[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
EPA'S APPALACHIAN ENERGY PERMITORIUM: JOB KILLER OR JOB CREATOR?
=======================================================================
HEARING
before the
SUBCOMMITTEE ON REGULATORY AFFAIRS,
STIMULUS OVERSIGHT AND GOVERNMENT SPENDING
of the
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
JULY 14, 2011
__________
Serial No. 112-117
__________
Printed for the use of the Committee on Oversight and Government Reform
Available via the World Wide Web: http://www.fdsys.gov
http://www.house.gov/reform
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
DARRELL E. ISSA, California, Chairman
DAN BURTON, Indiana ELIJAH E. CUMMINGS, Maryland,
JOHN L. MICA, Florida Ranking Minority Member
TODD RUSSELL PLATTS, Pennsylvania EDOLPHUS TOWNS, New York
MICHAEL R. TURNER, Ohio CAROLYN B. MALONEY, New York
PATRICK T. McHENRY, North Carolina ELEANOR HOLMES NORTON, District of
JIM JORDAN, Ohio Columbia
JASON CHAFFETZ, Utah DENNIS J. KUCINICH, Ohio
CONNIE MACK, Florida JOHN F. TIERNEY, Massachusetts
TIM WALBERG, Michigan WM. LACY CLAY, Missouri
JAMES LANKFORD, Oklahoma STEPHEN F. LYNCH, Massachusetts
JUSTIN AMASH, Michigan JIM COOPER, Tennessee
ANN MARIE BUERKLE, New York GERALD E. CONNOLLY, Virginia
PAUL A. GOSAR, Arizona MIKE QUIGLEY, Illinois
RAUL R. LABRADOR, Idaho DANNY K. DAVIS, Illinois
PATRICK MEEHAN, Pennsylvania BRUCE L. BRALEY, Iowa
SCOTT DesJARLAIS, Tennessee PETER WELCH, Vermont
JOE WALSH, Illinois JOHN A. YARMUTH, Kentucky
TREY GOWDY, South Carolina CHRISTOPHER S. MURPHY, Connecticut
DENNIS A. ROSS, Florida JACKIE SPEIER, California
FRANK C. GUINTA, New Hampshire
BLAKE FARENTHOLD, Texas
MIKE KELLY, Pennsylvania
Lawrence J. Brady, Staff Director
John D. Cuaderes, Deputy Staff Director
Robert Borden, General Counsel
Linda A. Good, Chief Clerk
David Rapallo, Minority Staff Director
Subcommittee on Regulatory Affairs, Stimulus Oversight and Government
Spending
JIM JORDAN, Ohio, Chairman
ANN MARIE BUERKLE, New York, Vice DENNIS J. KUCINICH, Ohio, Ranking
Chairwoman Minority Member
CONNIE MACK, Florida JIM COOPER, Tennessee
RAUL R. LABRADOR, Idaho JACKIE SPEIER, California
SCOTT DesJARLAIS, Tennessee BRUCE L. BRALEY, Iowa
FRANK C. GUINTA, New Hampshire
MIKE KELLY, Pennsylvania
C O N T E N T S
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Page
Hearing held on July 14, 2011.................................... 1
Statement of:
Capito, Hon. Shelley Moore, a Representative in Congress from
the State of West Virginia................................. 4
Mackall, Tom, president, Sterling Mining; Chris Hamilton,
senior vice president, West Virginia Coal Association; Joe
Lovett, executive director, Appalachian Center for Economy
and the Environment; Roger Horton, chairman, Safety
Committee Local 5958, co-chair, Mountain Top Mining
Coalition; and John Stilley, president, Amerikohl Mining
Inc........................................................ 15
Hamilton, Chris.......................................... 21
Horton, Roger............................................ 49
Lovett, Joe.............................................. 32
Mackall, Tom............................................. 15
Stilley, John............................................ 57
Stoner, Nancy, Acting Assistant Administrator for Water, U.S.
Environmental Protection Agency; and Margaret E. Gaffney-
Smith, Chief, Regulatory Community of Practice, Army Corps
of Engineers............................................... 76
Gaffney-Smith, Margaret E................................ 90
Stoner, Nancy............................................ 76
Letters, statements, etc., submitted for the record by:
Capito, Hon. Shelley Moore, a Representative in Congress from
the State of West Virginia, prepared statement of.......... 7
Gaffney-Smith, Margaret E., Chief, Regulatory Community of
Practice, Army Corps of Engineers, prepared statement of... 92
Hamilton, Chris, senior vice president, West Virginia Coal
Association, prepared statement of......................... 23
Horton, Roger, chairman, Safety Committee Local 5958, co-
chair, Mountain Top Mining Coalition, prepared statement of 51
Lovett, Joe, executive director, Appalachian Center for
Economy and the Environment, prepared statement of......... 34
Mackall, Tom, president, Sterling Mining, prepared statement
of......................................................... 17
Stilley, John, president, Amerikohl Mining Inc., prepared
statement of............................................... 59
Stoner, Nancy, Acting Assistant Administrator for Water, U.S.
Environmental Protection Agency, prepared statement of..... 79
EPA'S APPALACHIAN ENERGY PERMITORIUM: JOB KILLER OR JOB CREATOR?
----------
THURSDAY, JULY 14, 2011
House of Representatives,
Subcommittee on Regulatory Affairs, Stimulus
Oversight and Government Spending,
Committee on Oversight and Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 3:27 p.m., in
room 2154, Rayburn House Office Building, Hon. Jim Jordan
(chairman of the subcommittee) presiding.
Present: Representatives Jordan, Kelly, Kucinich, and
Speier.
Staff present: Ali Ahmad, communications advisor; Joseph A.
Brazauskas, counsel; Sharon Casey, senior assistant clerk; John
Cuaderes, deputy staff director; Adam P. Fromm, director of
Member services and committee operations; Linda Good, chief
clerk; Christopher Hixon, deputy chief counsel, oversight; Mark
D. Marin, director of oversight; Kristina M. Moore, senior
counsel; Jeff Solsby, senior communications advisor; Nadia A.
Zahran, staff assistant; Ronald Allen, minority staff
assistant; Jaron Bourke, minority director of administration;
Claire Coleman, minority counsel; and Lucinda Lessley, minority
policy director.
Mr. Jordan. The Subcommittee on Regulatory Affairs and
Government Spending will come to order.
We'll do opening statements, get right to our special guest
witness on the first panel, the gentlelady from West Virginia--
and great to have you with us.
It may come as a surprise to many Americans that the United
States' combined energy resources are the largest on Earth,
eclipsing Saudi Arabia, China, and Canada combined. Moreover,
America's reserves of coal, the source of half of all
electrical power in the United States, are unsurpassed,
accounting for over 28 percent of the world's total reserves.
The United States has approximately 206 billion tons of
recoverable coal, which could help satisfy our demand for
energy for centuries.
Counter to the claims of the President, coal and other
fossil fuels are not, ``yesterday's energy.'' They are central
to our economy's productivity and a critical component of our
Nation's competitive advantage. Make no mistake, renewable
energy is worthwhile. But the fact remains, 85 percent of the
global energy is set to come from fossil fuels until at least
2035.
Much of the coal reserves here at home are located in the
mountains of Appalachia and are found in West Virginia,
Pennsylvania, Kentucky, Ohio, and Virginia. Of the 1.08 billion
tons of coal produced in the United States in 2010, 334 million
tons came out of Appalachia. The rest of the coal was produced
primarily in the State of Wyoming.
Coal is more than an affordable source of energy. For
generations, coal production has provided Americans with good-
paying jobs. The average salary of a coal miner is $60,000.
Moreover, the industry supports thousands of service jobs. A
study by Penn State University demonstrates that every coal
mining job supports 11 others in the community. It is important
to remember that when we are talking about this industry, it
also includes truckers, railway workers, equipment suppliers,
and other service employees.
During this recession, we should be seeking out ways to
leverage our abundant natural resources and let private
industry and investment create jobs. Unfortunately, this
administration has gone to great lengths, I think, to obstruct
domestic production of oil, natural gas, and coal.
A committee staff report entitled, ``Rising Energy Costs:
An Intentional Result of Government Action,'' detailed the ways
in which the EPA, the Department of Interior, and other
agencies have implemented policies that have the effect of
raising the price Americans pay for traditional sources of
energy.
It has become clear that, since the Obama administration
failed to pass the cap-and-trade bill, it has relied on
regulatory gimmicks and the imposition of new permitting
hurdles to punish traditional job-creating businesses in an
effort to increase the price of fossil fuels. Combined with
massive subsidies for pet projects, this misguided effort aims
to make alternative energy cost competitive with traditional
carbon-based energy resources.
In the case of coal, in Appalachia, EPA has overstepped its
congressionally delegated authority under the Clean Water Act
and seized decisionmaking power from the States and from the
Army Corps of Engineers. Under the CWA, Congress gave States
the authority to issue section 402 permits and the Corps
authority to issue 404 permits. Congress gave EPA merely an
oversight role. The April 1, 2010, guidance document
effectively seized jurisdiction away from the States and the
Corps to administer both of these permits.
EPA's actions have created massive uncertainty, putting
jobs in Appalachia at risk, threatening our domestic energy
security. Moreover, it has imposed a virtual permitorium on new
coal projects.
Under EPA's enhanced review process, the Obama
administration officials chose 79 Appalachian CWA permits that
had been in the application process since 2006 for additional
review. Only eight of those permits have been issued--8 out of
79. While 49 have been withdrawn, many of the withdrawals are
due to bankruptcy of the operator who was not able to outlast
the EPA.
From permitorium on deepwater drilling in the Gulf to
permitorium on coal production in Appalachia, the
administration has trampled over administrative proceedings,
due process, the intent of Congress, and the rights of States
in their effort to rein in domestic production of carbon-based
energy. We should not sit idly by as the Federal Government
wages a stealth war against this essential and job-creating
industry.
I look forward to the testimony of our witnesses today, and
I look forward to hearing the administration's response.
I now yield to my good friend from Ohio, Mr. Kucinich, for
his opening statement.
Mr. Kucinich. Mr. Chairman, thank you very much for holding
this hearing.
While you and I have had the opportunity to work together
and find common agreement on many issues, this may be one of
those rare occasions where we do not. But, nevertheless, you
have my greatest respect for your service, as does
Representative Capito.
Scientific research demonstrates that mountaintop removal
mining is devastating to both the environment and the health of
Appalachian communities. Mountaintop removal mining has created
a water quality crisis in streams where the debris and spoil
from mining sites have been dumped. Mountaintop removal mining
has created an environmental crisis for aquatic life in those
streams and for the most biologically diverse forests in the
world which are being systematically destroyed by mountaintop
removal.
Mountaintop removal mining has created a public health
crisis for people depending on those streams. The research
shows that Appalachian residents of areas affected by
mountaintop mining experience significantly more unhealthy days
each year than the average American, and women who live in
areas with high levels of mountaintop coal mining are more
likely to have low-birth-weight infants and poor birth
outcomes.
Under the Clean Water Act, the Environmental Protection
Agency is mandated to ``restore and maintain the chemical,
physical, and biological integrity of the Nation's waters.'' In
order to fulfill this legal mandate, the EPA has a duty to
increase its scrutiny of Appalachian mountaintop mining
permits. I, for one, applaud the leadership of the EPA
Administrator in this regard.
Not only is mountaintop mining--removal mining
environmentally harmful, but it's actually a job destroyer, not
a job creator. Studies have shown that mountaintop removal
mining has actually had a negative impact on Appalachian
employment because mountaintop removal mining relies on
enormous machines, instead of individual skilled miners. The
number of mining jobs needed to produce each ton of coal has
been drastically reduced.
Mountaintop removal mining is essentially eliminating the
miners from coal mining, contributing to a decrease in mining
jobs. In 1948, there were 125,699 coal mining jobs in West
Virginia, 168,589,033 tons of coal mined. In 2010, however,
only 20,452 of these jobs remained, despite the fact that
almost the same amount of coal, 144,017,758 tons, had been
mined.
This job loss did not result from any regulation. Instead,
it occurred because coal companies themselves have replaced
workers with machines and explosives. The evidence is clear:
Mountaintop removal mining destroys both mountains and jobs.
Coal mining in general has experienced a diminishing share
of employment in Appalachia as well. The cause is falling
demand for coal. According to the Federal Reserve, the capacity
of already permitted and active coal mines set an all-time
record in 2010 where the utilization of that capacity was at a
25-year low. So while enough permits have been approved to
achieve a new record level of coal mining capacity, there's
simply not enough demand for all that coal that these mines can
produce.
Demand for coal or the decision by consumers to use
cleaner, more energy efficient forms of energy is not something
the EPA controls. It is a decision made by electric-generating
plant operators and investors. Increasingly, they've chosen to
fuel their power plants with natural gas rather than coal.
I'm deeply troubled by the fact that the House passed the
Clean Water Cooperative Federalism Act of 2011 yesterday.
There's no doubt this bill is intended to undermine the Clean
Water Act and cripple the EPA's ability to ensure that States
are adequately policing water quality, not just their own
citizens but for their neighboring States that share waterways.
Ultimately, if this bill becomes law, it would mean more
pollution, more dirty water, more health problems for Americans
forced to rely on these waters.
But it won't put Appalachian miners back to work. The
economics of coal work against that.
Everyone in this room today shares a common desire to put
America back to work. But we do not have to choose between safe
drinking water and healthy communities or jobs. I hope we can
work together to help create sustainable jobs in the
Appalachian region that do not destroy the very communities and
the lives of those who work in them.
With that, Mr. Chairman, I yield back; and I would also
like to request, if I may, unanimous consent to place all of
the reports that document the scientific research on
environmental public health effects of mountaintop mining that
I referenced in my opening statement, if I could put those in
the record.
Mr. Jordan. Without objection.
Mr. Kucinich. I appreciate that. Thank you, Mr. Chairman.
Mr. Jordan. We are now pleased to have our friend and
colleague with us, the gentlelady from West Virginia, Mrs.
Shelley Moore Capito. Congresswoman, go right ahead.
STATEMENT OF HON. SHELLEY MOORE CAPITO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WEST VIRGINIA
Mrs. Capito. Thank you, Mr. Chairman; and I want to thank
my neighbor, the ranking member, Mr. Kucinich, too. It's a
pleasure to be here before the Committee on Oversight and
Government Reform. I actually haven't been in the room, so I'm
pleased to be here and thanks for the opportunity.
This is something that's very near and dear to us who live
in Appalachia, live in West Virginia, are very concerned about
the EPA's Appalachian energy permitorium, which I believe is
leading to a job drought in my home State of West Virginia. I
think you're going to hear from a variety of folks from the
region today, and all of them can provide valuable insight into
how the EPA's affecting their communities and livelihood.
I think it's timely, because we had the debate on the floor
yesterday and just I would like to note that I was able to get
an amendment in that bill that I think is important, because it
says to the EPA that--and I've had this back and forth with the
EPA--are you considering jobs and the economy? Are you not
considering jobs and the economy as you move forward in you
rules and regulations? And I've had conflicting messages from
them.
So, rather than have a conflicting message, I'm asking that
they consider jobs in the economic impact of decisions that are
made around the Clean Water Act. It doesn't say in the
amendment that a certain decision has to be made based on that,
but I certainly think that it's one of the factors that we need
to weigh.
As you know, the coal industry is heavily regulated under
the Clean Water Act, mandating that coal operators obtain a
variety of permits prior to beginning their mining operation.
The law requires that the permitting process be quarterbacked
by the Corps of Engineers, with input from the EPA and our
State DEP, using State environmental standards issued under
authority delegated to the States. That was the argument
yesterday from the EPA.
Earlier this year, we know that EPA retroactively vetoed a
previously approved Clean Water Act permit that had been issued
for over 3 years and had been worked. It also--the permit was
worked for 10 years. And I think it just sends a chilling
effect, if you've played by the rules and been approved, that
you can claw back 3 years later and remove the permit, thereby
nullifying the economic investment and the jobs created related
to that.
It's very rare for the EPA to do that. But I think that it
does send a philosophical viewpoint of what's going on in
southern West Virginia in particular. I think coal operators
can no longer safely make investments, because the EPA has
removed some regulatory certainty from the permitting process
by having them wonder will their permits be revoked after they
have invested millions of dollars.
The negative impact, I think of the EPA's action upon jobs,
in my view, is obvious. The EPA has been unable to give me a
straight answer--and I said this in the beginning--as to
whether or not it does consider the negative impacts on jobs
prior to making their rules and regulations in force.
Just last month, AEP, which is our local--certainly you
know that in Ohio. AEP is a provider of electricity in your
great State--announced that it will shut down five plants,
coal-burning plants, coal-burning power-generation plants. And
the direct effect of this is job loss. It's economic loss. And
it also is raising--and this concerns me as well--10 to 15
percent on your energy bill at the end of the month or at the
end of the year. And I think for a State like ours with a lot
of people on fixed incomes, that's an economic impact that we
need to consider.
But, you know, the permitorium on coal operations is not
the only place where EPA has been hurting economic growth under
the auspices of the Clean Water Act. Notably, let's talk a
little bit about construction and agriculture. Anybody who
needs to move dirt or discharge water or water runoff requires
a Clean Water Act permit. While many of you don't have coal
operations in your particular district, it's likely that
industries and projects within your districts could be
negatively impacted by these rules and regulations.
Just for instance, family farms. There's a family farm in
Pendleton County that, according to a local newspaper, the EPA
was going so far as to regulate the type of sheds that family
farmers may build on their cattle operation. They were actually
doing, which I could not believe, aerial surveillance on our
family farms. And then, when asked, when the local folks asked,
are you looking at how much this is going to cost me and where
are you looking at, you know, trying to strike that balance
between economy and the environment, the person from the EPA
said, that's not part of their consideration.
And I think that's been pretty consistent with the way the
EPA has been acting. I think their actions are unacceptable,
because they are not looking at the full picture. That's all I
am saying. Let's have transparency. Let's look at the full
picture.
We have the natural resources to help create jobs and
protect our economy at the same time. We are truly blessed with
an abundant supply of natural resources. And as a native West
Virginian, I treasure the beauty of our State and the clean
water of our State, and I want to do what we can and should do
to protect our State's environment. But, instead of having a
push and pull where we're only looking at one side of the
story, without the complete picture, I think we endanger job
creation, our energy security of the Nation, and I think it's
time for us to take a better look.
And I thank you all for giving me the privilege of
testifying.
[The prepared statement of Hon. Shelley Moore Capito
follows:]
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Mr. Jordan. Thank you for your excellent testimony,
Congresswoman.
Now we will get the panel set up, the table set up for our
next panel. Thank you again, Shelley.
Staff will take just a minute and get ready for our first
panel. We'll move right into those new witnesses. Take a look
where your name tag is and jump in.
Do we have our witnesses? All right. Just come right up to
the table. We'll get rolling here.
On this panel we have, first, Mr. Tom Mackall, president of
Sterling Mining. We have Mr. Chris Hamilton, senior vice
president of the West Virginia Coal Association; Mr. Joe
Lovett, director of the Appalachian Center for Economy and the
Environment; and Mr. Roger Horton, chairman of the Safety
Committee of the United Mine Workers Local 5958 and co-chair of
the Mountain Top Mining Coalition.
And our fifth witness--I'll yield to the gentleman from
Pennsylvania.
Mr. Kelly. Thank you, Mr. Chairman; and thanks for holding
this hearing.
I would like to welcome a constituent of mine from Western
Pennsylvania, John Stilley, who operates Amerikohl.
I could talk for a long time about John Stilley and what
he's been able to do in business. But I think the most
important thing that John Stilley has done, he has been such an
important part of our community with job creation and also land
reclamation. And the land he has reclaimed has been at no cost
to taxpayers.
So when we look at these people and understand that they
took time out of their private lives to come here today and
share with us the situations that they face as they try to run
their businesses--and maybe it's unintended consequences, but
sometimes I start to wonder of government overregulating and
being so involved in a business that it makes it very difficult
to operate a business profitably and to keep hiring people.
So, John, I really appreciate your being here today, Mr.
Stilley. You've done a great job. Keep up the good work and
please give me best to the whole family.
Mr. Jordan. I know you just got seated there, but, pursuant
to committee rules, we need you to stand up, raise your right
hand, and we have a swearing in that we do here.
[Witnesses sworn.]
Mr. Jordan. Let the record show that they all answered in
the affirmative.
And we will now move right to our first witness, Mr.
Mackall.
Go right ahead. You have 5 minutes. You've got the lights
somewhere where you can see them and I think right in front of
you, so you get the warning light. When you get the warning
light, unlike speeding up--well, no, just like speeding up. Get
to the finish line. Get right through it.
So go right ahead, Mr. Mackall.
STATEMENTS OF TOM MACKALL, PRESIDENT, STERLING MINING; CHRIS
HAMILTON, SENIOR VICE PRESIDENT, WEST VIRGINIA COAL
ASSOCIATION; JOE LOVETT, EXECUTIVE DIRECTOR, APPALACHIAN CENTER
FOR ECONOMY AND THE ENVIRONMENT; ROGER HORTON, CHAIRMAN, SAFETY
COMMITTEE LOCAL 5958, CO-CHAIR, MOUNTAIN TOP MINING COALITION;
AND JOHN STILLEY, PRESIDENT, AMERIKOHL MINING INC.
STATEMENT OF TOM MACKALL
Mr. Mackall. Thank you, Chairman Jordan, Ranking Member
Kucinich, members of the committee. Good afternoon.
I'm just a coal miner from Ohio, but it's my pleasure to
come to Washington and testify in front of Congress, and I
really appreciate the opportunity.
My name is Tom Mackall. I'm with the East Fairfield Coal
Co. Sterling Mining is also another name, our underground
mining company.
We currently have operations in Ohio and Pennsylvania. We
employ over 160 hardworking Americans. We have underground
mining operations and mine coal, clay, and limestone.
But we're still a small business. I'm proud to say that
we're a family business. My father started working for the
company in 1934, and I've been there 40 years, and I have now a
son that's been there 10 years. So we're trying to continue the
family tradition.
When I was preparing my remarks for today I was at the coal
mine yesterday, and one of the coal miners came up to me, and
he's never said anything like this to me before. But he said, I
read a Bible verse that reminds me of the government. And he
told me it was Luke chapter 11, verse 46. So I got it out, and
I read it, and I'd like to read it to you today. It really
summarizes my viewpoint of the government.
``Jesus replied, and you experts in the law, woe to you,
because you load people with burdens they can hardly carry and
you, yourselves, will not lift one finger to help them.''
When I consider your question, it's easy to say the EPA has
been a job killer. It's absolutely a job killer, and it's
killing jobs across Ohio and Appalachia. But it's not just the
EPA; it's the entire administration. They have declared war on
coal and specifically on Appalachia coal-related jobs.
I want to highlight three areas where the current
administration has hurt Appalachia jobs and job creators,
permitting delays, inconsistent enforcement, and new
regulations.
First, the extremely burdensome and flawed system of the
permit-approval process has been complicated in a purposeful
manner by the administration. We have seen the administration
insert EPA into the permitting process through the use of what
they call guidance documents. These really serve the purpose of
usurping the power of our Army Corps of Engineers as well as
State regulators.
For example, we have been struggling to obtain a refuse
permit at our Brush Creek Mine in Jefferson County, Ohio. Mr.
Chairman, a small company like ours cannot afford to keep
people employed if we are unable to have some sort of logical
permitting process. That's because the required background
studies take nearly a year by themselves, and in the case of
this refuse permit it's cost us over $300,000. In this case, 3
years later we still are no closer to having our permit issue
resolved.
The second major weapon that is being used by the current
administration is inconsistent enforcement. The Department of
Labor's Mine Safety and Health Administration and their actions
are particularly troubling. MSHA has proposed a Respirable Dust
Standard that is unachievable in underground mine settings and
continues to be unable to produce the relevant data that that
they claim creates the causation basis for their rule.
There are certainly and importantly some very good
inspectors within MSHA's ranks. But the problem is that MSHA is
being used strictly as a tool to push for massive fines and
charges that suddenly emerge on some days that the exact
condition were fine on another day.
The third means by which the Obama administration is waging
war on coal is through new EPA regulations. Just last week they
unveiled the final Clean Air Transport Rule. When combined with
another part of what I call the EPA train wreck, the impacts on
the economy are staggering. Recent modeling has shown that the
transport rule and EPA's Utility MACT proposal will result in
the loss of 1.44 million American jobs, along with costs of
$184 billion to power providers.
And the important thing here is these costs, added to our
manufacturers in the United States, they cannot afford more
jobs. It's like an additional tax. So I think more jobs will
leave the country as we raise our electric rates like that.
Since the recession started, we have lost three major
customers. Each of them provided important jobs and products
for the economy but were all heavily regulated by the EPA. Two
of these companies were cement manufacturers. Now we are
importing cement from Peru. It's an important but troubling
twist that the Peru cement is being imported through a port in
New York using funds from the stimulus.
Let me be clear. This administration's regulatory agencies
are destroying jobs in Appalachia while, at the same time, the
stimulus funding has made it easier to import competing goods
from other countries.
Mr. Chairman, I offer these examples because they are real,
and they are really hurting Ohioans and Appalachians. For
generations, our reasonable energy costs, powered in large part
by coal, led to Ohio being a great industrial State. Now, with
the administration's policies, we are seeing this change and
our competitive edge decline.
Simply put, the three items I have highlighted--permitting
problems, inconsistent enforcement, and new regulations--are
destroying what formerly made Ohio and Appalachia so strong.
Thank you for the opportunity to testify, Mr. Chairman, and
I stand ready to answer any questions the committee may have.
Thank you.
[The prepared statement of Mr. Mackell follows:]
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Mr. Jordan. Thank you.
Mr. Hamilton.
STATEMENT OF CHRIS HAMILTON
Mr. Hamilton. Mr. Chairman, members of the committee, good
afternoon, and thank you for the opportunity for us to
participate in today's proceeding.
I'm Chris Hamilton with the West Virginia Coal Association,
and I appear before you today on behalf of the West Virginia
Coal Association, along with the West Virginia Business and
Industry Council.
The State of West Virginia is the Nation's leading
underground coal-producing State, consistently averaging 155
million tons of annual coal production over the past decade.
That comes from approximately 300 underground mines, 230
surface mines, and about 27,000 coal miners.
West Virginia's coal is the most valuable, most desired
coal in the world for both electric generation and for the
production of iron and steel. Our coal is shipped to some 33
States and 23 foreign destinations, and West Virginia's energy
fuels approximately 40 percent of the electrical power needs up
and down the entire East Coast.
The coal industry is also the broad-shouldered Atlas of the
West Virginia's economy, supporting thousands of supporting
jobs and businesses. The coal industry accounts for more than
12 percent of the State's gross State product, $3.2 billion in
direct wages annually, and over $27 billion in overall economic
activity.
Coal is also the backbone of our State's government
structure. The taxes collected on coal production provide the
majority of funding for vital State and county social programs.
In fact, together with the electric utility industry, coal
provides upwards of 60 percent of all business taxes collected
in the State of West Virginia.
All the direct benefits provided by the coal industry and
our State's economy have been clearly placed in serious
jeopardy by the actions of the current administration and its
EPA. EPA has gone to great lengths to target coal mining
operation across the Nation. It seems to have focused
specifically on the State of West Virginia and our surrounding
States within the Appalachia region.
The Agency's assault begins with the mine-permitting
process and continues up to the point where coal is consumed.
EPA has virtually halted the orderly processing of mine permits
and continues up to the point where coal is actually consumed,
including casting a doubtful shadow over the continued use of
coal, by processing sweeping revisions to clean air standards
and entirely new regulatory programs for coal combustion
residuals.
Simply put, the government, our government, today is coming
by land, air, and sea to create havoc and cripple the
production and use of West Virginia coal. The Federal
Government's battering of the industry literally began the
moment the current administration assumed office by issuing a
series of objection letters to the issuance of new mining
permits, followed immediately by a convoluted multiagency
enhanced permit review process and sweeping revisions that were
not promulgated by lawful administrative rule to the regulatory
consideration of mining permits, effectively usurping the
powers of the State and imposing limits for which no
promulgated standards exist.
EPA, in our view, has clearly abused its role under the
Clean Water Act to essentially bypass and nullify the authority
and responsibilities of individual States to regulate
activities within their borders. They have done so by way of
guidance and policy, disregarding the Federal rulemaking
process so carefully crafted by the Congress decades ago within
the boundaries of the Clean Water Act.
EPA's interference knows no bounds. EPA will tell the
Congress and the public--and we've heard it here already
today--that its actions target only large-scale mountaintop
mining operations. Nothing is further from the truth. The
Federal agency is actively obstructing the issuance of permits
for surface mines, small surface mines with absolutely no
valley fills, with no discharges in lawful waters of the State,
underground mining operations, and practically every surface
facility that must be developed to sustain and operate both
surface mines and underground, which include the smallest of
haulage roads.
Reduced to its essence, what you have is EPA avoiding the
rulemaking process and lawful boundaries of its authorities
under the Clean Water Act to impose the most stringent,
impractical, if not impossible-to-meet standards against a
selected industry in a handful of States. Despite repeated
pleas and requests from our executive, our industry officials,
both labor and management, our legislative branch of the
government, to engage in a professional discussion of these
critical issues, EPA has simply thumbed their nose at every
single elected official within our State and has told us
repeatedly that they have no interest whatsoever with respect
to the jobs or the economic consequences of mining. So
egregious is EPA's behavior, the State regulatory authorities,
including West Virginia, have sued their Federal counterpart
over its abuses of power in Federal court.
Mr. Jordan. Mr. Hamilton, if you could just conclude real
briefly. You can finish if you've got a couple of sentences
there. But just conclude quickly.
Mr. Hamilton. Thank you, Mr. Chairman.
Resolution of this issue cannot wait for judicial
adjudication. Every day the permitting backlog at the Corps and
EPA grows, and today that universe of paralyzed permits is
nearly approaching 1,000 with respect to all permitting actions
that must occur in order to sustain our viability.
The buying of coal is so significant----
[The prepared statement of Mr. Hamilton follows:]
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Mr. Jordan. Mr. Hamilton, we'll get to the rest of that
during the questions. Thank you very much for I think your very
compelling testimony.
Mr. Lovett.
STATEMENT OF JOE LOVETT
Mr. Lovett. Good afternoon, and thank you for the
opportunity to testify here today.
My name is Joe Lovett, and I'm executive director of the
Appalachian Center for the Economy and the Environment. We're a
nonprofit policy center located in Lewisburg, WVA.
I'm also a lawyer who has been attempting for too many
years now to enforce surface mining, coal mining, and other
environmental laws that Federal and State regulators refuse to
enforce in Appalachia.
I learned a word here today, permitorium, I think, which
really I don't think is a word at all except maybe in George
Orwell's world. But, in any event, it's certainly not an
accurate description of what is occurring on the ground in
Appalachia.
For years now, every permitting agency has issued any
permit to the coal industry that it wants at any time. This is
the first time the coal industry has met any resistance to its
permitting, and it doesn't like it.
I would note that no operator has the right to a permit. It
has to comply with the law. And none of the permits for
mountaintop removal comply with the law. That's why EPA is
doing what it's doing now.
EPA's actions to regulate surface mining in the region
during the past 2\1/2\ years have been necessary not only to
enforce the Clean Water Act against mining operators but also
to ensure that regulatory agencies comply with the law. Too
often, State and Federal agencies in our region see their jobs
not as enforcing the law and protecting the environment and the
communities in the region but as protecting coal operators from
having to comply with the law. Rather than forcing mountaintop
removal operators to conform their actions to the law, Federal
and State agencies bend or change the law to accommodate
destructive mining practices.
Make no mistake. This is not about mining in general. It's
about mountaintop removal. EPA's actions go to mountaintop
removal. Mountaintop removal can't be conflated with all
mining. So mountaintop removal should be stopped. It can't
comply with the law. It's hurting the people of our region and
stealing its jobs.
The U.S. Army Corps of Engineers continues to disregard its
duties under the Clean Water Act by issuing permits to
mountaintop removal operators. The Corps is literally
overseeing the illegal destruction of our mountains and
streams. For years, the Corps has issued permits for huge
mountaintop removal mines with little more than a wink and a
nod. And the unlawful issuance of the permit to Arch's Spruce
Mine is a paradigmatic example of the Corps' refusal to enforce
the law.
In the past 2\1/2\ years, EPA has taken three significant
steps to enforce the Clean Water Act relating to mountaintop
removal mining. It entered into an enhanced coordination
process with the Corps for the issuance of 404 permits, it
vetoed Arch's Spruce 404 Mine, and it issued a guidance
document on conductivity levels in Appalachian streams.
None of these actions should be controversial. Taken
together, they merely accomplish the minimum required by the
Clean Water Act. Indeed, EPA should take much more vigorous
actions to enforce the laws in our region.
For instance, Arch's Spruce Mine, which the Corps vetoed,
would devastate one of West Virginia's most beautiful hollows.
Although the industry has tried to foment controversy around
EPA's veto of the Spruce Mine, that veto was necessary to
protection the Nation's water and was, therefore, required by
the Clean Water Act. The discharges at that Spruce Mine alone
would bury 6.6 miles of high-quality Appalachian headwater
streams. That 6.6 miles is over 5.6 percent of the total
streams in the headwaters of the Spruce Fork watershed. The
mining would remove 400 to 450 vertical feet from the mountains
and would place approximately 501 million cubic yards of
overburdened material in those streams.
This is not an issue about procedure. This is issue about
enforcing an act that, on its face, has to protect water. The
mining industry is destroying water at a clip in Appalachia
that no other industry enjoys anywhere in the United States. To
allow this to continue without regulation would be the mistake.
Economically, mountaintop removal is devastating the
economy in the coal mining region as much as it is the
mountain. Mountaintop removal is capital intensive. It uses
machines and explosives to replace miners. We've seen a slight
drop-off in mountaintop removal lately. As that's happened,
coal production has remained relatively constant, and
employment has actually increased.
And, of course, the public health impact may be the most
troubling of all. You see that research is showing now that
there are birth defects associated with people living near
mountaintop removal mines.
So, all in all, mountaintop removal is an ecological,
economic public health disaster that does not comply with the
Clean Water Act. EPA is merely enforcing the act and, if
anything, we think should more stringently enforce the act; and
I hope that Congress will not do anything to limit its ability
to do that.
Thank you.
[The prepared statement of Mr. Lovett follows:]
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Mr. Jordan. Thank you, Mr. Lovett.
Mr. Horton.
STATEMENT OF ROGER HORTON
Mr. Horton. Good afternoon, and thank you for the
opportunity to truthfully testify today on this very important
subject.
My name is Roger Horton. I am the founder of Citizens for
Coal and co-founder of the Mountaintop Mining Coalition and a
member of Local Union 5958 of the United Mine Workers of
Amerikca.
I've spent over 30 years in the West Virginia mining
industry, beginning in 1974 as an underground coal miner.
During my career, I have also been active in my union, serving
in various official capacities for my union local.
I am proud to say that I'm still a coal miner and a local
union officer at a surface coal mine in West Virginia. A native
West Virginian, I have lived virtually all my life in the
coalfields of the mountain State, spending most of that time in
Logan county where I live today in the community of Holden. I
built a home, raised two children, participated and enriched my
community all because of my employment in the coal industry.
It is because of my rewarding experiences in and around the
coal industry and its communities that in 2008 I founded
Citizens for Coal, a group open to everyone, no matter their
employment or other affiliation, dedicated only to preserving
the future of coal mining jobs and to actively participate in
the debate surrounding coal mining in West Virginia and
Appalachia. It is in this capacity that I appear before you
today.
I am deeply concerned and troubled by the actions of the
Federal Environmental Protection Agency with respect to mining
permits in West Virginia and Appalachia and its whole attitude
concerning the place that coal occupies in our Nation's energy
supply mix.
The EPA has openly attacked coal. This assault begins with
the permit application process, which you are discussing today,
and continues to throughout the process and finally to the end
use of coal, where EPA has recently announced sweeping
regulatory changes. These regulatory initiatives, coupled with
the Agency's obstruction of mining permits, threatens to
cripple the viability of Appalachia and West Virginia as a
source of domestic energy and destroy West Virginia's coal
reputation as the world's fuel of choice, be it for electrical
generation or steel making or manufacturing.
In its attacks on the mine-permitting process, the EPA has
trampled the interests of our individual States to control and
regulate activities that occur within their own borders. In
West Virginia, the EPA has arrogantly disregarded the will of
the people and the actions of the West Virginia legislature
with respect to water quality standards, streams uses, and
environmental improvement. The Federal agency has focused on
insects and tiny, almost undetectable shifts in insect
populations, while ignoring the overall health of our mountain
streams and the aquatic life and fish that call them home.
Further, EPA has taken such positions without regards to jobs
or communities that depend on these occupations for their very
survival.
If left unchecked, EPA threatens to strip our citizens, our
communities, and the very social fabric of West Virginia of the
most important source of existence, and that is coal.
These are not just idle observations. I have personally
witnessed the social and economic disruptions that occur when
unelected bureaucrats in an EPA office somewhere in downtown
Philadelphia make arbitrary decisions about what is best for my
fellow coal miners, my friends, and my community.
About 11 years ago, through a combination of government
interference and numerous legal challenges, a large surface
mine in Logan County, WVA, was forced to close because it could
not obtain the permits necessary to continue mining the coal.
The results were devastating. Some 400 members of Local Union
2935 were out of a job, not because there was no demand for the
coal or because the coal reserve had been exhausted but because
of pure legal and regulatory interference.
The work force and this local union was obviously
devastated, but the county was severely damaged as well. The
school system and social welfare programs lost revenue that was
vital to their existence and operation. Entire communities were
devastated. With nowhere to work and no prospect of the mine
reopening anytime soon, some residents packed up and moved to
other States to find lower-paying jobs. Businesses that relied
on the mine for their income--gas stations, restaurants, repair
shops, and equipment vendors--vanished. Families suffered and
disintegrated. Substance abuse and divorces skyrocketed, and
these folks struggled to come to terms with the loss of the
good-paying jobs that were forecast to last decades.
In fact, it is fair to say that our communities and certain
families have never recovered from the loss of these jobs.
That experience and those troubling, painful memories
motivated me to start the Citizens for Coal organization, of
our community and I hope the committee and the entire Congress
is mindful that the EPA's assault on the coal industry has
real, often dramatic effects on our work force and our people.
I have been fortunate to be able to spend the majority of
my life living and working in my native West Virginia. Every
day I enjoy the benefits of a rural way of life. I hope that my
children can live and work in West Virginia and enjoy the same
lifestyle and experience, but every day the EPA goes unchecked
those chances decline.
Finally, as a lifelong citizen of the coalfields of Logan
County, WVA, I would like the committee to carefully weigh the
testimony of others that do not live, work, or recreate in our
communities. They will come before you as false prophets
claiming to represent the people of the coalfields and/or
environment and offering to help us survive or transition to
other forms of employment when they destroy our coal industry.
Whether they be from the EPA or the Corps in Washington or
lawyers that claim they sue the government on our behalf, we
don't need their assistance or help. We can do just fine on our
own.
[The prepared statement of Mr. Horton follows:]
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Mr. Jordan. Thank you, Mr. Horton.
Mr. Stilley.
STATEMENT OF JOHN STILLEY
Mr. Stilley. Good afternoon. Chairman Jordan, members of
the Regulatory Affairs, Stimulus Oversight and Government
Spending Subcommittee, my name is John Stilley. I am president
of Amerikohl Mining, Inc., which is headquartered in Butler,
PA. I'm also president of Patriot Exploration Corp. and
Amerikohl Aggregates, Inc.
Amerikohl mines coal by the surface mining method in 10
Pennsylvania counties. Last year, we produced 1 million tons of
coal and employed 110 workers. Since 1978, we have completed
mining on 324 separate mining sites and have successfully
reclaimed the land to productive post-mining uses, including
parks, residential communities, working farms, and forest land.
Approximately one-third of these sites consisted of areas which
had been mined in the 1940's and 1950's where no reclamation
was required to be done. Amerikohl's remaining efforts on these
sites provide for hundreds of acres of abandoned mine
reclamation and miles of streams rehabilitated, all at no cost
to the taxpayer or public. Amerikohl's has won over 70 awards
for excellence in reclamation over the past 30 years.
We are also in the stone and natural gas business. Last
year, we produced 750,000 tons of stone and aggregates used to
build and rehabilitate Pennsylvania's infrastructure and
currently operate 160 oil and gas wells from the Upper Devonian
formation, all in Pennsylvania.
I'm here today also on behalf of the Pennsylvania Coal
Association. Pennsylvania is the Nation's fourth leading coal-
producing State, mining about 67 million tons in 2009. In
addition, the coal industry is a major contributor to
Pennsylvania's economy. Its annual economic benefit to the
Commonwealth exceeds $7 billion and it is responsible for the
creation of 41,500 direct and indirect jobs, with a payroll
totaling over $2.2 billion. Taxes on these wages alone netted
more than $700 million to the coffers of Federal, State, and
local governments. Most of the coal produced in Pennsylvania is
used to generate affordable and reliable electricity.
I appreciate being asked to testify today on EPA's
overreach into the States permitting programs and how this
abuse of power is costing production and jobs in the
Appalachian coal fields.
Frankly, EPA's heightened scrutiny and overzealous
regulation of coal mining in the past 2 years threaten the
future economic viability of our industry. These policies
attack both the mineral extraction process through protracted
Federal review of mining permits heretofore reserved to the
States and the end use process through establishing
unreasonable and unjustifiable emission reduction standards for
greenhouse gases, mercury, coal waste, and a plethora of other
alleged pollutants. The cumulative effect of this assault
provide for and will be an economic train wreck in the next few
years to come.
To illustrate how EPA's actions are jeopardizing economic
resurgence and the continued use of coal as an energy source,
my testimony will focus on EPA's repeated intervention in an
approvedState-delegated permitting program, the National
Pollution Discharge Elimination System, and the chaos it's
created.
Under section 402 of the Clean Water Act, NPDES permits for
discharges of non-dredged and non-fill material are issued by
the States once EPA approves the permitting programs.
Pennsylvania's permitting program was approved by EPA through a
1991 Memorandum of Agreement executed between the Commonwealth
and the EPA. The Pennsylvania DEP was identified as the lead
agency with exclusive authority for administering and granting
NPDES permits for mining-related the activities in
Pennsylvania. As part of this agreement, EPA waived its
authority to conduct permit reviews of pending NPDES permit
applications.
Pennsylvania's NPDES permitting process, which worked well
for nearly two decades and was even recognized on many
occasions for its excellence by EPA, was dramatically and
unilaterally altered by EPA in September 2010. At that time,
EPA, without any accompanying Federal statutory or regulatory
changes, informed DEP that it was limiting the permit review
waiver specified in the Memorandum of Agreement and would be
conducting its own independent permit reviews for mining
programs with discharges to the Monongahela River, the
Kiskimenitas River, and the Conemaugh River or, for that
matter, to any impaired watershed with designated total maximum
daily load limit.
The Federal agency directed DEP to forward all such permit
applications to its regional office. To date, EPA's Region III
field office in Philadelphia has received 104 NPDES permit
applications from DEP for review and comment. In addition, DEP
continues to forward additional draft permit applications to
EPA each month for review.
Since EPA's Region III office is not sufficiently staffed
or, in many cases, qualified to perform the NPDES permit
reviews in a timely manner, the change has led to indefinite
delays in mining permit processes. Obtaining an NPDES permit
for any discharge is a prerequisite to mining, so these delays
and permit backlogs are tantamount to de facto prohibition of
mining.
Also, while the EPA's comments and objections resulting
from its permit reviews vary, a number of the objections to the
permits are based on what the Federal agency perceives are
inconsistencies between the application and an interim final
guidance that it developed to provide a framework for regional
reviews of surface mining projects based on conductivity
levels----
Mr. Jordan. If you could just finish up here.
Mr. Stilley [continuing]. It associated with adverse impact
on water quality.
[The prepared statement of Mr. Stilley follows:]
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Mr. Jordan. I know it's tough to get through everything.
Thank you.
We'll start our questioning now.
Mr. Hamilton, how many permits does a mining company need
to actually do their business? Just give me a rough estimate.
How many permits do you need to operate?
Mr. Hamilton. I don't have that answer. I apologize.
Mr. Jordan. Is it five? Is it dozens? Is it hundreds?
Mr. Hamilton. I would say on the order of magnitude upward
of 50, probably closer to 100.
Mr. Jordan. Between 50 and 100 permits.
And that has not changed since the Obama administration has
come into office, correct? Still the same number of permits.
Mr. Hamilton. That is absolutely correct.
Mr. Jordan. What has changed is the way those permits are
granted, what--the scrutiny or just the enhanced review
process, that's what's changed.
Mr. Hamilton. Yes.
Mr. Jordan. And you've seen a marked increase in the
ability for you to get the 50 to 100 permits you need to
operate.
Mr. Hamilton. Those are all not permits issued by under the
Clean Water Act or EPA. But yes.
Mr. Jordan. But total permits you've got to go to
government to operate.
Mr. Hamilton. Yes.
Mr. Jordan. And a marked increase.
And Mr. Stilley, you said the same thing. I think I heard
that pretty clear in your testimony.
Mr. Stilley. We go through possibly 10 permits every year
as a small coal company in Pennsylvania.
Mr. Jordan. Okay.
Mr. Stilley. It's taking us anywhere from probably 2 to
3\1/2\ years now to secure a permit. All the while, our coal
mines, from start to finish, only last anywhere from 6 months
to a year and a half. That alone speaks volumes to the dilemma
that this is creating for us alone.
Mr. Jordan. I understand. Understand.
Mr. Mackall--I'm saying that wrong again. I apologize.
Same thing? You would say the same thing? Marked increase?
Mr. Mackall. I'm an underground miner, so I don't have to
get as many permits----
Mr. Jordan. How many do you have to get?
Mr. Mackall [continuing]. As a surface mine operator, but
they have a significant effect on us. And they force us to do
things in unusual ways. Like, for example, we have an
underground coal mine that finished. We couldn't get the Army
Corps permits and the EPA permits we needed for the next mine,
so we actually just used the same footprint that we had for the
end mine and went down 180 feet to a lower coal seam and sloped
down to hit that instead. And it cost us $1 million more to
develop that mine because we couldn't get the permits that we
needed in a timely manner.
Mr. Jordan. And all these permits--Mr. Lovett, in his
testimony, said that permits are denied if you're not in
compliance with the law. Mr. Hamilton, all the companies you
represent in your association, were they in compliance with the
law when you were getting permits in a much more efficient
manner?
Mr. Hamilton. Yes, absolutely.
Mr. Jordan. You weren't breaking the law, right?
Mr. Hamilton. No, sir.
And perhaps the most egregious illustration that we could
all use is the Spruce Mine where this mine, the permitting
process was under way. It's probably undergone the most
scrutiny of any industrial permit in the country. It underwent
about a 6-year plus approval process with all the environmental
and technical and engineering, with EPA participating
throughout that period of time. The permit was issued back in
2007.
Mr. Jordan. And this mine you're referring to, if I could
interrupt Mr. Hamilton, this is the one that was challenged in
a court case. And what was the decision of the Fourth Circuit
in that case?
Mr. Hamilton. The Fourth Circuit completely cleared the
company.
Mr. Jordan. And the challenge came on this enhanced review
concept that's before us today; is that correct, Mr. Hamilton?
Mr. Hamilton. That's correct.
Mr. Jordan. And who was the individual who argued the case
and brought the case? Who was responsible? Who argued the case?
What agency--who argued that case on behalf of I think it's the
Ohio Valley Environmental Coalition?
Mr. Hamilton. Yes.
Mr. Jordan. Who was the individual that argued that case?
Do you know, that brought that case?
Mr. Hamilton. I believe it was Mr. Joe Lovett and his
colleague sitting right here.
Mr. Jordan. And, again, what was the decision of the Fourth
Circuit?
Mr. Hamilton. The Fourth Circuit completely overturned
every single ruling of the court.
Mr. Jordan. So they said the way it was operating before,
prior to this administration----
Mr. Hamilton. There was no violations with the Clean Water
Act, yes.
Mr. Jordan [continuing]. Was fine. And that was the Aracoma
decision of the Fourth Circuit; is that correct?
Mr. Hamilton. That's correct.
Mr. Jordan. Okay. I just want--a question to the business
owners, real quick.
We had this happen, probably it was the hearing in front of
the full committee 5, 6, maybe 4 months ago, I guess. We had a
group of business owners in here. And at the end of the long
hearing on regulation, the impact it's having on business, what
I thought was one of the most compelling questions and part of
the entire hearing, a colleague of ours, Mr. Guinta from New
Hampshire, asked the witnesses, all business owners, many small
business owners--one was actually from our district--he asked
them a simple question.
He said, guys, if you knew then what you know now, would
you have started your business? If you knew all the things
government was going to require you to do, would you have
started? Would you have created those jobs? Would you have
taken the risks? Would you have provided those opportunities
for all the employees that work for you?
The answer from every single one was they wouldn't do it.
And I just wanted to ask the same question to you, Mr.
Stilley, and then you, Mr. Mackall, and Mr. Hamilton for the
business you represent. If you had it to do all over again,
would you do it?
Mr. Stilley. I started my business in 1978. In no way,
shape, or form could I have ever anticipated all the
impediments--regulatory impediments that have been thrown up by
the Feds, principally the Feds. State government's fine. The
answer to your question is probably no.
Mr. Jordan. How many people work for you, Mr. Stilley?
Mr. Stilley. I have 120 men and women working for us right
now.
Mr. Jordan. Mr. Mackall.
Mr. Mackall. We have 160 employees, and that's my big
quandary. And I also have a quandary within our family. As a
family business, my son could have chosen a lot of things. He
has his MBA. He could have chosen a lot of things for a career;
and, you know, he chose to come and work for our company. And I
don't know if that's the best thing for him.
But it all comes down to we have a responsibility to these
employees that have worked for us for many years, and it's hard
to walk away from it. But I would love the freedom of not
having to deal with all those issues; and I really wonder if
I'd ever, you know, would have started over again if I had to.
Mr. Jordan. Thank you.
I yield to the gentleman from Ohio, Mr. Kucinich.
Mr. Kucinich. Thank you very much, Mr. Chairman.
Mr. Mackall, is it?
Mr. Mackall. Mackall.
Mr. Kucinich. Mackall.
Mr. Mackall, in the notice of the hearing, it has you as
president of Sterling Mining, and I'm told that you're the
officer of East Fairfield Coal Co. Could you help this
subcommittee or this committee with this----
Mr. Mackall. They are both companies that are in my--a part
of my family business. One's an underground mining company of
coal, and one's a----
Mr. Kucinich. Which is which?
Mr. Mackall. East Fairfield Coal Co. is now a limestone
coal company, and Sterling Mining is an underground coal mining
company.
Mr. Kucinich. So have you been an officer of both, then?
Mr. Mackall. Correct.
Mr. Kucinich. Okay. And how long have you been an officer
of both?
Mr. Mackall. Thirty-plus years.
Mr. Kucinich. Okay. I have here a news report that said
that Sterling Mining to pay a $50,000 fine for Clean Water Act
violations at the Sunshine Mine and Mill, according to an EPA
agency release. This was from 2009. Are you familiar with that
story?
Mr. Mackall. No, I'm not. It's not the same company.
Mr. Kucinich. It is not? Okay. Then I withdraw then. Is it
your--I want to go to Mr. Hamilton.
Your comments on litigation over the Spruce Mine permit
revocation, can you tell us a little bit about that?
Mr. Hamilton. First of all, I--I was asked a question in
haste whether that was the Aracoma decision. I believe that was
known as the Bragg decision, but this permit underwent about a
6-year, plus year scrutiny. EPA, Corps of Engineers, the State
DEP, everyone had very, very intense involvement with that
permit. The permit was issued in 2007, only to have EPA come
back a year and a half ago, 2010, and actually initiate
revocation proceedings for that permit, and that's been the
only mining permit in the country that has underwent the--that
type of scrutiny and action on behalf of the EPA.
Mr. Kucinich. Now, Mr. Lovett, could you clarify the legal
issues that Mr. Hamilton referenced?
Mr. Lovett. Certainly.
Mr. Kucinich. And use the mic, please.
Mr. Lovett. Yes. Let me state first, the Court of Appeals
did not overturn the Clean Water Act injunction in the Spruce
Mine case. That's incorrect. The Army Corps of Engineers was
forced to change a longstanding regulation, the definition of
fill material, which basically legalized mountaintop removal,
and it did that in, I think it was 2008. As a result of that
ruling, other issues went to the Court of Appeals, not the
issue of the court's injunction related to Clean Water Act
issues in the Spruce case.
The most important thing about the Spruce Mine, from my
perspective, isn't all the procedural wrangling that we're
doing here. It will destroy, forever, nearly 5 square miles of
Appalachian forest and streams. It will fill with mining waste
over 6 miles of stream, forever. If that kind of activity
doesn't deserve environmental scrutiny, I don't know what does.
Mr. Kucinich. Well, let me go--just hold on there. Now I
want to go back to Mr. Hamilton.
Mr. Lovett just outlined some environmental consequences.
We hear about those all the time, but we rarely get a person
from the industry to be able to respond directly when
challenged on environmental consequences. What do you say to
people who are concerned about water quality or concerned about
the adverse health effects when these toxic substances get into
the environment that come as a result of mining? What's your
response to them?
Mr. Hamilton. I say come personally and visit the
operation. Come personally and see the biological diversity and
the clean drinking water standards coming off that active mine
site. Come personally and talk to the men and women who live
above, who live below, who work on those operations and have
for some time. We are----
Mr. Kucinich. I appreciate that response and that
invitation. You know, we have representatives of the industry
who are mining underground and do mountaintop mining. Now, on
the mountaintop mining side, people did come personally and did
a documentary that, of course, you're familiar with, called
``The Last Mountain,'' where they point out, this mountaintop
moving removal in its wake, the process leaves toxic sludge
piles, containing arsenic, lead, and mercury, contaminated
rivers and streams, fine particulate airborne matter that
creates an epidemiological health nightmare and unlivable
communities. Mountaintop removal has already destroyed 500
Appalachian mountains, decimated a million acres of forest,
buried 2,000 miles of streams.
There are some people who are coming and taking a look at
it, but they are coming--they are coming up with conclusions
that might be at variance to what the industry is saying.
I thank the gentleman, and I yield back.
Mr. Jordan. Thank the gentleman.
I now recognize the chairman of the full committee, the
gentleman from California, Mr. Issa.
Mr. Issa. Thank you for holding this important hearing.
There's nothing more important to this committee or to America
than the kinds of jobs that every day we continue to hear we
lack in this country.
For all of you who came here from West Virginia, where the
unemployment rate is so high, hopefully this hearing will be a
start toward getting West Virginians working again.
Mr. Stilley.
Mr. Stilley. Stilley.
Mr. Issa. Stilley, I apologize, I wasn't here for the
introductions.
Mr. Stilley. That's quite all right, sir.
Mr. Issa. I would like to understand a little bit more
about what it's like in West Virginia. You've been mining there
for generations. I am a native of Ohio, so we enjoy in the
southern part some of the same activities, but you've been
mining for a long time. Would you say it's fair to say that
we've learned a lot, that we mine better than we used to?
Mr. Stilley. There's no question but that is the case. We
have mined in West Virginia, but this is for clarification, we
are principally Pennsylvania coal miners today, all surface
mining.
Mr. Issa. Right.
Mr. Stilley. But the technology that we subscribe to has
progressed immeasurably. You don't have enough yardsticks in
the room to measure how much progression has taken place since
the mid 1970's, when surface mining was largely unregulated.
Mr. Issa. All right. And I would like to delve into that
for a second because this hearing is not about a history of
mining, and yet if we don't know the history, we don't know
where you are here today when people say streams and water and
so on.
My partner in business years ago was from Pennsylvania,
Enon Valley, PA, near the Ohio border. And they did what was
then called strip mining, and quite frankly, he got a nice
lake, but he had some real problems with the rest of the
activities related to the stream in and out, and ended up with
quite a bit of bulldozer work for a period of time to get
things right. But it was the 1970's.
Today what is the before and after in what is being called
mountaintop? What is the standard? Because Mr. Lovett has said,
you know, we're going to destroy 6 square miles, and it's going
to be ruined forever. Now, I've been to Mount St. Helens, so I
understand one thing, you can blow off the top of a mountain,
and it's not necessarily forever because it grows back.
But I don't want to--I don't want to wait, I don't want to
wait the way they have at Mount St. Helens for growth to begin
where the ashes are and so on. How long between the end of
mining operations and a return of substantial forest in a
typical example that you would be involved in?
Mr. Stilley. Where we're involved, in each and every case,
within no more than 60 days or by the next planting season, we
have our sites totally reclaimed where I doubt any person in
this room could--could or would know that any mining had taken
place on that site.
We go through 10 mine sites every 2 years. Our average site
lasts anywhere from 6 months to 3 years, and I can assure you
that's one of the things we take great pride in is the
concurrent reclamation where, again, within a month or two or
by the next planting season, those farms, those timberlands are
returned to a use that's as good as what had existed before our
involvement at the site.
Mr. Issa. Mr. Hamilton, going to West Virginia now----
Mr. Hamilton. Yes.
Mr. Issa. Is it substantially the same? Is there any
ability for an actor to basically do it the way they did it in
the 1970's----
Mr. Hamilton. No.
Mr. Issa [continuing]. And sort of leave you with a pond?
Is it the same that basically within 5 or 6 years after the
secession of mining, you not only have primary growth, but
you've got a considerable amount of growth in the area,
including maintenance of historic water activity?
Mr. Hamilton. Absolutely. And we, we go back a period of
12, 15 years, and you cannot find certain--certain structures
that were there during active mining. In fact, a lot of the,
the mountaintop mining operations or surface mine operations in
West Virginia will actually reclaim during the active mining
process today, will reclaim miles and miles and miles of the
old rigid high walls that were left by mining operations in the
pre-mining period. And we also have example after example
throughout the State where you have recreational, commercial,
and industrial facilities that are developed on these mountain
sites today.
Mr. Issa. Let me ask just two quick questions, then let
anyone that thinks they can help with it. First of all, isn't
it true that in some cases, failed past mining operations of 30
years ago, if they have additional coal resources, are often
the best sites to go in, mine additionally, and get them right?
And second of all, isn't it true during the entire Clinton
administration, the rules that governed those success stories
you talked about were in place and that ultimately over that 8
years of the Clinton administration, mining activities
increased while, in fact, the restoration process probably
reached what is today what we call the gold standard?
Mr. Hamilton. Absolutely. That's absolutely correct.
Mr. Issa. Mr. Stilley, do you pretty much concur with that?
Mr. Stilley. I totally agree with it and can only even
emphasize it further. As I mentioned earlier, about one-third
of the mine sites that we activate or participate in had been
mined previously, where there are existing high walls left,
streams in somewhat bad repair, and in the past 30 years, we've
reclaimed over 200 acres of abandoned mine lands as part and
parcel to our re-mining process and literally have cleaned up
miles upon miles of streams by correcting the deficiencies that
had existed in pre-law situations.
Mr. Issa. Thank you.
Mr. Chairman, my time has expired. What I will say on
behalf of the committee is that if you would like to take up
the offer of actually visiting some of these reclaimed sites,
particularly those that are left better than they were found, I
certainly believe that the committee should make that
investment, and I would be glad to help you with that.
Mr. Jordan. Thank you.
Mr. Kucinich. Will the gentleman yield?
Mr. Issa. My time has expired. I yield back.
Mr. Jordan. Let me say one thing before I yield to the
gentleman. The audience, remember this is a committee hearing,
and let's make sure we remember that as we proceed.
The gentleman from Cleveland is recognized.
Mr. Kucinich. I would just like to say to my friend from
California that I think that's a good idea, and I think it
would be a good idea for us to look at both sides of the
equation. That is where people say they left it better and
where maybe some people in the community say, well, you know,
maybe it wasn't better.
Mr. Issa. If the gentleman would yield?
Mr. Jordan. Of course.
Mr. Issa. I certainly believe that if we do a field
observation, and it's not very far to West Virginia or
Pennsylvania from here, or even Ohio, that we should look at
the sites that are presented to us, review them pictorially,
and then visit them, and I think that would be helpful because
I think the invitation we had here is come see the effect of
mining or not mining in these towns, so I thank the gentleman.
Mr. Jordan. In that vein, if I could, just real quick, Mr.
Stilley, you live in Pennsylvania?
Mr. Stilley. I live in Butler, PA.
Mr. Jordan. And your mines are in that area?
Mr. Stilley. We operate in 10 counties in Pennsylvania, all
central and western Pennsylvania.
Mr. Jordan. Your employees live there?
Mr. Stilley. All my employees live local to where the mines
exist.
Mr. Jordan. You care about your employees, right? They are
the reason you're in business; you make a--you make a profit,
your company?
Mr. Stilley. The only reason I am successful is because of
my employees.
Mr. Jordan. And you all drink the water in that area?
Mr. Stilley. We all drink that water.
Mr. Jordan. We would be happy to come visit at some point.
We will turn now to the gentlelady from California.
Ms. Speier. Mr. Chairman, thank you.
And thank you all for your participation here today.
I'm a little mystified by the discussion that's gone on
because from my reading of some of these documents, it would
suggest that this mining has been going on for a long time. It
predates the Clean Water Act. But the sections that people are
all tied up in a knot about, Sections 402 and 404, are not new.
They've been on the books. They just weren't enforced for the
last 8 years. A new administration comes in and is enforcing an
existing law, and you're all going crazy.
Now, Mr. Lovett, explain to me how large the amount of land
that's been destroyed by mountaintop removal mining is.
Mr. Lovett. Well, remarkably, I don't think anyone has an
accurate number. I've been surprised that the government
doesn't publish the number, but it's certainly over a million
acres by most estimates. And the mining has been going on since
before the passage of the Clean Water Act. However, the size of
mountaintop removal mines has grown dramatically in the last 10
or 12 years and created problems for complying with the Clean
Water Act that didn't exist with smaller mines.
Ms. Speier. Well, actually, this chart, unfortunately, we
can't put it up on the screen, suggests that this little blue
area is where the surface mine production is going on; it's
about 98 million tons. The other U.S. coal production is 977
million tons, and the unused U.S. mine capacity is 360 million
tons. How many employees in this industry?
Mr. Lovett. I don't know about the surface mining industry
in general, but it's approximately 6,000 employees in West
Virginia on all surface mines. It changes from year to year,
but that's the approximate number.
Ms. Speier. You know, there was a lot of discussion about
loss of jobs, and if we could put up the slide that I believe
we do have with jobs at Appalachian coal mines, can we do that?
Well, if we can't do that, this is a chart that suggests
actually--there it is up on the screen--that jobs have actually
increased. Here we are in the middle of a recession, and jobs
in coal mining have increased. Even though that green line
denotes that the demand for Appalachian coal at U.S. plants has
decreased, the number of jobs have actually increased.
So my big concern is talking about something that I don't
think has been addressed yet. There was a West Virginia
University study, scientific study by two doctors, Doctors
Ahern and Hendryx, that found that there was an increased risk
of babies being born with defects of the circulatory or
respiratory system by 181 percent living around mountaintop
mining areas.
The coal industry's response to the study was outrageous.
Now, I'm not attributing it to anyone who is at this table, but
the response was, to this study, a scientific study, that it's
probably not due to the mountaintop coal mining but probably
more likely due to consanguinity, which is another way of
saying inbreeding. Now, that became quite volatile, and I think
the representative who made the statement retracted it, but
either it's a serious problem relative to birth defects or it's
not. It doesn't have anything to do with inbreeding.
So, Mr. Lovett, do you have any comments that you would
like to make?
Mr. Lovett. Well, remarkably, that statement was made by a
lawyer. I mean, it's a terrible statement.
Clearly, the coal industry does what it can do to shift
emphasis elsewhere. There's no doubt that living near one of
these mines is very difficult. There's blasting all the time,
dust; water is contaminated. EPA has determined that 9 out of
10 streams downstream from a mountaintop removal mine are
impaired. It's living in an industrial landscape and very
difficult for people to live in. They breathe dust with
particles in it that are bad for them, and the water is bad
because of these mines. Now, I just want to be clear; this is
not about all mining. I'm only talking about large-scale
mountaintop removal mines. Those mines are very destructive to
the environment and to the communities near them.
Ms. Speier. I think my time has almost expired. I'll yield
back.
Mr. Jordan. Thank the gentlelady.
Mr. Lovett, just let me ask you one quick question before I
turn to Mr. Kelly. Do you think all mountaintop removal mining
should be stopped?
Mr. Lovett. Yes.
Mr. Jordan. Let me ask you this: But isn't that--if that,
in fact--if you believe that that's fine, I guess, but
shouldn't that be decided by the elected Members of the U.S.
Congress? It should be a decision made by the legislative
branch of government, correct?
Mr. Lovett. It should be, and I believe it has.
Mr. Jordan. Not a decision made by going to court and doing
it that way?
Mr. Lovett. No, I don't agree with that. I think that going
to court is a way to make sure that what Congress has passed is
actually enforced.
Mr. Jordan. Just for the record, you believe that should be
a legislative question whether there should be mountaintop
mining?
Mr. Lovett. Without question.
Mr. Jordan. Okay. Thank you.
Mr. Kelly is recognized.
Mr. Kelly. Thank you, Mr. Chairman.
Mr. Hamilton, you, in your testimony, you mentioned nearly
700 permits in West Virginia are up for renewal in the next
couple years. Could you tell us more about the effects that
will be if these permits are not renewed in a timely manner?
Mr. Hamilton. Well, we think the effects would clearly be
devastating. At the current time, again, there is a universe,
as I mentioned in my earlier comments, of near a thousand
permits of some, some type that are pending or must be acted on
here currently, and over the next 24 months there's an
additional 700 to 800 permits which must be renewed, and those
permits come primarily from two watersheds in the State of West
Virginia that represents about half of our production. And they
are not limited to the one or two true mountaintop removal
operations we have currently in the State of West Virginia, but
they--again, we have one or two approved mountaintop mining
operations in the State of West Virginia. We have a number and
a variety of surface mining operations, which often get lumped
into the category of mountaintop removal mines, but--but the--
but the 700 permits, 800 permits pending represent about half
of our State's production from basically two, two watersheds,
and those come from underground mines, surface mines, small
augur mines, again, just the whole gamut.
Mr. Kelly. Yeah, and I've got to tell you, I think the
purpose of today's hearing is about this permitting or lack of
permitting or the inability to get permits done in a timely
manner. And then we start talking about water, and I understand
water and the importance of clean water to everybody.
A couple months ago we had people from the gas company, the
gas industry come in, and they started talking about the
Marcellus Shale and fracking, and just from my past background,
I know that fracking isn't new; it is 60 or 70 years old. But
the question always becomes then about water, and what's going
to happen to the water and how it's going to contaminate the
water.
If you could, and maybe, John, you can weigh in on this,
too, because you're doing some of the drilling right now, but I
think there's a misconception out there about how much water is
being affected by this, and if you could, just a little bit
about the people's perception of what coal mining is doing to
the water and also the Marcellus. It cleared up a lot of
problems for us as far as fracking and the fact that it can be
done very safely and can be done effectively. I think some of
the problems are wastewater. It's not so much the actual
fracking process but the treatment of the wastewater. So if you
could just a little bit weigh in on that, and it could be
anybody.
Mr. Stilley. I can speak to that. You know, again, we've
been through over 350 permitted mines over the past 30 years.
Each and every one of those mine sites requires a full permit
application. Within that permit application, most important to
our regulators, which is the Pennsylvania DEP or at least had
been, is that we can mine the coal with no impact on the water
resources of the Commonwealth, whether it be discharges,
private or public water supplies. If we can't demonstrate that
in the permit application, we, we will not secure a permit from
the Pennsylvania DEP period.
Mr. Kelly. And I think this is important because you have a
chance now to explain some of these things. We talk about
conductivity in the water, and my understanding that is a
bottle of water, a sports drink has actually--doesn't a bottle
of water or sports drink have more conductivity than the EPA
will allow in a particular source of water that we emit? So, I
mean, I think it's important when you understand the overreach
and how far this gets and it goes way beyond what the average
person would understand. If you could just explain a little bit
about this conductivity, John.
Mr. Stilley. If one would look at the label on a bottle of
San Pellegrino drinking water, and I believe the number of
total dissolved solids in that bottle of San Pellegrino is 780.
In the impaired streams, such as the Monongahela River basin,
we are going to be imposed due to the new EPA regulations for
impaired streams a maximum of 250 parts per million sulfates.
So a bottle of San Pellegrino is three times that of what we
can put out of the end of our pipe of any coal mine. That's
pretty tough.
Mr. Kelly. Yeah, I would--I would think so. But again, the
general public doesn't understand these things, and, you know,
we have the bad habit here of letting the perfect stand in the
way of the very good, and we just tend to keep pushing the
stuff down the road.
To all of you in the coal business, I want to thank you for
being here, but the effect of these permits not being issued,
tell me on your businesses, because I also run a small
business, where does this leave you?
Mr. Hamilton. In West Virginia, I'll offer that we think
it's leading to a real crisis in waiting. You know, we've been
in a national recession here, and we've been attempting to
weather that, that storm, as everyone else is, and, you know,
we, we see markets come and go within the coal business. Again,
we ship to some 33 different--33 different States, some 23
foreign, foreign destinations, and, you know, the margins out
there and the competitiveness is about as fierce as it's, as
it's ever been, and currently this recession's picking up, and
we think we're going--we stand to lose a lot of these markets
because we don't have the next block of coal or the next
reserve base permitted, and so and at the current time, you
know, we're into areas that are very, very inefficient, just
trying to keep the people employed, trying to keep the
operation in a state of activeness as we're waiting for the
next sequence of permits to be issued so that we can--so that
we can begin to administer the next 5-year operational plan.
Mr. Kelly. My time has expired. I was going to--Mr.
Mackall, did you want to say anything about your company, where
it puts you as far as the permitting, the inability to get the
permits?
Mr. Mackall. Are you talking to me? Yeah, we have the same
situations. Our mining plans have to be adjusted all the time
because we can't do what we want to do. We have to do--we don't
have it permitted yet. We're always waiting for permits, so
it's a big factor. And, you know, I would also like to say, in
Ohio, that the greatest thing that I've seen in my lifetime in
mining, almost all my lifetime, we've done a lot of reclamation
in the State, and we've improved the water resources in the
State and the streams so much in that time by reclaiming the
old properties that weren't reclaimed before. So we've
continued to make the streams better and better and yet we have
a more and more difficult time in getting the permits.
Mr. Kelly. Very good.
Mr. Stilley.
Mr. Stilley. I echo Mr. Mackall's sentiments totally. I
think it's demonstrated by all the stream redesignations that
have taken place in Pennsylvania over the past 20 years where
all those designations are to better and better streams than
what they had been 20 years ago. A large portion of that
upgrade is a result of the remining that's taken place both in
Ohio and Pennsylvania, and I'm certain as well in West
Virginia. Just by the very nature of how that remining takes
place, we're required to add lots of alkalinity into the
overburden through importation of limestone dust and other
calcareous materials which neutralize any potential for acidity
emanating from those sites that existed before or after our
mining and reclamation takes place.
Mr. Kelly. And I appreciate it.
And I've got to tell you in a country that right now has
over 14 million Americans that wake up today with no place to
go to work, and we're talking about creating jobs, we're
talking about improving our economy, it's hard for those of us
in small business to sit back and watch all that's going on and
the burdens that are being placed in front of you to create
jobs, and then still hear we're going to go after this market;
we're going to be energy producers. A third of the world's coal
is below our surface. It just doesn't make sense to the average
person as to what's going on right now, and I appreciate you
taking time out of your days to come here. I know how tough it
is to run these businesses. Thank you so much. Appreciate your
testimony.
Ms. Buerkle [presiding]. Thank you, Mr. Kelly.
I will now yield myself 5 minutes for questions. First of
all, I want to say thank you to all of our panelists for being
here today and, as Mr. Kelly said, for taking time out of your
schedules to come here and testify.
I want to start with the comment Mr. Lovett made with
regards to the fact that you would like to see all mountaintop
mining ended. So my question is for the other four panelists.
Do you think that the EPA's actions will end or will work
toward the end of ending mountaintop mining as well as any
other type of mining?
Mr. Mackall, I'll start with you.
Mr. Mackall. To end mountaintop mining? Could you repeat
the question?
Ms. Buerkle. Will EPA's actions and what we're seeing and
hearing today, will that--is that really what's going to happen
with what they're doing?
Mr. Mackall. I don't know anything about mountaintop
mining, but I know that it's, it's very difficult for us now
with all the different permits and all the issues that we're
faced with, to, you know, go through all the agencies and do
all the studies and get the permits in a timely manner to keep
our employees working. We so often end up being inefficient
because we don't have it--when we need to build the ponds to
begin a mine, we don't have the permit in the summer season. We
get the permit maybe in the winter when it's harder to do a
good job and putting the ponds in. And so it seems to me that
the EPA and the government is deliberately working against us
to stop us from mining and stop us from employing people.
Ms. Buerkle. Thank you.
Mr. Mackall. It's very difficult.
Ms. Buerkle. Mr. Hamilton.
Thank you, Mr. Mackall.
Mr. Hamilton. I would concur with those remarks. I clearly
think that the Appalachian states represented here today
represent an area that's targeted by this administration and
being carried out by the U.S. Environmental Protection Agency
to do everything within their power to restrict and curtail
productivity, coal productivity from these regions. There has
been absolutely no degradation whatsoever of the water systems.
We have a State that is primarily within a mountainous and
hilly terrain, and so every impact, every earth moving
operation of any kind, whether it's putting a highway through
our State or a shopping center mall or a mining operation, has
some impact on ravines or hillside troughs that only carry or
pass water during a precipitation event. We have the most
stringent water quality standards enforced anywhere in the
world in the State of West Virginia. And we have a booming
tourism industry where people come from all over the Nation to
participate in our outdoor recreational fishing, hunting,
canoeing, white water, so we're real proud of what we do.
But we think that's all in jeopardy right now. Again, we
think that this area's targeted for whatever reason, and, and
we do have a crisis in waiting.
Ms. Buerkle. Thank you, Mr. Hamilton.
Mr. Horton.
Mr. Horton. Yes, ma'am, I do believe that their activities
will end, not only mountaintop mining but very much of the
underground mining in our State, not only our State but the
State of Virginia and Kentucky as well. We have to have a
permit to store our over-burden in order to begin mining,
whether it's underground, high wall mine or surface mine, and
for them to continue down the path that they're on, the
operators and the people with the money are not going to invest
in a operation where they can't have a reasonable guarantee of
some type of economic benefit from their investment. They're
just not going to do it, and that's the absolute truth.
Ms. Buerkle. Thank you, Mr. Horton.
Mr. Stilley.
Mr. Stilley. I would have to say the answer to the question
is a definite yes, and not only will it eliminate mountaintop
removal mining, but all surface mining as we understand it
today. Very simply, by the nature of the delays, the
inconsistencies, and the uncertainty that it creates about
trying to secure a permit, and if you don't have a permit, you
can't go to work, you can't comply with contractual
obligations, you can't keep your men and women working on a
full-time basis.
Ms. Buerkle. Thank you. You know, we hear so often the word
balance and how important it is, whether it's in law or whether
it's in regulations or whether it's with government oversight.
There is a balance, and that balance--and I look at this side
of the ledger and I see we're talking about thousands of jobs,
millions of dollars of tax revenues, community benefits,
schools, hospitals, health care for communities, businesses,
small businesses, you know. Mr. Hamilton, you talked about a
recreation industry in West Virginia. All of these things hang
in the balance, and it concerns me greatly that this regulatory
agency is reaching, far-reaching to the point where it will
hurt these States and these industries to the point where it
just doesn't impact the coal industry. It impacts communities
and towns and millions of people. So I want to thank all of you
for being here today. I see my time has expired. Does anyone
else on the committee have any other questions?
Mr. Kucinich. I just want to say, apropos of what Chairman
Issa said in terms of a field hearing, I hope we have a chance
to go to the Coal River Valley in West Virginia, because
notwithstanding what the gentlemen here say from the industry,
there's been pretty serious complaints and documented reports
about poison water, massive sludge dumps, floods, tumor
clusters, and I think it's important to get that side of the
story as well, and I appreciate the indulgence here, Madam
Chair.
Ms. Buerkle. Again, thank you to all of our panelists for
being here this afternoon, and we will look forward to coming
down and seeing these reclaimed areas and seeing what you do.
Thank you very much.
We are now going to call the third panel. That's right.
Sorry.
We will now welcome our third panel. As witnesses in our
third panel, we have Ms. Nancy Stoner, the acting assistant
administrator for water in the EPA; and Ms. Meg Gaffney-Smith,
chief of the Regulatory Program at the Army Corps of Engineers.
Pursuant to committee rules, all witnesses will be sworn in
before they testify.
If I could ask you to stand. Please raise your right hands.
[Witnesses sworn.]
Mr. Buerkle. Let the record reflect that both witnesses
answered in the affirmative. Thank you.
We'll begin this panel by asking each one of you to give
your opening statements, and just to allow time for further
discussion, if you could limit your comments to 5 minutes, we
would appreciate it. Ms. Stoner, you may begin.
STATEMENTS OF NANCY STONER, ACTING ASSISTANT ADMINISTRATOR FOR
WATER, U.S. ENVIRONMENTAL PROTECTION AGENCY; AND MARGARET E.
GAFFNEY-SMITH, CHIEF, REGULATORY COMMUNITY OF PRACTICE, ARMY
CORPS OF ENGINEERS
STATEMENT OF NANCY STONER
Ms. Stoner. Thank you, and good afternoon. I'm 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 America's waters, including those
in Appalachia.
Let me start by repeating something that EPA Administrator
Lisa Jackson has said many times. Americans do not need to
choose between having clean water and a healthy economy. They
deserve both. EPA is committed to work together with coal
companies, States, the Army Corps of Engineers, and other
Federal agencies to reduce coal mining pollution and protect
the health and environment of coal field communities and
protect the Nation's economic and energy security.
We at EPA have a responsibility under the Clean Water Act
to ensure that surface coal mining projects do not impair water
quality or endanger human health or environmental health. We're
committed to fulfilling that responsibility because we believe
that every community deserves our full protection under the
law. In the last 2\1/2\ years, we've worked with our Federal
and State colleagues and with mining companies to design
projects so that they do not adversely affect water quality so
that they can move ahead.
We all want our communities to be successful. Public and
ecosystem health 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've seen in parts of the world where people have
inadequate access to clean water and are forced to rely on
contaminated sources. Healthier watersheds means healthier
people.
In 2010 an independent peer-reviewed study by two
university professors found that communities near degraded
streams have higher rates of respiratory, digestive, urinary,
and breast cancer. That study was not conducted in a far-off
country. It was conducted in Appalachian communities only a few
hundred miles from where we sit today.
A peer-reviewed West Virginia University study released in
May concludes that Appalachian citizens in areas affected by
mountaintop mining experience significantly more unhealthy days
each year than the average American.
And a peer-reviewed study released days ago concluded that
babies born to mothers who live in mountaintop mining areas of
Appalachia have significantly higher rates of birth defects
than babies born in other areas.
In addition to health studies, peer-reviewed science has
increasingly documented the effects of surface coal mining
operations on downstream water quality and aquatic life. 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 and independent scientists have emphasized the role
of high selenium levels in causing developmental effects in
fish. Peer reviewed studies by EPA scientists have concluded
that the environmental effects of surface coal mining include
resource loss, water quality impairment, and degradation of
aquatic ecosystems.
It's been a high priority of this administration to reduce
the substantial human health and environmental consequences of
surface coal mining in Appalachia and to minimize further
impairment of already compromised watersheds. In carrying out
this goal, we've demonstrated a constructive approach in our
work together with the Army Corps, with the States, and with
mining companies, and do you know what we found? When people of
goodwill work together, we're able to find approaches that
allow mining companies to move forward without degrading water
quality. And that's what we're working to accomplish every day
at EPA, protecting lives and livelihoods.
Let me make two specific points. First, EPA has not placed
a moratorium on coal mining permits. More than a hundred Clean
Water Act permits have been approved for Appalachian coal
mining operations in the past 2\1/2\ years. EPA's regional
offices work every day to review these and other permits, and
they work with companies, the Army Corps, and other Federal and
State agencies to discuss and resolve issues that emerge.
At the end of the day, the permits that are being issued
provide improved environmental and health protection for
Appalachian communities as well as jobs and economic and energy
benefits to citizens of Appalachia.
Second, initial monitoring data show that mines that use
modern practices to protect the environment can achieve
downstream water quality well below levels of concern. These
mining operations are designed to protect water quality and
human health while also mining coal and providing jobs. It's
being done at mines in Appalachia today.
In conclusion, Madam Chairwoman, science has told us that
when we don't protect our waters from coal pollution, our
communities and future generations will suffer. The costs of
pollution are borne by the citizens of Appalachia who drink the
water, breathe the air, and sweep the coal dust from their
homes. As leaders, we should be taking every possible step to
help 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.
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 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 is doing so every day in its work to
review permits and ensure they provide a path for mining coal
while preserving the health and welfare of Appalachian
communities. We'll continue to work with our Federal partners,
State agencies, the mining industry, and the public to fulfill
our common goal of reducing adverse impacts to water quality,
aquatic ecosystems, and human health. Thank you.
[The prepared statement of Ms. Stoner follows:]
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Ms. Buerkle. Thank you, Ms. Stoner.
Ms. Gaffney-Smith.
STATEMENT OF MARGARET E. GAFFNEY-SMITH
Ms. Gaffney-Smith. Good afternoon, Vice Chairwoman Buerkle,
Ranking Member Kucinich, and members of the subcommittee.
Ms. Buerkle. If I could interrupt, is your microphone on?
Ms. Gaffney-Smith. Yes. I am Meg Gaffney-Smith, chief of
the regulatory program for the U.S. Army Corps of Engineers.
Thank you for the opportunity to discuss our regulatory
authority under Section 404 of the Clean Water Act and our
involvement in surface coal mining activities.
The Clean Water Act requires the Corps to regulate the
discharge of dredged or fill materials into waters of the
United States, which would include streams and wetlands in
Appalachia. It's important to note that when I use the term
streams, I'm referring to a very large category of water
bodies, ranging from major rivers like the Potomac to smaller
headwater, intermittent, and ephemeral streams. Activities that
are similar in nature and that are expected to cause no more
than minimal effects individually and cumulatively may be
authorized by a general permit.
Activities that do not meet the criteria for a general
permit are processed under standard individual permit
procedures which have an opportunity for public notice and
comment, project-specific environmental review, and a public
interest determination. The Corps can only authorize those
activities that are not contrary to the public interest and may
authorize the least environmentally damaging practicable
alternative so long as that alternative does not have other
significant adverse environmental consequences.
The Corps is neither an opponent nor a proponent for any
project. Our 38 district commanders are responsible for making
fair, objective, and timely permit decisions. Various
components of surface coal mines, such as valley fills,
sediment control ponds, stream mine throughs and road crossings
typically involve the discharge of fill material into waters of
the United States. In the Appalachian region, these activities
usually occur in small ephemeral and intermittent streams in
the upper reaches of these watersheds. When considered in a
surface area context, the stream and riparian areas within the
Corps' scope of analysis usually represent a very small
percentage of the total acreage involved in a large surface
coal mining project.
A key point is that compared to OSM, EPA and the States,
the Corps 404 regulatory authority for surface coal mining is
much more limited and focuses on impacts to aquatic resources.
In the early 2000's, we recognized that Federal and State
agency regulatory programs dealing with surface coal mining
projects were poorly integrated. This was not good for the
economy or environmental protection. As a result, in 2005, 4
agencies signed an interagency MOA to improve the integration
of regulatory processes, minimize redundancy, and improve
coordination and information sharing with the ultimate goal of
improving environmental protection. Unfortunately, for a
variety of reasons, implementation of the MOU was somewhat
inconsistent.
At the beginning of this administration in 2009, the
agencies reinvigorated their efforts to strengthen interagency
collaboration, signing a new MOU to implement an interagency
action plan intended to improve permit reviews. In June 2009,
EPA and the Corps established a review framework called the
Enhanced Coordination Procedures [ECP]. The ECP applies only to
permit applications that the Corps had previously public
noticed or coordinated with EPA as of March 31, 2009. The
purpose of the ECP was to provide the agencies with an
opportunity to more closely coordinate on these projects.
Of the 79 applications that were on the final ECP list, 8
permits have been issued and 50 applications have been
withdrawn for a variety of reasons; 21 applications are still
pending. Since the MOU--since the 2009 MOU, we try to discuss
proposed projects with applicants early in the design process
and attempt to address agency concerns. For example, thus far
in 2011, our collaborative review with EPA and other agencies
has resulted in the issuance of 18 permits for mining-related
activities in the Appalachian districts. We work with
applicants to improve the ecological success of stream
mitigation, applying lessons learned from successful projects
and by conducting joint agency permittee site visits.
In November 2010, the Corps implemented an impact
mitigation assessment tool to more effectively and efficiently
evaluate impacts and proposed mitigation measures. The Corps
understands and appreciates the economic importance of mining
to our economy and our national energy security. We are also
aware of the environmental concerns associated with surface
coal mining. We work with agencies and applicants to avoid or
reduce these impacts.
The heart of the Corps' regulatory program is the public
interest review process which is designed to produce fair and
balanced permit decisions which includes protection of the
aquatic environment. I appreciate the opportunity to be here
today, and I will be happy to answer any questions you may
have. Thank you.
[The prepared statement of Ms. Gaffney-Smith follows:]
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Ms. Buerkle. Thank you both very much for your opening
statements. I now yield the gentleman from Pennsylvania 5
minutes for questions.
Mr. Kelly. Thank you, Madam Chairman.
Miss Stoner, I have a question on this, and this is
something I had written Ms. Jackson about a concern that we
have, not just myself, but eight members of the Pennsylvania
delegation, and it has to do with the fact that the
Pennsylvania DEP for 19 years had primacy over permitting, and
all of a sudden, EPA comes in and says, you know what, we need
to step in now and do that, and the concern is, why? What
possibly could have happened?
And the response that I got from Miss Jackson, and I'm
going to ask to submit these to the record, not only our
original letter but also letters back from the EPA and also Mr.
Krancer, who is the secretary for the Department of
Environmental Protection Pennsylvania, he also has questioned
why the EPA has stepped in and is there something that I'm----
Mr. Buerkle. Without objection.
Mr. Kelly [continuing]. Not understanding or something that
happened. You have to do that without objection, I'm sure. So
without objection.
Ms. Buerkle. Without objection.
Mr. Kelly. Okay, thank you. If you could.
Ms. Stoner. Yes, thank you for that question. Pennsylvania
has primacy over the Clean Water Act 402, the Pollution Control
Program, that has not changed, and EPA continues to work on a
regular basis with the State of Pennsylvania in its role, which
is a role of oversight, so we look at particular problems. So
some of the correspondence that I've seen has to do with
discharges of pollution into already impaired waters. Those are
waters that are polluted already, and the permit, for example,
doesn't have a limit for the kind of pollutant that's being
discharged. That's the kind of issue that EPA raises in
comments that it submits to the State. The State is the permit-
issuing authority in Pennsylvania.
Mr. Kelly. Okay. Because in the letter I received back,
this says EPA is unaware of any specific violations in terms of
the memorandum of agreement, and so it causes one to wonder,
because the meeting today is actually or the hearing today is
about permitting, and the ability to get permitting done
quickly because these folks that run these businesses don't
have the ability, as government does, to stall and hold up and
not really worry about doing things in a timely fashion. Their
businesses are at risk and the people they employ are at risk
all the time, so I wonder about it. Right now there are--if my
numbers are right, there's 25 NPDES permits that have been sent
to the EPA for further review. Can we get a commitment from the
EPA on when these permits will be reviewed?
Ms. Stoner. Are you speaking of 402 or 404 permits? I'm
just not sure what number you're looking at?
Mr. Kelly. Here's what--402.
Ms. Stoner. 402 permits? We do take our responsibility very
seriously to provide that review promptly and try to resolve
issues as soon as we can. And as soon as the permit meets the
requirements of the Clean Water Act, we try to get back to the
State as rapidly as possible to let them know that. And I spoke
with Region III about the correspondence, and they are working
very hard to get those permits cleared by ensuring that they
comply with the law. But what we've been filing is comments on
those permits, to a large extent, which does not stop the
permit from being issued. It identifies issues of concern for
the State.
Mr. Kelly. Okay, because when I look at this, we have six
permits have been waiting for 30 days; four have been waiting
for 60 days; eight have been waiting for 90 days; two have been
waiting for 120 days; one has been waiting over 6 months; and
four have been waiting for over a year from the EPA. So in a
world where time is of the essence and the ability to get these
permits done, this has nothing to do with clean water--I would
agree with you entirely that we all want the same thing, but
when we hold businesses up because we can't process permits
quickly, which is the whole purpose, again, of today's hearing,
I just wonder, can the EPA actually do this in a timely fashion
and in a way that will allow these companies to stay in
business?
Ms. Stoner. I completely agree with you about the
importance of doing our job promptly, absolutely.
Mr. Kelly. Okay, so the commitment then from the EPA would
be----
Ms. Stoner. I'll talk with the region, and I'll make sure
that we move forward as rapidly as we can on those permits.
Mr. Kelly. Okay, because some of these people, I mean, we
have one waiting for 6 months and four have been waiting for
over a year, so I would ask you to, please--and I know that
your schedule's full and I know everything that's going on, but
we have to move really quickly on this. So I appreciate you
being here today and thank you for the job you're doing, but we
do have to get this stuff to move forward.
Ms. Stoner. We'll look into it. I don't know the details of
those, but I will look into those, you have my commitment to do
so.
Mr. Kelly. And I appreciate that. And we put the letters
into the record, so you can take a look at those also because
not only myself but my other friends in the Pennsylvania
delegation and Secretary Krancer from the Pennsylvania DEP
would also like an answer on some of those things, so I
appreciate it. Thank you.
Ms. Stoner. Very good.
Mr. Kelly. And I yield back, Madam Chair.
Ms. Buerkle. I now yield 5 minutes to the ranking member,
Mr. Kucinich from Ohio.
Mr. Kucinich. Thank you very much.
I want to acknowledge my friend from Pennsylvania, who is a
very strong advocate of business, and, you know, we've sat in
many hearings where I've heard you, from your own experience,
talk about the frustrations that businesses have.
I was looking at the testimony of Ms. Stoner. She just had
a chance to read some of it. And she talks about how just this
month, the EPA worked with the Mid-Vol Coal Sales and West
Virginia Department of Environmental Protection to develop a
permit that includes a numeric limit on iconic pollution for
the Dry Branch Surface Mine, preserving 150 jobs. And then,
later on, she talked about how the EPA and the Corps worked
together with Hobet Mining, Inc., in early 2010 to authorize a
project that reduced stream impacts by 50 percent, enabled
continued coal production, protected jobs of more than 350
miners.
The thing about your testimony that I found striking in
view of the previous panel was when you cited peer-reviewed
public health literature in speaking of potential association
between negative human health effects and the documentation of
coal mining activities. Peer-reviewed public health literature
has primarily identified associations between increases in
surface coal mining activities and increasing rates of cancer,
birth defects, and other serious health consequences in
Appalachian communities. That's a direct quote from your
testimony.
You know, what I think we're really talking about here is
trying to strike a balance where those who are trying to do the
right thing and comply with the law are assisted in the
permitting process. And on the other hand, those who are the
bad actors--and they're in every line of endeavor--that the EPA
will weigh in on the side of public health. Is that a correct
way of describing how you see your mission?
Ms. Stoner. Yes, it is.
Mr. Kucinich. And I think the--I think the American public
really is interested in that kind of a direction because we had
a recent poll by the Natural Resources Defense Council that
found that Americans want EPA to do more to protect them, not
less, that two-thirds of Americans polled--well, actually 63
percent said the EPA needs to do more to hold polluters
accountable in protecting air and water.
I think, again, the point that's made in this hearing is
that we want to create a balance between protecting jobs and
protecting the environment, and actually protecting the air and
water quality does have a positive economic impact as well.
So--but those who say, I don't want any regulation, those that
say there's no legitimate role for the EPA, I think we have to
look at them with suspicion, look at them very carefully.
And I have to say to my friends on this committee, you
know, I saw this documentary about, you know, what's happening
in West Virginia and, granted, it came from a particular point
of view, but, you know, there are people who are suffering
adverse health effects. And these studies that are done, they
don't seem to include any other possibilities other than the
fact that it was, you know, the effects of the mining. There
was no other--all the other variables were ruled out. So, you
know, as we continue as a committee and as the House to get
into these issues, you know, I think that it may be that the
EPA is on the right track in terms of being much more careful
about the permitting process, but at the same time, you're
showing a record where people are doing the right thing, that
you are trying to assure that they are able to continue.
So I just wanted to make those observations and thank Ms.
Stoner for her testimony.
And I saw in your presentation, you're very passionate
about this. I could tell. You really do care about it. And that
speaks well.
And I appreciate Ms. Gaffney-Smith's service as well. Thank
you very much.
Ms. Stoner. Thank you.
Ms. Buerkle. Thank you very much.
I'll now yield myself 5 minutes for questions. I just want
to clarify, Ms. Stoner, with regards to permits. In your
testimony, in your opening statement, you mentioned that there
is no moratorium on permits and that in the last 2\1/2\ years,
100 permits have been granted. Now, those are just permits in
general, permits for what?
Ms. Stoner. I was referring to both 402 and 404 permits.
And those are for mining operations in Appalachia, I believe.
Ms. Buerkle. So what about the enhanced review because
there's 79 permits?
Ms. Stoner. Not all of the permits that are issued by the
Army Corps of Engineers, which is the 404 permits, or the 402
permits, which are actually issued by the States in Appalachia,
not all of them are part of that ECP process. So we did provide
that enhanced coordination procedure process information to
you. I believe it's attached to Ms. Gaffney-Smith's testimony--
that's hard to say--Ms. Gaffney-Smith's testimony this evening.
Ms. Buerkle. So the 100 in your opening statement were the
402s and the 404s, not the enhanced permits.
Ms. Stoner. There's a subset of them. There were particular
permits that were identified for additional review. And those
are in the Enhanced Coordination Procedures. And there were 79
that were identified there in the chart that was attached to
the testimony identifies what the status is of all of those.
My understanding of two of those are currently in review.
One has been proffered, I believe one of those two, and there
are eight that have been issued. But there are lots of other
permits that are also being issued at the same time, through
both general and individual permitting mechanisms. And that's
what I was referring to.
Ms. Buerkle. Okay. Ms. Gaffney-Smith, could you just speak
to the 22 that were--the 49, I'm sorry, the 49 that have been
withdrawn.
Ms. Gaffney-Smith. Okay. Actually, the correct number for
the number of applications that have been withdrawn is 50. We
have 50 applications that were withdrawn, and they've been
withdrawn for a number of reasons. In some circumstances, the
districts reached out to the companies to talk to them about
whether or not they were ready to provide the additional
information that was requested and whether or not they could
provide that information within a timely manner. In other
instances, the companies asked for us to withdraw their
application, and therefore, we did that. And so those 50
applications reflect those 50 of 79 that were withdrawn.
Ms. Buerkle. Okay. Thank you.
I want to speak to the issue that my colleague from Ohio,
Mr. Kucinich, brought up with regards to, and this question is
for Ms. Stoner, with regards to the new information in this
increased cases of cancer. With a health care background, this
is of interest to me and certainly of concern to me. In your
written testimony, you claim that the EPA uncovered new
information under scientific review. However, the Army Corps of
Engineers said that no such review was discoverable and that--
so I'm trying to understand, you're saying there was new
evidence. Army Corps of Engineers said there was not any new
evidence.
We have a slide up on the screen. And this was from a
letter the Army Corps sent to the EPA. It says, a review of the
bibliography attached to the EPA's letter does not reveal any
research conducted by them in 2008. The study contains no new
circumstances or information that the Army Corps of Engineers
has not previously considered. So could you comment on that?
Ms. Stoner. Yes. My understanding is that we have five
boxes of scientific studies that my staff have copied that are
articles about the environmental and public health impacts of
mountaintop mining from 2007 to the present, which was the time
of the issuance of that. And we would be happy to submit those
for the record if you would like us to do so.
We felt like there was new information that was very
important there. I think there's already been discussion about
the kinds of environmental impacts and the more than 6 miles of
stream impacts from that particular proposed mine.
Ms. Buerkle. Thank you.
Let me just ask Ms. Smith. Was the Court made aware of
this, or was this submitted for----
Ms. Gaffney-Smith. What I can state about this activity,
this Spruce veto is--I have to be careful because it's an
active litigation. But I will say that when the district
commander reviewed the information that was provided by the EPA
in the letter that you're referencing, the district commander,
in accordance with our regulations, made a determination that
there wasn't any new information which would be required in
order to suspend or revoke that issued permit.
Ms. Buerkle. Thank you very much. I see my time has
expired.
We can go have another round of questions.
Mr. Kelly. Oh, I'm sorry.
Mr. Kelly. Thank you, Madam Chair.
I just want to make a quick comment, because I know the day
is running late, and I want to thank you for coming down today.
I know it's hard. Our schedule doesn't always allow things to
run on time.
But I did want to make a really clear comment that this
really, the hearing today, we all want clean water, and we want
clean air. And I agree with Mr. Kucinich. That is our major
concern. I would be the last one in the world to say that
that's not what we want because yeah, the truth of this is
these people that are doing this mining, they live in the same
community. They raise their children in that community. They're
going to live there for a long time, and they want everything
safe for their kids and their grandchildren.
I think one of the things we fail to realize sometimes is
that this is a business that requires, again, as I said
earlier, a time is of the essence on this permitting. And in a
country that relies on over 50 percent of its electricity
generated through coal and the opportunities this country has,
the natural resources, to be totally energy independent of
anybody else in the world, we don't need to rely on people who
don't like us particularly for our energy. But when we look at
this, and we look at how some of these companies are being held
back, that's my concern. I think that was the concern of the
hearing today.
So I wanted you to understand I do appreciate what you're
doing. Clean water is important to me also. I'm a father and a
grandfather. I take kids out, and I watch them play outside. I
take them to get drinking water and everything else, so I
understand. So I think sometimes, we come across as people who
are making too much sense and are not sensitive enough. But I
do think that all of us have the same goals, and that's to make
sure that we maintain the quality of the water we have, make
sure we get the best out of everything, but also, let's make
sure that we are not holding back job creators from doing what
they can do and that is to turn this economy around and get us
back to work. So thank you so much for being here today. I
appreciate it. Thank you, madam chair.
Ms. Buerkle. Thank you.
I now yield 5 minutes to the ranking member, Mr. Kucinich.
Mr. Kucinich. I think it's important what Mr. Kelly just
said because you know, it's very easy to paint everything here
in black and white.
But we want clean water. We want clean air. And I would
just say to my friend, that when you see--I understand you have
to go--but when we see that there are egregious violations, we
have to follow them.
And Madam Chair, I had a chance to see a documentary on
Coal River Valley, WVA, it was called, ``The Last Mountain
Top.'' And again, you know, I'll submit, there was a certain
point of view that was guiding it. At the same time, they
raised some compelling issues about the environment and about
the effects of people, about the effects the practice of
dynamiting mountain tops and about the air and the water
pollution, about the health effects to people.
And again, going back to what our chairman said, Mr. Issa,
when he talked about the field hearing; I'm going to ask Mr.
Issa if one of the places we go would be to go to Coal River
Valley to hear what the people have to say because we need to
see the people that are living with this and maybe learn a
little bit about the direction we should be take.
So I thank the gentlelady for her indulgence.
Ms. Buerkle. Thank you, Mr. Kucinich.
I have one last question, if you would both indulge me.
This also was in the letter, and I'm going to enter it into the
record, if there is no objection, a letter from the Army Corps
of Engineers to the EPA dated September 30, 2009. Submit that
for the record.
And we have the slide up on the screen. I'll read it. It
says that, this is from the Army Corps of Engineers, further,
the West Virginia Environmental Protection Agency has advised
that the district's Spruce No. 1 mine is currently in
compliance with their existing authorizations for the mine.
Therefore, I have determined that no additional evaluation of
the project's effects on the environment are warranted. The
permit will not be suspended, modified or revoked, and a
supplemental EIS will not be prepared.
So I'm trying to understand why then the EPA went ahead and
revoked that license. I'll ask you that question, but first, I
want to ask Ms. Smith if she has a comment on that.
Ms. Gaffney-Smith. I don't have any comment on that. That
was the district commander's position on that request from EPA.
Ms. Buerkle. Ms. Stoner.
Ms. Stoner. So there's mining at Spruce that has been going
on and has continued throughout. And that is mining goes into a
creek called Seng Camp, and that has never been stopped. It
was--but mining never proceeded in the other two creeks, and
that was the activity that EPA found, if that mining was to
proceed into those other two creeks, then there would be an
unacceptable adverse impact on the wildlife there.
And that was the determination we made based on all of the
information, the years of study that had been done there. And I
mentioned earlier, the 6.6 miles, the impacts on the wildlife,
the diverse, very high quality streams that were affected
there. That was a decision that we made under 404(c).
Ms. Buerkle. But I'm confused because the Army Corps does
address that issue, that Spruce No. 1 mine, they were talking
specifically about that, was in compliance. And this was 3
years, now, later, and their permit was revoked. It goes back
to that balance issue. How do you expect these businesses to
get started to invest what they have invested and then 3 years
into the project their permit is revoked for what seems to be,
according to the Army Corps of Engineers, they're in
compliance, they can't find any new scientific evidence, and--
--
Ms. Stoner. I feel like I'm not explaining this clearly.
What I was trying to explain is that it wasn't because of
violations for the mining activity that was occurring at Seng
Camp. That wasn't the reason that EPA moved forward with the
404(c). It was the prospective harm to the streams that would
have been filled, the 6.6 miles of streams that would have been
filled and the downstream impacts to the entire watershed,
which was already downstream waters which were already impaired
due to mining discharges. That was the basis of EPA's decision.
Ms. Buerkle. Thank you.
Ms. Smith, let me ask you this. Are you aware that the EPA
incorrectly identified the location of the Seng Camp in its
concerns to the Army Corps and their request to revoke the
permit?
Ms. Gaffney-Smith. I am not aware of that.
Ms. Buerkle. It's in the letter that the Army Corps sent
to.
Ms. Gaffney-Smith. It's in the 2009 letter and I just can't
speak to that because that's a district commander letter, and I
don't have the facts at my, off the tip of my tongue.
Ms. Buerkle. Thank you. Is there a way that you could
provide us with whether or not the Army Corps, you could
provide that answer to the committee, whether or not the Army
Corps was aware that the EPA used the, they incorrectly
identified the location of the Seng Camp?
Ms. Gaffney-Smith. Yes, ma'am.
Ms. Buerkle. Okay. If there are no further comments or
questions, we will conclude our questions.
And again, we thank you for being here for your commitment.
I want to just again reiterate what the ranking member said, as
well as Mr. Kelly. This is about a balance, and this is about
keeping our air and our water clean so that the communities can
enjoy it. But it is also a concern that the EPA stands squarely
in the middle of jobs and getting this economy back on track
and creating obstacles for these industries. So, hopefully, we
can strike that balance and do what's right for this country.
With that, this hearing is adjourned. Thank you.
[Whereupon, at 5:35 p.m., the subcommittee was adjourned.]
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