thank you for being here. >> mr. chairman, i want to thank you and the committee for the opportunity. my name is art kirkencall, i'm a senator from west virginia, which is in the deep south. prior to being am in nated to the senate and appointed to the senate and i'm the democrat nominee, and to be successful, i was on the county commission for 30 years, and so disturbing, regarding the law permit back in 1998 we had a tousle over there with the opportunity to mine coal and as a commissioner, you set the budget for the constitutional office holders in the county and everybody else and the public depends on you. the school kids and everybody depends on the ability to have the ability to have life in a rural county. so when this permit was

disbanded. they shut down and we lost jobs and 12 million dollars in direct payroll. if you do the other jobs that support the coal industry and probably $100 million in the coal area and it was about $400,000 a quarter. i had to start cutting the budget and tighten things up because we got down to 72,000 in one quarter. now, when 20% of the budget is driving coal tax in an energy-producing county it's pretty, pretty tough. so during the years, now we're in almost the 14th year we're still not mining coal. there are still 230 jobs today in question that would be mining the surface mine and when we talk about the devastation of surface mining, let's look at the plus side of surface mining. we're in a challenged terrain in logan county. i think they say 28-degree slopes. we have no flat land and by

having post-mine land, and we now have a jail, an industrial park, an airport, a shopping mall and other things that give us a little diversification and the ability to be something other than just coal. and i want to tell you, i don't know about some of the other counties, but logan has done a good job with post-mine land and we set up a master land usage program. what that meant was we can put in language and a mine permit from where we could take people out of flooded areas where we repay the flooded areas and put them up on the surface mine and leave it there instead of taking it all out and starting over. that's what you need to get when you mine coal in areas that need to be surface mined. take your people's livelihood. let these people have a life. we've got through two tremendous floods in logan county in the last few months, army corps, the troops cleaning up our area. if those people had been on some

of these surface-mined areas that we have that wouldn't have happened. >> if you think you can't get killed, go back to the buffalo creek flood from a few years ago. 120 people. produce energy that keeps america safe. two, makes us the ability to compete with other markets financially. when you can't get a permit, guess what happens? >> a let of people don't understand. a few years from now it will be supply and demand. when we start depending on coal like we do oil, they'll have the supply and we'll have the demand. we're 20 years away from alternative energy and fuel to where we don't need poll. we don't even have domestic coal. that's the problem. so we'll sit back and watch the rest of the world flourish economically and they laugh at what we do and we sit here putting our own self out of business, and i want to do it the right way. it used to be aoc and that's a

reasonable contour and plan out what you want to do with that property after the extraction of the coal. put a school on it, put a community on it, but what people don't realize if we mined all of the coal that needs to be mined it would be 3%. i'm telling you, we can make it on 97%. second fact, i chair one of the most instrumental groups in ameri america. the atv, we occupy the same trail system in the same mountains that we mine coal on a daily basis. if we've had visitors from all 50 states and almost 30 foreign countries and we're trying to diversify and we want to be a tourist area and mine coal, too. and we can do both. so don't be duped. come down to west virginia and what we do and don't take data and get in a committee and put the own us back on us where we

can't compete. bring a committee down. let me take you to post-mine land that's been redone, the beauty of it. i had the 60 minutes crew in a helicopter. they asked me where is the reclaimed area and i said you've been over it for 12 minute, but they still wouldn't believe what i told them. the deer, the life and everything is better on post-mined land than the land before. so with that, thank you for the opportunity, and let's be sensible and put america back to work. thank you very much. >> thank you for your testimony, senator kirkendall. ms. harp are, you may begin. >> i'm president and affiliate of the u.s. chamber of commerce which is the nation's largest administration. >> it is not about mountaintop mining. it is not whether coal should or should not be part of our energy

mix. it is about the rule of law and whether america is a safe place for long-term investment. it is about the integrity of our regulatory process. it is about whether america is open for business. that's why this hearing is so important. one of our great strengths as a country is we hold the rule of law sacrosanct, if we take the epa and spruce mine case, congress, as we know would grind to a halt. hundreds of businesses would bey requesting if they, too, would have their permits retroactively rejected. there would be no way to accurately calculate risks that could simply change its mind as will. we recognize a clear, transparent and predictable regulatory system is valuable to both business and the environment and we also believe that government must honor the decisions it makes and operates within the law and in the case of spruce mine number one a

federal judge has clearly demonstrated that the epad not. to give us a sense of scale and magnitude, it should be noted that the army corps of engineers issued approximately 60,000 discharge permits annually under section 404 and estimates that covers $220 billion of annual investments condition on those permits. it is not just a matter of mining and energy projects and it is for industry broadly. it covers a significant component of the economy including residential and commercial buildings and roads and renewable energy and other projects. a reduction or constriction on these key infrastructure areas would limit job growth. a study by the battle group estimates that for every $1 billion of construction spending we generate 18,000 jobs and with today's unemployment rate at 8.2% we cannot afford our government to restrict job

growth. with after ten years of review, the epa didn't identify a need to withhold the approval for spruce mine number one when they had the opportunity and legal ability to do so. so attempting to withdraw the approval retroactively two years after issuance would not only cause immediate economic loss to the mine owner, the state of west virginia and the workers, but it would create a substantial, negative and economic chilling impact on the economy as a whole, setting up precedent with section 404 permits can be revoked or changed at will. if permits become subject to arbitrary treatment, the result would be capital investments and fewer jobs and more expensive infrastructure. the united states is still attractive market for investments, but to the extent that government increased risk the united states becomes less attractive. according to the world economic forums, global competitiveness reports the u.s. which long held the top global position has continued its three-year decline

and now holds fifth place. two of the factors cited for this decline where a reduction the transparency of government policy making and secondly the increase in regulation. when a government agency takes unprecedented action to attempt to revoke a legal permit issued by another agency this action sends a message to the entire business community that it can't count on the government permits. businesses of all sides are not asking for no regulation, they're asking for transparent and enduring regulations upon which they can make decisions and investments. they require a process that makes sense and a process that makes clear timeframes and a process where once the decision is made it is honored and its investments can go forward and hire people. without such confidence, capital will go elsewhere and that undermines not only our competitiveness, but the ability to get america back on its feet and americans back to work. fortunately, the u.s. system still has checks and balances and in this case the system

worked. judge amy jackson issued a striking rebuke to the epa's overreach. she called the epa's interpretation, illogical and impractical and refers to their logic as magical thinking and noted, quote, it is unreasonable to sew a lack of certainty into a system that was expressly intended to provide finality. so at the onset of this case, the epa sought to silence its critics by objecting to the very filing of our brief, but now the court has ruled against epa, but epa continues and it is troubling to waste the taxpayers' dollars to defense an indefensible policy that is prance parentally bad for the economy and inconsistent with the principles of law. business can and should adhere to laws and regulations governing its industry, but we need to know the rules of the road and the regulators have an obligation to provide a clear and transparent process to follow. congress and the judicial system must ensure that epa exercises only the authority it has and not the authority it wishes it

has. nothing less than the integrity of our commercial economy is at stake. thank you. >> thank you for your testimony, miss harbert and mr. eisen, you may begin. >> good morning, ranking member holt and members of the subcommittee. i'm vice president of energy and resources policy at the national association of manufacturers. i'm very pleased to come before the subcommittee today to discuss spruce mine and section 404 permit and what the retroactive veto of that permit did and the impact that had on manufacturers. in order to drive our nation's economic recovery, manufacturers really need predictability from the regulatory process. they must understand the rules of the road so they can make responsible, informed investment decisions. this lack of predictability is precisely the problem with the spruce mine case that we are here discussing today and it's the main reason the nam and other organizations found it so

necessary to be against epa. the spruce mine veto was at its core a $250 million decision by epa that created a $220 billion problem. so let's talk first about the 250 million. arch coal planned to commit more than $250 million and create 250 new well-paying jobs in west virginia. so obviously, this project matters and you've heard that today from the state senator. now about the $220 billion problem. it issues roughly 60,000 discharge permits under section 404 and more than $220 billion investment is on the issuance of the permits and this includes pipelines, transmission lines and transportation infrastructure and agriculture and many other sectors. for as long as the clean water act, under which section 404 permits have been modified and epa has retroactive veto of the

spruce mine permit is for each of the sectors and a completely new and undefined threat to the permits. it would have made a significantly more difficult to rely on essential 404 permits for investment hiring and decisions. they would now have to account for having the rug pulled out from them after the project had been initiated. it brought with it significant investment uncertainty that would translate into less investment, lost jobs and slower growth throughout the u.s. economy. the precedent set by the spruce mine case is a serious threat to manufacturers in its own right and it's only a small part of the broader, new set of policies being pursued by the epa that have manufacturers concerned. epa is testing its authority under the clean water act. for instance, epa is on the verge of issuing final guidance that plans its jurisdiction under the clean water act.

and it could significantly impact regulatory certainty by subjects a wide range of traditionally entrust state waters to clean water act jurisdiction and permitting. moreover, by doing this dramatic policy shift through guidance rather than by regulations or the regulatory process, manufacturers are circumventing a lot of regulatory safeguards in the process to protect the regulatory, and job loss analysis and considerations of impact to small businesses. in addition, epa is also on the verge of taking another 404 veto action on this, the spruce mine case and this time epa appears likely to issue a preemptive veto for the pebble project. a proposed copper and goal mine in alaska. if that project were to move forward it can attract several millions of investment and epa has taken a position that it can say no to this project even before the application for a permit has been filed.

so i'd like to conclude by saying that it's very clear from this case and other water cases that epa is involved in that it's under the clean water act and it clearly wants more, but by trying to get more through questionable regulatory decisions such as this one, epa is causing a great deal of uncertainty that it seeks to regulate and it's ensuring that most of the decision will be subject to litigation and epa's goal shouldn't be to issue the possible water regulations that might theoretically survive judicial scrutiny. it should be to carry out the intent of congress to carry out the integrity as set forth in the clean water act. if epa wants regulatory authority, isn't that why we have congress? epa should be here asking congress for this authority and congress should debate the merits of such a decision. manufacturers need the regulatory process. a proper system of checks and balances would ensure the spruce

mine veto and the uncertainty it caused will not happen again. thank you for allowing me to testify here today. i look forward to the questions you may have. >> thank you for your testimony, mr. eisenberg. we will now hear from ms. gunno. >> i'm maria gunno, and i'm from west virginia and i represent the appalachian communities where coal mining impacts are affecting people. thank you for allowing me the opportunity to speak to you again today. i appreciate your obligations and responsibilities in protecting and serving all u.s. citizens. my hope is that you hear the pleas for our lives in southern an appalachia, and it's in the headwars of the pigeon roost creek, the stream and the people of blare and porton are not important to the people in this

room, but to me it's a part of our home. you will soon be forced to leave what is the birthplace of your family and your children's birthrights as heirs to your family land. you are forced by destruction to leave the american dream that our forefathers prepared and fought for. why is it acceptable to depopulate the communities and culture, poison our water and air and leave us to die in a post-mining wasteland for temporary jobs in energy? you should ask yourselves, are we knowingly and willingly flipping out our lights and lining our pockets at the expense of the lives, livelihood and health of the people in appalach appalachia? >> the answer to this, in my opinion is yes, you are. the spruce number one permit is one of the first examples of the steps that the epa has taken to stop irresponsible mining practices which were ignored during the bush administration.

people from all over appalachia have lobbied the epa for these protections for the past 15 years, the coal industry was allowed to do as they played during the 18 years of the bush administration -- eight years of the bush administration, then in 2009, in steps the obama administration trying to fix the problems that the bush administration created and then ignored. the coal industry has said that the epa, and the obama administration are trying to shut down coal. the coal industry is perpetuating a lie that there is a war on coal and that coal mining jobs are under attack. this is the same false crisis that is created by this industry each time that they don't get what they want. according to recent reports by ken wharton of the charleston gazette, coal mining has

increased by 7.4% when the obama administration took office, ted ted boughtner looked at mining jobs over the last two decades, annual west virginia coal mining jobs was higher in 2011 than any other time in the last 17 years. quoting the title of daniel weis's article in climate progress.com the war on coal is a lie invented by the coal industry. it's a multi-million dollar misinformation campaign funded by big coal polluters to distract americans from the deadly effects on pollution on public health. there is a war in appalachia, believe this. this war is not on coal. this war is on the people of appalachia. coal is not our king, god is. coal is only the dictator of some. expanding any mountaintop removal including the spruce number one permit means the

depopulation of yet another mountain community and the sickening of the people who live in this community. how will this affect our culture? we will die as a culture as we suffer with the inability to pass this mountain culture on to our children. not even our historic mountain cemeteries are left intact and accessible. it is not as if this committee, congress, the coal industry and the obama administration doesn't know what mountaintop removal is doing to people. they not only know about it, but they are supporting it and allowing it by not ending it. after visiting the central appalachian communities the u.n. tribunal on climate change recommendations for rio 20 included that mountaintop removal should immediately be stopped with a moratorium on any mountaintop removal operations until a full investigation can be undertaken.

mountaintop removal cannot be silenced. the more people that are impacted, the more that can't continue to step up to protect all that makes us as appalachians free. we know weir doing the right thing in ending what came in to destroy our very existence. we appalachians for many years have lobbied to enforce laws that are intended to protect our lives. this coal industry in appalachia is anti-life and the firm enforcement of laws is only chance that we have to survive as a culture. my family first settled this area during the force rd remova of the cherokee known as the trail of tears. what the government is doing to our native communities in southern appalachia feels like the second silent forced removal of our people. >> okay. thank you, and thank all of you

for your testimony here this morning. members of the committee may have additional questions for the record, excuse me, and i would ask that you respond to these in writing. we will now begin questioning. members are limited to five minutes in their questions, but we may have additional rounds. i now recognize myself for five minutes for the first set of questions. senator kirkendall. you discussed the financial benefits to boone county and west virginia, more broadly. did i hear you right that there is a $29 million direct payroll and a total $100 million direct and indirect payroll that is being lost by the non-operation of the spruce coal mine? >> mr. chairman, those are numbers i reflected and that was back in 1998 when it shut down. the loss of revenue that we had

to, you know, we couldn't make it up. we've never made it up it was a direct payroll of the 400 payrolls that were at daltex when the permit was no longer there for them to operate and work and systematically, do the math, the people that bring the supplies to the mines, the tires for the truck, the bolts and this and that and whatever they do, all of the materials, you can -- you can estimate it, we've done a lot of estimated numbers and it was $9 million of lost revenue for support vendors. >> how many jobs do you think that represents? >> we looked at different statistics, some people say a qualified coal mining job if a person works his normal hours is about 65 to $70,000 a year. it's between five and seven additional jobs in the surrounding area of activity.

so 200 qualified coal mining jobs can be between 1,000, 1200 jobs of 12 with that kind of revenue there to be split among different types, needs and services, yes. with the money that would come to the county or the state is the county able to make water quality or stream quality improvements? >> well, here's the thing. in logan, i was a commissioner for 30 years starting in 1980. when i got there we had less than 20% of the people had poetable water. it was a coal mining area. most of the lines were two-inch lines and we formed a psd and very aggressive in request for funding and when i left the county commission in 2010 we were way past 90% of the people in our county, logan had potable

water and we do have a policy in program now about stream restoration. you simply can't get in a stream anymore from federal regulations. you don't what you've got in the middle of that stream. the guy in the river had flooding which the water will flow from upper counties down there. you had trees and debris lodged in on the connectors of your bridges from one side of the water way to the other. you get in that stream and muddy the water to kill a crawdad you're going to jail. what we had to do as a commission is make application on what they call the sole conservation from charleston. they would send engineers and study how to bring the stream back to bedrock and bring it back to the center of the stream and let it restore itself naturally. we were okay with that. there are avenues to restore

streams b, but some of the interpretations of streams is what the problem is now. a dry ditch is not a stream. it is 70% of the year due to annual rainfall and that's a stream. >> thank you. miss herbert -- harbert, excuse me. do people working in regulatory agencies have a clear understanding, in your opinion, of the problems caused in our economy by increasing uncertainty? >> in our opinion, absolutely not. the reverberations of decisions like this are not just in one county or one state. they're across the country. they're affecting industries unrelated to mining and unrelated to energy. it is building, it is transportation, it is roads and bridges. these decisions that are taken should not be taken so lightly. we have to understand that these are billions of dollars that are at stake. boards of directors need to make decisions and hire people and they can't do it if they think

some time down the road somebody might change their mind and revoke their permit. >> would this have the risk of driving jobs overseas? >> we have to want investment in the united states. we have to attract and and we have to be inviting rather than take to capital investors take your money elsewhere because you will have that type of certainty somewhere else. decisions like this look more like hugo chavez than george washington and we have to think. what do we want to be as a country. do we want to be some place where we want investment where it's comfortable or happy here or do we want to take it to other countries. >> thank you. i now recognize the ranking member. >> thank you. let me begin with a comment that this little sideshow earlier just confirmed in my mind that indeed the officials at the environmental protection agency had important, better things to do with their time this morning than to engage in political

theater. mr. chairman, you knew days ago they were not coming. you did not have to print cards to establish a little skit here to ask where the officials were and this just, as i say, confirms that they, indeed have much more important things to be doing this morning. miss ganno, we have a chart available that's a map of the area the red in the center is the mountaintop area in question, and all of the other gray areas are permitted -- are permitted areas and it's not as if this is the only opportunity

in the tri-state region. ms. gunno, according to the epa there are 257 past and present surface-mining areas that occupy 13% of the entire land area. as you can see in the gray there, the mines blanket the region. do you think that the level of mining that is already occurring in this area means that there's more to be done to protect the streams that would be affected by the spruce mine? >> i do. the streams in that area are already above epa standards. we know that through recent water testing that has been done, and i need to say that when you look at this mountain, recognizing that the dark gray