[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
STATUS OF OBAMA ADMINISTRATION'S REWRITE OF THE STREAM BUFFER ZONE
RULE AND COMPLIANCE WITH COMMITTEE SUBPOENAS
=======================================================================
OVERSIGHT HEARING
before the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
__________
Thursday, July 19, 2012
__________
Serial No. 112-120
__________
Printed for the use of the Committee on Natural Resources
Available via the World Wide Web: http://www.fdsys.gov
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Committee address: http://naturalresources.house.gov
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COMMITTEE ON NATURAL RESOURCES
DOC HASTINGS, WA, Chairman
EDWARD J. MARKEY, MA, Ranking Democratic Member
Don Young, AK Dale E. Kildee, MI
John J. Duncan, Jr., TN Peter A. DeFazio, OR
Louie Gohmert, TX Eni F.H. Faleomavaega, AS
Rob Bishop, UT Frank Pallone, Jr., NJ
Doug Lamborn, CO Grace F. Napolitano, CA
Robert J. Wittman, VA Rush D. Holt, NJ
Paul C. Broun, GA Raul M. Grijalva, AZ
John Fleming, LA Madeleine Z. Bordallo, GU
Mike Coffman, CO Jim Costa, CA
Tom McClintock, CA Dan Boren, OK
Glenn Thompson, PA Gregorio Kilili Camacho Sablan,
Jeff Denham, CA CNMI
Dan Benishek, MI Martin Heinrich, NM
David Rivera, FL Ben Ray Lujan, NM
Jeff Duncan, SC Betty Sutton, OH
Scott R. Tipton, CO Niki Tsongas, MA
Paul A. Gosar, AZ Pedro R. Pierluisi, PR
Raul R. Labrador, ID John Garamendi, CA
Kristi L. Noem, SD Colleen W. Hanabusa, HI
Steve Southerland II, FL Paul Tonko, NY
Bill Flores, TX Vacancy
Andy Harris, MD
Jeffrey M. Landry, LA
Jon Runyan, NJ
Bill Johnson, OH
Mark Amodei, NV
Todd Young, Chief of Staff
Lisa Pittman, Chief Counsel
Jeffrey Duncan, Democratic Staff Director
David Watkins, Democratic Chief Counsel
------
CONTENTS
----------
Page
Hearing held on Thursday, July 19, 2012.......................... 1
Statement of Members:
Hastings, Hon. Doc, a Representative in Congress from the
State of Washington........................................ 1
Prepared statement of.................................... 3
Markey, Hon. Edward J., a Representative in Congress from the
Commonwealth of Massachusetts.............................. 4
Prepared statement of.................................... 5
Statement of Witnesses:
Pizarchik, Hon. Joseph G., Director, Office of Surface Mining
Reclamation and Enforcement, U.S. Department of the
Interior................................................... 7
Prepared statement of.................................... 9
Response to questions submitted for the record........... 13
OVERSIGHT HEARING ON ``STATUS OF OBAMA ADMINISTRATION'S REWRITE OF THE
STREAM BUFFER ZONE RULE AND COMPLIANCE WITH COMMITTEE SUBPOENAS.''
----------
Thursday, July 19, 2012
U.S. House of Representatives
Committee on Natural Resources
Washington, D.C.
----------
The Committee met, pursuant to notice, at 10:06 a.m., in
Room 1324, Longworth House Office Building, Hon. Doc Hastings
[Chairman of the Committee] presiding.
Present: Representatives Hastings, Gohmert, Bishop,
Lamborn, Wittman, Broun, Coffman, McClintock, Thompson, Denham,
Benishek, Rivera, Duncan of South Carolina, Tipton, Gosar,
Noem, Southerland, Flores, Harris, Johnson, Amodei, Markey,
Kildee, Napolitano, Holt, Grijalva, Costa, and Hanabusa.
The Chairman. The Committee will come to order. The
Chairman notes the presence of a quorum, which is two Members,
and we have vastly exceeded that. And I appreciate the Members
being here.
The Committee on Natural Resources is meeting today to hear
testimony on an oversight hearing on the ``Status of Obama
Administration's Rewrite of the Stream Buffer Rule and
Compliance with Committee Subpoenas.''
Under Rule 4(f), opening statements are limited to the
Chairman and the Ranking Member of the Committee. However, I
ask unanimous consent that any Member that wishes to have their
statement in the record submit that statement before the end of
business today.
[No response.]
The Chairman. And, without objection, so ordered. I will
now recognize myself for five minutes for my opening statement.
STATEMENT OF THE HON. DOC HASTINGS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WASHINGTON
The Chairman. Today's hearing will focus on two specific
issues: one, the status of both the Interior Department's
rewrite of the Stream Buffer Zone Rule and the lawsuit
settlement agreement requiring a final rule to be in place by
last month; and, two, the failure of the Department to comply
with official Congressional subpoenas for documents.
Almost immediately after President Obama took office, his
Administration tossed aside the 2008 Stream Buffer Zone Rule,
which had taken over 5 years of thorough environmental and
scientific analysis and public comment to complete. The
Department then entered into a lawsuit settlement with
environmental groups to rewrite the rule by June 29, 2012. The
Administration has spent millions of taxpayer dollars working
to rewrite this rule, including hiring new contractors, only to
dismiss those same contractors once it was publically revealed
that the Administration's new proposed regulation could cost
7,000 jobs and cause economic harm to 22 States.
To say this entire rulemaking process has been unorthodox
would be a gross understatement.
The Department missed the June 29th deadline to produce the
final regulation they agreed upon in court. In fact, the
Department has yet to even release a draft regulation. For an
Administration that was so eager to throw out the 2008 rule and
rush the rewrite of a new one, it is bizarre that they are now
missing their own self-imposed key deadlines.
One has to seriously question if the Department's plans
have changed, now that the devastating job and economic impacts
have been made public. For example, audio tapes of meetings
between hired contractors and Department officials reveal the
Administration's efforts to massage and conceal the true
economic impacts of their proposed regulation. And no effort to
refute the contents of these recordings has been made public.
So, is the Obama Administration now waiting until after the
election, while the President will have more flexibility to
release its job-destroying regulation? What is the
Administration planning to impose after November that it
doesn't want the American people to know now?
The pattern of secrecy has emerged from this
Administration, an Administration that made bold promises of
openness and unprecedented transparency. The Department has
spent the last year-and-a-half avoiding questions from this
Committee about their rewrite, and has failed to meet a single
deadline for any document request. It is astonishing, the
lengths this Administration will go to withhold information
from the public.
While this Committee has tried to patiently work with the
Department throughout the course of this long-running
investigation, the Department's refusal and inability to
cooperate left us with no other choice but to issue two
subpoenas for specific documents and recordings. Yet the
Department has ignored these Congressional subpoenas the same
way that they have avoided other attempts to get answers to
basic questions.
Repeated and baseless excuses of vague confidentiality
interests and it being an ongoing rulemaking process frankly
don't stand the test of openness and transparency. These are
not valid excuses for defying Congressional subpoenas. I think
Director Pizarchik knows that, the Department knows it, and the
lawyers at the White House know it.
Today, this Committee expects answers--open, honest and
complete answers. It is inexcusable, the way in which the
Department has stonewalled this Committee's legitimate
oversight efforts. The Obama Administration has made no secret
of their desire to reduce or prohibit coal production. Their
war on coal is being carried out on multiple fronts, from the
Environmental Protection Agency to the Office of Surface Mining
(OSM), all using the same tactic of imposing onerous red tape
that will slowly cripple the industry, never mind the thousands
of American families and small businesses that depend on this
industry for their livelihood.
CNN had a story last week entitled, ``The War over Coal is
Personal.'' It featured an interview with a mother of five from
Ohio who spoke about her way of life being at stake, and she
said, ``If coal fell, which is one of the main sources of
employment around this area, everything would suffer. There
would be no funding for the schools, which are already
suffering. I can't see how destroying one industry benefits
anything.''
This is what is on the line with the Department's new coal
regulation. It is about jobs, American energy production,
energy prices and the economic livelihood of communities. If
this Administration has nothing to hide, then they should
comply with our subpoenas and fully answer all questions today
in this Committee.
[The prepared statement of Mr. Hastings follows:]
Statement of The Honorable Doc Hastings, Chairman,
Committee on Natural Resources
Today's hearing will focus on two specific issues: 1). The status
of both the Interior Department's rewrite of the Stream Buffer Zone
Rule and the lawsuit settlement agreement requiring a final rule to be
in place last month; and 2). The failure of the Department to comply
with official Congressional subpoenas for documents.
Almost immediately after President Obama took office, his
Administration tossed aside the 2008 Stream Buffer Zone Rule, which had
taken over five years of thorough environmental and scientific analysis
and public comment to complete.
The Department then entered into a lawsuit settlement with
environmental groups to rewrite the rule by June 29, 2012. The
Administration has spent millions of taxpayer dollars working to
rewrite this rule including hiring new contractors, only to dismiss
those same contractors once it was publically revealed that the
Administration's new proposed regulation could cost 7,000 jobs and
cause economic harm in 22 states.
To say this entire rulemaking process has been unorthodox would be
a gross understatement.
The Department missed the June 29th deadline to produce the final
regulation they agreed upon in court. In fact, the Department has yet
to even release a draft regulation. For an Administration that was so
eager to throw out the 2008 rule and rush the rewrite of a new one,
it's bizarre that they are now missing their own self-imposed key
deadlines.
One has to seriously question if the Department's plans have
changed now that the devastating job and economic impacts have been
made public. For example, audio tapes of meetings between hired
contractors and Department officials reveal the Administration's
efforts to massage and conceal the true economic impacts of their
proposed regulation. No effort to refute the contents of these
recordings has been made public.
Is the Obama Administration now waiting until after the election,
when the President will have more ``flexibility,'' to release its job-
destroying regulation? What is the Administration planning to impose
after November that it doesn't want the American people to know about
now?
A pattern of secrecy has emerged from this Administration--an
Administration that made bold promises of openness and unprecedented
transparency. The Department has spent the last year and a half
avoiding questions from this Committee about their rewrite and has
failed to meet a single deadline for any document request. It's
astonishing the lengths this Administration will go to withhold
information from the public.
While this Committee has tried to patiently work with the
Department throughout the course of this long-running investigation,
the Department's refusal and inability to cooperate left us with no
other choice but to issue two subpoenas for specific documents and
recordings. Yet the Department has ignored these Congressional
subpoenas the same way they have avoided other attempts to get answers
to basic questions.
Repeated and baseless excuses of vague confidentiality interests
and it being an ongoing rulemaking process frankly don't stand the test
of openness and transparency. These are not valid excuses for defying
Congressional subpoenas. Director Pizarchik knows it, the Department
knows it and all the lawyers in the White House know it.
Today, this Committee expects answers--open, honest and complete
answers. It's inexcusable the way in which the Department has
stonewalled this Committee's legitimate oversight efforts.
The Obama Administration has made no secret of their desire to
reduce or prohibit coal production. Their war on coal is being carried
out on multiple fronts--from the Environmental Protection Agency to the
Office of Surface Mining- all using the same tactic of imposing onerous
red tape that will slowly cripple the industry. Never mind the
thousands of American families and small businesses that depend on coal
for their livelihood.
CNN had a story this week entitled, ``The War over Coal is
Personal.'' It featured an interview with a mother of five from Ohio
who spoke about her way of life being at stake. She said, ``If coal
fell, which is one of the main sources of employment around this area,
everything would suffer. There'd be no funding for the schools, which
are already suffering. I can't see how destroying one industry benefits
anything.''
This is what's on the line with the Department's new coal
regulation. It's about jobs, American energy production, energy prices
and the economic livelihood of communities.
If the Obama Administration has nothing to hide, then they should
comply with our subpoenas and fully answer all questions today from
this Committee.
______
The Chairman. And with that, I will recognize the
distinguished Ranking Member from Massachusetts, Mr. Markey.
STATEMENT OF THE HON. EDWARD J. MARKEY, A REPRESENTATIVE IN
CONGRESS FROM THE COMMONWEALTH OF MASSACHUSETTS
Mr. Markey. Thank you, Mr. Chairman. The Majority is right
about one thing. There is a war on coal in America. But this
war is being waged by cheaper, cleaner sources of energy, not
the Obama Administration.
Six years ago coal produced one-half of America's
electricity. Today, 6 years later, it is down to a little over
one-third of electricity in America produced by coal. And it is
still falling. Electricity from natural gas, meanwhile, has
grown from 18 percent of U.S. power to 27 percent in that 6-
year period. Wind has gone from almost nothing to 3 percent of
American power, and it is growing rapidly. The free market is
beating coal. This is the American way. New replaces old.
Efficient replaces wasteful. Clean replaces dirty. High-tech
replaces low-tech. And our country benefits when this happens.
Coal companies know they can no longer compete here against
cheap natural gas, cheap wind, more efficient energy use, and
rapidly dropping solar prices. They have responded by boosting
exports to countries overseas, as the Committee's Democratic
staff documents in a new report I am releasing today. According
to this report, U.S. coal exports could reach 120 million tons
this year, nearly 12 percent of U.S. production, and a 200
percent increase since 2009.
The Appalachian Region produces high sulphur coal that U.S.
utilities have turned away from. So not surprisingly, much of
this exported coal comes from mountaintop removal mining, a
devastating practice that has blanketed communities with soot,
contaminated drinking water, and destroyed 2,000 miles of
streams. Some mountaintop mines are now exporting 90 percent of
the coal which they produce. While coal companies are happy to
ship our coal overseas to the highest foreign bidder, it is
surely the Appalachian people who bear the greatest cost for
this coal that America, in an ever smaller percentage, does not
use.
Consider the aptly named Twilight Mine in Boone County,
West Virginia, which, in 2011, raked in an estimated $40
million from exporting mountaintop coal. After mining began in
1997, nearby residents grew weary of breathing dust-laden air
that is linked to cancer and heart disease. Many opted to sell
their properties to the mine's owner, Massey Energy, and
communities were transformed into ghost towns. One former
resident explained to the New York Times, ``You could wash your
car today and tomorrow you could write your name on it in the
dust. It was just unpleasant to live in that town.''
Take a look at the photos on the monitors. Look at the
boarded-up homes. Look at the ravaged landscape. Continuing on
this path is a death sentence to Appalachia. The Department of
the Interior's Office of Surface Mining is now evaluating
options for a new stream protection rule that would protect
Appalachian communities from the consequences of mountaintop
removal mining.
But for the last year, the Committee Majority has carried
on a baseless, politically motivated investigation designed to
stop OSM from proceeding. The Majority has alleged that OSM
improperly ended its relationship with an under-performing
contractor that was hired to perform analysis for the
rulemaking. However, in more than 13,000 pages of documents
turned over by the Department of the Interior, there is only
evidence that OSM made the right decision. Even officials in
coal-mining States such as West Virginia and Kentucky harshly
criticize the contractors' work as inaccurate, incomplete, and
insufficient.
Recently, the Majority released audio recordings of
meetings between OSM and the contractor, which were obtained
from the contractor. The Majority has portrayed these
recordings as incendiary. But instead, they only confirm the
previously disclosed documents. OSM had good reason to end its
relationship with an incompetent contractor. And we have good
reason to end this investigation into OSM's rulemaking, and to
start investigating the human and environmental costs of
maintaining removal of mountaintops in a mining process that is
slowly, but surely, harming the citizens of Appalachia.
Mr. Chairman, I yield back the balance of my time.
[The prepared statement of Mr. Markey follows:]
Statement of The Honorable Edward J. Markey, Ranking Member,
Committee on Natural Resources
The Majority is right about one thing: There is a war on coal in
America. But this war is being waged by cheaper, cleaner sources of
energy, not the Obama Administration.
Six years ago, coal produced half of America's electricity. Today,
it's down to a little over a third, and still falling. Electricity from
natural gas, meanwhile, has grown from 18 percent of U.S. power to 27
percent. And wind has gone from almost nothing to producing 3 percent
of our power.
The free market is beating coal!
This is the American way. New replaces old, efficient replaces
wasteful, clean replaces dirty, high-tech replaces low-tech. And our
country benefits when this happens.
Coal companies know they can no longer compete here against cheap
natural gas, cheap wind, more efficient energy use, and rapidly
dropping solar prices. They have responded by boosting exports to
countries overseas, as the Committee's Democratic staff documents in a
new report I am releasing today. According to this report, U.S. coal
exports could reach 120 million tons this year--nearly 12 percent of
U.S. production and a 200 percent increase since 2009.
The Appalachian region produces high-sulfur coal that U.S.
utilities have turned away from. So not surprisingly, much of this
exported coal comes from mountaintop removal mining--a devastating
practice that has blanketed communities with soot, contaminated
drinking water, and destroyed 2,000 miles of streams. Some mountaintop
mines are now exporting 90 percent of the coal they produce.
While coal companies are happy to ship our coal overseas to the
highest foreign bidder, it's surely the Appalachian people who bear the
greatest cost for this coal that America no longer uses.
Consider the aptly named Twilight mine in Boone County, West
Virginia, which in 2011 raked in an estimated $40 million from
exporting mountaintop coal. After mining began in 1997, nearby
residents grew weary of breathing dust-laden air that is linked to
cancer and heart disease. Many opted to sell their properties to the
mine's owner, Massey Energy, and communities were transformed into
ghost towns.
One former resident explained to the New York Times, ``You could
wash your car today, and tomorrow you could write your name on it in
the dust . . . It was just unpleasant to live in that town. Period.''
Take a look at the photos on the monitors. Look at the boarded-up
homes. Look at the ravaged landscape. Continuing on this path is a
death sentence for Appalachia.
The Department of the Interior's Office of Surface Mining (OSM) is
now evaluating options for a new Stream Protection Rule that would
protect Appalachian communities from the consequences of mountaintop
removal mining. But for the last year, the Committee Majority has
carried on a baseless, politically-motivated investigation designed to
stop OSM from proceeding.
The Majority has alleged that OSM improperly ended its relationship
with an underperforming contractor that was hired to perform analysis
for the rulemaking. However, in more than 13,000 pages of documents
turned over by the Department of the Interior, there is only evidence
that OSM made the right decision. Even officials in coal mining states
such as West Virginia and Kentucky harshly criticized the contractor's
work as ``inaccurate,'' ``incomplete,'' and ``insufficient.''
Recently, the Majority released audio recordings of meetings
between OSM and the contractor, which were obtained from the
contractor. The Majority has portrayed these recordings as incendiary,
but instead they only confirm the previously disclosed documents: OSM
had good reason to end its relationship with an incompetent contractor.
And we have good reason to end this investigation into OSM's
rulemaking, and start investigating the human and environmental costs
of mountaintop removal mining.
______
The Chairman. The time of the gentleman has expired. The
gentleman from Ohio.
Mr. Johnson. Mr. Chairman, before we hear from our witness
today, I would like to point out that our Committee Rule 4(e)
allows the Chairman to swear in witnesses before the Committee
at your discretion. Now, this oath reinforces that the witness
is required to tell the truth, the whole truth, and nothing but
the truth in testimony before the National Resources Committee.
I understand that, unlike some former Chairman, this has not
been your practice, even in cases where the Committee has been
conducting investigative hearings like this one.
Now, I certainly understand and respect that this is your
prerogative. However, I also want to make sure that the witness
is aware of his obligations that even if he is not under oath,
he is still obligated to tell the truth, the whole truth, and
nothing but the truth. And under the False Statements
Accountability Act of 1996, which applies to unsworn testimony
and any responses to Member questions, the penalty for lying or
omitting a material fact is the same as that for Federal
perjury: 5 years in prison and up to $250,000 in fines.
Thank you, Mr. Chairman----
The Chairman. If the gentleman would yield, the gentleman
is correct. During this Congress, the practice of this
Committee has not been to administer the oath to witnesses
appearing before it, because I am sure that all of our
witnesses are aware that they simply cannot lie to Congress.
However, the False Statement Statute does apply to their
testimony, even if an oath is not administered. So I appreciate
the gentleman for pointing that out to the Committee today.
I want to welcome Director Pizarchik for being here. Thank
you very much. You have been here before, and so you recognize
how the lights work. When the green light goes on, you are
doing very well. And when the yellow light comes on, it means
you have 30 seconds left. And when the red light comes on, that
means the 5 minutes have been expired.
Now, your testimony, written testimony, is much longer than
5 minutes. So I would ask you to summarize your written
testimony. It will appear fully in the record, however.
So, with that, Mr. Pizarchik, welcome to the Committee
again, and you are recognized for 5 minutes.
STATEMENT OF THE HON. JOSEPH G. PIZARCHIK, DIRECTOR, OFFICE OF
SURFACE MINING RECLAMATION AND ENFORCEMENT, U.S. DEPARTMENT OF
THE INTERIOR
Mr. Pizarchik. Mr. Chairman and members of the Committee,
thank you for inviting me to testify on the efforts by the
Office of Surface Mining Reclamation and Enforcement to better
meet our statutory responsibility to allow for the responsible
development of our Nation's coal resources, while protecting
the environment on which our communities depend for their
health, safety, and way of life.
While the Administration strives to modernize our
regulations and achieve an appropriate balance that allows
responsible coal production and protects communities and the
environment, we also recognize the vital role coal plays in our
energy portfolio. We are committed to coal production and the
jobs it supports.
In December 2008, OSM published a final rule that modified
the circumstances under which mining can occur in or near
streams. This rule is known as the Stream Buffer Zone Rule. It
was challenged by nine organizations in two separate complaints
filed in the district court for alleged legal deficiencies.
Prior to my appointment and subsequent Senate confirmation as
OSM director in November 2009, the Administration had
identified significant matters in the 2008 rule which it failed
to address.
Significant advances in science and technology since the
adoption of the 1983 rule were not addressed in the 2008 rule.
Incorporating the most up-to-date science technology and
knowledge about the effects of coal mining is essential to
developing the best possible modern regulations. The 2008 rule
also failed to provide objective standards for important
regulatory decisions, such as the requirement to collect all
the information needed to establish a baseline to assess the
likelihood of impacts during and after mining, and to assure
proper reclamation.
Although the Surface Mining Control and Reclamation Act
requires that each coal mining operation be designed to prevent
material damage to the hydrologic balance outside the permit
area, the 2008 rule provided no definition, no criteria, and no
guidance that would assist the operators or interested parties
in determining whether the statutory requirement is being met,
despite clear evidence in the rulemaking record that some coal
mining operations had negative impacts on stream health, fish,
and wildlife.
In short, the 2008 rule failed to set forth basic rules of
the road for operators and others. To address these concerns in
2009, the Department developed and then published an advance
notice of proposed rulemaking on November 30th, soliciting
comments on rulemaking alternatives. The ANPR yielded a large
number of comments.
Based on the public input, we determined that a more
holistic approach to develop a stream protection rule proposal,
somewhat broader in scope than the 2008 rule, would be the most
effective way to proceed. As we proceed with the development of
a proposed rule, we are considering revisions that will provide
solid benchmarks for companies to meet. And that will be based
on the latest accepted science.
The draft Environmental Impact Statement that OSM is
developing to support a proposed rule that we are developing
will examine a range of alternatives. It will analyze the
significant environmental issues associated with any proposed
stream protection rule and its alternatives. It will evaluate
the economic impacts of each alternative. It will provide OSM
with critical information needed to inform its regulatory
decision-making. We are proceeding in accordance with the
National Environmental Policy Act, the Administrative
Procedures Act, and other applicable laws. Once a proposed rule
and draft EIS have been completed and published, we will ask
the public to comment.
I stress, however, that currently there is no pending
proposed rule. There is no completed Environmental Impact
Statement that evaluates a proposed rule and alternatives.
Consequently, there are no credible, meaningful job numbers.
While this rulemaking effort is underway, the 2008 rule remains
in effect on lands for which OSM is the regulatory authority.
For those States that have assumed primary responsibility for
coal mining, their programs continue, and they are still in
effect.
The Department recognizes the Committee's oversight role,
and is fully committed to working in good faith to accommodate
the Committee's legitimate oversight interests in this matter.
We hope the Committee will similarly engage in good faith with
the Department in a manner consistent with the Constitution's
separation of powers that recognizes the challenges and
important interests presented where Congressional oversight
involves ongoing executive branch deliberations.
The Department has been responsive to the Committee's
interests. The Department has provided the Committee with
meaningful accommodations, including over 13,500 pages of
documents responsive to the Committee's requests and its
subpoenas, has made multiple offers for in camera review of
additional documents, briefings, and testimony. We will
continue to work with the Committee as the Committee exercises
its oversight function.
Thank you for the opportunity to be here before the
Committee today to testify on the development of the stream
protection rulemaking. The Department recognizes Congressional
oversight is an important part of our system of government. We
stand ready to continue to work together to satisfy the
Committee's core oversight interests in this matter, while also
safeguarding the independence, integrity, and effectiveness of
the Department's ongoing efforts to develop a stream protection
rule.
I am available for questions.
[The prepared statement of Mr. Pizarchik follows:]
Statement of The Honorable Joseph G. Pizarchik, Director, Office of
Surface Mining Reclamation and Enforcement, U.S. Department of the
Interior
Mr. Chairman and Members of the Subcommittee, thank you for
inviting me to testify on efforts by the Office of Surface Mining
Reclamation and Enforcement (OSM) to better meet our statutory
responsibility to allow for responsible development of our nation's
coal resources while protecting the environment on which our
communities depend for their health, safety and way of life.
Introduction
Along with responsible oil and gas development and the growth of
clean, renewable energy, coal is an important component of our nation's
energy portfolio, and the responsible development of this important
resource is a key part of America's energy and economic security.
While the Administration is striving to improve our regulatory
framework and achieve an appropriate balance that allows responsible
coal production and protects communities and the environment, we also
recognize the vital role coal plays in our energy portfolio, and we are
committed to coal production and the jobs it supports. In the past
three years the Bureau of Land Management has issued federal coal
leases for more than 1.4 million acres, and nearly 1.4 billion tons of
coal has been produced from more than 300 federal coal leases.
Further underscoring the Administration's commitment to the goals
of energy security and job creation, federal coal leases on nearly a
half million acres of federal mineral estate generated over $780
million in royalties in Fiscal Year 2011. This coal is used to generate
electricity in at least 40 states, accounting for more than one-fifth
of all electricity generated across the country. Furthermore, the BLM
held four coal lease sales in 2011, generating $700 million in bonus
bids.
The Surface Mining Control and Reclamation Act of 1977 (SMCRA)
established the Office of Surface Mining Reclamation and Enforcement
for two basic purposes: First, to assure that the Nation's coal mines
operate in a manner that protects communities and the environment
during mining operations and restore the land to productive use
following mining; and second, to implement an Abandoned Mine Lands
(AML) program to address the hazards and environmental degradation
remaining from two centuries of unregulated mining. These tasks are
vital to public health and safety and the environmental and economic
well-being of the United States.
Stream Protection Rulemaking
In December 2008, during the final weeks of the previous
administration, OSM published a final rule that modified the
circumstances under which mining can occur in or near streams. The so-
called ``Stream Buffer Zone Rule'' was challenged by nine organizations
in two separate complaints filed in District Court for alleged legal
deficiencies, including the failure to properly conduct Endangered
Species Act Section 7 consultation.
While the litigation was pending, the Administration identified
significant matters the 2008 Rule failed to address. As a threshold
matter, there have been significant advances in science and technology
since the establishment of the 1983 rule which were not addressed in
the 2008 Rule. Incorporating the most up-to-date science, technology,
and knowledge about the effects of surface coal mining is essential to
developing maximally beneficial modern regulations. The 2008 Rule also
failed to provide objective standards for important regulatory
decisions, such as a requirement to collect all the information needed
to establish a baseline and to assess the likelihood of impacts during
and after mining or to assure proper reclamation. In addition, although
SMCRA requires that each surface coal mining operation be designed to
prevent ``material damage to the hydrologic balance,'' the 2008 Rule
provided no definition, criteria or guidance that would assist
operators or interested parties in determining whether the statutory
requirement is being met. Thus, in addition to the legal issues raised
by a number of parties in their lawsuits challenging the rule, the 2008
Rule failed to set forth basic ``rules of the road'' for operators and
interested third parties that would ensure that SMCRA's environmental
protection standards would be met, despite clear evidence in the
rulemaking record that some coal mining operations were having a
deleterious impact on stream health and fish and wildlife. Furthermore,
OSM's existing rules allow for the practice of dumping excess spoil
over the side of mountains, burying streams in valleys below. This
practice must be consistent with the requirement, in Section 515(b) of
SMCRA, that the mine operators transport and place all excess spoil
material resulting from coal surface mining and reclamation activities
in a controlled manner to allow for compaction, and in such a way to
assure mass stability and prevent mass movement. Without ensuring such
compaction, operators may cause impacts to additional valleys and
streams that need not be affected by these mining operations.
To address legal and policy concerns, the Department published an
Advance Notice of Proposed Rulemaking (ANPR) on November 30, 2009, at
74 Fed. Reg. 62664, soliciting comments on ten potential rulemaking
alternatives. The ANPR resulted in a large number of comments provided
to OSM which indicated that technological advances not addressed in the
2008 Rule may enable industry to do a better job of repairing any
damage by reclaiming the land and restoring natural resources for the
benefit of the communities that will remain long after the coal is
gone. We determined that development of a comprehensive stream
protection rule proposal, broader in scope than the 2008 rule, would be
the most effective way to proceed.
In March of 2010, the parties to the litigation over the Stream
Buffer Zone Rule ultimately entered a settlement agreement in which the
Department agreed, in line with the comments received on the ANPR, to
propose a new rule to replace the 2008 Rule. This settlement agreement
did not prescribe any specific provisions that must be included in
either the proposed or final rule.
While this ongoing rulemaking takes place, the 2008 rule remains in
effect on lands for which OSM is the regulatory authority (i.e., in
Tennessee and Washington, and on Indian lands). For those states that
have assumed primary responsibility--or ``primacy''--for their own
surface coal mining programs, the provisions approved in existing state
programs govern mining in and near streams. In all primacy states,
existing state programs are based upon the 1983 stream buffer zone
rule. While the 2008 rule has not yet been adopted by any primacy
state, the 2008 rule is the current federal regulation and has replaced
the 1983 rule in OSM's regulations.
The Committee has expressed great interest in the on-going,
administrative deliberations that the Office of Surface Mining is
engaged in as it develops a proposed regulatory approach for meeting
SMCRA's mandate that surface coal mining and reclamation operations be
conducted to minimize disturbances to fish, wildlife, and related
environmental values to the extent possible using the best technology
currently available. Central to this exercise is the on-going
preparation of a draft Environmental Impact Statement that will, in
accordance with the law, fully evaluate whatever proposal the Office of
Surface Mining releases for comment while, at the same time, it
identifies and evaluates a range of other potential alternatives.
When OSM has completed its deliberative process, both its proposed
rule, and the accompanying draft Environmental Impact Statement, will
be released and made available for public comment. At that time, the
Office of Surface Mining will welcome public and Congressional comment
on whatever proposal is advanced by OSM, and on the adequacy of the
draft environmental analysis that will accompany the proposed rule.
Currently, however, there is no pending proposed rule and there is no
completed environmental impact statement that evaluates a proposed rule
and alternatives. Rather, the deliberative process is ongoing.
OSM is continuing to review its rulemaking options, and is
continuing to ensure that the analysis included in the environmental
review that will accompany the proposed rule will be accurate and
comprehensive. Indeed, given concerns expressed about unreleased
elements of a prior environmental analysis, OSM is taking the extra
step of subjecting economic analysis of the potential impacts of a
variety of potential rulemaking approaches to robust peer review. The
Office of Surface Mining will welcome full scrutiny of the regulatory
approach that it ultimately determines is most appropriate, along with
the comprehensive analysis that will accompany the proposal.
The Office of Surface Mining is taking great care as it develops a
proposed approach for meeting SMCRA's statutory requirements that
operators protect and restore streams and lands that are impacted by
mining activities.
As we proceed with development of a proposed rule, we are
considering ways to improve key regulatory provisions. For example,
SMCRA requires that surface coal mining and reclamation operations be
conducted to minimize disturbances to fish, wildlife, and related
environmental values ``to the extent possible using the best technology
currently available.'' We are considering revisions that will provide
solid benchmarks for companies to meet, and that will be based on the
latest accepted scientific methods.
The ANPR published on November 30, 2009, contains a brief
description of additional possible rulemaking options. It includes, for
example, the fact that while SMCRA prohibits ``material damage to the
hydrologic balance outside the permit area,'' the phrase has never been
defined in OSM's regulations. We are considering ways to provide a
clear definition that can be applied uniformly across the country and
to ensure that the law is fully implemented to protect water resources
both within and beyond the area covered in the mining permit; to
protect drinking water; and to protect water quality and resources for
recreation, wildlife, and scenic values. Protection of our waterways is
a high priority as we continue to develop our important coal resources.
The ANPR also invited the public to identify additional provisions
in the regulations, such as the requirement for coal operators to
return mine sites to their approximate original contour, that the
bureau should consider revising. SMCRA requires that mine operators
reclaim mined areas to closely resemble their original pre-mining shape
and size. Decades of research and on-the-ground practice have
demonstrated that careful restoration of post-mining areas can limit,
and, in many cases, eliminate, harmful levels of pollution from mines
that often impact the public health of local communities and degrade
downstream aquatic resources. Uniform regulations that result in
carefully reclaimed areas will create opportunities for continued
productive use of the land and water after coal mining ends.
As previously noted, we have already received extensive input from
the public, states, and other Federal agencies on issues that we should
consider in drafting a proposed rule, including more than 32,000
comments in 2009 on the ANPR, and more than 20,000 received following
the public scoping meetings we held in 2010. We will consider these
comments, as well as the benefits and the costs, of the agency's
regulatory alternatives, as we move forward.
The draft Environmental Impact Statement (EIS) that OSM is
developing in support of a proposed rule will examine a range of
alternatives. In addition to analyzing the significant environmental
issues associated with any proposed Stream Protection Rule and its
alternatives, the EIS will evaluate the economic impacts of each
alternative, and will provide OSM with critical information needed to
inform its regulatory decision-making and the public. As we work toward
publication of a proposed rule and draft EIS, OSM will take the time
necessary to make informed regulatory decisions supported by the draft
EIS analysis, with ample opportunity for additional public input on
both the proposed rule and its draft EIS.
Once a proposed rule and draft EIS have been published, we will ask
interested stakeholders--from Congress, industry, environmental
organizations, or members of the public--to read and comment on the
documents, consistent with the National Environmental Policy Act, the
Administrative Procedure Act, and other applicable laws.
We look forward to receiving additional public review and comment
on a proposed rule and draft EIS once they are published.
Requests for Documents Related to the Stream Protection Rule
The Department is fully committed to continuing to work in good
faith to accommodate the Committee's legitimate oversight interests in
this matter. We have made significant accommodations and will continue
to do so. We hope that the Committee will similarly work in good faith
with the Department in a manner that recognizes the challenges and
important interests presented where congressional oversight involves
ongoing Executive Branch deliberations. The Constitution envisions, as
courts have long recognized, a process of accommodation between the
Legislative and Executive branches to resolve any conflicts that may
arise when each Branch's interests and prerogatives are in tension. As
Attorney General William French Smith wrote during the Reagan
Administration, ``The accommodation process is not, and must not be,
simply an exchange of concessions or a test of political strength. It
is the obligation of each branch to make a principled effort to
acknowledge, and if possible to meet, the legitimate needs of the other
Branch.'' 5 Op. O.L.C. 27, 31; 43 Op. Atty Gen. 327 (1981).
Accommodating the Needs of Coordinate Branches
The Department recognizes the important role of congressional
oversight, including oversight of the Department's activities. The
Department appreciates that oversight is an important underpinning of
the legislative process. Congressional committees, such as this one,
need to gather information about how statutes are applied and funds are
spent so that they can assess whether additional legislation is
necessary either to rectify practical problems in current law or to
address problems not covered by current law.
At the same time, as the Department has explained on many
occasions, attempts to conduct congressional oversight of an ongoing
rulemaking effort, while deliberations are ongoing, raise substantial
separation of powers concerns. By attempting to insert itself into an
ongoing Executive Branch deliberative process, the Committee threatens
to impede the ability of OSM to accomplish its statutory duties. The
Committee's requests for internal, deliberative, pre-decisional
communications concerning OSM's ongoing development of a rulemaking
proposal go to the heart of the relationship between the Legislative
and Executive Branches and the separation of powers in the
Constitution.
The Department is committed to complying with congressional
requests for information to the fullest extent consistent with the
constitutional and statutory obligations and interests of the Executive
Branch. And, in the case of the Stream Protection rulemaking, the
Department has provided the Committee with many meaningful
accommodations including over 13,500 pages of documents responsive to
the Committee's requests and subpoenas, multiple offers for in camera
review of additional documents (some of which the Committee has yet to
accept), briefings, and testimony before the Committee on several
occasions. The accommodation approach the Department has taken has been
consistent with oversight practices across administrations.
However, as the Department has previously explained, the Executive
Branch's well-established confidentiality interests regarding its
internal deliberations are heightened when requests for such
deliberative communications are made before the Executive Branch has
made a decision regarding the pending issue and disclosure would thus
reveal the Executive Branch's preliminary, non-final thinking on the
matter. Indeed, there is a substantial question regarding the extent to
which such requests pertain to an appropriate subject of congressional
oversight. As Attorney General William French Smith explained:
It is important to stress that congressional oversight of
Executive Branch actions is justifiable only as a means of
facilitating the legislative task of enacting, amending, or
repealing laws. When such ``oversight'' is used as a means of
participating directly in an ongoing process of decisionmaking
within the Executive Branch, it oversteps the bounds of the
proper legislative function. Restricted to its proper sphere,
the congressional oversight function can almost always be
conducted with reference to information concerning decisions
which the Executive Branch has already reached. . . .
Congressional demands, under the guise of oversight, for such
preliminary positions and deliberative statements raise at
least the possibility that the Congress has begun to go beyond
the legitimate oversight function and has impermissibly
intruded on the Executive Branch's function of executing the
law. At the same time, the interference with the President's
ability to execute the law is greatest while the decisionmaking
process is ongoing.
5 Op. O.L.C. 27, 43 Op. Atty Gen. 327.
Even aside from the question of oversight authority, the Committee
has not articulated to the Department why review of the proposed rule
and draft analysis after they are completed and made public is not
sufficient to address the Committee's concerns regarding the proposed
rule's scope and potential impacts. As noted above, the next step in
the process is not a final rule, but a proposed one--and after that
proposal is made public, Congress, states, regulated industry and the
rest of the American public will have a chance to provide feedback that
will inform the final rule.
In response to the Committee's multiple document requests and
subpoenas for documents pertaining to deliberations about developing a
Stream Protection Rule proposal, the Department has been striving to
accommodate the Committee's oversight interests in the bureau's process
and handling of a contractor while protecting the substantive decision-
making inherent in the Executive Branch function of executing the law.
Striking the right balance between the Committee's and the
Executive Branch's legitimate interests takes time and effort. To be
clear, the Department is not refusing to comply with the Committee's
requests and subpoenas. To the contrary, the Department has been
working diligently to satisfy the Committee's core oversight interests,
consistent with the important confidentiality and independence of the
deliberative process in which the Department is engaged to develop a
Stream Protection Rule proposal.
Conclusion
Thank you for the opportunity to appear before the Committee today
to testify on the development of OSM's Stream Protection Rule. The
Department recognizes congressional oversight is an important part of
our system of government, and we remain hopeful that the Department and
the Committee can continue to work together to satisfy the Committee's
oversight interests in this matter, while also safeguarding the
independence, integrity, and effectiveness of the Department's ongoing
efforts to develop a Stream Protection Rule. In that effort, we remain
committed to developing a proposal that will more fully carry out the
bureau's mission, make use of the best available science and
technology, better protect communities and water supplies from the
adverse impacts of surface coal mining, and provide greater clarity and
certainty to the mining industry and the affected communities. We
remain just as committed to providing ample opportunity for the
Congress, public, industry, stakeholders and others to provide input on
that proposal that will help us develop a balanced and responsible
final rule. I would be happy to answer your questions.
______
Response to questions submitted for the record by Director Joseph
Pizarchik, Office of Surface Mining Reclamation and Enforcement, U.S.
Department of the Interior
Questions from Chairman Doc Hastings:
1. You mentioned in the hearing that there was a settlement conference
with the plaintiffs to the litigation surrounding the Stream
Buffer Zone Rule. Please provide the following information
regarding this status call?
The name of all organizations involved in the status
update mentioned in your testimony.
The name of all individuals from each organization
involved in or present during the status mentioned in your
testimony.
Answer: Representatives of the plaintiff National Parks
Conservation Association and of Coal River Mountain Watch and its co-
Plaintiffs participated in the status call.
2. During your testimony on July 19, 2012 you indicated that the team
assigned to the drafting of the environmental impact statement,
regulatory impact analysis, and Stream Protection Rule were
currently not working on the rewrite but has been reassigned to
their normal roles. Can you please provide the number of staff
currently working on the EIS, RIA, and draft rule, including
but not limited to OSM and DOI staff as well as third party
contractors? Additionally, can you please provide the number of
staff working on the project in January 2011, including those
working on the draft EIS, RIA, and the draft Stream Protection
Rule?
Answer: The proposed Stream Protection Rule, accompanying draft
EIS, and regulatory impact analysis have not yet been completed or
published. Throughout the rulemaking process, the number of staff
working on the project--in January 2011 or at any other time--varies on
a daily basis as other assignments intervene. Career OSM staff, with
assistance from contractors, are currently taking the time necessary to
conduct a thorough analysis of the possible draft proposed rule
changes, a reasonable range of alternatives, and the necessary
supporting documents.
Questions from Rep. Bill Johnson:
In 2004, the Pennsylvania Department of Environmental Protection
closed the Maple Creek Mine. That was a longwall mine and four of the
five panels had already been mined, and all five had been permitted as
of 2001. The 5th had been set up to be mined, but then the DEP shut
down the mine because, it claimed, there was a stream on the surface.
To most people, that stream was actually a ditch with no water except
occasionally, with it rains. DEP called it an ephemeral stream and
forced the closure of the mine. 550 people lost their jobs. You were
assistant director in the Bureau of Regulatory Council at the time.
a. What is the difference between what you did at Maple Creek
and what you are proposing here?
b. The basis of the policy in both cases appears to be the
same: stopping mining wherever there is any presence of water.
If this policy resulted in the layoffs of over 500 people at
Maple Creek, why would you expect it to turn out any
differently if replicated on a nationwide scale?
c. If you know, based on what happened at Maple Creek that
this type of policy undoubtedly ends up closing mines and
laying off miners, why are you continuing down the same
destructive path at OSM?
d. You previously testified before Congress that the SBZ would
not result in any lost jobs, yet when you implemented the
almost identical program at the state level in Pennsylvania,
550 jobs were lost. Did you forget about what happened in
Pennsylvania, or were you not honest with us the last time you
testified?
Answer: At this time, there is no Stream Protection Rule. OSM has
yet to publish a proposed rule. Thus, it is premature to compare
potential rule changes that are still being developed to the matter to
which you are referring.
______
The Chairman. Thank you very much, Director Pizarchik, and
your timing was incredibly good. I appreciate that. I will
recognize myself for 5 minutes. And there are a number of
topics that I have. So I would appreciate if you would keep
your answers short as possible.
First, you just mentioned--and the Department constantly
recites--that you have provided the Committee with over 13,000
pages of documents as a way of being cooperative. So my
question to you, Mr. Director, does this 13,000-page figure
include multiple documents running hundreds of pages that are
widely available on the Internet?
Mr. Pizarchik. I am sorry, Mr. Chairman, I don't know the
answer as to what is available on the Internet.
The Chairman. Well, the answer to that is yes, Mr.
Director. The answer to that is yes. Large parts of that were
available there.
A follow-up on that. Part of that 13,000 pages that you
have sent to us, does it contain pages that have been largely
or almost entirely blacked out, so that they are sometimes
unreadable?
Mr. Pizarchik. Mr. Chairman, I believe that a number of the
documents that have been provided by the Department have had
appropriate provisions redacted in order to protect the
Administration's legitimate----
The Chairman. So the answer to that question, then, is yes.
Mr. Pizarchik. That is what I said. Yes, sir.
The Chairman. Yes, that is this. OK. So, when you are
trying to defend yourself by being cooperative, what you are
saying is that you have provided this Committee with 13,000
pages. A large part of that can be found on the Internet, and a
large part of it is redacted. It just seems to me that if you
are trying to be open, and you are providing things and
blacking out things, that is hardly being transparent and open.
And that, of course, is what this Administration has said that
they are going to do from the outset, was be open and
transparent. And that has not been the case.
Second question that I have. In 2010 the Obama
Administration voluntarily entered into a court settlement--I
mentioned that in my opening statement--with several anti-coal
groups. The deadline for finalizing that rule by the court
settlement was June 29th, which is nearly--well, not quite a
month, but some time ago. Yet there is no final rule, and there
has not even been a draft rule. So the deadline that the
Department has committed to has not been upheld by the
Department.
So, my question to you is on what date will the Department
publish this draft rule?
Mr. Pizarchik. The settlement agreement to which you refer
we provided to make our best efforts to publish a proposed rule
and a final rule by the date that you said. We continue to make
our best efforts. We are in the process of continuing to
develop a proposed rulemaking to analyze the options in
accordance with the----
The Chairman. I understand all of that. When--but my
question to you is what specific date do you anticipate that
being done?
I mean the court said it is supposed to be on June 29th.
That wasn't met. So what specific date?
Mr. Pizarchik. The date was the date that we had agreed to
attempt to provide our best efforts. We will publish a proposed
rule when we have completed the analysis----
The Chairman. When is that going to be?
Mr. Pizarchik. Once we have completed the analysis----
The Chairman. When is that going to be? I am asking you
when you will have that complete date. I mean you agreed in
court on June 29th. You haven't met that deadline. Now I am
asking you specifically.
If you can't give me a specific date, can you give me a
month?
Mr. Pizarchik. I can only give you the answer that we will
publish it as proposed, once we have completed the analysis,
because it would be premature for us----
The Chairman. You can't even give me a month. Let me try to
help you. Will it be before or after November of this year?
Mr. Pizarchik. It will be after we complete the analysis
required by law----
The Chairman. You can't--Mr. Director, I am sorry. You
can't give me a date where you entered into an agreement to
have it done in June, and I am asking you to give me a range,
and you can't even give me a month on when. Is that your
answer?
Mr. Pizarchik. We are making our best efforts to get it
completed as soon as possible----
The Chairman. All right.
Mr. Pizarchik [continuing]. So we could publish it.
The Chairman. I thank you for that answer, which, to me, is
honestly a non-answer. I am reminded of what President Obama
said to the Russian Prime Minister, ``more flexibility.'' And I
don't know if that is applicable here or not, but it might be.
Final question I have here in my brief time. Does the
Department have additional documents that it is prepared to
provide to the Committee in response to the subpoenas that we
have sent you?
Mr. Pizarchik. As I indicated earlier, Chairman Hastings,
the Department is continuing to work with the Committee to
provide documents that are responsive to your previous requests
and your subpoenas.
The Chairman. So there are other documents that are coming?
Mr. Pizarchik. The Department----
The Chairman. Can you tell me the nature of them?
Mr. Pizarchik. The Department is continuing to work to
provide responsive documents. I am not personally familiar with
all of the documents.
The Chairman. All right.
Mr. Pizarchik. I know the Department----
The Chairman. Well, Director Pizarchik, I just--you know,
the purpose of this hearing was to try to get some direct
answers. Now I have asked questions on if more information is
coming out of subpoenas, didn't get a direct answer. I asked
when the draft rule would be out, did not get a direct answer.
I hope that, in ensuing questions, that you will be more direct
on that.
And my time has expired, and I recognize the gentleman from
Massachusetts.
Mr. Markey. Thank you, Mr. Chairman. In the Appalachian
region, 70 percent of the coal is exported from the United
States, is exported from Appalachia, exported to other
countries. And coal exports from surface mines in West Virginia
and Pennsylvania and Kentucky and Virginia, which include mines
using mountaintop removal mines, have grown by 91 percent since
2009, in order to feed this export market for other countries
to burn the coal. So, the environmental damage is done here,
the health damage is done here. The coal is then burned in
other countries.
These mines contaminate water supplies, they devastate the
environment, and they threaten public health. Would you agree
that communities in the Appalachian region are bearing the
massive environmental and public health costs that come with
mountaintop coal mining removal, so that much of the coal can
be exported to benefit foreign countries?
Mr. Pizarchik. Yes, Congressman, I do agree with that.
Mr. Markey. Is it still increasing, as a phenomenon in our
country?
Mr. Pizarchik. Based on the latest projection of the
numbers that--of which I am aware, I understand that it is
increasing, and that there is additional interest to ship coal
overseas.
Mr. Markey. And they ship this coal, then, to countries
that have very weak clean air standards, like China, which then
burn this coal and further pollute the planet. Is that correct?
Mr. Pizarchik. It is my understanding that other countries
do not have the environmental protection standards that America
does, yes.
Mr. Markey. So the mercury, the sulphur, the carbon dioxide
is sent up into the atmosphere after mountaintops are removed
here in the United States, after stream beds are harmed when
they dispose of materials. And, as I mentioned earlier,
communities are now being devastated with the amount of soot
and other contaminants that are now descending upon these
communities.
Can you elaborate a little bit more about what you have
learned about the impact that it is having upon communities?
Mr. Pizarchik. Yes, sir. It is my understanding that some
of the pictures that you showed earlier are representative of
some of the larger operations where the company, rather than
dealing with the community, creates conditions that makes it
more difficult for the folks who are living in those
communities, between the dust, et cetera. And our authority
under the Surface Mining Act is limited to activities on the
mine site. We do not have responsibility or the authority to
regulate those types of adverse impacts that affect communities
off the mine.
Mr. Markey. Now, one of the OSM employees says in the audio
recordings that the aim of the rule is not reduce coal
production, as the Majority asserts, but ``that production will
improve, and the technology will improve, and the environmental
impact will be lessened over time, as practices improve.'' This
is an important point, and one I am familiar with.
The Waxman-Markey bill of 2009 would have allocated $60
billion to the coal industry, so the industry could innovate
and make clean coal a reality. We believe this was a necessity
for the climate, but also for the coal industry's future role
in the U.S. domestic energy mix. It is now becoming clearer,
given coal's falling market position, that we were right and
the coal industry was wrong. It is just collapsing. So, I see a
parallel here.
Isn't it true that OSM believes that the coal industry can
innovate and improve production techniques in ways that not
only benefit the environment, but also benefit the coal
industry?
Mr. Pizarchik. Yes. I have great confidence in the
ingenuity of our coal industry, in our academic institutions,
in our State and Federal regulators to do a better job of more
responsible and protective coal mining for a strong and viable
industry.
Mr. Markey. Now, the Department has spent significant time
and taxpayer money responding to the Majority's request for
information. By our staff count, DOI has produced more than
13,000 pages of documents, over 15 separate document
productions. The Majority has also received documents from CEQ,
OMB, EPA, and the Army Corps of Engineers. And the contractors
have provided almost 7,000 pages of documents and roughly 25
hours of audio recordings.
Considering the voluminous data at our disposal, does this
Committee, in your opinion, lack any significant information
related to the investigation?
Mr. Pizarchik. Not to my knowledge, sir.
Mr. Markey. Thank you. And thank you for your testimony.
And thank you for the voracity of your testimony.
Mr. Pizarchik. You are welcome.
Mr. Markey. I am very impressed by your honesty and your
candor with the Committee.
The Chairman. The time of the gentleman has expired. The
Chair recognizes the gentleman from Utah, Mr. Bishop.
Mr. Bishop. Mr. Director, this has been a rather lengthy
process, but I hope I can move us a little bit forward, if I
ask some specific questions as a follow-up as to the
information that has been requested. And I will try and phrase
these in questions that can easily be answered in a yes and a
no fashion.
So, the first week in April in 2012, the Committee issued
and served a subpoena requesting information, and I want to ask
you specifically about that request.
First, has OSM provided unredacted copies of over 30 hours
of meetings on 43 separate recordings and their subsequently
created transcripts between the Department and OSM personnel
and contractors who were hired to develop a new EIS and RIA?
Mr. Pizarchik. It is my understanding the Department
provided redacted transcripts.
Mr. Bishop. All right. So they have been redacted, they are
not unredacted.
Number two. Has OSM provided a complete and unredacted copy
of all the items previously provided to the Committee?
Mr. Pizarchik. I have not reviewed every document provided,
but it is my understanding that the documents that have been
provided have been redacted to protect the----
Mr. Bishop. All right.
Mr. Pizarchik [continuing]. Executive deliberative process.
Mr. Bishop. We will talk about the redaction later on,
but--so I appreciate that.
Has OSM provided all complete and unredacted documents,
including any drafts and briefing papers related to the
development of, or analysis for, the Advance Notice of Proposed
Rulemaking and the Notice of Intent to Prepare a Supplemental
EIS for the Stream Buffer Zone?
Mr. Pizarchik. Again, I have not reviewed every document
provided. I believe that the Department is continuing to work
to provide documents in response to the subpoena and the
document requests.
Mr. Bishop. Are they complete and unredacted?
Mr. Pizarchik. I have not reviewed all of the documents.
But my understanding is that documents that had information
that is covered by the separation of powers would have been
redacted.
Mr. Bishop. Has OSM provided a complete and unredacted copy
of the draft EIS and the draft RIA related to the proposed
stream production rule?
Mr. Pizarchik. We do not have a draft EIS for the stream
protection rulemaking. And therefore, I do not believe that
there would have been a copy provided to the Committee, because
that document does not yet exist.
Mr. Bishop. OK. So if we review on those areas in which the
subpoena requested, so far OSM has not complied with any of
those categories of the requested subpoena that was done more
than 3 months ago.
Now, in the second week of May of 2012 the Committee issued
a second subpoena requesting additional information. Has OSM
provided all the documents regarding the March 2012 settlement
between the Administration and the special interest groups?
Mr. Pizarchik. Again, I have not reviewed every document
that the Department has provided. But I believe the Department
has been working with the Committee to provide documents----
Mr. Bishop. Have you provided all the documents? Once
again, these are yes or no answers.
Mr. Pizarchik. I do not know the answer to that, sir.
Mr. Bishop. OK, you don't know. Has OSM provided all the
documents regarding the decision not to rely on the EIS or the
RIA and the 2008 Stream Buffer Zone Rule, and to conduct a new
EIS and RIA?
Mr. Pizarchik. Again, there is no draft EIS which to
provide. And I--again, I am not familiar with every page of the
13,000-plus documents the Department has provided.
Mr. Bishop. So, once again, you don't know if you provided
all the documents personally. That is your answer.
Mr. Pizarchik. I personally do not know that.
Mr. Bishop. Good. OSM provided all the documents--has OSM
provided all the documents regarding the cost benefit analysis
for the stream reduction rule? Yes or no.
Mr. Pizarchik. There is no stream cost benefit analysis
for----
Mr. Bishop. OK.
Mr. Pizarchik [continuing]. A rulemaking, because we are
still in the process----
Mr. Bishop. Has OSM provided all the documents and
communication between the senior level Administration officials
regarding the baseline parameters used for the EIS and the RIA?
And that includes, but not limited to assuming the 2008 Stream
Buffer Zone Rule was in effect being enforced across the United
States to lower job loss numbers?
Mr. Pizarchik. I am sorry, I don't understand that
question.
Mr. Bishop. I will help you out. It is going to be the same
answer you gave on all the others.
Has the OSM office ever provided a log explaining all the
documents you are withholding, and why?
Mr. Pizarchik. The Department is not withholding any
documents. We have been working together with the Committee to
accommodate your legitimate interests, recognizing the
separation of powers----
Mr. Bishop. I have only got 50 seconds, so I am going to
cut you off, I am sorry. I apologize for that.
Can you throw up a number one? This is one of the 13,000
pages that you have given us. It says at the beginning on page
one, ``I have consolidated all the comments on the RIA into
this one document, in order to make it easier to send them to
the contractor. Please disregard previous email comments in
there.''
Then, comment one is the black part. Comment two is the
black part. Go to page two, that is comment two. Continuing on,
go to the next page and you have comment three. Comment four.
Go to the next page, and you got comment five. That is part of
the 13,500 pages you have given us. That is the information you
have given us. Now, do you consider that to be adequate
information to help us join together and work together to come
up with a solution and come up with an understanding? That is
the kind of document you have provided to us. You are willing
to support that?
Mr. Pizarchik. Congressman, it is my understanding we
provided every document, and we continue to work with you to
provide documents that are responsive to your Congressional
request.
Mr. Bishop. Sir, these documents have been redacted so they
are totally useless. And across the front you write, ``Subject
to FOIA Exemption Number Five.'' Congress is not covered under
the FOIA exemption. You are supposed to supply us with
information.
I have gone over, and I apologize. Yield back.
The Chairman. The time of the gentleman has expired. The
Chair recognizes the gentlelady from California, Mrs.
Napolitano.
Mrs. Napolitano. Thank you, Mr. Chair. And, Mr. Bishop, I
would be glad to give you a copy of the high-priority EIS item
that was submitted December 2011 redacted, and a copy that was
actually sent to the Minority, received it from the Majority in
May of this year, which was unredacted. And I would love to
have some of these introduced into the record, because
apparently there has been a number of pages that have been sent
that were unredacted to show what was redacted.
Now, whether you have received them personally, the
Committee may have received them, I don't know. I am just
giving the information so that there is an ability for you to
see what was on them, especially the first item that was up
there. It is in here, unredacted, received by the Majority.
The Committee Majority charges that OSM has recklessly
rushed the stream protection rulemaking, and that it has not
provided opportunity for input from the outside agency. Yet, it
has been evaluating this issue for 2 years, OSM has not even
issued a proposed rule. Moreover, they have received more than
32,000 documents, comments, as mentioned, on the Advance Notice
of Proposed Rulemaking, which the agency was under no
requirement to publish, and has overseen unprecedented outreach
sessions with coal companies and other stakeholders.
Director, is it true that OSM has already received more
public comments than were received in the entire 2008 Stream
Buffer Zone rulemaking, and is it also true that OSM will again
seek and consider public comment once you issued a proposed
rule?
And then, can you tell the Committee any other outreach you
have done?
Mr. Pizarchik. Madam Napolitano, yes, that is true. We have
received over 50,000 comments, well in excess of what was
received on the 2008 rule. Once we have a proposed rule
completed, and a draft EIS completed and published, we will
receive additional comments on that, and we expect that to be
far in the excess of what was previously provided.
We have also been more transparent by--after we conducted
the ANPR, we did stakeholder outreach, where we met with
industry. We met with the States and Tribes, where we met with
the environmental community, the United Mine Workers. We
conducted 15 outreach sessions for those and received comments.
We also incorporated and included every State who volunteered
to be part of the process to help draft the EIS and have
received hundreds and hundreds of comments from them.
Mrs. Napolitano. Would you be able to tell me and this
Committee whether any of the coal company executives live in
the area that they mine, where you are mining?
Mr. Pizarchik. I do not know the answer to that, ma'am. My
understanding----
Mrs. Napolitano. But there are companies who come in and
utilize and mine and then ship it out.
Mr. Pizarchik. What is the typical situation is we have a
lot of large companies who have many subsidiaries. And the
people who are officials in those large companies typically do
not live in the communities which are mined.
Mrs. Napolitano. Thank you. And as the Ranking Member of
the Subcommittee of Water and Power, my greatest concern is the
viability of the streams to be able to carry potable water,
drinking water, to the communities in the area. And the concern
there is their public health, especially children, small
children, and the elderly, who may have compromised immune
systems. The resident protection, the public protection. And
that is probably what we should be charged with.
And understanding that most of those people don't
understand the political process, and blaming other people for
what is happening--we need to continue to be able to fight for
the people's right to have same access to good drinking water.
And if they are polluting the streams, they should be made to
clean them up.
Now, if we can prevent that, then that is a plus for us, as
a country. But I don't know what circumstances there are that
does not follow through to get these people to understand they
need to protect the environment for the public's general
health. Comment?
Mr. Pizarchik. Yes, I would agree with that. And that is
the original reason why Congress created the Office of Surface
Mining, was to protect people and the environment from the
adverse effects of coal mining. And there were opportunities
for all of us to do a better job to better protect streams, to
better protect people, to better protect the water.
Mrs. Napolitano. Thank you for your answer. And I hope that
we continue to put the people ahead of the business community.
I yield to my colleague, Ranking Member Markey for any
additional comments he may want to make. He does not. I yield
my time.
Mr. Markey. No, I thank the gentlelady; I am fine.
Mrs. Napolitano. Thank you. I yield back.
The Chairman. The gentlelady yields back her time. The
Chair recognizes the gentleman from Colorado, Mr. Lamborn.
Mr. Lamborn. Thank you, Mr. Chairman. Mr. Director, thanks
for being here.
I have to start by saying I think the process of this
investigation has been unsatisfactory to all of us, to the
Administration as well as to Congress.
In your testimony you go to great lengths to explain that
this is a deliberative process, and that Congress doesn't have
any business intruding into your deliberation process. However,
the oversight this Committee is charged with and is conducting
is directly into your process. Everything we have uncovered
shows that this process has been reckless, wasteful, and,
frankly, sloppy on the part of OSM.
You hired a contractor on a no-bid basis, according to
documents released by this Committee against the
recommendations of other agencies. When the contractor produced
work that you didn't find acceptable, you dismissed it, and
significantly harmed their reputation by criticizing their work
in front of this Committee.
While you make the excuse of intrusions into deliberative
rulemaking process as a reason for not complying, our
investigation is also about the decision-making, the actual
decisions already made as it is about the rulemaking.
So, Mr. Director, I want to start by getting answers about
settled matters that are not part of the current deliberative
process. Has the Department made a decision to rewrite the
Stream Buffer Zone Rule? Yes or no.
Mr. Pizarchik. As I indicated in my opening statement, the
Department has identified deficiencies with that rule, and we
are working----
Mr. Lamborn. Yes, sir. I have limited time. Yes or no.
Mr. Pizarchik. We are working to modernize our regulations,
including the 2008 rule.
Mr. Lamborn. Is that a yes?
Mr. Pizarchik. Yes, as well as yes on we are modernizing
our regulations, sir.
Mr. Lamborn. OK, thank you. Thank you. Has OSM provided the
Committee with all unredacted documents related to the decision
by OSM to rewrite the rule? Yes or no.
Mr. Pizarchik. Again, I believe we answered that
repeatedly, that we are providing the documents that are
responsive to the Committee----
Mr. Lamborn. But you haven't given us unredacted documents.
Yes or no.
Mr. Pizarchik. I do not know if any of the documents
provided were unredacted.
Mr. Lamborn. You saw one on the screen. It looked redacted
to me.
Mr. Pizarchik. Well, that one clearly was. But I don't know
if any other ones were unredacted, sir.
Mr. Lamborn. So, while OSM claims that refusal to meet the
Committee's--well, I will go on.
Has OSM reached a settlement agreement with outside
entities in the courts to rewrite the rule on a specific
timeline?
Mr. Pizarchik. No. What we reached was an agreement to make
our best efforts to publish a proposed rule by a certain time,
and to make our best efforts to publish a final rule. And,
despite our best efforts, we were not able to meet that
deadline.
Mr. Lamborn. Again, an issue where there is no ongoing
deliberative process, but--OK.
Mr. Director, has OSM reached a decision to fire or dismiss
PKS as a contractor on the Stream Buffer Zone Rule rewrite?
Mr. Pizarchik. PKS and the Department reached a mutual
agreement to end that contract 1 month ahead of when it was set
to expire.
Mr. Lamborn. Has OSM provided the Committee all unredacted
documents related to the firing of or the decision to fire the
contractor?
Mr. Pizarchik. Congressman, the contractor was not fired,
so I do not believe there would have been any documents that
would have been responsive to that question.
Mr. Lamborn. OK. Let's say they were let go, mutually. Have
you released all the documents regarding that decision to
mutually let them go?
Mr. Pizarchik. Again, I have not personally reviewed all
13,500-plus documents provided, so I am not in a position to be
able to answer that question.
Mr. Lamborn. If there were documents pertaining to that,
and that is a settled matter, then why haven't you produced
those?
Mr. Pizarchik. I do not know that we have not produced
those. It is my understanding----
Mr. Lamborn. If there were some, would you agree that those
should be produced immediately?
Mr. Pizarchik. We have been working with the Committee to
provide documents that are responsive to the subpoena and your
request, while respecting the separation of powers and the
Administration's deliberative process.
Mr. Lamborn. OK. I am going to put it all out on the table
here. You have not produced documents regarding the--well, the
mutually letting go of PKS. That is a settled matter. That is
not part of your ongoing deliberations. You need to produce
those. Do you have any excuse for not producing those?
Mr. Pizarchik. Congressman, we have been working with the
Committee to provide documents that are responsive to your
legitimate oversight interest, while protecting the
Administration's deliberative process.
Mr. Lamborn. That is a settled issue. That is in the past.
It is not part of your ongoing deliberative process. It is a
settled issue. Why haven't you produced the documents on this
settled issue?
Mr. Pizarchik. It is my understanding that we have been
providing all the documents and working with the Committee to
provide those documents that are responsive to your legitimate
oversight interests, and taking care to protect the
deliberative process that we have, as far as this ongoing
rulemaking process.
Mr. Lamborn. Mr. Chairman, I think it is very clear that
while the Department attempts to make this a discussion about
ongoing deliberations, what they are refusing to produce in
many cases has to do with settled decisions that have been made
in the past that have nothing to do with ongoing deliberations.
I yield back.
The Chairman. The time of the gentleman has expired. The
Chair recognizes the gentleman from Michigan, Mr. Kildee.
Mr. Kildee. Thank you, Mr. Chairman. Director Pizarchik, I
would like to ask about another section of the audio recordings
which is cited in the second accusation of the Majority's May
press release. The Majority says this section indicates that
the proposed rule is ``atomic'' for small businesses. Yet the
small businesses aren't actually mentioned in the conversation.
And it is actually one of the contractors who uses the word
``atomic.''
What is more, the contractor is not talking about an effect
the rule would have. He is talking about the need to have a
financial bond in place to ensure money is available to clean
up a mine in the event that a company goes bankrupt, its mine
operations go into forfeiture, and the mine is not reclaimed.
In other words, this discussion has nothing to do with the
impact of the stream bed protection rule.
Am I interpreting this correctly? And what is this
conversation about?
Mr. Pizarchik. Congressman Kildee, yes, you are
interpreting that discussion correctly. What it is about is
with--the OSM staff was trying to explain the free market
mechanisms that Congress put into the law. Section 102 says
that the purpose of the law is to assure that the surface
mining operations are not conducted where reclamation required
is not feasible.
Section 509 requires the mining company to post a bond to
assure the faithful performance of all the requirements of the
law and the permit. Section 510 provides that the new permits
cannot be issued to applicants who cannot demonstrate the
reclamation required by the law can be accomplished, and that
new permits cannot be issued to applicants who violate the law
and have their reclamation bond forfeited.
What we were trying to do is explain to the contractor that
the regulations that have always been in the law and that we
are trying to improve here allow for the contractor--the mine
operator--to make a business decision. Can I mine that site and
reclaim it, as required by the law? And if I can't, then they
make the business decision not to do that. If they make the
wrong business decision, then, as required by the law, their
bond would be forfeited.
Mr. Kildee. I thank you. I thank you for the clarity of
your answer.
Another question. In describing a section of the
recordings, the Majority claims that the rule being considered
by OSM would save just 15 miles of streams. Yet 2,000 miles of
streams already have been destroyed by mountaintop removal
mining under current practice. Isn't it true that we can expect
more of the same if we don't change what we are doing? And
don't you expect that a new stream protection rule would save
more than 15 miles of streams?
Mr. Pizarchik. Yes, sir. And that 2,000 mile number was the
miles of streams that had been buried by excess fills. It does
not count the countless miles of streams that have been mined
through and have not been restored, so that when the mining is
done, that there is a free-flowing stream on the site the way
there was prior to mining, notwithstanding the statutory
provision that requires the land to be restored to its use and
its productivity that it was prior to mining.
We do have a need for improving our regulations. We have
the expertise to do it right. We have the knowledge and the
ingenuity in the industry and in academia to do a better job to
more completely implement the law.
Mr. Kildee. I really appreciate, again, the clarity of your
answer. This is something I have been working on for my 36
years in Congress, and will probably be working on it for many,
many years to come, as we learn more about the problems caused
by this and how to ameliorate those problems. And I appreciate
your role in that. And I yield back.
The Chairman. The gentleman yields back his time. The Chair
recognizes the gentleman from California, Mr. McClintock.
Mr. McClintock. Thank you, Mr. Chairman. When the Ranking
Member and his colleagues boast that coal is being replaced
with alternatives like wind and solar, I think the American
people need to understand precisely what they mean by that.
Coal is one of the cheapest forms of electricity that we have
available to us, and one of the most abundant resources of our
Nation. Wind is one of the most expensive ways of producing
electricity. Solar is the most expensive way of producing
electricity. It is absolutely no coincidence that, as the
cheapest forms of electricity like coal are being replaced
under these lunatic policies with the most expensive forms of
electricity, that Americans' electricity rates are skyrocketing
and the economy is imploding under the weight.
The future that these policies are taking us is one in
which families are required to stretch and ration every
precious watt of electricity in their dimly lit and sweltering
homes, and scrimp and save every penny to meet their spiraling
electricity and tax bills to support this ideologically driven
lunacy. These policies have dire implications to our
prosperity, to our quality of life, and to the energy
independence of our Nation. Your agency is imposing these
policies.
And let me get now to the fine point of the matter, and I
think the central purpose of this hearing. Congress and
Congress alone has the constitutional authority to legislate.
That prerogative is deliberately reserved to the legislative
branch, reserved to elected representatives of the people, who
develop these laws in open and public debate, followed by
recorded roll call votes where every elected Member is directly
accountable to the people for the votes that they have cast.
That process is subject to the constitutional checks and
balances that divide the executive and the legislative and the
judicial functions.
When executive agencies like yours write laws, execute
those laws, and adjudicate those laws, they are short-
circuiting all of these checks and balances that protect the
freedom of our Nation. Instead of open debate, these rules are
written in secrecy, despite the specific intention of the
constitutional framers. Instead of accountability, of recorded
roll call votes by elected representatives directly accountable
and answerable to the people--again, as envisioned by the
framers--you rulemakers are unelected. You are often anonymous.
And you are totally unaccountable to the people for the
policies that you are imposing.
Now, when the executive branch exercises this dubious
power, which is only loaned to it by the legislative branch, it
follows, it seems to me, that it should fully and completely
respond to the legislative branch when it is exercising those
legislative powers loaned to it by the legislative branch. It
doesn't appear you are doing that.
And I would begin with simply asking. Why has the Secretary
refused to appear before us today to answer these questions?
Mr. Pizarchik. Congressman, I agree with you that the
Constitution provides the legislative power exclusively to
Congress. But it also provides express powers to the President.
It provides that all executive power is with the President, and
it goes on to provide that the President's duty is to take care
that the laws be faithfully executed.
Mr. McClintock. I wish, by the way, that you would offer
that lecture to him on a wide range of subjects, starting with
immigration law. But please continue.
Mr. Pizarchik. The rules that we are attempting to develop
is to faithfully execute the Surface Mining Control and
Reclamation Act that was passed by Congress----
Mr. McClintock. But you are not executing. You are
legislating. You are developing and imposing rules, and you are
enforcing those rules. The executive branch is to execute the
decisions of Congress. Congress has loaned you certain
legislative prerogatives, in my view, rather dubiously. But it
seems to me that when you are exercising those legislative
prerogatives, you are morally, legally, and constitutionally
bound to fully respond to Congressional inquiries on these
subjects.
You know, Louis Brandeis once said sunlight is the best of
disinfectants. And it seems to me that this Administration,
which has become the most secretive in our history, is in
desperate need of such disinfection.
Mr. Pizarchik. We have been very responsive----
Mr. McClintock. I yield back.
Mr. Pizarchik [continuing]. And more transparent.
The Chairman. The time of the gentleman has expired. The
Chair recognizes the gentlelady from Hawaii, Ms. Hanabusa.
Ms. Hanabusa. Thank you, Mr. Chair. Mr. Director, in
reviewing the issue before us, it seems to be on two levels.
One is the rulemaking process that you are engaged in. And the
second is an issue regarding the Environmental Impact
Statement, and the preparation thereof.
Now, can you tell me how the two are related, in your mind,
if they are related at all?
Mr. Pizarchik. They are very well related, because there
are statutes that govern the rulemaking process, how we develop
it. There are statutes under the National Environmental Policy
Act, Administrative Procedures Act. They set up a process that
requires us to go through a matter of developing potential
changes and then assessing the potential impacts of those
changes under the National Environmental Policy Act, and use
that information that we gain from that in order to make
informed decisions as to what should be in the proposed rule.
We are in the middle of that complicated process of
exploring potential improvements to modernize our regulations,
evaluating and analyzing those potential impacts in order to be
able to make the best informed decision possible, as the laws
require.
Ms. Hanabusa. So, at this point in time you haven't--in
your mind you are still in the rulemaking process, which
involves, of course, soliciting information. And the
Environmental Impact Statement is going to be used to help you
finalize that rule that you intend to publish at some point in
time. Is that correct?
Mr. Pizarchik. Yes, ma'am.
Ms. Hanabusa. OK. I happen to be familiar with FOIA because
I have litigated it myself, in my prior life. And I have before
me, for example, subject to FOIA exemption number five, which
is some email with a name Gardner, Linda, ``Contractor'' at the
top. And the only redaction that I see is a mobile number. So
is that an example of what redactions have taken place and been
produced?
Mr. Pizarchik. I would believe so, because it is my
understanding the documents that were provided on FOIA were
FOIA requests that were submitted asking us, the Department, to
provide documents that we had provided to this Committee.
Ms. Hanabusa. One of the--in my experience, whenever there
is an issue regarding what is redacted by an administrative
body, it is an exercise of your administrative process, if you
believe that it is somehow deliberative, I think that is one of
the laws that--the law is pretty well established that if it is
in your deliberative process, you can, of course, withhold the
document, or you can redact it, accordingly. Is that what you
are saying has been exercised here, in terms of the redactions
of a certain percentage--and it seems like a small number,
because 13,000 documents have been produced?
Mr. Pizarchik. Yes, ma'am.
Ms. Hanabusa. So, of the documents that haven't been
produced--I went through the testimony, I couldn't see an exact
number--what is the number that was withheld or redacted?
Mr. Pizarchik. We have provided about--over 13,500 pages of
documents. And I have not personally reviewed those, so I do
not know what percentage or--have been redacted or not
redacted.
Ms. Hanabusa. So, the total number of production has been
13,000, a portion of which were redacted like this FOIA
exemption number five.
Mr. Pizarchik. Yes, ma'am.
Ms. Hanabusa. So, at the present time, in the development
of your rule, where would you say you are in the process? Have
you, for example, published a proposed rule at this point in
time?
Mr. Pizarchik. No. We have not published a proposed rule.
We are still in the process of developing the proposed rule,
exploring potential changes to make to modernize our
regulation, and evaluating those costs and benefits and
potential impacts.
Ms. Hanabusa. So, my understanding--and I have done some
administrative work, as well--is that you are not even at the
point where you even are saying, ``OK, this is our proposed
rule, give us your feedback, and then we may accept or not
accept portions of what you may say, and then we may come up
with a final rule.''
So, how far away are you from the proposed rule?
Mr. Pizarchik. We are still----
Ms. Hanabusa. Or proposed rule----
Mr. Pizarchik [continuing]. In the process of analyzing
options and alternatives. And as soon as we complete that, we
will make--publish that proposed document. Based on my previous
experience of thinking I could get it done by June of this
year, I have learned my lesson. I cannot predict when we are
going to get it finished.
Ms. Hanabusa. So how long have you been in this process of
looking at a proposed rule?
Mr. Pizarchik. The Department started the process in the
summer of 2009 with drafting of an Advance Notice of Proposed
Rulemaking. It has been about 3 years now that we have been
working on this to try to develop a proposed rulemaking.
Ms. Hanabusa. And, of course, part of your problem is the
fact that you terminated the contractor who was doing the EIS.
And I assume that you started all over again with someone else.
Mr. Pizarchik. Part of the problem was the contractor we
retained through the competitive process did not provide
contract NEPA-compliant terms, and we mutually ended that
working relationship and had to retrench and regroup to
complete the job.
Ms. Hanabusa. So, in essence, this was somewhat premature
because we don't even have a proposed rule before us. Correct?
Mr. Pizarchik. It is absolutely premature.
Ms. Hanabusa. Thank you, Mr. Chairman.
The Chairman. The time of the gentlelady has expired. The
Chair recognizes the gentleman from Pennsylvania, Mr. Thompson.
Mr. Thompson. Thank you, Chairman, and thank you, Director,
for being here. Director, there are documents and audio
recordings that confirm that several members of your team from
both DOI and OSM, as well as the cooperating agencies,
including OMB, Army Corps, EPA, and the contractors, had
significant concerns with the timeline and process of this
rulemaking. Specifically, there were concerns about the pace of
the rulemaking, the method in which you were doing the work,
the travel consultation process, and the results that you were
getting. But most of these documents were so redacted--I know
the gentlelady had one with just one small area, but that
information about what the specific problems were or how you
intend to solve them is completely blacked out.
My first question is, has OSM completed the Environmental
Impact Statement, the EIS, and the Regulatory Impact Analysis,
the RIA, for the new rule that you will be proposing?
Mr. Pizarchik. No. We are still in the process of analyzing
alternatives and developing a proposed----
Mr. Thompson. Well, when can we expect to see OSM complete
those documents? And will you give us a timeline for
presentation to the Committee of those documents?
Mr. Pizarchik. I cannot and I won't speculate on when we
can do that. We have to complete the analysis and follow the
rules to make sure we properly follow the Administrative
Procedures Act--NEPA on that, and I am not going to hazard a
guess as to when we will be able to do that.
Mr. Thompson. Well, let me reflect back, then. You know,
more than 18 months ago the drafts of the EIS and the RIA
showed an expected devastating impact on small business,
economic harm in 22 States, and a loss of at least 7,000 jobs.
However, you previously testified that those numbers were
fabricated, and this is your quote: ``fabricated based on
placeholder numbers and have no basis in fact.''
Now, documents released by this Committee show that those
numbers were not placeholders, but instead, the result of
extensive analysis by the contractors and real consternation by
your agency. Clearly, the audio tapes and the documents
released by this Committee show that these were the real
impacts, and that OSM was attempting to find ways to mitigate
both the public perception--the release of those numbers and
change the underlying assumptions used to reach those numbers.
Now, do you continue to assert that those were
``placeholder numbers,'' or do you want to revise your previous
testimony?
Mr. Pizarchik. At the time I made that statement, the
information I had that those were placehold numbers, and as I
understood placeholders, that they did not have any basis in
fact. That was my understanding at the time.
Mr. Thompson. But today, do you still claim that those are
placeholders or not?
Mr. Pizarchik. My understanding that it was a placeholder
number is I believe I have seen an email that indicated from
one of the contractors it was a placeholder numbers. But I have
since learned that their definition of placeholder was
different than was my understanding.
Mr. Thompson. OK. So today you don't believe that they were
placeholder numbers. So if those numbers published more than 18
months ago, frankly, were placeholders, based on your
understanding, with no basis in fact, why were they included in
the draft document sent at that time to the cooperating
agencies to review under OSM's name and letterhead?
And how can you expect cooperating agencies to review
documents with what you have described at that point in time
that you believed were placeholder numbers?
Mr. Pizarchik. That was part of our effort to be more open
and transparent, by including these States as cooperating
agencies. And as part of our process of being more open and
transparent, the States received the contractor's first working
draft at the same time that we did. So the States got to see it
the same time we did, and we had no basis and didn't have the
understanding, we did not have an opportunity beforehand----
Mr. Thompson. Well, I am concerned with the fact that, you
know, that you have come to this illumination that that wasn't
a placeholder, they were--but we are proceeding with what you
see are credible, a loss of 7,000 jobs in this proposal.
The 2008 Stream Buffer Zone Rule reportedly took 5 years of
analysis, millions of dollars of scientific and environmental
studies, and were published with the concurrence of the EPA.
You have already spent millions of dollars on the new rule on
contracts alone, not including thousands of man hours and
salaries of your own agency personnel, and there is no rule in
place.
Now, at this point can you provide the total amount of
money that the stream protection rule will cost the taxpayers
when it is completed?
Mr. Pizarchik. I believe that we have spent about $7.7
million to date on that. As far as what the total value would
be, that is not possible for me to predict, because once we
have the proposed rule out, one of the things that will have an
impact on what those ultimate costs would be is the number of
comments that we receive, the quality and the substance of the
comments, and how much time it takes to review and assess and
evaluate those and decide what appropriate changes to make in
response to those comments.
Mr. Thompson. Thank you, Chairman. My time has expired.
The Chairman. The time of the gentleman has expired. The
Chair recognizes the gentleman from Arizona, Mr. Grijalva.
Mr. Grijalva. Thank you, Mr. Chairman. Thank you, Director,
for being here. I know there is no other place you would rather
be today.
[Laughter.]
Mr. Grijalva. Just a couple of quick questions, and then a
lengthier one. I want to go through some of these, if I may.
First, OSM has produced all the significant information
that has been requested. Is that a correct--is that yes? It is
kind of yes or no questions.
Mr. Pizarchik. It is my understanding the Department is
continuing to work to provide all the responsive documents.
Mr. Grijalva. OK. And that--you continue to go back through
the documentation in order to produce additional information,
if that is what is required at some point.
Mr. Pizarchik. I believe that is still ongoing, sir.
Mr. Grijalva. The other--the second one, OSM has yet--it
has come out a couple of times--has yet to even make a
decision. Am I correct in that?
Mr. Pizarchik. Yes, sir, that is correct.
Mr. Grijalva. So all this today is about an unproposed,
unwritten rule.
Mr. Pizarchik. Yes, sir.
Mr. Grijalva. Neither--the third point. Neither the Bush or
Reagan Administration ever made available information about
decisions that they have not yet made. Is that correct?
Mr. Pizarchik. That is my understanding.
Mr. Grijalva. So at this point I think it is important to
note that--to summarize a little bit--OSM is being consistent,
acting in accordance with what the Reagan and Bush
Administrations did under their prerogative at that point.
Mr. Pizarchik. Yes, sir. I believe that to be the case.
Mr. Grijalva. OK. In one of the--in the final section of
the--as highlighted by my colleagues on the other side, ``an
OSM official suggests the contractor's numbers aren't
explained. The official makes clear that he is not asking the
contractors to change, just to justify and support that
analysis.''
Isn't it true that the contractor turned in shoddy analysis
that was strongly criticized, not just by OSM, but by other
mining State officials?
And let me quote some of them. The Deputy Director of
Virginia Department of Mines, Minerals, Energy, November 1,
2010: ``I certainly hope that an EIS is not going to be
developed based on the inaccurate and incomplete information
contained in this document.'' From the Geological Supervisor,
Wyoming Department of Environmental Quality, January 26, 2011:
``The analysis is insufficient for a document of this
importance.'' ``The document displays very little depth of
understanding of technical issues,'' and this is from the West
Virginia Department of Environmental Protection on that same
date, the 26th of January, 2011.
So, I quote those so that the criticism about the work
product is not just OSM's, but also involving these agencies
who simultaneously got the draft. Correct?
Mr. Pizarchik. Yes, sir. We had to take actions to try to
address the concerns, because those were legitimate concerns
that the States were expressing, as well.
Mr. Grijalva. And I note that these are all major coal-
producing States.
Oh, and so the question, the final question, Director,
should we be relying on the numbers from the contractors'
drafts that are being highlighted today by the Majority?
Mr. Pizarchik. No, we should not be relying on them.
Mr. Grijalva. So, as I listen to your testimony--and I
appreciate it--this is--this whole meeting is--it seems to be
an exercise of a conspiracy to look for a conspiracy. And I
think the search is going nowhere. I think that it is unwritten
and unproposed, the rule. Some of us that have looked at that,
the draft, feel that more stringent protections should be part
of the discussion, not just obliterating any protections, which
seems to be the intent of the discussion today.
But like I said, this is a conspiracy in search of a
conspiracy. I appreciate your time, and I yield back.
The Chairman. The gentleman yields back his time. The Chair
recognizes the gentleman from Florida, Mr. Southerland.
Mr. Southerland. Thank you, Mr. Chairman. Mr. Director,
thank you for being here today. Are you familiar with the
statement, ``We will bankrupt any new coal plants.''
Mr. Pizarchik. No, sir, I am not.
Mr. Southerland. Are you sure?
Mr. Pizarchik. Perhaps you could refresh my memory.
Mr. Southerland. I would--that is what I am here to do.
That was the statement made by the now-President of the
United States, who--you are obviously here today to protect the
Administration. Those were his words, loud and clear. And so, I
want to ask you some questions.
With that being his statement, and that being his clear
intent regarding coal, and I don't know how you could
accomplish what he stated without adversarially pushing
policies and pushing the Administration in a way to accomplish
that, I think we all can agree that the President has certainly
accomplished more than any of us thought imaginable. Are there
any current laws that would accomplish this--I mean to force
plants into bankruptcy?
Mr. Pizarchik. I don't believe that--I don't know the
answer to that. There is none that I am aware of. And this
Administration, this President, has put $3.4 billion into clean
coal technology----
Mr. Southerland. OK, sir. Now, let me ask you this. If you
don't think there is any laws that would force plants into
bankruptcy, then for the President to get his way, the
President would have to do what I think we have seen over and
over and over again. Rather than executing existing law that
would not force plants into bankruptcy, he would then have to
circumvent that, creating rules from offices and departments
such as the one that you represent in order to accomplish that
goal. Would he not?
Mr. Pizarchik. I disagree with that entirely.
Mr. Southerland. So if there are rules----
Mr. Pizarchik. Because that would be contrary to the
statutes.
Mr. Southerland. If there are no laws on the books that
would force plants into bankruptcy, and the President said,
``We will bankrupt new coal plants,'' then the only way to do
that would be through rulemaking authority. Would it not?
Mr. Pizarchik. I don't agree with that----
Mr. Southerland. Well then, how else would you accomplish
that goal of the President's statement, if there are no current
laws on the books to bankrupt plants?
Mr. Pizarchik. Well, I have no idea of the context you have
that, and I don't agree that that is this Administration's or
this President's perspective on that.
Mr. Southerland. But do you agree with the President's
statement?
Mr. Pizarchik. The President and the Administration have
put more money----
Mr. Southerland. Answer my--that is a yes or no.
Mr. Pizarchik [continuing]. Into clean coal technology----
Mr. Southerland. Do you agree that the President made the
statement. Do you agree with his goal?
Mr. Pizarchik. I don't know the basis of that. And my job--
--
Mr. Southerland. OK. Look. ``We will bankrupt any new coal
plants.'' Do you agree with that, or do you not?
Mr. Pizarchik. My job is to execute the Surface Mining Act.
I have to strike a balance between meeting this country's
energy needs with coal and protecting the environment and the
people from the adverse affects of coal. That is what I will
do. That is the charge Congress gave me. And I am here to carry
out the law. And that is what we are trying to do with
modernizing our regulations, to more completely carry out the
law.
Mr. Southerland. At any point in time in your job
responsibility, are you given a pass on acknowledging self-
evident truths and ignoring common sense?
Mr. Pizarchik. I try to follow the science and common sense
to implement the law, sir.
Mr. Southerland. Does any--as a part of your job
responsibility, are you to ignore common sense?
Mr. Pizarchik. I don't see that in my job description.
Mr. Southerland. OK. I don't think it is in your job
description, and I don't think it is our founding fathers'
intent that you would ignore self-evident truths. And if the
President clearly states that it is his goal to bankrupt coal
plants, and I ask you if that is his goal, and if there is no
laws in place then the only other way he could do that was
through the promulgation of rules, I think it is a self-evident
truth, it is common sense, to connect those dots. And I think
that it is very clear that this Administration has practiced a
willful disregard for our branch.
And you stated earlier that it is the responsibility of the
executive to execute the laws. And he has proven over and over
and over again--and most recently, last Thursday, when he
claimed that we will now ignore the work requirements of TANF,
DOMA--it goes on. Immigration--it goes on and on again. And I
think what we have seen here today is an incredibly consistent
nature. And today you have proven to fall exactly into lock
step with this Administration, not executing the laws on the
books, but yet circumventing the balance of power.
And I tell you what. You are literally doing no credit to
the great government that I--or the great Constitution we have.
And it bothers me greatly. And you are all over the map, sir.
You are all over the map.
And with that, I yield back.
The Chairman. The time of the gentleman has expired. The
Chair recognizes the gentleman from New Jersey, Mr. Holt.
Dr. Holt. Thank you, Mr. Chairman. Mr. Pizarchik, are you
familiar with the statement that the gentleman was just saying,
that supposedly the President said we will bankrupt coal
plants, new coal plants, or destroy the industry? Or have you
received any direction through the Department of the Interior
that that is an operating principle?
Mr. Pizarchik. No, sir. I am not familiar with that
statement he is attributing to the President, and there has not
been any direction from the President, from anyone in the
Department of the Interior, or from anyone in the
Administration telling me to do anything of that sort. I have
been here, trying to do the best job to implement the statute
that is on the books.
Dr. Holt. Thank you. I was struck by the phrasing of my
colleague from Arizona, that this seems to be a conspiracy
looking for a conspiracy. I guess, more to the point, I would
like to ask whether this is an investigation for the sake of
investigation, or whether it is an investigation to get at
facts that are--that the public should know about, and that
Congress should act on.
In the course of this now 14-month-old investigation, has
the Majority communicated with you the purpose of the
investigation?
Mr. Pizarchik. Sir, we have--as I understand it, the
Department has repeatedly asked to understand what the purpose
was, and what they have been trying to get and what they are
looking for. And I do not believe that we have had a response
that explains that.
Dr. Holt. Have you had a single or consistent story over
those 14 months of why these questions are being asked?
Mr. Pizarchik. I am not familiar----
Dr. Holt. Or why the material has been subpoenaed?
Mr. Pizarchik. We haven't gotten a consistent explanation.
We haven't received an explanation that lays out those
legitimate interests.
Dr. Holt. It certainly suggests to me that this is an
investigation for the sake of an investigation, rather than to
get at facts.
Now, let's get back to the reason that you conduct the work
that your office conducts, which is to try to make sure that
the work that is done is consistent with public health and
environmental interests, as well as to allow the industry to
move forward.
I wanted to ask if you are familiar with several studies.
There is one in the Journal of Environmental Research called
``The Association Between Mountaintop Mining and Birth Defects
in Central Appalachian in 1986 to 2003.'' The study examined
the relationship between the exposure of pregnant mothers in
mountaintop removal mining areas and looking at the prevalence
of birth defects. This study found that prevalence of birth
defects was significantly higher in mountaintop mining areas
compared to non-mining areas for six of seven types of birth
defects: circulatory, respiratory, central nervous,
musculoskeletal, gastrointestinal, urogenital, and others.
Another study in Public Health Reports: ``Mortality in
Appalachian Coal Mining Regions: The Value of Statistical Life
Lost.'' This study examined elevated mortality rates in
Appalachian coal mining areas from 1979 to 2005. So, a
considerable period. And looked at the value of statistical
life lost relative to the economic benefits. Results indicate
that previously documented health-related quality of life
disparities in Appalachian coal mining areas are concentrated
in mountaintop mining zones.
And ``The Human Cost of Appalachian Coal Mining Economy
Outweighs the Economic Benefits.'' According to this study,
which was a peer-reviewed study in Public Health Reports in the
Journal EcoHealth, ecological integrity of streams related to
human cancer mortality rates. And it found that coal mining was
significantly associated with ecological disintegration and
higher cancer mortality.
Are these the sort of things that should be included in
studies of how the work is conducted?
Mr. Pizarchik. I believe all relevant peer-reviewed
information about adverse impacts of mining ought to be
considered.
Dr. Holt. Thank you. My time has expired.
The Chairman. The time of the gentleman has expired. The
Chair recognizes the gentleman from Ohio, Mr. Johnson.
Mr. Johnson. Thank you, Mr. Chairman. And I want to thank
you again, Mr. Chairman, for calling this important oversight
hearing. As I have said from the beginning of this Congress on
this issue, I am after the truth. Because this boils down to
one thing and one thing only for my district and many Americans
throughout America where coal mining is such an important
industry, and that is jobs.
It now seems that the President and OSM are playing a shell
game of hide the ball with this rule, because we are in an
election year. The President and his political advisors know
that if they go forward with this rule, they will destroy tens
of thousands of jobs in States that are critical for him to be
re-elected.
So, instead of being honest with their intentions and their
planned rule, Director Pizarchik has testified that when they
are done with their deliberative process--whatever that means--
they will make public the proposed rule. I have a sneaking
suspicion that Director Pizarchik will say they will magically
be done with their deliberative process some time after
November 6th. The American taxpayers deserve better, and I hope
that today, though I am not optimistic based on what I have
seen thus far, would begin to shed some light for the American
people on this job-killing plan.
Mr. Director, since OSM has decided to completely disregard
the 2008 rule that was proposed by the last Administration, and
has yet to complete the current rulemaking process as agreed to
in the court settlement, are the primacy States administering
regulations under SMCRA still using the Reagan-era 1983 Stream
Buffer Zone Rule?
Mr. Pizarchik. OSM and the primacy States are using the
applicable regulations. The primacy States are using their
programs that were based on the 1983 rule----
Mr. Johnson. Are the primacy States using----
Mr. Pizarchik [continuing]. And OSM is using the regulation
where it is the regulator.
Mr. Johnson. Are the primacy States, Mr. Director, still
using the Reagan-era 1983 Stream Buffer Zone Rule?
Mr. Pizarchik. That is my understanding. Yes, sir.
Mr. Johnson. Because the 2008 rule by the Bush
Administration never went into effect. So are they using the
1983 rule?
Mr. Pizarchik. Sir----
Mr. Johnson. Yes or no, Mr. Pizarchik.
Mr. Pizarchik [continuing]. That is my understanding. That
is my understanding, yes.
Mr. Johnson. OK, great. How many States administer State
programs under SMCRA?
Mr. Pizarchik. I believe there are 24.
Mr. Johnson. All right. Is it fair to say that the current
lack of clarity in the regulations have caused confusion for
OSM, the States, and the industry?
Mr. Pizarchik. I am not aware of anybody being confused out
there, sir.
Mr. Johnson. So you are saying no, that there is no----
Mr. Pizarchik. I am not aware of them being confused. I
believe we have been clear----
Mr. Johnson. Well, how is that possible, given that one of
the stated goals of both the 2008 Stream Buffer Zone Rule and
the proposed stream protection rule was to clear up
inconsistency in the application of SMCRA?
Mr. Pizarchik. We do not have a stream protection
rulemaking just yet, and the 2008 rule, because it was going to
be changed, we were looking at the efficiencies and not
requiring the States to make changes to their programs and then
turn around and make changes again. It was a matter of
recognizing----
Mr. Johnson. Well, some have argued--Mr. Director, some
have argued that the 2008 Stream Buffer Zone Rule would have
loosened the 1983 rule, including the 100-foot rule, and
broadened the previous rule to allow spoil and perennial and
intermittent streams. However, wouldn't the 2008 Stream Buffer
Zone Rule actually have cleared up discrepancies and
definitions and common practices, such as the practice of
allowing spoil to be placed in perennial and intermittent
streams?
Mr. Pizarchik. That was a pretty long question. I am not
quite sure what you were heading at. I believe OSM made its
best efforts at that time. But there are a number of things
that were not included in the rule. There were a number of
things that were not addressed, notwithstanding the knowledge
that some companies----
Mr. Johnson. No, that is not what I asked you. I didn't ask
you what your Department has done. I said some have argued that
the 2008 Stream Buffer Zone Rule would have loosened the 1983
rule, including the 100-foot rule. But I am asking you wouldn't
the 2008 Stream Buffer Zone Rule actually have cleared up
discrepancies and definitions in common practices?
Mr. Pizarchik. I don't believe the 2008 rule included a
definition for material damage to the hydrological balance, and
that----
Mr. Johnson. Well, can you please show Exhibit Number 6,
please?
[Slide.]
Mr. Johnson. The Federal Register, which I will submit for
the record, in the 2008 rule said, ``We have revised the Stream
Buffer Zone Rule to more closely reflect the underlying
provisions of the Surface Mining Control and Reclamation Act of
1977,'' SMCRA, ``to adopt related permit application
requirements to require that disturbance of perennial and
intermittent streams and their buffer zones generally be
avoided, to identify exceptions to the requirement to maintain
an undisturbed buffer zone for perennial and intermittent
streams, and to clarify the relationship between SMCRA and the
Clean Water Act.''
And my time has expired, Mr. Chairman. I got an awful lot
to cover, but clearly I am not going to get to it. I have just
got to say this. You know, I have counted here about 20
different times that our witness, Mr. Pizarchik, has said, ``I
don't know.''
The Chairman. The time of the gentleman has expired.
Mr. Johnson. ``Best efforts.'' If that is the best efforts
of this Department, Mr. Chairman, it leaves the American----
The Chairman. Yes----
Mr. Johnson [continuing]. People sorely lacking.
The Chairman. The time of the gentleman has expired. The
Chair recognizes the gentleman from California, Mr. Costa.
Mr. Costa. Thank you very much, Mr. Chairman. This is an
issue, obviously, that has been with the Committee for a number
of years under different leadership. And I appreciate an
opportunity to focus on the challenges dealing with the impacts
of this type of energy extraction. I would like to yield,
though, the balance of my time to my colleague, Mr. Holt, who
would like to continue along his line of questioning.
Dr. Holt. Thank you, Mr. Costa. Mr. Pizarchik, you have
said that there has been no articulated policy, nothing that
you have seen that suggests that this Administration is trying
to bankrupt coal companies or hurt the coal industry. I would
point out that, as the Ranking Member of the Committee has
previously pointed out, international competition and market
forces and cleaner technology have, indeed, put a burden on the
economics of coal in America. But as for any effort to bankrupt
the coal industry, the facts just don't support it, and your
own testimony has said so.
The Committee has heard testimony that coal mining jobs
have increased by more than 7 percent since 2009, when this
Administration took office. Coal mining jobs have increased in
West Virginia since 2009. The coal industry includes leasing
more than 5 billion tons of coal in Wyoming's Powder River
Basin, which is overseen by your agency, is it not? These facts
just are not consistent with any claim that there is an effort
to shut down or bankrupt the coal industry. Would you agree?
Mr. Pizarchik. Yes, sir.
Dr. Holt. The Committee Majority put out a press release in
May that makes some accusations about audio recordings of
conversations between the Office of Surface Mining officials
and the contractor hired to do the Environmental Impact
Statement. I wanted to ask you about an accusation they make.
They say that one conversation between OSM and the
contractor showed ``an OSM official discussing how a benefit of
the Obama Administration's new proposed rule is no coal
mining.'' The Majority doesn't actually provide a quote to
support this statement, so it is hard to know exactly what they
are talking about. But looking at the transcript, it appears
that this discussion was really about the contractor's failure
to analyze all the potential benefits of a stream protection
rule, such as improved access to clean water supplies.
Is it true that OSM was concerned that the contractors were
failing to analyze all the potential benefits of rulemaking,
which--is it also not true--they were hired to do?
Mr. Pizarchik. Yes, sir. That is correct. Because under the
National Environmental Policy Act they have to assess all the
costs and benefits of potential changes. And our staff was
trying to understand the rationale and the methodology used by
the contractor. And their methodology was very limited. It was
focusing only on the benefit that would come from if there was
no coal mining. They were disregarding all the other costs and
benefits.
Dr. Holt. And to pursue this discussion of whether there is
a concerted effort to interfere with coal mining and bankrupt
coal companies, would you say in your agency there is an
interest in seeing coal mined, so long as it is done in a
manner consistent with public health and environmental
protection?
Mr. Pizarchik. Yes, sir. For example, in the past 3 years
the Bureau of Land Management has issued Federal coal leases
for more than 1.4 million acres, and nearly 1.4 billion tons of
coal has been produced from those lands under 300 Federal coal
leases.
Dr. Holt. And if there were a policy to stymy the coal
industry, there probably would have been foot dragging on
issuing those leases.
Mr. Pizarchik. One would think so. And----
Dr. Holt. Was there any foot dragging on issuing those
leases?
Mr. Pizarchik. Not to my knowledge, sir. And then, if you
look at the Administration's approach, it has put more money in
clean coal technology--$3.4 billion--more money than any
President and more money than any country in the world has put
into that. You don't make that kind of investment in coal and
in the future of coal if you are trying to bankrupt the
industry.
Dr. Holt. And in the process, have you observed good public
health and environmental standards?
Mr. Pizarchik. Yes, sir. I have. And that is what we are
trying to do, is modernize our regulation to be able to do a
better job of protecting people and the environment, while
helping meet this country's energy needs.
Dr. Holt. Thank you, sir.
The Chairman. The time of the gentleman has expired. The
Chair recognizes the gentleman from Michigan, Mr. Benishek.
Dr. Benishek. Thank you, Mr. Chairman. Thanks a lot for
being here. I know it has been a long morning for you. Let me
just ask you this. Would you consider a rule that takes over 5
years and multiple scientific studies to complete, receives
over 40,000 comments, and over 5,000 pages of environmental
analysis from 5 different agencies, and is published with the
concurrence of the EPA and the U.S. Army Corps of Engineers as
a midnight rule, or some kind of a parting gift from the
previous Administration, simply because it is published at the
end of the term?
Mr. Pizarchik. I really don't have an opinion on that. OSM,
I am sure, was doing the best it could at the time to get the
rulemaking out, as are we trying right now to do our best to
get a rule out timely.
Dr. Benishek. Well, wouldn't your stream protection rule
deserve equal criticism, you know, because it is taking--in
this period of time?
Mr. Pizarchik. Well, that is an interesting question,
Congressman, because we have been criticized that we are going
too fast, and now we are being criticized for going too slow.
Dr. Benishek. I see.
Mr. Pizarchik. And I am just trying to do the best job in
accordance with the laws that are applicable.
Dr. Benishek. Your Department's press officer stated that
it is inappropriate and premature for Congress to inquire into
the details of the agency's ongoing deliberations in rulemaking
activity.
Mr. Pizarchik, do you agree that Congress has a legitimate
oversight role regarding how the OSM uses the rulemaking
authority vested in it by Congress?
Mr. Pizarchik. I agree that Congress has a legitimate
oversight role. But I also agree that there are separations of
powers between our deliberative process and the execution of
the laws, and that is why we have been trying to work with the
Committee to accommodate that legitimate oversight interest
while protecting our legitimate executive branch authority.
Dr. Benishek. If there are indications perhaps that a
process isn't being followed properly, do you think the
Congress should wait until the end of an improper procedure is
finished before asking for some answers?
Mr. Pizarchik. We are doing our best to provide documents
that are responsive to the Committee's requests and subpoenas.
And I believe we have done so and will continue to do so in
regards to that.
And I believe all the documents and indications out there
right now indicate that there is nothing out there, there is no
problem, and that we have been acting responsibly to address
the concerns that we had, to address the concerns that were
raised by the State cooperators, as well, regarding the quality
of the previous contractor's work.
Dr. Benishek. I guess I just don't understand why there are
so many redacted areas in the pages. Is there a problem with--
like I saw one of the answers was--one of the proposed ideas is
this, and then the rest of it is all blanked out. You know?
What is the purpose of that redaction?
Mr. Pizarchik. My understanding, sir, the purpose is to
protect the deliberative process that we are engaged in as
deciding what potential changes we need to make to modernize
our regulations in order to allow us to carry out the executive
powers of the President.
Dr. Benishek. Well, how does the fact that we know what you
are talking about make it more difficult for you to do it?
Mr. Pizarchik. I am not sure I understand----
Dr. Benishek. Well, if you don't want to tell us what you
are talking about, as far as the plan, if we knew about it, how
does it make it more difficult for you to do it?
Mr. Pizarchik. I believe what we are trying to do is be
consistent with past Administrations, where we do not have the
legislative branch involved in the executive branch's decision-
making process. The legislative branch has a legitimate
oversight interest. It has exclusive authority over
legislation. We have exclusive authority over the
implementation of it. And I believe there potentially may be
some gray areas, which is why we have been trying to work to
accommodate the Committee on its legitimate oversight
interests.
Dr. Benishek. Mr. Chairman, I will yield back the remainder
of my time.
The Chairman. Mr.----
Dr. Benishek. Thank you, sir.
The Chairman. The time of the gentleman has expired. The
Chair recognizes the gentleman from Arizona, Mr. Gosar.
Dr. Gosar. Being from Arizona, there is a war on coal. You
know, I hope you understand, NGS, and the predicament that is
up there for the Navajo Generating Station when we are using
faulty science.
You know, I am really abhorred. As a business owner, when
we have questions asked of us, as the owner, we go find out
those answers. And I find it very inexplicable that you don't
know the answers to the questions. Just like Mr. Johnson asked
you over and over again. You knew these were recurring
questions that were going to come up, and yet you still defy in
not having an answer. You should have been able to look at the
13,000 documents in our office. We do. There is no exception
for you.
So, my question is to you is if--we do the same thing to
the business owners out there. We fine them. We actually do
that. We don't give them any leeway. We just go ahead and fine
them. So maybe--let me ask you this. Should we fine you? Should
we fine your agency for not coming up with the proper protocol?
Because I am not here to reward bad behavior, because that is
what you are eliciting here. And I have proof.
There is a substantial--and your poor, pitiful heart, I
understand that you are taking orders. It is the same type of
disrespect to the legislative branch that we are seeing in the
DOJ, all the way across the board, with the same type of trying
to get documents all the way across. For transparency, I am
abhorred, absolutely abhorred about what I am seeing here. So,
let me ask you a question. I want to be a little bit more
specific.
The documents provided by the Committee--by other sources,
not the OSM, has shown that the OSM staff has expressed extreme
dismay that the proposed rulemaking had already cost more than
$5 million to the taxpayers, and would result in $200 million a
year in new costs to implement, and is only going to protect
about 15 miles of stream. Do you believe--yes or no--if this is
an efficient and effective way to use taxpayer dollars?
Mr. Pizarchik. The rulemaking process that is specified by
the statute is a complicated process, and it is costly. I do--I
recognize that. And we are doing our best to manage the cost--
--
Dr. Gosar. Well, once again, there is a broken system. You
know I have a limited amount of time, so it is a yes or no.
The Committee also released audio tapes of your own career
staff questioning the benefits of this rule, compared to its
cost. Do you believe that the cost benefit analysis of this
rulemaking will benefit the American people?
Mr. Pizarchik. When we have a cost benefit analysis
completed, when we have a draft proposed rule completed, I
believe the numbers will clarify that and they will speak for
themselves. And you, as well as every member of the public,
will be able to see the--those numbers, and understand the
methodology----
Dr. Gosar. Is this based on faulty science or real science?
Mr. Pizarchik. We are going through the extraordinary
process of having the analysis peer reviewed by outside
experts----
Dr. Gosar. Did you do the same thing in the particulates in
Northern Arizona with NGS? This is the same type of science.
Once again, I am a science-based guy. And when you don't
use science to base your decision off of, that is what our
oversight is all about.
Mr. Pizarchik. Then I agree with you that we are using
science and we are doing our best to use the best science
available to modernize our regulations. And when we have that
proposed rule completed and the analysis completed, you will be
able to see the science, the methodology, and understand the
cost and benefits.
Dr. Gosar. OK. I would like to have Exhibit Number 4 up,
please.
[Slide.]
Dr. Gosar. Is it your goal to force coal mining companies
out of business through forfeiture after expanding the
definition of a stream, so that no coal mining company can ever
be compliant, and instead would simply choose not to mine?
Mr. Pizarchik. No, sir, it is not.
Dr. Gosar. Would you say that the audio tapes mimic what
has been redacted there in the documents provided?
Mr. Pizarchik. If you look at the entire context of the----
Dr. Gosar. Yes or no. Is the audio, stenography of the
audio, what is missing in the redacted form?
Mr. Pizarchik. I am sorry, sir. I cannot read that from
here.
Dr. Gosar. Wow.
The Chairman. Would the gentleman yield real quick?
Dr. Gosar. Yes, I will.
The Chairman. Would you answer that question in writing
after this, and do it immediately? Because it wouldn't take
very long to do it. You know what that document is, you know
what has been redacted. Could you do that?
[No response.]
The Chairman. Could you do that, Director Pizarchik?
Mr. Pizarchik. I will----
The Chairman. It is a direct question that came from the
gentleman from Arizona.
Mr. Pizarchik. I will take a look at that and do my best to
respond as well as I can.
Dr. Gosar. I think it is a yes or no. A yes or no, sir,
that you can look at the right hand and the left hand and
compare them to say that that is exactly what--a stenography of
an audio tape and the provided document. Yes or no?
Mr. Pizarchik. I cannot see it from here, so I can't say--
--
Dr. Gosar. But you will make the comparison--you don't have
to see it. The comparison between the two documents, you will
give us that answer. Yes or no?
Mr. Pizarchik. I think I can----
Dr. Gosar. Thank you. I will take that as a yes.
Mr. Pizarchik [continuing]. Determination of that.
Dr. Gosar. The President made it clear that his goal was to
increase costs for people who work and mine coal. It certainly
looks like you are doing your best to make the President's
promises a reality, and that the ongoing effect to do this in
the dark of night without sharing your efforts with the
Committee or complying with our oversight efforts is completely
unacceptable. I have seen this over and over again. I see this
in Arizona. Here we have the Navajo Generating Station. We see
this particulate rule that has no inference on the Grand
Canyon, and still being--trying to be utilized. And I find it
despicable.
The Chairman. The time of the gentleman----
Dr. Gosar. I yield back my time.
The Chairman [continuing]. Has expired. The Chair
recognizes the gentleman from Maryland, Dr. Harris.
Dr. Harris. Thank you very much. And thank you very much
for taking the time to appear before us.
Now, a couple of times, I think in response, you used the
term you are trying to be ``more open and transparent.'' More
open and transparent than what? I mean the Politburo? I mean
this is open and transparent.
I have to ask you a question. Exactly what is the
Administration trying to hide from the American people? Again,
remember the Administration has promised the most open and
transparent--now, your testimony was, well, those last two
Administrations, they didn't--no. You used the word ``more.''
More open and transparent than what?
Mr. Pizarchik. Well, for example, if you compare what we
have done on the development of the stream protection
rulemaking to the last rulemaking, we have conducted more open
input, we have solicited the public, provided them
alternatives, received their comments. We conducted outreach--
--
Dr. Harris. I am not talking about--excuse me, I am going
to interrupt you. I am not talking about providing input. I am
letting the public see what is going on behind closed doors in
the most open and transparent Administration. This is going on
behind closed doors.
I got to tell you I am getting, you know, a lesson, I
guess, in executive privilege or something. What do you have to
hide? Why wouldn't you want to show the American people what
you use in your deliberations? It is a rhetorical question,
because I know I am not going to get a responsive answer.
I am going to ask one science question, then I am going to
go on. You promised that you are going to use scientific
evidence of the harmful effects of coal dust. You are aware
that joblessness and unemployment increase morbidity and
mortality among people. You are aware of that. Is that right?
Or is the Bureau taking that into consideration, that in fact
coal dust is not the only thing that kills people? Unemployment
and joblessness do. Are you aware of that?
Mr. Pizarchik. I am not a medical doctor or science--I
don't have a basis to----
Dr. Harris. So you are going to look at the environmental
and ecohealth journal, not at medical studies that show that
joblessness and unemployment adversely affect morbidity and
mortality. You are unaware--is that your testimony?
You are going to make rules that impact thousands and
thousands of jobs, destroying them. Your testimony in front of
this Committee is that you are unaware that has adverse health
impacts. Is that your testimony today?
Mr. Pizarchik. My testimony is I am not a medical doctor. I
don't understand----
Dr. Harris. Is your testimony that you are unaware of those
studies as you prepare to make this proposed rule?
Mr. Pizarchik. My testimony is we are going to follow the
National Environmental Policy Act utilizing the science that is
available, assessing----
Dr. Harris. Sir, are you aware or unaware that unemployment
and joblessness adversely affect morbidity and mortality in
America?
Mr. Pizarchik. Sir, I am not a doctor. I don't----
Dr. Harris. I think that is as responsive as I would expect
from the most transparent Administration. I yield the balance
of my time to Mr. Johnson.
Mr. Johnson. I thank my colleague for yielding. Mr.
Director, when I ended my questions earlier we were talking
about the 2008 rule, and whether or not it would have added
clarity and specification and avoided some inconsistencies.
Didn't the 2008 Stream Buffer Zone Rule also emphasize the
need to get a permit through both SMCRA and Clean Water Act
through the EPA and the Corps? In other words, the 2008 Stream
Buffer Zone Rule was more restrictive than the 1983 rule.
Right?
Mr. Pizarchik. I believe what you were reading from the
Federal Register was accurate. I don't profess to know all of
that by heart.
Mr. Johnson. I don't know. OK. I got it.
Is the 2008 Stream Buffer Zone Rule currently enforced
across the country? And have all of the economic impacts of
those rules been imposed on States and industries that mine and
produce coal?
Mr. Pizarchik. Two parts on that. No, it is not being
enforced across the country. And, as I recall, there were no
economic impacts from that rule.
Mr. Johnson. OK. How can you defend OSM's insistence on
pretending that the 2008 Stream Buffer Zone Rule was in place
for the purpose of determining the economic impact of OSM's new
rule?
I mean if the rule isn't being enforced, as you just
stated, then why should that be the baseline for determining
coal production and job losses, unless it is the purpose of the
agency, as shown in this slide? And let's go to Exhibit Number
5.
[Slide.]
Mr. Johnson. To pretend that this isn't the real world,
this is just rulemaking that will cost thousands of jobs,
massive economic impacts, and increase energy costs--let's go
to that. ``This isn't the real world. That is pretending.''
Mr. Pizarchik. As I understand it, you look at the context,
it was the contractor who said he was going to pretend.
And in regards to your first question, the 2008 rule is
the----
Mr. Johnson. Who said it is not the real world, that is
rulemaking. Who said that, Mr. Pizarchik? Was that someone from
your Department?
Mr. Pizarchik. I believe that wasn't an OSM employee.
Mr. Johnson. Yes, it was. Under your direction. Some have
also argued that the fundamental issue that the----
The Chairman. The time of the gentleman has----
Mr. Johnson. I apologize, Mr. Chairman. I yield back.
The Chairman. The time of the gentleman has expired, and I
understand that. The Chair recognizes the gentleman from
Georgia, Dr. Broun.
Dr. Broun. Thank you, Mr. Chairman. Director, I want to
remind you. Even though you are not under oath, you are still
subject to criminal prosecution and jail time, as well as a big
fine, if you answer something that is not the truth, the whole
truth, and nothing but the truth. And that goes not only for my
questions, but the questions from all the members of the
Committee.
Director, has anyone in the Department of the Interior,
anybody in the White House, in the Obama campaign, in the
Administration, throughout the Administration, anyone
associated with the Democratic Party or any supporters of this
Administration asked, suggested, hinted, or in any manner
encouraged OSM to delay the proposed rule on stream buffer to
after the November election?
Mr. Pizarchik. No, sir. No one has made any such
representations of any sort like you have described to me.
Dr. Broun. No one?
Mr. Pizarchik. Not that I am aware of, sir, no.
Dr. Broun. How about just to delay the proposed rule for
any purpose?
Mr. Pizarchik. No, sir, not to delay the rulemaking on
that. There has been no instructions, hints, or directions to
delay the rulemaking.
Dr. Broun. Have there been any emails, texts, letters,
conversations, grunts, winks, nods, or any means of
communication to encourage a delay on these proposed rules?
Mr. Pizarchik. None that I am aware of that I can recall,
sir. No, sir.
Dr. Broun. None whatsoever?
Mr. Pizarchik. Not that I can recall, sir. Not that I am
aware of.
Dr. Broun. What are the impediments to publishing the
proposed rule?
Mr. Pizarchik. We have not yet completed all of the
analysis of alternatives. And as far--and also, if possible,
changes to the rules, to update them. We need to complete that
analysis----
Dr. Broun. Why aren't you completing the analysis, then?
Mr. Pizarchik. Pardon?
Dr. Broun. Why aren't you completing that analysis, then?
Mr. Pizarchik. We are in the process of completing that
analysis, and using that information in accordance with the
National Environmental Policy Act to be able to make informed
decisions. We are not----
Dr. Broun. You work 8 hours a day to do this, or 10 hours a
day, or any amount of time? Can you tell me how much time you
all are spending to try to get this proposed rule out as
quickly as possible? Because you already passed the date that
you agreed to in court.
Mr. Pizarchik. Staff has been working on it, other folks.
We have contractor--I cannot give you a number as to how many
hours a day people have put in on it. The rulemaking process is
very complex. We are trying our best to get it out as quickly
as possible, but we just haven't completed that yet.
The Chairman. Would the gentleman yield real quick?
Dr. Broun. Certainly.
The Chairman. I want to go back to the line of questioning
Dr. Broun had just a moment ago on whether there is any wink
and a nod. And your response was, ``I don't recall.'' That
means there could have been that communication. Is that
correct? Yes or no.
Mr. Pizarchik. No. That is not correct. My response was I
do not know of any of it, and I do not recall any of that. I
do----
The Chairman. But once you say you do not recall, that
implies that there may be. And I am asking you very directly.
Was there anything at all in the line of questioning that Dr.
Broun had about communication of delaying this? Yes or no?
Mr. Pizarchik. There was not any direct communication, any
winks and nods, anything telling me----
The Chairman. Well, OK, was there indirect--when you say
``direct communication'' or--it implies wiggle room here. We
are trying to find out if there is any wiggle room at all. That
was the line of questioning. Yes or no?
Mr. Pizarchik. No. There were no such directions indirect,
direct, wink, nod, nothing.
The Chairman. OK.
Mr. Pizarchik. Nada.
The Chairman. I yield back to the gentleman.
Dr. Broun. OK. Thank you, Chairman. How is OSM proceeding
to develop the proposed rule, and what is OSM doing to get past
whatever obstacle is in place for developing this rule?
Mr. Pizarchik. We have been looking at potential changes.
And then we, in accordance with the National Environmental
Policy Act, we try to assess what those cost and benefits would
be, to use that information to help inform the decision-making
as to whether----
Dr. Broun. In other words, you don't know. I mean you are
just----
Mr. Pizarchik. That is not what I am saying at all, sir.
Dr. Broun. You are just obfuscating in your answers here.
Mr. Pizarchik. No, I----
Dr. Broun. How many staff are at the start of this proposed
rulemaking process that you put in place, and how many are
there today?
Mr. Pizarchik. We had a whole team of folks put in. I do
not remember the numbers.
Dr. Broun. Can you supply the numbers for that question?
Mr. Pizarchik. I believe we can try to determine our best
on what those numbers are----
Dr. Broun. OK. Please do. Do you support coal as a source
of energy? And have you made any statements in any manner that
could be interpreted as being against coal as an energy source
in America?
Mr. Pizarchik. I support coal as an energy mechanism to
help meet our country energy needs as required, and that is
laid out in the statute. That is what we are trying to do, is
balance that----
Dr. Broun. No, I am not asking about the statute. I am
asking about you. Have you made any statements that are anti-
coal? Have you ever expressed anything in any manner--in
writing, in any manner--that could be interpreted as being
against coal, or was blatantly against coal as an energy source
in America?
Mr. Pizarchik. I don't recall of ever making such
statements.
Dr. Broun. My time has expired. Thank you.
The Chairman. The time of the gentleman has expired. The
Chair recognizes the gentleman from Nevada, Mr. Amodei.
Mr. Amodei. Thank you, Mr. Chairman. Mr. Director, are you
aware of any inclusion of the Office of Surface Mining in the
Constitution of the United States?
Mr. Pizarchik. It is not.
Mr. Amodei. OK. So that means you were probably created
how?
Mr. Pizarchik. By Congress.
Mr. Amodei. OK. And so, I was pleased to hear your
discussion with Mr. Benishek regarding oversight. How is it
that you perform oversight with your base creation statute and
other things--for instance, this topic--without knowing what
you are doing in the rulemaking process?
Mr. Pizarchik. You will have an opportunity to, once we
have made a decision as to what ought to be in the proposed
rule. And I believe you will be able to use that information in
order to decide whether you need to take legislative action,
one way or the other, or not. I think----
Mr. Amodei. How long is allowed in the existing regulations
to comment on a proposed rule?
Mr. Pizarchik. The decision on how much--the length of the
comment period would be made at the time the rule is published.
I believe there is a minimum provision, I think, of maybe 50 or
60 days, I believe.
Mr. Amodei. OK. So we are talking 50 or 60 days is the
floor, and the ceiling can be set, under your discretion, at
whatever you think is appropriate.
Mr. Pizarchik. As I understand it, 60 days at minimum, and
there is no statutorily prescribed maximum.
Mr. Amodei. Do you have any knowledge of what the longest
statutorily prescribed maximum for a rule that you have done
has been, historically?
Mr. Pizarchik. I am thinking back to my Pennsylvania days,
and I don't recall whether the statutes there had a maximum
time period on it, sir.
Mr. Amodei. What would your response be to the hypothetical
of, well, the time for public comment on the proposed rule
ought to be at least as long as it took to come up with the
proposed rule? Ever heard of a concept like that before? Or you
think that would be longer, shorter, out of line?
Mr. Pizarchik. I have not heard that concept come up
before.
Mr. Amodei. Your personal reaction off the top of your
head. That a good idea or a bad idea? And let me tell you why I
am asking it, so--because when I hear about deliberations,
which I want to talk to you about in a second, proposed rule,
you are working on it, robust peer review, all that sort of
stuff, and it is like that is all great. So you are going to
take how long? From 2008, 2009 to some time? And then you are
saying, ``Hey, by the way, those of you folks with oversight,
you go ahead and get it done in 60 days, you get it done in 12
months.'' I mean, you know, there is a phrase that can go with
oversight, which is ``meaningful.''
Mr. Pizarchik. Yes, I know. And in regards to your question
on how much time, there--a different process is--you are saying
once we have the proposed rule completed, have the draft EIS
completed, you will have the benefit of all that work that lays
out the methodology that was used----
Mr. Amodei. Well, and I understand, Mr. Director. But,
quite frankly, this is a robust process, which means having the
``benefit of that work'' is in the eyes of the beholder.
And you know what? It is tough to give you the benefit of
that doubt when the eyes of the beholder, at least in the
instance of this Committee, have a blindfold over them.
And so, no disrespect, I just have one more thing. Are you
aware of any authority anywhere in your regulations for OSM
that gives you privilege for deliberation on proposed
rulemaking?
Mr. Pizarchik. No, sir, I am not.
Mr. Amodei. Thank you very much. Mr. Chairman, I would like
to cede the rest of my time to the gentleman from Utah, Mr.
Bishop.
Mr. Bishop. Thank you, Mr. Amodei. I will probably come
back to you, if I could. I just want a point of clarification.
I was talking earlier with the gentlelady from California, and
we were both bemoaning the fact that this is not the first time
we have received documents that were redacted. And,
unfortunately, it will probably be not the last time we will
see documents that are redacted. Certain documents are going to
be put into the record.
I want the record to clearly state when documents are
coming to us from the Administration they are stamped with the
date and the time and the document number on the bottom of the
page, and that some of the information given to us of what the
redacted material was is not coming from the Administration.
They are coming from the contractors. And one must only wonder
why we are getting information from a secondary source, but not
from the Administration. They are still giving us the redacted,
blacked-out material. I wanted that clarification in the record
with those--with that data.
And I will yield back. I have 30 seconds, Mark, if you
still want some time for one last question.
Mr. Amodei. Mr. Chairman, I yield back.
The Chairman. I yield to the gentleman from Ohio.
Mr. Johnson. Mr. Chairman, I have about 3 or 4 more
questions with only 18 seconds left. I don't think I can get
into them. So I will yield back at this point.
The Chairman. The gentleman yields back the time. The Chair
recognizes the gentleman from Colorado, Mr. Coffman.
Mr. Coffman. Thank you, Mr. Chairman. I would like to yield
some of my time to Mr. Thompson of Pennsylvania.
Mr. Thompson. I thank my good friend from Colorado for
yielding.
Director, I want to come back. I want to confirm your
earlier statement when we had our last conversation that the
now 18-month-old EIS and RIA drafts that showed an expected
devastating impact on small businesses, economic harm in 22
States, and a loss of at least 7,000 jobs were accurate, since
these were sent to cooperating agencies for review.
Mr. Pizarchik. Well, I am sorry, what is your question on
that?
Mr. Thompson. My question is that the report that came out,
the specific report that came out from your agency on the--
through the EIS and the RIA that you sent out to cooperating
agencies that outlined that this would be an economic
devastating impact, specifically harm in 22 States and a loss
of 7,000 jobs, that that was accurate, since that was set out
under your letterhead to these cooperating agencies in this
process.
Mr. Pizarchik. That was the first working draft of the
contractor. And the way the law has required the process to
work is for us to get feedback and analysis of what the
potential impacts might be, and for us to also understand the
methodology, so that we can make informed decisions----
Mr. Thompson. Well, I understand that. But in my previous
conversation--I was just confirming, because you said--I asked
you whether those were placeholder numbers, meaning until
something else comes in, and you said they were until the point
where more information came in. And what you expressed was
confidence that those were sent out.
OSM has been working on the stream protection rule for
almost 3 years, and nothing has been completed. Do you still
maintain that the settlement agreement that committed DOI and
OSM to publish a final rule in just over 2 years was a prudent
use of taxpayer dollars?
Mr. Pizarchik. Yes, sir. I do believe it was a prudent use
of taxpayer dollars.
Mr. Thompson. Well, based on what OSM and the Interior
Department has been willing to share with this Committee, it
appears that you have really nothing to show for the last 2
years of work. Furthermore, additional promises of, ``You can
see what we did after it is complete'' sounds remarkably
similar to another infamous promise of, ``We will have to pass
this bill before we find out what is in it.''
Frankly, this is unacceptable and very disappointing from
the Administration, that promised unprecedented levels of
transparency--you know, one of my colleagues here talked
about--used the word ``obliterating.'' And this is. This has
been obliterating, I think, to the Congress's oversight
responsibility and, frankly, to jobs and affordable energy in
this country.
So, I thank my good friend for yielding, and I yield back
to him.
Mr. Coffman. Thank you, Mr. Chairman. I yield the balance
of my time to Mr. Johnson of Ohio.
Mr. Johnson. I thank the gentleman for yielding.
Mr. Director, is your team that is working on the Stream
Buffer Zone Rule, are they working full time on this rule?
Mr. Pizarchik. At the current moment they are not.
Mr. Johnson. They are not. Are they on hiatus? What are
they working on, if they are not working on this?
Mr. Pizarchik. They are working on their regular full-time
jobs, and participating in working on this rule as necessary.
Mr. Johnson. OK. So there is really no attempt at best
efforts. That is what is meant by best efforts to comply with
the court settlement, is to send your people on hiatus and
suspend operations? That is best effort? That is what the
American people deserve?
Mr. Pizarchik. No, sir that is not----
Mr. Johnson. I didn't think so.
Mr. Pizarchik [continuing]. What is occurring. What is
occurring, they----
Mr. Johnson. Some have----
Mr. Pizarchik [continuing]. Are working on the rule----
Mr. Johnson. Mr. Pizarchik, some have argued that the
fundamental issue is that the 2008 Stream Buffer Zone Rule does
not adequately protect streams from mining waste, or spoil. But
isn't it true that SMCRA fully considered spoil being placed in
valleys and streams, but to do it with as little environmental
damage as possible? Certainly the former Chairman of this
Committee, Mr. Rahall, as well as many others, believe this to
be the case. Is that your understanding, as well?
Mr. Pizarchik. It is my understanding that it does
recognize that----
Mr. Johnson. OK. That----
Mr. Pizarchik [continuing]. And it requires that spoil be
transported----
Mr. Johnson. I will take that as a yes.
Mr. Pizarchik [continuing]. And placed in a controlled----
Mr. Johnson. Thank you.
Mr. Pizarchik [continuing]. Fashion, not dumped----
Mr. Johnson. You testified back in November, Mr. Pizarchik,
that SMCRA is not a law to promote the development of coal.
Let's take a look at the exhibit.
[Slide.]
Mr. Johnson. You said that SMCRA is not a law to promote
the development of coal. But if you look--however, SMCRA was
created to balance the need for coal production with
environmental concerns.
So, did you testify that one of the several purposes was to
assure that coal supply essential to the Nation's energy
requirements is provided, and to strike a balance between
protection of the environment and an agricultural productivity
in the Nation's need for coal?
Mr. Pizarchik. I believe I have consistently testified that
one of the purposes is to balance the needs and help--to meet
this country's energy needs for power, yes.
Mr. Johnson. But back in November you said that SMCRA is
not a law to promote the development of coal. So how do we
balance that?
You say one thing one day, Mr. Pizarchik, and another thing
the next day.
Mr. Pizarchik. I believe if we were to go back and look at
that testimony in my written statement, we will find that the
primary purpose was to protect people and the environment,
while helping meet this country's energy needs.
Mr. Johnson. I yield back, Mr. Chairman.
The Chairman. The time of the gentleman has expired. The
Chair recognizes the gentleman from Colorado, Mr. Tipton.
Mr. Tipton. Thank you, Mr. Chairman. I would like to yield
my time back to the Chairman of the Natural Resources
Committee.
The Chairman. I thank the gentleman for yielding. Mr.
Pizarchik, are there any limits to the Department's claim to be
able to withhold documents on the basis that it is pre-
decisional in on ongoing rulemaking process?
Mr. Pizarchik. Mr. Chairman, the Department is not
withholding documents----
The Chairman. No, I didn't ask you that. I said are there
any limits to the claim that you can say you are--don't want to
provide documents. Are there any limits to that?
Mr. Pizarchik. I am not a constitutional law expert on
that----
The Chairman. Let me just pose a few things. What if there
is some illegal activity that had occurred? Wouldn't that raise
a red flag, perhaps, to you?
Mr. Pizarchik. I believe, yes, illegal activity would raise
a red flag.
The Chairman. OK. What if the process was being conducted
improperly? Wouldn't that raise the red flag to you?
Mr. Pizarchik. Yes.
The Chairman. Yes? So, on this rule there are serious
questions regarding exactly both of those actions. There are
serious questions. So to withhold, you know, that information,
to me, is simply not valid.
Now, what would be valid, however, is a formal assertion of
executive privilege by the President. So, has the President
asserted executive privilege on any documents that are covered
under the two subpoenas that we sent to you?
Mr. Pizarchik. Not to my knowledge, sir.
The Chairman. OK. Has the Department communicated with the
White House about the possibility of asserting executive
privilege?
Mr. Pizarchik. I don't--I haven't been involved in it. I
don't know whether the--I don't know the answer to that. I
don't think so, but I do not know.
The Chairman. Has the White House consulted or been
involved in the decision to refuse to comply with the
subpoenas?
Mr. Pizarchik. The Department has not refused to comply
with the subpoenas. We have been working with the----
The Chairman. Well, I guess that is a subjective answer.
Let me ask this. Has the Department identified documents
that would be covered by the category specified in the
subpoenas, but they haven't been provided to the Committee?
Mr. Pizarchik. Mr. Chairman, we have been working to
provide the documents that are responsive. I am not familiar
with the exact status of all the documents. As you can imagine,
having received 13,500 pages of documents, there are a lot of
documents involved in this matter.
The Chairman. Well, I have to take that as a no, which I
find very interesting, because we have asked for something and
it appears that you are not trying to comply.
I will yield the balance of my time to Mr. Lamborn from
Colorado.
Mr. Lamborn. Thank you, Mr. Chairman. Mr. Director, as you
know, there was an out-of-court settlement in effect with you,
your organization, and the litigants. Although documents
regarding the settlement have been requested, none have been
produced to date. What communications have you had with the
litigants in the case regarding the missed deadlines?
Mr. Pizarchik. As I understand it, we had had a status
conference with them to apprise them of the fact that we had
missed the deadline, and some of the explanation as to why, and
I believe you understand as to why our best efforts weren't
successful with the first contractor on that.
The specifics of the discussion, as I understand it, are
covered by provisions as far as, I guess, settlement
negotiations. I believe that is covered by it, but I am not an
expert in that area.
Mr. Lamborn. Has your office had any communications with
the plaintiffs about not scheduling--or not seeking a
scheduling order?
Mr. Pizarchik. Not to my knowledge, sir. I have not had any
such discussions.
Mr. Lamborn. So, this rule that was thrown out, it took 5
years and $5 million and it was thrown out. And now there are
deadlines that have come and gone. And the Department of the
Interior and the Office of Surface Mining haven't communicated
with the plaintiffs about scheduling--seeking a scheduling
order?
Mr. Pizarchik. The rule has not been thrown out. It is the
law of the land. And just recently it is my understanding the
court has asked for a status report from the parties in the
litigation. I believe I had heard that a little bit earlier
this week from one of our attorneys.
Mr. Lamborn. Have the plaintiffs asked the court to lift
the stay and establish a schedule for further proceedings?
Mr. Pizarchik. Not to my knowledge, sir.
Mr. Lamborn. And have you been in touch with them about
when the rulemaking is going to be completed?
Mr. Pizarchik. No, sir, I have not.
Mr. Lamborn. The Congressional Budget Office said that they
thought the regulations wouldn't come out until the end of
2013. Do you know anything about that?
Mr. Pizarchik. No, sir. I do not.
Mr. Lamborn. So you have no idea when this will be, when
the rule will be issued?
Mr. Pizarchik. As I indicated earlier, I attempted to make
a best judgment of when we could complete it. That has proven
not to be something we could accomplish. And I would not hazard
a guess as to when we were going to be able to complete the
work, when we can get the proposed out, nor how much time it
will take you to go from proposed to final. I am--I can't
predict that.
Mr. Lamborn. OK. Thank you, Mr. Chairman. I yield back.
The Chairman. The time of the gentleman has expired.
And, Director Pizarchik, I appreciate your being here. I
know it has been a long morning. And if you have sensed a bit
of frustration on this side, it is there, and you can see that.
Let me just review, as I see this whole issue. It took 5
years to put a plan in place that was promulgated in the end of
2008. Immediately after the new Administration came in, they
threw out that rule that cost millions of dollars, and then
announced that they were going to write a new rule, and 3
months later entered into a court decision in which they said,
in a prescribed time period under the court, that they would
have a new rule. That deadline has been missed. Under repeated
questioning from me, from Mr. Lamborn, virtually everybody, and
even questions on the other side, you can't tell us when that
is going to be done. That is just--that is incomprehensible.
But I have to tell you that what is probably more appalling
to me, since I am the Chairman of the Committee, was your
response to the gentleman from New Jersey, Mr. Holt, in asking
that you don't know what we are asking. I think we have been
very, very clear in what we are asking of you with the
subpoenas and information, because it is true that you have
asked us. And we responded in a letter last January, January
25th. I assume you got the letter.
And I will quote what it says, so there will be no
confusion on what we are asking. And I will quote. ``When the
decision to undertake''--we want to understand--``the decision
to undertake this sweeping, rush rewrite of the rule''--pretty
straightforward--``Two, the economic impact it would cause.''
And then also, to further go on, ``whether the political
implications of the rule are having under the influence of this
process,'' whatever political implications. Now, those are the
three things that we are asking. It is pretty clear.
So, when you go back and look at what we are asking in
subpoenas, I would just reference you to the giant January 25th
letter. Now, if something is--you know, I can't imagine that we
can't be more clear than that. So I was appalled at your
response to the gentleman from New Jersey's question in that
regard.
Now, Director Pizarchik, there, I am sure, are further
questions that will come up, which typically does when we have
hearings like this. And there will be written questions that
will be sent to you from individual Members. I would ask you to
respond in a timely manner to those questions. Would you do
that?
Mr. Pizarchik. I will do my best, sir.
The Chairman. OK. Now, a timely manner, to me, because you
now have been in front of this Committee and you know the tone
of what is being asked, a timely manner to me would be within 2
weeks. Would that sound reasonable to you?
Mr. Pizarchik. And when you are talking the 2 weeks, you
are regarding the questions that were asked here today?
The Chairman. Yes, 2 weeks in receipt of the questions, if
there are further questions. There may not be any further
questions. But there may be further questions.
Mr. Pizarchik. Well, if there are further questions, you
know, I--obviously, we will give it our best to respond as
timely and as quickly as we can. Not knowing what they may be,
I cannot commit to a specific time period. But we will do our
very best to accommodate----
The Chairman. OK. Now--and the reason I ask that was
because, again, going back to what I said in conclusion, there
is a 5-year time period to put a rule in place. That was thrown
out immediately when the new Administration came in place. You
announced that you are going to do a new rulemaking process.
Three months later you enter into a court decision.
Now, you know, the timeliness and the scope of what that is
being done there, to me, is very, very large. And all I am
asking here, and all we are asking is that if we ask you
questions, respond in a timely manner, that I would interpret
to be 2 weeks. And you say you will do your best. OK, I guess
that is the best I can get out of you. I can't get any more
than that.
So, I want to ask before I close, I ask unanimous consent
that the exhibits provided by the Majority be placed in the
hearing record.
[No response.]
The Chairman. And without objection, so ordered. And,
before I conclude, I will recognize the gentleman from
Michigan, Mr. Kildee.
Mr. Kildee. Thank you very much, Mr. Chairman. I appreciate
the time.
The Natural Resources Committee Majority has raised
questions regarding a need for a new stream protection rule,
and is pursuing an aggressive investigation, apparently based
on the premise that promulgation of such a rule is somehow
inappropriate. In order to assist members of the Committee to
fully understand the need for a new stream protection rule, we
requested that representatives of the communities and families
who live and work in the regions harmed by the destructive
practice of mountaintop removal mining be invited to testify at
today's oversight hearing. Testimony from these witnesses would
illustrate the enormous cost being paid by these communities in
terms of environmental and human health.
Unfortunately, our request was refused. As a result,
pursuant to Rule 11 of the Rules of the House and Rule 4 of the
Rules of the Committee on Natural Resources, 13 members of the
Committee have requested a further hearing on the status of
Obama Administration's rewrite of the Stream Buffer Zone Rule,
and compliance with Committee subpoenas, during which witnesses
selected by the Minority shall be allowed to testify.
Mr. Chairman, we look forward to a second day of hearings
on this topic, so that we can hear from the people who actually
live in the impact of mountaintop mining each and every day.
And I appreciate----
The Chairman. And the Chair is aware of that request, and
it will be respected.
And if there is no further business to come before the
Committee, the Committee stands in recess, subject to the call
of the Chair.
[Whereupon, at 12:24 p.m., the Committee was adjourned.]