    [House Hearing, 114 Congress]
    [From the U.S. Government Publishing Office]

                     EXAMINING EPA'S PREDETERMINED EFFORTS
                       TO BLOCK THE PEBBLE MINE, PART II

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

                                    HEARING

                                   BEFORE THE

                  COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY
                            HOUSE OF REPRESENTATIVES

                        ONE HUNDRED FOURTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                                 April 28, 2016

                                   __________

                               Serial No. 114-75

                                   __________

     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

                                 ________

                    U.S. GOVERNMENT PUBLISHING OFFICE

     20-872 PDF                 WASHINGTON : 2017
    ____________________________________________________________________
     For sale by the Superintendent of Documents, U.S. Government Publishing Office,
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                  COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY

                       HON. LAMAR S. SMITH, Texas, Chair
    FRANK D. LUCAS, Oklahoma             EDDIE BERNICE JOHNSON, Texas
    F. JAMES SENSENBRENNER, JR.,         ZOE LOFGREN, California
        Wisconsin                        DANIEL LIPINSKI, Illinois
    DANA ROHRABACHER, California         DONNA F. EDWARDS, Maryland
    RANDY NEUGEBAUER, Texas              SUZANNE BONAMICI, Oregon
    MICHAEL T. McCAUL, Texas             ERIC SWALWELL, California
    MO BROOKS, Alabama                   ALAN GRAYSON, Florida
    RANDY HULTGREN, Illinois             AMI BERA, California
    BILL POSEY, Florida                  ELIZABETH H. ESTY, Connecticut
    THOMAS MASSIE, Kentucky              MARC A. VEASEY, Texas
    JIM BRIDENSTINE, Oklahoma            KATHERINE M. CLARK, Massachusetts
    RANDY K. WEBER, Texas                DON S. BEYER, JR., Virginia
    JOHN R. MOOLENAAR, Michigan          ED PERLMUTTER, Colorado
    STEVE KNIGHT, California             PAUL TONKO, New York
    BRIAN BABIN, Texas                   MARK TAKANO, California
    BRUCE WESTERMAN, Arkansas            BILL FOSTER, Illinois
    BARBARA COMSTOCK, Virginia
    GARY PALMER, Alabama
    BARRY LOUDERMILK, Georgia
    RALPH LEE ABRAHAM, Louisiana
    DARIN LaHOOD, Illinois

                                C O N T E N T S

                                 April 28, 2016

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

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

                               Opening Statements

    Statement by Representative Lamar S. Smith, Chairman, Committee
      on Science, Space, and Technology, U.S. House of
      Representatives................................................     6
        Written Statement............................................     8

    Statement by Representative Eddie Bernice Johnson, Ranking
      Member, Committee on Science, Space, and Technology, U.S. House
      of Representatives.............................................    11
        Written Statement............................................    13

                                   Witnesses:

    The Honorable Dennis McLerran, Administrator, U.S. Environmental
      Protection Agency, Region 10
        Oral Statement...............................................    15
        Written Statement............................................    19
    Discussion.......................................................    26

                 Appendix I: Answers to Post-Hearing Questions

    The Honorable Dennis McLerran, Administrator, U.S. Environmental
      Protection Agency, Region 10...................................    60

                Appendix II: Additional Material for the Record

    Documents submitted by by Representative Suzanne Bonamici,
      Committee on Science, Space, and Technology, U.S. House of
      Representatives................................................    68

    Documents submitted by Representative Donald Beyer, Committee on
      Science, Space, and Technology, U.S. House of Representatives..    88

    Documents submitted by Representative John R. Moolenaar,
      Committee on Science, Space, and Technology, U.S. House of
      Representatives................................................    97

    Documents submitted by Representative Eddie Bernice Johnson,
      Ranking Member, Committee on Science, Space, and Technology,
      U.S. House of Representatives..................................   110

                   Appendix III: Slides Shown During Hearing

    Slides submitted by Representative Lamar Smith, Chairman,
      Committee on Science, Space, and Technology, U.S. House of
      Representatives................................................   114

    Slides submitted by Representative Randy Neugebauer, Committee on
      Science, Space, and Technology, U.S. House of Representatives..   116

    Slides submitted by Representative Bill Posey, Committee on
      Science, Space, and Technology, U.S. House of Representatives..   117

    Slides submitted by Representative Mark Takano, Committee on
      Science, Space, and Technology, U.S. House of Representatives..   118

    Slides submitted by Representative Brian Babin, Committee on
      Science, Space, and Technology, U.S. House of Representatives..   121

    Slides submitted by Representative Gary Palmer, Committee on
      Science, Space, and Technology, U.S. House of Representatives..   122

    Slides submitted by Representative John R. Moolenaar, Committee
      on Science, Space, and Technology, U.S. House of
      Representatives................................................   124

    Slides submitted by Representative Bruce Westerman, Committee on
      Science, Space, and Technology, U.S. House of Representatives..   127

    Slides submitted by Representative Darin LaHood, Committee on
      Science, Space, and Technology, U.S. House of Representatives..   128

    Slides submitted by Representative Barry Loudermilk, Committee on
      Science, Space, and Technology, U.S. House of Representatives..   129

                     EXAMINING EPA'S PREDETERMINED EFFORTS

                       TO BLOCK THE PEBBLE MINE, PART II

                                  ----------

                            THURSDAY, APRIL 28, 2016

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

        The Committee met, pursuant to call, at 10:05 a.m., in Room
    2318, Rayburn House Office Building, Hon. Lamar Smith [Chairman
    of the Committee] presiding.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Chairman Smith. The Committee on Science, Space, and
    Technology will come to order. Without objection, the Chair is
    authorized to declare recesses of the Committee at any time.
        Welcome to today's hearing entitled ``Examining EPA's
    Predetermined Efforts to Block the Pebble Mine, Part II.''
        I'll recognize myself for an opening statement and then the
    Ranking Member.
        Today, we will examine the Environmental Protection
    Agency's efforts to block the Pebble Mine project from
    development before it even applied for a permit. This morning,
    the Committee will hear testimony from EPA Region 10
    Administrator Dennis McLerran.
        And according to the EPA, Regional Administrator McLerran
    is the ``decision-maker'' for EPA matters that involve the
    Pebble Mine. It was his decision to improperly use the Clean
    Water Act to stop the Pebble Mine before the project submitted
    a formal plan, before it submitted a permit application, and
    before due process was able to proceed.
        I am certain that we will hear from our colleagues on the
    other side of the aisle about the EPA Inspector General's
    report that appeared to absolve the Agency of any
    predetermination or bias in this matter. However, the IG's
    report is flawed. It took a top-down analytical approach and
    focused only on Administrator McLerran and acting Assistant
    Administrator Nancy Stoner. It did not focus at all on the EPA
    employees involved in the Pebble Mine matter, nor did it
    discover the actions taken by those who funneled information up
    to Administrator McLerran.
        In the course of the Committee's investigation, we
    discovered that EPA employees colluded with third-party Pebble
    Mine opponents. They sought to deliberately establish a record
    that pointed to one outcome: the Pebble Mine will be excluded
    from the regular permitting process and should be stopped.
        Recently, the Committee conducted a deposition of former
    EPA employee Phil North, the EPA employee who, on the
    advisement of environmental groups, chose not to voluntarily
    speak to Congress. Mr. North's testimony is important to
    understand the mindset of the EPA employees under the authority
    of Administrator McLerran.
        Mr. North readily admitted to the Committee that he opposed
    the Pebble Mine and advocated among his colleagues that the
    Agency use the Clean Water Act to stop it. Mr. North and his
    EPA colleagues arrived at this conclusion before the Agency had
    produced any scientific information. While the EPA has been
    quick to minimize Mr. North's role in the Agency's decision-
    making process, his influence to promote the idea to stop the
    Pebble Mine is clear.
        Mr. North admitted under oath that he provided edits to an
    official petition letter from a third party sent to
    Administrator McLerran. The letter requested that the EPA stop
    the Pebble Mine before it applied for any permits. Mr. North
    asserted that it was, in fact, his duty as a federal government
    employee to provide assistance to a group that petitioned the
    government and the EPA.
        The EPA Inspector General and the EPA Office of Ethics
    apparently do not agree. Both determined that Mr. North's
    actions constitute a possible misuse of his federal government
    position.
        Mr. North's testimony also provided a clear depiction of
    the lack of adherence to official EPA policies that went on
    under Administrator McLerran's watch. Mr. North admitted that
    he and other EPA employees within Region 10 used personal email
    accounts to conduct official EPA business. Mr. North discussed
    matters that related to Pebble Mine on his personal email with
    third-party groups opposed to the project.
        Nearly all of these official records are now unavailable to
    the Committee for review because Mr. North and the Agency
    failed to preserve them. We may never know the true extent to
    which Mr. North and EPA employees worked with outside groups to
    establish a process to stop the Pebble Mine before it applied
    for a permit. But we know enough to conclude that EPA employees
    violated ethical standards by giving outside groups
    unprecedented access to internal EPA deliberations, allowing
    for close collaboration on agency actions and strategy.
        Documents obtained from the EPA show that Administrator
    McLerran's trusted advisor on Pebble Mine matters, Richard
    Parkin, presented only one option to Administrator McLerran:
    that the EPA use the Clean Water Act to stop the mine before it
    even applied for a permit.
        The EPA should be reminded that it was Congress that
    established the Clean Water Act. It is not the decision of
    activist EPA employees to decide to circumvent the processes
    established in the Clean Water Act.
        The EPA and anti-Pebble Mine groups continue to assert that
    the pre-application process EPA used to stop the Pebble Mine is
    one that will ultimately save the mining company time and
    money. But it is not the Agency's place to decide how a company
    should spend its resources. If the Pebble Mine chooses to use
    its resources to move forward with the permitting process, then
    it should be allowed to do so.
        Moreover, it appears that the EPA will use this case as
    precedent to block additional projects throughout the United
    States. If we allow the EPA to pursue this path of action, the
    Agency will have set the precedent to tell states, local
    governments, and even private citizens how they can develop
    their land before a permit application has ever been filed.
    This is harmful to economic development and dangerous to the
    democratic process.
        This committee should support due process, protect the
    permitting process, and insist that EPA actions be based on
    objective science. The EPA violated all of these tenets in its
    evaluation of the Pebble Mine. The Committee should not allow
    EPA to stop projects before they even apply for a permit. This
    would be contrary to the rule of law and the principles of
    scientific analysis.
        The inappropriate actions by the EPA employees, the
    misapplication of the law, and lack of decision-making based on
    science throughout this process requires that the Agency cease
    any further action against the Pebble Mine. The EPA should
    allow the established permitting process to run its course and
    determine the future of this project. Science and due process
    should lead the way, not predetermined outcomes by activist EPA
    employees.
        [The prepared statement of Chairman Smith follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Chairman Smith. That concludes my opening statement, and
    the Ranking Member Ms. Johnson, the gentlewoman from Texas, is
    recognized for hers.
        Ms. Johnson. Thank you very much, Chairman Smith, and let
    me welcome Mr. McLerran. I appreciate your commitment to public
    service, and I look forward to your testimony.
        We've been here twice before with hearings on EPA and the
    proposed Pebble Mine in Bristol Bay, Alaska. In August 2013,
    the Committee held a hearing on the EPA's Bristol Bay Watershed
    Assessment. Last November, it held a second hearing titled
    ``Examining EPA's Predetermined Efforts to Block the Pebble
    Mine.'' That hearing included the CEO of the Pebble
    Partnerships and two of the company's paid consultants.
        I am glad we're finally hearing from an EPA witness, Mr.
    Dennis McLerran. As the EPA Administrator of Region 10 that
    includes Oregon, Washington, Idaho, and Alaska, he plays a
    pivotal role in helping EPA carry out its critical mission of
    protecting human health and environment.
        Based on the title of today's hearing, I expect that we
    will hear a lot of claims of unprecedented use by EPA of its
    section 404 authority, bias by the EPA in its watershed
    assessment, and the EPA collusion with outside parties in
    initiating the 404(c) action. My colleagues are likely to
    produce selective quotes and emails to support that narrative.
    That is certainly their right.
        But I think the fundamental facts are already clear. First,
    the Clean Water Act gives EPA the authority to initiate 404(c)
    action before a permit is applied for. And indeed, EPA did just
    that in 1988 under President Reagan. EPA's action in the Pebble
    Mine case was certainly not unprecedented or unlawful.
        Secondly, the independent Inspector General for EPA
    examined the question of potential bias or collusion in support
    of a predetermined outcome in its Pebble Mine actions. And the
    IG reported in January of this year that it found no evidence
    of bias or predetermined outcome. That is about as clear a
    statement of fact as IG can make.
        Third, while some members may attempt to cast doubt over
    the entire EPA watershed assessment due to the behavior of one
    EPA employee Mr. Phil North, the reality is that the assessment
    was a result of multiple meetings with Pebble Partnership,
    environmental, and other stakeholder groups over multiple years
    and extensive reviews of the relevant scientific literature.
        The resulting assessment, which was peer-reviewed twice,
    had 20 cosponsors, of which Mr. North was only one. As the EPA
    IG stated in its January 2016 report, ``We found no evidence of
    bias in how EPA conducted the assessment, and we also found no
    evidence that the EPA predetermined the outcome of the
    assessment to initiate a CWA section 401(c) process in the
    Bristol Bay watershed.
        Now, I don't expect the facts that I have just laid out to
    dissuade those who have decided that uncovering an EPA
    conspiracy is to be the predetermined outcome of this hearing,
    but I think it is important that they be placed in the public
    record.
        Mr. Chairman, commercial fishermen in Bristol Bay,
    environmental groups, Native Alaskan tribes, and even jewelry
    companies such as Tiffany & Company were deeply concerned that
    a mine in Bristol Bay would destroy the splendor and unspoiled
    beauty of this unique watershed and cripple the economic
    livelihood of thousands of its residents who rely on its world-
    renowned salmon fisheries. All those groups called on the EPA
    to take action to protect this critical environmental resource.
        I hope that my majority colleagues will realize that the
    use of 404(c) process even in Bristol Bay, Alaska, is not a
    political issue. It is about protecting a unique environmental
    resource. In that regard, I find it ironic that EPA has been
    condemned in recent weeks for doing too little to protect the
    water in Flint, Michigan, and at the same time as they are
    being condemned by some of the same committee for doing too
    much to protect the water in Bristol Bay, Alaska.
        Lastly, I'm attaching a minority report to my statement
    that takes a deeper look at how the 401(c) has been applied in
    the past and the tactics the Pebble Partnership has employed in
    an attempt to control the public message regarding their
    controversial mine in Bristol Bay.
        I believe, as others have said, that the proposed Bristol
    mine--Pebble Mine in Bristol Bay is simply the wrong mine in
    the wrong place. But I also believe that section 401(c) of the
    Clean Water Act has been used by EPA in the right way in the
    right place. This law was written with places like Bristol Bay
    in mind.
        The law has not been widely used over the past four
    decades, nor should be--should it be. It was designed to be
    used in special cases where potential development poses an
    extreme adverse threat to U.S. waters. This is exactly what the
    proposed Pebble Mine in Bristol Bay would do.
        I thank you, Mr. Chairman, and I yield back.
        [The prepared statement of Ms. Johnson follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Chairman Smith. Thank you, Ms. Johnson.
        The gentlewoman from Oregon, Ms. Bonamici.
        Ms. Bonamici. Mr. Chairman, may I be recognized for a
    minute to speak out of turn?
        Chairman Smith. The gentlewoman is recognized.
        Ms. Bonamici. Thank you, Mr. Chairman, and Committee
    Members.
        I want to recognize Marcy Gallo, the Staff Director for the
    Environment Subcommittee, who is leaving the Committee to
    continue serving Congress at the Congressional Research
    Service. This is her last hearing with us.
        I value her commitment, her tireless work, and I know the
    other Committee Members share my respect for her. I especially
    appreciate her collaborative approach to working with
    stakeholders on the Tsunami Warning Education Research Act and
    the weather bill.
        All of us here know how much our staff takes on and how
    hard they work, often for very little credit. So Marcy, we
    thank you. We will miss you, and we wish you the best of luck
    in your next adventure.
        Chairman Smith. Do you want to stand up so you can get
    recognition?
        Ms. Bonamici. Thank you, Mr. Chairman. I yield.
        Chairman Smith. I thank the gentlewoman for bringing that
    up.
        I also have to not pass up the opportunity of mentioning
    that there's another staff member of the committee sitting in
    the front row presumably with his family, John Piazza. Are
    those your three daughters, John? One daughter, two daughters,
    three daughters, all of them. Okay. Anyway, it's unusual to see
    you looking up at us from that particular position, but we're
    glad you're here with your family.
        Ms. Johnson. There are other staff members with families
    out here.
        Chairman Smith. Oh, other staff members with family there
    as well, good. Okay. Thanks.
        Let me proceed and introduce our witness today. He is the
    Hon. Dennis McLerran, EPA's Regional Administrator for Region
    10. Administrator McLerran previously served as Executive
    Director of the Puget Sound Clean Air Agency and has been
    involved in a variety of state, local, and federal issues in
    both the public and private sectors.
        Administrator McLerran has over 30 years of experience as
    an advocate, attorney, and Administrator. Much of his work has
    focused on environmental land-use and climate issues.
    Administrator McLerran received his bachelor's degree from the
    University of Washington and his law degree from the Seattle
    University School of Law.
        We welcome you and look forward to your testimony.

              STATEMENT OF DENNIS MCLERRAN, ADMINISTRATOR,

             U.S. ENVIRONMENTAL PROTECTION AGENCY REGION 10

        Mr. McLerran. Good morning, Chairman Smith, Ranking Member
    Johnson, and Members of the Committee. Okay. Excuse me.
        Good morning, Chairman Smith and Ranking Member Johnson and
    Members of the Committee. I am Dennis McLerran, the Regional
    Administrator for EPA Region 10, which covers the States of
    Oregon, Washington, Idaho, Alaska, and 271 tribal governments
    within those four States.
        In May of 2010, several federally recognized tribes from
    the Bristol Bay watershed in Alaska petitioned EPA to use its
    Clean Water Act section 404(c) authority to restrict the
    discharge of fill material from the proposed Pebble Mine. EPA
    also received similar requests from a diverse group of
    stakeholders, while others requested that EPA refrain from
    taking action.
        The groups the supported EPA's use of 404(c) were deeply
    concerned that the largest open pit mine ever proposed in North
    America could potentially be opened within one of the Western
    Hemisphere's most productive and vulnerable watersheds.
        The economic and cultural value of the Bristol Bay
    watershed is immense. In 2009, it supported about 14,000 full-
    and part-time jobs and generated an estimated $480 million in
    direct economic expenditures and sales. And in addition, for
    over 4,000 years, it has served as a significant subsistence
    fishery to Alaska Native people, who may be among the last
    remaining salmon-based subsistence cultures in the world. For
    these reasons, EPA took very seriously these local concerns
    raised about a mining project that had the potential for
    significant environmental harm to this valuable and vulnerable
    ecosystem.
        EPA staff and management deliberated for months about how
    to respond to these requests, and we ultimately decided not to
    initiate EPA's section 404(c) authority at the time of the
    petitions because we wanted to develop a solid understanding of
    the watershed and the potential risks of proposed mining
    activities before deciding whether or not to exercise our
    authorities regarding the watershed.
        Instead, in February of 2011, consistent with the Clean
    Water Act, section 104, I announced EPA's intent to conduct an
    ecological risk assessment whose purpose was to characterize
    the biological and mineral resources of the Bristol Bay
    watershed, to increase understanding of the potential risks of
    large-scale mining on the region's fish resources, and to
    inform future decisions by government agencies and others
    related to protecting and maintaining the chemical, physical,
    and biological integrity of the watershed.
        To help us collect, evaluate, and summarize information
    about the Bristol Bay watershed and to assess potential risks
    to salmon and other resources from large-scale mining, EPA
    brought in scientists from multiple federal agencies.
    Consistent with EPA's authorities under the Clean Water Act and
    relevant guidelines and procedures, EPA committed to a public
    process to provide an opportunity to engage with all interested
    stakeholders.
        And, for example, EPA consulted with 20 tribes from the
    watershed, most of whom supported EPA's proposed assessment.
    And EPA also formed an Intergovernmental Technical Team to get
    individual input from federal agencies, the State of Alaska,
    and tribal governments in the Bristol Bay watershed.
        EPA also released two drafts of the assessment for public
    comment. In total, eight public meetings were attended by
    approximately 2,000 people, and more than 1.1 million comments
    were submitted. The Pebble Limited Partnership itself submitted
    over 1,300 pages of written comments on the first draft and
    over 450 pages on the second draft and participated in the
    public meetings.
        EPA staff, including EPA's Administrator and me as the
    Regional Administrator met with Pebble executives, state
    officials, and other interested organizations to solicit their
    input.
        In addition to creating and maintaining an open and
    transparent process, EPA also sought to guarantee that the
    assessment incorporated high-quality data and that all findings
    were scientifically sound. In developing the assessment EPA
    followed all data quality and peer-review requirements for a
    highly influential scientific assessment, as outlined by the
    Office of Management and Budget in the White House.
        A recent independent review by EPA's Inspector General
    confirmed that the Agency followed all applicable processes and
    procedures, and we also conducted extensive peer review, as was
    mentioned in the opening statements, with 12 independent peer-
    review experts in mine engineering, salmon fisheries biology,
    aquatic ecology, aquatic toxicology, hydrology, wildlife
    ecology, and Alaska Native cultures. And at a public meeting in
    August of 2012, Pebble and other stakeholders provided feedback
    directly to peer-reviewers.
        The Bristol Bay Assessment found that the Bristol Bay
    watershed, while enormously productive ecologically, is also
    deeply vulnerable to challenges posed by the construction and
    operation of large-scale mining. The assessment concludes that
    a large-scale mining would propose--would pose risks to salmon
    and tribal communities and that those communities have depended
    on those resources for thousands of years.
        Depending on the size of the mine, EPA estimates that from
    24 to 94 miles of salmon-supporting streams and 1,300 to 5,350
    acres of wetlands, ponds, and lakes would be destroyed. And
    extensive quantities of mine waste, leachates, and wastewater
    would have to be collected, stored, and treated and managed
    during mining operations and long after mining concludes.
        In addition to these impacts, our assessment identified
    risks from potential accidents and failures. Section 404(c) of
    the Clean Water Act specifically authorizes EPA to prohibit the
    specification of--or deny or restrict the use of any defined
    areas as a disposal site for dredged or fill material whenever
    the Administrator determines that such disposal would cause
    unacceptable adverse effects.
        EPA's 44-year history shows we've only used that authority
    judiciously and sparingly, and EPA has taken final action under
    404(c) authority only 13 times while the Corps of Engineers has
    issued millions of 404 permits during that same time period.
        I would also say that our proposed action in Bristol Bay is
    not a veto. It's not a final action. And the proposed
    determination does not prevent Pebble Limited Partnership from
    filing any permit applications, including a Clean Water Act
    section 404(c) permit--404 permit application. Rather, this
    proposed determination addresses where and what level of
    impacts from the discharge of dredged or fill material related
    to mining the Pebble deposit could result in unacceptable
    adverse effects on important water resources near the deposit.
        The EPA has consistently demonstrated this willingness to
    collaborate with federal and state regulatory agencies and
    mining companies to ensure that projects can move forward in
    ways that protect water quality in the health of communities.
        In conclusion, EPA is relying on strong science to support
    our review under the Clean Water Act. I am extremely proud of
    the work that EPA staff have done in compiling and analyzing
    the science; in conducting an inclusive, open, and transparent
    process; and in exhibiting a dignified professionalism through
    the work on the Bristol Bay watershed.
        Thank you, Chairman Smith, Ranking Member Johnson, and
    members of the committee, for this opportunity to appear before
    you today, and I look forward to answering your questions.
        [The prepared statement of Mr. McLerran follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Chairman Smith. Okay. Thank you, Mr. McLerran.
        And I'll recognize myself for questions.
        Let me say at the outset that I do not feel that I or this
    Committee should prejudge Pebble Mine until the process has
    been completed. I do feel that the process has been subverted
    and that Pebble Mine has not gotten their day in court. I do
    think that Pebble Mine is entitled to fair process and an
    objective evaluation, which they had not yet received.
        And my first question is this: Do you think it's
    appropriate for EPA employees to work with outside groups and
    try to influence the EPA to arrive at a particular decision? In
    other words, in this case, we have at least one employee--and
    there may be others--who tried to make sure that your decision
    was on one side rather than give you objective information. If
    you had an employee who attempted to do that, what would you
    do?
        Mr. McLerran. So at EPA we do have an open door and an
    inclusive process where we listen to advocates on all sides of
    issues.
        Chairman Smith. Right.
        Mr. McLerran. And we do have staff that form opinions
    about----
        Chairman Smith. Right. Are you familiar with what Mr. North
    has told us under oath about his efforts to edit letters, edit
    documents, and try to influence the permitting process? Do you
    agree that that was legitimate?
        Mr. McLerran. So I have not seen Mr. North's testimony in
    front of the committee. That has not been distributed to us.
        Chairman Smith. Right, but you know we have asserted that
    Mr. North tried to influence the process and maybe other
    employees as well. Are you aware of any employee besides Mr.
    North who has tried to influence the process?
        Mr. McLerran. So, again, I would say the Inspector General
    has done a review of the work----
        Chairman Smith. I'm not asking about that. I'm asking if
    you know of any employees who have tried to influence the
    process.
        Mr. McLerran. No, I don't.
        Chairman Smith. You do not? And are you aware of any
    activity by Mr. North that you would consider to be improper?
        Mr. McLerran. So we agreed with the--concurred with the
    findings of the Inspector General that there could have been
    conduct that was a misuse of position, and we've followed
    through and done appropriate training----
        Chairman Smith. Okay.
        Mr. McLerran. --for our employees.
        Chairman Smith. Are you going to make any effort to try to
    determine if one or more employees did misuse their position?
        Mr. McLerran. So----
        Chairman Smith. No, but you had the Inspector General's
    report saying that might have occurred. Are you going to follow
    through and make any effort to see if that occurred and take
    any action?
        Mr. McLerran. So the Inspector General's review was
    comprehensive. It was broad and looked at the activities of----
        Chairman Smith. Right. I'm not asking about the Inspector
    General's report. I'm asking about your future actions. Are you
    going to take any initiative to try to determine if any
    employee misused their position?
        Mr. McLerran. So I've been very involved in this process
    from----
        Chairman Smith. Really, that's a yes or no answer. Are you
    going to investigate to see if any employee has misused their
    position?
        Mr. McLerran. So I have reviewed the actions of our
    employees, and I'm satisfied that the employees have conducted
    themselves appropriately.
        Chairman Smith. So you disagree with the Inspector General
    that someone may have misused their position or you agree with
    them?
        Mr. McLerran. So, again, we concurred with the findings of
    the Inspector General.
        Chairman Smith. Okay. And you have made--then have you
    conducted an investigation to find out if anybody misused their
    position and you have concluded that no one did?
        Mr. McLerran. So, again, I've been involved in this process
    from the very beginning and have been engaged with the
    employees that work to----
        Chairman Smith. Right. Are you going to--have you conducted
    any investigation?
        Mr. McLerran. So we have not conducted an investigation----
        Chairman Smith. Okay. Do you intend to conduct any
    investigation?
        Mr. McLerran. No, sir. Why not when you have an IG report
    saying people may have misused their position?
        Mr. McLerran. So, again, the Inspector General's report was
    comprehensive.
        Chairman Smith. Right.
        Mr. McLerran. I've been involved in----
        Chairman Smith. Aren't you curious whether the Inspector
    General might have discovered that there was a misuse of
    position, and why wouldn't you follow up and try to find out if
    that occurred?
        Mr. McLerran. So, again, the review of the Inspector
    General was comprehensive----
        Chairman Smith. I understand that. You've said that three
    times. I'm asking you if you are going to follow up, and you
    said you are not going to conduct any investigation to see if
    any employee misused their position?
        Mr. McLerran. We don't believe that's necessary or
    appropriate.
        Chairman Smith. That's astounding to me that an
    Administrator would not want to find out if their employees
    misused their position as suggested by the IG as a possibility.
    I'm just amazed that there isn't more accountability.
        Let me go to my next question, and that is that, according
    to the Code of Federal Regulations, when the EPA issues a
    proposed Notice of Determination, the Army Corps of Engineers
    cannot issue a permit. First of all, how many other times under
    404(c) have you issued a proposed Notice of Determination?
        Mr. McLerran. So to my knowledge--and this is on EPA's
    website--there are 13 times where we've finalized 404(c)
    action. Two of those involved situations prior to----
        Chairman Smith. The proposed Notice of Determination. Okay.
    And you do agree with the Code of Federal Regulations that this
    means that the Army Corps of Engineers cannot now grant a
    permit. You can still apply, you can still conduct an analysis,
    but they cannot grant a permit, is that correct?
        Mr. McLerran. Once a Notice of Proposed Determination is
    made, the----
        Chairman Smith. Right.
        Mr. McLerran. --Corps of Engineers, under our rules, cannot
    issue a permit----
        Chairman Smith. Right.
        Mr. McLerran. --but they can----
        Chairman Smith. And that is exactly why----
        Mr. McLerran. --receive, for example----
        Chairman Smith. --I think you have wrongly----
        Mr. McLerran. --and initiate the----
        Chairman Smith. --subverted the process.
        Mr. McLerran. --legal process.
        Chairman Smith. Yes. I think you have subverted the process
    by issuing that proposed Notice of Determination that they
    can't apply for a permit now. They--you should have followed
    due process. I regret that you did not.
        My time is expired, and the gentlewoman from Texas is
    recognized for her questions.
        Ms. Johnson. Thank you, Mr. Chairman.
        In your testimony, Mr. McLerran, you stated that several
    federally recognized tribes requested EPA's use of 404(c)
    authority to restrict the discharge of the proposed Pebble
    Mine. What specifically did the group cite as reasons for
    requesting EPA's assistance? And in general, what are the
    potential impacts of a mine of this type being proposed by
    Pebble?
        Mr. McLerran. So the groups that requested that EPA take a
    look at our Clean Water Act authorities with respect to Bristol
    Bay are broad and wide-ranging. There are a number of federally
    recognized tribes, but we also received requests from literally
    hundreds of organizations, including hunting and fishing
    organizations, environmental organizations, tribal
    organizations, native corporations and others.
        And people were concerned about the particular location and
    scope and scale of this proposed mine. This would be the
    largest--arguably the largest open pit mine ever constructed in
    North America. Its location is at a very, very sensitive spot
    at the very headwaters of the Nushagak and Kvichak Rivers,
    which are in the Bristol Bay watershed, and Bristol Bay
    watershed produces 50 percent of the remaining world's wild
    sockeye salmon. It's an incredible economic resource. It's--
    creates many thousands of jobs in Alaska and supports a
    subsistence culture.
        So the communities there were quite concerned about the
    location of this mine, the characteristics of this mine, and
    what its impacts might be on the salmon in that watershed that
    are a huge economic driver, as well as on their cultures, which
    have been in place for many thousands of years and continue
    today as an active subsistence culture.
        Ms. Johnson. Critics have EPA's decision to protect the
    Bristol Bay watershed continually claim that EPA was biased
    toward initiating a section 404(c) action and that EPA
    conducted the watershed assessment with the similar goal in
    mind. One would hope that this kind of conspiracy language
    would have been put to rest after the EPA Office of Inspector
    General released its report in January reviewing the actions of
    EPA and its decision to conduct an assessment.
        The IG found no evidence of bias in how EPA conducted the
    assessment of Bristol Bay watershed or that the EPA
    predetermined the assessment outcome. What steps did EPA take
    to ensure that the assessment would be objective? And who was
    involved in the--developing the Bristol Bay Watershed
    Assessment?
        Mr. McLerran. So the process--as the person who initiated
    the Bristol Bay Watershed Assessment, I can tell you that I
    initiated it because I had a genuine interest in learning more
    about what the impacts of large-scale mining might be on the
    fishery resource in the Bristol Bay watershed. And that process
    was a very open, transparent, and inclusive process that
    included more than eight public meetings. It included two
    rounds of peer-review. The peer-reviewers were independent.
    They were independently selected. We gave the public, including
    the Pebble Partnership, the opportunity to comment on who
    should be selected as the peer-reviewers. There were many
    opportunities for testimony and engagement.
        We met directly with the Pebble Partnership and both
    opponents and proponents of mining in the watershed, and the
    watershed assessment was conducted over a three-year period in
    which we engaged with multiple scientists, a large group of
    federal agencies, as well as our own scientists, and engaged in
    a very open and transparent process of developing what I
    believe is an incredible piece of work in looking at what the
    impacts in this watershed might be on the fishery.
        Ms. Johnson. And you believe that this watershed assessment
    was necessary before EPA could initiate the 404(c) process?
        Mr. McLerran. That's correct. I felt that when we received
    the request for action using 404(c), we did not yet have enough
    information to fully inform a decision. So we felt that it was
    important to do some science. We used EPA's highly influential
    scientific assessment process, which is a very rigorous and
    open and transparent process. There were many individuals that
    did give us input on that, many experts, and the testimony that
    we received on the watershed assessment from a wide range of
    individuals was very extensive. We got over 1.1 million
    comments on the watershed assessment.
        Ms. Johnson. Thank you very much.
        Chairman Smith. Thank you, Ms. Johnson.
        The gentleman from Texas, Mr. Neugebauer, is recognized for
    his questions.
        Mr. Neugebauer. Thank you, Mr. Chairman.
        Mr. McLerran, in May 2010 you received a petition letter
    written by Alaska attorney Jeff Parker requesting EPA use the
    404(c) process in a preemptive manner to stop the Pebble Mine
    before the project had any chance for permitting. Is that
    correct?
        Mr. McLerran. That is correct.
        Mr. Neugebauer. And I'm going to put a slide up here on a--
    --
        [Slide.]
        Mr. Neugebauer. And this is the testimony of Phil North.
    And the question is are you aware that Mr. North provided Jeff
    Parker with edits to the petition letter before it was sent to
    EPA?
        Mr. McLerran. I have recently learned that.
        Mr. Neugebauer. But you did not know it then, right?
        Mr. McLerran. I do not.
        Mr. Neugebauer. Okay. And did you know Mr. North said that
    he believed his edits strengthened the strength of the petition
    letter? So his involvement, he felt like, did influence the
    final outcome. Do you agree with that?
        Mr. McLerran. So I would say that we received requests from
    literally thousands of individuals to take a look at the
    Bristol Bay watershed and the potential impact of large-scale
    mining there----
        Mr. Neugebauer. So do you think as the manager of EPA then,
    is it appropriate that EPA employees assist a third-party group
    in editing a petition letter to the Agency?
        Mr. McLerran. So I would not have authorized that or
    approved of that, but again, I think it's really not very
    relevant because we receive requests from a broad range of
    individuals. And we didn't act on that petition. We--at that
    time. We engaged in developing a scientific review that took
    over three years and was as extensive as I've previously
    testified.
        Mr. Neugebauer. Were you aware at that time that Mr. North
    was a supporter of EPA using the preemptive process in this
    particular case?
        Mr. McLerran. So, again, as I said earlier, we had
    employees who were supportive of taking 404(c) action; we had
    employees who felt we should wait. We had a wide range of views
    within the Agency based on the initial reviews that our staff
    did. My review of the situation was that we needed more
    science. We needed to develop----
        Mr. Neugebauer. And you are aware of the Inspector General
    report and said that there was possible misuse of position, is
    that correct?
        Mr. McLerran. I am aware of that.
        Mr. Neugebauer. Yes. So I think--here's the question I
    think I have, Mr. McLerran. If you were going to present
    something before a judge for a determination and you found out
    that the attorney on the other side was meeting with the judge
    and the judge was giving him some pointers on points that you
    might want to make when that case comes before his court, would
    you think that would be a fair process?
        Mr. McLerran. Well, that's a hypothetical that's quite
    different than the situation I had.
        Mr. Neugebauer. Well, I don't think it is, Mr. McLerran.
    But I think the point here is that we had people inside EPA
    that were going to have an influence on the process coaching
    outside groups on trying to determine the outcome before the
    process even began. And I think if you--you said to this
    congress--committee a while ago that you think it was an open
    and fair process. The example I just gave to you, you wouldn't
    think was a fair process. But that's exactly what was going on
    is you had people coaching--within EPA coaching the opposition
    as to what to say to get a desired outcome. Am I missing
    something here?
        Mr. McLerran. I think you are missing that we had staff who
    had different positions on this. I as the decision-maker took
    an approach that was different than what many of those folks
    advocated on both sides of this. The course that we decided to
    take was to do good science.
        Mr. Neugebauer. So you're okay with, you know, in the
    example I gave you, you're okay with the judge kind of coaching
    the prosecution on, you know, here's how we can get the outcome
    that we desire here, you need to say these things in your
    closing arguments? You would make this statement? You think
    that's a fair process then?
        Mr. McLerran. So, as I said earlier, I think your
    hypothetical is not----
        Mr. Neugebauer. Oh, it's not hypothetical.
        Mr. McLerran. --the same as a----
        Mr. Neugebauer. I mean, it's the very same example here of
    your employees coaching the people that were in opposition to
    this to help reach a desired outcome of that employee. And I
    just don't think the American people think that's the kind of
    government that they want.
        So I guess the question I would have to you, given the fact
    that there was a possible misuse of position found by the
    Inspector General, would you reconsider and let the 404(c)
    process move forward?
        Mr. McLerran. Sir, we are--we have been in the 404(c)
    process, and again, I think it's been a very open, transparent,
    and very inclusive process.
        Mr. Neugebauer. I'm sorry. I misspoke there. The 404
    process. In other words, you know, letting everybody then
    bringing that process forward and seeing if--through the NEPA
    process that they can justify that they would take the
    necessary precautions to meet any opposition to that project.
        Mr. McLerran. So, as I previously stated, even today the
    Pebble Partnership could apply for a 404 permit with the Corps
    of Engineers and initiate the NEPA process and that entire
    process. So we--and in fact, I personally believed that they
    would file for a 404 permit during the pendency of the
    watershed assessment process. If they chose not to, they
    continue to choose not to, but we have not precluded that
    process.
        Mr. Neugebauer. Well, but I think you just told the
    Chairman that, you know, you can't move forward with a 404
    based on your determination, so I'm confused. How--what is
    the--how does that work? I mean, what you're saying to me is
    you can apply for it but you're going to get turned down? I
    mean, how is that a good deal?
        Mr. McLerran. So, again, what our proposed determination
    put forward--and we have not completed that process; it's an
    incomplete process--was that we would impose restrictions on
    the scope and scale of mining in the watershed. So a 404 permit
    application could be applied for. It would go through that
    process, and then, should we determine at the end of the day
    that restrictions are appropriate in the watershed, then that
    would be resolved either through the 404(c) process or through
    the 404----
        Mr. Neugebauer. I want to go back to something--you keep
    saying that some of your employees were in favor of this
    process. We had one employee that--evidently, that the
    Inspector General found out that misused, but then now you've
    told the Chairman that you've really not investigated and don't
    intend to investigate whether other employees were actually
    acting in a position that would maybe misusing their position?
    Your position is because you used plural when you referred to
    some of the employees who were supportive of blocking this
    project but only one was identified here in the Inspector
    General report. So--but we're not going to check and see if
    anybody else is doing that? And you think it's inappropriate
    but you're not going to check on it?
        Mr. McLerran. Sir, again, as I stated, the Inspector
    General did a very comprehensive review. We feel it was a
    complete review. And I also have----
        Mr. Neugebauer. Well, the Inspector General----
        Mr. McLerran. --been involved----
        Mr. Neugebauer. --isn't going to make----
        Chairman Smith. The gentleman's----
        Mr. Neugebauer. --the decision on this----
        Chairman Smith. The gentleman's----
        Mr. Neugebauer. --project.
        Chairman Smith. I'm sorry to say the gentleman's time has
    expired, but I do want to clarify. A while ago in response to a
    question I asked, you agreed that the Army Corps of Engineers
    could not issue a permit once you had made your determination.
    Are you changing your testimony on that?
        Mr. McLerran. So, again, what I said is that the Corps of
    Engineers, during the pendency of a----
        Chairman Smith. In other words, Pebble can apply but they
    can't be approved. It's a ruse.
        Mr. McLerran. So that is not exactly the case. What--you
    know, what we have is a Notice of Proposed Determination that
    would place restrictions on the scale and size----
        Chairman Smith. A while ago----
        Mr. McLerran. The Pebble Partnership----
        Chairman Smith. --you told me that Corps of Engineers could
    not approve a permit because of the proposed determination.
        Mr. McLerran. So during the pendency of a proposed
    determination, our rules do provide that there would not be an
    issuance of a permit, but we haven't completed that process----
        Chairman Smith. Yes, I know----
        Mr. McLerran. --they're still in that process----
        Chairman Smith. --and we'll come back because----
        Mr. McLerran. --and----
        Chairman Smith. --there are others who have the time, but
    I'm going to revisit that because it seems to me you've
    contradicted yourself.
        Mr. McLerran. And I would like to----
        Chairman Smith. And the gentlewoman from Oregon, Ms.
    Bonamici, is recognized.
        Mr. McLerran. I would like to indicate that the Inspector
    General did identify potential misuse of the position by one
    employee, and they reviewed thousands of emails by multiple----
        Chairman Smith. But you're still not going to conduct any
    further investigation?
        Mr. McLerran. So we--and that employee is no longer with
    EPA, but we feel that we know the scope and scale of activities
    of our employees.
        Chairman Smith. The gentlewoman from Oregon is recognized.
        Ms. Bonamici. Thank you very much, Mr. Chairman. Welcome to
    the committee, Mr. McLerran. Nice to see you.
        There's been a lot of conversation this morning already
    about Mr. North, a former employee of the EPA, and I just want
    to record to clarify a few things. First of all, I'm reading
    from an EPA Region 10 job description. Mr. North was an
    ecologist. And part of the EPA job description for Mr. North
    was environmental liaison, performs liaison work with
    individuals in a variety of organizations on legislative
    proposals, regulations, policies, program issues, resources, et
    cetera, performs liaison work by facilitating resolution of
    funding, program, and regulatory issues.
        So that was included in Mr. North's official job
    description with the EPA, and I would like to introduce that
    into the record. Additionally--I'd like to introduce that into
    the record, the job description. Additionally----
        Chairman Smith. Without objection.
        [The information appears in Appendix II]
        Ms. Bonamici. Thank you, Mr. Chairman.
        Additionally, the--there's been a lot of conversation about
    Mr. North's contributions to a letter that was from the tribes,
    and I would really like the record to reflect reality on this.
    I'm certainly not here to defend Mr. North's actions, but it's
    important that we have clarity about exactly what edits Mr.
    North suggested to the tribal petition.
        This is a 12-page letter, and I would like to introduce
    into the record as well a copy of the letter showing the edits
    suggested by Mr. North, and on a 12-page letter, Mr. North
    suggested adding 16 words, suggested deleting 3. These changes
    included correcting a spelling and removing an extra space. So
    I really want these suggested edits to be introduced because I
    just don't see how the strong public accusations we're hearing
    today are confirmed.
        Chairman Smith. Without objection, that will be made a part
    of the record as well.
        [The information appears in Appendix II]
        Ms. Bonamici. Thank you, Mr. Chairman.
        Mr.--Administrator McLerran, thank you again for joining
    us. Some Members have been critical of the EPA and claim that
    they've been--not been open and inclusive in the outreach to
    outside groups during the development of the Bristol Bay
    Watershed Assessment. Specifically, you've heard allegations
    that suggest the opinions and concerns from Pebble were not
    given the same consideration as those from organizations during
    meetings to discuss the assessment.
        So will you please talk in response about how often you
    met, for example, with Pebble? You certainly didn't only meet
    with environmental groups. Tell us about what was discussed at
    those meetings. And I do want have time for another question.
        Mr. McLerran. Certainly. As I said earlier, at EPA we have
    an open door when we do a process like this to folks on all
    sides of these issues, and the Pebble Partnership and other
    proponents of mining in the watershed met with us frequently. I
    met with then-CEO and Board Chair John Shively multiple times
    during the pendency of the watershed assessment and met with
    folks who represented other groups that were asking EPA to wait
    and also seeking input from all of those folks in terms of the
    science and the potential impacts on the watershed and native
    cultures in the Bristol Bay area, so many, many meetings with
    the Pebble Partnership.
        In fact, I went to the mine site three times with the
    Pebble Partnership executives, once with Senator Murkowski, and
    we engaged in listening to presentations from the Pebble
    Partnership about their plans, about what they felt they could
    do to mitigate impacts of mining in the watershed, so an
    extensive engagement on all sides on this issue.
        Ms. Bonamici. And I have a letter, you sent to John
    Shively, the former CEO of Pebble, where it appears that you go
    item by item addressing his concerns. Was that a typical
    practice that you would--in addition to meet with them, respond
    to their concerns in writing?
        Mr. McLerran. Yes. Mr. Shively would request meetings. I
    will call him. He would send letters. I would write him back.
    We had, I think, a good working relationship back and forth.
        Ms. Bonamici. Thank you very much, Administrator McLerran.
        You know, Oregonians and others from the Pacific Northwest
    care a lot about this issue. We've been following it closely.
    In fact, nine of my colleagues from the Pacific Northwest and I
    sent a letter to EPA Administrator McCarthy urging her to use
    the authority given to the EPA under the Clean Water Act to
    protect the Bristol Bay salmon fisheries from the potentially
    devastating impacts of the proposed Pebble Mine. This affects
    the entire region, not just Pebble Bay.
        So despite the claims made by some that the EPA may have
    colluded with groups that opposed the mine, it appears that you
    were very responsive to the concerns raised by Pebble. And I
    tend to agree with the EPA IG report that found no evidence of
    bias in how the EPA conducted the assessment. I hope that the
    Committee today recognizes this so we can move forward and
    address other issues of importance to our constituents.
        Thank you, Mr. Chairman, and I yield back.
        Chairman Smith. Thank you, Ms. Bonamici.
        And the gentleman from Florida, Mr. Posey, is recognized
    for his questions.
        Mr. Posey. Thank you, Mr. Chairman.
        Mr. McLerran, first, let me say that I'm not an advocate
    for the mine, but I wonder if you feel it's appropriate for
    career EPA staff to discuss implications of upcoming
    presidential elections and how it might affect their scientific
    work.
        Mr. McLerran. So I think we all received training and we're
    quite aware of, you know, what our obligations are with respect
    to not engaging in political conduct.
        Mr. Posey. So you think it would not be appropriate?
        Mr. McLerran. I am not aware of the circumstance that
    you're talking about, and----
        Mr. Posey. Okay.
        Mr. McLerran. --would need some more----
        Mr. Posey. So are you aware whether or not EPA employees
    discussed the implications of the 2012 presidential election as
    it might have affected the work conducted on the Pebble Mine by
    EPA?
        Mr. McLerran. I certainly can't recall that.
        Mr. Posey. Okay.
        [Slide.]
        Mr. Posey. On screen is testimony from the committee's
    deposition of the Phil North, which I thought you'd already be
    familiar with. It indicates that Mr. North contemplated the
    impact of the 2012 presidential election with outside parties,
    including Jeff Parker, fellow EPA employee Palmer Hough. Mr.
    North and Mr. Hough are career employees, not political
    employees. Could there be any clearer demonstration that the
    politics was a motivating factor regarding the Pebble Mine for
    the career employees?
        Mr. McLerran. So I have not--I'm not aware of any of those
    communications, and I couldn't make any conclusions about that.
        Mr. Posey. So you'd never seen this deposition----
        Mr. McLerran. No.
        Mr. Posey. --before?
        Mr. McLerran. No, I have not.
        Mr. Posey. But you're not willing to take another look at
    an investigation of what's been before you?
        Mr. McLerran. So----
        Mr. Posey. I mean, you're learning all kinds of new
    information today, you're telling me, and you say it's
    inappropriate. I think you're saying that. But when the
    Chairman asked if you care to look into the issue any further,
    you just keep saying no, it's not necessary.
        From the committee's investigation, it appears clearly that
    political factors beyond science and good public policy played
    a role in EPA's analysis of using a section 404(c) action. And
    the question is, you know, whether or not you considered it
    appropriate for EPA employees to consider political factors in
    preparing supposedly scientific documents.
        Mr. McLerran. So, again, I'm not aware of any of those
    conversations, and I'd have to know more.
        Mr. Posey. You've never seen any of the testimony from the
    depositions that involved Mr. North before?
        Mr. McLerran. No, I have not.
        Mr. Posey. Yes. Yes. I mean, I just think you would want to
    investigate and look at the issues further that when the
    Chairman, you know, suggests that, you say you know all you
    need to know, and yet we have statements that we brought here
    that you tend to agree with are at least somewhat inappropriate
    and maybe we're just trying to insert too much common sense
    here.
        Mr. McLerran. So, again, the Inspector General reviewed
    thousands of emails from EPA employees, found only one EPA
    employee potentially misused his position, and we followed up
    on that and have done training to ensure that that never
    happens again. But I think we've investigated, the Inspector
    General has investigated, and that's appropriate.
        Mr. Posey. Well, I would think--I would think you would
    know that the OIG was not a comprehensive investigation. They
    reviewed emails from only three individuals. It was not a
    comprehensive review of all the documents, as I would think you
    would want just to be a good manager of an agency which you say
    its mission is openness and transparency. And I just would
    think you would want to know more about this. But again, I may
    be trying to inject too much common sense in here, Mr.
    Chairman. My time is up.
        Chairman Smith. Would the gentleman yield very briefly?
        Mr. Posey. The gentleman yields.
        Chairman Smith. I also want to point out that Mr. North's
    personal emails that he used to conduct business all
    disappeared, which is suspicious to a lot of us. But thank you
    for your questions.
        And the gentleman from California, Mr. Takano, is
    recognized for his questions.
        Mr. Takano. Thank you, Mr. Chairman.
        There seems to be some confusion as to whether EPA has the
    authority to initiate section 404(c) action to protect the
    Bristol Bay watershed. Tom Collier, CEO of Pebble Limited
    Partnership, appears to be very confused about this matter. And
    I would like to put up a quote from Mr. Tom Collier from his
    testimony last November. The quote is up on the screen.
        [Slide.]
        Mr. Takano. In his testimony he said, ``EPA has sought to
    implement the first-ever preemptive veto in the 43-year history
    of the Clean Water Act at Pebble utilizing a little-used
    provision, section 404(c), in a novel and unprecedented way.''
    That's from Mr. Collier in his testimony.
        Slide 2, please.
        [Slide.]
        Mr. Takano. This is the Federal Register notice from the
    1979--from 1979 of the final rule establishing the procedures
    to be used when EPA is considering the use of section 404(c).
    It clearly states ``In effect, section 404(c) authority may be
    exercised before a permit is applied for, while an application
    is pending, or after a permit has been issued. In each case the
    Administrator may prevent any defined area in waters of the
    United States from being specified as a disposal site or may
    simply prevent the discharge of any specific dredge or fill
    material into the specific area.''
        Now, I call for slide 3.
        [Slide.]
        Mr. Takano. Now, in 1988, during the Reagan Administration,
    the EPA exercised its 404(c) authority, and in its final
    decision stated, ``EPA Region 4 believes that the inclusion of
    the Becker site in this 404(c) action is appropriate even
    though no application for rock plowing this site has yet been
    made.'' Again, it is appropriate even though no application for
    rock plowing. So this 404(c) authority was invoked prior to the
    application for a permit.
        Now, Mr. McLerran, given what I have just read, would you
    agree with Mr. Collier's characterization of the 404(c)
    authority EPA used to protect Bristol Bay watershed? Would you
    agree with his characterization?
        Mr. McLerran. No, sir.
        Mr. Takano. And how do you respond to these kinds of
    assertions that he's made?
        Mr. McLerran. Well, we believe that Congress did provide in
    the Clean Water Act under section 404(c) the authority for EPA
    to review whether, in certain circumstances, there are
    unacceptable adverse effects on a variety of factors, including
    fisheries. And so we believe the authority is clear from
    Congress. We use it sparingly, as I said previously, for
    circumstances where we believe that it's justified and merited
    under the facts. But it is clear authority from Congress.
        Mr. Takano. Has the EPA, under the Obama Administration,
    used this authority preemptively in any other matter or is it
    being considered?
        Mr. McLerran. No, not prior to a permit application.
        Mr. Takano. But the one time it was used in a similar
    fashion was under the Reagan Administration, is that correct?
        Mr. McLerran. So I think there may be two times, once in
    Louisiana, once in Florida, that were both during the Reagan
    Administration.
        Mr. Takano. So it's been used twice before, this authority,
    and both were under the Reagan Administration? Is that what
    you're telling me?
        Mr. McLerran. That's what I believe is the case.
        Mr. Takano. Well, it seems to me that the unique nature of
    Bristol Bay and its support of most salmon populations in the
    Western Hemisphere make it especially suited to the use of
    404(c) authority. Can you please comment on the appropriate use
    of this authority as it relates to Bristol Bay and other unique
    ecosystems?
        Mr. McLerran. So Bristol Bay, again, is a remarkable place.
    It's a place that produces regularly between 35 and 40 million
    sockeye salmon every year, produces all five species of wild
    salmon, and is relatively undisturbed.
        Mr. Takano. Quickly, if I may interrupt, did you ever
    discuss the Florida 404(c) case with Mr. Collier? Did you ever
    have that discussion with him?
        Mr. McLerran. Not that I can recall.
        Mr. Takano. Okay. Well, thank you so much.
        I yield back, Mr. Chairman.
        Chairman Smith. Would the gentleman yield to me real--very
    briefly for a couple of questions?
        One is I'm not suggesting that the gentleman used quotes
    out of context, but I noticed that the sentences before and
    after some of the quotes were obscured, and could you give us
    the entire passage that you excerpted from a few minutes ago?
        Mr. Takano. Of course, Mr. Chairman.
        Chairman Smith. Okay. And second of all, I just want to
    make it clear this is unprecedented under this Administration.
    In the case of the Florida situation, I think the facts are
    entirely different, and we'll share those with the gentleman.
        Mr. Takano. Thank you, Mr. Chairman.
        Chairman Smith. Thank you.
        And the gentleman from Texas, Mr. Babin, is recognized for
    his questions.
        Mr. Babin. Yes, sir. Thank you, Mr. Chairman. I appreciate
    it.
        I'd like to show a document to you, Mr. McLerran, which
    contains notes taken at a meeting with the EPA and Trout
    Unlimited and other groups who petitioned the Agency to invoke
    a pre-application 404(c) action.
        [Slide.]
        Mr. Babin. As you can see, this email indicates that EPA
    employee Richard Parkin is reported to have ``stressed that
    while a 404(c) determination will be based on science, politics
    are as big or bigger factor.''
        Administrator McLerran, one of your closest advisors on
    Pebble Mine Richard Parkin admitted that politics will play as
    large a role as the science in his determination to stop the
    Pebble Mine. If this is the feeling of the Agency, how can the
    judgment and impartiality of the EPA be trusted at all in this
    particular decision?
        Mr. McLerran. So I haven't seen this email before but----
        Mr. Babin. You can now.
        Mr. McLerran. But I can tell you that, as the decision-
    maker on this, science was what was important to me. And doing
    the science, conducting a watershed assessment that gave us the
    information about what the potential impacts of large-scale
    mining in the Bristol Bay watershed might be was the most
    important thing to me.
        Mr. Babin. Well, according to your closest--one of your
    closest advisors here, he says that science--it's based on
    science but it's more important to most cases to have politics
    involved. So that kind of contradicts what you just said.
        Was Richard Parkin one of the employees who worked on the
    Bristol Bay Watershed Assessment, the scientific document that
    you assert EPA relied on?
        Mr. McLerran. Yes.
        Mr. Babin. Okay. These notes appear to come from a meeting
    with EPA in Pebble Mine opposition. How often did you meet with
    Trout Unlimited and other groups who urged the EPA to use
    section 404(c)?
        Mr. McLerran. So, as I stated earlier, we had meetings with
    proponents and opponents of mining in the watershed. I can't
    recall how many times I had specific meetings but probably half
    a dozen.
        Mr. Babin. Okay. Well, he conducted the science assessment,
    so was he impartial? Was he impartial or was he not?
        Mr. McLerran. So he was one of a large group of people
    that----
        Mr. Babin. No, no, no----
        Mr. McLerran. --helped prepare----
        Mr. Babin. --was he--do you consider him to be impartial or
    partial if he was the one conducting the science? Yes or no.
        Mr. McLerran. So he was not the only one conducting the
    science.
        Mr. Babin. You're not answering my question, Mr. McLerran.
    Given that the sentiment of EPA employees was that the politics
    of the Pebble Mine situation would trump the science, will you
    reconsider invoking section 404(c) process so that at public,
    transparent, and fair permitting process can be carried out?
        Mr. McLerran. So, again, I've stated my answer to that
    previously. We believe that there has been an open, fair, and
    transparent public process, and there's litigation now pending
    overall of that. But personally, I believe that the process has
    been an incredibly open and transparent and fair process.
        Mr. Babin. Well, you have just said that--or you did not
    answer the question of whether he was impartial or not, so I
    assume you think he possibly was impartial, plus the fact that
    you admitted that the Inspector General's report showed
    possible misuse of EPA employees' positions. But you also
    stated that you have no intention of investigating further.
        And, Mr. McLerran, you've demonstrated a distinct lack of
    fairness and impartiality and sound administrative abilities.
    And you are exactly the type of federal employee or bureaucrat
    that America is really getting tired of. And I would appreciate
    it if you would answer the questions yes or no without beating
    around the bush.
        So I yield back my time.
        Chairman Smith. Thank you, Mr. Babin.
        And the gentleman from Virginia, Mr. Beyer, is recognized.
        Mr. Beyer. Thank you, Mr. Chairman.
        And I'd like to ask unanimous consent to introduce into the
    record a letter from Senator Murkowski to John Shively, Mark
    Cutifani, and Ron Thiessen from July 1, 2013.
        Chairman Smith. Without objection.
        [The information follows:]
        [The information appears in Appendix II]
        Mr. Beyer. And a letter from Mr. John Shively of Pebble
    Beach Partnership to Mr. McLerran dated October 21, 2011.
        Chairman Smith. Okay. Without objection.
        [The information appears in Appendix II]
        Mr. Beyer. And I'd like to quote from Senator Murkowski's
    letter----
        Chairman Smith. Maybe we ought to roll all these together.
        Mr. Beyer. Okay. Yes. She--in this letter she--many
    residents in Alaska are familiar with the ongoing saga that is
    the Pebble Partnership's failure to submit permit applications
    to build their mine. But from Lisa's letter--I have so many
    pieces of paper here--she says, `` At least as far back as
    November 3, 2004, Northern Dynasty Minerals asserted the
    submission of permit applications was imminent.''
        The next paragraph, ``October 12, 2005, another statement
    was issued claiming that a full permitting process . . . was
    slated to begin in 2006.''
        Next paragraph, ``On October 27, 2008, Alaskans were
    assured that those seeking to develop the Pebble deposit were
    on schedule to finalize the proposed development plan in
    2009.''
        Next paragraph, ``February 1, 2010, Alaskans were told that
    PLP was preparing to initiate project permitting under the NEPA
    in 2011.''
        Finally, in the next paragraph, ``June 13, 2013, a PLP
    representative said that you hope to have a project to take
    into permitting this year.''
        She writes basically just very frustrated again and again
    about the permits that never came forward from PLP and its
    predecessors.
        And then Mr. Shively's letter to Mr. McLerran, he suggests
    that Pebble would finish a mine design layout in late 2012.
        So, Mr. McLerran, did they ever finish that layout?
        Mr. McLerran. So the Pebble Partnership has not, to date,
    submitted a permit application, but they did submit in February
    of 2011 a set of mine plans to the Securities and Exchange
    Commission, and that formed the basis for us looking at mine
    scenarios in the Bristol Bay watershed so----
        Mr. Beyer. But they never submitted anything to the EPA?
        Mr. McLerran. They did not submit a permit application,
    still have not, and that has been an enormous frustration to
    many individuals in the Bristol Bay watershed area.
        Mr. Beyer. And is it fair to say that the communities will
    likely be impacted by the construction and the operation of
    Pebble Mine faced a deeply uncertain future about what their
    community was going to become and unless and until either
    Pebble or the EPA acted, that this was essentially a sort of
    Damocles, one way or the other hanging over their heads for a
    generation?
        Mr. McLerran. That's certainly what we heard from many in
    the Bristol Bay area.
        Mr. Beyer. Mr. McLerran, I'd like to push back, too, on the
    relentless assertion by the majority that the EPA's Inspector
    General who found a possible--emphasize possible--misuse of
    position by one employee in a single-person office somehow
    damns the entire organization. Should--is it appropriate for
    the Native American tribes and the community groups to accuse
    you of collusion for having worked with Pebble Mine to work out
    the proper permit process?
        Mr. McLerran. Could you restate that again?
        Mr. Beyer. Are you guilty of collusion for talking with
    Pebble Mine about this?
        Mr. McLerran. No. I would say no.
        Mr. Beyer. Isn't it the requirement in a democracy that our
    government officials meet freely with both sides, with those
    for and against, to try to come to a proper determination about
    how to move forward?
        Mr. McLerran. Yes.
        Mr. Beyer. Is one person with a possible misuse of
    position, which looking at--I estimated it was less than 1/2 of
    one percent of the text in that one letter that he made--added
    15 words, corrected a misspelling, and deleted the word ``and''
    and ``mining operations'' for clarity, there was nothing
    substantive in that whatsoever. Did you do all the--did you
    follow all the recommendations of the Inspector General for
    additional training and looking----
        Mr. McLerran. We have and concurred with the Inspector
    General's report and have conducted the training that was
    recommended in it----
        Mr. Beyer. Thank you. Thank you. There's a slide that Mr.
    Posey put up. If it's possible to put that back up, it was on
    the testimony, the deposition from Mr. North if it's possible.
    If not, I'll just quote from it. Because I had great difficulty
    understanding how the paragraphs on that page somehow led to
    the sense that this was politically motivated. In fact, he
    says, ``Were you attempting to finish what I presume was the
    draft watershed before the presidential election?'' And he
    said, ``Yes, it would probably be a good idea but also that I
    don't think the EPA, no, the EPA was not trying to finish it
    before that time frame and in fact it was not finished until
    well into 2000--the following year after the presidential
    election was determined.''
        ``And do you recall if you found that--if you discussed the
    impending presidential election?'' I can't ride an elevator or
    walk down a hall around here without discussing the
    presidential election with Democrats and Republicans and
    everyone else. Very difficult to take that and to think that
    that's inserting presidential politics into the determination
    was happening.
        My time is up, Mr. Chairman, but I yield back.
        Chairman Smith. Okay. Thank you, Mr. Beyer.
        The gentleman from Louisiana, Mr. Abraham, is recognized.
        Mr. Abraham. Thank you, Mr. Chairman. Thank you, Mr.
    McLerran, for being here.
        I've flown the back country of Alaska, and I can tell you
    the country is beautiful and the people are just great people
    to be around. And I don't think any of us here in this room
    want any detriment to the environmental beauty of Alaska. We
    just want fair play.
        I do want to go back to a comment that was just made about
    the OIG's finding. The EPA OIG's finding was a ``possible''
    only because some emails were missing and the IG could not
    conduct future interviews of Mr. Phil North because he had
    actually left the country. So I just wanted to interject that
    and clarify this Phil North thing that has evidently been
    bouncing back and forth.
        I was listening to your testimony at the beginning, words
    such as ``could impact,'' ``potentially do''--and again, all
    these are certainly subjective opinions in based on some of
    your reports that you've gotten from your scientists. And I've
    gone back and I've read some of their reports, even ten years
    plus. And three of those scientists that the EPA contracted
    to--contributed to the BBA assessment Ann Maest, Alan Boraas,
    Carol Ann Woody, they've long been vocal opponents of the
    Pebble Mine way before EPA even hired them to give them their
    opinion.
        You're an attorney. You understand the burden of proof. You
    understand objective data. Do you think it's appropriate for
    the EPA to use information developed by scientists who've
    already predetermined their opinion?
        Mr. McLerran. So I think that the reports that you're
    referring to, the one by Ann Maest was not used in our final
    assessment. And the other two were reports that were submitted
    during the public process where people were commenting on our
    draft watershed assessment. And so when those reports were
    submitted, our Office of Research and Development engaged in
    some independent peer review, asked a contractor to engage some
    independent peer reviewers to look at whether those--whether
    one of those reports was sufficient and scientifically credible
    and concluded that it was.
        I think with respect to the archaeologist who prepared
    sections, again, that was independently peer-reviewed. One of
    the peer reviewers that was independently selected was a
    University of Alaska Fairbanks professor who's been engaged in
    cultural work in Alaska as her career of work, and again,
    independently peer-reviewed the cultural assessment. So----
        Mr. Abraham. I think it just--in my opinion and certainly
    in others that I've talked to, it just adds, you know, to the
    illegitimacy of the report that the EPA put out as to--because
    there just appears to be bias from several of the scientists
    that you guys contracted with.
        And I think you've already answered the question, you know,
    would you reconsider invoking the 401--404(c) process, and I
    think your answer to that was no.
        I am curious. You said that the company itself that wanted
    to develop the Pebble Mine area, what did they say or how
    could--what did they say--how they could mitigate the
    environmental impact? I haven't heard that in any of this
    committee testimony. What did the companies say they could do
    to prevent the salmon from dying and that type of deal? Because
    we don't want the salmon dying. We want the land to stay
    pristine, and we want the fisheries and the fishermen to be
    able to do whatever they want to do. But what did the company
    say about it?
        Mr. McLerran. So, as I said, they submitted literally
    thousands of pages of----
        Mr. Abraham. And just give me the synopsis. I mean, just
    give me the short and dirty of it. What was the final--their
    final opinion?
        Mr. McLerran. So with respect to the fishery, what they
    were proposing was a concept called compensatory mitigation.
    And compensatory mitigation is typically used in watersheds
    that have been previously disturbed where you restore some
    habitat function, where you put--where you might restore some
    wetlands or that sort of thing.
        Here in this watershed, this is a largely undisturbed
    watershed. It's pristine, and we didn't feel that--our
    scientists didn't feel that the compensatory mitigation scheme
    that was proposed would be effective and it----
        Mr. Abraham. And did they say why?
        Mr. McLerran. Because, again, in this watershed nature has
    created a really unparalleled habitat, and for us to be
    believing that we could improve on nature in this particular
    watershed was unlikely.
        Mr. Abraham. That's an odd answer.
        Thank you, Mr. Chairman. I yield back.
        Chairman Smith. Thank you, Mr. Abraham.
        The gentleman from Alabama, Mr. Palmer, is recognized for
    questions.
        Mr. Palmer. Thank you, Mr. Chairman.
        Are you aware if any EPA employees within Region 10 had
    come to the conclusion that EPA should use a section 404(c) of
    the Clean Water Act before EPA had produced any science with
    regard to the impact of the Pebble project?
        Mr. McLerran. So as I stated earlier, there were various
    opinions amongst the staff members, some who felt that
    beginning a 404(c) process, which is a pretty extensive process
    in itself, would be appropriate. There were others that felt
    that we should we wait until a permit application was submitted
    to the Corps----
        Mr. Palmer. Would you take a----
        Mr. McLerran. --and then we ultimately decided to take a
    middle path, which was conducting a scientific review under our
    authorities, our section 104 of the Clean Water Act.
        Mr. Palmer. Let me draw your attention to what Mr. North
    said in his deposition, in his testimony, if you look at that
    slide to your right or left or you may be able to see it there.
        [Slide.]
        Mr. Palmer. He says, as you stated before, you had
    formulated your opinion--and this is our questions to Mr.
    North. ``Your opinion on whether EPA should use section 404(c)
    for the Pebble Mine before a scientific document was prepared
    by the EPA, right?'' And Mr. North testified ``Yes.''
        I've got another slide I want to bring up.
        [Slide.]
        Mr. Palmer. According to the documents obtained by the
    committee, EPA employee Phil North began preparing a record to
    base a preemptive 404(c) action as early as 2009. In an email
    exchange from December 2009 before EPA received any petitions
    for action, Mr. North exchanged emails with EPA employee Mary
    Thiesing. Ms. Thiesing told Mr. North ``Approach it as though
    there will be a 404(c) and we don't need to wait for a new
    Regional Administrator, new RA, to do that. However, we will be
    getting one very quickly and there will be no 404(c) without
    the RA's complete, total, and most importantly, continued buy-
    in.''
        Administrator McLerran, this email appears to lay out the
    playbook for initiating a preemptive 404(c) action against the
    Pebble Mine. Is it troubling that EPA employees appear to have
    made up their minds on stopping the Pebble Mine so early in the
    process? Does that bother you?
        Mr. McLerran. So, again, as I stated, there were employees
    with various opinions----
        Mr. Palmer. No, I'm asking you----
        Mr. McLerran. --about how to proceed----
        Mr. Palmer. --does that bother you. I'm not asking you
    about the opinion of the EPA employees. I'm asking you, does it
    bother you that it appears that these people had already made
    up their minds with no scientific evidence?
        Mr. McLerran. So it----
        Mr. Palmer. It's a yes or no.
        Mr. McLerran. It's the job of EPA employees to look at----
        Mr. Palmer. No, sir, it's a yes or no. Does that bother
    you?
        Mr. McLerran. I--you know, I would hesitate to, you know,
    give you a conclusion based on just this----
        Mr. Palmer. No, I'm asking you what it--does it--would it--
    let me be hypothetical. Would it bother you if EPA employees
    were acting preemptively without scientific data, without doing
    the due diligence, to go ahead and deny someone a permit? Would
    that bother you?
        Mr. McLerran. So it would bother me if the----
        Mr. Palmer. Thank you.
        Mr. McLerran. --if we didn't have the checks and balances
    that we have.
        Mr. Palmer. Let me read something else from that email that
    bothers me. It goes on to say, ``We will be prepared to give
    the RA a suggested direction when he/she comes on board. This
    thing will be developing for years, and we aren't likely to get
    RA support or headquarters support for preemptive 404(c) on a
    project this big before the information is developed.''
        Now, that really bothers me because that tells me that they
    fully understood what they were doing. They were fully aware
    that if they didn't act preemptively, that the new RA or
    headquarters wouldn't agree on a preemptive 404(c) without the
    scientific data, without the due diligence on a project that
    big. Does that bother you?
        Mr. McLerran. So again, exactly what we did is we engaged
    in an extensive scientific review. We did not invoke 404(c)
    without engaging in the science.
        Mr. Palmer. Well, it says right here that they wanted to
    move on this project before the information was developed. It
    seems that the playbook is laid out in this email and it has
    less to do with establishing the actual science and impacts of
    a project and conducting objective analysis and more to do
    about appealing to politics and optics to achieve a certain
    outcome at the EPA. In your opinion, would that be the correct
    way for an agency to make a decision?
        Mr. McLerran. No, but I don't believe that's what occurred
    here.
        Mr. Palmer. Well, I think that that's what the evidence
    seems to indicate.
        Thank you, Mr. Chairman. I yield back.
        Chairman Smith. Thank you, Mr. Palmer.
        The gentleman from California, Mr. Swalwell, is recognized
    for questions.
        Mr. Swalwell. Thank you, Chair. Thank you, Administrator
    McLerran.
        Just to kind of go back so you can make clear in the
    record, did the EPA, such as in the Office of the General
    Counsel, engage in an examination or analysis of its legal
    ability under section 404(c) before Pebble Mine filed its
    permit? And if so what did it conclude?
        Mr. McLerran. So, yes, the--you know, we did take a hard
    look at what our authorities were and engaged with legal
    counsel throughout.
        Mr. Swalwell. Great. And also, Administrator, your agency
    initially declined to invoke its authority with respect to the
    proposed mine. Eventually, you did so. Can you explain what
    changed?
        Mr. McLerran. So again, we did a very extensive scientific
    review, the Bristol Bay Watershed Assessment. We had a very
    open and transparent process, got literally millions of
    comments on it, a lot of scientific input, and ultimately, we
    concluded that a mine of the scale assessed in the watershed
    assessment would have significant adverse effects upon the
    fishery.
        But what we did do is we did not impose a veto. PLP may
    still be issued a permit. We imposed restrictions on the scale
    of mining in the watershed based on a .25 billion-ton mine,
    which is a mine that is the worldwide average size for
    porphyry, gold, and copper mines.
        Mr. Swalwell. And, Administrator, do you believe the
    criticisms of your agency's methodologies from the majority
    today are valid?
        Mr. McLerran. No. I'm quite proud of the process that we
    conducted. I think it was legally appropriate within the
    authorities that we have and was an incredibly open and
    transparent process.
        Mr. Swalwell. Thank you, Chair. I yield back.
        Chairman Smith. Thank you, Mr. Swalwell.
        The gentleman from Michigan, Mr. Moolenaar, is recognized
    for his questions.
        Mr. Moolenaar. Thank you, Mr. Chairman, and thank you for
    your testimony today.
        If I could, I have a document--a slide that I'd like to
    show you. It has actually three slides involving a proposal for
    initiating an advance 404(c) process for the Pebble Mine
    resented to you by Richard Parkin on August 27, 2010.
        [Slide.]
        Mr. Moolenaar. Are you familiar with this document?
        Mr. McLerran. I actually can't read it in the fine print--
    --
        Mr. Moolenaar. Okay.
        Mr. McLerran. --that's on the slide.
        Mr. Moolenaar. Well, it's basically option 3 from the
    options paper. Are you familiar with that? It's basically
    recommending that, you know, going right to the 404(c) process.
        Mr. McLerran. So I don't recall having seen this, and
    again, there were many options papers, multiple drafts of
    options papers, and ultimately, I was the one who made the
    decision that we go forward with a watershed assessment.
        Mr. Moolenaar. Okay. So you're not sure if you've seen this
    document?
        Mr. McLerran. I can't recall having seen this particular
    document.
        Mr. Moolenaar. It seems like a pretty important one. In it
    Mr. Parkin indicates that you should think of the Pebble
    project as a huge open pit mine and tailings reservoir proposed
    for Yellowstone National Park. That would rival this situation
    in many ways but wouldn't have the potential offsite and
    worldwide impacts of this proposal. That's on this slide here.
        Is that how this project was presented to you, that it was
    worse than putting a mine in Yellowstone National Park?
        Mr. McLerran. I don't recall ever having it characterized
    to me that way.
        Mr. Moolenaar. That's amazing to me that--so I just want to
    be clear on the gentleman Richard Parkin, is he one of your
    senior staff? Is he someone you don't know very well or is he
    an advisor?
        Mr. McLerran. Rick Parkin was the acting Office Director
    for our Environmental, Tribal, and Public Affairs Environmental
    Assessment----
        Mr. Moolenaar. Does he report to you?
        Mr. McLerran. At that time he reported, I believe, to
    Michelle Pirzadeh, the Deputy Regional Administrator.
        Mr. Moolenaar. Okay. So he wasn't--I mean, in his document,
    as we go through, he talks about some other things.
        And if I could have another slide.
        [Slide.]
        Mr. Moolenaar. He talks about the EPA recognizing that,
    where possible, it's much preferable to exercise the authority
    to 404(c) before the Corps or the state has issued a permit and
    before the permit holder has begun operations. And is that a
    fair assessment?
        Mr. McLerran. So, again, I don't recall it having been
    characterized to me that way or having that particular
    conversation with Mr. Parkin.
        Mr. Moolenaar. Okay. Okay. He also talks about the EPA--the
    new face of the EPA: open, collaborative, promoting the
    discussion on environmentalism before a decision is made. Would
    you agree with that assessment?
        Mr. McLerran. So, as I said earlier, EPA does have a
    culture of being open to listening to advocates on all sides of
    an issue.
        Mr. Moolenaar. Okay. He doesn't mention sound science in
    his characterization of the new EPA, and I find that very
    interesting that that's not included in the new EPA.
        Mr. Moolenaar. Another thing--and one of the questions I
    have--are you familiar with the term honest broker?
        Mr. McLerran. I've heard that term before, yes.
        Mr. Moolenaar. And would you consider--I mean, you seem to
    be someone who likes to evaluate all sides of an issue for
    making a decision.
        Mr. McLerran. Yes.
        Mr. Moolenaar. Would you characterize Richard Parkin as an
    honest broker when it comes to scientific evidence?
        Mr. McLerran. So--yes, but he was not the decision-maker in
    this instance. I was.
        Mr. Moolenaar. But do you believe that he would give you
    straightforward information just based--scientific information
    rather than political information, for example?
        Mr. McLerran. Yes. In my job as Administrator is to press
    the staff on those types of issues, to----
        Mr. Moolenaar. Okay.
        Mr. McLerran. --to really press around the information that
    I'm receiving.
        Mr. Moolenaar. Well, I want you to know that, you know,
    he--just in some documents that we've received, he talks about
    he wants to sell you on a 404(c) process, he's going to make a
    pitch right to go to option 3. He also talks about political
    fallout if we don't go this option and almost like there's a
    preemptive strike that's necessary before the group that's--
    would submit a permit so you wouldn't have to explain yourself,
    you know, why you denied a permit later in the process. Does
    this preemptive strike, does that make sense to you?
        Mr. McLerran. Well, again, the decision that I made was not
    to move immediately to a 404(c) action. The decision I made was
    to conduct three years of independently peer-reviewed science
    in a very extensive, open, public process.
        Mr. Moolenaar. You know, he uses terms like ``We will be
    more successful controlling the spin on a proactive action.''
    What spin is he talking about?
        Mr. McLerran. I really have no idea.
        Mr. Moolenaar. Okay. And I guess my question to you is
    why--the bottom line is this: Were you acting in the interest
    that you wanted to save the Pebble Mine dollars by doing this
    preemptive action, that you felt like this just should not be a
    place for a mine, why have them spend their time and energy on
    a permit? And as a result, they would spend more dollars. So
    you felt that you were protecting the salmon and saving dollars
    for a useless permit. Is that really what you were trying to
    do?
        Mr. McLerran. So that was really not a major consideration
    for me. I think there was discussion of what was Congress's
    intent in creating the 404(c) authority preemptively and what
    of that, you know, might have been on Congress's mind. But that
    was not a primary consideration for----
        Mr. Moolenaar. But typically, it would be after a permit
    application, would it not?
        Mr. McLerran. So, again, as I've said, we've only used this
    authority 13 times and it----
        Mr. Moolenaar. And why was this so important? Why didn't
    you let the proposal that the mine was advocating for--why
    didn't you take input and let them make a solid proposal that
    you could then either reject or support?
        Mr. McLerran. So, again, the proponents of Pebble Mine,
    Northern Dynasty Minerals, had presented pretty detailed plans
    both in terms of water rights, applications to the State of
    Alaska, and then to the Securities and Exchange Commission.
        Mr. Moolenaar. But not to you?
        Mr. McLerran. Well, again, we had access to those. They
    were public documents, public record.
        Mr. Moolenaar. But they didn't apply for a permit to you?
        Mr. McLerran. They did not, but we had others requesting us
    to use our Clean Water Act authority so----
        Chairman Smith. Okay. The gentleman's time has expired.
    Thank you, Mr. Moolenaar.
        Mr. Moolenaar. Thank you, Mr. Chairman.
        Chairman Smith. The gentleman from Texas, Mr. Weber, is
    recognized.
        Mr. Weber. I thank the Chairman.
        Mr. McLerran, welcome to the committee. I hope you find
    this a judicious use of your time. Good.
        In your exchange with Chairman Smith you said you agree the
    Inspector General could--that there could have been conduct
    that might have occurred which needs some type of adjustment.
    Do you recall that exchange?
        Mr. McLerran. It's over an hour ago now.
        Mr. Weber. Right. Well, sure, but something along those
    lines. And on page five of your testimony you write--and I'm
    quoting--``EPA's 44-year history of judicious use of its
    section 404(c) authority has and continues to ensure
    predictability and certainty for the business community.'' So
    judiciousness, as it were, from your own words, that's a good
    thing, right? You--we all seek to be more judicious.
        You might be interested, I looked up judicious. An example
    they used from dictionary.com is ``using or showing judgment as
    to action or practical expediency; prudent.'' And then it says
    ``judicious use of one's money,'' and I would submit that we're
    here to protect taxpayers' dollars.
        In your exchange with the gentleman from Virginia,
    Congressman Beyer, he asked you if you had communicated with
    the mine owners about their permit but you had not been accused
    of collusion. Do you remember that exchange?
        Mr. McLerran. I do.
        Mr. Weber. Okay. But you didn't offer to strengthen their
    process or their permit, as Mr. North did to the opponents of
    the mine. Is that fair? You did not offer to strengthen their
    permit process?
        Mr. McLerran. So in many conversations with the Pebble
    Partnership, we talked about how the scientific information
    that we pulled together might benefit them, as well as our
    decisions.
        Mr. Weber. Okay. Well, if you did, kudos to you. That would
    be a judicious use of taxpayer money, I would offer. And you
    also said in the exchange with Mr. Moolenaar that there were
    multiple drafts of the options papers. Ultimately, you were the
    one that decided to go forward. Was it based on those options
    papers, your decision?
        Mr. McLerran. So, you know, we--as I understand it now,
    there were many options papers, you know, exchanged back and
    forth between staff before I saw options papers.
        Mr. Weber. But you made the decision to go forward based on
    those options papers. That's what you just said with Mr.
    Moolenaar. There were many option papers, but ultimately, you
    were the one that decided to move forward.
        Mr. McLerran. So there was more than options papers that
    went into the decision-making on this.
        Mr. Weber. Okay. But did you see those option papers or did
    you make a decision without seeing those options papers?
        Mr. McLerran. So I saw some final options papers at points
    of which I was briefed or when the Administrator was briefed,
    but----
        Mr. Weber. But you'd already made the decision before you
    saw those options papers?
        Mr. McLerran. No.
        Mr. Weber. Oh, so you did see the options papers before you
    made the decision----
        Mr. McLerran. Well----
        Mr. Weber. --to move forward?
        Mr. McLerran. --I have not seen all of the options papers
    that were exchanged amongst staff that I am now aware might
    have existed.
        Mr. Weber. So is it customary for you to make those kinds
    of decisions without the benefit of all of those options
    papers, all that knowledge?
        Mr. McLerran. Yes, because what happens, you know, and our
    process is we have a lot of back and forth between staff----
        Mr. Weber. Okay.
        Mr. McLerran. --before they present options to leaders.
        Mr. Weber. Mr. McLerran, in 2015, Kim Strassel at the
    ``Wall Street Journal'' asked you about your recollection of
    one of those documents prepared which laid out those options,
    and you stated that neither you nor other decision-makers at
    the EPA had ever seen that document. Did you state that to her?
        Mr. McLerran. I did.
        Mr. Weber. Do you stand by that today?
        Mr. McLerran. I do.
        Mr. Weber. But you just testified you saw some of those
    option papers.
        Mr. McLerran. So what I saw was final option papers that
    were documents at the point that I was prepared to make
    decisions----
        Mr. Weber. So someone--someone cherry-picked and chose what
    option papers they wanted you to see?
        Mr. McLerran. Well, again, our process often involves staff
    working back and forth together.
        Mr. Weber. Who--the reports--who would have carried those
    options papers to you and said, Director McLerran, you need to
    look at these option papers? Who would have done that?
        Mr. McLerran. So Rick Parkin typically, you know, would
    have had those discussions, but again----
        Mr. Weber. Okay.
        Mr. McLerran. --the options papers weren't the only
    consideration----
        Mr. Weber. Would you be surprised to learn, Administrator
    McLerran--I know you're having to read fine print here--that we
    have documents that show not only were you briefed on those
    option papers but you actually requested edits to those
    documents?
        Mr. McLerran. So again, you know, there were points at
    which I was presented options papers but not all of the options
    papers that were exchanged back and forth. And while I don't
    recall editing options papers, that's----
        Mr. Weber. North testified--we've got his testimony--that
    he doesn't recall writing the options paper, yet you requested
    edits to it. Does it seem judicious for taxpayer money that
    nobody in EPA seems to understand who wrote the options paper,
    doesn't recall the document--you didn't admit until I think
    just now you made edits on it--with regard to the Pebble Mine,
    and nobody even knows who authored those documents? Is that--I
    mean, are we hiding behind an anonymous author of that
    document?
        Mr. McLerran. I would not call that a fair
    characterization.
        Mr. Weber. You would not--would you call that a judicious
    use of taxpayer money?
        Mr. McLerran. You're asking me to make a conclusion based
    on your characterization----
        Mr. Weber. Well, the American public--you know, we want
    fair and open process. We want to know who's responsible and
    who wrote the documents and how you came to that conclusion
    without collusion, as Mr. Beyer of Virginia asked you about in
    communicating with the owners of the mine. So we--the American
    people expect fair and open process.
        Well, let me just close by saying this. You keep saying
    that the Office of Inspector General looked at these things,
    but the OIG doesn't hire and fire employees in your department,
    is that right?
        Mr. McLerran. That's correct.
        Mr. Weber. You alone have that ability?
        Mr. McLerran. That's correct.
        Mr. Weber. Okay. So I'll go back to what I said earlier
    about judicious. Now, with your exchange with Chairman Smith,
    you said there must have been some impropriety. We heard
    testimony that they looked at three emails. But you still stand
    by your statements you're not willing to investigate and see if
    there were any more improprieties in the department that you
    manage, not the OIG, and that's a judicious use of taxpayer
    resources?
        Mr. McLerran. So just one correction, they looked at over
    8,000 emails, and again, you know, we--Mr. North left the
    Agency before the Inspector General----
        Mr. Weber. So I'm correct that it's three custodians'
    emails. Well----
        Chairman Smith. The gentleman's time----
        Mr. Weber. Mr. Chairman, I yield back. Thank you, Mr.
    McLerran.
        Chairman Smith. Thank you, Mr. Weber.
        Without objection, I'd like to put in the record the
    documents that Mr. Moolenaar referred to in his questioning.
        [The information follows:]*************** INSERT 8
    ***************
        Chairman Smith. The gentleman from Arkansas, Mr. Westerman,
    is recognized for his questions.
        Mr. Westerman. Thank you, Mr. Chairman.
        Mr. McLerran, are you aware that employees--I'm over here--
    employees at the EPA were building a record for a 404(c)
    process before the Agency ever began working on the watershed
    assessment?
        Mr. McLerran. So, again, as I said, I'm aware now that
    there were employees that had differing points of view on this,
    and some had the point of view that a 404(c) action might be
    appropriate, initiating that action might be appropriate, and
    others who did not.
        Mr. Westerman. And they used taxpayer money to hire a
    contractor to do this work for the EPA to assess the risk of
    the Pebble project as part of building this section 404(c)
    process?
        Mr. McLerran. So I--that's a characterization that I would
    not agree with.
        Mr. Westerman. Well, maybe you wouldn't mind looking at the
    testimony from Phil North. The question says, ``So I just want
    to be very clear, the work that NatureServe, who was the
    contractor, had already been doing, as you've stated, to build
    the record for a 404(c) action, that work just became part of
    the watershed assessment?'' And Mr. North answered, ``That's
    correct.'' ``And money was added onto the contract and
    everything else that was needed to facilitate that?'' And he
    answered, ``Right.''
        So he testified that they'd already been working with
    NatureServe. When the assessment came along, they just took the
    work they'd already done and made that part of the assessment.
    Are you aware or were you aware that NatureServe's work on
    building a record towards the 404(c) action was then just
    transferred over to the watershed assessment?
        Mr. McLerran. I was not aware of that, and again, the
    watershed assessment was peer-reviewed, you know, went through
    a very public and transparent process. So there may have been
    lots of work that went into that, but, again, we stand behind
    the watershed assessment, feel that it was a very well-done
    document, and----
        Mr. Westerman. So you have no problem? That doesn't bother
    you at all?
        Mr. McLerran. So, again, I'm not familiar with that. I'd
    have to look into that.
        Mr. Westerman. So if you were to look into it and found out
    that they had been working on this before the assessment ever
    began, you wouldn't have any problem with that?
        Mr. McLerran. I'd want to determine all of the facts and
    see what the circumstances were.
        Mr. Westerman. But you've already said you don't feel like
    there's any further investigation needed.
        Mr. McLerran. So, again, I'm not familiar with that. I just
    can't make conclusions about that.
        Mr. Westerman. So how can you make a conclusion that no
    further investigation is needed when you're not even familiar
    with what's going on?
        Mr. McLerran. Well, I've--that's been asked and answered,
    I'm afraid.
        Mr. Westerman. Yes, but it doesn't make much sense the way
    it's been answered. And it's already been asked. We've
    reconsidered invoking a 404(c) process as public and
    transparent, but I think the issue is much bigger than that. If
    we look at what happened here and just take it down to the bare
    bones, your agency stacked the deck behind the scenes, and they
    orchestrated a predetermined action or a predetermined outcome.
        Mr. McLerran, just to be honest, your agency appears to be
    more of a taxpayer-funded advocacy group than an impartial
    federal agency. I've only been here a year, but, you know, I
    think back about other testimony we've heard in here about the
    Gold King Mine disaster where, you know, the--maybe the easiest
    way to put it was your EPA employees were scientifically
    incompetent and they were negligent from an engineering
    standpoint. They were much more concerned about covering their
    rears than protecting the environment.
        When we look at that--and whether there's a mine in Alaska,
    I really don't care about that, but what I do care about is if
    you'll screw people over in Alaska or Colorado, you'll screw
    them over in my state as well. So why should anyone else in
    America think you or your agency would ever be transparent and
    fair? And why should we as Congress continue to allow offices
    like yours to exist and spend taxpayer money on them?
        Mr. McLerran. So, again, the process we undertook here,
    which is the one I'm familiar with, was scrupulously fair.
        Mr. Westerman. I yield back, Mr. Chairman.
        Chairman Smith. Thank you, Mr. Westerman.
        The gentleman from Illinois, Mr. LaHood, is recognized.
        Mr. LaHood. Thank you, Mr. Chairman.
        And, Administrator McLerran, thank you for being here
    today. And I would just say at the outset that I have not
    formed an opinion on the merits of this mine and whether it
    should go forward.
        But sitting here listening today, I am concerned about the
    process and how that was not followed in this case. And what I
    think concerns folks and people, particularly back home, and
    what leads to a lot of cynicism in government is when there
    seems to be a predetermined path or there seems to be kind of a
    rigged process. And the nice thing about having depositions is
    it helps us get to the truth, helps give us accurate facts.
        [Slide.]
        Mr. LaHood. And in looking at the deposition of Mr. North,
    and it's up on the screen here, you know, it's clear to me that
    only one option was presented here, and that was the use of
    404(c) to stop the Pebble Mine. In that deposition of Mr.
    North, a question was asked, ``And did you ever try to convince
    anyone else at the EPA that the Agency should use 404(c)
    authority with regards to the Pebble project?'' Answer: ``I
    felt that we should use 404(c), and I made that case.'' Follow-
    up question: ``Did you ever present the other part of the case,
    which is not to use 404(c) process?'' ``I don't think I
    presented that.'' That's his answer. Follow-up: ``That was not
    what I presented.''
        So that's clearly laid out there in the series of question-
    and-answers under oath by Mr. North. In looking at that
    exchange, Administrator McLerran, it's clear there's only one
    option presented there.
        And I guess in terms of your position, is it appropriate
    EPA protocol for EPA employees to present only one option in
    the Agency?
        Mr. McLerran. So Mr. North was part of a larger group of
    employees who looked at multiple options. Mr. North apparently
    had concluded that initiating 404(c) was the appropriate step,
    but I had other senior advisors, much more senior than Mr.
    North, advocating other options, that we not go forward with a
    404(c) action, that we look at additional science.
        And it was really an extraordinary step to do a watershed
    assessment and to do the science. A lot of science existed
    prior to doing the watershed assessments so people were aware
    of some of that science and they had made conclusions on that.
        But to say that, you know, that was the only
    recommendation, the only option that was in front of me is just
    incorrect.
        Mr. LaHood. Well, again, getting back to my original point
    of what frustrates us is the kind of predetermined kind of
    rigged process. I wish I was more confident in what you just
    mentioned, but the evidence doesn't really bear that out.
        And I would just follow up, you know, in terms of the
    question and answer that I just went through in the deposition,
    you don't dispute any of that in terms of what Mr. North said,
    correct?
        Mr. McLerran. Well, again, I haven't had a chance to review
    his deposition, so I don't know the entire context of what he
    said.
        Mr. LaHood. Okay. Well, what I just said, do you have any
    reason to dispute that?
        Mr. McLerran. I have no reason to dispute that Mr. North
    had his opinions but others had different opinions.
        Mr. LaHood. Well, it appears that in reading through this
    process, though, he influenced a lot of people, including his
    manager Michael Szerlog. And I guess in terms of that
    influence, I mean, he was obviously an important part of this
    process, was living in Alaska. I mean, it appears to me this
    demonstrates the biased manner, and I'm trying to figure out
    how far that went up into EPA. Can you comment on that?
        Mr. McLerran. So, again, I think at the decision-making
    level there was not bias, and I was a key decision-maker on
    this. I approached this with a very open mind. And again, the
    option that I chose to pursue was doing additional science,
    doing the watershed assessment.
        Mr. LaHood. Well, in light of the transcript that I just
    read to you and just showed to you, and hopefully you can
    follow up and look at that, which it sounds like you want to
    do, I mean, it's clear to me there's bias here.
        And I guess my question to you would be in terms of moving
    forward, would you reconsider invoking the 404(c) process so
    that a public, transparent, and fair permitting process can be
    carried out from here forward?
        Mr. McLerran. So, as I've said before, we've had a very
    open, public, and transparent process using our Clean Water Act
    authorities. The 404(c) process has a tremendous amount of due
    process associated with it. The watershed assessment was a very
    open and transparent process that had amazing amounts of due
    process associated with it. So I think we are conducting
    processes that are open and fair and have due process
    associated with it.
        Mr. LaHood. In terms of my question, would you reconsider
    that?
        Mr. McLerran. No, not at this time.
        Mr. LaHood. Those are all my questions, Mr. Chairman.
        Chairman Smith. Thank you, Mr. LaHood.
        The gentleman from Oklahoma, Mr. Lucas, is recognized.
        Mr. Lucas. Thank you, Mr. Chairman.
        Administrator, let's think again about the overall process.
    And I guess I would first ask you, would you agree that
    adhering to the process laid out by NEPA, the National
    Environmental Policy Act, in conducting an environmental impact
    study is the best way to determine the impacts of the project?
        Mr. McLerran. Not necessarily. I think in this instance the
    review of the watershed and the assessment that was done here
    in some ways is quite deeper than what you get in a NEPA
    assessment. Here, we had independent peer-review. You don't
    have that in a NEPA process. Here, we had a focus on ecological
    risks, so this was an ecological risk assessment process that
    we engaged in with the watershed assessment.
        Mr. Lucas. Administrator, are you aware that the National
    Resources Defense Council, a rather powerful Pebble Mine
    opponent, called NEPA and the environmental impact study
    process the Magna Carta of environmental protection?
        Mr. McLerran. So I've seen Tom Collier, the Pebble CEO,
    quote that.
        Mr. Lucas. So do you find it strange that a group like the
    National Resources Defense Council that holds NEPA and the
    environmental impact study process in such high regards wants
    to exclude the Pebble project from that process?
        Mr. McLerran. So, again, I think the NEPA process is a fine
    process. It is an excellent process, but there are other
    processes as well, and the 404(c) process is an independent
    process that has its own rules and due process, and it's a very
    fair----
        Mr. Lucas. It would appear to me----
        Mr. McLerran. --and transparent process as well.
        Mr. Lucas. --Administrator, that this Administration's EPA
    has consistently taken the position that the environmental
    impact study process must be done and that no shortcuts can be
    taken before decisions are made regarding environmentally
    controversial development? So if that's the consistent position
    of the Administration, why is EPA--why can EPA not trust the
    process in this particular instance?
        Mr. McLerran. So, again, the Pebble Partnership could
    invoke the permitting process, could invoke the NEPA process by
    filing a permit with the Corps. They could have done that many
    times over the years, and they chose not to.
        Mr. Lucas. And you made it quite clear in response to a
    number of my colleagues that you won't reconsider invoking the
    404(c) process, and you're consistent in that response,
    correct, Administrator?
        Mr. McLerran. Yes.
        Mr. Lucas. You know, one of the challenging things for
    members of this committee and, for that matter, the public back
    home when dealing with the federal government, agencies within
    the federal government, is trying to understand and play within
    the rules as they are presented.
        You give the impression at least to this member of the
    committee and I suspect folks back home that under your
    leadership and in this particular situation, your part of the
    Agency is willing to pick and choose between the rules and pick
    and choose policies as they see fit at that moment. That's very
    frustrating for those of us in the outside world and for
    members of this committee.
        I would suggest that this seems to point us in a direction
    that perhaps, Mr. Chairman, ultimately, we need to provide
    greater guidance and clarification in the law, that we need to
    provide greater certainty so that those within the Agency
    understand what they should be doing so that those in the
    outside world who have to deal with or contend with have the
    ability to take the right actions in the best interest of the
    environment and the country. This is amazing, and the fact is
    everyone needs to know what the rules are and play by the
    rules.
        And with that, Mr. Chairman, in a frustrated way, I yield
    back.
        Chairman Smith. Thank you, Mr. Lucas.
        The gentleman from Georgia, Mr. Loudermilk, is recognized
    for his questions.
        Mr. Loudermilk. Well, thank you, Mr. Chairman.
        Mr. McLerran, thank you for being here.
        As I was listening to your testimony and the questioning
    here, I heard a frequent assessment by you that you feel that
    the Agency is operating fairly and transparently. Is that a
    fair assessment of your feeling?
        Mr. McLerran. Yes, that is a fair assessment, and I might
    add that the process--the 404(c) process is not complete. There
    still is more due process that would be yet to come and that--
    --
        Mr. Loudermilk. So--and summarize what you're saying. The
    EPA is a transparent organization, is operating within the
    scope of the law that was set up a Congress in the public
    interest?
        Mr. McLerran. I believe that to be so.
        Mr. Loudermilk. I wish that was the case, but from my
    experience in the short time I have been in Congress, we have
    had less than transparency out of the Agency. As Chairman of
    the Oversight Subcommittee, we have had countless requests and
    even subpoenas for information from the EPA, and yet we
    continue to not receive the information that we as a
    constitutional body who is given the oversight authority over
    the EPA, including recently receiving several thousand pages of
    garbled junk when we requested information. So that leaves a
    lot of questions not only with this body but also with the
    American people as far as the transparency.
        But I'd like to move on. If we could bring up the slide
    here.
        [Slide.]
        Mr. Loudermilk. We know that Mr. North had frequent email
    conversations with Jeff Parker, who is representing Alaska
    tribes, as well as other agencies or organizations that were
    opposed to the Pebble Mine, and we looked at the--you know, the
    possibility of collusion, but what I want to look at is the
    means and the methods of which that communication has taken
    place.
        Private emails, as you have--are probably aware--seem to be
    a big issue with this Administration. And in this part of the
    deposition it was asked, ``Okay. One of the issues that I think
    comes up in the PLP litigation is the utilization of personal
    email addresses to sometimes communicate while you were working
    from home. Did you do that on occasion when you worked from
    home?'' And Mr. North said yes. The question was then, ``And
    why did you do that?'' Mr. North answered, ``I'm going to give
    two reasons. One is because EPA system's didn't work very well,
    and so in order to communicate with people by email, I had to
    use my home email. The other reason is because there was no
    reason not to. I mean, nobody ever said don't use your home
    email, and sometimes I was sending things off to other EPA
    employees' home emails if they were working at home just
    because it was convenient and there was no reason not to do
    that.''
        Is this appropriate conduct for EPA employees?
        Mr. McLerran. So I believe at that point in time the EPA
    policy was that if people used personal email, they were to
    forward those emails to the EPA server. I don't believe it is
    appropriate to use personal email, and I think we've trained
    our employees that that's not--certainly in subsequent years,
    that that's not the way to communicate.
        Mr. Loudermilk. Are you aware that he had used his personal
    email? Did you know at that time he was using his personal
    email?
        Mr. McLerran. I did not. I've, you know, subsequently
    become aware that as the IG became involved.
        Mr. Loudermilk. Is this a violation of the Federal Records
    Act to use a personal email address to communicate on official
    business and not courtesy copy the EPA server?
        Mr. McLerran. So I'm not that familiar with the Federal
    Records Act to actually make that conclusion. I, of course,
    have taken the training, and the training that we get is to use
    our EPA email addresses, and if out of necessity--you know, if
    the system is down or you're forced to use your personal email,
    forward it to the EPA server.
        Mr. Loudermilk. So you're not familiar with the Federal
    Records Act. Is it not there to ensure that public records are
    there for transparency and fairness, as you stated that your
    agency operates but you're not aware of what the policies are?
        Mr. McLerran. So, again, I'm aware of what the policies
    are.
        Mr. Loudermilk. Do you use your personal email address?
        Mr. McLerran. No.
        Mr. Loudermilk. You do not? You have not used your personal
    email account for business?
        Mr. McLerran. So the only times I've used my personal email
    address would be if I had a large document to review and I
    might forward that from my EPA address, but that's the only
    time.
        Mr. Loudermilk. So the Federal Records Act, part of the
    reason that we have that is to make sure that there is
    transparency. And when it is not used, it really causes some
    problems. In fact, your own Inspector General was not able to
    obtain those personal emails that were sent by Mr. North.
        That brings us to question is sometimes this used just to
    avoid the Freedom of Information Act?
        Mr. McLerran. So, again, our policies are clear. Our
    policies are that people need to use their EPA email, and if
    they had occasion to use personal email, to forward those
    emails and documents to the EPA servers so that records would
    be----
        Mr. Loudermilk. Are there other employees in the EPA that
    are currently using their personal email accounts?
        Mr. McLerran. They should not be.
        Mr. Loudermilk. If they are, are they dealt with
    administratively, disciplinary?
        Mr. McLerran. I have not had the occasion to experience
    that because our policies and our training are very clear on
    that.
        Mr. Loudermilk. Okay. I see my time is expired, Mr.
    Chairman. I yield back.
        Chairman Smith. Thank you, Mr. Loudermilk.
        The gentlewoman from Texas, the Ranking Member is
    recognized.
        Ms. Johnson. Thank you very much, Mr. Chairman.
        I have a letter here that has been posted publicly from a
    group of Texas sportsmen who also recognize the value of
    Bristol Bay, and they write, ``Just like we say, don't mess
    with Texas. Texans don't want anyone messing with the special
    places where we hunt and fish. The hunting and fishing
    community may have its differences, but one thing that unites
    us is our commitment to protecting Bristol Bay, Alaska, from
    the proposed Pebble Mine.'' I just thought that would be nice
    for the record.
        Chairman Smith. Without objection.
        [The information appears in Appendix II]
        Chairman Smith. I believe this is the group that's funded
    by a millionaire who opposes the mine, but that's okay.
        Ms. Johnson. You like rich people.
        Chairman Smith. Before we adjourn, Zach, will you stand up?
    I'd like to recognize our Communication Director Zach Kurz, who
    will be leaving the committee this week after 11 years of great
    service, which is much appreciated.
        Zach is a native of upstate New York, otherwise known as
    far north Texas. Zach started working on the Science Committee
    as an intern for Chairman Sherry Boehlert, continued as Press
    Secretary for Chairman Ralph Hall, and then as Communications
    Director for all of us.
        We wish Zach and his wife Libby and daughter--relatively
    new daughter Zoe all the best as they embark on a new
    adventure. Zach, please stay in touch with us. We will miss
    you, and thanks for all your great work.
        Mr. Kurz. Thank you, sir.
        Chairman Smith. And we thank the witness for his testimony
    and the Members for their questions. The record will remain
    open for two weeks for additional written comments and written
    questions from Members. And the hearing is adjourned.
        [Whereupon, at 12:00 p.m., the Committee was adjourned.]

                                   Appendix I

                                  ----------

                       Answers to Post-Hearing Questions

                       Answers to Post-Hearing Questions
    Responses by The Hon. Dennis McLerran

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                  Appendix II

                                  ----------

                       Additional Material for the Record

             Document submitted by Representative Suzanne Bonamici

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

               Document submitted by Representative Donald Beyer

             Document submitted by Representative John R. Moolenaar

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                      Document submitted by Ranking Member
                             Eddie Bernice Johnson

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                  Appendix III

                                  ----------

                                     Slides

                    Slides submitted by Chairman Lamar Smith

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

               Slide submitted by Representative Randy Neugebauer

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                  Slide submitted by Representative Bill Posey

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                 Slides submitted by Representative Mark Takano

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                 Slide submitted by Representative Brian Babin

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                 Slide submitted by Representative Gary Palmer

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

              Slide submitted by Representative John R. Moolenaar

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

               Slide submitted by Representative Bruce Westerman

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                 Slide submitted by Representative Darin LaHood

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

               Slide submitted by Representative Barry Loudermilk

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]