House hearing: Let the EPA bashing begin!

May 5, 2011 by Ken Ward Jr.

Right now, the House Committee on Transportation and Infrastructure‘s Subcommittee on Water Resources and Environment is starting the first of two days of hearings scheduled to bash the U.S. Environmental Protection Agency‘s efforts to reduce the dramatic impacts of mountaintop removal coal-mining on the Appalachian environment and coalfield communities.

And as they did yesterday with a staged House hearing on mine safety issues, the National Mining Association is already out there with a press release touting its testimony at today’s committee hearing:

“The deliberate and disruptive policies that have slowed and stopped coal mines from receiving permits to open or expand have consequences that reverberate throughout the region. The consequences begin with the coal supply chain and spread to those that benefit from low-cost coal energy,” National Mining Association (NMA) President and CEO Hal Quinn told the House Subcommittee on Water Resources and Environment in testimony today on the subcommittee’s inquiry into “EPA Mining Policies: Assault on Appalachian Jobs.”

The hearing will be pretty predictable, but one thing to watch for is how far Rep. Nick J. Rahall, the ranking Democrat, goes in ignoring the negative impacts on his district from coal mining in his effort to out pro-coal the Republians. And it will be fun to see if the National Mining Association is able to point to some actual peer-reviewed scientific research that contradicts EPA’s concerns about the impacts of coal-mining on water quality across the region.

One of the mining industry’s star witnesses will be Michael B. Gardner, general counsel of a company called Oxford Resources Partners, which operates surface mines in Ohio.

In his prepared testimony, Gardner brags about his company’s “dedicated, non-union workforce” and complains bitterly about how EPA officials have handled his company’s applications for Clean Water Act Section 404 “dredge-and-fill” permits. But a couple things jumped out at me about his testimony.

First, while Gardner objects that EPA has not operated in an open and transparent manner with his company, it seems that Oxford hasn’t had any trouble — thanks to help from its local politicians — in scheduling fairly high-level meetings with EPA staffers about specific permit issues.

Second, it’s worth noting that EPA in the end decided to do a more thorough review of only four of the eight Oxford permits it considered for potential placement on EPA’s list for Enhanced Coordinated Procedures.

Next, two of those permits have actually been issued. And the other two were withdrawn by the company — not rejected by EPA (see here, here, here and here).

Finally, while the coal industry wants to complain about what it says are permitting delays under the Obama administration, it’s worth noting that in all four instances, Oxford began coordinating permit activities with the U.S. Army Corps of Engineers back in 2005 — when George W. Bush was president. It will be interesting to see if Rep. Rahall asks how much of any delay in permit processing was caused by Bush, as opposed to Obama …

Stay tuned … You can watch the hearing live by going to this link.

12 Responses to “House hearing: Let the EPA bashing begin!”

  1. Vernon says:

    The pre-roll of the webcast says “Use for political or commercial purposes is expressly prohibited.” Isn’t the hearing itself for political and commercial purposes?
    According to Liz Judge’s Earthjustice blog, “Taking a deeper look at the witness list to find that all of the private-sector witnesses that Rep. Gibbs has called to testify are in fact his campaign donors, from executives of the National Mining Association to the Ohio Coal Association, to Oxford Resources and Murray Energy.”

  2. Dave says:

    Mr Rahall not only managed to ignore all the negative impacts resulted from the surface mining the EPA has been attempting to regulate, but indeed spoke as though it did not exist. As if there were no negative impacts, a belief I would go as far as to say he is the only one in his district to hold. Even if the issue is complicated or convoluted by industry and the mono-economy the industry has in this state, I think there is little doubt that surface mining negatively impacts nearby communities, both in terms of safety due to disasters and long term health impacts. Maybe Mr Rahall should talk to some of his constituents, the ones who live in the coalfields by these mines, not the industry. If this is how these hearings go, maybe next time Mr Rahall and the chairman of this committee can save us the trouble, and just go out for brunch with the industry. It’s not like they’re fooling anyone anyway.

  3. Moderate says:

    There are several issues here – two of particular note. (1) the science, and (2) the process.

    The science is still being worked on. There are impacts due to coal mining. I think most agree on that.

    The process on the other hand, EPA has clearly run amok the process. EPA has abused a process without going through the process. EPA took hostage the permitting process, objected to permits without providing for judicial review, and they have no requirement to make a final determination under any timeframe. All of those things need to be modified by Congress in order to provide a more appropriate cooperative federalism approach.

    If EPA wants to change the rules, then change the rules and deal with the issue.

  4. mayflyguy says:

    What little that I listened to would be funny if it wasn’t so sad. I will be more interested in what Lisa Jackson has to say in response to what she is asked.

    There was one interesting question that was basically throwing out the idea that maybe EPA’s actions seem so drastic because under previous administrations they were directed to not take action.

    More of the typical misinterpretation of the science (e.g, bringing up the conductivity levels in bottle waters vs. background stream water). More complaining about how a permit takes years to get as opposed to 6 months?!!!

    Dr. Peters, I think, suggested that the 300-500 conductivity benchmark was below background conductivity levels, which is not what the science says. He also implied that the science was “incomplete” at best.

    It was also implied that the policy was chosen first and then EPA generated science to back it up, but I don’t think anyone bit on that one.

    Ken- how long do you figure until you can get and post the documents that were submitted as part of the testimony? I wonder if the NMA study is just the same one done by GEI recently.

  5. Rick says:

    The EPA is doing exactly what they have ALWAYS had the power to do .

    It just doesn’t suit all the people who grew accustomed to 8 long years of Bush undoing regulations , and changing the definition of ” fill ” material in the Clean Water Act ….. without Congressional approval .

    ” CHANGE ” .

  6. Watcher says:

    Ken, my daughter was in her second year of elementary school at the time of the origional Spruce permit and now is in her second year of college. I’d call that a permiting delay for sure. Maybe at the hearings, if asked Ms Jackson will reveal the true definition of “fill material” once and for all.

  7. Moderate says:

    Apparently, as I understand, not everybody is allowed to post factual comments on this website.

  8. Ken Ward Jr. says:


    The Gazette does reserve the right to decide what comments are published and which are not. Coal Tattoo’s comment policy is posted here,

    If you have a specific comment that you’re referring to, email me off list at and I’m happy to look into it.


  9. Moderate says:

    You would not post ECOS comments on this website. Why? That is a 50-state organization that unanimously voted to oppose this type of action by EPA. This isn’t just about coal, this is about how EPA functions as an agency, and EPA has clearly went beyond their authority and violated the appropriate processes. I don’t understand why you refused to allow ECOS to post on this website.

  10. Ken Ward Jr. says:


    A reader tried to post a comment about ECOS’s testimony, but it included an unnecessary personal attack on EPA officials. Those sorts of things aren’t allowed on this blog, as per my comments policy, which I referred you to above. (by the way, that reader did not identify themselves as actually being with ECOS, so it’s not clear to me that they were).

    Oddly, that reader did not include any quotes or a link to the ECOS testimony. However, the link I included in the original post, above, and here’s the direct link to their testimony:

    And here’s a bit of what they had to say:
    “ECOS does not believe that EPA has ever attempted to require states to implement ‘interim guidance’ until recently.” She described the impossible position in which states are placed by EPA’s action. “Requiring states to implement interim guidance puts each state in the position of deciding whether it will break federal law or state law,” said Marks. “At the very least, this should be a good enough reason why a federal agency should never ask a state to implement something that is not final.”

    We welcome comments from all sides, but we don’t allow nasty personal attacks.


  11. Moderate says:


    With all due respect, it would seem appropriate that the media should report the full disclosure of the actual facts.

    Here is the 50-state ECOS resolution. Let the readers decide for themselves. ECOS is clearly opposed to this EPA action.

    Here is the actual resolution with an excerpt:

    “Urges U.S. EPA, when interim guidance, interim rules, draft policy or reinterpretation policy is deemed necessary, to consult with states and require its regional and national program managers at the earliest possible opportunity to engage in meaningful and consultative discussion with each of their states about the content of interim guidance, interim rules, draft policy or reinterpretation policy and the practicalities of implementation;

    Urges U.S. EPA to make its guidance, rules and policies final prior to seeking state adherence and implementation;

    Believes U.S. EPA should not use its objection authority when based entirely or in part on interim guidance, interim rules, draft policy or reinterpretation policy;

    Requests that for formal objections to state-issued permits, U.S. EPA modify its processes to designate that its objection is a final agency determination subject to judicial review;

    Further requests that U.S. EPA establish firm and timely deadlines for it to issue or deny those permits to which it has objected; and

    Request that a copy of this resolution be transmitted to the appropriate U.S. Senate and House of Representatives committees and to the U.S. EPA Administrator.”

    With respect to Ms. Marks written and oral testimony and Q&A, here again, let the readers decides for themselves. ECOS is clearly opposed to EPA’s action in this matter. I invite the readers to listen to the entirety of her testimony and answers to Q&A.

    Here is a snipit at the end of her written statement. ECOS conclusionary recommendation if you will:

    “We hope that the committee can see why the issuance of interim guidance which is mandated in fact through the use of objection authority is an unfair and indensible position in which to place the states and the regulated community, and must not be allowed to continue.”

    That is pretty clear.

    The fact of the matter is, EPA is out on their own on this matter. Nobody is saying that EPA doesn’t have the authority to change the law. They do, and they should where necessary. The reality is, EPA did not go through the appropriate processes in this issue from the beginning and they now find themselves risking much more than how they oversee coal matters. EPA is risking the entirety of how they operate by abusing their objection authorities.

  12. Ken Ward Jr. says:


    I agree … the facts should be reported … no question about that. I just won’t let readers make nasty, personal attacks and call people names in the process.

    Thanks for posting the entire ECOS resolution and the link to it.

    As I mentioned, my original post had a link to all of the hearing materials and to the Webcast — the great thing about this blog is it allows those sorts of materials to be more readily provided to readers.


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