EPA MINING POLICIES: 

ASSAULT ON APPALACHIAN JOBS—PART I 

(112–29) 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

WATER RESOURCES AND ENVIRONMENT 

OF THE

COMMITTEE ON 

TRANSPORTATION AND 

INFRASTRUCTURE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

MAY 5, 2011 

Printed for the use of the 

Committee on Transportation and Infrastructure 

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EPA MINING POLICIES: 

ASSAULT ON APPALACHIAN JOBS—PART I 

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66–185 PDF 2011

EPA MINING POLICIES: 

ASSAULT ON APPALACHIAN JOBS—PART I 

(112–29) 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

WATER RESOURCES AND ENVIRONMENT 

OF THE

COMMITTEE ON 

TRANSPORTATION AND 

INFRASTRUCTURE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

MAY 5, 2011 

Printed for the use of the 

Committee on Transportation and Infrastructure 

( 

Available online at: http://www.gpo.gov/fdsys/browse/ 

committee.action?chamber=house&committee=transportation 

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE 

JOHN L. MICA, Florida, Chairman 

DON YOUNG, Alaska 

THOMAS E. PETRI, Wisconsin 

HOWARD COBLE, North Carolina 

JOHN J. DUNCAN, JR., Tennessee 

FRANK A. LOBIONDO, New Jersey 

GARY G. MILLER, California 

TIMOTHY V. JOHNSON, Illinois 

SAM GRAVES, Missouri 

BILL SHUSTER, Pennsylvania 

SHELLEY MOORE CAPITO, West Virginia 

JEAN SCHMIDT, Ohio 

CANDICE S. MILLER, Michigan 

DUNCAN HUNTER, California 

ANDY HARRIS, Maryland 

ERIC A. ‘‘RICK’’ CRAWFORD, Arkansas 

JAIME HERRERA BEUTLER, Washington 

FRANK C. GUINTA, New Hampshire 

RANDY HULTGREN, Illinois 

LOU BARLETTA, Pennsylvania 

CHIP CRAVAACK, Minnesota 

BLAKE FARENTHOLD, Texas 

LARRY BUCSHON, Indiana 

BILLY LONG, Missouri 

BOB GIBBS, Ohio 

PATRICK MEEHAN, Pennsylvania 

RICHARD L. HANNA, New York 

STEPHEN LEE FINCHER, Tennessee 

JEFFREY M. LANDRY, Louisiana 

STEVE SOUTHERLAND II, Florida 

JEFF DENHAM, California 

JAMES LANKFORD, Oklahoma 

VACANCY 

NICK J. RAHALL II, West Virginia 

PETER A. DEFAZIO, Oregon 

JERRY F. COSTELLO, Illinois 

ELEANOR HOLMES NORTON, District of 

Columbia 

JERROLD NADLER, New York 

CORRINE BROWN, Florida 

BOB FILNER, California 

EDDIE BERNICE JOHNSON, Texas 

ELIJAH E. CUMMINGS, Maryland 

LEONARD L. BOSWELL, Iowa 

TIM HOLDEN, Pennsylvania 

RICK LARSEN, Washington 

MICHAEL E. CAPUANO, Massachusetts 

TIMOTHY H. BISHOP, New York 

MICHAEL H. MICHAUD, Maine 

RUSS CARNAHAN, Missouri 

GRACE F. NAPOLITANO, California 

DANIEL LIPINSKI, Illinois 

MAZIE K. HIRONO, Hawaii 

JASON ALTMIRE, Pennsylvania 

TIMOTHY J. WALZ, Minnesota 

HEATH SHULER, North Carolina 

STEVE COHEN, Tennessee 

LAURA RICHARDSON, California 

ALBIO SIRES, New Jersey 

DONNA F. EDWARDS, Maryland 

(II) 

SUBCOMMITTEE ON WATER RESOURCES AND ENVIRONMENT

BOB GIBBS, Ohio, Chairman 

DON YOUNG, Alaska 

JOHN J. DUNCAN, JR., Tennessee 

GARY G. MILLER, California 

TIMOTHY V. JOHNSON, Illinois 

BILL SHUSTER, Pennsylvania 

SHELLEY MOORE CAPITO, West Virginia 

CANDICE S. MILLER, Michigan 

DUNCAN HUNTER, California 

ANDY HARRIS, Maryland 

ERIC A. ‘‘RICK’’ CRAWFORD, Arkansas 

JAIME HERRERA BEUTLER, Washington, 

Vice Chair 

CHIP CRAVAACK, Minnesota 

LARRY BUCSHON, Indiana 

JEFFREY M. LANDRY, Louisiana 

JEFF DENHAM, California 

JAMES LANKFORD, Oklahoma 

JOHN L. MICA, Florida (Ex Officio) 

VACANCY 

TIMOTHY H. BISHOP, New York 

JERRY F. COSTELLO, Illinois 

ELEANOR HOLMES NORTON, District of 

Columbia 

RUSS CARNAHAN, Missouri 

DONNA F. EDWARDS, Maryland 

CORRINE BROWN, Florida 

BOB FILNER, California 

EDDIE BERNICE JOHNSON, Texas 

MICHAEL E. CAPUANO, Massachusetts 

GRACE F. NAPOLITANO, California 

JASON ALTMIRE, Pennsylvania 

STEVE COHEN, Tennessee 

LAURA RICHARDSON, California 

MAZIE K. HIRONO, Hawaii 

NICK J. RAHALL II, West Virginia 

(Ex Officio) 

(III) 

(V) 

CONTENTS Page 

Summary of Subject Matter .................................................................................... vi 

TESTIMONY 

Gardner, Michael B., General Counsel, Oxford Resource Partners, LP .............. 9 

Marks, Teresa, Director, State of Arkansas Department of Environmental 

Quality, and Secretary-Treasurer, Environmental Council of the States 

(ECOS) .................................................................................................................. 9 

Peters, Leonard K., Secretary, State of Kentucky Energy and Environment 

Cabinet .................................................................................................................. 9 

Quinn, Hal, President and CEO, National Mining Association ........................... 9 

PREPARED STATEMENTS SUBMITTED BY WITNESSES 

Gardner, Michael B., and Exhibits A–N ................................................................ 35 

Marks, Teresa .......................................................................................................... 163 

Peters, Leonard K. ................................................................................................... 167 

Quinn, Hal ................................................................................................................ 172 

SUBMISSIONS FOR THE RECORD 

Quinn, Hal, President and CEO, National Mining Association: 

Photographs of reclaimed land ............................................................................25–27 

GEI Consultants, Inc., ‘‘Final Report—Technical Review: A Field-based 

Aquatic Life Benchmark for Conductivity in Central Appalachian 

Streams,’’ submitted to National Mining Association, September 2010, 

Project 091380 .................................................................................................. 182 

GEI Consultants, Inc., ‘‘Final Report—Variability of Benthic Invertebrate 

Communities of Headwater Streams in Southern West Virginia,’’ submitted to National Mining Association, March 2011, Project 091380 .......... 262 

ADDITIONS TO THE RECORD 

Peters, Leonard K., Secretary, State of Kentucky Energy and Environment 

Cabinet: 

Letter regarding permit delays to Nancy Stoner, Acting Assistant Administrator, Office of Water, Environmental Protection Agency ....................... 384, 385 

‘‘EPA Specific Permit Objection—CY2000 to Present’’—Spreadsheet showing 

EPA objections to Kentucky permits .............................................................. 389 

ECOS, ‘‘Objection to U.S. Environmental Protection Agency’s Imposition 

of Interim Guidance, Interim Rules, Draft Policy and Reinterpretation 

Policy’’ ................................................................................................................ 393 

National Mining Association Memorandum Opinion ........................................ 395 

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(1) 

EPA MINING POLICIES: 

ASSAULT ON APPALACHIAN JOBS—PART I 

THURSDAY, MAY 5, 2011 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON WATER RESOURCES

AND THE ENVIRONMENT, COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE, Washington, DC. 

The subcommittee met, pursuant to notice, at 10:03 a.m., in 

Room 2167, Rayburn House Office Building, Hon. Bob Gibbs 

(Chairman of the subcommittee) presiding. 

Mr. GIBBS. The committee will come to order, Water Resources 

and Environment Subcommittee of Transportation and Infrastructure. Welcome. 

I am going to start. My Ranking Member, Mr. Bishop, has to 

leave, and he wants to do his quick opening statement. So proceed. 

Mr. BISHOP. Thank you, Mr. Chairman. I thank you very much 

for indulging my schedule. 

As a representative of Long Island, I am not faced with the dayto-day implications of surface coal mining. However, I have quickly 

learned that few issues have energized or engendered a more passionate response from industry, from mine workers, and from everyday citizens than recent actions by the current administration 

to provide oversight of surface coal mining operations. 

Mr. Chairman, your decision to hold this series of hearings provides an opportunity for our Members to learn more about this important issue. It also highlights the complex balance that policymakers face in providing well-paying jobs for American families, 

and ensuring the continued growth and economic health of our 

communities, and in protecting our natural environment for current and future generations. In my view, this balance is often times 

most evident in relation to providing safe and reliable sources of 

energy for our Nation. 

We recognize that energy generation is an essential element of 

modern society, and is critical to growing the U.S. economy and 

protecting American jobs. However, we are also coming to recognize 

that energy generation itself comes with a significant cost. As the 

experiences of the past few years have demonstrated, the goals of 

domestic energy generation and protection of the environment are 

not mutually exclusive. 

However, the reality is that the pendulum cannot sway too far 

to either side. I am hopeful that these hearings start the debate on 

reaching that careful balance point, and I yield back the balance 

of my time with my gratitude for your indulgence of my schedule. 

2 

Mr. GIBBS. Thank you. I have an opening statement, but first of 

all I want to welcome everybody again to this hearing, ‘‘EPA Mining Policies,’’ a discussion about assault on jobs. And we will have 

a part two of the hearing next week. 

Coal mining is an important aspect of the Nation’s mining industry and is woven into the fabric of Appalachian life. Today coal is 

mined in 26 States. While Wyoming is the leading coal-producing 

State, it is closely followed by West Virginia and Kentucky. The 

United States consumes 1.1 billion tons of coal every year. Thirtythree percent of the coal—approximately 390 million tons annually—comes from the Appalachian region of the United States, and 

50 percent of the power in the Nation comes from coal as a fuel 

source. 

Coal is an abundant and domestic source of energy. Its use does 

not subject us to the whims of a foreign cartel, nor does it tend to 

thrust us into international conflicts. In addition, using domestic 

coal creates American jobs. 

While it is important to continue our research and development 

into new sources of energy, it is clear that coal will and must remain a major source of energy well into the future. And therefore, 

it is important that we keep coal as a safe and inexpensive alternative to other energy options. 

For this reason, I am concerned about the Environmental Protection Agency’s recent policy decisions regarding coal mining activities. It would appear that the objective of the Agency is to make 

coal mining so expensive that alternative sources of energy will become more attractive. The effect of such a policy is to significantly 

drive up the cost of energy. Since energy cost is a factor in all aspects of our economy, this policy will act like an anchor that drags 

down our short-term economic recovery and our long-term economic 

global competitiveness. 

While Congress has passed no law amending the Clean Water 

Act, and the Environmental Protection Agency has promulgated 

new regulations changing the Clean Water Act, EPA has issued 

draft and interim guidance and—substantively changes how the 

Clean Water Act applies to surface mining, and is using it as de 

facto law to unlawfully delay or kill Clean Water Act permits for 

surface mining operations in Appalachia. 

In doing this, I am extremely concerned how the administration 

is attempting to short-circuit the process for changing substantive 

Agency policy under the Clean Water Act without following the 

proper, transparent rulemaking process that is dictated by the Administrative Procedure Act. By ignoring the Administrative Procedure Act, EPA is changing the Clean Water Act and its implementing regulations. EPA is taking these actions with little regard 

to economic consequences, with little regard to national security, 

and most importantly, with little regard to the law. 

Much of the Clean Water Act is a delegated program. States that 

have received approval to implement Clean Water Act programs 

have demonstrated to the Environmental Protection Agency that 

they have adopted laws, regulations, and policies at least as stringent as the Federal laws, regulations, and policies, and these 

States have developed and demonstrated the capability to maintain 

existing and assume new responsibilities under the Act. 

3 

Congress, in the Administrative Procedures Act and environment 

statutes, established a formal administrative rulemaking process 

that provides a mechanism for public comment, proposing amendments, or allowing States to object and provide its standards for judicial review of the agency actions. 

Section 404 of the Clean Water Act assigns the EPA to two tasks 

in regard to fill material. First, EPA must develop the guidelines 

in conjunction with the Corps of Engineers in determining whether 

to permit a discharge of fill material. Second, the Act confers EPA 

the authority, under specified procedures, to prevent the Corps 

from authorizing certain disposal sites. EPA guides the Corps’ review of the environmental effects of the proposed disposal sites. For 

example, no permit shall be issued if it causes or contributes to any 

water quality standard violations. 

EPA may comment on the Corps’ application of the Section 404 

guidelines to particular permit applications during the interagency 

review period required for each permit. In addition, EPA has limited authority under Section 404 to prevent the Corps from authorizing a particular disposal site. To exercise that authority, EPA 

must determine, after notice and an opportunity for a public hearing, that certain unacceptable environmental effects on municipal 

water supplies, shellfish beds and fishery areas, wildlife, or recreation areas would result. But, EPA does not have the authority to 

revoke an already issued Section 404 permit. 

Even though the EPA is very much involved in the permit application process along with the State, the Corps of Engineers, and 

other Federal agencies, the EPA is now revoking permits that have 

already been issued. That is illegal. That is not legal. 

EPA is clearly ignoring the Clean Water Act and other laws as 

it relates to surface mining activities in Appalachia. EPA’s continued imposition of interim guidance, interim rules, draft policy or 

reinterpretation of policy has led to uncertainty regarding actions 

taken by the State and Federal regulatory bodies. 

In addition, it is simply not a responsible way for government to 

act. This regulatory overreach should be considered a property 

rights issue. What does it really mean to get a permit? Shouldn’t 

it come with some certainty that the activity can move forward 

unencumbered, but within the bounds of the permit, particularly 

those activities on private lands? 

This no longer seems to be the case and it is going to have a stifling effect on not just mining operations in Appalachia, but on economic development projects nationwide. While the President and 

his administration talks a good game about job creation and removing unnecessary governmental burdens on business, in reality the 

Environmental Protection Agency is crippling economic growth 

with little or no benefit to the environment. 

I welcome our witnesses to the hearing today, and I look forward 

to hearing from each of you in the next coming minutes. 

But at this time I want to recognize the Ranking Member of the 

T&I Committee, Congressman Rahall. 

Mr. RAHALL. Thank you, Chairman Gibbs. I appreciate very 

much your holding this hearing, and I welcome our witnesses 

today, and extend my appreciation for their participation. 

4 

You know, the subject of this hearing is one of great interest to 

the Appalachian region. But it is of acute concern to the people in 

the district that I am honored to represent. This hearing is intended to delve into a matter that we, in southern West Virginia, 

have been struggling with for decades, for decades: The delicate 

balance between producing domestic energy while preserving our 

national resources and the health and safety of our coal field residents. 

In fact, I would wager to say that there is nowhere in this Nation—nowhere in this Nation—where our citizens know better the 

difficulty and the tensions entailed in trying to strike that balance 

than in the communities I represent. 

The people in southern West Virginia love—love—the natural 

beauty of our land. We want clean water, clean air. We want our 

children and grandchildren to live and breathe and grow up in 

clean environments. But we want jobs, as well. We want jobs for 

our children and grandchildren, as well. 

We do not condone coal companies’ failure to ensure the safety 

of their miners and the well-being of the communities in which 

they operate. That is simply wrong. But it is also wrong for a Federal agency to circumvent the law and treat guidance as binding 

policy, particularly when that policy targets only one industry in 

only one region of the country. And I know you referred to that, 

Mr. Chairman, in your comments. 

As I have said before, the EPA has a legitimate role to play in 

the Clean Water Act permitting process. And early on in this administration, many had high hopes that the EPA would provide the 

clarity and the certainty that coal mining constituencies throughout Appalachia have been asking for, pleading for, for many years. 

Unfortunately, we have been disappointed, as a result of the guidance that the EPA issued in April of last year, guidance with farreaching consequences that was made effective immediately, without the opportunity for the public to comment. 

Through that guidance, the EPA is not only dictating the Army 

Corps of Engineers 404 permitting process, but it is also intervening in State-issued 402 discharge permits, bypassing existing 

law and longstanding regulation in substituting a wholly new, 

barely studied, entirely confusing criterion for determining water 

quality, along with new timelines for review and approval of petitions. Instead of offering that clarity and certainty, the regime set 

forth in that guidance has thrown the entire permitting process 

throughout the region into utter turmoil. 

Nobody can say with any certainty what will gain a mine an approved permit, and what will earn one a refusal. Or, still, nobody 

can now say what it will take to keep an existing permit because 

the Agency has used criteria in that guidance to veto a permit that 

was granted years before the guidance document was ever written. 

As a result, coal miners in my district are consistently concerned 

about losing their jobs, and communities fear that they will not 

generate sufficient revenue to support schools, to keep the lights 

on, and to build basic infrastructure and provide basic services 

such as law enforcement. 

As well, the work to shore up the long-struggling economy of Appalachia and ensure that our children and grandchildren can have 

5 

a future there is further hindered because the entire region is 

being subjected to inequitable treatment under Federal law, in 

comparison to the rest of the country. It is, after all, the Federal 

Water Pollution Control Act. 

Unfortunately, the effect of all this is that we are not finding 

common ground. Instead, the parties on all sides of the issue have 

dug their heels in even more deeply. So, I appreciate today’s hearing, I appreciate the testimony that we are going to hear, and 

which I have already reviewed. And the next week I hope—it is my 

fervent hope that we may help to inform this government and 

guide this Nation in our long-running endeavor to reach that delicate balance between energy development and the protection of our 

natural resources. 

Thank you, Mr. Chairman. 

Mr. GIBBS. Thank you. 

Mr. Duncan? 

Mr. DUNCAN. Well, thank you very much, Mr. Chairman, and 

thank you for calling what I consider to be a very, very important 

hearing. And I appreciate the statement that you have made and 

that the Ranking Member just gave. 

I am in my 23rd year in the Congress, and I have never heard 

as many complaints about any agency as I have heard about the 

Environmental Protection Agency over the past couple of years. It 

seems to me that that Agency has gone power-mad. And in any 

heavily regulated or over-regulated industry, what happens? First 

the small businesses are run out. Then the medium-sized businesses. And these industries end up in the hands of a few big giants. 

And so, extremely big government, slowly, over the years, becomes the best thing that ever happened to extremely big business. 

But it sure hurts the little guys and the medium-sized guys. 

And then I have noticed over the years that almost all environmental radicals come from very wealthy or very upper-income families. And perhaps they don’t realize how much they hurt the poor 

and the lower income and the working people by destroying jobs 

and driving up prices. But that is what they do, and that is what 

they have done in so many instances, in so many industries over 

the years. And I have seen it. These groups, they don’t want you 

to drill for any oil, they don’t want you to dig for any coal, they 

don’t want you to cut any trees. And they drive up these prices. 

I mean, for instance, President Clinton vetoed the expansion of 

drilling for oil in Alaska in the mid-1990s, which would have meant 

a million barrels of oil more a day coming down to this country, 

and gas prices wouldn’t be anywhere close to where they are today 

if that hadn’t happened. And yet, we have a Secretary of Energy 

in this administration who says we need to be paying the same 

price for oil as they pay in Europe, $8 or $9 a gallon. And, obviously, the goal is to force people to drive less. 

And the same thing, as you noted, Mr. Chairman, is happening 

in the coal industry. Apparently, environmental radicals want to 

destroy the coal industry so that people use less coal. But the 

United States has been referred to as the Saudi Arabia of coal. 

They oppose nuclear power, they oppose coal, they oppose oil, they 

oppose every kind of energy. And the only thing they really help, 

6 

they help foreign energy producers. But they hurt our people, especially the lower and middle-income people. 

I want to tell you what has happened in east Tennessee. I was 

told several years ago that there were 157 small coal companies in 

east Tennessee. Now there are none. We used to drill—we used to 

produce about 12 million tons a year in coal. Now about 2 million. 

We opened up, at that time, in—around the late 1970s we opened 

up an office of surface mining in Knoxville. And very quickly, within just a few years, all the small coal companies and all the medium-sized companies were run out of business. Once again, big 

government had helped the big giants. But they had hurt all the 

little people. 

And what does this do? It drives up the utility prices. 

Everybody’s utility prices are higher today because of this. And, 

once again, going back to President Clinton, he locked up the largest low-sulfur coal deposit in the world after the Ryati brothers in 

Indonesia became his biggest contributors. But, once again, it hurt 

the—there are a lot of people out there who are having trouble paying their utility bills now because of that action, and because we 

put so many limitations on coal production. 

I chaired this subcommittee for 6 years, and I want clean air and 

clean water as much as anybody. But you have to have a little balance and common sense in these areas, and you cannot always give 

in to the far left environmental radicals. And if we don’t wake up 

and realize what is happening in this country, we are going to destroy this country, economically, and we are going to send even 

more jobs to other countries. We are going to help the foreign energy producers, like I said earlier. 

And people, all these college students getting out now wonder 

why they can’t find jobs and have to work as waiters or waitresses 

in restaurants. And the left-wing environmental movement is a 

large part of that cause. 

Thank you, Mr. Chairman. 

Mr. GIBBS. Thank you. Mr. Crawford, you have an opening statement? 

Mr. CRAWFORD. Yes, I do. Thank you, Mr. Chairman. I want to 

welcome all the witnesses today. I appreciate your time and your 

testimony. One in particular I want to say welcome, as a fellow Arkansan, to Ms. Marks. And I have the pleasure of introducing Teresa Marks today, the director of Arkansas Department of Environmental Quality, and the secretary/treasurer of the Environmental 

Council of the States. 

As Arkansas is the natural State, Ms. Marks is responsible for 

protecting Arkansas’ air, water, and land from the threat of pollution. And so we welcome her leadership before the committee 

today. Thank you. 

After graduating from the University of Arkansas at Monticello, 

Ms. Marks became a high school teacher where she taught secondary level students in geography, history, and civics. She returned to the classroom the following year, graduating from the 

Bowen School of Law at the University of Arkansas at Little Rock 

with a juris doctorate degree. 

In 1995 Ms. Marks began serving the State in the office of attorney general, a job that lasted almost 12 years. Eventually Ms. 

7 

Marks was named Arkansas attorney general’s public protection 

department deputy attorney general, where she supervised several 

lawyers and support staff in representing the interests of consumers and State agencies in consumer protection, antitrust, utilities, and environmental matters. These experiences make her wellsuited to testify today regarding the EPA’s practice of combining 

interim guidance with objection authority. 

EPA actions have the practical effect of ensuring that no permits 

are issued and none are reviewable, because they only provide interim guidance. The EPA should finalize their guidance so that 

courts are able to review whether the final guidance complies with 

the Administrative Procedures Act. 

Once again, Ms. Marks, I thank you for your leadership, and I 

look forward to your testimony today. I yield back. 

Mr. GIBBS. Thank you. Mr. Cravaack? 

Mr. CRAVAACK. Thank you, Chairman Gibbs and Ranking Member Rahall for holding these important hearings today on how they 

affect EPA as not only mining jobs in Appalachia, but also how it 

affects the mining operations in the mines of Minnesota’s iron 

range. 

I would also like to welcome our witnesses, and thank you very 

much for taking your time out of your busy schedules to be here 

today to help educate us on the best way to proceed. And I look 

forward to hearing your testimony regarding the new procedures 

the EPA has developed for permitting Appalachian coal mining operations. 

As we all well know, about 50 percent of our Nation’s power 

comes from coal. And 3 percent of that coal comes from the Appalachian region. Coal mining provides thousands of jobs and supports numerous communities throughout the region, and is the essential core of our energy production. 

I am concerned at some of the steps taken recently by the EPA 

to expand its oversight and to impose increased burdensome regulations on the coal mining industry. These new rules seem to bypass the established protocols, making the permitting process more 

complicated and more time-consuming. 

I find the EPA’s new regulations and ‘‘guidelines’’ very troubling, 

and I worry about their unprecedented overreach and the effect 

that they are going to have on mining jobs and mining communities. 

I look forward to hearing from your testimony today from the 

witnesses on this current situation of the coal mining industry, and 

their thoughts on what steps can be taken to protect thousands of 

jobs, harvest our own natural resources smartly, and keep energy 

costs low. 

Thank you very much, and I look forward to hearing from your 

testimony. And I yield back, Mr. Chairman. 

Mr. GIBBS. Thank you. Mrs. Capito? 

Mrs. CAPITO. Thank you, Mr. Chairman. Thank you and the 

Ranking Member Rahall, who—I am a fellow citizen of the State 

of West Virginia, and we are—we have been blessed to be one of 

the largest producers of coal, and also natural gas. 

We consider that a gift in West Virginia, and we want to be able 

to weave the delicate balance that Congressman Rahall talked 

8 

about between the economy and the environment. Recently it has 

been difficult for us to watch as, we feel, the administration has 

targeted our cheapest and most abundant resource, and that is our 

coal. We just feel that this is putting us on a path of higher energy 

prices at a time we can ill afford this. 

There is so much uncertainty and concern throughout the State 

of West Virginia—those who are involved directly in coal mining. 

But whether it is the local gas station or restaurant, any kind of 

retailer, we feel this. It just tremors all through every economic 

part of our State. 

So, as we are attempting to get our economy moving in the right 

direction, I believe we shouldn’t be placing undue burdens on our 

manufacturers who are depending now on our reasonably priced 

energy. Simply put, coal is and must be a part of our Nation’s energy portfolio. 

The title of the hearing that we are going to have today is ‘‘EPA 

Mining Policies: Assault on Appalachian Jobs.’’ I have explained I 

live in Appalachia, and am a proud daughter of our State. But in 

several—in a meeting that I had with the EPA, point blank, that 

was the comment that was made to me, that the decisions that we 

make, we make regardless of the impact it has on jobs and the 

economy. And that was a pretty startling statement, especially in 

the economic times we are in now, but in any time, from an administration official. 

And so, I think it is time for us, as Members of Congress, to take 

back the issue of how we are going to weave the balance between 

the economy and the environment, do it in a smart way, a smart 

way for our future, but a way that eases the anxieties that we see 

every day in our State, and that I know a lot of other States across 

the Nation are feeling. 

Thank you. I yield back. Thank you, Chairman. 

Mr. GIBBS. Thank you. Just for a point of information, I am told 

they are going to call votes, two votes here, in a little bit. And we 

are watching here, we will just have to break and have to come 

back. So I just want to give you—we are trying to move forward 

as much as we can, but we will have to recess for a short period 

of time. 

At this time I want to introduce our panelists. We have a doctor, 

Leonard Peters, who is the secretary of the State of Kentucky energy and environment cabinet, and Congressman Crawford already 

introduced Ms. Marks. And we also have Mr. Harold Quinn, he is 

president of the National Mining Association, and Mr. Michael 

Gardner, who is the general counsel for Oxford Resources. 

At this time, Dr. Peters, we look forward to your testimony. Welcome. 

9 

TESTIMONY OF LEONARD K. PETERS, SECRETARY, STATE OF 

KENTUCKY ENERGY AND ENVIRONMENT CABINET; TERESA 

MARKS, DIRECTOR, STATE OF ARKANSAS DEPARTMENT OF 

ENVIRONMENTAL QUALITY, AND SECRETARY-TREASURER, 

ENVIRONMENTAL COUNCIL OF THE STATES (ECOS); HAL 

QUINN, PRESIDENT AND CEO, NATIONAL MINING ASSOCIATION; AND MICHAEL B. GARDNER, GENERAL COUNSEL, OXFORD RESOURCE PARTNERS, LP 

Mr. PETERS. Thank you, Mr. Chairman. members of the committee, thank you for the opportunity to testify today. I am secretary of Kentucky’s Energy and Environment Cabinet, and we are 

the State’s executive branch agency that has been delegated, by the 

Federal Government, primacy over environmental protection and 

coal mine permitting programs. The cabinet’s mission also includes 

development of the State’s energy resources in an environmentally 

responsible manner, including implementing programs for energy 

efficiency and renewable energy. I will provide a brief overview of 

my written comments. 

In October of last year, the Commonwealth of Kentucky intervened in support of the Kentucky Coal Association in its lawsuit 

against the U.S. Environmental Protection Agency. We took this 

very unusual step because we strongly believe that EPA’s actions 

since April 1, 2010, when it issued its interim final guidance, are 

arbitrary, requiring Kentucky’s regulators to adhere to permitting 

conditions that have not been promulgated in line with the Federal 

Administrative Procedures Act. 

Specifically, in our complaint the Commonwealth of Kentucky 

contends that, not withstanding the State’s delegation under the 

Clean Water Act in developing water quality standards, and without promulgating a standard to require notice and comment procedures, EPA has, since April 1, 2010, unlawfully reviewed and objected to 402 permits proposed for coal mining operations in 6 Appalachian States, including Kentucky, for compliance with an 

unpromulgated water quality standard for conductivity. 

In fact, since EPA issued its interim guidance last April it has 

objected to permits that staff in my cabinet drafted in accordance 

to standards that EPA had, prior to April 1, 2010, supported. The 

interim objection letters reference the April 1 guidance. From a 

regulatory viewpoint, we are concerned that interim guidance is 

not a legally defensible policy for the States or for EPA, yet it is 

still being used as a basis to object to State-delegated permitting 

actions. 

Now, as someone responsible for overseeing the State’s environmental protection programs, I support regulations necessary to protect our land, air, and water resources. However, regulators and 

the regulated community need certainty in the process. In Kentucky, coal mining employs 18,000 people, brings in more than $3.5 

billion from out of State each year, and pays more than $1 billion 

in direct wages. Kentucky is the third largest coal producing State. 

And our low electricity rates, based on our primary production of 

electricity from coal, allow us to produce a large share of the Nation’s stainless steel, aluminum, automobiles, and other manufactured goods. It is for these reasons that Kentucky’s governor, Steve 

Beshear, reminds us that coal is not a local issue, it is not a State 

10 

issue, it is a national issue. And the importance of coal to our Nation’s economy and security cannot be overstated. 

There are many discussions regarding states’ rights on this and 

other regulatory issues. Governor Beshear and I recognize and respect that EPA has a responsibility and obligation to revise and update regulations and program requirements, as necessary, to protect human health and the environment. 

However, EPA should not create new regulatory requirements 

that have not undergone the appropriate congressional or rulemaking processes. As it is, today EPA is preventing, through its objection process, the delegated States from issuing permits with no 

recourse for the States or the regulated community. There is no recourse because, currently, an EPA permit objection is not deemed 

to be a final Agency determination subject to potential judicial review by an affected or interested party. 

Additionally, EPA is not bound by specific timeframes for making 

a final permit determination, and becomes the permitting authority 

for a permit action, instead of the delegated State. It is troubling 

that, absent a timeframe to make a final permit determination, 

whether that is permit issuance or permit denial, there is currently 

no obligation upon EPA to take any final action, leaving both the 

State and the regulated community in a prolonged state of uncertainty. This uncertainty costs jobs and affects the livelihoods of 

thousands of families in Appalachia. 

I will conclude by saying that we have not been silent on the 

issue with EPA, nor have we been in a combative relationship. As 

I mentioned, we respect their mission and authority to establish 

Federal rules to ensure consistency and fairness. My staff and I 

have been in ongoing discussions with our regional EPA administrator—that is in region 4—attempting to resolve the issues to the 

satisfaction of all parties: the EPA, the State, the regulated community, and the citizens of Kentucky. 

Unfortunately, I am not highly optimistic that such a resolution 

will occur, especially in light of a recent meeting with region 4 

EPA. Indications are that these earnest discussions to arrive at 

resolution are not being accepted by EPA headquarters. I am disappointed that EPA Administrator Jackson can be so dismissive of 

such an important issue. 

Thank you again for the opportunity to provide these comments. 

Ms. MARKS. Thank you. Thank you, Mr. Chairman and Mr. 

Ranking Member, for inviting me here today. And thank you, Congressman Crawford, for the introduction. I am Teresa Marks. I am 

the director of the Arkansas Department of Environmental Quality 

and an officer of the Environmental Council of the States, or 

ECOS, for which I am testifying today. ECOS is the membership 

organization of all the State environmental agency leaders. 

The reason I am testifying is to let this committee know that the 

States and ECOS are concerned about the manner in which the 

U.S. Environmental Protection Agency is combining interim guidance with its objection authority powers. This combination creates 

a situation in which EPA can require a State to insert virtually any 

provision EPA wants into a class of permits without the benefits 

of the due process procedures of the Administrative Procedures Act, 

such as public comment and judicial review. This practice is unwelVerDate Aug 31 2005 13:46 Nov 09, 2011 Jkt 000000 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 P:\HEARINGS\112\WR\5-5-11~1\66185.TXT JEAN
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come and is potentially dangerous. It obviously thwarts the cooperative procedures that the APA was designed to foster. It is not a 

transparent way to create public policy. 

States issue the vast majority of water discharge permits. These 

permits must comply with Federal and State law and rules. EPA 

then reviews these permits, and the Clean Water Act allows EPA 

to object to them for cause. We believe this power was rarely exercised until recently. 

Last year, EPA issued an interim guidance to its regional administrators, instructing them to object to permits that did not follow 

the steps indicated within the guidance, although the guidance 

itself stated that it was not legally binding. EPA is not required to 

publish guidance, nor is it required to accept public comments on 

such guidance. EPA can issue interim guidance and expect full implementation in the permitting process, in spite of the fact that 

there is disclaimer language issued with the guidance, or that the 

guidance has not been finalized. 

Guidance, by the way, is seldom reviewed by the Office of Management and Budget, and so is usually issued directly from the 

Agency without further executive oversight. ECOS has no general 

concern about the use of guidance, or objection authority in principle. 

But there is a difference between issuing interpretive, as opposed 

to substantive guidance. EPA’s use of interim guidance, coupled 

with objection authority to create substantive and binding changes 

in the permitting process amounts to final agency action, and warrants the due process protections of the Administrative Procedures 

Act. ECOS does not believe that EPA has ever attempted to require 

States to implement interim guidance by coupling it with objection 

authority until recently. 

Finally, there is another matter of how courts treat any Federal 

action that is not final. Courts routinely decline to review cases 

when requested to rule on a matter which does not involve final 

agency action. When EPA issues an interim guidance it follows 

that a court would not be inclined to review it, since it would not, 

obviously, be a final agency action. 

Similarly, courts refuse to rule on permits that have not been 

issued. This could create a situation in which EPA could object to 

a State-issued permit, then fail to make a permitting decision 

itself, or fail to make one in a timely manner, resulting in the permit applicant being stymied for months, or perhaps years, in obtaining a permit decision. Fortunately, in the case under discussion 

today, the court has indicated that EPA’s actions could amount to 

final agency action, and therefore, reviewable by the court. 

We hope that the committee can see why the issue of interim 

guidance, coupled with the use of objection authority, is an unfair 

and indefensible position in which to place the States and the regulated community, and must not be allowed to continue. 

Thank you very much. 

Mr. GIBBS. There is a call to vote, but we have got 131⁄2 minutes, 

so we will—you testify, then we will recess, then we will come back 

for Mr. Gardner. 

So go ahead, Mr. Quinn. Welcome. 

12 

Mr. QUINN. Thank you. Good morning, Mr. Chairman, Ranking 

Member, Congressman Rahall, members of the subcommittee. I 

want to thank the subcommittee for holding this hearing to exam 

policies that continue to choke off job-creating opportunities in the 

Appalachian coal fields. 

Over 2 years ago, when the Nation was in the throws of a deep 

recession, and losing about 600,000 jobs a month, EPA embarked 

upon a series of actions that prevented coal companies from obtaining permits necessary to expand or start mining operations, 

projects that would preserve and create thousands of highway jobs 

in Appalachia. 

At the beginning of 2009 a backlog approaching 150 Clean Water 

Act 404 permit applications had developed, while litigation over the 

Corps’ permitting process was being resolved. On February 13, 

2009, the fourth circuit court of appeals issued a decision upholding 

the Corps’ processing for permitting coal mines, thereby removing 

the obstacles to clearing the backlog. Shortly thereafter, EPA announced that it wanted to revisit some of the applications. Many 

had been pending for over a year. These are permits EPA already 

had ample time to review and raise any concerns to the Corps. 

In response to our reaction that it appeared EPA was instituting 

a permit moratorium, the Agency issued a statement that was 

‘‘EPA is not halting, holding, or placing a moratorium on any of the 

mining permit applications,’’ plain and simple. As it turns out, EPA 

had already requested the Corps to develop a list of over 100 permits that were ripe for a decision by the Corps. And then, EPA unleashed a series of new policies in the form of memoranda and 

guidelines, altering the process, rules, and standards for issuing 

coal mine permits. 

EPA crafted a process that did not resemble anything in the law 

or the regulations. EPA commandeered the entire 404 process from 

the beginning to the end by displacing the Corps of Engineers. The 

new process allows the agencies to ignore all timeframes and the 

regulations for reaching decisions. New process allows EPA to run 

roughshod over the States that the Clean Water Act empowers to 

establish and apply water quality standards for waters within their 

borders. 

The centerpiece of this policy was a so-called enhanced coordinating process, outlined in a memorandum issued on June 11, 

2009. By the time the permit backlog—by this time, the permit 

backlog had grown to about 230 permit applications. How well did 

the so-called enhanced coordination process work? Well, well over 

a month later, the Army Corps of Engineers reported that EPA had 

yet to provide them with the criteria EPA was using to review the 

permits. In fact, detailed guidance was not issued until almost a 

year later, April 2010. 

A report by the Government Accountability Office requested by 

the Ranking Member, Congressman Rahall, found the following: 

‘‘EPA and the Corps did not begin meeting with permit applicants 

until January and February of 2010, more than 6 months after 

they created this new, enhanced process. EPA did not document 

the concerns it presented to the applicants. EPA and the Corps 

often met separately with the applicants, not together. EPA did not 

send to these meetings officials authorized to make any decisions.’’ 

13 

And finally, ‘‘While the process imposes 60-day time period for reviewing the permits, the 60-day period did not begin until EPA 

said so. And even then, EPA was free to suspend or extend it.’’ This 

hardly resembles a coordinated process, let alone an enhanced one, 

or one that we were told would lead to expeditious review of these 

permits. 

Companies have been worn down. Today, far more permits have 

been withdrawn by companies than permits issued. And most permits are still languishing in a regulatory limbo. Permits delayed 

are jobs denied. If the purpose of all this policy is to discourage 

new investments and job-creating opportunities, well, EPA can declare a mission accomplished. 

Let me close by saying that when you talk to coal miners about 

mining coal, you hear in their voices the great pride they take in 

what they do and how well they do it. They often speak about their 

families, their country, and jobs. But the jobs they speak about 

first are not their own jobs. Rather, they typically talk about all 

the other jobs they know depend upon them doing their job well. 

Today I often get questions from them about why their government 

at times seems to put so much effort into working against them, 

rather than supporting them in what they do for their country. I 

wish I had a good answer; they certainly deserve one. 

Thank you very much. 

Mr. GIBBS. Yes, we are going to have to recess to go vote for two 

votes. There is still almost about 9 minutes in this first vote, and 

it will be a 5-minute vote after that. So we will try to reconvene 

before—between 11:00 and 11:15. 

So, when we are back we will have Mr. Gardner’s testimony, and 

then I look forward to having questions and dialogue. So please excuse us. Thank you. 

[Recess.] 

Mr. GIBBS. Thank you. Committee will come back into order. 

And at this time I welcome Mr. Gardner for your testimony. The 

floor is yours. 

Mr. GARDNER. Good morning. My name is Michael Gardner, and 

I am general counsel of Oxford Resource Partners, a top-20 domestic producer of steam coal in the largest surface coal mining company in Ohio. In addition to operations in northern Appalachia in 

Ohio, West Virginia, and Pennsylvania, Oxford has operations in 

western Kentucky in the Illinois basin. I have been asked to share 

some of Oxford’s experiences in dealing with EPA’s mining policies. 

But first, on behalf of Oxford, let me thank you for conducting 

these oversight hearings, and for the opportunity to present my 

testimony. 

It is imperative that this Congress carefully review EPA’s recent 

activities in the area of water resources policy. On June 11, 2009, 

EPA announced its enhanced coordination procedures, and published an initial list of 108 section 404 permits. I sometimes refer 

to this as EPA’s black list. On September 11, 2009, EPA published 

its final initial black list of permits subject to enhanced coordination. Only four of Oxford’s eight permits on the initial list made the 

final cut, the others having been previously issued. 

And then, on September 18, 2009, Oxford’s CEO, Chuck 

Ungurean, sent an urgent letter to EPA Administrator Lisa JackVerDate Aug 31 2005 13:46 Nov 09, 2011 Jkt 000000 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 P:\HEARINGS\112\WR\5-5-11~1\66185.TXT JEAN
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son. This was a plea, as a stakeholder, to meet with EPA to discuss 

the critical nature of three of our four permits on the black list. No 

response has ever been received. 

The first project on EPA’s final black list that I want to highlight 

for you is Oxford’s Kaiser Mathias permit. It is the poster child for 

the absurdity of EPA enhanced coordination. On November 4, 2008, 

Oxford submitted an application for a Nationwide 49 Permit. Nationwide 49 is a general section 404 permit, pre-approved by EPA 

specifically for remining activities, because the benefits of remining 

so clearly outweigh any adverse environmental impacts. 

In this instance, Oxford proposed to backfill 41⁄2 miles of dangerous high wall, reclaim 450 acres of previously unreclaimed mine 

land, and restore all the land to meet current standards. It wasn’t 

until March 5, 2010, that EPA finally authorized Kaiser Mathias. 

This was after 9 months of EPA enhanced coordination of a permit 

that should never have been on EPA’s radar to begin with, and a 

permit decision that was, quite literally, a no-brainer. 

But it doesn’t stop there. Three days later, EPA published a 

press release, taking credit for an 80 percent reduction in impacts 

to streams, and a 70 percent reduction in impacts to wetland at 

Kaiser Mathias, all as a result of its enhanced coordination. The 

only problem with this self-serving press release was that the starting points for these claimed reductions were completely fabricated. 

Oxford could not have submitted a Nationwide 49, had it proposed 

the kind of impacts for which EPA claimed a reduction. And there 

was no mention of Nationwide 49. 

Next I would like to share with you what happened at our Halls 

Knob permit. On October 2, 2008, Oxford submitted an individual 

section 404 permit application. Almost a year later, on September 

11, 2009, Ohio EPA issued its section 401 certification that the 

project met stringent State water quality standards. One week 

later, in our September 18th plea to EPA Administrator Jackson, 

Oxford asked about EPA’s environmental concerns, given that Ohio 

EPA had none. It was not until May 27, 2010, after nearly 1 year 

of EPA enhanced coordination, that we found out what EPA wanted to exact from Oxford for this permit. 

On June 6, 2010, the court drafted the permit, as instructed by 

EPA, with a host of special conditions that Oxford had never seen 

before and could not accept. EPA recommended denial of the permit without these special conditions. Now faced with shutting down 

the mine and laying off 25 coal miners, Oxford went to its congressional delegation for help. On June 18, 2010, a meeting was held 

with the EPA in the office which I believe is now occupied by 

Chairman Gibbs. And on July 12, 2010, the Corps reproffered the 

permit with marginally acceptable conditions after 13 months of 

EPA enhanced coordination. 

These two examples, and the others being submitted to the committee for the record represent five Oxford section 404 permit applications. Permit delays from EPA enhanced coordination have put 

at risk more than 200 direct coal mining jobs and thousands of secondary jobs, which translates into nearly 2 million tons of annual 

coal production. 

At a time when our Nation still needs reliable, affordable energy 

to fuel economic growth and prosperity, EPA’s water resources poliVerDate Aug 31 2005 13:46 Nov 09, 2011 Jkt 000000 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 P:\HEARINGS\112\WR\5-5-11~1\66185.TXT JEAN
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cies are crushing employment opportunities and thwarting capital 

investment in the coal industry that provides and can create highwage, shovel-ready jobs still needed and valued in Appalachia. 

Thank you. 

Mr. GIBBS. Thank you. I will start with some questions. We will 

have a round of questions, because there is a lot of, I think, information that needs to be brought to light. 

I am going to start with Dr. Peters, since you are a chemist, by 

trade, I believe. I think I want to have a lot of discussion on the 

enhanced coordination, and also the conductivity test. Can you, 

first of all, explain the conductivity test, and then numerical versus 

narrative, and how it relates to what is going on? 

Mr. PETERS. The conductivity is a measure of the actual electric 

conductance that water would carry, and it is affected by various 

species that are in water. So, you can have various species in that 

water that may give the same conductivity, but in fact, they could 

have different biological impacts, different chemical impacts. 

So, conductivity is a measure that, by itself, does not give the 

complete picture of the contaminants in water. And what EPA has 

done is specified limits of 500 microsiemens per centimeter as the 

break-off point in that particular regard, as opposed to a narrative 

water quality standard, where you look at much broader issues, 

and not simply conductivity in assessing water quality. 

Mr. GIBBS. So then, numerical standard and conductivity, it is 

narrowly focused, so it is maybe not giving a whole picture, but it 

could distort the picture? 

Mr. PETERS. It is certainly not giving you the whole picture, because you could have the conductivity of—I mean, pick a number, 

600 or 700 in one place. You could have the same conductivity in 

another place. And the chemicals making up that, or that are causing that conductivity, could be distinctly different, and they could 

have different impacts on health and welfare. 

Mr. GIBBS. Now, in different areas, geographical areas, different 

streams, would you get different results? 

Mr. PETERS. Very frequently. One of the dominant features of 

conductivity is the geology in the area, so that the geology that you 

have in the Appalachian area is going to be different than what 

you might have in Kentucky, at least, in our western coal fields, 

so that the same conductivity, because of differing geologies, would 

probably represent different chemical constituents in that water. 

Mr. GIBBS. So you could get false assertions? 

Mr. PETERS. You certainly don’t get the entire picture, and you 

would not be able to make—I have argued, starting 2 years ago, 

that they shouldn’t focus simply on conductivity in and of itself. It 

is an early indicator. It is not the conclusive indicator that you 

need to really evaluate the quality of the water. 

Mr. GIBBS. And so my understanding is you’re head of the Kentucky EPA? 

Mr. PETERS. Yes. 

Mr. GIBBS. OK. And that is pretty much the standard that the 

U.S. EPA is using? 

Mr. PETERS. That is the standard that came out in the interim 

guidance on April 1, 2010. 

16 

Mr. GIBBS. And in regards to interim guidance, were you, as the 

State Agency, able to object or was there hearings on that new procedure? 

Mr. PETERS. No, there were not hearings on that new procedure. 

We had to adapt that particular procedure. 

And if I could amplify for—just very briefly—over the last 7 

months—well, prior to April 1st, we had been putting in permits, 

402 permits, the water permits, that were being accepted by EPA 

even as late as March 31st. Suddenly, on April 1st, those permits 

that we had been submitting were no longer acceptable. 

We had been in discussion for 7 months with region 4, which is 

the cognizant region that we have, to try to develop a template permit. What would be an acceptable permit? My staff and region 4 

staff developed a permit that was acceptable. We thought we had 

an agreement, and I just found out, actually yesterday, that that 

agreement was overruled in EPA headquarters. 

Mr. GIBBS. So this practice was changed when the administration changed. 

Mr. PETERS. That is correct. 

Mr. GIBBS. OK. Let’s where I want to go next. There is so many 

questions in my mind, here. I am almost out of my time. I am 

going to go to Representative Rahall for his—for a series of questions, and we will rotate. 

Mr. RAHALL. Thank you, Mr. Chairman. I would like to ask the 

panel—you heard both myself and Chairman Gibbs reference during our opening comments concerns with EPA applying national 

standards and practices in order to target a particular industry— 

a single industry, if you will—and a single area of the country: coal 

mining in Appalachia, of course, which is part and parcel of the 

April 2010 guidance statement. 

Are any of you aware of any other instance where EPA has ever 

done this? And are you aware of any other situations where EPA 

is seeking to enforce conductivity as a de facto water quality standard? 

Mr. GARDNER. I am not—— 

Mr. QUINN. Congressman Rahall, no, I am not aware of, in my 

career, of ever seeing something like this: one industry, one region, 

and this type of approach. 

Mr. RAHALL. That is a negative from all four of you, then? 

Ms. MARKS. Yes, sir. 

Mr. RAHALL. All right. The April 10th guidance document became effective immediately with a public comment, almost as an 

afterthought. To those of you on this panel, is this practice normal 

in your dealings with the Federal Government, to have such a 

guidance issued and then the public comment just kind of thrown 

in at the last minute? 

Mr. QUINN. Not for something that changes the rules of the game 

so substantially. And what should have been done was, if it was 

some science they wanted to have reviewed, is peer reviewed it out 

in the open, as well as in terms of their policies, since they are all 

substantially changing the rules of the game in midstream. 

Mr. RAHALL. Anybody else wish to comment? 

Ms. MARKS. Yes, sir. I think the big problem that ECOS—from 

an ECOS point of view—is that there is a difference between interVerDate Aug 31 2005 13:46 Nov 09, 2011 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6633 P:\HEARINGS\112\WR\5-5-11~1\66185.TXT JEAN
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pretive and substantive guidance. Interpretive guidance, of course, 

is necessary, and it needs to be issued, and it serves a purpose and 

would probably block things or jam things up if it had to go 

through the procedural due process requirements of the EPA. But 

when you are dealing with substantive guidance, you are dealing 

with almost a rulemaking, basically, and you are not—you do not 

have those due process requirements that are necessary to make 

sure that everyone has a chance to be heard, and that there is a 

chance for judicial review. So, that is our concern. 

Mr. RAHALL. So interpretative and minor clarifications are a 

standard—— 

Ms. MARKS. Yes, sir. 

Mr. RAHALL [continuing]. But not such a major—— 

Ms. MARKS. They basically change the rules. 

Mr. RAHALL [continuing]. Such a major ruling? 

Ms. MARKS. Yes, sir. 

Mr. RAHALL. To have it become the force of law, almost. 

Ms. MARKS. Yes, sir. 

Mr. GARDNER. I would agree with Ms. Marks. And our experience 

in Ohio is that when—and we are familiar with the Agency’s publishing guidance and not necessarily of a substantive nature, 

though, but to interpret their existing rules and regulations. And 

when they do that, in Ohio, it has always been a collaborative effort, where you meet with all the stakeholders and you pound 

things out and you come up with, you know, a consensus, if you 

will, of how this is going to apply, how this is going to work to 

move things forward. That never happened in this instance, that 

I am aware of. 

Mr. RAHALL. Yes. I know we are here, and this committee’s jurisdiction is over the Clean Water Act and its application to coal mining. But I do not believe we could have this conversation without 

reference to the Federal office of surface mining and SMCRA. I, 

having been in the Congress when SMCRA was enacted, served on 

the committee when it was passing the law in 1977. And I am sure 

the witnesses know that SMCRA explicitly provides for a variance 

from the requirement that mine lands be reclaimed to their approximate original contour if certain conditions are met—in layman’s 

terms, mountaintop removal mining and valley fills—provided that 

post-mining land use supports some type of economic development—industrial, commercial, agricultural, and the like. 

Let me ask you, Mr. Quinn, are you aware of EPA challenging 

proposed post-mine land uses of this nature as part of its 404 permit reviews? 

Mr. QUINN. Yes, I am. Two examples, I guess, for brevity purposes. 

In your State, if I recall, there was two—three operations, and 

two operations involved King Coal Highway. And the post-mining 

land use was designed to allow the road bed, flat or rolling terrain, 

to accommodate the road bed for that highway. My understanding 

is there was an estimate that that work would save the taxpayers 

$100 million. 

There was another case where EPA questioned the need for postmining land use being proposed down in Logan County, in your district, for leaving land suitable for an emergency flood housing, and 

18 

they questioned the need for such housing. And, of course, anybody 

who is familiar with that county down there knows that flooding 

is a situation that emergency housing is necessary. And this was 

to be operated by FEMA. 

Mr. RAHALL. Thank you. I appreciate the Chairman’s indulgence 

while I ask one more question of the whole panel. I think it is extremely important that the science used to support government environmental policies be peer-reviewed. Are any of you aware of, and 

can you comment on the science used to support the EPA’s April 

2010 guidance, and whether it was peer reviewed? 

Mr. PETERS. There was a peer review that took place subsequent 

to the issuance of it. It had not taken place prior to it. And there 

are differing views on the science. At this point in time, probably 

the best terms to use for the science is that it is incomplete, at 

best. It is not totally conclusive, in that particular regard. 

So, there is certainly not unanimous and uniform agreement. But 

it was only peer-reviewed after the interim final guidance was 

issued, and that was a number of months after the case. 

Mr. GIBBS. Dr. Peters, would it be fair to say that they developed 

the policy and then kind of figured out what the science should be? 

Mr. PETERS. Well, they did have some science ahead of time, but 

that was science that had not been peer-reviewed prior to that 

point in time. And I think we all recognize that the peer review is 

a very important step in evaluating the quality and the voracity of 

that science. 

Mr. GIBBS. Representative Cravaack, do you have questions? Go 

ahead. 

Mr. CRAVAACK. Thank you, Mr. Chairman. Mr. Gardner, if I 

could, sir, why do you think the EPA issues guidance? Why don’t 

they just issue a rule? What is your opinion on that? 

Mr. GARDNER. Well, I think the Administrative Procedures Act 

is, you know, difficult. It is a long process. And guidance documents 

are easy to generate. On every guidance document I have ever seen 

there is always a disclaimer that says, ‘‘This guidance document 

does not have the force of law,’’ yet at the same time it is being 

foisted on the industry, and you are required to meet the standards 

that are established in that as binding conditions for getting a permit. 

Mr. CRAVAACK. So, what you have found in your experience is 

that these guidances have, in de facto, become rules. 

Mr. GARDNER. Absolutely, yes. 

Mr. CRAVAACK. That is what I hear. Thank you, sir. 

Also, Director Marks, in your opinion as a State legislator, do 

you feel the EPA has overreached its authority? 

Ms. MARKS. In a situation where EPA—such as this, where EPA 

has combined their guidance authority with their objection powers 

to make it basically binding, to make sure that they guidance followed in permitting decisions made by the States, yes sir, we do 

think that they have gone too far. As far as that goes, there should 

be due process and a chance to comment from the States. 

Mr. CRAVAACK. And what rule do they state that says that they 

can interfere with states’ rights? 

19 

Ms. MARKS. I am not aware of any rule. The response, generally, 

we have received from EPA is that they use guidance, and they 

have used it for years, which is absolutely true. 

And we see the need for guidance. We don’t think that there is 

a problem with the use of guidance, as long as that guidance is not 

used to basically change the rules and make them binding on the 

regulated community and the States, without that ability to challenge. 

Mr. CRAVAACK. OK. Thank you very much. 

Mr. Quinn, sir, compared to previous permitting timelines and 

costs, how do you expect the future—the expected timelines and 

cost to change in this new process? 

Mr. QUINN. Well, right now it is taking several years, where it 

used to take us maybe 4 to 6 months. So now are seeing an increase four or five-fold. 

In terms of cost, it is—what is happening now is it is not only 

taking longer, but with the conditions they are trying to place on 

these permits, the productivity of these operations is dropping. 

And, in fact, the Energy Information Administration recently came 

out in its energy outlook and has lowered the productivity projections for surface coal mines in Appalachia by 20 percent. That is 

a very substantial regulatory penalty that is being assessed against 

the operations in this region. 

Mr. CRAVAACK. Yes, we are experiencing the same kind of operations in Minnesota, as well, in our iron range region. We are trying to get some open pit mining done, as well, for precious metals. 

So we are finding the same kind of—the permitting process in the 

coal industry is also reflective of other mining operations, as well. 

Mr. QUINN. Mine permitting in this country is the largest impediment to new domestic investment in the mining industry in 

this country, with taking up to 10 years to get permits. 

Mr. CRAVAACK. And I totally agree with you on it being a national security issue, as well. So—and depending on our own natural resources. So I agree. 

Dr. Peters—thank you, sir. Dr. Peters, why do—what do you 

think the driving force is behind the EPA’s changing their process? 

Mr. PETERS. I wish I could answer that. It is very difficult—— 

Mr. CRAVAACK. I really wish you could, too. 

Mr. PETERS [continuing]. To do anything other than conjecture at 

this particular point in time. When you ask EPA what does a good 

mining permit—what does an acceptable mining permit look like, 

we cannot get a definitive answer today. So when you cannot get 

that definitive answer, you begin to ask yourself, ‘‘What is the motive?’’ And all you can do is conjecture and hypothesize. And being 

a scientist, I would rather not hypothesize on that. 

But it is definitely stymying the industry. It is not—not only is 

it not valuable for the—hurting the industry and the regulatory 

community in the State, it is really, in a very significant way, 

breaking that Federal-State cooperative partnership to protect the 

environment that we had for so many years. 

The only thing I could say is if that partnership is not entirely 

broken at this point in time, it certainly is severely fractured. And 

that is, I think, one of the fatalities of—or certainly one of the fatalities of what we are seeing at this point in time. 

20 

Mr. CRAVAACK. I am almost out of time. But America’s Commitment to Clean Water Act was passed in the House last year, and 

did not go forward. But what I am seeing now is they are trying 

to implement the America’s Commitment to Clean Water Act, not 

through legislation, but through mandatory rulemaking. And do 

you see that, as well? 

Mr. PETERS. That is certainly one of the reasons that people are 

offering for it, yes. 

Mr. CRAVAACK. Thank you very much, sir. And, Mr. Chairman, 

I yield back. 

Mr. GIBBS. Thank you. I think we are hitting conductivity pretty 

good, but I have got one more follow-up on that of Dr. Peters. I 

have got a report here that talks about the guidance effectively established the regionwide—and we talked about the geographical 

problems and issues with that—but the conductivity levels should 

not exceed 500 siemens. 

It is my understanding that this bottle of water exceeds that 

level. Would that be true? 

Mr. PETERS. I cannot speak for that bottle of water, but there are 

many bottles of water that do exceed that value, yes. 

Mr. GIBBS. So you are telling me that the standard that would 

be applied under the permit to pass the test would have to be 

cleaner than most bottled water? 

Mr. PETERS. That is correct. And it varies from region to region 

to region. But, yes, absolutely. 

Mr. GIBBS. That is absurd, but I mean I—that is hard to understand, but that makes it, gives me a red flag that there is a different agenda going on here. 

I want to talk, Mr. Gardner, to the enhanced coordination. In 

your written testimony, it talked about, on the applications, filed— 

it was kind of like going in a black hole, you couldn’t get any answers, you couldn’t get back—can you expound a little bit on the 

enhanced coordination? I believe the enhanced coordination is dealing with the Corps, the EPA, and the Department of the Interior, 

is that correct? 

Mr. GARDNER. In theory, yes. But, I mean, it is all being directed 

by U.S. EPA, you know. The example I gave you, Halls Knob, that 

was a permit that, you know, we received a copy of a letter from 

U.S. EPA to the Corps saying, ‘‘These are the special conditions to 

put in the permit,’’ and the Corps obediently drafted the permit 

with those conditions in it. 

So, as far as coordination goes, you know, we tried to coordinate 

with the Corps on it, and they said, you know, ‘‘You are not going 

to get your permit unless you have these conditions in it,’’ and that 

is when we went to the congressional delegation. 

Mr. GIBBS. Let me just—— 

Mr. GARDNER. You know—— 

Mr. GIBBS. It is my understanding, then, that the enhanced coordination is something that kind of supersedes that, maybe the 

whole permit application process too, that they can put road blocks 

up in front of you before you really get into the permit process with 

the Corps? 

Mr. GARDNER. Yes, exactly. I mean initially it came out they published a list of permits that were subject to enhanced coordination. 

21 

And I call it the black list, not just because it was permits subject 

to enhanced coordination, but because, literally, the permits went 

into a black hole. You couldn’t get any information out of EPA, you 

know, why your permit got on the list, how you get your permit off 

the list. It was just, you know, radio silence for months and months 

and months. And then they come out, you know, and start issuing 

the permits. 

But that’s been our experience with enhanced coordination. The 

procedures that they are deploying are more suitable for courtroom 

litigants than the regulatory process, where you first—you know, 

you ignore your opponent and then you stall and delay and—until 

they either run out of money or time or both, and they are forced 

to settle or go away. 

Mr. GIBBS. I don’t believe there is anything in the Clean Water 

Act or law anywhere that talks about enhanced coordination. So I 

don’t know where they get the jurisdiction to do that. I don’t know 

if you agree or not. When did this new policy and procedures come 

into effect? 

Mr. GARDNER. I would say with the publication of their announcement June 11, 2009. Coordination is kind of a term of art. 

You know, we have been coordinating with the Corps years before 

that to get our permits. The initial step in that process is generally 

what is called a jurisdictional determination, where you submit a 

preliminary mine plan to the Corps, and they go out and review 

where the jurisdictional waters are that are proposed to be impacted, and that is coordination. Enhanced coordination is a, you 

know, figment of EPA’s imagination. 

Mr. GIBBS. Oxford, I believe, is surface operations, right? 

Mr. GARDNER. Correct. 

Mr. GIBBS. In your written testimony—I was reading it last 

night—you talked about filling in where high walls are, the dangerous high walls, which would be, I guess, hundreds of feet. Can 

you explain a little bit, you know, the reclamation process that Oxford uses, and what the end result is, and the regulatory process 

you have to go through? 

Mr. GARDNER. Sure. I mean, ordinarily, most all of our operations are remining operations, to some extent. That means we are 

going back in to areas that were mined before SMCRA was passed 

in 1977, where there were, you know, miles of exposed high wall 

hundreds of feet high that are dangerous for people driving ATVs 

in the wilderness and falling off of high walls, or they were abandoned final-cut pits from the prior mining that had acid mine 

water in it. 

And we are—in our permitting operations, we proposed to go 

back in there, remine the area, which means we go back in and we 

have to get rid of all the toxic water that was there, and we will 

go back in and remove additional coal reserves that were left, because it was easy coal that was taken, you know, 40, 50 years ago. 

We will go back in and remove additional coal and then backfill, 

from our operations, the hundreds of feet of abandoned high wall 

and restore the land to meet current mining standards. 

Mr. GIBBS. Did you give this to us, the committee, these pictures? 

Mr. GARDNER. I think that is from Mr. Quinn, but—— 

22 

Mr. GIBBS. Oh, OK. Well, I guess, Mr. Quinn, I will just go to 

you here. I guess I am out of time, but I will yield myself a little 

bit more. I don’t think the Ranking Member will mind. 

I understand these are pictures of reclaimed land? 

Mr. QUINN. Yes, that is reclaimed land. That is in eastern Kentucky, where we have an arrangement with the Rocky Mountain 

Elk Foundation. We have introduced the largest set of Rocky 

Mountain elk in the east. 

Mr. GIBBS. Pretty nice looking pictures to me with the elk on 

there. And I was reading—I think it was your testimony—that 

there has been some issues on permitting on your—I mean you’re 

doing a mining operation during the permit to get the reclamation 

plans, I guess. There was some issues with the EPA about the 

issue of wildlife being on the reclaimed land and the—I guess, lack 

of better term—manure from the wildlife coming into the streams. 

Is that an issue? 

Mr. QUINN. Well, they are questioning, as Mr. Rahall is indicating, they are questioning the post-mining land uses that are 

being chosen by the companies. In some cases it is wildlife habitat, 

in other cases it is industrial development or housing development. 

So they are getting way outside their scope and sphere by getting 

into the areas that the office of surface mining and the State mining regulators are the ones who are qualified and empowered to 

make those decisions. 

Mr. GIBBS. OK, thank you. Mr. Rahall? 

Mr. RAHALL. Thank you, Mr. Chairman. I have just a general 

thought I would like to throw out to the panel, as I am sitting here 

listening to questions, especially those from the gentleman from 

Minnesota. And I have thrown this out before in the public arena. 

But in looking at why all this is happening to this generic arena 

of applications that are out there, is it possible that during the previous administration, that perhaps EPA was told not to exercise 

their legal right under the CWA to review these permits? In other 

words they were told to stay out. 

And with the advent of a new administration, could there be 

those within the EPA that felt they were wrongly shut aside during 

the previous administration, and now, with a vengeance, want to 

come back, and we see the pendulum swinging too far the other 

way, in which they are exercising a personal vendetta or agenda, 

whichever you want to use, because of not being allowed to do what 

they thought was proper during the previous administration? 

In other words, pendulum went too far one way, now it is going 

too far the other way. Don’t we need to get back to the middle? 

And I don’t reference permits that have been granted, such as a 

spruce permit in my district. That is totally beyond what I am talking about. I am not talking about previously approved permits 

being revoked. But I am just talking about the generic field of surface mine applications out there. 

Mr. GARDNER. I will take a stab at that for you. I don’t know 

that there was any administration that told EPA to stay out of coal 

mining permits. But the Clean Water Act itself delegates responsibility under section 404 to the Secretary of Army and the Corps of 

Engineers, and wisely so, because they are more familiar with it. 

23 

EPA has its hands full with, you know, an number of different regulatory programs. 

And I think it is fair to say, though, when this administration 

came in, they stepped up the efforts, particularly after the fourth 

district court of appeals overturned or reauthorized or upheld the 

Corps’ authority to issue 404 permits under the Clean Water Act. 

That is when they really ramped up their efforts to get involved 

with reviewing what was previously the Corps’ exclusive jurisdiction. 

Mr. QUINN. Let me say that I have heard that, and perhaps that 

might be some motivation, but I would say the following things. 

One, I think it is more likely that coal mine permitting was not 

a priority. Nobody ever told them they couldn’t comment. It was 

not a priority because it is already well regulated. You already had 

the Surface Mining Control Reclamation Act, which already evaluates much of what EPA now says it wants to look at, which is operation plans, water impacts, water management, post-mining land 

use, things along those lines. 

If EPA felt it was shunted aside in the prior administration, then 

the answer would have been return to their normal authorized role, 

which is to file comments with the Corps of Engineers about pending permits. Instead, they have created a process that has displaced the Corps of Engineers from the front end of the process. 

The Corps—actually gets to screen which permits it will allow the 

Corps to actually review. And at the end of the process, whatever 

decision is made by the Corps has to align with what EPA wants. 

So, if that was the sole concern, which was commenting, that is— 

they have gone well beyond that. 

Ms. MARKS. Yes, sir. I would have to say that I have not heard 

anybody express that concern among the States. ECOS does not 

have an official position on that issue. But I have not personally 

been concerned that there has been some type of policy swing in 

that regard. And I have not heard other States express that. 

The concern that we have, of course, is it is easier—it is certainly 

quicker, it is easier to go ahead and institute guidance. And if you 

can do that without the due process issues, then it is easier to get 

it in place and get it started. The problem is, when you are dealing 

with these substantive issues, you just cannot ignore the due process. It has to be in place, and—for the States to have a cooperative 

relationship with EPA. And that is certainly what we strive to 

have, is a cooperative relationship. 

Mr. RAHALL. Mr. Peters? 

Mr. PETERS. I was not present in—I was not in my current position during the prior administration, during President Bush’s administration, so I have no firsthand knowledge of that. Some of my 

staff have said that is the case, but that is simply what they have 

indicated. 

Mr. RAHALL. Some of your staff who were around during the previous administration? 

Mr. PETERS. That is correct. 

Mr. RAHALL. Thank you. 

Mr. GIBBS. Before I go to you, I want to ask for unanimous consent to have these put in the record, Mr. Quinn, these pictures of 

the reclaimed land. 

24 

[No response.] 

Mr. GIBBS. I heard no objection. Enter into the record. 

[The information follows:] 

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28 

Mrs. CAPITO. Thank you. Thank you. Pardon if you have answered this already, but as you have probably figured out, we like 

to have things answered several times, to make sure we clearly understand. 

Part of the things that I am hearing in West Virginia, in terms 

of working with the EPA and trying to reach a sense of fairness 

is the prolonging, or the time spans are becoming so much 

lengthier, and—that you are really not getting a yes or a no answer, it is just a continuation of changing the process or redoing 

the process. And sometimes I think in life it is better to get a no 

than a maybe. Or, ‘‘That might work.’’ 

Do you find this to be the case, that it is more of a moving the 

goal post with the different provisions and working with the Corps 

and the DEPs, or do you find that it is more a sense of an absolute 

answer, one way or the other? I am curious to know about that. 

Dr. Peters? 

Mr. PETERS. Certainly in our case it has greatly prolonged the 

process. And it has prolonged the process to the point where some 

companies are simply withdrawing permits because they do not see 

the end in sight. And that prolonging of the permits, of course, 

costs them money. 

Mrs. CAPITO. Right. 

Mr. PETERS. And they have to make a business judgment as to 

whether or not they can persist for that length of time. 

But, you know, our data clearly show that it is much, much 

longer to get a permit today than it was 3 years ago or 5 years ago. 

We have, right now, 162 permits that we are about ready—we are 

trying to figure out what we need to do with them so that they will 

be acceptable to EPA. And they are OK and approved by the State 

standards. But by the same token, if we begin to move forward 

with submitting them to region 4 for their comment, they are just 

going to be delayed much longer. 

So, that is why we have been in great discussions with region 4 

as to how we can expedite the process. But it is definitely prolonging the process without a definite yes or no. 

Mrs. CAPITO. Does anybody else want to comment on that? 

Mr. QUINN. Well, I agree with Dr. Peters. That is the experience 

of our members. There is no end in sight. As I indicated in my testimony, the results of this process is more permits have actually 

been withdrawn by the operators than actually issued. If I have a $50 million or $100 million or $150 million initial investment, if I am faced with the prospect of not getting a permit 

2, 3, 4, 5 years, I can take that money and go to another State, 

get a return on my investment sooner. Or, even worse—or even 

perhaps take that investment to another country and get it a lot 

sooner. And that can make a big difference, in value proposition. 

Mrs. CAPITO. Going along the lines of the topic, which is the jobs 

issue—and I think we all addressed this in our statements—I know 

that part of the permitting process is obviously public comment period, probably public hearings in the affected areas where individuals who are more deeply affected maybe have a chance to voice 

their opinion. And also, I would imagine in the—and I know this 

to be true in West Virginia, that when a project is on the table it 

is quantified many times in terms of how many jobs it might be. 

29 

Going along the lines of my opening statement, when the EPA 

looks at these particular issues in terms of permitting, they readily 

admit that the job data is irrelevant to their decision. How would 

you characterize that, in terms of how you think your individual 

States or your individual communities would feel about that, when 

they have obviously poured their heart out at a public meeting, 

talking about job and ability to stay in their own community and 

live and work in a place where they love? Have you heard this as 

a theme throughout the—this process? Dr. Peters? 

Mr. PETERS. Certainly in Kentucky we have heard that expressed. And we take the position in our cabinet that it is not 

something that we can ignore. We cannot ignore the jobs involved 

in it. It is finding the right balance between what we need to do 

with getting a permit issued and the jobs in place. Because not 

only are you putting those—by delaying the permits, not only are 

you putting that business in the dark, you are leaving those miners 

in the dark, wondering when they are going to be able to get back 

to work. 

So, we do look at that. We do try to make some assessments in 

that particular regard. And we do remind region 4 EPA that jobs 

are something that we must consider, and we do need to consider 

within our State, even though they tell us that jobs is not one of 

their considerations. 

Mrs. CAPITO. Thank you. Thank you, Mr. Chairman. 

Mr. GIBBS. Mr. Altmire, do you have any questions? 

Mr. ALTMIRE. Thank you, Mr. Chairman. Mr. Quinn, I know that 

the NMA has commissioned some scientific studies that raise concerns with the EPA’s studies, and specifically the methodologies 

that they use. And you referenced that in your testimony and in 

the Q&A today also. 

And I was just wondering. Has the EPA responded to any of 

NMA’s concerns or studies? 

Mr. QUINN. Thank you, Mr. Altmire. No, they have not. And I 

have the studies here with me, if the Chairman will accept them 

for submission in the record. They have looked at—we retained an 

independent, well-known firm to look at EPA studies and the methodology. They came back and found that there was no causal relationship proven, in terms of EPA’s work. EPA was actually imposing a standard that is higher than background levels, and also did 

not use its standard methodology for reaching its conclusions. 

So, the short answer is no, we have yet to hear anything from 

EPA about—— 

Mr. GIBBS. Without objection, we will accept those into the 

record. 

[No response.] 

Mr. GIBBS. Hearing none—— 

Mr. ALTMIRE. Yes, it would seem to me, even if they may be 

skeptical of the source of the commission, this is something that— 

you are owed a response, at minimum, from the EPA. 

Mr. QUINN. I would think so, even more—for more reasons than 

just a courtesy. Because I think if they want to have confidence in 

their own work, they would take a look at this and consider it. And 

if they find it persuasive, then look into it further. If not, then respond publicly about why it is not—lacks merit. 

30 

Mr. ALTMIRE. And I would just say that, being a member of the 

committee, I would appreciate the EPA giving a response to these 

concerns, too. 

Mr. QUINN. Thank you, sir. 

Mr. ALTMIRE. Dr. Peters, thank you for being here, as well. I was 

wondering if the EPA’s conductivity benchmark was derived using 

West Virginia data, but has been applied to all streams within central Appalachia, including my home State of Pennsylvania. Do you 

agree that it is appropriate for the EPA to apply the conductivity 

limit in this way? 

Mr. PETERS. Conductivity is a measurement that does not give 

the complete picture of what is in the water. And it is very, very 

dependent on the geology, the local geology, in many cases. 

In fact, in Kentucky, I have asked our department of environmental protection, who has primary responsibility in this area, to 

look at our data that we have across the State. And we are not able 

to draw any firm conclusions across the State, at least at this particular point in time. It varies from region to region. It probably 

varies from microgeology to microgeology, as well. 

Mr. ALTMIRE. Thank you. And on that point, Mr. Quinn—back to 

you—do you believe that the EPA’s conductivity guidance represents a substantial change to prior regulations? 

Mr. QUINN. Oh, absolutely. It is a substantial change in regulations. And, actually, they are asserting themselves in the State 

water quality process, which—they don’t have that authority, certainly not in the way they have done it. 

Mr. ALTMIRE. Right. Lastly, Mr. Chairman, I would ask Mr. 

Gardner. 

You talk in your testimony about addressing past environmental 

problems through Oxford’s remining operations. Can you tell the 

committee who would be responsible for addressing these environmental problems if the mining industry was unable to take on this 

remediation through its active mining projects? 

Mr. GARDNER. Well, yes. You know, the mining industry itself 

pays a severance tax to the Federal Government, 35¢ a ton, that 

goes into an abandoned mineland fund. And those monies, in addition to whatever taxpayer monies, would be all that is available to 

reclaim abandoned mineland. 

Mr. ALTMIRE. Great. Thank you. Thank you, Mr. Chairman. 

Mr. GIBBS. Thank you. Mr. Cravaack, you have another question? 

Mr. CRAVAACK. Yes. Thank you, Mr. Gibbs. Mr. Quinn, I have 

got a quick question for you in regards to—I don’t know if you have 

the data, but because of these new processes that are being implemented, do you know what the average cost to the average American would be in regards, not only—but in electrical costs, heating 

costs, what we would also have to charge, you know, buying a gallon of milk off the shelf at the store? 

Mr. QUINN. From this policy? I don’t have any numbers along 

those lines, Congressman, but what I can tell you is this, that 21 

of the 25 States with the lowest electricity costs depend on coal for 

40 percent or more of their electricity. And it is no coincidence that 

those same States have the highest concentration of manufacturing 

in our country, because of low-cost, affordable coal. 

31 

So, I think it is clear, as you raise the cost of coal and raise the 

expense—electricity, not only are you affecting those businesses, 

but you are affecting households, which probably 50 percent of 

households in this country already spend 20 percent of their 

aftertax income on energy. 

Mr. CRAVAACK. Yes. My electrical bill is high enough, thanks. 

But, anyway, Director Marks, if I could ask you—we are all concerned about our environment. You know, I live in a beautiful 

State called Minnesota, land of 10,000 lakes. We are very concerned about water quality. And it has been my opinion that nobody takes care of Minnesota better than Minnesotans. 

So, with that said, in your opinion, what does a perfect EPA look 

like to you, as a State representative? 

Ms. MARKS. Well—— 

Mr. CRAVAACK. You have a blank slate, here. 

Ms. MARKS. That is a pretty dangerous thing. But I think that 

one thing that the States are all concerned about—and you know 

we all come from different areas, we come from different backgrounds. There is very few times that we agree on anything, all 50 

of us, wholeheartedly. And this was one, when we did the resolution about this issue, this was one we did agree to. 

I think what the States desperately need EPA to understand is 

that we are actually implementing their rules and regulations. We 

are implementing those delegated programs, on a case by case 

basis, in our States. We need the resources and we need the background to be able to do that. We also need the science to support 

what we are doing. And, most importantly, we need to have a voice 

in that process. 

And that is what I would envision for EPA, is to have—to let the 

States have more of a voice in the process of what is going on in 

their States. Because, truly, they do know more than anybody— 

locals know better than anybody—what is going on, as far as the 

environment goes. 

Mr. CRAVAACK. Yes. You know, that is so true. Because Minnesota looks a lot different than New Mexico, you know, different— 

totally different issues, as well. 

Mr. Quinn, if I can ask you one more question, what can Congress—you know, I am a military guy, so identify the problem, 

what is the solution—what can Congress do, in your opinion, to address the issue of permitting, not just in Appalachia, but also 

through all mining operations? 

Mr. QUINN. Well, there is a couple things that come to mind, particularly based on the testimony today. 

One, you could clarify what the existing law requires, is that the 

States are responsible for establishing the water quality standards, 

interpreting them, and applying them; that EPA’s role is one of 

oversight, not one of taking command of the process, at either the 

State level or the Army Corps. 

It could also clarify that point with respect to the 404 process, 

with the Army Corps, and also indicate that its role is limited to 

providing comments, but not commandeering the process, as well. 

And it could also, given—in view of the recent activities where 

we probably have entered a—some unchartered territories, in 

terms of regulatory risk for business in this country, with the retroVerDate Aug 31 2005 13:46 Nov 09, 2011 Jkt 000000 PO 00000 Frm 00047 Fmt 6633 Sfmt 6633 P:\HEARINGS\112\WR\5-5-11~1\66185.TXT JEAN
32 

active revocation of a permit to a coal mine in West Virginia, we 

could probably use some clarification there, that that is not what 

Congress had in mind at all, that if EPA has concerns they should 

get those to the Corps contemporaneously with the process about 

deciding over the permit, not after the fact. 

Mr. CRAVAACK. Thank you very much, sir. And, Mr. Chairman, 

I yield back my time. 

Mr. GIBBS. Thank you. Dr. Peters, just a quick follow-up from 

one of Representative Cravaack’s questions with Ms. Marks: your 

experience in Kentucky running your EPA, and direction you have 

gotten from the U.S. EPA, have you had any instances where you 

have had a direction from EPA, U.S. EPA, and you have implemented them, and—how has it worked out? 

Mr. PETERS. Well, certainly we have relied primarily—as it was 

intended—in our interactions with the regional, region 4. And 

those interactions—and I think that is true of all States. Your first 

point of contact and your most substantive interaction should be 

with the regional EPA. They are the ones that, while they don’t 

know everything that is going on in Kentucky or Arkansas or Alabama, they have a better sense than what headquarters does at 

this point in time. 

Our interactions with region 4 have been positive. The breakdown, as I see it, is the breakdown has been between headquarters 

and the regional offices in this regard. If we could re-establish that 

connection, and the primacy of that connection, it would be much, 

much better used. That is an important interaction. 

We have—we had a set of permits prior to April 1 of 2010 that 

were acceptable to EPA. Then, when that interim final guidance 

came out—within 1 week, OK—that whole picture changed. And it 

is that inconsistency that really drives the regulator and the regulatory community mad, when you have that inconsistency. Because 

it is not easy to justify a decision that you made last week when 

it is a different decision than you made the week before. 

Mr. GIBBS. OK. Mr. Quinn, one final question for you. Looking 

at the enhanced coordination process, and they have a—I have got 

a document here that says EPA first utilized what they call the 

multicriteria integrated resource assessment, MCIR, to determine 

that fact. Is that used across the country, or is that just used in 

Appalachia? 

Mr. QUINN. To the best of your knowledge, Mr. Chairman, that 

is a concept for discussing issues, but not a decisionmaking process. 

But what they have done is they have taken this theoretical process, and have applied it in a decisionmaking mode. 

No, to our knowledge it is not used anywhere else for any type 

of permitting decision. It may be used for evaluating policy options 

for a program, but not for permitting decisions. 

And this is the process they use to screen which permits they 

want to work with on—with the Army Corps of Engineers on, 

which is completely different than things they have done in the 

past, which are permits are given to the Corps, the Corps makes 

the decision, EPA, like other agencies, is provided an opportunity 

to provide some comments. 

33 

Mr. GIBBS. And it is my understanding that this enhanced coordination, what you just referred to, is really specifically just used 

in the Appalachian area? 

Mr. QUINN. Yes, their memorandum establishes the enhanced coordinating process as basically a side track for Appalachian coal 

permits in about six States, including Ohio. 

Mr. GIBBS. OK. And it is also my understanding, under this process, the section 404 guidelines has never formalized that process. 

So there is nothing in the law or in the administrative code, I 

guess, that puts a time limit on when they have to have the process done, when they go through this—using this new procedure. 

Mr. QUINN. Not the new procedure. There is limits in the Army 

Corps of Engineers regulations for decision points. But those, under 

this policy, are all ignored. They have said in their policy there is 

a nominal 60-day period to reach resolution. But as I indicated in 

my opening remarks, EPA is—makes—that 60-day period only 

starts when EPA says it starts, which can be months or years later. 

And they are free to suspend the 60 days, once it starts, if they decide they need more time. 

Mr. GIBBS. OK. So obviously, it is going to be used as a delaying 

tactic. 

Mr. QUINN. Yes. 

Mr. GIBBS. OK. Ms. Marks, in your written testimony you talk 

about how you don’t believe that EPA has ever attempted to require States to implement interim guidance until recently, and you 

have a concern that the interim guidance could put your State or 

any State in a position to actually break Federal law or break State 

law. So that is a Catch-22. 

Ms. MARKS. Yes, sir. 

Mr. GIBBS. Can you kind of expound on that a little bit? 

Ms. MARKS. Yes, sir. The problem is that there are a lot of 

States—or there are some States—that cannot enact laws any more 

stringent than Federal law. That is pursuant to their State government, they cannot do that. When you have an interim guidance 

come down that is being used pursuant to the objection authority 

is binding in permits, you put the State in the position of either 

I have to go ahead and put these things in the permit that EPA 

wants so they won’t object to the permit, and break State law, because this is an interim guidance, it is not final—— 

Mr. GIBBS. OK. 

Ms. MARKS [continuing]. Or, I go ahead and don’t put that in, 

and then EPA can use their objection authority and my facility 

might not get their permit, or their permit may be delayed for a 

long time if EPA takes that—uses that objection authority. 

So, you put them in a real Catch-22. They are either going to violate one Federal law or State law, one or the other. 

Mr. GIBBS. Well, I appreciate all you coming into Washington 

today. This has been very enlightening for us. We are having a 

hearing next week, and the EPA will be represented in one of the 

panels. 

It is clear to me, from your testimony, that there has been some 

questions raised and concerns about the science used to make some 

of these determinations, the conductivity tests that we talked 

about. Obviously, enhanced coordination that might be specifically 

34 

targeted to a region in the country and issues like that where I 

think, you know, under the law, due process and equal process 

under the law might be one issue. It seems like there is a whole 

host of issues here. 

And I think we have a—and what also is amazing to me, too, is 

the—we have two State EPAs represented here today that have serious concerns about what is going on at the Federal level, and 

making your job tougher. You know, we had regulators here represented, and plus, the industry represented. So, I just want to 

make that clear, that I think this was balanced. And next week we 

will have the EPA here to have them respond to what we learned 

here today. 

So, thank you very much for coming in, and that will conclude 

this hearing today. 

[Whereupon, at 12:07 p.m., the subcommittee was adjourned.] 

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