[House Hearing, 114 Congress] [From the U.S. Government Publishing Office] EXAMINING EPA'S PREDETERMINED EFFORTS TO BLOCK THE PEBBLE MINE, PART II ======================================================================= HEARING BEFORE THE COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY HOUSE OF REPRESENTATIVES ONE HUNDRED FOURTEENTH CONGRESS SECOND SESSION __________ April 28, 2016 __________ Serial No. 114-75 __________ Printed for the use of the Committee on Science, Space, and Technology [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Available via the World Wide Web: http://science.house.gov ________ U.S. GOVERNMENT PUBLISHING OFFICE 20-872 PDF WASHINGTON : 2017 ____________________________________________________________________ For sale by the Superintendent of Documents, U.S. Government Publishing Office, Internet:bookstore.gpo.gov. Phone:toll free (866)512-1800;DC area (202)512-1800 Fax:(202) 512-2104 Mail:Stop IDCC,Washington,DC 20402-001 COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY HON. LAMAR S. SMITH, Texas, Chair FRANK D. LUCAS, Oklahoma EDDIE BERNICE JOHNSON, Texas F. JAMES SENSENBRENNER, JR., ZOE LOFGREN, California Wisconsin DANIEL LIPINSKI, Illinois DANA ROHRABACHER, California DONNA F. EDWARDS, Maryland RANDY NEUGEBAUER, Texas SUZANNE BONAMICI, Oregon MICHAEL T. McCAUL, Texas ERIC SWALWELL, California MO BROOKS, Alabama ALAN GRAYSON, Florida RANDY HULTGREN, Illinois AMI BERA, California BILL POSEY, Florida ELIZABETH H. ESTY, Connecticut THOMAS MASSIE, Kentucky MARC A. VEASEY, Texas JIM BRIDENSTINE, Oklahoma KATHERINE M. CLARK, Massachusetts RANDY K. WEBER, Texas DON S. BEYER, JR., Virginia JOHN R. MOOLENAAR, Michigan ED PERLMUTTER, Colorado STEVE KNIGHT, California PAUL TONKO, New York BRIAN BABIN, Texas MARK TAKANO, California BRUCE WESTERMAN, Arkansas BILL FOSTER, Illinois BARBARA COMSTOCK, Virginia GARY PALMER, Alabama BARRY LOUDERMILK, Georgia RALPH LEE ABRAHAM, Louisiana DARIN LaHOOD, Illinois C O N T E N T S April 28, 2016 Page Witness List..................................................... 2 Hearing Charter.................................................. 3 Opening Statements Statement by Representative Lamar S. Smith, Chairman, Committee on Science, Space, and Technology, U.S. House of Representatives................................................ 6 Written Statement............................................ 8 Statement by Representative Eddie Bernice Johnson, Ranking Member, Committee on Science, Space, and Technology, U.S. House of Representatives............................................. 11 Written Statement............................................ 13 Witnesses: The Honorable Dennis McLerran, Administrator, U.S. Environmental Protection Agency, Region 10 Oral Statement............................................... 15 Written Statement............................................ 19 Discussion....................................................... 26 Appendix I: Answers to Post-Hearing Questions The Honorable Dennis McLerran, Administrator, U.S. Environmental Protection Agency, Region 10................................... 60 Appendix II: Additional Material for the Record Documents submitted by by Representative Suzanne Bonamici, Committee on Science, Space, and Technology, U.S. House of Representatives................................................ 68 Documents submitted by Representative Donald Beyer, Committee on Science, Space, and Technology, U.S. House of Representatives.. 88 Documents submitted by Representative John R. Moolenaar, Committee on Science, Space, and Technology, U.S. House of Representatives................................................ 97 Documents submitted by Representative Eddie Bernice Johnson, Ranking Member, Committee on Science, Space, and Technology, U.S. House of Representatives.................................. 110 Appendix III: Slides Shown During Hearing Slides submitted by Representative Lamar Smith, Chairman, Committee on Science, Space, and Technology, U.S. House of Representatives................................................ 114 Slides submitted by Representative Randy Neugebauer, Committee on Science, Space, and Technology, U.S. House of Representatives.. 116 Slides submitted by Representative Bill Posey, Committee on Science, Space, and Technology, U.S. House of Representatives.. 117 Slides submitted by Representative Mark Takano, Committee on Science, Space, and Technology, U.S. House of Representatives.. 118 Slides submitted by Representative Brian Babin, Committee on Science, Space, and Technology, U.S. House of Representatives.. 121 Slides submitted by Representative Gary Palmer, Committee on Science, Space, and Technology, U.S. House of Representatives.. 122 Slides submitted by Representative John R. Moolenaar, Committee on Science, Space, and Technology, U.S. House of Representatives................................................ 124 Slides submitted by Representative Bruce Westerman, Committee on Science, Space, and Technology, U.S. House of Representatives.. 127 Slides submitted by Representative Darin LaHood, Committee on Science, Space, and Technology, U.S. House of Representatives.. 128 Slides submitted by Representative Barry Loudermilk, Committee on Science, Space, and Technology, U.S. House of Representatives.. 129 EXAMINING EPA'S PREDETERMINED EFFORTS TO BLOCK THE PEBBLE MINE, PART II ---------- THURSDAY, APRIL 28, 2016 House of Representatives, Committee on Science, Space, and Technology, Washington, D.C. The Committee met, pursuant to call, at 10:05 a.m., in Room 2318, Rayburn House Office Building, Hon. Lamar Smith [Chairman of the Committee] presiding. [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Chairman Smith. The Committee on Science, Space, and Technology will come to order. Without objection, the Chair is authorized to declare recesses of the Committee at any time. Welcome to today's hearing entitled ``Examining EPA's Predetermined Efforts to Block the Pebble Mine, Part II.'' I'll recognize myself for an opening statement and then the Ranking Member. Today, we will examine the Environmental Protection Agency's efforts to block the Pebble Mine project from development before it even applied for a permit. This morning, the Committee will hear testimony from EPA Region 10 Administrator Dennis McLerran. And according to the EPA, Regional Administrator McLerran is the ``decision-maker'' for EPA matters that involve the Pebble Mine. It was his decision to improperly use the Clean Water Act to stop the Pebble Mine before the project submitted a formal plan, before it submitted a permit application, and before due process was able to proceed. I am certain that we will hear from our colleagues on the other side of the aisle about the EPA Inspector General's report that appeared to absolve the Agency of any predetermination or bias in this matter. However, the IG's report is flawed. It took a top-down analytical approach and focused only on Administrator McLerran and acting Assistant Administrator Nancy Stoner. It did not focus at all on the EPA employees involved in the Pebble Mine matter, nor did it discover the actions taken by those who funneled information up to Administrator McLerran. In the course of the Committee's investigation, we discovered that EPA employees colluded with third-party Pebble Mine opponents. They sought to deliberately establish a record that pointed to one outcome: the Pebble Mine will be excluded from the regular permitting process and should be stopped. Recently, the Committee conducted a deposition of former EPA employee Phil North, the EPA employee who, on the advisement of environmental groups, chose not to voluntarily speak to Congress. Mr. North's testimony is important to understand the mindset of the EPA employees under the authority of Administrator McLerran. Mr. North readily admitted to the Committee that he opposed the Pebble Mine and advocated among his colleagues that the Agency use the Clean Water Act to stop it. Mr. North and his EPA colleagues arrived at this conclusion before the Agency had produced any scientific information. While the EPA has been quick to minimize Mr. North's role in the Agency's decision- making process, his influence to promote the idea to stop the Pebble Mine is clear. Mr. North admitted under oath that he provided edits to an official petition letter from a third party sent to Administrator McLerran. The letter requested that the EPA stop the Pebble Mine before it applied for any permits. Mr. North asserted that it was, in fact, his duty as a federal government employee to provide assistance to a group that petitioned the government and the EPA. The EPA Inspector General and the EPA Office of Ethics apparently do not agree. Both determined that Mr. North's actions constitute a possible misuse of his federal government position. Mr. North's testimony also provided a clear depiction of the lack of adherence to official EPA policies that went on under Administrator McLerran's watch. Mr. North admitted that he and other EPA employees within Region 10 used personal email accounts to conduct official EPA business. Mr. North discussed matters that related to Pebble Mine on his personal email with third-party groups opposed to the project. Nearly all of these official records are now unavailable to the Committee for review because Mr. North and the Agency failed to preserve them. We may never know the true extent to which Mr. North and EPA employees worked with outside groups to establish a process to stop the Pebble Mine before it applied for a permit. But we know enough to conclude that EPA employees violated ethical standards by giving outside groups unprecedented access to internal EPA deliberations, allowing for close collaboration on agency actions and strategy. Documents obtained from the EPA show that Administrator McLerran's trusted advisor on Pebble Mine matters, Richard Parkin, presented only one option to Administrator McLerran: that the EPA use the Clean Water Act to stop the mine before it even applied for a permit. The EPA should be reminded that it was Congress that established the Clean Water Act. It is not the decision of activist EPA employees to decide to circumvent the processes established in the Clean Water Act. The EPA and anti-Pebble Mine groups continue to assert that the pre-application process EPA used to stop the Pebble Mine is one that will ultimately save the mining company time and money. But it is not the Agency's place to decide how a company should spend its resources. If the Pebble Mine chooses to use its resources to move forward with the permitting process, then it should be allowed to do so. Moreover, it appears that the EPA will use this case as precedent to block additional projects throughout the United States. If we allow the EPA to pursue this path of action, the Agency will have set the precedent to tell states, local governments, and even private citizens how they can develop their land before a permit application has ever been filed. This is harmful to economic development and dangerous to the democratic process. This committee should support due process, protect the permitting process, and insist that EPA actions be based on objective science. The EPA violated all of these tenets in its evaluation of the Pebble Mine. The Committee should not allow EPA to stop projects before they even apply for a permit. This would be contrary to the rule of law and the principles of scientific analysis. The inappropriate actions by the EPA employees, the misapplication of the law, and lack of decision-making based on science throughout this process requires that the Agency cease any further action against the Pebble Mine. The EPA should allow the established permitting process to run its course and determine the future of this project. Science and due process should lead the way, not predetermined outcomes by activist EPA employees. [The prepared statement of Chairman Smith follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Chairman Smith. That concludes my opening statement, and the Ranking Member Ms. Johnson, the gentlewoman from Texas, is recognized for hers. Ms. Johnson. Thank you very much, Chairman Smith, and let me welcome Mr. McLerran. I appreciate your commitment to public service, and I look forward to your testimony. We've been here twice before with hearings on EPA and the proposed Pebble Mine in Bristol Bay, Alaska. In August 2013, the Committee held a hearing on the EPA's Bristol Bay Watershed Assessment. Last November, it held a second hearing titled ``Examining EPA's Predetermined Efforts to Block the Pebble Mine.'' That hearing included the CEO of the Pebble Partnerships and two of the company's paid consultants. I am glad we're finally hearing from an EPA witness, Mr. Dennis McLerran. As the EPA Administrator of Region 10 that includes Oregon, Washington, Idaho, and Alaska, he plays a pivotal role in helping EPA carry out its critical mission of protecting human health and environment. Based on the title of today's hearing, I expect that we will hear a lot of claims of unprecedented use by EPA of its section 404 authority, bias by the EPA in its watershed assessment, and the EPA collusion with outside parties in initiating the 404(c) action. My colleagues are likely to produce selective quotes and emails to support that narrative. That is certainly their right. But I think the fundamental facts are already clear. First, the Clean Water Act gives EPA the authority to initiate 404(c) action before a permit is applied for. And indeed, EPA did just that in 1988 under President Reagan. EPA's action in the Pebble Mine case was certainly not unprecedented or unlawful. Secondly, the independent Inspector General for EPA examined the question of potential bias or collusion in support of a predetermined outcome in its Pebble Mine actions. And the IG reported in January of this year that it found no evidence of bias or predetermined outcome. That is about as clear a statement of fact as IG can make. Third, while some members may attempt to cast doubt over the entire EPA watershed assessment due to the behavior of one EPA employee Mr. Phil North, the reality is that the assessment was a result of multiple meetings with Pebble Partnership, environmental, and other stakeholder groups over multiple years and extensive reviews of the relevant scientific literature. The resulting assessment, which was peer-reviewed twice, had 20 cosponsors, of which Mr. North was only one. As the EPA IG stated in its January 2016 report, ``We found no evidence of bias in how EPA conducted the assessment, and we also found no evidence that the EPA predetermined the outcome of the assessment to initiate a CWA section 401(c) process in the Bristol Bay watershed. Now, I don't expect the facts that I have just laid out to dissuade those who have decided that uncovering an EPA conspiracy is to be the predetermined outcome of this hearing, but I think it is important that they be placed in the public record. Mr. Chairman, commercial fishermen in Bristol Bay, environmental groups, Native Alaskan tribes, and even jewelry companies such as Tiffany & Company were deeply concerned that a mine in Bristol Bay would destroy the splendor and unspoiled beauty of this unique watershed and cripple the economic livelihood of thousands of its residents who rely on its world- renowned salmon fisheries. All those groups called on the EPA to take action to protect this critical environmental resource. I hope that my majority colleagues will realize that the use of 404(c) process even in Bristol Bay, Alaska, is not a political issue. It is about protecting a unique environmental resource. In that regard, I find it ironic that EPA has been condemned in recent weeks for doing too little to protect the water in Flint, Michigan, and at the same time as they are being condemned by some of the same committee for doing too much to protect the water in Bristol Bay, Alaska. Lastly, I'm attaching a minority report to my statement that takes a deeper look at how the 401(c) has been applied in the past and the tactics the Pebble Partnership has employed in an attempt to control the public message regarding their controversial mine in Bristol Bay. I believe, as others have said, that the proposed Bristol mine--Pebble Mine in Bristol Bay is simply the wrong mine in the wrong place. But I also believe that section 401(c) of the Clean Water Act has been used by EPA in the right way in the right place. This law was written with places like Bristol Bay in mind. The law has not been widely used over the past four decades, nor should be--should it be. It was designed to be used in special cases where potential development poses an extreme adverse threat to U.S. waters. This is exactly what the proposed Pebble Mine in Bristol Bay would do. I thank you, Mr. Chairman, and I yield back. [The prepared statement of Ms. Johnson follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Chairman Smith. Thank you, Ms. Johnson. The gentlewoman from Oregon, Ms. Bonamici. Ms. Bonamici. Mr. Chairman, may I be recognized for a minute to speak out of turn? Chairman Smith. The gentlewoman is recognized. Ms. Bonamici. Thank you, Mr. Chairman, and Committee Members. I want to recognize Marcy Gallo, the Staff Director for the Environment Subcommittee, who is leaving the Committee to continue serving Congress at the Congressional Research Service. This is her last hearing with us. I value her commitment, her tireless work, and I know the other Committee Members share my respect for her. I especially appreciate her collaborative approach to working with stakeholders on the Tsunami Warning Education Research Act and the weather bill. All of us here know how much our staff takes on and how hard they work, often for very little credit. So Marcy, we thank you. We will miss you, and we wish you the best of luck in your next adventure. Chairman Smith. Do you want to stand up so you can get recognition? Ms. Bonamici. Thank you, Mr. Chairman. I yield. Chairman Smith. I thank the gentlewoman for bringing that up. I also have to not pass up the opportunity of mentioning that there's another staff member of the committee sitting in the front row presumably with his family, John Piazza. Are those your three daughters, John? One daughter, two daughters, three daughters, all of them. Okay. Anyway, it's unusual to see you looking up at us from that particular position, but we're glad you're here with your family. Ms. Johnson. There are other staff members with families out here. Chairman Smith. Oh, other staff members with family there as well, good. Okay. Thanks. Let me proceed and introduce our witness today. He is the Hon. Dennis McLerran, EPA's Regional Administrator for Region 10. Administrator McLerran previously served as Executive Director of the Puget Sound Clean Air Agency and has been involved in a variety of state, local, and federal issues in both the public and private sectors. Administrator McLerran has over 30 years of experience as an advocate, attorney, and Administrator. Much of his work has focused on environmental land-use and climate issues. Administrator McLerran received his bachelor's degree from the University of Washington and his law degree from the Seattle University School of Law. We welcome you and look forward to your testimony. STATEMENT OF DENNIS MCLERRAN, ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY REGION 10 Mr. McLerran. Good morning, Chairman Smith, Ranking Member Johnson, and Members of the Committee. Okay. Excuse me. Good morning, Chairman Smith and Ranking Member Johnson and Members of the Committee. I am Dennis McLerran, the Regional Administrator for EPA Region 10, which covers the States of Oregon, Washington, Idaho, Alaska, and 271 tribal governments within those four States. In May of 2010, several federally recognized tribes from the Bristol Bay watershed in Alaska petitioned EPA to use its Clean Water Act section 404(c) authority to restrict the discharge of fill material from the proposed Pebble Mine. EPA also received similar requests from a diverse group of stakeholders, while others requested that EPA refrain from taking action. The groups the supported EPA's use of 404(c) were deeply concerned that the largest open pit mine ever proposed in North America could potentially be opened within one of the Western Hemisphere's most productive and vulnerable watersheds. The economic and cultural value of the Bristol Bay watershed is immense. In 2009, it supported about 14,000 full- and part-time jobs and generated an estimated $480 million in direct economic expenditures and sales. And in addition, for over 4,000 years, it has served as a significant subsistence fishery to Alaska Native people, who may be among the last remaining salmon-based subsistence cultures in the world. For these reasons, EPA took very seriously these local concerns raised about a mining project that had the potential for significant environmental harm to this valuable and vulnerable ecosystem. EPA staff and management deliberated for months about how to respond to these requests, and we ultimately decided not to initiate EPA's section 404(c) authority at the time of the petitions because we wanted to develop a solid understanding of the watershed and the potential risks of proposed mining activities before deciding whether or not to exercise our authorities regarding the watershed. Instead, in February of 2011, consistent with the Clean Water Act, section 104, I announced EPA's intent to conduct an ecological risk assessment whose purpose was to characterize the biological and mineral resources of the Bristol Bay watershed, to increase understanding of the potential risks of large-scale mining on the region's fish resources, and to inform future decisions by government agencies and others related to protecting and maintaining the chemical, physical, and biological integrity of the watershed. To help us collect, evaluate, and summarize information about the Bristol Bay watershed and to assess potential risks to salmon and other resources from large-scale mining, EPA brought in scientists from multiple federal agencies. Consistent with EPA's authorities under the Clean Water Act and relevant guidelines and procedures, EPA committed to a public process to provide an opportunity to engage with all interested stakeholders. And, for example, EPA consulted with 20 tribes from the watershed, most of whom supported EPA's proposed assessment. And EPA also formed an Intergovernmental Technical Team to get individual input from federal agencies, the State of Alaska, and tribal governments in the Bristol Bay watershed. EPA also released two drafts of the assessment for public comment. In total, eight public meetings were attended by approximately 2,000 people, and more than 1.1 million comments were submitted. The Pebble Limited Partnership itself submitted over 1,300 pages of written comments on the first draft and over 450 pages on the second draft and participated in the public meetings. EPA staff, including EPA's Administrator and me as the Regional Administrator met with Pebble executives, state officials, and other interested organizations to solicit their input. In addition to creating and maintaining an open and transparent process, EPA also sought to guarantee that the assessment incorporated high-quality data and that all findings were scientifically sound. In developing the assessment EPA followed all data quality and peer-review requirements for a highly influential scientific assessment, as outlined by the Office of Management and Budget in the White House. A recent independent review by EPA's Inspector General confirmed that the Agency followed all applicable processes and procedures, and we also conducted extensive peer review, as was mentioned in the opening statements, with 12 independent peer- review experts in mine engineering, salmon fisheries biology, aquatic ecology, aquatic toxicology, hydrology, wildlife ecology, and Alaska Native cultures. And at a public meeting in August of 2012, Pebble and other stakeholders provided feedback directly to peer-reviewers. The Bristol Bay Assessment found that the Bristol Bay watershed, while enormously productive ecologically, is also deeply vulnerable to challenges posed by the construction and operation of large-scale mining. The assessment concludes that a large-scale mining would propose--would pose risks to salmon and tribal communities and that those communities have depended on those resources for thousands of years. Depending on the size of the mine, EPA estimates that from 24 to 94 miles of salmon-supporting streams and 1,300 to 5,350 acres of wetlands, ponds, and lakes would be destroyed. And extensive quantities of mine waste, leachates, and wastewater would have to be collected, stored, and treated and managed during mining operations and long after mining concludes. In addition to these impacts, our assessment identified risks from potential accidents and failures. Section 404(c) of the Clean Water Act specifically authorizes EPA to prohibit the specification of--or deny or restrict the use of any defined areas as a disposal site for dredged or fill material whenever the Administrator determines that such disposal would cause unacceptable adverse effects. EPA's 44-year history shows we've only used that authority judiciously and sparingly, and EPA has taken final action under 404(c) authority only 13 times while the Corps of Engineers has issued millions of 404 permits during that same time period. I would also say that our proposed action in Bristol Bay is not a veto. It's not a final action. And the proposed determination does not prevent Pebble Limited Partnership from filing any permit applications, including a Clean Water Act section 404(c) permit--404 permit application. Rather, this proposed determination addresses where and what level of impacts from the discharge of dredged or fill material related to mining the Pebble deposit could result in unacceptable adverse effects on important water resources near the deposit. The EPA has consistently demonstrated this willingness to collaborate with federal and state regulatory agencies and mining companies to ensure that projects can move forward in ways that protect water quality in the health of communities. In conclusion, EPA is relying on strong science to support our review under the Clean Water Act. I am extremely proud of the work that EPA staff have done in compiling and analyzing the science; in conducting an inclusive, open, and transparent process; and in exhibiting a dignified professionalism through the work on the Bristol Bay watershed. Thank you, Chairman Smith, Ranking Member Johnson, and members of the committee, for this opportunity to appear before you today, and I look forward to answering your questions. [The prepared statement of Mr. McLerran follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Chairman Smith. Okay. Thank you, Mr. McLerran. And I'll recognize myself for questions. Let me say at the outset that I do not feel that I or this Committee should prejudge Pebble Mine until the process has been completed. I do feel that the process has been subverted and that Pebble Mine has not gotten their day in court. I do think that Pebble Mine is entitled to fair process and an objective evaluation, which they had not yet received. And my first question is this: Do you think it's appropriate for EPA employees to work with outside groups and try to influence the EPA to arrive at a particular decision? In other words, in this case, we have at least one employee--and there may be others--who tried to make sure that your decision was on one side rather than give you objective information. If you had an employee who attempted to do that, what would you do? Mr. McLerran. So at EPA we do have an open door and an inclusive process where we listen to advocates on all sides of issues. Chairman Smith. Right. Mr. McLerran. And we do have staff that form opinions about---- Chairman Smith. Right. Are you familiar with what Mr. North has told us under oath about his efforts to edit letters, edit documents, and try to influence the permitting process? Do you agree that that was legitimate? Mr. McLerran. So I have not seen Mr. North's testimony in front of the committee. That has not been distributed to us. Chairman Smith. Right, but you know we have asserted that Mr. North tried to influence the process and maybe other employees as well. Are you aware of any employee besides Mr. North who has tried to influence the process? Mr. McLerran. So, again, I would say the Inspector General has done a review of the work---- Chairman Smith. I'm not asking about that. I'm asking if you know of any employees who have tried to influence the process. Mr. McLerran. No, I don't. Chairman Smith. You do not? And are you aware of any activity by Mr. North that you would consider to be improper? Mr. McLerran. So we agreed with the--concurred with the findings of the Inspector General that there could have been conduct that was a misuse of position, and we've followed through and done appropriate training---- Chairman Smith. Okay. Mr. McLerran. --for our employees. Chairman Smith. Are you going to make any effort to try to determine if one or more employees did misuse their position? Mr. McLerran. So---- Chairman Smith. No, but you had the Inspector General's report saying that might have occurred. Are you going to follow through and make any effort to see if that occurred and take any action? Mr. McLerran. So the Inspector General's review was comprehensive. It was broad and looked at the activities of---- Chairman Smith. Right. I'm not asking about the Inspector General's report. I'm asking about your future actions. Are you going to take any initiative to try to determine if any employee misused their position? Mr. McLerran. So I've been very involved in this process from---- Chairman Smith. Really, that's a yes or no answer. Are you going to investigate to see if any employee has misused their position? Mr. McLerran. So I have reviewed the actions of our employees, and I'm satisfied that the employees have conducted themselves appropriately. Chairman Smith. So you disagree with the Inspector General that someone may have misused their position or you agree with them? Mr. McLerran. So, again, we concurred with the findings of the Inspector General. Chairman Smith. Okay. And you have made--then have you conducted an investigation to find out if anybody misused their position and you have concluded that no one did? Mr. McLerran. So, again, I've been involved in this process from the very beginning and have been engaged with the employees that work to---- Chairman Smith. Right. Are you going to--have you conducted any investigation? Mr. McLerran. So we have not conducted an investigation---- Chairman Smith. Okay. Do you intend to conduct any investigation? Mr. McLerran. No, sir. Why not when you have an IG report saying people may have misused their position? Mr. McLerran. So, again, the Inspector General's report was comprehensive. Chairman Smith. Right. Mr. McLerran. I've been involved in---- Chairman Smith. Aren't you curious whether the Inspector General might have discovered that there was a misuse of position, and why wouldn't you follow up and try to find out if that occurred? Mr. McLerran. So, again, the review of the Inspector General was comprehensive---- Chairman Smith. I understand that. You've said that three times. I'm asking you if you are going to follow up, and you said you are not going to conduct any investigation to see if any employee misused their position? Mr. McLerran. We don't believe that's necessary or appropriate. Chairman Smith. That's astounding to me that an Administrator would not want to find out if their employees misused their position as suggested by the IG as a possibility. I'm just amazed that there isn't more accountability. Let me go to my next question, and that is that, according to the Code of Federal Regulations, when the EPA issues a proposed Notice of Determination, the Army Corps of Engineers cannot issue a permit. First of all, how many other times under 404(c) have you issued a proposed Notice of Determination? Mr. McLerran. So to my knowledge--and this is on EPA's website--there are 13 times where we've finalized 404(c) action. Two of those involved situations prior to---- Chairman Smith. The proposed Notice of Determination. Okay. And you do agree with the Code of Federal Regulations that this means that the Army Corps of Engineers cannot now grant a permit. You can still apply, you can still conduct an analysis, but they cannot grant a permit, is that correct? Mr. McLerran. Once a Notice of Proposed Determination is made, the---- Chairman Smith. Right. Mr. McLerran. --Corps of Engineers, under our rules, cannot issue a permit---- Chairman Smith. Right. Mr. McLerran. --but they can---- Chairman Smith. And that is exactly why---- Mr. McLerran. --receive, for example---- Chairman Smith. --I think you have wrongly---- Mr. McLerran. --and initiate the---- Chairman Smith. --subverted the process. Mr. McLerran. --legal process. Chairman Smith. Yes. I think you have subverted the process by issuing that proposed Notice of Determination that they can't apply for a permit now. They--you should have followed due process. I regret that you did not. My time is expired, and the gentlewoman from Texas is recognized for her questions. Ms. Johnson. Thank you, Mr. Chairman. In your testimony, Mr. McLerran, you stated that several federally recognized tribes requested EPA's use of 404(c) authority to restrict the discharge of the proposed Pebble Mine. What specifically did the group cite as reasons for requesting EPA's assistance? And in general, what are the potential impacts of a mine of this type being proposed by Pebble? Mr. McLerran. So the groups that requested that EPA take a look at our Clean Water Act authorities with respect to Bristol Bay are broad and wide-ranging. There are a number of federally recognized tribes, but we also received requests from literally hundreds of organizations, including hunting and fishing organizations, environmental organizations, tribal organizations, native corporations and others. And people were concerned about the particular location and scope and scale of this proposed mine. This would be the largest--arguably the largest open pit mine ever constructed in North America. Its location is at a very, very sensitive spot at the very headwaters of the Nushagak and Kvichak Rivers, which are in the Bristol Bay watershed, and Bristol Bay watershed produces 50 percent of the remaining world's wild sockeye salmon. It's an incredible economic resource. It's-- creates many thousands of jobs in Alaska and supports a subsistence culture. So the communities there were quite concerned about the location of this mine, the characteristics of this mine, and what its impacts might be on the salmon in that watershed that are a huge economic driver, as well as on their cultures, which have been in place for many thousands of years and continue today as an active subsistence culture. Ms. Johnson. Critics have EPA's decision to protect the Bristol Bay watershed continually claim that EPA was biased toward initiating a section 404(c) action and that EPA conducted the watershed assessment with the similar goal in mind. One would hope that this kind of conspiracy language would have been put to rest after the EPA Office of Inspector General released its report in January reviewing the actions of EPA and its decision to conduct an assessment. The IG found no evidence of bias in how EPA conducted the assessment of Bristol Bay watershed or that the EPA predetermined the assessment outcome. What steps did EPA take to ensure that the assessment would be objective? And who was involved in the--developing the Bristol Bay Watershed Assessment? Mr. McLerran. So the process--as the person who initiated the Bristol Bay Watershed Assessment, I can tell you that I initiated it because I had a genuine interest in learning more about what the impacts of large-scale mining might be on the fishery resource in the Bristol Bay watershed. And that process was a very open, transparent, and inclusive process that included more than eight public meetings. It included two rounds of peer-review. The peer-reviewers were independent. They were independently selected. We gave the public, including the Pebble Partnership, the opportunity to comment on who should be selected as the peer-reviewers. There were many opportunities for testimony and engagement. We met directly with the Pebble Partnership and both opponents and proponents of mining in the watershed, and the watershed assessment was conducted over a three-year period in which we engaged with multiple scientists, a large group of federal agencies, as well as our own scientists, and engaged in a very open and transparent process of developing what I believe is an incredible piece of work in looking at what the impacts in this watershed might be on the fishery. Ms. Johnson. And you believe that this watershed assessment was necessary before EPA could initiate the 404(c) process? Mr. McLerran. That's correct. I felt that when we received the request for action using 404(c), we did not yet have enough information to fully inform a decision. So we felt that it was important to do some science. We used EPA's highly influential scientific assessment process, which is a very rigorous and open and transparent process. There were many individuals that did give us input on that, many experts, and the testimony that we received on the watershed assessment from a wide range of individuals was very extensive. We got over 1.1 million comments on the watershed assessment. Ms. Johnson. Thank you very much. Chairman Smith. Thank you, Ms. Johnson. The gentleman from Texas, Mr. Neugebauer, is recognized for his questions. Mr. Neugebauer. Thank you, Mr. Chairman. Mr. McLerran, in May 2010 you received a petition letter written by Alaska attorney Jeff Parker requesting EPA use the 404(c) process in a preemptive manner to stop the Pebble Mine before the project had any chance for permitting. Is that correct? Mr. McLerran. That is correct. Mr. Neugebauer. And I'm going to put a slide up here on a-- -- [Slide.] Mr. Neugebauer. And this is the testimony of Phil North. And the question is are you aware that Mr. North provided Jeff Parker with edits to the petition letter before it was sent to EPA? Mr. McLerran. I have recently learned that. Mr. Neugebauer. But you did not know it then, right? Mr. McLerran. I do not. Mr. Neugebauer. Okay. And did you know Mr. North said that he believed his edits strengthened the strength of the petition letter? So his involvement, he felt like, did influence the final outcome. Do you agree with that? Mr. McLerran. So I would say that we received requests from literally thousands of individuals to take a look at the Bristol Bay watershed and the potential impact of large-scale mining there---- Mr. Neugebauer. So do you think as the manager of EPA then, is it appropriate that EPA employees assist a third-party group in editing a petition letter to the Agency? Mr. McLerran. So I would not have authorized that or approved of that, but again, I think it's really not very relevant because we receive requests from a broad range of individuals. And we didn't act on that petition. We--at that time. We engaged in developing a scientific review that took over three years and was as extensive as I've previously testified. Mr. Neugebauer. Were you aware at that time that Mr. North was a supporter of EPA using the preemptive process in this particular case? Mr. McLerran. So, again, as I said earlier, we had employees who were supportive of taking 404(c) action; we had employees who felt we should wait. We had a wide range of views within the Agency based on the initial reviews that our staff did. My review of the situation was that we needed more science. We needed to develop---- Mr. Neugebauer. And you are aware of the Inspector General report and said that there was possible misuse of position, is that correct? Mr. McLerran. I am aware of that. Mr. Neugebauer. Yes. So I think--here's the question I think I have, Mr. McLerran. If you were going to present something before a judge for a determination and you found out that the attorney on the other side was meeting with the judge and the judge was giving him some pointers on points that you might want to make when that case comes before his court, would you think that would be a fair process? Mr. McLerran. Well, that's a hypothetical that's quite different than the situation I had. Mr. Neugebauer. Well, I don't think it is, Mr. McLerran. But I think the point here is that we had people inside EPA that were going to have an influence on the process coaching outside groups on trying to determine the outcome before the process even began. And I think if you--you said to this congress--committee a while ago that you think it was an open and fair process. The example I just gave to you, you wouldn't think was a fair process. But that's exactly what was going on is you had people coaching--within EPA coaching the opposition as to what to say to get a desired outcome. Am I missing something here? Mr. McLerran. I think you are missing that we had staff who had different positions on this. I as the decision-maker took an approach that was different than what many of those folks advocated on both sides of this. The course that we decided to take was to do good science. Mr. Neugebauer. So you're okay with, you know, in the example I gave you, you're okay with the judge kind of coaching the prosecution on, you know, here's how we can get the outcome that we desire here, you need to say these things in your closing arguments? You would make this statement? You think that's a fair process then? Mr. McLerran. So, as I said earlier, I think your hypothetical is not---- Mr. Neugebauer. Oh, it's not hypothetical. Mr. McLerran. --the same as a---- Mr. Neugebauer. I mean, it's the very same example here of your employees coaching the people that were in opposition to this to help reach a desired outcome of that employee. And I just don't think the American people think that's the kind of government that they want. So I guess the question I would have to you, given the fact that there was a possible misuse of position found by the Inspector General, would you reconsider and let the 404(c) process move forward? Mr. McLerran. Sir, we are--we have been in the 404(c) process, and again, I think it's been a very open, transparent, and very inclusive process. Mr. Neugebauer. I'm sorry. I misspoke there. The 404 process. In other words, you know, letting everybody then bringing that process forward and seeing if--through the NEPA process that they can justify that they would take the necessary precautions to meet any opposition to that project. Mr. McLerran. So, as I previously stated, even today the Pebble Partnership could apply for a 404 permit with the Corps of Engineers and initiate the NEPA process and that entire process. So we--and in fact, I personally believed that they would file for a 404 permit during the pendency of the watershed assessment process. If they chose not to, they continue to choose not to, but we have not precluded that process. Mr. Neugebauer. Well, but I think you just told the Chairman that, you know, you can't move forward with a 404 based on your determination, so I'm confused. How--what is the--how does that work? I mean, what you're saying to me is you can apply for it but you're going to get turned down? I mean, how is that a good deal? Mr. McLerran. So, again, what our proposed determination put forward--and we have not completed that process; it's an incomplete process--was that we would impose restrictions on the scope and scale of mining in the watershed. So a 404 permit application could be applied for. It would go through that process, and then, should we determine at the end of the day that restrictions are appropriate in the watershed, then that would be resolved either through the 404(c) process or through the 404---- Mr. Neugebauer. I want to go back to something--you keep saying that some of your employees were in favor of this process. We had one employee that--evidently, that the Inspector General found out that misused, but then now you've told the Chairman that you've really not investigated and don't intend to investigate whether other employees were actually acting in a position that would maybe misusing their position? Your position is because you used plural when you referred to some of the employees who were supportive of blocking this project but only one was identified here in the Inspector General report. So--but we're not going to check and see if anybody else is doing that? And you think it's inappropriate but you're not going to check on it? Mr. McLerran. Sir, again, as I stated, the Inspector General did a very comprehensive review. We feel it was a complete review. And I also have---- Mr. Neugebauer. Well, the Inspector General---- Mr. McLerran. --been involved---- Mr. Neugebauer. --isn't going to make---- Chairman Smith. The gentleman's---- Mr. Neugebauer. --the decision on this---- Chairman Smith. The gentleman's---- Mr. Neugebauer. --project. Chairman Smith. I'm sorry to say the gentleman's time has expired, but I do want to clarify. A while ago in response to a question I asked, you agreed that the Army Corps of Engineers could not issue a permit once you had made your determination. Are you changing your testimony on that? Mr. McLerran. So, again, what I said is that the Corps of Engineers, during the pendency of a---- Chairman Smith. In other words, Pebble can apply but they can't be approved. It's a ruse. Mr. McLerran. So that is not exactly the case. What--you know, what we have is a Notice of Proposed Determination that would place restrictions on the scale and size---- Chairman Smith. A while ago---- Mr. McLerran. The Pebble Partnership---- Chairman Smith. --you told me that Corps of Engineers could not approve a permit because of the proposed determination. Mr. McLerran. So during the pendency of a proposed determination, our rules do provide that there would not be an issuance of a permit, but we haven't completed that process---- Chairman Smith. Yes, I know---- Mr. McLerran. --they're still in that process---- Chairman Smith. --and we'll come back because---- Mr. McLerran. --and---- Chairman Smith. --there are others who have the time, but I'm going to revisit that because it seems to me you've contradicted yourself. Mr. McLerran. And I would like to---- Chairman Smith. And the gentlewoman from Oregon, Ms. Bonamici, is recognized. Mr. McLerran. I would like to indicate that the Inspector General did identify potential misuse of the position by one employee, and they reviewed thousands of emails by multiple---- Chairman Smith. But you're still not going to conduct any further investigation? Mr. McLerran. So we--and that employee is no longer with EPA, but we feel that we know the scope and scale of activities of our employees. Chairman Smith. The gentlewoman from Oregon is recognized. Ms. Bonamici. Thank you very much, Mr. Chairman. Welcome to the committee, Mr. McLerran. Nice to see you. There's been a lot of conversation this morning already about Mr. North, a former employee of the EPA, and I just want to record to clarify a few things. First of all, I'm reading from an EPA Region 10 job description. Mr. North was an ecologist. And part of the EPA job description for Mr. North was environmental liaison, performs liaison work with individuals in a variety of organizations on legislative proposals, regulations, policies, program issues, resources, et cetera, performs liaison work by facilitating resolution of funding, program, and regulatory issues. So that was included in Mr. North's official job description with the EPA, and I would like to introduce that into the record. Additionally--I'd like to introduce that into the record, the job description. Additionally---- Chairman Smith. Without objection. [The information appears in Appendix II] Ms. Bonamici. Thank you, Mr. Chairman. Additionally, the--there's been a lot of conversation about Mr. North's contributions to a letter that was from the tribes, and I would really like the record to reflect reality on this. I'm certainly not here to defend Mr. North's actions, but it's important that we have clarity about exactly what edits Mr. North suggested to the tribal petition. This is a 12-page letter, and I would like to introduce into the record as well a copy of the letter showing the edits suggested by Mr. North, and on a 12-page letter, Mr. North suggested adding 16 words, suggested deleting 3. These changes included correcting a spelling and removing an extra space. So I really want these suggested edits to be introduced because I just don't see how the strong public accusations we're hearing today are confirmed. Chairman Smith. Without objection, that will be made a part of the record as well. [The information appears in Appendix II] Ms. Bonamici. Thank you, Mr. Chairman. Mr.--Administrator McLerran, thank you again for joining us. Some Members have been critical of the EPA and claim that they've been--not been open and inclusive in the outreach to outside groups during the development of the Bristol Bay Watershed Assessment. Specifically, you've heard allegations that suggest the opinions and concerns from Pebble were not given the same consideration as those from organizations during meetings to discuss the assessment. So will you please talk in response about how often you met, for example, with Pebble? You certainly didn't only meet with environmental groups. Tell us about what was discussed at those meetings. And I do want have time for another question. Mr. McLerran. Certainly. As I said earlier, at EPA we have an open door when we do a process like this to folks on all sides of these issues, and the Pebble Partnership and other proponents of mining in the watershed met with us frequently. I met with then-CEO and Board Chair John Shively multiple times during the pendency of the watershed assessment and met with folks who represented other groups that were asking EPA to wait and also seeking input from all of those folks in terms of the science and the potential impacts on the watershed and native cultures in the Bristol Bay area, so many, many meetings with the Pebble Partnership. In fact, I went to the mine site three times with the Pebble Partnership executives, once with Senator Murkowski, and we engaged in listening to presentations from the Pebble Partnership about their plans, about what they felt they could do to mitigate impacts of mining in the watershed, so an extensive engagement on all sides on this issue. Ms. Bonamici. And I have a letter, you sent to John Shively, the former CEO of Pebble, where it appears that you go item by item addressing his concerns. Was that a typical practice that you would--in addition to meet with them, respond to their concerns in writing? Mr. McLerran. Yes. Mr. Shively would request meetings. I will call him. He would send letters. I would write him back. We had, I think, a good working relationship back and forth. Ms. Bonamici. Thank you very much, Administrator McLerran. You know, Oregonians and others from the Pacific Northwest care a lot about this issue. We've been following it closely. In fact, nine of my colleagues from the Pacific Northwest and I sent a letter to EPA Administrator McCarthy urging her to use the authority given to the EPA under the Clean Water Act to protect the Bristol Bay salmon fisheries from the potentially devastating impacts of the proposed Pebble Mine. This affects the entire region, not just Pebble Bay. So despite the claims made by some that the EPA may have colluded with groups that opposed the mine, it appears that you were very responsive to the concerns raised by Pebble. And I tend to agree with the EPA IG report that found no evidence of bias in how the EPA conducted the assessment. I hope that the Committee today recognizes this so we can move forward and address other issues of importance to our constituents. Thank you, Mr. Chairman, and I yield back. Chairman Smith. Thank you, Ms. Bonamici. And the gentleman from Florida, Mr. Posey, is recognized for his questions. Mr. Posey. Thank you, Mr. Chairman. Mr. McLerran, first, let me say that I'm not an advocate for the mine, but I wonder if you feel it's appropriate for career EPA staff to discuss implications of upcoming presidential elections and how it might affect their scientific work. Mr. McLerran. So I think we all received training and we're quite aware of, you know, what our obligations are with respect to not engaging in political conduct. Mr. Posey. So you think it would not be appropriate? Mr. McLerran. I am not aware of the circumstance that you're talking about, and---- Mr. Posey. Okay. Mr. McLerran. --would need some more---- Mr. Posey. So are you aware whether or not EPA employees discussed the implications of the 2012 presidential election as it might have affected the work conducted on the Pebble Mine by EPA? Mr. McLerran. I certainly can't recall that. Mr. Posey. Okay. [Slide.] Mr. Posey. On screen is testimony from the committee's deposition of the Phil North, which I thought you'd already be familiar with. It indicates that Mr. North contemplated the impact of the 2012 presidential election with outside parties, including Jeff Parker, fellow EPA employee Palmer Hough. Mr. North and Mr. Hough are career employees, not political employees. Could there be any clearer demonstration that the politics was a motivating factor regarding the Pebble Mine for the career employees? Mr. McLerran. So I have not--I'm not aware of any of those communications, and I couldn't make any conclusions about that. Mr. Posey. So you'd never seen this deposition---- Mr. McLerran. No. Mr. Posey. --before? Mr. McLerran. No, I have not. Mr. Posey. But you're not willing to take another look at an investigation of what's been before you? Mr. McLerran. So---- Mr. Posey. I mean, you're learning all kinds of new information today, you're telling me, and you say it's inappropriate. I think you're saying that. But when the Chairman asked if you care to look into the issue any further, you just keep saying no, it's not necessary. From the committee's investigation, it appears clearly that political factors beyond science and good public policy played a role in EPA's analysis of using a section 404(c) action. And the question is, you know, whether or not you considered it appropriate for EPA employees to consider political factors in preparing supposedly scientific documents. Mr. McLerran. So, again, I'm not aware of any of those conversations, and I'd have to know more. Mr. Posey. You've never seen any of the testimony from the depositions that involved Mr. North before? Mr. McLerran. No, I have not. Mr. Posey. Yes. Yes. I mean, I just think you would want to investigate and look at the issues further that when the Chairman, you know, suggests that, you say you know all you need to know, and yet we have statements that we brought here that you tend to agree with are at least somewhat inappropriate and maybe we're just trying to insert too much common sense here. Mr. McLerran. So, again, the Inspector General reviewed thousands of emails from EPA employees, found only one EPA employee potentially misused his position, and we followed up on that and have done training to ensure that that never happens again. But I think we've investigated, the Inspector General has investigated, and that's appropriate. Mr. Posey. Well, I would think--I would think you would know that the OIG was not a comprehensive investigation. They reviewed emails from only three individuals. It was not a comprehensive review of all the documents, as I would think you would want just to be a good manager of an agency which you say its mission is openness and transparency. And I just would think you would want to know more about this. But again, I may be trying to inject too much common sense in here, Mr. Chairman. My time is up. Chairman Smith. Would the gentleman yield very briefly? Mr. Posey. The gentleman yields. Chairman Smith. I also want to point out that Mr. North's personal emails that he used to conduct business all disappeared, which is suspicious to a lot of us. But thank you for your questions. And the gentleman from California, Mr. Takano, is recognized for his questions. Mr. Takano. Thank you, Mr. Chairman. There seems to be some confusion as to whether EPA has the authority to initiate section 404(c) action to protect the Bristol Bay watershed. Tom Collier, CEO of Pebble Limited Partnership, appears to be very confused about this matter. And I would like to put up a quote from Mr. Tom Collier from his testimony last November. The quote is up on the screen. [Slide.] Mr. Takano. In his testimony he said, ``EPA has sought to implement the first-ever preemptive veto in the 43-year history of the Clean Water Act at Pebble utilizing a little-used provision, section 404(c), in a novel and unprecedented way.'' That's from Mr. Collier in his testimony. Slide 2, please. [Slide.] Mr. Takano. This is the Federal Register notice from the 1979--from 1979 of the final rule establishing the procedures to be used when EPA is considering the use of section 404(c). It clearly states ``In effect, section 404(c) authority may be exercised before a permit is applied for, while an application is pending, or after a permit has been issued. In each case the Administrator may prevent any defined area in waters of the United States from being specified as a disposal site or may simply prevent the discharge of any specific dredge or fill material into the specific area.'' Now, I call for slide 3. [Slide.] Mr. Takano. Now, in 1988, during the Reagan Administration, the EPA exercised its 404(c) authority, and in its final decision stated, ``EPA Region 4 believes that the inclusion of the Becker site in this 404(c) action is appropriate even though no application for rock plowing this site has yet been made.'' Again, it is appropriate even though no application for rock plowing. So this 404(c) authority was invoked prior to the application for a permit. Now, Mr. McLerran, given what I have just read, would you agree with Mr. Collier's characterization of the 404(c) authority EPA used to protect Bristol Bay watershed? Would you agree with his characterization? Mr. McLerran. No, sir. Mr. Takano. And how do you respond to these kinds of assertions that he's made? Mr. McLerran. Well, we believe that Congress did provide in the Clean Water Act under section 404(c) the authority for EPA to review whether, in certain circumstances, there are unacceptable adverse effects on a variety of factors, including fisheries. And so we believe the authority is clear from Congress. We use it sparingly, as I said previously, for circumstances where we believe that it's justified and merited under the facts. But it is clear authority from Congress. Mr. Takano. Has the EPA, under the Obama Administration, used this authority preemptively in any other matter or is it being considered? Mr. McLerran. No, not prior to a permit application. Mr. Takano. But the one time it was used in a similar fashion was under the Reagan Administration, is that correct? Mr. McLerran. So I think there may be two times, once in Louisiana, once in Florida, that were both during the Reagan Administration. Mr. Takano. So it's been used twice before, this authority, and both were under the Reagan Administration? Is that what you're telling me? Mr. McLerran. That's what I believe is the case. Mr. Takano. Well, it seems to me that the unique nature of Bristol Bay and its support of most salmon populations in the Western Hemisphere make it especially suited to the use of 404(c) authority. Can you please comment on the appropriate use of this authority as it relates to Bristol Bay and other unique ecosystems? Mr. McLerran. So Bristol Bay, again, is a remarkable place. It's a place that produces regularly between 35 and 40 million sockeye salmon every year, produces all five species of wild salmon, and is relatively undisturbed. Mr. Takano. Quickly, if I may interrupt, did you ever discuss the Florida 404(c) case with Mr. Collier? Did you ever have that discussion with him? Mr. McLerran. Not that I can recall. Mr. Takano. Okay. Well, thank you so much. I yield back, Mr. Chairman. Chairman Smith. Would the gentleman yield to me real--very briefly for a couple of questions? One is I'm not suggesting that the gentleman used quotes out of context, but I noticed that the sentences before and after some of the quotes were obscured, and could you give us the entire passage that you excerpted from a few minutes ago? Mr. Takano. Of course, Mr. Chairman. Chairman Smith. Okay. And second of all, I just want to make it clear this is unprecedented under this Administration. In the case of the Florida situation, I think the facts are entirely different, and we'll share those with the gentleman. Mr. Takano. Thank you, Mr. Chairman. Chairman Smith. Thank you. And the gentleman from Texas, Mr. Babin, is recognized for his questions. Mr. Babin. Yes, sir. Thank you, Mr. Chairman. I appreciate it. I'd like to show a document to you, Mr. McLerran, which contains notes taken at a meeting with the EPA and Trout Unlimited and other groups who petitioned the Agency to invoke a pre-application 404(c) action. [Slide.] Mr. Babin. As you can see, this email indicates that EPA employee Richard Parkin is reported to have ``stressed that while a 404(c) determination will be based on science, politics are as big or bigger factor.'' Administrator McLerran, one of your closest advisors on Pebble Mine Richard Parkin admitted that politics will play as large a role as the science in his determination to stop the Pebble Mine. If this is the feeling of the Agency, how can the judgment and impartiality of the EPA be trusted at all in this particular decision? Mr. McLerran. So I haven't seen this email before but---- Mr. Babin. You can now. Mr. McLerran. But I can tell you that, as the decision- maker on this, science was what was important to me. And doing the science, conducting a watershed assessment that gave us the information about what the potential impacts of large-scale mining in the Bristol Bay watershed might be was the most important thing to me. Mr. Babin. Well, according to your closest--one of your closest advisors here, he says that science--it's based on science but it's more important to most cases to have politics involved. So that kind of contradicts what you just said. Was Richard Parkin one of the employees who worked on the Bristol Bay Watershed Assessment, the scientific document that you assert EPA relied on? Mr. McLerran. Yes. Mr. Babin. Okay. These notes appear to come from a meeting with EPA in Pebble Mine opposition. How often did you meet with Trout Unlimited and other groups who urged the EPA to use section 404(c)? Mr. McLerran. So, as I stated earlier, we had meetings with proponents and opponents of mining in the watershed. I can't recall how many times I had specific meetings but probably half a dozen. Mr. Babin. Okay. Well, he conducted the science assessment, so was he impartial? Was he impartial or was he not? Mr. McLerran. So he was one of a large group of people that---- Mr. Babin. No, no, no---- Mr. McLerran. --helped prepare---- Mr. Babin. --was he--do you consider him to be impartial or partial if he was the one conducting the science? Yes or no. Mr. McLerran. So he was not the only one conducting the science. Mr. Babin. You're not answering my question, Mr. McLerran. Given that the sentiment of EPA employees was that the politics of the Pebble Mine situation would trump the science, will you reconsider invoking section 404(c) process so that at public, transparent, and fair permitting process can be carried out? Mr. McLerran. So, again, I've stated my answer to that previously. We believe that there has been an open, fair, and transparent public process, and there's litigation now pending overall of that. But personally, I believe that the process has been an incredibly open and transparent and fair process. Mr. Babin. Well, you have just said that--or you did not answer the question of whether he was impartial or not, so I assume you think he possibly was impartial, plus the fact that you admitted that the Inspector General's report showed possible misuse of EPA employees' positions. But you also stated that you have no intention of investigating further. And, Mr. McLerran, you've demonstrated a distinct lack of fairness and impartiality and sound administrative abilities. And you are exactly the type of federal employee or bureaucrat that America is really getting tired of. And I would appreciate it if you would answer the questions yes or no without beating around the bush. So I yield back my time. Chairman Smith. Thank you, Mr. Babin. And the gentleman from Virginia, Mr. Beyer, is recognized. Mr. Beyer. Thank you, Mr. Chairman. And I'd like to ask unanimous consent to introduce into the record a letter from Senator Murkowski to John Shively, Mark Cutifani, and Ron Thiessen from July 1, 2013. Chairman Smith. Without objection. [The information follows:] [The information appears in Appendix II] Mr. Beyer. And a letter from Mr. John Shively of Pebble Beach Partnership to Mr. McLerran dated October 21, 2011. Chairman Smith. Okay. Without objection. [The information appears in Appendix II] Mr. Beyer. And I'd like to quote from Senator Murkowski's letter---- Chairman Smith. Maybe we ought to roll all these together. Mr. Beyer. Okay. Yes. She--in this letter she--many residents in Alaska are familiar with the ongoing saga that is the Pebble Partnership's failure to submit permit applications to build their mine. But from Lisa's letter--I have so many pieces of paper here--she says, `` At least as far back as November 3, 2004, Northern Dynasty Minerals asserted the submission of permit applications was imminent.'' The next paragraph, ``October 12, 2005, another statement was issued claiming that a full permitting process . . . was slated to begin in 2006.'' Next paragraph, ``On October 27, 2008, Alaskans were assured that those seeking to develop the Pebble deposit were on schedule to finalize the proposed development plan in 2009.'' Next paragraph, ``February 1, 2010, Alaskans were told that PLP was preparing to initiate project permitting under the NEPA in 2011.'' Finally, in the next paragraph, ``June 13, 2013, a PLP representative said that you hope to have a project to take into permitting this year.'' She writes basically just very frustrated again and again about the permits that never came forward from PLP and its predecessors. And then Mr. Shively's letter to Mr. McLerran, he suggests that Pebble would finish a mine design layout in late 2012. So, Mr. McLerran, did they ever finish that layout? Mr. McLerran. So the Pebble Partnership has not, to date, submitted a permit application, but they did submit in February of 2011 a set of mine plans to the Securities and Exchange Commission, and that formed the basis for us looking at mine scenarios in the Bristol Bay watershed so---- Mr. Beyer. But they never submitted anything to the EPA? Mr. McLerran. They did not submit a permit application, still have not, and that has been an enormous frustration to many individuals in the Bristol Bay watershed area. Mr. Beyer. And is it fair to say that the communities will likely be impacted by the construction and the operation of Pebble Mine faced a deeply uncertain future about what their community was going to become and unless and until either Pebble or the EPA acted, that this was essentially a sort of Damocles, one way or the other hanging over their heads for a generation? Mr. McLerran. That's certainly what we heard from many in the Bristol Bay area. Mr. Beyer. Mr. McLerran, I'd like to push back, too, on the relentless assertion by the majority that the EPA's Inspector General who found a possible--emphasize possible--misuse of position by one employee in a single-person office somehow damns the entire organization. Should--is it appropriate for the Native American tribes and the community groups to accuse you of collusion for having worked with Pebble Mine to work out the proper permit process? Mr. McLerran. Could you restate that again? Mr. Beyer. Are you guilty of collusion for talking with Pebble Mine about this? Mr. McLerran. No. I would say no. Mr. Beyer. Isn't it the requirement in a democracy that our government officials meet freely with both sides, with those for and against, to try to come to a proper determination about how to move forward? Mr. McLerran. Yes. Mr. Beyer. Is one person with a possible misuse of position, which looking at--I estimated it was less than 1/2 of one percent of the text in that one letter that he made--added 15 words, corrected a misspelling, and deleted the word ``and'' and ``mining operations'' for clarity, there was nothing substantive in that whatsoever. Did you do all the--did you follow all the recommendations of the Inspector General for additional training and looking---- Mr. McLerran. We have and concurred with the Inspector General's report and have conducted the training that was recommended in it---- Mr. Beyer. Thank you. Thank you. There's a slide that Mr. Posey put up. If it's possible to put that back up, it was on the testimony, the deposition from Mr. North if it's possible. If not, I'll just quote from it. Because I had great difficulty understanding how the paragraphs on that page somehow led to the sense that this was politically motivated. In fact, he says, ``Were you attempting to finish what I presume was the draft watershed before the presidential election?'' And he said, ``Yes, it would probably be a good idea but also that I don't think the EPA, no, the EPA was not trying to finish it before that time frame and in fact it was not finished until well into 2000--the following year after the presidential election was determined.'' ``And do you recall if you found that--if you discussed the impending presidential election?'' I can't ride an elevator or walk down a hall around here without discussing the presidential election with Democrats and Republicans and everyone else. Very difficult to take that and to think that that's inserting presidential politics into the determination was happening. My time is up, Mr. Chairman, but I yield back. Chairman Smith. Okay. Thank you, Mr. Beyer. The gentleman from Louisiana, Mr. Abraham, is recognized. Mr. Abraham. Thank you, Mr. Chairman. Thank you, Mr. McLerran, for being here. I've flown the back country of Alaska, and I can tell you the country is beautiful and the people are just great people to be around. And I don't think any of us here in this room want any detriment to the environmental beauty of Alaska. We just want fair play. I do want to go back to a comment that was just made about the OIG's finding. The EPA OIG's finding was a ``possible'' only because some emails were missing and the IG could not conduct future interviews of Mr. Phil North because he had actually left the country. So I just wanted to interject that and clarify this Phil North thing that has evidently been bouncing back and forth. I was listening to your testimony at the beginning, words such as ``could impact,'' ``potentially do''--and again, all these are certainly subjective opinions in based on some of your reports that you've gotten from your scientists. And I've gone back and I've read some of their reports, even ten years plus. And three of those scientists that the EPA contracted to--contributed to the BBA assessment Ann Maest, Alan Boraas, Carol Ann Woody, they've long been vocal opponents of the Pebble Mine way before EPA even hired them to give them their opinion. You're an attorney. You understand the burden of proof. You understand objective data. Do you think it's appropriate for the EPA to use information developed by scientists who've already predetermined their opinion? Mr. McLerran. So I think that the reports that you're referring to, the one by Ann Maest was not used in our final assessment. And the other two were reports that were submitted during the public process where people were commenting on our draft watershed assessment. And so when those reports were submitted, our Office of Research and Development engaged in some independent peer review, asked a contractor to engage some independent peer reviewers to look at whether those--whether one of those reports was sufficient and scientifically credible and concluded that it was. I think with respect to the archaeologist who prepared sections, again, that was independently peer-reviewed. One of the peer reviewers that was independently selected was a University of Alaska Fairbanks professor who's been engaged in cultural work in Alaska as her career of work, and again, independently peer-reviewed the cultural assessment. So---- Mr. Abraham. I think it just--in my opinion and certainly in others that I've talked to, it just adds, you know, to the illegitimacy of the report that the EPA put out as to--because there just appears to be bias from several of the scientists that you guys contracted with. And I think you've already answered the question, you know, would you reconsider invoking the 401--404(c) process, and I think your answer to that was no. I am curious. You said that the company itself that wanted to develop the Pebble Mine area, what did they say or how could--what did they say--how they could mitigate the environmental impact? I haven't heard that in any of this committee testimony. What did the companies say they could do to prevent the salmon from dying and that type of deal? Because we don't want the salmon dying. We want the land to stay pristine, and we want the fisheries and the fishermen to be able to do whatever they want to do. But what did the company say about it? Mr. McLerran. So, as I said, they submitted literally thousands of pages of---- Mr. Abraham. And just give me the synopsis. I mean, just give me the short and dirty of it. What was the final--their final opinion? Mr. McLerran. So with respect to the fishery, what they were proposing was a concept called compensatory mitigation. And compensatory mitigation is typically used in watersheds that have been previously disturbed where you restore some habitat function, where you put--where you might restore some wetlands or that sort of thing. Here in this watershed, this is a largely undisturbed watershed. It's pristine, and we didn't feel that--our scientists didn't feel that the compensatory mitigation scheme that was proposed would be effective and it---- Mr. Abraham. And did they say why? Mr. McLerran. Because, again, in this watershed nature has created a really unparalleled habitat, and for us to be believing that we could improve on nature in this particular watershed was unlikely. Mr. Abraham. That's an odd answer. Thank you, Mr. Chairman. I yield back. Chairman Smith. Thank you, Mr. Abraham. The gentleman from Alabama, Mr. Palmer, is recognized for questions. Mr. Palmer. Thank you, Mr. Chairman. Are you aware if any EPA employees within Region 10 had come to the conclusion that EPA should use a section 404(c) of the Clean Water Act before EPA had produced any science with regard to the impact of the Pebble project? Mr. McLerran. So as I stated earlier, there were various opinions amongst the staff members, some who felt that beginning a 404(c) process, which is a pretty extensive process in itself, would be appropriate. There were others that felt that we should we wait until a permit application was submitted to the Corps---- Mr. Palmer. Would you take a---- Mr. McLerran. --and then we ultimately decided to take a middle path, which was conducting a scientific review under our authorities, our section 104 of the Clean Water Act. Mr. Palmer. Let me draw your attention to what Mr. North said in his deposition, in his testimony, if you look at that slide to your right or left or you may be able to see it there. [Slide.] Mr. Palmer. He says, as you stated before, you had formulated your opinion--and this is our questions to Mr. North. ``Your opinion on whether EPA should use section 404(c) for the Pebble Mine before a scientific document was prepared by the EPA, right?'' And Mr. North testified ``Yes.'' I've got another slide I want to bring up. [Slide.] Mr. Palmer. According to the documents obtained by the committee, EPA employee Phil North began preparing a record to base a preemptive 404(c) action as early as 2009. In an email exchange from December 2009 before EPA received any petitions for action, Mr. North exchanged emails with EPA employee Mary Thiesing. Ms. Thiesing told Mr. North ``Approach it as though there will be a 404(c) and we don't need to wait for a new Regional Administrator, new RA, to do that. However, we will be getting one very quickly and there will be no 404(c) without the RA's complete, total, and most importantly, continued buy- in.'' Administrator McLerran, this email appears to lay out the playbook for initiating a preemptive 404(c) action against the Pebble Mine. Is it troubling that EPA employees appear to have made up their minds on stopping the Pebble Mine so early in the process? Does that bother you? Mr. McLerran. So, again, as I stated, there were employees with various opinions---- Mr. Palmer. No, I'm asking you---- Mr. McLerran. --about how to proceed---- Mr. Palmer. --does that bother you. I'm not asking you about the opinion of the EPA employees. I'm asking you, does it bother you that it appears that these people had already made up their minds with no scientific evidence? Mr. McLerran. So it---- Mr. Palmer. It's a yes or no. Mr. McLerran. It's the job of EPA employees to look at---- Mr. Palmer. No, sir, it's a yes or no. Does that bother you? Mr. McLerran. I--you know, I would hesitate to, you know, give you a conclusion based on just this---- Mr. Palmer. No, I'm asking you what it--does it--would it-- let me be hypothetical. Would it bother you if EPA employees were acting preemptively without scientific data, without doing the due diligence, to go ahead and deny someone a permit? Would that bother you? Mr. McLerran. So it would bother me if the---- Mr. Palmer. Thank you. Mr. McLerran. --if we didn't have the checks and balances that we have. Mr. Palmer. Let me read something else from that email that bothers me. It goes on to say, ``We will be prepared to give the RA a suggested direction when he/she comes on board. This thing will be developing for years, and we aren't likely to get RA support or headquarters support for preemptive 404(c) on a project this big before the information is developed.'' Now, that really bothers me because that tells me that they fully understood what they were doing. They were fully aware that if they didn't act preemptively, that the new RA or headquarters wouldn't agree on a preemptive 404(c) without the scientific data, without the due diligence on a project that big. Does that bother you? Mr. McLerran. So again, exactly what we did is we engaged in an extensive scientific review. We did not invoke 404(c) without engaging in the science. Mr. Palmer. Well, it says right here that they wanted to move on this project before the information was developed. It seems that the playbook is laid out in this email and it has less to do with establishing the actual science and impacts of a project and conducting objective analysis and more to do about appealing to politics and optics to achieve a certain outcome at the EPA. In your opinion, would that be the correct way for an agency to make a decision? Mr. McLerran. No, but I don't believe that's what occurred here. Mr. Palmer. Well, I think that that's what the evidence seems to indicate. Thank you, Mr. Chairman. I yield back. Chairman Smith. Thank you, Mr. Palmer. The gentleman from California, Mr. Swalwell, is recognized for questions. Mr. Swalwell. Thank you, Chair. Thank you, Administrator McLerran. Just to kind of go back so you can make clear in the record, did the EPA, such as in the Office of the General Counsel, engage in an examination or analysis of its legal ability under section 404(c) before Pebble Mine filed its permit? And if so what did it conclude? Mr. McLerran. So, yes, the--you know, we did take a hard look at what our authorities were and engaged with legal counsel throughout. Mr. Swalwell. Great. And also, Administrator, your agency initially declined to invoke its authority with respect to the proposed mine. Eventually, you did so. Can you explain what changed? Mr. McLerran. So again, we did a very extensive scientific review, the Bristol Bay Watershed Assessment. We had a very open and transparent process, got literally millions of comments on it, a lot of scientific input, and ultimately, we concluded that a mine of the scale assessed in the watershed assessment would have significant adverse effects upon the fishery. But what we did do is we did not impose a veto. PLP may still be issued a permit. We imposed restrictions on the scale of mining in the watershed based on a .25 billion-ton mine, which is a mine that is the worldwide average size for porphyry, gold, and copper mines. Mr. Swalwell. And, Administrator, do you believe the criticisms of your agency's methodologies from the majority today are valid? Mr. McLerran. No. I'm quite proud of the process that we conducted. I think it was legally appropriate within the authorities that we have and was an incredibly open and transparent process. Mr. Swalwell. Thank you, Chair. I yield back. Chairman Smith. Thank you, Mr. Swalwell. The gentleman from Michigan, Mr. Moolenaar, is recognized for his questions. Mr. Moolenaar. Thank you, Mr. Chairman, and thank you for your testimony today. If I could, I have a document--a slide that I'd like to show you. It has actually three slides involving a proposal for initiating an advance 404(c) process for the Pebble Mine resented to you by Richard Parkin on August 27, 2010. [Slide.] Mr. Moolenaar. Are you familiar with this document? Mr. McLerran. I actually can't read it in the fine print-- -- Mr. Moolenaar. Okay. Mr. McLerran. --that's on the slide. Mr. Moolenaar. Well, it's basically option 3 from the options paper. Are you familiar with that? It's basically recommending that, you know, going right to the 404(c) process. Mr. McLerran. So I don't recall having seen this, and again, there were many options papers, multiple drafts of options papers, and ultimately, I was the one who made the decision that we go forward with a watershed assessment. Mr. Moolenaar. Okay. So you're not sure if you've seen this document? Mr. McLerran. I can't recall having seen this particular document. Mr. Moolenaar. It seems like a pretty important one. In it Mr. Parkin indicates that you should think of the Pebble project as a huge open pit mine and tailings reservoir proposed for Yellowstone National Park. That would rival this situation in many ways but wouldn't have the potential offsite and worldwide impacts of this proposal. That's on this slide here. Is that how this project was presented to you, that it was worse than putting a mine in Yellowstone National Park? Mr. McLerran. I don't recall ever having it characterized to me that way. Mr. Moolenaar. That's amazing to me that--so I just want to be clear on the gentleman Richard Parkin, is he one of your senior staff? Is he someone you don't know very well or is he an advisor? Mr. McLerran. Rick Parkin was the acting Office Director for our Environmental, Tribal, and Public Affairs Environmental Assessment---- Mr. Moolenaar. Does he report to you? Mr. McLerran. At that time he reported, I believe, to Michelle Pirzadeh, the Deputy Regional Administrator. Mr. Moolenaar. Okay. So he wasn't--I mean, in his document, as we go through, he talks about some other things. And if I could have another slide. [Slide.] Mr. Moolenaar. He talks about the EPA recognizing that, where possible, it's much preferable to exercise the authority to 404(c) before the Corps or the state has issued a permit and before the permit holder has begun operations. And is that a fair assessment? Mr. McLerran. So, again, I don't recall it having been characterized to me that way or having that particular conversation with Mr. Parkin. Mr. Moolenaar. Okay. Okay. He also talks about the EPA--the new face of the EPA: open, collaborative, promoting the discussion on environmentalism before a decision is made. Would you agree with that assessment? Mr. McLerran. So, as I said earlier, EPA does have a culture of being open to listening to advocates on all sides of an issue. Mr. Moolenaar. Okay. He doesn't mention sound science in his characterization of the new EPA, and I find that very interesting that that's not included in the new EPA. Mr. Moolenaar. Another thing--and one of the questions I have--are you familiar with the term honest broker? Mr. McLerran. I've heard that term before, yes. Mr. Moolenaar. And would you consider--I mean, you seem to be someone who likes to evaluate all sides of an issue for making a decision. Mr. McLerran. Yes. Mr. Moolenaar. Would you characterize Richard Parkin as an honest broker when it comes to scientific evidence? Mr. McLerran. So--yes, but he was not the decision-maker in this instance. I was. Mr. Moolenaar. But do you believe that he would give you straightforward information just based--scientific information rather than political information, for example? Mr. McLerran. Yes. In my job as Administrator is to press the staff on those types of issues, to---- Mr. Moolenaar. Okay. Mr. McLerran. --to really press around the information that I'm receiving. Mr. Moolenaar. Well, I want you to know that, you know, he--just in some documents that we've received, he talks about he wants to sell you on a 404(c) process, he's going to make a pitch right to go to option 3. He also talks about political fallout if we don't go this option and almost like there's a preemptive strike that's necessary before the group that's-- would submit a permit so you wouldn't have to explain yourself, you know, why you denied a permit later in the process. Does this preemptive strike, does that make sense to you? Mr. McLerran. Well, again, the decision that I made was not to move immediately to a 404(c) action. The decision I made was to conduct three years of independently peer-reviewed science in a very extensive, open, public process. Mr. Moolenaar. You know, he uses terms like ``We will be more successful controlling the spin on a proactive action.'' What spin is he talking about? Mr. McLerran. I really have no idea. Mr. Moolenaar. Okay. And I guess my question to you is why--the bottom line is this: Were you acting in the interest that you wanted to save the Pebble Mine dollars by doing this preemptive action, that you felt like this just should not be a place for a mine, why have them spend their time and energy on a permit? And as a result, they would spend more dollars. So you felt that you were protecting the salmon and saving dollars for a useless permit. Is that really what you were trying to do? Mr. McLerran. So that was really not a major consideration for me. I think there was discussion of what was Congress's intent in creating the 404(c) authority preemptively and what of that, you know, might have been on Congress's mind. But that was not a primary consideration for---- Mr. Moolenaar. But typically, it would be after a permit application, would it not? Mr. McLerran. So, again, as I've said, we've only used this authority 13 times and it---- Mr. Moolenaar. And why was this so important? Why didn't you let the proposal that the mine was advocating for--why didn't you take input and let them make a solid proposal that you could then either reject or support? Mr. McLerran. So, again, the proponents of Pebble Mine, Northern Dynasty Minerals, had presented pretty detailed plans both in terms of water rights, applications to the State of Alaska, and then to the Securities and Exchange Commission. Mr. Moolenaar. But not to you? Mr. McLerran. Well, again, we had access to those. They were public documents, public record. Mr. Moolenaar. But they didn't apply for a permit to you? Mr. McLerran. They did not, but we had others requesting us to use our Clean Water Act authority so---- Chairman Smith. Okay. The gentleman's time has expired. Thank you, Mr. Moolenaar. Mr. Moolenaar. Thank you, Mr. Chairman. Chairman Smith. The gentleman from Texas, Mr. Weber, is recognized. Mr. Weber. I thank the Chairman. Mr. McLerran, welcome to the committee. I hope you find this a judicious use of your time. Good. In your exchange with Chairman Smith you said you agree the Inspector General could--that there could have been conduct that might have occurred which needs some type of adjustment. Do you recall that exchange? Mr. McLerran. It's over an hour ago now. Mr. Weber. Right. Well, sure, but something along those lines. And on page five of your testimony you write--and I'm quoting--``EPA's 44-year history of judicious use of its section 404(c) authority has and continues to ensure predictability and certainty for the business community.'' So judiciousness, as it were, from your own words, that's a good thing, right? You--we all seek to be more judicious. You might be interested, I looked up judicious. An example they used from dictionary.com is ``using or showing judgment as to action or practical expediency; prudent.'' And then it says ``judicious use of one's money,'' and I would submit that we're here to protect taxpayers' dollars. In your exchange with the gentleman from Virginia, Congressman Beyer, he asked you if you had communicated with the mine owners about their permit but you had not been accused of collusion. Do you remember that exchange? Mr. McLerran. I do. Mr. Weber. Okay. But you didn't offer to strengthen their process or their permit, as Mr. North did to the opponents of the mine. Is that fair? You did not offer to strengthen their permit process? Mr. McLerran. So in many conversations with the Pebble Partnership, we talked about how the scientific information that we pulled together might benefit them, as well as our decisions. Mr. Weber. Okay. Well, if you did, kudos to you. That would be a judicious use of taxpayer money, I would offer. And you also said in the exchange with Mr. Moolenaar that there were multiple drafts of the options papers. Ultimately, you were the one that decided to go forward. Was it based on those options papers, your decision? Mr. McLerran. So, you know, we--as I understand it now, there were many options papers, you know, exchanged back and forth between staff before I saw options papers. Mr. Weber. But you made the decision to go forward based on those options papers. That's what you just said with Mr. Moolenaar. There were many option papers, but ultimately, you were the one that decided to move forward. Mr. McLerran. So there was more than options papers that went into the decision-making on this. Mr. Weber. Okay. But did you see those option papers or did you make a decision without seeing those options papers? Mr. McLerran. So I saw some final options papers at points of which I was briefed or when the Administrator was briefed, but---- Mr. Weber. But you'd already made the decision before you saw those options papers? Mr. McLerran. No. Mr. Weber. Oh, so you did see the options papers before you made the decision---- Mr. McLerran. Well---- Mr. Weber. --to move forward? Mr. McLerran. --I have not seen all of the options papers that were exchanged amongst staff that I am now aware might have existed. Mr. Weber. So is it customary for you to make those kinds of decisions without the benefit of all of those options papers, all that knowledge? Mr. McLerran. Yes, because what happens, you know, and our process is we have a lot of back and forth between staff---- Mr. Weber. Okay. Mr. McLerran. --before they present options to leaders. Mr. Weber. Mr. McLerran, in 2015, Kim Strassel at the ``Wall Street Journal'' asked you about your recollection of one of those documents prepared which laid out those options, and you stated that neither you nor other decision-makers at the EPA had ever seen that document. Did you state that to her? Mr. McLerran. I did. Mr. Weber. Do you stand by that today? Mr. McLerran. I do. Mr. Weber. But you just testified you saw some of those option papers. Mr. McLerran. So what I saw was final option papers that were documents at the point that I was prepared to make decisions---- Mr. Weber. So someone--someone cherry-picked and chose what option papers they wanted you to see? Mr. McLerran. Well, again, our process often involves staff working back and forth together. Mr. Weber. Who--the reports--who would have carried those options papers to you and said, Director McLerran, you need to look at these option papers? Who would have done that? Mr. McLerran. So Rick Parkin typically, you know, would have had those discussions, but again---- Mr. Weber. Okay. Mr. McLerran. --the options papers weren't the only consideration---- Mr. Weber. Would you be surprised to learn, Administrator McLerran--I know you're having to read fine print here--that we have documents that show not only were you briefed on those option papers but you actually requested edits to those documents? Mr. McLerran. So again, you know, there were points at which I was presented options papers but not all of the options papers that were exchanged back and forth. And while I don't recall editing options papers, that's---- Mr. Weber. North testified--we've got his testimony--that he doesn't recall writing the options paper, yet you requested edits to it. Does it seem judicious for taxpayer money that nobody in EPA seems to understand who wrote the options paper, doesn't recall the document--you didn't admit until I think just now you made edits on it--with regard to the Pebble Mine, and nobody even knows who authored those documents? Is that--I mean, are we hiding behind an anonymous author of that document? Mr. McLerran. I would not call that a fair characterization. Mr. Weber. You would not--would you call that a judicious use of taxpayer money? Mr. McLerran. You're asking me to make a conclusion based on your characterization---- Mr. Weber. Well, the American public--you know, we want fair and open process. We want to know who's responsible and who wrote the documents and how you came to that conclusion without collusion, as Mr. Beyer of Virginia asked you about in communicating with the owners of the mine. So we--the American people expect fair and open process. Well, let me just close by saying this. You keep saying that the Office of Inspector General looked at these things, but the OIG doesn't hire and fire employees in your department, is that right? Mr. McLerran. That's correct. Mr. Weber. You alone have that ability? Mr. McLerran. That's correct. Mr. Weber. Okay. So I'll go back to what I said earlier about judicious. Now, with your exchange with Chairman Smith, you said there must have been some impropriety. We heard testimony that they looked at three emails. But you still stand by your statements you're not willing to investigate and see if there were any more improprieties in the department that you manage, not the OIG, and that's a judicious use of taxpayer resources? Mr. McLerran. So just one correction, they looked at over 8,000 emails, and again, you know, we--Mr. North left the Agency before the Inspector General---- Mr. Weber. So I'm correct that it's three custodians' emails. Well---- Chairman Smith. The gentleman's time---- Mr. Weber. Mr. Chairman, I yield back. Thank you, Mr. McLerran. Chairman Smith. Thank you, Mr. Weber. Without objection, I'd like to put in the record the documents that Mr. Moolenaar referred to in his questioning. [The information follows:]*************** INSERT 8 *************** Chairman Smith. The gentleman from Arkansas, Mr. Westerman, is recognized for his questions. Mr. Westerman. Thank you, Mr. Chairman. Mr. McLerran, are you aware that employees--I'm over here-- employees at the EPA were building a record for a 404(c) process before the Agency ever began working on the watershed assessment? Mr. McLerran. So, again, as I said, I'm aware now that there were employees that had differing points of view on this, and some had the point of view that a 404(c) action might be appropriate, initiating that action might be appropriate, and others who did not. Mr. Westerman. And they used taxpayer money to hire a contractor to do this work for the EPA to assess the risk of the Pebble project as part of building this section 404(c) process? Mr. McLerran. So I--that's a characterization that I would not agree with. Mr. Westerman. Well, maybe you wouldn't mind looking at the testimony from Phil North. The question says, ``So I just want to be very clear, the work that NatureServe, who was the contractor, had already been doing, as you've stated, to build the record for a 404(c) action, that work just became part of the watershed assessment?'' And Mr. North answered, ``That's correct.'' ``And money was added onto the contract and everything else that was needed to facilitate that?'' And he answered, ``Right.'' So he testified that they'd already been working with NatureServe. When the assessment came along, they just took the work they'd already done and made that part of the assessment. Are you aware or were you aware that NatureServe's work on building a record towards the 404(c) action was then just transferred over to the watershed assessment? Mr. McLerran. I was not aware of that, and again, the watershed assessment was peer-reviewed, you know, went through a very public and transparent process. So there may have been lots of work that went into that, but, again, we stand behind the watershed assessment, feel that it was a very well-done document, and---- Mr. Westerman. So you have no problem? That doesn't bother you at all? Mr. McLerran. So, again, I'm not familiar with that. I'd have to look into that. Mr. Westerman. So if you were to look into it and found out that they had been working on this before the assessment ever began, you wouldn't have any problem with that? Mr. McLerran. I'd want to determine all of the facts and see what the circumstances were. Mr. Westerman. But you've already said you don't feel like there's any further investigation needed. Mr. McLerran. So, again, I'm not familiar with that. I just can't make conclusions about that. Mr. Westerman. So how can you make a conclusion that no further investigation is needed when you're not even familiar with what's going on? Mr. McLerran. Well, I've--that's been asked and answered, I'm afraid. Mr. Westerman. Yes, but it doesn't make much sense the way it's been answered. And it's already been asked. We've reconsidered invoking a 404(c) process as public and transparent, but I think the issue is much bigger than that. If we look at what happened here and just take it down to the bare bones, your agency stacked the deck behind the scenes, and they orchestrated a predetermined action or a predetermined outcome. Mr. McLerran, just to be honest, your agency appears to be more of a taxpayer-funded advocacy group than an impartial federal agency. I've only been here a year, but, you know, I think back about other testimony we've heard in here about the Gold King Mine disaster where, you know, the--maybe the easiest way to put it was your EPA employees were scientifically incompetent and they were negligent from an engineering standpoint. They were much more concerned about covering their rears than protecting the environment. When we look at that--and whether there's a mine in Alaska, I really don't care about that, but what I do care about is if you'll screw people over in Alaska or Colorado, you'll screw them over in my state as well. So why should anyone else in America think you or your agency would ever be transparent and fair? And why should we as Congress continue to allow offices like yours to exist and spend taxpayer money on them? Mr. McLerran. So, again, the process we undertook here, which is the one I'm familiar with, was scrupulously fair. Mr. Westerman. I yield back, Mr. Chairman. Chairman Smith. Thank you, Mr. Westerman. The gentleman from Illinois, Mr. LaHood, is recognized. Mr. LaHood. Thank you, Mr. Chairman. And, Administrator McLerran, thank you for being here today. And I would just say at the outset that I have not formed an opinion on the merits of this mine and whether it should go forward. But sitting here listening today, I am concerned about the process and how that was not followed in this case. And what I think concerns folks and people, particularly back home, and what leads to a lot of cynicism in government is when there seems to be a predetermined path or there seems to be kind of a rigged process. And the nice thing about having depositions is it helps us get to the truth, helps give us accurate facts. [Slide.] Mr. LaHood. And in looking at the deposition of Mr. North, and it's up on the screen here, you know, it's clear to me that only one option was presented here, and that was the use of 404(c) to stop the Pebble Mine. In that deposition of Mr. North, a question was asked, ``And did you ever try to convince anyone else at the EPA that the Agency should use 404(c) authority with regards to the Pebble project?'' Answer: ``I felt that we should use 404(c), and I made that case.'' Follow- up question: ``Did you ever present the other part of the case, which is not to use 404(c) process?'' ``I don't think I presented that.'' That's his answer. Follow-up: ``That was not what I presented.'' So that's clearly laid out there in the series of question- and-answers under oath by Mr. North. In looking at that exchange, Administrator McLerran, it's clear there's only one option presented there. And I guess in terms of your position, is it appropriate EPA protocol for EPA employees to present only one option in the Agency? Mr. McLerran. So Mr. North was part of a larger group of employees who looked at multiple options. Mr. North apparently had concluded that initiating 404(c) was the appropriate step, but I had other senior advisors, much more senior than Mr. North, advocating other options, that we not go forward with a 404(c) action, that we look at additional science. And it was really an extraordinary step to do a watershed assessment and to do the science. A lot of science existed prior to doing the watershed assessments so people were aware of some of that science and they had made conclusions on that. But to say that, you know, that was the only recommendation, the only option that was in front of me is just incorrect. Mr. LaHood. Well, again, getting back to my original point of what frustrates us is the kind of predetermined kind of rigged process. I wish I was more confident in what you just mentioned, but the evidence doesn't really bear that out. And I would just follow up, you know, in terms of the question and answer that I just went through in the deposition, you don't dispute any of that in terms of what Mr. North said, correct? Mr. McLerran. Well, again, I haven't had a chance to review his deposition, so I don't know the entire context of what he said. Mr. LaHood. Okay. Well, what I just said, do you have any reason to dispute that? Mr. McLerran. I have no reason to dispute that Mr. North had his opinions but others had different opinions. Mr. LaHood. Well, it appears that in reading through this process, though, he influenced a lot of people, including his manager Michael Szerlog. And I guess in terms of that influence, I mean, he was obviously an important part of this process, was living in Alaska. I mean, it appears to me this demonstrates the biased manner, and I'm trying to figure out how far that went up into EPA. Can you comment on that? Mr. McLerran. So, again, I think at the decision-making level there was not bias, and I was a key decision-maker on this. I approached this with a very open mind. And again, the option that I chose to pursue was doing additional science, doing the watershed assessment. Mr. LaHood. Well, in light of the transcript that I just read to you and just showed to you, and hopefully you can follow up and look at that, which it sounds like you want to do, I mean, it's clear to me there's bias here. And I guess my question to you would be in terms of moving forward, would you reconsider invoking the 404(c) process so that a public, transparent, and fair permitting process can be carried out from here forward? Mr. McLerran. So, as I've said before, we've had a very open, public, and transparent process using our Clean Water Act authorities. The 404(c) process has a tremendous amount of due process associated with it. The watershed assessment was a very open and transparent process that had amazing amounts of due process associated with it. So I think we are conducting processes that are open and fair and have due process associated with it. Mr. LaHood. In terms of my question, would you reconsider that? Mr. McLerran. No, not at this time. Mr. LaHood. Those are all my questions, Mr. Chairman. Chairman Smith. Thank you, Mr. LaHood. The gentleman from Oklahoma, Mr. Lucas, is recognized. Mr. Lucas. Thank you, Mr. Chairman. Administrator, let's think again about the overall process. And I guess I would first ask you, would you agree that adhering to the process laid out by NEPA, the National Environmental Policy Act, in conducting an environmental impact study is the best way to determine the impacts of the project? Mr. McLerran. Not necessarily. I think in this instance the review of the watershed and the assessment that was done here in some ways is quite deeper than what you get in a NEPA assessment. Here, we had independent peer-review. You don't have that in a NEPA process. Here, we had a focus on ecological risks, so this was an ecological risk assessment process that we engaged in with the watershed assessment. Mr. Lucas. Administrator, are you aware that the National Resources Defense Council, a rather powerful Pebble Mine opponent, called NEPA and the environmental impact study process the Magna Carta of environmental protection? Mr. McLerran. So I've seen Tom Collier, the Pebble CEO, quote that. Mr. Lucas. So do you find it strange that a group like the National Resources Defense Council that holds NEPA and the environmental impact study process in such high regards wants to exclude the Pebble project from that process? Mr. McLerran. So, again, I think the NEPA process is a fine process. It is an excellent process, but there are other processes as well, and the 404(c) process is an independent process that has its own rules and due process, and it's a very fair---- Mr. Lucas. It would appear to me---- Mr. McLerran. --and transparent process as well. Mr. Lucas. --Administrator, that this Administration's EPA has consistently taken the position that the environmental impact study process must be done and that no shortcuts can be taken before decisions are made regarding environmentally controversial development? So if that's the consistent position of the Administration, why is EPA--why can EPA not trust the process in this particular instance? Mr. McLerran. So, again, the Pebble Partnership could invoke the permitting process, could invoke the NEPA process by filing a permit with the Corps. They could have done that many times over the years, and they chose not to. Mr. Lucas. And you made it quite clear in response to a number of my colleagues that you won't reconsider invoking the 404(c) process, and you're consistent in that response, correct, Administrator? Mr. McLerran. Yes. Mr. Lucas. You know, one of the challenging things for members of this committee and, for that matter, the public back home when dealing with the federal government, agencies within the federal government, is trying to understand and play within the rules as they are presented. You give the impression at least to this member of the committee and I suspect folks back home that under your leadership and in this particular situation, your part of the Agency is willing to pick and choose between the rules and pick and choose policies as they see fit at that moment. That's very frustrating for those of us in the outside world and for members of this committee. I would suggest that this seems to point us in a direction that perhaps, Mr. Chairman, ultimately, we need to provide greater guidance and clarification in the law, that we need to provide greater certainty so that those within the Agency understand what they should be doing so that those in the outside world who have to deal with or contend with have the ability to take the right actions in the best interest of the environment and the country. This is amazing, and the fact is everyone needs to know what the rules are and play by the rules. And with that, Mr. Chairman, in a frustrated way, I yield back. Chairman Smith. Thank you, Mr. Lucas. The gentleman from Georgia, Mr. Loudermilk, is recognized for his questions. Mr. Loudermilk. Well, thank you, Mr. Chairman. Mr. McLerran, thank you for being here. As I was listening to your testimony and the questioning here, I heard a frequent assessment by you that you feel that the Agency is operating fairly and transparently. Is that a fair assessment of your feeling? Mr. McLerran. Yes, that is a fair assessment, and I might add that the process--the 404(c) process is not complete. There still is more due process that would be yet to come and that-- -- Mr. Loudermilk. So--and summarize what you're saying. The EPA is a transparent organization, is operating within the scope of the law that was set up a Congress in the public interest? Mr. McLerran. I believe that to be so. Mr. Loudermilk. I wish that was the case, but from my experience in the short time I have been in Congress, we have had less than transparency out of the Agency. As Chairman of the Oversight Subcommittee, we have had countless requests and even subpoenas for information from the EPA, and yet we continue to not receive the information that we as a constitutional body who is given the oversight authority over the EPA, including recently receiving several thousand pages of garbled junk when we requested information. So that leaves a lot of questions not only with this body but also with the American people as far as the transparency. But I'd like to move on. If we could bring up the slide here. [Slide.] Mr. Loudermilk. We know that Mr. North had frequent email conversations with Jeff Parker, who is representing Alaska tribes, as well as other agencies or organizations that were opposed to the Pebble Mine, and we looked at the--you know, the possibility of collusion, but what I want to look at is the means and the methods of which that communication has taken place. Private emails, as you have--are probably aware--seem to be a big issue with this Administration. And in this part of the deposition it was asked, ``Okay. One of the issues that I think comes up in the PLP litigation is the utilization of personal email addresses to sometimes communicate while you were working from home. Did you do that on occasion when you worked from home?'' And Mr. North said yes. The question was then, ``And why did you do that?'' Mr. North answered, ``I'm going to give two reasons. One is because EPA system's didn't work very well, and so in order to communicate with people by email, I had to use my home email. The other reason is because there was no reason not to. I mean, nobody ever said don't use your home email, and sometimes I was sending things off to other EPA employees' home emails if they were working at home just because it was convenient and there was no reason not to do that.'' Is this appropriate conduct for EPA employees? Mr. McLerran. So I believe at that point in time the EPA policy was that if people used personal email, they were to forward those emails to the EPA server. I don't believe it is appropriate to use personal email, and I think we've trained our employees that that's not--certainly in subsequent years, that that's not the way to communicate. Mr. Loudermilk. Are you aware that he had used his personal email? Did you know at that time he was using his personal email? Mr. McLerran. I did not. I've, you know, subsequently become aware that as the IG became involved. Mr. Loudermilk. Is this a violation of the Federal Records Act to use a personal email address to communicate on official business and not courtesy copy the EPA server? Mr. McLerran. So I'm not that familiar with the Federal Records Act to actually make that conclusion. I, of course, have taken the training, and the training that we get is to use our EPA email addresses, and if out of necessity--you know, if the system is down or you're forced to use your personal email, forward it to the EPA server. Mr. Loudermilk. So you're not familiar with the Federal Records Act. Is it not there to ensure that public records are there for transparency and fairness, as you stated that your agency operates but you're not aware of what the policies are? Mr. McLerran. So, again, I'm aware of what the policies are. Mr. Loudermilk. Do you use your personal email address? Mr. McLerran. No. Mr. Loudermilk. You do not? You have not used your personal email account for business? Mr. McLerran. So the only times I've used my personal email address would be if I had a large document to review and I might forward that from my EPA address, but that's the only time. Mr. Loudermilk. So the Federal Records Act, part of the reason that we have that is to make sure that there is transparency. And when it is not used, it really causes some problems. In fact, your own Inspector General was not able to obtain those personal emails that were sent by Mr. North. That brings us to question is sometimes this used just to avoid the Freedom of Information Act? Mr. McLerran. So, again, our policies are clear. Our policies are that people need to use their EPA email, and if they had occasion to use personal email, to forward those emails and documents to the EPA servers so that records would be---- Mr. Loudermilk. Are there other employees in the EPA that are currently using their personal email accounts? Mr. McLerran. They should not be. Mr. Loudermilk. If they are, are they dealt with administratively, disciplinary? Mr. McLerran. I have not had the occasion to experience that because our policies and our training are very clear on that. Mr. Loudermilk. Okay. I see my time is expired, Mr. Chairman. I yield back. Chairman Smith. Thank you, Mr. Loudermilk. The gentlewoman from Texas, the Ranking Member is recognized. Ms. Johnson. Thank you very much, Mr. Chairman. I have a letter here that has been posted publicly from a group of Texas sportsmen who also recognize the value of Bristol Bay, and they write, ``Just like we say, don't mess with Texas. Texans don't want anyone messing with the special places where we hunt and fish. The hunting and fishing community may have its differences, but one thing that unites us is our commitment to protecting Bristol Bay, Alaska, from the proposed Pebble Mine.'' I just thought that would be nice for the record. Chairman Smith. Without objection. [The information appears in Appendix II] Chairman Smith. I believe this is the group that's funded by a millionaire who opposes the mine, but that's okay. Ms. Johnson. You like rich people. Chairman Smith. Before we adjourn, Zach, will you stand up? I'd like to recognize our Communication Director Zach Kurz, who will be leaving the committee this week after 11 years of great service, which is much appreciated. Zach is a native of upstate New York, otherwise known as far north Texas. Zach started working on the Science Committee as an intern for Chairman Sherry Boehlert, continued as Press Secretary for Chairman Ralph Hall, and then as Communications Director for all of us. We wish Zach and his wife Libby and daughter--relatively new daughter Zoe all the best as they embark on a new adventure. Zach, please stay in touch with us. We will miss you, and thanks for all your great work. Mr. Kurz. Thank you, sir. Chairman Smith. And we thank the witness for his testimony and the Members for their questions. The record will remain open for two weeks for additional written comments and written questions from Members. And the hearing is adjourned. [Whereupon, at 12:00 p.m., the Committee was adjourned.] Appendix I ---------- Answers to Post-Hearing Questions Answers to Post-Hearing Questions Responses by The Hon. Dennis McLerran [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Appendix II ---------- Additional Material for the Record Document submitted by Representative Suzanne Bonamici [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Document submitted by Representative Donald Beyer Document submitted by Representative John R. Moolenaar [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Document submitted by Ranking Member Eddie Bernice Johnson [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Appendix III ---------- Slides Slides submitted by Chairman Lamar Smith [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Slide submitted by Representative Randy Neugebauer [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Slide submitted by Representative Bill Posey [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Slides submitted by Representative Mark Takano [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Slide submitted by Representative Brian Babin [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Slide submitted by Representative Gary Palmer [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Slide submitted by Representative John R. Moolenaar [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Slide submitted by Representative Bruce Westerman [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Slide submitted by Representative Darin LaHood [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Slide submitted by Representative Barry Loudermilk [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]