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EPA’S APPALACHIAN ENERGY PERMITORIUM: JOB

KILLER OR JOB CREATOR?

HEARING

BEFORE THE

SUBCOMMITTEE ON REGULATORY AFFAIRS,

STIMULUS OVERSIGHT AND GOVERNMENT

SPENDING

OF THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

JULY 14, 2011

Serial No. 112–117

Printed for the use of the Committee on Oversight and Government Reform

(

Available via the World Wide Web: http://www.fdsys.gov

http://www.house.gov/reform
(II)

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

DARRELL E. ISSA, California, Chairman

DAN BURTON, Indiana

JOHN L. MICA, Florida

TODD RUSSELL PLATTS, Pennsylvania

MICHAEL R. TURNER, Ohio

PATRICK T. MCHENRY, North Carolina

JIM JORDAN, Ohio

JASON CHAFFETZ, Utah

CONNIE MACK, Florida

TIM WALBERG, Michigan

JAMES LANKFORD, Oklahoma

JUSTIN AMASH, Michigan

ANN MARIE BUERKLE, New York

PAUL A. GOSAR, Arizona

RAU ́ L R. LABRADOR, Idaho

PATRICK MEEHAN, Pennsylvania

SCOTT DESJARLAIS, Tennessee

JOE WALSH, Illinois

TREY GOWDY, South Carolina

DENNIS A. ROSS, Florida

FRANK C. GUINTA, New Hampshire

BLAKE FARENTHOLD, Texas

MIKE KELLY, Pennsylvania

ELIJAH E. CUMMINGS, Maryland, Ranking

Minority Member

EDOLPHUS TOWNS, New York

CAROLYN B. MALONEY, New York

ELEANOR HOLMES NORTON, District of

Columbia

DENNIS J. KUCINICH, Ohio

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

STEPHEN F. LYNCH, Massachusetts

JIM COOPER, Tennessee

GERALD E. CONNOLLY, Virginia

MIKE QUIGLEY, Illinois

DANNY K. DAVIS, Illinois

BRUCE L. BRALEY, Iowa

PETER WELCH, Vermont

JOHN A. YARMUTH, Kentucky

CHRISTOPHER S. MURPHY, Connecticut

JACKIE SPEIER, California

LAWRENCE J. BRADY, Staff Director

JOHN D. CUADERES, Deputy Staff Director

ROBERT BORDEN, General Counsel

LINDA A. GOOD, Chief Clerk

DAVID RAPALLO, Minority Staff Director

SUBCOMMITTEE ON REGULATORY AFFAIRS, STIMULUS OVERSIGHT AND GOVERNMENT

SPENDING

JIM JORDAN, Ohio, Chairman

ANN MARIE BUERKLE, New York, Vice

Chairwoman

CONNIE MACK, Florida

RAU ́ L R. LABRADOR, Idaho

SCOTT DESJARLAIS, Tennessee

FRANK C. GUINTA, New Hampshire

MIKE KELLY, Pennsylvania

DENNIS J. KUCINICH, Ohio, Ranking

Minority Member

JIM COOPER, Tennessee

JACKIE SPEIER, California

BRUCE L. BRALEY, Iowa
(III)

C O N T E N T S

Page

Hearing held on July 14, 2011 ............................................................................... 1

Statement of:

Capito, Hon. Shelley Moore, a Representative in Congress from the State

of West Virginia ............................................................................................ 4

Mackall, Tom, president, Sterling Mining; Chris Hamilton, senior vice

president, West Virginia Coal Association; Joe Lovett, executive director, Appalachian Center for Economy and the Environment; Roger Horton, chairman, Safety Committee Local 5958, co-chair, Mountain Top

Mining Coalition; and John Stilley, president, Amerikohl Mining Inc. ... 15

Hamilton, Chris ......................................................................................... 21

Horton, Roger ............................................................................................ 49

Lovett, Joe .................................................................................................. 32

Mackall, Tom ............................................................................................. 15

Stilley, John ............................................................................................... 57

Stoner, Nancy, Acting Assistant Administrator for Water, U.S. Environmental Protection Agency; and Margaret E. Gaffney-Smith, Chief, Regulatory Community of Practice, Army Corps of Engineers ....................... 76

Gaffney-Smith, Margaret E. ..................................................................... 90

Stoner, Nancy ............................................................................................ 76

Letters, statements, etc., submitted for the record by:

Capito, Hon. Shelley Moore, a Representative in Congress from the State

of West Virginia, prepared statement of ..................................................... 7

Gaffney-Smith, Margaret E., Chief, Regulatory Community of Practice,

Army Corps of Engineers, prepared statement of ...................................... 92

Hamilton, Chris, senior vice president, West Virginia Coal Association,

prepared statement of ................................................................................... 23

Horton, Roger, chairman, Safety Committee Local 5958, co-chair, Mountain Top Mining Coalition, prepared statement of ..................................... 51

Lovett, Joe, executive director, Appalachian Center for Economy and

the Environment, prepared statement of .................................................... 34

Mackall, Tom, president, Sterling Mining, prepared statement of .............. 17

Stilley, John, president, Amerikohl Mining Inc., prepared statement of .... 59

Stoner, Nancy, Acting Assistant Administrator for Water, U.S. Environmental Protection Agency, prepared statement of ..................................... 79

(1)

EPA’S APPALACHIAN ENERGY PERMITORIUM:

JOB KILLER OR JOB CREATOR?

THURSDAY, JULY 14, 2011

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON REGULATORY AFFAIRS, STIMULUS

OVERSIGHT AND GOVERNMENT SPENDING, COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, Washington, DC.

The subcommittee met, pursuant to notice, at 3:27 p.m., in room

2154, Rayburn House Office Building, Hon. Jim Jordan (chairman

of the subcommittee) presiding.

Present: Representatives Jordan, Kelly, Kucinich, and Speier.

Staff present: Ali Ahmad, communications advisor; Joseph A.

Brazauskas, counsel; Sharon Casey, senior assistant clerk; John

Cuaderes, deputy staff director; Adam P. Fromm, director of Member services and committee operations; Linda Good, chief clerk;

Christopher Hixon, deputy chief counsel, oversight; Mark D. Marin,

director of oversight; Kristina M. Moore, senior counsel; Jeff Solsby,

senior communications advisor; Nadia A. Zahran, staff assistant;

Ronald Allen, minority staff assistant; Jaron Bourke, minority director of administration; Claire Coleman, minority counsel; and Lucinda Lessley, minority policy director.

Mr. JORDAN. The Subcommittee on Regulatory Affairs and Government Spending will come to order.

We’ll do opening statements, get right to our special guest witness on the first panel, the gentlelady from West Virginia—and

great to have you with us.

It may come as a surprise to many Americans that the United

States’ combined energy resources are the largest on Earth, eclipsing Saudi Arabia, China, and Canada combined. Moreover, America’s reserves of coal, the source of half of all electrical power in the

United States, are unsurpassed, accounting for over 28 percent of

the world’s total reserves. The United States has approximately

206 billion tons of recoverable coal, which could help satisfy our demand for energy for centuries.

Counter to the claims of the President, coal and other fossil fuels

are not, ‘‘yesterday’s energy.’’ They are central to our economy’s

productivity and a critical component of our Nation’s competitive

advantage. Make no mistake, renewable energy is worthwhile. But

the fact remains, 85 percent of the global energy is set to come

from fossil fuels until at least 2035.

Much of the coal reserves here at home are located in the mountains of Appalachia and are found in West Virginia, Pennsylvania,

Kentucky, Ohio, and Virginia. Of the 1.08 billion tons of coal pro-
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duced in the United States in 2010, 334 million tons came out of

Appalachia. The rest of the coal was produced primarily in the

State of Wyoming.

Coal is more than an affordable source of energy. For generations, coal production has provided Americans with good-paying

jobs. The average salary of a coal miner is $60,000. Moreover, the

industry supports thousands of service jobs. A study by Penn State

University demonstrates that every coal mining job supports 11

others in the community. It is important to remember that when

we are talking about this industry, it also includes truckers, railway workers, equipment suppliers, and other service employees.

During this recession, we should be seeking out ways to leverage

our abundant natural resources and let private industry and investment create jobs. Unfortunately, this administration has gone

to great lengths, I think, to obstruct domestic production of oil, natural gas, and coal.

A committee staff report entitled, ‘‘Rising Energy Costs: An Intentional Result of Government Action,’’ detailed the ways in which

the EPA, the Department of Interior, and other agencies have implemented policies that have the effect of raising the price Americans pay for traditional sources of energy.

It has become clear that, since the Obama administration failed

to pass the cap-and-trade bill, it has relied on regulatory gimmicks

and the imposition of new permitting hurdles to punish traditional

job-creating businesses in an effort to increase the price of fossil

fuels. Combined with massive subsidies for pet projects, this misguided effort aims to make alternative energy cost competitive with

traditional carbon-based energy resources.

In the case of coal, in Appalachia, EPA has overstepped its congressionally delegated authority under the Clean Water Act and

seized decisionmaking power from the States and from the Army

Corps of Engineers. Under the CWA, Congress gave States the authority to issue section 402 permits and the Corps authority to

issue 404 permits. Congress gave EPA merely an oversight role.

The April 1, 2010, guidance document effectively seized jurisdiction

away from the States and the Corps to administer both of these

permits.

EPA’s actions have created massive uncertainty, putting jobs in

Appalachia at risk, threatening our domestic energy security.

Moreover, it has imposed a virtual permitorium on new coal

projects.

Under EPA’s enhanced review process, the Obama administration officials chose 79 Appalachian CWA permits that had been in

the application process since 2006 for additional review. Only eight

of those permits have been issued—8 out of 79. While 49 have been

withdrawn, many of the withdrawals are due to bankruptcy of the

operator who was not able to outlast the EPA.

From permitorium on deepwater drilling in the Gulf to

permitorium on coal production in Appalachia, the administration

has trampled over administrative proceedings, due process, the intent of Congress, and the rights of States in their effort to rein in

domestic production of carbon-based energy. We should not sit idly

by as the Federal Government wages a stealth war against this essential and job-creating industry.
3

I look forward to the testimony of our witnesses today, and I look

forward to hearing the administration’s response.

I now yield to my good friend from Ohio, Mr. Kucinich, for his

opening statement.

Mr. KUCINICH. Mr. Chairman, thank you very much for holding

this hearing.

While you and I have had the opportunity to work together and

find common agreement on many issues, this may be one of those

rare occasions where we do not. But, nevertheless, you have my

greatest respect for your service, as does Representative Capito.

Scientific research demonstrates that mountaintop removal mining is devastating to both the environment and the health of Appalachian communities. Mountaintop removal mining has created a

water quality crisis in streams where the debris and spoil from

mining sites have been dumped. Mountaintop removal mining has

created an environmental crisis for aquatic life in those streams

and for the most biologically diverse forests in the world which are

being systematically destroyed by mountaintop removal.

Mountaintop removal mining has created a public health crisis

for people depending on those streams. The research shows that

Appalachian residents of areas affected by mountaintop mining experience significantly more unhealthy days each year than the average American, and women who live in areas with high levels of

mountaintop coal mining are more likely to have low-birth-weight

infants and poor birth outcomes.

Under the Clean Water Act, the Environmental Protection Agency is mandated to ‘‘restore and maintain the chemical, physical,

and biological integrity of the Nation’s waters.’’ In order to fulfill

this legal mandate, the EPA has a duty to increase its scrutiny of

Appalachian mountaintop mining permits. I, for one, applaud the

leadership of the EPA Administrator in this regard.

Not only is mountaintop mining—removal mining environmentally harmful, but it’s actually a job destroyer, not a job creator. Studies have shown that mountaintop removal mining has actually had a negative impact on Appalachian employment because

mountaintop removal mining relies on enormous machines, instead

of individual skilled miners. The number of mining jobs needed to

produce each ton of coal has been drastically reduced.

Mountaintop removal mining is essentially eliminating the miners from coal mining, contributing to a decrease in mining jobs. In

1948, there were 125,699 coal mining jobs in West Virginia,

168,589,033 tons of coal mined. In 2010, however, only 20,452 of

these jobs remained, despite the fact that almost the same amount

of coal, 144,017,758 tons, had been mined.

This job loss did not result from any regulation. Instead, it occurred because coal companies themselves have replaced workers

with machines and explosives. The evidence is clear: Mountaintop

removal mining destroys both mountains and jobs.

Coal mining in general has experienced a diminishing share of

employment in Appalachia as well. The cause is falling demand for

coal. According to the Federal Reserve, the capacity of already permitted and active coal mines set an all-time record in 2010 where

the utilization of that capacity was at a 25-year low. So while

enough permits have been approved to achieve a new record level
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of coal mining capacity, there’s simply not enough demand for all

that coal that these mines can produce.

Demand for coal or the decision by consumers to use cleaner,

more energy efficient forms of energy is not something the EPA

controls. It is a decision made by electric-generating plant operators and investors. Increasingly, they’ve chosen to fuel their power

plants with natural gas rather than coal.

I’m deeply troubled by the fact that the House passed the Clean

Water Cooperative Federalism Act of 2011 yesterday. There’s no

doubt this bill is intended to undermine the Clean Water Act and

cripple the EPA’s ability to ensure that States are adequately policing water quality, not just their own citizens but for their neighboring States that share waterways. Ultimately, if this bill becomes

law, it would mean more pollution, more dirty water, more health

problems for Americans forced to rely on these waters.

But it won’t put Appalachian miners back to work. The economics of coal work against that.

Everyone in this room today shares a common desire to put

America back to work. But we do not have to choose between safe

drinking water and healthy communities or jobs. I hope we can

work together to help create sustainable jobs in the Appalachian

region that do not destroy the very communities and the lives of

those who work in them.

With that, Mr. Chairman, I yield back; and I would also like to

request, if I may, unanimous consent to place all of the reports that

document the scientific research on environmental public health effects of mountaintop mining that I referenced in my opening statement, if I could put those in the record.

Mr. JORDAN. Without objection.

Mr. KUCINICH. I appreciate that. Thank you, Mr. Chairman.

Mr. JORDAN. We are now pleased to have our friend and colleague with us, the gentlelady from West Virginia, Mrs. Shelley

Moore Capito. Congresswoman, go right ahead.

STATEMENT OF HON. SHELLEY MOORE CAPITO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WEST

VIRGINIA

Mrs. CAPITO. Thank you, Mr. Chairman; and I want to thank my

neighbor, the ranking member, Mr. Kucinich, too. It’s a pleasure to

be here before the Committee on Oversight and Government Reform. I actually haven’t been in the room, so I’m pleased to be here

and thanks for the opportunity.

This is something that’s very near and dear to us who live in Appalachia, live in West Virginia, are very concerned about the EPA’s

Appalachian energy permitorium, which I believe is leading to a job

drought in my home State of West Virginia. I think you’re going

to hear from a variety of folks from the region today, and all of

them can provide valuable insight into how the EPA’s affecting

their communities and livelihood.

I think it’s timely, because we had the debate on the floor yesterday and just I would like to note that I was able to get an amendment in that bill that I think is important, because it says to the

EPA that—and I’ve had this back and forth with the EPA—are you

considering jobs and the economy? Are you not considering jobs and
5

the economy as you move forward in you rules and regulations?

And I’ve had conflicting messages from them.

So, rather than have a conflicting message, I’m asking that they

consider jobs in the economic impact of decisions that are made

around the Clean Water Act. It doesn’t say in the amendment that

a certain decision has to be made based on that, but I certainly

think that it’s one of the factors that we need to weigh.

As you know, the coal industry is heavily regulated under the

Clean Water Act, mandating that coal operators obtain a variety of

permits prior to beginning their mining operation. The law requires

that the permitting process be quarterbacked by the Corps of Engineers, with input from the EPA and our State DEP, using State

environmental standards issued under authority delegated to the

States. That was the argument yesterday from the EPA.

Earlier this year, we know that EPA retroactively vetoed a previously approved Clean Water Act permit that had been issued for

over 3 years and had been worked. It also—the permit was worked

for 10 years. And I think it just sends a chilling effect, if you’ve

played by the rules and been approved, that you can claw back 3

years later and remove the permit, thereby nullifying the economic

investment and the jobs created related to that.

It’s very rare for the EPA to do that. But I think that it does

send a philosophical viewpoint of what’s going on in southern West

Virginia in particular. I think coal operators can no longer safely

make investments, because the EPA has removed some regulatory

certainty from the permitting process by having them wonder will

their permits be revoked after they have invested millions of dollars.

The negative impact, I think of the EPA’s action upon jobs, in my

view, is obvious. The EPA has been unable to give me a straight

answer—and I said this in the beginning—as to whether or not it

does consider the negative impacts on jobs prior to making their

rules and regulations in force.

Just last month, AEP, which is our local—certainly you know

that in Ohio. AEP is a provider of electricity in your great State—

announced that it will shut down five plants, coal-burning plants,

coal-burning power-generation plants. And the direct effect of this

is job loss. It’s economic loss. And it also is raising—and this concerns me as well—10 to 15 percent on your energy bill at the end

of the month or at the end of the year. And I think for a State like

ours with a lot of people on fixed incomes, that’s an economic impact that we need to consider.

But, you know, the permitorium on coal operations is not the

only place where EPA has been hurting economic growth under the

auspices of the Clean Water Act. Notably, let’s talk a little bit

about construction and agriculture. Anybody who needs to move

dirt or discharge water or water runoff requires a Clean Water Act

permit. While many of you don’t have coal operations in your particular district, it’s likely that industries and projects within your

districts could be negatively impacted by these rules and regulations.

Just for instance, family farms. There’s a family farm in Pendleton County that, according to a local newspaper, the EPA was

going so far as to regulate the type of sheds that family farmers
6

may build on their cattle operation. They were actually doing,

which I could not believe, aerial surveillance on our family farms.

And then, when asked, when the local folks asked, are you looking

at how much this is going to cost me and where are you looking

at, you know, trying to strike that balance between economy and

the environment, the person from the EPA said, that’s not part of

their consideration.

And I think that’s been pretty consistent with the way the EPA

has been acting. I think their actions are unacceptable, because

they are not looking at the full picture. That’s all I am saying. Let’s

have transparency. Let’s look at the full picture.

We have the natural resources to help create jobs and protect our

economy at the same time. We are truly blessed with an abundant

supply of natural resources. And as a native West Virginian, I

treasure the beauty of our State and the clean water of our State,

and I want to do what we can and should do to protect our State’s

environment. But, instead of having a push and pull where we’re

only looking at one side of the story, without the complete picture,

I think we endanger job creation, our energy security of the Nation,

and I think it’s time for us to take a better look.

And I thank you all for giving me the privilege of testifying.

[The prepared statement of Hon. Shelley Moore Capito follows:]
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Mr. JORDAN. Thank you for your excellent testimony, Congresswoman.

Now we will get the panel set up, the table set up for our next

panel. Thank you again, Shelley.

Staff will take just a minute and get ready for our first panel.

We’ll move right into those new witnesses. Take a look where your

name tag is and jump in.

Do we have our witnesses? All right. Just come right up to the

table. We’ll get rolling here.

On this panel we have, first, Mr. Tom Mackall, president of Sterling Mining. We have Mr. Chris Hamilton, senior vice president of

the West Virginia Coal Association; Mr. Joe Lovett, director of the

Appalachian Center for Economy and the Environment; and Mr.

Roger Horton, chairman of the Safety Committee of the United

Mine Workers Local 5958 and co-chair of the Mountain Top Mining

Coalition.

And our fifth witness—I’ll yield to the gentleman from Pennsylvania.

Mr. KELLY. Thank you, Mr. Chairman; and thanks for holding

this hearing.

I would like to welcome a constituent of mine from Western

Pennsylvania, John Stilley, who operates Amerikohl.

I could talk for a long time about John Stilley and what he’s been

able to do in business. But I think the most important thing that

John Stilley has done, he has been such an important part of our

community with job creation and also land reclamation. And the

land he has reclaimed has been at no cost to taxpayers.

So when we look at these people and understand that they took

time out of their private lives to come here today and share with

us the situations that they face as they try to run their businesses—and maybe it’s unintended consequences, but sometimes I

start to wonder of government overregulating and being so involved

in a business that it makes it very difficult to operate a business

profitably and to keep hiring people.

So, John, I really appreciate your being here today, Mr. Stilley.

You’ve done a great job. Keep up the good work and please give me

best to the whole family.

Mr. JORDAN. I know you just got seated there, but, pursuant to

committee rules, we need you to stand up, raise your right hand,

and we have a swearing in that we do here.

[Witnesses sworn.]

Mr. JORDAN. Let the record show that they all answered in the

affirmative.

And we will now move right to our first witness, Mr. Mackall.

Go right ahead. You have 5 minutes. You’ve got the lights somewhere where you can see them and I think right in front of you,

so you get the warning light. When you get the warning light, unlike speeding up—well, no, just like speeding up. Get to the finish

line. Get right through it.

So go right ahead, Mr. Mackall.
15

STATEMENTS OF TOM MACKALL, PRESIDENT, STERLING MINING; CHRIS HAMILTON, SENIOR VICE PRESIDENT, WEST VIRGINIA COAL ASSOCIATION; JOE LOVETT, EXECUTIVE DIRECTOR, APPALACHIAN CENTER FOR ECONOMY AND THE ENVIRONMENT; ROGER HORTON, CHAIRMAN, SAFETY COMMITTEE LOCAL 5958, CO–CHAIR, MOUNTAIN TOP MINING COALITION; AND JOHN STILLEY, PRESIDENT, AMERIKOHL MINING INC.

STATEMENT OF TOM MACKALL

Mr. MACKALL. Thank you, Chairman Jordan, Ranking Member

Kucinich, members of the committee. Good afternoon.

I’m just a coal miner from Ohio, but it’s my pleasure to come to

Washington and testify in front of Congress, and I really appreciate

the opportunity.

My name is Tom Mackall. I’m with the East Fairfield Coal Co.

Sterling Mining is also another name, our underground mining

company.

We currently have operations in Ohio and Pennsylvania. We employ over 160 hardworking Americans. We have underground mining operations and mine coal, clay, and limestone.

But we’re still a small business. I’m proud to say that we’re a

family business. My father started working for the company in

1934, and I’ve been there 40 years, and I have now a son that’s

been there 10 years. So we’re trying to continue the family tradition.

When I was preparing my remarks for today I was at the coal

mine yesterday, and one of the coal miners came up to me, and he’s

never said anything like this to me before. But he said, I read a

Bible verse that reminds me of the government. And he told me it

was Luke chapter 11, verse 46. So I got it out, and I read it, and

I’d like to read it to you today. It really summarizes my viewpoint

of the government.

‘‘Jesus replied, and you experts in the law, woe to you, because

you load people with burdens they can hardly carry and you, yourselves, will not lift one finger to help them.’’

When I consider your question, it’s easy to say the EPA has been

a job killer. It’s absolutely a job killer, and it’s killing jobs across

Ohio and Appalachia. But it’s not just the EPA; it’s the entire administration. They have declared war on coal and specifically on

Appalachia coal-related jobs.

I want to highlight three areas where the current administration

has hurt Appalachia jobs and job creators, permitting delays, inconsistent enforcement, and new regulations.

First, the extremely burdensome and flawed system of the permit-approval process has been complicated in a purposeful manner

by the administration. We have seen the administration insert EPA

into the permitting process through the use of what they call guidance documents. These really serve the purpose of usurping the

power of our Army Corps of Engineers as well as State regulators.

For example, we have been struggling to obtain a refuse permit

at our Brush Creek Mine in Jefferson County, Ohio. Mr. Chairman,

a small company like ours cannot afford to keep people employed

if we are unable to have some sort of logical permitting process.
16

That’s because the required background studies take nearly a year

by themselves, and in the case of this refuse permit it’s cost us over

$300,000. In this case, 3 years later we still are no closer to having

our permit issue resolved.

The second major weapon that is being used by the current administration is inconsistent enforcement. The Department of Labor’s Mine Safety and Health Administration and their actions are

particularly troubling. MSHA has proposed a Respirable Dust

Standard that is unachievable in underground mine settings and

continues to be unable to produce the relevant data that that they

claim creates the causation basis for their rule.

There are certainly and importantly some very good inspectors

within MSHA’s ranks. But the problem is that MSHA is being used

strictly as a tool to push for massive fines and charges that suddenly emerge on some days that the exact condition were fine on

another day.

The third means by which the Obama administration is waging

war on coal is through new EPA regulations. Just last week they

unveiled the final Clean Air Transport Rule. When combined with

another part of what I call the EPA train wreck, the impacts on

the economy are staggering. Recent modeling has shown that the

transport rule and EPA’s Utility MACT proposal will result in the

loss of 1.44 million American jobs, along with costs of $184 billion

to power providers.

And the important thing here is these costs, added to our manufacturers in the United States, they cannot afford more jobs. It’s

like an additional tax. So I think more jobs will leave the country

as we raise our electric rates like that.

Since the recession started, we have lost three major customers.

Each of them provided important jobs and products for the economy but were all heavily regulated by the EPA. Two of these companies were cement manufacturers. Now we are importing cement

from Peru. It’s an important but troubling twist that the Peru cement is being imported through a port in New York using funds

from the stimulus.

Let me be clear. This administration’s regulatory agencies are

destroying jobs in Appalachia while, at the same time, the stimulus

funding has made it easier to import competing goods from other

countries.

Mr. Chairman, I offer these examples because they are real, and

they are really hurting Ohioans and Appalachians. For generations, our reasonable energy costs, powered in large part by coal,

led to Ohio being a great industrial State. Now, with the administration’s policies, we are seeing this change and our competitive

edge decline.

Simply put, the three items I have highlighted—permitting problems, inconsistent enforcement, and new regulations—are destroying what formerly made Ohio and Appalachia so strong.

Thank you for the opportunity to testify, Mr. Chairman, and I

stand ready to answer any questions the committee may have.

Thank you.

[The prepared statement of Mr. Mackell follows:]
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Mr. JORDAN. Thank you.

Mr. Hamilton.

STATEMENT OF CHRIS HAMILTON

Mr. HAMILTON. Mr. Chairman, members of the committee, good

afternoon, and thank you for the opportunity for us to participate

in today’s proceeding.

I’m Chris Hamilton with the West Virginia Coal Association, and

I appear before you today on behalf of the West Virginia Coal Association, along with the West Virginia Business and Industry Council.

The State of West Virginia is the Nation’s leading underground

coal-producing State, consistently averaging 155 million tons of annual coal production over the past decade. That comes from approximately 300 underground mines, 230 surface mines, and about

27,000 coal miners.

West Virginia’s coal is the most valuable, most desired coal in

the world for both electric generation and for the production of iron

and steel. Our coal is shipped to some 33 States and 23 foreign destinations, and West Virginia’s energy fuels approximately 40 percent of the electrical power needs up and down the entire East

Coast.

The coal industry is also the broad-shouldered Atlas of the West

Virginia’s economy, supporting thousands of supporting jobs and

businesses. The coal industry accounts for more than 12 percent of

the State’s gross State product, $3.2 billion in direct wages annually, and over $27 billion in overall economic activity.

Coal is also the backbone of our State’s government structure.

The taxes collected on coal production provide the majority of funding for vital State and county social programs. In fact, together

with the electric utility industry, coal provides upwards of 60 percent of all business taxes collected in the State of West Virginia.

All the direct benefits provided by the coal industry and our

State’s economy have been clearly placed in serious jeopardy by the

actions of the current administration and its EPA. EPA has gone

to great lengths to target coal mining operation across the Nation.

It seems to have focused specifically on the State of West Virginia

and our surrounding States within the Appalachia region.

The Agency’s assault begins with the mine-permitting process

and continues up to the point where coal is consumed. EPA has virtually halted the orderly processing of mine permits and continues

up to the point where coal is actually consumed, including casting

a doubtful shadow over the continued use of coal, by processing

sweeping revisions to clean air standards and entirely new regulatory programs for coal combustion residuals.

Simply put, the government, our government, today is coming by

land, air, and sea to create havoc and cripple the production and

use of West Virginia coal. The Federal Government’s battering of

the industry literally began the moment the current administration

assumed office by issuing a series of objection letters to the

issuance of new mining permits, followed immediately by a convoluted multiagency enhanced permit review process and sweeping

revisions that were not promulgated by lawful administrative rule

to the regulatory consideration of mining permits, effectively usurp-
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ing the powers of the State and imposing limits for which no promulgated standards exist.

EPA, in our view, has clearly abused its role under the Clean

Water Act to essentially bypass and nullify the authority and responsibilities of individual States to regulate activities within their

borders. They have done so by way of guidance and policy, disregarding the Federal rulemaking process so carefully crafted by

the Congress decades ago within the boundaries of the Clean Water

Act.

EPA’s interference knows no bounds. EPA will tell the Congress

and the public—and we’ve heard it here already today—that its actions target only large-scale mountaintop mining operations. Nothing is further from the truth. The Federal agency is actively obstructing the issuance of permits for surface mines, small surface

mines with absolutely no valley fills, with no discharges in lawful

waters of the State, underground mining operations, and practically every surface facility that must be developed to sustain and

operate both surface mines and underground, which include the

smallest of haulage roads.

Reduced to its essence, what you have is EPA avoiding the rulemaking process and lawful boundaries of its authorities under the

Clean Water Act to impose the most stringent, impractical, if not

impossible-to-meet standards against a selected industry in a handful of States. Despite repeated pleas and requests from our executive, our industry officials, both labor and management, our legislative branch of the government, to engage in a professional discussion of these critical issues, EPA has simply thumbed their nose at

every single elected official within our State and has told us repeatedly that they have no interest whatsoever with respect to the jobs

or the economic consequences of mining. So egregious is EPA’s behavior, the State regulatory authorities, including West Virginia,

have sued their Federal counterpart over its abuses of power in

Federal court.

Mr. JORDAN. Mr. Hamilton, if you could just conclude real briefly.

You can finish if you’ve got a couple of sentences there. But just

conclude quickly.

Mr. HAMILTON. Thank you, Mr. Chairman.

Resolution of this issue cannot wait for judicial adjudication.

Every day the permitting backlog at the Corps and EPA grows, and

today that universe of paralyzed permits is nearly approaching

1,000 with respect to all permitting actions that must occur in

order to sustain our viability.

The buying of coal is so significant——

[The prepared statement of Mr. Hamilton follows:]
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Mr. JORDAN. Mr. Hamilton, we’ll get to the rest of that during

the questions. Thank you very much for I think your very compelling testimony.

Mr. Lovett.

STATEMENT OF JOE LOVETT

Mr. LOVETT. Good afternoon, and thank you for the opportunity

to testify here today.

My name is Joe Lovett, and I’m executive director of the Appalachian Center for the Economy and the Environment. We’re a nonprofit policy center located in Lewisburg, WVA.

I’m also a lawyer who has been attempting for too many years

now to enforce surface mining, coal mining, and other environmental laws that Federal and State regulators refuse to enforce in

Appalachia.

I learned a word here today, permitorium, I think, which really

I don’t think is a word at all except maybe in George Orwell’s

world. But, in any event, it’s certainly not an accurate description

of what is occurring on the ground in Appalachia.

For years now, every permitting agency has issued any permit to

the coal industry that it wants at any time. This is the first time

the coal industry has met any resistance to its permitting, and it

doesn’t like it.

I would note that no operator has the right to a permit. It has

to comply with the law. And none of the permits for mountaintop

removal comply with the law. That’s why EPA is doing what it’s

doing now.

EPA’s actions to regulate surface mining in the region during the

past 21⁄2 years have been necessary not only to enforce the Clean

Water Act against mining operators but also to ensure that regulatory agencies comply with the law. Too often, State and Federal

agencies in our region see their jobs not as enforcing the law and

protecting the environment and the communities in the region but

as protecting coal operators from having to comply with the law.

Rather than forcing mountaintop removal operators to conform

their actions to the law, Federal and State agencies bend or change

the law to accommodate destructive mining practices.

Make no mistake. This is not about mining in general. It’s about

mountaintop removal. EPA’s actions go to mountaintop removal.

Mountaintop removal can’t be conflated with all mining. So mountaintop removal should be stopped. It can’t comply with the law.

It’s hurting the people of our region and stealing its jobs.

The U.S. Army Corps of Engineers continues to disregard its duties under the Clean Water Act by issuing permits to mountaintop

removal operators. The Corps is literally overseeing the illegal destruction of our mountains and streams. For years, the Corps has

issued permits for huge mountaintop removal mines with little

more than a wink and a nod. And the unlawful issuance of the permit to Arch’s Spruce Mine is a paradigmatic example of the Corps’

refusal to enforce the law.

In the past 21⁄2 years, EPA has taken three significant steps to

enforce the Clean Water Act relating to mountaintop removal mining. It entered into an enhanced coordination process with the

Corps for the issuance of 404 permits, it vetoed Arch’s Spruce 404
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Mine, and it issued a guidance document on conductivity levels in

Appalachian streams.

None of these actions should be controversial. Taken together,

they merely accomplish the minimum required by the Clean Water

Act. Indeed, EPA should take much more vigorous actions to enforce the laws in our region.

For instance, Arch’s Spruce Mine, which the Corps vetoed, would

devastate one of West Virginia’s most beautiful hollows. Although

the industry has tried to foment controversy around EPA’s veto of

the Spruce Mine, that veto was necessary to protection the Nation’s

water and was, therefore, required by the Clean Water Act. The

discharges at that Spruce Mine alone would bury 6.6 miles of highquality Appalachian headwater streams. That 6.6 miles is over 5.6

percent of the total streams in the headwaters of the Spruce Fork

watershed. The mining would remove 400 to 450 vertical feet from

the mountains and would place approximately 501 million cubic

yards of overburdened material in those streams.

This is not an issue about procedure. This is issue about enforcing an act that, on its face, has to protect water. The mining industry is destroying water at a clip in Appalachia that no other industry enjoys anywhere in the United States. To allow this to continue

without regulation would be the mistake.

Economically, mountaintop removal is devastating the economy

in the coal mining region as much as it is the mountain. Mountaintop removal is capital intensive. It uses machines and explosives to

replace miners. We’ve seen a slight drop-off in mountaintop removal lately. As that’s happened, coal production has remained relatively constant, and employment has actually increased.

And, of course, the public health impact may be the most troubling of all. You see that research is showing now that there are

birth defects associated with people living near mountaintop removal mines.

So, all in all, mountaintop removal is an ecological, economic

public health disaster that does not comply with the Clean Water

Act. EPA is merely enforcing the act and, if anything, we think

should more stringently enforce the act; and I hope that Congress

will not do anything to limit its ability to do that.

Thank you.

[The prepared statement of Mr. Lovett follows:]
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Mr. JORDAN. Thank you, Mr. Lovett.

Mr. Horton.

STATEMENT OF ROGER HORTON

Mr. HORTON. Good afternoon, and thank you for the opportunity

to truthfully testify today on this very important subject.

My name is Roger Horton. I am the founder of Citizens for Coal

and co-founder of the Mountaintop Mining Coalition and a member

of Local Union 5958 of the United Mine Workers of Amerikca.

I’ve spent over 30 years in the West Virginia mining industry,

beginning in 1974 as an underground coal miner. During my career, I have also been active in my union, serving in various official

capacities for my union local.

I am proud to say that I’m still a coal miner and a local union

officer at a surface coal mine in West Virginia. A native West Virginian, I have lived virtually all my life in the coalfields of the

mountain State, spending most of that time in Logan county where

I live today in the community of Holden. I built a home, raised two

children, participated and enriched my community all because of

my employment in the coal industry.

It is because of my rewarding experiences in and around the coal

industry and its communities that in 2008 I founded Citizens for

Coal, a group open to everyone, no matter their employment or

other affiliation, dedicated only to preserving the future of coal

mining jobs and to actively participate in the debate surrounding

coal mining in West Virginia and Appalachia. It is in this capacity

that I appear before you today.

I am deeply concerned and troubled by the actions of the Federal

Environmental Protection Agency with respect to mining permits

in West Virginia and Appalachia and its whole attitude concerning

the place that coal occupies in our Nation’s energy supply mix.

The EPA has openly attacked coal. This assault begins with the

permit application process, which you are discussing today, and

continues to throughout the process and finally to the end use of

coal, where EPA has recently announced sweeping regulatory

changes. These regulatory initiatives, coupled with the Agency’s obstruction of mining permits, threatens to cripple the viability of Appalachia and West Virginia as a source of domestic energy and destroy West Virginia’s coal reputation as the world’s fuel of choice,

be it for electrical generation or steel making or manufacturing.

In its attacks on the mine-permitting process, the EPA has trampled the interests of our individual States to control and regulate

activities that occur within their own borders. In West Virginia, the

EPA has arrogantly disregarded the will of the people and the actions of the West Virginia legislature with respect to water quality

standards, streams uses, and environmental improvement. The

Federal agency has focused on insects and tiny, almost

undetectable shifts in insect populations, while ignoring the overall

health of our mountain streams and the aquatic life and fish that

call them home. Further, EPA has taken such positions without regards to jobs or communities that depend on these occupations for

their very survival.
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If left unchecked, EPA threatens to strip our citizens, our communities, and the very social fabric of West Virginia of the most

important source of existence, and that is coal.

These are not just idle observations. I have personally witnessed

the social and economic disruptions that occur when unelected bureaucrats in an EPA office somewhere in downtown Philadelphia

make arbitrary decisions about what is best for my fellow coal miners, my friends, and my community.

About 11 years ago, through a combination of government interference and numerous legal challenges, a large surface mine in

Logan County, WVA, was forced to close because it could not obtain

the permits necessary to continue mining the coal. The results

were devastating. Some 400 members of Local Union 2935 were out

of a job, not because there was no demand for the coal or because

the coal reserve had been exhausted but because of pure legal and

regulatory interference.

The work force and this local union was obviously devastated,

but the county was severely damaged as well. The school system

and social welfare programs lost revenue that was vital to their existence and operation. Entire communities were devastated. With

nowhere to work and no prospect of the mine reopening anytime

soon, some residents packed up and moved to other States to find

lower-paying jobs. Businesses that relied on the mine for their income—gas stations, restaurants, repair shops, and equipment vendors—vanished. Families suffered and disintegrated. Substance

abuse and divorces skyrocketed, and these folks struggled to come

to terms with the loss of the good-paying jobs that were forecast

to last decades.

In fact, it is fair to say that our communities and certain families

have never recovered from the loss of these jobs.

That experience and those troubling, painful memories motivated

me to start the Citizens for Coal organization, of our community

and I hope the committee and the entire Congress is mindful that

the EPA’s assault on the coal industry has real, often dramatic effects on our work force and our people.

I have been fortunate to be able to spend the majority of my life

living and working in my native West Virginia. Every day I enjoy

the benefits of a rural way of life. I hope that my children can live

and work in West Virginia and enjoy the same lifestyle and experience, but every day the EPA goes unchecked those chances decline.

Finally, as a lifelong citizen of the coalfields of Logan County,

WVA, I would like the committee to carefully weigh the testimony

of others that do not live, work, or recreate in our communities.

They will come before you as false prophets claiming to represent

the people of the coalfields and/or environment and offering to help

us survive or transition to other forms of employment when they

destroy our coal industry. Whether they be from the EPA or the

Corps in Washington or lawyers that claim they sue the government on our behalf, we don’t need their assistance or help. We can

do just fine on our own.

[The prepared statement of Mr. Horton follows:]
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Mr. JORDAN. Thank you, Mr. Horton.

Mr. Stilley.

STATEMENT OF JOHN STILLEY

Mr. STILLEY. Good afternoon. Chairman Jordan, members of the

Regulatory Affairs, Stimulus Oversight and Government Spending

Subcommittee, my name is John Stilley. I am president of

Amerikohl Mining, Inc., which is headquartered in Butler, PA. I’m

also president of Patriot Exploration Corp. and Amerikohl Aggregates, Inc.

Amerikohl mines coal by the surface mining method in 10 Pennsylvania counties. Last year, we produced 1 million tons of coal and

employed 110 workers. Since 1978, we have completed mining on

324 separate mining sites and have successfully reclaimed the land

to productive post-mining uses, including parks, residential communities, working farms, and forest land. Approximately one-third

of these sites consisted of areas which had been mined in the

1940’s and 1950’s where no reclamation was required to be done.

Amerikohl’s remaining efforts on these sites provide for hundreds

of acres of abandoned mine reclamation and miles of streams rehabilitated, all at no cost to the taxpayer or public. Amerikohl’s has

won over 70 awards for excellence in reclamation over the past 30

years.

We are also in the stone and natural gas business. Last year, we

produced 750,000 tons of stone and aggregates used to build and

rehabilitate Pennsylvania’s infrastructure and currently operate

160 oil and gas wells from the Upper Devonian formation, all in

Pennsylvania.

I’m here today also on behalf of the Pennsylvania Coal Association. Pennsylvania is the Nation’s fourth leading coal-producing

State, mining about 67 million tons in 2009. In addition, the coal

industry is a major contributor to Pennsylvania’s economy. Its annual economic benefit to the Commonwealth exceeds $7 billion and

it is responsible for the creation of 41,500 direct and indirect jobs,

with a payroll totaling over $2.2 billion. Taxes on these wages

alone netted more than $700 million to the coffers of Federal,

State, and local governments. Most of the coal produced in Pennsylvania is used to generate affordable and reliable electricity.

I appreciate being asked to testify today on EPA’s overreach into

the States permitting programs and how this abuse of power is

costing production and jobs in the Appalachian coal fields.

Frankly, EPA’s heightened scrutiny and overzealous regulation

of coal mining in the past 2 years threaten the future economic viability of our industry. These policies attack both the mineral extraction process through protracted Federal review of mining permits heretofore reserved to the States and the end use process

through establishing unreasonable and unjustifiable emission reduction standards for greenhouse gases, mercury, coal waste, and

a plethora of other alleged pollutants. The cumulative effect of this

assault provide for and will be an economic train wreck in the next

few years to come.

To illustrate how EPA’s actions are jeopardizing economic resurgence and the continued use of coal as an energy source, my testimony will focus on EPA’s repeated intervention in an
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approvedState-delegated permitting program, the National Pollution Discharge Elimination System, and the chaos it’s created.

Under section 402 of the Clean Water Act, NPDES permits for

discharges of non-dredged and non-fill material are issued by the

States once EPA approves the permitting programs. Pennsylvania’s

permitting program was approved by EPA through a 1991 Memorandum of Agreement executed between the Commonwealth and

the EPA. The Pennsylvania DEP was identified as the lead agency

with exclusive authority for administering and granting NPDES

permits for mining-related the activities in Pennsylvania. As part

of this agreement, EPA waived its authority to conduct permit reviews of pending NPDES permit applications.

Pennsylvania’s NPDES permitting process, which worked well

for nearly two decades and was even recognized on many occasions

for its excellence by EPA, was dramatically and unilaterally altered

by EPA in September 2010. At that time, EPA, without any accompanying Federal statutory or regulatory changes, informed DEP

that it was limiting the permit review waiver specified in the

Memorandum of Agreement and would be conducting its own independent permit reviews for mining programs with discharges to the

Monongahela River, the Kiskimenitas River, and the Conemaugh

River or, for that matter, to any impaired watershed with designated total maximum daily load limit.

The Federal agency directed DEP to forward all such permit applications to its regional office. To date, EPA’s Region III field office

in Philadelphia has received 104 NPDES permit applications from

DEP for review and comment. In addition, DEP continues to forward additional draft permit applications to EPA each month for

review.

Since EPA’s Region III office is not sufficiently staffed or, in

many cases, qualified to perform the NPDES permit reviews in a

timely manner, the change has led to indefinite delays in mining

permit processes. Obtaining an NPDES permit for any discharge is

a prerequisite to mining, so these delays and permit backlogs are

tantamount to de facto prohibition of mining.

Also, while the EPA’s comments and objections resulting from its

permit reviews vary, a number of the objections to the permits are

based on what the Federal agency perceives are inconsistencies between the application and an interim final guidance that it developed to provide a framework for regional reviews of surface mining

projects based on conductivity levels——

Mr. JORDAN. If you could just finish up here.

Mr. STILLEY [continuing]. It associated with adverse impact on

water quality.

[The prepared statement of Mr. Stilley follows:]
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Mr. JORDAN. I know it’s tough to get through everything. Thank

you.

We’ll start our questioning now.

Mr. Hamilton, how many permits does a mining company need

to actually do their business? Just give me a rough estimate. How

many permits do you need to operate?

Mr. HAMILTON. I don’t have that answer. I apologize.

Mr. JORDAN. Is it five? Is it dozens? Is it hundreds?

Mr. HAMILTON. I would say on the order of magnitude upward

of 50, probably closer to 100.

Mr. JORDAN. Between 50 and 100 permits.

And that has not changed since the Obama administration has

come into office, correct? Still the same number of permits.

Mr. HAMILTON. That is absolutely correct.

Mr. JORDAN. What has changed is the way those permits are

granted, what—the scrutiny or just the enhanced review process,

that’s what’s changed.

Mr. HAMILTON. Yes.

Mr. JORDAN. And you’ve seen a marked increase in the ability for

you to get the 50 to 100 permits you need to operate.

Mr. HAMILTON. Those are all not permits issued by under the

Clean Water Act or EPA. But yes.

Mr. JORDAN. But total permits you’ve got to go to government to

operate.

Mr. HAMILTON. Yes.

Mr. JORDAN. And a marked increase.

And Mr. Stilley, you said the same thing. I think I heard that

pretty clear in your testimony.

Mr. STILLEY. We go through possibly 10 permits every year as a

small coal company in Pennsylvania.

Mr. JORDAN. Okay.

Mr. STILLEY. It’s taking us anywhere from probably 2 to 31⁄2

years now to secure a permit. All the while, our coal mines, from

start to finish, only last anywhere from 6 months to a year and a

half. That alone speaks volumes to the dilemma that this is creating for us alone.

Mr. JORDAN. I understand. Understand.

Mr. Mackall—I’m saying that wrong again. I apologize.

Same thing? You would say the same thing? Marked increase?

Mr. MACKALL. I’m an underground miner, so I don’t have to get

as many permits——

Mr. JORDAN. How many do you have to get?

Mr. MACKALL [continuing]. As a surface mine operator, but they

have a significant effect on us. And they force us to do things in

unusual ways. Like, for example, we have an underground coal

mine that finished. We couldn’t get the Army Corps permits and

the EPA permits we needed for the next mine, so we actually just

used the same footprint that we had for the end mine and went

down 180 feet to a lower coal seam and sloped down to hit that instead. And it cost us $1 million more to develop that mine because

we couldn’t get the permits that we needed in a timely manner.

Mr. JORDAN. And all these permits—Mr. Lovett, in his testimony,

said that permits are denied if you’re not in compliance with the

law. Mr. Hamilton, all the companies you represent in your asso-
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ciation, were they in compliance with the law when you were getting permits in a much more efficient manner?

Mr. HAMILTON. Yes, absolutely.

Mr. JORDAN. You weren’t breaking the law, right?

Mr. HAMILTON. No, sir.

And perhaps the most egregious illustration that we could all use

is the Spruce Mine where this mine, the permitting process was

under way. It’s probably undergone the most scrutiny of any industrial permit in the country. It underwent about a 6-year plus approval process with all the environmental and technical and engineering, with EPA participating throughout that period of time.

The permit was issued back in 2007.

Mr. JORDAN. And this mine you’re referring to, if I could interrupt Mr. Hamilton, this is the one that was challenged in a court

case. And what was the decision of the Fourth Circuit in that case?

Mr. HAMILTON. The Fourth Circuit completely cleared the company.

Mr. JORDAN. And the challenge came on this enhanced review

concept that’s before us today; is that correct, Mr. Hamilton?

Mr. HAMILTON. That’s correct.

Mr. JORDAN. And who was the individual who argued the case

and brought the case? Who was responsible? Who argued the case?

What agency—who argued that case on behalf of I think it’s the

Ohio Valley Environmental Coalition?

Mr. HAMILTON. Yes.

Mr. JORDAN. Who was the individual that argued that case? Do

you know, that brought that case?

Mr. HAMILTON. I believe it was Mr. Joe Lovett and his colleague

sitting right here.

Mr. JORDAN. And, again, what was the decision of the Fourth

Circuit?

Mr. HAMILTON. The Fourth Circuit completely overturned every

single ruling of the court.

Mr. JORDAN. So they said the way it was operating before, prior

to this administration——

Mr. HAMILTON. There was no violations with the Clean Water

Act, yes.

Mr. JORDAN [continuing]. Was fine. And that was the Aracoma

decision of the Fourth Circuit; is that correct?

Mr. HAMILTON. That’s correct.

Mr. JORDAN. Okay. I just want—a question to the business owners, real quick.

We had this happen, probably it was the hearing in front of the

full committee 5, 6, maybe 4 months ago, I guess. We had a group

of business owners in here. And at the end of the long hearing on

regulation, the impact it’s having on business, what I thought was

one of the most compelling questions and part of the entire hearing, a colleague of ours, Mr. Guinta from New Hampshire, asked

the witnesses, all business owners, many small business owners—

one was actually from our district—he asked them a simple question.

He said, guys, if you knew then what you know now, would you

have started your business? If you knew all the things government

was going to require you to do, would you have started? Would you
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have created those jobs? Would you have taken the risks? Would

you have provided those opportunities for all the employees that

work for you?

The answer from every single one was they wouldn’t do it.

And I just wanted to ask the same question to you, Mr. Stilley,

and then you, Mr. Mackall, and Mr. Hamilton for the business you

represent. If you had it to do all over again, would you do it?

Mr. STILLEY. I started my business in 1978. In no way, shape,

or form could I have ever anticipated all the impediments—regulatory impediments that have been thrown up by the Feds, principally the Feds. State government’s fine. The answer to your question is probably no.

Mr. JORDAN. How many people work for you, Mr. Stilley?

Mr. STILLEY. I have 120 men and women working for us right

now.

Mr. JORDAN. Mr. Mackall.

Mr. MACKALL. We have 160 employees, and that’s my big quandary. And I also have a quandary within our family. As a family

business, my son could have chosen a lot of things. He has his

MBA. He could have chosen a lot of things for a career; and, you

know, he chose to come and work for our company. And I don’t

know if that’s the best thing for him.

But it all comes down to we have a responsibility to these employees that have worked for us for many years, and it’s hard to

walk away from it. But I would love the freedom of not having to

deal with all those issues; and I really wonder if I’d ever, you know,

would have started over again if I had to.

Mr. JORDAN. Thank you.

I yield to the gentleman from Ohio, Mr. Kucinich.

Mr. KUCINICH. Thank you very much, Mr. Chairman.

Mr. Mackall, is it?

Mr. MACKALL. Mackall.

Mr. KUCINICH. Mackall.

Mr. Mackall, in the notice of the hearing, it has you as president

of Sterling Mining, and I’m told that you’re the officer of East Fairfield Coal Co. Could you help this subcommittee or this committee

with this——

Mr. MACKALL. They are both companies that are in my—a part

of my family business. One’s an underground mining company of

coal, and one’s a——

Mr. KUCINICH. Which is which?

Mr. MACKALL. East Fairfield Coal Co. is now a limestone coal

company, and Sterling Mining is an underground coal mining company.

Mr. KUCINICH. So have you been an officer of both, then?

Mr. MACKALL. Correct.

Mr. KUCINICH. Okay. And how long have you been an officer of

both?

Mr. MACKALL. Thirty-plus years.

Mr. KUCINICH. Okay. I have here a news report that said that Sterling Mining to pay a $50,000 fine for Clean Water Act violations at the Sunshine Mine and Mill, according to an EPA agency

release. This was from 2009. Are you familiar with that story?

Mr. MACKALL. No, I’m not. It’s not the same company.
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Mr. KUCINICH. It is not? Okay. Then I withdraw then. Is it

your—I want to go to Mr. Hamilton.

Your comments on litigation over the Spruce Mine permit revocation, can you tell us a little bit about that?

Mr. HAMILTON. First of all, I—I was asked a question in haste

whether that was the Aracoma decision. I believe that was known

as the Bragg decision, but this permit underwent about a 6-year,

plus year scrutiny. EPA, Corps of Engineers, the State DEP, everyone had very, very intense involvement with that permit. The permit was issued in 2007, only to have EPA come back a year and

a half ago, 2010, and actually initiate revocation proceedings for

that permit, and that’s been the only mining permit in the country

that has underwent the—that type of scrutiny and action on behalf

of the EPA.

Mr. KUCINICH. Now, Mr. Lovett, could you clarify the legal issues

that Mr. Hamilton referenced?

Mr. LOVETT. Certainly.

Mr. KUCINICH. And use the mic, please.

Mr. LOVETT. Yes. Let me state first, the Court of Appeals did not

overturn the Clean Water Act injunction in the Spruce Mine case.

That’s incorrect. The Army Corps of Engineers was forced to

change a longstanding regulation, the definition of fill material,

which basically legalized mountaintop removal, and it did that in,

I think it was 2008. As a result of that ruling, other issues went

to the Court of Appeals, not the issue of the court’s injunction related to Clean Water Act issues in the Spruce case.

The most important thing about the Spruce Mine, from my perspective, isn’t all the procedural wrangling that we’re doing here.

It will destroy, forever, nearly 5 square miles of Appalachian forest

and streams. It will fill with mining waste over 6 miles of stream,

forever. If that kind of activity doesn’t deserve environmental scrutiny, I don’t know what does.

Mr. KUCINICH. Well, let me go—just hold on there. Now I want

to go back to Mr. Hamilton.

Mr. Lovett just outlined some environmental consequences. We

hear about those all the time, but we rarely get a person from the

industry to be able to respond directly when challenged on environmental consequences. What do you say to people who are concerned

about water quality or concerned about the adverse health effects

when these toxic substances get into the environment that come as

a result of mining? What’s your response to them?

Mr. HAMILTON. I say come personally and visit the operation.

Come personally and see the biological diversity and the clean

drinking water standards coming off that active mine site. Come

personally and talk to the men and women who live above, who

live below, who work on those operations and have for some time.

We are——

Mr. KUCINICH. I appreciate that response and that invitation.

You know, we have representatives of the industry who are mining

underground and do mountaintop mining. Now, on the mountaintop mining side, people did come personally and did a documentary

that, of course, you’re familiar with, called ‘‘The Last Mountain,’’

where they point out, this mountaintop moving removal in its

wake, the process leaves toxic sludge piles, containing arsenic, lead,
67

and mercury, contaminated rivers and streams, fine particulate airborne matter that creates an epidemiological health nightmare and

unlivable communities. Mountaintop removal has already destroyed 500 Appalachian mountains, decimated a million acres of

forest, buried 2,000 miles of streams.

There are some people who are coming and taking a look at it,

but they are coming—they are coming up with conclusions that

might be at variance to what the industry is saying.

I thank the gentleman, and I yield back.

Mr. JORDAN. Thank the gentleman.

I now recognize the chairman of the full committee, the gentleman from California, Mr. Issa.

Mr. ISSA. Thank you for holding this important hearing. There’s

nothing more important to this committee or to America than the

kinds of jobs that every day we continue to hear we lack in this

country.

For all of you who came here from West Virginia, where the unemployment rate is so high, hopefully this hearing will be a start

toward getting West Virginians working again.

Mr. Stilley.

Mr. STILLEY. Stilley.

Mr. ISSA. Stilley, I apologize, I wasn’t here for the introductions.

Mr. STILLEY. That’s quite all right, sir.

Mr. ISSA. I would like to understand a little bit more about what

it’s like in West Virginia. You’ve been mining there for generations.

I am a native of Ohio, so we enjoy in the southern part some of

the same activities, but you’ve been mining for a long time. Would

you say it’s fair to say that we’ve learned a lot, that we mine better

than we used to?

Mr. STILLEY. There’s no question but that is the case. We have

mined in West Virginia, but this is for clarification, we are principally Pennsylvania coal miners today, all surface mining.

Mr. ISSA. Right.

Mr. STILLEY. But the technology that we subscribe to has progressed immeasurably. You don’t have enough yardsticks in the

room to measure how much progression has taken place since the

mid 1970’s, when surface mining was largely unregulated.

Mr. ISSA. All right. And I would like to delve into that for a second because this hearing is not about a history of mining, and yet

if we don’t know the history, we don’t know where you are here

today when people say streams and water and so on.

My partner in business years ago was from Pennsylvania, Enon

Valley, PA, near the Ohio border. And they did what was then

called strip mining, and quite frankly, he got a nice lake, but he

had some real problems with the rest of the activities related to the

stream in and out, and ended up with quite a bit of bulldozer work

for a period of time to get things right. But it was the 1970’s.

Today what is the before and after in what is being called mountaintop? What is the standard? Because Mr. Lovett has said, you

know, we’re going to destroy 6 square miles, and it’s going to be

ruined forever. Now, I’ve been to Mount St. Helens, so I understand one thing, you can blow off the top of a mountain, and it’s

not necessarily forever because it grows back.
68

But I don’t want to—I don’t want to wait, I don’t want to wait

the way they have at Mount St. Helens for growth to begin where

the ashes are and so on. How long between the end of mining operations and a return of substantial forest in a typical example that

you would be involved in?

Mr. STILLEY. Where we’re involved, in each and every case, within no more than 60 days or by the next planting season, we have

our sites totally reclaimed where I doubt any person in this room

could—could or would know that any mining had taken place on

that site.

We go through 10 mine sites every 2 years. Our average site

lasts anywhere from 6 months to 3 years, and I can assure you

that’s one of the things we take great pride in is the concurrent

reclamation where, again, within a month or two or by the next

planting season, those farms, those timberlands are returned to a

use that’s as good as what had existed before our involvement at

the site.

Mr. ISSA. Mr. Hamilton, going to West Virginia now——

Mr. HAMILTON. Yes.

Mr. ISSA. Is it substantially the same? Is there any ability for an

actor to basically do it the way they did it in the 1970’s——

Mr. HAMILTON. No.

Mr. ISSA [continuing]. And sort of leave you with a pond? Is it

the same that basically within 5 or 6 years after the secession of

mining, you not only have primary growth, but you’ve got a considerable amount of growth in the area, including maintenance of historic water activity?

Mr. HAMILTON. Absolutely. And we, we go back a period of 12,

15 years, and you cannot find certain—certain structures that were

there during active mining. In fact, a lot of the, the mountaintop

mining operations or surface mine operations in West Virginia will

actually reclaim during the active mining process today, will reclaim miles and miles and miles of the old rigid high walls that

were left by mining operations in the pre-mining period. And we

also have example after example throughout the State where you

have recreational, commercial, and industrial facilities that are developed on these mountain sites today.

Mr. ISSA. Let me ask just two quick questions, then let anyone

that thinks they can help with it. First of all, isn’t it true that in

some cases, failed past mining operations of 30 years ago, if they

have additional coal resources, are often the best sites to go in,

mine additionally, and get them right? And second of all, isn’t it

true during the entire Clinton administration, the rules that governed those success stories you talked about were in place and that

ultimately over that 8 years of the Clinton administration, mining

activities increased while, in fact, the restoration process probably

reached what is today what we call the gold standard?

Mr. HAMILTON. Absolutely. That’s absolutely correct.

Mr. ISSA. Mr. Stilley, do you pretty much concur with that?

Mr. STILLEY. I totally agree with it and can only even emphasize

it further. As I mentioned earlier, about one-third of the mine sites

that we activate or participate in had been mined previously,

where there are existing high walls left, streams in somewhat bad

repair, and in the past 30 years, we’ve reclaimed over 200 acres of
69

abandoned mine lands as part and parcel to our re-mining process

and literally have cleaned up miles upon miles of streams by correcting the deficiencies that had existed in pre-law situations.

Mr. ISSA. Thank you.

Mr. Chairman, my time has expired. What I will say on behalf

of the committee is that if you would like to take up the offer of

actually visiting some of these reclaimed sites, particularly those

that are left better than they were found, I certainly believe that

the committee should make that investment, and I would be glad

to help you with that.

Mr. JORDAN. Thank you.

Mr. KUCINICH. Will the gentleman yield?

Mr. ISSA. My time has expired. I yield back.

Mr. JORDAN. Let me say one thing before I yield to the gentleman. The audience, remember this is a committee hearing, and

let’s make sure we remember that as we proceed.

The gentleman from Cleveland is recognized.

Mr. KUCINICH. I would just like to say to my friend from California that I think that’s a good idea, and I think it would be a

good idea for us to look at both sides of the equation. That is where

people say they left it better and where maybe some people in the

community say, well, you know, maybe it wasn’t better.

Mr. ISSA. If the gentleman would yield?

Mr. JORDAN. Of course.

Mr. ISSA. I certainly believe that if we do a field observation, and

it’s not very far to West Virginia or Pennsylvania from here, or

even Ohio, that we should look at the sites that are presented to

us, review them pictorially, and then visit them, and I think that

would be helpful because I think the invitation we had here is

come see the effect of mining or not mining in these towns, so I

thank the gentleman.

Mr. JORDAN. In that vein, if I could, just real quick, Mr. Stilley,

you live in Pennsylvania?

Mr. STILLEY. I live in Butler, PA.

Mr. JORDAN. And your mines are in that area?

Mr. STILLEY. We operate in 10 counties in Pennsylvania, all central and western Pennsylvania.

Mr. JORDAN. Your employees live there?

Mr. STILLEY. All my employees live local to where the mines

exist.

Mr. JORDAN. You care about your employees, right? They are the

reason you’re in business; you make a—you make a profit, your

company?

Mr. STILLEY. The only reason I am successful is because of my

employees.

Mr. JORDAN. And you all drink the water in that area?

Mr. STILLEY. We all drink that water.

Mr. JORDAN. We would be happy to come visit at some point.

We will turn now to the gentlelady from California.

Ms. SPEIER. Mr. Chairman, thank you.

And thank you all for your participation here today.

I’m a little mystified by the discussion that’s gone on because

from my reading of some of these documents, it would suggest that

this mining has been going on for a long time. It predates the
70

Clean Water Act. But the sections that people are all tied up in a

knot about, Sections 402 and 404, are not new. They’ve been on the

books. They just weren’t enforced for the last 8 years. A new administration comes in and is enforcing an existing law, and you’re

all going crazy.

Now, Mr. Lovett, explain to me how large the amount of land

that’s been destroyed by mountaintop removal mining is.

Mr. LOVETT. Well, remarkably, I don’t think anyone has an accurate number. I’ve been surprised that the government doesn’t publish the number, but it’s certainly over a million acres by most estimates. And the mining has been going on since before the passage

of the Clean Water Act. However, the size of mountaintop removal

mines has grown dramatically in the last 10 or 12 years and created problems for complying with the Clean Water Act that didn’t

exist with smaller mines.

Ms. SPEIER. Well, actually, this chart, unfortunately, we can’t put

it up on the screen, suggests that this little blue area is where the

surface mine production is going on; it’s about 98 million tons. The

other U.S. coal production is 977 million tons, and the unused U.S.

mine capacity is 360 million tons. How many employees in this industry?

Mr. LOVETT. I don’t know about the surface mining industry in

general, but it’s approximately 6,000 employees in West Virginia on

all surface mines. It changes from year to year, but that’s the approximate number.

Ms. SPEIER. You know, there was a lot of discussion about loss

of jobs, and if we could put up the slide that I believe we do have

with jobs at Appalachian coal mines, can we do that? Well, if we

can’t do that, this is a chart that suggests actually—there it is up

on the screen—that jobs have actually increased. Here we are in

the middle of a recession, and jobs in coal mining have increased.

Even though that green line denotes that the demand for Appalachian coal at U.S. plants has decreased, the number of jobs have

actually increased.

So my big concern is talking about something that I don’t think

has been addressed yet. There was a West Virginia University

study, scientific study by two doctors, Doctors Ahern and Hendryx,

that found that there was an increased risk of babies being born

with defects of the circulatory or respiratory system by 181 percent

living around mountaintop mining areas.

The coal industry’s response to the study was outrageous. Now,

I’m not attributing it to anyone who is at this table, but the response was, to this study, a scientific study, that it’s probably not

due to the mountaintop coal mining but probably more likely due

to consanguinity, which is another way of saying inbreeding. Now,

that became quite volatile, and I think the representative who

made the statement retracted it, but either it’s a serious problem

relative to birth defects or it’s not. It doesn’t have anything to do

with inbreeding.

So, Mr. Lovett, do you have any comments that you would like

to make?

Mr. LOVETT. Well, remarkably, that statement was made by a

lawyer. I mean, it’s a terrible statement.
71

Clearly, the coal industry does what it can do to shift emphasis

elsewhere. There’s no doubt that living near one of these mines is

very difficult. There’s blasting all the time, dust; water is contaminated. EPA has determined that 9 out of 10 streams downstream

from a mountaintop removal mine are impaired. It’s living in an industrial landscape and very difficult for people to live in. They

breathe dust with particles in it that are bad for them, and the

water is bad because of these mines. Now, I just want to be clear;

this is not about all mining. I’m only talking about large-scale

mountaintop removal mines. Those mines are very destructive to

the environment and to the communities near them.

Ms. SPEIER. I think my time has almost expired. I’ll yield back.

Mr. JORDAN. Thank the gentlelady.

Mr. Lovett, just let me ask you one quick question before I turn

to Mr. Kelly. Do you think all mountaintop removal mining should

be stopped?

Mr. LOVETT. Yes.

Mr. JORDAN. Let me ask you this: But isn’t that—if that, in

fact—if you believe that that’s fine, I guess, but shouldn’t that be

decided by the elected Members of the U.S. Congress? It should be

a decision made by the legislative branch of government, correct?

Mr. LOVETT. It should be, and I believe it has.

Mr. JORDAN. Not a decision made by going to court and doing it

that way?

Mr. LOVETT. No, I don’t agree with that. I think that going to

court is a way to make sure that what Congress has passed is actually enforced.

Mr. JORDAN. Just for the record, you believe that should be a legislative question whether there should be mountaintop mining?

Mr. LOVETT. Without question.

Mr. JORDAN. Okay. Thank you.

Mr. Kelly is recognized.

Mr. KELLY. Thank you, Mr. Chairman.

Mr. Hamilton, you, in your testimony, you mentioned nearly 700

permits in West Virginia are up for renewal in the next couple

years. Could you tell us more about the effects that will be if these

permits are not renewed in a timely manner?

Mr. HAMILTON. Well, we think the effects would clearly be devastating. At the current time, again, there is a universe, as I mentioned in my earlier comments, of near a thousand permits of some,

some type that are pending or must be acted on here currently, and

over the next 24 months there’s an additional 700 to 800 permits

which must be renewed, and those permits come primarily from

two watersheds in the State of West Virginia that represents about

half of our production. And they are not limited to the one or two

true mountaintop removal operations we have currently in the

State of West Virginia, but they—again, we have one or two approved mountaintop mining operations in the State of West Virginia. We have a number and a variety of surface mining operations, which often get lumped into the category of mountaintop removal mines, but—but the—but the 700 permits, 800 permits

pending represent about half of our State’s production from basically two, two watersheds, and those come from underground
72

mines, surface mines, small augur mines, again, just the whole

gamut.

Mr. KELLY. Yeah, and I’ve got to tell you, I think the purpose of

today’s hearing is about this permitting or lack of permitting or the

inability to get permits done in a timely manner. And then we start

talking about water, and I understand water and the importance

of clean water to everybody.

A couple months ago we had people from the gas company, the

gas industry come in, and they started talking about the Marcellus

Shale and fracking, and just from my past background, I know that

fracking isn’t new; it is 60 or 70 years old. But the question always

becomes then about water, and what’s going to happen to the water

and how it’s going to contaminate the water.

If you could, and maybe, John, you can weigh in on this, too, because you’re doing some of the drilling right now, but I think

there’s a misconception out there about how much water is being

affected by this, and if you could, just a little bit about the people’s

perception of what coal mining is doing to the water and also the

Marcellus. It cleared up a lot of problems for us as far as fracking

and the fact that it can be done very safely and can be done effectively. I think some of the problems are wastewater. It’s not so

much the actual fracking process but the treatment of the wastewater. So if you could just a little bit weigh in on that, and it could

be anybody.

Mr. STILLEY. I can speak to that. You know, again, we’ve been

through over 350 permitted mines over the past 30 years. Each and

every one of those mine sites requires a full permit application.

Within that permit application, most important to our regulators,

which is the Pennsylvania DEP or at least had been, is that we can

mine the coal with no impact on the water resources of the Commonwealth, whether it be discharges, private or public water supplies. If we can’t demonstrate that in the permit application, we,

we will not secure a permit from the Pennsylvania DEP period.

Mr. KELLY. And I think this is important because you have a

chance now to explain some of these things. We talk about conductivity in the water, and my understanding that is a bottle of water,

a sports drink has actually—doesn’t a bottle of water or sports

drink have more conductivity than the EPA will allow in a particular source of water that we emit? So, I mean, I think it’s important when you understand the overreach and how far this gets and

it goes way beyond what the average person would understand. If

you could just explain a little bit about this conductivity, John.

Mr. STILLEY. If one would look at the label on a bottle of San

Pellegrino drinking water, and I believe the number of total dissolved solids in that bottle of San Pellegrino is 780. In the impaired

streams, such as the Monongahela River basin, we are going to be

imposed due to the new EPA regulations for impaired streams a

maximum of 250 parts per million sulfates. So a bottle of San

Pellegrino is three times that of what we can put out of the end

of our pipe of any coal mine. That’s pretty tough.

Mr. KELLY. Yeah, I would—I would think so. But again, the general public doesn’t understand these things, and, you know, we

have the bad habit here of letting the perfect stand in the way of
73

the very good, and we just tend to keep pushing the stuff down the

road.

To all of you in the coal business, I want to thank you for being

here, but the effect of these permits not being issued, tell me on

your businesses, because I also run a small business, where does

this leave you?

Mr. HAMILTON. In West Virginia, I’ll offer that we think it’s leading to a real crisis in waiting. You know, we’ve been in a national

recession here, and we’ve been attempting to weather that, that

storm, as everyone else is, and, you know, we, we see markets come

and go within the coal business. Again, we ship to some 33 different—33 different States, some 23 foreign, foreign destinations,

and, you know, the margins out there and the competitiveness is

about as fierce as it’s, as it’s ever been, and currently this recession’s picking up, and we think we’re going—we stand to lose a lot

of these markets because we don’t have the next block of coal or

the next reserve base permitted, and so and at the current time,

you know, we’re into areas that are very, very inefficient, just trying to keep the people employed, trying to keep the operation in a

state of activeness as we’re waiting for the next sequence of permits to be issued so that we can—so that we can begin to administer the next 5-year operational plan.

Mr. KELLY. My time has expired. I was going to—Mr. Mackall,

did you want to say anything about your company, where it puts

you as far as the permitting, the inability to get the permits?

Mr. MACKALL. Are you talking to me? Yeah, we have the same

situations. Our mining plans have to be adjusted all the time because we can’t do what we want to do. We have to do—we don’t

have it permitted yet. We’re always waiting for permits, so it’s a

big factor. And, you know, I would also like to say, in Ohio, that

the greatest thing that I’ve seen in my lifetime in mining, almost

all my lifetime, we’ve done a lot of reclamation in the State, and

we’ve improved the water resources in the State and the streams

so much in that time by reclaiming the old properties that weren’t

reclaimed before. So we’ve continued to make the streams better

and better and yet we have a more and more difficult time in getting the permits.

Mr. KELLY. Very good.

Mr. Stilley.

Mr. STILLEY. I echo Mr. Mackall’s sentiments totally. I think it’s

demonstrated by all the stream redesignations that have taken

place in Pennsylvania over the past 20 years where all those designations are to better and better streams than what they had been

20 years ago. A large portion of that upgrade is a result of the remining that’s taken place both in Ohio and Pennsylvania, and I’m

certain as well in West Virginia. Just by the very nature of how

that remining takes place, we’re required to add lots of alkalinity

into the overburden through importation of limestone dust and

other calcareous materials which neutralize any potential for acidity emanating from those sites that existed before or after our mining and reclamation takes place.

Mr. KELLY. And I appreciate it.

And I’ve got to tell you in a country that right now has over 14

million Americans that wake up today with no place to go to work,
74

and we’re talking about creating jobs, we’re talking about improving our economy, it’s hard for those of us in small business to sit

back and watch all that’s going on and the burdens that are being

placed in front of you to create jobs, and then still hear we’re going

to go after this market; we’re going to be energy producers. A third

of the world’s coal is below our surface. It just doesn’t make sense

to the average person as to what’s going on right now, and I appreciate you taking time out of your days to come here. I know how

tough it is to run these businesses. Thank you so much. Appreciate

your testimony.

Ms. BUERKLE [presiding]. Thank you, Mr. Kelly.

I will now yield myself 5 minutes for questions. First of all, I

want to say thank you to all of our panelists for being here today

and, as Mr. Kelly said, for taking time out of your schedules to

come here and testify.

I want to start with the comment Mr. Lovett made with regards

to the fact that you would like to see all mountaintop mining

ended. So my question is for the other four panelists. Do you think

that the EPA’s actions will end or will work toward the end of ending mountaintop mining as well as any other type of mining?

Mr. Mackall, I’ll start with you.

Mr. MACKALL. To end mountaintop mining? Could you repeat the

question?

Ms. BUERKLE. Will EPA’s actions and what we’re seeing and

hearing today, will that—is that really what’s going to happen with

what they’re doing?

Mr. MACKALL. I don’t know anything about mountaintop mining,

but I know that it’s, it’s very difficult for us now with all the different permits and all the issues that we’re faced with, to, you

know, go through all the agencies and do all the studies and get

the permits in a timely manner to keep our employees working. We

so often end up being inefficient because we don’t have it—when

we need to build the ponds to begin a mine, we don’t have the permit in the summer season. We get the permit maybe in the winter

when it’s harder to do a good job and putting the ponds in. And

so it seems to me that the EPA and the government is deliberately

working against us to stop us from mining and stop us from employing people.

Ms. BUERKLE. Thank you.

Mr. MACKALL. It’s very difficult.

Ms. BUERKLE. Mr. Hamilton.

Thank you, Mr. Mackall.

Mr. HAMILTON. I would concur with those remarks. I clearly

think that the Appalachian states represented here today represent

an area that’s targeted by this administration and being carried

out by the U.S. Environmental Protection Agency to do everything

within their power to restrict and curtail productivity, coal productivity from these regions. There has been absolutely no degradation

whatsoever of the water systems. We have a State that is primarily

within a mountainous and hilly terrain, and so every impact, every

earth moving operation of any kind, whether it’s putting a highway

through our State or a shopping center mall or a mining operation,

has some impact on ravines or hillside troughs that only carry or

pass water during a precipitation event. We have the most strin-
75

gent water quality standards enforced anywhere in the world in

the State of West Virginia. And we have a booming tourism industry where people come from all over the Nation to participate in

our outdoor recreational fishing, hunting, canoeing, white water, so

we’re real proud of what we do.

But we think that’s all in jeopardy right now. Again, we think

that this area’s targeted for whatever reason, and, and we do have

a crisis in waiting.

Ms. BUERKLE. Thank you, Mr. Hamilton.

Mr. Horton.

Mr. HORTON. Yes, ma’am, I do believe that their activities will

end, not only mountaintop mining but very much of the underground mining in our State, not only our State but the State of Virginia and Kentucky as well. We have to have a permit to store our

over-burden in order to begin mining, whether it’s underground,

high wall mine or surface mine, and for them to continue down the

path that they’re on, the operators and the people with the money

are not going to invest in a operation where they can’t have a reasonable guarantee of some type of economic benefit from their investment. They’re just not going to do it, and that’s the absolute

truth.

Ms. BUERKLE. Thank you, Mr. Horton.

Mr. Stilley.

Mr. STILLEY. I would have to say the answer to the question is

a definite yes, and not only will it eliminate mountaintop removal

mining, but all surface mining as we understand it today. Very

simply, by the nature of the delays, the inconsistencies, and the uncertainty that it creates about trying to secure a permit, and if you

don’t have a permit, you can’t go to work, you can’t comply with

contractual obligations, you can’t keep your men and women working on a full-time basis.

Ms. BUERKLE. Thank you. You know, we hear so often the word

balance and how important it is, whether it’s in law or whether it’s

in regulations or whether it’s with government oversight. There is

a balance, and that balance—and I look at this side of the ledger

and I see we’re talking about thousands of jobs, millions of dollars

of tax revenues, community benefits, schools, hospitals, health care

for communities, businesses, small businesses, you know. Mr. Hamilton, you talked about a recreation industry in West Virginia. All

of these things hang in the balance, and it concerns me greatly

that this regulatory agency is reaching, far-reaching to the point

where it will hurt these States and these industries to the point

where it just doesn’t impact the coal industry. It impacts communities and towns and millions of people. So I want to thank all of

you for being here today. I see my time has expired. Does anyone

else on the committee have any other questions?

Mr. KUCINICH. I just want to say, apropos of what Chairman Issa

said in terms of a field hearing, I hope we have a chance to go to

the Coal River Valley in West Virginia, because notwithstanding

what the gentlemen here say from the industry, there’s been pretty

serious complaints and documented reports about poison water,

massive sludge dumps, floods, tumor clusters, and I think it’s important to get that side of the story as well, and I appreciate the

indulgence here, Madam Chair.
76

Ms. BUERKLE. Again, thank you to all of our panelists for being

here this afternoon, and we will look forward to coming down and

seeing these reclaimed areas and seeing what you do. Thank you

very much.

We are now going to call the third panel. That’s right. Sorry.

We will now welcome our third panel. As witnesses in our third

panel, we have Ms. Nancy Stoner, the acting assistant administrator for water in the EPA; and Ms. Meg Gaffney-Smith, chief of

the Regulatory Program at the Army Corps of Engineers. Pursuant

to committee rules, all witnesses will be sworn in before they testify.

If I could ask you to stand. Please raise your right hands.

[Witnesses sworn.]

Mr. BUERKLE. Let the record reflect that both witnesses answered in the affirmative. Thank you.

We’ll begin this panel by asking each one of you to give your

opening statements, and just to allow time for further discussion,

if you could limit your comments to 5 minutes, we would appreciate

it. Ms. Stoner, you may begin.

STATEMENTS OF NANCY STONER, ACTING ASSISTANT ADMINISTRATOR FOR WATER, U.S. ENVIRONMENTAL PROTECTION

AGENCY; AND MARGARET E. GAFFNEY–SMITH, CHIEF, REGULATORY COMMUNITY OF PRACTICE, ARMY CORPS OF ENGINEERS

STATEMENT OF NANCY STONER

Ms. STONER. Thank you, and good afternoon. I’m Nancy Stoner,

acting assistant administrator of the Office of Water at the U.S.

EPA. I appreciate the opportunity to testify before you on EPA’s

work to protect America’s waters, including those in Appalachia.

Let me start by repeating something that EPA Administrator

Lisa Jackson has said many times. Americans do not need to

choose between having clean water and a healthy economy. They

deserve both. EPA is committed to work together with coal companies, States, the Army Corps of Engineers, and other Federal agencies to reduce coal mining pollution and protect the health and environment of coal field communities and protect the Nation’s economic and energy security.

We at EPA have a responsibility under the Clean Water Act to

ensure that surface coal mining projects do not impair water quality or endanger human health or environmental health. We’re committed to fulfilling that responsibility because we believe that every

community deserves our full protection under the law. In the last

21⁄2 years, we’ve worked with our Federal and State colleagues and

with mining companies to design projects so that they do not adversely affect water quality so that they can move ahead.

We all want our communities to be successful. Public and ecosystem health is an essential part of this equation, and clean water

is essential to the health and well-being of every American. When

the water is polluted, the community struggles, as we’ve seen in

parts of the world where people have inadequate access to clean

water and are forced to rely on contaminated sources. Healthier

watersheds means healthier people.
77

In 2010 an independent peer-reviewed study by two university

professors found that communities near degraded streams have

higher rates of respiratory, digestive, urinary, and breast cancer.

That study was not conducted in a far-off country. It was conducted

in Appalachian communities only a few hundred miles from where

we sit today.

A peer-reviewed West Virginia University study released in May

concludes that Appalachian citizens in areas affected by mountaintop mining experience significantly more unhealthy days each year

than the average American.

And a peer-reviewed study released days ago concluded that babies born to mothers who live in mountaintop mining areas of Appalachia have significantly higher rates of birth defects than babies

born in other areas.

In addition to health studies, peer-reviewed science has increasingly documented the effects of surface coal mining operations on

downstream water quality and aquatic life. Peer reviewed studies

have found elevated levels of highly toxic and bioaccumulative selenium, sulfates, and total dissolved solids in streams downstream of

valley fills.

Studies by the West Virginia Department of Environmental Protection and independent scientists have emphasized the role of high

selenium levels in causing developmental effects in fish. Peer reviewed studies by EPA scientists have concluded that the environmental effects of surface coal mining include resource loss, water

quality impairment, and degradation of aquatic ecosystems.

It’s been a high priority of this administration to reduce the substantial human health and environmental consequences of surface

coal mining in Appalachia and to minimize further impairment of

already compromised watersheds. In carrying out this goal, we’ve

demonstrated a constructive approach in our work together with

the Army Corps, with the States, and with mining companies, and

do you know what we found? When people of goodwill work together, we’re able to find approaches that allow mining companies

to move forward without degrading water quality. And that’s what

we’re working to accomplish every day at EPA, protecting lives and

livelihoods.

Let me make two specific points. First, EPA has not placed a

moratorium on coal mining permits. More than a hundred Clean

Water Act permits have been approved for Appalachian coal mining

operations in the past 21⁄2 years. EPA’s regional offices work every

day to review these and other permits, and they work with companies, the Army Corps, and other Federal and State agencies to discuss and resolve issues that emerge.

At the end of the day, the permits that are being issued provide

improved environmental and health protection for Appalachian

communities as well as jobs and economic and energy benefits to

citizens of Appalachia.

Second, initial monitoring data show that mines that use modern

practices to protect the environment can achieve downstream water

quality well below levels of concern. These mining operations are

designed to protect water quality and human health while also

mining coal and providing jobs. It’s being done at mines in Appalachia today.
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In conclusion, Madam Chairwoman, science has told us that

when we don’t protect our waters from coal pollution, our communities and future generations will suffer. The costs of pollution are

borne by the citizens of Appalachia who drink the water, breathe

the air, and sweep the coal dust from their homes. As leaders, we

should be taking every possible step to help keep them healthy and

working together to provide a clear path for the future of coal, a

path that ensures the health and prosperity of Americans living in

Appalachia and the energy future for our Nation.

Senator Robert Byrd stated eloquently that, ‘‘The greatest

threats to the future of coal do not come from possible constraints

on mountaintop removal mining or other environmental regulations

but, rather, from rigid mindsets, depleting coal reserves, and the

declining demand for coal.’’ The future of coal and indeed our total

energy picture lies in change and innovation.

I sincerely respect Senator Byrd’s challenge to all of us to embrace the future. EPA is doing so every day in its work to review

permits and ensure they provide a path for mining coal while preserving the health and welfare of Appalachian communities. We’ll

continue to work with our Federal partners, State agencies, the

mining industry, and the public to fulfill our common goal of reducing adverse impacts to water quality, aquatic ecosystems, and

human health. Thank you.

[The prepared statement of Ms. Stoner follows:]
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Ms. BUERKLE. Thank you, Ms. Stoner.

Ms. Gaffney-Smith.

STATEMENT OF MARGARET E. GAFFNEY–SMITH

Ms. GAFFNEY-SMITH. Good afternoon, Vice Chairwoman Buerkle,

Ranking Member Kucinich, and members of the subcommittee.

Ms. BUERKLE. If I could interrupt, is your microphone on?

Ms. GAFFNEY-SMITH. Yes. I am Meg Gaffney-Smith, chief of the

regulatory program for the U.S. Army Corps of Engineers. Thank

you for the opportunity to discuss our regulatory authority under

Section 404 of the Clean Water Act and our involvement in surface

coal mining activities.

The Clean Water Act requires the Corps to regulate the discharge of dredged or fill materials into waters of the United States,

which would include streams and wetlands in Appalachia. It’s important to note that when I use the term streams, I’m referring to

a very large category of water bodies, ranging from major rivers

like the Potomac to smaller headwater, intermittent, and ephemeral streams. Activities that are similar in nature and that are expected to cause no more than minimal effects individually and cumulatively may be authorized by a general permit.

Activities that do not meet the criteria for a general permit are

processed under standard individual permit procedures which have

an opportunity for public notice and comment, project-specific environmental review, and a public interest determination. The Corps

can only authorize those activities that are not contrary to the public interest and may authorize the least environmentally damaging

practicable alternative so long as that alternative does not have

other significant adverse environmental consequences.

The Corps is neither an opponent nor a proponent for any

project. Our 38 district commanders are responsible for making

fair, objective, and timely permit decisions. Various components of

surface coal mines, such as valley fills, sediment control ponds,

stream mine throughs and road crossings typically involve the discharge of fill material into waters of the United States. In the Appalachian region, these activities usually occur in small ephemeral

and intermittent streams in the upper reaches of these watersheds.

When considered in a surface area context, the stream and riparian

areas within the Corps’ scope of analysis usually represent a very

small percentage of the total acreage involved in a large surface

coal mining project.

A key point is that compared to OSM, EPA and the States, the

Corps 404 regulatory authority for surface coal mining is much

more limited and focuses on impacts to aquatic resources.

In the early 2000’s, we recognized that Federal and State agency

regulatory programs dealing with surface coal mining projects were

poorly integrated. This was not good for the economy or environmental protection. As a result, in 2005, 4 agencies signed an interagency MOA to improve the integration of regulatory processes,

minimize redundancy, and improve coordination and information

sharing with the ultimate goal of improving environmental protection. Unfortunately, for a variety of reasons, implementation of the

MOU was somewhat inconsistent.
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At the beginning of this administration in 2009, the agencies reinvigorated their efforts to strengthen interagency collaboration,

signing a new MOU to implement an interagency action plan intended to improve permit reviews. In June 2009, EPA and the

Corps established a review framework called the Enhanced Coordination Procedures [ECP]. The ECP applies only to permit applications that the Corps had previously public noticed or coordinated

with EPA as of March 31, 2009. The purpose of the ECP was to

provide the agencies with an opportunity to more closely coordinate

on these projects.

Of the 79 applications that were on the final ECP list, 8 permits

have been issued and 50 applications have been withdrawn for a

variety of reasons; 21 applications are still pending. Since the

MOU—since the 2009 MOU, we try to discuss proposed projects

with applicants early in the design process and attempt to address

agency concerns. For example, thus far in 2011, our collaborative

review with EPA and other agencies has resulted in the issuance

of 18 permits for mining-related activities in the Appalachian districts. We work with applicants to improve the ecological success

of stream mitigation, applying lessons learned from successful

projects and by conducting joint agency permittee site visits.

In November 2010, the Corps implemented an impact mitigation

assessment tool to more effectively and efficiently evaluate impacts

and proposed mitigation measures. The Corps understands and appreciates the economic importance of mining to our economy and

our national energy security. We are also aware of the environmental concerns associated with surface coal mining. We work with

agencies and applicants to avoid or reduce these impacts.

The heart of the Corps’ regulatory program is the public interest

review process which is designed to produce fair and balanced permit decisions which includes protection of the aquatic environment.

I appreciate the opportunity to be here today, and I will be happy

to answer any questions you may have. Thank you.

[The prepared statement of Ms. Gaffney-Smith follows:]
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Ms. BUERKLE. Thank you both very much for your opening statements. I now yield the gentleman from Pennsylvania 5 minutes for

questions.

Mr. KELLY. Thank you, Madam Chairman.

Miss Stoner, I have a question on this, and this is something I

had written Ms. Jackson about a concern that we have, not just

myself, but eight members of the Pennsylvania delegation, and it

has to do with the fact that the Pennsylvania DEP for 19 years had

primacy over permitting, and all of a sudden, EPA comes in and

says, you know what, we need to step in now and do that, and the

concern is, why? What possibly could have happened?

And the response that I got from Miss Jackson, and I’m going to

ask to submit these to the record, not only our original letter but

also letters back from the EPA and also Mr. Krancer, who is the

secretary for the Department of Environmental Protection Pennsylvania, he also has questioned why the EPA has stepped in and is

there something that I’m——

Mr. BUERKLE. Without objection.

Mr. KELLY [continuing]. Not understanding or something that

happened. You have to do that without objection, I’m sure. So without objection.

Ms. BUERKLE. Without objection.

Mr. KELLY. Okay, thank you. If you could.

Ms. STONER. Yes, thank you for that question. Pennsylvania has

primacy over the Clean Water Act 402, the Pollution Control Program, that has not changed, and EPA continues to work on a regular basis with the State of Pennsylvania in its role, which is a role

of oversight, so we look at particular problems. So some of the correspondence that I’ve seen has to do with discharges of pollution

into already impaired waters. Those are waters that are polluted

already, and the permit, for example, doesn’t have a limit for the

kind of pollutant that’s being discharged. That’s the kind of issue

that EPA raises in comments that it submits to the State. The

State is the permit-issuing authority in Pennsylvania.

Mr. KELLY. Okay. Because in the letter I received back, this says

EPA is unaware of any specific violations in terms of the memorandum of agreement, and so it causes one to wonder, because the

meeting today is actually or the hearing today is about permitting,

and the ability to get permitting done quickly because these folks

that run these businesses don’t have the ability, as government

does, to stall and hold up and not really worry about doing things

in a timely fashion. Their businesses are at risk and the people

they employ are at risk all the time, so I wonder about it. Right

now there are—if my numbers are right, there’s 25 NPDES permits

that have been sent to the EPA for further review. Can we get a

commitment from the EPA on when these permits will be reviewed?

Ms. STONER. Are you speaking of 402 or 404 permits? I’m just

not sure what number you’re looking at?

Mr. KELLY. Here’s what—402.

Ms. STONER. 402 permits? We do take our responsibility very seriously to provide that review promptly and try to resolve issues as

soon as we can. And as soon as the permit meets the requirements

of the Clean Water Act, we try to get back to the State as rapidly
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as possible to let them know that. And I spoke with Region III

about the correspondence, and they are working very hard to get

those permits cleared by ensuring that they comply with the law.

But what we’ve been filing is comments on those permits, to a

large extent, which does not stop the permit from being issued. It

identifies issues of concern for the State.

Mr. KELLY. Okay, because when I look at this, we have six permits have been waiting for 30 days; four have been waiting for 60

days; eight have been waiting for 90 days; two have been waiting

for 120 days; one has been waiting over 6 months; and four have

been waiting for over a year from the EPA. So in a world where

time is of the essence and the ability to get these permits done, this

has nothing to do with clean water—I would agree with you entirely that we all want the same thing, but when we hold businesses up because we can’t process permits quickly, which is the

whole purpose, again, of today’s hearing, I just wonder, can the

EPA actually do this in a timely fashion and in a way that will

allow these companies to stay in business?

Ms. STONER. I completely agree with you about the importance

of doing our job promptly, absolutely.

Mr. KELLY. Okay, so the commitment then from the EPA would

be——

Ms. STONER. I’ll talk with the region, and I’ll make sure that we

move forward as rapidly as we can on those permits.

Mr. KELLY. Okay, because some of these people, I mean, we have

one waiting for 6 months and four have been waiting for over a

year, so I would ask you to, please—and I know that your schedule’s full and I know everything that’s going on, but we have to

move really quickly on this. So I appreciate you being here today

and thank you for the job you’re doing, but we do have to get this

stuff to move forward.

Ms. STONER. We’ll look into it. I don’t know the details of those,

but I will look into those, you have my commitment to do so.

Mr. KELLY. And I appreciate that. And we put the letters into

the record, so you can take a look at those also because not only

myself but my other friends in the Pennsylvania delegation and

Secretary Krancer from the Pennsylvania DEP would also like an

answer on some of those things, so I appreciate it. Thank you.

Ms. STONER. Very good.

Mr. KELLY. And I yield back, Madam Chair.

Ms. BUERKLE. I now yield 5 minutes to the ranking member, Mr.

Kucinich from Ohio.

Mr. KUCINICH. Thank you very much.

I want to acknowledge my friend from Pennsylvania, who is a

very strong advocate of business, and, you know, we’ve sat in many

hearings where I’ve heard you, from your own experience, talk

about the frustrations that businesses have.

I was looking at the testimony of Ms. Stoner. She just had a

chance to read some of it. And she talks about how just this month,

the EPA worked with the Mid-Vol Coal Sales and West Virginia

Department of Environmental Protection to develop a permit that

includes a numeric limit on iconic pollution for the Dry Branch

Surface Mine, preserving 150 jobs. And then, later on, she talked

about how the EPA and the Corps worked together with Hobet
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Mining, Inc., in early 2010 to authorize a project that reduced

stream impacts by 50 percent, enabled continued coal production,

protected jobs of more than 350 miners.

The thing about your testimony that I found striking in view of

the previous panel was when you cited peer-reviewed public health

literature in speaking of potential association between negative

human health effects and the documentation of coal mining activities. Peer-reviewed public health literature has primarily identified

associations between increases in surface coal mining activities and

increasing rates of cancer, birth defects, and other serious health

consequences in Appalachian communities. That’s a direct quote

from your testimony.

You know, what I think we’re really talking about here is trying

to strike a balance where those who are trying to do the right thing

and comply with the law are assisted in the permitting process.

And on the other hand, those who are the bad actors—and they’re

in every line of endeavor—that the EPA will weigh in on the side

of public health. Is that a correct way of describing how you see

your mission?

Ms. STONER. Yes, it is.

Mr. KUCINICH. And I think the—I think the American public

really is interested in that kind of a direction because we had a recent poll by the Natural Resources Defense Council that found that

Americans want EPA to do more to protect them, not less, that

two-thirds of Americans polled—well, actually 63 percent said the

EPA needs to do more to hold polluters accountable in protecting

air and water.

I think, again, the point that’s made in this hearing is that we

want to create a balance between protecting jobs and protecting the

environment, and actually protecting the air and water quality

does have a positive economic impact as well. So—but those who

say, I don’t want any regulation, those that say there’s no legitimate role for the EPA, I think we have to look at them with suspicion, look at them very carefully.

And I have to say to my friends on this committee, you know,

I saw this documentary about, you know, what’s happening in West

Virginia and, granted, it came from a particular point of view, but,

you know, there are people who are suffering adverse health effects. And these studies that are done, they don’t seem to include

any other possibilities other than the fact that it was, you know,

the effects of the mining. There was no other—all the other variables were ruled out. So, you know, as we continue as a committee

and as the House to get into these issues, you know, I think that

it may be that the EPA is on the right track in terms of being

much more careful about the permitting process, but at the same

time, you’re showing a record where people are doing the right

thing, that you are trying to assure that they are able to continue.

So I just wanted to make those observations and thank Ms. Stoner for her testimony.

And I saw in your presentation, you’re very passionate about

this. I could tell. You really do care about it. And that speaks well.

And I appreciate Ms. Gaffney-Smith’s service as well. Thank you

very much.

Ms. STONER. Thank you.
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Ms. BUERKLE. Thank you very much.

I’ll now yield myself 5 minutes for questions. I just want to clarify, Ms. Stoner, with regards to permits. In your testimony, in your

opening statement, you mentioned that there is no moratorium on

permits and that in the last 21⁄2 years, 100 permits have been

granted. Now, those are just permits in general, permits for what?

Ms. STONER. I was referring to both 402 and 404 permits. And

those are for mining operations in Appalachia, I believe.

Ms. BUERKLE. So what about the enhanced review because

there’s 79 permits?

Ms. STONER. Not all of the permits that are issued by the Army

Corps of Engineers, which is the 404 permits, or the 402 permits,

which are actually issued by the States in Appalachia, not all of

them are part of that ECP process. So we did provide that enhanced coordination procedure process information to you. I believe

it’s attached to Ms. Gaffney-Smith’s testimony—that’s hard to

say—Ms. Gaffney-Smith’s testimony this evening.

Ms. BUERKLE. So the 100 in your opening statement were the

402s and the 404s, not the enhanced permits.

Ms. STONER. There’s a subset of them. There were particular permits that were identified for additional review. And those are in

the Enhanced Coordination Procedures. And there were 79 that

were identified there in the chart that was attached to the testimony identifies what the status is of all of those.

My understanding of two of those are currently in review. One

has been proffered, I believe one of those two, and there are eight

that have been issued. But there are lots of other permits that are

also being issued at the same time, through both general and individual permitting mechanisms. And that’s what I was referring to.

Ms. BUERKLE. Okay. Ms. Gaffney-Smith, could you just speak to

the 22 that were—the 49, I’m sorry, the 49 that have been withdrawn.

Ms. GAFFNEY-SMITH. Okay. Actually, the correct number for the

number of applications that have been withdrawn is 50. We have

50 applications that were withdrawn, and they’ve been withdrawn

for a number of reasons. In some circumstances, the districts

reached out to the companies to talk to them about whether or not

they were ready to provide the additional information that was requested and whether or not they could provide that information

within a timely manner. In other instances, the companies asked

for us to withdraw their application, and therefore, we did that.

And so those 50 applications reflect those 50 of 79 that were withdrawn.

Ms. BUERKLE. Okay. Thank you.

I want to speak to the issue that my colleague from Ohio, Mr.

Kucinich, brought up with regards to, and this question is for Ms.

Stoner, with regards to the new information in this increased cases

of cancer. With a health care background, this is of interest to me

and certainly of concern to me. In your written testimony, you

claim that the EPA uncovered new information under scientific review. However, the Army Corps of Engineers said that no such review was discoverable and that—so I’m trying to understand,

you’re saying there was new evidence. Army Corps of Engineers

said there was not any new evidence.
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We have a slide up on the screen. And this was from a letter the

Army Corps sent to the EPA. It says, a review of the bibliography

attached to the EPA’s letter does not reveal any research conducted

by them in 2008. The study contains no new circumstances or information that the Army Corps of Engineers has not previously

considered. So could you comment on that?

Ms. STONER. Yes. My understanding is that we have five boxes

of scientific studies that my staff have copied that are articles

about the environmental and public health impacts of mountaintop

mining from 2007 to the present, which was the time of the

issuance of that. And we would be happy to submit those for the

record if you would like us to do so.

We felt like there was new information that was very important

there. I think there’s already been discussion about the kinds of environmental impacts and the more than 6 miles of stream impacts

from that particular proposed mine.

Ms. BUERKLE. Thank you.

Let me just ask Ms. Smith. Was the Court made aware of this,

or was this submitted for——

Ms. GAFFNEY-SMITH. What I can state about this activity, this

Spruce veto is—I have to be careful because it’s an active litigation.

But I will say that when the district commander reviewed the information that was provided by the EPA in the letter that you’re

referencing, the district commander, in accordance with our regulations, made a determination that there wasn’t any new information

which would be required in order to suspend or revoke that issued

permit.

Ms. BUERKLE. Thank you very much. I see my time has expired.

We can go have another round of questions.

Mr. Kelly. Oh, I’m sorry.

Mr. KELLY. Thank you, Madam Chair.

I just want to make a quick comment, because I know the day

is running late, and I want to thank you for coming down today.

I know it’s hard. Our schedule doesn’t always allow things to run

on time.

But I did want to make a really clear comment that this really,

the hearing today, we all want clean water, and we want clean air.

And I agree with Mr. Kucinich. That is our major concern. I would

be the last one in the world to say that that’s not what we want

because yeah, the truth of this is these people that are doing this

mining, they live in the same community. They raise their children

in that community. They’re going to live there for a long time, and

they want everything safe for their kids and their grandchildren.

I think one of the things we fail to realize sometimes is that this

is a business that requires, again, as I said earlier, a time is of the

essence on this permitting. And in a country that relies on over 50

percent of its electricity generated through coal and the opportunities this country has, the natural resources, to be totally energy

independent of anybody else in the world, we don’t need to rely on

people who don’t like us particularly for our energy. But when we

look at this, and we look at how some of these companies are being

held back, that’s my concern. I think that was the concern of the

hearing today.
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So I wanted you to understand I do appreciate what you’re doing.

Clean water is important to me also. I’m a father and a grandfather. I take kids out, and I watch them play outside. I take them

to get drinking water and everything else, so I understand. So I

think sometimes, we come across as people who are making too

much sense and are not sensitive enough. But I do think that all

of us have the same goals, and that’s to make sure that we maintain the quality of the water we have, make sure we get the best

out of everything, but also, let’s make sure that we are not holding

back job creators from doing what they can do and that is to turn

this economy around and get us back to work. So thank you so

much for being here today. I appreciate it. Thank you, madam

chair.

Ms. BUERKLE. Thank you.

I now yield 5 minutes to the ranking member, Mr. Kucinich.

Mr. KUCINICH. I think it’s important what Mr. Kelly just said because you know, it’s very easy to paint everything here in black

and white.

But we want clean water. We want clean air. And I would just

say to my friend, that when you see—I understand you have to

go—but when we see that there are egregious violations, we have

to follow them.

And Madam Chair, I had a chance to see a documentary on Coal

River Valley, WVA, it was called, ‘‘The Last Mountain Top.’’ And

again, you know, I’ll submit, there was a certain point of view that

was guiding it. At the same time, they raised some compelling

issues about the environment and about the effects of people, about

the effects the practice of dynamiting mountain tops and about the

air and the water pollution, about the health effects to people.

And again, going back to what our chairman said, Mr. Issa, when

he talked about the field hearing; I’m going to ask Mr. Issa if one

of the places we go would be to go to Coal River Valley to hear

what the people have to say because we need to see the people that

are living with this and maybe learn a little bit about the direction

we should be take.

So I thank the gentlelady for her indulgence.

Ms. BUERKLE. Thank you, Mr. Kucinich.

I have one last question, if you would both indulge me. This also

was in the letter, and I’m going to enter it into the record, if there

is no objection, a letter from the Army Corps of Engineers to the

EPA dated September 30, 2009. Submit that for the record.

And we have the slide up on the screen. I’ll read it. It says that,

this is from the Army Corps of Engineers, further, the West Virginia Environmental Protection Agency has advised that the district’s Spruce No. 1 mine is currently in compliance with their existing authorizations for the mine. Therefore, I have determined

that no additional evaluation of the project’s effects on the environment are warranted. The permit will not be suspended, modified or

revoked, and a supplemental EIS will not be prepared.

So I’m trying to understand why then the EPA went ahead and

revoked that license. I’ll ask you that question, but first, I want to

ask Ms. Smith if she has a comment on that.

Ms. GAFFNEY-SMITH. I don’t have any comment on that. That

was the district commander’s position on that request from EPA.
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Ms. BUERKLE. Ms. Stoner.

Ms. STONER. So there’s mining at Spruce that has been going on

and has continued throughout. And that is mining goes into a creek

called Seng Camp, and that has never been stopped. It was—but

mining never proceeded in the other two creeks, and that was the

activity that EPA found, if that mining was to proceed into those

other two creeks, then there would be an unacceptable adverse impact on the wildlife there.

And that was the determination we made based on all of the information, the years of study that had been done there. And I mentioned earlier, the 6.6 miles, the impacts on the wildlife, the diverse, very high quality streams that were affected there. That was

a decision that we made under 404(c).

Ms. BUERKLE. But I’m confused because the Army Corps does address that issue, that Spruce No. 1 mine, they were talking specifically about that, was in compliance. And this was 3 years, now,

later, and their permit was revoked. It goes back to that balance

issue. How do you expect these businesses to get started to invest

what they have invested and then 3 years into the project their

permit is revoked for what seems to be, according to the Army

Corps of Engineers, they’re in compliance, they can’t find any new

scientific evidence, and——

Ms. STONER. I feel like I’m not explaining this clearly. What I

was trying to explain is that it wasn’t because of violations for the

mining activity that was occurring at Seng Camp. That wasn’t the

reason that EPA moved forward with the 404(c). It was the prospective harm to the streams that would have been filled, the 6.6

miles of streams that would have been filled and the downstream

impacts to the entire watershed, which was already downstream

waters which were already impaired due to mining discharges.

That was the basis of EPA’s decision.

Ms. BUERKLE. Thank you.

Ms. Smith, let me ask you this. Are you aware that the EPA incorrectly identified the location of the Seng Camp in its concerns

to the Army Corps and their request to revoke the permit?

Ms. GAFFNEY-SMITH. I am not aware of that.

Ms. BUERKLE. It’s in the letter that the Army Corps sent to.

Ms. GAFFNEY-SMITH. It’s in the 2009 letter and I just can’t speak

to that because that’s a district commander letter, and I don’t have

the facts at my, off the tip of my tongue.

Ms. BUERKLE. Thank you. Is there a way that you could provide

us with whether or not the Army Corps, you could provide that answer to the committee, whether or not the Army Corps was aware

that the EPA used the, they incorrectly identified the location of

the Seng Camp?

Ms. GAFFNEY-SMITH. Yes, ma’am.

Ms. BUERKLE. Okay. If there are no further comments or questions, we will conclude our questions.

And again, we thank you for being here for your commitment. I

want to just again reiterate what the ranking member said, as well

as Mr. Kelly. This is about a balance, and this is about keeping our

air and our water clean so that the communities can enjoy it. But

it is also a concern that the EPA stands squarely in the middle of

jobs and getting this economy back on track and creating obstacles
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for these industries. So, hopefully, we can strike that balance and

do what’s right for this country.

With that, this hearing is adjourned. Thank you.

[Whereupon, at 5:35 p.m., the subcommittee was adjourned.]

[Additional information submitted for the hearing record follows:]
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