[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
EPA MINING POLICIES:
ASSAULT ON APPALACHIAN JOBS--PART II
=======================================================================
(112-30)
HEARING
BEFORE THE
SUBCOMMITTEE ON
WATER RESOURCES AND ENVIRONMENT
OF THE
COMMITTEE ON
TRANSPORTATION AND INFRASTRUCTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
MAY 11, 2011
__________
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COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
JOHN L. MICA, Florida, Chairman
DON YOUNG, Alaska NICK J. RAHALL II, West Virginia
THOMAS E. PETRI, Wisconsin PETER A. DeFAZIO, Oregon
HOWARD COBLE, North Carolina JERRY F. COSTELLO, Illinois
JOHN J. DUNCAN, Jr., Tennessee ELEANOR HOLMES NORTON, District of
FRANK A. LoBIONDO, New Jersey Columbia
GARY G. MILLER, California JERROLD NADLER, New York
TIMOTHY V. JOHNSON, Illinois CORRINE BROWN, Florida
SAM GRAVES, Missouri BOB FILNER, California
BILL SHUSTER, Pennsylvania EDDIE BERNICE JOHNSON, Texas
SHELLEY MOORE CAPITO, West Virginia ELIJAH E. CUMMINGS, Maryland
JEAN SCHMIDT, Ohio LEONARD L. BOSWELL, Iowa
CANDICE S. MILLER, Michigan TIM HOLDEN, Pennsylvania
DUNCAN HUNTER, California RICK LARSEN, Washington
ANDY HARRIS, Maryland MICHAEL E. CAPUANO, Massachusetts
ERIC A. ``RICK'' CRAWFORD, Arkansas TIMOTHY H. BISHOP, New York
JAIME HERRERA BEUTLER, Washington MICHAEL H. MICHAUD, Maine
FRANK C. GUINTA, New Hampshire RUSS CARNAHAN, Missouri
RANDY HULTGREN, Illinois GRACE F. NAPOLITANO, California
LOU BARLETTA, Pennsylvania DANIEL LIPINSKI, Illinois
CHIP CRAVAACK, Minnesota MAZIE K. HIRONO, Hawaii
BLAKE FARENTHOLD, Texas JASON ALTMIRE, Pennsylvania
LARRY BUCSHON, Indiana TIMOTHY J. WALZ, Minnesota
BILLY LONG, Missouri HEATH SHULER, North Carolina
BOB GIBBS, Ohio STEVE COHEN, Tennessee
PATRICK MEEHAN, Pennsylvania LAURA RICHARDSON, California
RICHARD L. HANNA, New York ALBIO SIRES, New Jersey
JEFFREY M. LANDRY, Louisiana DONNA F. EDWARDS, Maryland
STEVE SOUTHERLAND II, Florida
JEFF DENHAM, California
JAMES LANKFORD, Oklahoma
REID J. RIBBLE, Wisconsin
VACANCY
(ii)
?
Subcommittee on Water Resources and Environment
BOB GIBBS, Ohio, Chairman
DON YOUNG, Alaska TIMOTHY H. BISHOP, New York
JOHN J. DUNCAN, Jr., Tennessee JERRY F. COSTELLO, Illinois
GARY G. MILLER, California ELEANOR HOLMES NORTON, District of
TIMOTHY V. JOHNSON, Illinois Columbia
BILL SHUSTER, Pennsylvania RUSS CARNAHAN, Missouri
SHELLEY MOORE CAPITO, West Virginia DONNA F. EDWARDS, Maryland
CANDICE S. MILLER, Michigan CORRINE BROWN, Florida
DUNCAN HUNTER, California BOB FILNER, California
ANDY HARRIS, Maryland EDDIE BERNICE JOHNSON, Texas
ERIC A. ``RICK'' CRAWFORD, Arkansas MICHAEL E. CAPUANO, Massachusetts
JAIME HERRERA BEUTLER, Washington, GRACE F. NAPOLITANO, California
Vice Chair JASON ALTMIRE, Pennsylvania
CHIP CRAVAACK, Minnesota STEVE COHEN, Tennessee
LARRY BUCSHON, Indiana LAURA RICHARDSON, California
JEFFREY M. LANDRY, Louisiana MAZIE K. HIRONO, Hawaii
JEFF DENHAM, California NICK J. RAHALL II, West Virginia
JAMES LANKFORD, Oklahoma (Ex Officio)
JOHN L. MICA, Florida (Ex Officio)
VACANCY
(iii)
CONTENTS
Page
Summary of Subject Matter........................................ vi
TESTIMONY
Panel One
Carey, Michael, President, Ohio Coal Association................. 7
Hopper, M. Reed, Principal Attorney, Pacific Legal Foundation.... 7
Roberts, Steve, President, West Virginia Chamber of Commerce..... 7
Sunding, David L., University of California, Berkeley............ 7
Panel Two
Stoner, Nancy K., Acting Assistant Administrator, Environmental
Protection Agency, Office of Water............................. 28
PREPARED STATEMENTS SUBMITTED BY WITNESSES
Carey, Michael................................................... 54
Hopper, M. Reed.................................................. 59
Roberts, Steve................................................... 67
Stoner, Nancy K.................................................. 71
Sunding, David L................................................. 81
SUBMISSIONS FOR THE RECORD
Stoner, Nancy K., Acting Assistant Administrator, Environmental
Protection Agency, Office of Water, submittal of peer-reviewed
literature published since 2007 that supports the Spruce Mine
404(c) final determination..................................... 38
ADDITIONS TO THE RECORD
Peters, Leonard K., Secretary, State of Kentucky Energy and
Environment Cabinet:
Cover letter to Hon. Bob Gibbs, Chairman, Subcommittee on Water
Resources and Environment, May 17, 2011...................... 85
Letter regarding permit delays to Nancy Stoner, Acting
Assistant Administrator, Office of Water, Environmental
Protection Agency, May 17, 2011.............................. 86
``EPA Specific Permit Objection--CY2000 to Present''--
Spreadsheet showing EPA objections to Kentucky permits....... 90
ECOS, ``Objection to U.S. Environmental Protection Agency's
Imposition of Interim Guidance, Interim Rules, Draft Policy
and Reinterpretation Policy''................................ 94
National Mining Association Memorandum Opinion................. 96
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EPA MINING POLICIES:
ASSAULT ON APPALACHIAN JOBS--PART II
----------
THURSDAY, MAY 11, 2011
House of Representatives,
Subcommittee on Water Resources
and Environment,
Committee on Transportation and Infrastructure,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:37 a.m., in
Room 2167, Rayburn House Office Building, Hon. Bob Gibbs
(chairman of the subcommittee) presiding.
Mr. Gibbs. Good morning. The committee of--the Subcommittee
of Water Resources and Environment, subcommittee of
Transportation and Infrastructure, will come to order. Today we
are having our--we are calling it a part two hearing of EPA
mining policies and the effect on jobs in Appalachia.
I will start with an opening statement. Welcome, again. The
Appalachian region is being subjected to an unequal treatment
under the law by the Environmental Protection Agency for the
arbitrary reason that it produces a domestic source of energy.
The United States consumes 1.1 billion tons of coal every
year--33 percent of this coal, or approximately 390 million
tons--annually comes from the Appalachian region of the United
States. And 50 percent of the power generated in this Nation
comes from coal as its fuel source.
Coal is an abundant and domestic source of energy. Its use
is not subject to the whims of foreign cartel, nor does it tend
to thrust us into international conflicts. In addition, using
domestic coal creates American jobs. It is clear that coal will
and must remain a major source of energy well into the future.
And, therefore, it is important that we keep coal as a safe and
inexpensive alternative to other energy options.
But to quote one of our witnesses from last week's panel,
Michael Gardner, general counsel of Oxford Resources, one of
the job providers harmed by the actions of the EPA--as he
quotes, ``These permit applications literally fell into a black
hole, where no information was forthcoming. Literally, the
opposite of transparency. You couldn't find out why a permit
was on the list. You couldn't find out how to get them issued
off the list. This was a de factor moratorium on section 404
permits. So much for transparency and the EPA enhanced
coordination.''
I am extremely concerned how the administration is
attempting to short-circuit the process for changing
substantive Agency policy under the Clean Water Act without
following the proper transparent rulemaking process that is
dictated by the Administrative Procedures Act. This Act lays
out a process for public comment, making amendments to policy
for States to object and for judicial review. By ignoring the
Administrative Procedures Act, EPA is changing the Clean Water
Act, it is implementing regulations through means of interim
guidance, interim rules, draft policy, or reinterpretation of
policy.
EPA is taking these actions with little regard to economic
consequences, with little regard to national security, and,
most importantly, with little regard to the law. Much of the
Clean Water Act is a delegated program. Through its practices,
EPA is usurping the role of the States.
At last week's hearing on this issue, the committee heard
from two State regulators on the issue of EPA's legally dubious
interpretation of the law. As Teresa Marks, representing the
Environmental Council of the States, the 50 State departments
of environmental quality agencies, said last week, ``Requiring
States to implement interim guidance puts each State in the
position of deciding whether it will break the Federal law or
State law. At the very least, this should be a good enough
reason why a Federal agency should never ask a State to
implement something that is not final.''
Even though EPA is very much involved in the permit
application process with the States, the Corps of Engineers,
and other Federal agencies, EPA is now revoking permits that
have already been issued. This is not legal. In addition,
revoking a permit after it has been issued is an arbitrary and
irresponsible way for a Government to act. I consider this
regulatory overreach, and to be a fundamental property rights
issue. This is an example of Government that thinks it has no
limitations on its power.
What does it really mean to get a permit? What does it mean
to get a final decision from the Federal Government? If an
agency is given the right to unilaterally revoke an already-
issued permit, then nothing can ever be considered final. The
issuance of a Federal permit should come with some certainty
that the activity can go forward unencumbered, but within the
bounds of the permit, particularly those activities on private
lands. This no longer seems to be the case, and it is going to
have a stifling effect on not just mining operations in
Appalachia, but on the economic development, nationwide.
I would like to close my statement with a quote. As our
committee ranking member, Mr. Rahall, eloquently said last
week, ``EPA has a legitimate role to play in the Clean Water
Act permitting process. Early on in this administration many
had high hopes that the EPA would provide the clarity and the
certainty that coal mining constituencies throughout Appalachia
have been asking for, pleading for, and for many years.
Unfortunately, we have been disappointed, as a result of the
guidance that the EPA issues in April of last year, guidance
with far-reaching consequences that was made effective
immediately, without the opportunity for the public comment.
Instead of offering that clarity and certainty, the regime set
forth by the EPA has thrown the entire permitting process
throughout the region into utter turmoil.'' End quote from
Ranking Member Rahall.
I welcome our witnesses today. Before we move to our
witnesses, I recognize Ranking Member Representative Bishop for
an opening statement.
Mr. Bishop. Thank you, Mr. Chairman. Today marks the second
of two planned hearings on issues surrounding the oversight and
regulation of surface coal mining. As I mentioned at last
week's hearing, while I do not live with the day-to-day impacts
of surface coal mining, I have quickly learned that few issues
engender a more passionate response from industry, from mine
workers, and from everyday citizens as this one.
Last week we heard the concerns from representatives of the
States and mining industry on recent actions by the Obama
administration related to surface coal mining operations. Today
we will have the opportunity to hear from other affected
interests, as well as a witness from the United States
Environmental Protection Agency.
Mr. Chairman, when we last met I noted that the issue of
surface coal mining highlights the complex balance in providing
well-paying jobs for American families, in ensuring the
continued growth and economic health and safety of our
communities, and in protecting our natural environment for
current and future generations. Finding this balance can--
finding this balance point can be particularly tricky,
especially when we consider that the production of energy
itself comes with a significant cost.
Several Members have already alluded to a pendulum of
oversight and regulation of surface coal mining practices that
may have been too lax in the last administration--is now
swinging back in the other direction.
I am hopeful today the administration will have the
opportunity to explain its actions with respect to surface coal
mining, and its reasons for undertaking its actions to date. I
welcome all of the witnesses. I look forward to your testimony.
I yield back the balance of my time.
Mr. Gibbs. Thank you. Ranking Member Rahall, do you have a
statement?
Mr. Rahall. No, Mr. Chairman. I don't have any statement. I
appreciate, again, you having these hearings. I think I said it
all last week--I must have, since you quoted me this morning--I
appreciate it.
But I do want to welcome our president of the West Virginia
Chamber of Commerce, Steve Roberts, a constituent of mine--I
believe you still live in Huntington--and looking forward to
his testimony, as well as the entire panel.
Thank you, Mr. Chairman.
Mr. Gibbs. At this time I recognize Representative Capito.
Mrs. Capito. Thank you, Mr. Chairman. Thank you, Chairman
Gibbs, and thank you, Ranking Member Bishop, for holding this
second hearing regarding jobs and job loss in Appalachia.
I, too, would like to join my colleague from West Virginia
in welcoming Mr. Steve Roberts, who is the president of our
West Virginia Chamber of Commerce. Thank you, Steve, for coming
today, and thank you for your hard work in creating and
preserving our jobs in West Virginia.
As we all know, I come from West Virginia. West Virginia is
a major producer of coal and natural gas. These industries
produce thousands of jobs and millions of dollars in tax
revenue for my home State, our home State, of West Virginia.
The administration's coordinated effort to end coal mining
threatens the very future, I believe, of our Appalachia, and I
am here today to continue to fight for every mining job that
the EPA policies threaten.
In fact, as I have stated numerous times before, when I met
with Administrator Jackson she told me point blank that she
does not take into consideration the economic or the job impact
of the policies or decisions that they make. Well, I am here to
tell the members of the committee that these policies are
threatening communities, and potentially hurting our families.
And if you look out into the audience, you will see the faces
of coal who are here today to protect an industry that is so
important to the way of life of Appalachia.
The revocation of the 404 permit given to Spruce Mine No. 1
in West Virginia sent shock waves throughout the entire energy
industry. Last week, during his testimony, Dr. Leonard Peters
stated that the science the EPA is using to revoke the permit
from Spruce Mine No. 1, as well as review 235 other permits, is
``incomplete.''
Furthermore, the EPA revocation is without precedent. While
the EPA does have the authority to veto an existing permit, it
is questionable whether EPA has the authority to revoke a
permit that has already been approved by the Army Corps of
Engineers and the EPA. The EPA has not given any indication how
revoked permits could be regained.
This massive overreach by the EPA has created so much
uncertainty within Appalachia that companies are beginning to
withdraw their own permit requests, and that means job loss.
Companies are not willing to invest hundreds of millions of
dollars in a mining operation that could be shut down at a
moment's notice.
We are now seeing inflation on the rise, and food costs are
soaring through the roof, and employment has been at or above 9
percent for the last 2 years. It seems incomprehensible to me
that our Government would take such drastic measures that could
result in job loss, increase our energy costs for every
American, and increase our demand for overseas energy sources.
Mr. Chairman and members of the committee, if the
administration is willing to take drastic measures to destroy
coal, what would they be willing to do to the industries in
your district?
I look forward to hearing today's testimony, and I yield
back my time.
Mr. Gibbs. I would just like to give notice to the people
in the audience that outbursts will not be tolerated, and you
will be removed. Just decorum and respect to the Members and
the witnesses.
At this time I recognize Representative Cravaack for an
opening statement.
Mr. Cravaack. Thank you, Chairman Gibbs and Ranking Member
Bishop, for holding the second part of this important hearing
to the effect the EPA has on mining jobs in Appalachia. I would
like to welcome today's witnesses for our panel, and I look
forward to hearing your testimony, the EPA's permitting
process, and how it affects jobs not only in the Appalachian
coal mining communities, but also in the taconite and precious
metal mining communities in Minnesota's Iron Range.
As you know, 50 percent of our Nation's power comes from
coal; 33 percent of the coal mines for--come right from the
Appalachian regions. Coal mining provides thousands of jobs and
supports numerous businesses and communities throughout the
United States.
In times of rising energy costs and high unemployment, jobs
must be protected and costs must be kept as low as possible,
while at the same time protecting our environment. I am
concerned at some of the steps recently taken by the EPA to
expand its oversight, and to impose increased burdensome
regulation on industry. The new process is creating a
permitting process that is more burdensome, and with proven
inefficiencies.
I find the EPA's new regulations and overreach very
troubling, and I worry about the effect it will have on the
mining jobs in and outside of Appalachia. I wonder why the
changing permitting process is necessary, and also what thought
was put into making these changes the EPA is attempting to push
through.
I look forward to hearing from our witnesses today, and
their thoughts on what steps can be taken to protect thousands
of jobs within the United States. Thank you again, and I look
forward to hearing from your testimony.
And I yield back, sir.
Mr. Gibbs. Mr. Landry, do you have an opening comment?
Proceed.
Mr. Landry. Thank you, Mr. Chairman, for calling today's
hearing. Thank you all for participating.
Today's hearing addresses part of an enormous problem in
this country: the EPA and the 404 permit process is stifling
economic progress and job creation in this county. According to
Chairman Mica's landmark study entitled, ``Sitting on our
Assets,'' a 404 permit application costs over $271,000 to
prepare, not counting the cost of mitigation, design changes,
carrying capital, and other costs. And it takes more than 2
years to secure.
Each and every year, businesses and local governments spend
more than $1.7 billion trying to secure 404 permits. But as
today's hearing will show, even after a 404 permit applicant
completes this onerous process, the EPA can simply come in and
arbitrarily revoke a permit. This is exactly what they did to
Mingo Logan, a subsidiary of Arch Coal. This company created a
1,600-page permit document for a mine which impacted 8.1 acres
of applicable water. And after all of the work, the EPA
unilaterally and retroactively revoked this permit last year.
In doing so, the EPA acted far outside the authority Congress
has provided to it.
The EPA has also acted outside of congressional authority
by issuing guidance which virtually halts Appalachian coal
mining, short-circuits the official rulemaking process, and
completely undermines the expedient 404 permit process
envisioned by Congress.
The sum of EPA's action in Appalachian coal mines have been
the loss of at least 17,000 coal mining jobs, and more
expensive power for much of the eastern seaboard. However, this
is not the only region to be hurt by EPA's abuse of the Clean
Water Act. In 2008, EPA revoked the 404 permit for the Yazoo
Backwater Area Project. This project was designed to protect
more than 400,000 acres of land and 1,300 homes from flooding
by installing a pumping system to drain the area during
flooding. That project was authorized and appropriated by
Congress, and provided a permit by the U.S. Army Corps of
Engineers. Yet, even after all of this study and approval, EPA
pulled the permit at the last minute. In their official
documents they said they were pulling the permit because the
project would endanger 67,000 acres of wetlands.
This makes absolutely no sense. How can EPA endanger
countless lives, 400,000 acres of land, 1,300 homes, in order
to save 6,000 acres of wetlands? Where is our priorities and
where is our balance? When will EPA see that residents of those
1,300 homes, residents who are currently homeless, due to the
historic flooding experienced in the Mississippi River Valley
are more important than the 6,000 acres of wetlands they claim
that it would protect?
I hope today's hearing sheds some light on these issues,
and helps us get back to the path where we prevent EPA from
utilizing the Clean Water Act to put supposed wetlands
protection ahead of people's lives and their livelihood.
Thank you, Mr. Chairman.
Mr. Gibbs. Representative Altmire, do you have an opening
statement?
Mr. Altmire. Thank you, Mr. Chairman. I would say thank you
to the witnesses for being here for this second hearing on this
topic. I found the first to be very productive.
And I wanted to just shed some light in a bipartisan way on
our support, as a group, this entire committee, of cultivating
our own domestic resources. There is a national security
implication, there is an economic implication, a jobs
implication, and certainly an energy implication to using all
of our resources. And anything that we can do to help lessen
the burden that is in front of you in doing that, we want to
assist with that, and we very much appreciate your being here
today to discuss this issue, because we take it in the national
interest. And certainly being from western Pennsylvania, it is
critical to my region of the country, also. So, thank you, Mr.
Chairman, for holding the hearing. I look forward to hearing
the witnesses.
Mr. Gibbs. Representative Herrera-Beutler, do you have a
comment? OK. No? Lankford, Representative Lankford?
Mr. Lankford. Thank you. And thank you for being here. You
will find a common passion among many of the representatives
for clean water and clean air and an interest in living in a
society that we are very grateful for our own children to grow
up in, and that we want to be good stewards of our environment,
as well. But we also are a Nation that has to have power, and
that continues to fuel our economy and jobs. And we need to be
able to strike a balance.
As you are very aware, EPA's mission began in the Nixon
administration, with the beginning point of those five major
focus areas. But during the Carter administration, there was a
dramatic shift to be able to push more and more of the Federal
Government towards coal. And that became a major focus during
that administration and the days after that. Many of these
power plants responded by continuing to use coal as the piece
of energy that was encouraged by our Federal Government. They
have done a good job, they have been good stewards with those
things. They have made corrections, and they have made changes
along the path.
As a Nation that needs more power, though, we are bumping
up against, I sense, an EPA that is continuing to focus on its
central core mission of land, air, and water, but that is
changing the rules on a lot of people that felt like they were
abiding by the rules. When a permit can change in the middle of
a 10-year process, that makes a big shift for a group of people
that were trying to play by the rules.
When 316(b) rules change, or they are not clear for a coal-
fired power plant, and they are not sure what happens around
the intake valve, there is no clarity and there is no ability
to be able to plan. When the air quality rules change on them,
good players are not able to determine what are the fair rules,
and how do we do this. And when it takes 10 years to do an
environmental study, at some point we have to ask the question:
Is EPA intentionally standing in the way of developing more
power for the United States, and slowing down our economy?
Now, I would hope the answer to that would be no. And I
would anticipate from you it would be. But we are going to have
to look at the facts and the details and say, ``Are these
continual changing rules changing our power capacity and our
jobs in the United States?'' And, if so, we need to be able to
hold those to account, and to be able to hear clearly, ``Where
are we going from here?''
With that, I yield back.
Mr. Gibbs. Thank you. And again, I welcome our witnesses
today. We are going to have two panels. The first panel, we
have: Mr. Michael Carey, president of the Ohio Coal
Association; also, Mr. Steve Roberts, president of the West
Virginia Chamber of Commerce; Dr. David Sunding, University of
California at Berkeley; and Mr. Reed Hopper, principal of the
Pacific Legal Foundation.
And in our second panel will be acting assistant
administrator of the Environmental Protection Agency, Office of
Water, Ms. Nancy Stoner.
Welcome, Mr. Carey. The floor is yours.
TESTIMONY OF MICHAEL CAREY, PRESIDENT, OHIO COAL ASSOCIATION;
STEVE ROBERTS, PRESIDENT, WEST VIRGINIA CHAMBER OF COMMERCE;
DAVID L. SUNDING, UNIVERSITY OF CALIFORNIA, BERKELEY; AND M.
REED HOPPER, PRINCIPAL ATTORNEY, PACIFIC LEGAL FOUNDATION
Mr. Carey. Chairman Gibbs, Ranking Member Bishop,
Congressman Rahall, members of the committee, good morning. I
want to thank you for inviting me to testify at this important
hearing regarding the litany of new regulations being put forth
by the U.S. EPA, and their effects on Appalachian jobs. My name
is Mike Carey; I am president of the Ohio Coal Association. The
Association provides a voice for many thousands of citizens
working in Ohio's coal sector. I also serve on the National
Coal Council, an advisory committee to the Secretary of Energy
on energy resource issues.
Cheap, abundant coal is what powers the manufacturing base
and provides affordable energy for families across the Midwest
and other regions in America. The companies we represent, both
large and small, directly employ over 3,000 individuals in Ohio
alone, and over 30,000 secondary jobs that are dependent upon
our industry.
The Obama administration and its allies have declared war
on coal across Appalachia. We are at ground zero for the
fundamental overreach by this administration's regulatory
agenda. The rural regions of Ohio, Kentucky, West Virginia,
Tennessee, Illinois, Pennsylvania, and Indiana would all be
devastated from losing major employers such as coal companies.
In a rare statement of honesty, which actually bordered on
hubris, last year the Office of Surface Mining stated, in
justification for the Stream Protection Rule, that 7,000 jobs--
7,000 jobs--would be lost in Appalachia. That was OK, because
some jobs would be created out West. Mr. Chairman, that is
simply unacceptable.
In fact, just last week, the Army Corps of Engineers filed
a lawsuit against Buckingham Coal Company related to an
operation in Morgan County, Ohio, which is right in your
congressional district. They are attempting to prevent access
for mining coal reserves already permitted under our State
regulatory authority. Doing so ignores the intent of this
committee and Congress when it wrote the Clean Water Act and
SMCRA, where permitting jurisdiction was to be vested to the
States.
As you can clearly see, this administration is picking
winners and losers by regulatory proclamation. The policies of
the current administration will force fuel-switching and shifts
in regional coal from eastern to western reserves, which would
lead to an increase in utility costs.
Some people may think that I am exaggerating, but one need
only look at the host of new regulatory proposals that are
aimed at the Appalachian coal industry that are not only just
coming from the EPA, but they are coming from the Department of
Interior, MSHA, and, as I mentioned before, the Army Corps of
Engineers, a partial list of which has been provided in my
written testimony.
Mr. Chairman, we need to do four things to stop this abuse
on Appalachian coal jobs. First, we need to declare a
regulatory time-out. We are still recovering from a recession.
And this administration seems to forget that, compared to 30
years ago, our air is cleaner, our mines are safer, and of
course, our water resources are better protected.
Number two, we need to reassert the primary role of the
States in permitting decisions. We need legislation clarifying
that our States continue to have primacy in interpreting the
relevant portions of the Clean Water Act.
Three, end the abusive use of regulatory guidance
documents. If it is important enough to be issued as a guidance
document, then it is important enough to go through the normal
public notice and comment period.
Number four, provide certainty in permitting decisions.
Unfortunately, we need Congress to tell the administration to
live up to its permitting promise. We also need the permits to
be processed in a timely manner.
The thousands of workers that are affected in Appalachia
deserve the right to earn a livelihood without being subjected
to the whims of bureaucracy. And, unfortunately, the
administration is pushing bureaucracy to advance the most
extreme anti-coal agenda that our Nation has ever seen.
And how do we know this? They simply are following through
on their campaign plan. Also, as Commissioner of the New Jersey
Department of Environmental Protection, current EPA
administrator, Lisa Jackson, issued the New Jersey global
warming plan, which called for a moratorium on all coal-fired
power plants. Now, she may not be calling for a moratorium
today at the EPA, but her regulatory policies are certainly
creating them.
Again, Mr. Chairman, this committee could declare a
regulatory time-out, reassert State primacy in permitting
decisions, end the abuse of the regulatory guidance documents,
and provide certainty in permitting decisions.
Mr. Chairman, I appreciate the opportunity to testify, and
I look forward to your questions.
Mr. Gibbs. Thank you.
And our next panelist is Mr. Steve Roberts, president of
the West Virginia Chamber of Commerce.
Welcome.
Mr. Roberts. Thank you. Thank you very much for having me.
Ladies and gentlemen, honorable chairman, and members of the
committee, thank you very much for your interest and concern
about the impact of actions of the U.S. EPA on mining
production, energy needs, employment, and quality of life in
mining communities throughout West Virginia and the Nation. I
particularly want to acknowledge and express appreciation to
Chairman Gibbs, to the Honorable Nick Rahall, and Shelley Moore
Capito, who I am proud to know, and by whom I and my family
members living in both Huntington and Charleston, West
Virginia, are so proud to be represented. I am Steve Roberts, I
am the president of the West Virginia Chamber.
West Virginia is a beautiful State, populated by decent,
hardworking, caring people. We are proud of our over-20
colleges and universities, our well-developed transportation
network, our breathtaking peaks and valleys, and our industrial
base that supplies the much-needed coal, gas, timber, and
electricity that have helped build our great Nation.
West Virginia proudly boasts the Nation's lowest crime
rate, the highest level of home ownership, and the first public
schools found in the post-Civil War South. The West Virginia
mountains have given our Nation many famous Americans. Coal and
energy production have long been key components of our State's
being. And because of that, we are especially afraid of the
assault referred to in this hearing's title.
Outside of Wyoming, we produce the most coal in the United
States. Because of the sensitive nature of our economy, these
jobs are more than important. Without them, tens of thousands
of families, and a historic American mountaineer culture, would
cease to exist here.
The best jobs in our State's neediest areas are nearly
always mining jobs. Per capita income in southern West Virginia
is about half the national figure. Yet the average coal job
pays more than four times that amount. A mining income can
stabilize an extended family, providing support for the
elderly, a future for children, and a livelihood for many
relatives of the wage earner. Killing off such work will do the
opposite. Tens of thousands of families will be thrown into
crisis.
If surface mining ended in West Virginia, coal production
would be cut by 40 percent. There are 537 mines in West
Virginia, and 232 of those are surface mines. If permitted,
more could exist.
As the country's second-largest coal mining State, limiting
40 percent of our production would be destructive to our
country, broadly, at a time when our country needs energy.
Locally, 6,255 surface miners would be jobless. Many workers at
coal handling facilities would be let go, and secondary
industries would experience cuts, as well. For these reasons,
the environmental impact of surface mining can never be
considered in isolation from the real experience of real people
who live in this environment.
Before I delve further into statistics, let me quote one of
these people. Ellen Taylor is the president of the Beckley-
Raleigh County Chamber of Commerce. Her area is particularly
rich in coal and coal mining history. She knows mining
communities. She says, in reference to 404 mining permits, that
``Canceling permits will have a disastrous affect on the people
here. Not only mining families, but local businesses will be
widely affected.''
To use one of many examples, buying groceries could become
a real problem if they were to lose their jobs. Stores would
close. Refusing to issue permits would have a terribly harsh
trickle-down effect on the economy. Many, many families depend
on that paycheck from mining companies, Ms. Taylor says.
This is because those companies treat their employees well.
In the mining industry, wages have increased 3.9 percent
yearly, on average, through 2008. Mining companies freely
maximize their employment. They do not risk pressuring
employees by under-hiring. As of 2008, the coal industry in
West Virginia employs over 20,000 people, more than any other
State. These workers were paid $1.5 billion with total
compensation of $2.8 billion. And these statistics and those to
follow come from recent studies by West Virginia's two largest
universities.
I have just listed some of the direct benefits of coal. The
indirect benefits are also vast. In 2008, coal companies paid
over almost $700 million in taxes, amounting to a substantial
portion of all State revenue. It is the Chamber's assessment
that this contribution will shrink to the point of State crisis
if 404 mining permits are denied. The loss of property taxes
alone would be fatal to local governments, the above-referenced
study found.
Thank you for the opportunity to testify, Mr. Chairman. We
believe the denial and revocation of 404 permits has already
threatened our economy and workforce. There could be much more
damage still. For this reason, I appreciate your attention to
our struggle, as we try to retain jobs in this most traditional
of Appalachian industries. Thank you very much.
Mr. Gibbs. Thank you.
Our next panelist is Dr. David Sunding, University of
California at Berkeley.
Welcome.
Mr. Sunding. Thank you. Chairman Gibbs, members of the
subcommittee, it is an honor to speak here today.
This committee is considering an issue of regulatory policy
that has significant implications for the vast range of public
and private projects that must receive permits under section
404 of the Clean Water Act. The willingness of the EPA to
revoke a valid discharge permit approved after a decade-long
review process including in-depth environmental impact
assessment and public comment, as well as the direct
involvement by the EPA and the permitting process, can have
far-reaching economic incentive effects.
The EPA's action may bring into question any future
investment, hiring, or development decisions in projects that
rely on an approved section 404 permit. These activities are
vital to the American economy, and include pipelines and
electric transmission, housing and commercial development,
renewable energy projects like wind, solar, and biomass,
transportation infrastructure, including roads and rail,
agriculture, and many others.
The Army Corps of Engineers estimates that over $220
billion of investment each year is conditioned on the issuance
of 404 permits. EPA's precedential decision to override the
judgement of the Corps of Engineers in this case alters the
incentive to invest in projects requiring a permit under
section 404.
Project development often requires significant capital
expenditure over a sustained period of time, after which the
project generates some return. Actions that undermine the
certainty of the 404 permit raise the threshold for any private
or public entity to undertake the required early-stage
investment. In this way, the EPA's action may chill investment
in activities requiring 404 authorization.
Increasing the level of uncertainty can also reduce
investment by making it more difficult to obtain project
financing. Land development activities, infrastructure
projects, and the like, often require a significant level of
capital formation. Reducing the reliability of the section 404
permit will make it harder for project proponents to find
financing at attractive rates, as lenders and bond holders will
require higher interest rates to compensate for increased risk.
And some credit rationing may also result.
It is worth remembering that public and private activities
requiring section 404 authorization generate significant and
direct benefits to affiliated industries, thus reduced levels
of project investment translate directly into lost jobs and
lost economic activity. You have just heard testimony about the
indirect impacts of mining on the economies of the Appalachian
States.
Similar indirect benefits are evident for housing and
commercial development, road-building, and other activities. In
the case of housing construction, for example, which, over the
long run, accounts for as much as 15 percent of all economic
activity in the United States, every $1 spent on housing
construction produces roughly $2 in total economic activity.
And every $1 billion in residential construction generates
nearly 12,000 new jobs. Regulation that creates a disincentive
for investment in projects requiring 404 authorization places
these indirect economic benefits at risk.
A reduced level of investment in projects requiring a
section 404 permit would have effects that go far beyond the
industry participants themselves. Private projects authorized
under section 404 increase the supply of housing, commercial
development, and the like. When development projects are not
undertaken, these consumer benefits are reduced or lost all
together.
Public sector activities, like road building and repair and
utility infrastructure also contribute in fundamental ways to
the quality of life throughout the Nation, as evidenced by the
frequently large benefit cost ratios associated with
transportation infrastructure projects. Similarly, other types
of public land development, such as libraries, schools, and
emergency response infrastructure generate significant levels
of economic welfare, some part of which would be at risk, as a
result of the EPA's actions.
Finally, it should be remembered that land owners could
suffer losses and wealth as a result of the EPA's action. In a
competitive land market, prices reflect the discounted value of
the returns earned from dedicating land to its highest and best
use. For undeveloped land, this sum is typically equal to the
value of rents when the land is in an undeveloped condition,
plus the amount that developers are willing to pay for land
when they ultimately initiate their project. Regulation that
lowers the profits from development will be capitalized into
current land values, meaning that the equilibrium market price
of land will be lower, as a result.
I am currently working on a study of these various
disincentive effects and economic impacts of the EPA's actions
with respect to the Spruce Mine matter, and hope to have
results on their importance within the next few weeks. I will
make the results of the study available to the committee, and
look forward to discussing them with you and your staff. Thank
you.
Mr. Gibbs. Thank you.
Our final panelist on this panel is Mr. Reed Hopper, from
the Pacific Legal Foundation.
Welcome.
Mr. Hopper. Thank you. Mr. Chairman, members of the
committee, as an attorney with the Pacific Legal Foundation, a
non-profit public interest organization dedicated to the
protection of individual rights and private property rights, I
wish to thank you for this opportunity to testify.
The handling of the Mingo Logan permit is instructive in a
number of ways, in that it raises a number of red flags that
indicate when an agency is pursuing a political agenda, as
opposed to pursuing its statutory mandate.
The first red flag is when the agency response is
disproportionate to the payoff. The final notice of the permit
revocation indicates, for example, that the Mingo Logan Mine is
one of the largest mining projects of its type, and therefore,
is unprecedented. However, it fails to mention that the
evaluation of this particular project was also unprecedented.
This was the first time that a full EIS has been completed
for such a project. As has already been indicated, 10 years in
review, 1,600 pages in length, 58 pages responding to comments
of the EPA. More importantly, the two agencies that issued
permits for the project, the State department of environmental
protection and the Corps of Engineers, opposed this revocation,
and indicated that the mine has been in full compliance with
the permit, that these agencies continue to monitor compliance
regularly, and that they have the wherewithal to address any
unforseen impacts. The notion that the EPA suddenly needed to
intervene to protect us against some sort of a significant
disastrous ecological impact simply is not credible.
The second red flag is when the agency abruptly changes its
policy or practice. This typically results when an agency is
pushing the envelop on its statutory or regulatory authority.
In this case, the Agency has, for the first time in its
history, used the 404(c) veto power retroactively to suspend a
permit that has been ongoing and has been held in compliance
for over 3 years.
In most cases, the courts would require the agency to
justify this type of change in policy or practice, which brings
me to the third red flag, and that is when the agency policy or
practice is changed by means of ``guidance,'' as opposed to the
formal APA rulemaking procedure. Using internal guidance as a
means to substantively change the law is a recurring practice
with the EPA. We saw this with the SWANCC guidance after the
2001 Supreme Court decision, after the Rapanos decision in
2006, and now, with this mining policy. The sole purpose
appears to be to insulate the Agency from having its broad
interpretation of the law subject to any sort of direct legal
challenge. The guidance forces a case-by-case challenge, which
means that, overall, there can never be any real change in
Agency practice, even if a court finds that the application of
its policy is illegal in a particular circumstance.
Another red flag is when the agency changes its policy or
practice, and creates greater uncertainty, instead of more
uniformity. The proper purpose, I think, of agency rules or
guidance should be to ensure objective and uniform
administration of the law. But the new mining policy does just
the opposite: it demonstrates that the Agency can change
procedures and standards at will; and, with respect to 404(c),
that it can revoke a permit whenever it deems appropriate. This
is the very definition of arbitrary Government.
Finally, I think that another red flag is when the agency
shows little or no regard for the impact its change in policy
or practice will have on affected parties. The new mining
policy truly is an assault on jobs, individual rights, property
rights, and the economy.
Until now, 404 permits could be modified or revoked only
with a consideration of the effect on the investment and the
reliance that the permit-holder had in properly complying with
the permit. But EPA has thrown that out the window.
Instead of viewing land owners and permit-holders as allies
to be helped, the EPA views land owners and permit holders as
enemies to be thwarted. I believe this needs to change.
Mr. Gibbs. Thank you. We will begin our first round of
questions. Mr. Carey, you are a member of the National Coal
Council advisory board of the Department of Energy. How many
meetings does the Council have with the Secretary of Energy,
the administrator of the EPA, and how would you describe those
meetings?
Mr. Carey. Mr. Chairman, I would be unprepared to give you
that, but I would be happy to find out exactly how many
meetings took place, and provide that to the committee.
I would not be able to answer that question, because I
don't know exactly----
Mr. Gibbs. Yes. The second part of the question is how
would you describe the tone of the meetings?
Mr. Carey. Well, again, I wasn't in the meetings, so it
would be hard for me to actually answer that question, Mr.
Chairman.
Mr. Gibbs. OK. Let's go on to Mr. Hopper. Since a section
404 permit has never been revoked prior to the Arch Coal
permit. What types of compensation would you suggest would be,
you know, warranted?
Mr. Hopper. Well, that has to be determined on a case-by-
case basis by the court. But it is clear that the coal company
has spent millions of dollars in reliance on this permit. The
courts typically look at the reasonableness of that reliance,
the extent of the reliance, and issue a mandate as to how much
that compensation should be.
As you know, the mine has sued the Agency, arguing that the
retroactive application of this 404(c) veto power is illegal,
and they have itemized in those pleadings the extent of their
reliance.
Mr. Gibbs. OK, thank you. Mr. Roberts, in your testimony,
you talked about how important the jobs are to West Virginia,
and of course, the whole Appalachian region. With these new
policies coming from this administration in regards to the
mining policies, what--have you seen anything the
administration has done to help bring new jobs to your State?
Mr. Roberts. We are very concerned about the actions that
have an impact on mining jobs, because those are the jobs that
really pay the kinds of benefits that can support families. We
have not seen any sort of commensurate effort, in terms of
bringing new jobs into the area where mining occurs, and
particularly into southern West Virginia, where this method of
mining is most prevalent.
Mr. Gibbs. OK. Dr. Sunding, I am really concerned about the
EPA's policy on the conductivity tests for water quality. It is
my understanding that the science advisory board really
convened after that decision was made by the EPA. Do you think
that is--that they kind of went backwards, that they should
have developed the science first before they put out the
guidance--guidelines?
Mr. Sunding. Well, I am an economist, so that is somewhat
outside my area of expertise. Maybe there are others here on
the panel that can----
Mr. Gibbs. OK, we can open it up to the rest of the
panelists.
Mr. Sunding [continuing]. That could address that. Sure.
Mr. Gibbs. Anybody else want to comment on that? Mr. Carey?
Mr. Carey. Mr. Chairman, I will comment. I think it would
be nice to actually--to have the development of the policies
before you actually make the outcome. So I would agree with
that, Mr. Chairman.
Mr. Gibbs. Also for the panelists, the expanded
coordination. Want to comment a little bit about that?
When I read through your testimony, it kind of looks like
that's a procedure they kind of put in place to, at least at
the very minimum, delay permitting action by 60 days, and
really go on forever. Because, the way I read the law, there is
no provision to do that in expanded coordination that is in
law. How do you see the impact of what's happened on that, and
what is your feelings about--with regard to the law?
Mr. Carey. Mr. Chairman, I would be happy to answer that
question. I think, if you looked at just Ohio, you had a
company from Ohio that talked about having permits that were
caught in that tidal wave, where they were in no-man's land,
nobody knew where they were.
But I think if you look to our neighbor just to the south
of us, in West Virginia, they clearly had over 154 permits that
were tied up in that. And that truly devastated them, because
how do you make investments in moving forward with mining
operations and meeting market demands? So, clearly, it hasn't
worked.
Mr. Gibbs. OK. At this time I will yield to Mr. Rahall. Do
you have questions for the panelists?
Mr. Rahall. Did you want to go first? Go ahead.
Mr. Gibbs. Whoever wants to go first.
Mr. Rahall. Yes, let----
Mr. Gibbs. OK. Mr. Bishop?
Mr. Rahall. Thank you, Mr. Chairman, I appreciate it.
Mr. Bishop. Thank you, Mr. Chairman. And, Mr. Rahall, thank
you.
I always find it helpful--and we all have the same set of
facts--both Mr. Carey and Mr. Roberts, I think it's fair to
characterize or summarize your testimony that--and I believe,
Mr. Carey, you may have even used this phrase, that the current
administration is--has declared a war on coal. Is that pretty
much what you said? I don't want to put words in your mouth.
Mr. Carey. That is true.
Mr. Bishop. OK. Here is my understanding of the permitting
numbers since the Obama administration took office, that they
inherited 140 pending permits. Of that number--for surface
mining--52 have been approved. Of the 88 that have not been
approved, none have been denied. Some are still pending. And
some were withdrawn. Do you feel that those, that set of
numbers, you still keep to your characterization?
Mr. Carey. Mr. Chairman, Ranking Member Bishop, I would say
not just only in the numbers of permits, but I think, if you
look at my written testimony, I describe a series of attacks on
the coal industry, not just from the EPA perspective, but also
if you look at MSHA, if you look at the Office of Surface
Mining. If you look at the myriad of issues that are now facing
the coal industry, there is no doubt in my mind, Mr. Chairman,
Ranking Member Bishop, that the coal industry is under assault.
And as far as the numbers of permits, where the permitting
numbers are concerned, I think you have to look back at
certainly there were 140 permits, but then, when you throw all
those permits back into some coordinated policy that delays the
time period, I think that is an issue.
Mr. Bishop. But to be clear, the current administration
inherited 140 pending permits. So, if they were thrown back, as
you just said, into some other process, that was a process that
perhaps took place prior to the advent of this administration?
Mr. Carey. Mr. Chairman, again, I would have to look at the
exact permits to which you were referring in order to be able
to answer that question. But I would be happy to provide those
answers to you.
Mr. Bishop. Mr. Roberts?
Mr. Roberts. Sir, I--the information that I had provided to
me indicates that there is a backlog of 239 permit
applications, and that 190 of those had already been considered
complete by the U.S. Corps of Engineers. So, one of the
challenges for us is to deal with the sort of going back and
re-looking at permits that have also received the blessing of
the appropriate regulatory authorities in the States and within
the U.S. Corps of Engineers.
Mr. Bishop. But the fact that remains is that, of the
applications that have been acted on by the current
administration, with the exception of the Spruce Mine, 100
percent of the decisions rendered have been favorable decisions
allowing that mining to go forward.
Mr. Roberts. I wouldn't have--that is just not information
I have. The information I have is related to the 235----
Mr. Bishop. It is information that we have. So----
Mr. Roberts. Thank you.
Mr. Bishop [continuing]. Thank you. Let me just go to the
issue of jobs. And, again, something all of us need to be--have
a heightened concern about, no matter where we live, what we
represent.
My understanding is that--and this is data that comes from
MSHA--is that over the recent past, mining employment has
dropped from about 60,000 jobs to about 30,000 jobs. Does that
comport pretty much with--Mr. Carey, Mr. Roberts, or Mr.
Sunding, does that comport--Dr. Sunding, I'm sorry, does that
comport pretty much with your information?
Mr. Carey. Mr. Chairman, Mr. Bishop, I would say that I can
tell you about the 3,000 direct employees that are employed in
Ohio's coal mining industry--and I believe that there are
17,000 that are in our sister State of West Virginia, and
somewhere in the middle in Pennsylvania. So it would be hard
for me to quantify that exact----
Mr. Bishop. My understanding, again, from MSHA, is that we
have gone from about 60,000 employees in the mining industry to
about 30,000, and that all of that job loss took place prior to
the Obama administration, and that the vast majority of that
job loss is related to a move away from underground mining and
more so towards surface mining, because it is considered to be
less expensive and safer. Does that comport with your
information?
Mr. Carey. Mr. Chairman, Mr. Bishop, I would say that is
absolutely not true.
Mr. Bishop. So what is the loss? If the loss took place
prior to the advent of the Obama administration, and it is not
related to the move to surface mining, then what is it related
to?
Mr. Carey. Mr. Chairman and Mr. Bishop, I would say that if
you're--what time period are you referring to, that there is a
loss of 30,000 coal jobs? I would argue very clearly that there
is probably a difference in the amount of wagon wheel makers
from 1890 to 1940.
Mr. Bishop. Trust me, I am not trying to be that specious,
OK? We are--this is recent data from MSHA. And I do think wagon
wheel production has gone down. I'm not sure of that, but I
think it has.
[Laughter.]
Mr. Carey. Mr. Chairman and Mr. Bishop, as has the pick
axe.
But I will tell you that I would again have to see the
numbers for which you are referring. Because, certainly, as
mining practices have improved, just the amount of tonnage that
you can get out of an underground coal mine now by man-hour is
completely different than it was 20, 30, 40 years ago. But as
far as the move to western coal, again, I would--it would be
hard to quantify that.
Mr. Bishop. But--I'm sorry, my time has expired. Thank you,
Mr. Chairman.
Mr. Gibbs. We will have another round.
Mr. Bishop. Thank you for indulging.
Mr. Gibbs. I would just like to interject, just to clarify
a question. Mr. Bishop talked about the number of permits. When
I have looked at this, it looks like to me that just close to
250 permits that are under the enhanced coordination process.
And in my understanding, that's kind of fallen into a black
hole, where nobody knows what is happening. And then some of
those permits, I think, have been withdrawn, because they have
given up. Is this accurate, this statement? Anybody want to
answer that?
Mr. Carey. Mr. Chairman, I would agree with that,
completely.
Mr. Gibbs. So enhanced coordination is really the issue
here on the permitting part?
Mr. Carey. Mr. Chairman, members of the committee, I think
it's a myriad of things. But I think certainly that is one
issue.
Mr. Gibbs. OK. At this time we will move on to
Representative Cravaack. Do you have questions?
Mr. Cravaack. Thank you, Mr. Chairman. Thank you,
panelists, as well.
Dr. Sunding, what are the added costs, in your opinion,
related to the permitting and any uncertainty of the whole EPA
process here? Could you comment on that?
Mr. Sunding. Sure. I mentioned a few types of direct and
indirect effects in my testimony. Two that I would point out,
just as a matter of economic theory, almost.
The issue of delay, which is related to uncertainty, we
were discussing it a few minutes ago. In the context of most
land development activities, delay is tremendously significant.
And it is often sort of a hidden cost of regulation. The fact
that the permitting process under 404 has no certain end to it
can be very significant when developers, lenders, other
entities are considering whether or not to enter into an
activity in the first place. So I would point out, first,
delay.
Second, I did speak directly to the issue of uncertainty.
The way most development, private and public, works is a
significant amount of money is put up first, in terms of, you
know, investment in the permitting process, and required
capital expenditures. And then the returns come later. What
this process does, what the EPA's action does, is put more
uncertainty onto that stream of returns, which makes it much
less likely that the investment will pass the required
threshold in the first place. So that is probably the most
important incentive effect that I would point out.
Mr. Cravaack. Related to that, can you tell me--I don't
know if you have these kind of figures--what kind of job loss
are we talking about during a time period like that, or lack of
job creation? Would you have numbers on that?
Mr. Sunding. Right. I think we have better information on--
sort of at the project level, you know. For a typical land
development project, a housing project, typical mining project,
we know.
To figure out the expected economic cost of what the EPA
has done in this case, it's important to have a lot of other
information about the whole range of economic activities that
get permitted under 404. I think we're not quite there yet, I'm
just not able to give you, you know, a number for, ``Here is
the cost on the economy.''
But what I can do is point out--pretty effectively, I
think--some of the fundamental economic incentive effects of
eliminating the certainty of the 404 permit, and then talking
on a project-by-project or activity-by-activity basis, what the
impacts might be. And they are potentially very significant.
Mr. Cravaack. OK. Thank you very much, sir. Appreciate it.
Mr. Carey, I'm assuming you're a Buckeye?
Mr. Carey. Mr. Chairman--Congressman, that is for sure,
yes.
Mr. Cravaack. I'm a fellow Buckeye too, so I was kind of--I
was born in Charleston, grew up in Ohio, so there you go.
I just have one quick question for you. We have open pit
mining in Minnesota, in the Iron Range. We mine taconite. And
this concerns me greatly, what you guys have happening in the
Appalachian mines, as well.
How important in your industry--and one of the problems
that we're having is we're trying to actually get an open pit
precious metal mine. We're talking 7 years, I think over $27
million in--just in studies and EPA studies. And one of the
things I keep on hearing more and more is that the EPA keeps on
moving the bar, which moves the timeline, almost to see who is
the last man standing at the end of this game. That is the
impression that I am getting. We are trying to open up a
taconite mine that--it's an old mine. It's going to do the same
thing it did before, but more efficiently, and more
environmentally friendly, and we are still having those--these
type of problems.
How important is--in the industry--would you say is a
pretty solid timeline to the coal industry?
Mr. Carey. Mr. Chairman, Congressman, I--clearly, any time
that you are investing millions and millions of dollars into a
project, you want to have a rate of return. And if you simply
can't get the permit, you can't get your product to market, you
are not going to make that investment. And that investment,
those investment dollars, will go offshore. We need the
material.
Mr. Cravaack. I couldn't agree with you more. And I just
hope to keep our mines open in Minnesota, as well, because it
is essential to not only the Iron Range, but it is also
essential to Minnesota. And I thank you for all the efforts
that you are going through right now.
So, Mr. Chairman, with that I have got about 18 seconds, so
I will just go ahead and yield back my time. Thank you.
Mr. Gibbs. Mr. Rahall?
Mr. Rahall. Thank you, Mr. Chairman. I appreciate all the
panel's testimony this morning. And in particular, thank you,
Mr. Roberts, for giving the committee some insight into the
history and the heritage of West Virginia, and our relationship
to coal mining, and what it means for job creation, what it
means for, literally, keeping the lights on and employing a lot
of law enforcement officials in our southern counties who
otherwise would not have the budget from coal severance taxes
to do such. And it is a story that is not well known in many
parts of this Nation, yet it is a story that has contributed so
much to the energy security of this Nation.
Now, we all want to see our economy diversified, and we
want to see other job creation, which the Chamber of Commerce
is certainly in the lead in developing. And I am sure you
recognize, as much as the next person, how we have struggled
over decades in West Virginia to strike this proper balance
between job creation, diversifying our economy, and
environmental preservation. And it can be done.
You know the importance of tourism to our State of West
Virginia, for example, and how those figures keep on the
upswing. So we can do it. We can preserve our beauty, we can
create jobs in tourism at the same time that we provide jobs in
coal mining.
I wanted to comment--that's just a comment, not a question.
I wanted to comment on what my dear friend, Mr. Bishop, brought
up in regard to the pending permits, 140 pending--I believe he
was quoting, obviously, EPA statistics--and 52 approved. And of
the 88 not approved, none were denied, I believe, is an
accurate description.
I would say of those 52 that were approved, it was one heck
of a process to get those 52 approvals. I mean it was--to say
put the industry through the ringer would be an understatement.
And a lot of concessions were made along the way by industry--
by all groups, both sides. As we know, it is part of the
approval process.
And some of those that were approved were characterized by
many as a dare-to-mine permit, if you will. In other words,
conditions were placed upon that approval such that one
misstep, however slight, could cause a revocation of that
permit approval. And now we have seen, since the Spruce
revocation, that there is even the further danger that these
approvals don't really mean much if the Agency can come back
later and revoke a permit that has been granted.
In addition, there is court cases. Court cases have
contributed a great deal to this backlog, more so than what any
administration has done. So, it is one hell of a process. And I
am not saying that is bad, because there are obviously--there
is obviously a negotiating process that has to occur here.
But I guess I would ask you, you know, it does have an
effect upon business' ability to make a decision for job
creation, because they need a certainty. And is it your
understanding that many of these permit applications have been
withdrawn because the industry simply has gotten so frustrated,
has been unable to make those decisions to keep people working,
and are not sure of the rules of the game because they keep
shifting, and in other cases cannot even find out what they
have to do? So it is a whole maze of uncertainty here. Did you
wish to comment on that?
Mr. Roberts. I would comment briefly, sir, that employers
very much need stability and predictability, and that without
stability and predictability the level of risk goes up
enormously.
And then the cost benefit ratio begins to turn into, ``Well
maybe it is safer to not then,'' too, and that is where,
really, the risk of--managing the risk comes into play. It is
predictability and stability that the companies are saying they
need as much--it is not their inability to play within the
rules, it is the ability to know what the rules are, and for
those rules to be stable and predictable.
Mr. Rahall. Thank you. Thank you, Mr. Chairman.
Mr. Gibbs. Before I go to the next--our next question, I
just want to interject a question here to the panel. My
understanding of enhanced coordination and dealing with the
criteria integrated resource assessment, MCIR, it is unique to
the Appalachian region. And it is also my understanding that
there is close to about 250 of those permits under enhanced
coordination. And I think only two have been approved.
Now, when you talk about permits being approved, is that a
national figure, what is happening in Appalachia is because of
enhanced coordination that we are not getting those approved?
Is--would you have any insight on that, Mr. Carey, or anybody?
Mr. Carey. Mr. Chairman, I would go back to what Mr. Rahall
said, with describing a lot of those permits that were in the
process of--they had already been in the process, and some
things--the things that were given by those permits to move
forward was almost a dare-to-mine type of scenario. So I would
clearly--and your numbers may be more correct.
But I would also say the concern that we have, as producers
of a commodity, is for our customers. Our customers have to
have reliability that we will be able to get our product to
market. And if we in Ohio and West Virginia, Kentucky,
Pennsylvania cannot meet that market demand for coal, that coal
will come from someplace else. We need to have consistency and
permitting. We need to have a reasonable time schedule so we
can get our product to market.
Mr. Gibbs. But it is clear to understand that there is,
from this administration, the Appalachian region has been
targeted, compared to the rest of the country. Is that true?
Mr. Carey. Mr. Chairman, I would clearly say that, and I
believe I did say that in my testimony.
Mr. Gibbs. OK, thank you. Mr. Landry, do you have
questions?
Mr. Landry. Thank you, Mr. Chairman. Mr. Carey, you don't
believe that the Federal agencies in this country create
uncertainty in industries, do you?
Actually, my questions are for Mr. Hopper. You served as
counsel for the board of the Mississippi Levee Commission, is
that not correct?
Mr. Hopper. Yes, our foundation does.
Mr. Landry. Are you--were you involved, or do you know the
particulars of the vetoing of the Yazoo Backwater Area Project
permit?
Mr. Hopper. I know some of them, yes.
Mr. Landry. And I am sure you understand the impact that
the current flood waters are having on the Yazoo River basin.
If those levies fail, is--I guess could--if EPA would not
have vetoed that permit, and that project would have been
allowed to proceed, would it--would the levee system be in a
better position to handle the flood waters currently than they
are now?
Mr. Hopper. Certainly for that area, there is no question
about it.
Mr. Landry. So, just to make sure I understand, so EPA's
vetoing of that permit could be endangering over 1,000 homes
and hundreds of thousands of acres right now.
Mr. Hopper. That is correct.
Mr. Landry. All right. So, it would be logic to say that if
EPA would have been around in 1927, and would have been vetoing
404 permits, could we have built the Mississippi River and
tributaries levees that are protecting, you know, not only
Mississippi, but Louisiana, Arkansas, as well?
Mr. Hopper. Well, I don't know how to answer that. But I
think, clearly, it is contrary to the public interest to stand
in the way of these flood protection programs. The EPA needs to
facilitate these things, and not hinder them.
As you say, this backwater area is flooded regularly. We
now have serious flooding because of the rising Mississippi
currently that has resulted in harm to individuals, private
property, and to the ecosystem itself.
The EIS, the new EIS that the Corps did, indicated that
there would be a net improvement of wetland resources. The veto
is based on a technicality that shouldn't come into play.
Mr. Landry. I just wonder whether or not, you know, the--
this 404 permit, had it been around, you know, between 1927
and, I guess, you know, into the 1960s, if the Corps would have
been able to even build the system that is currently protecting
hundreds of thousands of Americans right now in that
Mississippi River basin, in addition to the property that it is
currently protecting.
We certainly noted there are weaknesses in the system right
now. I pray that the Corps is able to, you know, rectify those
weaknesses in the levee system. But I think it is important for
people to understand that if EPA would have been around back
then, we might not have those levees.
One last question. In reading your statement I found it
interesting that you believe that--do you believe--see if I can
make this brief--do you believe that EPA's retroactive vetoing
of a 404 permit to be a Government taking?
Mr. Hopper. Yes. I think that the argument could be made
that it is a Government taking. The courts have recognized that
when one relies to one's detriment reasonably on a valid
permit, that one establishes a vested right, which is a
property interest, and it cannot be taken away without regard
for an opportunity to recoup the investment. I think that is
black letter law.
But, that is just one means by which these new mining
policies can result in a taking of private property. There are
other means, as well.
Mr. Landry. Thank you, Mr. Chairman. I yield back.
Mr. Gibbs. Representative Lankford, do you have questions?
Mr. Lankford. Thank you, Mr. Chairman. Mr. Carey, you
mentioned four things that we can do to try to find some
balance here: regulatory time-out; the State, making them the
primary permitting authority; ending the guidance document
without any kind of public comment; and then also certainty in
permits. Let me just specify one of those.
Let's talk a little bit more about the State being primary
in the permitting process. Do you know of a State out there
that you would look at, Mr. Carey, and say, ``This State is
really not competent to handle the energy sources,'' whether
they be coal, oil, natural gas--whatever the energy--wind, that
that State, in particular, does not have competent leadership?
Mr. Carey. Mr. Chairman, Congressmen, there are actually a
couple of States that are currently--the Federal Government
currently does the permitting and the inspecting. I believe
Tennessee is one of those States, and I could be mistaken, but
I believe the Missouri. But I could provide those numbers to
you.
So I think there are certain models that, clearly, the
Federal Government has taken over the State programs when they
have proved to be inefficient or unable to actually meet the
challenge under the Federal law of SMCRA.
Mr. Lankford. OK. A Federal structured program for, let's
say, coal mining. Mining of coal, is it the same in West
Virginia and Ohio and Wyoming, Oklahoma? They're all pretty
much the same, each one is the same, acts the same, has the
same kind of regulations and permits, or are they uniquely
different, State to State?
Mr. Carey. Mr. Chairman, Congressman, no. Each State is
different. Each State has different topography. Each State has
different coal seams that are mined in different manners. So
each State is different.
Mr. Lankford. So, have you seen EPA regulations show that
kind of flexibility, that they are different in Ohio than they
are in West Virginia or Kentucky or Wyoming, or are they pretty
much trying to regulate with the same instrument in every
single State?
Mr. Carey. Mr. Chairman, Congressman, they are trying to
regulate the same in all States, and break it up by regions.
And that simply does not work.
Mr. Lankford. OK. Dr. Sunding, let's talk about some
economic models here. Investment slows down when you don't have
certainty in the permitting process. If you are trying to get
investment into any type of energy, then obviously that slows
down when no one has any idea what is going to be permitted.
What we have--seem to have at this point is an
administration that, at their whims, is going to try to pick
and choose winners and losers. When a plant started the
permitting process 10 years ago, now with a change of
administration, you lose favor and now you have millions of
dollars on the line.
Based on that, what type--and knowing the topography--who
knows what is going to happen in the Presidential election next
time. Based on--if this model continues, where it is not based
on science, it is based on the politics of what is the
preferences of an executive when an energy company has to plan
10 years in advance, what type of energy would you recommend
for any power company out there and say, ``This would be a good
investment model, I would look at this?''
Mr. Sunding. Right. Well, I think you are right to focus on
the incentive effects, and I will say a few remarks about
energy, but then I want to return to a broader focus, not to
minimize the importance of energy at all, but the 404 program
touches virtually every part of the economy.
Mr. Lankford. Right.
Mr. Sunding. And I do want to return to that a little bit.
You are quite correct to point out that the EPA's decision
in this case is precedential, and can have impacts that last
far into the future, way beyond the case with just Arch Coal. I
think it is fair to say that it would have a chilling effect on
any potential investment that requires a 404 permit, whether it
is energy or otherwise. So I think your point there is very
well taken.
With respect to other kinds of activities, let me come back
again to something I talked about in my testimony, residential
construction and transportation. By many measures, economists
would say those are the most important sectors of the economy,
in the sense that the average household in this country spends
over half of their disposable income on housing and
transportation, transportation being linked to energy, of
course.
But this is a tremendously important economic decision. And
housing permits, or housing projects, most of the large
projects that I know or have studied, require 404
authorization. So this could not be more important for the
housing sector. And----
Mr. Lankford. So, basically, you are saying this removes
certainty from all of the most critical parts of our economy.
Mr. Sunding. Yes.
Mr. Lankford. That if we don't have certainty in permitting
in this, we are in trouble economically, because no one can
plan, no one knows how to invest, and it is at the whims of
whatever the policies are at the moment, rather than based on
long-term science and planning and certainty.
Mr. Sunding. Right. The ability to revoke a permit like 404
can have very important incentive effects on investment across
the entire economy.
Mr. Lankford. OK. Let me just ask an opinion question of
Mr. Hopper, as well. How long should a 404 permit take? What is
a reasonable period of time?
Mr. Hopper. A reasonable period of time would be 90 days to
6 months.
Mr. Lankford. And they typically take how long now?
Mr. Hopper. According to----
Mr. Lankford. If they hold?
Mr. Hopper [continuing]. The research by Dr. Sunding, they
typically take 2 years or more.
Mr. Lankford. OK. Thank you. I yield back.
Mr. Gibbs. Thank you. Representative Capito?
Mrs. Capito. Yes, thank you. Mr. Roberts, you mentioned in
your testimony that if surface mining were to be discontinued
in West Virginia it would cost directly 6,255 jobs. But there
is a job multiplier, I am sure, that you use. What is that job
multiplier? For every one of those jobs, how many ancillary
jobs?
Mr. Roberts. Mr. Chairman and Congresswoman, we think that
a reasonable multiplier could be perhaps--a reasonable and
conservative multiplier could be anything from one-and-a-half
to two, related to those jobs. And I think that is probably on
the very--if that is an error, it is on the very low side.
Our estimates are that, while we have approximately 21,000
mining jobs in West Virginia, and nationwide approximately
81,000 mining jobs, according to the U.S. Bureau of Labor
Statistics, that we have another close to 80,000 jobs in West
Virginia that exist because of the mining industry. So, if we
were to extrapolate from that that 40 percent of those jobs are
related to surface mining, that is 32,000 ancillary jobs
related to surface mining in West Virginia.
Mrs. Capito. OK, thank you. And then, just recently--I
believe maybe Monday--in Congressman Rahall's district was
announced the beginning of a construction of a coal-to-liquid
plant which will obviously create jobs, another usage of coal,
and will also help with our dependence issue on the foreign
sources of oil.
We have had stops and starts with coal-to-liquid before,
because of the high expense of converting. How do you see this,
in terms of the future and the longevity of coal, other uses of
coal, and what kind of things are we doing in West Virginia to
promote this?
Mr. Roberts. I am actually pretty optimistic about the
long-term prospects for using coal and converting it to other
types of energy, and doing it cleanly and in an environmentally
sound way.
One of the mantras that people who are close to coal tend
to have is that in our country and in the world we are going to
need all of the energy we can get, on a going forward basis,
and we are going to need it from virtually every source that we
can think to create it. And to that extent, what we are hopeful
about is that more research dollars will go into how we convert
coal to other energy uses, and then how we do that cleanly and
in an environmentally sound way, and how we transport that
energy, once we convert it.
But from a looking-forward basis, there is lots of reason
for optimism that the massive coal reserves we have can be
converted to other energy uses.
Mrs. Capito. Right, and our universities are doing that
right now, particularly WVU and Marshall--there again, another
job creator, in terms of the development of technology and
research around coal.
Dr. Sunding, let me ask you a question. Does the EPA have
to consider energy and economic impacts when they are making a
decision? My understanding is that that should be part of their
decision. And our next witness says in there that they do
consider that, although, as I said in my opening statement, the
administrator said that's not a consideration that she takes.
What is your take on that?
Mr. Sunding. Right. My take would be that, as a matter of
public policy, they should be considering economic impacts.
Earlier this morning I forget who was talking about balancing.
And I think that is what we are ultimately trying to find here,
is some kind of balance. Economic impacts and jobs are part of
the balancing test.
Mrs. Capito. But is it statutory that they consider this?
Is it in the statute?
Mr. Sunding. Well, again, I am not an attorney. There are
probably better people here to----
Mrs. Capito. There is Mr. Hopper. You are an attorney. Is
it in the statute?
Mr. Hopper. I am not aware of a requirement in the statute.
Mrs. Capito. To consider that as an impact?
Mr. Hopper. But the administrator has very broad discretion
in how she administers the law, including rulemaking and
enforcement.
Mrs. Capito. OK. And one last question for Mr. Roberts.
West Virginia generates, what is it, 98 percent of our energy
from coal.
Mr. Roberts. From coal.
Mrs. Capito. For obvious reasons. We are right there, we
have a lot of it.
When you are recruiting businesses to West Virginia and
asking them to relocate to West Virginia, one of our primary
recruiting goals is our affordable energy resources, because of
the proximity of the resource, the abundance of the resource,
and the fact that we are very reliant on the resource.
If that goes away, what kind of disadvantage would that put
our State--but other States, like Indiana, I think, is one of
the States that has a large reliance on coal as a resource.
Mr. Roberts. Yes.
Mrs. Capito. What would you----
Mr. Roberts. The result of the high level of electricity
generation that comes from coal in our State and in many
similar States is that we have the--among the lowest
electricity cost for commercial and industrial users in the
Nation. For many years, West Virginia has had the second-lowest
electricity costs in the Nation for industrial and commercial
users. And that is very important, as our country tries to see
its manufacturing economy recover. The recovery is likely to
occur in the States that can provide the energy and provide it
in a dependable, reliable, and low-cost way. And, for West
Virginia, that has been a key factor in keeping some of the
industrial facilities that we have in our State.
Mrs. Capito. Thank you, and I think my time has expired.
But the other question I wanted to ask--so I am just going to
put it out there--is in West Virginia we have had a lot of
issues around DEP, who has primacy on water rights, you know,
the Corps, and it looks like a circle that keeps going around.
And I think this is something that we need to have decided,
because our State government officials are in a quandary, not
knowing how to react, not only--well, around the permitting
issues. Not only the private sector doesn't know how to react,
but the State government is in a big quandary as to the correct
way to move forward on what they think is an authority that the
State DEP has.
And with that, I thank you.
Mr. Gibbs. Thank you. Representative Richardson, do you
have a question?
Ms. Richardson. Thank you, Mr. Chairman. I just have two
questions.
Dr. Sunding, first of all, welcome. I am from California,
so welcome here. In your testimony you argued that EPA's
decision to override the judgement of the Corps of Engineers in
the Arch Coal case alters the incentives to invest in projects
requiring a permit under section 404, and that the EPA's
actions will chill investment in activities requiring a 404
authorization. Could you elaborate a little further on that
point?
Mr. Sunding. Sure, I would be happy to.
Ms. Richardson. And if you could, provide some specific
examples.
Mr. Sunding. Yes, sure, I would be happy to. I could give
you some examples.
Let me just say, as a threshold comment, that people often
forget--I am not saying any members of the committee have
forgotten--but the 404 program touches, as we were talking
about a minute ago, many parts of the economy, not just the
mining sector, not just housing. Virtually all public
infrastructure projects can potentially have to get 404
authorization: school building, road building, emergency
response infrastructure, utility pipelines. These are all
projects that routinely get 404 authorization.
And if you think about the economic incentive effects of
being able to revoke a valid permit ex-post, that is very
different than the economic incentive effects of not just
approving it in the first place. Because the investment has
already been made. So that money is sunk. And it can't be
recovered. Once part of a road is built, or part of a project
is completed, it is irreversible, can't be recouped if the EPA
changes its mind.
So, that is a much more consideration, ex ante, than just
the ability to have a permit denied in the first place, before
the investment is made. So when I talk about the direct
incentive effects of the action on all kinds of activities that
happen in the economy, that is really what I am referring to.
Ms. Richardson. OK. Thank you, sir. And, Mr. Carey, in your
statement today you argued that one of the four things that
could help to stimulate job creation in the Appalachian coal
mining industry is to declare a regulatory time-out.
Sir, with all due respect, if you look at various things
that have happened in this country, whether it is financial
regulation, whether it is the Deepwater Horizon, I don't think,
realistically, you are going to get support of a regulation
time-out. So what might you suggest that would be something
more in the middle that we could possibly address and help you
with?
Mr. Carey. Mr. Chairman, Congresswoman, I think I laid out
pretty specifically what I think this committee could outline
to promote jobs in Appalachia. To take a middle ground
approach, I am not sure what that means. If we are saying--if
we are looking at what the surface mining or the 7,000 jobs
that--the direct jobs that would be lost in Appalachia because
of the surface mining rules, and other jobs grown into the
west, I am not sure that is--how do you cut that in half and
say, ``Well, I will take half of those job losses?''
The Penn State University did a study a number of years ago
that says for one coal job, up to 11 spin-off jobs are
associated with that one job. So, if we are talking 7,000
people----
Ms. Richardson. Excuse me.
Mr. Carey [continuing]. Congressman, we are looking at a
factor of 77,000.
Ms. Richardson. Excuse me. Excuse me. Excuse me. This is my
time. You already gave your testimony, OK? So excuse me.
And I do want to say for the record, Mr. Chairman, I was a
little offended by this gentleman's testimony in reference to
the President and to the EPA administrator. I have been on this
committee 4 years, and we don't attack our administrators, and
I don't think we allow people giving testimony to do so,
either.
Sir, the question I was asking you--and I am trying to help
you, I am not against you--my question to you was you are not
going to see no regulation. You know, you can sit here, if you
want people to lie to you, you know, look at someone else. But
I am just telling you I seriously doubt you are going to see
anything that is going to be no regulation.
So, if it is going to be no regulation--and we are talking
about regulations, I am not talking about a specific job--what
specific things could we do--because, you know, EPA is coming
up next--what specific items could we help you within that
regulation to ease--to get to the point of where you are trying
to go? I am trying to help you.
Mr. Carey. Mr. Chairman, Congresswoman, I would be happy to
outline several different things that you could help with.
Ms. Richardson. OK.
Mr. Carey. I would be more than happy. But I do want to say
something. I don't think that I ever inflammatorily went after
the director of the EPA. I just stated what she did as an EPA
administrator in New Jersey.
Ms. Richardson. We normally don't reference specific to our
administrators or to the President, and I don't know if you
have testified here before, but I thought it was a little over
the top, in my opinion.
I welcome your comments of specific examples, and I would
be happy to work with the chairman and the ranking member to
assist you to achieve your goal. We want to help you, and we
want you to be successful. Thank you.
Mr. Gibbs. Mr. Bishop?
Mr. Bishop. Thank you. Just one point, and I thank the
chairman for indulging me.
Dr. Sunding, and I think Mr. Roberts and Mr. Carey all made
reference to the fact that the section 404 veto authority
remains with the EPA, leads to a level of uncertainty that is
debilitating.
Under the heading of us all having the same set of facts,
in the last 39 years--which I think we will agree is the post-
wagon wheel era--in the last 39 years, the Army Corps of
Engineers has authorized over 2 million activities in the
waters of the United States that are subject to section 402
regulatory authority. There have been 13 vetoes. And, to be
specific, the Obama administration, one veto. The Bush II
administration, one veto. Bush I, four vetoes. Reagan, seven
vetoes.
So, I think 2 million permits set against 13 vetoes, it is
a little difficult to argue that there is a level of
uncertainty that is debilitating.
I thank you, I yield back.
Mr. Gibbs. Thank you. I want to thank this panel for your
coming and testifying. It is very enlightening. And just a
quick comment.
You know, we are--I am really personally concerned about
the revocation of a permit after 3 years it was issued. That is
different from a veto, in my opinion. I think in the process,
the application process, the EPA has the right to veto it. But
the question here is after the fact, for not being in violation
of that permit. And I haven't seen any evidence yet that they
were in violation of the permit.
So, again, thank you, and we are going to conclude this
first panel and move on to our second panel, with the
administrator, Ms. Stoner.
Welcome, Ms. Stoner. At this time I welcome Ms. Stoner, the
acting assistant administrator of the Environmental Protection
Agency Office of Water. The floor is yours.
TESTIMONY OF NANCY K. STONER, ACTING ASSISTANT ADMINISTRATOR,
ENVIRONMENTAL PROTECTION AGENCY, OFFICE OF WATER
Ms. Stoner. Good morning, Chairman Gibbs, Ranking Member
Bishop, and members of the committee. Mr. Rahall, as well. I am
Nancy Stoner, acting assistant administrator of the office of
water at the U.S. EPA. I appreciate the opportunity to testify
before you on EPA's work to protect all of America's waters,
including those in Appalachia.
Mr. Chairman, before I describe EPA's obligations to
protect water quality and the environment, allow me to repeat
something EPA Administrator Lisa Jackson has said many times:
``Americans do not need to choose between having clean water
and a health economy; they deserve both.''
Let me also repeat another point the administrator has
made. None of EPA's actions are about ending coal mining. They
are about reducing coal pollution and protecting the health and
the environment of coal field communities. We have a
responsibility under the Clean Water Act passed by Congress to
ensure that surface coal mining projects do not impair water
quality or endanger human health or environmental health. We
are committed to fulfilling that responsibility, because we
believe that every community deserves our full protection under
that law.
In the last 29 months we have worked with our Federal and
State colleagues and with mining companies to design projects
so they do not adversely impact water quality, so that they can
move ahead. In fact, since 2009, more than 50 of the permits
have now been issued that had been stalled, due to litigation
or other factors.
We all want our communities to be successful. The health of
humans and ecosystems is an essential part of this equation.
And clean water is essential to the health and well-being of
every American. When the water is polluted, the community
struggles, as we have seen in parts of the world where people
have inadequate access to clean water, and are forced to rely
on contaminated sources.
In 2010 an independent peer-reviewed study by 2 university
professors found that communities near degraded streams have
higher rates of respiratory, digestive, urinary, and breast
cancer. The study was not conducted in a far-off country. It
was conducted here, in the U.S., in Appalachian communities.
A peer-reviewed West Virginia University study released
yesterday concludes that Appalachian citizens in areas affected
by mountaintop mining experience significantly more unhealthy
days each year than the average American.
Healthier watersheds mean healthier people. It has been a
high priority of this administration to reduce the substantial
human health and environmental consequences of surface coal
mining in Appalachia, to minimize further impairment of already
compromised watersheds. We have demonstrated a constructive
approach in our work with mining companies. When people of good
will work together, we are able to find approaches that allow
mining projects to move forward without degrading water
quality.
Let me make two specific points about this. First, initial
monitoring data shows that mines that use modern practices to
protect the environment can achieve downstream water quality
well below levels of concern. These companies should be
commended for working with EPA to protect water quality and
human health while also mining coal.
Second, given the discussion today about Arch Coal's Spruce
Mine permit, I would like to point out that EPA offered a
pathway for that project to move forward in a manner that did
not impair water quality, just as we did with the projects we
approved. Unfortunately, the company rejected this approach,
and refused to modify the mine to protect waterways and stream
life, as required by law.
EPA reserves its authority to veto permits for only truly
unacceptable circumstances. EPA has used its authority to
revoke an issued permit only twice since 1972. We have stood
our ground in this case, based on peer-reviewed science that
has increasingly documented the effects of surface coal mining
operations on downstream water quality and aquatic life. I have
brought some of those peer-reviewed studies with me here today.
Peer-reviewed studies have found elevated levels of highly
toxic and bioaccumulative selenium, sulfates, and total
dissolved solids in streams downstream of valley fills. Studies
by the West Virginia Department of Environmental Protection
have emphasized the role of high selenium levels in causing
developmental effects in fish.
EPA itself recently completed a review of the scientific
literature related to the environmental impacts of surface coal
mining, and found effects that included resource loss, water
quality impairment, and degradation of aquatic ecosystems. We
also completed an extensive assessment of the relationship
between stream quality and high levels of conductivity. Both
EPA reports were subject to extensive peer--public comment, and
have been independently peer-reviewed by our science advisory
board.
In conclusion, Mr. Chairman, science has told us that when
we don't protect our waters from coal pollution, our
communities and future generations will suffer. As leaders, we
should be taking every possible step to keep them healthy, and
working together to provide a clear path for the future of
coal, a path that ensures the health and prosperity of
Americans living in Appalachia, and the energy future for our
Nation.
Just months before his passing, after serving 57 years in
the U.S. Congress, Senator Robert Byrd stated eloquently that,
``The greatest threats to the future of coal do not come from
possible constraints on mountaintop removal mining, or other
environmental regulations. But rather, from rigid mindsets,
depleting coal reserves, and the declining demand for coal. The
future of coal--and, indeed, of our total energy picture--lies
in change and innovation.''
I sincerely respect Senator Byrd's challenge to all of us
to embrace the future. EPA will continue to work with our
Federal partners, State agencies, the mining industry, and the
public to fulfill our common goals of reducing adverse impacts
to water quality, aquatic ecosystems, and human health. Thank
you.
Mr. Gibbs. Thank you for your testimony, Ms. Stoner. I will
get right to the questions.
My first question with the Spruce permit. Did the State of
West Virginia support EPA's veto, or the--what you call a veto,
I call it revocation of the permit.
Ms. Stoner. No, sir. I don't believe they did so. The U.S.
Fish and Wildlife Service supported it, and U.S. EPA made the
determination.
Mr. Gibbs. Did the Army Corps of Engineers support it?
Ms. Stoner. They did not indicate that they thought a veto
was necessary.
Mr. Gibbs. Did they find any information that--in your
testimony you talk about--because information had changed that
warranted the revocation of the permit. Did the Corps give any
new information to the EPA that there was any new information
from the Corps?
Ms. Stoner. They have specific statutory factors that they
need to follow. They didn't find that those were met. But the
new information, the science that I just referred to, I have
brought with us today. These are scientific----
Mr. Gibbs. Well, let me just stay with the Corps a second.
Is that true, that the Corps submitted a report that was at
least 50 pages long with no new information?
Ms. Stoner. The correspondence that I saw referred to the
statutory factors for the Corps' decision about whether to take
further action.
Mr. Gibbs. OK, but for the record, they did not support
EPA's action.
Ms. Stoner. They did not ask EPA to take that action, that
is correct.
Mr. Gibbs. OK. Can the EPA revoke a permit, even though the
applicant is in full compliance with the law, and the
regulations and water quality standards are in effect?
Ms. Stoner. The statute specifies withdrawing a
specification. It indicates the criteria for a 404 that include
significant adverse impacts on wildlife, drinking water
sources, other specific factors. That is what the statute
refers to.
Mr. Gibbs. In your testimony you talk about there was
significant new scientific information that emerged, because I
keep in mind that they went through an environmental impact
study of about 10 years, got--and, of course, they got their
permit there in 2007. And in your testimony you talk about how
there was significant new scientific information. Can you be
specific of what that information is?
Ms. Stoner. Yes. Again, I brought more than 100 studies. I
would actually like to have them be made a part of the record,
if I could. And what that scientific information is, is
documentation of the adverse impacts of valley fills and
mountaintop mining, discharges in waterways on both the stream
communities buried by that fill and downstream----
Mr. Gibbs. Would that be using the conductivity as a test,
as the main component of the studies?
Ms. Stoner. Conductivity is a measure of stream
degradation. So there are studies on conductivity, including
one that EPA did and was peer-reviewed by the SAB. But there is
lots of different studies that show the adverse impacts on
public health and the environment. And those studies have been
coming in in large numbers since 2007.
Mr. Gibbs. Just so you are aware, last week we had a Dr.
Leonard Peters, who is the secretary of the State of Kentucky
energy and environment, he is a chemical engineer, and he
testified on the conductivity that your standard that you
have--that the EPA is imposing now, the water cannot exceed 500
siemens. And I am told that most bottled water is allowed up to
750. Is that true?
Ms. Stoner. It is a standard that is based on fresh water.
So it is what creatures that live in the water all the time
need in order to survive. It is different than what we drink,
and the salt that we are used to.
Mr. Gibbs. In regards to enhanced coordination, there has
been concern, we have had testimony that this procedure only
applies to the Appalachian region, it doesn't apply anywhere
else in the country.
Do you think that--where do you--where can you tell me
where it is in the law, that the EPA has the authority to do
the enhanced coordination? Because, to me, it looks like it is
kind of circumventing the permitting process. Can you----
Ms. Stoner. It is designed to have agencies work together
better to make decisions, provide clarity to industry, to do so
in a timely way. That is the purpose of the process----
Mr. Gibbs. I think the facts of what has happened, the
results, have been that there is many--numerous delays. And
since you are using that procedure that is not in law, there is
nothing in the law that says you have to move forward in a
timely fashion under enhanced coordination, because enhanced
coordination does not exist in the law, is my understanding.
Ms. Stoner. The enhanced coordination procedures actually
has time limits in it. And those are designed to help move the
permitting process along. As I said, more than 50 permits have
moved through that process. A lot of those permits were stalled
prior to the development of the enhanced coordination process.
Mr. Gibbs. My understanding, there has only been two
permits issued under enhanced coordination. Is that correct,
out of the 250 that you had when you started your
administration?
Ms. Stoner. No, sir, I don't believe that is correct.
Mr. Gibbs. OK. OK, Representative Rahall?
Mr. Rahall. Thank you, Mr. Chairman. And thank you,
Administrator Stoner, for once again being before our committee
on water resources.
As you certainly know, I have a number of concerns
regarding EPA's review of Corps-issued section 404 permits and
its intervention in coal-related State-issued section 402
permits in West Virginia, throughout the Appalachian region.
Now, with respect to the April 2010 guidance document
affecting mining permits in Appalachia--and only, by the way,
only by the way, coal mining in Appalachia, no other industry,
no other region has been targeted by this guidance document,
April 2010. You have testified previously that this kind of
guidance is just a first step, and that such guidance, the
documents are never binding and mandatory.
Yet the EPA is using that guidance document in discussions
with State agencies to comment on, dictate the terms of, and
object to coal mining permits in Appalachia. This guidance
document, along with other guidance documents on this matter,
sets new timelines and criteria for permits that differ from
the law and current regulation.
So, my question is, how do you reconcile the way the
guidance is being issued by EPA with the Agency's assertion
that the guidance is not binding?
And then, a second question I have is how many permits have
been approved--because that seems to be a topic of discussion
today--how many permits have been approved since that April
2010 guidance document was issued?
Ms. Stoner. First, on the guidance document, it applies to
Appalachia because of the science on which it is based, which
is science that was done in the field in Appalachia. So that is
why the guidance document applies to Appalachia. It is not
binding. And there have been no decisions that have been made
that are based on guidance, as opposed to on the statutes and
the regulations that govern our decisionmaking. They are
informed by that science that has been done.
So, that is the way that we are using it. It has timeframes
in it to try to get the agencies to work promptly with mining
companies to find solutions that allow mining to continue and
protect water quality.
Mr. Rahall. So you are working with coal companies to try
to develop these models, or whatever, to--so we can move
forward?
Ms. Stoner. Yes, sir. We are working with coal companies.
We have been very proud of the progress that we have made in a
number of situations, including with Coal-Mac, with Hobet 45 in
having permits that are issued that protect public health and
allow coal mining to continue.
And even in Spruce, the mining that had already started was
allowed to continue. So we are looking for solutions. We are
looking for ways of protecting public health and protecting the
economy in Appalachia.
Mr. Rahall. Why is it that the April 2010 guidance document
issued ``for surface coal mining in Appalachia'' is being
applied to all types of mining, including deep mining and
mining that not even occurs in jurisdictional waters?
Ms. Stoner. It applies to surface coal mining in
Appalachia. And the information----
Mr. Rahall. Not deep mining?
Ms. Stoner. The information in it may be relevant, but the
guidance is limited to--those areas in which the information
was gathered was surface coal mining in Appalachia.
Mr. Rahall. All right. Let me ask you. On April--I'm sorry,
May 2nd of this year, the EPA and the U.S. Corps of Engineers
jointly published in the Federal Register their proposal to
issue clarifying guidance for determining which waters and
wetlands throughout the Nation are protected in the CWA
programs. That draft guidance was made public, and the Agency
solicited comments from all interested parties.
In April 2010 the EPA issued its detailed guidance for
permitting and surface coal mining in Appalachia. It was made
effective immediately. And the public comment was only
solicited afterward.
Can you tell me why the EPA, on the one hand, felt it was
important to allow the public to weigh in on new guidance
before it took effect, but on the other hand, in the instance
involving only the Appalachian States, it did not allow that
public input?
Ms. Stoner. We are, as you may know, getting input on the
mining guidance. We got it through the past year, we are
analyzing that input, and are planning to move forward with a
revised guidance, based on that input and based on our
experience.
We did feel it was important to get the science out to
people to address the clarity issues that have come up several
times in the hearing.
Mr. Rahall. But all that was done after you implemented.
Ms. Stoner. No, the science was put out at the same time,
April of last year, the science reports from our office of
research and development. We felt it was important to get that
science out at that time so people could look at the science,
which went through a peer review process thereafter, as well as
the guidance, and have the best information possible on the
clarity that people are seeking on how the permit process would
work, so that we could reach our solutions of having mining
permits issued that protect public health and the environment.
Mr. Rahall. Why did you seek OMB review of your national
guidance on jurisdictional waters but not on the guidance
targeting Appalachian coal mining?
Ms. Stoner. OMB is currently reviewing the revision to the
Appalachian coal mining guidance. So we are seeking OMB review,
other agencies' review----
Mr. Rahall. At my request, by the way.
Ms. Stoner [continuing]. Through that process. We were glad
to see to that request.
Mr. Rahall. What is the timeline for the EPA issuing its
final guidance?
Ms. Stoner. I expect it to come out later this month.
Mr. Rahall. Thank you. Thank you, Mr. Chairman.
Mr. Gibbs. Representative Cravaack, have you got a
question? Yes.
Mr. Cravaack. Thank you, Mr. Chairman. Ms. Stoner, last
time we spoke--I appreciate you being here today--I asked you
what the definition of navigable waters is. Can you please tell
me what the definition of navigable water is in the new
guidance?
Ms. Stoner. The new guidance has a number of elements that
are involved in the definition of navigable waters that relate
to tributaries, that relate to wetlands, that relate to those
connections to traditionally navigable waters and interstate
waters.
Mr. Cravaack. Would it include a seasonal slough or a wet
meadow?
Ms. Stoner. It would depend on the specific facts and
circumstances associated with those.
Mr. Cravaack. So you are saying that it would include a
seasonal slough or a wet meadow at times?
Ms. Stoner. It could, if they had a significant nexus to a
traditional navigable water or an interstate water. The point
of the draft guidance is to close loopholes and, again, as with
the mountaintop mining guidance, provide greater clarity to the
public to speed the permitting process and allow projects to
move forward.
Mr. Cravaack. Well, this isn't just affecting mountaintop
mining. It is also affecting open pit mining in Minnesota. For
example, the Keetac Mine has gone through 3 years and $300
million of EPA studies in regards to trying to get a mine open
that was already a previous mine that has just been shut down
for a number of years. So the issue is there.
So what wasn't able to go through the Clean Water--
America's Commitment to Clean Water Act, it seems like you are
legislating by regulating.
Well, let me ask you, then. If the EPA has guidance, would
you agree that it should not be binding in any way?
Ms. Stoner. EPA guidance is not binding. That is correct,
Congressman.
Mr. Cravaack. OK. If this is correct, if this is true, why
would you propose such guidance?
Ms. Stoner. It is to provide information and clarity to the
regulated public.
Mr. Cravaack. Why not a white paper?
Ms. Stoner. A white paper could be considered a guidance.
Mr. Cravaack. OK. But you are classifying it a guidance.
And the reason why I bring this up, I have seen what guidance
has done to our timber industry in the northern part of
Minnesota; it has become a mandate. And that is what we are
very concerned with, as well.
Could you tell me just yes or no, do you believe the
implementation of the ERP presents a substantive change to
prior regulations?
Ms. Stoner. I am not sure what the ERP is. Are you talking
about the enhanced coordination process?
Mr. Cravaack. Yes, yes.
Ms. Stoner. Yes, that is not a substantive change. That is
a process.
Mr. Cravaack. OK. You think it is a process. All right.
What authority, then, is the EPA acting under this enhanced
review procedure, instead of the Corps regulations to process a
certain coal permits selected by the EPA?
Ms. Stoner. It is just a coordination process among Federal
agencies. So we are operating with our Federal agencies to
enhance our coordination to improve the permitting process.
Mr. Cravaack. OK. I just understood--didn't I understand
that the Army Corps did not agree with your assessment?
Ms. Stoner. That was a question about the Spruce Mine veto.
They very much agreed to and signed an MOU with us on the
enhanced coordination process. We are working closely with the
Army Corps on that process to get permits issued that protect
public health and the environment.
Mr. Cravaack. OK. So then how does the EPA reconcile the
fact that in this process that you are saying--called the
enhanced review of permits, suspends the Corps timeline for
issuing the 404 permits required by the Clean Water Act and the
Corps regulations?
Ms. Stoner. It is my understanding that it includes dates
for speeding up the process, not for slowing down the process.
Mr. Cravaack. OK. Again, I will go back to the Keetac Mine
with 3 years and, you know, through this process moving--the
experience that we have seen in Minnesota is that the EPA keeps
on changing the bar, where they will come up to a certain
point--PolyMet Project, as well--where they will come up to a
certain point, and then they will reach that point, and then
the EPA changes the point, the data point, once again.
So, my question is, you know, how can--and we talked just
recently in the previous panel--how can business go about and
do any type of certainty if EPA keeps on moving the bar on us?
Ms. Stoner. We are very anxious to provide the certainty
which you are seeking, and that is actually what these efforts
are about.
One thing about the scope of Clean Water Act jurisdiction
is that we had heard from a lot of different entities from
different perspectives that there was a lack of clarity. That
is one of the reasons to provide the guidance and close those
loopholes, provide that clarity the regulated entities need.
Mr. Cravaack. Well, ma'am, to tell you the truth, and
speaking in regards to the mines in Minnesota--and I will--the
people of the mines in Appalachia--I can tell you there is not
one person or one entity that has said the EPA gives them any
type of certainty. As a matter of fact, it does the exact
opposite.
So, that is my comment to you. And I am out of time, and I
will yield back, sir.
Mr. Gibbs. Thank you. Representative Richardson?
Ms. Richardson. Thank you, Mr. Chairman. Ms. Stoner, you
mentioned about EPA working together. Do you have a
stakeholders group or an advisory group regarding mining, coal
mining, specifically?
Ms. Stoner. We have advisory groups on a lot of different
topics. I am not sure whether we have one on coal mining, in
particular.
Ms. Richardson. OK. Might I suggest that if something
raises to the level of the U.S. House of Representatives, you
might want to consider having a stakeholders group. I don't
really think, legitimately, you can say that you are working
together if you don't even have a group where you are seeking
their feedback to be able to work with them.
So, my request would be--if you would take it back to the
administrator--if she would consider having a stakeholders
advisory--whatever you want to call it--and I think certainly,
with all due respect to Mr. Carey, he should be one of the
people that is first on the list to be considered as a part of
that group. Would you consider that?
Ms. Stoner. I would be happy to take that suggestion back.
Ms. Richardson. Thank you, Ms. Stoner. My second question
would be any time something like this rises to the level, it
says to us there is probably a problem, and I listen to my
colleagues here. Have you had any hearings in the Appalachian
area to talk about some of the concerns that have been brought
forward to us today?
Ms. Stoner. Yes, we have. We have had hearings, including
hearings on the Spruce Mine itself, in which we had lots of
public interest, lots of testimony from people from various
perspectives within Appalachia: people who were concerned about
public health, people who were concerned about the environment,
people who were concerned about jobs, people who were concerned
about all kinds of issues. And we did listen to and considered
all of the input we received at those hearings.
Ms. Richardson. And specifically regarding the ability to
do jobs, what have you implemented, based upon those hearings
that you had?
Ms. Stoner. Our strategy is to work with companies to meet
the requirements of the Clean Water Act to protect public
health and the environment and get permits issued that allow
mining to continue and provide those jobs, while protecting
public health.
Ms. Richardson. And what, specifically, are you doing to
help them to do that?
Ms. Stoner. We are doing that in individual cases, working
with those companies under the ECP process that we have been
talking about, mostly through our regions. Most of the
implementation of the Clean Water Act is through our regions.
And we have been proud of the success that we have had. We have
data showing that--recent data from Coal-Mac permits showing
that the requirements of the Clean Water Act can be met in
those cases, and jobs can be preserved, as well. That is our
strategy.
Ms. Richardson. OK. Ms. Stoner, I thank you for your time,
and I would just really urge you to--if we say we are working
together, we need to be able to prove that we are working
together. And I would just strongly encourage some sort of
group where the impacted people have an opportunity to work
with you and make some changes.
Mr. Carey, I asked him--I apologize, Mr. Chairman--I asked
Mr. Carey if he would give us some specific examples of
regulatory things that could be done to help. Are you willing
to consider those and answer what he provides to this
committee?
Ms. Stoner. Of course.
Ms. Richardson. Thank you, ma'am. I yield back.
Mr. Gibbs. Representative Capito, do you have a question?
Mrs. Capito. Thank you. I am sorry I had to be out of the
room, but I read your testimony, and I appreciate you coming
before the committee.
I want to ask a question about the interplay between the
EPA and the DEP. My understanding is that the DEP--the State
DEP--I am from West Virginia--is tasked with setting the water
quality standards, correct? But EPA has come in and keeps
changing the standards and overturning what the State is doing.
How are you working with the State to try to work out those
issues?
Ms. Stoner. We are not overturning State standards. So you
are correct, that West Virginia sets State standards.
Mrs. Capito. Right.
Ms. Stoner. Some of the standards are narrative standards,
and they need interpretation. And the science that we are
working on is to help interpret those standards so that they
can achieve their goals, which is ensuring that waters are
usable for the people of West Virginia.
And so, we are in regular contact with the State in
discussing those State standards, and discussing particular
permits, and trying to move forward together to get the permits
issued to protect public health for citizens in West Virginia.
Mrs. Capito. When you are considering the standards--and
you heard, probably, my testimony, and you heard my
conversation with Administrator Jackson telling me that the
implications of jobs and the economy is something that she
considers when making a decision, because her job is to oversee
the Clean Water Act, exclusively.
And in your statement, you talk about--and we have talked
about this--the balance between healthy watersheds and a
healthy economy. What considerations do you have when you are
looking at a permit, in terms of the economic impact? Do you
have a job impact statement? Do you have a--do you go to the
community and talk to people that are actually living and
working there, what kind of impact this is going to have on
their livelihoods?
Is that part of your written statement? Is there a metric
that you have to follow? Or is that, in fact, as the
administrator said, that is not considered, in terms of whether
to move forward?
Ms. Stoner. It--first of all, with respect to the Spruce
Mine, as I mentioned, we had a hearing in West Virginia where
we had lots of people, and could consider all of the different
input that they provided at that hearing.
But our strategy on jobs is to work with the company to
meet the requirements of the Clean Water Act, which are about
meeting those water quality standards that you referenced
before. And those standards are set to ensure that waters are
usable for the things that people use them for: drinking,
swimming, fishing, and so forth. Those are all economic
activities. The Clean Water Act supports strong economies.
And so, having clean water, having a strong economy, having
public health protection in West Virginia, that is our goal.
Mrs. Capito. Well, I mean, I agree clean water--I mean I
live in West Virginia, it is important to all of us across the
Nation. I mean I don't think there is a disagreement there.
But I think you would agree and I would agree that weaving
the balance between the economy and the environment is
difficult, not just in mining, but in--we are seeing this in
our natural gas exploration in the northern part of our State.
The ag community has seen it, the hard rock mining folks are
seeing it.
And so, I guess basically what you are telling me is that,
no, you don't, as the EPA, consider the job and economic
impact. That is the company's job, to put forth the job and
economic impacts, and to--and so, in plain talk I guess, what I
want to see is you basically following up with what you are
actually saying, and having behavior follow what the rhetoric
is. And that is my concern. And that is our concern in West
Virginia.
Ms. Stoner. So what I am saying is that Appalachian
communities don't need to choose between jobs and a healthy
environment. They deserve and can have both. And we are totally
committed to following up to ensure that we are working toward
that common goal.
Mrs. Capito. Well, I wish I could feel that that were
absolutely the case. But, as I said, actions speak louder than
words. And, unfortunately, a lot of the actions that we are
seeing don't follow with what you are telling me today.
I would yield back.
Mr. Gibbs. Ms. Richardson, you had a follow-up?
Ms. Richardson. Yes, Mr. Chairman. I just wanted to
clarify. I didn't hear for the record. Did you accept Ms.
Stoner's materials into the printed record? She had asked, but
I did not hear us confirm it.
Mr. Gibbs. Oh, yes, we will.
[The information follows:]
The studies may be accessed online at the Government Printing
Office's Federal Digital System (FDsys) at: http://www.gpo.gov/fdsys/
search/pagedetails.action? st=jacketid%3A72-211&granuleId=CPRT-
112HPRT72211&packageId=CPRT-112HP RT72211. In the ``Download Files''
section of the Web page, select the PDF format.
Ms. Richardson. Perfect. Thank you, sir. Appreciate that.
Mr. Gibbs. Representative Landry?
Mr. Landry. Ms. Stoner, I was glad to see the chairman
point out the fact that, you know, in your guidance on
conductivity standards you said that they could not exceed 500
siemens, and Perrier doesn't--would exceed that. So should I
not put Perrier in my fish tank, or should I not swim in it, or
should I not drink? I mean I am trying to understand. You know,
what exactly is--you know, are we setting as a threshold?
Ms. Stoner. Well, first of all, in the guidance 500 is not
a standard, as you suggested. It is--again, based on the
science, it is a benchmark. But what it is designed to do is to
protect fresh water communities. So there is fish and various
different kinds of creatures that live in fresh water and some
that live in salt water. This is fresh water communities. And
what we are doing is, based on the science, what is necessary
to protect those.
And what we have seen is that high conductivity levels are
linked with high levels of dissolved solids that are
detrimental to that stream life. So the conductivity limit is
about protecting 95 percent of the species that one would find
in a mountain stream.
Mr. Landry. Well, but what I am concerned about is whether
or not you put out these guidance documents, and then you
strong-arm those permitees by threatening your use of your veto
power. So it is kind of like we want you to--this is a
guidance, but if you don't meet it, remember we can veto you
over here.
You know, that is what concerns, I believe, not only me but
my colleagues here, is what goes on not in this committee room
and your answers, but when you all close the door and put those
companies in your office. Believe you me, as a business owner,
I wouldn't deny that you all do that, because I have
experienced it.
The other thing that kind of strikes me is that section
101(f) of the Clean Water Act states, ``It is the national
policy that, to the maximum extent possible, the procedures
utilized for implementing this act shall encourage the drastic
minimization of paperwork.''
Now, considering that a 404 permit required an EIS on a
permit that I studied that I had mentioned earlier that spanned
over 1,600 pages, including 58 pages just to respond to your
EPA comments, would you say that you all are failing to
actively implement that section?
Ms. Stoner. Most 404 permits are issued through a general
permit process, and that is about 80,000 per year, as I
understand it. And they take less than 90 days. So that is how
most 404 authorizations occur.
Mr. Landry. Well now, I want you to know something. Down--
you know, look, I have got levee districts back in Louisiana
that basically can't repair their levees because the cost of
your permit is more expensive than the cost to repair the
levee. Do you understand what kind of effect you all are
having?
Ms. Stoner. I agree with you on the importance of limiting
paperwork, and in speed and efficiency in Government
operations. That is in everybody's interest. I completely
agree.
Mr. Landry. Well, I don't understand, because back when the
Chapala Basin levee was first--or when it was strengthened back
in the 1980s, the 404 permit came like that. But yet--so at a
time when the 404 permits started, the issuance of them
happened at a quicker pace. But yet, as time has dragged on,
the amount of time that it's taken to get that permit has
continued to exceed what it was prior to it.
So, what you are saying, your actions don't match the
rhetoric.
Ms. Stoner. Well, we are working closely with the Army
Corps to make permit decisions expeditiously, and to make
decisions that meet the requirements of the law and protect
public health.
Mr. Landry. Well, I am about to run out of time, but are
you familiar with the fact that you all vetoed a permit in the
Yazoo River Basin that now could come back to cost hundreds of
millions of dollars if those levees fail? Do you understand
that impact of what that decision may create for those people?
And I do not represent Mississippi.
Ms. Stoner. I was not personally involved in the decision
having to do with the Yazoo pumps veto, but my understanding is
that it actually was not about flooding in the Mississippi
River. So it was actually about pumping backwater behind the
levees. That is my understanding, and that 67,000 acres of
wetlands were involved in that decision.
Mr. Landry. Have you ever lived in an area that is prone to
flooding?
Ms. Stoner. You know, interesting that you ask that. I grew
up in a flood plain, sir. I grew up in the flood plain on the
south fork of the Shenandoah River in Waynesboro, Virginia. And
my house was frequently flooded. And I am very interested in
protection against flooding.
Mr. Landry. Well, I hope that EPA never vetoes any of the
permits that would protect that area you used to live in. I
yield back.
Mr. Gibbs. Representative Young?
Mr. Young. Thank you, Mr. Chairman. Ms. Stoner, the newly
created enhancement review procedures is--it is the EPA, not
the Corps, that determines permit review criteria and--coal
mining section and 404 permits. So who is making the ultimate
determination of those permits, the Corps, the EPA regional
offices, EPA headquarters, or the administrator?
Ms. Stoner. Normally, decisions about Corps 404 permits are
made by the Corps.
Mr. Young. By the Corps?
Ms. Stoner. Yes, sir.
Mr. Young. OK, that is enough. What authority was EPA
acting under when it created new enhanced review procedures
instead of the Corps regulations to process certain coal
permits as selected by EPA? What authority?
Ms. Stoner. It didn't take away the authority of the
Corps----
Mr. Young. What authority did it act under?
Ms. Stoner. This is intergovernmental relations within the
executive----
Mr. Young. What authority did the EPA act under?
Ms. Stoner. We are acting under the Clean Water Act, our
authority, the Corps' authority----
Mr. Young. So, you usurped the Corps?
Ms. Stoner. No, sir.
Mr. Young. That is what--my interpretation.
Ms. Stoner. It is about----
Mr. Young. That is enough. Yes or no, do you believe that
implementation enhanced review procedures represents a change
in our prior regulations?
If yes, why didn't the Agency go through the formal
rulemaking process to make these changes to the regulatory
program, particularly since the CWA requires any changes to the
404(b)(1) guidelines must be done through rulemaking?
Ms. Stoner. They are not regulatory changes.
Mr. Young. They are not? So you don't consider this a
substantive change?
Ms. Stoner. No, sir. They are not a regulatory----
Mr. Young. It is not a substantive change, yet you are
overcoming the Corps.
Ms. Stoner. And it doesn't overcome the Corps. We are
working with the Corps. That is what the enhanced----
Mr. Young. The Corps doesn't agree with you.
Ms. Stoner. Well, that is----
Mr. Young. And I have talked to the Corps. You are not
working together. You are running roughshod, as an agency. And
I think you can tell that Congress understands that.
Ms. Stoner. I meet with the Corps on a regular basis.
Mr. Young. You meet with the Corps, but you are not
working. You are dictating to the Corps.
Ms. Stoner. We work closely with----
Mr. Young. Now--that is enough.
Ms. Stoner [continuing]. Congressman.
Mr. Young. Under the MOA issued by the administration
almost 2 years ago, the administration stated new procedures
were then necessary to streamline and coordinate the permitting
process. And how do you explain that the new process has only
resulted in an issuance of eight permits in nearly 2 years?
Ms. Stoner. We--you are not counting the 42 that we issued
immediately.
Mr. Young. No, what----
Ms. Stoner. More than 50 had been----
Mr. Young. In 2 years you issued eight permits. After this
was organized, 2 years, eight permits. How is that a
streamline?
Ms. Stoner. Since January----
Mr. Young. It is not a streamline, and you and I know it.
Ms. Stoner. Since January of 2009, it has been more than
50.
Mr. Young. Ms. Stoner, I have to tell you I am not a happy
person with EPA. I think you have gone far beyond your
authority. You have been dancing very well at this hearing. And
what you are doing is using abusive power against the
legislative intent.
I watched this in Alaska. You came in and set different
standards on arsenic, which is natural, after we put a plan in
20 years ago. You changed it, and cost the community $37
million to meet your standards without any science. The science
you have is flawed.
Now, what I am suggesting to any State or any area to have
a good set of scientists and contradict what you do. You are
doing--you have an agenda. Your agenda does not make this
country productive. It takes away jobs from this country. We
are not producing in this country. And you look at every time
we try to produce something, you are involved. And your
administrator is directly involved. This administration has a
new agenda. The agenda is non-production. No working for the
working man. People sitting in their little office, making
regulations.
Mr. Chairman, this has to stop, and the only way it can
stop is de-fund them. Go through each area and de-fund when it
doesn't make sense and when the science is not there. When they
don't listen to the other science, they use the science of a
university to get the money from this Congress. And that is
where we have to stop it. I yield back.
Mr. Gibbs. I thank you. Representative Lankford?
Mr. Lankford. Thank you, Mr. Chairman. Thanks for being
here, as well.
Obviously, we have a lot of questions and a lot of
concerns. The last time you were here I asked you point blank
if there was a State that you could identify their department
of environmental quality, or whatever term they may use, that
was incompetent for the task on that. At the time, you said
back to me, ``We don't know of a State, they are all working,
they are all doing a great job.'' I affirm that, that is great.
The issue comes up in a situation like this, where a State
is saying, ``We are walking through this process, we are trying
to establish it,'' EPA steps over the top of them and says,
``No, we have got this, we are now going to take this on.''
And though the science comes up--and you referenced earlier
we have a high propensity for, or higher propensity for certain
diseases and things in this area--there is not a causal
relationship that I am hearing from that science, unless you--
unless there is something I missed on that. To say that this
particular area has certain health issues, and then to say,
``And it is because this water issue'' is a different gap.
Is your science saying that it is causal, or is your
science saying that it exists here? Because there are lots of
issues that could be causing that. Is there something that you
are saying that is causing it?
Ms. Stoner. There are two studies, one about cancer rates
and another about other health indices that show a correlation
between degraded streams, between mountaintop mining, and
between people's health issues in Appalachia. So I am referring
to the correlation that was found to be statistically
significant by scientists at Virginia Tech, University of West
Virginia, and the medical school at University----
Mr. Lankford. Part of what you gave to us today.
Ms. Stoner. Yes, sir.
Mr. Lankford. Because I would be interested--I didn't get a
chance to see that. Because, obviously, there are a lot of
assumptions that are made to say, ``This occurs, and so
naturally it is because of this, because we don't like this at
this point, and so we will try to shut this down,'' whatever
the ``this'' is at the moment of that.
Let me shift a little bit. Obviously, the Federal
Government, for years, has promoted coal. You go back to the
Carter administration, as I mentioned earlier, the Carter
administration was a leading advocate for coal, and pushing a
lot of companies to start using more and more and more of that.
Now they are, now America is very focused in on using coal,
which has been very affordable and has been very efficient for
us, and now there is--this administration is pulling away from
it as fast as they possibly can, and there is a shift on that.
We are seeing that not only in the mining of that, but also
in coal production. Let me give you an example from my State,
the 316(b). Cooling ponds next to a coal-fired power plant have
some fish that are getting caught into it, and so EPA has
recently contacted them and said, ``You are going to have to
change the way that you do your intakes.''
Is there a certain number--because they are trying to
find--is there a certain number of minnows--and that is what it
is in one of these ponds, literally, it is bait fish that are
getting caught against this--is there certain minnows, a number
out there, that they can go by and say if there are 300 minnows
killed in a year that is OK, if there is 1,000 it is not OK?
How is that guideline working? Because it is moving for them,
and it is about to cost Oklahoma consumers of energy millions
of dollars to make an adjustment.
Ms. Stoner. First of all, let me just say EPA actually is
not working to end coal mining. What we are doing is addressing
coal mining pollution and protecting public health and the
environment under the statutes that we are authorized to
implement.
Mr. Lankford. All right.
Ms. Stoner. With respect to 316(b), we are currently
working on standards for existing facilities--I don't know if
this is an existing----
Mr. Lankford. It is an existing facility.
Ms. Stoner. And those standards are not yet complete.
Mr. Lankford. Correct. And they have been years in the
process.
Ms. Stoner. That is right.
Mr. Lankford. And now--waiting, and now it is all coming
down.
My concern on it is there is no standard. There are
millions of dollars in now having to retrofit something where
there is something--and I am going to ask the same question. If
there is going to be some standard implemented for how many
minnows can be killed in an area, I am going to ask the same
question. How many birds can be killed at a wind farm? Will EPA
also be submitting--you know, we can't have more than 10 birds
a year killed at a wind farm, or else there is going to have to
be some new guidance, some new something that happens in that.
This is the moving process that is occurring in every form
of energy production currently, that as soon as mining starts
or shifts or begins to plan, they can't plan because they don't
know what the EPA guidelines are going to be. These plants
can't change on a dime. They are 10 years in process to get up
to speed.
And currently, no one knows what type of energy is the new
form of energy. Because if they put up wind offshore, Sierra is
going to hit them because there are birds being killed there.
So maybe that is going to last long, maybe that is not going to
last long. We cannot do nuclear now, and we cannot do, really,
coal now, because the permitting takes so long, and we don't
know if that is going to be acceptable.
And for the energy companies, they have no idea about rules
and now water streams and--they have no idea. ``We would like
to shift to natural gas.'' Oh, no, wait. EPA is doing a whole
big study now on hydraulic fracking. My State in Oklahoma,
since 1949, has been doing hydraulic fracking. Come drink our
water and breath our air. It is a beautiful State.
No one knows what energy they can use. You are shutting
down the production of energy, based on these arbitrary rulings
and guidelines that go out that may have some scientists on it,
but there is no correlation between reality of how things
really get paid for and what really occurs. We have got to have
some stability.
If there is anything the EPA can give to us, it is a break
in the regulatory environment and provide our consumers some
stability so that we can catch up. That would be a great gift
to our economy. And with that, I yield back.
Mr. Gibbs. Thank you. Representative Bucshon?
Dr. Bucshon. Thank you for coming. I am a cardio-vascular
surgeon, so I know something about peer-reviewed studies. And
the question I have is you mentioned the environmental impact
studies that were published and peer reviewed. And who were the
scientists that peer-reviewed them and their organizations?
Any--I mean do any of the studies that you are saying that
are applying to this, did they come from outside of Government
organizations or organizations that were contracted by the
Government to provide that data?
Ms. Stoner. Well, there are a number of studies. As I said,
more than 100. So there are EPA studies that are peer-reviewed
by our science advisory board. There are also studies from----
Dr. Bucshon. Can I ask a question? Who appoints the science
advisory board? Is that someone--does the administration pick
the members of that?
Ms. Stoner. I don't know the answer to that question. I
would be happy to submit it for the record.
Dr. Bucshon. You know, because I think that is critically
important.
The point I am trying to make here is that if you are
quoting peer-reviewed studies, like in health care--for
example, would you believe a peer-reviewed study of a product
if the companies that make the product did the peer review?
Ms. Stoner. That would be a factor to look at in evaluating
the study.
Dr. Bucshon. That is just a yes or no. I mean would you
believe--do you think the American people would believe a study
on a product that is being made, if the people that make--or
companies making the product did the peer reviewing, and then
said it was peer-reviewed?
Ms. Stoner. There are such studies all the time.
The other studies that I was referencing were ones from
universities----
Dr. Bucshon. My point is this. If your peer review that you
are talking about are all Government agencies, or people who
the Government has contracted on behalf of the Government to
give peer review, that is not peer review. What peer review is,
is independent people that have no financial or political
motivation about what the results show.
And so, I will--we will--it will be interesting to see
those studies and see that--whether or not there is any of
those type of folks that are telling you the same thing, or
else--or whether or not this is all stuff that the Federal
Government is doing. And I will be honest with you. As a
citizen I don't have a great deal of confidence that, because
of politics and because of other reasons, there won't be some
outside thing motivating the results as a means to an end.
The other question I have is do we have baseline
conductivity, water--conductivity studies from water all around
the country in different areas? You guys just--do you have
just, you know, streams, rivers, everywhere, do you have, like,
a whole list of what the--just baseline is of conductivity?
Ms. Stoner. Congressman, I have some information on the
science advisory board. So we solicit nominations for reviewers
from outside entities, including from mining representatives.
Dr. Bucshon. Great.
Ms. Stoner. And the other studies are from universities.
And I think that the universities know how to do peer review
work.
Dr. Bucshon. They may, unless you have contracted with them
for the information.
Ms. Stoner. No, no. I am talking about studies they have
done----
Dr. Bucshon. That is a big, big difference.
Ms. Stoner. That they have done, not that we----
Dr. Bucshon. Well, they have done the studies. But if the
EPA contacted them and they--and asked them to do the study and
they are getting funded through some Government organization to
do the study, that is not an independent peer review. That is
a--and the--because I have trained at universities, I have went
to multiple universities. I understand the whole university,
you know, publish or perish environment. I understand all that.
And if--say, for example, if a drug company came to a
university and said, ``Could you guys test our drug,'' and the
drug company was going to pay them a bunch of money to do it,
would you believe that? I wouldn't.
Ms. Stoner. No, I understand about the conflicts of
interest point that you are making. It is an excellent point.
Dr. Bucshon. Yes.
Ms. Stoner. I would be happy to provide more information
about the peer-review process.
Dr. Bucshon. That would be great. On the baseline
conductivity, I am interested in how you establish--first of
all, how you establish what is safe. And do we have baseline
conductivity--and, for that matter, you know, particle studies
like the selenium you are quoting--from multiple streams
throughout the country to give us--you know, to see how--if
there is a scientific baseline?
Do we have that? Because if I was--as a scientist, want to
say, ``OK, I am going to set a level,'' I would want
information from all my streams and waterways from all over the
country, and I would look at all that, and I would say, ``Well,
here is what is reasonable.''
Because I know you are making the distinction between the
water and what is survivable by fish or other things, and that
is a good distinction. But on the other hand, then where are
you getting that survivability data from? Who studied it, and
where is the baseline--how is the baseline established?
Ms. Stoner. We have an existing water quality criteria for
selenium, so we have done----
Dr. Bucshon. From--where did that come from, though? That
is the--see, I understand that you have criteria, but the
question is, who did it? Did you--if you did it, do you have
scientific data that has shown it? Have they done--you know,
that is the question.
Ms. Stoner. Right. We go through a rigorous scientific
process to do a water quality criteria. And we would have data
from different areas of the country for selenium----
Dr. Bucshon. Could you please provide all of the water
quality data based on conductivity and all other foreign
products that are in water from every--from all 50 States, for
example, so you can help the Congress establish what is
actually out there as a baseline?
Because if you set--and I can tell by your expression you
are not quite understanding what I am saying----
Ms. Stoner. That is true.
Dr. Bucshon [continuing]. Or whether it is useful or not.
But in medicine, for example, if you are going to establish a
baseline on anything, right, you have to have a broad, diverse
data. You can't just pull--you just can't go to one area, one
State, and say, ``This is how this works here.'' If you are
establishing this for the United States, I would think that you
would want to see what your baseline levels are everywhere, and
establish a reasonable baseline.
Ms. Stoner. Yes, we have a strong scientific peer review
process for all those water quality criteria. We get input from
outside entities for all of those. In the water quality
criteria for conductivity we did have review by the science
advisory board, which strongly endorsed our science and said it
was a model for future water quality studies.
Dr. Bucshon. OK. I am over time, but what I would like to
see is I would like to see the water quality data from around
the country that the EPA uses to establish its baselines. Thank
you.
Mr. Gibbs. Thank you. I think there is a lot of things that
just aren't reconciling with some of your statements and what
some of our information is. So we are going to have another
round of questioning, and I am going to start that off.
It is my understanding, when you talk about the
conductivity that peer reviewed, it is my understanding that
the EPA actually put out that guideline before it was peer-
reviewed, is that correct?
Ms. Stoner. We put it out in draft before the peer review,
and then took public comment in, went through the peer review
with the SAB. That is correct.
Mr. Gibbs. OK. Because you know what is happening is some
of these--it is kind of de facto taking effect.
I am a little concerned. It is my understanding it took--
the EPA spent more than 15 years to revise the aquatic life
criteria for selenium, and that effort is still not completed.
And it is--apparently it has just taken you, literally, months
to develop a benchmark for conductivity--a matter of months.
Can you tell me the difference in developing a water
quality criteria versus developing a benchmark, and then
explain how these two limits differ in their use?
Ms. Stoner. A water quality criteria is the science that
EPA provides to States to use in setting water quality
standards. It is done under a statutory provision, and has
processes associated with it, including the science that I was
just discussing with the other congressman.
The benchmark is not as formal. It is based on science that
we have been acquiring over the past several years. As I
indicated, we did get that science peer-reviewed. But it is a
benchmark. It is not a water quality standard, and it is not a
water quality criteria. So it is used to provide guidance to
States, for example, in interpreting the narrative criteria
that they have.
Mr. Gibbs. You referenced the science advisory board, SAB,
panel. Apparently raised a number of issues that warranted
further study, which certainly suggested that science is
anything but conclusive, with respect to conductivity. How do
you explain the response to the SAB's concerns?
Ms. Stoner. We are revising the guidance, the guidance that
was issued April of last year, we are revising it. It will
reflect the recommendations from the SAB in full when we finish
that guidance document.
Mr. Gibbs. Did they ever respond to the National Mining
Association's report?
Ms. Stoner. They examined the National Mining Association's
report, which--my understanding--was not peer-reviewed. But
they did evaluate that in their final report. The office of
research and development did, looked at the National Mining
Association input.
Mr. Gibbs. I mean I don't think they responded to them,
though. I don't believe they did.
Ms. Stoner. If there was correspondence with them, I am not
aware of it. But I do know that they received the report, I
actually saw that they had received it and were considering it.
Mr. Gibbs. What is the cost of replacing coal provided by
these mines with other energy resources? Are these other energy
resources currently available domestically through currently
permitted operations? If not, what countries would we have to
trade with to obtain these energy resources? And what are the
national security implications of relying on energy resources
from these countries, since we are not permitting coal
operations?
Ms. Stoner. Well, it is my understanding that we have
excess stockpiles of coal in this country at this point. I am
not an expert in the mix of energy sources. My work relates to
protecting water quality and human health and the environment.
And so, the mix of energy sources, that is actually
something that others, including the Department of Energy,
would work on with the U.S. Congress.
Mr. Gibbs. So it is not in consideration, then. OK.
What EPA contracted with Morgan Worldwide to assess the
alternative configurations for the Spruce No. 1 mine in August
2010. A year after that, they asked the Corps to modify,
suspend, or revoke the permit, 4 months after they issued a
proposed determination. Why did EPA contract with, you know,
Morgan Worldwide and offer alternatives? But I don't believe
Arch-Coal was notified of those alternatives.
Ms. Stoner. You are correct that we contracted to get
information. That report was delivered last fall, I believe, in
the hope of having successful discussions with Arch.
Mr. Gibbs. But you revoked the permit first, didn't you?
Ms. Stoner. No, sir. We already had that information. We
had been successful in working with Arch in other cases,
including Coal-Mac, and we were preparing for a negotiation
with them, in the hope of finding a way to have the permit be
issued to protect water quality----
Mr. Gibbs. I believe you didn't disclose that to Arch until
afterwards, so--after the revocation was issued.
Ms. Stoner. They were informed of a number of different
approaches that could be used to meet the requirements of the
Clean Water Act. They did not express an interest in having
further negotiations.
Mr. Gibbs. But is it true to say that they weren't formally
informed before the revocation was issued?
Ms. Stoner. I am talking about discussion of alternatives
in general. We had discussions, including region three had
extensive discussions with Arch about sequencing as a means of
meeting the requirements of the Clean Water Act. Arch did not
express an interest in further modifications to the permit at
the time that U.S. EPA headquarters met with them.
Mr. Gibbs. Back in January, I believe this year, the
President issued some executive order for regulatory
streamlining. Enhanced coordination, how does that mesh with
that?
Ms. Stoner. It totally meshes with it. What we are trying
to do is get agencies to work together expeditiously to make
determinations and provide the clarity that industry wants on
what is necessary----
Mr. Gibbs. I think there has also been additional delays.
Ms. Stoner. It is not intended to result in additional
delays. And we have actually issued more than 50 permits. We
have not completed that work. You are absolutely correct about
that. But we are working hard at it. It does require some time,
sometimes, to find a solution, an innovative solution that will
work for everyone. But we are trying to do that. Sometimes it
takes time, but it does produce results that we are proud of
when we are able to protect water quality and public health and
have coal mining continue.
Mr. Gibbs. This is my last question. Would you agree that
revoking a permit after they went through a 10-year
environmental impact study, revoking it 3 years after the fact,
just because you claim there is new science, what precedent or
what signal does that send out to all sectors in our economy?
I am really concerned about this issue. Who is going to put
capital together? Who is going to risk capital if they have to
get permits, knowing that they are not in violation of their
permit but they can still lose their permit, because of a
policy decision in Washington, I mean, doesn't that concern the
EPA, what that is going to do to stifle economic growth and
jobs?
Ms. Stoner. EPA is very concerned about growth and jobs, as
well as protection of human health and the environment. We have
expressed concerns about that particular permit for a very long
time. Most of the delay to which you refer has to do with
litigation, delay associated with litigation.
But we worked very hard to try to find a solution that
would have allowed that permit to be issued. We would like to
still see a solution that would allow permitting to go forward
for any mine in West Virginia that can meet the requirements of
the Clean Water Act.
Mr. Gibbs. Well, we need to move that on. We agree with
you, and I would like to see that be handled, you know, as fast
as possible.
Representative Cravaack, do you have any more questions?
Mr. Cravaack. Thank you, Mr. Chairman. Ms. Stoner, I am
trying to get to the basis of understanding why you produced a
guidance. Why produce a guidance? Why not go through a formal
rulemaking?
Ms. Stoner. Is this a question about the waters of the
U.S., or about the mountaintop mining guidance?
Mr. Cravaack. Any. Any guidance coming out of the EPA.
Ms. Stoner. OK.
Mr. Cravaack. Why would you produce guidance, versus a
rulemaking process?
And in the guidance you just produced in 2010, you said
there was public input to the guidance?
Ms. Stoner. If you are talking about the mountaintop--I am
sorry, you are asking me about two different kinds of
guidances, so----
Mr. Cravaack. All right. No, I am talking about any
guidance coming out of----
Ms. Stoner. Any guidance. Well, there is some guidance--
again, guidance is not a term that means something specific. So
it can be correspondence, it could be white papers, it could be
all kinds of things. And part of what we do is provide
information out to our regions, out to States, out to the
regulated entities that indicate how we are interpreting the
law.
The law is binding, the guidance is not binding, but we put
that out, and we figure out what is it that is the best means
of putting out that information. Sometimes it is on the
Internet, you know, on our home page. It could be on all kinds
of different--and then we use all these other methods to gather
information.
So we have been talking about advisory committees,
stakeholder meetings. We have regular dialogue with members of
the public from various different sectors to get input. So it
is not a static process, it is a process of accommodation and
working----
Mr. Cravaack. OK.
Ms. Stoner [continuing]. To try to get information out to
do our job.
Mr. Cravaack. I understand. OK, so let's specifically go
with the mountaintop. OK. Was there public input prior to that,
to your guidance there?
Ms. Stoner. It was put out, and public input was solicited
at the time that it was put out. That is correct.
Mr. Cravaack. So after it was put out.
Ms. Stoner. Yes, sir.
Mr. Cravaack. The guidance was already put out, and then
there was public input after that. And how long was the public
input allotted? How long?
Ms. Stoner. I believe it was 6 months. I think it was----
Mr. Cravaack. OK.
Ms. Stoner. No, actually, it was through the end of the
calendar year, I think. So that is from April 1 to the end of
the----
Mr. Cravaack. All right. For the record, then, can this
Congress be--can Congress be unequivocally assured that no
agency, entity, or individual will be prosecuted, denied, or
withdraw permitting, or made or enticed to comply with any
guidance coming out of the EPA?
Ms. Stoner. Only the statutes and regulations are the basis
for those actions.
Mr. Cravaack. OK--I just want a yes or no.
Ms. Stoner. Not based on the guidance, that is right.
Statutes and regulations guide those----
Mr. Cravaack. So, just to be clear, for the record, the EPA
will not prosecute, deny, or withdraw any permitting, or made
to entice any agency, entity, or individual to comply with any
guidance out of--coming out of the EPA.
Ms. Stoner. Only the statutes and the regulations. That is
correct.
Mr. Cravaack. OK. Thank you very much, sir, and I yield
back.
Mr. Gibbs. Representative Lankford?
Mr. Lankford. Let me finish up on that comment for
clarification.
So, someone can ignore a guidance, and they will be fine?
If a guidance comes out and they get a record, they are in the
process of doing surface mining, whatever it may be, they get a
guidance document, here is a letter from EPA, ``Here is our
guidance,'' they can ignore that, that is fine?
Ms. Stoner. The guidance is our interpretation of the
statutes and the regulations. The statutes and regulations are
binding, the guidance is not.
Mr. Lankford. OK.
Ms. Stoner. So it reflects our interpretation of those. And
guidances always indicate that in site-specific circumstances,
something different may apply, but, ``Here is our general
interpretation of the statutes and regulations, those are the
legal requirements.''
Mr. Lankford. OK. So they can ignore--they can say,
``That's nice, I can ignore that,'' and just continue to move
on because that is not binding, that is an opinion? Is there--
is guidance typically the first step towards rulemaking in
saying, ``Here it comes, here is the guidance, this may become
rule?''
Ms. Stoner. Sometimes. Again, guidance can be used for many
different purposes. But the statute--the regulations are what
people need to follow, so they need to make sure----
Mr. Lankford. Right.
Ms. Stoner [continuing]. That they are doing that.
Mr. Lankford. I am processing through just our conversation
today and the multiple times that I appreciate that you have
come back and said, ``We are not going after coal. We are not
trying to shut down coal.'' The difficulty for me is processing
through that from what I see on the ground.
Currently, there is a push to make coal fly ash a hazardous
waste, which will make disposal of that very expensive. It goes
into a lot of products: in cement, it goes into roofing
materials. A lot of things that are out there, that will
dramatically increase the cost of how to handle coal on that
side of it.
Mining permits are slow, or we now have one pulled.
Retrofit, costs are going up dramatically, because this
requirement for best technology, so anyone can invent a new
technology, no matter how expensive it is, and say, ``Now this
is the new best technology,'' and there is a push to now try to
retrofit a plant dealing with that.
Regional haze, all of the changes that are happening with
that currently, and everyone is pointing directly at coal and
saying, ``This is the culprit on it.'' 316(b) intake, it is
shifting--the cooling towers are having to shift around,
another dramatic increase in cost.
This administration is pushing to remove loans from rural
electric companies that want to be able to do coal plants, and
saying they can do it if they want to do wind, but they can't
do it if they want to do coal.
We are talking about carbon capture.
Which one of these things would tell any investor coal is a
good idea, if you want to invest and do something, do it in
coal? There are eight things I just listed that are very
specific that are--all seem to be going after coal. While I am
hearing us say, ``We are not going after coal,'' everything
that seems to be coming out of EPA and this administration is,
``Oh, but yes, we are. We are just saying we are not.''
And again, no one can evaluate motives. I am just telling
you what I am seeing on this side of it. So that is the
struggle that we are--let me ask you a specific question. I
know that is not something you can really respond to on that.
How long should a permit take? What is the target length of
time, if they are going to request a permit from EPA? I know
there is a given time. How long should it take?
Ms. Stoner. It really depends on what the permit is for. So
the bigger the impacts, the more likely a significant
degradation, as with the more than 6 miles of streams that were
proposed to be filled with Spruce Mine. It does take longer
with a bigger, more complicated, more significant matter.
As I indicated, most actions, most 404 actions, go through
the general permitting process----
Mr. Lankford. Which takes how long?
Ms. Stoner. Less than 90 days.
Mr. Lankford. OK.
Ms. Stoner. That is--so it is designed to streamline those
things that can go more quickly, and to spend more time on the
more significant actions with more likely impacts on public
health and the environment.
Mr. Lankford. OK. I know you know this, we have talked
about it before. I am tracking very carefully, because I am
watching what is happening to coal, and now seeing companies
that are trying to shift to natural gas, but also seeing on the
horizon all of the studies that are now out there on fracking,
knowing that the price of natural gas is dropping dramatically
because of the supply we are able to pull out because of the
fracking that is going on.
It is the great unknown out there. Again, we are back to
power plants. Can't really plan, don't really know what to
predict, because they don't know what EPA--if they are going to
do to natural gas what they are doing to coal, then who knows
what to predict on that one?
Who is better for regulating fracking, a State or the EPA?
Ms. Stoner. I don't know that I can answer that right now.
You know, we have studies going on on fracking. There are----
Mr. Lankford. Do we have a date on that yet, when that is
going to be complete?
Ms. Stoner. I believe it is still more than a year out,
when we expect to have that study done from the office of
research and development on fracking.
You know, in general, the programs are run by the States,
and it is our preference, in general, to have State-run
programs for the underground injection control, for the Clean
Water Act permitting, and so forth. And so that is generally
our preference.
We are trying to figure out how well things are being done
now on fracking. It is, you know, as you indicated, new, and a
lot is still to be learned about it, outside of Oklahoma----
Mr. Lankford. Well, yes. Fracking is not new.
Ms. Stoner. Right.
Mr. Lankford. I mean since 1949 it has been going on in our
State.
Ms. Stoner. But----
Mr. Lankford. This is new to some areas.
Ms. Stoner. Right.
Mr. Lankford. It is not new to other areas.
Ms. Stoner. No, I understand your point. And the
technologies that are being used now are new.
Mr. Lankford. Correct.
Ms. Stoner. And we are trying to ensure that we are
protecting public health. There is a lot of concern about that.
And one of the things that we are doing is looking at where
fracking has occurred already, to figure out what is the best
way to do that.
But our general answer would be we like to have States run
the programs, not EPA. But I can't say that there isn't
anything that EPA would need to do to ensure that public health
is protected, with respect to fracking. There may be things
that we need to do, as well.
Mr. Lankford. Well, thank you. I appreciate that. I yield
back.
Mr. Gibbs. We are going to close this down, but just kind
of a little bit of follow-up.
Last week we had Ms. Teresa Marks, who is the director of
the State of Arkansas Department of Environmental Quality, and
she talked about this issue with the guidance. This is a little
bit disturbing, because you put out guidance and you say it is
not binding. But then in some instances it could be in conflict
with State law. And she testified that they are in a Catch-22:
they are going to violate State law or they are going to
violate the guidance, which sometimes becomes law by de facto
standards.
And you talk about we need to put out--you know, you are
working to increase the certainty versus uncertainty. And it
seems to me there is a huge issue there where you are creating
massive uncertainty. Can you respond to that?
Ms. Stoner. The guidance is not binding. So it actually, I
don't think, could put States in a bind in the way that you are
talking about, where they can't comply with the guidance and
with something else, because the guidance is not binding.
Mr. Gibbs. I think what is happening in the practice, you
know, they don't know what to do. And then, of course, in the
private sector a person that is in business, then they really
get confused, because they don't know what is going to come
after them, litigation. And so it is creating a huge problem.
And I think that we had two State directors of State EPAs
testify to that fact. So I think you need to be--recognize that
fact, that you are creating more uncertainty, and it is just
bad public policy, I think, and you know, we sent a letter I
had 172 co-sponsors on that, instead of putting out all these
guidances and interim guidances, you need to move forward under
the law with the regulatory process and have the public
hearings and set the rules under that framework that is
established by law. Because you are kind of circumventing all
that, and it is becoming de facto rules and creating problems
and problems to economic growth and jobs.
Just in closing, I need to say that we are really
concerned. Administrator Jackson was before the Ag committee a
few weeks ago, and both sides of the aisle had massive concerns
about what this Agency is doing. And when I see State agencies,
the EPAs, having the same concerns, there is a problem here.
And it needs to be addressed, because we are not putting out
the certainty and the confidence for the private sector to grow
their businesses and create jobs. And the EPA is a massive
hurdle blocking that; those investments. And I think you need
to be aware of that.
So, this will conclude the second hearing. The meeting is
adjourned.
[Whereupon, at 1:17 p.m., the subcommittee was adjourned.]