[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]




                EPA'S BRISTOL BAY WATERSHED ASSESSMENT:
                         A FACTUAL REVIEW OF A
                         HYPOTHETICAL SCENARIO

=======================================================================

                                HEARING

                               BEFORE THE

                       SUBCOMMITTEE ON OVERSIGHT

              COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               ----------                              

                             AUGUST 1, 2013

                               ----------                              

                           Serial No. 113-46

                               ----------                              

 Printed for the use of the Committee on Science, Space, and Technology







[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]











                EPA'S BRISTOL BAY WATERSHED ASSESSMENT:
                         A FACTUAL REVIEW OF A 
                         HYPOTHETICAL SCENARIO

=======================================================================

                                HEARING

                               BEFORE THE

                       SUBCOMMITTEE ON OVERSIGHT

              COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             AUGUST 1, 2013

                               __________

                           Serial No. 113-46

                               __________

 Printed for the use of the Committee on Science, Space, and Technology



[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


       Available via the World Wide Web: http://science.house.gov



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              COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY

                   HON. LAMAR S. SMITH, Texas, Chair
DANA ROHRABACHER, California         EDDIE BERNICE JOHNSON, Texas
RALPH M. HALL, Texas                 ZOE LOFGREN, California
F. JAMES SENSENBRENNER, JR.,         DANIEL LIPINSKI, Illinois
    Wisconsin                        DONNA F. EDWARDS, Maryland
FRANK D. LUCAS, Oklahoma             FREDERICA S. WILSON, Florida
RANDY NEUGEBAUER, Texas              SUZANNE BONAMICI, Oregon
MICHAEL T. McCAUL, Texas             ERIC SWALWELL, California
PAUL C. BROUN, Georgia               DAN MAFFEI, New York
STEVEN M. PALAZZO, Mississippi       ALAN GRAYSON, Florida
MO BROOKS, Alabama                   JOSEPH KENNEDY III, Massachusetts
RANDY HULTGREN, Illinois             SCOTT PETERS, California
LARRY BUCSHON, Indiana               DEREK KILMER, Washington
STEVE STOCKMAN, Texas                AMI BERA, California
BILL POSEY, Florida                  ELIZABETH ESTY, Connecticut
CYNTHIA LUMMIS, Wyoming              MARC VEASEY, Texas
DAVID SCHWEIKERT, Arizona            JULIA BROWNLEY, California
THOMAS MASSIE, Kentucky              MARK TAKANO, California
KEVIN CRAMER, North Dakota           ROBIN KELLY, Illinois
JIM BRIDENSTINE, Oklahoma
RANDY WEBER, Texas
CHRIS STEWART, Utah
VACANCY
                                 ------                                

                       Subcommittee on Oversight

                   HON. PAUL C. BROUN, Georgia, Chair
F. JAMES SENSENBRENNER, JR.,         DAN MAFFEI, New York
    Wisconsin                        ERIC SWALWELL, California
BILL POSEY, Florida                  SCOTT PETERS, California
DAVID SCHWEIKERT, Arizona            EDDIE BERNICE JOHNSON, Texas
KEVIN CRAMER, North Dakota
LAMAR S. SMITH, Texas


























                            C O N T E N T S

                             August 1, 2013

                                                                   Page
Witness List.....................................................     2

Hearing Charter..................................................     3

                           Opening Statements

Statement by Representative Paul C. Broun, Chairman, Subcommittee 
  on Oversight, Committee on Science, Space, and Technology, U.S. 
  House of Representatives.......................................     7
    Written Statement............................................     8

Statement by Representative Dan Maffei, Ranking Minority Member, 
  Subcommittee on Oversight, Committee on Science, Space, and 
  Technology, U.S. House of Representatives......................     9
    Written Statement............................................    11

                               Witnesses:

Mr. Lowell Rothschild, Senior Counsel, Bracewell & Giuliani LLP
    Oral Statement...............................................    13
    Written Statement............................................    14

Dr. Michael Kavanaugh, Senior Principal, Geosyntec Consultants, 
  and Member, National Academy of Engineering
    Oral Statement...............................................    23
    Written Statement............................................    25

Mr. Wayne Nastri, Co-president, E4 Strategic Solutions; Former 
  Regional Administrator, USEPA Region 9
    Oral Statement...............................................    44
    Written Statement............................................    46

Mr. Daniel McGroarty, President, American Resources Policy 
  Network
    Oral Statement...............................................   112
    Written Statement............................................   114

Discussion.......................................................   121

             Appendix I: Answers to Post-Hearing Questions

Mr. Lowell Rothschild, Senior Counsel, Bracewell & Giuliani LLP..   140

Dr. Michael Kavanaugh, Senior Principal, Geosyntec Consultants, 
  and Member, National Academy of Engineering....................   150

Mr. Wayne Nastri, Co-president, E4 Strategic Solutions; Former 
  Regional Administrator, USEPA Region 9.........................   187

Mr. Daniel McGroarty, President, American Resources Policy 
  Network........................................................   204

            Appendix II: Additional Material for the Record

Letter submitted by Tom Crafford, Director, Office of Project 
  Management & Permitting, Department of Natural Resources, State 
  of Alaska......................................................   208

Letter submitted by Amanda E. Aspatore, Associate General 
  Counsel, National Mining Association...........................   218

Letter submitted by William L. Kovacs, Senior Vice President, 
  Environment, Technology & Regulatory Affairs, Chamber of 
  Commerce of the United States of America.......................   219

Letter submitted by R. Bruce Josten, Executive Vice President, 
  Government Affairs, Chamber of Commerce of the United States of 
  America........................................................   222

Letter submitted by the American Fly Fishing Trade Association; 
  American Rivers; American Sportfishing Association; Bass 
  Anglers Sportsmen Society; Berkeley Institute; Campfire Club of 
  America; Dallas Safari Club; Delta Waterfowl; Ducks Unlimited; 
  Orion, The Hunter's Institute; Pope & Young Club; Quality Deer 
  Management Association; Theodore Roosevelt Conservation 
  Partnership; Trout Unlimited; Wild Sheep Foundation; Wildlife 
  Forever; and Wildlife Management Institute.....................   224

Letter submitted by Sport Fishing and Hunting Interests on 
  Bristol Bay Alaska.............................................   226

Comments submitted by the United Tribes of Bristol Bay...........   283

Comments submitted by the Bristol Bay Native Corporation.........   295

Letter submitted by Myron Ebell, Director, Center for Energy and 
  Environment, Competitive Enterprise Institute..................   305

Comments submitted by Myron Ebell, Director, Center for Energy 
  and Environment, Competitive Enterprise Institute..............   307

Joint letter submitted by six federally-recognized Tribes in the 
  Kvichak and Nushagak River Drainages of Southwest Alaska.......   309

Letter submitted by Geoffrey Y. Parker, Counsel for several 
  federally-recognized Tribes....................................   329

Letter submitted by David Harsila, President, Alaska Independent 
  Fishermen's Marketing Association..............................   337

EPA letter submitted by Sport Fishing and Hunting Interests on 
  Bristol bay Alaska (Nov. 2010).................................   338

Letter submitted by Tiffany&Co...................................   362

Comments submitted by Amanda E. Aspatore, Assistant General 
  Counsel, National Mining Association...........................   365

Comments submitted on behalf of the Natural Resources Defense 
  Council........................................................   370

Letter submitted by William Riley, formally worked for the U.S. 
  Environmental Protection Agency's Region 10 Office in Seattle, 
  Washington.....................................................   389

Article submitted for the record.................................   399

Letter submitted by Chris Wood, President and CEO, Trout 
  Unlimited......................................................   401

Letter submitted by Thomas G. Yocom, formally served as National 
  Wetlands Expert for the U.S. Environmental Protection Agency...   404

 
                EPA'S BRISTOL BAY WATERSHED ASSESSMENT:
              A FACTUAL REVIEW OF A HYPOTHETICAL SCENARIO

                              ----------                              


                        THURSDAY, AUGUST 1, 2013

                  House of Representatives,
                                  Subcommittee on Oversight
               Committee on Science, Space, and Technology,
                                                   Washington, D.C.

    The Subcommittee met, pursuant to call, at 1:04 p.m., in 
Room 2318 of the Rayburn House Office Building, Hon. Paul Broun 
[Chairman of the Subcommittee] presiding.


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Chairman Broun. The Subcommittee on Oversight will come to 
order.
    Good afternoon, everyone. In front of you are the packets 
containing the written testimony, biographies, and Truth in 
Testimony disclosures for today's witnesses. I now recognize 
myself for five minutes for an opening statement.
    The title of today's hearing is, ``EPA's Bristol Bay 
Watershed Assessment: A Factual Review of a Hypothetical 
Scenario.''
    I would like to extend a particularly warm welcome to our 
witnesses and thank you all for joining us here today, and 
really appreciate your coming and testifying before the 
Committee.
    Last year, the U.S. Environmental Protection Agency 
released a draft watershed assessment of the Bristol Bay area 
in Alaska at the request of several Alaskan tribes and 
organizations concerned about the potential of mining activity 
in the region. This assessment, which by some estimates has 
cost taxpayers a minimum of $2.4 million, has undergone a peer 
review process and was re-released earlier this year as a 
second draft. However, EPA has not finalized the assessment, 
nor has it specified the ultimate purpose of the document. One 
concern--not denied by EPA--is that the assessment may be the 
basis of a preemptive veto where the agency would prohibit a 
mining company from even applying for mine permits. It is 
important to note that as of this point, no mining permits have 
been filed in Bristol Bay. That means that EPA's watershed 
assessment is based on hypothetical mining scenarios, and 
according to one mining supporter, ``it is a fantasy for the 
government to say here is a mine plan.''
    Further, one of our witnesses today, Dr. Kavanaugh, a 
member of the National Academy of Engineering, states that 
EPA's assessment, ``exaggerates the probability of failures, 
relies on worst-case scenarios to support a qualitative 
judgment on the potential impacts of these failures, does not 
adequately consider modern engineering, construction, 
operations and maintenance practices, and thus provides an 
unrealistic and unscientific assessment of the potential 
impacts of the hypothetical mining project.''
    I find that analysis troubling. A prospective decision of 
such magnitude by the EPA should be based on the best possible 
science, a point underscored in EPA's own Peer Review Handbook 
which states, and I quote, ``Science is the foundation that 
supports all of our work here at EPA. Strong, independent 
science is of paramount importance to our environmental 
policies. The quality of science that underlies our regulations 
is vital to the credibility of EPA's decisions.''
    A preemptive veto by EPA would set a dangerous precedent, 
and could have a chilling effect on similar projects throughout 
the nation. Investors would be wary of funding projects if they 
believed that a Federal agency could just say no at any time to 
a company permit prior to even applications being made.
    Let me emphasize that I am not an advocate for or against 
the development of the Pebble mine, in spite of what some 
people have claimed and charged. I understand the argument of 
mine proponents--that they be granted due process and allowed 
to make their case through existing law, which includes the 
Clean Water Act, the National Environmental Policy Act, as well 
as the Environmental Impact Statement process, which would 
address the specific issues that are unique to this part of 
Alaska and exclusive to this mine proposal.
    You all may also know that I am a long-term lifetime member 
of Trout Unlimited. I am an avid hunter and a fisherman, and I 
have been to Alaska many times. You can come to my office and 
you will see some critters that I was able to gather there. I, 
too, understand the concerns of the anti-mine people regarding 
the value of this inimitable and pristine environment.
    Let me assure these folks: I care more about protecting 
that environment than any nonprofit organizations pushing a 
social agenda.
    To me, the question at hand comes down to one of due 
process. This country was founded under the notion that 
citizens must be protected from tyrannical overreach, and I 
believe it is unconscionable for the Administration, any 
Administration, to deny U.S. citizens their day in court. In a 
similar vein, I would consider a preemptive denial by the EPA 
equivalent to denying the mining companies their day in court, 
having judged them guilty instead of presumed innocent.
    Even The Washington Post, hardly regarded as a pro-mining 
mouthpiece, concluded in a recent editorial regarding the 
mining companies, ``All they want, they say, is a fair and 
thorough evaluation of their claims. That is reasonable.''
    That is reasonable to me too, and I look forward to hearing 
all sides of our witnesses' testimonies today.
    [The prepared statement of Mr. Broun follows:]
     Prepared Statement of Representative Paul C. Broun, Chairman, 
                       Subcommittee on Oversight

    Today's hearing is titled, ``EPA's Bristol Bay Watershed 
Assessment--A Factual Review of a Hypothetical Scenario.''
    Last year, the U.S. Environmental Protection Agency released a 
draft watershed assessment of the Bristol Bay area in Alaska at the 
request of several Alaskan tribes and organizations concerned about the 
potential of mining activity in the region.
    This assessment, which by some estimates has cost taxpayers a 
minimum of $2.4 million, has undergone a peer review process and was 
re-released earlier this year as a second draft. However, EPA has not 
finalized the assessment, nor has it specified the ultimate purpose of 
the document. One concern--not denied by EPA-- is that the assessment 
may be the basis of a preemptive veto where the agency would prohibit a 
mining company from even applying for mine permits. It is important to 
note that as of this point, no mining permits have been filed in 
Bristol Bay. That means that EPA's watershed assessment is based on 
hypothetical mining scenarios, and according to one mining supporter, 
``it's a fantasy for the government to say here's a mine plan.''
    Further, one of our witnesses today, Dr. Kavanaugh, a member of the 
National Academy of Engineering, states that EPA's assessment 
``exaggerates the probability of failures, relies on worst case 
scenarios to support a qualitative judgment on the potential impacts of 
these failures, does not adequately consider modern engineering, 
construction, operations, and maintenance practices, and thus provides 
an unrealistic and unscientific assessment of the potential impacts of 
the hypothetical mining project.''
    I find that analysis troubling. A prospective decision of such 
magnitude by the EPA should be based on the best possible science--a 
point underscored in EPA's own Peer Review Handbook which states, 
``Science is the foundation that supports all of our work here at EPA. 
Strong, independent science is of paramount importance to our 
environmental policies. The quality of science that underlies our 
regulations is vital to the credibility of EPA's decisions.''
    A preemptive veto by EPA would set a dangerous precedent, and could 
have a chilling effect on similar projects throughout the nation. 
Investors would be wary of funding projects if they believed that a 
federal agency could just say no at any time to a company prior to 
permit applications.
    Let me emphasize that I am not an advocate for or against the 
development of Pebble mine. I understand the argument of mine 
proponents--that they be granted due process and allowed to make their 
case through existing law, which includes the Clean Water Act, the 
National Environmental Policy Act, as well as the Environmental Impact 
Statement process, which would address the specific issues that are 
unique to this part of Alaska and exclusive to this mine proposal.
    You all may also know that I am a long-term lifetime member of 
Trout Unlimited. I am an avid hunter and fisherman, and I have been to 
Alaska many times. I, too, understand the concerns of the anti-mine 
people regarding the value of this inimitable and pristine environment. 
Let me assure those folks--I care more about protecting that 
environment than many non-profit organizations pushing a social agenda.
    To me, the question at hand comes down to one of due process. This 
country was founded under the notion that citizens must be protected 
from tyrannical overreach, and I believe it is unconscionable for the 
Administration, any Administration, to deny a U.S. citizens their day 
in court. In a similar vein, I would consider a preemptive denial by 
the EPA equivalent to denying the mining companies their day in court, 
having judged them guilty instead of presumed innocent. Even The 
Washington Post, hardly regarded as a pro-mining mouthpiece, concluded 
in a recent editorial that regarding the mining companies, ``All they 
want, they say, is a fair and thorough evaluation of their claims. That 
is reasonable.''
    That is reasonable to me too, and I look forward to hearing all 
sides of our witnesses' testimonies today.

    Chairman Broun. And before I turn to the gentleman, my 
friend, Dan Maffei from New York, I will ask unanimous consent 
to enter for the record letters from various groups interested 
in our hearing, which have been shared with members of the 
minority. Hearing no objection, so ordered.
    [The information appears in Appendix II]
    Chairman Broun. I now recognize the Ranking Member, my 
friend, the gentleman from New York, Mr. Dan Maffei, for an 
opening statement.
    Mr. Maffei. I want to thank the Chairman.
    My district in upstate New York has actually a unique 
connection to Alaska. It was the home to William H. Seward, who 
resided in Auburn, New York. Seward served as a Republican 
Governor, U.S. Senator and Secretary of State under Presidents 
Lincoln and Johnson, but Seward was most notably responsible 
for the purchase of Alaska from Russia in 1867. I won't tell 
you for how much. It was a bargain. At the time, the Alaska 
purchase was unpopular. It was actually known as Seward's 
Folly. Later in life, Seward was asked to name his greatest 
achievement, and he said, ``The purchase of Alaska, but it will 
take the people a generation to find out.''
    It is hard for me to look at the proposal to place a mine 
in the watershed feeding area of Bristol Bay and not consider 
what future generations might think of us. On the one hand is 
the prospect of great wealth from exploiting natural resources 
resulting from mining efforts. That will last a few decades, 
perhaps a generation, and then the mining company will be gone, 
potentially leaving behind a huge hole in the Earth and 
billions of tons of acid mine waste. Even if the company can do 
what so far no mining company has ever done in a wet 
environment and a dig a massive open pit mine that results in 
no leaks, no accidents, and no pollution, who can guarantee 
that the massive amount of waste left behind in the tailings 
dam will not leach out or that the dam itself will not fail?
    In 2010, a tailings dam holding mining waste collapsed due 
to heavy rain releasing toxic sludge, flooding nearby towns, 
killing 10 and injuring 120. In 1998 in France, a tailings dam 
collapsed, releasing sulfur, zinc, copper, iron and lead into 
nearby farmland. A study of the incident estimated that about 
5,000 jobs were lost in the dam's failure and aftermath. These 
are just a few examples of the potential failures that could 
occur in Bristol Bay.
    On the other hand, we have the returning wealth of salmon. 
They feed the earth in one of the most pristine locations in 
the world. They feed the people of the region, the last truly 
sustainable salmon-based culture left in the United States. 
Through the efforts of commercial fishermen, we too all get a 
chance to share in that bounty. The salmon of Bristol Bay who 
spawn in the rivers there are a sustained resource that, if we 
do not destroy them, will be there for as long as we can see 
into the future. And although the area does compete with my 
beloved upstate New York for fishermen, it is a wonderful place 
to go fish.
    Bristol Bay's clean water economy supports one of Alaska's 
most natural and bountiful resources--the salmon--and will 
yield economic returns and generate revenue for far beyond the 
short-term economic impact of mining, and that will support 
jobs today, tomorrow and in future generations, whereas mining 
and potentially its harmful environmental impacts will 
eliminate those future jobs supported by the fishing industry. 
If you hold these two prospects in the balance and weigh them 
in a scale for what is best for future generations, the 
question is very simple and the answer very clear: do we act 
for ourselves and then regret it after a generation, or do we 
embrace the sustained wealth of nature that returns every year 
for our use as long as people live on the Earth?
    Now, I do want to respect the Chairman's process points, 
and they are well taken, and I do not dispute his positive 
motives in this matter, but I do want to make just a few other 
points. I want to remind the members that EPA has begun their 
risk assessment in response to local pressure for the EPA to 
intervene. EPA was asked to take up the 404(c) process, which 
under the Clean Water Act gives EPA the power to protect water 
quality by establishing standards that can virtually veto 
development. EPA might be chided for taking on a science-based 
watershed assessment rather than moving immediately to 404(c), 
but I think the agency was trying to show everyone involved 
that they were willing to listen and study the issue thoroughly 
before acting.
    The draft assessment is solid science that demonstrates 
hardrock mining cannot coexist side by side with salmon without 
harm to the salmon, to the fishing and sportsmen economy, and 
to the native communities. Claims that some magical technology 
can make all this work out have been made many times and rarely 
does technology work the way it is promised. Mining is an 
inherently destructive and dirty business, and technology 
cannot make it clean and harmless. I certainly agree we need 
mining, and I am not an opponent of mining, but I think that we 
have to be honest with ourselves about where such projects can 
work and where they simply don't make sense.
    Finally, I believe the EPA should complete their assessment 
and then promptly move to take up a 404(c), that gives everyone 
certainty that Bristol Bay and the surrounding rivers and lakes 
will remain pristine. If the EPA's 404(c) amounts to a 
preemptive veto of mining, then at least it will free up the 
mining companies and capital to turn to more promising 
locations for ore.
    A contemporary of Seward described him as ``one of those 
spirits who sometimes go ahead of public opinion instead of 
tamely following its footprints. I hope members of this 
Committee will be mindful of these words and of the example of 
William Seward as we explore the issues surrounding the 
development of the Pebble mine, and I yield back the remaining 
three seconds of my time.
    [The prepared statement of Mr. Maffei follows:]
   Prepared Statement of Representative Dan Maffei, Ranking Minority 
                   Member, Subcommittee on Oversight

    Thank you, Mr. Chairman.
    My district in Upstate New York has a unique connection to Alaska. 
It was home to William H. Seward, who resided in Auburn, New York. 
Seward served as a Republican Governor, U.S. Senator, and Secretary of 
State under President's Lincoln and Johnson. Seward most notably was 
responsible for the purchase of Alaska from Russia in 1867.
    At the time, the Alaska purchase was unpopular and known as 
``Seward's Folly.'' Later in life Seward was asked to name his greatest 
achievement, and he said, ``The purchase of Alaska, but it will take 
the people a generation to find out.''
    It is hard to look at the proposal to place a mine in the watershed 
feeding Bristol Bay and not think that Seward's words ring true more a 
century later.
    On the one hand is the prospect of great wealth, great resources 
and all the jobs that flow from that pouring out of the mining efforts 
in that beautiful place. That will last a few decades, perhaps a 
``generation'' as Seward stated. And then the mining company will be 
gone, leaving behind a huge hole in the earth and billions of tons of 
acid mine waste. Even if the company can do what no mining company has 
ever done in a wet environment, and dig a massive open pit mine that 
results in no leaks, no accidents, no pollution, who can guarantee that 
the massive amount of waste left behind in tailings dams will not leach 
out, or that the dam itself will not fail?
    In 2010, a tailings dam holding mining waste collapsed due to heavy 
rain releasing toxic sludge flooding nearby towns, killing 10 and 
injuring 120. In 1998 in France, a tailing dam collapsed releasing 
sulfur, zinc, copper, iron, and lead into nearby farmland. A study of 
the incident estimated that about 5,000 jobs were lost in the dam 
failure's aftermath. These are just a few examples of potential 
failures that could occur in Bristol Bay.
    A dam here must work for thousands of years--not just one 
generation from now but generations and generations and generations 
beyond counting. And it must work in a very wet environment that is one 
of the most seismically active on earth. It is simply not worth the 
risk.
    On the other hand we have the returning wealth of the salmon. They 
feed the earth in one of the most pristine locations in the world. They 
feed the people of the region--the last truly sustainable salmon-based 
culture left in the U.S. Through the efforts of the commercial 
fishermen we too all get a chance to share in that bounty. The salmon 
of Bristol Bay, who spawn in the rivers there, are a sustained resource 
that--if we do not destroy them--will be there for as long as we can 
see into the future.
    Bristol Bay's ``clean water economy'' supports one of Alaska's most 
natural and bountiful resources--Salmon--and will yield economic 
returns and generate revenue far beyond the short-term economic impact 
of mining. This ``clean water economy'' will support jobs today, 
tomorrow and for future generations, whereas mining and its harmful 
environmental impacts will eliminate all future jobs supported by the 
fishing industry.
    If you hold those two prospects in the balance, and weigh them in a 
scale for what is best for future generations, the question is very 
simple and the answer is very clear. Do we gorge ourselves for a 
generation or two and then regret it or do we embrace the sustained 
wealth of nature that returns every year for our use so long as people 
live on this earth?
    It is Seward's words that inform my perspective on the issue before 
the Committee today. If we allow this dangerous proposal to go forward 
today, will the next generation realize our folly?
    Just a few other points:

    I want to remind the Members that EPA has began their risk 
assessment in response to local pressure for the EPA to intervene. EPA 
was asked to take up the 404(c) process, which under the Clean Water 
Act gives EPA the power to protect water quality by establishing 
standards that can virtually veto development. EPA might be chided for 
taking on a science-based watershed assessment rather than moving 
immediately to the 404(c), but I think the agency was trying to show 
everyone involved that they were willing to listen and study the issue 
thoroughly before acting.
    The draft assessment is solid science that demonstrates hard rock 
mining cannot coexist side by side with salmon without harm to the 
salmon, to the fishing and sportsman's economy, and to the native 
communities. Claims that some magical technology can make this all work 
out have been made many times, and rarely does technology work the way 
it is promised. Mining is an inherently destructive and dirty business 
and technology cannot make it clean and harmless. I certainly agree we 
need mining and I am not an opponent of mining, but I think we have to 
be honest with ourselves about where such projects can work and where 
they simply do not make sense.
    Finally, I believe that EPA should complete their assessment and 
then promptly move to take up a 404c that gives everyone certainty that 
Bristol Bay and the surrounding rivers and lakes will remain pristine. 
If the EPA's 404(c) amounts to a preemptive veto of mining, then that 
will free up the mining companies and capital to turn to more promising 
locations for ore.
    A contemporary of Seward described him as ``one of those spirits 
who sometimes will go ahead of public opinion instead of tamely 
following its footprints.''
    I hope the Members of this committee will be mindful of these words 
as we explore the issues surrounding development at the Pebble Mine. I 
yield back.

    Mr. Maffei. Mr. Chairman, I also have a unanimous consent 
request. I have----
    Chairman Broun. Go ahead. The gentleman is recognized.
    Mr. Maffei. I have a request that letters that I have 
already shared with the majority be attached to my statement. 
These are ones that we have already shared.
    Chairman Broun. Without objection, so ordered.
    [The information appears in Appendix II]
    Chairman Broun. The Chairman notes the presence of my 
friend, Suzanne Bonamici, and Ms. Bonamici, do you want to 
participate? We need a unanimous consent request that you 
participate as if you are a member of the Committee, if you 
would like.
    Ms. Bonamici. Thank you, Mr. Chairman. I request unanimous 
consent that I be permitted to participate in the Subcommittee 
hearing. I am a Member of the full Committee but not of this 
particular Subcommittee.
    Chairman Broun. Hearing no objection, so ordered, and 
thanks for joining us.
    If there are Members who wish to submit additional opening 
statements, your statements will be added to the record at this 
point.
    Now, at this time I would like to introduce our panel of 
witnesses. Our first witness is Mr. Lowell Rothschild, Senior 
Counsel at Bracewell and Giulianti. Is that how you pronounce 
that?
    Mr. Rothschild. Giuliani.
    Chairman Broun. Giuliani. Well, whatever. I am a southerner 
and I can't pronounce words like that. I don't know Italian.
    Our second witness is Dr. Michael Kavanaugh, Senior 
Principal at Geosyntec Consultants and a Member of the National 
Academy of Engineering. Our third witness is Mr. Wayne Nastri, 
Co-president of E4 Strategic Solutions, and former Regional 
Administrator of EPA Region 9. Our final witness is Mr. Daniel 
McGroarty. Is that correct?
    Mr. McGroarty. Yes.
    Chairman Broun. Okay, President of the American Resources 
Policy Network. We welcome all of you.
    As our witnesses should know, spoken testimony is limited 
to five minutes each, after which members of the Committee will 
have five minutes each to ask you questions. Your written 
testimony will be included in the record of the hearing.
    It is the practice of this Subcommittee on Oversight to 
receive testimony under oath. Do any of you all have an 
objection to taking an oath of truthfulness? Let the record 
show that all of the witnesses indicated that they do not mind 
taking the oath. If you would please stand? Raise your right 
hand. Do you solemnly swear or affirm to tell the whole truth 
and nothing but the truth, so help you God? You may be seated. 
Let the record reflect that all the witnesses participating 
have taken the oath.
    I now recognize our first witness, Mr. Rothschild, for five 
minutes.

TESTIMONY OF MR. LOWELL ROTHSCHILD, SENIOR COUNSEL, BRACEWELL & 
                          GIULIANI LLP

    Mr. Rothschild. Chairman Broun, Ranking Member Maffei, 
Members of the Committee, thank you very much for inviting me 
to testify today. My name is Lowell Rothschild, and I am Senior 
Counsel at the law firm of Bracewell and Giuliani. I have 
practiced exclusively in the area of environmental law for 
almost 20 years with my primary focus on the laws affecting 
land development like those related to wetlands, endangered 
species and environmental review, like NEPA. I have extensive 
experience in the permitting and litigation of major projects 
under these laws, and I am also the co-author of the 
Environmental Law Institute's Wetland Deskbook.
    The Committee has asked me to testify today on the NEPA 
Environmental Impact Statement process as it relates to mining 
activity and how that process compares to assessments EPA 
undertakes under Clean Water Act sections 104(a) and (b) like 
the one for Bristol Bay. My view, as I discuss in greater 
detail in my written testimony, is twofold. EPA's Bristol Bay 
study is both more general and more limited than an EIS would 
be. It covers far fewer subjects than would be analyzed in an 
EIS and lacks the detail needed to fully understand the impacts 
of an eventual project, even for the resource impacts it does 
examine. As a result, EPA's assessment is not an adequate 
substitute for an EIS, and even for the resources it does 
analyze, its impact assessment is less informed and therefore 
less useful than the analysis which would occur under a 
project-specific EIS.
    The reason for these conclusions relates to both the intent 
of the study and to its timing in the permitting process. EPA, 
as you all have said, has selected three hypothetical mining 
scenarios and analyzed the direct impacts which they then would 
cause on salmon in the Bristol Bay watershed and its sub-
watersheds. It also analyzes a few of the indirect impacts that 
would result from those salmon impacts. This approach is 
intentionally more limited than an EIS would be. A typical EIS 
for a large mining project analyzes impacts to approximately 20 
different resources including strictly natural environmental 
ones like air, noise, groundwater and endangered species 
impacts as well as human environmental ones like economic, 
socioeconomic and environmental justice impacts. In contrast, 
the assessment is specifically limited to analyzing a subset of 
direct wildlife impacts--those to salmon species--along with 
several of the indirect impacts that result from those impacts 
to salmon. Thus, the assessment isn't intended to be and it is 
not a substitute for an EIS.
    The assessment's second limitation relates to its timing in 
the process. Since it is being undertaken before an application 
has been submitted, it is not able to utilize the important 
project-specific information which would be generated for the 
application. As a result, even for the impacts it does analyze, 
the assessment's analysis isn't as useful as that which would 
be undertaken in an eventual EIS. That is because to comply 
with the wetland permitting laws, a permit applicant must 
submit an application that identifies the practicable measures 
it will take to avoid, minimize and mitigate the project's 
impacts to wetlands. These measures are very difficult to 
identify in the abstract. They often involve small 
modifications to a project, even though they can result in 
significant decreases in impacts. But these modifications 
cannot be identified until you understand the on-the-ground 
resources to a high degree of detail. For example, one possible 
minimization measure would be moving the footprint of the 
project so that the wetlands impacted are lower quality than 
those originally planned. To do this requires an assessment of 
the quality and the specific location of the wetlands in the 
project area. This wetland assessment is something an applicant 
will do before it submits its application but only once the 
applicant has the specific information can it provide the 
avoidance, minimization and mitigation alternatives. And this 
is just one example of minimization--moving the project 
footprint--and only for one resource--wetlands. Other types of 
similar measures can be proposed both for wetlands and for the 
dozen or so major resources analyzed in the EIS. These types of 
detailed facts have not been developed for the Bristol Bay 
assessment, not for wetlands or for other resources. As a 
result, detailed avoidance and minimization modifications do 
not appear to be a part of the Bristol Bay assessment. 
Depending on the nature of such modifications that are included 
in the project application, an eventual EIS impact assessment 
could be quite different from EPA's current assessments.
    I should also note that once the permit application process 
begins, EPA will have significant statutory rights under both 
NEPA and the wetland permitting laws, which will allow it to 
provide extensive input to the process and to affect its 
ultimate outcome. Until then, the assessment is too limited to 
be an adequate substitute for an EIS and too general to provide 
specific information about the impacts of any eventual mining 
project, even for the resources it has analyzed.
    I look forward to answering any questions you may have. 
Thank you very much.
    [The prepared statement of Mr. Rothschild follows:]


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    Chairman Broun. Thank you, Mr. Rothschild.
    Now, Dr. Kavanaugh, you are recognized for five minutes.

              TESTIMONY OF DR. MICHAEL KAVANAUGH,

            SENIOR PRINCIPAL, GEOSYNTEC CONSULTANTS,

          AND MEMBER, NATIONAL ACADEMY OF ENGINEERING

    Dr. Kavanaugh. Mr. Chairman and Members of the Committee, 
thank you for the opportunity to speak at this hearing today. 
My name is Michael Kavanaugh. I am a Senior Principal with the 
firm of Geosyntec Consultants, an independent midsized U.S. 
consulting, engineering and geoscience firm.
    Geosyntec was retained by Northern Dynasty to conduct an 
independent, impartial review of the scientific and engineering 
credibility of the 2012-2013 draft EPA Bristol Bay watershed 
assessment reports. I am a registered professional engineer in 
California and a board-certified environmental engineer with 40 
years of consulting engineering practice in several technical 
areas relevant to an assessment of the potential environmental 
impacts of mining projects. I have a Ph.D. in civil 
environmental engineering from U.C. Berkeley, and in 1998 I was 
elected into the National Academy of Engineering. I have served 
on many independent peer-review panels and I currently serve on 
the Report Review Committee of the National Academies that 
oversees the peer-review process for all National Academy 
reports. I was the principal in charge of Geosyntec's technical 
reviews of the assessment reports. Selected Geosyntec experts 
under my direction focus primarily on an evaluation of the 
scientific and engineering credibility of the failure scenarios 
selected by EPA for tailing storage facilities, or TSFs, water 
collection and treatment systems, pipelines, roads and culverts 
and the appropriateness of environmental impact analyses 
conducted by EPA for their failure scenarios for a hypothetical 
mine.
    Both assessment reports fail to meet widely accepted 
quality and peer-review standards that must be satisfied to 
produce a credible scientific and engineering assessment. The 
reports significantly exaggerate both the probability of 
failures of engineering mining components and the environmental 
consequences of the failure scenarios. In fact, the 2013 
assessment essentially assumes that all engineering components 
of the hypothetical mine will ultimately fail and then proceeds 
to assess more or less qualitative the impacts of these failure 
scenarios. This risk analysis is flawed because it gives equal 
weight to all failure scenarios including worst-case scenarios. 
EPA has assumed failure scenarios for some of the engineered 
components that are of such low probability that to assess the 
consequences only provides an alarmist portrait of a 
hypothetical mining scenario that could never be permitted in 
Alaska. By failing to properly consider modern engineering and 
design mitigation methods that would be required for an 
acceptable permit application and that would both reduce the 
probability of system failures as well as mitigating the 
consequences of potential failures, the assessment lacks 
credibility as a useful risk analysis.
    Several examples of our concerns include the following. The 
assessment estimates failure probabilities of TSFs based on 
case studies of 135 failed dams from around the world, many of 
which are older, poorly designed and unregulated. This database 
is irrelevant to a modern TSF. The assessment uses a TSF 
failure scenario based on overtopping, a failure mode that can 
be easily avoided by proper design of sufficient capacity and 
freeboard to manage a probable maximal precipitation event. The 
assessment assumes that easily repairable breakdowns in water 
and wastewater treatment processing equipment will result in 
long-term discharges of untreated wastewater, a situation that 
would violate permit requirements and would be easily addressed 
with standard mitigation measures.
    The assessment contains inaccurate calculations that 
significantly overestimate consequences of hypothetical system 
failures such as a worst-case pipeline failure scenario that 
significantly overstates the potential volume of discharge 
released to a creek. Finally, the assessment reflects a general 
lack of consideration of engineering and design mitigation 
measures for a modern mine all systems would be designed with 
appropriate safety factors, meeting permit requirements and 
design to minimize the consequences of potential failure 
events.
    EPA traditionally sets a high bar for the quality of 
scientific documents considered to be highly influential 
scientific assessments, quote, unquote, as outlined in their 
Peer Review Handbook. Unfortunately, they have only partially 
followed their own guidance on conducting the peer review 
process for the 2013 assessment, failing to provide the degree 
of transparency required for such an important document.
    Having served myself on several EPA peer-review panels on 
EPA's Science Advisory Board for Water and the ORD's Board of 
Scientific Counselors, I am fully aware of the high caliber of 
scientific efforts that EPA scientists have achieved in the 
past. It is thus discouraging to see the many limitations on 
their reliability and credibility of the 2013 assessment, and 
as a consequence, it is our opinion that the 2013 assessment 
fails to meet scientific standards that would permit the 
assessment to be used to inform future decisions on mining 
projects in the Bristol Bay watershed.
    Thank you for your attention, and I welcome any questions.
    [The prepared statement of Dr. Kavanaugh follows:]


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    Chairman Broun. Thank you, Dr. Kavanaugh.
    And now, Mr. Nastri, you are recognized for five minutes.

   TESTIMONY OF MR. WAYNE NASTRI, CO-PRESIDENT, E4 STRATEGIC 
        SOLUTIONS; FORMER REGIONAL ADMINISTRATOR, USEPA

    Mr. Nastri. Thank you, Mr. Chairman, and thank you, Ranking 
Member Maffei, for inviting me here to testify before you.
    My name is Wayne Nastri, and I am the President of E4 
Strategic Solutions, and previously I served as Regional 
Administrator for U.S. EPA Region 9 during the entire George W. 
Bush Administration.
    I am testifying on my own behalf today, but I wish to note 
that I currently consult with the Bristol Bay Native 
Corporation and formerly consulted with Trout Unlimited on 
Clean Water Act issues.
    In my written testimony, I reviewed EPA's Bristol Bay 
watershed assessment, and I found its conclusions are sound, 
and if anything, conservative, and that is further supported by 
an independent letter signed by 300 scientists that were 
supportive of EPA's process.
    I would like to focus on just a few main points this 
afternoon. First, it is important to note that EPA was 
requested to take action in Bristol Bay by Alaskans who sought 
assistance on an issue that threatens their sustainable 
economy, their jobs, their culture and their ability to live in 
the areas they have for thousands of years, and we are very 
fortunate today to have two village elders, Tommy Tilton and 
Bobby Andrew, in the audience. All of this is based on the 
incredible wild salmon resource of Bristol Bay. Nine federally 
recognized tribes, the Bristol Bay Native Corporation, the 
commercial and sport fishing industries and others petitioned 
EPA to initiate a 404(c) action. These groups, based on 
information derived from PLP filings that describe the 
location, the quantity and the type of ore, understood quickly 
the threat that large-scale hardrock mining poses to Bristol 
Bay.
    Instead of initiating 404(c) action, EPA sought to better 
understand the region's salmon resources and potential threats 
by performing an ecological risk assessment. And during its 
review, EPA identified what many in the region have known for 
years, and that is, economically viable mining of the Pebble 
deposit would result in one of the largest mines in the world, 
and in fact, be larger than all other mines in Alaska combined, 
and you can actually see this in the visual in front of you.
    The basis of EPA's mining analysis is based on Northern 
Dynasty Minerals', an owner of the Pebble Partnership own 
documents and submissions to the investment community and to 
the SEC. It is also admitted as part of the record, and I have 
a copy of that plan right here today.
    These submittals, as described in the wardrop report, 
describe mines that could be more than 2,000 feet deep and 2 
miles wide, require the construction of tailings reservoirs 
that hold as much as 10 billion tons of potentially acid-
generated tailings, and all of this would be at the headwaters 
of one of the most valuable commercial and sport fisheries, 
provides half of the world's wild red salmon, accounts for 
nearly 14,000 jobs and hundreds of millions of dollars of 
economic activity according to EPA's conservative estimates. 
Northern Dynasty described the mining scenarios detailed in 
this report, and I quote, ``as economically viable, technically 
feasible and permittable.'' Again, the details I described are 
drawn directly from that 575-page report, which is far from the 
hypothetical or fantasy claim that we have heard before.
    With regards to authority to conduct the assessment, EPA 
clearly has it under section 104(a), (b), and importantly, the 
support of this assessment is astounding. Nearly 75 percent of 
all commenters supported the assessment and 95 percent of 
commenters from Bristol Bay support that assessment. In my 
experience, and looking forward, EPA needs to finalize its 
watershed assessment and address the original request for 
404(c) action.
    The uniform complaint that I heard as a regional 
administrator from project proponents on 404(c) matters was, 
why didn't EPA get involved more upfront in the very project 
instead of waiting at the very end and delaying what they saw 
as much investment and time. So in that light, I believe it is 
wholly appropriate for the Federal Government to make clear 
upfront what its expectations are of permit applicants, 
especially for projects of the magnitude that we are discussing 
today. And I believe EPA should, at a minimum, use its Clean 
Water Act authority to restrict any 404 discharge to meet the 
following performance standards which are well founded in EPA 
and Army Corps practice, and they are: no discharge of fill 
materials to wild salmon in spawning and rearing habitat, no 
discharge of toxic material to waters of the United States, and 
no discharge of fill materials that would require treatment in 
perpetuity.
    EPA has adhered to strict scientific standards in preparing 
the watershed assessment and undergone extensive outreach to 
ensure that the documents can inform future decisions by 
policymakers. The watershed assessment identifies significant 
adverse impacts to the fishery and is a key trigger for 404(c) 
action. EPA has the opportunity to provide clarity and 
certainty to those who live and work in the Bristol Bay region 
by initiating such action.
    Thank you, and I look forward to your questions.
    [The prepared statement of Mr. Nastri follows:]


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    Chairman Broun. Thank you, Mr. Nastri.
    Now Mr. McGroarty, you are recognized for five minutes.

    TESTIMONY OF MR. DANIEL MCGROARTY, PRESIDENT, AMERICAN 
                    RESOURCES POLICY NETWORK

    Mr. McGroarty. Dr. Broun, Ranking Member Maffei, members of 
the Committee, thank you for the opportunity to testify today. 
I am Dan McGroarty, President of the American Resources Policy 
Network, an organization dedicated to exploring the importance 
of U.S. resource development and the dangers of foreign 
resource dependence.
    I am formerly Director and Officer of U.S. Rare Earths and 
President of Carmot Strategic, an issues management firm. I 
also want to share with the Committee that since early 2013, 
ARPN has been asked to participate on a volunteer basis in a 
series of metal-specific sessions convened by the DoD related 
to the mandated National Defense Stockpile Review.
    The Pebble deposit, subject of the EPA assessment, is the 
largest potential copper mine in the United States. America's 
lack of this critical metal has been noted in a DoD report as 
causing ``a significant weapon system delay.'' Pebble also has 
potential for the recovery of other metal: molybdenum, used as 
an alloy in gun barrels of many times, uranium, used in high-
performance jet fighters, and selenium tellurium, used in solar 
panels that could not only lead the green revolution but 
provide a portable power source for U.S. troops.
    As a matter of public policy, Pebble should be treated no 
differently than any other potential resource project under the 
Federal permitting process established by the National 
Environmental Policy Act--NEPA. EPA's Bristol Bay watershed 
assessment prior to Pebble seeking a single permit creates a 
chilling effect on investment in U.S. resource extraction. A 
preemptive permit denial based on the assessment could deprive 
America of reliable sources of critical metals responsibly 
extracted under American regulations. In my view, every issue 
raised in the assessment could be reviewed within the existing 
NEPA process. There is no issue that requires a new pre-
permitting process with the power to prevent a proposed project 
from entering NEPA.
    In terms of the substance of the watershed assessment, a 
key underlying study used by EPA is the Earthworks-funded 
study, Kuipers Maest 2006. The global water and environmental 
management firm, Schlumberger, has conducted an analysis of 
this study on behalf of the Northwest Mining Association. The 
results are troubling.
    First, Schlumberger could not replicate the hydrological 
data presented in the Kuipers Maest study, a fundamental tenet 
of sound scientific research. Second, Schlumberger found a 
backward bias as the study drew on a preponderance--their 
word--of case studies taken from mines that operated before the 
modern regulatory era. Does it constitute sound science to 
argue against a proposed mine based on what happened at other 
mines operated to other standards 20, 30, 40 years ago? Would 
we use such a backward biased yardstick to justify or judge the 
safety of a new airplane, a new car, a new medicine?
    I will turn now from substance to sourcing, serious 
questions concerning the impartiality of experts relied upon by 
EPA, once again, the subject of concern as worked on by Ann 
Maest and Stratus Consulting. Many of us know the Chevron case 
in Ecuador where plaintiffs were awarded an $18 billion 
judgment. In response, Chevron brought racketeering claims 
against members of the plaintiffs' team, including Maest and 
Stratus, arguing that they manipulated data to show 
contamination where none existed. How did they know this? The 
plaintiffs' team invited a film crew to make a documentary 
generating hours of outtakes that were revealed in the 
discovery process. Here is one example.
    [Video.]
    The subscript said, ``Facts do not exist. Facts are 
created.'' That is the lawyer who directed the research. There 
is laughter that follows that from Ann Maest, the scientist who 
conducted the Ecuador study and subsequently submitted sworn 
statements in Federal court that renounced all scientific 
findings--that is a quote--in their report to settle claims 
against her. Now, the work of that very same scientist is cited 
11 times in the EPA assessment. To be clear, I do not know 
whether the work used in EPA's assessment will prove to show 
issues similar to the Ecuador studies the author disavowed but 
that question needs to be examined impartially and 
independently. Otherwise EPA's reliance on that work done by 
this scientist or her firm puts the assessment under a cloud.
    In closing, there is a quote I would like to share. ``NEPA 
is democratic at its core. In many cases, NEPA gives citizens 
their only opportunity to voice concerns about a project impact 
on their community, and because informed public engagement 
often produces ideas, information, even solutions that the 
government might otherwise overlook, NEPA leads to better 
decisions, better outcomes for everyone. The NEPA process has 
saved money, time, lives, historical sites, endangered species, 
public lands, and because of NEPA, we are guaranteed a voice.'' 
That quote is from the website of the Natural Resources Defense 
Council. They love NEPA, just not this time and not this 
project.
    If we allow this precedent, if the EPA uses the assessment 
to deny Pebble access to the NEPA process, there will be many 
mines and projects that don't get built, many metals will be 
forced to import many times from nations that wish us harm. We 
have a process in place to determine whether a mine should or 
shouldn't be built. We should follow that process and let 
science guide us. Thank you. I look forward to your questions.
    [The prepared statement of Mr. McGroarty follows:]


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    Chairman Broun. I want to thank all the witnesses for your 
testimony, reminding Members that Committee rules limit 
questioning to five minutes. The Chair at this point will open 
the first round of questions, and the Chair recognizes himself 
for five minutes.
    Dr. Kavanaugh, is it possible to have a scientifically 
sound watershed assessment using a hypothetical mining scenario 
in the absence of a submitted permit?
    Dr. Kavanaugh. No, I don't think it is, Mr. Chairman. I 
think that there is a serious constraint on undertaking a risk 
analysis on the basis of a hypothetical scenario. That doesn't 
meet the standards for an ecological risk assessment. It 
doesn't meet the standards for an Environmental Impact 
Statement, and it is essentially a hypothetical risk analysis. 
So it is inherently speculative, in my opinion, particularly in 
the context of identifying worst-case scenarios without 
attaching a probability of occurrence to those worst-case 
scenarios.
    Chairman Broun. Very good. Thank you.
    Mr. Rothschild, typically who pays for an Environmental 
Impact Statement under the National Environmental Policy Act 
for projects requiring dredge and fill permits?
    Mr. Rothschild. Mr. Chair, those permits are always paid 
for by the project applicant. The Corps has guidance documents 
which say that while the consultants are directed by the Army 
Corps, they are paid for by the project applicant.
    Chairman Broun. Okay, but not by taxpayers?
    Mr. Rothschild. Not by taxpayers.
    Chairman Broun. Okay. And generally speaking, how does that 
payment mechanism compare to the one involving agency watershed 
assessments such as NEPA document under discussion today?
    Mr. Rothschild. The NEPA document is paid by the agency, by 
the taxpayers.
    Chairman Broun. The EPA document?
    Mr. Rothschild. Yes, the EPA document.
    Chairman Broun. I said NEPA, but I meant EPA.
    Mr. Rothschild. Yes, the 104(a).
    Chairman Broun. Okay. Now, we have heard testimony today 
from Mr. McGroarty that there are no issues addressed in EPA's 
watershed assessment that could not be raised and reviewed 
within the regular permitting process. Is there anything unique 
in a watershed assessment that would not be addressed in an 
Environmental Impact Statement under NEPA? Please give me a yes 
or no answer, starting with Mr. Rothschild.
    Mr. Rothschild. No.
    Dr. Kavanaugh. No, I don't think so.
    Chairman Broun. Mr. Nastri?
    Mr. Nastri. I am considering your question because the----
    Chairman Broun. Please turn on your microphone.
    Mr. Nastri. Thank you. I was considering your question 
because the watershed assessment addresses the 404 issue.
    Chairman Broun. Well, the question was yes or no. Is there 
anything that--anything unique to the watershed assessment that 
would not be addressed in an Environmental--in an EIS under 
NEPA?
    Mr. Nastri. I am not aware at this time of anything that 
would not be addressed.
    Chairman Broun. So the answer is no. Is that correct?
    Mr. Nastri. I am not aware of it, sir.
    Chairman Broun. Okay. As far as you know, it is no then. 
Okay. Then I will come back to you. You conclude your written 
testimony by stating your support for preemptive action by EPA 
to veto the Pebble mine using its authority under Section 
404(c) of the Clean Water Act. Setting aside the question of 
EPA's authority to do so, can you explain as a former Regional 
Administrator for EPA how is such an action fair to people who 
have invested hundreds of millions of dollars collecting 
information so that they can define a mine and identify 
scientific data to show how they might propose to meet the 
standards in our environmental laws?
    Mr. Nastri. Well, it is very fair to project proponents, 
and as I said in my testimony, oftentimes what we wanted to 
hear--what project proponents wanted to hear was early 
parameters by which they could develop their project. They 
wanted certainty and they wanted that certainty before they 
invested time and the millions of dollars that are often 
associated by going through the EIS process.
    Chairman Broun. Well, absolutely, but they didn't ask for a 
hypothetical mining scenario here.
    Let me follow up with a yes or no question. Would allowing 
the Pebble project to present a plan to go through the NEPA 
permitting process result in any environmental harm?
    Mr. Nastri. Would it result in environmental--yes, it 
would, and----
    Chairman Broun. Wait a minute. Let me ask the question 
again.
    Mr. Nastri. Sure.
    Chairman Broun. Would allowing the Pebble project to 
present a plan, just to present a plan to go through the NEPA 
permitting process result in any environmental harm? Your 
answer is yes to that?
    Mr. Nastri. My answer is yes because of a delay that is 
going on and the uncertainty, and that uncertainty causes lack 
of investment.
    Chairman Broun. How is it going to cause environmental 
harm, though?
    Mr. Nastri. Well, it causes environmental harm by not 
allowing other projects to go through that could provide 
greater benefit, so you are looking at lost opportunities, sir.
    Chairman Broun. Mr. McGroarty, in your testimony, you 
mention copper in connection to the green revolution. What do 
you mean by that?
    Mr. McGroarty. Mr. Chairman, when we look at the major uses 
of copper in green technology, it is a constant presence. Wind 
power, for instance, a single industrial wind turbine uses 
approximately--just one--3 to 3-1/2 tons of copper for one wind 
turbine. Solar photovoltaic arrays, the newest technology for 
that uses an alloy or a metals blend called CIGS, C for copper, 
I for indium, G for gallium and S for selenium, 95 percent of 
which selenium comes from copper. So CIGS coming and going, 
copper is essential for photovoltaic arrays. Geothermal, 
drawing power from the Earth, the power is brought to the 
surface via copper coils. And then finally, whether it is solar 
or wind or geothermal, if we want to bring that power to the 
grid so that consumers can access it--renewable energy, which I 
support and which my organization supports--that comes through 
copper cable, at least in part through copper cable. So at 
every presence, I think what we need to look at is the green 
revolution is very dependent on metals and minerals beneath it.
    Chairman Broun. Thank you, Mr. McGroarty.
    My time is expired. Mr. Maffei, you are recognized for five 
minutes.
    Mr. Maffei. I thank the Chairman.
    Mr. McGroarty, I too am concerned about the veracity of the 
scientific assessment of Ann Maest, but how many overall 
citations were there in the EPA draft report--draft assessment?
    Mr. McGroarty. To her studies or her----
    Mr. Maffei. No, how many overall to any----
    Mr. McGroarty. I don't know.
    Mr. Maffei. The answer is 1,390, and you said there were 11 
times she was cited. That is some three-quarters of a percent. 
Do you think that if we can show that on the American Resources 
Policy Network's sourcing that three-quarters of a percent of 
your sources have been debunked, that we should ignore 
everything else that your organization says?
    Mr. McGroarty. Let me respond in terms of that. EPA itself 
seems to indicate some concern about the Kuipers-Maest study 
because they subjected it to a kind of a quasi-peer review, so 
they did select it out.
    Mr. Maffei. So they took care of that problem, at least in 
terms of the peer review. They did take care of that problem.
    You mentioned that we should let science guide us. Are you 
a scientist, sir?
    Mr. McGroarty. I am not.
    Mr. Maffei. Are you an engineer?
    Mr. McGroarty. No.
    Mr. Maffei. Are you an attorney with expertise about EPA 
procedures?
    Mr. McGroarty. No, I am a policy analyst.
    Mr. Maffei. Okay. You know, actually I admire your 
background. It is very similar to my own--journalism, 
communications--but I don't understand why you have any 
expertise to speak on this matter. Do you want to illuminate me 
on that?
    Mr. McGroarty. Sure. My interest in this issue and 
involvement in this issue dates back. I served in government, 
two presidential appointments to the Department of Defense in 
the Reagan Administration, Secretary Weinberger, Secretary 
Carlucci, and then later went to the White House with George 
Herbert Walker Bush. I was responsible----
    Mr. Maffei. You are an expert in politics, a political 
expert. Again, I have respect for your profession. I just don't 
understand what you are adding in terms of the scientific 
assessment that you yourself say should guide us.
    Mr. McGroarty. At that time, one of the issues regarding 
the Soviet Union was the concern for strategic metals access. 
Nowadays it is China. The Cold War is over. And I was 
responsible for the statements on national security, many 
foreign affairs issues and defense policy, both at DoD, where 
this issue was critical and important, and at the White House.
    Mr. Maffei. All right. My----
    Mr. McGroarty. The genesis of my interest and involvement 
dates back to that.
    Mr. Maffei. So you are concerned about the strategic effect 
if we don't have enough of these metals? I do understand that.
    You did point out about a chilling effect on mining, and I 
would like to ask Mr. Nastri, in regards to the Chairman's 
question and your answer, are you concerned about environmental 
impact because of a chilling effect if the continued--you know, 
the mining companies continue to say they are going to ask for 
a permit and don't? Is that why there is an environmental 
damage here? And if not, do you want to clarify, you know, or 
elaborate your answer to the Chairman's question about that?
    Mr. Nastri. Sure. The real issue here is uncertainty and 
the impact that uncertainty causes, and I think Senator 
Murkowski said it well when she said in a letter to Northern 
Dynasty and the Pebble Partnership that there is frustration, 
there is anxiety, and all this because of the uncertainty, and 
the uncertainty actually prevents a lot of investment to take 
place. We spoke to many organizations that said they would love 
to invest by creating jobs, by creating new processing 
facilities but with the uncertainty that is there, they are not 
going to do anything. You also have a number of people that 
want to invest in the fishing industry--buy new boats, buy new 
nets. They too have an uncertainty. And so what happens is, you 
have what I would argue is ongoing degradation because there is 
paralysis, and so that was the manner in which I was 
referencing.
    Mr. Maffei. So whichever way we go, we are better off 
making the decision now than continuing to postpone it if it is 
a clear decision?
    Mr. Nastri. Absolutely. I think it is much better to 
provide that certainty, and as I described before, I believe 
that EPA could proceed under a set of 404 restrictions. The 
restrictions would provide the guidelines for companies to move 
forward. It would actually improve whatever it is they decided 
to do by letting them know what they have to do.
    Mr. Maffei. One criticism of the EPA that I think is shared 
by Dr. Kavanaugh, if I read his writings correctly, is that the 
assessment doesn't take into account new technologies that 
might minimize the risk to the environment. Mr. Nastri, is that 
a possibility, that there could be new technologies the EPA 
simply can't take into account?
    Mr. Nastri. Well, having worked at EPA for a number of 
years, I can tell you, they have mining engineers, they have 
people that worked in the mining industry. They are quite 
familiar with mining in general. And when I look at the 
documentation that has been provided by the partnership, Pebble 
Partnership's own companies, they describe in detail mining 
plans. They talk about two types of operations: open pit and 
underground. There is really not a lot of variation that you 
are going to see other than the actual size in the technology. 
And from that perspective, the real question I think that 
people need to wonder about is, this is the resource of the 
world's greatest salmon fishery. Over 40 percent of red salmon 
supply comes from this fishery. Can you imagine the uproar that 
would be caused if new, unfounded or unproven technology were 
applied in some area like this, which is so globally 
significant, and something went wrong? Is this the area where 
you would actually try to put in new technology without having 
the absolute certainty that it is going to be failsafe? This is 
not an area that you experiment with.
    Mr. Maffei. Okay. Thank you, and thank all the witnesses.
    Chairman Broun. The gentleman's time is expired. Now Mr. 
Peters, you are recognized for five minutes.
    Mr. Peters. Thank you, Mr. Chairman. I just had a simple 
question because I think we are talking past it a little bit. 
Is there anyone representing the companies here with an 
interest in the mines?
    Dr. Kavanaugh. I am representing Northern Dynasty.
    Mr. Peters. Okay. So is there a plan to submit a permit 
with an EIS in the future?
    Dr. Kavanaugh. I am not familiar with the precise 
scheduling or any activities that they are undertaking. I was 
retained only to evaluate the watershed assessment.
    Mr. Peters. So no one has a sense of the timing of when 
they would like to proceed with this project?
    Dr. Kavanaugh. I think they have stated on their website 
and other places that they are shooting for the end of this 
year, but I am not privy to the internal workings of the 
company.
    Mr. Peters. So we don't know when the company itself might 
be ready to prepare an EIS?
    Dr. Kavanaugh. Well, not precisely, but I mean, they spent 
a substantial amount of money, I believe, in the hundreds of 
millions to do baseline studies, so I would assume they are 
ready, more or less, but I don't know the details.
    Mr. Peters. I mean, I just--I am new here, not even 7 
months, but it does seem to me like we are--there is a basic 
question here about when is this going to come up because if it 
is going to come up this year that they are going to file this 
permit request and have to prepare the environmental 
documentation, which is what I used to do in a past life, we 
could run these processes concurrently, agree on what the 
scientific protocols were and so forth and there wouldn't be 
this pressure that some people feel to get things moving now. 
So wouldn't it be helpful for us to know kind of what the 
company's intention was?
    Dr. Kavanaugh. Absolutely.
    Mr. Peters. So has anyone asked them? I mean, here we are 
at a congressional hearing, right? That was a simple question. 
The company could tell us. Maybe there is someone from the 
company here. When do they want to start this process up? If 
they are going to be filing their permit request in three 
months, say, I would think it would be more than reasonable to 
say, okay, let us do this concurrently in 3 months, but it is 
just a simple, basic piece of, you know, a multimillion-dollar 
or hundred-million-dollar project that no one is answering. So 
that to me would give ammunition to the people who say well, we 
have to do it now because the company is not giving us 
information about when they actually want to do it.
    Dr. Kavanaugh. Well, Congressman, that is a very good 
point. Again, I was retained by Northern Dynasty to undertake 
an assessment of the EPA study, the EPA report, but I am not an 
employee of the company. So I am not aware of the precise 
details but I am sure that could be figured out, and I think 
your approach is a valid one.
    Mr. Peters. You know, in my old world, I wasn't in 
Congress, I would just try to do things in ways that made more 
sense, but it does seem to me that if they would like to let us 
know that they are planning to do this soon, this might obviate 
the need for a big conflict and we could figure out a 
cooperative way to do this. This is my observation, and clearly 
you don't have the answer but I appreciate at your least 
addressing the question for me, Doctor.
    Dr. Kavanaugh. Sure.
    Mr. Peters. Thank you, Mr. Chairman. I yield back.
    Chairman Broun. Thank you, Mr. Peters. Now Ms. Bonamici, 
you are recognized for five minutes.
    Ms. Bonamici. Thank you very much, Mr. Chairman, for 
allowing me to participate in this important hearing. I 
appreciate it.
    I would like to thank the witnesses for being here today. I 
represent the northwest part of the State of Oregon and so this 
is an issue that is very critical to the economic and 
environmental priorities of my constituents up and down the 
West Coast, but in Oregon, for example, many of my constituents 
have commercial fishing permits for Bristol Bay. They travel 
there every summer to make a living. Still more work as fishing 
guides. They lead tours of recreational fishermen to the 
thriving ecosystem in Bristol Bay. According to a recent report 
by the University of Alaska, Anchorage's Institute of Social 
and Economic Research, as many as 2,000 Oregon jobs are 
supported by Bristol Bay salmon fisheries. So my constituents 
have made it clear to me that they are very concerned about the 
impact of a proposed mine on the ecosystem and on their 
livelihood, so it is important that we get the science right on 
this.
    I want to ask you, Mr. Nastri, much has been made about the 
EPA assessing a hypothetical project. In your testimony, you 
indicated that while final details of the plan may diverge from 
the public documents filed so far, what won't change are the 
size, scope and location of the mine. So based on your 
experience, especially with EPA, how much more information 
would EPA have to have about a project that had been officially 
proposed compared to what has been already discovered about the 
Pebble Limited Partnership plans through public documents?
    Mr. Nastri. The key issue here is the fill-and-dredge 
permits, the 404 permits, and one of the key aspects of that is 
that the fisheries are protected, and under 404 requirements, 
you have to show unacceptable adverse harm. The physical 
dimensions of the mine itself will create significant impacts 
to the ecological resources in terms of impacts to streams and 
so forth. So from that perspective, EPA has enough information 
to address the 404 question, and that is, are there 
unacceptable and adverse impacts, and if so, then the agency 
has a series of decisions that it can make with regards to how 
to address that.
    Ms. Bonamici. Thank you. And following up, how does the 
data that the EPA used in the assessment, the watershed 
assessment, compare to data that would be considered during a 
traditional NEPA process, which supporters of the mine proposal 
have said would be sufficient to protect the ecosystem?
    Mr. Nastri. Well, much of the data that is utilized in the 
watershed assessment would certainly also be utilized in the 
NEPA process, but again, the decision aspects of both processes 
are designed to inform policymakers, and the information 
certainly with regards to a 404(c) issue is certainly there, 
assuming that the watershed assessment is finalized.
    Ms. Bonamici. Thank you. And you described the--you 
discussed the Riley Yocum report in your testimony, which 
describes the actions that the EPA could prohibit under its 
404(c) authority including discharge of dredge material into 
salmon habitat, discharge of dredge material if it does not 
meet testing requirements showing that it is not a threat to 
salmon, aquatic life, and the discharge of dredge material that 
requires treatment in perpetuity. So would the performance 
standards in the report permit the Pebble Limited Partnership 
to file for a permit if it was able to engineer a solution to 
meet those requirements?
    Mr. Nastri. Absolutely.
    Ms. Bonamici. Thank you.
    And I wanted to talk briefly with my remaining time about, 
apparently, Mr. McGroarty, earlier this year, you wrote an 
opinion piece in the Wall Street Journal in which you described 
the United States as being tied with Papua, New Guinea, for 
last place in the time it takes to get a permit for a new mine, 
and I suspect that perhaps the history of what happened in New 
Guinea is a call to our government to slow down, and I hope the 
United States does move carefully on this because we don't want 
to repeat the mistakes that were made there, and I just read a 
quote from the journal Organization and Environment where they 
detailed the destruction that was left and the operation of 
the, I think it is Panguna mine. ``Thousands of acres of 
rainforest were cut down and billions of tons of mine waste 
were dumped into local rivers and their surrounding oceans, 
degrading drinking water quality and destroying fisheries and 
local fishing economies. Mine pollution may also have increased 
death rates on the island, especially among children. In 
addition, villagers living on or near the mine property were 
forcibly removed from the area to make way for the mine.'' And 
I cite this as an example of the environmental damage that can 
occur in mining operations. I point out that it is my 
understanding that this operation in New Guinea was managed by 
one of the entities involved with this proposed Pebble mine in 
Bristol Bay, and I trust that all of you will agree that we 
don't want this to happen in our country. Anybody want to agree 
with that?
    Mr. Nastri. We agree. I agree.
    Dr. Kavanaugh. Well, I certainly agree, and I think--but 
the point here again is that you are talking about a mining 
situation under strict regulatory control in Alaska. You are 
using examples of systems that were installed under poor 
regulatory oversight, and the example that I mentioned, the 135 
case studies, all of those were not relevant to the modern 
engineering design of a treatment, storage and disposal 
facility. Another example of the exaggerations that we keep 
hearing, 11 million tons of ore that are all acid generating. 
In fact, only 17 percent of the material is estimated to be 
acid generating as documented in the report, in the assessment. 
Eighty-three percent is not acid-generating materials. So I 
think the problem that keeps coming up on this project is, 
again, exaggerating the probability of failure and exaggerating 
the consequences of those failures.
    Ms. Bonamici. Thank you. I see my time is expired. Thank 
you, Mr. Chairman.
    Chairman Broun. Mr. Schweikert, you are recognized for five 
minutes.
    Mr. Schweikert. Thank you, Mr. Chairman, and I apologize to 
you and the Committee and the witnesses for my tardiness and so 
I may be asking you something that you have already spoken 
about, but it will be helpful for me.
    Being from Arizona, I have grown up around a lot of both 
underground and pit and other types of ore extraction. My 
understanding is, even what I seen in the southwest United 
States, that both the technology and the mechanics, everything 
from SX to everything else out there, have changed dramatically 
in the last couple decades, and I would love to start from Mr. 
Rothschild--and work my way down. Tell me how mechanically and 
technologically, both from an impact mitigation standpoint, for 
a large mine would look different today than it might have four 
decades ago?
    Mr. Rothschild. Well, I can tell you that I am not the 
mining expert, I am the lawyer, but I would tell you that that 
is exactly what the EIS process is intended to identify is 
those changes and the impacts. I will defer to the scientific 
experts on the panel to answer your question specifically.
    Dr. Kavanaugh. Well, Congressman, I am the only engineer on 
this panel so I can give you a few examples if that would be 
sufficient, but you certainly should take a look at written 
testimony that outlines a number of the areas where mitigation 
measures would in fact be undertaken. But let me just focus on 
a couple of examples. The tailings storage facility is a large 
facility, and certainly, any kind of failure there would have 
dramatic consequences. So those systems have to be designed to 
minimize the probability of failure. They are designed with an 
appropriate safety factor. They are designed with a downstream 
method, which has been proven to be successful. Many of the 
failures in the 135 case studies that are documented in the 
assessment are based on other ways of designing the dams and 
many of those failed because they were improperly designed. 
So----
    Mr. Schweikert. And to that----
    Dr. Kavanaugh. Just to finish my statement there, the point 
being that you can design a tailings storage facility with 
appropriate safety factors so that the probability of a failure 
is very, very low.
    Mr. Schweikert. And Doctor, back to the nature, the focus 
of my question is, tell me on that engineering, how would you 
be engineering it differently today than you might 40 years 
ago?
    Dr. Kavanaugh. Absolutely.
    Mr. Schweikert. --with the materials, the linings? Walk me 
through a couple of those, materials, engineering, design, 
technology changes that have happened in those decades.
    Dr. Kavanaugh. Well, that is fairly comprehensive so I will 
give it a stab. Again----
    Mr. Schweikert. You have got two whole minutes.
    Dr. Kavanaugh. Again, with the TSF, it would be designed in 
a manner that has been proven to be effective at withstanding 
seismic threats, overtopping, slope stability, all of the modes 
of failure that geotechnical engineers are fully aware of these 
days. The whole 135 case studies is intended to be lessons 
learned. You don't do it the way that has failed in the past. 
So with respect to that particular engineering component, 
again, it would be designed with appropriate safety factors to 
meet a permit requirement for a failure probability, one in a 
million, for example.
    With respect to all the water treatment and wastewater 
treatment facilities, they are all designed to have redundant 
systems. If there is a power failure, there is a way to assure 
that the system shuts down. There are diagnostic measurements 
that can monitor a system as detailed as you want with real-
time measurements. That is in the water and wastewater 
management arena. One of the issues is the containment of the 
acid drainage from the tailings. You can design that to be of 
sufficient capture to capture all of the acid-generated wastes. 
In the report, they estimated 50 percent would be lost. I think 
that is a poor assumption. Other components of the mine involve 
the pipelines. You can do pipeline designs that are double-
walled. All of these things, of course, can add to the cost, 
but they can be done in a way that minimizes the probability of 
any releases.
    Mr. Schweikert. Mr. Chairman, in the last 40 seconds, Mr. 
Nastri, same sort of question.
    Mr. Nastri. As a former EPA----
    Mr. Schweikert. And can you hit your button?
    Mr. Nastri. As a former Regional Administrator who was 
involved in both the cleanup of legacy mines as well as the 
permitting of new mines, I think I have a good grasp on the 
issue. I am sure that any mine in its time said they were going 
to meet the requirements, that they were going to do the 
absolute best and that nothing would be the case. 
Unfortunately, in the Southwest, we have the greatest 
concentration of Superfund mine sites that are being cleaned 
up. There are a number of----
    Mr. Schweikert. But Mr. Nastri, to that point, the legacy 
and time frame of those, having some education in this area----
    Mr. Nastri. Sure.
    Mr. Schweikert. --are almost all 50-year-old from their 
original permitting dates, and the design and manufacturing and 
engineering and mitigation that you would permit a new mine 
today would look dramatically different in your requirements, 
correct?
    Mr. Nastri. Absolutely, they would look different. However, 
accidents happen. Things happen that don't----
    Mr. Schweikert. And that is why now in your mechanics and 
your rules you do the layers of redundancy that have been 
modeled from previous experiences, correct?
    Mr. Nastri. You do do that, but they are not foolproof and 
they are not----
    Mr. Schweikert. Well, also, you know, life isn't foolproof 
but at some point you play the statistical part of your tale, 
and sorry, I am way over time, but Mr. Chairman, thank you for 
your patience.
    Chairman Broun. We will start a second round of questions, 
and try to get through as far as we can go. We have votes at 
about 2:30, 2:35.
    Mr. Nastri, back to the question that Mr. Maffei gave you. 
All I heard was economic issues, not environmental harm, and if 
you can in your written statement or answering the written 
questions, if you can show us what you mean by environmental 
harm. I have not heard anything from you regarding that.
    But let us go to Mr. Rothschild with that same question. 
Would allowing the Pebble project to present a plan to go 
through the NEPA permitting process result in any environmental 
harm?
    Mr. Rothschild. No.
    Chairman Broun. Yes or no?
    Mr. Rothschild. No, Mr. Chairman.
    Chairman Broun. Okay. Dr. Kavanaugh?
    Dr. Kavanaugh. Not that I am aware of.
    Chairman Broun. Okay. Dr. Kavanaugh, one argument made by 
people opposed to the mine in Bristol Bay is that Geosyntec was 
hired by one of the mining companies exploring mining options 
in Bristol Bay so it naturally raises concerns shared by the 
mining company. Is that a fair characterization? Would 
Geosyntec's report have been different had the company been 
retained by an environmental group or organization opposed to 
the mining in Bristol Bay?
    Dr. Kavanaugh. Well, I appreciate that question, Mr. 
Chairman. Geosyntec has been in business since 1983. We have a 
thousand staff. We consider ourselves independent environmental 
consultants. Our fee was paid by Northern Dynasty but we have 
no commercial interest in the outcome. We are not advocating 
one way or another. We are simply commenting on the scientific 
and technical credibility of a document. I would make the same 
comments were I retained by an environmental organization with 
respect to the limitations of the assessment that has been 
prepared.
    Chairman Broun. I take it that if all these groups that are 
opposed to the mine had hired Geosyntec, you would have--the 
results would have been the same? Is that what you are telling 
us?
    Dr. Kavanaugh. Yes, it would.
    Chairman Broun. Thank you.
    Mr. Rothschild, what role do avoidance and mitigation 
impacts play in the mining permit process?
    Mr. Rothschild. Under the Clean Water Act permitting 
process, a permit applicant is required to submit all 
practicable avoidance, minimization and mitigation measures, 
and so there is a detailed analysis about what can be done 
practicably in every permit case to ensure that the impacts are 
avoided, minimized and mitigated to the greatest extent.
    Chairman Broun. Okay. Dr. Kavanaugh, following up on Mr. 
Rothschild's response, what is your assessment of the role of 
avoidance and mitigation of impacts in either the first or 
second draft of EPA's watershed assessment?
    Dr. Kavanaugh. Well, in the second draft, they included 
greater discussion about mitigation in the document but they 
did not incorporate, in my opinion, mitigation into minimizing 
or discussing the probability of failure. They still retain, 
for example, four examples of tailings storage facilities' 
failures, four case studies, if you will, that are not relevant 
to a modern mine. They were based on well-known causes of 
failure, and those failures are again lessons learned.
    One of the mistakes, in my view, that permeates the report 
is the use of historical information to predict what may occur 
in the future, and I understand the limitations of making these 
predictions into the future, and it is not a straightforward 
analysis. But to give equal weight to worst-case scenarios 
leads to, in my opinion, not a credible risk analysis.
    Chairman Broun. Dr. Kavanaugh, EPA described this 
assessment as a watershed assessment in 2012. Subsequently, the 
revised version of the document has been referred to as an 
ecological risk assessment and an environmental assessment. Is 
there a difference between a watershed assessment and 
ecological risk assessment and an environmental assessment?
    Dr. Kavanaugh. Well, I think there is some confusion as to 
what exactly the nature of this document is. It is not really 
an ecological risk assessment because it doesn't quantify a lot 
of ecological risks. It talks about the potential risks in a 
qualitative way. It also is not really a risk analysis, in my 
view, because of the limitations that I have already mentioned, 
and it is not an Environmental Impact Statement because it is a 
hypothetical mine scenario. So I honestly don't exactly know 
what kind of a document it is. It is a unique document, and it 
does not follow any guidance, principles related to processes 
that have been identified by EPA, for example, in ecological 
risk assessment.
    Chairman Broun. Very good. My time is expired. Mr. Maffei, 
you are recognized for five minutes.
    Mr. Maffei. Thank you, again, Mr. Chairman.
    Mr. Rothschild, if the EPA decided to move forward with 
404(c) action in Bristol Bay, does it have the authority to do 
so strictly speaking as a legal matter?
    Mr. Rothschild. Well, with the caveat that I wasn't asked 
to talk about 404(c), I can tell you that EPA has not 
historically issued a preemptive 404(c) veto so it is not 
exactly clear what it would need to do to prepare a record for 
that. I do note that as early as this morning, Administrator 
McCarthy was quoted in the Washington Post as saying that with 
regard to the mine, ``Any act that EPA would take would be 
carefully considered. There are significant natural resources 
in that area along with significant economic resources. We have 
got to get that balance right.'' It is that balance that really 
NEPA is intended to inform the decision making.
    Mr. Maffei. Thank you. That is helpful.
    I want to quote from a letter by Senator Lisa Murkowski on 
this. She wrote on July 1, 2013, that at least as far back as 
November 3, 2004, Northern Dynasty Minerals asserted that the 
submission of permit applications was imminent, and then she 
goes on to describe how this occurred again in 2005 and 2006, 
2008, 2009, 2010 right up to most recently in June of 2013. The 
PLP representative said they hope to have a project to take 
into permitting this year, and she says, ``By failing to take 
the next step, by failing to decide whether to formally 
describe the project and seek permits on it, PLP has created a 
vacuum that EPA has now filled.''
    Mr. Nastri, is this--does this context affect your 
assessment of the EPA's responsibilities here, the context of 
all of these times that the companies have said they are going 
to seek a permit and then they pull back?
    Mr. Nastri. Well, the agency is being responsive to those 
who actually requested they get involved, those being the 
Alaska Natives, the residents, the commercial and sport 
fishermen and a whole host of other groups. So I guess the lack 
of submission of a timely permit application that created the 
uncertainty, the confusion and the anxiety has certainly 
contributed to where we are today. Had that been done, I am 
sure we would not be here today. But the fact of the matter is, 
for EPA to respond to various residents and groups and so 
forth, this is the way that they respond. They have to look at 
the issue.
    Mr. Maffei. I would like to note that there are some 
representatives of the native tribes that requested the EPA 
look into this here today, and I am honored that they would 
make the trip.
    Just to elaborate a little bit further on that, Mr. Nastri, 
so the fact that it may be fairly unprecedented if the EPA were 
to go ahead with 404(c) action but do you feel that this is a 
somewhat unprecedented situation with a company postponing, you 
know, bringing to the brink that they are going to have a 
permit and then continuing to postpone it time and time again?
    Mr. Nastri. Well, I think the area and the resource is 
unprecedented in terms of the value and its importance both 
from an economic perspective, from a jobs perspective, and 
there is the cultural importance, and so in that light, I think 
it is important to address and provide certainty to those 
people. But as far as, you know, people have said that this is 
a precedent, you know, as was said earlier, hundreds of 
thousands of permit applications for fill-and-dredge permits, 
the agency has only taken 13 times, and the issue of being 
proactive, I mean, here we are in the world's greatest salmon 
fishery left. If we are not going to be careful and protective 
of this, when would we be? And so that is why it is so 
important to address this issue, provide that certainty now to 
everybody involved.
    Mr. Maffei. Well said, sir, and I will yield back the 
balance of my time.
    Chairman Broun. Thank you, Mr. Maffei. Mr. Schweikert, you 
are recognized for five minutes.
    Mr. Schweikert. Thank you, Mr. Chairman. And Dan, help me 
with the last name so I don't screw it up.
    Mr. McGroarty. McGroarty.
    Mr. Schweikert. McGroarty? Okay. I was going to get it. I 
wanted to make sure I was being fair in my chain because part 
of the discussion we have also had in our office about this is 
not only some of the abnormalities we think have happened, sort 
of the pattern of heading towards NEPA, heading towards this 
and people trying to cut it off and those things, but just also 
understanding, are we also making sure--and this is from both 
those who want to extract the materials to the communities 
around there to everyone with some type of interest--an 
understanding of current state of technology, current state of 
the mechanics, current state of rule sets so if you are going 
to set up the rules on how this is going to happen, if it is to 
happen, that we have learned from past mistakes, we have 
learned from things. I have learned in Arizona and how 
radically different at least from what I see in the Southwest 
of a new facility would be designed and managed.
    I know you spent some time sort of on the information side. 
How are we doing in disseminating to all levels what the newest 
technologies are?
    Mr. McGroarty. I think that is precisely the kind of 
argument for having the NEPA process and having a detailed EIS 
because it is a kind of discovery, and what it means, instead 
of having a hypothetical construct is, there is a particular 
plan with particular technologies, particular best practices in 
a particular place and that experts on all sides of those 
questions have the opportunity to bring their information to 
bear. It is very much like Mr. Rothschild said about that 
process. That process is in place and it takes us very far 
downfield to making a good decision, a scientifically informed 
decision. In my oral remarks today, it is interesting that I am 
quoting from National Resource Defense Council in praise of the 
NEPA system, which I think is an accurate statement, and so I 
don't understand why we would want that or possibly circumvent 
or prevent that when it is precisely the kind of process that 
would reveal those answers and would air those questions that 
you have raised here.
    Mr. Schweikert. Tell me that I am not looking at a 
situation where we have sort of a regulatory process to review 
mechanics and when certain parties are fearful they may not get 
what they want politically, that they are trying to find ways 
to head off that process.
    Mr. McGroarty. I can't put my----
    Mr. Schweikert. Or would that be just too cynical to say 
such a thing?
    Mr. McGroarty. I can't put myself inside the mind of folks 
arguing that. I do say that the press often reports that the 
watershed assessment would be a tool to stop the process. That 
is all I can tell you.
    Mr. Schweikert. Okay. Mr. Rothschild, you have expertise in 
the NEPA process?
    Mr. Rothschild. Yes.
    Mr. Schweikert. Tell me what you think works and doesn't 
work.
    Mr. Rothschild. I think that NEPA process as a whole works. 
It analyzes the alternatives to and the impacts of a proposed 
project, and that is certainly something that is missing in 
this assessment regardless is, every NEPA assessment needs to 
look at the alternative of not doing anything. It is called the 
no-action alternative. And what comes with that analysis is the 
impacts that would result from not doing anything, the impact, 
the environmental, the economic impacts, some of the impacts 
that Mr. McGroarty was testifying to earlier with regard to the 
need for these metals, and so I think the NEPA process, while 
it has its kinks, is fairly successful at looking at impacts 
and alternatives.
    Mr. Schweikert. Okay. Mr. Chairman, you know, that gets me 
where I needed to be informationally, so I yield back.
    Chairman Broun. Okay. Very good, Mr. Schweikert. I 
understand I have a unanimous consent request.
    Mr. Maffei. Mr. Chairman, I ask unanimous consent that Mr. 
Kilmer of the State of Washington be allowed to participate in 
the Subcommittee hearing. He is a member of the full Committee 
but not the Subcommittee.
    Chairman Broun. Hearing no objections, so ordered.
    Ms. Bonamici, you are recognized for five minutes.
    Ms. Bonamici. Thank you, Mr. Chairman, and I will just take 
a couple minutes. I wanted to recognize that again there are 
people here from some of the tribes. They have come all this 
way, and I appreciate their presence.
    It is my understanding that Bristol Bay is home to 25 
federally recognized tribal governments, and I wanted to talk a 
little bit about the public participation part of the 
assessment. Mr. Nastri, is it unusual for there to be two 
public comment periods? Because it is my understanding that 
during the first phase, there were more than 200,000 public 
comments, and during the second phase, 877,000 public comments 
came in. So can you talk a little bit about the effort to 
involve the public in this assessment process, especially with 
the federally recognized tribes?
    Mr. Nastri. There has been extensive outreach during this 
entire process and it was at every stage of the process from 
helping to define what the study would be, helping to select 
the charges that would be subject to peer review, to who peer 
reviewers could be. There was extensive outreach with regards 
to the one or two peer reviews. In my experience, there 
typically was one peer-review period and then the agency would 
go ahead and finalize and release. I think in an abundance of 
caution, the agency wanted to make sure that there was as much 
outreach as possible and to solicit as much input as possible 
from all of those, and it is continuing to do so, and right now 
they had recently closed that second comment period on the 
second revision that was released, and so they are in the 
process of compiling and reviewing all of the comments that are 
submitted, and I am sure that many of the issues that were 
discussed today will be addressed once that watershed 
assessment is finalized and released.
    Ms. Bonamici. Thank you. And can you comment briefly on the 
efforts that have been made to work with the federally 
recognized tribes in the Bristol Bay area?
    Mr. Nastri. There have been a number of communications 
directly with members of the tribal villages. Previously, there 
was visits to the actual area. I know that there were a number 
of visits. The Administrator herself, Administrator Jackson, 
had the chance to visit. EPA staff had the chance to actually 
fly over the proposed site, look at some of the areas that 
would be impacted by the potential development of the Pebble 
deposit. So there was an extensive ability for the actual staff 
of the agency to see firsthand what it is that was being 
discussed. I myself also had the opportunity to visit a number 
of those villages and see the challenge that they have. So I 
think that in terms of the agency itself providing the 
opportunity for engagement, they specifically formed a group to 
deal with the tribal entities and so forth. They have had 
numerous opportunities for public input, and I would say that 
it is really quite extensive.
    Ms. Bonamici. Thank you very much, and I yield back the 
remaining time. Thank you, Mr. Chairman.
    Chairman Broun. Thank you, Ms. Bonamici. Mr. Kilmer, you 
are recognized for five minutes. Do you think you need all 
five?
    Mr. Kilmer. I don't think I will.
    Chairman Broun. Okay.
    Mr. Kilmer. Thank you, Mr. Chairman, and thank you for 
allowing me to participate in this important hearing. I would 
like to thank all the witnesses for traveling here today as 
well.
    As mentioned, the Bristol Bay watershed is the world's 
largest sockeye salmon fishery, not only in existence but 
flourishing, and as a representative from Washington State, I 
have seen the detrimental effects of a struggling salmon 
population and how it can affect all stakeholders from 
fisherman to our tribal communities. In Washington State, we 
can all agree that the viability of our fisheries, whether in 
the State of Washington or in Alaska, are a key economic driver 
and a part of our cultural heritage, and healthy fisheries 
create jobs. Bristol Bay watershed supports over 14,000 jobs 
from Alaska to Maine and at least 5,000 Washington State jobs 
rely on the Bristol Bay sockeye fishery including a good number 
of my constituents.
    In examining the proposal, I have serious concerns over the 
environmental effects of building this type of mine right on 
top of the largest sockeye run in the world. In fact, according 
to Pebble's own documents on file at the SEC, at least 80 miles 
of sockeye spawning streams would be destroyed during the 
construction of the mine. That is in addition to the lasting 
impacts that the toxic tailing pools would have on salmon. I 
hear the Pebble supporters say that the EPA should just wait 
for a permit application, and I guess I have got a few 
questions for Mr. Nastri.
    First, in your opinion, why is it so important that EPA get 
this work done sooner than that? Second, I hear from a lot of 
commercial and sports fishermen in my district who oppose the 
Pebble mine and support the EPA's process. In the Bristol Bay 
region, what do residents think about the EPA process and what 
do they think about the mine? And then finally, you know, I 
have a number of tribes in my district and I understand the 
importance of access to fishing grounds for our tribal 
communities. Worst-case scenario or let us say medium-case 
scenario we have a leakage from the toxic tailing pools. What 
happens to subsistence fishers in the region? Are there other 
streams nearby that can sustain them? In your view, is the EPA 
doing enough to make sure subsistence fishers in the Bristol 
Bay region have a voice during the process? Thank you.
    Mr. Nastri. Thank you. You asked a lot of questions, and 
hopefully I will be able to answer them all, but if I forget 
one, please remind me.
    With regards to the level of support, as I mentioned 
earlier, over 75 percent of the comments that were generated 
with regards to the watershed assessment were in support of, 
and within Bristol Bay, over 95 percent of the commenters 
supported EPA's watershed assessment.
    With regard to the subsistence aspect, there was a 
tremendous amount of outreach on the cultural and subsistence 
issue, and in fact, there were comments that were submitted by 
various villages that talk about the potential harm to a 
subsistence way of life and to a cultural identity should the 
salmon be impacted in a way that is feared. And so there is a 
tremendous amount of effort, both in terms of addressing the 
subsistence aspect. There is a tremendous level of support for 
EPA and its watershed assessment. And I am sorry, the very 
first portion of your question?
    Mr. Kilmer. In your opinion, why is it so important that 
the EPA get this work done sooner than waiting for a permit 
application?
    Mr. Nastri. So right now what we have and what really 
prompted the request to EPA is uncertainty, and as Senator 
Murkowski said, that uncertainty has caused anxiety and 
frustration within the communities. And that has a direct 
impact on the economic well-being of the area. We have heard 
from a number of groups and organizations that said they will 
not invest in the area because they don't know what the outcome 
is. There is also the ongoing threat of stigma, stigma in terms 
of, are these fish going to be something that is really 
valuable. Right now, the value of this fishery is tremendous, 
and so providing and addressing a response that addresses the 
uncertainty is extremely important, and not only are there the 
economic aspects, you know, the 14,000 jobs, the 1.5 billion 
contribution, but you have the social impacts as well, and I am 
sure that the village elders that are here today could share 
with you stories about what it is doing to their youth. I have 
had the chance to talk to some of those youth, and they say 
that this uncertainty has impacted them greatly. And so 
providing the certainty not only to all the people that are 
involved that rely on the fishery, that live on the fishery, 
but to everybody so that they know what needs to be done and 
how we can address this and move forward and continue to have 
that very viable and healthy fishery and economy.
    Mr. Kilmer. Thank you, Mr. Chairman. I yield back.
    Chairman Broun. Thank you, Mr. Kilmer.
    Before I adjourn this hearing, I want to make a couple of 
points. As I stated in my opening statement, I am an avid 
hunter, fisherman and conservationist. In fact, it was those 
issues that started my political activism. I enjoy the great 
outdoors and strive to protect our natural resources so future 
generations may also enjoy the benefits that they provide.
    I have serious questions about how a mine can coexist with 
fish in Bristol Bay, but I have reservations about EPA's action 
in regard to the potential Pebble mine. I cannot support 
actions by a Federal agency that disregards laws that already 
exist that provide a level playing field for both industry and 
environmentalists alike. We must be a Nation ruled by law, not 
ruled by the decision of man or woman.
    If the Administration wants to keep its promise of 
transparency and accountability, it should start with projects 
like the Pebble mine in Bristol Bay and allow the NEPA process 
to occur once an actual plan is submitted. If it turns out a 
mine cannot be developed without endangering the salmon in 
Alaska, then the EPA has the authority to deny the requisite 
permits, and should. But it will have done so by following the 
due process instead of setting a costly and chilling precedent 
that may send more jobs out of the United States to countries 
whose mining laws have little regard for the environment or 
their citizens. Following our system of existing laws and 
regulations would also help alleviate the uncertainty among 
industry, who right now are wondering which rules will prevail, 
the laws as we know them or the whims of an agency an 
Administration that apparently believes the ends justify the 
means.
    My position has always been, if the Pebble mine will harm 
the fisheries and environment, as some believe, it should not 
be allowed. We must allow due process under the law to find the 
facts. Laws and facts should drive the decision.
    Again, I thank everyone for their participation in this 
informative hearing today, and I suspect it won't be our last 
discussion on the topic.
    I have allowed every letter that I have gotten, no matter 
how much they have impugned my process and my reasons for 
holding this hearing. I have put them all in the record. We 
have to be a Nation governed by law and due process, and that 
is the whole reason for this hearing.
    Now, Members of the Committee may have additional questions 
for the witnesses, and we will ask you to respond to those in 
writing. The record will remain open for two weeks for 
additional comments and written questions from Members.
    The witnesses are excused. I thank you all for you all's 
presence. This hearing is adjourned.
    [Whereupon, at 2:31 p.m., the Subcommittee was adjourned.]
                               Appendix I

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                   Answers to Post-Hearing Questions



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                              Appendix II

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                   Additional Material for the Record



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