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[Senate Hearing 114-379]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 114-379
 
THE STREAM PROTECTION RULE: IMPACTS ON THE ENVIRONMENT AND IMPLICATIONS 
     FOR ENDANGERED SPECIES ACT AND CLEAN WATER ACT IMPLEMENTATION

=======================================================================

                                HEARING

                               before the

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                    ONE HUNDRED FOURTEENTH CONGRESS

                             SECOND SESSION

                               __________

                            FEBRUARY 3, 2016

                               __________

  Printed for the use of the Committee on Environment and Public Works
  
  
  
  
  
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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                    ONE HUNDRED FOURTEENTH CONGRESS
                             SECOND SESSION

                  JAMES M. INHOFE, Oklahoma, Chairman
DAVID VITTER, Louisiana              BARBARA BOXER, California
JOHN BARRASSO, Wyoming               THOMAS R. CARPER, Delaware
SHELLEY MOORE CAPITO, West Virginia  BENJAMIN L. CARDIN, Maryland
MIKE CRAPO, Idaho                    BERNARD SANDERS, Vermont
JOHN BOOZMAN, Arkansas               SHELDON WHITEHOUSE, Rhode Island
JEFF SESSIONS, Alabama               JEFF MERKLEY, Oregon
ROGER WICKER, Mississippi            KIRSTEN GILLIBRAND, New York
DEB FISCHER, Nebraska                CORY A. BOOKER, New Jersey
MIKE ROUNDS, South Dakota            EDWARD J. MARKEY, Massachusetts
DAN SULLIVAN, Alaska

                 Ryan Jackson, Majority Staff Director
               Bettina Poirier, Democratic Staff Director
               
               
                            C O N T E N T S

                              ----------                              
                                                                   Page

                            FEBRUARY 3, 2016
                           OPENING STATEMENTS

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma...     1
Boxer, Hon. Barbara, U.S. Senator from the State of California...    14

                               WITNESSES

Parfitt, Todd, Director, Wyoming Department of Environmental 
  Quality, prepared statement....................................     5
Pizarchik, Joseph, Director, Office of Surface Mining Reclamation 
  and Enforcement, U.S. Department of the Interior...............    15
    Prepared statement...........................................    18
Erdos, Lanny, Chief, Division of Mineral Resources Management, 
  Ohio Department of Natural Resources...........................    59
    Prepared statement...........................................    62
Larkin, Clay, Partner, Dinsmore and Shohl........................    65
    Prepared statement...........................................    67
Wasson, Matt, Director of Programs, Appalachian Voices...........    73
    Prepared statement...........................................    75

                          ADDITIONAL MATERIAL

Letters:
    To Joseph G. Pizarchik, Director, Office of Surface Mining 
      Reclamation and Enforcement, U.S. Department of the 
      Interior:
        From Todd Parfitt, Director, Wyoming Department of 
          Environmental Quality, May 22, 2015....................   104
        From Todd Parfitt, Director, Wyoming Department of 
          Environmental Quality, October 23, 2015................   106
        From Russell Kirkham, CPG, Manager, Coal Regulatory 
          Program, Alaska Department of Natural Resources, 
          October 26, 2015.......................................   112
        From Daniel Graham, PE, President, Alaska Coal 
          Association, October 26, 2015..........................   157
        From Deantha Crockett, Executive Committee, Alaska Miners 
          Association, October 26, 2015..........................   162
        From Marleanna Hall, Executive Director, Resource 
          Development Council for Alaska, Inc., October 26, 2015.   167
        From Senator James M. Inhofe, September 27, 2016.........   170
    To Janice M. Schneider, Assistant Secretary, Land and 
      Minerals Management, U.S. Department of the Interior:
        From Todd Parfitt, Director, Wyoming Department of 
          Environmental Quality, December 3, 2015................   171
        From Todd Parfitt, Director, Wyoming Department of 
          Environmental Quality, January 19, 2016................   173
Statement from the National Endangered Species Act Reform 
  Coalition......................................................   176
Testimony of John Corra, Director, Wyoming Department of 
  Environmental Quality before the House Energy and Mineral 
  Resources Subcommittee re Oversight Hearing on Jobs at Risk: 
  Community Impacts of the Obama Administration's Effort to 
  Rewrite the Stream Buffer Zone Rule, September 26, 2011........   178
The Human Cost of Coal, iLoveMountains.org, printed February 2, 
  2016...........................................................   186

THE STREAM PROTECTION RULE: IMPACTS ON THE ENVIRONMENT AND IMPLICATIONS 
     FOR ENDANGERED SPECIES ACT AND CLEAN WATER ACT IMPLEMENTATION

                              ----------                              

                      WEDNESDAY, FEBRUARY 3, 2016

                                       U.S. Senate,
                 Committee on Environment and Public Works,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:35 a.m. in room 
406, Dirksen Senate Office Building, Hon. James M. Inhofe 
(Chairman of the Committee) presiding.
    Present: Senators Inhofe, Boxer, Barrasso, Capito, Boozman, 
Fischer, Sullivan, Cardin, Gillibrand, and Markey.

          OPENING STATEMENT OF HON. JAMES M. INHOFE, 
            U.S. SENATOR FROM THE STATE OF OKLAHOMA

    Senator Inhofe. The hearing will come to order.
    We appreciate you and the witnesses on the second panel 
being here. I think we are going to have a bigger turnout in a 
few minutes.
    Let's go ahead and get our opening statements out of the 
way, if that is all right, Senator Boxer.
    Today's hearing is to examine the Department of Interior's 
Office of Surface Mining Stream Protection Rule and its nexus 
with implications to the Clean Water Act and the Endangered 
Species Act. I would also like to discuss the NEPA process for 
developing this rule. In particular OSM's failure to allow 
States a meaningful opportunity to participate in the NEPA 
process, even though they were cooperating agencies under NEPA.
    This rule establishes the conditions a coal mining 
operation is going to have to meet to receive a permit under 
the Surface Mining Control and Reclamation Act, also known as 
SMCRA.
    SMCRA includes provisions for protecting the environment. 
However, SMCRA also specifically says that it does not 
authorize duplicative Federal environmental regulation. And 
under SMCRA, in 24 authorized States, the State agency--not the 
Federal Government--makes coal mining permitting decisions.
    Unfortunately, the rule that the Office of Surface Mining 
proposed just last July would establish new onerous conditions 
that duplicate or supersede existing Clean Water authorities of 
States and the Corps of Engineers, which I contend is an 
illegal power grab.
    Under the Clean Water Act, States establish water quality 
standards. The so-called Stream Protection Act would override 
that authority and let OSM set new water quality standards for 
coal mining operations. These new standards are set at the whim 
of OSM without any of the notice and comment rulemaking 
required under the Clean Water Act and can be used to override 
State water quality certifications and the State coal mining 
permitting authorities. Again, it is a power grab.
    Under the Clean Water Act, the Corps of Engineers issues 
permits to fill in streams. The Stream Protection Rule would 
allow OSM to override the Corps' authority by adding conditions 
to SMCRA permits over and above what the Corps requires in 
section 404 permits and by creating even more confusion over 
the reach of the Federal authority under the Clean Water Act, 
the issue that is being litigated as part of the WOTUS rule 
challenges. Again, a power grab.
    Under the Endangered Species Act, the Fish and Wildlife 
Service lists threatened and endangered species. Under the 
Stream Protection Rule, States are required to meet new 
conditions that apply not only to listed species, but also 
species that Fish and Wildlife have proposed for listing, 
circumventing the notice and comment rulemaking process 
required for listing new species under the ESA. Now, even 
worse, the proposed rule would give Fish and Wildlife 
unprecedented veto authority over State permits. So that is 
what is all the way through this.
    Under NEPA, cooperating agencies are supposed to be granted 
access to information and an opportunity to provide comments 
while an Environmental Impact Statement is being developed. 
Eleven States became cooperating agencies for the Environmental 
Impact Statement for this rule. However, OSM shut them out of 
the process, failing to provide any information to States since 
early 2011. As a result, OSM developed a rule for a State 
administered program without adequate State involvement.
    The unauthorized provisions of this proposed rule will have 
a significant adverse effect on mining States. It will add so 
many layers of bureaucracy that mining permits will halt and 
even current permits could be reopened, causing severe economic 
impacts.
    Now, I know this is true. I spent last Friday out north of 
Poteau, Oklahoma. That is a big mining area that we have 
historically. It has been there for many, many years. People 
don't think of Oklahoma as being a coal mining State, but what 
we have is people really hurting out there. It is a serious 
problem.
    In comments Senator Capito filed on this proposed rule in 
September of last year, she noted that finalizing this rule 
would result in an annual loss in coal production valued at $14 
billion to $20 billion and losses in Federal and State revenues 
of $4 billion to $5 billion a year.
    The coal industry has already lost tens of thousands of 
jobs in the past few years. We have to be cautious to ensure we 
don't regulate into extinction one of the most important energy 
sources for this country, which I think is some people's 
intention.
    So, this is the situation created by this proposed ``Stream 
Protection Rule''--State water quality standards under the 
Clean Water Act will be superseded by new standards that OSM 
creates. The Corps of Engineers' permits under section 404 of 
the Clean Water Act will be superseded by new conditions 
imposed by OSM. A permit that a State coal mining permitting 
authority wants to issue can be vetoed by the Fish and Wildlife 
Service based on impact to species that are not even listed 
under the Endangered Species Act.
    All this Federal overreach is going to impose a hardship on 
coal miners and the States they live in.
    I want to thank our witnesses for being here. 
Unfortunately, one of our witnesses, Director Todd Parfitt from 
Wyoming, he couldn't do it because of some weather issues they 
had up there, so I would ask unanimous consent that his 
statement be placed in the record. Thankfully, we have Mr. 
Larkin here with us today who was able to step in at the last 
minute, and I look forward to hearing from all of our 
witnesses.
    Senator Boxer.
    [The prepared statement of Senator Inhofe follows:]

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

    Today's hearing is to examine the Department of the 
Interior Office of Surface Mining's Stream Protection Rule and 
its nexus with implications to the Clean Water Act and the 
Endangered Species Act. I would also like to discuss the NEPA 
process for developing this rule--in particular, OSM's failure 
to allow States a meaningful opportunity to participate in the 
NEPA process, even though they were cooperating agencies under 
NEPA.
    This rule establishes the conditions a coal mining 
operation must meet to receive a permit under the Surface 
Mining Control and Reclamation Act--also known as SMCRA.
    SMCRA includes provisions for protecting the environment. 
However, SMCRA also specifically says that it does not 
authorize duplicative Federal environmental regulation. And 
under SMCRA, in 24 authorized States, the State agency, not the 
Federal Government, makes coal mining permitting decisions.
    Unfortunately, the rule that the Office of Surface Mining 
proposed last July would establish new onerous conditions that 
duplicate or supersede existing Clean Water Act authorities of 
States and the Corps of Engineers.
    Under the Clean Water Act, States establish water quality 
standards. The so-called Stream Protection Rule would override 
that authority and let OSM set new water quality standards for 
coal mining operations. These new standards are set at the whim 
of OSM, without any of the notice and comment rulemaking 
required under the Clean Water Act and can be used to override 
State water quality certifications and State coal mining 
permitting authorities.
    Under the Clean Water Act the Corps of Engineers issues 
permits to fill in streams. The so-called Stream Protection 
Rule would allow OSM to override the Corps' authority by adding 
conditions to SMCRA permits over and above what the Corps 
requires in a section 404 permit and by creating even more 
confusion over the reach of Federal authority under the Clean 
Water Act--the issue that is being litigated as part of the 
WOTUS rule challenges.
    Under the Endangered Species Act, the Fish and Wildlife 
Service lists threatened and endangered species. Under the so-
called Stream Protection Rule, States are required to meet new 
conditions that apply not only to listed species, but also 
species that FWS has proposed for listing, circumventing the 
notice and comment rulemaking process required for listing new 
species under the ESA. Even worse, the proposed rule would give 
FWS unprecedented veto authority over State permits.
    Under NEPA, cooperating agencies are supposed to be granted 
access to information and an opportunity to provide comments 
while an Environmental Impact Statement is being developed. 
Eleven States became cooperating agencies for the EIS for this 
rule. However, OSM shut them out of the process, failing to 
provide any information to States since early 2011. As a 
result, OSM developed a rule for a State administered program 
without adequate State involvement.
    The unauthorized provisions of this proposed rule will have 
a significant adverse effect on mining States. It will add so 
many layers of bureaucracy that mining permits will halt, and 
even current permits could be reopened, causing severe economic 
impacts. In comments she filed on this proposed rule in 
September of last year, Senator Capito noted that finalizing 
this rule would result in an annual loss in coal production 
valued at $14 billion to $20 billion and losses in Federal and 
State revenues of $4 billion to $5 billion a year.
    The coal industry has already lost tens of thousands of 
jobs in the past few years. We must be cautious to ensure we 
don't regulate into extinction one of the most important energy 
sources for this country.
    So, this is the situation created by this proposed ``stream 
protection rule'':
    State water quality standards under the Clean Water Act 
will be superseded by new standards that OSM creates.
    The Corps of Engineer's permits under section 404 of the 
Clean Water Act will be superseded by new conditions imposed by 
OSM.
    A permit that a State coal mining permitting authority 
wants to issue can be vetoed by the Fish and Wildlife Service 
based on impact to species that are not even listed under the 
Endangered Species Act.
    All this Federal overreach is going to impose severe 
hardship on coal miners and the States they live in.
    I want to thank our witnesses for being here today. 
Unfortunately one of our witnesses, Director Todd Parfitt, was 
unable to make it to today's hearing due to weather issues. I 
ask unanimous consent that his statement be placed in the 
record. Thankfully, we have Mr. Larkin here with us today who 
was able to step in last minute. I look forward to hearing all 
of your testimonies.

    [The prepared statement of Mr. Parfitt follows:]
    
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]    
    
    
           OPENING STATEMENT OF HON. BARBARA BOXER, 
           U.S. SENATOR FROM THE STATE OF CALIFORNIA

    Senator Boxer. Thanks so much.
    Mr. Chairman, could I have an additional minute, as you 
did?
    Senator Inhofe. Sure.
    Senator Boxer. So we have 6 minutes on the clock. Thanks. 
Because this is really important. Today the majority have 
decided to hold a hearing on the Department of the Interior's 
proposed Stream Protection Rule. Now, the proposed rule is 
going to revise 30-year-old regulations based on significant 
scientific advances on the impacts of surface coal mining on 
human health. That is important, human health, and the 
environment.
    Now, coal mining regulations under the Surface Mining 
Control and Reclamation Act, that generally falls under another 
committee's jurisdiction, but I appreciate the fact that my 
chairman, who I respect and admire, feels there are 
implications in our jurisdiction, so we are having this 
hearing. And I am glad, in a sense, that we are because I have 
a lot to say about it.
    There is a growing body of peer reviewed science that shows 
that people living downstream from coal mines face a greater 
risk of cancer, birth defects and premature death. Let me say 
it again. We are not just talking about some problem far from 
Earth. A growing body of peer reviewed science shows people 
living downstream from coal mines face a greater risk of 
cancer, birth defects, and premature deaths. We have a witness 
who will testify to that.
    So what does the majority want to do? It is clear. They 
want to disrupt a rule that is going to protect the people of, 
particularly, Appalachia. The Stream Protection Rule will place 
limits on the dumping of mine waste in headwater streams and 
mountaintop removal coal mines, one of the most destructive 
mining practices used today.
    This practice involves literally cutting the tops off of 
mountains and dumping the excess rock and soil into headwater 
streams that are critical for flood control, water quality, and 
the health of some of the Nation's most precious ecosystems. 
This isn't made up, this is factual. Mountaintop removal coal 
mining has already destroyed more than 500 mountains, buried 
more than 2,000 miles of headwater streams, and polluted 
thousands of miles of downstream surface waters.
    And the mining waste associated with these sites can 
include a host of toxic chemicals. Let's hear what these 
chemicals are. I am sure you would love to drink a glass of 
water with these chemicals in them: selenium, arsenic, lead. 
How about giving it out to my colleagues here? None of them 
would drink that, because these toxins can leach into streams 
and rivers, severely degrading water quality.
    For the first time, the proposed Stream Protection Rule 
coal mining companies to collect baseline data on water quality 
and require mining companies to monitor streams during mining 
and reclamation to ensure that downstream waters are not 
harmed.
    Having this information is critical for affected citizens 
to know if their sources of drinking water are being polluted. 
We just faced the Flint, Michigan, travesty, tragedy--whatever 
you want to call it, either one of those words. Don't you think 
the people here have the right to know what is in their water? 
You would if it was your grandkid. I certainly would if it was 
mine. And I certainly feel it is fair to the people there to 
know what toxins are in their drinking water.
    So what does this Environment Committee do on the heels of 
Flint? First, we pass an amendment last time that says, oh, you 
can take pesticides and spray them on water sources that are 
for drinking water; sure, you don't need a permit. They passed 
here. They put it in the Sportsmen's Act. In the base of the 
Sportsmen's Act it says fishing tackle that has lead can never 
be regulated under TSCA. So they have done those two things. 
And today is another wonderful thing this Environment Committee 
is doing. My friend, he and I, I hope we can get back to 
infrastructure issues, because on that we work so well.
    Senator Inhofe. WRDA is coming up.
    Senator Boxer. WRDA is coming up, and it makes me so happy. 
But in the meantime, here we go. On the heels of Flint, yet 
another move by this so-called Environment Committee to say 
that let's disrupt a rule.
    Now, the Department of Interior is doing the right thing--
regardless of what I think we are going to hear--to modernize 
its mining rules, and we are going to say the coal industry has 
to be consistent with national standards of drinking water 
protection. The poisoning, again, by lead of children in Flint 
has shaken the Nation. We can laugh all we want. This is the 
time for us to protect the waters that our kids drink, not to 
just say, oh, let's just walk away from this rule that is going 
to strengthen the power of the community to know what they are 
drinking. So stopping the Stream Protection Rule is not right.
    Now, we are going to hear from the people of the community. 
I am so glad we have that witness. And here is the deal. No 
rule is perfect. I am sure this one isn't perfect. I have heard 
from environmental groups and health organizations that think 
this is a weak sister of a rule; it is not good. And then we 
have the other side that says forget about it, we don't need 
any rule, this is just perfect. So obviously there is room for 
us to work together.
    We can craft something that is going to make sense. But to 
disrupt this rule as we are looking at the poor people of Flint 
and what this is costing them in brain damage, in money, and in 
fear, to disrupt a rule that is protective of the people I 
think is the wrong thing to do.
    Thank you.
    Senator Inhofe. Thank you, Senator Boxer.
    Mr. Pizarchik, you are recognized for your opening 
statement.

  STATEMENT OF JOSEPH PIZARCHIK, DIRECTOR, OFFICE OF SURFACE 
  MINING RECLAMATION AND ENFORCEMENT, U.S. DEPARTMENT OF THE 
                            INTERIOR

    Mr. Pizarchik. Thank you, Chairman Inhofe, Ranking Member 
Boxer, and other members of the Committee for the opportunity 
to be here today. I am here to testify how the proposed Stream 
Protection Rule complements the Clean Water Act and Endangered 
Species Act and fills the water protection gaps as required by 
the Surface Mining Control and Reclamation Act.
    The proposed Stream Protection Rule includes reasonable and 
straightforward reforms to modernize 30-plus-year-old coal 
mining rules. We recognize that coal mining and coal-fired 
electricity production will continue to be a part of our energy 
mix for decades. The proposed rule incorporates current 
science, technology, and modern mining practices while also 
safeguarding communities and protecting our streams from the 
long-term effects of pollution and environmental degradation 
that endanger public health and undermine the future economic 
viability of coal country communities.
    The proposed rule was available for public review and then 
comment for over 3 months. We held six public hearings, 
extended the public comment period, and received more than 
94,000 comments, adding to the more than 50,000 comments 
previously provided by States and other stakeholders.
    We have learned a great deal over the past three decades 
about the impacts of coal mining and how to avoid or minimize 
those impacts. The final rule will strike an appropriate 
balance between protecting our water and the Nation's need for 
coal. The rule will provide greater regulatory certainty to the 
mining industry; it will improve consistency with the 
Endangered Species Act and promote coordination and cooperation 
with the agencies that implement the Clean Water Act.
    It is important to note that Congress clearly delegated 
protection of the waters of the United States to the 
Environmental Protection Agency and also provided the Army 
Corps of Engineers a role to play when fill will be placed in a 
stream.
    It is our expectation that the proposed rule, once 
finalized, will fill regulatory gaps through a more complete 
implementation of our legal obligations under SMCRA. Our rules 
to fulfill the legal requirements of SMCRA will complement, and 
not conflict with, the Clean Water Act requirements.
    SMCRA specifically requires regulatory authorities to 
protect water resources during coal mining, and these 
protections go beyond the protections that are provided by the 
Clean Water Act. Most notably, the Surface Mining Act requires 
coal operators to minimize disturbances to the prevailing 
hydrologic balance in the permit area and to prevent material 
damage to the hydrologic balance outside the permit area.
    It is also important to note that we are not changing our 
longstanding rules that require mine operators to comply with 
all applicable Clean Water Act requirements. The proposed rule 
seeks to strike the right balance between fulfilling our 
statutory obligations while providing the appropriate deference 
to Clean Water Act regulatory authorities to fulfill their 
duties. The final SPR will do so in a complementary and 
effective manner.
    With regard to the Endangered Species Act, the proposed 
rule would codify the existing process contained in the 1996 
biological opinion where coal mining may adversely affect 
species listed or threatened as endangered. These provisions 
will ensure that the incidental take coverage provided by the 
1996 bi-op is effective for the State regulator and the mine 
operator when the permit is issued.
    Based on comments we received, the final rule will likely 
include changes and modifications to further clarify and make 
it easier for people to understand there are no conflicts with 
the Clean Water Act or the Endangered Species Act.
    OSMRE's analysis and outreach to stakeholders identified 
seven key areas for improvement to fulfill the requirements of 
the law. They include a better understanding of baseline 
environmental conditions at mining sites; improved monitoring 
during mining and reclamation; clarity on what constitutes 
material damage to the hydrologic balance outside the permit 
area; and enhanced material handling and restoration 
requirements designed to take advantage of the advances over 
the last 30 years, which will enable responsible operators and 
regulators to better protect people and their water from the 
adverse effects of coal mining; the proposed rule would protect 
several thousand miles of stream.
    The costs contained in the draft Regulatory Impact Analysis 
compared to the industry total revenues are a fraction of 
those. The proposed rule is what Americans expect from their 
Government, a modern and balanced approach to energy 
development that protects their water. It provides coalfield 
communities an economic future. The proposed Stream Protection 
Rule provides State regulators the flexibility to tailor their 
protections to individual mines or regions. The rule will 
reduce conflicts, reduce costs, enhance coordination among 
regulators, and provide for a more effective implementation of 
the Surface Mining Act, the Clean Water Act, and the Endangered 
Species Act.
    Thank you.
    [The prepared statement of Mr. Pizarchik follows:]
    
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]    
    
    
    Senator Inhofe. Mr. Pizarchik, section 702 of SMCRA says 
that you have no authority to supersede--reading out of the 
statute now--amend, or modify any other Federal law, including 
laws relating to water quality. You just heard my opening 
statement. I mentioned three specific areas how the Stream 
Protection Rule would expand the Federal authority to do 
exactly what the law says not to do. Three things: by 
superseding State authority of water quality standards under 
section 303, by superseding the Corps' authority to issue 
permits to fill in streams under 404, and by expanding the Fish 
and Wildlife authority under the Endangered Species Act.
    Now, I am going to ask you this for the record, because I 
used the rest of my time by verbalizing it. So the question I 
am going to ask you is, do you claim that your rule won't have 
these effects, and how would you claim that? That would be for 
the record.
    Farrell Cooper, a mining company in Oklahoma, I was there 
last Friday. I think quite often the regulators here who are 
usurping more powers from State and from local government and 
from other departments, if they just go out and see the people 
out there. Half of Farrell Cooper right now, they are 
unemployed already as a result of what is anticipated from 
this. Despite the fact that the State controls its own surface, 
nonetheless, that is happening.
    Now, we talked about this issue before. You claim that they 
haven't appropriately done reclamation. But I can tell you that 
the reclamation is good. The Oklahoma Department of Mines 
agrees with me and Farrell Cooper, and your own Department of 
Interior Office of Hearings and Appeals and the courts agree 
with me and Farrell Cooper, and they disagree with your 
interpretation of the law. The company spent millions of 
dollars fighting your accusations in multiple lawsuits, and in 
the process they have had to lay off half of their work force, 
and these are good paying jobs.
    Now you are trying to bypass the courts and win those 
lawsuits with the regulations that we are talking about today, 
which would overturn 35 years of legal precedence relating to 
how reclamation is done.
    I would like to ask you why don't we just resolve this 
issue in Federal court? Would you be willing--would you agree 
to just support moving the case to the Federal District Court 
so a fair trial with a qualified judge could be heard? What do 
you think?
    Mr. Pizarchik. Senator, I appreciated when we visited the 
Rock Island mine together summer before last to look at the 
reclamation that the Arkansan Mining Company did and how it did 
not restore the land to AOC, to the detriment of that farmer 
with those 45-foot spoil piles and 100-foot deep water filled 
impoundments. And you are right, there are three litigation 
cases out there. I can't comment on the--it is Department 
policy not to comment on litigation, and we would certainly 
entertain what you are saying. I would have to take that back 
to the Department, talk with our lawyers and talk with the 
Department of Justice because you are right, two of those cases 
where the court ruled in accordance with what you said; the 
third case actually agrees with us, and that one is still being 
briefed, and they are all under appeal, and we will have to see 
where the courts go.
    Senator Inhofe. In terms of fulfilling this request, you 
would consider doing this? You say take it to the appropriate 
people. Who are they?
    Mr. Pizarchik. Senator, I can't make that decision here; I 
will need to talk to our lawyers and everybody else. I believe 
we ought to allow the courts to continue to fulfill their 
duties in accordance with the law; that is the way it is set 
up. There are three appeals before them, and I think it is 
appropriate for them to go through that process. As I 
understand the law, once that decision is made, there would be 
opportunities for appeal to a higher level court. So I think it 
would be premature to short circuit the current administrative 
and legal process.
    Senator Inhofe. So your answer to that question is no, in 
terms of doing it now?
    Mr. Pizarchik. I think we should allow the process to 
continue in the courts.
    Senator Inhofe. All right. Now, let me ask you is there 
anything ambiguous about this language in 702? Let me just read 
it from the statute. It says ``Nothing in this chapter shall be 
construed as superseding, amending, modifying, or reopening the 
Mining and Minerals Policy Act of 1970, the National 
Environmental Policy Act of 1969, or any of the following 
Acts,'' and then it lists all eight of the acts that fall under 
this category. Is that ambiguous?
    Mr. Pizarchik. I do not find it ambiguous, no.
    Senator Inhofe. OK. I want staff to take this over and give 
it to Mr. Pizarchik. One of the problems we have is getting 
information from the bureaucracies and making requests, even in 
those that are in the jurisdiction of this committee. In this 
case, the documents that we have had, all documents, we are 
going to request in writing that within 2 weeks you send to 
us--now, we have made this request before, my junior Senator 
and I have both made the request in June and September, and we 
haven't heard back yet. So the request is for all documents 
including, but not limited to, e-mails, memoranda, legal 
analysis concerning communications between the OSM reclamation 
and enforcement, including yourself, and the Office of 
Solicitor regarding the overturn of the decision in November 
2010 and the issuance of INE-35. No. 2, all documents 
including, but not limited to, e-mails, memos, and legal 
analysis concerning the communications to or from Director 
Pizarchik, yourself, about the INE-26, including February 2015 
and the decision to rescind INE-26.
    Now, will you commit to getting this information for us, 
for this Committee?
    Mr. Pizarchik. Senator, I am aware of those document 
requests, and it is my understanding that the Department has 
already provided several thousand pages of documents to the 
Committee and that we are working to continue to provide 
comments and to supplement those responses, and I anticipate 
that we will be providing supplemental responses, including 
additional responsive documents, very shortly. I would have to 
get back to you regarding any specific details on that, but we 
are continuing to process the requests.
    Senator Inhofe. Well, the requests, though, are very 
specific. What we have received is not specific, so we thought 
we would just be more specific. I am just asking for you to 
stay to us you will supply us this information within 2 weeks.
    Mr. Pizarchik. Senator, I have not read these comments.
    Senator Inhofe. I just read them to you.
    Mr. Pizarchik. Well, I would be happy to take them back to 
the Department for evaluation so that we can provide an 
appropriate response.
    Senator Inhofe. Well, you have had the request from myself, 
several others, including my junior Senator, for months now, so 
you have had plenty of time to look over. In fact, the very 
wording that you are looking at there you have seen before. So 
I ask you a third time will you give us this information in 2 
weeks?
    Mr. Pizarchik. We will continue to process the document 
requests and provide the appropriate response documents as soon 
as we can. We have already provided several thousand pages and 
we will continue to do so.
    Senator Inhofe. Senator Boxer.
    Senator Boxer. Thanks. Again I would ask that I have 2 
minutes more.
    Senator Inhofe. I was 1 minute over.
    Senator Boxer. You were 2:43 over.
    Senator Inhofe. You can have 2:44, how is that?
    Senator Boxer. OK, 2:44.
    Senator Sullivan. Do we all get 2 minutes more?
    Senator Boxer. No. This is our thing.
    Senator Inhofe. Well, no, no. In that unanimous consent, 
the next two that will be heard will be Senator Markey and 
Senator Sullivan. I ask unanimous consent that they also be 
given 7 minutes instead of 5 minutes.
    Senator Boxer. Absolutely.
    Senator Inhofe. OK. No objection. Then we go back to 5 
minutes.
    Senator Boxer. I want to hear from all of them at great 
length.
    All right.
    Senator Sullivan. We can do it in 5.
    Senator Boxer. I can't, because there is so much to talk 
about, there really is.
    Now, just in general I want to make a comment, that the 
majority party here, with all due respect, this is their 
philosophy, they demonize anybody in the Federal Government, my 
view, who is trying to help protect the environment and public 
health. They demonize. And I will tell you why it is wrong. But 
I will wait until they are finished.
    [Pause.]
    Senator Inhofe. Go ahead.
    Senator Boxer. I waited.
    OK, I am back.
    Senator Inhofe. Oh, good.
    Senator Boxer. You so don't want to hear this.
    The majority demonizes any Federal agency that tries to 
help; it doesn't matter if it is the EPA, they demonize. It 
doesn't matter if it is you, sir. Do not take what they throw 
at you personally. They don't mean it personally at all. They 
just don't want any involvement. And here is what is so odd.
    I remember the BP oil spill. It went on and on. Senator 
Markey and I, and I remember Senator Nelson, we were so 
frustrated, along with the Senators from Louisiana, both 
Republican and Democrat, because no one could seem to come up 
with the answer. You know who did? The Secretary of the 
Interior, Steven Chu. Because he got in there, he took charge 
because he was very smart and knew. He happened to be from the 
Federal Government, and he found out there was a technology 
that needed to be used to really look at this spill in a better 
way. Once they figured it out, they stopped it.
    Now, we have a situation in California right now. I am so 
grateful to my colleagues because we now set up a task force 
headed by the DOE to come in and look. So why do we always have 
to demonize somebody?
    The fact is wisdom does not reside with the Federal 
Government, with the State government, with the local 
government, with anybody on this panel. All wisdom doesn't 
reside. We all have some good ideas. So when we get together 
and work together, it is fine.
    Now, it is my understanding, sir, that you took a lot of 
input from the public as you put this together. Is that 
correct? Could you describe the process a bit?
    Mr. Pizarchik. Yes, Senator, we did. We started off with an 
advanced notice of proposed rulemaking, which was preceded by 
some stakeholder outreach sessions. We met. I had 15 different 
meetings with industry, environmental community, citizens. Now, 
we have the advanced notice of proposed rulemaking with public 
comments on that. We also did two public scoping sessions, one 
where we had nine public meetings across the country. Those 
processes generated well in excess of 50,000 comments. We 
shared drafts of the EIA with the cooperating agencies and 
received many, many comments from the States, numerous comments 
that were very helpful and are reflected in the final rule. And 
we proposed the rule and we received about 94,000 more comments 
in addition to what we have.
    The process that we had done has been unprecedented for 
this agency, and the amount of comments we have had is far in 
excess of any rulemaking that we have done in the past.
    Senator Boxer. And sir, isn't it true that your rule has 
been criticized by the left and the right? In other words, 
people who want to see it be more stringent and those who say 
you are duplicative and you are surpassing the ESA, as my 
chairman has said? Isn't it true that those are the comments 
you received?
    Mr. Pizarchik. Yes, Senator, they are.
    Senator Boxer. I think that is an important point. You did 
something right. Everybody is mad at you. You know, you tried 
to find some ground that you could defend and that you could 
truly say is a compromise, and I thank you for that.
    Now, in your job, you are the Director of the Office of 
Surface Mining Reclamation and Enforcement. Isn't it true that 
you are required under the law to protect the environment? 
Isn't that actually in the law?
    Mr. Pizarchik. Yes, Senator. If you look at the Surface 
Mining Act, there are numerous provisions in it that talk about 
the purposes of the law and what I am supposed to do. It is 
protecting the people and the environment from the adverse 
effects of coal mining, preventing the pollution from coal 
mining. And we have numerous provisions. I also have to strike 
a balance with coal. But the law is an environmental protection 
and public protection law.
    Senator Boxer. Fine. This is important, because when you 
get criticized by my friends here, they are my friends, I love 
them dearly. When you get criticized by them, you have to 
understand what they are asking you to do, in my opinion, is to 
walk away from your responsibility. And isn't it true, sir, if 
you did that, wouldn't you be the subject of lawsuits? Let's 
say somebody living in Appalachia got cancer, and it was a 
cluster, and it came from--whether it was arsenic or lead, 
there were problems, you were sued. Wouldn't you have to mount 
a pretty good defense if you did nothing, if you walked away 
from this challenge? We all know the challenge exists. Have you 
not seen the health impacts?
    Mr. Pizarchik. There have been a lot of studies documenting 
health impacts, and we have been working to try to get a review 
of those by the National Academy of Sciences. And yes, I 
probably would be sued. Actually, I get sued all the time for 
just about everything we did, so it would not be unusual. But 
it would also be an abdication of my duty if I did not 
promulgate rules that carry out and fully implement the 
statute, and that is what I am trying to do.
    Senator Boxer. Well, thank you. And I compliment you from 
the bottom of my heart, because we have seen in Flint, from the 
State government there, and even the EPA that, yes, told Flint 
but didn't do enough, in my view. We have seen what happens 
when people in positions such as yours get cold feet and back 
away, and it isn't a pretty story. And I am so pleased that you 
have done what you have done and that you are standing up for 
what you have done, and that you have listened to all the 
voices. And I know you look at the economics of it as well. The 
fact is the economics that were cited by my friend and that 
will be cited from my friend from West Virginia, and I have 
seen those surveys, those studies, they have been refuted, and 
I think our witness here is going to show that those studies 
are not accurate.
    The bottom line is people have to be kept safe.
    Now, let me ask you a couple of other questions. When you 
make this rule, you look at the health impacts, you look at the 
economic impacts, you look at everything, is that right?
    Mr. Pizarchik. We look at, yes, mostly those. Primarily, 
under this rule, it is about protecting the water for people so 
that water is included, the critters aren't poisoned.
    Senator Boxer. Let's go there. Your function in this rule 
is to protect people from drinking water that could harm them, 
is that correct?
    Mr. Pizarchik. That is one of the roles of it. Also 
protecting the environment is another, yes.
    Senator Boxer. Yes. Well, protecting the environment means 
that you have fish in there that aren't contaminated, is that 
correct?
    Mr. Pizarchik. Yes.
    Senator Boxer. Sir, I just want to say to you, regardless 
of what you hear, you just stand up and you continue to do 
that. And when people look at you and say, sir, you shouldn't 
do this, just tell them to look at those families in Flint. 
This is what happens when we don't do our job. And this 
committee, the Environment Committee, should not be questioning 
this rule; we should be working to make it workable.
    Thank you.
    Senator Inhofe. Thank you, Senator Boxer.
    Senator Sullivan.
    Senator Sullivan. Thank you, Mr. Chairman.
    And thank you, Director, for appearing today. I always feel 
the need to start my comments off with a little prefatory 
remark. I have the utmost respect for the Ranking Member here. 
We all want clean water. We all want clean air. We all want 
healthy kids. And I actually think that States are pretty good 
at this. I think my State, for example, Alaska, has the 
cleanest water, cleanest air, best managed fish and wildlife 
certainly in America; cleaner than California, cleaner than 
Delaware, cleaner than New Jersey. And it is State officials 
that do that. So we all want that.
    But what is always surprising to me on this Committee is 
that we also need agencies to follow the law. You have 
everybody from Laurence Tribe saying burning the Constitution 
should not be part of our energy and environmental 
responsibilities. And I have a lot of experience with SMCRA and 
what we call ASMCRA in Alaska, which is the State version of 
SMCRA, but this is classic Obama administration action, and you 
guys are all part of it. You can't pass a law, so you break a 
law with a regulation. The States that are impacted are almost 
100 percent against it, which you will get sued on this one, 
trust me. And then you say it is driven by science, and I am 
going to get into that, because with regard to Alaska you 
didn't cite one scientific study that relates to my State, one 
of the biggest coal reserves in the country, when it is really 
a power grab and politics. Thousands of new pages of regs.
    Then there is this claim that it is partisan.
    Mr. Chairman, for the record, I would like to submit the 
State of Alaska's letter from our Governor, who is an 
Independent, our lieutenant Governor, who is a Democrat, who 
are fully, fully opposed to this rule.
    Senator Inhofe. Without objection.
    [The referenced information follows:]   
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]   
    
       
    
    Senator Sullivan. So it is not partisan. The concern is 
federalism and the law. It is not the environment. We all want 
a clean environment.
    Again, my State has cleaner water and cleaner air than any 
State in the country. And it is not because you are helping; it 
is because State officials do it.
    So there is no demonizing here. The problem is when a 
Federal agency doesn't follow the law, it is our responsibility 
to make sure that doesn't happen. And what I am always amazed 
about is how often my colleagues on the other side of the aisle 
say, fine, go ahead, violate a Federal law, violate the 
Constitution. But Americans are starting to get really, really 
tired of it.
    So let me go into a couple things on process. You talked 
about the process.
    Alaska is one of the largest coal reserves in the country. 
Did you go to Alaska in terms of public hearings for this rule?
    Mr. Pizarchik. No, sir, we did not.
    Senator Sullivan. OK. Why? Did you go to any State west of 
the Mississippi?
    Mr. Pizarchik. Yes.
    Senator Sullivan. How many times? Once.
    Mr. Pizarchik. I believe it was twice. There was a hearing 
in St. Louis----
    Senator Sullivan. I believe it was once.
    Mr. Pizarchik [continuing]. And also in Denver.
    Senator Boxer. Let me him answer the question.
    Senator Inhofe. Come on, Barbara, don't do that.
    Senator Boxer. You don't want people to have----
    Senator Sullivan. Did you have any studies citing Alaska in 
your entire proposed rule?
    Mr. Pizarchik. Senator, if you look at what we are 
proposing----
    Senator Sullivan. Just answer the question. I have a bunch 
of questions.
    Mr. Pizarchik. I am attempting to answer that. Yes, the 
baseline data needs to be gathered everywhere. Just because we 
don't have baseline data does not necessarily mean that mining 
is not causing problems there. I have been across the country, 
and I have seen water pollution in Colorado----
    Senator Sullivan. I am sorry, you are not answering the 
questions. Do you have any studies citing Alaska coal in your 
rule? No. The answer is no.
    So let me go on to another question. My Governor had 
requested, again, he is an Independent, that you did 5-year 
rulemaking, thousands of pages, and you gave States 60 days to 
comment. Do you think that was fair?
    Mr. Pizarchik. Senator, they had over 100 days, over 3 and 
a half months, to review the documents and to provide comments, 
and we had extended the comment period as well.
    Senator Sullivan. No, initially you provided 60 days, isn't 
that right?
    Mr. Pizarchik. Initially we provided a public comment 
period of 60 days.
    Senator Sullivan. Do you think that is fair?
    Mr. Pizarchik. And we extended that. I believe----
    Senator Sullivan. Three thousand pages, 5 years in the 
making, 60 days to comment? Do you think that is fair?
    Mr. Pizarchik. I believe it was. Based on the quality of 
the comments that I have seen, it is clear that the States were 
able to read that.
    Senator Sullivan. Let me ask another. I am going to get a 
little more legal on you here. Section 101(f) of SMCRA, do you 
know what section 101(f) states?
    Mr. Pizarchik. Not off the top of my head, but I have it 
right here, too.
    Senator Sullivan. Let me read it to you. So section 101(f) 
of SMCRA states, ``The primary government responsibility for 
developing, authorizing, issuing, and enforcing regulations for 
surface mining and reclamation operations subject to this 
chapter shall rest with the States.'' You should be very 
familiar with that. SMCRA is a very interesting statute because 
a lot of statutes provide veto power of the Federal Government 
over State programs. But SMCRA specifically did not. The 
primacy of regulatory issuance and enforcement lies with--
according to section 101(f), lies with which entity, you or the 
States?
    Mr. Pizarchik. As you indicated, the Surface Mining Act is 
very complicated. It imposes upon me the obligation to 
establish the minimum Federal standards across the country.
    Senator Sullivan. Correct.
    Mr. Pizarchik. And under the section that you cited it does 
give States that authority. Now, you need to go a little bit 
further, because out of the 24 States that have primacy, about 
half of them have State laws that prohibit the State regulators 
from implementing rules that are more protective then the 
Federal minimum standards.
    Senator Sullivan. I just want to make it clear. For the 
record, SMCRA provides States--I just read it. 101(f), the 
primary government responsibility on developing, authorizing, 
issuing, and implementing regs belongs with the States. And yet 
you are making a rule that goes into essentially the ability to 
nullify, so let me get into that issue a little bit.
    Are you familiar with the letter that was sent to you by 
the State of Alaska on August 2nd, 2012 from the Department of 
Natural Resources? I was commissioner at the time. Let me 
describe it. It was OSM, who the State of Alaska had worked 
closely with for years, coming to the State of Alaska and 
saying there has been a permit issued by the State for 20 
years. We now want you to pull it. So the State of Alaska, when 
I was a commissioner, looked at the legal research, worked with 
West Virginia, and we politely told you to go pound sand, that 
you didn't have that authority. Do you think you have the 
authority to look at permits that have been issued by States 
and retroactively nullify them? Is there anything remotely in 
SMCRA that gives you that authority?
    Senator Inhofe. Senator Sullivan, you are over your time. 
We had given you----
    Senator Sullivan. Oh, I thought, Mr. Chairman, we were 
going to do 2 minutes after.
    Senator Inhofe. You have already used those.
    Senator Boxer. Time flies.
    Senator Sullivan. May I ask one final question, Mr. 
Chairman?
    The D.C. Circuit says----
    Senator Boxer. I object unless you give that extra time to 
my friend over there. Is that all right?
    Senator Sullivan. Oh, I would be glad to.
    Senator Boxer. Well, it is up to my Chairman.
    Senator Inhofe. OK, without objection.
    Senator Sullivan. I just want that nullification question 
is a really important one, and let me help you with it. The 
D.C. Circuit, talking about this issue in a 1981 decision, said 
administrative and judicial appeals of permit decisions are 
matters of State jurisdiction in which the Secretary of 
Interior plays no role.
    Your rule provides for the ability for the Federal 
Government to nullify State permitting decisions, and that has 
been clearly ruled by the courts and in the law that say you 
don't have that power. Can you just address that issue, 
nullification?
    Mr. Pizarchik. Thank you, Senator. If you look at the 
statute as a whole, what it provides is that if States want to 
be the primary regulatory authority, they do so subject to the 
oversight of Office of Surface Mining, Reclamation and 
Enforcement. That includes everything that they do under the 
law. And there is plenty of case law out there that upholds our 
ability to look at performance standards after the fact, 
whether a State regulatory authority made a mistake. And if you 
look at that statutory provision about that permit you are 
talking about, the law says that if the mining company fails to 
activate the mining within 3 years, their permit shall 
terminate.
    Senator Inhofe. All right. Let me just go ahead and 
interrupt this. Confession is good for the soul, Senator Boxer, 
and I confess I goofed. One of the reasons I wanted to do this, 
Senator Sullivan has an interesting background. It is not just 
that he was attorney general, but he was also commissioner of 
natural resources, and I knew that he was going to take longer. 
So I apologize to the other members.
    What we are going to do is have a second round, and those 
individuals who are just taking 5 minutes now can take an 
additional 3 minutes if they want to stay.
    Senator Boxer. Good. But my understanding is he----
    Senator Inhofe. Oh, yes, yes. Don't feel obligated, 
however, Senator Markey, to necessarily do----
    [Laughter.]
    Senator Boxer. Senator, feel obligated.
    Senator Inhofe. Senator Markey.
    Senator Markey. Thank you, Mr. Chairman, very much.
    The principal reason why we are here is mountaintop removal 
mining, and it is one of the single most environmentally 
destructive practices on Earth. The streams in the Appalachian 
region are being buried at an estimated rate of 120 miles per 
year, and the regulations governing this harmful mining 
practice are more than 30 years old.
    But more than destroying the health of the environment, 
this mining practice is destroying the health of the residents 
in local communities. There are mountains of evidence that 
mountaintop removal mining is significantly harming the health 
of the residents in these areas, and it is well past time for 
the Interior Department to update these regulations to ensure 
that we can protect the health of local communities, our 
environment, and our climate, and I am pleased and proud that 
the Interior Department is engaged in the process of issuing 
strong new rules that will help protect streams and the people 
and their health in the communities that surround them from 
mountaintop mining.
    So, Director Pizarchik, the Surface Mining Control and 
Reclamation Act of 1997, which I will now refer to as SMCRA 
just so anyone who is listening knows what we are talking 
about, lays out a number of purposes of the Act aimed at 
lessening the impacts of mining on the environment. 
Specifically, it is intended to establish ``a nationwide 
program to protect society and the environment from the adverse 
effects of surface coal mining operations and to assure that 
surface coal mining operations are so conducted as to protect 
the environment.''
    Isn't the Interior Department Stream Protection Rule 
necessary to fulfill the Department's statutory obligations 
under the law?
    Mr. Pizarchik. Absolutely, Senator.
    Senator Markey. So it doesn't go beyond your authority, but 
in fact it is an exercise of your authority and your 
responsibility to protect the environment and the health of 
those who live near these streams, is that correct?
    Mr. Pizarchik. Yes, Senator.
    Senator Markey. If you did not in fact take these actions, 
given what we now know 30 years later, you would not actually 
be fulfilling your responsibilities in the job which you have 
right now, is that correct?
    Mr. Pizarchik. Yes, sir.
    Senator Markey. So would the Department's proposed Stream 
Protection Rule protect the environment and local communities 
by reducing the number of streams that are buried or adversely 
affected?
    Mr. Pizarchik. Yes, sir, that was the expected outcome, and 
we expected there would be several thousand miles of streams 
that will have been protected.
    Senator Markey. That will be protected. And as a result of 
your protection of them, it will reduce the amount of toxic 
pollution which will go into the streams, that otherwise would 
be in the streams, that could have adverse impacts on human 
beings, is that correct?
    Mr. Pizarchik. Yes, Senator.
    Senator Markey. And you consider that to be your 
responsibility, to protect against deadly toxic materials going 
into streams, going into rivers in America?
    Mr. Pizarchik. Not only do I believe that, but that is 
specifically set forth a number of times in SMCRA.
    Senator Markey. So that is why it is hard to understand why 
people would object to this. I mean, we just learned the 
lessons once again in Flint, Michigan. But going back all the 
way to the Cuyahoga River in Cleveland, we see what happens 
when there is a callous indifference to using river streams as 
just dumping grounds, toilets, where arsenic, other dangerous 
materials are just poured into these bodies of water. 
Ultimately, it comes back to haunt, to hurt the health of 
families.
    And we can see in the pictures night after night of how 
horrified ordinary families are in Flint, Michigan, but we know 
that is not the only place in America where there is a danger 
from lead in pipes. This is just one example. But the faces of 
the people in that community are saying pretty much we thought 
the Government was protecting us. We wouldn't believe that 
water could come out of faucets that could harm our children. 
We wouldn't believe anyone would allow the water that our 
children are exposed to could have these dangerous materials in 
them. And you could almost see them saying we trusted you; we 
wouldn't think that you would allow something so dangerous to 
occur without the protections being put in place.
    So there have been many studies that have been done 
documenting the adverse health impacts associated with living 
in areas affected by mountaintop removal mining operations. Did 
your Department take into account the health impacts associated 
with this type of mining in developing your new rule?
    Mr. Pizarchik. Senator, as part of our process, we looked 
at all the science that we could get our hands on as far as 
what the impacts of coal mining were in order to factor that 
into what we were proposing.
    Senator Markey. And what was the conclusion which you 
reached?
    Mr. Pizarchik. We have concluded, based on the developments 
in science, that we are continuing to have streams that are 
adversely impacted, water that is adversely impacted by coal 
mining, both groundwater and surface water, and that we need to 
up our game, to modernize our rules to better protect surface 
and groundwaters from the adverse effects of mining.
    Senator Markey. Thank you. So the streams in the 
Appalachian region are the headwaters for the drinking water 
supply for tens of millions of Americans, so it is not just 
some isolated issue that we are talking about. The impact is on 
tens of millions of people and their drinking water, and if 
arsenic or selenium is going into that water, then there is a 
danger to children, not just in that one location, but as it 
flows down the water bodies that are near those headwaters.
    So that is your essential concern, to protect the health 
and well-being of families in our country?
    Mr. Pizarchik. Yes, Senator. And just to put it in 
perspective, the headwaters of the Potomac River start in 
Appalachia.
    Senator Markey. Well, I think the water that we are 
drinking right now should be checked immediately so that we 
understand what the impact should be on those of us who are 
here in this room today. It has to be an ongoing quest to 
ensure that we have the highest quality drinking water. Flint, 
Michigan, has just been the poster child for what can happen if 
you forget the children in our country.
    Thank you for all your good work.
    Mr. Pizarchik. Thank you, Senator.
    Senator Inhofe. Senator Capito.
    Senator Capito. Thank you, Mr. Chairman.
    And thank you, Mr. Pizarchik, for your service and for 
working hard. I want to begin my statement by saying I live in 
Appalachia, that place everybody is talking about. My home is 5 
miles from an underground mine and a surface mine, maybe 10 
miles. So I am in and around people and folks all the time; 
they are my neighbors, friends, so I have a deep passion for 
what we are talking about today.
    I have been very frustrated with the Administration because 
we have been fighting for affordable, reliable energy that does 
all the above. We have pushed back on the Clean Power Plan 
because of what it does to the economics of certain regions, 
picking winners and losers. And now we have the Stream 
Protection Rule, and I would like to just talk about some of 
the economic effects.
    You got into this just very minimally in a response to a 
question, and I would like to preface, too, that living there, 
being there, clean water, clean air are as important to us as 
it is anybody else. So I have a chart here that says that the 
new Stream Protection Rule in Appalachia, which we have been 
referring to quite a bit, is up to about 64,000, $15 million in 
lost revenues, and many mining jobs lost and at risk. Also, the 
production of coal will go down significantly, as it has been 
doing.
    Our State is now $300 million underwater, State of West 
Virginia $300 million underwater in our State budget. We have 
had to cut our education budget because our tax revenues, 
principally from coal, have gone down so much. This is the 
second hearing that we have had, because I am also on the 
Energy Committee as well, where we had testimony much the same 
that we have today.
    So I just feel like this rule is just so broad and 
overreaching, and we have talked about it minimally here, too, 
reaching into the Clean Water Act and the Endangered Species 
Act. So one question I would like to say is we have talked a 
lot about the States' responsibility here and what kind of 
input the States had. We had testimony over in the Energy 
Committee that it was rebuffed by OSM, and a lot of States 
signed on originally to be part of the partnerships to develop 
a rule that made sense for States and for the Federal--but then 
my understanding is that many States pulled out of that 
partnership--Indiana, Kentucky, Montana, New Mexico, Utah, 
Alabama, West Virginia, and Texas.
    And then in response to Senator Sullivan's question you 
said that they were given 100 days, I think you said, to 
respond, 60 days and then an extension after that, on a 3,000-
page rule. So I guess I would ask you why, in your opinion, did 
the States pull out of this cooperative arrangement?
    Mr. Pizarchik. Senator, thank you for the question. I too 
grew up in Appalachia, in coal country.
    Senator Capito. Right, Pennsylvania.
    Mr. Pizarchik. And I have relatives and friends, people who 
worked in the coal mines. Some of my classmates from school 
worked in the coal mines. I am very sympathetic to people who 
are losing their jobs, and I know how important coal jobs and 
coal can be in certain parts of the community, and I have 
traveled across the country, been in your States numerous 
times. I have seen that.
    As far as the States' motivation, I wouldn't speculate on 
that.
    Senator Capito. Well, wouldn't you see, if you have the 
vast majority of States that are cooperating, who deal with 
this every day, pulling out from any kind of cooperative 
agreement certainly should have been a signal to you that this 
was highly contentious and I think would have been, at least in 
my case, an impetus to rethink the direction that you were 
going.
    Let me ask you this. What is the impact of this rule? We 
heard about mountaintop. What is the impact of this rule, in 
your opinion, on underground mines? There is a great concern 
there this is going to eliminate a lot of production in 
underground mines, which it will. We have already lost, just 
last week, 2,000 jobs in the coal mine industry alone, most of 
these underground mines. Can you answer that question?
    Mr. Pizarchik. I could, yes, and that is an important point 
to clarify because there is a misperception out there that this 
rule would prohibit all long wall underground mining. That is 
not the case. The term that we are defining, material damage to 
the hydrologic balance outside the permit area, includes those 
areas above underground mines, and what we are proposing is to 
give teeth and effect to that part of the law so that 
underground mining that would destroy those streams on the 
surface will not allow those streams to be destroyed. So they 
can do different types of underground mining.
    And the statute has a provision in it that also provides--
it is my obligation that where reclamation cannot be 
successfully done, that permits should not be issued for that. 
From the analysis that our outside experts looked at, most of 
the underground mining will be able to continue to go forward 
on that. There are going to be some areas where you just can't 
undermine because you are going to destroy the water resources, 
the streams on the surface. That has always been the law. That 
has been my experience in Pennsylvania. Some areas can be 
mined; some areas cannot.
    So there will be some impact on it, but it will not be a 
major impact. And as the rules on classifying impacts that we 
follow under this, I believe collectively the impacts on the 
industry are going to be considered small. I think it is less 
than 0.2 percent of production, and it is a fraction of the 
total annual revenues of the industry.
    Senator Capito. Let me ask you another question on the 
balance. This is the big question that we get in this 
Committee, and I think the Chairman and I join together to try 
to talk a lot about the economic impacts of rulemaking in all 
different areas. It is not so much the goal that any of us 
would be rejecting. Who would be rejecting a goal of clean 
water and clean air? Absolutely not. But sometimes it is just 
not that simple, as you know; you are in the business of trying 
to do that.
    What kind of considerations in this rule, in this specific 
rule, were made in terms of looking at the economic impacts? We 
can talk about creation of pockets of poverty in my State that 
are growing, the pessimism, the desolate attitude of my 
Government is doing this to me, and nobody cares. So what kind 
of balance do you look for here, and do you look for that?
    Mr. Pizarchik. I am very concerned about those people who 
lose their jobs and things of that nature, and yes, we do a 
balance. The statute requires me to balance the interests of 
protecting society, protecting the water resources while 
ensuring there is sufficient coal supply to meet the country's 
energy needs. As part of the NEPA process what we have done, we 
hired outside experts to do that type of analysis; not relying 
on my staff or my people, but other folks. And their analysis 
was peer reviewed pursuant to the procedures and processes 
established by the applicable rules.
    That information was used in assessing the potential 
impacts of changes that we were potentially considering.
    Senator Capito. I am at the end. Can I get that 
information, that NEPA review? Is that something that I could 
see, the economic impact statement that they provided for you?
    Mr. Pizarchik. That, I believe, is included in the draft 
Environmental Impact Statement and is publicly available. Yes, 
we can provide that. We have also prepared, in accordance with 
the rules, a regulatory impact analysis. We would be happy to 
provide that to you as well.
    Senator Capito. Thank you. Thank you.
    Senator Inhofe. Thank you, Senator Capito.
    Senator Cardin.
    Senator Cardin. Thank you, Mr. Chairman, and thank you for 
convening this hearing.
    And thank you very much for your attendance and your 
service, your public service. I would hope that all Members of 
Congress want clean air and clean water, but we are judged by 
our actions, not by our words, and each Congress has an 
opportunity to add to that, and certainly not to take away from 
the protections that we provide for clean air and clean water.
    Clean water is vital to our economy, and I think we all can 
acknowledge that. A child who has suffered from lead poisoning 
as a result of not having safe drinking water, that child will 
not reach his or her full potential, and it is tragic for the 
individual, and it is tragic for our economy. The number of 
premature deaths due to the quality of water, the number of 
missed days at work because of tending to public health issues, 
the number of missed days at school, the importance of industry 
having sources of clean water for their products, all that adds 
to the economy.
    And as we are all bragging about being in Appalachia, my 
State, of course, has in the western part of the Appalachia 
region, and I have enjoyed camping out with my children and 
skiing, and just enjoying one of the most beautiful places in 
our country. And yes, recreation use depends upon clean water 
and clean air, and that is a huge part of the growth of the 
economic opportunities in the Appalachia region. So all that 
cries out for you carrying out your responsibilities for clean 
water.
    Surface, underground, or mountaintop removal all have risks 
involved in our environment, and we need to deal with that. So, 
yes, I also want clean water from our streams in the Chesapeake 
Bay, as many of those waters end up in the Chesapeake Bay of 
Maryland and this region.
    So my first question is it is difficult to repair the 
damage once it is done, and I would like you to comment about 
that. Mountaintop removal, we have seen major damages to 
streams. Once it is caused, where are the challenges in trying 
to clean up the results of the damage to our streams?
    Mr. Pizarchik. Once you have caused the pollution, 
typically, it is a long-term pollution problem, you cannot 
eliminate it, and it often costs way more money to treat that 
water than to prevent the pollution from occurring in the first 
place. We are aware of some studies that were done where in the 
mountaintop mining they filled in the valleys, and some of 
these valley fills are decades old and they are still 
discharging high levels of total dissolved solids. The only way 
to take the total dissolved solids out is a reverse osmosis 
treatment system, the one of which I am aware of was from 
underground mines in West Virginia. It cost over $200 million 
to build and $9 million to $18 million a year to operate. If 
you are mining coal, you can't build too many of those and 
continue to stay in business.
    Selenium gets elevated on a lot of streams. To build a 
bioreactors for those seleniums costs a couple of million 
dollars, it is my understanding, in order to take out, and then 
you have to constantly maintain it. It is a whole lot better to 
prevent the problem.
    The example I can give most effective is from my experience 
in Pennsylvania with acid mine drainage. Until the State was 
able to predict so you could prevent it, a lot of companies 
went out of business because they couldn't afford to treat the 
pollution they created.
    Senator Cardin. So in the regulatory process, what are you 
doing to preserve and protect buffer zone protections from 
mining operations?
    Mr. Pizarchik. The existing 100-foot provision is still 
going to be in the rule. By creating the definition for 
material damage to the hydrologic balance, that creates a 
standard so that people can know what they are measured against 
by creating the baseline of the stream data to collect that. 
That helps inform the process so we know whether mining is 
going to occur.
    And while the Surface Mining Act allows people to mine 
through streams, what we are creating is a standard in there 
that they need to gather that baseline on the water quality, 
the quantity, and the aquatic community, the critters living in 
that stream, to be able to make a determination can they 
restore that, and then proposing in our rule that they restore 
the ecological and geologic function and the hydrologic 
function of that stream. Let them make the business decision 
can they do that.
    Some streams can be rebuilt and repaired; some cannot. And 
if you cannot do it, the law says the permit should not be 
issued for it.
    Senator Cardin. In the 111th Congress, Senator Alexander 
and I introduced the Appalachia Restoration Act. It was an 
effort to get a real handle on mountaintop removal, recognizing 
the devastating impact that mountaintop removal coal operations 
have on our environment. Not only destroyed streams; it 
destroys landscape. It destroys forever. That legislation was 
not enacted, but as a result of that legislation the 
Administration took certain actions to control mountaintop 
removal coal operations.
    Could you explain what actions you will be taking in this 
regulation, or how it will affect mountaintop removal? There 
are many people who would like to see this practice totally 
eliminated, including myself. I understand that you are not 
taking that tack. Could you just explain to us where we are on 
mountaintop removal?
    Mr. Pizarchik. Yes, Senator. Thank you for that question. 
The statute allows mountaintop removal mining, and it sets 
certain provisions for when it can be conducted. We are 
proposing to change our rules to incorporate those statutory 
provisions into that provision as well, also requiring that the 
excess soil be put back and that the land be restored to 
approximate original contour, as mentioned, that means put the 
mountain back when it is done, and changing the bonding 
requirements so that if the operator has an approved post-
mining land use, which the law allows, but they don't implement 
it, then there is enough bond there to put the mountain back.
    As well as the practice of it, by protecting those 
downstreams and finding out what kind of resources and stuff 
are living in the streams, having that the baseline to monitor, 
to make sure that if they are creating those valley fields, 
they are not creating pollution, because we need to know what 
is in the stream because, frankly, I know a lot of people don't 
want to hear it, but the days of line mining are over. We need 
to put an end to that. We need to get the baseline data, figure 
out what is there, measure the operation standards against that 
to make sure that we are not creating more Flint Rivers.
    Senator Cardin. Well, I appreciate that, and obviously 
there are challenges in our political system. We understand 
that. But the American people understand the importance of the 
work that you are doing, and we thank you very much for your 
service.
    Senator Inhofe. Thank you, Senator Cardin.
    Senator Barrasso, for 7 minutes.
    Senator Barrasso. Thank you very much, Mr. Chairman.
    Mr. Pizarchik, I would like to turn to the National 
Environmental Policy Act, NEPA. NEPA requires every Federal 
agency to assess the environmental impacts that would result 
from the agency's actions, actions like approving a permit, 
issuing a new regulation. Now, a Federal agency assesses 
environmental impacts in what is known as the Environmental 
Impact Statement, the EIS. Prior to issuing an EIS, the Federal 
agency is required, required to consult with other agencies, 
including State agencies, State agencies which have special 
expertise with respect to the action under consideration. The 
Federal agency preparing the EIS is called the lead agency, and 
then the other agencies are called the cooperating agencies. 
Under NEPA, the lead agency is not only required to consult 
with cooperating agencies; it must ensure that the 
participation of the cooperating agencies is ``meaningful.''
    So when your office began developing the so-called Stream 
Protection Rule, it identified 10 State agencies as cooperating 
agencies. Your office signed agreements with these agencies, 
these 10 State agencies, in which your office pledged to 
provide them with, No. 1, copies of key or relevant documents 
underlying the EIS, signed a document pledging to provide them 
with administrative drafts of the EIS, and signed a document 
pledging to provide a reasonable time for review and comments. 
That is your agency, your office.
    Between then, January 2011, and the issuance of the 
proposed rule in July 2015, your office did none of this. For 4 
and a half years, your office shared neither the drafts of the 
EIS nor the documents related to the EIS. During this time, 
your office engaged in no meaningful consultation whatsoever 
with the State agencies. It even ignored the States' repeated 
requests for consultation.
    In 2015, eight States felt they had no other choice but to 
withdraw as cooperating agencies.
    Now, Mr. Pizarchik, you have been Director of the Office of 
Surface Mining since November 2009, before all this started, so 
why have you allowed your staff to make a mockery of its 
obligation under the National Environmental Policy Act, and 
where does the law allow your agency to go dark for 4 and a 
half years?
    Mr. Pizarchik. Thank you, Senator, for that question. The 
States have had a lot of input into this process, and we have 
requested those States who had provided notice that they were 
not going to continue to participate to reengage. I sent that 
out in October of that year. I also sent out a request to the 
Interstate Mining Compact Commission for them to reengage. They 
declined. I have not heard back from the States.
    Notwithstanding that, we have continued to reach out. We 
are continuing to work with the States. The State regulatory 
authorities that submitted comments, we have been meeting with 
them. We have had, I believe, about 18 meetings with them over 
the past several weeks, getting input from them on the proposed 
rule and the comments that the provided. We stand ready to meet 
with those. The Assistant Secretary has met with State folks as 
well. She has been to Alaska; she has a trip planned for North 
Dakota. We are continuing to provide outreach to the States.
    Senator Barrasso. Well, let me be clear. Your agency did 
not consult with the States for 4 and a half years, from 
January 2011 until the issuance of the rule of July 2015. You, 
sir, have made a mockery of this process. When, in February 
2011, Governor Butch Otter of Idaho, a Republican, Chairman of 
the Western Governors Association, as well as a Democrat, the 
Governor of Washington, wrote to the Secretary of the Interior 
about the rulemaking, they asked the Secretary to ensure that 
your agency engaged States in a meaningful and substantial way. 
The Secretary of the Interior, Secretary Salazar, wrote back 
and said all cooperating agencies will have an additional 
opportunity to review and comment on a preliminary draft EIS 
statement before it is published for public review and comment. 
Never happened. Never happened in 4 and a half years.
    Why did your agency fail to honor Secretary Salazar's 
specific commitment to cooperating State agencies?
    Mr. Pizarchik. Senator, the States have had meaningful 
input. We have received a lot of valuable comments from the 
State regulatory authorities that has helped us craft this 
proposed rule and informed the process on that, and we have 
made a number of changes. We have continued to reach out to 
them to meet, reengage on that, and that offer continues to be 
open with them, and we continue to reach out to the States to 
obtain State input on this rule as we go forward.
    Senator Barrasso. With all due respect, your answer just 
doesn't pass the smell test. Your agency did not consult with 
the States between January 2011 and the issuance of the rule, 4 
and a half years later. Secretary Salazar understood your 
agency's obligations under NEPA. You continue to give excuses, 
play this tired game of cat and mouse. It really is high time 
for your agency to at least own up to its failure to follow the 
National Environmental Protection Act and withdraw the rule 
immediately.
    Thank you, Mr. Chairman.
    [The referenced letter follows:]
    
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    Senator Inhofe. Thank you, Senator Barrasso.
    Senator Gillibrand.
    Senator Gillibrand. Thank you, Mr. Chairman.
    Do you agree that when evaluating the potential cost of a 
regulation such as the Stream Protection Rule, we should ensure 
that we are also factoring the costs of inaction, which could 
include the costs that families face when their quality of life 
is significantly impacted by polluted water, including the 
health impacts and diseases associated with poor water quality 
and the cost of restoring environmental damage if it is not 
prevented? And can you discuss how the Stream Protection Rule 
will address those types of costs and consequences?
    Mr. Pizarchik. Thank you for that question, Senator 
Gillibrand. There are rules out there that govern the type of 
factors that we look at and costs that are included in an 
impact analysis on it, and I think there are a lot of things 
that ought to be included that sometimes the existing rule 
process does not include, for instance like the avoided costs 
if an operator, as I mentioned earlier, if they create 
pollution, they have to perpetually treat that, and they are 
creating pollution. But that is not a cost factor that goes 
into the cost analysis, so in many ways we are actually 
protecting the industry from these potential costs.
    As far as costs on health and people, I don't know how to 
put a value on someone's life, put a value on whether their 
life has been shortened or something like that. I don't know 
how that gets taken into the thought process. I would much 
rather approach this to carry out my responsibilities to 
implement the law to prevent the pollution from occurring in 
the first place.
    Senator Gillibrand. How has the science used to evaluate 
the effect of mining operations on water quality evolved in the 
past 30 years since the Stream Buffer Zone Rule was 
implemented, and how has that influenced the need for this new 
rule?
    Mr. Pizarchik. We know a lot more today than we did 30 
years ago when these regulations were developed. For instance, 
we know that selenium can be mobilized from coal mining in 
certain areas, and it gets into the water, bioaccumulates in 
the aquatic community, causes deformities in those critters 
living in the stream, and can be bioaccumulating in unsafe 
levels for people who were to consume the fish for people that 
were living in that particular area.
    We also know that total dissolved solids--years ago we did 
not know it was a problem. Even as recently as maybe 10 or 15 
years ago we did not know total dissolved solids were having an 
adverse impact. In my experience in Pennsylvania, at Dunkard 
Creek, there was a huge fish kill, and it wasn't based on 
baseline data that West Virginia had collected for those coal 
mines or that my State had collected for those coal mines, it 
was because people were seeing large fish washing up on the 
shore and floating, and it was due to high levels of total 
dissolved solids.
    We have seen studies in the past few years downstream of 
valley fills that were built sometimes several years or a 
decade or more ago, and the only thing in that watershed is 
that valley fill. No other human activities, and yet the 
sensitive macro invertebrates, the bugs and communities that 
live in there, they are gone. And then if you look at the fish, 
there is less fish biomass in there, and it stands to reason 
because if there is nothing to eat, there aren't going to be 
any fish there. And we look at the control stream.
    So we know more about that type of science and how to see 
things that 30 years ago were not known to be a problem. What 
we are proposing in this rule is to deal with that science and 
also ask people to take a broader look, because I am sure there 
are probably things that are in the water today that we have 
not yet recognized as causing pollution problems, and we want 
to provide the States the flexibility to develop those 
standards at the State level, the mine level in order to 
protect the water and their people.
    Senator Gillibrand. Can you elaborate a little more further 
on why you believe this proposed Stream Protection Rule is 
necessary to fill regulatory gaps that can't be adequately 
filled by relying on the States and the Clean Water Act alone?
    Mr. Pizarchik. Yes. The Clean Water Act has had a lot of 
success over the years, but its primary point is measuring or 
setting effluent limits at the point where the pollution or the 
water is discharged from the mine into the stream, to meet 
those limits here. They don't look at a cumulative loading of 
that water until the stream becomes impaired, polluted. Well, 
from our standpoint, my law says that we have to maintain the 
water quality of that stream to protect those resources. It 
goes beyond the Clean Water Act.
    The Clean Water Act also only looks at the surface waters. 
The Surface Mining Act says I have to look at the surface water 
and the underground water, so protect all of that.
    Clean Water Act, with the Army Corps of Engineers for 
putting fill in the streams, where they look at the cumulative 
load, they look at the stream banks and the high water mark; 
they don't look at what happens up here or happens over here, 
the whole watershed. Under my law, we have to do that. We have 
to take a cumulative look at the entire watershed to see what 
is happening, as well as look at off the permit area.
    So the Clean Water Act has been a great success as far as 
it goes. Congress, I believe, recognized that and reserved that 
exclusively for EPA. We recognize that, and that is what we are 
staying away from. But we are trying to fill those areas where 
the Clean Water Act just does not come into play, like for 
groundwater.
    Senator Gillibrand. Thank you, Mr. Chairman.
    Senator Inhofe. Thank you, Senator Gillibrand.
    We are going to be dismissing this panel. Senator Boxer 
wants to submit something for the record.
    Senator Boxer. Yes. I want to thank you so much for your 
patience in the face of some anger here. Thank you.
    I ask unanimous consent to place in the record the 
statement of purpose of the Surface Mining Act, which is to 
establish a nationwide program to protect society and the 
environment from the adverse effects of surface coal mining 
operations. That is A. That is A. And then the second section 
that deals with your authorities is section 304, the duties, 
which require you to report on every State's status. And the 
last is the enforcement, which gives you a lot of strength here 
to go after those bad actors.
    So I am putting that in the record, and maybe people will 
come to their senses about what we are supposed to be doing 
here.
    Senator Inhofe. Without objection.
    [The referenced information follows:]
    
    
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    Senator Inhofe. And for the minute and 15 seconds that I 
have, I will cede that to Senator Capito.
    Senator Capito. Thank you, Mr. Chairman.
    I would again like to say that over the years, since 1977, 
there have been improvements of this rule that have resulted in 
cleaner water in and around the area that I live. I think the 
biggest flashpoint for me is just the lack of State cooperation 
on the ground, and the States that I mentioned that are the 
regulator. There is a concern about underground mining.
    And I would like to say anecdotally, I told Senator Cardin 
with his visual, I would have liked to have seen the after 
picture of that. You mentioned all the things that these types 
of mining operations go through on the reclamation process at 
the end. You have seen some of the end products, and when done 
right can be a benefit to some communities for airports, 
schools, shopping centers, in Appalachia where we have no flat 
land. So there are some. If it is done right, there can be some 
tremendous economic benefits to this.
    And just to put this in the record, in the State of West 
Virginia there is only active surface mining operation at 
present time.
    With that, I yield back.
    Senator Inhofe. Thank you, Senator Capito.
    Mr. Pizarchik. Could I comment a little on that?
    The Senator is absolutely right, when it is done right, it 
can make sense. And as far as the airports and things, there is 
specific provision for post-mining land uses that allows those 
to occur, and things are a lot better. What we also know, we 
have room to improve because there are things that are causing 
pollution that we didn't know about before.
    Senator Inhofe. Thank you, Mr. Pizarchik. We will dismiss 
you now as the first panel.
    Mr. Pizarchik. Thank you, Senator.
    Senator Inhofe. We would like to invite the second panel to 
come to the panel. That will be Mr. Lanny Erdos, the Chief of 
the Division of Mineral Resources Management, Ohio Department 
of Natural Resources; Clay Larkin, a partner in Dinsmore; and 
Matt Wasson, Director of Programs for Appalachian Voices.
    We will start with opening statements. We will recognize 
first Mr. Erdos.

STATEMENT OF LANNY ERDOS, CHIEF, DIVISION OF MINERAL RESOURCES 
        MANAGEMENT, OHIO DEPARTMENT OF NATURAL RESOURCES

    Mr. Erdos. Good afternoon, Mr. Chairman.
    Senator Inhofe. Good afternoon.
    Mr. Erdos. Good morning, Chairman Inhofe, Ranking Member 
Boxer, and members of the Committee. My name is Lanny Erdos, 
and I serve as Chief of the Ohio Department of Natural 
Resources, Division of Mineral Resources Management. I have 
worked for the Division for nearly 28 years, and I was 
appointed Chief in October 2011.
    I appreciate the opportunity to testify in regard to the 
Stream Protection Rule proposed by the U.S. Department of 
Interior's Office of Surface Mining Reclamation and 
Enforcement. Ohio has primacy over the administration of the 
Surface Mining Control and Reclamation Act, SMCRA, and 
consistently receives high marks on our annual evaluations from 
OSM for our program. Historically, Ohio DNR has had a positive 
working relationship with OSM. However, the process that OSM 
has set forth for the primacy States and the proposed Stream 
Protection Rule has been one-sided and not open to productive 
dialogue.
    In November 2009 OSM offered States the opportunity to 
participate as a cooperating agency in the development of the 
Environmental Impact Statement, EIS, for the proposed Stream 
Protection Rule. Ohio DNR agreed to participate only as a State 
commenter, not as a cooperating agency. That decision was made 
under the previous administration, prior to me being appointed 
as chief. Three chapters of the initial draft EIS, which 
totaled 1,045 pages, were shared with the participating States, 
with only 24 business days for review.
    Only once, in late 2010, did OSM arrange a conference call 
with the States to discuss chapter 2 of the draft EIS. This 
call served as more of a briefing to the States rather than an 
exchange of information or an opportunity to provide meaningful 
comments. Over the course of the past 4 years, following the 
final opportunity for State input in early 2011, OSM 
significantly revised the draft EIS.
    The cooperating agency States sent three letters to OSM 
expressing their concerns with the EIS process and their role 
as cooperators. The first, on November 23rd, 2010, expressed 
concerns about the quality, completeness, and accuracy of the 
draft EIS, the constrained timeframes for the submission of 
comments on the draft EIS chapters, the reconciliation process, 
and the need for additional comment on the revised chapters. 
OSM responded to this letter on January 24, 2011, and made a 
number of commitments regarding continued robust participation 
with the cooperating agency States in the EIS development 
process. Shortly thereafter, OSM terminated involvement on the 
draft EIS with the cooperating States without explanation.
    The cooperating agency States sent a second letter to OSM 
on July 3rd, 2013, requesting an opportunity to reengage in the 
EIS development process and reiterated the States' concern 
regarding how their comments would be used or referenced by OSM 
in the final draft EIS. OSM never responded to this letter.
    A third letter was sent to OSM on February 23rd, 2015, by 
the cooperating agency States specifically outlining the 
States' ongoing concerns about the EIS consultation process. No 
response was received.
    Based on experiences to date with OSM's development of the 
draft EIS for the Stream Protection Rule, OSM has not provided 
for meaningful participation with the cooperating or commenting 
agency States. The most recent effort by OSM to communicate 
with the cooperating agency States was made through a general 
briefing and overview of the draft EIS process in April 2015 
during an Interstate Mining Compact Commission meeting in 
Baltimore, Maryland, a meeting which I personally attended.
    The briefing consisted of a PowerPoint presentation by OSM 
providing overviews of the proposed rule with no opportunity 
for the cooperating agency States to ask questions. 
Unfortunately, the overview of the EIS was extremely limited, 
copies of the presentation were not made available, and the 
meeting did not allow the States an opportunity to contribute 
to the EIS. The cooperating agency States present at the 
meeting communicated to OSM personnel in attendance, including 
OSM Director Pizarchik, that the meeting was not considered a 
meaningful consultation but rather, a briefing.
    One provision in the proposed rule that is problematic 
requires written approval of Protection Enhancement Plans 
before a permit to mine coal can be issued. The proposed rule 
does not require establishment of timeframes by which the U.S. 
Fish and Wildlife Service must provide a complete evaluation of 
the proposed mining project to allow the State to move forward 
and/or for the advancement of the permitting process. Not 
allowing for conditional issuance and approval beyond 
established timeframes to complete necessary review is 
tantamount to providing the Federal Government veto power over 
a permit without any explanation whatsoever.
    Additionally, Ohio has identified several other critical 
areas where State expertise would have proven to be beneficial 
in the development of the proposed rule.
    Mr. Chairman, had States been given adequate opportunity to 
provide their technical expertise on the development of the 
draft EIS and proposed rule through a meaningful process, and 
OSM welcomed that input, the rule would have better accounted 
for the diversity in terrain, climate, biological, chemical, 
and other physical conditions in area subject to mining as 
anticipated by SMCRA. The rule would have also recognized the 
appropriate discretion vested by SMCRA to the primacy States 
that have been regulating coal mining operations in excess of 
30 years.
    Thank you again for the opportunity to present this 
testimony. I would be happy to address any questions you may 
have.
    [The prepared statement of Mr. Erdos follows:]
    
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    Senator Inhofe. Thank you, Mr. Erdos.
    Mr. Larkin.

              STATEMENT OF CLAY LARKIN, PARTNER, 
                       DINSMORE AND SHOHL

    Mr. Larkin. Thank you, Mr. Chairman, and thank you to the 
Committee.
    My name is Clay Larkin. I am a partner at Dinsmore and 
Shohl in Lexington, Kentucky, and also serve as a senior policy 
advisor to the Kentucky Coal Association, or the KCA, which 
represents companies that mine about 90 percent of the coal 
mined in Kentucky.
    The Stream Protection Rule is a rule in search of a 
problem. Although OSM has stated that the rule will help reduce 
offsite impacts from coal mining, by OSM's own estimates State 
regulators and coal miners are already doing an outstanding job 
of controlling these offsite impacts under existing 
regulations.
    According to OSM's own figures, over 90 percent of sites 
nationwide were free from offsite impacts last year, and in 
some States that figure was 100 percent. Despite this track 
record, the proposed rule would require States to implement 
duplicative permit review procedures that are already addressed 
by other State and Federal agencies at a time when States like 
Kentucky are already dealing with significant budget 
shortfalls.
    Although there are numerous problems with this rule, I want 
to focus today on the way in which it unlawfully conflicts with 
the Clean Water Act and the Endangered Species Act.
    OSM, simply put, cannot regulate issues within the scope of 
other Federal laws pursuant to section 702(a) of SMCRA, which 
specifically prevents them from regulating in conflict with 
other environmental protection statutes and specifically 
mentions both the Clean Water Act and NEPA, and courts have 
held that that list is not exhaustive and therefore precludes 
them from regulating in a way that conflicts with the 
Endangered Species Act.
    In this proposed Stream Protection Rule, OSM has failed to 
comply with section 702(a) of SMCRA on multiple fronts. First, 
the proposed rule unlawfully conflicts with the Clean Water 
Act. State Clean Water Act authorities already enforce Clean 
Water Act programs at the State level. Mining operators must 
navigate a burdensome and stringent permitting process under 
multiple sections of the Clean Water Act.
    Despite this existing process which fully addresses water 
quality issues related to mining, OSM seeks to appoint itself 
as the premier water quality regulator for all water quality 
issues related to surface and underground coal mining. This is 
both illegal and impractical.
    For example, OSM seeks to provide a nationwide, one size 
fits all definition of the term ``material damage to the 
hydrologic balance outside the permit area.'' This is 
inconsistent with SMCRA's State primary framework, which gives 
primary regulatory authority to the States, not a Federal 
agency. There is significant diversity of hydrology and 
geography in different mining States that requires a State by 
State, site by site approach to defining, evaluating, and 
preventing material damage to the hydrologic balance, and 
States have demonstrated that they are better positioned to 
address the unique water quality concerns within their borders. 
OSM has provided no meaningful justification for its one size 
fits all Federal approach.
    OSM also seeks to impose a completely duplicative water 
quality permitting process on coal miners and State regulators 
in which OSM will define parameters of concern reasonably 
foreseeable uses of streams and then establish its own 
numerical criteria for those parameters of concern. This 
directly conflicts with section 303 of the Clean Water Act, 
which already provides the authority for how States are to 
establish water quality standards within their borders and 
includes both designating uses of streams and establishing 
water quality criteria necessary to protect those uses.
    There is also section 402 of the Clean Water Act regarding 
effluent limitations which are imposed upon coal mining that 
OSM seeks to usurp in the rule as well.
    In addition to section 402, the proposed rule conflicts 
with the section 404 permitting process, which already does 
what OSM is proposing to do in this rule in terms of requiring 
mine operators to avoid impacts to streams where possible, and 
where those impacts cannot be avoided choosing the least 
environmentally damaging practicable alternative to those 
impacts and then mitigating whatever impacts they create. This 
existing and comprehensive regulatory program under section 404 
of the Clean Water Act does not contain any gaps that the State 
Mining Regulatory or OSM must fill. As such, OSM lacks 
authority to regulate in this area.
    With respect to the Endangered Species Act, the proposed 
rule raises two primary concerns: first, it extends the 
protection and enhancement plan and other Endangered Species 
Act review criteria within the SMCRA permitting process to 
cover both listed and non-listed species, giving OSM itself a 
power that Congress never saw fit to give it with respect to 
species that are only proposed for listing, and it gives the 
Federal Fish and Wildlife Service a veto authority over State 
issued mining permits, in contravention of SMCRA.
    [The prepared statement of Mr. Larkin follows:]
    
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    Senator Inhofe. Thank you.
    Mr. Wasson.

  STATEMENT OF MATT WASSON, DIRECTOR OF PROGRAMS, APPALACHIAN 
                             VOICES

    Mr. Wasson. Thank you, Chairman Inhofe, Ranking Member 
Boxer, Senator Capito, and other members of the Committee for 
the opportunity to speak today. I hope my testimony is going to 
make clear to this Committee that the people, the wildlife, and 
landscapes of Appalachia cannot afford any more delays in 
finalizing rules to rein in the damage caused by mountaintop 
removal coal mining.
    In preparing this testimony, I reviewed the statements that 
dozens of residents of coal mining communities provided to OSM 
last fall in support of a strong Stream Protection Rule. There 
are a lot of reasons local residents gave for supporting a 
strong rule, but five general themes emerged in comments of 
many coalfield residents across many different States.
    The first theme was simply the intolerable scale of damage 
to streams that has occurred under the existing rule. Almost 
every commenter had witnessed the pollution or obliteration of 
streams and springs where they used to swim, fish, and drink 
water. Gary Garrett of Clairfield, Tennessee, wrote to OSM: 
``It's gone! What once was a gathering spot for many locals is 
no longer and will never be again. The cold, crystal clear, 
mountain water that brought many folks with empty water jugs in 
hand to fill to a small mountain stream which once flowed down 
Old Standard Hill in the Clairfield area of Claiborne County, 
Tennessee, is now covered up.''
    That is just one example of many powerful statements from 
local residents.
    A second theme brought up by many commenters was their 
concern about threats to their health, specifically the high 
rates of cancer and other diseases that are strongly correlated 
with living near coal mines in Appalachia. Based on a growing 
body of scientific evidence, these are legitimate concerns. In 
the past decade, more than 20 different studies published in 
peer reviewed scientific journals and authored by more than 40 
different researchers have demonstrated pervasive impacts on 
the health, well-being, and life expectancy of people living 
near mountaintop removal and other types of coal mines in 
Appalachia.
    The result of all these health impacts is that life 
expectancy for both men and women actually declined between 
1997 and 2007 in Appalachian counties with a lot of surface 
mining. In 2007 life expectancy in the five Appalachian 
counties with the most surface mining was comparable to that in 
developing countries like Iran, Syria, El Salvador, and 
Vietnam.
    A third theme in the comments of local residents was the 
need to empower citizen involvement and enforcement of mining 
and clean water acts that, in their experience, State agencies 
have been unwilling or unable to enforce. Citizen enforcement 
has been the only backstop to protect Appalachian streams in 
States like Kentucky, where Clean Water Act violations have 
occurred at staggering levels under the noses of State 
regulators.
    Even more concerning in that State is the brazen pattern of 
falsifying records that coal companies employed to avoid 
accountability under the Clean Water Act. For years, fraud went 
undetected by State regulators until citizen enforcement 
actions shined a light on, in the words of Kentucky's largest 
newspaper, the State's ``failure to oversee a credible water 
monitoring program by the coal industry.''
    The fourth thing you might want to talk about was the need 
for strong environmental rules to support economic 
revitalization. Many commenters expressed their concern that 
continuing to sacrifice their region's natural capital to 
benefit coal companies' bottom lines is a poor long-term 
investment for their communities.
    Please make no mistake that we have grave concerns about 
OSM's approach to writing this rule. By abandoning the 1983 
stream buffer zone language, there is no longer a bright line 
rule that prohibits the filling of intermittent and perennial 
streams by waste and debris from surface mining operations. We 
acknowledge, however, that the old rule was never effectively 
enforced by States, which were all too willing to rubber stamp 
variances at the request of mining companies.
    By eliminating clear buffer zone language, however, OSM 
bears a heavy burden to ensure the other provisions of this 
rule will end the wholesale destruction of Appalachian streams 
and mountains that has torn communities and landscapes apart 
for generations and is what led to the multi-agency MOU and 
action plan that initiated this rulemaking in the first place.
    We believe that constructive participation in the 
rulemaking process, rather than intimidation and obstruction, 
is the appropriate route for community and environmental 
advocates for State regulatory agencies and for Congress to 
take as well.
    Thank you.
    [The prepared statement of Mr. Wasson follows:]
    
    
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    Senator Inhofe. Thank you, Mr. Wasson.
    In order to accommodate Senator Capito's schedule, I will 
exchange order with Senator Capito.
    Senator Capito.
    Senator Capito. Thank you, Mr. Chairman.
    Thank all of you for your presentations today.
    I would like to ask you, Mr. Erdos, you heavily emphasize 
in your statement the lack of cooperation and cooperative 
attitude that you felt OSM is moving forward with the rule. One 
of the things really got my attention when you said that there 
was no conditional approval, no timelines. To me, that just 
sounded like a major stall tactic. You can just keep moving on 
and on and never get a resolution. What are investors going to 
do? How many jobs are going to be lost in the process?
    Could you comment on that a little more fully? Would you 
think that would be an improvement to the rule? Was that a 
suggestion that Ohio made, in your opinion?
    Mr. Erdos. Thank you, Senator. I say that in the context 
relative to the Endangered Species Act and the way that we 
currently do business in the State of Ohio relative to 
Protection Enhancement Plans. The way the rule is written, the 
proposed rule, the interpretation could be that the U.S. Fish 
and Wildlife Service would essentially have to approve that PEP 
plan prior to the State issuing a permit. What we have done in 
Ohio is, if we have a 1,000-acre permit and the PEP may only be 
a half an acre, in many cases we issue those permits 
conditionally. That requires the operator not to affect those 
areas that are currently being reviewed by the U.S. Fish and 
Wildlife Service.
    The way the rule is written today, the interpretation could 
be that we would no longer be able to do that, so we would have 
to hold a permit up relative to issuance for that half-acre for 
this 1,000-acre area. That was my reference.
    Senator Capito. Right. So no flexibility there at all.
    Mr. Larkin, you mentioned in your testimony just briefly 
underground. I asked a question earlier--you might have been 
here in the earlier segment--about there is great concern about 
what impacts this could have on your ability to mine 
underground. What is your interpretation of this rule in terms 
of underground mining?
    Mr. Larkin. Thank you, Senator. The rule absolutely applies 
to both surface and underground mining.
    Senator Capito. Right.
    Mr. Larkin. There seems to be a bit of a misperception here 
today that this is all about mountaintop removal mining. If it 
had been that simple, there were things that OSM could have 
done much differently in this context; they could have simply 
gone forward with the 2008 rule if that was the intent. As I 
think the director candidly mentioned, long wall mining, I 
think he said you could continue to long wall mine as long as 
that wouldn't cause any substantive impacts to streams. I am 
not sure exactly, but there is grave concern that this would, 
as a practical matter, make it impossible to permit a long wall 
mine, which of course in your State is important and is 
important to the Nation's energy needs. Those are some of the 
most efficient mines, and there are some that are still running 
now.
    So as I read this proposed rule, it will have an impact on 
both surface and underground mining.
    Senator Capito. Thank you.
    Mr. Erdos, one thing I have been thinking about as I have 
been listening to the testimony, because we have had testimony 
in this Committee on waters of the U.S. under the Clean Water 
Act, and then we had the stream buffer.
    How do you keep track of all this as a regulator in your 
State? What kind of conflicts are going to exist? To me, I 
think that would create huge burdens on your State regulatory 
agencies. You have talked about Ohio being under budgetary 
constraint. Certainly the State of West Virginia, I mentioned, 
is over $300 million under our tax estimates for this year. 
What would your response to that be?
    Mr. Erdos. I believe there are significant challenges, and 
it will be very confusing. As of today, I have had my staff 
looking into that in regard to the Clean Water Act and who 
enforces what, and I think that is going to be a real 
challenge. In Ohio, the Ohio EPA enforces the Clean Water Act 
under their 402 national discharge pollution elimination system 
permits. Those are also part of our SMCRA permits. So it is a 
little more complicated in Ohio, but it a system that works for 
us.
    Under the proposed rule, it is not clear who has the 
authority. If SMCRA truly has the authority today, how do they 
interact with Ohio EPA, the current authority in regard to the 
Clean Water Act in Ohio? So I think there is much, much to 
discuss moving forward in regard to the Clean Water Act and how 
it is going to be enforced in Ohio, and what I have said and 
what we have said at Ohio DNR, we would like to be reengaged by 
OSM. Let's sit down and have a conversation relative to these 
very important issues.
    Senator Capito. And that is going to be my final comment. I 
think one of the bottom lines here with a lot of frustrations 
from many State regulators and certainly the States most 
heavily impacted is the lack of State input on the front end. 
The States who actually were cooperating removing themselves--
Kentucky being one and West Virginia being one, and now what 
kind of confidence would you have that OSM is going to come in 
and say, well, here is the delineation of this, and this is 
where we take care of this? And before you know it you are 
either under heavy fines or the balance of the economy, if 
there is one in this case, is simply non-existent.
    Thank you.
    Senator Inhofe. Thank you, Senator Capito.
    Senator Boxer.
    Senator Boxer. I always find it amazing the criticism that 
comes from that side. How do you know what to do? We have the 
Clean Water Act, we have the Safe Drinking Water Act, we have 
the Surface Mining Act. Oh, you know why we have those? Because 
the people that Mr. Wasson talks about are real, and the public 
support these acts by 90 percent.
    So why don't you who complain about this repeal these? You 
know why? They would love to. They can't because they would be 
thrown out of office, and the people would rise up, and there 
would be marches all the way to the Capitol from California. 
That is the reason.
    Now, let's get real here. We have an attorney here who 
represents coal companies, is that correct?
    Mr. Larkin. Yes.
    Senator Boxer. And one of your affiliations and 
memberships--you belong to the Kentucky Coal Association, sir? 
Are you affiliated with them?
    Mr. Larkin. As I said in my testimony, yes.
    Senator Boxer. So you are affiliated with them. How about 
the Lexington Coal Exchange, are you affiliated with them?
    Mr. Larkin. Sure. Yes.
    Senator Boxer. And how about the Energy and Mineral Law 
Foundation, are you affiliated with them?
    Mr. Larkin. Yes. That is a non-partisan----
    Senator Boxer. Well, whether they are not, I am just asking 
yes or no. OK.
    Mr. Larkin. Oh, yes. Yes.
    Senator Boxer. So my point is here we have an attorney paid 
big bucks to represent the polluting industries. We don't have 
an attorney here who represents the people, who represents the 
environment, and that is sort of a sad situation.
    Now, you have one witness who says this is a rule in search 
of a problem. Really? So do you discount, Mr. Larkin, the quote 
that Mr. Wasson made by just an ordinary human being who can no 
longer go to a mountain stream? Do you think that that 
individual has a right to say that? And do you agree or 
disagree with his comments, that he used to go over and fill a 
bottle with water, and now that is gone, no longer possible? Do 
you think that is a problem?
    Mr. Larkin. Senator, of course I have no basis to disagree 
with that comment; I don't know the gentleman who made it. I 
don't know any of the facts of that situation.
    Senator Boxer. Well, I understand you are an attorney. My 
point is you are saying that this is a rule in search of a 
problem, and yet there is a huge problem, and real people say 
it who don't get paid by industry. That is my point.
    Now, Mr. Erdos, you point out with great upset that you 
don't feel the States were respected. However, it is my 
understanding that the role that you did have, you were invited 
to advance notice of proposed rulemaking in 2009, was far in 
excess of what the Bush administration did in 2008. It is my 
understanding the States did not have a similar role, any 
comments when the Bush administration developed their 2008 
stream buffer rule. And this Administration has had a far more 
open process.
    Did you complain, or your predecessors complain, when Bush 
administration issued the rule, that you weren't consulted?
    Mr. Erdos. Thank you, Senator. It would be difficult for me 
to answer that question relative prior to 2008; I wasn't in my 
current position.
    Senator Boxer. Fair enough. Well, we will look it up, 
because the record does not show it. This was an unprecedented 
reach out, and all we hear are complaints about it. But the law 
is not going away.
    Now, Mr. Larkin, you say there are no gaps in existing law 
that need to be filled. If this is the case, why are there 
numerous peer reviewed studies documenting the significant 
water quality and public health impacts near coal mines?
    Mr. Larkin. Thank you for your question, Senator. First of 
all, those studies that were referenced are subject to 
significant dispute. The vast majority of them are authored by 
a single, I believe he is a psychologist at Indiana University, 
Michael----
    Senator Boxer. Well, let me cut you off. Let me cut you off 
for this reason.
    Mr. Larkin. Go ahead.
    Senator Boxer. We are running out of time, and you are 
wrong. How about there are 21 peer reviewed studies by 
different people? How about that I am going to put them in the 
record and these are the facts that were found out. I know you 
are paid by the coal companies, but don't tell me they are one 
person only, when there are 21 separate peer reviewed studies. 
And we will send this to you for your information so at least 
you can look them all over before you criticize them.
    Here's what they found out. People living near mountaintop 
mining have cancer rates of 14.4 percent, compared to 9.4 
percent for people elsewhere in Appalachia. Two, the rate of 
children born with birth defects is 42 percent higher in 
mountaintop removal mining areas. Fact. The public health costs 
of pollution from coal operations in Appalachia amounts to a 
staggering $75 billion a year.
    Twenty-one separate peer-reviewed studies.
    I ask unanimous consent to place this in the record.
    Senator Inhofe. Without objection.
    [The referenced information was not received at time of 
print.]
    Senator Boxer. My time is over, but I have to say bless 
your heart, you do a good job for the companies you represent. 
But that is not my job and is not the job of this U.S. Senate. 
It is to protect the health and safety of the people, while of 
course looking at the economics. And I have to say that the 
witness we had before who talked about this rule seems to 
understand that balance. Sir, you do not. You are not paid to, 
I get it.
    And I really do want to say, Mr. Wasson, thank you for your 
testimony.
    Senator Inhofe. Well, Mr. Larkin, I guess industry is bad, 
right? Who employs people out there?
    Mr. Larkin. Coal companies do, Senator.
    Senator Inhofe. Did you know I was down north of Poteau, 
Oklahoma, last Friday? There are one-half the number of 
employees there today than there were less than a year ago when 
I was down there. I think I said that in my opening statement.
    Do you care about that?
    Mr. Larkin. Absolutely, I do care about that, Senator, and 
that is why I am here. I am not being paid to be here today.
    Senator Inhofe. I understand.
    Mr. Larkin. I am here because I care about my State and 
what is going to happen to it and the economic devastation that 
rules like this can cause.
    Senator Inhofe. Yes. You know, there is one good thing that 
I have always supported as we have had our meetings in this 
Committee, and that is the Regulatory Impact Analysis that is 
required to be made. I think that is very reasonable, and yet a 
lot of liberals really object to the fact, well, why should we 
be concerned about jobs? Why should we be concerned about the 
cost to the American people for these various regulations? They 
even get offended.
    It is my understanding, and I want to ask you about this, 
that in this rule the OSM fired its initial contractors when 
their estimate--estimate, now we are talking about--under the 
Regulatory Impact Analysis, showed a substantial number of job 
losses. Do you believe that?
    Mr. Larkin. Yes, I am familiar with that, and I believe 
there has been testimony here in the Congress about how that 
operated, that basically OSM got numbers that they didn't like 
and that didn't support the rule, so they fired the contractor.
    Senator Inhofe. So they hired contractors. But they somehow 
perhaps have a little wink and nod understanding before they 
come on. That is what I think. And you see that they come out 
and talk about these people are going to lose their jobs. How 
dare you do that? Let's find somebody who maybe doesn't believe 
that. Do you think that happened?
    Mr. Larkin. Yes, I do. They had very knowledgeable mining 
consultants working on the project and came back with answers 
that OSM didn't want to hear, and they were fired.
    Senator Inhofe. Mr. Larkin, sometimes serving in the 
Senate, I have thought of it as being an advantage not to be a 
lawyer, because when I read the law I know what it says. Now, 
you heard me in my opening statement, maybe it wasn't in 
opening statement, it may have been initially in this meeting, 
read section 702. When you read that, which I won't read again 
because it takes too long, but that is so specific. Do you see 
there is any room for ambiguities in that law?
    Mr. Larkin. No, Senator, I don't. I think we all agree that 
it is pretty clear.
    Senator Inhofe. Mr. Erdos, if a State, like your State of 
Ohio, is authorized to issue permits for coal mining 
operations--now, I am talking about today, not with this rule, 
but the way it is today--who is in charge of making those 
decisions today?
    Mr. Erdos. Ultimately, I am, the chief.
    Senator Inhofe. And how would this change if this proposed 
rule would go into effect?
    Mr. Erdos. I would still have the authority to issue the 
permits, But with that being said, the way the rule is proposed 
in regard to the Endangered Species Act, it would make it 
challenging to issue a permit without the approval of the U.S. 
Fish and Wildlife Service.
    Senator Inhofe. So they would have veto?
    Mr. Erdos. Ultimately, U.S. Fish and Wildlife Service could 
have veto power, yes, over the permit.
    Senator Inhofe. That is not the way it operates today. So 
in my opening statement I made four different references as to 
what was going to be changed in terms of the Federal takeover, 
what I consider to be illegal Federal takeover. So as we look 
at the rule that is coming up, yes, we do make considerations, 
at least I do, in seeing what has happened actually in my 
State.
    When we have talked and we have heard the witnesses today, 
and we know that there is another Federal takeover in the 
wings, I have really good friends who are liberals.
    Senator Boxer. You are sitting next to one.
    Senator Inhofe. Well, I am not going to make the direct 
reference, because then I know what is going to happen.
    I have to say this, that my good friend here, we work 
together. It is Environment and Public Works. On the public 
works side we work together. We recognize that Government does 
have a role. In fact, there is an old, beat up document that 
nobody reads anymore, it is called the Constitution. Article 1, 
section 5, I think it is, says we are really supposed to be 
doing two things primarily around here: defending America, and 
then roads and bridges. We understand that.
    But a true in his heart or in her heart liberal really 
believes that Government does things better than people do, so 
we do have basic differences and philosophies. And I am going 
to do what I can as Chairman of this Committee and as someone 
who is desperately concerned about what is happening 
economically with overregulation that we are facing to try to 
keep this rule from becoming a reality.
    So thank you for being here. We will dismiss this panel and 
adjourn our meeting.
    Senator Boxer. Mr. Chairman, may I please, since you went 
over a minute, have 1 minute to close with my comments, with, 
of course, your being able to retort?
    Senator Inhofe. Of course.
    Senator Boxer. First, I want to thank the panel. This was 
important, and we see the conflict. And my colleague, who is a 
dear friend of mine, summed up my remarks in his way: industry 
is bad. That was his word, industry is bad, as if that is what 
I was saying.
    And I resent it. I come from the largest State in the 
Union. We are the eighth largest country in the world, if we 
were to be a country, in terms of our gross domestic product. 
We have more industry than anybody, than him, than him, her, 
everybody. And I have great relationships.
    Of course we want industry. Of course we want jobs. You 
have to have that. But industry, as individuals, must be 
responsible. And if they are causing problems, then we ought to 
work together, together.
    And that is why, Mr. Erdos, I question you, because we did 
open up the door to hear from you, and yes, you will have to 
collaborate with Fish and Wildlife before you issue the permit. 
It is not like you are in some kind of vacuum. You are a nice 
man; you are going to meet with a nice person at Fish and 
Wildlife. You are going to find out the best way to go so we 
don't poison our fish and we don't poison our children. A very 
important point.
    And Mr. Larkin, I would just like to finish. Mr. Larkin, 
you do your job well for the coal industry, and good for you. 
And I didn't mean to suggest that you are doing anything wrong. 
They deserve the best and the brightest. But so do we, and that 
is why we have Mr. Wasson here.
    So I am going to conclude by saying this. I suggest you all 
read the Surface Mining Act, because section 102 says, ``(a) 
establish a nationwide program to protect society and the 
environment from the adverse effects of surface coal mining 
operations, and wherever necessary, exercise the full reach of 
the Federal constitutional powers.'' Constitutional powers that 
my friend talked about. By the way, this is a Government of by 
and for the people. I don't view the Government as an enemy. 
``Exercise the full reach of the Federal constitutional powers 
to ensure the protection of the public interest through 
effective control of surface coal mining operations.'' Here it 
is. We put it in the record before.
    The point is, all right, what the Administration is doing 
is constitutional, is required under the law. It is to protect 
the very people that, sir, you spoke about. And again, this is 
a sharp division, and I guess the people will make their 
judgments every time they go to vote. You know, they vote for 
him in his State; they vote for me in my State.
    Senator Inhofe. All right, Senator Boxer.
    Senator Boxer. What a great country is all I can say.
    Senator Inhofe. I am not adjourning the meeting yet, but I 
will in 3 minutes. And I understand that if you haven't been 
through the experience that a lot of people in this room have 
been through, and I suggest the two of you have, it is a tough 
world out there.
    I had a career before this, and I was out doing things, I 
was building, developing. Some people think that is bad. I was 
expanding the tax base. I was doing what Americans are supposed 
to be doing. And the opposition that I had was always 
overregulation. Unless you have lived being overregulated, you 
don't understand how this can happen.
    So, anyway, we are here now to try to let people have more 
freedom to do the things they want to do, to hire people, to 
expand the tax base, and to have a more prosperous America.
    Now, a specific comment was made about you, Mr. Erdos, 
about they opened up everything to you. Would you like to 
respond to that? Was everything opened up to you?
    Mr. Erdos. I am sorry?
    Senator Inhofe. The comment was made that all this was 
opened up to you at the State level.
    Mr. Erdos. Oh, yes. Yes, thank you. Yes, it was, and we 
certainly appreciated that. We have said from the very 
beginning that we want to be engaged with OSM. We want to be 
engaged in this process, and initially we were.
    Our concern is over the 4-year period where that one-way 
communication developed. And again, we want to work with OSM, 
and we continue today to want to work with OSM. So it is not 
that we don't want to be part of the process. We want to be 
part of the process. We want to say to you, OSM, come back to 
the table. We want to sit down with you. We think we can help 
you. And that is essentially what we are saying at Ohio DNR, 
just talk to us.
    Senator Inhofe. And Mr. Larkin, a job description was 
commented about you, what your job is. Do you want to 
characterize what your job is and what your personal feelings 
are, how that interacts with whose payroll you are on?
    Mr. Larkin. I do represent coal companies, Senator, and I 
am proud to do it because of how important they are to the 
State where I live. But I am here today both in that role, as 
someone who has gained knowledge about what it is like to be 
overregulated and because through representing coal companies I 
have met those people who live in the coalfields, and a 
significant number of them are coal miners.
    And because coal miners live in the coalfields, they are 
not going to do anything that is going to put something that is 
toxic or dangerous into the water, and they are going to do 
everything they can to be as responsible to the areas where 
they live because they live there.
    So I think it is a misperception that there is this vast 
majority of people out there that somehow oppose mining in the 
areas where mining occurs, because a tremendous number of those 
people are in fact coal miners themselves. So it is for them 
that I am here today as much as anything.
    Senator Inhofe. We thank the panels, and we are adjourned.
    [Whereupon, at 11:39 a.m., the Committee was adjourned.]
    [Additional material submitted for the record follows:]
    
    
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