0001
 1         UNITED STATES DEPARTMENT OF THE INTERIOR 
 2   OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT
 3   
 4                      PUBLIC HEARING
 5                   ON THE PROPOSED RULE
 6      ON EXCESS SPOIL MINIMIZATION/STREAM BUFFER ZONE
 7   
 8   
 9                         2:30 p.m.
10                  Tuesday, March 30, 2004
11   
12   
13   
14   
15                        Auditorium
16                Department of the Interior
17              1951 Constitution Avenue, N.W.
18                     Washington, D.C.
19   
20   
21   
22   
23   
24   
25   
0002
 1                         C O N T E N T S
 2   PRESENTATIONS                                         PAGE
 3   JOHN HILL
 4      The United Methodist Church                          10
 5   BRADFORD FRISBY
 6      National Mining Association                          14
 7   FRANCES LAMBERTS
 8      League of Women Voters of Tennessee                  15
 9   KRISTEN HITE                                            18
10   DONNA JOHNSON
11      Save Our Cumberland Mountains                        21
12   LEIGH DEFORTH                                           23
13   MELODY FLOWERS                                          26
14   CINDY RANK
15      West Virginia Highlands Conservancy                  28
16   JIM MURPHY
17      National Wildlife Federation                         32
18   ANDREW FAHLUND
19      American Rivers                                      34
20   JOE LOVETT
21      Appalachian Center for the Economy 
22      and the Environment                                  38
23   VIVIAN STOCKMAN
24      Ohio Valley Environmental Coalition                  42
25   JOHN GARDER                                             46
0003
 1                  C O N T E N T S  (Continued)
 2   PRESENTATIONS                                         PAGE
 3   STEVEN KRIEGER                                          46
 4   MARY MILLER                                             47
 5   NAVIS BERMUDEZ
 6      Sierra Club                                          49
 7   MEG MOORE
 8      Citizens Coal Council                                52
 9   GERALD WINEGRAD
10      American Bird Conservancy                            55
11   MARIA GUNNOE
12      Coal River Mountain Watch                            59
13   GREGORY BUTCHER
14      National Audubon Society                             61
15   PAULENE CANTERBERRY                                     65
16   ROBIN MANN                                              68
17   GARY BELAN                                              70
18   MALIN PINSKY                                            72
19   JOHN SEEBACH                                            72
20   CHRISTINA AUCH                                          73
21   JOAN MULHERN
22      Earth Justice                                        75
23   BRENT BLACKWELDER
24      Friends of the Earth                                 79
25   WAYNE SALAZAR                                           82
0004
 1                      P R O C E E D I N G S
 2                                                  (2:30 p.m.)
 3             MR. DeVITO:  Good afternoon.  I'd like to
 4   welcome you to the public hearing on the proposed rule,
 5   commonly referred to as the Excess Spoil/Stream Buffer
 6   Zone Rule, which is being proposed by the Department of
 7   the Interior's Office of Surface Mining Reclamation and
 8   Enforcement, hereinafter referred to as OSM.  The rule is
 9   being proposed under the authority of the Surface Mining
10   Control and Reclamation Act, SMCRA for short. 
11             My name is Andy DeVito.  I'm the Federal
12   Register Liaison Officer for OSM, and I'm going to preside
13   over this hearing today. 
14             The purpose of today's hearing is to provide you
15   with an opportunity to comment on OSM's proposed rule that
16   would amend the surface mining regulations regarding
17   excess spoil and stream buffer zone requirements.  The
18   proposed rule was published in the Federal Register on
19   January 7th, 2004. 
20             As stated in the summary found in the proposed
21   rule, we are proposing to amend our regulations to
22   accomplish two basic goals.  They are:  one, minimizing
23   the adverse environmental effects from the construction of
24   excess spoil fills; and, two, clarifying the circumstances
25   in which mining activities, such as the construction of
0005
 1   excess spoil fills, may be allowed within the stream
 2   buffer zone, that is, within 100 feet of a perennial or an
 3   intermittent stream.  
 4             More specifically, we intend to minimize the
 5   environmental effects from excess spoil fill construction
 6   by requiring that the coal operator demonstrate to the
 7   satisfaction of the regulatory authority that, to the
 8   extent possible:  one, the volume of excess spoil is
 9   minimized; two, excess spoil fills associated with a mine
10   are designed to be no larger than needed to accommodate
11   the anticipated volume of excess spoil from that mine;
12   three, alternative configurations for excess spoil
13   disposal, including alternative sizes, numbers, and
14   locations of fill are considered; and four, the proposed
15   excess spoil disposal plan minimizes, to the extent
16   possible, adverse impacts to the prevailing hydrologic
17   balance, fish, wildlife, and related environmental values.
18             We also propose to amend the rule commonly
19   referred to as the stream buffer zone rule to more closely
20   align with its basis in SMCRA and our experience in
21   implementing the rule.
22             The proposed changes to the stream buffer zone
23   rule will require the applicant to demonstrate that the
24   mining operation has been designed, to the extent
25   possible, to minimize impacts on hydrology, fish and
0006
 1   wildlife, and related environmental values and to prevent
 2   additional contributions of sediment to streams prior to
 3   allowing mining within 100 feet of a perennial or an
 4   intermittent stream. 
 5             Finally, we propose to amend our stream
 6   diversion regulation to comport with the proposed changes
 7   to the stream buffer zone rule. 
 8             By these changes, we intend to clarify our
 9   program requirements and reduce the regulatory uncertainty
10   concerning these matters.  We are proposing to revise
11   language that is evidently confusing, has given rise to
12   divergent, conflicting interpretations, has led to
13   litigation, and has raised concern over restrictions that
14   are not required by SMCRA.  These changes will also reduce
15   conflicts and improve consistency between regulation under
16   SMCRA and regulation under the Clean Water Act. 
17             If you have not done so, we strongly encourage
18   you to read the January 7th Federal Register notice.  We
19   have several copies of the notice on the sign-up table. 
20   If you have internet access, you can also view or download
21   the proposed rule notice by visiting OSM's homepage at
22   www.osmre.gov, and that address is written on the poster
23   over here. 
24             In the January 7th notice, we stated that you
25   could comment on the rule until March 8th.  Please note
0007
 1   that at the request of several commenters, we have
 2   extended the comment period for the public by an
 3   additional 30 days and the deadline for submitting
 4   comments is now April 7th. 
 5             There are several ways you can make your views
 6   known regarding this proposal.  You can mail or hand-
 7   carry a letter with your comments to the Office of Surface
 8   Mining Reclamation and Enforcement, Administrative Record,
 9   Room 101, 1951 Constitution Avenue, N.W., Washington, D.C.
10   20240.  You can also e-mail your comments to
11   osmrules@osmre.gov, and again that address is on the flip
12   chart.  We are connected back to the internet, so we can
13   receive e-mail.  Finally, you can testify at today's
14   hearing if you wish. 
15             This is one of five hearings that is being held
16   today.  Other hearings are being held in Hazard, Kentucky;
17   Charleston, West Virginia; Harriman, Tennessee; and Green
18   Tree, Pennsylvania. 
19             If you have not done so, please sign the
20   attendance sheet at the back of the room as you leave the
21   hearing. 
22             If you want to speak today, please fill out a
23   speaker card and give it to the person at the sign-in
24   table. 
25             I will be calling you to speak in the order in
0008
 1   which we receive your card. 
 2             At the front of the room, there is a court
 3   reporter who is present to prepare a written record and
 4   transcribe the statements made here.  Please don't be
 5   intimidated by either the reporter or the formal structure
 6   of the hearing. 
 7             Remember, the purpose of this hearing is to
 8   obtain your comments on the proposed changes to our
 9   regulations.  Your comments will be considered when we
10   develop a final rule document. 
11             We are here to listen to you and not to debate
12   the merits of the proposed rule.  The January 7th Federal
13   Register notice should be consulted for background on the
14   rulemaking.  Any questions you may have will be responded
15   to in the final rule notice. 
16             I ask that you limit your comments to the
17   proposal at hand and ask the audience to remain quiet
18   during testimony.  Please be respectful of each other.
19             We have scheduled the hearing for two hours, but
20   because of the delay in starting, we have reserved the
21   room until 5 o'clock and will use that time if necessary. 
22   Everyone who wants to speak will be given the opportunity
23   to do so. 
24             So far, we have 26 people signed up to speak. 
25   In order for us to ensure that everyone has a chance to
0009
 1   speak, I ask that you limit your testimony to no more than
 2   5 minutes.  In order to keep us on time, we will use color
 3   cards to let you know how much time you have remaining. 
 4   When Ms. Mitchell at the front of the room holds up a
 5   yellow card, you'll have 60 seconds left to finish.  When
 6   she holds up a red card, you will have 15 seconds to
 7   finish.  
 8             I will call the name of the speaker and the
 9   speaker to follow.  When you come forward as the speaker,
10   please use the microphone that is fixed to the podium. 
11   The speaker to follow should sit in the on-deck chair
12   seated next to Ms. Mitchell. 
13             At the beginning of your testimony, please state
14   your name and affiliation, if you choose to provide one. 
15   I have been asked prior to the start of the hearing by one
16   of the reporters present that it would help if you would
17   spell out your name and clearly state if you represent an
18   organization. 
19             If you have a copy of your written statement, we
20   appreciate it if you would provide the statement to the
21   person at the sign-in table after you are through.  We
22   will provide a copy of your statement to the court
23   reporter.  That makes her job a little easier. 
24             Now I am prepared to call the first speaker to
25   the podium.  The first speaker is Mr. John Hill from the
0010
 1   United Methodist Church.  The speaker to follow is
 2   Bradford Frisby from the National Mining Association.  Is
 3   Mr. Hill here?  And Mr. Frisby, if you would like to move
 4   to the front here please. 
 5             MR. HILL:  Good afternoon.  My name is John
 6   Hill.  I serve as Director for Economic and Environmental
 7   Justice at the General Board of Church and Society, which
 8   is the international public policy and social justice
 9   agency of the United Methodist Church.  The United
10   Methodist Church has approximately 11.3 million members
11   worldwide, 8.3 of those live here in the United States. 
12             I'm here today as a person of faith to speak out
13   against the proposed change in the buffer zone rule,
14   changes aimed at legalizing waste dumping in streams and
15   expediting the outrageous practice of mountaintop removal
16   coal mining. 
17             The Christian faith tradition teaches that all
18   of creation is a sacred gift from God that is to be
19   celebrated and protected.  The rivers, the streams, the
20   mountains, the very presence of the created world is
21   evidence of God's love for us.  As the United Methodist
22   Social Principals state:  "Water, air, soil, minerals,
23   energy resources, plants, animal life, and space are to be
24   valued and conserved because they are God's creation and
25   not solely because they are useful to human beings.  God
0011
 1   has granted us stewardship of creation.  We should meet
 2   these stewardship duties with acts of loving care and
 3   respect."
 4             The practice of mountaintop removal is anything
 5   but an act of loving care and respect.  It desecrates the
 6   natural beauty of the mountain and the surrounding valleys
 7   and streams which are filled with waste, blast rock, and
 8   dust.  It destroys the homes of nearby residents and
 9   sacred lands where generations have lived and died.  As
10   stewards of God's creation, we cannot stand by while
11   timeless, sacred mountains are turned into heaps of rubble
12   for the sake of corporate profit and to feed our nation's
13   unsustainable dependence on fossil fuels.  This
14   desecration highlights the degree to which we have come to
15   see the created world as simply a resource for human use
16   and abuse.
17             The proposed changes to the buffer zone rule are
18   the latest in a series of actions by this administration
19   to ensure that mountaintop removal coal mining operations
20   continue unabated.  The proposed rule would remove one of
21   the critical tools under the Surface Mining Control and
22   Reclamation Act used to protect streams and challenge
23   mountaintop removal operations.  Rather than using
24   regulatory authority to expedite this destructive
25   practice, the administration should be using its full
0012
 1   legal authority to halt it altogether.
 2             The United Methodist Church speaks officially
 3   through its General Conference which meets every four
 4   years.  The 2000 General Conference spoke clearly in
 5   opposition to this practice when it adopted a resolution
 6   entitled Cease Mountaintop Removal Coal Mining.  I would
 7   ask that the text of the full resolution be entered into
 8   the hearing record at this time. 
 9             Briefly the resolution highlights the cost of
10   these operations to both the natural world and the human
11   community and asks State and national regulatory agencies
12   to halt the practice of mountaintop removal.
13             In response to this resolution, the General
14   Board of Church and Society has worked alongside other
15   faith organizations, including the Appalachian Ministry
16   Network and the Commission on Religion in Appalachia, to
17   lift up the voices of those most affected by these
18   operations, many of whom you will hear at this hearing
19   today.  We will continue to share the stories of the
20   victims of mountaintop removal with United Methodists
21   around the country and work through education and advocacy
22   to end this practice. 
23             Since biblical times, land has been considered a
24   covenant between humankind and God involving a sacred
25   commitment on our behalf to be stewards of that land.  By
0013
 1   some estimates, mountaintop removal mining has leveled
 2   between 15 and 25 percent of southern West Virginia's
 3   mountains, burying more than 1,000 miles of streams and
 4   leveling 300,000 acres of hardwood forests.  These are not
 5   the actions of a steward of the land.  Rather, these
 6   actions fulfill the prophetic words of Isaiah who said,
 7   "The earth will be stripped bare and left that way.  The
 8   earth lies polluted because its people disobeyed the laws
 9   of God, breaking their agreement that was to last
10   forever."  Isaiah 24:3-5.
11             And yet, as people of faith, we also understand
12   God's healing power and promise of a restored creation. 
13   As II Chronicles 7:14 tells us:  "If my people who are
14   called by my name humble themselves, pray, seek my face,
15   and turn from their wicked ways, then I will hear from
16   heaven, and will forgive their sin and heal their land." 
17   God will heal the land, but we must first humble ourselves
18   and change our ways. 
19             In order to begin down that path of repentance
20   and healing today, we ask the administration to withdraw
21   the proposed buffer zone rule and to reaffirm our role as
22   stewards and protectors of all creation.  Thank you. 
23             (Applause.) 
24             MR. DeVITO:  Our next speaker is Mr. Bradford
25   Frisby.  The speaker to follow is Frances Lamberts.
0014
 1             MR. FRISBY:  Good afternoon.  My name is
 2   Bradford Frisby.  I'm Associate General Counsel from the
 3   National Mining Association.  I have a slightly different
 4   perspective than the previous speaker, as you might
 5   surmise.
 6             I'd just like to make a few points today very
 7   briefly about the proposed stream buffer zone regulation. 
 8             The first point is that the statute which
 9   regulates surface coal mining in this country, the Surface
10   Coal Mining and Reclamation Act, does not mandate a stream
11   buffer zone in the manner that is explained in this
12   regulation.  If you look at the statute, you will not find
13   the words "stream buffer zone" anywhere in it.
14             Secondly, not only does SMCRA not mention a
15   stream buffer zone, the statute explicitly provides for
16   the construction of fills for the disposal of excess spoil
17   in and near springs, natural water courses, or wet weather
18   seeps, as long as environmental and public safety
19   objectives are met, particularly those downstream.
20             Third, this issue has been litigated repeatedly
21   in the Federal courts.  Most recently in the case of
22   Kentuckians for the Commonwealth in the Fourth Circuit
23   Court of Appeals, the court said very clearly SMCRA does
24   not prohibit the discharge of surface coal mining excess
25   spoil in waters of the United States.  It is beyond
0015
 1   dispute that SMCRA recognized the possibility of placing
 2   excess spoil material in streams.  It is clear that SMCRA
 3   anticipates the possibility that excess spoil material
 4   could and would be placed in streams. 
 5             Accordingly, the stream buffer zone rule cannot
 6   be an all fill placement in streams because the regulation
 7   cannot override a Federal statute. 
 8             The fourth point.  The proposed rule clarifies
 9   and conforms to language of the rule to the actual
10   permitting practices that OSM has held for the last 20-
11   some years, which has required compliance with the
12   relevant statutory and regulatory requirements of the
13   Clean Water Act and all other provisions of SMCRA.  The
14   National Mining Association has filed comments on the
15   outreach document that OSM provided in the past.  Our
16   preference would be that this rule be deleted in its
17   entirety because it is not mandated by the statute and
18   there are other regulations that protect streams. 
19   However, at a minimum, this rule must be clarified and we
20   support OSM's proposed regulation. 
21             Thank you. 
22             MR. DeVITO:  The next speaker is Frances
23   Lamberts.  The speaker to follow is Kristen Hite.
24             MS. LAMBERTS:  The League of Women Voters of
25   Tennessee appreciates the opportunity to provide comment
0016
 1   on the rulemaking proposal regarding stream buffer zones
 2   in mountaintop mining contexts, which has been announced
 3   in the Federal Register.
 4             The League of Women Voters supports full
 5   implementation of the Federal laws which protect our
 6   waters, one of our most critical natural resources. 
 7   Nothing is more effective, in activities with potentially
 8   harmful impacts on water bodies, than observation of a
 9   buffer zone.  Whether it be in agriculture or timber
10   harvesting or grazing or road building or building
11   construction, an adequate buffer zone is the best
12   safeguard that damage to physical and biological integrity
13   of streams will be avoided or minimized.  That criterion
14   of physical-chemical-biological integrity of ecosystems
15   must be met if these are to continue to function
16   productively and if availability of the benefits which
17   they provide to communities is to be assured for future
18   generations. 
19             We believe that the Congress recognized, when it
20   passed the Surface Mining Act, that mining activities
21   covered by the act may place water bodies at especial risk
22   and therefore demanding of special protection.  We believe
23   that the standard issued through the act, the '83 stream
24   buffer zone, is needed and is appropriate.  It should be
25   vigorously enforced.  Its provision that the buffer
0017
 1   requirement be waived only if planned mining activities
 2   are affirmatively judged by the proper water permitting
 3   authorities not to have degradation impacts we strongly
 4   support. 
 5             We disagree with statements in the rulemaking
 6   announcement that more clarity is needed on intent or
 7   regulatory implementation of the rule.  Various changes
 8   being proposed, for example, that operators demonstrate
 9   minimizing excess spoil volume, will, in our opinion, make
10   the rule less explicit and more importantly they will
11   dilute the high standard of the current rule and therefore
12   weaken effective water protection.
13             The League of Women Voters of Tennessee opposes
14   the type of mining in which mountains are sheared off,
15   their forest vegetation razed, and the habitat for
16   wildlife inhabiting these forests destroyed.  The research
17   collated in the draft environmental impact statement on
18   mountaintop mining/valley fills has all too clearly shown
19   very serious environmental harm to have already resulted
20   from this type of mining.
21             Tennesseans do not wish to have our mountain
22   streams buried or degraded.  We cannot afford to.  We have
23   almost 1,000 streams or segments to clean up even now. 
24   Even now, some Tennessee communities are experiencing
25   water scarcity or expect to do so in the foreseeable
0018
 1   future.  Even now, we anticipate possible need to share
 2   our water supply with at least one of our neighbor States,
 3   even while our own demands on water continue to rise.  We
 4   must protect all our streams, whether they be great big
 5   ones like French Broad or Holston or Nolichucky or whether
 6   they be our small ones like Ramsey Creek in Unicoi County.
 7             Lastly, our State does not authorize the
 8   covering of streams under excess mining spoil, even if
 9   spoil volume has been minimized.  Tennessee's authority
10   and we think all States' authority in protecting waters to
11   the high standard of the existing stream buffer zone rule
12   must be upheld.  We urge the Federal Government to enforce
13   the current rule and not to change it.
14             We thank you for considering comments from the
15   League of Women Voters. 
16             (Applause.) 
17             MR. DeVITO:  Thank you. 
18             Our next speaker is Kristen Hite.  The speaker
19   to follow will Donna Johnson.
20             MS. HITE:  My name is Kristen, K-r-i-s-t-e-n,
21   Hite, H-i-t-e.
22             I'm from Kingsport, Tennessee and echo the
23   concerns of my fellow Tennessean.  I'm also a United
24   Methodist and echo the concerns of John Hill. 
25             I have worked for three years as a camp
0019
 1   counselor in the Tennessee mountains and a lot of our
 2   activities -- we serviced 120 children in just one of
 3   these camps.  There's a number of them in the area.  120
 4   children a week came through.  We used small streams for
 5   recreational purposes, as well as for stream ecology,
 6   working in the small streams looking, digging up, picking
 7   up crawfish, small invertebrates, and teaching children
 8   about the value of the ecological integrity of the
 9   streams.  It happened to be a Methodist camp and we talked
10   about the value of God's creation.  The concerns that John
11   Hill raised are certainly extremely important. 
12             Furthermore, I spent every summer doing a family
13   vacation in the Cumberland Plateau.  It's a State park, a
14   beautiful one, called Fall Creek Falls State Park.  Every
15   week every year of my entire life, my fondest memories are
16   there.  The State park is based around a waterfall.  The
17   waterfall is fed by a small creek.  If this creek were to
18   be silted up, the entire waterfall wouldn't be there.  The
19   whole purpose of coming to the park would be compromised. 
20             As I said, I've had a whole lot of really fond
21   memories from there.  My mother has since died.  My
22   grandfather has since died and that park holds some of my
23   dearest memories.  If anything were to ever happen to
24   that, I would just be devastated. 
25             And that's really a serious consideration that
0020
 1   needs to be made.  It's not just me and it's not just my
 2   family.  It's everyone that uses not just this park, all
 3   of our parks and all of our streams.  We use these
 4   mountains.  We love these mountains.
 5             Third, I like to kayak, and if our streams were
 6   diverted, that would be impacted.
 7             And fourth, I would like to say that I grew up
 8   in my high school -- in our church we did Appalachia
 9   Service project.  We went to small communities, helping
10   some of the most poverty-stricken individuals in those
11   communities in the southern Appalachian area.  In many of
12   the areas where this mining is being proposed, we helped
13   those individuals, helped them with housing.  I can't
14   imagine any further -- dealing already with poverty,
15   dealing on top of that with environmental devastation --
16   it just really wreaks of environmental justice concerns,
17   and it absolutely must be addressed. 
18             Finally, I'd like to say I'm a law student at
19   Georgetown and I went through the proposed rule and I saw
20   that you've invited comments on minimizing to the extent
21   possible of adverse impacts versus the current situation
22   of finding of no adverse impact requiring that.  I can't
23   imagine how to possibly judicially enforce minimizing to
24   the extent possible of adverse impacts.  If something were
25   to happen, how on earth are we supposed to be able to go
0021
 1   to court and say, you know, this is really messing up my
 2   community and the only response has to be, oh, but we
 3   minimized this as much as we could, the adverse impacts,
 4   even if there are lots of adverse impacts.  And I just
 5   want to say this is absolutely unacceptable. 
 6             Thank you. 
 7             (Applause.) 
 8             MR. DeVITO:  Our next speaker is Donna Johnson. 
 9   The speaker to follow is Leigh DeForth.
10             MS. JOHNSON:  I'm Donna Johnson, D-o-n-n-a
11   J-o-h-n-s-o-n.  I live in Chuckey, Tennessee and
12   appreciate the opportunity to come to talk to you about
13   the importance of protecting our creeks and streams.  I am
14   speaking in behalf of SOCM and in behalf of my family.
15             Save our Cumberland Mountains has 2,000 members
16   in Tennessee, many of whom live in one of the 22 coal
17   field counties.  They have been working to protect
18   Tennessee communities from the negative impacts of strip
19   mining for over 30 years. 
20             Currently Tennessee has a Federal coal mining
21   regulatory program.  However, as far back as 1972,
22   Tennessee recognized the importance of stream buffer zones
23   in our own State's surface mining law.  This proposed rule
24   change takes us backwards.  It threatens our mountains,
25   our streams, and our communities.
0022
 1             A stream buffer zone is a common sense way to
 2   protect water quality.  The proposed language would allow
 3   companies to mine up against or through the streams or
 4   fill a stream as long as the coal operator made an effort
 5   to minimize the damage.  We know from experience that
 6   language like this ensures that stream damage will occur. 
 7   Protection of streams and communities should not be left
 8   up to the good will of the coal operators.  It is the
 9   responsibility of regulatory authorities.
10             If a company mines right up against a stream, it
11   is going to impact the stream.  It is well established
12   that a buffer zone helps maintain stream quality and helps
13   control flooding.  The plants in a buffer zone help to
14   slow down water flowing into streams after rain events. 
15   Mining the land right up to a stream affects habitat,
16   changes the water temperature, and produces uncontrollable
17   sediment. 
18             Headwater streams, which would be most impacted
19   by this rule change, are where rivers and lakes originate. 
20   These streams play an important role in filtering water
21   and they are important for the health of life downstream. 
22   Stream buffer zones don't just protect streams, they
23   protect the Tennesseans who live downstream and next to
24   the strip mines.
25             Mountaintop removal is just making its way into
0023
 1   Tennessee.  The State of Tennessee is on record saying
 2   that they will not issue permits for mining through or
 3   filling streams.  OSM should not undermine the State of
 4   Tennessee's attempts to protect our mountains and streams
 5   and communities from devastation by strip mining. 
 6             SOCM is against these changes to the stream
 7   buffer zone rule.  We want the Office of Surface Mining
 8   Reclamation and Enforcement to enforce the existing stream
 9   buffer zone rule.
10             On behalf of my family, my friends, my children
11   and my grand children, and SOCM members in Tennessee,
12   please protect our waters.  Don't change the rule that
13   helps us do that.  Thank you very much. 
14             (Applause.) 
15             MR. DeVITO:  Our next speaker is Leigh Deforth
16   and the speaker to follow is Melody Flowers.
17             MS. DEFORTH:  Hi.  My name is Leigh Deforth.  I
18   am here as a private citizen, but I'm also here as a
19   member of the United Methodist Church and a staffer for
20   the Appalachia Service Project for the past few years, a
21   volunteer for the past four. 
22             I have spent a number of times in Appalachia. 
23   The first county I served in as a staffer was Fayette
24   County, West Virginia.  The last speaker, Ms. Donna,
25   mentioned a lot of flooding as a result, something that
0024
 1   not a lot of speakers have touched on so far.  But I don't
 2   know if any of you saw the pictures of the flooding from
 3   2001 in West Virginia and eastern Kentucky.  Billions of
 4   dollars in Federal aid had to be sent to these
 5   communities.  In Fayette County alone, $14 million of
 6   Federal roads were damaged.  Homes were destroyed. 
 7   Communities were lost.  And all of this flooding occurred
 8   in small streams.  This flooding was not the New River. 
 9   This flooding was not the Gauley River.  The Powell
10   flooded.  They all flooded.  They got a lot of rain, yes. 
11   But the flash flooding that occurred that was damaging and
12   detrimental to the lives and the homes and businesses, the
13   few remaining businesses in a lot of small towns in
14   Appalachia, occurred from small streams.
15             A lot of those small streams already have
16   increased water runoff as a result of the topsoil that's
17   been removed through mountaintop removal.  So you've
18   already got a problem.  The water doesn't have anywhere to
19   go up top.  It's not being absorbed by the mountains. 
20   Well, you put valley fill in and you take out a stream
21   buffer zone, which is one of the last remaining legal kind
22   of roadblocks to that, that people like Kentuckians for
23   the Commonwealth can come in and make an attempt to defend
24   those streams, if you take that out and you put valley
25   fill into streams, where is the water going to go then? 
0025
 1   You have decreased the area for that water to spread.
 2             And flash flooding is scary.  It is deadly.
 3   There are homes in Minden, West Virginia where the water
 4   came down the mountain, punched through one side of the
 5   house, through a concrete foundation, and out the other
 6   side.  There are trailers that were swept away underneath
 7   culverts, blocked the culverts, and as a result, the whole
 8   community flooded.  I don't know how to explain -- I
 9   didn't come with pictures -- the environmental devastation
10   that mountaintop removal and valley fill in general has
11   caused in West Virginia, Kentucky, Tennessee, and southern
12   Virginia. 
13             But I also know that it has an incredible
14   economic impact.  If you look at the town of Mullins, West
15   Virginia, which was hardest hit by the floods of 2001, the
16   entire town was covered in mud and silt and pretty much
17   inoperable for the entire summer.  The floods occurred in
18   May.  What are you going to do when that is an area where
19   all the jobs in that county are located?  There are areas
20   in southern Appalachia where 27 percent of the people are
21   below the poverty level.  Sneedville, Tennessee is one of
22   those areas, not affected as much by coal mining, but it's
23   pretty amazing when most of the people you live with and
24   work around make less than $9,000 a year. 
25             I don't know how this is all coming together,
0026
 1   and I'm sorry I'm not a very good public speaker.  But I'd
 2   like to say that to remove the last legal standpoint and
 3   put in some wishy-washy language that's not very
 4   defensible is very hard when -- if you look at battles
 5   like civil rights, those were won on little legal laws
 6   like this.  And if we get rid of this, how can we defend a
 7   community that doesn't really have a voice, especially in
 8   Washington, D.C.? 
 9             Thank you. 
10             (Applause.) 
11             MR. DeVITO:  Our next speaker is Melody Flowers. 
12   The speaker to follow is Cindy Rank. 
13             MS. FLOWERS:  It's Melody, M-e-l-o-d-y, Flowers,
14   F-l-o-w-e-r-s.
15             I'm here today as a resident of West Virginia. 
16   I grew up outside of Barboursville.  I have a whole bunch
17   of family down there, really good West Virginian family. 
18   My brother is actually a State trooper down in the
19   southern part of the State.  He's in Mingo and Logan
20   Counties.  So I go down there and visit him often.
21             I guess the first thing that you have understand
22   about me is that I'm a very proud West Virginian and I'm
23   always encouraging folks to go visit my State and go
24   hiking and camping and white water rafting and skiing and
25   taking advantage of all the fantastic recreational
0027
 1   opportunities that we have because our natural environment
 2   is really one of the great treasures of West Virginia and
 3   the entire central Appalachian region. 
 4             I talk my State up all the time, but then I go
 5   home and I go down and visit my brother down at the
 6   Williamson detachment down in Mingo County and we are out
 7   driving around in his cruiser.  It's like every time I go
 8   down there, there's a new, big scar on the landscape.
 9   There's this big flattened, muddy, scraped-up part of
10   earth where before there were these beautiful mountains
11   and the mixed forests and all of the animals and the
12   wildlife there that used to be there.  And it just kind of
13   breaks my heart every time I go down there. 
14             The last speaker mentioned the flooding. 
15   Luckily my brother's house wasn't flooded out, but a lot
16   of people who he lives around there down in Williamson,
17   they all lost their homes and it was because of the lack
18   of flood protection from all of the mining and the valley
19   fill there. 
20             I guess the point I would want to make, the main
21   point I would want to make, is that we're not Luddites. 
22   We know that coal is important to the nation.  It's
23   important to the economy, but there's a right way to do
24   things and there's a wrong way to do things.  Flattening
25   mountains and destroying the environment and putting these
0028
 1   communities in jeopardy so you can get coal for a little
 2   bit cheaper, that's the wrong way to do business.  That's
 3   just not the right way to operate down there. 
 4             All this is to say is that we need better
 5   protections for the environment and the communities of
 6   West Virginia, not relaxed standards.
 7             I'm reminded of the fact that we're the Mountain
 8   State.  West Virginia is the Mountain State.  We're not
 9   the reclaimed strip mine where you can put an airpark or a
10   mall State.  We're the Mountain State.  Seriously.  
11             Just in conclusion, as a West Virginian who
12   deeply cares about the future of her State, I implore you
13   to withdraw the proposed buffer zone rule.  Thank you. 
14             (Applause.) 
15             MR. DeVITO:  Our next speaker is Cindy Rank. 
16   The speaker to follow is Jim Murphy.
17             MS. RANK:  My name is Cindy Rank, R-a-n-k.  I
18   currently chair the Mining Committee of the West Virginia
19   Highlands Conservancy.  The West Virginia Highlands
20   Conservancy is a statewide volunteer conservation group
21   established in 1967 and has some 1,500 members who live in
22   and visit the special place that is West Virginia. 
23             I joined the conservancy in 1979 when my
24   community group, Friends of the Little Kanawha, was
25   seeking help to fight mining in our area in the Little
0029
 1   Kanawha headwaters that would be threatened by acid mine
 2   drainage if those mines were to continue.  I was elected
 3   to the board of directors in 1984, served as president
 4   from '88 to '94, and have since been chair of the Mining
 5   Committee. 
 6             I say this just to indicate to you that my
 7   familiarity with what the conservancy has been doing over
 8   these past years is quite deep.  And over these past
 9   decades that I've been associated with the group, West
10   Virginia Highlands Conservancy has been a leading voice in
11   the efforts of citizens throughout West Virginia to uphold
12   the basic tenets and to assure strong enforcement of both
13   the Surface Mine Act and the Clean Water Act. 
14             Many in the room today may be familiar with our
15   long history of involvement in these issues.  We have
16   regularly participated in the administrative process at
17   hearings like this, in our State's legislative process
18   approving regulations, and in litigation brought in both
19   State and Federal courts. 
20             I today, however, am not going to go through the
21   laundry list of reasons why we are opposed to this change
22   of the buffer zone rule.  Our position supporting the
23   current buffer zone language is stated in the many legal
24   briefs and the technical documents submitted during the
25   Bragg litigation, of which we were a part as plaintiffs,
0030
 1   and in our response to the draft multi-agency EIS on
 2   mountaintop removal mining and valley fills that resulted
 3   from that litigation.  We will also be submitting written
 4   comments elaborating this support for the current language
 5   and detailing our objections both to the proposed language
 6   and to the environmental assessment, which we find to be
 7   very lacking in terms of support for this change.
 8             Rather, I'm here this afternoon to stand with
 9   the other State and national groups and citizens from coal
10   mining communities who have come together to register
11   their opposition to the proposal and to make a few general
12   comments because the buffer zone rule is so important to
13   what a lot of us, many of us hold dear, especially those
14   of us who live in the hollows and the hills and depend
15   daily, as I do, on our streams for the source of our water
16   for our homes and for our lands.
17             The buffer zone and the buffer zone rule people
18   have talked about is very important, and I would say that
19   for two specific reasons everyone should keep in mind. 
20   One is that from the Clean Water Act and the Surface Mine
21   Act, this rule is what we have to protect the small
22   headwater streams in the areas up in the hills where we
23   live.  It not only protects the aquatic life, but it
24   protects the human life that depend on these streams.  And
25   as you will hear from Maria Pitzer Gunnoe, if you haven't
0031
 1   heard from her yet today, the flooding and the result of
 2   the filling in streams above homes is devastating both
 3   because of the toxics involved in it and in terms of the
 4   flooding that results from it. 
 5             But I also come today because I'm sure that a
 6   lot in the industry and some in the agencies will roll
 7   their eyes as people come and testify about the beauty of
 8   the State of West Virginia or Tennessee or Kentucky and
 9   talk about their homes and how they hate mountaintop
10   removal because it's not necessarily mountaintop removal
11   that you all today are proposing a change to.  But what
12   you have to realize is that what is most disturbing to the
13   people in these States is the damage and the devastation
14   that is occurring in their lives.  And as has been said
15   already, what is key to controlling the size of these
16   mines is the size of the garbage cans in which they can
17   dump their waste.  And the larger the valley fills, the
18   larger the streams that are permitted to be filled, the
19   larger these mines become, and the larger these mines
20   become, the more devastating and far-reaching their
21   impact. 
22             Were we to approve or accept this new proposal
23   to change this reg, not only would the 1,000 miles of
24   streams in West Virginia that have already been buried,
25   the 300 or nearly a million now acres of forest been
0032
 1   devastated, but there will be many more, much more, and
 2   the predictions of those who say that all of southern West
 3   Virginia, for instance, will be flattened within 20 years
 4   will be closer to the truth than what industry would like
 5   you to believe right now. 
 6             It's just essential that OSM understands and
 7   recognizes that this is a battle that people are willing
 8   to fight and people need to know that others are out here
 9   to join in the struggle and that we don't lose some of the
10   basic protections that we have. 
11             During my years at the conservancy --
12             MR. DeVITO:  Ms. Rank, your time is up.
13             MS. RANK:  I'm sorry.  I wasn't watching.  Thank
14   you. 
15             (Applause.) 
16             MR. DeVITO:  If you have additional written
17   comments, you can submit them for the record.
18             Our next speaker is Jim Murphy and the speaker
19   to follow is Andrew Fahlund. 
20             MR. MURPHY:  Hi.  Jim Murphy, National Wildlife
21   Federation.  J-i-m M-u-r-p-h-y.
22             NWF adamantly opposes any change to this stream
23   buffer zone rule.  The stream buffer zone rule is one of
24   the last remaining protections for important mountain
25   streams in Appalachia.  Streams in this beautiful and
0033
 1   historic region of the country have already been ravaged
 2   by inadequately mining practices and can afford to suffer
 3   no more harm, as the people here before me have very well
 4   detailed the harm that is already going on.  Streams in
 5   this region that were once teaming with wildlife are now
 6   all but dead.  They have been stained red or white by the
 7   toxic waste products of mining activities. 
 8             The stream buffer zone is a simple rule that
 9   ensures a 100-foot buffer will protect streams unless it
10   can be shown that no harm will occur in the waterway. 
11   This is needed, lawful, and should not be changed.  It is
12   also consistent with SMCRA's requirement that society and
13   environment are protected from the adverse effects of
14   mining and that water resources and wildlife be protected
15   from mining activities.  It is consistent with the Clean
16   Water Act which requires the protection of water quality
17   standards.  The rule is clear.  It should be enforced.  It
18   should not be gutted.
19             Replacing this rule with a rule that would allow
20   streams to be filled on a weak finding that the amount of
21   waste be minimized is shameful and contrary to the law.  A
22   buried stream has no wildlife.  A buried stream has no
23   water quality.  A buried stream is a lost resource and a
24   stain on our legacy as caretakers of this wonderful
25   region.
0034
 1             This change is neither a clarification nor a
 2   balance between mining interests and the environment.  It
 3   is an unlawful and destructive abdication of our duties
 4   under the law and as stewards of our treasured resources. 
 5   It achieves nothing but more harm for Appalachia's
 6   communities and more harm for Appalachia's resources.
 7             NWF believes this proposed rule should be
 8   withdrawn.  Streams in this region need more not less
 9   protection.  This rule gives them far less protection and
10   is simply unacceptable on both environmental and legal
11   grounds. 
12             Thank you. 
13             (Applause.) 
14             MR. DeVITO:  Our next speaker is Andrew Fahlund. 
15   The speaker to follow is Joe Lovett. 
16             MR. FAHLUND:  The name is Andrew Fahlund, F-a-
17   h-l-u-n-d.
18             Hello.  My name is Andrew Fahlund, and I'm
19   Senior Program Director for American Rivers.  American
20   Rivers is a national river conservation organization with
21   more than 35,000 members, 20,000 activists in every State
22   of the country, including central Appalachia.  Our mission
23   is to protect and restore America's river resources and
24   foster a river stewardship ethic.  Our members have
25   significant interests in the health and well-being of the
0035
 1   rivers and streams of Appalachia.  They recreate, study,
 2   contemplate, enjoy, and profit from healthy rivers and
 3   streams. 
 4             Thank you for allowing me to testify before you
 5   today. 
 6             American Rivers opposes the Department's
 7   proposed rule that would eliminate requirements to buffer
 8   streams from surface coal mining operations, threatening
 9   water quality, protection of public safety and welfare,
10   protection of fish and wildlife and vital river processes.
11             The proposed rule cynically attempts to change
12   the law rather than to enforce it.  We urge the Department
13   to withdraw the proposed rule and enforce the current law
14   for the benefit of rivers, streams, and communities of
15   Appalachia and the nation. 
16             No one can argue that the process of lopping off
17   the top of a mountain and dumping the byproducts into
18   adjacent valleys, aka, mountaintop removal, is not a
19   destructive practice.  The Department's own numbers and
20   documents tell us so.  
21             What is of particular concern to the members and
22   supporters of American Rivers is the practice of burying
23   headwater streams with millions of tons of rock and dirt.
24   These streams are lost forever when they are buried.
25             Some may ask, so what?  Just last year, the
0036
 1   Sierra Club and American Rivers published a report
 2   entitled Where Rivers are Born, in which 11 leading stream
 3   ecologists describe the importance of so-called headwater
 4   streams and wetlands.  While not specifically addressing
 5   mountaintop removal, the report explains how headwater
 6   streams comprise approximately 80 percent of the total
 7   stream miles in the nation and provide vital benefits to
 8   the overall ecosystem health.  These include protection of
 9   water quality, maintaining water supply, providing natural
10   flood control, trapping sediment, sustaining downstream
11   ecosystems, and maintaining biological diversity.  They
12   conclude that the loss of these streams and the functions
13   they provide can have devastating long-term impact on the
14   human and natural environment.
15             The Department should enforce the law and not
16   dodge it.  Recent court challenges have prompted the
17   administration to change rules established in the Reagan
18   administration rather than follow them.  They justify this
19   by offering promises of minimization "to the extent
20   possible," and "best available technology," and requiring
21   better analysis.  Unfortunately, these promises simply
22   ring hollow.  The fundamental goal of this rule is clear: 
23   facilitating the continued practice of burying the
24   headwaters of Appalachia.  The rule offers no definition
25   or bounds for "minimize," and few standards for "best
0037
 1   available technology" or "improved analysis."  It would
 2   appear that these things are left to the whims of the
 3   industry and bureaucrats in OSM. 
 4             The rule inappropriately implies, as several
 5   States have, that the protections for streams should be
 6   viewed at the entire stream scale rather than at the scale
 7   of the reach. 
 8             The rule specifically grants buffer zone waiver
 9   in two circumstances:  if the best available technology
10   will prevent additional sediments from impacting the
11   stream 100 feet below the fill site, to the extent
12   possible; and two, if best available technologies minimize
13   disturbances and adverse effects on fish, wildlife, and
14   other values.  This simply ignores the unique and
15   significant functions of these headwaters. 
16             Let us suppose that you were going to cut of a
17   few of my fingers using best available technology.  Well,
18   if all goes well, you may be able to assume that no direct
19   harm would come to my palm or my arm or my spleen or my
20   ear.  But without my fingers, would I function as a
21   complete system?  Certainly not.  And best available
22   technology in medicine is certainly a lot more sure than
23   best available technology in mining practices.  What
24   happens when infection starts to seep through, despite
25   best available technology, through the wounds in my hand? 
0038
 1   Who's going to take care of me then?
 2             And if someone gave me rubber fingers to replace
 3   the ones I had lost, should I consider myself whole? 
 4   Should I be grateful and satisfied?  This is the logic the
 5   Department is asking all of us to accept here and
 6   analogous to what mountaintop removal is doing to the
 7   streams of Appalachia. 
 8             If we allow this sort of practice to go on,
 9   where are going to stop?  In 100 years, people are going
10   to look back at the things that we did to our rivers,
11   lands, and people and shake their heads and wonder at the
12   arrogant disregard for the present and the future.  In
13   almost no other instance, will they be as shocked and
14   disgusted as they will with the practice of mountaintop
15   removal. 
16             The Department should retract the proposed rule
17   and enforce the law most importantly.  Thank you. 
18             (Applause.) 
19             MR. DeVITO:  Our next speaker is Joe Lovett. 
20   The speaker to follow is Vivian Stockman. 
21             MR. LOVETT:  My name is Joe Lovett, L-o-v-e-t-
22   t.  I'm Director of the Appalachian Center for the Economy
23   and the Environment.  The Appalachian Center seeks to
24   enforce environmental laws in the Appalachian region and
25   to promote a sustainable economy for the region. 
0039
 1             It is not surprising that the National Mining
 2   Association comes here today to support this proposed
 3   rule.  After all, it's responsible for this rule change.
 4             The representative from the National Mining
 5   Association went through some particular points, making
 6   the case that the Surface Mining Act somehow is
 7   inconsistent with protecting streams.  Well, we address
 8   each and every one of those issues in briefs to a Federal
 9   court and a neutral Federal court found otherwise.  We
10   will, of course, address those issues in the comment
11   period here as well.
12             It's important to point out that during the
13   Clinton administration, the Department of the Interior,
14   EPA, U.S. Fish and Wildlife Service all took the position
15   that this buffer zone rule does prohibit fills in
16   intermittent and perennial streams, the contrary of what
17   the National Mining Association holds here today.  So both
18   a Federal judge and these agencies have interpreted this
19   law to prevent the very practices that the National Mining
20   Association claims that it does not prevent.
21             In terms of minimizing impacts, one hardly knows
22   where to begin with such language.  It's important to
23   point out that the Surface Mining Act already requires
24   minimization of impacts.  So that's a hollow bone thrown
25   to environmentalists.  It is already there. 
0040
 1             Now, OSM again claims that this is a
 2   clarification of the rule.  Well, I don't know where
 3   people in OSM learned to speak the English language, but
 4   the current rule says that the mining companies may not
 5   mine within 100 feet of intermittent and perennial
 6   streams.  No activity.  That's pretty clear.  That's what
 7   a Federal judge and the Clinton administration read very
 8   plainly.  This administration, for some reason, refuses to
 9   do that. 
10             It's the most dishonest and even corrupt use of
11   language that I've ever had to deal with.  We went through
12   the Clinton administration and there was a lot of
13   dishonest language from that administration too, but this
14   is on a completely different level.  And the people in
15   control of Interior and OSM today are just shameless in
16   their use of language and in their attempts to change
17   every law possible to destroy our region. 
18             In its draft EA on this proposed rule, OSM
19   argues -- and it is arguing.  This isn't just an analysis
20   by OSM.  OSM argues that the proposed changes to the
21   buffer zone rule are "impact neutral" because they are
22   only meant to "clarify our interpretation of the stream
23   buffer zone requirement to more closely reflect both the
24   SMCRA provisions on which the rule is based and actual
25   regulatory practices implementing the rule."  Well, the
0041
 1   last part of it is true.  It will reflect actual
 2   enforcement policies by the Bush administration, because
 3   it doesn't enforce the rule.  It doesn't enforce any part
 4   of the Surface Mining Act.  And this is just its attempt
 5   to codify its failure to enforce the law. 
 6             But I don't think they can change this law as
 7   easily as they think they can because, first of all, the
 8   Surface Mining Act does protect streams.  The act itself. 
 9   And I think that this rule is required by the act.  One
10   example of that is that the act requires not just a
11   minimization, but the prevention of harm to the hydrologic
12   balance on the permit area, and this destruction occurs on
13   the permit area.  So I think, first of all, that the rule
14   can't be changed because of that.
15             Secondly, we believe that the agencies would
16   have to prepare an environmental impact study before
17   changing this rule because it does have significant impact
18   on the environment.  To claim that changing a rule from
19   one that protects intermittent and perennial streams
20   without question to a rule that has no protections is not
21   a significant is laughable.  Secondly, I think that the
22   Surface Mining Act itself requires an EIS regardless of
23   impacts. 
24             So, OSM, if you're going to change this rule,
25   you're in for a fight.
0042
 1             Thank you. 
 2             (Applause.) 
 3             MR. DeVITO:  Our next speaker is Vivian
 4   Stockman.  The speaker to follow is John Garder.
 5             MS. STOCKMAN:  My name is Vivian Stockman, V-i-
 6   v-i-a-n S-t-o-c-k-m-a-n.  I work for the Ohio Valley
 7   Environmental Coalition which is based in Huntington, West
 8   Virginia. 
 9             I live near a stream that like so many others
10   needs more protection, more buffer, not less.  I want to
11   do better for this stream and the life it supports.  I
12   need your help.  Don't clarify this rule.  Instead enforce
13   the stream buffer zone rule. 
14             One year ago, I and many others received a
15   letter from OSM asking for our input about the proposal
16   before us today.  Knowing the agency's history of ignoring
17   the reclamation and enforcement portions of its duties, we
18   nonetheless dutifully wrote the letters detailing the
19   numerous reasons you should not meddle with the buffer
20   zone rule, including the fact that your proposal would
21   severely weaken protections required under SMCRA.  
22             We are here today because the agency has ignored
23   the input requested of us.  Why are we ignored?  Because
24   there are some here who want to remove even the semblance
25   of regulation for mountain range removal, valley fill coal
0043
 1   mining. 
 2             I know that there are regulators and politicians
 3   who want to do better for streams and therefore for people
 4   too.  You are not the ones who are former coal and energy
 5   industry lobbyists, lawyers, and executives.  You're not
 6   J. Steven Griles, Jeffrey Jarrett, or Gale Norton.  You
 7   are not the politicians performing back-flips for the
 8   energy industry's campaign contributions.  You're not
 9   George W. Bush, Rep. Joe Barton, or Shelly Moore Capito,
10   and a host of others. 
11             Those of you who are calling for the so-called
12   clarification of the stream buffer zone rule, you are the
13   ones who trick yourselves into believing your own
14   misrepresentations and blatant lies.  You are the masters
15   of linguistic detoxification who would have us all believe
16   that what you're doing is about cheap energy and homeland
17   security.  What is cheap about the lives of coal field
18   residents?  What about their futures?  What is cheap about
19   that?  What is secure about unleashing upon the
20   Appalachian Mountains every 11 and a half days the
21   explosive equivalent of the Hiroshima bomb?
22             You're the ones who talk about jobs, jobs, jobs
23   while you replace tens of thousands of miners with massive
24   machines while you do all you can to suppress the
25   development of cleaner alternative energy which reports
0044
 1   like Job Jolt and the Apollo Plan show could provide
 2   millions with a future. 
 3             You are the ones who promote the myth of clean
 4   coal while hiding your dirty dealings.  As long as there
 5   is mountaintop removal coal mining, there is no such thing
 6   as clean coal. 
 7             You are the ones who can justify just about
 8   anything to satisfy your pursuit of maximum possible
 9   short-term profit.  You are the ones who ignore the yearly
10   $33 trillion value of ecosystem services which you are
11   destroying, as if your children won't need water, as if
12   water isn't vital to life. 
13             You are the ones who in your mad dash for
14   mountaintop removal of coal pooh-pooh global warming which
15   even the Pentagon admits may be the biggest threat ever to
16   national security.  By promoting mountaintop removal you
17   are stopping the advancement of alternative energies which
18   would instead allow us to decrease global warming.
19             Your self-deceptions allow you to justify mind-
20   boggling annihilation of biologically crucial headwater
21   streams and some of the most biologically diverse
22   temperate hardwood forests on earth.  You are the ones who
23   allow mountaintop removal to forever destroy a yearly
24   sustainable harvest of tens of millions of board feet of
25   hardwood lumber.
0045
 1             You're the ones who belittle the emotion of coal
 2   field residents who plead their cases to you as if emotion
 3   were unwarranted, when you live in fear of the next flood
 4   raging off of valley fill, as if emotion were unwarranted,
 5   when your children cannot sleep during a thunderstorm,
 6   wondering if the sludge impoundment is going to blow, when
 7   your hunting and fishing grounds are destroyed, when you
 8   can no longer hunt herbs in the woods, when blasting ruins
 9   your well water and your home's foundation and fills the
10   air with dust that damages your lungs, when your property
11   values plummet, when your community is driven away, when
12   you are denied access to the cemetery where your
13   ancestors' bones lie, when you see streams, vital zones
14   buried under the rubble that was a mountain that filled
15   your eyes and your soul with the beauty of God's creation,
16   when you watch your homeland and very culture being
17   destroyed in the name of cheap energy. 
18             If you are for this clarification, then you are
19   among the ones justifying mountaintop removal which is a
20   crime against people, a crime against the earth, and is in
21   the long run economic insanity. 
22             To those of you who are for clean water, clean
23   air, and jobs with a future, please help by stopping this
24   clarification. 
25             (Applause.) 
0046
 1             MR. DeVITO:  Our next speaker is John Garder. 
 2   The speaker to follow is Steven Krieger. 
 3             MR. GARDER:  My name is John Garder, G-a-r-d-e-
 4   r.  I'm here on my own behalf.
 5             As a person who recreates in and around streams
 6   and who appreciates the value of clean water, I am
 7   strongly opposed to this proposed rule.  Having grown up
 8   in the mountains of Vermont, I understand and appreciate
 9   the value of the Appalachian ecosystem.  I think the
10   proposed rule would further devastate the communities of
11   southern Appalachia, would further devastate water quality
12   there, and would be a significant impediment to the
13   biological integrity of that Appalachian ecosystem.  I
14   think that an affront to and injustice to the communities
15   of southern Appalachia is an injustice to all of us.  OSM
16   should not follow through with this proposed rulemaking
17   and should, instead, be concerned with enforcing the
18   existing law. 
19             Thank you. 
20             (Applause.) 
21             MR. DeVITO:  The next speaker is Steven Krieger. 
22   The speaker to follow is Mary Miller. 
23             MR. KRIEGER:  Good afternoon.  Thank you for the
24   opportunity to speak.  My name is Steven Krieger, K-r-i-
25   e-g-e-r, and I'm here on my own behalf today as well.
0047
 1             I just wanted to say that we've already heard
 2   testimony both legal, technical, scientific.  Personal
 3   stories are very touching.  I'm as a Midwesterner from
 4   Michigan just to let you know this is an issue important
 5   to all of us across America not just in this eastern
 6   United States and to tell you that I strongly oppose these
 7   proposed actions.  I'm in favor of keeping the law as it
 8   is. 
 9             Thank you. 
10             (Applause.) 
11             MR. DeVITO:  Our next speaker is Mary Miller. 
12   The speaker to follow is Navis Bermudez. 
13             MS. MILLER:  My name is Mary Miller.  I'm from
14   Sylvester, West Virginia.  I'm in a little community that
15   everything that we're saying today covers where I live. 
16   We have floods.  Every time it rains two or three days at
17   a time, we don't know if our home is going to be flooded. 
18   Our mountaintops have been removed. 
19             Back behind my house, I have an impoundment,
20   which is very dangerous.  I go to bed at night.  I don't
21   know to put my shoes and my clothes on if the impoundment
22   is going to break loose.  Right up the road from me about
23   4 miles is another bad impoundment. 
24             So we're sitting right on Coal River.  Coal
25   River you can't fish in anymore because the fish died. 
0048
 1   The water never freezes in the wintertime.  Why? 
 2   Apparently there's chemicals.  So we can't use the river
 3   and that's behind my house. 
 4             I have a picture of my home that has been
 5   destroyed.  Mountaintop removal.  I have worked all my
 6   life.  At my home I've lived 48 years.  This is a picture
 7   of my home.  Directly behind there is the impoundment. 
 8   Right over here sits Elkin Coal Company, another one of
 9   dear old Massey Energy mines. 
10             So they decided to remove the mountain, to
11   remove the mountain and put a stoker plant.  When they put
12   the stoker plant, Don Blankenship knew he was going to
13   ruin our community because the wind blows from west to
14   east.  
15             Now, on account of the coal dust -- I'm sitting
16   in a home that was appraised at $144,000.  On account of
17   the coal dust and mountaintop removal and the coal mines,
18   it depreciated $132,000.  Now it's worth $12,000. 
19             I have a little elementary school behind my
20   house.  Now it's closed.  My property is probably worth
21   $2,000. 
22             Now, I think it's a shame that I'm out here
23   fighting saying on the buffer zone to protect our water. 
24   I'm protecting my home.  My husband served in World War II
25   and got the Purple Heart.  He saved our country.  At my
0049
 1   age I'm out here now trying to save my home.  I'm against
 2   the buffer zone that would even damage us more.  I don't
 3   have much left anyway.  I haven't got much years left, but
 4   I'm thinking about the water shortage for my children. 
 5             Thank you all. 
 6             (Applause.) 
 7             MR. DeVITO:  Our next speaker is Navis Bermudez. 
 8   The speaker to follow is Meg Moore. 
 9             MS. BERMUDEZ:  Hi.  Navis Bermudez.  That's N-
10   a-v-i-s B-e-r-m-u-d-e-z.
11             I'm a Washington representative for Sierra Club,
12   a national nonprofit environmental organization founded in
13   1892.
14             Sierra Club, on behalf of its more than 700,000
15   members, strongly opposes any attempts to weaken the
16   buffer zone rule.  The Bush administration's attempts to
17   weaken this rule leave Appalachia's communities at risk
18   for becoming a mining wasteland. 
19             Mountaintop removal destroys streams, causes
20   deforestation, significantly alters the Appalachian
21   landscape, destroys wildlife habitat, and harms
22   communities.  Estimates indicate that already more than
23   1,200 miles of Appalachian headwater streams have been
24   buried or destroyed by mountaintop removal and that
25   another 1,000 miles will be buried and destroyed in the
0050
 1   next decade if limits are not placed on these mining
 2   operations. 
 3             It is almost impossible to minimize the indirect
 4   environmental impacts that valley fills have downstream
 5   from where they occur.  For example, there's evidence
 6   indicating that valley fills are responsible for
 7   significantly elevated levels of selenium downstream. 
 8   Selenium is a highly toxic bioaccumulant that can cause
 9   damage to the nervous system, the circulatory system, and
10   kidney and liver tissue.  Other indirect impacts included
11   increased sedimentation, reduced floodwater attenuation,
12   temperature changes, and reduced ability of headwater
13   streams to maintain their nutrient cycling functions.
14             Given these real and detrimental consequences,
15   what we need are better restrictions to protect
16   communities of Appalachia, not a relaxing of those
17   currently on the books.  Instead, the Bush administration
18   has announced a plan to eliminate a 20-year-old mining
19   policy that protects lands within 100 feet of a stream
20   from the disturbances caused by mining activity unless a
21   company can prove that the work will not affect the
22   stream's water quality and quantity. 
23             This so-called buffer zone rule was adopted in
24   1983 by the Reagan administration and prevents Federal and
25   State agencies from issuing permits for coal mining
0051
 1   activities that would disturb areas within 100 feet of
 2   streams unless the permitting agency affirmatively
 3   confirms that the activities will not adversely affect
 4   water quality.  What the Bush administration is now
 5   proposing is in direct contrast to this and would permit
 6   coal companies to dump their waste directly on top of
 7   streams. 
 8             The Bush administration's proposal to rewrite
 9   the buffer zone rule is a dramatic departure from the
10   existing rules language and is inconsistent with
11   interpretations of the rule advanced by previous
12   administrations before Federal courts.  The Bush
13   administration's proposed rule would allow mining
14   companies to mine next to or through streams if they can
15   show, regardless of the damage, that mining operations
16   will have minimized the creation of excess spoil to the
17   maximum extent practicable.  It also says coal mining
18   companies must minimize the destruction of fish and
19   wildlife to the extent possible.  Let's be clear.  There
20   is no scientific way to monitor "to the extent possible."
21             The Appalachian communities and the American
22   public deserve better than this.  The administration
23   should be enforcing the current laws, not rewriting them
24   to benefit of the coal mining industry.  Sierra Club
25   strongly objects to this proposed rule change and urges
0052
 1   the Office of Surface Mining to abandon pursuit of the
 2   rule change. 
 3             Thank you. 
 4             (Applause.) 
 5             MR. DeVITO:  Our next speaker is Meg Moore.  The
 6   speaker to follow is Gerald Winegrad.
 7             MS. MOORE:  My name is Meg Moore.  I am a former
 8   resident of Harlan, Kentucky, and the Communications
 9   Director for the Citizens Coal Council, a federation of 47
10   coal field citizen groups. 
11             I am opposed to these proposed changes to OSM's
12   stream buffer zone rule, as is Citizens Coal Council,
13   because the proposed changes are a weakening of a
14   desperately needed protection for coal field waterways and
15   the proposed changes are against the intent of the 1977
16   Surface Mining Control and Reclamation Act.  Instead, the
17   buffer zone rule should be kept as it is and enforced.
18             OSM maintains this rule change will have little
19   practical effect, that it's just a clarification.  This is
20   misleading and incorrect.  No, the rule is not being
21   completely enforced now.  It should be.  But stepping back
22   from any enforcement will destroy even more streams and
23   even more riparian zones. 
24             Let me give you an example.  On Black Mountain,
25   the highest mountain in Kentucky, there is a beautiful
0053
 1   holler and stream:  Fugates Creek on Slope Hollow. 
 2   Fugates Creek is a refuge for all sorts of trees and
 3   plants and animals.  It is the last cold water trout
 4   stream in Harlan County.  It is also the family home of my
 5   friend Hazel King and one of the most beautiful places I
 6   have ever seen in my entire life.  
 7             Nally and Hamilton Coal Company's steep slope
 8   mines and valley fills have expanded from Brookside to
 9   Highsplint, almost 20 miles.  They filled in Mill Creek
10   where people, up to the point when the mining started, got
11   their drinking water out of the creek because it was so
12   clean.  That creek is now filled in.  They filled in the
13   headwaters of Joe Branch and now when it rains, Joe Branch
14   looks like wet concrete from all the sedimentation.  Below
15   those fills, Clover Fork floods every time it rains. 
16             And three years ago, Nally and Hamilton set
17   their sights on Fugates Creek and filed a permit for a
18   waiver to the stream buffer zone rule so that they could
19   mine through Fugates Creek.  But the State of Kentucky did
20   the right thing.  It didn't give them the waiver because
21   there is no way filling in and mining the last cold water
22   trout stream in Harlan County would not adversely impact
23   the quality and quantity of the water.  The State rightly
24   rejected the waiver request and trout still run in Fugates
25   Creek.
0054
 1             What would happen to Fugates Creek under the
 2   proposed change to the stream buffer zone rule?  Fugates
 3   Creek wold be gone because the standard the proposed
 4   changes would substitute is meaningless.  All Nally and
 5   Hamilton would have to do to plow through Fugate Creek is
 6   to try and show that they have minimized the impacts to
 7   Fugates Creek to the extent possible.  Then they'd get the
 8   permit.  And Fugates Creek would be gone.  How many trout
 9   would live in a filled-in stream?  None.
10             Fugates Creek is just one creek.  There are
11   waterways across Appalachia that stand to be destroyed
12   because of this proposed change to the stream buffer zone
13   rule.
14             We echo the call of other commenters for an
15   environmental statement because this rule will have a
16   defined environmental impact and that needs to be studied. 
17   The regulation does not address that correctly. 
18             We cannot afford to lose any more Appalachian
19   waterways.  More than 1,000 miles of streams have already
20   been buried.  It's time to stand up and say enough. 
21   Burying streams is folly and it needs to be stopped. 
22   Rejecting this rule change is the first step. 
23             I would also like to address the lack of
24   democracy in this rule change process.  Tens of thousands
25   of people wrote comments into the mountaintop removal
0055
 1   environmental impact statement, many if not most
 2   addressing the stream buffer zone rule change.  Those
 3   comments were not even read before this rule change was
 4   proposed.  I urge the Office of Surface Mining to read
 5   those comments, listen to the people here today, act like
 6   a democracy, and reject this rule change. 
 7             Thank you. 
 8             (Applause.) 
 9             MR. DeVITO:  Our next speaker is Gerald
10   Winegrad.  The speaker to follow is Maria Gunnoe. 
11             MR. WINEGRAD:  My name is Gerald Winegrad.  I'm
12   Vice President for Policy of the American Bird Conservancy
13   with our offices here in Washington, D.C.  We're a
14   national nonprofit organization dedicated to the
15   conservation of wild birds in the Americas and work with a
16   network of folks all over the country and all over the
17   Americas. 
18             We urge the Department of the Interior and OSM
19   to withdraw the proposed stream buffer zone rule and
20   instead fully enforce the existing regulations and laws.
21             The stream buffer rule was first promulgated in
22   1983 that we're operating under, and this rule is clear. 
23   It only needs to be enforced.  If you want some
24   enforcement agents, there are some good people here that
25   have spoken from West Virginia and I'm sure they can
0056
 1   handle their rifles, and I think they would be excellent
 2   enforcers. 
 3             We have already destroyed 1,200 miles of the
 4   surface waters of the United States.  We have destroyed
 5   over 380,000 acres of mature deciduous forests on these
 6   mountaintops, crippling people's lives, and destroying
 7   habitat that is critical for many breeding birds that are
 8   in trouble and in decline and that one day be listed as
 9   endangered species. 
10             The Methodist minister spoke, speaking for the
11   entire Methodist Church, that there are social, economic
12   and justice matters that go far beyond birds or aquatic
13   species or butterflies or all the critters dependent on
14   the web of life linked to the mountaintops, the trees, the
15   waters, and also the many webs of life that are linked to
16   the people there.  Folks can't even fish in this area
17   anymore that they grew up in, and the birds are also in
18   trouble because of this. 
19             Because of that, ABC and 49 other groups
20   submitted detailed comments on the mountaintop mining
21   draft environmental impact statement and noted that very
22   specific species were affected by this mountaintop mining
23   and will be affected and have been by the fill and by
24   eliminating the buffer rule. 
25             In these cases, we clearly documented that the
0057
 1   whole host of partners in flight, mature forest breeding
 2   birds -- and this is a list of priority species that are
 3   also United States Fish and Wildlife Service species of
 4   management concern, formally published under an act of
 5   Congress that may eventually go on the endangered species
 6   list unless there's protection. 
 7             One of those species is the Cerulean warbler. 
 8   And I will submit the testimony for the record with the 50
 9   groups signed on.  Its breeding habitat -- and I can show
10   this and submit it for the record -- for its total global
11   population is centered right in the Appalachian region
12   that is under the mountaintop mining scourge and that, in
13   effect, the best ornithological data is at least 138,000
14   breeding birds in this rapidly declining species will be
15   extirpated totally from this breeding area that they
16   depend on.  
17             In addition to Cerulean warblers, other species
18   that are dependent on these riparian areas in the stream
19   valleys are such species as the Acadian flycatcher that
20   actually builds nest over trees and branches that extend
21   over streams in the area.  The Swainson's warbler, the
22   Kentucky warbler, and other species such as Louisiana
23   waterthrush all of which are in trouble and need our help. 
24   Also in this area the worm-eating warbler and the yellow-
25   throated vireo are all species of concern for which we ask
0058
 1   the Office of Surface Mining to withdraw this rule.  If
 2   they're going to proceed, it should be folded into the
 3   environmental impact statement that is under review. 
 4             82,000 comments were received on that draft
 5   environmental impact statement, by far the largest
 6   majority being against this, including the ones we
 7   submitted.  And someone said that democracy isn't being
 8   served.  What I feel after being here today and talking to
 9   the people from West Virginia and Tennessee, this is one
10   of the greatest injustices being perpetrated by the United
11   States Government anywhere in this country and far exceeds
12   what could have possibly gone on in the Arctic National
13   Wildlife Refuge if it had been opened up for full oil and
14   gas exploration.  And I have been to that refuge and
15   traveled over it and spent the night in the oil fields.
16             I would say to the Office of Surface Mining that
17   it's very clear, if you read the regulations, that no land
18   within 100 feet of a perennial stream or an intermittent
19   stream shall be disturbed by surface mining activities
20   unless the regulatory authority specifically authorizes
21   surface mining activities and the regulatory authority may
22   only authorize these if it will not cause or contribute to
23   the violation of applicable State or Federal water quality
24   standard and will not adversely affect the water quantity
25   and quality and the other environmental resources of the
0059
 1   stream.  What's unclear about that?  We ought to stick
 2   with that.
 3             Finally, I would say as a matter of justice to
 4   the people that live there, as well as our wildlife and
 5   our birds, that the system should respond to these people. 
 6   All of these requests are reasonable.  The problem here is
 7   the system is fixed, that the Deputy Secretary, Mr.
 8   Griles, ordered the draft environmental impact statement
 9   changed so that all the environmental alternatives were
10   removed and the only thing placed in there were things to
11   expedite the permitting.  Then when citizens were
12   successful in court, we changed the Clean Water Act.  And
13   finally, now we want to change the buffer zone.
14             And so I implore this Office of Surface Mining
15   to respond to the citizens, most of the 82,000 comments,
16   and withdraw this rule.  Thank you. 
17             (Applause.) 
18             MR. DeVITO:  Our next speaker is Maria Gunnoe,
19   and the speaker to follow is Gregory Butcher. 
20             MS. GUNNOE:  Hello.  My name is Maria Gunnoe. 
21   It's spelled M-a-r-i-a G-u-n-n-o-e.
22             I live on Big Branch Creek in Bobwhite in Boone
23   County, West Virginia with my two children. 
24             I'm strongly opposed to any attempt to eliminate
25   the stream buffer zone that protects our streams from coal
0060
 1   mining activities for 20 years.  Changing this rule could
 2   very well cost thousands of lives in the coal fields.
 3             I have lived on the same property for 35 years. 
 4   This property has been passed down through four
 5   generations.  In the past three years, we've stood by and
 6   watched in terror as the mine company blasted apart the
 7   mountain adjacent to our property and tossed it into the
 8   stream that runs through our property.  In three years,
 9   I've been flooded seven times and once with no rain. 
10   Imagine that one. 
11             In June of 2003, I was flooded so horribly that
12   it totally destroyed my home place.  This tiny stream took
13   a 67-foot crater 20-foot deep through the middle of
14   everything we own.  It has took my only access bridge. 
15   I'm now 500 yards from where I park.  The valley fill and
16   toxic spillway have contaminated the groundwater and the
17   well water is no longer safe to drink.  We buy and carry
18   all of the water we use for consumption. 
19             I have since been doing everything that I can to
20   save my home, my community, and the surrounding
21   communities from these vicious attacks on our lives. 
22             I was told by the mine company engineer the day
23   after I was flooded in June of 2003 that this was an act
24   of God.  This is not an act of God.  This is an act of
25   government.  Allowing people to destroy people is what
0061
 1   this is. 
 2             The Bush administration is trying to improvise
 3   the only protection that we have, which is the buffer zone
 4   rule.  Please do not allow this to happen.  Allowing any
 5   changes to the buffer zone rule will give the industry the
 6   ammunition that they need to destroy us in our own homes. 
 7   Please stop this insanity.  No matter who you are, no
 8   matter how much money you have, you must have clean water. 
 9   If you do not do this for any other reason, do it for our
10   future generations.  It's simply amazing how the flick of
11   a pen here in D.C. affects us in the coal fields of West
12   Virginia. 
13             (Applause.) 
14             MR. DeVITO:  Our next speaker is Gregory
15   Butcher.  The speaker to follow is Pauline Canterberry.
16             MR. BUTCHER:  My name is Gregory Butcher.  I'm
17   Director of Bird Conservation for the National Audubon
18   Society, working out of their Washington, D.C. office.
19             On behalf National Audubon Society's more than 1
20   million members and supporters, I am here today to discuss
21   the need to restrict mountaintop removal mining and valley
22   fills and specifically to oppose the proposed rule change
23   on stream buffer zones. 
24             Specifically, Audubon disagrees with the
25   proposed rule change.  We believe that the environmental
0062
 1   assessment on the rule change fails to meet the
 2   requirements of the National Environmental Policy Act and
 3   is therefore inadequate.  We believe that the proposed
 4   rule change will have a significant environmental impact
 5   and that therefore a full environmental impact statement
 6   is required. 
 7             In several places, the proposed rule uses the
 8   phrase "to the extent possible."  It is clear that this
 9   phrase is meant to give authorities room to approve valley
10   fills even in circumstances where environmental harm is
11   quite likely.  Thus these phrases are inappropriate in
12   these rules. 
13             I must say that personally I am extremely
14   impressed with the testimony I have heard today about the
15   human impacts of this rule change and of mountaintop
16   removal mining on the people of the Appalachian Mountains. 
17   My father was raised in West Virginia and spent his
18   summers in eastern Kentucky, and my ancestors have lived
19   in this area for over 200 years.  So I deeply understand
20   the serious and devastating human impacts on this.  So I
21   hope you will forgive me if just take a few moments to
22   talk about the impact on the birds as well.
23             Of particular concern to Audubon is the impact
24   of these fills on Cerulean warblers.  Audubon is one of
25   several groups, like the American Bird Conservancy, that
0063
 1   have petitioned the Fish and Wildlife Service to list the
 2   species as threatened under the Endangered Species Act. 
 3   The Cerulean warbler has experienced an 80 percent decline
 4   in its population since 1966 due to habitat loss both in
 5   the United States and in South America.  We emphasize that
 6   one of the major sources of current and future habitat
 7   loss for the Cerulean warbler is surface coal mine
 8   operations in the Appalachian Mountains that are
 9   occurring, as Gerald showed you, in the heart of the range
10   of the Cerulean warbler. 
11             Mining in recent years has led to an increase in
12   the decline of the Cerulean warbler in the Appalachian
13   region and continued mining operations, which would be
14   facilitated by the proposed rule change, will only
15   increase the need for listing the species under the
16   Endangered Species Act. 
17             Swainson's warbler is another species that is
18   threatened by mountaintop removal/valley fill mining. 
19   There is a special subpopulation of Swainson's warbler
20   that breeds in the rhododendron thickets in the
21   Appalachian Mountains.  These thickets are threatened by
22   mountaintop removals and by valley fills.  Thus, this very
23   special breeding population of Swainson's warblers is also
24   threatened.  Swainson's warbler is already an Audubon Red
25   WatchList species, which means that it is a species of
0064
 1   very high conservation concern.  Continued mountaintop
 2   removals and valley fills, as promoted by this proposed
 3   rule change, will only worsen the prospects for Swainson's
 4   warbler. 
 5             The Appalachian Mountains are a haven for a
 6   large variety of wood warblers, the many-colored
 7   butterflies of the bird world.  In addition to Cerulean
 8   and Swainson's warblers, worm-eating, Kentucky, and Canada
 9   warblers are also forest-breeding warblers whose habitat
10   will be destroyed by these mining activities. 
11             Warblers are neotropical migrants that spend
12   their breeding seasons in the United States and Canada and
13   that winter south of our borders.  How can we convince
14   Caribbean and Latin American countries to take good care
15   of the wintering habitats of these species if we can't
16   ensure high quality breeding habitat in the Appalachian
17   Mountains?
18             Many other bird species depend on the
19   Appalachian Mountain forests for successful breeding.  One
20   of my shirttail cousins is Loretta Lynn who grew up in
21   Butcher Holler in Tennessee.  Her singing prowess is
22   matched only by the woodthrush and the woodthrush has one
23   of the most beautiful songs of any bird in the world, but
24   its populations are declining throughout its range.  It
25   breeds in the Appalachians, but its populations will
0065
 1   continue to decline if mountaintop removals and valley
 2   fills continue unabated. 
 3             In summary, the environmental assessment is
 4   totally inadequate because it does not acknowledge the
 5   significant environmental impact that will be caused by
 6   the proposed rule.  Therefore, we ask the Office of
 7   Surface Mining to withdraw their proposed rule and to
 8   prepare a full environmental impact statement that
 9   includes a preferred alternative that will strengthen
10   stream buffer zones, restrict valley fills, and provide
11   stronger environmental protections than the currently
12   proposed rule.
13             Thank you. 
14             (Applause.) 
15             MR. DeVITO:  Our next speaker is Pauline
16   Canterberry, and the speaker to follow is Robin Mann.
17             MS. CANTERBERRY:  Okay.  My name is Pauline
18   Canterberry, and that is spelled with a b-e-r-r-y.  I'm
19   not akin to the duke.
20             Seven years ago, the Coal River community was
21   the most wonderful place in the live in.  Then mountaintop
22   removal came through.  Now it's a hell hole.  It's a black
23   hell hole.  My home is destroyed by coal dust.  I have
24   impoundments up from me, four of them.  All four are high
25   risk with OSHA.  One of them, when it gets to full
0066
 1   capacity, will hold 9 billion gallons of black slurry.  It
 2   will to the height of 954 feet, higher than the Boulder
 3   Dam in Colorado and the New River Gorge Bridge in West
 4   Virginia.  It's full of black slurry over an area that has
 5   been mined for years underneath it.  The sides of it have
 6   been cord railed. 
 7             Now they want to close the streams in the valley
 8   by filling them up with valley fills.  We've already been
 9   flooded three times in the past year and a half.  Each one
10   becomes worse from the mountaintop removal because if you
11   fill a valley in, you clear that mountain off on top of
12   it, you make it naked, then that water is going to slide
13   down its side and it's going to come down like a torment,
14   where the trees used to hold it up on top of it, where God
15   intended it for it to say till he got ready to put it down
16   in the valleys.
17             Man today is making laws to accommodate the coal
18   corporates, your corporates, and you are forgetting about
19   all the people.  My husband fought in World War II in
20   three major battles in Germany.  He was captured at the
21   Battle of the Bulge, treated, starved for the freedom of
22   this country.  Today I have none.  I don't have any.  I'm
23   glad he's not here today to see what they done to what he
24   worked and built under very hard circumstances after being
25   a prisoner of war in Germany. 
0067
 1             We don't count anymore.  We're old.  Our area is
 2   retired seniors.  That's one reason I got into this.  The
 3   community I live in has 65 percent elderly people in it
 4   and I worked with those people.  They kept saying what's
 5   going to happen to us.  What's going to happen to us?  I
 6   don't know what's going to happen but I'm very worried
 7   about what's going to happen to them. 
 8             Them changes have to be made and they have to be
 9   made soon because if you change this buffer zone law, the
10   50-mile valley where I live is going to be in total
11   danger, and we have no escape route.  Every cutoff you go
12   to has a shack there that belongs to a mining industry,
13   and you're not allowed to cross it because there will be a
14   man with a gun and a dog waiting when you get on the other
15   side.  That's a fact.  Come down.  We'll show you anytime
16   you want to see it.  So we have nowhere to go.
17             You're going to have a disaster in this country
18   like you have never seen in your life.  Not only that
19   disaster, but shooting off the tops of those mountains
20   you're contaminating the entire United States with
21   pollution.  I have watched the sun shine in West Virginia
22   through a layer of coal dust now for seven years.  Not
23   very pretty.  Not pretty when it lands on your property
24   either.  That holds disease.  It holds the disease that
25   causes black lung in your lungs.  It holds the disease of
0068
 1   silicosis from the rock dust from those rocks that they're
 2   shooting off those mountains, and it rolls down in the
 3   valley.  Now, remember that that air that goes over top of
 4   us comes up the eastern seaboard and it travels on and on
 5   and on.  It don't all stop on us.  We only get the worst
 6   part of it.  You're going to have sick people like you've
 7   never seen before because it takes about seven years for
 8   it to get hold of your lungs.  Believe me, I know what I'm
 9   talking about.  My father died with silicosis, and my
10   husband died with black lung.  It's not an easy death. 
11             You better make some new rules.  You better make
12   some rules that's going to help you, not rules that's
13   going to bring one more disaster after another one.  And
14   this needs to be the first one you stop by making the
15   right decision. 
16             (Applause.) 
17             MR. DeVITO:  Our next speaker is Robin Mann. 
18   The speaker to follow is James Murphy. 
19             MS. MANN:  I'm Robin Mann, R-o-b-i-n M-a-n-n. 
20   I'm from Pennsylvania.
21             There is a hearing going on in Green Tree in
22   southwestern Pennsylvania today, but I wanted to be here
23   to just say that the ravages of coal mining in
24   southwestern Pennsylvania cause a lot of people in that
25   area to feel in solidarity with those of you dealing with
0069
 1   the devastating impacts of mountaintop removal mining. 
 2   It's different in the type of operation, but some of the
 3   effects are the same like denying people the use of their
 4   own wells and destroying houses.
 5             I can't say very much more after the compelling
 6   testimony that's been given.  But I just wanted to mention
 7   a couple of things.
 8             I am involved with some conservation work in
 9   Pennsylvania through the Sierra Club and appreciate fully
10   the fact that we've learned so much more about what
11   headwater streams provide to the environment than we knew
12   when this buffer zone rule was first written.  We know
13   about the flood storage potential of headwater streams and
14   how they service the downstream waters.  They clarify the
15   water quality and they feed the fish resources downstream. 
16   We know this better than we did then.  So it's
17   unconscionable that we would be doing everything we can to
18   undermine the protections that still have managed to
19   survive the Bush administration and allow mountaintop
20   removal mining to go forward.  
21             I applaud those of you who have come a very long
22   way to speak to the Department of the Interior right here
23   where they are and to make your voices heard.  I
24   appreciate being part of this hearing.  Thank you. 
25             MR. DeVITO:  Our next speaker is James Murphy. 
0070
 1   James Murphy? 
 2             (No response.) 
 3             MR. DeVITO:  The next speaker will be Gary
 4   Belan, and the speaker to follow will be Pinksy Malin.
 5             MR. BELAN:  Hello.  My name is Gary Belan, G-a-
 6   r-y B-e-l-a-n.  It rhymes with melon.
 7             So I'm speaking you today as a citizen of
 8   Virginia, a former citizen of western Virginia, and I am
 9   the direct descendent of coal miners and steel mill
10   workers of western Pennsylvania who are now living or are
11   buried in those mountains out west of us. 
12             Whenever I go hiking or fishing along the rivers
13   like the Potomac here in Virginia, I think about where I
14   used to live or the family that are still there, from the
15   water that's running down from those mountains.  As Robin
16   Mann said right before, there's a more direct connection
17   than you really think.  There's a spiritual one that I
18   think of.  And that's because these headwaters are a
19   direct connection to the larger rivers that supply our
20   drinking water and our recreation down here in the basins
21   here in Virginia or along the Ohio River going through
22   Kentucky.
23             These small river riparian buffers that are
24   there protecting from the erosion, the flooding, the other
25   pollutants that are getting in these rivers, they're not
0071
 1   just protecting the headwaters up there in West Virginia
 2   and Tennessee.  They're also protecting the larger rivers
 3   down here in Virginia or Tennessee or where the rest of us
 4   are ignorant of the everyday plight of a lot of these
 5   people that I used to live and grow up with in West
 6   Virginia.  So this is a tragedy not just for the local
 7   groups, but they're a tragedy for all of us who live in
 8   cities that don't see this every day.  It's a tragedy for
 9   all of us that use and drink from the rivers that
10   originate up in those mountains. 
11             Now, the Sierra Club and American Rivers have
12   issued a report called Where Rivers are Born
13   scientifically documenting this.  More than a dozen
14   qualified scientists wrote about the direct scientific
15   connection between these headwaters and the larger rivers
16   that support our populations.  So if that's not enough to
17   tell you that the connection between these small rivers
18   starting up in the mountains and the large flows that we
19   see here in the Potomac right next to us, then I don't
20   know what more proof you need. 
21             I'm against this new proposed rule and, you
22   know, enforcing the one that's already there.  Thank you. 
23             (Applause.) 
24             MR. DeVITO:  Our next speaker is Pinsky Malin. 
25   The speaker to follow is John Seebach. 
0072
 1             MR. PINSKY:  My name is Malin Pinsky, M-a-l-i-n
 2   P-i-n-s-k-y.  I'm here on my own behalf.
 3             I want to thank OSM for this opportunity for
 4   public comment. 
 5             As a resident of Maine, I grew up experiencing
 6   firsthand the beauty of small mountain streams and I
 7   empathize with everyone from the southern Appalachians who
 8   have already spoken in their defense.  As a trained
 9   ecologist, I know full well the ecosystem value of these
10   small mountain streams for water quality, natural flood
11   control, and biodiversity protection all the way down our
12   waterways.  
13             The proposed rule will weaken protection for
14   these streams.  I oppose it.  I encourage OSM to instead
15   enforce the current rule.  Thank you. 
16             (Applause.) 
17             MR. DeVITO:  Our next speaker is John Seebach. 
18   The last speaker will be Brent Blackwelder.
19             MR. SEEBACH:  Good afternoon.  My name is John
20   Seebach.  It's John with an H and S-e-e-b-a-c-h.  I'm here
21   on my own behalf as a native of Kentucky, someone who has
22   spent most of his life living in the southern Appalachians
23   and near, recreating in those as well.  I'm a kayaker. 
24   This means a great deal to me. 
25             I strongly oppose this proposed rule.  I think
0073
 1   it's a shame, and I would hope that OSM would instead
 2   concentrate its energies on enforcing the law as it is
 3   currently written.  That would be a much better use of
 4   your time. 
 5             I have three observations and then I'll leave. 
 6   First, when you cut the top off a mountain, that mountain
 7   is gone forever.  And second, when you fill in a stream,
 8   that stream is also gone forever.  And the third, when you
 9   allow industry to subvert the democratic process and
10   change the law as it is written to support their ideal
11   conditions, well, I shudder to think what's lost forever
12   in that case. 
13             Thank you very much. 
14             (Applause.) 
15             MR. DeVITO:  Our next speaker is Brent
16   Blackwelder.  Do we have a Mr. Brent Blackwelder?
17             (No response.) 
18             MR. DeVITO:  Do we have a James Murphy? 
19             (No response.) 
20             MR. DeVITO:  That was the last of our registered
21   speakers.  Is there anyone here who would like to speak? 
22   We have two people.  Why don't you move forward and you
23   can both speak if you like.  When you get the podium, just
24   give your name. 
25             MS. AUCH:  Thank you for the opportunity.  My
0074
 1   name is Christina Auch, A-u-c-h.  I'm here today as a
 2   resident of Harpers Ferry, West Virginia at the
 3   convergence of the Potomac and the Shenandoah, 70 miles
 4   west of here.
 5             And I'm asking you to please keep the buffer
 6   zone rule intact.  The rule is supposed to protect our
 7   water.  It's supposed to protect us from the effects of
 8   mountaintop removal.  The small headwater streams that
 9   everyone has been referencing today, those are streams
10   that are upstream from me.  I live where they come
11   through.
12             Mountaintop removal harms the environment.  The
13   companies use their dynamite to literally blow the
14   mountain tops off and deposit that into the valleys.  They
15   deposit tons of debris that bury these streams, obliterate
16   the forests.  The mountaintop removal harms the
17   communities.  It destroys any market there is for
18   recreation, tourism.  These are dollars that are much more
19   valuable than any industry dollars.  This is community
20   health that are being subjected to harmful coal dust. 
21   Public health is being degraded.  Property values are
22   being lowered, and the unique culture of our region of the
23   Appalachians, of Kentucky, southern Virginia, West
24   Virginia, Tennessee are being lost.
25             The Bush administration, as so often, is
0075
 1   ignoring public comment.  They're ignoring their own
 2   scientists.  The environmental impact statement, for all
 3   its shortcomings, admits that mountaintop removal has
 4   already destroyed 1,200 miles of streams and could impact
 5   as many as 1.4 million acres of forest.  There are more
 6   than 240 species of wildlife that could be affected.
 7             Rather than requiring the coal industry to
 8   comply with the law, the Bush administration is attempting
 9   to rewrite it in order to legalize waste dumping in
10   streams.
11             The buffer zone rollback needs to be opposed. 
12   The current law must be enforced. 
13             Thank you. 
14             (Applause.) 
15             MS. MULHERN:  Good afternoon.  My name is Joan
16   Mulhern.  I'm Senior Legislative Counsel for Earth
17   Justice.  That's M-u-l-h-e-r-n.  Earth Justice is a
18   national nonprofit environmental law group. 
19             As we've all been discussing this afternoon, on
20   January 7th, 2004, the Bush administration proposed yet
21   another plan to weaken a longstanding environmental
22   safeguard intended to limit mountaintop removal coal
23   mining, the proposal to rewrite and essentially repeal the
24   20-year-old stream buffer zone rule. 
25             This proposal came out just one day -- one day
0076
 1   -- after the public comment period was to have closed on
 2   the mountaintop removal draft environmental impact
 3   statement, a review of the environmental effects of
 4   mountaintop removal that had been in the works for over
 5   four years.  The Bush administration received over 80,000
 6   public comments on the draft EIS asking for more
 7   environmental protections, not fewer, not weaker, not
 8   lesser, more.
 9             So, while I appreciate that we have another
10   chance to comment to the administration today, I'm
11   starting to get the feeling that they're not really
12   listening to us.  And that's really inexcusable especially
13   today as you've heard some amazing and very compelling
14   testimony. 
15             The draft EIS documented in great detail, the
16   greatest to date really, the extreme and irreversible
17   damage being caused by mountaintop removal, much of which
18   we've already heard about today from the people
19   experiencing it firsthand in the communities that are
20   being destroyed.  But in sum, the 5,000 pages of studies
21   in the DEIS concluded that without additional
22   environmental restrictions, by the end of the next decade
23   over 2,200 square miles of Appalachia will have been
24   completely destroyed.  It's stunning.  Even for this
25   administration with its dismal environmental record and
0077
 1   its history of bending over backwards for the coal
 2   industry, it is stunning that this documentation of the
 3   harm caused by mountaintop removal is being met by the
 4   Office of Surface Mining in the Bush Administration with
 5   an effort to further weaken environmental protections. 
 6             The proposed change in the buffer zone rule
 7   marks with an exclamation point this administration's
 8   disregard for the country's natural resources and for the
 9   public's concern about one of the most blatant examples of
10   environmental and social destruction occurring anywhere in
11   the country today. 
12             It is equally remarkable that the administration
13   is attempting to portray this very significant change in
14   existing Federal law as a clarification.  The existing
15   rule says don't dump in the streams.  The proposed new
16   rule says go ahead.  That's some powerful clarification
17   that changes words to mean their exact opposite. 
18             The gentleman from the National Mining
19   Association, which I believe just has an academic legal
20   interest in this issue, said that SMCRA does not mandate
21   the stream buffer zone rule.  As an earlier speaker
22   pointed out, this isn't really true.  It's true that the
23   regulation is not part of the statute, but the statue,
24   SMCRA, does mandate that the agencies adopt regulations to
25   protect streams.  Protecting the environment and
0078
 1   protecting communities in fact was the very reason why
 2   Congress enacted SMCRA.  It was not a law passed to allow
 3   business as usual to continue.  It was a law that was
 4   supposed to rein in the worst abuses of strip mining,
 5   including mountaintop removal.
 6             And as many people have already pointed out
 7   today, the best way to meet that purpose of protecting
 8   streams is to have a buffer that keeps the mining damage
 9   away from them.  And if you think about it, really a 100-
10   foot buffer from these giant mining operations isn't
11   really very much.  It's a pretty thin amount of protection
12   between giant mining operations that can be tens of square
13   miles in size and small streams that need to be protected. 
14   So I think the buffer zone is the least that the public
15   can expect to implement Congress' purpose in SMCRA to
16   protect the nation's streams. 
17             Another rationale given by the OSM for changing
18   the buffer zone rule is to conform with the agency's and
19   the industry's current practices.  But that's like saying
20   that the best way to address stealing is to simply make
21   theft legal.  OSM should conform its practices to the law
22   and not the other way around. 
23             Thank you. 
24             (Applause.) 
25             MR. DeVITO:  Is there anyone lese here that
0079
 1   would like to speak? 
 2             (No response.) 
 3             MR. DeVITO:  In that case, I'm going to bring
 4   the hearing to a close.  I'd like to apologize to anyone
 5   if I mispronounced your name.  I appreciate the courtesy
 6   you showed to the other speakers, and I thank you for
 7   taking the time to participate.  Thank you. 
 8             VOICE:  Here's Mr. Blackwelder. 
 9             MR. DeVITO:  Mr. Blackwelder?
10             MR. BLACKWELDER:  Yes.  Am I last and least?
11             For the record, I'm Brent Blackwelder, President
12   of Friends of the Earth.  B-r-e-n-t B-l-a-c-k-w-e-l-d-e-
13   r.
14             Friends of the Earth has been working on coal
15   mining issues for 35 years.  We were there in the 1970s
16   working with groups all across the country to pass the law
17   dealing with strip mining, and then after passage, we
18   worked for the past two and a half decades to try to get
19   enforcement. 
20             The biggest problem, as we did the debate in the
21   1970s, was that some people with clear-sightedness said
22   there is no way that the coal industry is going to be
23   regulated.  If you don't ban strip mining, you will have
24   one human and environmental catastrophe after another. 
25   Those people have proved to be right because since the
0080
 1   very date of passage, the struggle to get implementation
 2   has been a failing one.  Dozens of lawsuits have had to be
 3   filed to force the agencies to implement the law of the
 4   Office of Surface Mining, the Environmental Protection
 5   Agency. 
 6             And that brings us to this point in time.  The
 7   law is there.  It needs to be implemented, but what we
 8   have is a real tragedy because we have a proposal that
 9   purports to want to help ease the implementation and
10   minimize damage.  But in reality what they portray as
11   minimize damage is actually opening the doors to maximum
12   damage.  
13             It reminds me of the classic book by George
14   Orwell called Animal Farm, and that is relevant here I
15   think because what we have in the language of this rule,
16   part of which was read to us, this proposed rule, is an
17   attempt to say one thing but mean the exact opposite. 
18   This is supposed to safeguard rivers and streams.  It's
19   going to do the exact reverse.  In Animal Farm, you recall
20   that the animals take over this unethical farm operation
21   and the pigs are in charge and working with the horses and
22   so on, but then the pigs get more and more power.  And the
23   original slogan "all animals are equal" gets changed
24   toward the end and the pigs say all animals are equal but
25   some are more equal than others.  And they send the horse,
0081
 1   who had been a leader, off to the slaughterhouse. 
 2             And so now, what we have is a continuing series
 3   of descriptions of clear skies, healthy forests, and now
 4   safe streams and buffers that is meaning exactly the
 5   opposite from what it's going to do.  This is actually
 6   going to destroy and open up more streams to destruction
 7   and devastation than anything else. 
 8             And let's be clear about that.  At a time when
 9   democracy and leaders cannot use words to mean what
10   they're supposed to mean, they're undermining the
11   Constitution of the United States.  They're undermining
12   the foundations of our freedom.  And I submit for this
13   hearing record that that is exactly what these people at
14   this Department and this administration are proposing to
15   do.  There's no way of mincing words.  That is directly
16   what they are saying. 
17             So we are strongly opposed to this.  We have a
18   track record of watching this law over three decades.  I
19   have a full statement that I'd like submitted for the
20   hearing record.  I know it's long.  You've heard a lot. 
21   And we call upon you just summarily to reject this attempt
22   to roll back and weaken protections and instead to move
23   forward and enforce the existing law.  And if that were
24   enforced, the disaster which is now devastating the
25   communities in Appalachia -- it has destroyed over 1,000
0082
 1   miles of streams, jeopardized over 200 varieties of
 2   wildlife, compromised the hydrologic integrity of that
 3   whole portion of the country -- that is all going to be
 4   lost and wiped out as they create a virtual Martian
 5   landscape in this part of the country.  That is
 6   unacceptable and has to be stopped. 
 7             (Applause.) 
 8             MR. DeVITO:  Is there anyone else that would
 9   like to speak?  Sir? 
10             MR. SALAZAR:  My name is Wayne Salazar, S-a-l-
11   a-z-a-r.
12             I came all the way from California.  I walk with
13   a cane.  I'm in constant pain because of a nerve disease
14   in my feet, but it wasn't always this way.  When I was
15   younger, the first time I ever had a paid vacation, I took
16   it on the Appalachian Trail by myself and I hiked 50 miles
17   of it in a week.  It saddens me that I've lost the ability
18   to return to the Appalachian Trail, but it gladdens me to
19   know that it's there. 
20             And what really is sick is that we've been here
21   for hours.  We've heard all of these people comment about
22   the biological damage, the ecological damage, the damage
23   to homes and lives, and the legal underpinning of the law
24   as it exists and how that is preferable to the proposed
25   rule change.  And what is really sick is that we've heard
0083
 1   one person come in here from the mining association and
 2   talk about why the rule should be changed and that one
 3   person is the guy with the money.  And all of us will be
 4   ignored. 
 5             I just wanted to put my voice on the record that
 6   somebody from California who cares about nature came here
 7   to say that you people are sick.  You're insane.  No. 
 8   It's a simple word.  You look at what's happening.  You
 9   say, is this right, is this wrong?  No.  No.
10             Thank you. 
11             (Applause.) 
12             MR. DeVITO:  Is there anyone else in the
13   audience that would like to speak? 
14             (No response.) 
15             MR. DeVITO:  That was the last speaker.  Thank
16   you for attending.  The hearing is over with. 
17             (Whereupon, at 4:25 p.m., the hearing was
18   concluded.)
19   
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25