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

                     EXAMINING EPA'S PREDETERMINED EFFORTS
                            TO BLOCK THE PEBBLE MINE

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

                                    HEARING

                                   BEFORE THE

                  COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY
                            HOUSE OF REPRESENTATIVES

                        ONE HUNDRED FOURTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                November 5, 2015

                                   __________

                               Serial No. 114-48

                                   __________

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

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

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     97-767 PDF                 WASHINGTON : 2017
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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
    BILL JOHNSON, Ohio                   ED PERLMUTTER, Colorado
    JOHN R. MOOLENAAR, Michigan          PAUL TONKO, New York
    STEVE KNIGHT, California             MARK TAKANO, California
    BRIAN BABIN, Texas                   BILL FOSTER, Illinois
    BRUCE WESTERMAN, Arkansas
    BARBARA COMSTOCK, Virginia
    GARY PALMER, Alabama
    BARRY LOUDERMILK, Georgia
    RALPH LEE ABRAHAM, Louisiana
    DARIN LaHOOD, Illinois

                                C O N T E N T S

                                November 5, 2015

                                                                       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................................................     5
        Written Statement............................................     6

    Statement by Representative Eddie Bernice Johnson, Ranking
      Minority Member, Committee on Science, Space, and Technology,
      U.S. House of Representatives..................................
        Written Statement............................................     9

                                   Witnesses:

          Panel I..........................................................

    The Honorable William S. Cohen, President and Chief Executive
      Officer, The CohenGroup
        Oral Statement...............................................    13
        Written Statement............................................    16

    Mr. Charles Scheeler, Senior Counsel, DLA Piper
        Biography....................................................    29
    Discussion I.....................................................    32

          Panel II.........................................................

    Mr. Tom Collier, Chief Executive Officer, Pebble Limited
      Partnership
        Oral Statement...............................................    53
        Written Statement............................................    56

    Hon. Rick Halford, Former Alaska Senate President
        Oral Statement...............................................    76
        Written Statement............................................    78
    Discussion II....................................................    92

                 Appendix I: Answers to Post-Hearing Questions

    The Honorable William S. Cohen, President and Chief Executive
      Officer, The CohenGroup........................................   120

    Mr. Charles Scheeler, Senior Counsel, DLA Piper..................   123

    Mr. Tom Collier, Chief Executive Officer, Pebble Limited
      Partnership....................................................   127

    Hon. Rick Halford, Former Alaska Senate President................   130

                Appendix II: Additional Material for the Record

    Documents submitted by The Honorable William S. Cohen, President
      and Chief Executive Officer, The CohenGroup....................   158

    Documents submitted by Representative Suzanne Bonamici, Committee
      on Science, Space, and Technology, U.S. House of
      Representatives................................................   172

    Documents submitted by Representative Elizabeth H. Esty,
      Committee on Science, Space, and Technology, U.S. House of
      Representatives................................................   263

    Statement submitted by Trout Unlimited...........................   265

                         EXAMINING EPA'S PREDETERMINED

                        EFFORTS TO BLOCK THE PEBBLE MINE

                                  ----------

                           THURSDAY, NOVEMBER 5, 2015

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

        The Committee met, pursuant to call, at 11:24 a.m., in Room
    2318 of the Rayburn House Office Building, Hon. Lamar Smith
    [Chairman of the Committee] presiding.

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        Chairman Smith. The Science, Space, and Technology
    Committee will come to order.
        Without objection, the Chair is authorized to declare
    recesses of the Committee at any time.
        Welcome, everyone, to today's hearing entitled ``Examining
    EPA's Predetermined Efforts to Block the Pebble Mine.''
        I'll recognize myself for an opening statement and then the
    Ranking Member, although on second thought, given time
    considerations and the fact that we have another vote in 45
    minutes or so, and wanting to hear from our witnesses today,
    I'm going to ask unanimous consent to put my opening statement
    in the record if the Ranking Member is going to do the same
    thing, and she's agreed to do the same thing.
        [The prepared statement of Chairman Smith follows:]

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        [The prepared statement and slides of Ms. Johnson follows:]

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        Chairman Smith. So let me immediately go to the
    introduction of our witnesses.
        Our first witness is the Hon. William Cohen, Chairman and
    CEO of The Cohen Group, and former Secretary of Defense.
    Secretary Cohen was first elected to public office in 1969 as a
    City Councilor. He then spent six years in the House of
    Representatives and eighteen years in the Senate. In 1997,
    President Clinton nominated him to be his Secretary of Defense.
    After 31 years of public service, Secretary Cohen leaves behind
    a record of accomplishment, integrity, and respect. Secretary
    Cohen received his bachelor's degree in Latin from Bowdoin
    College and his law degree from Boston University.
        Our second witness is Mr. Charles Scheeler, Senior Counsel
    at DLA Piper. Before rejoining DLA, Mr. Scheeler was a Federal
    Prosecutor in the U.S. Attorney's Office for the District of
    Maryland from 1984 to 1989. Mr. Scheeler serves as the Chairman
    of Rosedale Federal Savings and Loan Association and is a
    Member on the Boards of Johns Hopkins University, Johns Hopkins
    Medicine, Johns Hopkins International, Johns Hopkins Bayview
    Medical Center, and the College Bound Foundation. Mr. Scheeler
    received his bachelor's degree from the University of North
    Carolina at Chapel Hill and his law degree from Harvard
    University.
        We welcome you both, and Secretary Cohen, if you'll begin?

                  TESTIMONY OF HON. WILLIAM S. COHEN,

                 CHAIRMAN AND CHIEF EXECUTIVE OFFICER,

                            THE COHEN GROUP

        Hon. Cohen. Good morning, Chairman Smith and Ranking Member
    Johnson, and distinguished Members of the staff. First, let me
    thank you for inviting me to discuss the recently completed
    independent report or review of EPA's decision-making process
    regarding the potential mining in southwest Alaska's Bristol
    Bay watershed.
        The issue has raised important questions of Congressional
    intent and how the EPA made decisions that are fully worthy of
    Congressional oversight.
        I represented Maine in Congress where the environment is
    very important. Our state is known as Vacation Land, and for a
    reason. But there's always been an effort to balance the
    protection of the environment with permitting responsible
    development, and that was a major focus during my Congressional
    service.
        And then when I served as Chairman of the Senate Oversight
    Subcommittee, I focused on ensuring that Executive Branch
    agencies operated in a fair and responsible fashion.
        In the fall of 2014, rather, I was approached by the Pebble
    Partnership to review EPA's actions regarding the potential
    mining in southwest Alaska's Bristol Bay watershed. The
    Partnership holds mineral claims to lands owned by the State of
    Alaska that contain one of the world's largest known
    undeveloped copper deposits. The area is also home to one of
    the most abundant salmon runs in the world, and the commercial
    salmon industry dominates the private sector economy of the
    Bristol Bay region.
        In July 2014, EPA proposed substantial limits on the
    development in the Pebble Deposit area using a controversial
    and nearly unprecedented process to do so, known as Section
    404(c) instead of the traditional permitting method that was
    adhered to in the requirements of the National Environmental
    Policy Act, and the Pebble Partnership expressed concern about
    the fairness of EPA's decision-making process. They wanted an
    objective party to review the process through the lens of how a
    Cabinet-level agency should make these kinds of decisions.
    Given my experience in the legislative and executive branches,
    I agreed to review EPA's actions, assisted by my staff at The
    Cohen Group and also the law firm of DLA Piper. The lead
    counsel on the review, as you've indicated, is Charles
    Scheeler, who is with me today.
        I advised Pebble that I would not try to determine whether
    a mine should be built nor would I comment on the legality of
    EPA's preemptive use of Section 404(c). I also undertook to
    review the conditions of complete independence, and I set those
    facts out that I would follow the facts wherever they might
    lead. The conclusions that I drew were mine. Pebble Partnership
    had no rights to edit or censor my views, and my team was
    compensated according to commercially standard terms, and no
    portion of my compensation was contingent upon the result of
    the review or the content of the report.
        And so in order to produce the most thorough and balanced
    review, we sought to interviewed some 300 people, and we
    interviewed more than 60, who agreed to participate,
    representing all points of view including those of EPA's
    actions including three former EPA Administrators, and we
    reviewed thousands of documents from EPA, other federal
    agencies, the State of Alaska, and other sources. EPA declined
    my request to make current personnel available to interviews,
    citing ongoing Congressional and Inspector General inquires,
    and also pending litigation. I understand their reluctance to
    do that.
        I've submitted the Executive Summary and the full report
    for the Committee's hearing record, but here are my primary
    findings.
        Because to date the Pebble Partnership has not submitted a
    permit application, EPA relied on hypothetical scenarios for
    its assessment rather than using the characteristics of a mine
    that is actually proposed to be built and maintained. EPA
    failed to address important considerations that would be
    included in the permit NEPA process including meaningful
    participation by other state and Federal Government agencies.
    The permit/NEPA Process has been used for decades and has been
    widely endorsed by environmental groups, and yet EPA relied
    upon the Watershed Assessment even though they acknowledged to
    peer reviewers that there were significant gaps in the
    assessment and it was not designed to duplicate or replace the
    permit and NEPA process. EPA's unprecedented, preemptive use of
    Section 404(c) before a permit filing, in my judgment,
    exacerbated the shortcomings of the Bristol Bay Watershed
    Assessment and inhibited the involvement of two key
    participants: the Army Corps of Engineers and the State of
    Alaska. These observations were informed--they informed my
    conclusion that EPA's application of Section 404(c) prior to
    the filing of a permit application was not fair to all of the
    stakeholders, and I found that the fairest, most appropriate
    process to elevate possible development in--evaluate
    development in the Pebble Deposit Area would use the
    established regulatory permit/NEPA process to assess a mine
    permit application, rather than using an assessment based upon
    the hypothetical mining scenarios described as the basis for
    imposing potentially prohibitive restrictions on future mines,
    and I could find no reason why the common established approach
    was not used.
        During the course of my review, there were certain
    statements and actions taken by EPA personnel that raised
    questions about the integrity of the process that EPA used. Was
    the process orchestrated to reach a predetermined outcome? Had
    there been inappropriately close relationships with anti-mine
    advocates that influenced EPA's process? Was EPA candid about
    its decision-making process?
        I have refrained from reaching any judgments on any of
    these questions, and I've done so because, frankly, I don't
    have subpoena power. I don't have the power to compel anyone to
    talk to me. I don't have access to documents that have yet to
    be produced to the Committee or to other agencies, and so I
    think these are issues that are serious enough for Congress,
    which does have the power to compel testimony, to follow up on.
        I think that the oversight of proper authorities have to be
    done so that agencies don't engage in decision-making that is
    preordained, and I would urge Congress to continue to explore
    the questions I've raised, to illuminate EPA's motives and
    better determine whether EPA has met its core obligations of
    government service and accountability, and also, finally, to
    urge policymakers to consider using the permit/NEPA process in
    the context of potential development of the Bristol Bay
    Watershed Area, a process regarded by all stakeholders as the
    most thorough and fair approach.
        And finally, I would think that the Committee may want to
    review EPA's apparent effort to considering using 404(c) to
    accomplish a national watershed planning, as EPA personnel
    stated in a document prepared for the briefing to the
    Administrator. If such a model is to be established, I would
    expect that Congress would want to weigh in either in favor or
    against it, but it's a fundamental issue that Congress, I
    think, needs to looked at.
        I've tried to shorten my statement, Mr. Chairman, rush
    through it, but I stand ready to answer any questions.
        [The prepared statement of Hon. Cohen follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        [The submitted biography of Mr. Charles Scheeler, Senior
    Counsel, DLA Piper:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Chairman Smith. Thank you, Mr. Secretary, and I understand
    Mr. Scheeler is not going to testify but will perhaps respond
    if necessary.
        I've just been told that the next vote is now only 20 or 25
    minutes away, and with the concurrence of the Ranking Member,
    we'd like to suggest, in order to give as many members of the
    Committee as possible an opportunity to ask a question, that we
    do just that and try to limit ourselves to one question and see
    if we can get through most of the members before the next vote
    is cast.
        So I'll recognize myself to start and will ask just a
    single question, and that, Secretary Cohen, is this: What are
    the dangers of allowing the EPA's unprecedented actions to go
    unchecked? Less time than I thought. So we'll go through as
    many people as we can with one question.
        Hon. Cohen. Let me be as brief as I can on this issue. We
    expect agencies to deal with our citizens in a fair, open,
    transparent fashion, and to use the most fair process they can.
    When processes that have been established like 404(c), that's
    been invoked in 43 years only on 13 occasions, and never, with
    one minor, very minor exception, never without a permit having
    been filed. And so the question is, is this an appropriate use
    of EPA power? I have not reached a conclusion as to whether EPA
    has this power. I've assumed for purposes of my investigation
    in this that it has. But that's a matter that others will have
    to decide.
        But to allow an agency to make a ruling on state-owned
    land--Alaska owns this land. Alaska has regulated this land or
    issued guidelines specifically for mining, and so for the EPA
    to come in and say we're going to use a process that has worked
    well in the past under these certain conditions where a
    permit's been filed is one thing. To then take action which
    really intrudes upon state action, state territorial integrity,
    state power and say we're going to use an unprecedented process
    to me violates this notion of federal agencies working hand in
    hand with state agencies to reach an appropriate solution.
        Again, I don't come to a judgment. I'm not advocating that
    a permit be issued. I'm not advocating that the mine be
    stopped. I'm simply saying this process in my judgment was not
    fair as carried out.
        Chairman Smith. I understand, and you're talking about the
    process. Thank you, Secretary Cohen.
        And the Ranking Member, the gentlewoman from Texas, Ms.
    Johnson, is recognized for her question.
        Ms. Johnson. Thank you, Mr. Chairman.
        Pebble has been blasted by Members of Congress from both
    sides of the aisle for years because of over a decade they
    filed for a mine permit, and your report claims that EPA did
    not do a good job receiving input from Pebble Partnership.
    However, there are ample documents illustrating just how
    transparent EPA's process has been including a list of numerous
    meetings with the Pebble Partnership over the course of many
    years. And we will hear from Mr. Halford, I think, that Pebble
    rejected EPA's request to provide input participation in the
    watershed assessment process in 2011. And in your own report,
    you state that the Pebble Partnership refused repeated requests
    for the wholesale disclosure of the raw data and more user-
    friendly format. So I'm just wondering, Mr. Secretary, did you
    attempt to acquire the raw data from Pebble to verify their
    claims or did they provide it or if so, will you please make
    us--make that information available to the Committee?
        Hon. Cohen. I believe that the raw data you're referring to
    is a baseline report that was developed by Pebble, and they did
    agree to make that available in a PDF format. The criticism
    that was leveled on that issue was that it wasn't as user-
    friendly, and what Pebble, as I understand it, was concerned
    about was that if it was opened up to all parties, they would--
    there could be information that was extracted from that that
    would mischaracterize what the report was saying. But in any
    event, what EPA has relied upon is the Wardrop Report. The
    Wardrop Report was really basically a filing saying this is--
    we're going to examine this area to see what's under the
    ground. The Wardrop report never proposed to be a mining
    proposal, never a defined project. In fact, the author of the
    Wardrop report was never contacted by EPA to say what was the
    reason that you filed this report and why are you not seeing
    this in this fashion.
        So I think what Pebble has tried to do is say we'll give
    you our baseline data, we've given it to you, offered it to
    you, but we're not ready, and you may ask Mr. Collier this, is
    it the power of the state or the EPA to compel an owner of
    rights to file a defined plan? Does the EPA force you to file
    something when you're not ready to file it? I don't know the
    reasons why Mr. Collier doesn't want to file it at this point.
    It may be he's looking for more technical data. It may be their
    financial backers that he needs to acquire. But the notion that
    the EPA can make you file something that you're not ready to
    file, and over the objection of the State of Alaska, it seems
    to me that's quite a stretch for EPA.
        Ms. Johnson. Even over a decade?
        Hon. Cohen. Even over a decade. As a matter of fact, you
    know, what struck me is looking back in the record that I--the
    report that I filed, as early as 2005 we have an EPA employee
    saying that we should use 404(c), I'm going to recommend this,
    or he is suggesting this is right for 404(c). So from the very
    beginning before anything is done, you have EPA employees
    saying let's use 404(c). That at least indicated to me that
    there was some preliminary decision being made that they're
    going to invoke this process without giving a fair hearing. So
    that was my concern on that issue.
        Ms. Johnson. Thank you very much, Mr. Chairman.
        Chairman Smith. Thank you, Ms. Johnson.
        The gentleman from California, Mr. Rohrabacher, is
    recognized for a question.
        Mr. Rohrabacher. Thank you very much, and let me just note,
    this hearing represents a major problem that we're facing in
    our society right now. There is a conflict between the
    legislative and executive branches over who's going to make the
    rules and who's going to actually determine what policies will
    be followed rather than--and I think, unfortunately, what we're
    describing just today is yet another example of an arrogant
    usurpation of authority by the Administration, and the EPA is
    perhaps one of the ones that--instruments that have been used
    more than others to centralize this power and create a legal
    authority when perhaps they do not have it.
        In this case, let me just ask you, Secretary Cohen--by the
    way, another thought. There is not--unfortunately quite often
    what we're talking about is actions that are taken without
    regard to cost to the public, and a lot of times people think
    that we can just do these things and we're going to improve
    things and there's going to be no cost at all because there's
    nothing in the federal budget but it ends up costing the
    American consumer enormous amounts of money. In this case, did
    you find that the Army Corps of Engineers and the State of
    Alaska were brought into the decision-making process here and
    the investigation as they should have been?
        Hon. Cohen. Well, the answer to that is yes and no. The
    State of Alaska was brought into it unwillingly. If you look at
    the report, you'll find from day one, Alaska objected to this
    process being instituted under 404(c). So the Governor actually
    wrote to the EPA Administrator saying it's a case where I'm
    damned if I do and damned if I don't. If I refuse to
    participate in this, EPA will say you had your chance. If I
    don't participate--if I do participate in this, I'll be seen as
    complying with it and having my chance, but I, the State of
    Alaska, are fundamentally opposed to proceeding in this
    fashion. So the State of Alaska did in fact participate
    unwillingly and with great objection throughout from the day it
    all started.
        With respect to the Corps itself, the Army Corps of
    Engineers was not brought in to the process. Initially when the
    Bristol Bay Watershed Assessment was done, they said they
    couldn't participate because they would be called upon to
    become active during the NEPA process and therefore wanted to
    avoid a conflict of interest, and then when the assessments
    were completed, the watershed assessment was completed, they
    were asked, do you want to comment, and they said we can't
    comment because we have no defined plan. So the Army Corps of
    Engineers never participated in this process, which raises the
    question that the Army Corps of Engineers is the action agent.
    They are the project manager for any type of mine or project
    that would be designed. They are not part of this particular
    process so they were excluded under it.
        Mr. Rohrabacher. The complications that you are----
        Chairman Smith. Thank you----
        Mr. Rohrabacher. The complications that you are describing
    are a result of the fact that somebody's going way beyond their
    authority, and that's what happens when you do that.
        Thank you, Mr. Chairman.
        Chairman Smith. Thank you, Mr. Rohrabacher.
        The gentlewoman from Oregon, Ms. Bonamici, is recognized
    for her questions.
        Ms. Bonamici. Thank you very much, Mr. Chairman, and thank
    you to our witnesses.
        I represent a district that includes part of the beautiful
    Oregon coast, and a lot of my constituents are extremely
    concerned about the profound environmental risks associated
    with the operation of an open-pit copper mine in Bristol Bay,
    and I know we'll hear from Mr. Halford on our second panel, the
    people of Alaska are already dealing with some of the
    environmental fallout from the exploratory operations conducted
    by the Pebble Partnership in the region. They're very concerned
    about that.
        Secretary Cohen, you talked about an unprecedented process,
    but it's my understanding that the Mineral Exploration and
    Development Act of 1993 contained very similar provisions--you
    supported it--that would have given the Department of Interior
    the authority to do essentially what the EPA has done here.
        And I wanted to mention how concerned I am that we're
    having this conversation without the EPA here. We are
    questioning--raising a lot of questions about their process or
    their procedure. We absolutely need to hear from them. They
    should be in the room answering questions----
        Chairman Smith. If the gentlewoman will yield, we are
    planning a second hearing with the EPA to be present.
        Ms. Bonamici. I appreciate that, Mr. Chairman, because it's
    important to hear from them. There's some suggestion that they
    did this without a process and without considering input. There
    were hundreds of thousands of comments and listening to lots of
    people across the region. We need to hear from them. And I know
    Ranking Member Johnson asked this question but--about why you
    suggested that they could find no valid reason why the NEPA
    permit process wasn't used, but as you know, that process can
    only take place when the permit application is filed, and I
    know you talked about that. I know that over years there were
    many people, groups, organizations wanting some certainty about
    this. I know my constituents feel very strongly about it, as
    those in Alaska do.
        I wanted to ask you, Secretary Cohen, in your testimony you
    state that ``the Partnership compensated my team according to
    commercially standard terms.'' Can you please tell us about
    those, what that means?
        Hon. Cohen. It's a standard term that I would have with any
    client that decides to hire my firm. It's commercially
    standard. It gets--nothing greater, nothing less than what I
    would charge any other client, and the point I wanted to make
    is nothing was contingent upon what I would produce, and I
    wanted to do this primarily because I really am trying to avoid
    this becoming a partisan issue, Democrats for the EPA,
    Republicans opposed to EPA. What I really wanted to do was to
    say can someone like myself who has been involved in public
    service for 31 years involved in major investigations--when I
    look back, for example, on Watergate hearings--long before your
    time here--but the biggest supporters of mine at that time were
    the Republican party, the ones who contributed to my campaign,
    the Republican party, and yet I felt compelled to vote to
    impeach my own President. And then in Iran-Contra, my biggest
    supporters were the Republican party, and I found that the
    President Reagan Administration has abused its position and
    violated some Constitutional provisions, so--and I assume
    that's one of the reasons why President Clinton asked me to
    serve in his Administration because he felt that I would be
    fair and independent, and that's what I've tried to do here.
    And I'll just ask you to look at the facts that I laid out, and
    you can make your own judgment on this, and frankly, it comes
    down to a policy issue. Do you think under the 404(c) process
    that there should be a permit filed? Do you think that EPA
    should say in the absence of that, we will construct a
    hypothetical scenario and make judgments on what can be done? I
    think those are policy issues that you as a member would want
    and I certainly support what you want.
        Ms. Bonamici. And I appreciate that, Mr. Secretary,
    especially your effort to make sure that this is not a partisan
    issue, but it also has to be an issue about protecting the
    environment and having a process, and I know you have your
    legal team, I know you have some sort of strategic partnership
    with DLA Piper. What we're trying to figure out is, you're
    being compensated. We are trying to get the facts so that we
    can analyze, you know, was everyone on your review team
    employed by DLA Piper or The Cohen Group. We're trying to get
    some facts about how you arrived at your position.
        And again, Mr. Chairman, we really need to hear from the
    EPA on this. Thank you. I yield back.
        Chairman Smith. Thank you, Ms. Bonamici.
        And the gentleman from Alabama is recognized for his
    question.
        To respond to the gentlewoman from Oregon, EPA was invited
    and declined to testify on either of these panels, and that is
    why we're having another hearing with them to be present.
        The gentleman from Alabama.
        Mr. Brooks. Secretary Cohen or Mr. Scheeler, whoever
    prefers to answer, in your investigation, have you discovered
    any other instance where EPA limited or stopped a project using
    Section 404(c) before any permit applications have been
    submitted?
        Hon. Cohen. There was one incident that I'm aware of, and
    Mr. Scheeler can amplify it. Out of the 43-year period of time
    in which this Act has been in law, there've been 13 occasions
    when 404(c) has been called upon only after the filing of a
    permit. The one exception to that was a case in Florida in
    which there were three contiguous parcels, and in two of those
    three parcels there had been permits filed and giving the
    opportunity for EPA and the Army Corps of Engineers and others
    to participate. Based upon their examination of those three
    contiguous properties, they decided that there was no need to
    file a permit in that one exception in Florida based upon the
    same characteristics, same area, different ownership. They said
    no need there, we've looked at all of the information from the
    Army Corps of Engineers and all who had participated and were
    satisfied this is the right course of action. There was one
    minor exception, and that was only after two of the three
    participants in the mining proposals had filed permit
    applications.
        Mr. Scheeler. And Congressman, EPA themselves have written
    on this. There was a discussion matrix presented to the
    Administrator in September of 2010, and they were discussing
    the potential use of 404(c) before any permit application had
    been filed, and the EPA written statement is that that had
    never been done before in the history of the Clean Water Act.
        Mr. Brooks. Are there any underlying facts that would
    suggest to you that the EPA's use of 404(c) in the Florida
    instance was justified while it's not justified at the Pebble
    Mine?
        Mr. Scheeler. Well, yes, because there were three adjacent
    parcels all from the Rem Estate in the Florida situation. The
    two adjacent parcels had had permits filed for those parcels,
    and it was determined by the EPA and reflected in the decision
    that it was expected that any permit filed for the third
    adjacent parcel would be substantially identical to the ones
    already filed. So in that case, the EPA did in fact have two
    permits in hand which were substantially similar, if not
    identical, to that which would be filed for the third parcel.
    So that's a complete different situation than we have here
    where of course there've been no permits filed anywhere at or
    near the Pebble Deposit Area.
        Mr. Brooks. Thank you, Mr. Chairman, and I yield back.
        Mr. Babin. [Presiding] Yes, sir. Thank you. And I now
    recognized the gentleman from Virginia, Mr. Beyer.
        Mr. Beyer. Thank you, Mr. Chairman.
        Secretary Cohen, Mr. Scheeler, Pebble's been blasted by
    Members of Congress from both sides of the aisle for years
    because for over a decade they haven't filed the mine permit.
    Mr. Secretary, you talked about there's nothing that the state
    can do, the EPA can do to compel them to do it. At the same
    time, they went to the SEC and did detailed information for
    investors on this, and I understand that much of what the EPA
    based their 404(c) determination on was Pebble's information to
    the SEC.
        How much of EPA's decision to move forward was based on
    frustration that emerged from the fishermen who depend on this,
    from the Native Americans, from the people of Alaska that this
    was just a sword of Damocles hanging over their head, that
    Pebble was not coming forward with a mine permit and there was
    a lot of pressure on the EPA to try to do something?
        Hon. Cohen. Well, that's another policy issue, Congressman,
    that I think needs to be addressed. If the State of Alaska,
    which owns the property, and have given mining rights to Pebble
    is there a requirement that they file a defined plan, a
    specified defined plan, in a certain time frame. I mean, it
    would seem to me that for the government to say you must file
    something is really kind of preempting certainly the state's
    interest in this and certainly Pebble's interest but any time a
    landowner including the State of Alaska is forced to take
    action, which it says it's not ready to take or the individual
    involved who owns the property right or the mineral right, you
    must do this, it seems to me that this is a policy issue which
    I think Congress needs to look at closely.
        If you think 404(c) should be applied and can be applied on
    multiple occasions, not just this one but multiple occasions
    without a permit having been filed, then that's a very big
    policy decision, and I think it's worth--I think you need to
    explore it. I think this is very important.
        And I would tell the Committee and the people who are here,
    I've been a big supporter of EPA. Historically, I've supported
    much if not all of their work in the past certainly when I was
    a Member of Congress, but I also felt when I was in the Senate
    and the House that I wanted every agency to act as openly and
    fairly as possible and you come to the situation where you say
    I'm going to force you to file a plan before you're ready. I
    think that trespasses upon the state's right and also the
    individual's rights. That's a personal opinion. It's a policy
    decision which I think you need to raise and hopefully resolve.
        Mr. Scheeler. And Mr. Congressman, I think you would be
    careful about going from the statement that there's been
    something submitted to the SEC to the conclusion that there
    could have been a permit filed. They are very different.
        We spoke to Mr. Ghaffari, who wrote the Wardrop Report to
    which you're referring. That report basically focused on what
    was in the ground, that is, are there enough valuable minerals
    that this could potentially be a viable project. A permit
    application, on the other hand, focuses on how you get that out
    of the ground and whether you can do it safely or not in
    accordance with environmental regulations. So there're two very
    different documents. As a result of that, EPA not only had to
    rely on the Wardrop Report but fill in a lot of blanks where
    Wardrop did not have the type of information you would find in
    a permit application and so they used what they called
    conventional mining techniques. So in trying to equate the
    Wardrop Report to what a mine application would look like, I
    really think we're dealing with an apples-and-oranges
    situation.
        Mr. Beyer. All right. Thank you very much.
        Mr. Chair, I yield back.
        Mr. Babin. Thank you.
        And Mr. Secretary, I have a couple of questions. The--do
    you believe that the Environmental Protection Agency followed
    the proper process when determining, evaluating, and
    identifying the science behind the Bristol Bay Watershed
    Assessment, and if this has already been asked, I apologize. I
    had to run down and vote. You know the procedure.
        Hon. Cohen. The answer is no. I think there was not the
    fairest process that should have been employed, and that's
    where it comes down to this element of fair. Do I think the
    State of Alaska, Pebble were treated fairly in the sense that a
    report that was used and filed with the SEC, and Mr. Scheeler
    has just mentioned, and then to have a watershed assessment
    filed and to then represent to the Pebble Partnership and to
    the State of Alaska this watershed assessment is not going to
    be used as a basis for our decision when in fact it was used as
    a basis for their decision. So that gets into the issue of, is
    that a fair way to treat a key participant that we're not going
    to use this because this is really incomplete. It doesn't have
    anything to do with mitigation efforts that might be developed.
    They might be insufficient. I don't know. But under the normal
    NEPA process, at least the Corps of Engineers would have a
    recommendation as to whether there is scientifically valid
    technology and processes available that would reduce or
    mitigate the damage that could be caused to the environment.
    None of that was included, and EPA recognized it, saying look,
    this doesn't seek to compensate for the regular NEPA process
    but the implication was, we're not going to use it as the basis
    for determination, and that's precisely what they did. They
    used the assessment as the basis for their determination.
        Mr. Babin. So if I'm understanding correctly, Mr.
    Secretary, how much, in your opinion, of the EPA review process
    for this project really depended on science that was
    specifically from the Bristol Bay Watershed Assessment?
        Hon. Cohen. Well, there was a great--I should be clear on
    this. There was a great deal of science that was supplied. The
    opponents of the mine, they had many talented science experts
    present information. I think Pebble also had their scientists
    present information. There was disagreement. If you look at the
    comments in the peer review, you will find that in the peer-
    review process, there were citations of where the watershed
    assessment plan was deficient, and it pointed out you haven't
    taken into account what the Army Corps of Engineers would do
    and designate whether or not there were mitigation techniques
    that could be applied whether there could in fact be a
    reasonable way and a responsible way for controlling the damage
    from any potential harm to the environment, which is an
    important consideration.
        Mr. Babin. Certainly.
        Hon. Cohen. And so I think there's science on both sides. I
    decided I'm not a scientist and I wouldn't even step into this.
    It's beyond my capability. But I respect the individuals who
    submitted scientific reports on both sides. I just think
    there's a difference of opinion in terms of whether or not you
    should have the benefit of having the best technology
    available, have that presented as evidence through the Army
    Corps of Engineers. That was not done, and so I think that's
    the point that needs to be focused upon.
        Mr. Babin. Absolutely. One more question. Why is having an
    unbiased scientific process important for determining the
    environmental impact from this project?
        Hon. Cohen. Well, you'd like--you would hope you would take
    the politics out of something this important. This is important
    to the State of Alaska, to the tribes--no, I think the tribes'
    members who have traveled from Alaska or who represent the
    tribes of Alaska, this is important to them. This--salmon's
    important to the economy of Alaska, and to not only Alaska but
    the Lower 48 states as well. And so--and it's also important to
    the State of Alaska to say whether or not we can have economic
    development in an area that we specifically have designated for
    economic development in the form of mining. So there are big
    issues involved, and my point is, when you've got these kinds
    of issues involved, isn't it the best way to pursue it is do it
    through the traditional process that you have used historically
    on those 13 occasions when you invoked 404(c), do it when an
    application's been filed. And Pebble can say I'm not ready to
    file it yet. That's--I think that's up to them. They may need
    more--they may be looking for more technology that would
    satisfy EPA, but that's a decision. Can EPA force you to do it
    when you're not ready, and that's a policy decision that
    Congress is going to have to act upon.
        Mr. Babin. Okay. Thank you very much.
        Now I'd like to recognize the gentleman from Georgia, Mr.
    Loudermilk.
        Mr. Loudermilk. Thank you, Mr. Chairman, and thank you both
    for being here.
        As a ten year resident of Alaska who did some recreational
    mining, this is--I can equate to what you're going through, but
    question for either one of you, Mr. Secretary or Mr. Scheeler.
    In the course of your investigation, did you determine whether
    EPA employees were using private email accounts to discuss
    official EPA business with outside groups opposed to your mine?
        Hon. Cohen. The answer is yes. There were--and we
    documented that in the report. There were a number of occasions
    when private emails were set up to conduct business, which
    violates actually EPA's own rules, in the aspect that those
    private conversations or communications need to be filed with
    EPA. There----
        Mr. Loudermilk. What kind of information was included in
    those emails?
        Hon. Cohen. Well, that's--I indicated information that's in
    the email file in those documents but I want to get to this
    point. There was a case of Mr. North, Phil North, who was very
    instrumental in recommending a process, a 404(c) process. His
    computer crashed. Not to be unexpected. It happens. His
    computer was not backed up, and as a result of that, a year or
    plus years' worth of correspondence was lost. Now, the best
    person to explain this of course is Mr. North. We tried to make
    contact with him. I know this Committee or Congress has tried
    to make contact with him. The latest information I have is that
    he retired from his position in Alaska, then went on a sailing
    trip around much of the world. I first tried to find if he was
    living in New Zealand but now I'm told he's living in
    Australia, and has refused to respond to requests to meet with
    him, talk with him. As a matter of fact, he is under subpoena
    now for a trial taking place in Alaska on November 12th. So I
    think he would be the best person to say what was in that. I
    don't know. It might be totally benign. I mean, this is the
    issue. It might be perfectly legitimate what they were
    communicating. I don't have any way of knowing yet. I don't
    want to prejudge it. But there were missing emails, and----
        Mr. Loudermilk. And these were personal, using personal
    email accounts?
        Hon. Cohen. Outside of the official government----
        Mr. Loudermilk. Do you know why they would use personal?
        Hon. Cohen. You would have to ask Mr. North and you would
    have to ask others who had these exchanges with--and they would
    go to the Administrator as well.
        Mr. Loudermilk. Mr. Scheeler?
        Mr. Scheeler. Just to provide one example, in the summer of
    2010, a number of area native tribes filed a petition with the
    EPA asking them to invoke or commence a section 404(c) process.
    In the months that preceded the filing of that petition, the
    attorney for the tribes sent to Mr. North, who was the
    principal EPA liaison with the tribes, a draft of that petition
    along with other documents which had been labeled apparently by
    the counsel for the tribes' ``attorney-client privileged.'' So
    drafts were exchanged between the EPA representative and
    between the tribes in the months prior to the actual filing of
    the petition. Now, that petition was consequential because EPA
    used that petition sand said they were responding to that
    petition as their basis for deciding to ultimately proceed with
    the BBWA, the Bristol Bay Watershed Assessment, which in turn
    ultimately triggered the 404(c) proceeding.
        Mr. Loudermilk. Let me make sure I understand what you're
    saying here. Mr. North, who was an employee of the EPA,
    correct?
        Mr. Scheeler. Yes, sir.
        Mr. Loudermilk. You're saying he used a personal email
    account, drafted a letter for the Native corporation or agency
    for them to use as a document as a petition? Am I getting
    that----
        Mr. Scheeler. No, not exactly. That's--what I'm saying is,
    a draft of the petition and related materials were sent by the
    lawyer for the tribes----
        Mr. Loudermilk. Okay.
        Mr. Scheeler. --to Mr. North and then ultimately----
        Mr. Loudermilk. To his personal email?
        Mr. Scheeler. To his personal email. Ultimately what we see
    filed in June is the petition. It is different in some respects
    from the draft that was sent earlier. We do not have--we're not
    sure if we have all the email correspondence so we do not know
    whether Mr. North provided comments or any of the changes were
    due to his input or otherwise, but we did find it remarkable
    and we did remark upon it the fact that a draft petition was
    being sent to the EPA along with attorney-client-privileged
    documents in the months preceding the filing of that petition.
        Mr. Loudermilk. I find it remarkable too.
        One last question, Mr. Secretary. Being in government
    before, is this appropriate to use private--it seems to be a
    trend that we're seeing now using private email accounts. Is
    this, in your opinion, professional opinion, an appropriate way
    to conduct government business?
        Hon. Cohen. In my opinion, no. I think if you're going to
    communicate, you have to do it using government property and
    government channels. There may be an occasion where someone
    gets a call or someone gets an email that is of a business
    purpose but under EPA's own regulations, that should be
    immediately filed with the EPA so that the public can then see
    whether or not a public issue was being discussed privately
    without disclosure so----
        Mr. Loudermilk. I guess----
        Hon. Cohen. --I think the basic rule is, don't do it, but
    if there are extraordinary circumstances that require it, that
    something happens in terms you have to get in touch with a
    higher level official, just make sure it's fully filed with the
    agency.
        Mr. Loudermilk. But let's just hypothetically--I know I'm
    running out of time here, Mr. Chairman. But hypothetically, if
    I wanted to get around FOIA, I could use a private email
    account to try to do that?
        Hon. Cohen. You could.
        Mr. Loudermilk. Okay.
        With that, Mr. Chairman, I yield back.
        Mr. Babin. Thank you, Mr. Loudermilk.
        I'd like to recognize the gentleman from California, Mr.
    Takano.
        Mr. Takano. Thank you, Mr. Chairman. Thank you both for
    being here today.
        Mr. Scheeler, the report stresses that you conducted an
    independent review although you were paid by the Pebble
    Partnership to write the report, but I've learned of a recent
    transaction that raises some questions about the association
    between your law firm, DLA Piper, and Northern Dynasty, the
    parent company of Pebble Limited Partnership. I'd like to put
    up a slide, if I may.
        [Slide.]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        This slide here, slide one, shows that on October 28th,
    nearly 9 million shares of Northern Dynasty stock worth more
    than $2.7 million were transferred to a British Columbia
    company listed by its business number 1047208 BC Limited. Slide
    two, please.
        [Slide.]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Actually, is it slide two or slide three? Well, this slide
    clearly identifies Stewart Morrow listed as the contact for the
    business 1047208 as a DLA Piper partner. Last slide, please.
        [Slide.]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        This slide shows that the address this numbered company
    provided on a British Columbia Securities Commission form is
    the same exact address and suite number as DLA Piper's
    Vancouver office.
        Now, Mr. Scheeler, I don't know the background or specifics
    about this transaction but I do believe the mere fact that a
    DLA Piper partner was involved in a significant business
    transaction involving the parent company of the Pebble
    Partnership less than 6 weeks before you and Secretary Cohen
    released your independent review of the EPA's actions regarding
    Northern Dynasty's proposed Pebble Mine in Bristol Bay does
    raise serious conflicts of interest and questions about the
    independence of your report.
        Were you aware of this transaction before the release of
    the Cohen Report?
        Mr. Scheeler. Absolutely not, and thank you for the
    opportunity to respond to this issue. We just learned about it
    yesterday when we got a call from a reporter. Prior to that
    time, neither I nor anyone on my team had any idea or knowledge
    about this transaction. So the fact of this transaction could
    not and did not play any role in connection with the
    preparation of the report or the development of the
    investigation because none of us knew anything about it until
    yesterday.
        When I did learn of it, I did inquire of management, and
    what I did learn from them yesterday is that DLA Piper Canada,
    the Vancouver office with whom we combined just this past
    April, acted on instructions of a long-term client to create
    the entity that's referred to there you have in slide one and
    that client used that entity to make a purchase of stock
    without any direction or consultation with DLA Piper.
        So the short answer is nobody on our end knew anything
    about this until yesterday, and nobody in Vancouver had any
    access or information about what we were doing on behalf of The
    Cohen Group.
        Mr. Takano. Well, it would seem to me before issuing a
    report of this importance to maintain the aura of its
    independence so there's no even appearance, there's no
    appearance of even a conflict, that law firms of your size
    would conduct, you know, a check, a conflict check of some
    kind. I realize big firms, the left hand may not know what the
    right hand is doing but still, I think it's--I think an
    independent, objective observer would see that a law firm
    that's taken on quite a bit of an acquisition here of stock in
    a company, I mean, it would raise in that person's mind the
    idea of this report being so independent.
        Mr. Scheeler. Let me make clear, there may be a
    misassumption that you have. It was not the law firm that
    acquired the stock. The DLA Piper Canada law firm has zero
    interest in that stock. That stock was purchased by a client of
    DLA Piper. All that DLA Piper Canadian did was create the
    corporation which the client used as a vehicle to purchase the
    stock. In other words, the client purchased the stock and put
    it into that company and established Mr. Morrow as the contact
    point for that company. But my understanding is, neither Mr.
    Morrow nor DLA Piper Canada nor any DLA attorney or entity have
    any financial interest whatsoever in Northern Dynasty.
        Mr. Takano. Just finally, if you would please follow up and
    get back to the Committee to let us know of any other DLA
    attorneys that may have had involvement that DLA attorneys
    might have had with Northern Dynasty or the Pebble Partnership
    during the time you were working on the Cohen Report, the Cohen
    Report's independent review of the EPA actions in Bristol Bay.
    I mean, it would be helpful if--you probably did that thorough
    review of any involvement of your partners or the company.
        Mr. Scheeler. We would be happy to do so.
        Mr. Takano. Thank you.
        Mr. Babin. Thank you.
        Now I'd like to recognize the gentleman from Alabama, Mr.
    Palmer.
        Mr. Palmer. Thank you, Mr. Chairman, and thank you to the
    witnesses.
        Secretary Cohen, in your investigation, did you determine
    that EPA employees had considered using 404(c) of the Clean
    Water Act long before EPA had obtained any science on the
    impacts of the mine?
        Hon. Cohen. I indicated in the report that there were
    allegations to that effect and that there was some indication,
    some examples that were cited in the report of conversations
    had as early as 2005 on the part of Mr. North talking to others
    that this was something that would be ripe for a 404(c)
    application. In addition to that, there were a number of
    matrixes set out, a pro and con matrix, for the Administrator
    to look at to say well, if we go the NEPA way, here's what
    happens. If we use 404(c), we have these advantages. And so
    there were indications that long before they made a
    determination that this has been something that they were
    considering. Also, there's a budgetary issue involved. It
    appears--and again, this is something that we couldn't really
    confirm but it appears that money was being requested as early
    as 2009 in order to carry out the 404(c) investigation. There
    were--it's in the 2010 budget, it appears to be in the 2010
    budget of EPA. To get it in the budget, you would have to have
    started talking about it as early as 2009. So there's--there
    are a lot of examples. I didn't come to any conclusion that
    there was--that they in fact had made that decision but there's
    enough there for you to want to follow up on to say how come
    these processes were used that early.
        Mr. Scheeler. And we did, I might add, provide EPA's side
    of the story. While they didn't speak to us, they provided
    written record with respect to this. They contend that the
    documents described by Secretary Cohen were by lower-level
    employees, they were preliminary, they were not decision-making
    documents, and so I think that's the way they've articulated
    their side of the story thus far.
        Mr. Palmer. But even though it's lower-level employees,
    wouldn't that be indicative of a, I guess, an attitude of
    predetermined predetermination?
        Hon. Cohen. Well, if you look at the matrix, one of the
    interesting things you will note is that the--in that matrix it
    says this is unprecedented, this action under 404(c) would be
    unprecedented. Number two, if you take action here, it would
    allow EPA to be able to take greater control on the political
    spinning of an issue. So these were laid out as potential
    actions, pros and cons. If you go 404(c), here are the
    benefits, here are the liabilities. It's likely if you go
    404(c) that you'll stimulate litigation. You're likely to run
    into litigation. It's likely to be fought legally.
        So the Administrator had to look at these issues and make a
    decision based on the pros and cons, and obviously came out in
    favor of using 404(c) without the filing of the plan, and based
    it upon the hypotheticals that we mentioned in the report,
    three hypotheticals in terms of what the size might be, and
    again, an issue for Congress. Is this something that comports
    with a government's obligation to be as forthcoming and fair as
    possible?
        Mr. Palmer. And you know, that's part of my concern with
    how the EPA does business and what we've seen in this Committee
    is that EPA makes a determination based on science and then
    will not turn over the data to back up the science that they
    used for the decision, but in this case, it seems that there's
    a predetermination without any science.
        Hon. Cohen. Oh, I think--I think there's science involved,
    Congressman. I really do. I think that I disagree with the
    method used here but I don't question EPA's calling upon
    experts with great scientific background.
        The issue for me is there's science on both sides, and
    that's up to the courts and others and Congress to reconcile.
    But the issue for me is whether or not that you would use a
    process whereby you preclude in effect a company like Pebble
    from saying yes, we are going to dredge this amount of land,
    we're going to do this amount of change to the environment or
    harm to the environment but we also have some mitigation
    measures which we feel will give EPA and the State of Alaska
    and the people of the Greater 48 an opportunity to see that
    we've got the best possible science that's being developed on a
    day-by-day basis. That's the part that is missing here. I don't
    question the science used by EPA to say these things would
    happen. I just question whether or not they have precluded an
    equally compelling case to be developed by the Pebble people.
        Mr. Palmer. Thank you, Mr. Chairman. My time is expired. I
    yield.
        Mr. Babin. Yes, sir. Thank you.
        And I'd like to recognize the gentleman from New York, Mr.
    Tonko.
        Mr. Tonko. Thank you, Mr. Chair.
        Mr. Cohen, I have a series of questions about your report,
    and please answer a simple yes or no. Did you make any public
    announcement of your intention to initiate a review of EPA's
    actions?
        Hon. Cohen. I made a public announcement. I had a press
    conference.
        Mr. Tonko. So the answer is yes. Have you disclosed the
    names and affiliations of the original 200 to 300 people you
    solicited to participate in your review?
        Hon. Cohen. Not all the names, the numbers--.
        Mr. Tonko. Yes or no.
        Hon. Cohen. No.
        Mr. Tonko. Have you disclosed the names and affiliations of
    the 60 people who responded to your letters and who
    participated in your review?
        Hon. Cohen. No.
        Mr. Tonko. Are the individuals' responses or the questions
    or other information you solicited from them publicly
    available?
        Hon. Cohen. We can arrange for them to be----
        Mr. Tonko. Yes or no. Are they available?
        Hon. Cohen. They're available if you call for them to be
    published, yes.
        Mr. Tonko. Did you subject your questions and methodologies
    used in the review to public or outside expert input or comment
    regarding the validity of your questions and methodologies?
        Hon. Cohen. I--the answer is yes.
        Mr. Tonko. Before it was finalized, was your report
    subjected to peer review by anyone unconnected with the
    report's development, your firm or DLA Piper?
        Hon. Cohen. It's not been subjected to peer review.
        Mr. Tonko. Did you provide any preliminary drafts of your
    report to the public?
        Hon. Cohen. No.
        Mr. Tonko. To EPA?
        Hon. Cohen. No.
        Mr. Tonko. To the State of Alaska?
        Hon. Cohen. No.
        Mr. Tonko. To the Pebble Mine Group?
        Hon. Cohen. No.
        Mr. Tonko. To the 60 individuals who participated in your
    review?
        Hon. Cohen. No.
        Mr. Tonko. Well, if I had an EPA witness here, the
    responses would have demonstrated that they used a far more
    rigorous and public process to conduct its business than you
    used to produce this document. This document is little more
    than a slanted reiteration of the timeline of events. It deals
    with neither scientific nor legal issues. Your report was
    privately commissioned and done in a closed process that was
    subject to little scrutiny. It appears to be little more than
    your opinion, an opinion that just happens to align with that
    of your client.
        I'd like to point out one small example of the report's
    bias. Your report describes numerous meetings and
    communications between EPA and your client in objective,
    dispassionate terms. Fine. But when it comes to describing
    contacts between EPA and any of your clients' opponents, all of
    a sudden these are evidence of bias on the part of the agency.
    Nonsense. It is evidence that EPA is being responsive to
    citizens asking for help. Your client has used this Committee
    and the Freedom of Information Act and firms like yours to
    harass and discredit its opponents. It's not working.
        As more people become aware of the unique beauty and value
    of Bristol Bay for Alaskans and for the Nation, the region and
    its people are gaining more support. By contrast, your client's
    reputation and credibility are losing ground and apparently
    investors, and this project is being exposed as a potential
    environmental and social nightmare.
        I have enough experience in Washington to be very familiar
    with the tactic of trying to validate something by simply
    repeating it. You can label your report ``independent'' and you
    can repeat the word as many times as you like but a report
    produced at the behest of a client who paid you and your team
    is not independent. A report that was produced with no public
    scrutiny or independent review of the methodologies, the
    information sources or findings is not independent. All you
    have exposed is the agency responding to the people of Bristol
    Bay who are trying to preserve their livelihoods, their
    culture, their communities, and their environment from
    predation by a foreign company that will take far more from
    them than it will ever provide.
        And with that, Mr. Chair, I yield back.
        Hon. Cohen. Mr. Chairman, if I could----
        Chairman Smith. Yes, Secretary, please respond.
        Hon. Cohen. I appreciate the comment that was just made but
    I'd be willing to say I've never questioned your integrity,
    Congressman, and if it came to a question of--questioning mine,
    I'd be willing to put my reputation up against yours any day.
        Chairman Smith. Thank you, Secretary Cohen.
        Mr. Scheeler. If I could just add to the notion that this
    was just opinions that we made up, the fact of the matter is,
    we borrowed and investigated and see what others had to say
    about it, and so in terms of, for example, which process was
    more robust, which process should be used to decide whether or
    not to build a mine, we really relied upon what the Army Corps
    of Engineers said. They said that without a permit application,
    there was no way to evaluate the potential discharges associate
    with the Pebble Deposit. So if the Army Corps of Engineers with
    all their expertise could not do this, how could EPA or anybody
    else? That helped inform our inclusion--our conclusion.
        EPA made many statements that also helped inform our
    conclusion. For example, they admitted in publishing the BBWA,
    the Bristol Bay Watershed Assessment, that this was not an in-
    depth assessment of a particular mine, that they did not do a
    formal determination of compensatory mitigation, that only
    takes place in the context of a permit/NEPA process. So the EPA
    was quite candid about describing and exposing the gaps in
    their analysis that would be filled by the more robust permit
    process. And so the conclusions were not unique to us. They
    actually come--if you look at the report, they actually come
    from the EPA and Corps documents.
        Chairman Smith. Thank you, Mr. Scheeler.
        Let me say to the gentleman from New York, I wouldn't want
    anybody to take down his words so I would suggest in the future
    that he not impugn the integrity of any witness, and I think
    that will lead to a more constructive exchange of ideas on this
    subject.
        And now we'll go to the gentleman from Arkansas, Mr.
    Westerman, for his questions.
        Mr. Westerman. Thank you, Mr. Chairman, and thank you,
    Secretary Cohen, for your testimony today and for your service
    to our country, and Mr. Scheeler, thank you for being here.
        As we broach this subject of integrity and fair processes,
    the EPA claims that they took their action against the Pebble
    Mine because the agency received a petition letter asking them
    to stop the mine by using a preemptive 404(c) action. Mr.
    Cohen, can you explain what you found regarding this in the
    course of your investigation?
        Hon. Cohen. Well, I think that Mr. Scheeler has already
    commented on this, that there is evidence that a decision--a
    recommendation for a decision to go to 404(c) preceded the
    action taken by EPA so that there is a fairly lengthy period of
    time in which it's clear that it was not the petition that
    activated this but rather that this was something that was
    thought about as long ago as 2005, long before the agency took
    action by instituting a so-called Bristol Bay Watershed
    Assessment in 2011.
        Mr. Westerman. So in the course of your investigation, did
    you find that any EPA employees were assisting the petitioners
    in their efforts to draft the letter?
        Hon. Cohen. Again, Mr. Scheeler testified to this a few
    moments ago, but there was correspondence from an attorney
    representing the tribes sending a letter to Mr. North
    suggesting or requesting any assistance he might want to give
    or comment he might want to make on a potential petition filed
    by the tribes. That was a subject matter we discussed earlier
    where we don't know what Mr. North said in return. It was
    communicated to Mr. North's private email account and not to
    the public one.
        Mr. Westerman. So in your opinion, is it appropriate for a
    federal government employee to assist a group that petitions a
    federal agency for action?
        Hon. Cohen. I think it's appropriate if it's public. If
    such communication is taking place and it's above board and
    this is the EPA assisting tribes or others who have a very
    strong interest in this, as long as it's fully disclosed and
    above board, then I certainly don't have any question about
    that.
        Mr. Scheeler. Congressman, I think you put your finger on
    one of the core issues that we identified that we could not run
    to the ground because we did not have subpoena power but it's
    obviously a very important issue you're raising. So without
    subpoena power, we were unable to talk to Mr. North or Mr.
    Parker, the tribe's counsel, and understand what the full
    amount of collaboration, if any, there was, but that's
    obviously an important issue, and you know, the question is,
    what--you know, what did happen, if anything, in terms of
    collaboration to put together the tribe's document, which was
    said by the EPA to be really the act that kicked off the 404(c)
    BBWA process. That's an important point. There may be benign
    explanations for this interaction but we have not been able to
    get to the bottom of it lacking subpoena power but it is an
    important point to run down.
        Mr. Westerman. And I know with the votes, some of us were
    in and out, and maybe missed part of the testimony, so I
    apologize for doubling up on the same question, but would it be
    your recommendation that the Committee use its subpoena power
    to try to get to the bottom of some of these questions?
        Hon. Cohen. The answer is absolutely. You're the ones in
    charge of this in terms of oversight over EPA. EPA should
    welcome oversight by the appropriate committees, and I think
    it's a policy decision that Congress really has to adopt here.
    404(c) has been used 13 times in 43 years. They've used it
    after a permit for a mine has been applied for. This is the
    first time this has been used in this case without one. So I
    think it's a policy decision.
        Now, EPA may say look at the statute, look at the
    regulation that went into effect without any comment, by the
    way, look at that and say we have the power. Now, does Congress
    feel they have the power? Does Congress feel that this should
    be a model for watershed modeling for land-use planning? That
    would have some pretty serious consequences to every state if
    power had shifted to EPA in this fashion. So I think these are
    issues of policy issues and you can get at them, Congress can
    get at them through the subpoena power, and frankly, I would be
    surprised if EPA wouldn't be willing to come before you and
    testify as to exactly what has happened so that they can say we
    did everything we feel we were required to do. I don't know why
    you'd even be forced to issue subpoenas since you have
    oversight over the EPA, and I don't know why they would be
    reluctant to do that.
        Mr. Westerman. Thank you, Mr. Chairman.
        Chairman Smith. Thank you, Mr. Westerman.
        And all members have asked questions of our panelists
    today. We're going to take a five minute recess so we can reset
    the witness table. And let me thank both Secretary Cohen and
    Mr. Scheeler for their comments today, very, very helpful and
    much appreciated.
        We'll take a five minute recess.
        [Recess.]
        Chairman Smith. The Science, Space, and Technology
    Committee will resume our hearing, and if Mr. Collier and Mr.
    Halford would come forward and be seated? And I'll introduce
    our two witnesses.
        Our first witness on the second panel is Mr. Tom Collier,
    Chief Executive Officer for Pebble Limited Partnership. Prior
    to this position, Mr. Collier enjoyed a 40-year legal career
    with Steptoe and Johnson. There, he helped guide companies
    through the federal environmental permitting process. He has
    worked on several Alaskan resource projects. In addition to his
    legal career, Mr. Collier was the Chief of Staff for the U.S.
    Department of the Interior. Mr. Collier received his bachelor's
    degree in international relations from the University of
    Virginia and his law degree from the University of Mississippi.
        Our other witness is Senator Rick Halford, former Alaska
    State Senator and Representative of Trout Unlimited. Senator
    Halford served for nearly 25 years in the Alaska State Senate
    with multiple terms as both Senate President and Senate
    Majority Leader. In addition, he served as an RNC Committeeman
    for Alaska and earned a Defender of Freedom Award from the NRA.
    Prior to joining the Alaska State Senate, Senator Halford was a
    float plane pilot, and he earned his bachelor's degree from
    Alaska Methodist University.
        We welcome you both, and appreciate your being here and
    appreciate your patience as well since we're running a little
    bit late, and Mr. Collier, if you'll begin?

                     TESTIMONY OF MR. TOM COLLIER,

                        CHIEF EXECUTIVE OFFICER,

                       PEBBLE LIMITED PARTNERSHIP

        Mr. Collier. Thank you, Mr. Chairman and Members of the
    Committee, for the opportunity to testify today.
        As you all know, there's a well-worn pathway to build a
    natural resources project in America. You file your permit
    application. You go to the Corps of Engineers. The Corps of
    Engineers selects an independent contractor to do an extensive
    environmental impact statement, and then makes a decision on
    your permit. In fact, the environmental organizations refer to
    the environmental impact statement as the Magna Carta of
    environmental protection, and in fact, I agree with them on
    that characterization.
        In our situation, however, EPA decided to abandon this
    well-worn pathway, and for the first time ever in the history
    of the statute, it's issued an intent to veto our project
    before we've even filed a permit application.
        The question is why have they done this, and a starting
    point in that analysis is recognizing that there's no
    environmental harm that will happen whatsoever if we're simply
    allowed to go through the permit process. We don't get to build
    a mine. We don't get to turn a shovel of dirt. In fact, we go
    through the permit process. But you don't need to speculate on
    why because we found documents, internal documents within EPA,
    that clearly explain what their motive is, what their intent in
    establishing this precedent is.
        The first one is that they want the opportunity when
    there's a controversial project before them to take
    jurisdiction away from the Corps of Engineers, away from the
    state, and to leave it unilaterally with EPA. Second, and this
    is language straight from EPA documents, they want to establish
    a precedent for proactive watershed planning for
    sustainability. They want to be able to go out there and look
    at a watershed and decide whether or not it should be a park or
    it should be something subject to development. They want
    something akin to local zoning authority to reside with EPA.
    They want to be able to zone the watersheds of America. I don't
    think the Clean Water Act gives them that authority.
        The problem is, when a federal agency wanders off the well-
    worn pathway, there's opportunity for mischief, and here that
    mischief has been extensive. As detailed more in my written
    statement, and as Secretary Cohen just eloquently testified to,
    EPA, in my view, predetermined the outcome with respect to
    Pebble. That's what the documents show. And they manipulated
    the process in order to get to that outcome.
        Just a couple of examples, and the record is full of many
    of these examples. EPA says that they initiated this process
    because petitions were drafted by Native tribes and submitted
    to them. The documents show that as early as January, the year
    before these petitions were submitted in June, an EPA employee
    and an environmental activist colluded to draft those petitions
    and then circulated them to the tribes that signed them. In
    addition, they worked together, an EPA employee and an
    environmental activist, to draft the decision memo that would
    be used by the Regional Administrator. This was being done
    before the petitions had even been filed and the decision memo,
    the EPA decision memo, was being drafted not just in EPA but
    was being drafted with the participation of environmental
    activists. I worked in a federal agency that dealt with
    environmental issues, and if that had happened on my watch,
    that employee would have been fired that day. That's how
    egregious this conduct is.
        The BBWA that resulted from this has been characterized by
    EPA as good science. It's not good science. How in the world do
    you take a scientific look at the environmental impacts of a
    project when you don't know what the project is? There's no
    project on the table.
        Second, what they did to get around this is they assigned a
    biologist in Alaska to design the mine that they assumed Pebble
    would design, and that biologist designed the mine--Phil
    North--designed it so that it would have the most egregious
    environmental impacts so that they could use those impacts as
    their justification for deciding that the mine should be
    vetoed. Phil North, by the way, fled the country in order to
    avoid a subpoena from another committee of Congress.
        Look, the impact of this preliminary veto, this preemptive
    veto on Pebble has been devastating but it's not just an impact
    on Pebble. This is going to have an impact across the country.
    We have invested $750 million to get ready to go into
    permitting, and EPA is trying to tell us unilaterally that we
    cannot even initiate the permitting process. If you send that
    message to people out there regarding natural resource projects
    across America, nobody's going to stand in line to file
    permits. Nobody's going to invest in the permitting process.
        Thank you for your time today.
        [The prepared statement of Mr. Collier follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Chairman Smith. Thank you, Mr. Collier.
        Senator Halford.

                    TESTIMONY OF HON. RICK HALFORD,

                     FORMER ALASKA SENATE PRESIDENT

        Mr. Halford. Thank you, Mr. Chairman, and thank----
        Chairman Smith. Is your mic on? There we go.
        Mr. Halford. Thank you, sir. Thank you, Mr. Chairman, and
    thank you for the opportunity to testify. I'm one of the many
    defenders of this watershed including departed friends like Ted
    Stevens, Jay Hammond, and inspirational elders like Bobby
    Andrew and Ofi Olsen, Mary Olympic and Violet Wilson. I'm here
    today humbly in their behalf, and I believe that the people of
    Bristol Bay who have been dependent on these resources for
    untold generations, and I believe in the defense of the 14,000
    jobs and the $1.5 billion annual fishery that's supported by
    Bristol Bay wild salmon.
        I live in Bristol Bay and in Chugiak. I've been a
    commercial pilot and a hunting guide for all my adult life,
    although I spent 24 years in a detour to the state legislature.
    I retired as Senate President in 2003. In all my years in the
    legislature, I never ran without the support of the Alaska
    mining industry. I was active in their support. I believe that
    mining is important to Alaska.
        You've heard today that EPA has been unfair and has made
    its mind up in advance. Neither of these things could be
    further from the truth. The truth is that while EPA was far
    from the first choice of the people of Bristol Bay in terms of
    getting someone to listen, EPA was the only choice with the
    authority and the jurisdiction that had the interest to help,
    and sadly to me, that included the State of Alaska. The truth
    is, EPA listened to the people of Bristol Bay and responded by
    preparing the most objective assessment of the potential
    impacts of a massive sulfide mine in this particular location.
        If there's any unfairness in the discussion, it was
    produced by Pebble. For years they've tried to manufacture
    consent for their project. Their obvious efforts to manufacture
    that consent collapsed under the weight of facts and growing
    public opposition. Pebble has shown that it's willing to do or
    say anything to advance this project. By now, the opposition
    has grown to roughly 90 percent of the people in the region and
    about 60 percent of the people in Alaska statewide. Of the 1.8
    million comments EPA got, 85 percent were in support of the
    process and EPA.
        The more people have learned about this mine, the stronger
    the opposition has grown. This is in part due to Pebble's
    numerous false promises, and they're listed in my written
    testimony in terms of when they're going to apply, when they're
    going to apply and the continuous parade of changes in their
    process.
        Pebble's contention that the outcome was predetermined is
    ridiculous. As an advocate, those of us in Bristol Bay couldn't
    even agree on what to ask for. We didn't know anything about
    404(c). We looked first to the state and then went on through
    federal agencies in any way to look for help. EPA's action thus
    far if finalized places protection on the resources of Bristol
    Bay. Pebble must show that it can mine and protect those
    resources. They can apply for a permit today, tomorrow, the
    next day. Nothing has been vetoed. Pebble has the opportunity
    to prove its critics wrong. They've done no field work for the
    last two years, and they're only waiting for the right
    political climate.
        The stress and uncertainty on the people of Bristol Bay has
    been a cloud for over a decade. If there's unfairness, it's the
    unfairness to the people of Bristol Bay.
        The uncertainty makes it difficult even for legitimate
    mining projects to get support to develop in Alaska because of
    that uncertainty. Senator Murkowski two years ago asked Pebble
    to file their permits and get the process started. As Finance
    Chairman and Presiding Officer in Alaska in years in the
    process, I probably signed appropriations to sue EPA. My
    attitude was not positive as we started this process, and I
    know there are many issues and conflicts with EPA, but my
    experience in Alaska with the EPA personnel from the
    secretaries and the office people to the top administrators was
    amazingly positive. It changed my perceptions about a huge
    faraway bureaucracy. They came and they listened, and I want to
    take this opportunity to thank those people because I think
    they did their best in a difficulty situation in this one place
    that I saw very extensively.
        Today, the people of Bristol Bay are left with questions
    and fear about the massive exploration project in the head of
    their watershed. There are over 1,300 drill holes, thousands of
    settling ponds, potentially acid-generating material in those
    settling ponds, and tons of material stored on the land at
    their headwaters.
        Pebble should be using its resources to seal their problem
    wells, to assure there's no acid drainage, and to clean up
    their mess.
        Now, I am fortunate to have wonderful children, and
    whenever I say, particularly to my 13-year-old, clean up your
    mess, his response is ``It's not fair.'' I think it is fair to
    the people of Bristol Bay for Pebble to spend their energy to
    clean up their mess.
        Thank you for your time and your consideration.
        [The prepared statement of Mr. Halford follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Chairman Smith. Thank you, Senator Halford.
        Instead of recognizing myself first, I'm going to recognize
    the gentleman from Texas, Mr. Babin, for his questions.
        Mr. Babin. Yes, sir. Thank you, Mr. Chairman. I appreciate
    it. And I want to thank the witnesses for being here as well.
        I would ask that a slide be placed up here in just a
    second, but first I want to ask Mr. Halford a question. You
    were the recipient of the notes taken by a Trout Unlimited
    colleague at a meeting between the EPA and several opponents of
    the Pebble Mine, and I'd like to point everyone's attention to
    some excerpts from these notes in light of the fact that we
    just heard Secretary Cohen testify under oath that there should
    never be any politics involved in the review process, but I
    would point your attention to these notes, and this was a--
    notes that was--that were from Richard Parkin, who is the
    project leader of the Bristol Bay project and working for the
    Environmental Protection Agency. It says where the bottom red
    line, this is what he said. This is the EPA's own
    representative at the time at this meeting. It said that--
    clarified--it stressed that while a 404(c) determination would
    be based on science, he says politics are as big or a bigger
    factor. Now, how do you--was it your understanding, Senator
    Halford, that politics would play as big or as big a factor as
    what Mr. Parkin said than the science in EPA's decision to use
    section 404(c) to stop the Pebble Mine, and bearing in mind
    what Secretary Cohen had just testified just a few minutes ago?
        Mr. Halford. Well, certainly I--you're talking about
    something that happened in 2011. I don't remember anything
    about it, and I can see the date but I don't know--I mean, I
    don't think politics should be the factor. Obviously that's not
    the way----
        Mr. Babin. Tuesday, February 22nd, 2011, at 4:26 p.m.
    That's the date and time.
        Mr. Halford. I can't remember that conversation at all. If
    it was a memo, particularly if it came by email, I'm one of
    those people that still lives in an analog world so I have
    trouble just keeping track of all my emails.
        Mr. Babin. Well, in light of the fact that we just heard
    Secretary Cohen say that in these types of decisions when we're
    using--supposedly using science and we have the EPA's own
    project leader saying that science does play a big factor but
    politics can be a big factor or bigger factor. That leads me to
    believe that this is not really based on science after all.
        Mr. Halford. I have no idea how he was saying it. He might
    have been saying it as an objection to what politics has
    influence on. I don't know.
        Mr. Babin. Okay.
        Mr. Halford. I don't recall.
        Mr. Babin. Mr. Collier, EPA's Bristol Bay project leader
    Richard Parkin, whose name and quote is here, admitted that
    politics would play as large a role as the science, in fact,
    even a larger role, in its determination to stop the Pebble
    Mine. If this is the feeling of the agency at EPA, how then can
    the judgment and impartiality of the EPA be trusted at all in
    these decisions?
        Mr. Collier. Congressman, obviously I've questioned their
    judgment in these proceedings, and I think this is one example
    of why. I'd like to point out to the Committee that Mr. Parkin
    was the leader of the scientific effort for this, and this is
    what he's saying, and I think that's indicative of the problem.
        Mr. Congressman, I've probably read more internal memos and
    emails regarding this situation than anyone else in this room,
    and this is just one of dozens of examples of this kind of
    concern, and the criticism of Secretary Cohen's report that
    it's not independent, what hasn't been criticized is the
    detailed citation throughout that 350 pages where every one of
    his statements has been cited back to a document from EPA to
    verify its authenticity.
        Mr. Babin. Thank you very much to both of you witnesses,
    and I think the only conclusion you can draw is that science is
    not the biggest criteria they use to come up with these
    permits.
        Thank you, Mr. Chairman.
        Chairman Smith. Thank you, Mr. Babin.
        The gentleman from Virginia, Mr. Beyer, is recognized for
    his comments.
        Mr. Beyer. Thank you, Mr. Chairman, very much, and thank
    you to the witnesses.
        The heart of the questioning today seems to me why did the
    EPA feel the need to use the 404(c) process rather than just
    wait for Pebble to file a mining permit. Senator Halford talked
    about the stress and uncertainty of the people of Bristol Bay,
    and I'd like to use my time to help the public understand why
    the EPA took the actions that it has and to help show the
    potential consequences of a mine failure in Bristol Bay.
        The Pebble Partnership has pledged that they would operate
    their mine safely and that it would contain modern engineering
    practices that would prevent virtually any conceivable accident
    from occurring, and they've repeatedly pointed to the Fraser
    River in British Columbia and specifically the Mount Polley
    Mine as a working example of a mine with modern engineering
    that has had minimal impact on the surrounding environment.
        I'd like to start by playing a video the Pebble Partnership
    produced on the coexistence of mines and fish in the Fraser
    River Basin several years ago.
        [Video shown.]
        So that is very encouraging. In 2012, in response to the
    EPA's analysis of the potential impact a Pebble mine could have
    on the Bristol Bay Watershed, John Shiveley, the CEO of Pebble
    Partnership and now as Chairman of the Board of Directors,
    wrote the EPA arguing that their analysis had faulty
    assumptions based on outdated mining technology. He attached
    seven White Papers including three by the international
    engineering firm Knight Piesold and two papers that focused on
    the coexistence of mining and salmon in the Fraser River. I've
    prerecorded excerpts from that letter and those papers over a
    video of the Mount Polley Mine's tailing ponds rupture. This
    occurred in August 2014, sending 25 million cubic meters of
    water and mine waste into the waterways of the Fraser River
    Basin. If we can now play that video?
        [Video shown.]
        I want to emphasize that those--I was reading it but those
    are not my words. Those came from the previous CEO of Pebble
    Mine and the reports that were issued, so we see the incredible
    irony and unhappiness.
        So three questions that come out. What was the cause of the
    Mount Polley tailings pond breach? An expert panel found that
    the geological features of the tailings dam were neglected in
    its construction and concluded that ``the design was doomed to
    failure.'' Who designed the Mount Polley tailing storage
    facility? It was the same firm that produced the three White
    Papers that we read from, arguing that modern engineering
    standards had prevented any failures at the Mount Polley Mine
    and would prevent any future mishaps at Pebble's Bristol Bay
    mine. It's also the same company hired to design Pebble's
    tailings dam at the proposed mine in Bristol Bay.
        Finally, what was the environmental impact of the Mount
    Polley mine breach? Not yet clear but what is clear is that the
    Pebble Partnership pointed to the Mount Polley mine as an
    example of what we could expect from modern engineering
    practices that would be used to construct their mine in Bristol
    Bay. Hence, the stress and uncertainty of the people of Bristol
    Bay.
        Senator Halford, how do you respond to this? What are your
    thoughts?
        Mr. Halford. I guess the question, and there's been some
    discussion about the uniqueness of the process and how the
    process has gone, how hard the people of Alaska tried to get
    somebody to listen for a decade or more, but I think the other
    part of it is, this is the last greatest salmon resource left
    on Earth. It's the only place where you have all five species
    and the dependent culture totally intact. Is this the place
    that we should experiment with something that has never worked
    in all of history in a wet climate in a comparable size? I
    don't think it is. I think it's a very, very dangerous
    experiment, and again, if this one goes, it's the last one.
    Salmon have been destroyed all over the globe, sadly.
        Chairman Smith. Thank you, Mr. Beyer.
        Mr. Collier--well, first of all, let me recognize myself
    for questions, and Mr. Collier, would you like to respond?
        Mr. Collier. Thank you. Congressman Beyer, I know that
    you've been a champion, your career, of the environmental
    impact statement process. This is exactly the kind of thing
    that ought to be examined very rigorously and very thoroughly
    in an environmental impact statement setting. And that's what
    we're asking for. That's all. Just let us have due process.
        As to your questions, though, I'm on record, have been
    since the Mount Polley situation occurred, that we would not go
    forward with any permit application without an independent
    review of anything that Knight Piesold came close to on our
    project.
        But let me give you a little bit of background that you may
    not know about this situation. Knight Piesold withdrew as the
    engineer of record years before the failure of Mount Polley,
    and they did so because of an express concern that the facility
    was not being managed according to the way it was designed. It
    was designed as a tailings facility to store essentially sand.
    It was being used to store wastewater. And the reason the
    facility failed is because there was way too much water in that
    facility. And it essentially overtopped.
        That's the kind of thing we need rigorous enforcement to
    make sure doesn't ever happen anywhere in the world, especially
    in America, and we would support that strongly.
        There's an existing criminal inquiry going on in Canada
    with respect to this occurrence, and if they find the facts
    that are necessary, the industry will support where that should
    go.
        But we're the first ones to say that rigorous enforcement
    of design characteristics are very important to the mining
    industry everywhere in the world, and we're confident that
    would be the case in America if we build ours in Alaska.
        But the real point, Congressman, is we need an
    environmental impact statement to look at these issues and lots
    of other issues. And that's all we're asking for, just process.
        Chairman Smith. Thank you, Mr. Collier.
        My next question is this: What are the implications for
    private property owners of the EPA's regulatory overreach? What
    are the implications for the private property owners? They're
    the ones to me that ought to be most concerned.
        Mr. Collier. You know, Mr. Chairman, there's a lot of
    criticism often of something that's called the Antiquities Act,
    and that's the process by which the President of the United
    States can sign a document and withdraw federal land and make
    it a park. What you're faced with here through the use of
    404(c) preemptively is the Antiquities Act on steroids because
    now the Administrator of EPA can unilaterally sign a document
    and withdraw not just federal land but withdraw state land and
    private land and essentially declare it a park never to be
    developed, without doing an environmental impact statement,
    right?
        This is outrageous. I think that private landowners around
    America should be extremely concerned about what this precedent
    can set. This gives EPA extraordinary powers that the statute
    didn't give them. There's not a word in that statute that says
    this is what ought to play out.
        Chairman Smith. Okay. Thank you, Mr. Collier.
        My last question goes to the appearance that taxpayers'
    dollars were actually used to lobby against Pebble Mine. I'm
    going to ask you what evidence we have of that, but I also, as
    a way to emphasize the significance of it, want to read to
    members of the Committee an excerpt from 18 U.S. Code paragraph
    1913, lobbying with appropriated monies. ``No part of the money
    appropriated by any act of Congress shall be used directly or
    indirectly to pay for any personal service, advertisement,
    telegram, telephone, letter, printed or written matter, or
    other device intended or designed to influence in any manner a
    Member of Congress, a jurisdiction, or an official of any
    government to favor, adopt, or oppose, by vote or otherwise,
    any legislation, law, ratification, policy,'' and so forth. The
    penalties for doing so are fines that range from $10,000 to
    $100,000 for each individual violation of that law.
        Would you like to comment on that?
        Mr. Collier. Well, I'm aware of the penalties of the anti-
    lobbying statute. I know anyone that runs a federal agency in
    America is quite aware of them. Congressman, I haven't seen any
    documents that provide the kind of evidence that would be
    necessary to bring a prosecution under the anti-lobbying
    statute.
        But I've got to tell you, I've got a lot of concern about
    that issue in Pebble. My concern may be a step away, and
    whether it's actually a violation of statute I don't know, but
    the collusion between environmental activists and EPA in this
    matter are extraordinary. There are over 1,000 times there were
    contacts between them. They've documented 30 with Pebble to put
    that into some kind of relative consideration.
        The massive lobbying campaign and massive public relations
    campaign undertaken by those environmental organizations that
    were in constant contact with EPA, I can't help but wonder
    whether EPA wasn't suggesting to them that maybe they could be
    aided if those organizations did some lobbying for them.
        Chairman Smith. Thank you, Mr. Collier. Just to reassure
    you and others, we will be continuing our investigation into
    whether or not the anti-lobbying statute was violated.
        I thank you.
        The next person up is the gentlewoman from Oregon, Ms.
    Bonamici.
        Ms. Bonamici. Thank you very much, Mr. Chairman. And again,
    we absolutely need to hear from the EPA.
        The people of Oregon and the northwest part of the United
    States are keenly aware of the potential repercussions of an
    open-pit copper mine and what those--what that would do to
    sports fishing, commercial fishing in Bristol Bay. Pebble's
    exploratory activities are already having a negative toll. A
    2015 Alaska Department of Natural Resources report examined 24
    of 1,300 exploratory drill holes and found that eight of those
    24 had already leached acidic waste into waterways in the
    region or have caused other environmental damage.
        I have a copy of a reclamation petition dated November 3
    filed by 15 Alaska-based organizations and individuals calling
    for Pebble to assess the damage that they've caused and
    demanding that they come up with a cost estimate and timeline
    for remediation. And I ask that this petition be included in
    the record, Mr. Chairman.
        Chairman Smith. Without objection.
        [The information appears in Appendix II]
        Ms. Bonamici. And I also sent a letter to the EPA
    Administrator McCarthy, along with several of my colleagues
    from the Northwest. This is dated January 30, 2014, urging the
    Administrator 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. And I would like to enter this into the record as well.
        Chairman Smith. Without objection.
        [The information appears in Appendix II]
        Ms. Bonamici. Thank you. Senator Halford, I know you fly
    over Bristol Bay regularly, and we saw some pictures. I wonder
    if you could just mention what you see now and expand on the
    current repercussions of the mining activities. But I want you
    to be brief because I have another important issue I want to
    ask you about.
        Mr. Halford. Well, the last time I flew over it was
    probably just about a week ago, and there was no activity but
    an awful lot still left on the land. Two years ago, they
    cleaned up their fuel dump on what they called, I think, Big
    Wiggly Lake. But there hasn't been much of anything done since
    then. And again, the settling ponds where they drilled down
    through in some cases a mile deep into basically what's a
    sulfur deposit if it were named for its biggest mineral, those
    things have the potential of acid generation. They're sitting
    there like test cells in the watershed. They're dangerous.
        Ms. Bonamici. Thank you. And I need to ask you, too, that,
    you know, we've heard a lot about subpoenas this morning and
    also lobbying. I understand that there's been a significant
    amount of money spent by the company lobbying as well and with
    a public relations campaign. But could you talk a little bit
    about this talk about at least 72 subpoenas that are going to
    be issued or have been issued? What's the talk about that among
    people in Alaska? Is it----
        Mr. Halford. Well----
        Ms. Bonamici. --stifling debate or silencing critics?
        Mr. Halford. There's a very sad case that is--actually
    turned around when it to the Supreme Court. But one of the
    Constitutional Convention delegates and a former First Lady
    filed a suit against the State and Pebble on water rights
    application just to get notice. When they lost at the lower
    court, Pebble proceeded to try and research to go after them
    individually for the money, for the legal costs. They lost at
    the Supreme Court so it never went forward from there.
        But the point is these kinds of actions stop people from
    trying to question what's being done out there. The same
    organizations----
        Ms. Bonamici. And I'm sorry to interrupt, but also want,
    Mr. Chairman, to read from a letter sent to Secretary Cohen
    from an Assistant Attorney General at the U.S. Department of
    Justice in April. This is in response to a letter Secretary
    Cohen wrote in March of 2015 to the Department of Justice about
    the purported independent review of this issue. And the letter
    from the Justice Department reads in part, ``the federal courts
    provide the appropriate forum for resolving Pebble's
    allegations against EPA.''
         ``As you are aware, this matter is in litigation in three
    separate lawsuits filed by Pebble against EPA in connection
    with EPA's assessments of the potential environmental effects
    of Pebble's proposed mine activities.''
        The letter continues, ``your review obviously overlaps with
    the pending litigation.'' Then, the letter went on to say that
    ``Pebble has sought a preliminary injunction regarding Section
    404(c) activities and the--purportedly, the letter said, ``so
    it could maintain its legal rights and the status quo, not so
    that it could launch its own private investigation into the
    EPA's actions. Pebble is attempting to obtain government
    information relating to its pending claims against the United
    States outside of the normal discovery context.'' The letter
    continued.
        This letter is contained in a report released yesterday by
    the Natural Resources Defense Council. That report is titled
    ``The Demeaning of Independence,'' which is a rebuttal to the
    Cohen report. And I ask that this report, which contains the
    letter I quoted, also be entered into the record.
        Chairman Smith. Without objection.
        [The information appears in Appendix II]
        Ms. Bonamici. Thank you. And, Mr. Chairman, I do want to
    emphasize that it would be inappropriate for this committee to
    follow up on the advice that was raised earlier this morning
    for the Committee to issue subpoenas for information that might
    be used by the Pebble Partnerships solely as a tool in its
    current litigation. The Department of Justice knows this and
    recognizes it, and Members of this Committee should know that
    as well.
        Thank you, Mr. Chairman. I yield back the balance of my
    time.
        Chairman Smith. Thank you, Ms. Bonamici.
        The gentleman from Texas, Mr. Weber, is recognized for his
    questions.
        Mr. Weber. Thank you, Mr. Chairman.
        Mr. Collier, this question is for you. What is your
    understanding of the decision EPA undertook to initiate the
    Bristol Bay Watershed Assessment? Did the EPA initiate this
    study to gather more information, or would--did it seem more
    like a preemptive 404(c) action?
        Mr. Collier. Congressman, if you give me just one second,
    please, sir, to respond quickly to a couple of other----
        Mr. Weber. Go ahead.
        Mr. Collier. --points raised. There's been no finding by
    the Department of Natural resources, based on the recent tour
    that we had leached acidic waste into the environment.
        The 24 wells were not random samples. The eight that were
    leaking water, we took DNR to those eight because we had noted
    they were leaking water to show them what was going on. We--
    this--we brought this to their attention, and we wanted them to
    see what we intended to do in order to plug that water from
    leaking in the future. Any suggestion that we have any issues
    out there, we are 100 percent in compliance with our permits.
        Mr. Congressman, the--from the get-go there has been a
    decision made at EPA to veto this project. There are countless
    emails that show that. I saw a couple new ones just within the
    last few days----
        Mr. Weber. If I may, let me put you on hold right there. I
    have a slide I wanted to get your take on----
        Mr. Collier. Please.
        Mr. Weber. --if we can put the slide up.
        [Slides.]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Weber. If you look at this email communication, it's
    between EPA employees David Evans and Palmer I guess it's
    Hough, H-o-u-g-h is how that would be pronounced----
        Mr. Collier. Yes.
        Mr. Weber. --regarding Alaska Senator Murkowski's press
    release upon the EPA's announcement to conduct the Bristol Bay
    watershed assessment. In it, David Evans writes, and I'm
    quoting, ``interesting spin on EPA's announcement/decision. Her
    communications would suggest no 404(c) would be done until all
    the science is in.'' Now, here's the smoking gun. David Evans
    says, ``obviously, that's not what we have in mind.'' Does it
    get--when you see a statement like that, do you think a
    reasonable person says the EPA's probably objective on this
    matter?
        Mr. Collier. And, you know, Congressman, this is one of
    dozens, dozens of such emails. The one I saw just yesterday was
    one where they--talking back and forth and one says to the
    other, you know, there are two options. We can do a little
    science and then veto it or we can just veto it without doing
    the science. And they said, well, at least we don't have a
    disagreement of what the end result is.
        Mr. Weber. That's the juror to the judge. Judge, let's give
    him a fair trial and then hang him.
        Mr. Collier. Yes. Exactly. And that's why, you know, our
    request continues to be just let us have due process. Give us
    an environmental impact statement. Give us an independent to
    review that environmental impact statement, and then we'll have
    this debate.
        We recognize there are environmental challenges with
    building a mine in Bristol Bay, but we think we've got answers
    to those if we can just get an opportunity to have that debate
    and----
        Mr. Weber. So you're in business. I own an air-conditioning
    company 34 years. I've dealt with the EPA over Freon issues for
    a long time. So as businesspeople, we would say, well, the
    EPA's job is to be fair and an impartial judge if you will to
    make an assessment based on something that you the business
    community brings to EPA. It's not--we would--I would argue, see
    if you agree, that it's not necessarily EPA's job to go out
    before you bring them something and to tell you, hey, don't
    bother bringing this to you because we're not going to approve
    it. Would you agree with that?
        Mr. Collier. Congressman, I do. And I think fair process is
    what it's all about. One of the proudest things I've had a
    chance to do in my career was to work with Vice President Gore
    and Secretary Babbitt on the spotted owl timber issue in the
    Pacific Northwest. And I was part of a team that was--helped
    manage that situation. And our goal was for the first time in a
    handful of times to be able to put together a scientific report
    that would withstand judicial scrutiny, been thrown out a
    number of times before because of process issues. And we did
    that.
        And there are a couple of things we did that were very
    important. We made sure we had independent scientists that
    didn't have pre-stated views----
        Mr. Weber. Sure.
        Mr. Collier. --on the issue. That did not happen here. And
    we didn't allow there to be contact between the stakeholders
    and the decision-makers as the process was going on. Those were
    two fundamentally fair things we did, and neither of those is
    present right here.
        Mr. Weber. Well, I'm running out of time, but I would argue
    that in this case it seems apparent to me that the EPA has
    acted as judge, jury, and executioner in killing this project.
    Mr. Chairman----
        Mr. Collier. Prosecutor also, sir.
        Mr. Weber. Mr. Chair, I yield back.
        Chairman Smith. Thank you, Mr. Weber.
        The gentleman from Arkansas, Mr. Westerman, is recognized.
        Mr. Westerman. Thank you, Mr. Chairman.
        And to follow up from the gentleman from Texas, I do
    believe the discussion today has devolved more into whether
    there should be a mine in Bristol Bay or whether there should
    or shouldn't be a mine. But the real question here is about a
    fair and impartial process to determine whether there should be
    a mine. And, Mr. Collier, Secretary Cohen testified that EPA
    employee Phil North and Jeff Parker, an attorney representing
    groups opposed to the Pebble Mine, were in regular contact
    about what action EPA could take with regard to the Pebble
    Mine. As the CEO of the mining development company, how does
    this make you feel?
        Mr. Collier. I've always been shocked by the actions of my
    government in this situation. You know, I've twice left my law
    practice and gone into government service. That's an important
    part of my family's history. And I can't believe that this is
    the kind of thing--that politics has taken us where it's taken
    us on issues like this.
        As I read these documents, the reason we filed our Federal
    Advisory Committee Act case--and that's a case, by the way,
    where a federal judge has granted us a preliminary injunction.
    And you know you've got to show you've got a likelihood of
    succeeding on the merits before you get a preliminary
    injunction.
        But the reason we filed that case is--I took off to
    vacation with me two duffel bags full of documents and sat down
    and read them all. And at the conclusion of that I was shocked
    with what I found because what I found was collusion between
    the decision-makers and environmental activists. And we can't
    allow that in this country. It's going to chase off investment.
    It's going to stop people from wanting to step forward to put
    these projects together.
        The amount of money you've got to spend to get ready to go
    into permitting is astronomical today, and we've done that, and
    all we want is due process. And, Congressman, if you can do
    anything to help us, we sure would be appreciative.
        Mr. Westerman. Well, and this issue is about much more than
    a mine in Alaska; it's policy that affects the whole country
    and projects that could potentially take place all across the
    country.
        There's a slide I would like to have shown.
        [Slide.]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        This is from Phil North, who worked with the EPA. And it's
    an email between Mr. North and Jeff Parker, who was an attorney
    representing groups opposed to the Pebble Mine. And if you
    look, the date on this is April 12th, 2009. And we see here
    from Mr. North, he said, ``a few suggested edits. I keep trying
    to include ecological impacts, but if they make the sentenced
    awkward, then delete. Of course, ignore any suggestions
    anyway.''
        Given this email, Mr. Collier, from your perspective how
    can you feel that Pebble Mine received any fair treatment by
    the EPA?
        Mr. Collier. It's been a long time since I felt we ever got
    any fair treatment, Congressman, so it's a little tough to
    answer that question. But this is one of the situations that
    first shocked me so much. What's going on here--this is one of
    a whole handful of emails. What's going on here is that EPA is
    drafting the petitions that they said were then the reason why
    they launched the process against us. I mean that's poppycock.
    They launched this process against us because they'd always
    planned to kill this project, particularly Phil North. And he's
    helping draft the petitions that he then said were the reasons
    why he initiated this process.
        So it's not just that they were working on this together.
    They then misled the rest of us about why they moved forward
    with this proposed veto.
        Mr. Westerman. So have you ever competed and lost in
    anything?
        Mr. Collier. Yes, I have.
        Mr. Westerman. So have you ever felt like you were--you
    competed and it was an unfair competition?
        Mr. Collier. I have indeed.
        Mr. Westerman. So we've all had times when we win and when
    we lose, but it's a little bit harder to swallow when we feel
    like it was an unfair competition. If you were able to go
    through the process and your permit was denied and you couldn't
    build the mine, how would you feel about it if you thought the
    process was fair?
        Mr. Collier. You know, if we go through the permit process
    and we don't get a permit, that's an entirely different
    situation. What galls me is that for the first time in the
    history of the Clean Water Act, for the first time in handfuls
    of Administrators of EPA there's been a decision made to put us
    out of business before we even filed a permit application. I
    think it's outrageous.
        Mr. Westerman. It looks like I'm out of time, Mr. Chairman.
        Chairman Smith. Thank you, Mr. Westerman.
        The gentleman from Alabama, Mr. Palmer, is recognized.
        Mr. Palmer. Thank you, Mr. Chairman.
        Mr. Collier, Secretary Cohen testified that EPA employees
    were considering preemptive 404(c) process for the Pebble Mine
    as early as 2005. The documents obtained by the Committee show
    that the EPA employee Phil North began preparing a record to
    base a preemptive 404(c) action as early as 2009. Tell me, if
    you would, explain to the Committee why these actions concern
    you.
        Mr. Collier. Well, there are two things that concern me,
    and I think Secretary Cohen, much more eloquently than I'll be
    able to do, put his finger on both of them. The first one is
    even if they'd done this fairly, this is not a process you
    should use in this situation. 404(c) preemptively is not
    something you should use for a controversial project like this.
    It deserves to go through the entire permitting process,
    period.
        But second, he also said that the documents that he looked
    at raised serious questions as to whether the Agency hadn't
    predetermined the outcome here. So even when they used a
    process that I think they should never have used and that he
    thought they should never have used, they then abused the way
    they did that. So as I said in my opening statement, when an
    agency wanders off of a well-worn pathway to create a unique
    process, there's serious opportunity for abuse, and boy did
    they do that here.
        Mr. Palmer. I've got a slide I'd like for the Committee to
    put up.
        [Slide.]

     [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        And to the point you just made, this email appears to lay
    out the playbook for initiating a preemptive 404(c) action. Is
    it troubling that EPA employees appear to have made up their
    minds in stopping the Pebble Mine so early in the process? And
    how much faith can you have in the objectivity of the EPA to
    evaluate the mine?
        Mr. Collier. Well, I don't any longer have any such faith,
    Congressman. I'm no longer surprised by these kinds of emails.
    This is another one that I just saw quite recently, yesterday
    for the first time and--with the release of another committee's
    report. And I'm shocked at the number.
        But let me also remind you, Congressman, that Phil North is
    a guy that was using his private emails to hide, I suspect, the
    most damaging of his emails.
        Mr. Palmer. We've had some issues with private emails. You
    may have heard of them.
        Mr. Collier. Yes, I have. But--so this is what he says when
    he's communicating on the EPA email process. I wonder what
    those others say, Congressman.
        Mr. Palmer. There's another slide I'd like to put up.
        [Slide.]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Here again it's very apparent that they--the playbook is
    already laid out and has less to do with establishing the
    actual science or determining the actual impacts of the project
    or conducting objective analysis and more to do with appealing
    to politics and optics to achieve a certain outcome at the EPA.
    Would you agree with that?
        Mr. Collier. I do agree, Congressman.
        Mr. Palmer. It's almost--I hate to even ask the question,
    but is that the correct way for an agency to make decisions?
        Mr. Collier. Not at all. And also as I said in my opening
    statement, when I was involved in government, these folks
    wouldn't have been around anymore.
        Mr. Palmer. Well, my--Mr. Chairman, if I may before I yield
    back, I'd just like to point out that the topic of this hearing
    is just another example of the EPA working outside acceptable
    parameters, overreaching and in some cases--in this case it
    just appears to be very manipulative of the process to reach a
    predetermined outcome.
        And we've seen it in other areas where the EPA is involved,
    the ozone standards, the Clean Power Plan, the Waters of the
    U.S., and now with Pebble Mine. I just think that at some point
    the EPA has got to be held accountable for actions such as
    this.
        I yield back.
        Chairman Smith. Thank you, Mr. Palmer.
        The gentleman from Georgia, Mr. Loudermilk, is recognized.
        Mr. Loudermilk. Thank you, Mr. Chairman. And it looks like
    I'm the last one between several people flying home.
        I'm just amazed. When I hear of all the questions and the
    testimonies and, quite frankly, the evidence that I've seen,
    this reads more like a novel. We've got predetermined outcomes.
    You testified to potential collusion. Some of those involved in
    the collusion have moved to other countries and will not
    respond to our subpoenas or questions. And, Mr. Chairman, I
    don't know how legal it is for us to do a CODEL down to
    Australia, but if we need to go down there to get some answers,
    you know, I may be willing to volunteer, but----
        Chairman Smith. True.
        Mr. Loudermilk. And of course the using of private emails,
    this--Mr. Collier, as I hear the allegations of collusion,
    that's very troubling, but what's even more troubling is the
    evidence I see. It looks very overwhelming that this has
    happened.
        I would like to show you an email conversation between two
    of the EPA lawyers, Cara Steiner-Riley and Keith Cohen, as well
    as employees Phil North and Rick Parkin, who again I think Phil
    is the one who is now in Australia. And they're discussing
    conversations with Jeff Parker, who is an attorney representing
    the groups that petitioned the EPA to use a preemptive 404(c)
    action. Can we have the slide up?
        [Slide.]

     [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        EPA attorney Cohen writes, number one ``my observation,
    Jeff Parker is talking straight to Rick and Phil regarding a
    matter which EPA is represented by counsel, Cara. I'm sure the
    rules of professional responsibility in Alaska are like they
    are everywhere and that they prohibit Jeff''--prohibit Jeff--
    ``from talking to either Rick or Phil without Cara's consent.
    We are engaged''--we are engaged--``in a potentially adverse
    proceeding with them, the petition, possible litigation. And
    he's a lawyer who's kind of pumping us, me included, for
    information he can use to help his client. It sounds like he's
    talking to Phil about their 404(c) petition, the status of it
    and how to help move it forward. He certainly did so with me.''
        Now, if we could go to the next slide.
        [Slide.]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Cohen sends a followup email and writes, ``I just want to
    clarify. I am not against helping Jeff or his clients''--again,
    Jeff representing those opposed to the mine. ``I am not against
    helping Jeff or his clients or siding with them on the
    substantive issues.'' To me that sounds like predetermined
    outcome, as well as collusion going on.
        Is this some of the collusion that you have referred to?
        Mr. Collier. It is Congressman. When I first saw this
    collection of emails, and there are another four or five----
        Mr. Loudermilk. And I do have another one to go to after
    this.
        Mr. Collier. --I was shocked. It's one thing to say that
    it's improper for a lawyer to be talking to someone else's
    client. That's an ethics rule that anyone who has practiced law
    is familiar with. But it's like they completely missed the
    ball. The ball is you shouldn't be talking to him at all,
    nobody should, not about helping draft the petitions that are
    going to be filed by the native communities, and, God forbid,
    not about help letting him draft the decision memo for the
    regional administrator. They completely missed the ball here.
        And what it means is that they're colluding with
    environmental activists on decisions Region 10 has to make
    appear to be the way the region works.
        Mr. Loudermilk. Let me--because I'm running out of time,
    can we go ahead and go to the next slide here. And this answers
    a question that I asked Secretary Cohen in the first panel.
    Why? Why would you use a private email to conduct business,
    which is totally improper? Why? Would it be to avoid the
    Freedom of Information Act? Could that be why you would do
    something like that? Let's look at this email.
        [Slide.]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        ``Cara, in terms of the record for the decision-making on
    the 404 petitions, are message chains such as this one
    protected from FOIA?'' This is asking are we going to be
    protected from FOIA? I think this clearly gives the reason why
    they're using private emails. ``Should we be concerned with
    that?'' It appears that EPA employees were attempting to
    prevent the release of this series of email communications
    because it would show the inappropriate contact between EPA
    employees and you.
        Would you like to comment? I mean to me when I look at this
    it's clear. It's clear that there was collusion, there was
    predetermined outcome, there was potentially illegal activity,
    definitely improper activity, as Secretary Cohen mentioned
    early, that they used private emails to conduct official
    business, which is against EPA policy. And by their own
    admission, I think it's to keep the American people in the
    dark, and they knew that they were doing wrong.
        Mr. Collier. Congressman, I agree. And let me also remind
    you that Phil North's laptop computer crashed, crashed----
        Mr. Loudermilk. Yes.
        Mr. Collier. --he was using his personal emails and he was
    encrypting thumb drives that he stored documents on.
        Mr. Loudermilk. They quit--need to buy the computers that
    the IRS buys, I guess.
        And so with that, Mr. Chairman, I yield back the balance of
    my time.
        Chairman Smith. Thank you, Mr. Loudermilk.
        We have no other Members who want to ask questions.
        Senator Halford, yes?
        Mr. Halford. Just briefly, I'd like to say that although TU
    has supported me, a number of other organizations in Bristol
    Bay have also supported me, I consult for a lot of them and I
    try to represent them all and work with them all, for them all.
    They are concerned about fairness as well. They have been under
    this cloud for well over a decade. They would like to see some
    resolution. They went to the EPA.
        When I first talked to EPA people, I was talking about
    wetlands things. It had nothing to do with--and I didn't
    understand or know anything about the 404(c) process.
        Chairman Smith. Yes.
        Mr. Halford. So I just wanted to make that clear.
        Chairman Smith. Okay.
        Mr. Halford. The people of Bristol Bay went to EPA. EPA
    didn't come to Alaska to get involved.
        Chairman Smith. Right.
        Mr. Halford. People were concerned.
        Chairman Smith. I just wish they'd followed proper process
    and--anyway, Mr. Collier, anything you want to clarify?
        Mr. Collier. [Nonverbal response.]
        Chairman Smith. Okay. All set. Thank you both for your
    testimony today. It was very, very helpful. And we stand
    adjourned.
        [Whereupon, at 1:32 p.m., the Committee was adjourned.]

                                   Appendix I

                                  ----------

                       Answers to Post-Hearing Questions

                       Answers to Post-Hearing Questions
    Responses by The Hon. William S. Cohen

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Responses by Mr. Charles Scheeler

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Responses by Mr. Tom Collier

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Responses by The Hon. Rick Halford

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                  Appendix II

                                  ----------

                       Additional Material for the Record

                 Report submitted by The Hon. William S. Cohen

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

             Documents submitted by Representative Suzanne Bonamici

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                       Report submitted by Representative
                               Elizabeth H. Esty
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                     Statement submitted by Trout Unlimited

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]