[House Report 113-364]
[From the U.S. Government Publishing Office]
113th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 113-364
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PREVENTING GOVERNMENT WASTE AND PROTECTING COAL MINING JOBS IN AMERICA
_______
February 28, 2014.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Hastings of Washington, from the Committee on Natural Resources,
submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 2824]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 2824) to amend the Surface Mining Control and
Reclamation Act of 1977 to stop the ongoing waste by the
Department of the Interior of taxpayer resources and implement
the final rule on excess spoil, mining waste, and buffers for
perennial and intermittent streams, and for other purposes,
having considered the same, report favorably thereon without
amendment and recommend that the bill do pass.
Purpose of the Bill
The purpose of H.R. 2824 is to amend the Surface Mining
Control and Reclamation Act of 1977 to stop the ongoing waste
by the Department of the Interior of taxpayer resources and
implement the final rule on excess spoil, mining waste, and
buffers for perennial and intermittent streams.
Background and Need for Legislation
This legislation is the result of years of ongoing
dysfunction and waste at the Department of the Interior's
Office of Surface Mining. Regrettably the Obama Administration
made the reckless decision to discard the results of a
multiyear rulemaking process for a Stream Buffer Zone Rule that
concluded in 2008 in favor of starting from scratch with its
own new rulemaking. That rulemaking process has been an
unmitigated disaster which has already taken five years and
cost the taxpayers more than $9 million without a single
result. Meanwhile, states, industry and workers are left in
limbo unsure of what the operating rules are on the ground. To
stop the waste and provide clarity to states and the
Administration, the bill implements the 2008 rule then directs
the Department of the Interior to study the impact of the rule
for a prescribed time period prior to initiating another new
rulemaking. This will provide certainty to the economy, the
various agencies and states and allow a clear examination of
what may need to be changed in the future so that further
costs, wasteful bureaucratic mistakes are not made resulting in
lawsuits.
The Surface Mining Control and Reclamation Act of 1977
(SMCRA) is the primary federal law that regulates the
environmental effects of coal mining in the United States.
SMCRA created two programs: title V for regulating active coal
mines and title IV for reclaiming abandoned mine lands. SMCRA
also created the Office of Surface Mining (OSM), an agency
within the Department of the Interior, to promulgate
regulations, to fund state regulatory and reclamation programs,
and to ensure consistency among state regulatory programs.
Twenty-five states and three Tribal Nations have coal
operations. Twenty-three states have primacy (this means that
the state has the responsibility for carrying out the
provisions of SMCRA within the state) over the title V and
title IV programs in their states. Two Tribal Nations have
submitted regulatory programs under title V to OSM for approval
for primacy. Currently the 23 primacy states are still
operating under the 1983 stream buffer zone rule. The 2008 rule
only affects Tennessee, Washington and the three Tribal
Nations--the Crow, Navajo and Hopi.
State primacy is important in that each state has different
topography, geologic parameters and climatic conditions that
can and do affect permit requirements. The state regulators
have the firsthand knowledge and expertise to develop
regulations and administer them for the on-the-ground
environmental conditions found within the state.
BACKGROUND (112TH CONGRESS)
On December 12, 2008, after a five-year deliberative
process that included extensive environmental analyses, public
comment, and a concurrence from the Environmental Protection
Agency,\1\ published its final rule on ``Excess Spoil, Coal
Mine Waste, and Buffers for Perennial and Intermittent
Streams,'' commonly referred to as the Stream Buffer Zone Rule
in the Federal Register. The rule was to go into effect on
January 12, 2009.\2\
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\1\http://s3.amazonaws.com/propublica/assets/docs/
johnson_kempthorne_letter_081204.pdf.
\2\http://www.gpo.gov/fdsys/pkg/FR-2008-12-12/html/E8-29150.htm
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However, before the new regulation could go into effect,
the National Parks Conservation Association and Coal River
Mountain Watch filed suit against the Department of the
Interior and OSM for failing to consult with the Fish and
Wildlife Service with regards to endangered species.\3\
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\3\Referenced lawsuits were filed in December 2008 and January
2009, effectively stopping the implementation of the Stream Buffer Zone
Rule. Coal River Mountain Watch, et. al v. Salazar No. 08-2212 (D.D.C)
filed; National Parks Conservations Ass'n v. Salazar No. 09-115 (D.D.C)
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OSM announced that it was withdrawing the newly promulgated
regulation and attempted to put in place more restrictive
regulations using guidance documents. The National Mining
Association (NMA) challenged these actions under the
Administrative Procedure Act (APA). The court ruled against the
Department, holding that withdrawing the rule without public
notice and comment would violate the APA, and said that OSM
could only change or revoke the regulations by going through a
formal rulemaking process. OSM then reached an out-of-court
settlement with the environmental groups agreeing to an
expedited time frame for writing the rule (the Department
agreed to publish the rule by February 28, 2011).
While Interior Secretary Salazar claimed in court documents
that the rule was ``legally infirm,'' internal memorandum and
documents from OSM show that the Obama Administration began
working to change the rule immediately upon taking office. In
fact, in OSM's June 18, 2010, Federal Register Notice
announcing the new ``Stream Protection Rule'' it stated: ``we
had already decided to change the rule following the change of
Administrations on January 20, 2009.''\4\
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\4\http://www.gpo.gov/fdsys/pkg/FR-2010-06-18/html/2010-14727.htm
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On January 26, 2011, portions of the environmental impact
statement being prepared in support of the new ``Stream
Protection Rule'' were leaked to the public. The Associated
Press reported that OSM's preferred ``Stream Protection Rule''
could cost at least 7,000 jobs and reduce coal production in 22
states.\5\
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\5\http://www.wvgazette.com/News/MiningtheMountains/201101280708
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Embarrassed by the critical reporting and the ensuing
outrage at the projected job losses, OSM attempted to have the
contractor that calculated the job loss numbers revise its
initial findings by assuming that the 2008 rule had been
implemented and was in effect across the country, when this was
not the case. When the contractor refused, the Administration
cancelled the contract.
Shortly after the press reports and the dismissal of the
contractor the Committee on Natural Resources launched an
investigation into the Obama Administration's efforts to
rewrite the 2008 Stream Buffer Zone Rule.
After several oversight hearings and interviews with
contractors and subcontractors working on the new rulemaking,
it was clear that one of the problems for the Administration
and major frustrations for the states that were cooperating
agencies was the expedited time frame the Administration had
agreed to for issuing the rule as part of the settlement
agreement with the environmental organizations. According to
several sources, this was an unprecedented timeframe to
complete rulemaking of this magnitude.
The Committee's solution was to craft a bill that would
serve to extend the rulemaking exercise, giving the
Administration time to put together a defensible rule.
In November 2011, Congressman Bill Johnson (R-OH)
introduced H.R. 3409, the Coal Miner Employment and Domestic
Energy Infrastructure Protection Act.
On September 20, 2012, the Committee's oversight office
released a report on the status and findings in the on-going
investigation into the re-write of the ``Stream Buffer Zone
Rule.''\6\
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\6\http://naturalresources.house.gov/oversight/coalregs/
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H.R. 3409 was a part of the Stop the War on Coal Act and
passed the House on September 21, 2012.\7\
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\7\http://naturalresources.house.gov/news/
documentsingle.aspx?DocumentID=309512
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113TH CONGRESS
In late January 2013, environmental groups announced that
they were reopening their lawsuit on the 2008 Stream Buffer
Zone Rule because the Department had missed all of the agreed
upon deadlines for the new rulemaking.
Partly in response to the renewed litigation, the Committee
has sent two additional letters to Secretary Salazar, the first
on February 22, 2013, and the second on March 23, 2013,
requesting information about the current status of the rule,
asking for information about communications with the litigants,
and expressing the Committee's disappointment in the lack of
transparency and failure to comply with the Committee's
document requests
Finally, on April 2, 2013, the Committee on Natural
Resources received a response to the February 22, 2013, letter
from Joseph Pizarchik, Director of OSM. While the response did
not provide everything that the Committee had requested,
Pizarchik stated: The Stream Protection Rule remains under
development, as does its associated Draft Environmental Impact
Statement (EIS) and Regulatory Impact Analysis (RIA). At this
time, OSM plans to publish a proposed rule in 2014.
In addition, he stated that OSM has spent approximately
$8.6 million on the rulemaking exercise, $6 million of which
has been spent for the EIS and RIA, although neither has been
completed. Some of the original money was reprogramed from
state SMCRA programs. For comparison the Stream Buffer Zone
Rule cost the previous Administration approximately $5 million
for a five year process.
Five months after the latest request, the Committee
received another production of documents in response to the
request for information about the Department's communications
with the plaintiffs and the status of the litigation. Many of
the documents received were redacted so that all relevant
information was withheld from Congress. The latest Federal
Register update estimates that the Department will publish a
proposed rule in August 2014, more than five months from now.
LATEST FEDERAL COURT ACTION
On July 17, 2013, the Department went back to federal court
and again agreed with the environmental plaintiff groups in
asking the court to vacate the 2008 Rule. This same request was
denied in 2009 when the court told the Administration that
granting its request to vacate the rule would ``wrongly allow
the Federal Defendants to do what they cannot do under the APA,
repeal a Rule without notice and comment.''\8\
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\8\National Parks Conservation Ass'n v. Salazar, 660 F.Supp 2d 3
(D.D.C. 2009)
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Once again, this legislation is the direct result of the
ongoing dysfunction, mismanagement, and waste at the Department
of the Interior's OSM. In the last four years since the
Department first made the decision to reject the 2008 Rule, it
could have completed a simple rulemaking to vacate the 2008
Rule, could have completed a thorough and valid notice and
comment rulemaking for their proposed Stream Protection Rule,
or could have decided to implement the 2008 Rule that is
already on the books. Unfortunately, the Obama Administration
has done none of those things. Rather it fired or dismissed
contractors, refused to comply with legitimate oversight from
the Committee on Natural Resources and cost the taxpayers more
than $9 million, without a single result.
Section-by-Section Analysis
Section 1. Short title
This Act may be cited as Preventing Government Waste and
Protecting Coal Mining Jobs in America.
Section 2. Incorporation of surface mining stream buffer zone rule into
State programs
H.R. 2824 amends Section 503 of SMCRA by requiring states
with approved programs under the Act to adopt as part of their
program a rule promulgated by OSM on December 12, 2008,
concerning excess spoil, coal mine waste and buffers for
perennial and intermittent streams. States would have a two-
year period to submit a program amendment that incorporates the
2008 Rule.
Once all of the state plans have been approved, the effects
of the new regulations will be analyzed for a period of five
years. On completion of the analysis, OSM is required to report
back to the House and Senate Committees with jurisdiction over
SMCRA on the effectiveness of the rule, impact on energy
production, and identify and justify anything that should be
addressed through a new rulemaking process.
Committee Action
H.R. 2824 was introduced on July 25, 2013, by Congressman
Bill Johnson (R-OH). It was referred to the House Committee on
Natural Resources and within the Committee to the Subcommittee
on Energy and Mineral Resources. On August 2, 2013, the
Subcommittee held a hearing on the bill. On November 14, 2013,
the Natural Resources Committee met to consider the bill. The
Subcommittee on Energy and Mineral Resources was discharged
from the bill by unanimous consent. An amendment offered by Mr.
Holt.001 was NOT AGREED TO by a bipartisan vote of 15 to 24, as
follows:
An amendment offered by Mr. DeFazio.002 was NOT AGREED TO
by voice vote. The bill was adopted and favorably reported to
the House of Representatives by a bipartisan vote of 24 to 15,
as follows:
Committee Oversight Findings and Recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
Compliance With House Rule XIII
1. Cost of Legislation. Clause 3(d)(1) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(2)(B)
of that rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974. Under clause 3(c)(3) of rule
XIII of the Rules of the House of Representatives and section
403 of the Congressional Budget Act of 1974, the Committee has
received the following cost estimate for this bill from the
Director of the Congressional Budget Office:
H.R. 2824--Preventing Government Waste and Protecting Coal Mining Jobs
in America
H.R. 2824 would require certain states to implement, within
two years, a rule published in 2008 by the Office of Surface
Mining, Reclamation, and Enforcement (OSM) regarding the
disposal of mine waste near streams (the stream buffer zone
rule). The bill also would require OSM to assess the
effectiveness of that rule after five years of implementation
and to report its findings to the Congress. Finally, the bill
would prevent OSM from issuing a new rule regarding stream
buffer zones until the agency completes the report required
under the bill.
CBO estimates that implementing the bill would have no
significant impact on the federal budget. Enacting the bill
could affect offsetting receipts, which are treated as
reductions in direct spending; therefore, pay-as-you-go
procedures apply. However, CBO estimates that any such effects
would be negligible. Enacting H.R. 2824 would not affect
revenues.
Under the 2008 stream buffer zone rule, which CBO expects
would be implemented through 2021 under the bill, firms would
be allowed to dispose of mine waste near streams if regulators
determine that avoiding disturbance of the streams is not
reasonably possible. Under the rule OSM is currently
implementing, firms are prohibited from disposing of mine waste
within 100 feet of streams; however, according to the Office of
Information and Regulatory Affairs, OSM is in the process of
preparing a new rule to govern such disposal. CBO has no
information regarding the content of the new rule or when it
might be implemented.
The budgetary impact of enacting H.R. 2824 would depend, in
part, on whether the stream buffer zone rule implemented under
the bill would be more or less restrictive than the rule
implemented under current law. If the rule implemented under
the bill imposed relatively fewer restrictions on the disposal
of mine waste, coal producers would use less costly methods to
dispose of such waste and CBO expects that firms producing coal
would increase their valuation of coal leases affected by the
rule, including leases on federal lands. Under such a rule, CBO
expects that proceeds to the federal government would increase
from the sale of federal coal leases. Conversely, a relatively
more restrictive disposal rule would reduce the value of coal
leases and thus the proceeds from the sale of coal leases on
federal lands.
Based on information provided by OSM, CBO expects that
implementing a new stream buffer zone rule would primarily
affect coal mining that requires the removal of mountaintops in
the Appalachian Mountains. In 2012, the federal proceeds from
activities related to coal mining on federal lands in that area
totaled $1.5 million. Because the existing federal proceeds
from the area affected by this bill are small, and because it
is unclear whether the rule imposed by this bill would be more
or less restrictive than the rule that OSM will impose under
current law, CBO expects that firms in the coal industry would
not significantly change their valuation of coal leases under
the bill, and therefore, that enacting H.R. 2824 would have a
negligible impact on the federal budget.
H.R. 2824 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
The bill would impose additional requirements on states and
tribal governments that choose to apply for exclusive
jurisdiction--or ``primacy''--in regulating surface mining
operations within their jurisdiction. However, those
requirements would be conditions of participating in a
voluntary federal program and thus not mandates as defined in
UMRA.
The CBO staff contacts for this estimate are Jeff LaFave
(for federal costs) and Michael Kulas (for the state and local
impact). The estimate was approved by Theresa Gullo, Deputy
Assistant Director for Budget Analysis.
2. Section 308(a) of Congressional Budget Act. As required
by clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives and section 308(a) of the Congressional Budget
Act of 1974, this bill does not contain any new budget
authority, spending authority, credit authority, or an increase
or decrease in revenues or tax expenditures. CBO estimates that
implementing the bill would have no significant impact on the
federal budget.
3. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill is to amend the Surface Mining Control
and Reclamation Act of 1977 to stop the ongoing waste by the
Department of the Interior of taxpayer resources and implement
the final rule on excess spoil, mining waste, and buffers for
perennial and intermittent streams.
Earmark Statement
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of
the House of Representatives.
Compliance With Public Law 104-4
This bill contains no unfunded mandates.
Compliance With H. Res. 5
Directed Rule Making. The Chairman does not believe that
this bill directs any executive branch official to conduct any
specific rule-making proceedings.
Duplication of Existing Programs. This bill does not
establish or reauthorize a program of the federal government
known to be duplicative of another program. Such program was
not included in any report from the Government Accountability
Office to Congress pursuant to section 21 of Public Law 111-139
or identified in the most recent Catalog of Federal Domestic
Assistance published pursuant to the Federal Program
Information Act (Public Law 95-220, as amended by Public Law
98-169) as relating to other programs.
Preemption of State, Local or Tribal Law
This bill is not intended to preempt any State, local or
tribal law.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
SURFACE MINING CONTROL AND RECLAMATION ACT OF 1977
* * * * * * *
TITLE V--CONTROL OF THE ENVIRONMENTAL IMPACTS OF SURFACE COAL MINING
* * * * * * *
state programs
Sec. 503. (a) * * *
* * * * * * *
(e) Stream Buffer Zone Management.--
(1) In general.--In addition to the requirements
under subsection (a), each State program shall
incorporate the necessary rule regarding excess spoil,
coal mine waste, and buffers for perennial and
intermittent streams published by the Office of Surface
Mining Reclamation and Enforcement on December 12, 2008
(73 Fed. Reg. 75813 et seq.).
(2) Study of implementation.--The Secretary shall--
(A) at such time as the Secretary determines
all States referred to in subsection (a) have
fully incorporated the necessary rule referred
to in paragraph (1) of this subsection into
their State programs, publish notice of such
determination;
(B) during the 5-year period beginning on the
date of such publication, assess the
effectiveness of implementation of such rule by
such States; and
(C) upon the conclusion of such period,
submit a comprehensive report on the impacts of
such rule to the Committee on Natural Resources
of the House of Representatives and the
Committee on Energy and Natural Resources of
the Senate, including--
(i) an evaluation of the
effectiveness of such rule;
(ii) an evaluation of any ways in
which the existing rule inhibits energy
production; and
(iii) a description in detail of any
proposed changes that should be made to
the rule, the justification for such
changes, all comments on such changes
received by the Secretary from such
States, and the projected costs and
benefits of such changes.
(3) Limitation on new regulations.--The Secretary may
not issue any regulations under this Act relating to
stream buffer zones or stream protection before the
date of the publication of the report under paragraph
(2), other than a rule necessary to implement paragraph
(1).
* * * * * * *
DISSENTING VIEWS
This bill is an unwarranted ambush on an ongoing rulemaking
process, an uncharacteristic attack by the Majority on the
principle of federalism and states' rights, and an
unconscionable assault on the health of the residents of
Appalachian communities suffering from the devastating impacts
of mountaintop removal mining.
As documented by a 2005 Environmental Impact Statement,
nearly 2,000 miles of streams were buried or degraded by
mountaintop removal mining from 1985 through 2002. Mountaintop
removal mining destroys wildlife habitat, contaminates surface
and drinking water, leads to flooding, and as a number of new
studies show, increases the incidence of cancer, birth defects,
lung disease, and heart disease in people who live nearby.
Unfortunately, the Majority has willfully ignored the
negative health and environmental impacts of mountaintop
removal mining. Instead, they have trained their fire on the
Obama Administration's attempts to write a rule that would
actually protect streams, as opposed to the illegal Bush
Administration's midnight rule that undermined existing
protections put in place by President Reagan, and was recently
vacated by a U.S. district court.
The Majority has conducted a multi-year investigation into
the drafting of the Stream Protection Rule, holding three
oversight hearings with the Director of the Office of Surface
Mining, issuing two subpoenas, receiving over 13,500 pages of
documents and 25 hours of audio recordings. However, this witch
hunt has uncovered no misconduct on the part of the Department
of the Interior (DOI) or the Office of Surface Mining--a
conclusion also reached by the DOI Office of Inspector General
in a report released in December 2013. However, the
investigation has succeeded in distracting the Department from
completing the rulemaking and wasting taxpayer money; the
Department reported that in 2013, responding to all the
document requests from the Majority took over 19,000 staff
hours at a cost of nearly $1.5 million.
H.R. 2824 attempts to prevent the Office of Surface Mining
from moving forward with a new rule, before a draft rule has
even been published or debated. Further, the bill forcibly
enacts the 2008 Bush rule in every state with a coal mining
program, regardless of whether the state prefers to maintain
stricter standards, and despite the fact that the rule was
vacated on February 20, 2014, by the D.C. District Court.
Requiring the states to adopt a vacated rule will result in a
tremendous waste of state resources, as the states could be
forced into litigation immediately upon adoption, and then
would be required to adopt the new rule when it is finalized.
Finally, the bill's mandatory implementation period means
that no attempt could be made to protect Appalachian streams
from mountaintop removal mining before 2021. In the meantime,
streams will continue to get buried, habitat will continue
being destroyed, threatened and endangered species will
continue being harmed, and communities throughout the region
will continue to suffer from degraded water quality, flooding,
and health impacts.
During markup up on H.R. 2824, the Majority rejected an
amendment by Energy and Mineral Resources Subcommittee Ranking
Member Holt that would have allowed the Secretary of the
Interior to take into account the growing body of peer-reviewed
scientific evidence that mountaintop removal mining is harmful
to the health of nearby communities, and an amendment by
Ranking Member DeFazio that would have kept in place
implementation of the Reagan Administration rule.
We strongly oppose H.R. 2824, a bill that would force
states to enact an illegal rule and prohibit the Administration
from implementing thoughtful protections for the environment
and communities from the impacts of mountaintop removal mining.
Peter A. DeFazio.
Rush Holt.
Matt Cartwright.
Jared Huffman.
Katherine M. Clark.
Raul M. Grijalva.
Grace F. Napolitano.
Alan S. Lowenthal.
Madeleine Z. Bordallo.