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

                        TO BLOCK THE PEBBLE MINE



                               BEFORE THE

                        HOUSE OF REPRESENTATIVES


                             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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                   HON. LAMAR S. SMITH, Texas, Chair
FRANK D. LUCAS, Oklahoma             EDDIE BERNICE JOHNSON, Texas
    Wisconsin                        DANIEL LIPINSKI, Illinois
DANA ROHRABACHER, California         DONNA F. EDWARDS, Maryland
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
DARIN LaHOOD, Illinois

                            C O N T E N T S

                            November 5, 2015

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


      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 
    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




                       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.


    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:]
    [The prepared statement and slides of Ms. Johnson follows:]
    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 
    We welcome you both, and Secretary Cohen, if you'll begin?



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


    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 
    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 
    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 
    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 
    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 
    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. 
    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, 
    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 
    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 
    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. 
    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.
    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.
    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.
    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 
    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. 
    Mr. Palmer. Thank you, Mr. Chairman, and thank you to the 
    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 
    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 
    Mr. Babin. Yes, sir. Thank you.
    And I'd like to recognize the gentleman from New York, Mr. 
    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 
    Hon. Cohen. I made a public announcement. I had a press 
    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 
    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 
    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 
    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 
    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.
    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,


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



    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 
    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:]
    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 
    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 
    Senator Halford, how do you respond to this? What are your 
    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 
    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 
    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, 
    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 
    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. 
    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 
    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 
    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 
    Chairman Smith. Thank you, Ms. Bonamici.
    The gentleman from Texas, Mr. Weber, is recognized for his 
    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.
    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 
    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 
    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 
    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 
    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 
    There's a slide I would like to have shown.
    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 
    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 
    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 
    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, 
    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.
    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.
    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 
    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 
    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?
    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.
    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 
    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.

    ``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 
    [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


Responses by Mr. Charles Scheeler


Responses by Mr. Tom Collier


Responses by The Hon. Rick Halford


                              Appendix II


                   Additional Material for the Record

             Report submitted by The Hon. William S. Cohen

         Documents submitted by Representative Suzanne Bonamici


                   Report submitted by Representative
                           Elizabeth H. Esty

                 Statement submitted by Trout Unlimited