companies could start to move their investments overseas where they at least have the certainty and finality they need to invest their money. miss harbert, in your testimony you cited a study that says over 200 billion dollars are contingent on section 404 permit. when epa with a disposal site for 404 permit after issuance of it by the u.s. army corps of engineers, u.s. district judge jackson who was in fact appointed to the bench by president obama asked the epa what is the committee supposed to do tomorrow? specifically under epas everybody with a permit has to on a daily basis compare their permit to your list of specified cites. they can't do what they've been

permitted to do by the united states. so my question to you is, what would the practical effect be on a company having a section 404 permits be subject to the epa's ever changes list of acceptable proposal sites. >> i used to be a developer and one thing you do is look at your risks, technological risks, sovereign risks and this is a whole other level of risk that you have to find your way over, a hurdle. what does that do, it causes to you cancel the project because the hurdle is too high or increase the cost of the infrastructure project because you have to take that cost into account or take that money and go elsewhere and all of those things, they get very i am practical and very impactful impact on infrastructure. we know that they were crumbling infrastructure in this country and we know we need a lot of investment. those people who make those investments see those investments at risk.

it has a very real practical, timely impact. >> okay. mr. eisenberg, in your testimony you talk about a hurdle cost that companies would have to account for with this epa action if it's allowed to stand. would many of the members of the national association of manufacturing have this same hurdle cost overseas? >> you know, in overseas, probably not. you know, this is the case of dupe pli indicate tif process. the epa tried to fix the one thing to get at the one thing they could and it dissports the hurdle rate that an investor makes and it gets to the core of my testimony which really is, if epa wants more authority, they

need to come here and try to get it. if they don't feel comfortable with the bounds of their authority, congress is the place they need to go to get more. >> thank you. my time is expired. i'll yield now to my colleague from massachusetts. do you have additional questions? >> i do. for the first three months of 2012, coal only produced 36% of the electricity. it's declining rapidly because of natural gas and because of wind and just in the last five years, this trend, there was 16,000 new megawatts of coal installed in the united states. 36,000 new megawatts installed in the united states and 41,000 new megawatts installed in the united states.

in other words, to put it another way, over the last five years, 17% -- 17% of our new electrical generation came from coal. 39% came from wind and 44% came from natural gas in the last five years. that trend is very clear. if you want to keep looking in the rear-view mirrors from ten years ago or 20 years ago, it's down to 36% of all generation. the market has moves clearly to wind and natural gas. wind is now totally competitive with new coal as a generating source and these are numbers that basically again go to free market decisions made by utility executives all across the united states of america in terms of where the new electricity is being generated from. and these are just numbers that i know, you know, want to blame obama for the free market moving against a technology which is not competitive but i just think

it's unfair and inaccurate historically and i yield to the gentleman from new jersey. >> i thank the gentleman for his very good statement because he describes very well that market conditions are changing. and we want the coal companies to innovate. but if they refuse to innovate, they are going to be left behind. and i think the chairman, the ranking member has made that point very clearly. meanwhile we have an ongoing obligation to look after the environment. what is not changing is that obligation that we have to provide oversight to see that the environmental protection agencies and the environmental

protection laws of this country are working and that's what this is about and i thank the gentleman for yielding. >> again, i thank the gentleman very much. this is not unlike the auto industry. the auto industry fought innovation for a generation and the fuel economy standards kept getting more and more uncompetitive until it reached a point where the product was not selling. and they neared bankruptcy. that required the federal government intervention in order to ensure that they did not go under. that was not anything that i wanted to vote for. i'm one of the few people that can say i voted twice to bail out chrysler. 1979 and in 2010. and we were offering the same opportunity to the coal industry in the waxman-markey bill.

we were saying we'll provide the innovation and the help for the coal industry. we'll give you a bridge to make a transition so that you can stay within the competitive framework of new energy sources within the country. and the coal industry, in the same way that the auto industry did, said absolutely no. now, where is the auto industry today? well, they have come through their mess and now they are embracing the 54.5 miles per gallon by the year of 2026 and they are advertising every 20 minutes on every television show about their new more fuel-efficient and safer vehicles that they are selling. the coal industry said, no, let's just keep getting at this. peabody coal said no. and in the same way that they did a disservice to it is

workers, peabody coal has done a disservice to its workers, pretenltding thpr pretending that they could not make themselves more competitive. so trying to blame some outside source, whether it be the auto industry or the coal industry, is just to defy an analysis of the reality of the marketplace. the auto industry was losing to international competitors because they were no longer meeting the goals of what and wind is at 44%. this is the coal industry that is suffering because of the double digit of the coal

industry. >> this hearing is not about auto mileage or natural gas or about the cap and trade or anything else. it's about changing the rules and it's about out of control not following what the law says and that's what this hearing is about and before i came here to fantasy land where people just do whatever they see fit, i set up operations all over the world. i knew that we had a clear transparent, fair, and stable regulatory structure. and we became a banana republic

and that's not what this is about. we have bureaucrats that have invented jump science and bogus analysis because you have environmentalists that want to move beyond coal and natural gas. you've gotten environmentalists that want to attack crop insurance. pretty soon we won't be able to eat because of environmentalists, we won't be able to heat our homes and we'll darn sure have no jobs. this is out of control. this is not what america is supposed to be. that employment numbers that came out today, 69,000 jobs. the unemployment rate is 14.8%. one out of every six americans are out of work and now you've got out of control bureaucrats that want to put more people out of work because businesses that

hire these employees that create these jobs don't know what regulators are going to do. that's an issue for me. that's an issue for the american people. that's the reason we had a big change in november 2010. now, the first question is for you, miss harbert. i have a question for you. that is, when you get a permit, you assume that as long as you fulfill the responsibilities in that permit, that should stand existent. is that correct? >> absolutely. >> now, what happens if you're an employer if -- or a business if you can't count on that permit to be a factor, that it can be revoked at a whim, even

though you're fulfilling the rules of that permit? >> you give second thought to i can maing the making the inves. do you halt construction and lay off your workers or do you continue at a risk of the regulatory process? this is all new territory. the business community was set back by this decision by the epa. and the system steps in and say they were overreaching the authority but at the same time we have epa overreaching their authority in alaska and pre-emptively perhaps a project that has not gone to final decision. so we are seeing very scary signs and they want to figure out a way out of this. >> is there any statutory authority that the epa has to

retroactively reject permits? >> they don't have the authority to issue the permit. they can deal with the specification of where to put the fill. >> okay. senator, i have been to appalaicha. i have helped to go and renovate homes for economically damaged people and it's an economically hurting area and the epa bureaucrats that are not elected and unaccountable and look at the gsa response, they are responsible, to have them controlling the lifeblood of your community, how do you feel about that? >> well, in my area we do have a lot of people that have some underprivileged situations. it's working. to get to the next level you have to have your taxation to

diversify with. you can have visions and dreams and hopes and desires. if you have no money to get there and for somebody to simply put yourself in the position, how do you attract business if one day they can operate and the next day they are pulled and they are pulled before they get to operate, it's a scary situation. like i've said before, ceos of those companies have been longstanding and they don't want to be in the appalacha region, not because -- >> let me interrupt you for a minute. the folks in your community would rather get welfare payments? >> the ones i work with would rather work. in fact, this money has handed out more in the auto industry and everybody else, we don't have to give us a work permit.

>> thank you. i want to go back to mr. mckinley. >> thank you, mr. chairman. thank you for the opportunity to participate with this committee. and divert our attention to what we're supposed to be talking about here today and that's what they do a lot of in washington. i would just like to start -- i'm one of maybe three or four people in congress that have a construction background. and i've dealt with permitting agencies for 40 some years. if science changes and you change the requirements. >> would the gentlemen suspend? i'm going to ask all committee

members to respect the time that other committee members have. if we have a side bar, we can take it to another room. i appreciate that. thank you. >> when they change rules, you can apply. but you don't go back retroactively. they learn from the epa and build on the science. and unfortunately chose not to be here or stay focused on why you're here. permit was given. and if what i'm told they say they want to revoke it because i believe the science, they felt there was no science that would

cause that to be considered, miss gunnoe, to try to give an analogy for you, if in your house you probably have plywood in your house, your drywall perhaps, are you aware that the epa is considering changing the standard on the resin used in plywood to such a level to have a tenth of a part per million and if they do make that change, would you -- how would you feel after you've been given a permit, they knock on your door and say, you have to leave your home because we've changed the standard and that house is no longer within standard? would you leave your house willingly? >> i absolutely thought. if i thought my house was making me sick, i would leave. >> and if i can reclaim my time, the same thing with concrete.

in your house you have in your concrete and the epa is adopting standards that would say that's a hazardous material. so i suppose what you're willing to say in a very humble way, you're willing to face bankruptcy for your standards and your principles and i admire you for that. but the bank probably isn't going to like that after they've loaned you the money to build your -- >> can i respond to your question or are you just talking at me? >> no. if i can continue my time. if you may lose your home and the bank will have to foreclose on it because your house doesn't meet the standards of the epa. so that's a real threat as to when we keep moving the goal posts, for people to be able to make a decision. so i particularly -- miss

harbert, i like your comments and i wonder whether you had any comments about the report, before we get to this report in a short time frame, i want people to understand that since we got off game, i'll play in this court for a little bit when he won't acknowledge that in the other committee. but let's go back to sequestration. i've asked time and time again from the epaf. you're going to set the standard, show me one facility that has carbon capture, the commercially available technology. and there isn't one. we cannot do it in america today. even in a laboratory setting. but yet the epa has set that standard to where we need to be. they know very well, this is a war on coal. there's no question when we look at flash being called a hazardous material, climate change, utility, we understand

they don't want all of the above energy sources. so can you just in the time frame -- can yousay, is there anything more in this study that we need to review that was done by dr. sunday sundlink. >> the impact on the broader business community will be huge, and that it changes the business model for infrastructure in america. was that the intention of the clean water act? it certainly was not, and that's ultimately what this could mean. >> i ran over time. i wanted to ask our senator from west virginia about the fact that long view coal company in west virginia is actually producing power in mont county, notwithstanding the remarks from our senator from massachusetts, a rate lower than the gas production on the heat rate.

so the innovation is there, it's just got to be the ability for -- >> mr. mckinley -- >> would the chairman like to ask for unanimous consent for another minute to pursue that. >> i'd be glad to grant another minute. >> i would ask for another minute for the -- are you aware of the long view mine in mont county producing at a heat rate of 8700 btu per kilo watt. for those on the other side of the aisle that aren't aware of that, what would you you say to that. that the coal companies are innovating? >> i think they're innovate together best of their ability. >> utilities and as far as the economic ability to do so, yes. >> thank you very much. >> thank the gentleman for yielding back, we'll go to mr.

duncan from south carolina. >> thank you, mr. chairman. i was going to make the point i was going to ask. administration officials in panel one. they are here -- we can't say we weren't warned by the obama administration about their intent on fighting the coal industry, because the president himself says no way. if someone wants to build a new coal power plant we'll bankrupt them because they'll be charged a huge sum for all the greenhouse gases being emitted. we can't say we were not warned with that. i yield to the gentleman from ohio. >> i thank the gentleman for yielding. i have a couple more questions. but i'd like to point out. we fautalk about the decrease i the amount of energy being provided by the coal industry, when we have an administration, the president of whom acknowledged before he was elected that he was going to make it economically and feasible to build new coal fired

power plants and he's done so. we have a vice president who in 2007 said that coal is more dangerous than high fructose corn syrup and terrorists. so it's no wonder that americans today are paying $300 more on the average, per year to power their homes. so if that's acceptable to the american people, then maybe we're on the right track. but i submit that we are not. i want to say that i applaud the coal industry for turning down the opportunity to receive a bailout from the federal government in an attempt to choose winners and losers. we've certainly seen the federal government's ability to choose winners and losers, with failed projects like solyndra and so i -- you know, i think i've made the point. mrs. harper and/or mr.

eisenberg, is it safe to say that we would start to see some of that 200 billion that we talked about earlier start to move overseas where companies can rely on fin ailty of payments? >> well, safrpgtity of contracts is extremely important to any business model, the extent that the ability to rely on contracts or rule of law would send a signal where it feels more comfortable if that's overseas, then it's overseas. or it just won't happen at all. >> thank you. i find it quite ironic that vice president biden was in my district in ohio just a few weeks ago, talking about the resurgence of the manufacturing in america, when the administration is taking actions that will only push jobs overseas. and attack the very energy sources that are providing that surge in manufacturing today. many states have privacy over their programs, and as such,

many states expend a great deal of time and resources in the mine permitting process. what effect would a lack of fin ailty in cwa section 404 context have on west virginia's permitting scheme? >> states should have the right in the clean water act and i think it just creates an entirely different atmosphere, when you're talking about the permit process, when states don't have the sovereign rights over the clean water act regarding their own committee process, and it's overwritten by the federal regulators. so i think it just challenges the permit process totally. >> well, thank you. i -- i was afraid that's what you were with going to say. and as i said at the beginning of my questioning. although this is an egregious case of president obama's administration carrying out the war on coal, we've heard today from witnesses that the epa's actions have major ramifications

for all american businesses if the epa's actions are allowed to stand. with that. that concludes my questioning, and without objection -- >> i reclaim my time real quick. i want to make a point that denmark's held out as an epitome of alternative fuels and wind power. they've reduced their carbon foot print that much. they're still relying on their power supply from coal. it's an important resource. i like the wind power, and the gentleman from massachusetts was talking about that earlier. but we can't continue to talk about wind only. we got to support what works for that 24/7 base load, always on power supply and coal provides that in this country. and i think about what coal technology could do for the african continent or for latin america, where they use charcoal, which is taken from

the wood that's harvested in the forest that we love. we provided coal firepower plants and other countries, especially third world and lessen their dependence on the charcoal. think about the quality of life issues that -- coal works. it's proven in this country and it could be proven worldwide. i yield back. >> i thank the gentleman for yielding back. votes have been called. without objection, i'm going to yield the final two minutes to our colleague mr. holt. >> thank you, mr. chair. many of the questions that the committee wanted to ask of the epa seem to be better dealt with in court. there are general statements made that should be addressed, that have to deal with the clean water act and what it actually says. it actually says that the administrator is authorized to

prohibit the specification, including withdrawal of specification of any defined area. and he is authorized to deny or restrict the use of any defined area for specification as a disposal site, including withdraw withdrawal, whenever he determines after notice and opportunity for public hearings that the discharge will have an unacceptable adverse effect on water supplies, fibberries, wildlife and recreation areas. it goes on to say that the administrator must consult with the secretary and the corps of engineers. the court expressed some surprise that congress would do this. but congress did that. our witnesses seem to disbelieve that congress did this, but

congress did this. i think it's worth making clear. i'll yield my remaining time to the ranking member. >> i thank the gentleman. earlier this week, the new york times reported that the american electric power company was planning to transition a plant in kentucky from coal to natural gas. the coal companies objected, they organized, they insisted that rate pairs should pay 30% more so the plant could continue burning coal instead of much cheaper natural gas. they actually got the american electric power company to submit that proposal to state public utility commissioners, and let's be honest, that's well with fare for coal executives, making rate pairs -- >> i hate to call the -- >> 30 additional seconds. >> without objection. >> that's welfare for coal executives, making rate payers pay 30% more. that's just wrong, that's not free market. the company finally withdrew this ridiculous proposal after it gained