stand up to the industry that is responsible for demise of southern Appalachia. They are all responsible 

putting temporary jobs above the importance of human health, lives, communities 

and long term livelihoods. 

Here a good insight. . .http://www.youtube.com/watch?v=g24tpXtJ540 They try to 

make us lo0k like extremist by saying we only care about mayflies.. 

Manchin calls for calm in the coalfields 

http://blogs.wvgazette.com/coaltattoo/2010/01/25/manchin-calls-for-calm-in-thecoalfields/ 

Ken Ward, January 25, 2010 

Well, here’s the answer to the question posed on my previous post, ‘‘What’s Gov. 

Manchin going to say?’’ For starters, Manchin emerged from a long meeting with 

coalfield citizens and issued a call for an end to threats and intimidation against 

West Virginians who are fighting to stop mountaintop removal: 

We will not in any way, shape or form in this state of West Virginia tolerate any 

violence against anyone on any side. If you’re going to have the dialogue, have respect for each other. 

Manchin also promised he would look into citizen complaints about lax enforcement of strip-mining rules by the West Virginia Department of Environmental Protection, but he certainly wasn’t persuaded to drop his strong support for mountaintop removal. He said he told the citizens they would have to agree to disagree about 

that one. 

Singer and West Virginia native Kathy Mattea was among those who met with Gov. 

Manchin. 

This meeting was slightly different in format than the one Manchin held back in 

early November with coal executives. For one thing, the citizen groups offered to 

have a couple of coal industry lobbyists sit in, and they did. Reps. Rahall and Capito 

of West Virginia both attended, but Sen. Jay Rockefeller (who did have time to meet 

with the industry executives) didn’t show up. Rockfeller sent a staffer. (Senate 

records indicate there was just one floor vote yesterday in Washington, D.C.) 

And more importantly, the citizen groups brought some experts with them—including WVU’s Michael Hendryx, who told me he tried to explain to the governor 

his research about coal’s harsh impacts on public health and a study that showed 

100 

the industry costs the Appalachian region more than it provides in economic benefits. 

I’m not sure Manchin heard that, given his comment about how ‘‘every job in 

West Virginia is a precious job.’’ I got the idea that Manchin is still focused on just 

trying to preserve existing jobs, not finding ways to ‘‘embrace the future,’’ as the 

Central Appalachian coal industry continues its inevitable decline. 

Bo Webb, the Raleigh County resident and activist who asked Manchin for the 

meeting, seemed pretty pleased, but he also emphasized ‘‘there is an urgency to address some serious issues, and hopefully some of those concerns will begin to be addressed very soon.’’ 

And while Rep. Shelley Moore Capito, R–W.Va., was busy filing for re-election and 

also forming a ‘‘coal caucus’’ in Washington, D.C., even she was talking about trying 

to find ways to ‘‘bridge that gap’’ between the coal industry and folks who want to 

stop mountaintop removal. 

Activist Maria Gunnoe—not really one to settle for just talk when it comes to 

mountaintop removal—assessed the meeting by saying it needs to be just the start 

of such talks: 

It’s very important that this not be a one-time thing. We live in these communities, and we’re not going anywhere. This can’t be where it ends. This is the beginning of a long process 

It is important to know that this was the end of these discussions about the violent attacks and violent rhetoric that we refuse to tolerate. 

If you will notice that there are members of the group that formed in support of 

surface mining our homes present at this hearing today. They call themselves 

FACES of coal. http://www.facesofcoal.org/Here is a photo of a screen shot that I 

saved from their website. This is only one example of ‘‘what we get’’ for opposing 

them blowing up the mountains over our homes and dumping them into the valleys 

where we live polluting our headwater streams and destroying everything that support our lives. 

I believe the ‘‘They’’ above would be people that live here and oppose what is happening to them. 

We refuse to continue to tolerate the terror of the flooding from these stream fill 

experiments and sludge dams. Throughout the years of the manipulations of the 

laws governing the impacts on our streams we have always been the ones at risk. 

We live daily hoping that they don’t fail yet knowing that someday they will. As 

a child I experience the loss of family members in the Buffalo creek flood that 

brought about the Surface Mining and Reclamation Act Laws. Then in 2001 our 

neighbors in KY suffered the Martin County Coal Spill. These laws didn’t help us 

sleep at night knowing that these very operations were being permitted all over 

southern Appalachia. To us this was no more than words on paper. Living here you 

know that these laws were not being enforced then and they are not being enforced 

now. The present day generations of children and their families live terrified of the 


68511.006.eps
101 

rains. It nearly always brings flooding when you have surface mining and plugged 

valleys nearby. Studies have shown 40%to 200% increase in peak flows caused by 

surface mining runoff during rainfall periods. FEMA and we as individuals picks up 

this cost while companies go on with business as usual keeping their men working 

destroying our very existence. At what cost do we excuse these illegal jobs? 

Surveys show that most voters in 4 regional states dislike mountaintop removal. 

http://earthjustice.org/features/campaigns/poll-strong-opposition-to-mtr A majority of 

voters in WV, KY, VA, and TN reject mountaintop removal mining: The number of 

voters who oppose mountaintop removal dwarfs the number who support it: 57% oppose mountaintop removal, and with noticeable intensity (42% strongly oppose), 

compared to just 20% who support it. Voters who strongly support mountaintop removal mining in these states are a very small minority (at 10%). 

‘‘Jobs at risk’’ is as insulting as anything I have ever read. We have worked consistently in DC and in Southern Appalachia to get our political leaders to enact a 

moratorium on any further surface mining permits because studies prove that this 

type of mining is killing the people who live in our communities. All of our politicians continue to ignore our plea for help. This blatantly says that none of you care 

about the Appalachians who are paying the real cost of this so called ‘‘cheap energy’’ 

with their very existence. IT IS LIVES AND LIVLIHOODS AT RISK. This industry 

is willing to take this risk for their bottom line. The National Mining Association 

attorney called us inbreeds. This again shows the total and complete disrespect for 

our people. This hearing really isn’t about jobs. This hearing is about the coal bosses 

bottom line. This hearing was staged as a political platform to get out their message 

that’’ jobs are at risk in the already impoverished WV’’. Let’s talk about those jobs, 

why we are still one of the poorest states with the richest resources and what is 

really at risk. 

These jobs are people from the outside. Very few of our local people work these 

jobs. This is mostly outsiders from other states here doing this work. In Twilight, 

WV there is imported workers coming in by the busloads. Some of which are not 

legal to be in the US. Here is a photo taken from my vehicle along RT 26 where 

this non-English speaking gentleman ask me for directions to Progress Coal which 

is the Twilight surface mines. The buses were packed with imported workers and 

marked as school buses with PA plates. These same people show up drunk at our 

community church outings so they can eat. There was also an incident where a 

drunk imported worker from the Elk Run mines in Sylvester killed a child while 

racing on our roads as school was letting out. This is what kind of jobs we are talking about. 

This again shows that this is all about the company’s bottom line and not about 

jobs for poor people. 

Fallacy and Facts About Jobs in Appalachia 

Fallacy: Stopping the destruction of Appalachian mountains and streams would cost 

jobs 

Fact 1: 

Underground mines create 50% more jobs than mountaintop removal mines. 

Underground mines create 52% more jobs than mountaintop removal mines for 

every ton they produce—they employ nearly two thirds of the miners in Central Appalachia while producing just over half of the coal1. 

Fact 2: 

Unemployment in counties where a high proportion of coal is mined by mountaintop removal is higher than in counties where coal is mined mostly underground. AcVerDate Nov 24 2008 10:58 Nov 06, 2012 Jkt 000000 PO 00000 Frm 00105 Fmt 6633 Sfmt 6621 L:\DOCS\68511.TXT Hresour1 PsN: KATHY

68511.007.eps
102 

cording to data from the Bureau of Labor Statistics from 2000 through 2010, the 

average annual unemployment rate was 8.6% in Central Appalachian counties 

where more than 75% of coal production was by mountaintop removal, compared to 

6.7% in counties where mountaintop removal accounted for less than 25% of 

production2. 

See: http://www.flickr.com/photos/appvoices/5938215752/ 

Fact 3: 

Historically, the total number of mining jobs has fallen in places where the proportion of coal mined by mountaintop removal has increased. According to the West 

Virginia Geologic and Economic Survey, the proportion of coal production in West 

Virginia that came from mountaintop removal mines increased from 19% to 42% of 

production between 1982 and 20063. Even though overall production increased, the 

number of mining jobs was cut in half over the same period4. 

See: http://www.flickr.com/photos/appvoices/6167625000/ 

Fallacy: More stringent enforcement of the Clean Water Act by the EPA 

and other federal agencies is creating an economic crisis in Central Appalachia 

Fact: The number of mining jobs in Appalachia has increased since the start of 

the recession, since the EPA began enhanced review of mountaintop removal permits, and since the EPA released its interim guidance in April, 2010. Since 2007, 

as production in Central Appalachia has shifted away from mountaintop removal in 

favor of underground mining techniques, the increase in employment at underground mines has more than offset declines at other types of mines. Employment 

is up 11.5% since the start of the recession (December, 2007), up 2.5% since Enhanced Coordination Procedures on mountaintop removal permitting were announced between 3 federal agencies (June, 2009), and up almost 6% since the EPA 

announced a new guidance on Appalachian mine permitting (April, 2010). 

See: http://www.flickr.com/photos/appvoices/6130794844/ 

Fallacy: Ending mountaintop removal would put US energy supply at risk 

Fact: U.S. coal production is limited by demand for coal, not by the ability of companies to obtain permits for mountaintop removal mines. According to energy 

analysts8 as well as executives from Arch Coal9, Peabody Energy10 and Southern 

Company11, declining Central Appalachian coal production is the result of competition from lower cost natural gas. Mines across the country are producing at just 75% 

of their capacity12—down from 85% in 2008—and the Energy Information Administration projects that coal demand won’t recover to 2008 levels for another 15 

years13. Coal from mountaintop removal mines could easily be replaced if other US 

mines were operating at just 81% of their capacity. 

See: http://www.flickr.com/photos/appvoices/5937661551/ 

Fact: Coal from mountaintop removal mines accounts for less than 5% of US electricity generation. While coal accounts for nearly 45% of US electricity generation14, 

only 15% of that is mined in Central Appalachia15. Coal from all of Appalachia accounts for less than 9% of US electricity generation, and coal from mountaintop removal less than 5%. 

See: http://www.flickr.com/photos/appvoices/5818441741/ 

Fallacy: Prohibiting valley fills would prevent all forms of coal mining in 

Appalachia 

Fact: The majority of recently approved permits for new mines in Central Appalachia do not use valley fills. A survey of all applications for new mine permits in 

Central Appalachia that were approved by state agencies in 2009 revealed that just 

44% used valley fills to dispose of mine waste16. See: http://www.flickr.com/photos/ 

appvoices/5938219772/ 

References and Notes 

1. Calculated from MSHA Part 50 data files < http://www.msha.gov/stats/ 

part50/p50y2k/p50y2k.htm>; Mountaintop removal production and employment calculated from ‘‘strip’’ mines, as defined by MSHA for mines in Central Appalachian counties. 

2. Ibid; Unemployment data from the Bureau of Labor Statistics < http:// 

www.bls.gov/ces/> 

3. Hendryx, 2008. ‘‘Mortality Rates in Appalachian Coal Mining Counties: 24 

Years Behind the Nation.’’ Environmental Justice; Volume 1, Number 1 

4. MSHA op. cit. 2000–2010 

5. MSHA op. cit. 2007–2010; Bureau of Labor Statistics op. cit. 

103 

6. EIA/DOE ‘‘EIA–923’’ Database <http://eia.doe.gov/cneaf/electricity/page/ 

eia906_920.html> 

7. DOE/EIA Cost and Quality of Fuels for Electric Plants, Table 3.2 for 2007- 2009; Adjusted to 2009 $ based on Budget of the United States Government: Gross Domestic Product and Implicit Outlay Deflators; 

8. Bernstein Commodities & Power Report, 2/18/2011: ‘‘No Light for Dark 

Spreads: How the Ruinous Economics of Coal-Fired Power Plants Affect the 

Markets for Coal and Gas’’ 

9. Steve Leer, Chairman and CEO, Arch Coal, Inc. presentation to Barclays 

2010 CEO Energy-Power Conference on 9/15/2010; 

10. Rick Navarre, President and Chief Commercial Officer, Peabody Energy, 

‘‘Expanding Markets and Peabody Growth Opportunities,’’ a presentation to 

the 2010 Analyst and Investor Forum on 6/17/2010 

11. Chad Hewitt, Southern Company, ‘‘Utility Perspective on the Future of 

Coal’’ presented at American Coal Council’s Spring Forum on February 3, 

2011; 

12. DOE/EIA Annual Coal Report for 2009. Analysis by Appalachian Voices. 

13. DOE/EIA Annual Energy Outlook, 2011 Early Release edition 

14. EIA/DOE Electric Power Monthly with data for December 2010, Table 1.1: 

‘‘Net Generation by Energy Source: Total (All Sectors) ‘‘; <http://eia.doe.gov/ 

cneaf/electricity/epm/table1_1.html> 

15. EIA/DOE ‘‘EIA–923’’ Database op. cit. 

16. Applications for new mine permits approved in 2009 obtained from: Kentucky Department of Natural Resources; West Virginia Department of Environmental Protection; Virginia Department of Mines, Minerals and Energy; 

US Office of Surface Mining Reclamation and Enforcement, Knoxville Office 

Produced by Appalachian Voices on behalf of the Alliance for Appalachia 

Spreadsheets and details of all analyses available at: www.appvoices.org/resources/mtr_facts.zip 

The Obama administration has stated that they would follow the science. That 

is what I see that this administration is doing SLOWLY. Simple fact is science 

doesn’t favor jobs over human health so this administration is being attacked by the 

extractive industries who now call themselves ‘‘job creators’’. It’s true that we all 

need jobs. However we cannot depend on jobs that destroy other’s lives and livelihoods. Frasure Creek Mining is owned by an INDIAN Company and they are blowing up my homeland. I feel the vibrations of the core driller in the floors of my home 

and impacts of the blasting near my home are horrendous. This is absolutely 

against everything that America stands for. When someone destroys water in a foreign country it is called an act of war. When the coal industry destroys Appalachia’s 

water it’s said to be in the best interest of our homeland security. 

Here is what the Scientist says. . .What are we waiting on? People are dying! 

http://blogs.wvgazette.com/coaltattoo/2010/01/07/bombshell-study-mtr-impacts-pervasive-and-irreversible/ 

Mountaintop Mining Impacts Serious and Irreversible 

Led by Chesapeake Biological Laboratory Director Margaret Palmer, a team of 

the nation’s leading environmental scientists completed a comprehensive analysis of 

the latest scientific findings and emerging data related to the controversial practice 

of mountaintop mining. In this practice massive amounts of rock are removed to expose coal seams, valleys and streams are filled with the rock debris. Dr. Palmer’s 

team concluded that peer-reviewed research unequivocally documents irreversible 

environmental impacts from this form of mining and also exposes local residents to 

a higher risk of serious health problems. 

At one time even Jay Rockefeller support banning surface mining. He openly admitted that strip mining was not a good economic future. Here is a few quotes from 

him. 

December 20, 1970—’’I will fight for the abolition of strip mining completely and 

forever.’’ John D. Rockefeller IV while running for governor of WV as a stripmine 

abolitionist. 

After getting beat by republican Arch Moore with the help of concerned corrupt 

democrat politicians and huge contributions from coal companies, Rockefeller followed the advice of his advisors and changed his mind on strip mining and on attacking corrupt politicians in southern WV. He won the following election for Governor as an advocate of strip mining and shut up about corruption. 

‘‘We know that strip mining is tearing up the beauty of our state. We know that 

strip mining is not a good economic future for West Virginia and not a good economic future for our children. And we know that, whatever advantage it has now, 

the damage that it leave is a permanent damage.’’ –Jay Rockefeller, 1972 

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March 2, 1977—‘‘...mountaintop removal should certainly be encouraged, if not 

specifically dictated.’’ Gov. Rockefeller’s testimony to the U. S. Senate Subcommittee 

on Energy and Natural Resources, March 12, 1977. 

Southern Mountains Community members speak out against the atrocities of surface mining in Appalachia. 

http://www.wvphotovoice.org/ 

www.plunderingappalachia.org 

www.burningthefuture.com 

www.oncoalrivermovie.com 

http://lowcoalexplicit.org/ 

www.coalcountrythemovie.com 

We know we have options and that we do not have to blow up our mountains and 

poison our water to create energy. This was our idea. Hopefully it will catch on. 

www.thelastmountainmovie.com We will continue to demand better for our children’s future in all that we do. Here is a short list of the impacts of coal on our 

lives nationally. It would benefit all our children if we take this very serious and 

fix this problem right away. We can no longer excuse the fact that coal is a finite 

resource and we are running out. Enforce the stream buffer zone rule and protect 

the very existence of a culture of people known as Appalachians. We have witnessed 

the history that the coal industry has left in its path. Let me say that this history 

is unimaginable by most people in this country. Mountaineers will never be free 

until this madness ends. Reinstate the stream buffer zone rule to at least the Regan 

Era Rule and (for the first time in history) enforce it to protect American lives from 

this criminal industry. My nephew reminds me of what surface mining looks like 

from a child’s eyes. As we were driving through our community he looks up and 

says ‘‘Aunt Sissy what is wrong with these people don’t they know we live down 

here?’’ I had to be honest with him and say ‘‘yes they know they just simply don’t 

care.’’ 

Mr. LAMBORN. All right. Thank you. OK. Thank you all for your 

statements. We will now begin our questions. Members are limited 

to five minutes. We may have additional rounds. I’ll begin the first 

round of questions. 

Mr. Bostic, your organization was involved in the 1999 lawsuit 

that began this process of mountaintop mining EIS with the affiliated rule. Some of this was driven by settlements between the Administration and environmental groups. In your view, were those 

settlements prior to the 2008 rule appropriate? 

Mr. BOSTIC. Thank you for that question, Mr. Chairman. I think 

that’s a very appropriate one to ask. The litigation you refer to we 

call that brag here in West Virginia. And as a result of that initial 

litigation, the Federal Government negotiated a settlement agreement with the environmental plaintiffs that committed the first environmental impact statement on mountaintop mining and this 

stream buffer zone. As part of that settlement agreement the government agreed to name as government contractors pre-picked certain experts selected by the environmental community. We had a 

great deal of concern by that inclusion of those outside parties in 

an EIS, as you can imagine. But as the EIS progressed and the 

studies progressed and the programmatic EIS was a much more 

complicated and more intense effort than the 2008 or even the rule 

changes now, and it ultimately found that surface mining was not 

having an inordinate amount of impact on the resources of the 

area. 

Mr. LAMBORN. OK. Thank you. Ms. Fredriksen, I have a question 

for you. The original focus of the rule is on mountaintop mining 

and streams. In fact, one of the witnesses just a moment ago stated 

that he had no objection to restrictions on underground mining, if 

I understood what he said correctly. However, after listening to 

105 

your testimony, it seems that the rule could have or even would 

have a large impact on underground mining operations. Could you 

elaborate on that, please? 

Ms. FREDRIKSEN. Yes. As the graphic demonstrated, if you take 

the new standards that they’ve put in place, which is go to the middle of the stream, go out 50 feet and go down a 15-degree angle 

of draw until you hit the coal. So you have to protect that buffer 

around the stream. So that’s how we looked at the rule, and when 

you do that, even our deepest mines, for example, in southern Virginia, where we mine a lot of met coal, loses almost have of its reserves based on this rule. 

In addition, what we did not include in that calculation, while 

the stream buffer zone rule currently, that’s in the public forum for 

the draft, states that coal refuse disposal areas on the surface are 

not impacted, since they are very similar to a valley fill and are 

permitted similarly, if that coal refuse disposal area were to be not 

allowed either, then that wipes out all ability to even room and pillar, much less longwall mine underground. 

So it’s the nuances of those sweeping changes that they propose 

to make that really impact the longwall mines, particularly for 

CONSOL, but if we stretch that across the nation, there’s probably 

roughly 200 million tons that are longwalled per year in the U.S., 

so you’re talking about a fifth of that being subject to potentially 

restricted mining. 

Mr. LAMBORN. Well, I find that really ironic because SMCRA is 

the Surface Mining Control and Reclamation Act. Surface mining 

control, so ostensibly, it’s not supposed to dictate underground mining, if I heard you correctly? 

Ms. FREDRIKSEN. We have SMCRA permits for every one of our 

mines. Every one of our longwall mines has a SMCRA permit. And 

then as you heard from the previous panel, we also have combined 

NPDES permits with those SMCRA permits. 

Mr. LAMBORN. OK. Well, thank you for your clarifying that. And 

for any of you, would the effect of this, especially if it includes the 

underground impacts that we’ve just discussed, have a tendency to 

push coal production away from private lands owned in the east to 

the Federal lands that are predominantly where coal comes from 

in the west? Mr. Carey? 

Mr. CAREY. Mr. Chairman, I think the idea that those coals 

would have to be replaced from someplace, but I think also the 

panel prior to our panel also outlined the fact that what you would 

see is power producers ultimately switch to another fuel source, 

which would not be cost effective to the average consumer or to the 

manufacturing base in the Midwest. In the short term, it would actually probably be replaced by western coal. 

Mr. LAMBORN. OK. But ultimately to natural gas, if that’s still 

allowed to be produced? 

Mr. CAREY. That’s correct, Mr. Chairman. 

Mr. LAMBORN. OK. Thank you. I’d like to recognize Mr. Johnson. 

Mr. JOHNSON. Thank you, Mr. Chairman. Mr. Carey, first of all, 

it’s good to see a fellow buckeye here today as we talk about this 

very, very important topic. 

In your testimony, you spoke about the jobs that could be lost nationwide if this rewrite as proposed by OSM goes into effect. Could 

106 

you elaborate and shed some light on the number of direct and indirect jobs that are at stake in our home state of Ohio? 

Mr. CAREY. Mr. Chairman, Congressman Johnson, certainly. The 

effect just looking at the numbers we’ve calculated that about 30 

percent of the surface mining would be affected immediately. That 

roughly makes up 45 percent of Ohio’s coal production. So if you 

look at the spin-off jobs to whatever number you want, six to ten 

jobs—up to ten jobs, according to Penn State, we would be looking 

in the thousands in southeastern, and primarily in your district, 

Congressman. 

Mr. JOHNSON. That’s exactly why I have been fighting so hard 

against this rule rewrite because most of those jobs, as you and I 

know, come from Ohio’s sixth congressional district and the people 

that I represent. Mr. Carey and Mr. Bostic, much of the press has 

been on potential impacts on surface mining. We’ve talked a little 

bit about the effects on longwall mining. How many longwall mines 

could be affected in the rewrite, if it goes through? 

Mr. BOSTIC. Well, sir, based on the information that we have 

that’s in the public domain from OSM now, virtually every underground mine, whether it’s longwall or otherwise, could be impacted. 

And it’s over this concept of fill construction. And, again, the detractors, the Administration wants you to believe this is about surface mining. It’s not true. When you underground mine coal, you’re 

going to impact streams, whether it’s through the longwall subsidence that was mentioned earlier or through the construction of 

refuse areas. 

Coal seams are not all coal. There are certain splits of shale and 

clay that lie within the coal seam, and when you extract that coal 

underground, it’s brought to the surface. Those impurities have to 

be removed from the coal so that it will burn, and meet air emission properties or meet coking properties for the metallurgical industry. And you have to have a place to put that material and 

that’s typically in a refuse fill. About 98 percent of all of West Virginia’s underground coal production has to be cleaned, so there’s a 

potential impact on all underground mines, longwall or otherwise. 

Mr. JOHNSON. Ms. Fredriksen, can you talk about the planning 

preparation and caution that CONSOL undertakes before they 

begin surface mining? 

Ms. FREDRIKSEN. Yes. As the SMCRA requirements, the NPDES 

requirements, we also have the various state laws and regulations 

that we apply, the 404 permits. So everything—your entire mine 

plan, your impacts—you have to do an environmental impact assessment, you have to do hydrologic balance. You have to look at 

geology and the impacts of that. And so every bit of that is incorporated, and it’s about a five-year process to go through and obtain 

your mining permit. And like I said before, they have a combined 

SMCRA/NPDES permit in all of our states where we operate. And 

so that process is a very lengthy one, it’s a very thoughtful one and 

it’s also a public process. Those are put up for public comments 

when our limits are assessed on us for what we can do and we 

have to operate according to that plan. 

Mr. JOHNSON. And can you also briefly talk about the reclamation efforts that CONSOL engages in after the surface mining is 

completed? 

107 

Ms. FREDRIKSEN. Yes. In fact, in the State of Ohio, closed mine 

operations are also in my department, and I’m very proud that we 

have received numerous awards on our reclamation efforts on those 

mines. We have bonding. Those are financial obligations that we 

carry through the SEC process and annual 10K filings that we are 

required to meet. And until we meet those obligations and get full 

bond release on our reclaimed sites, that’s the financial obligation 

that CONSOL must state for its shareholders. So it is in our interest to get those reclaimed and to get those bonds released. 

Mr. JOHNSON. OK. Thank you very much. Mr. Chairman, I don’t 

have any further questions and I yield back the balance of my 

time. 

Mr. LAMBORN. OK. Thank you. We’ll begin our last round of 

questioning. 

Mr. Bostic, do you have any thoughts or suggestions on what 

might have be the origin of the current proposed stream buffer 

zone rule as opposed to the 2008 settlement? 

Mr. BOSTIC. Yes, sir. I have a couple speculations to make there. 

I think if you look, attached to my written testimony submission 

there is a June 11, what’s referred to as the MOU, Memorandum 

of Understanding between the primary agencies that regulate coal 

mining under the Federal Government. It was written by and with 

the influence of the White House Counsel on Environmental Quality. Those actions, which began in 2009, followed a Federal court 

decision that we received here in West Virginia. That somewhat, 

we think, landmark decision that clarified the proper role of all of 

these agencies, whether it be the Corps of Engineers, EPA, our own 

Department of Environmental Protection. With that landmark decision, we had some degree of hope that now we’ll have certainty and 

predictability in the permitting process. I think there are those 

within the Administration, within EPA, that disagreed with that 

decision, and then set out the promulgate this MOU and to force 

these rule changes through to restrict mining. Now that the Federal courts had found it to be proper, the balance of separation of 

power between those agencies to be appropriate, they set out to 

change all that by way of regulation. 

And Congressman, I use the term ‘‘regulations’’ very loosely. For 

the most part, the agencies set out to do this by policy or by reinterpretation. Only by way of a lawsuit from the National Mining 

Association was OSM forced to undertake the proper rulemaking 

process with this stream buffer zone rule. What we’ve seen from 

EPA, what we’ve seen from the other agencies within the Federal 

Government has been policy and it’s going to trample, we think, 

congressional intent, whether it’s under the Surface Mining Act or 

under the Clean Water Act. 

Mr. LAMBORN. All right. Thank you. Now, some people have said 

that they don’t like the 2008 rule, they think that the earlier 

Reagan rule was better. Do you think that that rule was stronger 

or is the 2008 rule actually stronger? 

Mr. BOSTIC. Well, Congressman, to be honest with you, if you 

look at the history of the 1983 version of the rule, the Reagan era 

stream buffer zone rule, in a history that’s very well articulated 

through the programmatic environmental impact statement or 

through the 2008 EIS, the 1983 rule wasn’t never, ever interpreted 

108 

nor intended to ban or prohibit mining in and around streams. 

That was made consistently clear through its entire rulemaking 

history leading up to its final inclusion in the program in ’83. 

Having said that, going to the 2008 rule, if you look through the 

administrative record, you’ll find some concern expressed on behalf 

of the mining industry, including West Virginia, that it increased 

certain requirements, certain analysis, certain things that the companies had to do with respect to the SMCRA permit. And we at 

several steps opposed those changes. 

So if you peel back the rhetoric presented by the current OSM 

and the current Administration, that the 2008 rule was a giveaway or a midnight regulation. It actually made mining and permitting of these operations tougher. 

Mr. LAMBORN. OK. Thank you. And Mr. Horton, if I could turn 

to you, you spoke very movingly on the impacts of the loss of jobs. 

Now we’ve also heard some very passionate testimony on negative 

impacts of mountaintop mining. How would you respond to someone who says it only does bad things, or the bad things outweigh 

the good things? How do you respond to that on a human level? 

Mr. HORTON. There have been bad operators that have done negative things to the coal industry, just as there has been bad automobile manufacturers who have built bad cars and killed people, 

and there have been bad steel mills who do things that are not 

right in the sight of the public. Not every coal operator should be 

considered in that light. Mountaintop mining can be done in an environmentally safe manner and it can be done and is done by a lot 

of coal operations and provides good employment for a lot of people 

and it can be done even better, and we strive to do that each and 

every day. 

In fact, if rewritten, this rule will affect, as Jason has said, the 

underground industry because mountaintop mining today is used 

in a lot of advancements of the underground sector. We’ll come in 

and develop an area through the mountaintop mining method for 

the underground mining method to proceed. And it’s a much more 

cost effective way of doing so. And that’s done in both West Virginia and Virginia and I’m sure in parts of Ohio, as well. 

Any time anyone has an issue with anything that we’re doing in 

our operation, we’ll talk to them, and if we’re doing something 

that’s not right, we’ll try to make it right. 

Mr. LAMBORN. And finally, Mr. Carey, is there a contradiction between responsible stewardship of the environment and keeping jobs 

available and the economy strong? 

Mr. CAREY. Mr. Chairman, I don’t believe there’s a contradiction. 

I believe that if you’re operating under the letter of the law and 

you’re doing what you need to be doing, these companies are responsible and I think that there is a balance and we are meeting 

that. 

Mr. WEBB. May I comment, please, on that question? 

Mr. LAMBORN. I’m afraid our time is up. Let’s talk afterward. 

Mr. WEBB. I would like to comment for the record about what 

he’s talking about. 

Mr. LAMBORN. I want to thank the members of the panel for 

their testimony. I want to ask unanimous consent—— 

Ms. GUNNOE. Mountaintop removal jobs are killing people. 

109 

Mr. LAMBORN. I would ask for civility, please. I would like to ask 

unanimous consent that Representative Nick Rahall’s press statement be put into the hearing record and I’m going to ask each 

member of the panel that if anyone submits questions to you in 

writing, that you would respond to those as well. 

[The press release follows:] 

Rahall Welcomes Monday Hearing on Stream Buffer Zone Rule 

Washington, D.C.—U.S. Representative Nick J. Rahall, D–WV, Friday, welcomed a hearing in Charleston to examine the proposed ‘‘stream buffer zone’’ rule, 

scheduled for Monday, September 26th, by the Subcommittee on Energy and Mineral Resources of the House Natural Resources Committee. 

‘‘I am glad that the Subcommittee has chosen to get to the heart of the matter 

and conduct a hearing in West Virginia, where Members can hear first-hand about 

the negative effects a revised stream buffer zone rule would have on our coal miners,’’ said Rahall. ‘‘It is always a good thing for Members of Congress to get out of 

Washington and spend time in the communities that are being affected by the laws 

we write and the regulations being handed down by agencies.’’ 

Rahall is a former Member of the Natural Resources Committee, serving on that 

Committee for 34 years until taking over the top Democratic spot on the Transportation and Infrastructure Committee earlier this year. While Chairman of the Natural Resources Committee, Rahall pressed EPA and the Corps of Engineers for expeditious consideration of coal mining permits and continually urged federal agencies to work together with the State of West Virginia to ensure that coal mining 

jobs were not put at risk by unfair and inequitable regulations. 

Rahall’s work on that front has continued in his new post. Earlier this year, the 

House passed H.R. 2018, the ‘‘Clean Water Cooperative Federalism Act of 2011,’’ 

authored by Rahall. Rahall’s legislation, which has been sent to the Senate for consideration, would rein in EPA’s overreach in the Clean Water Act permitting process 

that is threatening the future of coal mining jobs and communities throughout Appalachia. 

Although previously scheduled commitments, including an oversight tour of the 

Coalfields Expressway—a road needed for the efficient transport of West Virginia 

coal and other products—prevented Rahall from attending the Monday hearing, he 

sent an unequivocal message to participants. 

‘‘Without a doubt, the new stream buffer zone rule under consideration by the Office of Surface Mining Reclamation and Enforcement is unworkable; it would, unquestionably, adversely affect coal mining and eliminate mining jobs so important 

to our West Virginia economy. The message I send to the agency is this: ‘Go back 

to the drawing board’ said Rahall. 

Mr. LAMBORN. Thank you for being here. If there’s no further 

business, the Subcommittee stands adjourned. 

[Whereupon, the Subcommittee was adjourned.] 

[Additional material submitted for the record follows:] 

[A Letter from the Alabama Surface Mining Commission; Indiana Department of Natural Resources; Kentucky Department of 

Natural Resources; Railroad Commission of Texas; Utah Division of 

Oil, Gas and Mining; Virginia Department of Mines, Minerals and 

Energy; and Wyoming Department of Environmental Quality, to 

The Honorable Joseph Pizarchik dated November 23, 2010, submitted for the record follows:] 

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68511.023.eps
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68511.024.eps
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68511.025.eps
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68511.026.eps
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[A statement submitted for the record by the Interstate Mining 

Compact Commission (IMCC) follows:] 

Statement submitted for the record by the 

Interstate Mining Compact Commission 

The Interstate Mining Compact Commission (IMCC) appreciates the opportunity 

to submit this statement regarding an oversight hearing on ‘‘Jobs at Risk: Community Impacts of the Obama Administration’s Effort to Rewrite the Stream Buffer 

Zone Rule’’ held on September 26, 2011 in Charleston, West Virginia. IMCC is a 

multi-state governmental organization representing 24 coal and mineral producing 

states throughout the U.S., several of whom implement regulatory programs under 

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

The current effort by the Office of Surface Mining (OSM) to rewrite the stream 

buffer zone rule is in response to two decisions by the Obama Administration: a settlement agreement with environmental groups challenging a final rule promulgated 

by the previous Administration in December of 2008 and a Memorandum of Understanding (MOU) signed by the Interior Department, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers in June of 2009. Both of these 

decisions committed the agency to develop a new rule for the protection of streams, 

with a projected completion date of June 2012. However, unlike prior rulemakings 

in this area, OSM appears to be expanding the scope of the rule well beyond stream 

buffer zone requirements, taking on topics such as the definition of material damage 

to the hydrologic balance, baseline data collection and analysis, monitoring requirements, corrective action thresholds, and fish and wildlife protection and enhancement. 

As IMCC has noted in comments that we have submitted to the agency concerning this rule and the underlying environmental impact statement (EIS), OSM 

is faced with the challenge of attempting to address and resolve issues that are 

much broader than the rule itself. With each successive reiteration of the stream 

buffer zone rule since 1979, more and more pressure has come to bear on the agency 

to define the rule in such a way as to completely ban the disposal of excess spoil 

in any type of stream that may be impacted by surface coal mining operations. However, as the U.S. Court of Appeals for the Fourth Circuit clearly articulated in its 

2003 opinion in Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 

425, 443 (4th Cir. 2003), ‘‘it is beyond dispute that SMCRA recognizes the possibility 

of placing excess spoil material in waters of the United States even though those 

materials do not have a beneficial purpose.’’ Accord Ohio Valley Environmental Coalition v. Aracoma Coal Company, 556 F.3d 177, 195 (4th Cir. 2009). OSM’s rule, 

therefore, should not be about banning the practice of disposal of excess spoil in 


68511.027.eps
115 

streams, but defining how it can be done in a manner that comports with the law. 

And while OSM can prescribe a national standard for accomplishing this task, it remains the responsibility of the states, as exclusive regulatory authorities where primacy programs have been approved, to apply the standard through the permitting 

process, in which OSM plays no role other than through appropriate federal oversight. 

In its draft EIS (and in early drafts of the new rule), OSM appears to be searching for the ultimate answer to the appropriate protection of streams that has somehow eluded them. From where we sit, it is not OSM that has failed to articulate 

the solution to this matter. The agency, on more than one occasion, has engaged 

in comprehensive analyses through both rulemakings and environmental impact 

statements (EIS’s) that address the complexity of the issue and provide solutions 

that are consistent with SMCRA, protective of the environment and respectful of 

state primacy. There is little left to offer. OSM has examined every possible combination of alternatives and analyses that attend this issue. The real dilemma lies 

not with OSM’s rule, but with the practice of excess spoil disposal itself, which the 

courts have authorized and found to be consistent with the way SMCRA is currently 

written. Any significant change in direction would therefore require an amendment 

to SMCRA. 

The problem also does not lie at the footstep of the states as primary regulators 

in this area. Over the course of the past 30 years since states first began to receive 

primacy, OSM has seldom found concerns with our implementation of the applicable 

stream buffer zone requirement. In fact, as OSM recently found with respect to 

West Virginia’s regulatory program, there has been no indication that the states do 

not apply their respective SBZ rules consistent with the historic application of the 

SBZ requirements, as approved by OSM over the years. See letter to Joseph Lovett 

from OSM Regional Director Thomas Shope dated December 8, 2009. Consequently, 

as OSM continues to search for new alternatives to address this matter, two things 

must be kept in mind: 1) the states’ implementation of this rule and its many 

iterations over the years has not been the stumbling block; and 2) as OSM attempts 

to move forward once again with a new variation on a common theme, it is critical 

to bring the states into the final solution given our role as sole issuers of permits 

that incorporate and implement these standards. 

As the states consider their regulatory role in the context of this potential rulemaking, they are particularly concerned about a propensity on OSM’s part to insert 

itself into the state permitting process in inappropriate ways. In OSM’s ‘‘Immediate 

Stream Protection Measures’’ which were released in November of 2009, for instance, OSM indicates that it intends to ‘‘coordinate the SMCRA and Clean Water 

Act (CWA) permitting processes to ensure effective and coordinated compliance with 

provisions of the Clean Water Act.’’ While the states are fully supportive of coordinated approaches to meeting the objectives of both SMCRA and the CWA, and have 

in fact advocated this in the past, they are uncertain of where OSM intends to go 

with this initiative. Time and again in the recent past, states have received conflicting or incomplete responses from EPA concerning what they believe the applicable CWA standards are for state-issued surface coal mining and reclamation permits, especially in Appalachia. Our attempts to obtain more clarity have been met 

with either silence or uncertainty. 

Furthermore, there are specific administrative procedures specified under SMCRA 

for concurrence by EPA regarding the approval of state programs or any amendments thereto. EPA and the Corps are involved with the issuance of NPDES permits by states under the CWA, which are often coordinated with the issuance of 

SMCRA permits. OSM’s role is relegated to one of oversight. Any attempts by the 

federal government to convert their statutorily designated roles into something more 

intrusive in the name of ‘‘coordination’’ will be met with suspicion, if not outright 

opposition. As the U.S. Court of Appeals for the District of Columbia has noted, the 

state, as the sole issuer of permits, decides ‘‘who will mine in what areas, how long 

they may conduct mining operations, and under what conditions the operations will 

take place. It decides whether a permittee’s techniques for avoiding environmental 

degradation are sufficient and whether the proposed reclamation plan is acceptable. 

The state. . .inspects the mine to determine compliance; [and] [w]hen permit conditions are violated, the states is charged with imposing appropriate penalties.’’ In re: 

Permanent Surface Mining Regulation Litigation (en banc), 653 F.2d 514, 519 (D.C. 

Cir. 1981) (citations omitted). 

It is obvious from a review the June 2009 MOU, as well as OSM’s rulemaking 

documents to date, that while there may be some merit in designing a set of regulatory requirements that applies specifically to mountaintop removal operations in 

steep slope areas, the stream buffer zone rule has always had, and will likely continue to have, broad implications for all regions of the country. In fact, OSM’s proVerDate Nov 24 2008 10:58 Nov 06, 2012 Jkt 000000 PO 00000 Frm 00119 Fmt 6633 Sfmt 6621 L:\DOCS\68511.TXT Hresour1 PsN: KATHY
116 

posal to adjust the definitions of ‘‘material damage to the hydrologic balance’’ and 

‘‘approximate original contour’’ confirms the national scope of the rulemaking. As a 

result, OSM must consider how any reformulation of the rule will impact each 

state’s program in terms of both implementation and resources. As we noted in our 

comments on the 2007 proposed rule, the incorporation of approaches such as the 

‘‘alternatives analysis’’ contained in that proposal (and ultimately embodied in the 

2008 final rule) will require the investment of considerable time and effort by state 

permitting personnel that could prove to be overwhelming. Given the current fiscal 

constraints under which the states are operating, attempting to accommodate these 

types of permitting analyses could seriously jeopardize primacy programs. 

There is also the question of how OSM’s intentions with regard to this new rulemaking comport with SMCRA’s goal of creating a level playing field across the 24 

state coal regulatory programs. For instance, the term ‘‘material damage to the hydrologic balance’’ is contained in every state’s regulatory program and any effort by 

OSM to define that term for the Appalachian region will have consequences for all 

other state programs, regardless of how OSM attempts to narrow its scope or applicability. In fact, given the significant differences in geology, hydrology and terrain 

among the various regions of the country where surface coal mining operations 

occur, regulatory terms such as ‘‘material damage’’ have necessarily been left to 

each state to define based on their unique circumstances. This is the very essence 

of SMCRA’s design, whereby Congress vested primary governmental responsibility 

for developing, authorizing, issuing and enforcing regulations for surface mining and 

reclamation operations with the states so as to accommodate the diversity in terrain, climate, biologic, chemical, and other physical conditions in areas subject to 

mining operations. 

OSM has set forth in the draft EIS chapters upwards of 55 different options for 

proceeding forward with a new SBZ rule. Most of these are variations on themes 

that have already been explored in previous rulemakings or EIS’s, as noted above. 

Some alternatives suggest the use of concepts that have proven elusive or difficult 

to implement in the past, such as quantitative or qualitative thresholds. However, 

reading between the lines of the draft EIS, what we sense is an attempt by OSM 

to reconcile not just its own regulatory requirements under SMCRA, but a larger, 

undefined set of standards for water quality protection being advocated by EPA and 

the Corps. This rulemaking simply cannot be taken out of context from all the other 

activity that has attended the development of the EPA/DOI/Corps MOU referenced 

above. While much of that activity has been focused in central Appalachia at this 

time, the overarching concerns regarding conductivity, total dissolved solids, and numerical and narrative biologic water quality standards have implications nationwide. Furthermore, there is simply no agreement among the affected federal agencies on what those standards should be. In some circumstances, such as the setting 

of narrative water quality standards, the federal agencies play no role whatsoever. 

These determinations are left solely to the states under the Clean Water Act. 

As OSM moves forward with this rule and the EIS, the states believe that it is 

important for both state and federal agencies to agree upon several key issues: 1) 

who is taking the lead on the issues; 2) what specific regulatory standards are in 

play under both SMCRA and the CWA; 3) how and where these standards should 

be incorporated into existing regulatory programs, especially at the state level; and 

4) what the expectations are for both implementation of and compliance with those 

standards. These types of discussions are long overdue and without some resolution 

with all parties at the table, rulemakings such as that regarding SBZ and related 

issues are likely to fail. 

An overarching concern that should also be addressed is why OSM feels compelled 

to move forward with this rulemaking. We are still uncertain, even after all the debate over the past several months concerning the June 11 MOU and OSM’s stream 

protection rule, about the basis for the proposed rulemaking or the problem the 

agency is attempting to fix. We certainly understand the high levels of angst associated with mountaintop mining operations in Central Appalachia, but what OSM is 

attempting to do with this national rulemaking cannot be justified by that public 

debate. As we have noted in comments to OSM and testimony to the Subcommittee, 

the appropriate forum for that debate is before Congress, not OSM. Nor can the 

pending litigation associated with OSM’s 2008 stream buffer zone rule serve as an 

adequate basis for a new rule. There are other options available to the agency for 

the resolution of this litigation short of a new rulemaking on the matter. And even 

though we have requested this information in the past, we are still unaware of any 

data that supports the need for this rulemaking. Quite to the contrary, the data and 

information we are familiar with (including OSM oversight reports) indicates that 

the states have been implementing stream protection requirements in a fair, balanced and appropriate manner that comports with the requirements of SMCRA and 

117 

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. 

As we peruse the various ‘‘principal elements’’ of the proposed action spelled out 

in OSM’s draft EIS, one of our primary concerns relates to resource implications for 

the states. While much remains to be seen in terms of details about the rule, what 

little we do know signals a major impact on the states in terms of permit reviews, 

monitoring requirements, various new technical analyses, and intergovernmental coordination. In this regard, we believe that it is critical, as part of the EIS, for OSM 

to undertake an assessment of the rule’s impact on both state resources and federalism implications. We assert that this is required by both the National Environmental Policy Act (NEPA) and Executive Orders that specifically address federalism 

impacts. 

We also recommend that, before moving forward with the EIS and proposed rule, 

OSM seriously consider the other alternatives available to the agency for addressing 

stream protection. We believe that there are opportunities for the states and the affected federal agencies (OSM, EPA, the Corps and the U.S. Fish and Wildlife Service) to work cooperatively together to address stream protection concerns. However, 

to date our requests for arranging such meetings have been ignored. We believe that 

there are a variety of tools, protocols, policies and other measures available to us 

as state and federal agencies that, with some coordination, could lead to a comprehensive and effective approach to protecting streams. 

As OSM develops the various alternatives that it will consider during the EIS 

process, we suggest that the agency include an alternative that recognizes the inherent regional differences, especially between the East and the West, related to 

stream protection. We believe that OSM likely gained an appreciation for these differences during its stakeholder meetings in June and July of 2010. SMCRA itself 

recognizes the importance of regional differences, both in its findings (Section 101(f)) 

and in its designation of special treatment for mining practices associated with alluvial valley floors west of the 100th meridian, prime farmland in the Mid-continent 

and steep slopes in the East. Failure to recognize these regional differences could 

result in the expenditure of considerable resources to address issues that are of marginal significance in a particular region of the country. 

Before delving into some of the very practical implications and impacts associated 

with implementation of the elements listed in OSM’s draft EIS, we want to note our 

concern about whether the science supports some of OSM’s proposed concepts. In 

particular, it seems to us that there are several technical issues associated with the 

concepts that require further thought and research, such as sequencing of stream 

disturbance, bottom up fill construction, diverting water around fills to avoid retention and percolation, and compliance points off the permit area. We also believe that 

more can be done in the way of developing tools or methods for prevention and prediction. By advancing a rule that embodies some of these concepts without more in 

the way of scientific support will complicate the ability of the states to issue and 

enforce permits that are sound and defensible. 

The balance of our statement will focus on some of the practical implications associated with implementation of the various ‘‘principal elements’’ of OSM’s proposed 

action. 

• New Permit Application Requirements—the states have several questions 

with regard to these new requirements, as follows: what is a ‘‘new permit’’ 

for purposes of prospective application of the new rule? Will states be required to reassess discharge monitoring reports at permit mid-term review? 

Will this serve as a potential re-opener? When will we see definitions of ‘‘preferred watersheds’’ and ‘‘hydrologic equilibrium’’? These are new terms and 

could have significant implications for program implementation. How will 

some of the new permit application requirements impact us as regulatory authorities, e.g. 12 months of baseline monitoring data (instead of six) and requiring alternative analyses to include depositions within one mile of the mining operation? 

• Definition of ‘‘material damage’’—OSM’s new definition appears to be based 

on a stream classification and use concept pursuant to which OSM seems to 

be moving toward establishing a narrative water quality standard based on 

aquatic life. As noted previously, those standards are solely within the province of the states. Additionally, OSM’s approach could result in much duplication with EPA and Corps requirements. OSM’s concept of ‘‘enhancement’’ 

sounds very much like mitigation under Section 404 of the Clean Water Act, 

again raising concerns about potential conflicts. With respect to mining operations in the western states, a broad, national definition of material damage 

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could prove problematic due to the unique issues associated with water rights 

and interstate compacts. • Mining through streams—the states have concerns about whether sequencing 

of streams is feasible. If an assessment of the success of stream restoration 

must include the hydrologic regime and benthics, this could take well over six 

months to accomplish. How many hydrologic cycles will be needed to prove 

restoration? If we have to require full cost bonding for these stream restoration projects, how will this be effectuated? How will we track these bonds in 

conjunction with other reclamation bonds? How do we avoid duplication with 

bonds required by the Corps under Section 404? How will sequencing impact 

the permit revision process? For instance, even if mine throughs are focused 

on form and function, if there are multiple cuts that impact the same stream 

over and over (as is often the case with multiple contour cuts in the Appalachian coalfields and multiple dragline pits in the Midwest and West), how 

will this impact the mining operation and permitting? Does OSM envision the 

states using CHIA monitoring/networking stations to measure off-site damage? How can we predict the probability that the stream will be fully restored—are there interim benchmarks anticipated? • Monitoring requirements—there are potential right of entry/access concerns 

for gathering some of this data off the permit area that will need to be addressed. For biologic monitoring—what system/standard of scoring do we use? 

Is there an expectation of consistency among the states? For instance, it has 

been suggested that biological monitoring would not be required for ephemeral streams in the West. However, there is some uncertainty associated with 

this issue given the fact that the monitoring of biota in ephemeral streams 

is an emerging area of science. The U.S. Geological Survey, under the sponsorship of EPA, has been examining biological information on ephemeral 

drainages and recent research at Pennsylvania State University is focused on 

the biological component of ‘‘dry streams’’, which may be analogous to ephemeral streams in the West. How do we accurately attribute changes in stream 

quality to mining, as opposed to some other activity—especially as the applicable watershed is expanded under the rule? How far up and down the 

stream must we monitor—where is the compliance point? It should be kept 

in mind that limiting the percentage of a watershed has the potential for significant implications, depending on how the watershed is defined. Watersheds 

can vary in size from less than one square mile to over a hundred square 

miles, especially in the West. Small watersheds are sometimes completely disturbed by a single mine and are reclaimed at a later time depending on pit 

advancement and configuration. A constraint on the percentage of disturbance 

would greatly limit operations that are dependent upon large pits and large 

equipment. Finally, if the intent is to address all impacts in a watershed, 

such a change would likely overlap into land use planning, which would be 

outside the authority of OSM and the states under SMCRA. It would also require extensive program resources to undertake such planning. 

• Backfilling and grading and approximate original contour requirements—is 

OSM attempting to limit postmining land uses, regardless of what a landowner may desire—especially where reforestation is concerned? What about 

situations, as in West Virginia, where there is a mandate to comply with 

county land development and master plans? We have serious concerns about 

the impacts of bottom up fills and the use of aquitards which can result in 

failure planes being created in the fills, the overall stability of fills and flooding potential. 

• Coordination of permitting processes—if we attempt to coordinate SMCRA 

and Clean Water Act permits, can we expect to see mandated time frames 

for final action by EPA and the Corps? We also have a concern that the more 

permitting activity that is undertaken by the state mining agencies under the 

SMCRA umbrella, the more these agencies will be expected to assume duties 

that are currently those of state water quality divisions. It will important to 

avoid duplication of effort and have clear lines of authority. 

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

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

have had the opportunity to review and comment on so far. As indicated in the detailed comments the cooperating agency states have submitted to date, there are 

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

that the draft EIS and proposed rule are intended to be national in scope, the states 

are also mystified by the paucity of information and analysis for those areas of the 

country beyond central Appalachia and the related tendency to simply expand the 

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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 cutand-paste exercise utilizing sometimes unrelated pieces from existing documents in 

an attempt to create a novel approach to the subject matter. The result so far has 

been a disjointed, unhelpful exercise that will do little to support OSM’s rulemaking 

or survive legal challenges to the rule or the EIS. 

The states also have serious concerns regarding the constrained timeframes under 

which they have been operating to provide comments on these flawed documents. 

As the states have noted from the outset, and as members of Congress have also 

noted in letters to Secretary Salazar, 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, the states have had to devote considerable staff time to the 

preparation of their comments, generally to the exclusion of other pressing business 

such as permit reviews. While the states were prepared to reallocate resources to 

review and comment on the draft EIS Chapters, additional time would have allowed 

for a more efficient use of those resources and for the development of more in depth 

comments. 

The states understand that OSM is considering further adjustments to the time 

table for review of additional parts of the draft EIS. The stats 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 the full draft EIS. The states 

have requested OSM to provide these new time tables as soon as possible so that 

the states can begin their own internal planning. 

As you know, several cooperating agency states testified before the Subcommittee’s oversight hearing on September 26 regarding their concerns with both OSM’s 

rulemaking and the EIS development process. Those comments are incorporated 

here by reference. The state of Ohio was also a participant in the EIS development 

process, although not as a formal cooperating agency. As noted above, Ohio also 

found the EIS process to be flawed and unworkable. Insufficient time was provided 

to review and comment on the various draft chapters and there was no meaningful 

feedback from OSM to the state comments that were provided. The rulemaking appears to be based on two relatively small research studies in the states of West Virginia and Kentucky with differing geology, stream morphology and aquatic resources than is found in Ohio. For this reason, Ohio is conducting its own study of 

the potential long-term impacts to stream resources following final reclamation on 

mine sites in various geographic regions of the state and that analysis should be 

completed by June of 2013. 

As part of its approved regulatory program, Ohio has undertaken efforts to limit 

impacts from mining to not only intermittent and perennial streams, but also in valuable headwater streams and habitat. Prohibition of permanent impoundments in 

streams and reconstruction of natural stream channels are an integral part of the 

program. Improved coordination with other state and federal agencies also insures 

protection and restoration of stream resources both during and after mining and 

reclamation. Ohio is concerned that if OSM were to move forward with the stream 

protection rule as drafted, it would result in a steep learning curve for current state 

program staff in both the permitting, technical review and enforcement areas. Additional specialized staff would be needed, including field biologists and hydrologists. 

In terms of the impacts to the Ohio coal mining industry, the state anticipates 

that it will be difficult to permit most surface and underground mining operations 

given the requirements of the proposed rule, especially when combined with EPA’s 

proposed numeric effluent criteria for specific conductance and sulfates. This is particularly true with respect to treating the water using conventional active or passive 

treatment methods. Additionally, the proposed requirement to ‘‘hold bond until the 

hydrologic balance reaches equilibrium (including biological resources)’’ would require an extension of the current maintenance period following final reclamation 

that could extend well beyond the current five years, thereby adding considerable 

costs. 

We appreciate the opportunity to provide these comments to the Subcommittee 

concerning OSM’s proposed stream protection rule and associated EIS. We urge the 

Subcommittee to continue its investigation and oversight of the process with the 

goal of motivating OSM to reconsider the need for this rulemaking and the significant impacts it will have on state regulatory authorities and the communities we 

protect, as well as the industry we regulate. 

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