[House Hearing, 112 Congress]
[From the U.S. Government Printing Office]




                               before the



                                 of the

                         COMMITTEE ON OVERSIGHT

                         AND GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION


                             JULY 14, 2011


                           Serial No. 112-117


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                 DARRELL E. ISSA, California, Chairman
DAN BURTON, Indiana                  ELIJAH E. CUMMINGS, Maryland, 
JOHN L. MICA, Florida                    Ranking Minority Member
MICHAEL R. TURNER, Ohio              CAROLYN B. MALONEY, New York
PATRICK T. McHENRY, North Carolina   ELEANOR HOLMES NORTON, District of 
JIM JORDAN, Ohio                         Columbia
JASON CHAFFETZ, Utah                 DENNIS J. KUCINICH, Ohio
CONNIE MACK, Florida                 JOHN F. TIERNEY, Massachusetts
TIM WALBERG, Michigan                WM. LACY CLAY, Missouri
JAMES LANKFORD, Oklahoma             STEPHEN F. LYNCH, Massachusetts
JUSTIN AMASH, Michigan               JIM COOPER, Tennessee
PAUL A. GOSAR, Arizona               MIKE QUIGLEY, Illinois
RAUL R. LABRADOR, Idaho              DANNY K. DAVIS, Illinois
PATRICK MEEHAN, Pennsylvania         BRUCE L. BRALEY, Iowa
SCOTT DesJARLAIS, Tennessee          PETER WELCH, Vermont
JOE WALSH, Illinois                  JOHN A. YARMUTH, Kentucky
TREY GOWDY, South Carolina           CHRISTOPHER S. MURPHY, Connecticut
DENNIS A. ROSS, Florida              JACKIE SPEIER, California
FRANK C. GUINTA, New Hampshire
MIKE KELLY, Pennsylvania

                   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 

                       JIM JORDAN, Ohio, Chairman
ANN MARIE BUERKLE, New York, Vice    DENNIS J. KUCINICH, Ohio, Ranking 
    Chairwoman                           Minority Member
CONNIE MACK, Florida                 JIM COOPER, Tennessee
RAUL R. LABRADOR, Idaho              JACKIE SPEIER, California
SCOTT DesJARLAIS, Tennessee          BRUCE L. BRALEY, Iowa
FRANK C. GUINTA, New Hampshire
MIKE KELLY, Pennsylvania
                            C O N T E N T S

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



                        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 
    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 
    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 produced 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 
    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 
    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 
    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 
    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 
    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 of coal mining capacity, there's 
simply not enough demand for all that coal that these mines can 
    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.


    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 the economy as you move forward in you 
rules and regulations? And I've had conflicting messages from 
    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 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 
    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 
    [The prepared statement of Hon. Shelley Moore Capito 







    Mr. Jordan. Thank you for your excellent testimony, 
    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 
    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. 
    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.


                    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 
    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. 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 
    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.


    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 
    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 
    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 usurping 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 
    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 2\1/2\ 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 2\1/2\ 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 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 high-quality 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 
    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 
    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 
    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 
    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 
    [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 
approvedState-delegated permitting program, the National 
Pollution Discharge Elimination System, and the chaos it's 
    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 
    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 
    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 
    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 
    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 
3\1/2\ 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 association, were they in compliance with the 
law when you were getting permits in a much more efficient 
    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 
    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 
    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 
    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 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 
    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 
    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 
    Mr. Mackall. No, I'm not. It's not the same company.
    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, 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 
    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 
    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.
    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 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 
    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 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.
    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 
    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 
    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 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 
    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 
    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 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 
    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, 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 
    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 
stringent 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 
    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. 
    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.

                       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 2\1/2\ 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 
    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 2\1/2\ 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.
    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.


    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 
    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 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 
    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 
    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 
    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 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 
    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 
    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.
    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 2\1/2\ 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 
    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 
    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 
    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.
    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.
    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 
    Ms. Gaffney-Smith. I am not aware of that.
    Ms. Buerkle. It's in the letter that the Army Corps sent 
    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 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