[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]







      H.R. ___,  THE COAL ASH RECYCLING AND OVERSIGHT ACT OF 2013

=======================================================================

                                HEARING

                               BEFORE THE

              SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY

                                 OF THE

                    COMMITTEE ON ENERGY AND COMMERCE
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             APRIL 11, 2013

                               __________

                           Serial No. 113-29





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                    COMMITTEE ON ENERGY AND COMMERCE

                          FRED UPTON, Michigan
                                 Chairman
RALPH M. HALL, Texas                 HENRY A. WAXMAN, California
JOE BARTON, Texas                      Ranking Member
  Chairman Emeritus                  JOHN D. DINGELL, Michigan
ED WHITFIELD, Kentucky                 Chairman Emeritus
JOHN SHIMKUS, Illinois               EDWARD J. MARKEY, Massachusetts
JOSEPH R. PITTS, Pennsylvania        FRANK PALLONE, Jr., New Jersey
GREG WALDEN, Oregon                  BOBBY L. RUSH, Illinois
LEE TERRY, Nebraska                  ANNA G. ESHOO, California
MIKE ROGERS, Michigan                ELIOT L. ENGEL, New York
TIM MURPHY, Pennsylvania             GENE GREEN, Texas
MICHAEL C. BURGESS, Texas            DIANA DeGETTE, Colorado
MARSHA BLACKBURN, Tennessee          LOIS CAPPS, California
  Vice Chairman                      MICHAEL F. DOYLE, Pennsylvania
PHIL GINGREY, Georgia                JANICE D. SCHAKOWSKY, Illinois
STEVE SCALISE, Louisiana             JIM MATHESON, Utah
ROBERT E. LATTA, Ohio                G.K. BUTTERFIELD, North Carolina
CATHY McMORRIS RODGERS, Washington   JOHN BARROW, Georgia
GREGG HARPER, Mississippi            DORIS O. MATSUI, California
LEONARD LANCE, New Jersey            DONNA M. CHRISTENSEN, Virgin 
BILL CASSIDY, Louisiana                  Islands
BRETT GUTHRIE, Kentucky              KATHY CASTOR, Florida
PETE OLSON, Texas                    JOHN P. SARBANES, Maryland
DAVID B. McKINLEY, West Virginia     JERRY McNERNEY, California
CORY GARDNER, Colorado               BRUCE L. BRALEY, Iowa
MIKE POMPEO, Kansas                  PETER WELCH, Vermont
ADAM KINZINGER, Illinois             BEN RAY LUJAN, New Mexico
H. MORGAN GRIFFITH, Virginia         PAUL TONKO, New York
GUS M. BILIRAKIS, Florida
BILL JOHNSON, Missouri
BILLY LONG, Missouri
RENEE L. ELLMERS, North Carolina
              Subcommittee on Environment and the Economy

                         JOHN SHIMKUS, Illinois
                                 Chairman
PHIL GINGREY, Georgia                PAUL TONKO, New York
  Vice Chairman                        Ranking Member
RALPH M. HALL, Texas                 FRANK PALLONE, Jr., New Jersey
ED WHITFIELD, Kentucky               GENE GREEN, Texas
JOSEPH R. PITTS, Pennsylvania        DIANA DeGETTE, Colorado
TIM MURPHY, Pennsylvania             LOIS CAPPS, California
ROBERT E. LATTA, Ohio                JERRY McNERNEY, California
GREGG HARPER, Mississippi            JOHN D. DINGELL, Michigan
BILL CASSIDY, Louisiana              JANICE D. SCHAKOWSKY, Illinois
DAVID B. McKINLEY, West Virginia     JOHN BARROW, Georgia
GUS M. BILIRAKIS, Florida            DORIS O. MATSUI, California
BILL JOHNSON, Missouri               HENRY A. WAXMAN, California, ex 
JOE BARTON, Texas                        officio
FRED UPTON, Michigan, ex officio







                             C O N T E N T S

                              ----------                              
                                                                   Page
Hon. John Shimkus, a Representative in Congress from the State of 
  Illinois, opening statement....................................     1
    Prepared statement...........................................     3
Hon. Paul Tonko, a Representative in Congress from the State of 
  New York, opening statement....................................    47
Hon. Fred Upton, a Representative in Congress from the State of 
  Michigan, opening statement....................................    47
    Prepared statement...........................................    48
Hon. Henry A. Waxman, a Representative in Congress from the State 
  of California, opening statement...............................    50
    Prepared statement...........................................    51

                               Witnesses

Mathy Stanislaus, Assistant Administrator for Office of Solid 
  Waste and Emergency Response, U.S. Environmental Protection 
  Agency (EPA)...................................................    52
    Prepared statement...........................................    55
    Answers to submitted questions...............................   169
Robert J. Martineau, Jr., Commissioner, Tennessee Department of 
  Environment and Conservation...................................    76
    Prepared statement...........................................    79
    Answers to submitted questions...............................   188
Stephen A. Cobb, P.E., Chief, Governmental Hazardous Waste Branch 
  Land Division, Alabama Department of Environmental Management..    88
    Prepared statement...........................................    90
    Answers to submitted questions...............................   199
Susan Parker Bodine, Partner, Barnes & Thornburg, LLP............   100
    Prepared statement...........................................   102
    Answers to submitted questions...............................   211
Lisa Evans, Senior Administrative Counsel, Earthjustice..........   113
    Prepared statement...........................................   115
    Answers to submitted questions...............................   214
Jack Spadaro, Mine Safety & Health and Environmental Consultant..   134
    Prepared statement...........................................   136
    Answers to submitted questions...............................   247

                           Submitted Material

Discussion draft.................................................     4
Statement of Kevin Cramer, submitted by Mr. Shimkus..............   151
Statement of the Portland Cement Association, submitted by Mr. 
  Shimkus........................................................   163
Letter of April 11, 2013, from Geosyntec Consultants to Mr. 
  Shimkus........................................................   164
Letter of April 11, 2013, from Civil & Engineering Consultants, 
  Inc. to Mr. Shimkus............................................   167

 
    H.R. --------, THE COAL ASH RECYCLING AND OVERSIGHT ACT OF 2013

                              ----------                              


                        THURSDAY, APRIL 11, 2013

                  House of Representatives,
       Subcommittee on Environment and the Economy,
                           Committee on Energy and Commerce
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 10:34 a.m., in 
room 2123 of the Rayburn House Office Building, Hon. John 
Shimkus (chairman of the subcommittee) presiding.
    Members present: Representatives Shimkus, Gingrey, Hall, 
Murphy, Latta, Harper, Cassidy, McKinley, Bilirakis, Johnson, 
Barton, Upton (ex officio), Tonko, Green, Capps, McNerney, 
Dingell, Barrow, and Waxman (ex officio).
    Staff present: Nick Abraham, Legislative Clerk; Charlotte 
Baker, Press Secretary; Matt Bravo, Professional Staff Member; 
Karen Christian, Chief Counsel, Oversight; Jerry Couri, Senior 
Environmental Policy Advisor; David McCarthy, Chief Counsel, 
Environment and the Economy; Brandon Mooney, Professional Staff 
Member; Andrew Powaleny, Deputy Press Secretary; Tina Richards, 
Counsel, Environment and the Economy; Chris Sarley, Policy 
Coordinator, Environment and the Economy; Jacqueline Cohen, 
Democratic Senior Counsel; Greg Dotson, Democratic Staff 
Director, Environment and the Economy; Caitlin Haberman, 
Democratic Policy Analyst; and Elizabeth Letter, Democratic 
Assistant Press Secretary.

  OPENING STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF ILLINOIS

    Mr. Shimkus. I would like to call the hearing to order, and 
ask folks to maybe get the anteroom doors, so that we can 
start. We want to welcome you here to this legislative hearing, 
and I would like to recognize myself for a 5-minute opening 
statement.
    In our first hearing this Congress, we heard about the 
great work states are doing when it comes to environmental 
regulation and how well equipped and qualified they are to take 
on that mission. Today we will focus directly on coal ash and 
legislation designed to give states the framework to build off 
their successes in the past handling waste streams under the 
Resource Conservation Recovery Act, commonly known as RCRA.
    Most people think of federal law when it comes to 
environmental protection and we have passed many important 
environmental laws over the years. However, states also pass 
environmental laws. States have the same concerns about 
protecting the environment and contrary to some of the things 
you might hear today, states establish and carry out a standard 
of protection through their environmental permitting programs. 
In fact, in our last hearing we kind of highlighted that most 
of the inspections are done through the state agencies, and my 
example, the state IEPA, Illinois Environmental Protection 
Agency, do a lot of the legwork, and it is obviously a 
partnership that is very important. That is actually what my 
notes say, too. Regulators are directed to establish programs 
to restore, protect and enhance the quality of the environment, 
and to assure that adverse effects upon the environment are 
fully considered and borne by those who cause them, and that is 
in my home State of Illinois.
    While it may not use the same words Congress has used to 
direct EPA, the effect is exactly the same. The legislation we 
consider today sets out a new approach. It does not follow the 
same path as we have traveled with the RCRA before, which is 
for Congress to set a subjective standard that EPA must 
interpret and implement through regulations and enforcement. 
Instead, we are setting the standard in statute and charging 
the states with implementation. Just because it is different 
does not mean ineffective or not protective of human health and 
the environment.
    We heard the comments and concerns about the bill we passed 
in the last Congress and we worked both across the aisle and 
across the Capitol to develop the text of this discussion 
draft. The legislation makes several key improvements. In 
particular, it establishes additional requirements for surface 
impoundments that aren't meeting a groundwater protection 
standard and requires impoundments that can't meet the 
standards within a certain time period to close.
    The discussion draft requires groundwater monitoring for 
all disposal units that are receiving coal ash and tightens the 
dust requirements. The bill also improves on the dam stability 
standards by requiring an annual inspection of the design, 
construction, and maintenance of the structures by an 
independent professional engineer.
    The long and short of it is Congress is perfectly capable 
of establishing a standard of protection for coal ash. The 
states are perfectly capable, and in the best position, to 
implement robust permit programs for coal ash.
    I have brought with me, as I have in different hearings, 
actually coal ash as we have talked before, beneficial reuse, 
which is in concrete, which is in kind of a brick-like 
material. Obviously, we have drywall as part of the production. 
We have countertops. We have shingles. And part of this debate 
for us for a long time is ensuring that we properly define this 
waste that is part of this debate so that this stuff that has 
beneficial uses is not eventually labeled as toxic and then we 
can't use it in the building of roads and bridges and schools 
and the like, which is what we have been doing now for many, 
many years. So that is part of the concern in which we bring 
this legislation forward, and we are excited at the opportunity 
to--as a former teacher in high school, you know, the whole 
debate of how a bill becomes a law sometimes gets lost here 
because we, you know, we push things through. We had a bill, as 
I said in the opening statement. There were concerns. The 
Senate started moving legislation. We have taken a lesson from 
both of those processes. We are adjusting and amending those 
opportunities. There is some optimism, I think, that there is 
some common ground that can be found, and we look forward to 
moving this process forward and this is just the first start 
of, I think, a couple different opportunities of negotiations 
in this process, which I hope will end in a successful 
conclusion.
    [The prepared statement of Mr. Shimkus follows:]

                Prepared statement of Hon. John Shimkus

    In our first hearing this Congress we heard about the great 
work states are doing when it comes to environmental regulation 
and how well equipped and qualified they are to take on that 
mission. Today we will focus directly on coal ash and 
legislation designed to give states the framework to build off 
their successes in the past handling waste streams under the 
Resource Conservation Recovery Act (RCRA).
    Most people think of federal law when it comes to 
environmental protection and we have passed many important 
environmental laws over the years. However, states also pass 
environmental laws. States have the same concerns about 
protecting the environment and contrary to some of the things 
you might hear today, states establish and carry out a standard 
of protection through their environmental permitting programs. 
For example, in my home state of Illinois, regulators are 
directed to establish programs to restore, protect and enhance 
the quality of the environment, and to assure that adverse 
effects upon the environment are fully considered and borne by 
those who cause them.
    While it may not use the same words Congress has used to 
direct EPA, the effect is exactly the same. The legislation we 
consider today sets out a new approach. It does not follow the 
same path as we have traveled with the RCRA before which is for 
Congress to set a subjective standard that EPA must interpret 
and implement through regulations and enforcement.
    Instead, we are setting the standard in statute and 
charging the states with implementation. Just because it's 
different does not mean ineffective or not protective of human 
health and the environment.
    We heard the comments and concerns about the bill we passed 
in the last Congress and we worked both across the aisle and 
across the Capitol to develop the text of this discussion 
draft. The legislation makes several key improvements. In 
particular, it establishes additional requirements for surface 
impoundments that aren't meeting a groundwater protection 
standard and requires impoundments that can't meet the 
standards within a certain time period, to close.
    The discussion draft requires groundwater monitoring for 
all disposal units that are receiving coal ash and tightens the 
dust requirements. The bill also improves on the dam stability 
standards by requiring an annual inspection of the design, 
construction, and maintenance of structures by an independent 
professional engineer.
    The long and short of it is--Congress is perfectly capable 
of establishing a standard of protection for coal ash. The 
states are perfectly capable--and in the best position--to 
implement robust permit programs for coal ash.

                                #  #  #

    [The discussion draft follows:]


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Mr. Shimkus. So with that, I want to thank all our 
witnesses for being with us today, and I will recognize Ranking 
Member Tonko for 5 minutes for the purposes of an opening 
statement.

   OPENING STATEMENT OF HON. PAUL TONKO, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF NEW YORK

    Mr. Tonko. Thank you, Mr. Chair. Good morning, everyone, 
and I thank our chair for holding this hearing on the 
discussion draft of the Coal Ash Recycling and Oversight Act. 
Thank you to our witnesses for participating in the hearing, 
and offering your thoughts on this legislation today.
    We have dealt with coal ash as long as we have been burning 
coal, a very long time. Coal ash can be beneficially reused. 
Recycling of coal ash is a well-established practice, but not 
all coal ash can be safely recycled, and when it is improperly 
used or disposed of, coal ash creates significant problems.
    The Environmental Protection Agency, the EPA, was charged 
with studying coal combustion residuals back in 1980 when the 
Resource, Reuse, and Recovery Act, RCRA, became law. It has 
been over 30 years, and communities in many states have 
experienced many problems from improper handling and disposal 
of coal ash. Spills from wet impoundments, windborne ash, and 
groundwater contamination have caused serious health and 
environmental problems, and required expensive clean up 
efforts. Five years after the catastrophic spill in Tennessee, 
we are still without reasonable regulations to safeguard 
communities and ensure proper treatment of this waste.
    It is long past time to resolve these issues and indeed 
move forward. We need a policy that ensures safe disposal of 
coal ash, provides clear guidance to state agencies, and the 
regulated industry, and an appropriate federal oversight role. 
Perhaps EPA can achieve that with regulation under the current 
law. If not, I believe we can develop a law that balances the 
concerns of all involved. The discussion draft does not meet 
these goals in its current form, so we have more work to do.
    I look forward to the testimony of our witnesses today, and 
their thoughts on this issue. I am willing to work with you, 
Mr. Chair, and our other colleagues to improve this 
legislation. Working together, I am convinced that we can move 
a bill forward that finally can provide a sound policy to deal 
with coal ash.
    And with that, I yield back.
    Mr. Shimkus. Gentleman yields back his time. Chair now 
recognizes the chairman of the full committee, Mr. Upton, for 5 
minutes.

   OPENING STATEMENT OF HON. FRED UPTON, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF MICHIGAN

    Mr. Upton. Well thank you.
    You know, our efforts to solve the coal ash certainly do 
continue with this hearing. We began the last Congress by 
asking should we allow EPA to write rules that would bind every 
state regardless of geography, hydrology, history, and 
economics, or should we allow the states to build and operate 
their own permitting systems?
    The answer that this committee reported, and which the 
House passed, both with bipartisan support, was a compromise. 
It gave the choice to the states to apply minimum federal 
standards specified in the legislation itself, or a state could 
vacate the field and let EPA step in and run that state's 
program directly.
    Mr. McKinley's bill, H.R. 2273 passed the House with 
bipartisan support in October 2011. Building on the House-
passed bill, Senators Hoeven and Baucus and a bi-partisan 
Senate group wrote S. 3512. It preserved the approach of our 
House bill, but added more detail to the minimum federal 
standards. For example, it added a requirement that leaking 
surface impoundments meet a groundwater protection standard 
within a certain time period or they are required to close. 
That bill also included a requirement that all structures that 
receive coal ash after enactment install groundwater monitoring 
within one year after a state certifies its program. The bill 
was introduced on August 2 of last year with Senators Hoeven 
and Baucus and 12 Republicans and 12 Democrats as original co-
sponsors, and the text of today's discussion draft is actually 
the text of that bill, S. 3512.
    Now, we are eager to hear from our witnesses today as they 
focus on the details of the legislation before us. We welcome 
suggestions to improve the text for sure, however, we do prefer 
to preserve the signature approach of the bill: minimum 
statutory standards implemented by the states.
    We welcome our first witness, Mr. Stanislaus, and thank him 
for sure for testimony that is quite useful as it directly 
addresses the legislation. That is what this legislative 
hearing is intended to do. We know that he would like to 
resolve the coal ash issue as well, and we appreciate that good 
will.
    The dispute about how to regulate coal ash ties up EPA in 
court and prevents all parties from moving forward. This 
legislation aims to help settle that litigation.
    We also welcome our state environmental officials. We look 
forward to learning from them how they will develop certified 
programs that EPA can approve, and whether the nuts and bolts 
of the bill are tight enough to make the vehicle work in the 
real world.
    I also expect the witnesses to answer questions about 
details of the legislation. Are the minimum federal standards 
the right ones? How do they compare with what the EPA proposed? 
Should we consider some type of timeline for state 
implementation? Do the states welcome the approach set out in 
the discussion draft?
    [The prepared statement of Mr. Upton follows:]

                 Prepared statement of Hon. Fred Upton

    Our efforts to solve the coal ash issue continue. We began 
the last Congress by asking: Should we allow EPA to write rules 
that would bind every state regardless of geography, hydrology, 
history, and economics, or should we allow the states to build 
and operate their own permitting systems?
    The answer that this committee reported, and which the 
House passed, both with bipartisan support, was a compromise. 
It gave the choice to the states to apply minimum federal 
standards specified in the legislation itself, or a state could 
vacate the field and let EPA step in and run that state's 
program directly. Mr. McKinley's bill, H.R. 2273 passed the 
House with bipartisan support in October 2011.
    Building on the House-passed bill, Senators Hoeven and 
Baucus and a bi-partisan Senate group wrote S. 3512. It 
preserved the approach of our House bill, but added more detail 
to the minimum federal standards. For example, S. 3512 added a 
requirement that leaking surface impoundments meet a 
groundwater protection standard within a certain time period or 
they are required to close.
    S. 3512 also included a requirement that all structures 
that receive coal ash after enactment install groundwater 
monitoring within one year after a state certifies its program. 
S. 3512 was introduced on August 2, 2012, with by Senators 
Hoeven and Baucus and 12 Republicans and 12 Democrats as 
original co-sponsors. The text of today's discussion draft is 
actually the text of S. 3512.
    We are eager to hear from our witnesses today as they focus 
on the details of the legislation before us. We welcome 
witnesses' suggestions to improve the text. However, we do 
prefer to preserve the signature approach of the bill: minimum 
statutory standards implemented by the states.
    We welcome Mr. Stanislaus and thank him for testimony that 
is quite useful as it directly addresses the legislation. 
That's what a legislative hearing is for. We know that he would 
like to resolve the coal ash issue. The dispute about how to 
regulate coal ash ties up EPA in court and prevents all parties 
from moving forward. This legislation aims to help settle that 
litigation.
    We also welcome our state environmental officials. We look 
forward to learning from them:
     how they will develop certified programs that EPA 
can approve; and
     whether the nuts and bolts of the bill are tight 
enough to make the vehicle work in the real world.
    I also expect the witnesses to answer questions about 
details of the legislation--Are the minimum federal standards 
the right ones? How do they compare with what EPA proposed? 
Should we consider some type of timeline for state 
implementation? Do the states welcome the approach set out in 
the Discussion Draft?
    Thank you to all our experts for joining us today as we 
work to resolve this important issue.

                                #  #  #

    Mr. Upton. I appreciate the good work by Chairman Shimkus, 
and yield the balance of my time to Mr. McKinley from West 
Virginia.
    Mr. McKinley. Thank you, Mr. Chairman, for the time that 
you have given me on this.
    Let me just kind of paraphrase again much of what you have 
heard so far on this, is that the creation of fly ash, it is an 
unavoidable byproduct of burning coal. You get this product, 
this little dust. It is just an unavoidable byproduct. So I 
guess the fight here would be if we don't want to have this 
product, then we don't burn coal, but that is not realistic.
    So what has happened over here is we have developed about 
140 million tons of this fly ash annually. Forty percent of it 
is recycled, and 60 percent goes to landfills. But the 40 
percent that has been recycled, it has been blessed by the EPA 
as a nonhazardous material and should be used. As a matter of 
fact, under Bill Clinton, the '93 and the 2000 reports both 
came out and supported it. So the 40 percent issue should be 
moot.
    The real issue, then, is the disposal. How do you dispose 
of this product? Perhaps the argument, when it really comes 
down to it, do we want to have the Federal Government have 
primacy or should the states have primacy? The groups that 
recycle, labor unions, utilities, coal operators, state 
environmental groups, all the stakeholders in this think that 
the best way to do it is to have the state have primacy, but 
what I like about in this bill is that we actually begin with 
the federal standard. There is a minimum standard that is going 
to be set forth, and the states have to apply that. If they 
don't adhere to that, then the Federal Government does take 
primacy. So let's make sure that we understand that if this 
bill doesn't pass, then what we are going to do is we are going 
to be back to, once again, what has been talked about for the 
last 30-some years, arguing over this while we have fly ash 
that is created every day all across America, is going to 
landfills that are not approved. Some of them, some states have 
no certified landfill requirements. Do we want to continue that 
or not?
    It is time this bill gets passed, and I am particularly 
pleased, from what I am hearing from the other side and from 
the EPA is that this may very well be the year to do it, that 
we can find a compromise, and I appreciate very much the 
testimony that you are about to give and how we can work 
together to make this resolve, because this is not right for 
people to fear this is being disposed of in their backyard and 
they don't--there are no standards. It is time that we have 
standards and adhere to them, and we can do that.
    So this legislation is important and I think it is going to 
resolve. I hope, after 30-some years, we are finally going to 
resolve this problem.
    So with that, Mr. Chairman, I yield back my time.
    Mr. Shimkus. Gentleman's time is expired. Chair now 
recognizes the ranking member of the full committee, Mr. 
Waxman, for 5 minutes.

OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. Waxman. Thank you, Mr. Chairman. Today, the 
subcommittee examines the discussion draft that would govern 
the disposal of coal ash, the toxic-laden residual waste from 
burning coal.
    The language isn't new. It is almost identical to the bill 
reported by this committee in the last Congress without ever 
being examined in a legislative hearing. It is identical to the 
language that 90 percent of Democrats opposed when it was 
considered on the House Floor in September of last year. It is 
the same language that has been exhaustively analyzed by the 
Congressional Research Service and found severely wanting. And 
it is the same language that has failed to get sufficient 
support in the United States Senate.
    Over the years, Congress and the states have developed a 
proven model for environmental protection that has successfully 
reduced pollution and enhanced the protection of the public 
health. We had a hearing on that model of environmental 
federalism just 2 months ago, and heard from stakeholders that 
it continues to work well.
    States have received delegation for just over 96 percent of 
the environmental programs that can be delegated. This is an 
impressive track record that has protected the American people 
from pollution-induced respiratory diseases, from contaminates 
in their drinking water, from toxic environmental exposures 
that can cause cancers and other diseases.
    Despite these successes, the discussion draft we consider 
today would abandon the proven models of environmental 
protection and adopt an approach that we have every reason to 
believe would fail if enacted. This proposal will not ensure 
the safe disposal of coal ash. It will not prevent groundwater 
contamination from unlined ash ponds or prevent coal ash 
impoundments from failing catastrophically. It will not allow 
EPA to complete its rulemaking to identify the disposal 
criteria necessary to protect human health and the environment.
    I continue to oppose such an approach and believe that 
there is simply not the support for this proposal to become 
law. But as I have said for 2 years now, I am willing to work 
with the Majority on this issue to get a law, if the chairman 
wants a law.
    That would require rethinking this legislation and 
listening to the expert views available to us. EPA, and the 
Congressional Budget Office, the Congressional Research Service 
all have relevant expertise on this legislation. Their views 
must not be dismissed and, in fact, relying on their expertise 
will only help us craft a much better piece of legislation.
    I believe this is an issue we should be able to resolve. We 
can provide certainty and reasonable standards that would work 
for industry. And at the same time, we can ensure that health 
and the environment are protected.
    But what we should avoid is remaining gridlocked on a stale 
proposal. That won't stop dangerous coal ash dumping. It won't 
prevent toxic contamination from leaking into the groundwater 
and surface water. And it won't promote beneficial reuse of 
coal ash.
    Whether it is by administrative or legislative action, it 
is time to resolve this issue and ensure the safe disposal of 
coal ash. Environmental groups and the biggest recycler of coal 
ash in the country have sued EPA to complete their regulatory 
process and get a rule finalized.
    Mr. Chairman, I hope we can work together on this issue. 
And if not, I hope EPA will move expeditiously to establish 
strong standards that ensure the safe disposal of coal ash.
    I yield back my time.
    [The prepared statement of Mr. Waxman follows:]

               Prepared statement of Hon. Henry A. Waxman

    Today, the Subcommittee examines a discussion draft that 
would govern the disposal of coal ash--the toxic-laden residual 
waste from burning coal.
    This language isn't new. It is almost identical to the bill 
reported by this Committee in the last Congress without ever 
being examined in a legislative hearing. It is identical to the 
language that 90% of Democrats opposed when it was considered 
on the House floor in September of last year. It's the same 
language that has been exhaustively analyzed by the 
Congressional Research Service (CRS) and found severely 
wanting. And it's the same language that has failed to get 
sufficient support in the U.S. Senate.
    Over the years, Congress and the states have developed a 
proven model for environmental protection that has successfully 
reduced pollution and enhanced the protection of the public 
health. We had a hearing on that model of environmental 
federalism just two months ago and heard from stakeholders that 
it continues to work well.
    States have received delegation for just over 96% of the 
environmental programs that can be delegated. This is an 
impressive track record that has protected the American people 
from pollution-induced respiratory diseases, from contaminants 
in their drinking water, and from toxic environmental exposures 
that can cause cancers and other diseases.
    Despite these successes, the discussion draft we consider 
today would abandon the proven models of environmental 
protection and adopt an approach that we have every reason to 
believe would fail if enacted. This proposal will not ensure 
the safe disposal of coal ash. It will not prevent groundwater 
contamination from unlined ash ponds or prevent coal ash 
impoundments from failing catastrophically. It will not allow 
EPA to complete its rulemaking to identify the disposal 
criteria necessary to protect human health and the environment.
    I continue to oppose such an approach and believe that 
there is simply not the support for this proposal to be become 
law.
    But as I have said for 2 years now, I am willing to work 
with the majority on this issue to get a law if the Chairman 
wants a law.
    That would require rethinking this legislation and 
listening to the expert views available to us. EPA, the 
Congressional Budget Office, and CRS all have relevant 
expertise on this legislation. Their views must not be 
dismissed and in fact relying on their expertise will only help 
us craft a much better piece of legislation.
    I believe this is an issue we should be able to resolve. We 
can provide certainty and reasonable standards that work for 
industry. And at the same time, we can ensure that health and 
the environment are protected.
    What we should avoid is remaining gridlocked on a stale 
proposal. That won't stop dangerous coal ash dumping. It won't 
prevent toxic contamination from leaking into the ground water 
and surface water. And it won't promote beneficial reuse of 
coal ash.
    Whether it's by administrative or legislative action, it is 
time to resolve this issue and ensure the safe disposal of coal 
ash. Environmental groups and the biggest recycler of coal ash 
in the country have sued EPA to complete their regulatory 
process and get a rule finalized.
    Mr. Chairman, I hope we can work together on this issue. 
And if not, I hope EPA will move expeditiously to establish 
strong standards that ensure the safe disposal of coal ash.

    Mr. Shimkus. Gentleman yields back his time.
    Now we would like to welcome our first witness, the 
Honorable Mathy Stanislaus, who is the Assistant Administrator 
for the Office of Solid Waste and Emergency Response with the 
U.S. EPA. Sir, welcome. Your full statement is in the record. 
You will have 5 minutes. We have, obviously, a newer time 
system there with the green, the yellow, and the red, and--but 
we are going to be very generous, and based upon the comments 
in the opening statements, we really look forward to hearing 
your opening statement because we are going to get input from 
the EPA here.
    You are recognized.

    STATEMENT OF THE HONORABLE MATHY STANISLAUS, ASSISTANT 
ADMINISTRATOR FOR OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, 
           U.S. ENVIRONMENTAL PROTECTION AGENCY (EPA)

    Mr. Stanislaus. Good morning, Mr. Chairman and members of 
the subcommittee. I am Mathy Stanislaus, Assistant 
Administrator for the Office of Solid Waste and Emergency 
Response at the United States Environmental Protection Agency. 
Thank you for the opportunity to testify today on the 
committee's legislative discussion draft, the Coal Ash 
Recycling and Oversight Act.
    Coal combustion residuals, or CCRs, are one of the largest 
waste streams generated in the United States, with 
approximately 136 million tons generated in 2008. CCRs contain 
constituents, such as arsenic, cadmium, and mercury, which can 
pose threats to public health and the environment, if 
improperly managed.
    At the time, EPA issued its proposed coal ash rule, EPA had 
documented evidence of damages to groundwater or surface water 
in 27 cases, 17 cases of damage to groundwater, and ten cases 
of damage to surface water. In addition, EPA identified 40 
cases of potential damage to groundwater or surface water. In 
the majority of cases, damages to groundwater or surface water 
were associated with the lack of standards necessary to protect 
the environment, particularly the use of unlined impoundments 
and units and the failure to monitor these impoundments and 
other associated units. EPA also had documented evidence of a 
number of damage cases due to the catastrophic structural 
failure of coal ash impoundments, such as at the Martins Creek 
Power Plant in Pennsylvania, and the TVA Kingston facility in 
Harriman, Tennessee. The sudden failure of a surface 
impoundment retaining wall at the TVA Kingston facility in 
December 2008, and the resulting catastrophic spill of coal ash 
and their impacts on the community highlight the issue of 
impoundment stability.
    Since EPA's proposed rule was issued, a number of 
additional reports have been submitted to EPA by several 
organizations that identified dozens of additional damage 
cases. In addition, for states that have begun to require 
groundwater monitoring of surface impoundments, in almost all 
cases, groundwater contamination has been identified. Thus, it 
appears, based on all of EPA's information, improper management 
of coal ash in landfills and surface impoundments will continue 
to pose a threat to human health and the environment.
    Regarding beneficial use, coal ash can provide 
environmental benefits and new applications may provide even 
greater benefits, based on current studies. Some of the 
information confirms or strengthens EPA's views on the benefits 
of coal ash reuse. However, some information indicates that 
certain uses may raise concerns and merit additional attention.
    Some beneficial uses are in an encapsulated form, while 
other are in an unencapsulated form. EPA believes that the 
great bulk of beneficial uses, particularly in an encapsulated 
form, such as concrete and wallboard, do not raise concerns and 
offer important environmental benefits. However, some questions 
have been raised regarding the lack of clear methodology to 
evaluate reuse of coal ash. Thus, EPA's proposal sought 
additional information and requested specific comment on 
certain aspects of beneficial use of coal ash.
    To help resolve questions regarding the environmental 
consequences of beneficially using coal ash, EPA has developed 
a draft methodology, which can be used to determine whether 
encapsulated products containing coal ash are comparable to 
analogous non-coal combustion residual products. It will also 
develop a draft application report for the use of coal fly ash 
in concrete and the use of FGD gypsum in wallboard as 
replacement materials. The draft application report is 
currently undergoing formal internal peer review. EPA is also 
developing a draft methodology for evaluating current 
unencapsulated beneficial uses of coal ash. We expect to issue 
both of them in the fall.
    Now turning to the committee's legislative discussion 
draft, it establishes a framework for the management of coal 
ash, recognizing the documented damages associated with the 
mismanagement of coal ash support the need for action to 
address those risks. EPA believes that the proper management of 
coal ash requires nationally consistent standards necessary to 
protect human health and the environment. These standards 
should address the installation and use of liners for new units 
and allow expansions of existing units, provide standards that 
control airborne dust and particulate matter, address the phase 
out of unlined surface impoundments within a reasonable period 
of time, require groundwater monitoring for new and existing 
facilities, include location criteria, provide for corrective 
action where contamination or releases to the environment have 
been identified, including criteria for maintenance and 
structura stability of dams, address standards for closure and 
post-closure, and address the issues of financial assurance. 
The discussion draft addresses many of the areas I have just 
discussed. However, the discussion draft could be clarified in 
some important areas, including timelines for the development 
and implementation of state programs, criteria to help EPA 
determine when a state program is deficient, criteria for coal 
ash unit structural stability, deadlines for closure of unlined 
or leaking units, including inactive or abandoned units, and 
the universe of units subject to the permit program.
    Mr. Chairman, should Congress decide to address the 
regulation of coal ash through legislation, EPA stands ready to 
assist in that effort to help ensure that legislation 
establishes a regulatory framework to regulate the management 
of coal ash in a nationally consistent manner that fully 
protects human health and the environment.
    Thank you, and this concludes my prepared remarks.
    [The prepared statement of Mr. Stanislaus follows:]


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Mr. Shimkus. Thank you very much, and I think your opening 
statement and your submission is very helpful in us moving 
forward, and I appreciate that.
    So I will recognize myself for the first 5 minutes of 
opening questions.
    Mr. Stanislaus, doesn't the legislation in the discussion 
draft give EPA continuing watchdog role to ensure that state 
permit programs meet the minimum federal requirements?
    Mr. Stanislaus. Thank you, Congressman. As I noted in my 
oral statement, there is a role for EPA to oversee the 
implementation of a state program, and in my oral statement I 
noted that for the clarity as to how EPA would execute that 
function is something that we could provide technical 
assistance regarding that.
    Mr. Shimkus. Great, thank you. And you could, based upon 
the discussion draft, take over a state permit program if the 
state fails to correct identified deficiencies, based upon the 
discussion draft, is that correct?
    Mr. Stanislaus. Yes, and thank you, Congressman. Again, 
referring back to my oral statement, there is a provision, as I 
understand the intent of that, for EPA to review and take over 
in certain circumstances. As noted in my oral statement, 
clarity as to those circumstances for EPA to conduct that 
function would be beneficial.
    Mr. Shimkus. Yes, and I think the discussion draft 
basically identifies a base standard, and I think it is pretty 
clear, and I think you are alluding to that cautiously that 
based upon that language, as presented, if passed and signed 
into law, if it is deficient in those base standards, you would 
have the authority.
    So let me go to didn't the EPA state in the proposed rule 
that 40 C.F.R. part 258, the revised criteria for municipal 
solid waste landfills would be a framework for regulating coal 
ash?
    Mr. Stanislaus. In the proposed rule?
    Mr. Shimkus. That the revised criteria that you all have 
are proposed that using the municipal solid waste as a 
guideline would be a proper way of evaluating and moving CCR 
materials into, obviously, sites?
    Mr. Stanislaus. Congressman, I am not familiar with the 
specific reference. Let me check that and---- \*\
---------------------------------------------------------------------------
    \*\ As indicated in the Preamble of EPA's coal combustion residuals 
proposal, the Agency's RCRA Subtitle D option references criteria for 
solid waste disposal facilities and practices found in 40 CFR Part 257. 
EPA's proposal can be found on the Agency's web site at: http://
www.epa.gov/wastes/nonhazlindustrial/special/fossil/ccr-rule/
---------------------------------------------------------------------------
    Mr. Shimkus. Well, and I would just obviously--the preamble 
of the proposed rule basically says that, does it not?
    Mr. Stanislaus. Again, I don't have that in front of me but 
I will check and put that into the record.
    Mr. Shimkus. I think if you read the preamble, the answer 
will be yes, it does. And so our point is, this is not new. We 
are pretty close on how we need to get to where we need to get 
to, and we just want to continue to work with you and clean up 
some stuff. But EPA is pretty much on the record on at least 
four provisions of this legislation and the ability to have a 
guideline, the ability of you all to preempt if the states 
don't meet the guidelines, but the ability of the states to 
actually--to operate this, and that is what the legislation 
intends on doing.
    Consensus seems to be emerging in support of coal 
combustion residuals being dealt with under a nonhazardous 
regulatory framework. Do you agree?
    Mr. Stanislaus. Well, again I mean with respect to--
regarding the legislation, I mean, so again, I think there are 
areas of further clarification regarding how the coal ash 
management should be executed.
    Mr. Shimkus. Are you prepared to give us any--in this 
legislative hearing any words and clarifications that might be 
acceptable, or are we prepared to do this after the hearing and 
in discussions with you all and committee staff? I mean, how--
if we are not asking these questions and not going to glean 
from you what areas and language that would be helpful in 
perfecting the language, when do we have a chance to do that, 
especially in an open forum?
    Mr. Stanislaus. Sure. Well again, we will provide specific 
details in our technical assistance role, and so there are 
areas, as I noted in my oral statement, that could be improved 
and so I think it will be helpful for me and my staff to work 
with your staff providing details regarding potential areas 
of----
    Mr. Shimkus. OK, let me--my time is running out. EPA cannot 
issue enforceable permits under Subtitle D, is that correct?
    Mr. Stanislaus. That is right.
    Mr. Shimkus. And from an enforcement standpoint, isn't it 
better for facilities to operate under an enforceable permit 
instead of a self-implementing regulation or regulations that 
are only enforceable through citizen suits?
    Mr. Stanislaus. Well as I understand the legislation, it 
does provide that the states would issue a permit and oversee 
that, and----
    Mr. Shimkus. Isn't that preferable than fighting through 
the courts and having citizen suits across the country trying 
to delineate this, clearing this up, and putting a responsible 
party involved? And this, as we will hear from the state 
regulators, they are willing, ready, and capable, and do, in 
fact, all states except for Florida and South Dakota, are part 
of ECOS, even New York and California and Massachusetts, and 
they all agree with this approach.
    Mr. Stanislaus. Yes, EPA, under Subtitle D, the states do, 
in fact, go forward and implement in sum through a permit 
program. Even under the other titles, EPA delegates that 
authority, so there are many circumstances where states do--in 
fact, we rely on the states to implement the solid waste 
programs. In many cases, that is done through a permit program 
and enforced by the states.
    Mr. Shimkus. Perfect. Thank you.
    Now I would like to yield to the ranking member, Mr. Tonko, 
for 5 minutes.
    Mr. Tonko. Thank you, Mr. Chair, and thank you, Assistant 
Administrator Stanislaus for testifying today.
    EPA has proposed two alternative regulatory approaches to 
address the risks posed by unsafe disposal of coal ash. Both 
approaches include requirements to address failures of wet 
impoundments, dust from ash landfills, groundwater 
contamination, and other potential risks. The Subtitle D 
proposed rule includes detailed technical criteria developed by 
EPA to protect human health and the environment from the risks 
associated with CCR disposal. Getting these technical criteria 
right is critically important because they ensure that coal ash 
disposal sites are structurally sound and don't pollute the air 
or pollute the water. Proponents of the discussion draft that 
we are considering today have said that the draft contains many 
of the appropriate criteria, but I have concerns that 
significant safeguards are missing.
    In the last Congress, EPA provided this committee with 
technical assistance on whether legislation similar to the 
draft we are considering today included all of the elements 
necessary to protect human health and the environment. So I 
would like to ask a few questions to understand whether the new 
draft addresses those concerns.
    First, EPA's technical assistance states that under the 
language we considered in the last Congress, EPA would not be 
authorized to develop criteria tailored to the specific risks 
of coal ash disposal. Does the discussion draft we are 
considering today address that shortcoming?
    Mr. Stanislaus. So are you referring to the technical 
assistance for last year's House bill or the Senate bill?
    Mr. Tonko. The House bill.
    Mr. Stanislaus. My understanding is the draft discussion is 
based on the Senate bill. Is that not correct? So let me get 
back to you in terms--I mean, if you are asking a comparison of 
technical assistance on the Senate bill I can get back to you 
regarding what we provided on the Senate bill. I can provide 
that to you, but generally as noted in my oral statement, there 
are areas that we are willing to work with you and the 
committee in terms of areas of further clarification in the 
areas I have articulated.
    Mr. Tonko. OK, and EPA's technical assistance states that 
the structural integrity requirements in the previous language 
were deficient because they did not address the full volume of 
liquid to be stored? Did the changes in this discussion draft 
address those deficiencies?
    Mr. Stanislaus. Yes, speaking to the discussion draft, it 
does address liquids and what we have said is that--further 
clarification as to the standard for which structural integrity 
would be judged against. The further clarification would be 
beneficial.
    Mr. Tonko. And EPA's technical assistance states that the 
previous language did not include the longstanding operating 
criteria for wet impoundments developed by the Mine Safety and 
Health Administration. Does this discussion draft apply these 
criteria?
    Mr. Stanislaus. My understanding is that it does not, that 
there is a provision requiring good engineering practices as 
the basis of structural integrity.
    Mr. Tonko. And EPA's technical assistance states that under 
the previous language, dry landfills would not be required to 
comply with many of the operating criteria that currently apply 
to municipal solid waste and would be applied to coal ash under 
EPA's proposed rule. Does this discussion draft fix that flaw 
with the previous proposal?
    Mr. Stanislaus. I am not sure about that.
    Mr. Tonko. OK, is there a way that you can get back to us?
    Mr. Stanislaus. Yes, I can review that and get back to you.
    Mr. Tonko. OK. That would be most appreciated.
    Thank you for your response, Mr. Stanislaus. Let me just 
indicate, this proposal eliminates EPA's rulemaking authority 
and replace's the agency's expertise with that of this panel, 
so it is essential that we get these disposal criteria correct. 
I hope that the committee will engage with you as we move 
forward to address these and other deficiencies in this 
legislation. I believe it is absolutely critical that as we 
assist those in the industries involved with the guidelines, 
with the certainty, and with the policy initiated here that we 
can get things done to work in the best order possible.
    So with that, I see my time is almost expired and I yield 
back. Thank you, Mr. Chair.
    Mr. Shimkus. Gentleman yields back his time. Chair now 
recognizes the gentleman from Texas, Mr. Barton, for 5 minutes.
    Mr. Barton. I am not going to use 5 minutes. I am going to 
ask one question and then I will yield to Mr. McKinley or Mr. 
Johnson or back to the chairman.
    I missed most of your verbal statement, but my question is 
pretty straightforward. Does the EPA have an official position 
on the discussion draft, and if they do, what is it?
    Mr. Stanislaus. We do not have an official position. In my 
oral statement, I have noted there are areas that the bill 
does, in fact, advance the basic requirements we believe are 
necessary for safe coal ash disposal and areas of further 
clarification that we are willing to work with the committee to 
expand upon.
    Mr. Barton. Could you characterize the EPA's position is 
wishing to cooperate with the committee on this bill, or 
wanting to be confrontational?
    Mr. Stanislaus. We are absolutely willing to cooperate.
    Mr. Barton. All right. Thank you, sir, and I would yield to 
whoever you want me to.
    Mr. Shimkus. I would claim your time.
    Mr. Barton. OK, I yield back to the chairman.
    Mr. Shimkus. Thank you, and I would just like to follow up 
in that question. So EPA is not taking a position of opposition 
to the language--to the bill?
    Mr. Stanislaus. That is right.
    Mr. Shimkus. OK, and I think that is important.
    I will just continue. Let me ask, on the legislation, 
doesn't the legislation require issuance of enforceable permits 
to all coal ash disposal facilities?
    Mr. Stanislaus. My understanding of the legislation is that 
the states would be--would implement the program to issue 
permits, so the area of further clarification is kind of--
clarification regarding timeline of that.
    Mr. Shimkus. And I think that is something we could--I 
mean, my understanding of your testimony is that there are four 
things you kind of like. There are six provisions that you 
think we could--we need to look at, one of those being 
establishing a timeline. But--and so I think that is something 
I think we can be helpful and work on, but it is my 
understanding on the issue of the question that it--the way the 
language is drafted is that we do require enforced--now you 
might question the standard of enforcement--not even standards, 
because we believe the states can enforce it. We may have a 
question of what are the standards, right?
    Mr. Stanislaus. Yes.
    Mr. Shimkus. But I don't think there is any dispute in the 
language that there would be--and I am just making sure I say 
it properly--that there is an issuance requirement and 
enforceable permits that--in this draft language.
    Mr. Stanislaus. I believe the language or the intended 
language is to put in place a permit program, an implemented 
permit program, and again, assuming we could address the timing 
question is also the--what universe it would apply to, so--
people are giving me notes.
    Mr. Shimkus. Me too.
    Mr. Stanislaus. I think one of the areas is the definition 
of what is covered, yes.
    Mr. Shimkus. OK. Let me ask, is a Subtitle C rule still on 
the table?
    Mr. Stanislaus. Well again, Congressman, we have noted in 
my testimony, we are evaluating a number of comments, about 
430,000 comments and data, and also there is additional data 
which will inform the risk and the management--the preferred 
management mechanism to address that. So the additional data 
which we would want the public to review before we make a 
decision, we want to get that out to the public and then that 
will inform which is the best technique, given all the 
considerations.
    Mr. Shimkus. So for the public, moving on legislation could 
actually create a quicker standard of protection versus waiting 
for a process going through your due diligence?
    Mr. Stanislaus. It could.
    Mr. Shimkus. All right. What is the agency's--do you have 
any timing? I guess that is a follow-up to legislation could be 
quicker when you have timing?
    Mr. Stanislaus. I don't have a specific timeframe in mind, 
and we have laid out in filings that we will have some idea in 
about 6 months in terms of--based on the ability to get public 
input on this data, but we will--it is not that we will be able 
to act in 6 months, but in 6 months, based on the data being 
submitted to the public for review and comment.
    Mr. Shimkus. So I guess--again, let me just follow up. We 
believe that legislation would help you all deal with the 
pending CCR deadline. You are currently in litigation. You are 
involving--and I can answer that question, but I think that is 
a thing that we can debate and discuss.
    So with that, Mr. Barton's time is expired, which I was 
able to use, and I now yield to the chairman emeritus of the 
full committee, Mr. Dingell for 5 minutes.
    Mr. Dingell. Mr. Chairman, I thank you for your courtesy. 
This is a very useful hearing. It reminds me, however, of a 
Greek tragedy. I see us sitting here like the chorus and 
anticipating that terrible calamities are about to come and we 
don't know what to do about it. Well, there is a way out of 
this thicket, and I want to commend you for having the hearing, 
because I think this might just be a beginning.
    Having said this, I have got a bunch of yes or no questions 
and I hope that you will respond, referring to the witness.
    On other waste issues, states create their plans within a 
certain timeframe and with certain federal requirements that 
they are obligated to meet, is that right?
    Mr. Stanislaus. I am sorry, could you repeat that question?
    Mr. Dingell. I will dispense with that question. Do you 
believe this draft bill has the timelines and minimum legal 
standards of protection to ensure that proper program plans are 
implemented in the states? Yes or no.
    Mr. Stanislaus. Well, that is one of the areas that I noted 
in my oral statement----
    Mr. Dingell. Yes or no.
    Mr. Stanislaus. --that could be clarified.
    Mr. Dingell. OK. Could you submit additional records or 
information for the record?
    Mr. Stanislaus. Sure.
    Mr. Dingell. And I don't want to see you toe dancing 
around. Take a firm stance here, because the situation stinks 
and quite honestly, the legislation is not good.
    This bill would legislatively create regulatory 
requirements. Under a normal regulatory process, if these 
requirements such as a legal standard for protection, needed to 
be updated or to better address the issue, there would be a 
comment period to obtain input from industry, stakeholders, and 
the public, isn't that right?
    Mr. Stanislaus. Yes, my understanding of the draft 
legislation----
    Mr. Dingell. Yes or no.
    Mr. Stanislaus. My understanding of the draft legislation 
is that the----
    Mr. Dingell. I have limited time. Please say yes or no. 
There is no requirement in this bill that any future changes 
should go through a public comment process, is that right?
    Mr. Stanislaus. Again, my understanding of the legislation 
is that in implementing the program by the state, it is subject 
to public input and comment. However----
    Mr. Dingell. You are not being helpful, sir. Under EPA's 
proposed rule to establish requirements to address this issue, 
in your testimony you said that EPA received nearly a half 
million public comments, solicited public data, started 
drafting a methodology to evaluate the beneficial uses. Under 
the legislative proposal before us, would EPA have the 
authority to gather public comments, technical data, or develop 
methodologies in the future to improve the implementation of 
the program proposed in the bill? Yes or no?
    Mr. Stanislaus. My understanding of the legislation is that 
the legislation would prescribe to the states to implement a 
program and a permit thereafter.
    Mr. Dingell. All right. Submit additional information for 
the record.
    What four or five national standards do you believe should 
be specifically addressed and added to this legislation to 
ensure that there is national conformity amongst several 
states?
    Mr. Stanislaus. Yes, as I noted in my----
    Mr. Dingell. Would you submit that for the record?
    Mr. Stanislaus. Sure, absolutely.
    Mr. Dingell. Now do you believe this legislation as 
currently written would require these standards to be included 
in state program plans? Yes or no? Would you please submit that 
for the record?
    Mr. Stanislaus. Sure.
    Mr. Dingell. Mr. Chairman, from what I am seeing today it 
appears there is much we need to do to prevent spills like that 
experienced in Tennessee and more recently in Wisconsin when we 
had a tremendous--of nastiness flowing into Lake Michigan. I am 
just a poor Polish lawyer from Detroit, but I would remind 
members of the subcommittee that we are not engineers and we 
must give EPA the flexibility to implement appropriate 
performance standards without having to come back to Congress 
for approval. Traditionally, Congress and this committee have 
given EPA authority to develop regulations and to address 
particular issues, but this bill jumps straight to the 
regulations without knowing whether the regulations are sound 
or not. And I am concerned that we may be setting, quite 
frankly, a most disturbing precedent, one which is inconsistent 
with the Administrative Procedures Act, and it allows 
regulations to be set without the extensive public comments and 
technical data that are needed from industry and from 
stakeholders. I hope my friends on the other side will 
recognize that we are imposing a congressional straight jacket 
on the EPA and the administrators of this program. The end 
result will be, if we are right, it might be fine. That is most 
unlikely. The probabilities are we are going to find we are 
wrong. We have no flexibility here that I can discern. EPA 
can't find any, and we are not getting much help from the 
witness, but it is urgently necessary that we consider these 
facts and that we do these things intelligently.
    The industry has got a legitimate complaint. We ought to 
hear it. We ought to do something about it. But we ought not 
jump blindly in and set a bunch of standards about which we 
know nothing and simply prolong the problem and increase 
litigation that is going to curse us if we pass the bill as it 
now is.
    I look forward to working with you, and I hope you will 
cooperate with me in trying to get a bill that makes some 
sense. Thank you.
    Mr. Shimkus. I thank my colleague. Every time I hear from 
the poor Polish lawyer, I check my wallet.
    So with that, I would like to recognize the author of last 
Congress' legislation, and the member who is intimately 
involved with this, Mr. McKinley for 5 minutes.
    Mr. McKinley. Thank you, Mr. Chairman, and again, thank you 
for appearing before the committee.
    You are right. This thing has been hanging for 30-some 
years, and we passed a bill 2 years ago, we passed a bill a 
year ago, we are back at it again. If we continue with this, 
with being stonewalled, I guess, that argument of making 
perfect the enemy of good and we do not pass a bill, can you 
help paint the picture of what happens? Won't we continue to be 
disposing of fly ash in the way they did it in the '40s and the 
'50s, because there are some states that have no regulations 
whatsoever on this? So if we don't do something, aren't we 
really challenging people as a result?
    Mr. Stanislaus. I agree, Congressman. As I noted in my oral 
statement, the ongoing damages that are occurring and past 
damages from, particularly, the unlined impoundment kind of 
scenario and the particular--the requirements that I have 
articulated in my oral statement, things like lining, things 
like monitoring are things that will be necessary to protect 
against those risks. So I think we do need some action.
    Mr. McKinley. What about the--are you--I think I heard you 
make some remarks earlier in your opening statement that the 40 
percent that we recycle, the beneficial recycling, you are 
still of an opinion that we should be able to continue to 
beneficially recycle about 40 percent of the product?
    Mr. Stanislaus. Yes, I believe it is 37, but yes, close to 
40.
    Mr. McKinley. So if this legislation doesn't go through--
and I want to paint probably the worst picture would be--I 
believe isn't there litigation now?
    Mr. Stanislaus. There is litigation now.
    Mr. McKinley. OK, and that litigation wants you to call 
this a hazardous material?
    Mr. Stanislaus. My understanding of the litigation is to--
for EPA to move forward on a timeline for regulating the 
disposal of coal ash, yes.
    Mr. McKinley. Under a hazardous waste landfill?
    Mr. Stanislaus. Let me get back to you. I don't believe it 
is prescriptive in that way.
    Mr. McKinley. I thought there was something to that effect 
that would label it, and I just know that if something were 
hazardous, then none of us should be using that. We shouldn't 
use it in drywall; we shouldn't use it in concrete if it is 
hazardous. We do?
    Mr. Stanislaus. If it is hazardous, no.
    Mr. McKinley. But I think EPA has already determined that 
it is not a hazardous material. We just need to make sure that 
we dispose of it and recycle it in a way that is appropriate. 
So I have watched now over 2 years--it is my second term here--
how it has matured in this conversation with the EPA a 
relationship that we can probably work this thing through, 
because it does us no good if we continue with the other side, 
I suppose it would be, not to work with us to come up with a 
piece of legislation because that was my earlier comment. If we 
don't do it, we are going to have areas that people could feel 
threatened. Their homes could be challenged, I suppose, a whole 
series of things, unless we get something approved. I am hoping 
that we get some good cooperation and compromise and work 
together to come up with a piece of legislation. I am very 
encouraged from your remarks earlier today and what we have 
heard over the last few months, that there is some chance we 
are going to get something accomplished this year, and we won't 
continue this 30 years of uncertainty.
    So you are telling me that you think we will be able to 
come up with something this year?
    Mr. Stanislaus. I am not in the prediction business, but my 
commitment is that we will work with you, Congressman and the 
committee, in terms of the areas that I have articulated in my 
oral statement.
    Mr. McKinley. Some of the recommendations I hope that we 
will take into consideration. That is what we did last time. We 
had a hearing like this on the original bill and then we 
modified it after we heard from people. I don't think any of us 
are afraid to make changes to a piece of legislation. We are 
trying to get it right. I want to get this resolved, and I like 
the history and the ideology that people are putting out there 
about that they would rather have nothing than have something 
that moves in the right direction.
    So I thank you very much and I yield back the balance of my 
time.
    Mr. Shimkus. Gentleman yields back his time. Chair now 
recognizes the gentlelady from California, Ms. Capps, for 5 
minutes.
    Mrs. Capps. Thank you, Mr. Chairman, for calling this 
hearing. I thank you, Mr. Stanislaus, for your testimony.
    As you know, this proposal passed the House in the last 
Congress, despite serious concerns about whether it would 
sufficiently protect the health of people living near coal ash 
disposal sites. In technical assistance you provided to the 
committee last Congress, you identified multiple principal 
contaminants of concern in coal ash, including arsenic, 
cadmium, lead, mercury, and many others. These heavy metals 
pose very serious threats to human health. Would you, for our 
hearing today, please identify briefly some of the health 
effects of these contaminants?
    Mr. Stanislaus. Well, let me commit to get back to you on 
the record in terms of all the contaminants we have identified 
in the bill in terms of the specific health impacts.
    Mrs. Capps. Just generally, the ones that I have mentioned 
came from the list you provided last time, arsenic, cadmium, 
lead, mercury. Can you just identify a few of those health----
    Mr. Stanislaus. Well, not getting into the specifics of 
each of the contaminants, so----
    Mrs. Capps. Right.
    Mr. Stanislaus. --generally, you could have--depending on 
the contaminant and the contaminant level, you could have some 
developmental issues, sometimes non-cancerous and cancerous. It 
all depends on the particular contaminant you are talking 
about. So what I can do is after the hearing provide a 
breakdown of each of the contaminants and the various health 
impacts, based on the level of exposure.
    Mrs. Capps. I would appreciate that for the record, but I 
think that there is a sense of urgency that we get something 
done, because these are very serious health threats. We need to 
address them in a good piece of legislation because the lives 
of people in the area--surrounding areas depend on it.
    I will just turn to a little bit different way of asking a 
similar question. In your proposed rule for coal ash disposal, 
EPA identified three main pathways of exposure to these 
contaminants. First, leaching from unlined units, second, 
direct uncontrolled discharges in the case of a structural 
failure of an impoundment, and third, fugitive dust emissions. 
So, to further the record, would you discuss, please, some of 
the primary public health and environmental impacts that these 
three types of coal ash exposure can create?
    Mr. Stanislaus. Well, those are the exposure pathways, so 
those are--those identify how a person would be exposed.
    Mrs. Capps. Right.
    Mr. Stanislaus. And so the various categories of health 
consequence would occur from that exposure, be it 
developmental, non-cancer, or cancer. So you can have different 
kinds of health impacts, depending on whether it is inhalation, 
whether it is ingestion.
    Mrs. Capps. Right.
    Mr. Stanislaus. So I don't have that breakdown, but I can 
provide it. Depending on the pathway of exposure, the 
particular contaminant and the kinds of health impacts, I can 
provide that for the record.
    Mrs. Capps. So am I right then in drawing the conclusion 
that there are multiple kinds of exposure with kinds of 
multiple serious health effects, because some of it is from the 
dust, some of it is from the discharge, some of it is from 
leaching. I mean, different ways that it can enter the 
environment that a person's health can be directly affected by 
it, would that be a fair assessment?
    Mr. Stanislaus. That is correct. If it is improperly 
managed, you can be exposed in multiple different ways, so if 
you don't have effective controls of dust, you could inhale it. 
If you don't have effective controls of leaching, it could get 
into the groundwater and you could drink that. So it could be 
multiple and different, depending on whether it is managed well 
or not.
    Mrs. Capps. Thank you.
    And finally, I want to follow up on the storage liners 
issue. My question is, will any kind of liner work to prevent 
leaching, or are there certain technical specifications that 
must be met?
    Mr. Stanislaus. Well clearly, it depends on the type of 
liner and then also ensuring that the liner is within a 
management framework, meaning a monitoring program and 
oversight program.
    Mrs. Capps. So it is not--and first of all, not any kind of 
liner will work, it has got to be some specified kind of liner. 
You don't have to go into the details here if you don't have 
that information, but there has been work to uncover and figure 
out what that kind of liner is? Am I correct?
    Mr. Stanislaus. There are industry standards in terms of--
--
    Mrs. Capps. There are industry standards.
    Mr. Stanislaus. Yes, the nature and particular materials 
for that liner.
    Mrs. Capps. OK, so there has already been research done?
    Mr. Stanislaus. And implemented in certain parts of the 
country.
    Mrs. Capps. And implemented already, and studied to see if 
it is effective?
    Mr. Stanislaus. Yes, yes.
    Mrs. Capps. OK. Well, the conclusion that I draw is that 
there are some robust specifications already and I am led to 
conclude that these are very serious concerns, and I hope that 
my colleagues will work with these technical experts at EPA--I 
hope we all will--to ensure that we address each of these 
exposure pathways appropriately and sufficiently and have that 
be part of the legislation that comes so that the bill will 
have some teeth in it and it will be effective in finally 
addressing this particular challenge. And I am looking across 
the aisle, because this is going to take the efforts of all of 
us to make sure that these standards are met.
    I yield back the balance of my time.
    Mr. Shimkus. Gentlelady's time is expired.
    I would just say that in this draft is really the Senate 
bill from last year, which is changed from ours, so it does 
have the groundwater, it does have the dust, it does have the 
levy issues and standards. It also--and Mr. Stanislaus 
mentioned previously that the technical considerations--this is 
part of the Senate bill, so some of the observations is based 
on the old house bill, not this draft bill which is part of the 
Senate language. That is safe to say, I think.
    So I would like to yield, and I apologize to the gentleman 
from Ohio. He should have went previous to the gentleman from 
West Virginia, but I am just scared of the guy from West 
Virginia, so to recognize Mr. Latta for 5 minutes.
    Mr. Latta. Thank you very much, Mr. Chairman. I appreciate 
it, and I greatly appreciate your testimony today and welcome 
you before the committee.
    You know, having served in the Ohio General Assembly, I 
truly believe that the states really know their citizens need 
better than the Federal Government, and also the states also 
believe that we have got to protect not only our citizens' 
health, but also the environment, while at the same time 
ensuring job creation and growth, not only in Ohio, but across 
the country.
    Ohio currently requires permits for both coal ash landfills 
and surface impoundments, and have continuously worked to 
improve the requirements, including those for liners and 
groundwater monitoring. Additionally, the Ohio Department of 
Natural Resources has its own program to monitor and prevent 
impoundment failure. Because of the quality of the program, 
Ohio EPA considers the risk of catastrophic failure of Ohio 
coal ash surface impoundments to be low. As you can see, Ohio, 
like many other states, has quality coal ash management 
measures already in place, and I believe that the Coal Ash 
Recycling and Oversight Act of 2013 will allow them to continue 
this ability.
    If I could ask you this first question, given the measures 
that Ohio and other states have or are working on right now and 
are currently putting into place, do you believe the states 
have that ability to ensure proper management and disposal of 
coal ash under the proposed legislation?
    Mr. Stanislaus. Oh, absolutely. I mean, there are many 
examples. I don't know-- I can't tell you at this moment 
specifically about Ohio's program. There are many examples of 
states doing a really good job on coal ash management. There 
are also other situations where even the states would 
acknowledge that there are places where it has not been 
effectively managed. Even a state survey among state waste 
managers has concluded that there are areas that are not 
managed well. I can't talk specifically about Ohio's program.
    Mr. Latta. OK, well thank you.
    And to ask kind of a follow-up and as to other questions 
that the gentlelady from California was mentioning a little bit 
earlier about liners, and if I could ask a couple questions in 
regards of the EPA would like to discuss. Do you agree that the 
bill contains a provision for requiring liners?
    Mr. Stanislaus. Yes, my understanding that the bill does 
require a provision for liners, and again, my oral statement is 
that there are particular--one of them is where additional 
clarity as to how that will be implemented would be helpful.
    Mr. Latta. OK, and do you also agree that the bill contains 
a provision requiring groundwater monitoring?
    Mr. Stanislaus. Congressman, my understanding is that the 
bill would require groundwater monitoring.
    Mr. Latta. OK. Do you agree that the bill has a deadline 
for the installation of the groundwater monitoring?
    Mr. Stanislaus. Congressman, my understanding that there is 
a deadline for installing groundwater monitoring.
    Mr. Latta. OK, thank you. Do you agree that the bill 
includes all of the constituents identified by the EPA as being 
of concern for coal ash?
    Mr. Stanislaus. I believe that is correct. Let me verify, 
but I believe that is correct. Let me verify it and place a 
statement on the record.
    Mr. Latta. OK, thank you. Doesn't the bill set a timeline 
for meeting the groundwater protection standards for surface 
impoundments that are incorrective?
    Mr. Stanislaus. That is something I am not sure is clear, 
but let me----
    Mr. Latta. If you could get with us on that, it would be 
great.
    Mr. Stanislaus. Yes.
    Mr. Latta. Do you agree that the bill requires control of 
fugitive dust?
    Mr. Stanislaus. It does have a provision for fugitive dust 
control, and again, it could be another area where further 
clarification of how it would be implemented could be 
beneficial.
    Mr. Latta. OK. Does the bill require financial assurance?
    Mr. Stanislaus. That is something I am not sure.
    Mr. Latta. OK, if you want to get back with us on that, we 
would appreciate it.
    And doesn't the bill contain location restriction for coal 
ash management and disposal units?
    Mr. Stanislaus. I think that is another area where I think 
it could be further clarified. It is a bit ambiguous to us.
    Mr. Latta. OK, and then with my remaining time, in your 
opinion, has the EPA developed a risk assessment that supports 
a determination that coal ash should be regulated under 
Subchapter C or Subtitle D--excuse me, Subtitle C or Subtitle 
D?
    Mr. Stanislaus. Yes, as noted earlier, there is substantial 
additional data that has been provided to us by multiple 
stakeholders that will inform our risk assessment, and so we 
are now in a position to move soon--will be, hopefully, to make 
that judgment. So based on that, it will inform the best 
management regime to safely address the risks that we have 
identified.
    Mr. Latta. Well thank you very much, and Mr. Chairman, I 
will yield back the balance of my time. If the witness could 
provide us with those answers, I would appreciate it.
    Mr. Stanislaus. Sure.
    Mr. Shimkus. Gentleman yields back his time. The chair now 
recognizes the gentleman from California, Mr. McNerney, for 5 
minutes.
    Mr. McNerney. Thank you, Mr. Chairman. I certainly wouldn't 
want to live downstream of a coal ash waste disposal site, but 
the conflict seems to be between federal authority and state 
authority, and the question I have is some states are going to 
do a good job. Some states may not do as good a job. If a site 
is leaking and poses a danger to the people in the groundwater, 
et cetera, does the EPA have sufficient authority in this bill 
to go in and take steps to remediate the situation?
    Mr. Stanislaus. Well as I understand, the program would 
require the states to set forth a permit program and then 
implement the permit program to oversee that. In terms of EPA 
as well, that is one of the areas I noted earlier that can be 
further clarified as to under what circumstances it could play 
a role in the oversight.
    Mr. McNerney. So basically you are saying that there is 
not--it is not sufficiently clear in the proposal what is--when 
the EPA should and can step in?
    Mr. Stanislaus. Yes, it can be further clarified, and we 
are willing to provide technical assistance on potential areas 
of clarification and some analogies to other programs that we 
have had that role and where we work in partnership with the 
states to do that.
    Mr. McNerney. Is that something that the EPA is working 
with this committee to try and clarify the language?
    Mr. Stanislaus. We can, absolutely.
    Mr. McNerney. Mr. Chairman, is that something that you are 
looking forward to doing?
    Mr. Shimkus. If the gentleman would yield, I would say that 
the discussion draft addresses ponds that are unlined and 
leaking, and the bill requires unlined leaking impoundments to 
meet groundwater protection standards within a certain time 
period, or close. Is that correct?
    Mr. Stanislaus. Yes, there are closure requirements, and 
again, they could be further clarified as to the timeline and 
what is the trigger for closure.
    Mr. McNerney. So regaining my time then, in an emergency 
situation, would the EPA have the authority to go in and take 
the steps that are necessary to remediate the danger?
    Mr. Stanislaus. Yes, again, under the legislation that is 
an area that could be further clarified in terms of EPA's role, 
and clearly, there are situations where there is imminent 
substantial endangerment, under our authorities, we can and we 
have gotten involved to address those emergencies.
    Mr. Shimkus. So the answer is yes is what he is saying.
    Mr. McNerney. It didn't sound like yes to me, Mr. Chairman.
    Now, the EPA doesn't have the authority--moving to the 
planning and design stage, to impose design standards, is that 
correct?
    Mr. Stanislaus. My understanding of the draft framework is 
that it will be up to the states to determine the details 
regarding that through their permit program.
    Mr. McNerney. Do you--you used the word ``encapsulated'' 
several times in your oral testimony. Could you explain what 
that means?
    Mr. Stanislaus. Sure. It simply means in the beneficial use 
world, coal ash can be beneficially used in circumstances where 
essentially it is fixed, like in wall board, like in concrete, 
and there are other areas where it is not fixed, fill 
operations as an example, agricultural use. So there are a 
variety of areas of its utilization, so in terms of developing 
methodology, addressing how it is safely used, we have to look 
at how it is used and not just the methodology currently 
developed, and with the first set of methodologies to be 
encapsulated, and we anticipate that to be issued in the fall.
    Mr. McNerney. Well then encapsulated means commercially 
viable encapsulation. It doesn't mean encapsulated specifically 
for the purpose of disposing it safely?
    Mr. Stanislaus. Yes, I use that terminology not relating to 
the disposal regime, as it relates to just beneficial use.
    Mr. McNerney. Now some toxic wastes are encapsulated, say, 
in a glass container that won't leak for many thousands of 
years. Is that prohibitive in this case for coal ash because 
the volume is too big, or is there some way to encapsulate it 
so that it can be disposed of safely for generations?
    Mr. Stanislaus. Well, the framework for safe disposal is a 
combination of a lining system and a monitoring program, and we 
believe that can effectively address the risks that we have 
identified. Obviously, you have to look at also addressing 
fugitive dust or fugitive dust control systems as well.
    Mr. McNerney. So is that what you described, the lining, 
the groundwater monitoring, was that the 2000 proposal with the 
EPA? Was that included in that 2000 proposal?
    Mr. Stanislaus. Those elements were included in that.
    Mr. McNerney. OK. Thank you, Mr. Chairman.
    Mr. Shimkus. Thank you. Chair now recognizes the gentleman 
from Ohio, Mr. Johnson, for 5 minutes.
    Mr. Johnson. Thank you, Mr. Chairman. Mr. Stanislaus, 
thanks for being with us today.
    Does CRCLA give EPA's authority the authority to address 
inactive or abandoned impoundments or units?
    Mr. Stanislaus. Generally CERCLA provides that if there's a 
threat from hazardous waste, its authorities can be used. I am 
not sure specifically where we used that in an impoundment 
scenario, but I can check and get back to you.
    Mr. Johnson. Inactive or abandoned? Not active ones, but 
inactive or abandoned.
    Mr. Stanislaus. Yes, let me check and determine whether we 
used that and whether we can use that.
    Mr. Johnson. If you could respond back in writing, that 
would be great.
    Mr. Stanislaus. Sure.
    Mr. Johnson. Also, Mr. Stanislaus, following Kingston, EPA 
inspected coal ash impoundments, some 600 of them, in fact, to 
make sure that they are structurally sound. You hired 
independent contractors who in the agency's own words are 
experts in the area of dam integrity. Do you agree with the 
findings of your staff that not a single coal ash impoundment 
was rated unsatisfactory and poses an immediate safety threat?
    Mr. Stanislaus. You know, I have to go back and look 
cumulatively of our postings, but we have done an assessment 
and we didn't believe there was a scenario where there was a 
threat of imminent failure, and it is a combination of looking 
at how it is designed, an inspection, and there was some 
recommendation to do some additional enhancements to prevent 
risk.
    Mr. Johnson. But none was rated unsatisfactory and none 
posed an immediate safety threat? Do you agree?
    Mr. Stanislaus. Let me check and put it on the record.
    Mr. Johnson. OK, if you could check and get back to us on 
that also.
    Do you agree with the findings of your professional staff 
as well that the owners and operators of impoundments with 
identified deficiencies have responded responsibly by 
submitting response action plans?
    Mr. Stanislaus. Yes, I will go verify that and place it on 
the record.
    Mr. Johnson. OK, so you can get back to us with all of 
that?
    Mr. Stanislaus. Sure.
    Mr. Johnson. Mr. Chairman, with that, that is all my 
questions. I yield back.
    Mr. Shimkus. Gentleman yields back his time. Chair now 
recognizes gentleman from Mississippi, Mr. Harper, for 5 
minutes.
    Mr. Harper. Thank you, Mr. Chairman, and thank you for 
being here. I know this always fun, but we appreciate your time 
and expertise. These are important issues and we need to make 
sure we stay on top of this.
    You know, EPA has direct enforcement authority for 
municipal solid waste only when the agency determines that a 
state program is inadequate. The bill adopts essentially the 
same approach. Why is the approach not acceptable for coal ash?
    Mr. Stanislaus. Well, as I noted earlier, there is--there 
are provisions for EPA to review a state program, the state's 
implementation program. Further clarity as to how it will 
conduct its review and under what circumstance it could engage 
a state's improvement of that or take it over, that is where 
there is some ambiguity.
    Mr. Harper. OK. You know, EPA has suggested that it would 
measure the adequacy of existing state programs based on 
whether groundwater monitoring was required. The bill requires 
groundwater monitoring, as you were asked and affirmed earlier, 
for all structures that receive coal ash. That is correct, 
isn't it?
    Mr. Stanislaus. Well, I think what the bill states that it 
requires groundwater monitoring for facilities that receive 
coal ash after the effective date of the legislation. So one of 
the areas of clarification as to what are the universe that 
will be subject to the groundwater requirements?
    Mr. Harper. You know, EPA's proposed rule suggests the 
importance of having state coal ash permit programs address 
surface impoundments and require liners. The bill requires 
regulation of surface impoundments and liners for all new and 
expanded land disposal units, doesn't it?
    Mr. Stanislaus. I believe for those units that receive 
waste after the enactment date.
    Mr. Harper. OK.
    Mr. Stanislaus. That is correct.
    Mr. Harper. All right. Mr. Chairman, I yield back the 
balance of my time.
    Mr. Shimkus. Chair thanks the gentleman, and then the chair 
recognizes the gentleman from Louisiana, Mr. Cassidy, for 5 
minutes.
    Mr. Cassidy. I yield back.
    Mr. Shimkus. That is the quickest 5 minutes I have ever had 
as chairman, and the chair thanks you.
    Seeing no other members, Mr. Stanislaus, thank you for your 
testimony. We are going to try to get you to yes a little bit 
clearer. I think we have made great progress since the last 
Congress, and we look forward to working with you and we thank 
you for your time.
    I would like to ask the second panel to join us.
    Mr. Stanislaus. Thank you, Mr. Chairman, and thank you, 
members.
    Mr. Shimkus. We would like to get started as promptly as 
possible, so we would like to thank the second panel for 
joining us. Many of you have been here before and seen the 
process. I will recognize you in order from left to right. I 
will do it, you will be given 5 minutes for an opening 
statement, and your full statement has been submitted for the 
record. We will begin.
    First I would like to recognize Mr. Robert Martineau, Jr., 
Commissioner from the Tennessee Department of Environment and 
Conservation. Sir, you are recognized for 5 minutes, and 
welcome.

STATEMENTS OF ROBERT J. MARTINEAU, JR., COMMISSIONER, TENNESSEE 
 DEPARTMENT OF ENVIRONMENT AND CONSERVATION; STEPHEN A. COBB, 
P.E., CHIEF, GOVERNMENTAL HAZARDOUS WASTE BRANCH LAND DIVISION, 
 ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT; SUSAN PARKER 
 BODINE, PARTNER, BARNES & THORNBURG, LLP; LISA EVANS, SENIOR 
 ADMINISTRATIVE COUNSEL, EARTHJUSTICE; AND JACK SPADARO, MINE 
          SAFETY & HEALTH AND ENVIRONMENTAL CONSULTANT

             STATEMENT OF ROBERT J. MARTINEAU, JR.

    Mr. Martineau. Thank you, Mr. Chairman, and thank you to 
the committee for the invitation to be here today to discuss 
the issues about coal ash combustion and the legislation.
    I am here today representing the Environmental Council of 
State, or ECOS, whose members are the leaders of state and 
territorial environmental protection agencies, and my own State 
of Tennessee. Currently I serve as the--on the executive 
council of ECOS as secretary/treasurer.
    The incident that occurred in Kingston, Tennessee, in 2008 
obviously made coal ash management an issue of national 
attention. I am here today to talk about the position that the 
states have on collectively--on how to best move forward with 
regulation of coal ash.
    ECOS adopted a formal resolution on this issue, first 
passed in 2008, and reaffirmed last month at our spring 
meeting. I have attached that to my written testimony and ask 
that it be made part of the record.
    In short, our ECOS resolution agrees with the multiple 
studies that EPA has conducted over many years and three 
administrations, that coal ash is not a hazardous waste and 
should not be regulated as such. ECOS also agrees with EPA's 
2005 finding that the states should continue to be the 
principal regulatory authority for regulation of coal ash. We 
recognize that there are some significant beneficial reuses for 
coal ash, and we support those. While some may suggest 
otherwise, regulation of coal ash as a hazardous waste would 
have an extreme chilling effect on the beneficial reuse of coal 
ash in concrete road bed material and other uses.
    While we believe the states are the appropriate regulatory 
authority for coal ash, we also recognize there is some benefit 
for a national consistency approach. Therefore, ECOS has 
supported the bipartisan efforts of the House and Senate in the 
last Congress to create a federal program that allows states to 
regulate coal ash management and disposal under a set of 
federal standards created directly by Congress and implemented 
by the states. This is a new and thoughtful approach in 
regulation.
    ECOS sees this approach in this bill as a new path forward 
for federal involvement in some of the environmental challenges 
we face. We live in an era of constrained resources in 
government at both the federal, state, and local level. 
Challenges like coal ash would benefit from a new partnership 
model between the state and the Federal Government.
    The discussion bill today sets standards that protect human 
health and the environment, and provides the states the 
opportunity to implement, enforce, and supplement the standards 
that are most applicable for each state. If a state chooses not 
to implement the CCR program, then EPA can and will. States can 
ask for technical assistance from EPA, should they need it, and 
EPA is required periodically to assess and evaluate the states' 
implementation of those programs. If necessary, EPA can assume 
control of any state program if the state is unsuccessful in 
implementing those standards. Because the bill does not require 
EPA to promulgate the rules, but creates the standards directly 
in the legislation, there are fewer delays in the program's 
startup, and there is an additional savings to the Federal 
Government.
    Obviously, any new proposed partnership in management of 
coal ash is subject to constructive criticism. I would like to 
briefly address a couple of the criticisms identified in the 
Congressional Research Service report.
    First, the report noted that last year's bill lacked a time 
table for implementation and other deadlines. While there are a 
number of time tables for closure and groundwater monitoring 
upgrades in the statute, there are a reasonable well-defined 
schedule for the states to actually adopt the rules as 
necessary and develop the permit programs. It would certainly 
be reasonable. States are used to dealing with that as they 
implement other federal programs. This time table would allow 
states to pass state rules, set up their regulatory programs, 
or supplement the ones they already have to get the permit 
program up and running to the extent they don't have one.
    Second, the CRS report also implied that a lack of direct 
EPA enforcement authority would make it less likely for the 
states to implement a program. I think that is simply 
contradicted by the record. ECOS has gone on record saying that 
they desire to run the--regulate coal ash at the state level. 
It is certainly not the case for Tennessee, and I don't think 
it would be the case for any other states.
    A third criticism in the standards is that you can only set 
these kinds of standards through promulgation of rules. We 
believe Congress can create the basic standards for coal 
residual management, and the references to some of the existing 
regulatory requirements under part 258 are already set forth in 
the standard and would be encompassed in setting forth the 
basic criteria that states would have to implement. Obviously, 
states can choose to do more if they need to do so to address 
particular geographic or other conditions in the state.
    Lastly, there is skepticism that EPA will be able to judge 
the states' performance on coal ash programs that would be 
created by this bill. EPA has been judging state air, water, 
and waste programs for 40 years through the delegation of 
programs. ECOS continues and the state agencies continue to 
interact with EPA every single day on the adequacy of their 
programs, and I don't think this program would be any 
different. The key is not to judge whether a state would 
implement the program exactly as EPA would, but whether the 
state has created an effective program for regulation that is 
consistent with the statute. A state must certify in detail to 
EPA that it has the equivalent statutory and regulatory 
authority to operate its CCR management and disposal program, 
including permitting, inspections, monitoring, review of site 
data, and enforcement. If the state falters, EPA can warn it. 
If the state fails, then EPA can take the program. This is the 
same authority that EPA has with all other delegated state 
programs.
    I will close with a quotation from the March CRS report 
that I think is accurate and appropriate here. ``That a coal 
ash regulatory program would be created using a new approach 
does not mean that it cannot achieve its intended purpose. The 
bills would establish a framework that could be used to create 
programs to regulate CCR disposal, allow states flexibility to 
develop and implement the CCR management and disposal programs, 
and specify some level of EPA oversight after states are 
implementing the program.'' We concur with that view, that this 
is a new approach, and that we think will work well to serve 
the public.
    Thank you.
    [The prepared statement of Mr. Martineau follows:]


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Mr. Shimkus. Gentleman yields back his time. I want to 
thank you for your testimony.
    Now I would like to recognize Mr. Stephen A. Cobb, 
Professional Engineer, Chief, Governmental Hazardous Waste 
Branch Land Division of the Alabama Department of Environmental 
Management. Sir, welcome, and you have 5 minutes.

                  STATEMENT OF STEPHEN A. COBB

    Mr. Cobb. Thank you, Mr. Chairman. Chairman Shimkus, 
Ranking Member Tonko, honorable subcommittee members, my name 
is Stephen Cobb and I represent the Alabama Department of 
Environmental Management, or ADEM, which is the environmental 
regulatory agency in the State of Alabama. Thank you for the 
opportunity to address the subcommittee this morning. My 
remarks are based on ADEM's more than 30 years of implementing 
programs for the management of solid and hazardous waste in the 
state, including my personal experience in this area over the 
last 25 years. I have also submitted a more detailed statement 
for the committee's consideration.
    Alabama is home to one of the largest hazardous waste 
disposal facilities in the Nation, and we have extensive 
experience managing higher risk waste. We clearly understand 
that a massive influx of lower risk solid waste such as coal 
combustion residuals into the hazardous waste classification 
would pose a threat to the level of attention needed for the 
safe management of all materials classified as hazardous waste, 
and also understand the challenges and resources required to 
permit and inspect such facilities. Alabama is also home to 29 
medium to large municipal solid waste, or MSW, landfills, so we 
also have a very good understanding of the protections that are 
provided by the MSW landfills under 40 C.F.R. part 258, to 
ensure safe waste management, to prevent future releases, and 
to require corrective action to address past releases where 
needed.
    As a result of having both types of facilities, we have a 
unique perspective on the issues which should be taken into 
account in considering how best to regulate materials such as 
CCRs. EPA has attempted to resolve the regulatory status of 
CCRs since the early '80s, but its difficulty in doing so may 
be attributed to two facts. First, CCRs generally do not meet 
the established criteria for classification of hazardous waste 
under Subtitle C, and second, there is no provision under 
Subtitle D for a national permitting program for these 
materials as nonhazardous solid wastes. The enactment of new 
Section 4011 as described in the discussion draft will solve 
this problem by requiring the CCR structures be designed and 
permitted pursuant to national standards under Subtitle D, the 
same standards used for MSW facilities.
    We must be aware of the tiered method by which waste has 
been regulated and controlled for the last 5 decades, which 
imposes restrictions commensurate with the risk of permanent 
harm to human health and the environment posed by 
mismanagement. Looking at this system from the highest risk 
materials down, we see nuclear rated electrical waste at the 
top, followed by hazardous waste, municipal solid waste, 
industrial waste, construction demolition, and other wastes 
such as yard trimmings at the bottom. Of these categories, only 
municipal, hazardous, and nuclear radiological waste are 
currently subject to federally mandating permitting and 
management requirements, with the remainder addressed 
effectively through the jurisdiction and authority of the 
individual states.
    To include CCRs in the hazardous waste category would pose 
a risk of neglecting the wastes that are currently classified 
as hazardous, due to the massive expansion of waste quantities 
caused by including CCRs in the category. For example, about 
120,000 tons of hazardous waste are land disposed in Alabama 
each year, compared to approximately 4 million tons of CCRs 
that are generated within our state annually.
    Congress can look to the fact that Alabama and other states 
have routinely adopted and implemented those programs that are 
required and authorized by federal law as clear evidence that 
we will appropriately implement the national CCR program. In 
fact, in anticipation of first national standards for these 
materials, our legislature in 2011 authorized our agency to 
develop and adopt rules as necessary to implement a state 
regulatory program consistent with the federal requirements. As 
a safeguard, there is a role for EPA to evaluate our 
implementation of the permitting program, and to demand changes 
if the state program is not meeting the national requirements, 
as well as for EPA to take over implementation of the 
permitting program if the state does not do so.
    In conclusion, Mr. Chairman, ADEM stands ready to implement 
a comprehensive permitting program for CCRs in Alabama, based 
on national standards, so as to ensure that these materials are 
properly managed now and into the future, but we must do so in 
a manner that provides the needed protections, can be 
implemented quickly and efficiently by the states, does not 
disrupt the established tiered system of waste management in 
this country, and does not result in needless duplication and 
proliferation of regulations and regulatory programs.
    Thank you again for the opportunity to address the 
committee this morning. I will be glad to answer any questions 
you might have.
    [The prepared statement of Mr. Cobb follows:]


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    Mr. Shimkus. Thank you, Mr. Cobb, and I would like to 
recognize Ms. Susan Parker Bodine, who is a partner with the 
law firm of Barnes & Thornburg. You are recognized for 5 
minutes. Your full statement is in the record.

                STATEMENT OF SUSAN PARKER BODINE

    Ms. Bodine. Thank you, Chairman Shimkus----
    Mr. Shimkus. I think there should be a button underneath--
there you go.
    Ms. Bodine. I think I would remember that.
    Chairman Shimkus, Ranking Member Tonko, members of the 
subcommittee, thank you for inviting me here today to testify 
on the Coal Ash Recycling and Oversight Act of 2013. As the 
chairman said, I am a partner in the firm Barnes & Thornburg. I 
am here to testify based on my understanding of RCRA, Research 
Conservation Recovery Act, and its implementation, and that is 
from my past experience as being the Assistant Administrator 
for the Office of Solid Waste and Emergency Response from 
January, 2006 to January, 2009. So I can understand the 
situation that the agency is in, but I also understand the 
prerogatives of Congress and certainly the role of Congress in 
developing regulatory programs, because before I was at EPA, I 
was working in this building for 11 years over on the 
Transportation and Infrastructure Committee staff. So I can 
bring both perspectives to bear here.
    But first, I want to talk about EPA and development of 
regulations. As I think some have already noted, EPA has been 
looking at coal ash management issues, and any risks that might 
be associated with that for, you know, let's just say 30 years, 
a long time. And in that time period, EPA has not developed a 
record that supports federal regulation of coal ash. I will go 
into--that is not the agency's fault, but they simply have not 
developed a risk assessment and the record to support it. They 
have acknowledged that back in 1998. This risk assessment was 
done before the report to Congress in 1999 and the 2000 
regulatory determination. EPA said that--this is a quote--``EPA 
found that modeling uncertainty and error may have led to 
substantial overestimation of risks.'' That was in the '98 risk 
assessment. Again, if they didn't stop work on this issue, and 
continued to work on the risk assessment, continued to make 
changes to it, sent it out for peer review in 2008. Again, 
didn't--the agency still did not fix the problems that had been 
identified, and the peer reviewers pointed out many of the same 
problems and EPA acknowledged those issues. And there is a 2009 
response to the peer review that is in the docket for the 
rulemaking that is pending, and that 2009 response says--and 
this is a quote--''EPA acknowledges that the leaching profile 
described by Dr. Basta may be more realistic, however, the 
agency does not have the data to use time variant leaching 
concentrations.'' And what that means is that EPA assumed that 
whatever--that there is no attenuation of any hazardous 
constituents if anything leaches out of a landfill. One hundred 
percent of the constituents they say would leak out at 100 
percent level. Same issue, again, a quote from the peer review, 
``EPA acknowledges there may be insoluble or otherwise 
unleachable contaminant mass that remains in a waste management 
unit, however, EPA has no data available, again, to support a 
different approach.'' They are assuming 100 percent moves out 
of a landfill or a surface impoundment, because they have no 
data to assume otherwise.
    The agency is now--they are saying that they still want to 
fix the risk assessment. We do have a proposal out there, but 
the agency is saying they do still want to fix it. They are now 
pointing to data that was collected by the Office of Water when 
they were looking at revising Clean Water Act regulations, and 
in filings before the District Court for the District of 
Columbia, the agency has said that this new data may change the 
assessment of risk by an order of magnitude. You heard Mr. 
Stanislaus say just a few minutes ago that they are not in a 
position to make a judgment on risk, and yes, that is right. 
The risk assessment hasn't changed and has the assumptions that 
are very conservative.
    The bill takes an approach that takes the EPA out of its 
box. They are in a box. They don't have a record to support 
regulation. By prescribing the standards in the legislation 
directly, they don't have to justify a rule, they don't have to 
justify standards based on risk. I heard Mr. Stanislaus say to 
you that they would like to provide technical assistance for 
criteria tailored to specific risks. Again, they don't have a 
risk assessment that can do that kind of tailoring, but the 
bill allows them to then go ahead and implement the program 
without creating those justifications. As I think you pointed 
out, Mr. Chairman, the provisions of the legislation are based 
on provisions that the agency has already said are protective. 
You were asking Mr. Stanislaus to quote from his Federal 
Register preamble, and it does say that the part 258 criteria 
present a reasonable balance between ensuring protection of the 
human health and the environment, and the practical realities 
of facilities' ability to implement the criteria. So they have 
endorsed that and you have also picked up the structural 
integrity issues and the fugitive dust issues.
    So what my message to you is that--and actually, my message 
to the agency is they should embrace this because it gets them 
out of a regulatory box and allows you to move forward, which 
we have heard from other members saying let's move forward and 
address these issues, and let's do it.
    Thank you.
    [The prepared statement of Ms. Parker Bodine follows:]


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    Mr. Shimkus. Thank you very much. Time is expired.
    Now I would like to recognize Ms. Lisa Evans, Senior 
Administrative Counsel from EarthJustice. Thank you, and your 
full statement is in the record. You are recognized for 5 
minutes.

                    STATEMENT OF LISA EVANS

    Ms. Evans. Thank you very much. Chairman Shimkus and 
members of the committee, I thank you for having me here to 
testify on this very important and very controversial draft 
discussion bill from Representative McKinley. I am Lisa Evans, 
Senior Administrative Counsel for EarthJustice, a national 
nonprofit public interest law firm dedicated to defending the 
right of all people to a healthy environment.
    On behalf of many public interest groups, thank you for 
holding the first legislative hearing on this complex bill. I 
am hopeful that his hearing will clarify the discussion draft's 
contents, including the very significant criticisms and 
questions by two recent CRS reports.
    I am also hopeful that we can find common ground on this 
critical public health issue, as well as common ground on the 
objectives of any coal ash legislation.
    Without a doubt, when mismanaged, coal ash harms Americans 
nationwide by poisoning water and air and by threatening the 
very existence of communities living near high hazard dams. We 
must work together to establish regulations that, foremost, 
prevent injury to health, and ensure the safety of all 
communities, but which also allow for safer use of coal ash 
that improves our economy, environment, and again, our health.
    I trust that all in this room share this goal. In that 
spirit, I offer these comments.
    While the bill at issue raises many important questions, 
the following four are among the most critical to understanding 
the problems with the bill. First, does the bill establish a 
national protective standard and federal minimum requirements? 
In other words, will the bill require every state to implement 
coal ash programs that protect the health of all the residents? 
The CRS report twice says no. The bill cannot guarantee 
consistent national protection, and we agree. CRS points to the 
absence of a national protective standard, which is unique 
among federal environmental laws. This approach is not just new 
and unprecedented, it is inadequate. According to CRS, the 
failure of the bill to require the protection of human health 
and the environment, and to define key terms renders it 
impossible for the bill to guarantee that all states will 
implement consistent and health protective programs.
    Why is this so important? Currently, our Nation is a 
patchwork of widely different state programs, as Representative 
McKinley has pointed out. Tennessee and Alabama, for example, 
lack many basic and needed safeguards for the management of 
coal ash dams. To ensure full protection for the citizens of 
those states where there is considerable disproportionate 
impact on communities of color and low income communities, the 
bill must contain a national protective standard and minimum 
federal requirements. We agree with CRS that this bill has 
neither.
    Secondly, does the bill provide EPA with backstop 
authority? In other words, does the bill provide EPA with clear 
and effective oversight to ensure that all state programs 
protect Americans from mismanaged coal ash? Again, the CRS 
reports twice say no, and we agree. According to CRS, the bill 
contains no backstop authority as that term is commonly 
understood. Pursuant to this bill, backstop authority can only 
be exercised when states fail to implement the co-called 
minimum requirements, but as CRS pointed out in two reports, 
the bill's requirements are so vague that there are, in fact, 
no minimum federal standards. In other words, backstop 
authority is meaningless without a clear set of standards and 
deadlines that EPA can use to determine whether a state program 
is deficient. The CRS reports clearly say that the bill doesn't 
provide that criteria. Further, this bill deliberately and 
effectively removes most of EPA's authority over coal ash. EPA 
cannot take immediate enforcement action if a state fails to 
act. EPA cannot evaluate the adequacy of state programs before 
their implementation, and EPA cannot promulgate regulations 
where they are needed to protect health and the environment to 
reflect the increasing toxicity and changing nature of ash.
    Third, will the bill protect the Nation's drinking water? 
No, it will not. The bill's failure to phase out unlined ponds, 
its failure to set deadline for the permitting of dumps, its 
failure to require closure of polluting sites by a date 
certain, and its failure to ensure that all dangerous dumps are 
monitored will leave our water at risk of continued poisoning 
by arsenic, hexavalent chromium, lead, mercury, and more.
    Fourth and finally, will the bill prevent another 
catastrophic disaster? No, and yet I think all would agree that 
any bill must ensure that the earth and dams holding back 
millions of tons of toxic waste be made safe for all the 
communities unfortunate enough to live beneath them.
    I speak for many in the public interest community when I 
say that we, too, want an immediate end to the delay of the 
EPA's rulemaking, but any rule or any bill foremost must 
protect public health and safety. Together, we can and must end 
the longstanding serious threat thousands of communities living 
near unsafe, unstable, and leaking coal ash dumps, because 
every person in this room, every family in your districts, 
every citizen in this country deserves water free from ash 
contamination, air free of dust, and a safe and secure 
community.
    I appreciate the opportunity to comment, and I look forward 
to questions. Thank you.
    [The prepared statement of Ms. Evans follows:]


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    Mr. Shimkus. Thank you.
    The last testimony we will receive is from Mr. Spadaro, who 
is a mine safety and health environmental consultant. Mr. 
Spadaro, I understand you are going to show some slides in your 
testimony, is that correct?
    Mr. Spadaro. Yes, I am.
    Mr. Shimkus. We would just on the record, as we have 
submissions, you know, in a certain amount of time, when you 
have slides if we could see those in the same timely manner on 
the submission, that just makes it easier for us, too. So that 
is actually part of your testimony and we should have received 
that 48 hours in advance, too, but we are happy to, with asking 
for unanimous consent, to allow you to have the slides shown. 
So with that, I recognize you for 5 minutes.

                   STATEMENT OF JACK SPADARO

    Mr. Spadaro. Thank you. I will try to show these as I go so 
we will save time.
    I just want to thank you for inviting me here today, and 
for allowing me to make these comments. I have been involved in 
the regulation of dams related to coal mine waste since 1972, 
when I went down to southern West Virginia as a young engineer 
to investigate the Buffalo Creek dam failure, where 125 people 
died and about 4,000 people ended up having their homes 
destroyed by the failure of a dam that had not been engineered 
properly. Then after that time, I have worked for really in the 
past 40 years in regulating both the environmental effects of 
mining, and the mine health and safety regulations at both the 
federal and state levels.
    The management and disposal of coal ash is an issue with 
serious health and safety implications that warrant federal 
action to protect the communities living with this waste, 
particularly to ensure the structural integrity of more than 
1,000 coal ash dams across the country.
    In the draft discussion, there is just a mere mention, 
really, of the standards necessary to address these threats. 
The language is something vague, like good engineering 
practices. Well--and I am going to show here in a minute the 
after-effects of the dam failure at Buffalo Creek, and several 
others.
    So when I went to Buffalo Creek and spent almost a year 
there, I was there--I went in about a week after the dam failed 
and then I worked with a committee that was appointed by the 
governor of West Virginia and their very first conclusion read 
this way, ``The lack of definitive, clear-cut, and enforceable 
laws with regard to the safety of mine refuse banks and 
impounding structures, both at the federal and state levels, 
was a major shortcoming that contributed to the disaster.'' Now 
I want to show, if we can, the first photographs of the Buffalo 
Creek dam failure.
    [Slide shown.]
    This is how destructive one dam failure can be. In this 
failure, the structure was about 60 feet high, contained 125 
million gallons of coal slurry, and it failed in a matter of 15 
minutes because there were no engineering standards in place.
    So after that, I was honored to work with the--we can go on 
to the next slides.
    [Slide shown.]
    I was honored to work both at the state and federal level 
in writing regulations that could govern these structures, and 
so we, over time, developed under the Code of Federal 
Regulations under the Surface Lining Act, under 30 C.F.R. 
816.49, 816.81, 816.83, and 816.84 standards that have been in 
place since 1977. That was for the Federal Office of Surface 
Mining, and states then implemented those regulations. We also 
have, since 1977, federal standards that are enforced by the 
Mine Safety and Health Administration, and that is under 30 
C.F.R. 77.214 through 77.216.
    Unlike the discussion draft, the OSM and MSHA regulations 
require specific recognized engineering standards to be applied 
to the planning, construction, and maintenance of coal refuse 
dams and do not merely leave the design and maintenance 
criteria to an independent contractor.
    [Slide shown.]
    The failure that you see now on the screen was the Martin 
County dam failure that occurred in October, 2000. That was a 
failure where a dam had been repeatedly certified by an 
engineer who was a contract engineer for the company who owned 
the dam, and then there is a similar failure that occurred as 
recently as past December, 2012. The engineer who had 
repeatedly certified that dam was safe was standing on top of 
the dam when it failed.
    So the EPA's studies have shown that there are--the 
structures study, there are at least 25 percent of them were in 
poor conditions. They did recommend urgent action to stabilize 
those dams. Fifty-four of the significant hazard dams were 
rated poor, and less than half of all the dams received a 
satisfactory rating.
    I want to say to you, I have seen, as you have seen here, 
the result of inadequate and irresponsible regulation of coal 
refuse dams, and these catastrophes that I hope never to see 
again, and I shall never forget the bodies of the people that I 
saw wrapped in the coal slurry in the weeks following the 
Buffalo Creek dam failure, and hearing the voices of the 
survivors who had lost their families forever.
    Thank you.
    [The prepared statement of Mr. Spadaro follows:]


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    Mr. Shimkus. Thank you, sir, for your testimony.
    I am going to ask unanimous consent that Mr. Hall be 
recognized for the first 5 minutes.
    Mr. Hall. Thank you, Mr. Chairman.
    Mr. Shimkus. Without objection, the gentleman is 
recognized.
    Mr. Hall. Thank you very much, and it is very important to 
take--I thank you for it. It is--you make your usual request 
that we can submit letters in the future?
    Mr. Shimkus. I have not made that statement yet, but 
without--with unanimous consent, people are--we will keep the 
record open for 5 days to receive questions and responses as 
per--10 days? Ten days. Without objection, so ordered.
    Mr. Hall. Thank you. I yield back.
    Mr. Shimkus. Shoot, I could have done that, Ralph.
    Now I would like to recognize Mr. Tonko for 5 minutes.
    Mr. Tonko. Thank you, Mr. Chair, and let me thank the 
witnesses for their testimony.
    The proposal before us would establish an unprecedented 
regulatory structure wherein the specific technical 
requirements for coal ash disposal would be set in statute. I 
have serious concerns about that approach, not the least of 
which is the burden it puts on this committee to determine the 
appropriate technical specs for safe disposal.
    In order to better inform the subcommittee, I would now 
like to ask some of the same questions of this panel. Mr. 
Spadaro, you are an engineer with very compelling evidence that 
you offered with the photos that you have displayed. Your 
experience in determining what criteria are necessary to assure 
the structural integrity of waste impoundments is telling, I am 
concerned that this proposal will not require impoundments to 
be designed for the full volume of liquid they will hold, and 
will not require the operating criteria currently applied to 
coal waste impoundments. So are those concerns justified?
    Mr. Spadaro. Yes, sir.
    Mr. Tonko. And do you agree that the proposal before us is 
deficient on structural integrity?
    Mr. Spadaro. Yes, it is remarkably deficient. I can't 
believe that 40 years after the Buffalo Creek dam I am reading 
legislation that basically foregoes standard geotechnical 
practice that has been applied to dam construction for the 
past, really, 50 years. And so this bill is deficient in 
applying those standards.
    Mr. Tonko. Now you have shared some very telling photos, 
but can you give a few brief examples of those deficiencies?
    Mr. Spadaro. Yes. As I said, the rate--both the Surface 
Mining Control and Reclamation Act, and the Mine Safety and 
Health Act of 1977 were very specific in stating that standards 
should be established in the federal regulations through the 
regulation process, so I, as I said, I worked on the team of 
engineers and hydrologists who put together those regulations. 
We had input from the Corps of Engineers, the Soil Conservation 
Service, the engineers from within the specific agencies, and 
those people had the knowledge to determine what needed to be 
put into the regulations.
    One of the main things is the requirements for foundation 
investigation, engineering analysis of the foundationaries of 
dams, engineering analysis of the seepage patterns that the 
dams might create, and the geologic conditions in the areas 
where the dams are being constructed. Also, standards for 
compaction of the material, and daily inspection standards 
under the MSHA standards, and quarterly inspections by federal 
inspectors, as well as the certification by the corporate 
engineer. So you have a checks and balance system where not 
just one person is saying the dam is safe. And that has worked 
by and large very successfully. There are 650 coal refuse dams 
in the United States. We know of several failures, but I can 
assure you, without these standards, there would have been many 
more.
    Mr. Tonko. Well, I think this is something that could be 
addressed by delegating rulemaking authority to the EPA to 
establish criteria that would meet a standard of protection, 
and rather than rescuing EPA as an agency, as has been 
suggested, it seems as though the concern should be with 
individuals, families, and communities that could be severely 
impacted.
    Mr. Spadaro, if we had to lay it out in statutory terms, 
what are the minimum requirements in your view that should be 
included here to prevent another spill like that which happened 
in Kingston?
    Mr. Spadaro. Well, I do recommend that the regulations be 
developed by EPA, and not just EPA, but a team of agencies with 
the expertise, as well as with input from industry. So I think 
the minimum standard would be that the dams be built using 
initially, and requiring initially, an evaluation of the 
stability of the foundation, the stability of the dam as it is 
being constructed, instrumentation of the dam with pisometers 
and slope inclinometers that can detect movement, minimum 
standards for compaction material, and minimum hydrologic 
standards, for instance, establishing design storms. We found 
in West Virginia we had to design many of the dams for the 
probable hydrologic consequences, the probable maximum storm, 
because there were large populated areas downstream. So you 
have to account for very large storms, as well as the 
structural integrity of the dams. Those things, at a minimum, 
should be included in any proposed regulations or legislation.
    Mr. Tonko. Thank you, Mr. Spadaro. Thank you, Mr. Chair. I 
yield back.
    Mr. Shimkus. Gentleman yields back his time.
    Mr. Spadaro, not a question, but a comment. I was 12 in 
1972, and I would hope engineering qualifications and standards 
have improved so much in the multiple decades, and that is why 
we trust the states to be able to figure that out. The other 
issue was, you are talking about a coal waste dam. We are 
talking about coal ash impoundments. They are two different 
issues, and I just want to put that on the record.
    I want to start with Mr. Martineau. ECOS is who?
    Mr. Martineau. ECOS is the Environmental Council of State. 
We are essentially an organization of all my counterpart 
agencies. I am the commissioner of the Department of 
Environment and Conservation for Tennessee. The titles vary 
slightly, but we have 48 of the 50 States are members----
    Mr. Shimkus. And the two who aren't, was I correct, Florida 
and South Dakota?
    Mr. Martineau. Florida and South Dakota.
    Mr. Shimkus. So New York and Massachusetts----
    Mr. Martineau. Are all members.
    Mr. Shimkus. --California, and they all went on record with 
this resolution twice, is that correct?
    Mr. Martineau. Yes.
    Mr. Shimkus. Without objection?
    Mr. Martineau. I believe it was unanimous. Yes, it was 
unanimous.
    Mr. Shimkus. Unanimous? California, Massachusetts, which I 
think is telling, and I think that is the importance of your 
organization, and I just wanted to make sure we have that on 
record.
    The other thing--and I am--what is important, part of this 
whole debate came about because of this, beneficial reuse. And 
in the state of California, there were adds about concrete use 
that had fly ash, and they were targeting that reuse, and the 
whole reclassification. And for my colleagues, some of whom are 
new on this subcommittee, the importance is if we then turn 
this all into a toxic waste dump, you have got--and Mr. Cobb, I 
think your testimony talks about where do we put it and how do 
you manage it? So I just want to tie that into this debate, 
because we are now getting into the nitty gritty, but there are 
some macro parts of this debate, and that is why many of us 
think this is a great, actually, environmental response to get 
beneficial reuse and ensure that that occurs, which keeps our 
ability to place things in landfills in a limited amount.
    Mr. Martineau, as an experience state regulator, do you 
think states are able to interpret the minimum program 
requirements in the bill to provide a permit program that is 
protective of human health and the environment?
    Mr. Martineau. Yes, I do.
    Mr. Shimkus. What about this dam debate that we just had?
    Mr. Martineau. I think dams are obviously in context well 
beyond coal ash disposal sites, but the structural integrity of 
dams, I am not a dam expert--d-a-m--but those things are 
evaluated by states. I mean, EPA you heard earlier, they 
themselves went and looked at the 300 coal ash disposal sites 
and saw no immediate hazard, so I think----
    Mr. Shimkus. No immediate hazard, and the EPA went on 
record as saying that?
    Mr. Martineau. Yes, I believe that was----
    Mr. Shimkus. That was the testimony, yes, sir.
    Mr. Cobb, as an experienced--I mean, back to you, Mr. 
Martineau. The draft legislation sets forth detailed federal 
requirements that would establish a baseline for coal ash 
management across the country. Do you believe the requirements 
set forth in the legislation will ensure that states develop 
effective environmental protective permit programs for coal ash 
management?
    Mr. Martineau. Yes, I believe they do. I think the 
discussion draft, the Senate version from last year covers the 
key elements of program for groundwater protection, for closure 
requirements, for structural integrity, and other requirements. 
And the thing it adds, which the Subtitle D program does not 
have, is that permitting program, and then it provides that 
states have to certify the completion of those requirements to 
EPA, and they can evaluate those.
    Mr. Shimkus. Thank you, and Mr. Cobb, I wanted to ask, as 
another experienced state regulator, do you think states are 
able to interpret the minimum program requirements in the bill 
to develop a permit program that is protective of human health 
and the environment?
    Mr. Cobb. Absolutely, Mr. Chairman. Quite frankly, that is 
what we do. We implement regulatory programs. We interpret----
    Mr. Shimkus. You mean, you can do it without the EPA coming 
in?
    Mr. Cobb. I have confidence that we can, yes.
    Mr. Shimkus. You are not so diligent--I mean, you are 
concerned about your state's citizens, and that is the job that 
you have, is that correct?
    Mr. Cobb. That is correct, because in addition to having 
the job of protecting human health and the environment, we also 
have the added incentive that we and or families and our 
friends live in these communities, so we have a vested 
interest.
    Mr. Shimkus. And if there is, obviously, abuse, which I 
think some people fear, don't you think that the public would 
be aghast and may want to take retribution on politicians and 
those who have been appointed as commissioners of the 
environmental activities and throw them out of office? That is 
a political question. The answer is I would hope that response 
would be much better and the public would be outraged.
    Ms. Bodine, when you were at the EPA, what was the 
prevailing view about coal ash regulation?
    Ms. Bodine. As I talked about in my testimony, EPA didn't 
stop looking at coal ash with the 2000 regulatory 
determination, because, in fact, the determination said that 
Subtitle D regulations were warranted. But as I pointed out in 
my written and in my oral statement, the agency didn't have a 
risk assessment to support regulation. So the agency--we 
continued to work on the risk assessment and we continue to 
gather information, and did a report, an updated report on 
practices in the industry with Department of Energy, and also 
received a petition from environmental groups, received a 
voluntary plan from the industry. And we had a lot of 
information and so we put out a notice of date availability in 
2007 to make sure that the public and everyone knew what 
information the agency had.
    In preparing to release that, the staff briefed me on all 
the information that we had and that the agency had, and 
recommending that it all be put into the public record, which 
is what we did. But in that briefing, the consensus of the 
staff was that certainly not Subtitle C regulation was 
warranted, and the question being raised was given, you know, 
the information that was being developed, whether even Subtitle 
D regulation was warranted.
    Mr. Shimkus. Great, thank you.
    Now I am going to get this correct. I would like to 
recognize the new vice chairman sitting in, Mr. Green, for 5 
minutes.
    Mr. Green. Thank you, Mr. Chairman. I am not vice chairman, 
in fact, this year--well, I am now because for the first time I 
can run the Democratic side. But last year I was ranking member 
on the subcommittee and learned much more about coal ash than I 
ever thought I would ever know. One of the--we drafted a 
similar bill that--and we got bipartisan support out of the 
House for--that said something similar to what this bill does, 
and I am hoping to be able to support it again, but I have some 
questions of each of you.
    For our state regulators, Mr. Cobb and Mr. Martineau, given 
your position, what do you think would be the consequences of 
having CCR program run through the EPA instead of the state-led 
program designed in the Majority discussion draft?
    Mr. Martineau. Well one, I think as Ms. Bodine has said, 
EPA has grappled with this for 30 years and not come up with 
any solution, and they are still grappling with it. They don't 
know if it belongs in Subtitle D. If it is a Subtitle C 
regulation, that would be a disaster. We will have chaos. We 
think the appropriate mechanism is, as the statute sets up for, 
that the states control, much like they do regulating landfills 
under Subtitle D. And the thing about the legislation is, we 
can move forward once it is passed, just begin that 
implementation at the state level.
    Mr. Green. Mr. Cobb?
    Mr. Cobb. Yes, and I would agree with Mr. Martineau's 
assessment there that one of the key differences is with the 
legislation, it addresses the policy issues, the other issues 
that have balled this whole issue up for 30 years. It charges 
the states with going forward with implementing a program, 
based on experience programs, so we get it implemented faster, 
we get the protections in place faster. It was mentioned 
earlier that it has been almost 5 years since Kingston. We 
still don't have a program in place.
    Mr. Green. Yes. I think, you know, one of my concerns is 
that--and again, I realize we had testimony last Congress that, 
for example, Wisconsin recycles 97 percent of their coal ash, 
and now-Senator Tammy Baldwin actually supported the bill in 
the subcommittee and the full committee and on the floor 
because of that, but we know we have some problems with coal 
ash. The issue of an old permit disposal in the Great Lakes I 
think needs to be dealt with, and the--but Mr. Martineau, one 
of the issues that brought coal ash up originally was the issue 
of the wet storage, and Tennessee had that disaster. Has there 
been anything Tennessee has done under current Tennessee law 
that would deal with the problems of the weak dams and so we 
wouldn't see that? Now we don't have that in Texas, but I know 
a lot of states still do have wet storage.
    Mr. Martineau. Well yes, and I think first to put it in 
context, that surface impoundment that was the main part of the 
issue at Kingston, you know, had been storing coal ash since 
the 1950s, so you know, there were no regulations, federal, 
state, local, any of those environmental statutes across the 
board, so there was a landfill. And we have gone back, 
obviously, after Kingston, and that was before my term as 
commissioner, but the regulations were upgraded after that to 
basically design would require new landfills to meet basically 
the Class II industrial landfill sites, which require--
collection, closure--cap closure like a traditional landfill. 
So yes, we definitely have upgraded the requirements----
    Mr. Green. So Tennessee has done that since that disaster?
    Mr. Martineau. Yes.
    Mr. Green. Were you able to deal with any of the previously 
impoundments? Do you have any authority to deal with, you know, 
a dam that may end up being weak and you get folks downstream 
to be concerned about it? Do you have the authority to be able 
to deal with that?
    Mr. Martineau. Yes, we did, and we ordered TVA to do 
assessments of all the other coal ash disposal sites at their 
various power plants, and with EPA we looked at those and 
certainly would have the authority to upgrade those. And as you 
said, now going forward, for the landfill they basically have 
to meet the Class II industrial landfill closure standards.
    Mr. Green. Ms. Evans, I know you may have an opinion on 
that. You know, I would like to see--you know, coming from 
Texas it seems like it is in our blood that the states ought to 
deal with it, but if we are not dealing with it, then you know, 
it becomes a national issue and in this case, EPA I think has 
the authority, unless we set up a different structure, and that 
is what this legislation is about. What is your opinion?
    Ms. Evans. Well, I think the states have the ability to 
deal with this, but they don't always have the will. I think 
Tennessee and Alabama are lessons to us. Of course, we had the 
disaster in Tennessee in 2008, but following that, the 
Tennessee legislature did not change their statutes to address 
the structural stability of dams, and so it remains that 
structural stability requirements are not specifically applied 
to coal ash dams. And this is after the biggest toxic waste 
spill in the Nation.
    Also, I would like to correct the record regarding the 
inspection of dams, specifically in Tennessee with TVA. When 
TVA inspected its dams, it found that half of them required 
repairs to ensure structural stability, and those repairs are 
underway or completed now. As far as the EPA inspections, there 
were urgent repairs that were noted in the inspection records. 
And in West Virginia, the West Virginia DEP inspected one dam 
where it was deemed unsatisfactory and needed urgent repair.
    So the longer I sit next to Mr. Spadaro and hear him talk 
about his experience and what is needed, and knowing what is 
not out there regarding coal ash dams, it certainly scares me 
about what the states have not done.
    Lastly, in the case of Alabama, Alabama did--the 
legislature did address coal ash in 2011; however, they did not 
institute any regulations for coal ash ponds. Most of the waste 
in Alabama, I believe, is disposed in coal ash ponds, not 
landfills. Alabama legislature made their landfill regulations 
stronger. They did not change regulations applicable to dams. 
So what we have got here are states that are not ready to jump 
on this problem, solve the issue of disposal, and we may have a 
delay at EPA, but I am convinced that we are going to have a 
delay in state legislatures. And being from the very liberal 
State of Massachusetts, we can't even get our gaps closed in 
the State of Massachusetts, which we have been trying literally 
for 10 years with the bill and the legislature.
    Mr. Green. I have to talk to our colleague, Mr. Markey, 
about that.
    Mr. Shimkus. That is right.
    Mr. Green. Thank you.
    Mr. Shimkus. And I would just note, Massachusetts is a 
member of ECOS. I would like to recognize Mr. Latta for 5 
minutes.
    Mr. Latta. Thank you very much, Mr. Chairman, and again, 
thanks to our panel for coming in today. We appreciate your 
testimony.
    If I could start with Ms. Bodine. Could I ask this question 
first? In your experience, what constitutes a standard of 
protection?
    Ms. Bodine. Thank you. This is a question that has been 
raised by CRS in the evaluation of legislation, and the CRS 
analyst appears to be saying that the only standard of 
protection that Congress can put forth is something like 
protection of human health and the environment. And that is 
simply not accurate. Congress can establish performance 
standards that are, in fact, standards of protection. And I 
also have to note that while many of the earliest environmental 
statutes did say to EPA go and protect human health and the 
environment, Congress hasn't passed legislation that is that 
open-ended in a very long time. And that spurs concerns on both 
sides of the issue. You have had people worried that the agency 
would go too far in that, and then people worry that the 
agency--giving the agency discretion to decide what is 
protecting human health and the environment, that they wouldn't 
go far enough. And so you have seen statutes that have 
prescriptive language, prescriptive standards. I would just 
point out the hazardous and solid waste amendments of 1984, 
Congress, at that time, decided they didn't like what the 
agency was doing to protect human health and the environment 
from hazardous wastes, and put in, you know, very prescriptive 
technical requirements into the statute.
    So yes, you can have technical criteria that are 
performance criteria, and that is a standard of protection. And 
that is in the draft legislation.
    Mr. Latta. Let me follow up with that. Do states also 
establish standard of protections for statutes, regulations, 
and programs that they implement?
    Ms. Bodine. So the answer to that is, of course, yes. I 
could defer to my state colleagues here, but I would just point 
out that they have been doing this for years. The states 
regulate far more than the Federal Government regulates. They 
have state solid waste management programs, beneficial use 
programs. They regulate more waste as hazardous than the 
Federal Government has, and of course, there is also regulation 
of coal ash. So in many areas, in many programs, states are 
establishing and implementing their own protective standards.
    Mr. Latta. Thank you.
    Mr. Martineau, let me ask this question. Mr. Stanislaus 
stated in his written testimony the timelines for development 
and implementation of state programs are necessary. Would the 
states be open to a reasonable implementation schedule?
    Mr. Martineau. Yes, I think that certainly makes sense to 
provide time for the states to pass legislation, adopt rules, 
whatever they need at the state level to get that permit 
program up and running or anything like that would make sense, 
and then the statute already had certain timelines in there for 
when you do the groundwater monitoring requirements or when the 
thing has to be upgraded by a certain date or closed by a 
certain date. So those kinds of schedules all make sense.
    Mr. Latta. Thank you.
    Mr. Cobb, same question.
    Mr. Cobb. Yes, I believe that we would be very amenable to 
that kind of thing, particularly for the operational 
requirements which can be implemented almost immediately or on 
an accelerated schedule and get the protections in place 
earlier. The more design-related considerations, in my opinion, 
would need to wait on the permits because that is changing the 
very fabric of how the units are built, and we need to make 
sure those standards are right before a facility begins 
constructing, so that they construct it properly.
    Mr. Latta. Let me ask a follow-up on that then. What would, 
you know, a timeframe could the states live with if there were 
a deadline for issuance of permits? Mr. Cobb?
    Mr. Cobb. Based on our evaluation of the universe that we 
have in Alabama where we know we have at least nine large 
facilities that will require permitting, looking at our current 
workloads and everything, we believe that 3 to 4 years after 
applications are submitted we will be able to have all of our 
permits in place.
    Mr. Latta. And Mr. Martineau, can I ask you the same 
question?
    Mr. Martineau. Yes, and I certainly can't speak for all the 
states on that, but I would think 2 years to set up the permit 
program, adopt any state rules that are needed through the 
state rulemaking process or legislative approvals, and then 
some period of time, 2 to 4 years, to get the permits in place 
probably makes sense, would be about right.
    Mr. Latta. Thank you.
    Mr. Chairman, I yield back the balance of my time.
    Mr. Shimkus. Gentleman yields back his time.
    Chair now recognizes the gentleman from West Virginia, Mr. 
McKinley, for 5 minutes.
    Mr. McKinley. Thank you, Mr. Chairman. I have a whole host 
of questions here, but I think if we can focus in on Mr. 
Spadaro, please, if we could. I wonder if I didn't--maybe 
because of my hearing problem, maybe you misspoke or I 
misheard, because in your opening statement you made something 
about challenging the structural integrity, you thought that it 
was only to meet good community standards. Do you remember 
saying that?
    Mr. Spadaro. I think--can you hear me now?
    Mr. McKinley. Yes.
    Mr. Spadaro. In the----
    Mr. McKinley. Is that a yes or a no? Did you say--I think 
you said good community standards.
    Mr. Spadaro. I said good engineering standards.
    Mr. McKinley. Yes, good engineering standards, and that is 
fairly typical with the industry. If you are--you understand 
that, I mean, that people use good engineering practices 
because it falls under--but let me go back to more--you are a 
licensed engineer?
    Mr. Spadaro. No, I worked at the Federal Government for 30 
years, but I ran the Dam Control Division----
    Mr. McKinley. That is oK, so you are not a licensed 
engineer. A couple things in your testimony that--in your 
written testimony I found curious. You made a couple 
statements, and just for the record, I would like to make sure 
that they are correct, because you are testifying before 
Congress. You said that the Robinson Run mine was utilized as a 
disposal for coal ash. You know that is false?
    Mr. Spadaro. No, that is not false. There are--I am sorry, 
sir. It was used for disposal from both the power plant and the 
coal preparation----
    Mr. McKinley. For slurry. Not coal ash, slurry.
    Mr. Spadaro. For slurry, and that is coal ash that is 
delivered to the reservoir on the form of slurry, sir.
    Mr. McKinley. I hope that you will be--apparently you will 
be under oath when----
    Mr. Spadaro. Yes, I am under oath, and I understand that it 
was delivered in the form of slur.
    Mr. McKinley. They are not--it was not used for coal ash.
    Secondly----
    Mr. Spadaro. I am sorry, but it was a coal ash----
    Mr. Shimkus. Would the gentleman suspend? The time is the 
gentleman from West Virginia.
    Mr. McKinley. You also said that--by implying, you said 
that 25 percent of the dams were in poor condition, but the 
reality in conversation with EPA that the EPA said that just 
because they are classified as poor does not mean that they are 
unsafe. It just means that they are not meeting certain 
guidelines in terms of studies of paper evaluation. So let's 
just make sure we understand, the 25 percent that are labeled 
as poor are not unsafe, they just have not met all the 
criteria.
    Mr. Spadaro. I disagree with that statement.
    Mr. McKinley. Well, you can, and you are disagreeing with 
the EPA then.
    Mr. Spadaro. Yes.
    Mr. McKinley. So also in regards to--you are aware that the 
Federal Government inspects dams. If they have any concern, 
they inspect them every 7 days, according to the federal 
regulations. Are you aware of that?
    Mr. Spadaro. They are required--the dams are required to be 
inspected by the mine operator every 7 days.
    Mr. McKinley. And the--in West Virginia, you have all our 
coal impoundments, they fall under the Office of Surface 
Mining, MSHA, that you were involved with, and also the state 
DEP have inspections. It is done monthly, those inspections, so 
I do appreciate the fact that you were involved once as an 
engineer. I think you are out of touch----
    Mr. Spadaro. No, sir, I have been regulating dams my whole 
career, and when I worked with the Office of Surface Mining, I 
wrote the federal regulations that are in this book. I wrote 
them in 1978. They are still in effect, and I have been 
enforcing those regulations----
    Mr. McKinley. You list yourself, sir, as--on your resume as 
the Engineer of the Year in 1993.
    Mr. Spadaro. I was by the National Society of Professional 
Engineers.
    Mr. McKinley. We talked to them today and they said they 
have no record of that.
    Mr. Spadaro. Well I am sorry, but I did receive it and I 
have the certificate to prove it.
    Mr. McKinley. If you could, I would like to see that if you 
could submit that for the record, because in 1993, there is no 
such thing, first, as the Engineer of the Year.
    Mr. Spadaro. I was with the Federal Government----
    Mr. McKinley. Federal engineer, but that wasn't awarded to 
you unless you were the engineer--were you in the Air Force at 
the time?
    Mr. Spadaro. No, I was working----
    Mr. McKinley. Because that is where it went in 1993. The 
Federal Engineer of the Year was an engineer in the Air Force, 
so----
    Mr. Spadaro. Listen. I was awarded that award as an 
employee of the Federal Department of the Interior in 1993 by 
the National Society of Professional Engineers, and there was 
an award ceremony, sir.
    Mr. McKinley. If you would send that certificate in, I 
would like to see that and share it with the NSPE, because they 
have no record of you. You are not licensed in West Virginia, 
you are not licensed in Kentucky, but you are acting as though 
you are an engineer.
    Mr. Spadaro. I have been qualified as an expert on dam 
safety in six federal courts in the past 30 years, and I am 
qualified every day in federal and state courts as an expert in 
dam----
    Mr. McKinley. I think the record shows that you are not a 
licensed engineer, and secondly, I agree with everything that 
has been said about the concern about the dam safety, and I 
think people have moved--what you discovered in '72 or '75, 
that is yesterday.
    Mr. Spadaro. I investigated----
    Mr. McKinley. Actually moving in a way that we go ahead, 
and I am really glad to hear that there are other people--that 
we are moving on it, that there have been improvements with 
those standards and we can continue to do that. But some of the 
record that you are testifying to, that you are representing, 
is just factually incorrect.
    Mr. Spadaro. That is not true. Everything I have said in my 
testimony is factually correct, and I have done dam safety 
investigations as recently as last year.
    Mr. McKinley. I look forward to your testimony on the 
Robinson Run when they determine that it did not include fly 
ash.
    Apparently my time has run out, so I have to end at that. I 
yield back my time.
    Mr. Shimkus. Gentleman's time is expired.
    Chair now recognizes the gentleman from Mississippi, Mr. 
Harper, for 5 minutes.
    Mr. Harper. Thank you, Mr. Chairman, and thank each of you 
for being here and sharing your views on this very important 
issue to us, and if I may, is it Ms. Bodine or Bodine?
    Ms. Bodine. Bodine, thank you.
    Mr. Harper. Bodine, thank you very much. Ms. Bodine, would 
you consider authority in the legislation for EPA to analyze at 
any time state permit programs and find programs deficient if 
they do not meet the minimum requirements of the federal 
backstop?
    Ms. Bodine. Yes, I would consider that to be backstop 
authority. The way the proposed legislation, the draft 
legislation works is that EPA has the authority to evaluate the 
state programs and then if they are deficient, has the 
authority to then implement a federal permitting program in 
lieu of the state program, and that is a backstop.
    Mr. Harper. OK. The legislation sets out a detailed list of 
criteria that states must include in their permit programs. Is 
this approach completely unprecedented, or when has it been 
done before?
    Ms. Bodine. So--and I talked a little about this earlier. 
The fact that Congress can set up in federal law specific 
criteria is not unprecedented, and again, has been done with 
very detailed statutory language in the hazardous waste context 
where Congress was setting out minimum technology requirements, 
indeed specifying the number of liners, for example, that would 
be--and that is all in federal statute, so the fact that you 
would have federal criteria established in federal law is not 
unprecedented.
    Mr. Harper. OK, thank you.
    Mr. Cobb, how long have you been regulating solid and 
hazardous waste?
    Mr. Cobb. For 25 years.
    Mr. Harper. Based on that experience, those 25 years, does 
the legislation contain all of the necessary technical elements 
needed to establish a protective permit program?
    Mr. Cobb. Yes, sir, I believe it does because based on my 
experience both in hazardous waste and in solid waste, 
primarily in hazardous waste, going through the legislation, it 
appears to contain the things that we would need to be able to 
have a protective regulatory program.
    Mr. Harper. OK. Do you believe that the legislation allows 
states the latitude to go beyond the federal standards?
    Mr. Cobb. Absolutely. As I read the legislation, there is 
clearly the provision that allows states to go beyond the 
minimum national requirements.
    Mr. Harper. Now, would the legislation result in states 
developing or revising requirements for CCR management that 
would go beyond current waste management requirements?
    Mr. Cobb. Well, I can only speak for Alabama, but 
certainly, because as has been pointed out, we have only 
recently been able to regulate CCRs, so what we will be putting 
in place as a result of this legislation or EPA rules or 
whatever comes out, will certainly go far beyond what we have 
done in the past, and I would be very surprised, based on my 
experience in discussions with other states, if there would be 
any state that would not have to do some expansion of their 
programs beyond the current status.
    Mr. Harper. And I think you have answered it, but just so 
that I am sure, so would Alabama have to develop new 
requirements or make changes to existing requirements that may 
apply to coal ash?
    Mr. Cobb. Yes, sir. We have already incorporated coal ash 
into our landfill program, but we will have to add 
requirements, particularly for surface impoundments, for 
structural integrity, for any other units, and that is what we 
are ready to do. We are waiting on to see what the national 
requirement is to know how to put those in place so that we can 
do it, and we are ready to do it now.
    Mr. Harper. I yield back.
    Mr. Shimkus. Gentleman yields back his time. Chair now 
recognizes the gentleman from Florida, Mr. Bilirakis, for 5 
minutes.
    Mr. Bilirakis. Thank you, Mr. Chairman. I appreciate it.
    Mr. Cobb, a criticism of the legislation is that the 
flexibility in the bill would allow states to define what 
constitutes CCR landfill, surface impoundment, or other land-
based unit to define what specific CCR structures state program 
conditions would be applied to. Why is it a good approach?
    Mr. Cobb. Sir, I believe that this is a good approach 
because it allows states the flexibility to tailor the 
regulations to what exists in their state. It allows us to make 
sure that the regulations are better responsive to individual 
state conditions, to state geology, to state climate in a way 
that often cannot be done with strictly rigid, uniform national 
requirements. It goes to the part of states being more 
stringent, of states having additional requirements. We need 
that ability to tailor the regs to make sure we can address 
what is in our state.
    Mr. Bilirakis. Thank you.
    Ms. Bodine suggests that these terms are well understood as 
the RCRA regulation content. Do you agree?
    Mr. Cobb. Yes, I would definitely agree with that. The 
terms such as landfill surface impoundment, land disposal unit, 
are used in all of the waste programs and regulations, and one 
of the things that you can take comfort in is we are 
regulators. As regulators, we like to have consistent 
definitions. We like to have consistency, because it enables us 
to regulate better and more consistently across programs. So 
yes, I believe that these terms are well understood and will be 
well represented.
    Mr. Bilirakis. Thank you very much.
    Ms. Bodine, based on your experience, would the approach 
set out in the discussion be successful at creating state 
permit programs that protect human health and the environment?
    Ms. Bodine. I believe so, yes.
    Mr. Bilirakis. Do you want to elaborate a little bit on it?
    Ms. Bodine. I think that this may be the only way that we 
are going to get, you know, standards for coal ash across the 
country is through legislation, and that this is the--not only 
will it be successful, it may be the only avenue for success, 
and that goes back to my earlier discussion about the fact that 
EPA has not been able to create the record and have a risk 
assessment that justifies regulation, and so Congress can step 
in and say as a matter of policy and as a matter of 
congressional prerogatives, that they are going to set up a 
federal program. The legislation does that. We have heard from 
the state regulators saying yes, it has all the elements. Yes, 
we can implement it. And so now it is just a matter of getting 
it done, of having Congress act.
    Mr. Bilirakis. Very good. Thank you very much.
    I yield back, Mr. Chairman.
    Mr. Shimkus. Gentleman yields back his time.
    We want to thank this panel for coming and giving their 
testimony. I would like unanimous consent to submit three 
letters into the record--actually, four statements. Two letters 
from professional engineering firms regarding the appropriate 
dam safety standards for coal ash impoundments, one letter from 
a beneficial user, the Portland Cement Association, and a 
submission for testimony from the representative from North 
Dakota, Congressman Cramer.
    [The information apears at the conclusion of the hearing.]
    Mr. Shimkus. Without objection, so ordered, and the hearing 
is now adjourned.
    [Whereupon, at 12:58 p.m., the subcommittee was adjourned.]
    [Material submitted for inclusion in the record follows:]


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