[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
EPA'S 2014 FINAL RULE: DISPOSAL OF COAL
COMBUSTION RESIDUALS FROM ELECTRIC UTIL-
ITIES
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY
OF THE
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
JANUARY 22, 2015
__________
Serial No. 114-3
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Printed for the use of the Committee on Energy and Commerce
energycommerce.house.gov
_______________
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COMMITTEE ON ENERGY AND COMMERCE
FRED UPTON, Michigan
Chairman
JOE BARTON, Texas FRANK PALLONE, Jr., New Jersey
Chairman Emeritus Ranking Member
ED WHITFIELD, Kentucky BOBBY L. RUSH, Illinois
JOHN SHIMKUS, Illinois ANNA G. ESHOO, California
JOSEPH R. PITTS, Pennsylvania ELIOT L. ENGEL, New York
GREG WALDEN, Oregon GENE GREEN, Texas
TIM MURPHY, Pennsylvania DIANA DeGETTE, Colorado
MICHAEL C. BURGESS, Texas LOIS CAPPS, California
MARSHA BLACKBURN, Tennessee MICHAEL F. DOYLE, Pennsylvania
Vice Chairman JANICE D. SCHAKOWSKY, Illinois
STEVE SCALISE, Louisiana G.K. BUTTERFIELD, North Carolina
ROBERT E. LATTA, Ohio DORIS O. MATSUI, California
CATHY McMORRIS RODGERS, Washington KATHY CASTOR, Florida
GREGG HARPER, Mississippi JOHN P. SARBANES, Maryland
LEONARD LANCE, New Jersey JERRY McNERNEY, California
BRETT GUTHRIE, Kentucky PETER WELCH, Vermont
PETE OLSON, Texas BEN RAY LUJAN, New Mexico
DAVID B. McKINLEY, West Virginia PAUL TONKO, New York
MIKE POMPEO, Kansas JOHN A. YARMUTH, Kentucky
ADAM KINZINGER, Illinois YVETTE D. CLARKE, New York
H. MORGAN GRIFFITH, Virginia DAVID LOEBSACK, Iowa
GUS M. BILIRAKIS, Florida KURT SCHRADER, Oregon
BILL JOHNSON, Ohio JOSEPH P. KENNEDY, III,
BILLY LONG, Missouri Massachusetts
RENEE L. ELLMERS, North Carolina TONY CARDENAS, California
LARRY BUCSHON, Indiana
BILL FLORES, Texas
SUSAN W. BROOKS, Indiana
MARKWAYNE MULLIN, Oklahoma
RICHARD HUDSON, North Carolina
CHRIS COLLINS, New York
KEVIN CRAMER, North Dakota
7_____
Subcommittee on Environment and the Economy
JOHN SHIMKUS, Illinois
Chairman
GREGG HARPER, Vice Chairman PAUL TONKO, New York
Vice Chairman Ranking Member
ED WHITFIELD, Kentucky KURT SCHRADER, Oregon
JOSEPH R. PITTS, Pennsylvania GENE GREEN, Texas
TIM MURPHY, Pennsylvania DIANA DeGETTE, Colorado
ROBERT E. LATTA, Ohio LOIS CAPPS, California
DAVID B. McKINLEY, West Virginia MICHAEL F. DOYLE, Pennsylvania
BILL JOHNSON, Ohio JERRY McNERNEY, California
LARRY BUCSHON, Indiana TONY CARDENAS, California
BILL FLORES, Texas FRANK PALLONE, Jr., New Jersey
RICHARD HUDSON, North Carolina
KEVIN CRAMER, North Dakota
FRED UPTON, Michigan, ex officio
(ii)
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.................................... 4
Prepared statement........................................... 6
Hon. Fred Upton, a Representative in Congress from the State of
Michigan, opening statement.................................... 6
Prepared statement........................................... 7
Hon. Frank Pallone, Jr., a Representative in Congress from the
State of New Jersey, opening statement......................... 9
Witnesses
Hon. Mathy Stanislaus, Assistant Administrator, Office of Solid
Waste and Emergency Response, Environmental Protection Agency.. 10
Prepared statement........................................... 13
Answers to submitted questions............................... 131
Thomas Easterly, Commissioner, Indiana Department of
Environmental Management....................................... 41
Prepared statement........................................... 44
Michael G. Forbeck, Environmental Program Manager, Bureau of
Waste Management, Pennsylvania Department of Environmental
Protection..................................................... 53
Prepared statement........................................... 55
Lisa D. Johnson, Chief Executive Officer and General Manager,
Seminole Electric Cooperative, Inc............................. 61
Prepared statement........................................... 63
Thomas H. Adams, Executive Director, American Coal Ash
Association.................................................... 70
Prepared statement........................................... 72
James R. Roewer, Executive Director, Utilities Solid Waste
Activities Group............................................... 78
Prepared statement........................................... 80
Answers to submitted questions............................... 149
Eric Schaeffer, Director, Environmental Integrity Project........ 86
Prepared statement........................................... 88
Frank Holleman, Senior Attorney, Southern Environmental Law
Center......................................................... 95
Prepared statement........................................... 97
Submitted Material
Letter of January 22, 2015, from Elizabeth R. Beardsley, Senior
Policy Counsel, U.S. Green Building Council, to Mr. Shimkus and
Mr. Tonko, submitted by Mr. Shimkus............................ 115
Letter of January 22, 2015, from Glynnis Collins, Executive
Director, Prairie Rivers Network, to Mr. Shimkus and Mr. Tonko,
submitted by Mr. Shimkus....................................... 117
Statement of American Forest & Paper Association, January 22,
2015, submitted by Mr. Harper.................................. 129
EPA'S 2014 FINAL RULE: DISPOSAL OF COAL COMBUSTION RESIDUALS FROM
ELECTRIC UTILITIES
----------
THURSDAY, JANUARY 22, 2015
House of Representatives,
Subcommittee on Environment and the Economy,
Committee on Energy and Commerce,
Washington, DC.
The subcommittee met, pursuant to call, at 10:00 a.m., in
room 2123, Rayburn House Office Building, Hon. John Shimkus
(chairman of the subcommittee), presiding.
Members present: Representatives Shimkus, Harper, Murphy,
Latta, McKinley, Johnson, Bucshon, Flores, Hudson, Cramer,
Upton (ex officio), Tonko, Schrader, Green, Doyle, McNerney,
Cardenas, and Pallone (ex officio).
Staff present: Nick Abraham, Legislative Clerk; Charlotte
Baker, Deputy Communications Director; Sean Bonyun,
Communications Director; Leighton Brown, Press Assistant; Jerry
Couri, Senior Environmental Policy Advisor; Brad Grantz, Policy
Coordinator, Oversight and Investigations; Charles Ingebretson,
Chief Counsel, Oversight and Investigations; Dave McCarthy,
Chief Counsel, Environment and the Economy; Tina Richards,
Counsel, Environment; Chris Sarley, Policy Coordinator,
Environment and the Economy; Jean Woodrow, Director of
Information Technology; Joe Banez, Democratic Policy Analyst;
Jeff Carroll, Democratic Staff Director; Jacqueline Cohen,
Democratic Senior Counsel; Tiffany Guarascio, Democratic Deputy
Staff Director and Chief Health Advisor; Ryan Schmidt,
Democratic EPA Detailee.
Mr. Shimkus. We want to call the hearing to order.
And I would like to recognize myself for 5 minutes for an
opening statement.
OPENING STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ILLINOIS
We welcome each of our witnesses and appreciate your
willingness to be here today to talk about the final coal ash
rule released by EPA in December.
We are eager to hear from the administration. We hope Mr.
Stanislaus will be able to provide some clarification about the
implementation of the final rule and, also, answer some
questions and address some concerns.
We will hear from a number of stakeholders regarding their
initial impressions of the final rule and any concerns they may
have, and we will also discuss the final rule in comparison to
the legislation we considered through this committee to the
floor of the House the last couple of Congresses.
First, I would like to commend the EPA for getting the
final rule out in time to meet the court-ordered deadline.
Weighing in at over 700 pages, I am sure that that was no small
undertaking.
I would also like to acknowledge that, in finalizing the
rule, the Agency faced a genuine dilemma, create an enforceable
permit program for coal ash under subtitle C and designate coal
ash as a hazardous waste or promulgate self-implementing
standards for managing coal ash as nonhazardous waste under
subtitle D.
I am pleased to note that EPA chose to regulate coal ash
under subtitle D, which will help ensure that coal ash
continues to be beneficially reused like this.
However, because of the way subtitle D is currently
drafted, EPA did not have the authority it needed to create a
permit program for coal ash.
Instead, the final rule lays out an entirely self-
implementing program that will be enforced through citizen
suits and will unavoidably lead to an unpredictable array of
regulatory interpretations as judges throughout the country are
forced to make extremely technical compliance decisions that
would be better left to a regulatory agency.
The final rule also sets up a dual regulatory program. EPA
strongly encourages--and I quote--``for States to incorporate
the requirements into their solid waste management plan.''
However, as currently drafted, RCRA does not allow State
coal ash programs to operate in lieu of the Federal
requirements in the final rule, meaning, even if States adopt
the Federal requirements or requirements that are more
stringent, the Federal requirements remain in place and
utilities must comply with both the State and Federal
requirements.
There are some other provisions in the rule that are
potentially troublesome and that we hope to discuss today,
including the retroactive application of location or siting
restrictions and the requirements that unlined impoundments
that exceed a groundwater protection standard close with no
opportunity to remedy the problem through corrective action.
Last, but not least, EPA has removed the flexibility of the
correction action program as it exists for other programs under
subtitle D. It is understandable that the Agency may feel the
need to tighten certain restrictions because the rule is self-
implementing.
However, by removing flexibility regarding the boundary
which compliance must be demonstrated and flexibility to
determine the appropriate cleanup levels and eliminating cost
as a factor that can be considered in completing corrective
action, the final rule jeopardizes the future of risk-based
cleanup decisions at coal ash disposal units.
The removal of this flexibility also creates uncertainty
with respect to ongoing cleanups at coal ash disposal
facilities.
While we acknowledge the amount of time and effort EPA put
into drafting the final rule, because of the significant
limitations of the rule, we still believe that a legislative
solution might be required that would set minimum Federal
standards and allow States to develop enforceable permit
programs to implement the standards, which we think could still
be the best approach in dealing with coal ash.
I can assure you that we intend to be thoughtful with
respect to the requirements in the final rule and how they
differ from the legislation that we moved through this
committee and the House during the last Congress, and we will
update the legislation as necessary.
As Mr. Stanislaus pointed out when he spoke with us last
time, there are some important issues that our previous bills
did not address, in particular, regulation of inactive
impoundments. We will address these units as we move forward.
I would like to thank the administration for all the
cooperation we have received to date on this issue. EPA has
been constructive and helpful both with our legislative efforts
during the last Congress and recently as we worked through the
issues with the final rule. We appreciate all our witnesses for
being here.
I would also thank Mr. McKinley, who has been a driving
force behind moving this legislation and for his continued
leadership on this issue.
And I would like to express my appreciation for fellow
committee Members for sticking with us as we continue to push
forward to ensure that effective regulation of coal ash.
[The prepared statement of Mr. Shimkus follows:]
Prepared statement of Hon. John Shimkus
We welcome each of our witnesses and appreciate your
willingness to be here today to talk about the final coal ash
rule released by EPA in December. We are eager to hear from the
administration and we hope that Mr. Stanislaus will be able to
provide some clarification about the implementation of the
final rule and also answer some questions and address some
concerns. We will hear from a number of stakeholders regarding
their initial impressions of the final rule and any concerns
they may have and we will also discuss the final rule in
comparison to the legislation considered by the committee in
the last two Congresses.
First, I would like to commend EPA for getting the final
rule out in time to meet the court-ordered deadline--weighing
in at over 700 pages, I am sure that was no small undertaking.
I would also like to acknowledge that in finalizing the rule
the Agency faced a genuine dilemma: create an enforceable
permit program for coal ash under Subtitle C and designate coal
ash as a hazardous waste, or promulgate selfimplementing
standards for managing coal ash as a non-hazardous waste under
Subtitle D. I am pleased to note that EPA chose to regulate
coal ash under Subtitle D which will help ensure that coal ash
continues to be beneficially reused. However, because of the
way Subtitle D is currently drafted, EPA did not have the
authority it needed to create a permit program for coal ash.
Instead, the final rule lays out an entirely self-implementing
program that will be enforced through citizen suits and will
unavoidably lead to an unpredictable array of regulatory
interpretations, as judges throughout the country are forced to
make extremely technical compliance decisions that would be
better left to a regulatory agency.
The final rule also sets up a dual regulatory program. EPA
``strongly encourages'' the States to incorporate the
requirements into their solid waste management plans. However,
as currently drafted, RCRA does not allow State coal ash
programs to operate in lieu of the Federal requirements in the
final rule. Meaning, even if States adopt the Federal
requirements or requirements that are more stringent, the
Federal requirements remain in place and utilities must comply
with both the State and Federal requirements.
There are some other provisions in the final rule that are
potentially troublesome and that we hope to discuss today,
including the retroactive application of location or siting
restrictions and the requirement that unlined impoundments that
exceed a groundwater protection standard close with no
opportunity to remedy the problem through corrective action.
Last but not least, EPA has removed the flexibility of the
corrective action program as it exists for other programs under
Subtitle D. It is understandable that the Agency may feel the
need to tighten certain restrictions because the rule is self-
implementing. However, by removing flexibility regarding the
boundary within which compliance must be demonstrated and
flexibility to determine the appropriate cleanup levels, and
eliminating cost as a factor that can be considered in
completing corrective action--the final rule jeopardizes the
future of risk-based cleanup decisions at coal ash disposal
units. The removal of this flexibility also creates uncertainty
with respect to ongoing cleanups at coal ash disposal
facilities.
While we acknowledge the amount of time and effort EPA put
into drafting the final rule, because of the significant
limitations of the rule we still believe that a legislative
solution that sets out minimum Federal requirements and allows
the States to develop enforceable permit programs to implement
the standards, is the best approach to dealing with the
regulation of coal ash. I can assure you that we intend to be
thoughtful with respect to the requirements in the final rule
and how they differ from the legislation that we moved through
this committee and the House during the last Congress and we
will update the legislation as necessary. As Mr. Stanislaus
pointed out when he spoke with us last time, there are some
important issues that our previous bills did not address--in
particular, regulation of inactive impoundments--we will
address these units as we move forward.
I would like to thank the administration for all of the
cooperation we have received to date on this issue. EPA has
been constructive and helpful both with our legislative efforts
during the last Congress and recently as we work through the
issues with the final rule. We appreciate all of our witnesses
for being here, I would like to thank Mr. McKinley for his
continued leadership on this issue, and I would like to express
my appreciation to my fellow committee members for sticking
with us as we continue to push forward to ensure the effective
regulation of coal ash.
Mr. Shimkus. With that, I yield back my time.
And I recognize Mr. Tonko, the ranking member of the
subcommittee, for 5 minutes.
OPENING STATEMENT OF HON. PAUL TONKO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEW YORK
Mr. Tonko. Thank you, Chair Shimkus.
And on the outset, let me just indicate how pleased I am to
be able to work as ranking member on this subcommittee with
you. I appreciate the fact that our respective parties have
asked us to lead the efforts with what I think is very
important work that comes under the overview of this
subcommittee.
So I believe we will have a very productive session, and I
look forward to it. So congratulations on your continued
leadership.
Good morning. And, again, thank you, Chair Shimkus, for
holding this hearing on the Environmental Protection Agency's
final rule to establish minimum national standards for the
disposal of coal ash.
Over the years, communities have been subjected to risks
due to air and water pollution associated with inadequate
management of coal ash disposal. Spills resulting from coal ash
impoundment failures have polluted water supplies, destroyed
private and public properties, and resulted in lengthy and
expensive cleanup efforts. I am certain that the residents of
these unfortunate communities feel this rule is long overdue.
EPA is to be commended for its extensive process of public
engagements on this issue. The Agency sorted through over
450,000 public statements submitted during the public comment
period on the rule and held eight public hearings in
communities across our country.
EPA's rule is responsive to industry concerns that
classifying coal ash as hazardous waste would harm coal ash
recycling efforts that utilize coal ash in new materials and
new products, and it is responsive to the concerns of public
health and environmental advocates because, for the first time,
we have Federal standards for coal ash disposal sites that will
set a floor of protection for all communities.
Of course, the rule from either vantage point is not
perfect. Given the disparate opinions on what would constitute
appropriate Federal regulation of coal ash disposal, that is
not too surprising.
The rule has quieted the debate on this issue somewhat.
But, of course, there are still differing opinions about how
coal ash should be classified and regulated, and we will hear
some of these opinions here today.
I would have preferred to see a stronger regulation, given
the substantial risks and tremendous damage and cost of recent
spills, especially the one experienced in Tennessee in 2008.
But with this rule in place, States and utilities can begin to
address deficiencies in disposal operations. Communities will
gain access to information about coal ash disposal facilities
and have a benchmark from which to compare performance against
expectations.
Now that the rule is final, the work of implementation
begins. Ultimately, that is the only real test of whether this
rule takes the correct approach or not, and it will take some
time to evaluate whether its implementation will achieve the
goals of safe management of coal ash disposal. I believe it is
this subcommittee's job to continue in its oversight of this
issue and others going forward.
We will have witnesses today who will advocate for changes
to this regulation or to the underlying law, and I think that
either approach is premature. I would observe that changes in
regulation or in law do indeed take a long time and hitting the
restart button now would only lead to continued uncertainty and
risk. We have had far too much of those already.
This rule was years in the making. And, as I said earlier,
I would have preferred to see a stronger regulation, but I am
not willing to second-guess an approach that has yet to be
implemented or evaluated and one that rests on the extensive
public engagement and negotiating process and years of work
invested by the interested parties and the Agency. This rule
should move forward. We should give this approach an
opportunity to work and monitor it closely to evaluate its
effectiveness.
So let's get on with it. As we go forward, we will see how
well this approach works. We certainly retain all options for
action if it does not.
I thank all of our witnesses for appearing today and for
their invaluable contributions to the public process that moved
this rule forward.
Again, I thank our chair, Chair Shimkus, for calling this
important hearing. I look forward to working with you on this
issue and the other issues in this jurisdiction of our
subcommittee as we begin our work in this 114th Congress.
And, with that, I yield back.
[The prepared statement of Mr. Tonko follows:]
Prepared statement of Hon. Paul Tonko
Good morning and thank you, Chairman Shimkus for holding
this hearing on the Environmental Protection Agency's final
rule to establish minimum national standards for the disposal
of coal ash.
Over the years, communities have been subjected to risks
due to air and water pollution associated with inadequate
management of coal ash disposal. Spills resulting from coal ash
impoundment failures have polluted water supplies, destroyed
private and public property, and resulted in lengthy and
expensive clean-up efforts. I am certain the residents of these
unfortunate communities feel this rule is long overdue.
EPA is to be commended for their extensive process of
public engagement on this issue. The Agency sorted through over
450,000 public submitted during the public comment periods on
the rule and held eight public hearings in communities across
the country.
EPA's rule is responsive to industry concerns that
classifying coal ash as hazardous waste would harm coal ash
recycling efforts that utilize coal ash in new materials and
products. And, it is responsive to the concerns of public
health and environmental advocates. Because, for the first
time, we have Federal standards for coal ash disposal sites
that will set a floor of protection for all communities.
Of course, the rule from either vantage point is not
perfect. Given the disparate opinions on what would constitute
appropriate Federal regulation of coal ash disposal, that is
not too surprising. The rule has quieted the debate on this
issue somewhat, but of course there are still differing
opinions about how coal ash should be classified and regulated.
And, we will hear some of these opinions today.
I would have preferred to see a stronger regulation given
the substantial risks and tremendous damage and costs of recent
spills, especially the one experienced in Tennessee in 2008.
But, with this rule in place States and utilities can begin to
address deficiencies in disposal operations. Communities will
gain access to information about coal ash disposal facilities
and have a benchmark from which to compare performance against
expectations.
Now that the rule is final, the work of implementation
begins. Ultimately, that is the only real test of whether this
rule takes the correct approach or not. And, it will take some
time to evaluate whether its implementation will achieve the
goals of safe management of coal ash disposal. I believe it is
this subcommittee's job to continue in its oversight of this
issue going forward.
We will have witnesses today who will advocate for changes
to this regulation or to the underlying law. I think either of
these actions is premature. I would observe that changes in
regulation or in law take a long time. And, hitting the restart
button now will only lead to continued uncertainty and risk. We
have had far too much of those already.
This rule was years in the making. As I said earlier, I
would have preferred to see a stronger regulation. But I am not
willing to second guess an approach that has yet to be
evaluated. And one that rests on the extensive public
engagement and negotiation process and years of work invested
by the interested parties and the Agency. This rule should move
forward. We should give this approach an opportunity to work
and monitor it closely to evaluate its effectiveness.
So, let's get on with it. As we go forward we will see how
well this approach works. We certainly retain all options for
action if it does not.
I thank all our witnesses for appearing today and for their
invaluable contributions to the public process that moved this
rule forward. And, thank you again, Chairman Shimkus for
calling this important hearing. I look forward to working with
you on this issue and the other issues in the jurisdiction of
our subcommittee as we begin our work in the 114th Congress.
Mr. Shimkus. I want to thank my colleague for his kind
words.
And now I would like to yield 5 minutes to the chairman of
the full committee, Mr. Upton.
OPENING STATEMENT OF HON. FRED UPTON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MICHIGAN
Mr. Upton. Thank you, Mr. Chairman.
Today our multiyear quest to solve the coal ash issue
continues in this new Congress. And I want to particularly
thank all of our witnesses for appearing today and welcome back
a frequent guest, EPA Assistant Administrator Stanislaus.
You have worked, clearly, long and hard on coal ash and
have always engaged with us very constructively, and we
appreciate that.
Navigating this issue is a tough job and, in our view, much
more difficult by gaps in current law. Most of us can agree
that coal ash does not warrant regulation as a hazardous
material, and I am glad that EPA agrees. But there is no
authority in the law that allows for a State-based permitting
program for nonhazardous waste.
When the Federal court set a December 2014 deadline for EPA
to publish a final rule for coal ash, we looked at the legal
constraints and questioned whether EPA's rule would be the last
word on the subject.
We, along with some of the witnesses who we will hear from
today, are still asking the same thing, and we are left even
with more questions: If we don't legislate, how will EPA's rule
be implemented and enforced? Will there be a dual program in
each State, one Federal and one State-based? Can we expect a
dramatic increase in citizen suits?
The current regulatory path contains risks for all sides
and could lead to even greater uncertainty and expense. Mr.
McKinley's bipartisan bill in the last Congress went a long way
towards solving the challenges with coal ash management. The
legislation recognized that States like Michigan were already
running successful disposal programs, and it allowed States to
continue to use their localized regulatory expertise.
I appreciated EPA's input in our legislative process. The
Agency acknowledged some of the advantages of our legislation
and asked for some changes, many of which we made to the bill.
Our goal is to get the job done right, and we are willing to
discuss further changes to the legislation to ensure that we
have a workable solution in place.
We want to continue working with Members in both bodies, in
both parties, to achieve the best overall outcome. We will
continue to work with our stakeholders, the States, the
utilities, co-ops, coal ash recyclers, and other advocates.
Our goals are threefold: Put the right protections in
place; put coal ash generators and users straightforward
standards and procedures to follow; and grant States the
authority that they need to implement and enforce Federal
standards while taking into account distinct local conditions.
Mr. Chairman, with all of the innovative ideas and
continued refinement that has gone into legislation over the
last couple years, I welcome the opportunity to once again
listen to stakeholders as we chart a path forward.
Prepared statement of Hon. Fred Upton
Today, our multiyear quest to solve the coal ash issue
continues in this new Congress.
I want to thank all of our witnesses for appearing today
and welcome back a frequent guest, EPAAssistant Administrator
Stanislaus. Mathy, you have worked long and hard on coal ash
and have always engaged with us very constructively. Navigating
this issue is a tough job, and in our view, made more difficult
by gaps in current law.
Most of us can agree that coal ash does not warrant
regulation as a hazardous material, and I am glad EPA agrees,
but there is no authority in the law that allows for a State-
based permitting program for nonhazardous waste.
When the Federal court set a December 2014 deadline for EPA
to publish a final rule for coal ash, we looked at the legal
constraints and questioned whether EPA's rule would be the last
word on the subject. We, along with some of the witnesses who
we will hear from today, are still asking the same thing and
are left with even more questions.
If we don't legislate, how will EPA's rule be implemented
and enforced? Will there be a dual program in each State, one
Federal and one State-based? Can we expect a dramatic increase
in citizen suits?
The current regulatory path contains risks for all sides,
and could lead to even greater uncertainty and expense.
Mr. McKinley's bill in the last Congress went a long way
toward solving the challenges with coal ash management. The
legislation recognized that States like Michigan were already
running successful disposal programs, and it allowed States to
continue to use their localized regulatory expertise.
I appreciated EPA's input in our legislative process. The
Agency acknowledged some of the advantages of our legislation
and asked for some changes, many of which we made to the bill.
Our goal is to get the job done right, and we are willing
to discuss further changes to the legislation to ensure we have
a workable solution in place. We want to continue working with
members in both bodies and both parties to achieve the best
overall outcome.
We will also continue to work with our stakeholders: the
States, the utilities and co-ops, the coal ash recyclers, and
other advocates.
Our goals are threefold: put the right protections in
place; give coal ash generators and users straightforward
standards and procedures to follow; and grant States the
authority they need to implement and enforce Federal standards
while taking into account distinct local conditions.
Mr. Chairman, with all of the innovative ideas and
continued refinement that has gone into legislation over the
last 4 years, I welcome the opportunity to once again listen to
stakeholders as we chart the path forward. I look forward to
the testimony and to our members' questions.
Mr. Upton. I yield the balance of my time to Mr. McKinley.
Mr. McKinley. Thank you, Mr. Chairman.
Job creators detest uncertainty. And let's make one thing
clear: This proposed regulation does not provide certainty.
Now, in the spirit of the Super Bowl upcoming, let me explain
with an analogy.
If a quarterback knew what defense was going to be put up
against him, he knew with certainty what defense, he would
logarithmically likely be able to move the ball down the field
much more easily if he knew with certainty what he faces. And
this is what applies to this regulation. It provides no
certainty to the business community.
Let me give you three examples. And you have already heard
our two chairmen talk about that. But let me reinforce it
again. The rule results in potentially conflicting Federal and
State requirements. Federal judges in neighboring jurisdictions
could make contradictory decisions regarding compliance.
But more damaging is on page 18 of the rule. It says--and I
quote--``This rule defers a final determination until
additional information is available.'' That is not acceptable.
How many times must there be a final determination that coal
ash is not hazardous and be handled in a different way?
In the 112th and the 113th Congresses, the House passed
legislation codifying the conclusions that were rendered in the
1993 and 2000 reports offered by the EPA. We are trying to
develop certainty, certainty not just to the business
community, but to the health of the people we are trying to
protect.
In fact, Mr. Stanislaus--and I thank you very much because
we have had a very good working relationship--you said in 2013
that the legislation that we passed was something that you
could work with. That is what we want to keep working with. We
want to keep that relationship going to come up with certainty
how that could go.
So the bottom line, unfortunately, is we have a regulation
that doesn't provide certainty. It would be wise for the
committee to once again pass the legislation that we have done
over the last 2 years and bring closure to this issue. Thank
you.
And I yield back my time.
Mr. Shimkus. The gentleman's time expired.
The Chair now recognizes the ranking member of the full
committee, Mr. Pallone, for 5 minutes. It was nice saying that.
So welcome.
OPENING STATEMENT OF HON. FRANK PALLONE, JR., A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF NEW JERSEY
Mr. Pallone. Thank you, Mr. Chairman.
I also wanted to start by congratulating my colleague from
New York, Mr. Tonko, on continuing his role as ranking member
of this important subcommittee.
And I think I can speak for all the Members on our side of
the aisle when I say that we appreciate your expertise and
leadership on environmental issues, Paul.
Let me just turn to the topic today. I would like to
commend the EPA for finalizing national criteria for coal ash
disposal. These criteria will for the first time provide the
framework for addressing this serious environmental problem.
Unsafe disposal of coal ash poses serious threats to human
health and the environment. The three primary risks are
groundwater contamination, fugitive dust, and catastrophic
failure of wet impoundments. And I am happy to say that each of
these risks is addressed in the EPA's new rule.
EPA first determined that national disposal criteria were
needed for coal ash in the year 2000. That was 15 years ago
now. And the need for this rule has only become clearer.
We now have 157 documented cases of damage to human health
in the environment from unsafe coal ash disposal. It is
possible that, with the monitoring required under this rule,
that number will only go up because more contamination will be
detected.
This rule is the product of a robust public process,
including field hearings and several rounds of public comment.
It reflects the input of over 450,000 commenters, including
States, industry groups, environmental groups, and individual
concerned citizens, and it addresses many of the concerns that
this subcommittee has heard in past hearings.
By proceeding under subtitle D, EPA addressed concerns
about stigma raised by industry. By laying out a framework for
States to incorporate the regulations into existing programs,
EPA addressed State concerns. And by requiring public reporting
of monitoring data and addressing some legacy sites, EPA
addressed many concerns raised by environmental advocates.
We will hear today that not everyone is satisfied with the
rule. Certainly many in the environmental community argue that
only a subtitle C rule would protect human health. And it is
possible that the self-implementing nature of the rule could
lead to inconsistent compliance.
But, as a whole, the rule is an important step forward. The
rule will offer important protections for human health in the
environment, including many important protections that were not
part of past legislative proposals.
Now, as we look ahead in this subcommittee, I think the
publication of this final rule changes our role. We are no
longer called upon to set national criteria and statute because
those criteria have been set through a robust transparent
process.
Instead, we will have to monitor compliance and conduct
oversight of the rule's novel implementation structure, and I
hope we can conduct that oversight in a bipartisan manner.
Again, I applaud EPA for their hard work and look forward
to the testimony.
And I would yield back, Mr. Chairman.
Mr. Shimkus. The gentleman yields back his time.
And I want to thank my colleagues again.
Now I would like to recognize Mathy Stanislaus from the
EPA.
Thank you for coming. I think you heard from a lot of
Members of--you know, this is one issue we really appreciate
the work that we have done together, and we look forward to
working with you more.
You are recognized for 5 minutes.
STATEMENT OF HON. MATHY STANISLAUS, ASSISTANT ADMINISTRATOR,
OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, ENVIRONMENTAL
PROTECTION AGENCY
Mr. Stanislaus. Good morning, Chairman Shimkus, Ranking
Member Tonko, and members of the subcommittee.
I am Mathy Stanislaus, U.S. EPA Assistant Administrator for
the Office of Solid Waste and Emergency Response. And I and my
staff have had the privilege of working the last 5 \1/2\ years
to actually get it right in terms of putting a rule in place
that is protective and address the risks that we have
identified.
On December 19, as Members know, EPA finalized the coal ash
rule. This rule established the first ever national rule for
the safe disposal of coal combustion residuals in landfill and
surface impoundments.
The 2008 catastrophic failure of the CCR impoundment at
Tennessee Valley's Kingston facility, EPA's risk assessment,
and the 157 cases in which CCR mismanagement has caused damage
to human health and the environment clearly demonstrate that
improper management of coal ash poses an unacceptable risk to
human health and the environment.
We believe this groundbreaking rule is a culmination of
extensive studies on the effects of coal ash on the environment
and public health. The rule establishes technical requirements
for landfills and surface impoundments under subtitle D of the
Resource Conservation and Recovery Act.
In developing this final rule, EPA carefully evaluated more
than 450,000 comments, testimony from eight public hearings,
supplemented by three separate public comments on data, which
is the foundation of the rule. The rule is a strong, effective
approach that provides critical protection to communities
across the Nation by helping to protect our water, land, and
air.
The rule protects groundwater by requiring utilities to
conduct groundwater monitoring, immediately cleaning up
contaminated groundwater, closing unlined impoundments that are
contaminating groundwater, and requiring the installation of
liners for new surface impoundments and landfills.
It protects communities against catastrophic failure of
impoundments by requiring specific design criteria, inspections
and engineering testing, and to retrofit or close impoundments
that fail testing. It protects communities from CCR dust by
requiring an air control plan.
Further, the rule provides States and communities the
information they need to fully engage in the rule's
implementation. The rule requires utilities to post information
on all aspects of its compliance with the rule on publicly
available Web sites to help ensure States and the public have
access to information to monitor utilities' compliance with the
rule.
The rule has been designed to provide electric utilities
and independent power producers generating coal ash with a
practical approach for safe coal ash disposal and has
established reasonable implementation timelines for this to
occur.
We strongly recognize the important role that our State
partners play in implementation and ensuring compliance with
environmental regulations. EPA is committed to working closely
with our State partners on rule implementation.
And as a major component of this rule, States can align
their programs with the Federal rule by utilizing the solid
waste management plan in process and submit revisions limited
to incorporating the coal ash Federal requirements for EPA for
approval.
The solid waste management plan can demonstrate how the
State program has incorporated the rule's minimum criteria
utilizing State permit or other processes and can highlight
those areas where State regulations want to be more stringent
or otherwise go beyond the Federal minimum criteria.
EPA will be working with the States to develop a template
for a streamlined process for developing and approving a solid
waste management plan. Of course, the final rule does not
preclude a State from adopting more stringent requirements,
should it choose to do so.
I should note that States will have adequate time to
develop the solid waste management plan and seek EPA's approval
and conduct the necessary public process because the major
elements of the rule is at least 18 months from today.
Further, the rule supports the sound beneficial use of coal
ash. The final rule does not change the current Bevill
exemption nor regulate coal ash that are beneficially used. The
rule distinguishes between beneficial use and disposal to
provide certainty to the regulated community and to users of
coal ash.
We have separately established methodology for coal ash
users to analyze their products, and we have, in fact, applied
that methodology to demonstrate that in concrete and
wallboard--that we have confirmed its continued use.
I will close by noting that we believe this is a tremendous
milestone to protect communities and the environment in which
we live and work, and EPA is committed to working with our
State partners, local communities, and utilities on the
implementation. And I look forward to your questions.
[The prepared statement of Mr. Stanislaus follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Shimkus. Thank you very much.
Now I would like to recognize myself for 5 minutes for an
opening round of questions.
So, again, numerous times we appreciate your good effort
and good work, and we look forward to working with you. But
just to get some clarification--and we have got your partner
sitting behind you who will be also working within their
States.
Under the final rule, no permits will be issued. Isn't that
correct?
Mr. Stanislaus. Well, what we have identified, utilizing
the solid waste management planning program, is the States can
build a permitting program and submit that to EPA to be
approved.
Mr. Shimkus. They can. But there is no requirement to.
There is no permitting process in the new rule.
Mr. Stanislaus. That is true. But once the solid waste
management plan is approved, there will be a singular point of
compliance.
So utilities can then implement through the State program,
and we have made clear in the preamble that compliance will
demonstrate compliance with the Federal----
Mr. Shimkus. And you understand why we are asking that,
because the legislation we moved last cycle said Federal
standards, State implementation, permitting process where there
is certainty. And I think it goes to Mr. McKinley's point.
Isn't it true that States are not required to adopt or
implement the requirements?
Mr. Stanislaus. Well, clearly they are not required. But
the States have clearly called on us to figure out ways of
aligning the Federal requirements with the State program.
That is why we have established a solid waste management
plan and program, so States can, in fact, integrate the minimum
Federal requirements that we have established within their
State program, and seek EPA's approval of that. And so that
will establish the alignment from our perspective.
Mr. Shimkus. And neither EPA nor the States can directly
enforce requirements in the final rule. Isn't that correct?
Mr. Stanislaus. That is correct. So we believe, again,
utilizing the State solid waste management plan, the States can
then go forward and implement these requirements once a State
solid waste management plan is approved, or independently
States and citizens can implement requirements of the rule.
Mr. Shimkus. Yes. And the only enforcement mechanism under
the recently reduced rule is through citizen suits and more
litigation. Is that correct?
Mr. Stanislaus. Well, we actually believe, again, that the
State solid waste management plan, when approved, will not
result in excessive litigation. There will be litigation to
enforce in those circumstances where States and others are
deemed not to be compliant.
Mr. Shimkus. You are more optimistic than I am. I can
guarantee you that.
Even if States adopt the Federal rule, utilities will have
to comply with the State requirements and the Federal rule. Is
that correct?
Mr. Stanislaus. Well, the rule is directly applicable to
utilities. But, again, getting back to State solid waste
management plan, there is an opportunity for the States, as the
States have sought, to align and integrate the Federal minimum
requirements into their program and seek EPA's approval for
that.
Mr. Shimkus. But you understand the concern in this line of
questioning is it is kind of vague: ``They can'' or ``They
might,'' ``We kind of hope they do.'' There is an expectation
that they probably will, but there is really not a lot of
clarity.
And then the other concern is, if you are relying on
citizen suits--or citizen suits will come. Right? There is no
doubt that they will come.
And if they are regionally directed, then you could have
multiple standards throughout the country which aren't the
same, based upon the litigation and the rulings in these
different courts.
Isn't that a concern?
Mr. Stanislaus. Well, actually, we don't anticipate that.
The rule is pretty specific in establishing minimum Federal
requirements for protection of groundwater, for preventing
catastrophic failure, for addressing dust.
And so if you move forward in implementing that and the
States can integrate that within their State program and EPA
approves the State solid waste management plan, we think that
there is going to be national consistency.
Mr. Shimkus. You are more optimistic than I am. And you
mentioned the preamble, so I am going to kind of address it.
If a regulated facility complies with a State requirement
that is more stringent and, therefore, is not the same as the
requirement in the final rule, will the regulated entity also
have to comply with the Federal requirement?
Mr. Stanislaus. So I just want to clarify. So if a State
adopts more stringent--adds to the Federal requirement----
Mr. Shimkus. Correct.
Mr. Stanislaus [continuing]. Then gets an approval from EPA
through a State solid waste management plan, the utilities will
then have to comply with fully the State requirements.
And so that will demonstrate compliance with the Federal
requirements and, also, additional requirement that the State
chooses to add.
Mr. Shimkus. Yes. And I think we are going to hear
testimony in the next panel that they don't believe that that
is true, that there will be a two-fold process, the Federal
Government and the State EPA. And that is one of the concerns
that we have with the rule. So good people can agree to
disagree.
And I now would like to recognize the ranking member of the
subcommittee, Mr. Tonko, for 5 minutes.
Mr. Tonko. Thank you.
Mr. Stanislaus, good morning, and thank you for joining us.
Unsafe disposal of coal ash poses serious threats to human
health and to our environment. That is why I am pleased that
EPA has finally set national criteria for State disposal of
coal ash. For the first time utilities and States have clear
requirements to indeed follow.
As I stated earlier, I would have preferred a stronger
rule. Public health and environmental advocates have indicated
that they have preferred a stronger rule. I tend to agree. But
I do believe the rule includes some important safeguards.
I appreciate you being here to testify. And I would like to
go over some of the most important protections offered by the
rule with you.
To ensure that disposal sites are not located in dangerous
areas, the rule puts in place five restrictions. And I would
like to give you my read of those restrictions and see if I am
interpreting them correctly.
Structures generally will not be allowed close to aquifers
and wetlands within fault areas and seismic impact zones and in
unstable areas. Is that indeed correct?
Mr. Stanislaus. Well, that is correct. So they are going to
have do an analysis with respect to those location requirements
and demonstrate whether they can safely operate and putting
engineering measures to prevent any impacts.
Mr. Tonko. OK. Thank you.
And previous legislative proposals we have seen would have
included only two of these five restrictions and included a
smaller aquifer buffer. I appreciate that the final rule
includes these protective requirements.
Next. To protect air quality, the new final rule will
require facilities to develop dust control plans and prevent
blowing by wetting or covering the dust or erecting wind
barriers. Is that indeed correct?
Mr. Stanislaus. That is correct.
Mr. Tonko. Thank you.
To detect groundwater contamination, the rule includes
requirements for at least one upgradient well and three
downgradient wells. Is that correct?
Mr. Stanislaus. Yes.
Mr. Tonko. Why did the Agency find it important to specify
a minimum number of wells?
Mr. Stanislaus. Well, this is standard protocol to make
sure that we fully understand the direction and potential
impact to groundwater.
Mr. Tonko. OK. Lastly, I would like to turn to the public
disclosure requirements in this rule.
The rule establishes a national floor for what information
will be made publicly available and for how that will be done.
Utilities will have to maintain pages on their Web sites that
document their compliance with a wide range of the criteria in
the rule, including location, design, and groundwater
monitoring. Is that correct?
Mr. Stanislaus. That is correct.
Mr. Tonko. These disclosure provisions in the rule will be
essential to ensuring compliance and promoting transparency for
communities. Although a subtitle C rule might have offered more
protection and more direct enforcement, this rule will protect
human health in the environment and goes beyond past bills.
I do want to commend EPA for finalizing this rule and for
the Agency's conduct of the extensive public engagement in the
course of this development.
And, with that, I thank you for appearing here this
morning.
And I yield back.
Mr. Shimkus. The gentleman yields back his time.
Just a notification to my colleagues: The votes have been
called. We have about 10 minutes before a lot of us need to get
there.
That means I think we can get 5 minutes on each side and
then we will recess and have folks come back to finish this
panel.
So the Chair now recognizes the vice chair of the
subcommittee, Mr. Harper, for 5 minutes. And congratulations on
your elevation.
Mr. Harper. Thank you, Mr. Chairman.
Mr. Stanislaus, in light of the fact that the final rule
requires the cleanup level to be set at either the MCL or the
background level, if a State chooses to incorporate risk-based
decisionmaking into the coal ash permit programs that establish
an alternative groundwater protection standard, would EPA be
able to approve the State plan as being as stringent or more
stringent than the final rule?
Mr. Stanislaus. So let me break it down into a couple of
subcomponents. So we have integrated the same standard
framework as a Superfund cleanup. So we begin with protecting
groundwater in all cases.
However, in selecting the cleanup remedy, you can look at
the particular circumstance that is involved in the cleanup.
So, in the same way that we provide all those on-the-ground
factors, that can be brought to bear in these decisions.
With respect to an approval of a cleanup plan, again, in
the EPA's approval of a solid waste management plan, the States
can choose to enable the State's approval of the cleanup plan.
So I think there is that ability for States to do that.
Mr. Shimkus. Mr.--you just finished.
Mr. Harper. Let me just ask this: If a State determines
that there is no human receptor for the groundwater and that a
cleanup standard above the MCL or background is appropriate,
would that meet the minimum requirements of the rule?
Mr. Stanislaus. Let me get back to you on that.
Mr. Harper. OK. If you will let us know.
Mr. Stanislaus. Sure.
Mr. Harper. I will just yield back.
Mr. Shimkus. The gentleman yields back.
The Chair now recognizes the ranking member of the full
committee, Mr. Pallone, for 5 minutes.
Mr. Pallone. Thank you, Mr. Chairman.
There is no question that coal ash can pose serious risk
when not disposed of properly. Many people in this room have
spent the better part of a decade working on this issue, and I
commend EPA for finalizing this rule.
I wanted to ask Mr. Stanislaus: Do you have the confidence
that this final rule is protective of public health and the
environment? And, in your view, are there gaps in the
protections under this rule that would need to be filled by
legislation?
Mr. Stanislaus. I believe the rule is very strong and very
protective of the risks that we have identified.
Mr. Pallone. And in terms of any gaps that would need to be
filled by legislation?
Mr. Stanislaus. No. We don't believe that there are gaps.
We believe all the risks and all the information contained in
the reg can be put in place, all of the rigorous technical
standards to provide the necessary protections.
Mr. Pallone. Well, what about beneficial reuse? Will this
rule restrict beneficial reuse in any way to stigmatize coal
ash?
Mr. Stanislaus. We don't believe it will. We provided real
clarity with respect to beneficial use, and that beneficial use
is not subject to the rule.
Mr. Pallone. But, still, I expect we are going to hear from
the second panel that legislation is needed to remove EPA's
authority to regulate coal ash under subtitle C in the future.
What factors might lead EPA to someday regulate coal ash
under subtitle C?
Mr. Stanislaus. Well, to be clear, we had proposed an
approach under D and C, and we have made a decision under D. So
the C proposal is no longer on the table. So like any other
rule, in the future, we--you know, it will go through the same
public notice and comment to evaluate future considerations.
However, I would note that we have strong confidence that,
between the national criteria--strong national criteria and the
utilization of the State solid waste management planning
program and EPA's approval of that, that we believe, moving
forward, that we will have the protections that are necessary
to protect communities, and we are moving forward and working
with the States on implementation.
Mr. Pallone. I mean, I think it is safe to say, if coal ash
does not become more toxic and implementation of subtitle D is
effective, EPA would have no reason to pursue a subtitle C
rule.
But if it turns out that ash does become more toxic and we
find that States and utilities are not doing enough under the
subtitle D rule to protect human health--if that turned out to
be the case, would it be important for EPA to be able to pursue
subtitle C regulation, in your opinion?
Mr. Stanislaus. Well, again, our focus right now--we have
reviewed and evaluated data and comments by all stakeholders,
and we believe we have put in place a rigorous rule to offer
the protection to communities around the country.
So we are moving forward in implementation, working with
States, working with public stakeholders, working with
utilities, to provide the protection. So we are not looking at
further rulemaking at this moment.
Mr. Pallone. No. I understand that.
But I am just saying, you know, because of those who
advocate that you shouldn't be able to pursue subtitle C
regulation or to eliminate that option, if it turns out that
the ash is becoming more toxic and that the States and
utilities aren't doing enough under subtitle D, do you think it
would be important for EPA to continue to be able to pursue
subtitle C regulation in that eventuality?
Mr. Stanislaus. Well, you know, like every other rule, you
know, we will look at implementation of this rule and see what
issues are unaddressed in the future.
Mr. Pallone. So you don't want to comment on the
possibility of pursuing subtitle C regulation and whether that
is important?
Mr. Stanislaus. Not at the moment.
Mr. Pallone. Not at this time.
All right. Thank you so much.
I yield back, Mr. Chairman.
Mr. Shimkus. The gentleman yields back his time.
I think we will recess now and come back immediately after
the vote. There should be two votes. You all have time to
stretch and get a cup of coffee. But most of us will come back
promptly after the second vote.
So this hearing is now recessed.
[Recess.]
Mr. Shimkus. I am going to call the hearing back to order.
And I think the next order of business is recognizing the
gentleman from West Virginia for 5 minutes for his round of
questions.
Mr. McKinley. Thank you, Mr. Chairman.
Thank you, again, for your appearing. And, again, as I said
in my opening remarks, I appreciate the working relationship we
have had with you.
Just a couple, maybe four quick questions, three or four
quick questions, two of which, Mr. Stanislaus, might be just
``yes'' or ``no.''
But the first one is, do you personally think that coal ash
is a hazardous material?
Mr. Stanislaus. Well, we----
Mr. McKinley. ``Yes'' or ``no''?
Mr. Stanislaus [continuing]. Have identified the various
risks associated with coal-ash mismanagement, and we put in
place the technical requirements to be protective against those
risks. And we have identified the various constituents in coal
ash and the way that we should establish, for example, a liner
and groundwater program to be protective.
Mr. McKinley. Just in and of itself as a material, whether
it is in concrete, drywall, or liners----
Mr. Stanislaus. Well----
Mr. McKinley. Let me go from there. Would the legislation
we passed over the last two Congresses, in the 112th and 113th,
would that have created certainty within the recyclers and the
utility industry?
Mr. Stanislaus. Well, you know----
Mr. McKinley. You don't think it would?
Mr. Stanislaus. Well, what I can say is, with respect to
the rule, we think it provides the kind of certainty----
Mr. McKinley. Well, no, I am not talking about the rule. I
am talking about the bill that we have. Because, again, Mr.
Stanislaus, we are all about certainty. I come from the
business world. We need to have certainty. And that legislation
was trying to get that. Unfortunately, I believe, I know it was
a reasonable effort, but it doesn't create certainty.
So my last question might be that this proposed rule
provides us no assurance that coal ash will not be regulated as
a hazardous waste in the future, so could you explain the
Agency's justification for leaving that door open and almost
deliberately causing uncertainty on this issue? Can you explain
why they kept the door open instead of closing it so that we
could advance?
Mr. Stanislaus. Yes, I actually think that we provide
tremendous certainty in the final rule and we explain in
numerous situations.
For example, in beneficial use, I think we make very clear
that beneficial use is not subject to the rule, that the
existing Bevill protections continue to remain. And we think
that, coupled with other actions that we have taken, will
foster not only the stabilization but increased use of
beneficial use.
Mr. McKinley. Well, how do you deal with that, that--and on
page 18 it says, ``This rule defers''--defers, postpones--``a
final determination until additional information is
available.'' I just wonder how----
Mr. Stanislaus. Yes.
Mr. McKinley. That is like the door is wide open. Because
sometime someone is going to make another determination that
could be based on other information. So I don't agree with you
that there is certainty at all in this legislation. I think it
was well-intended. It helps us resolve the differences between
C and D, but it still doesn't give us a view of tomorrow.
Mr. Stanislaus. Well----
Mr. McKinley. So if we are going to move the ball down the
field, I have to find out, how do we shut the door?
Mr. Stanislaus. Well, actually, in my opinion, I don't
think we left the door wide open. I think we have been very
clear, as between the two proposals that we had put for public
comment, one is a C approach and the other a D approach. We
went with the D approach.
The language that you are referring to then goes on to say
that we didn't have full and complete information in a couple
areas. One big area was how States would move forward with
their programs.
We believe very strongly that the combination of a clear,
consistent Federal set of criteria, coupled with the solid
waste management planning program and EPA's approval of that,
will provide comfort and certainty with respect to those
issues. So we actually don't think that the door is open.
Mr. McKinley. I guess like you said earlier, we are just
going to have to agree to disagree on that, because I think it
is clear from a business perspective, when have that language
that something can happen in the future, that the next
administration could come in with a different attitude towards
it than you personally have had, it makes it uncertain. So we
need to just close that. So let's continue working together on
that and see if we can't close the door on that.
Mr. Stanislaus. Yes. And we can----
Mr. McKinley. So I yield back the balance of my time.
Mr. Stanislaus. I will reaffirm my and EPA's commitment to
continue to work with you and this committee on technical
assistance.
But we also made clear in the preamble that we would not do
anything without any--we think we have done a good job and have
provided protections. But any future changes, like any rule, is
going to be subject to a future process. You know, it would
have to require another proposal, another notice and comment.
Mr. Shimkus. The gentleman's time has expired.
The Chair now recognizes the gentleman from Pennsylvania,
Mr. Doyle, for 5 minutes.
Mr. Doyle. Thank you, Mr. Chairman. And I want to thank you
for convening this hearing on this final rule.
Many of my constituents were concerned by the proposed rule
on coal-ash disposal because of concerns that it might limit
beneficial reuse on the one hand or fail to protect the public
health on the other. But I am generally pleased with this rule.
EPA has protected beneficial reuse and put in criteria that
will ensure safe disposal.
Mr. Stanislaus, I would like to ask you just a few
questions.
The final rule prevents or restricts--does EPA's new final
rule prevent or restrict beneficial reuse of coal in any way?
Mr. Stanislaus. No. Beneficial use is fully protected and
not subject to the rule.
Mr. Doyle. In fact, coal ash that is beneficially reused
won't be subject to the disposal requirement in the rule; is
that right?
Mr. Stanislaus. That is correct.
Mr. Doyle. And, in fact, according to the final rule, 52
million tons of coal ash are beneficially reused annually. Can
you tell us about some of the environmental benefits of
recycling coal ash instead of sending it to a landfill or wet
impoundments?
Mr. Stanislaus. Sure. I mean, saved energy costs, reducing
greenhouse gases, and reducing impacts to the environment, as
well as the tremendous economic benefits of replacing virgin
material with coal ash.
Mr. Doyle. Thank you.
I want to move on to what we have been hearing a lot of
discussion about. You are going to hear a lot about this self-
implementing requirement for this rule, and I wanted to give
you the opportunity--and I know you have talked a little bit
about it already--on this concern that we are creating a dual
regulatory regime, potentially requiring owners and operators
to adhere to two sets of standards.
What does it mean when--so the EPA will approve these State
plans, and you say that they will be approved as long as they
demonstrate Federal compliance. What does that mean? You know,
what does that terminology mean?
Mr. Stanislaus. Yes, sure. What States would have to do is
to integrate the Federal criteria into the State program.
Mr. Doyle. So you are saying that any State plan that EPA
would approve would have within its plan the Federal
requirements. So there is no way that any State would be out of
compliance with the Federal requirement if you have approved
their plan, because that will be, at the very minimum, what
their plan has to adopt, and then they can do something over
and above that?
Mr. Stanislaus. Well, that is right. And so, from a utility
compliance perspective, once that approval happens, the States
would have to comply with a single set of information, have
comfort that EPA has approved and made very clear in the
preamble that if a utility follows a State program that is
subject to EPA's approval, EPA will deem that compliance with
the Federal criteria.
Mr. Doyle. So what you are saying, in effect, that if a
State adopts that plan and the utility implements it, that
there is no way they can be out of compliance with the Federal
statute. They could be out of compliance with the State one if
it has extra provisions within it.
Mr. Stanislaus. That is correct.
Mr. Doyle. But you feel that addresses that concern about
the dual regulation?
Mr. Stanislaus. We do.
Mr. Doyle. OK.
That is all the questions I have, Mr. Chairman. Thanks.
Mr. Shimkus. The gentleman yields back his time.
The Chair now recognizes, it looks like the gentleman from
North Dakota, Mr. Cramer, for 5 minutes.
Mr. Cramer. Thank you, Mr. Chairman.
And thank you for being here and for your good work on the
rule.
I just have one area--I am going to continue on this line
of exploring a little bit on the self-implementing piece,
because I spent a number of years on the North Dakota Public
Service Commission, carried the coal reclamation portfolio. And
the one thing that I heard a lot, especially in--whatever the
case might have been, but whenever we were challenged in
court--and we were plenty of times, and we always prevailed as
a commission, not because our lawyers were superior or anything
like that--although we had good lawyers, don't get me wrong--
but because the courts in highly technical matters just always
defer to the experts, to the administrative agency.
And so this self-implementing thing just makes me a little
nervous. And if it makes me a little nervous as a former
regulator, I can only imagine how nervous it makes the
industry. And it just seems to me that we could tighten it up
and provide the certainty that everybody is talking about
without compromising in any way, really, the protections that
we are trying to accomplish and, in fact, I think, you know,
should be to the benefit of everybody on all sides.
Am I wrong there? Is there a better reason to do it this
way, to do the self-implementing?
Mr. Stanislaus. Well, I don't disagree with your overall
view, that courts will provide substantial weight to the
technical judgment of States and Federal Government. So, you
know, precisely for the reasons that you raise is the reason
why we are tying these minimum Federal requirements to an EPA
approval of a State program, because we believe very strongly
that the courts will look at that and provide substantial
weight to the technical judgment of a combination of the States
and EPA.
Mr. Cramer. Sure. I understand all that, and I think that
is noble. That is why I am just saying, can't we just go to the
next step and tie it down so that we are not relying on self-
implementation and then the discretion of multiple
jurisdictions and multiple courts, when we have the experts in
what seems to be pretty relative agreement for this place, and,
you know, and then just tie it down? I think you would get a
lot of support.
But that is really all I have. And I, again, appreciate the
hard work.
Mr. Shimkus. The gentleman yields back his time.
The Chair now recognizes the gentleman from California, Mr.
McNerney, for 5 minutes.
Mr. McNerney. Thank you, Mr. Chairman. Thanks for holding
the hearing.
Mr. Stanislaus, how many tons of coal ash are produced in a
year in this country?
Mr. Stanislaus. How many tons? I don't have that number
right----
Mr. McNerney. Any idea what fraction of that is used in
beneficial ways, you know, for construction or road grade
material or so on?
Mr. Stanislaus. I don't off the top of my head. I believe
about 30 percent, but I can get back to you on the actual
numbers.
Mr. McNerney. Is there more opportunity for beneficial use
of coal ash?
Mr. Stanislaus. Oh, absolutely. Absolutely.
Mr. McNerney. How would that happen? What would it take for
more beneficial uses to come about?
Mr. Stanislaus. Well, you know, I think probably Tom Adams
would probably be a better witness to ask that. But I think,
clearly, when we have discussed with the reuse manufacturers,
you know, providing the certainty that I think will be provided
will be a first step into expanding the beneficial use of coal
ash.
Mr. McNerney. So that is a part of the rule that has been
promulgated.
Mr. Stanislaus. That is right. That is right.
Mr. McNerney. OK.
I am a little concerned about citizen lawsuits with regard
to the rule or the potential legislation that might come out of
this issue. How quickly do you think that we will start to see
improvements in the safety of coal-ash disposal sites as a
result of the rule that has been promulgated?
Mr. Stanislaus. Well, I think we will begin immediately. So
the rule takes effect in basically 6 months from publication,
which should be in about a month or so.
So there are early obligations, like making sure you have a
dust-control plan in place, make sure you begin the
inspections. I think you will see some early improvement. A lot
of these are things that were already done by some of the
leading utilities anyway, so I think that is going to be more
of a standardization around the country.
And then, as time progresses, roughly in about 18 months,
some of the more structural issues would be addressed, those
things that potentially contaminate groundwater, potentially
have an impact on structural stability would be addressed.
Mr. McNerney. Do you expect the robust transparency
provisions to incentivize compliance?
Mr. Stanislaus. Oh, absolutely. And I think all the studies
show that the more disclosure of data and compliance in a very
deep and granular way, I think it is an incentive for
compliance, and also it enables citizens adjacent to these
facilities and the States to monitor compliance.
Mr. McNerney. Do you think that the citizens and the States
are going to buy the disclosures that the disposal agencies are
going to be putting out on their Web sites? Do you think people
are going to buy it, or do you think that they are going to
revert to lawsuits to satisfy their concerns?
Mr. Stanislaus. Well, I think that one of the reasons that
we put in this public disclosure was to respond to citizens'
requests of having detailed information. For example,
groundwater data and how the groundwater data compares with
whether it is or is not exceeding protector new standards. So I
do think that it is going to add substantial value to
compliance and oversight by citizens.
Mr. McNerney. So there is enough teeth, then, in your
opinion, in the compliance requirements that people will take
satisfaction that they are actually doing what they are saying?
Mr. Stanislaus. We do. We do.
Mr. McNerney. The last question: Is there a concern that if
the committee passed a bill that was signed into law, it would
stifle the beneficial use of coal ash or the safe disposal of
coal ash? Do you think that passing a law would stifle what is
going to take place as a result of the rule?
Mr. Stanislaus. Well, you know, I really cannot answer that
question today in a vacuum. What I can say is that, you know,
we strongly believe the rule provides the protection as well as
the certainty--protection for communities next to impoundments
as well as certainty to the beneficial use market.
So, you know, I really can't provide an opinion as to what
the effect of any legislation would be regarding certainty at
this moment.
Mr. McNerney. OK.
I will yield back, Mr. Chairman.
Mr. Shimkus. The gentleman yields back his time.
Before I yield to Mr. Flores, I want to ask unanimous
consent that a letter written today by the U.S. Green Building
Council be submitted for the record. Is there objection?
Hearing none, so ordered.
[The information appears at the conclusion of the hearing.]
Mr. Shimkus. Now I would like to recognize Congressman
Flores from Texas for 5 minutes.
Mr. Flores. Thank you, Mr. Chairman.
And, Mr. Stanislaus, thank you for joining us today.
I want to give you a quote in the answer to the question
about having multiple opinions of judges determine how the
enforcement is carried out. You said, ``We don't anticipate any
issues in that regard.''
I will tell you, from a real-world perspective, any time
that you don't have the right type of rulemaking, you will have
that instability, if you will, in the real world in terms of
the enforcement process. And not only could you have it among
the States, you could have it within a State, because you have
multiple district judges that will make their own technical
opinion. So I urge you to keep that under consideration as you
move forward.
This gets into the law, if you will, and that is, in terms
of legacy sites, walk us through how the EPA believes that it
has the authority to regulate legacy sites. And, in particular,
I would need the specific reference to RCRA, if that is what
you are relying upon to make the rules.
Mr. Stanislaus. Sure. So, clearly, we have set forth in the
rule that inactive sites at an active power plant and active
units at a power plant have the same exact risk. You know, this
has coal ash, with all of its constituents of coal ash; it has
water. And under those conditions, it poses the identical risk
of structural failure and impacting communities, leaching into
groundwater.
So we believe, because of those circumstances, that RCRA
provides us the ability and authority and can mandate that kind
of protection, because they are identical units but for it is
not actively being used for disposing of coal ash.
Mr. Flores. OK.
Let's take that to the next step, when you are talking
about those particular impoundments. When you proposed the
application of location restrictions to existing surface
impoundments, the EPA acknowledged that these location
restrictions would force a majority of the current impoundments
to close.
And so do you have an estimate of how many will close? And
moving further upstream from those closures, what sort of
reliability issues could be imposed on our grid?
Mr. Stanislaus. Yes. Well, I don't have that estimate. I
can get you that information. I believe it is contained in the
preamble, but I can get you that information.
But just to be clear, you know, the final rule provides
location requirements, but it does not begin with closure. It
begins with examining all the location criteria--proximity to
wetlands, proximity to groundwater aquifers. Then a utility
will have to determine whether or not they are in compliance
with that. Then they will have to determine, can they put in
engineering solutions to provide those kind of protections. So
it would not automatically trigger closure.
But I can get you that data.
Mr. Flores. OK. I think that would be important, because I
think in your rule you acknowledge that it will cause a
majority of these to close, and I think that creates an issue
in terms of reliability.
Mr. Stanislaus. Yes. I will look at that. I am not sure
that is correct, but I will check that and get back to you.
Mr. Flores. OK.
And then, to the extent that an operator grants itself an
extension, what do you think the impact will be in terms of
citizen lawsuits and let's just say the instability or the lack
of clarity that that causes for an operator?
Mr. Stanislaus. Well, because we have gone out, we have
visited numerous coal-ash impoundments around the country, we
have reviewed information from utilities about the different
dimensions of impoundments, because some are going to be more
challenging to close than others--in other words, we do put in
place in a very specific way those circumstances where they can
enable themselves of extensions.
So we think the rule itself provides that ability to
extend, when circumstance justifies that. And that would be
coupled with, obviously, the utility disclosing those
circumstances. But we believe, once you follow that, there will
not be a violation of the Federal rule.
Mr. Flores. OK. And, therefore, no citizen litigation would
follow, then. Is that----
Mr. Stanislaus. Yes. We don't believe there would be a
basis for citizen suits in that circumstance.
Mr. Flores. OK.
Mr. Chairman, thank you. I yield back.
Mr. Shimkus. The gentleman yields back his time.
The Chair now recognizes the gentleman from Ohio, Mr.
Latta, who was actually very involved in pushing this
legislation through in the last couple Congresses.
Mr. Latta. Well, thank you very much, Mr. Chairman.
And, Mr. Administrator, thanks very much for being with us
today.
If I could just go back, I know that there has been a lot
of discussion already on the beneficial use of coal ash, and I
know we have had different panels in here over the last couple
years talking about it. One of the things I know that you had
mentioned a little bit earlier, because when you said in your
testimony that approximately 40 percent of CCR generated in
2012 was beneficially used--but, again, in the testimony that
we have heard, you know, we have States out there that are
saying, boy, if the EPA would ever change its mind, we are
going to require buildings to have things ripped out or
something like that, so you got school districts saying, we
don't want to use material that might in the future have some
kind of EPA coming back and saying that it could be hazardous.
When you use the term ``certainty'' that you have
mentioned, what is the certainty that the EPA can give to folks
out there that there is not going to be a change? Because,
again, if it is road material or it is block material--but it
is that material that is actually being used inside of a
building that a lot of folks are worried about, school
districts are worried about.
So how do you define ``certainty''? And how do we make sure
that the folks out there have that certainty of mind that the
EPA is not going to change in a couple years what they are
defining as a hazardous or nonhazardous material?
Mr. Stanislaus. Sure. Thank you.
You know, so, even before the finalization of the rule,
because of this issue of certainty and risk and the comments
that we received from the beneficial-use industry, we first
began by developing a methodology to evaluate the continued use
of beneficial use. We used that methodology and applied it to
encapsulated uses, and we confirmed that concrete and
wallboard, the largest two uses of beneficial, can continue to
move forward. So we believe that provided a significant
certainty. And I know Tom Adams can speak for himself later on
the panel.
Secondly, you know, we also heard that this cloud--some
advocates have noted that the cloud of uncertainty of not
finalizing the rule continues to create some uncertainty. And
we believe our decision to go with the D proposal as opposed to
the C proposal provides a second set of certainty. And, you
know, so the C proposal is no longer on the table.
So we actually believe that we provided substantial
certainty to the market. And I will let Tom talk more about
that.
Mr. Latta. You know, when you talk about the methodology,
how do you go about that? Who is at the EPA? Who is sitting
down at the table to really come up with the methodology to
come forward with that standard or what that should be set at?
Mr. Stanislaus. So, you know, we have engaged particularly
the beneficial users in the development of the methodology. So
this is a methodology to be used by users, by manufacturers, or
by States to confirm that a product that uses coal ash as
opposed to a product that doesn't use coal ash are comparable,
and so, therefore, it can be safely used to replace virgin
products.
So, you know, we think that the methodology has been well-
received in the marketplace and our application of the
methodology to these specific uses like concrete and wallboard
has been well-received.
Mr. Latta. OK. Thank you.
Mr. Chairman, in the interest of the second panel, I am
going to yield back balance of my time.
Mr. Shimkus. And I thank you for that.
The Chair now recognizes the other gentleman from Ohio, Mr.
Johnson, for 5 minutes.
Mr. Johnson of Ohio. Thank you, Mr. Chairman.
And thank you, Mr. Director, for being here with us this
morning.
I want to get a clarification on something you said
earlier. So the State program does not operate in lieu of the
Federal program, correct?
Mr. Stanislaus. That is correct.
Mr. Johnson of Ohio. OK. So if the State program does not
operate in lieu of the Federal rule, then both sets of
requirements are still enforceable, correct?
Mr. Stanislaus. Well, that is precisely because we have
heard those comments during our public comment process about
the possibility of precisely that. That is why we strongly
believe that there is a vehicle to integrate the Federal
requirements into a State program and have EPA approve that
State program to have that alignment occur.
Mr. Johnson of Ohio. OK.
So, for corrective action, the final rule requires that if
a constituent of concern is detected above a statistically
significant level that the groundwater protection standard must
be set at either the maximum containment level or at the
background concentration, whereas the proposed rule, like the
municipal solid waste program, would have allowed the owner/
operator to establish an alternative groundwater protection
standard based on site-specific conditions.
So how does the EPA anticipate that this will impact
ongoing corrective action at coal-ash disposal units in States
that utilize risk-based decisionmaking?
Mr. Stanislaus. Well, we believe the risk-based
decisionmaking that is core to a cleanup determination will
continue. Now, what we have done in the rule is we brought the
various factors that are used in the Superfund program to do
exactly what you noted, to consider those site-specific
factors.
So we always begin with protecting groundwater, protecting
the highest use of groundwater. But then, when you go and look
at the specific cleanup remedy that fits a particular
situation, you evaluate the various technical factors in
determining the cleanup that is most appropriate to achieve a
cleanup that is protective.
Mr. Johnson of Ohio. So that ability to establish an
alternative groundwater protection standard based on site-
specific conditions, that would still be there, in your view?
Mr. Stanislaus. Yes. So what a utility would do is then
look at the various factors, no different than a Superfund
cleanup, and establish the cleanup option that best fits. Now--
so I will just leave it at that. Yes.
Mr. Johnson of Ohio. OK.
Going down to closure, if the owner or operator puts forth
a realistic closure plan and indicates that the facility needs
more than the required amount of time to close in a safe and
appropriate manner, technically, the plan doesn't meet the
deadline.
Is the owner or operator out of compliance with the final
rule in that case? And at what point is the owner/operator
subject to lawsuit, when it puts out the plan with the longer
closure date or when it actually doesn't meet the 5-year
deadline?
So you have an owner/operator that says, it is going to
take me longer than the rule allows to do it properly. What
happens?
Mr. Stanislaus. Yes. We have received numerous comments
precisely on that topic.
We believe the 5 years is adequate for many of the units,
but there are going to be some units, because of their size,
because of particular geology, that are going to require some
additional time.
So, in the rule, we built in that opportunity if a utility
can demonstrate that those conditions exist. And we articulate
various timelines, so they can avail themselves of those
additional timelines set forth in the rule.
Mr. Johnson of Ohio. OK.
Mr. Chairman, so we can get to the second panel, I yield
back, as well.
Mr. Shimkus. The gentleman yields back his time.
The Chair now recognizes a new member of the subcommittee,
Mr. Cardenas from California, for 5 minutes.
Mr. Cardenas. Thank you very much, Mr. Chairman. And thank
you so much for having this hearing.
Mr. Stanislaus, I would just like to ask you your--do you
have a technical background?
Mr. Stanislaus. I do.
Mr. Cardenas. What would that be?
Mr. Stanislaus. I am a chemical engineer, before I became a
lawyer, so----
Mr. Cardenas. Oh, OK. And they don't cancel out. I think
they go well together.
Well, thank you very much. I appreciate that. Because I
think that when we are talking about EPA and we are talking
about regulations, especially when it comes to things like coal
ash, I think that there is some science that goes into those
decisions, correct?
Mr. Stanislaus. That is right.
Mr. Cardenas. And evaluation and understanding. And then
even beyond science per se, it also goes into probabilities and
cause-and-effects and things of that nature, correct?
Mr. Stanislaus. That is right.
Mr. Cardenas. OK. Well, I am glad to know that you have
that engineering background. I won't speak of your law degree,
but at least engineering background. I am not a lawyer, but I
am an engineer, so I appreciate that.
Now, when it comes to EPA's new rule which will set
national criteria for the location, design, and maintenance of
the ponds and protecting all of the communities that live with
this potential risk, first of all, I would like to applaud the
EPA for moving forward, but also this effort is important,
especially because--has it been determined or evaluated by the
EPA as to who most likely is affected by this activity and
these ponds?
Is it more affluent communities? More low-income
communities? Is there a disproportionate effect when it comes
to communities that are affected?
Mr. Stanislaus. Yes. I am not sure we have done a specific
demographic analysis. Clearly, the communities that are
adjacent to these facilities could potentially be impacted by a
catastrophic failure for contaminated drinking water.
Mr. Cardenas. OK. Well, I know that in the Los Angeles
Basin, if you just look at the geographic area and if you look
at income demographics, there definitely is a skewing of one
side of town has a lot more activity where this might take
place and the other side of town, which might be more affluent,
doesn't have near any of this kind of activity, but at the same
time maybe none of that activity, for zoning purposes and
activity permits and things of that nature. So I am just
reflecting on what goes on in the L.A. Basin, and even with
coal ash, by the way, specifically, not just coal ash but other
elements, as well.
So one of my questions to you, Mr. Stanislaus, is, can you
describe some of the ways this rule will make coal-ash ponds
safer for vulnerable communities surrounding them?
Mr. Stanislaus. Sure. It begins with trying to prevent a
catastrophic failure. And, as we know, the TVA incident
occurred, essentially destroyed a community, caused about $1.3
billion of impact, you know. So it contains a rigorous set of
requirements to prevent those kinds of things--regular
inspections, structural evaluation, engineering evaluation. And
based on that evaluation, impoundments will either have to
enhance the structural stability or, if they cannot, they would
have to close that facility.
With respect to preventing groundwater--it begins with
putting in place a comprehensive program of groundwater
monitoring and, if groundwater monitoring exceeds protective
standards, immediately moving forward on cleaning up the
groundwater. And in situations where an online impoundment
exceeds the groundwater protection standards, then they would
have to close.
So those are some of the elements. And, also, the other big
issue is dust. We have heard from many communities about coal-
ash dust. So we have put in place a comprehensive program to
control coal-ash dust from migrating into communities.
Mr. Cardenas. OK.
Now, the EPA, when you make this rule, how do you come
about it? Too many people, in my opinion, whether elected or
not, in this country keep thinking that anytime you have
regulations they are just trying to hurt business. I mean, what
kind of effort goes into making sure that you strike some kind
of balance and understanding of what is going on in the real
world and what should happen to create the public safety
requirements that we should--should we have standards in the
United States of America?
Mr. Stanislaus. Sure. I mean, I can begin with kind of
listening to and evaluating all the comments that we receive
from everyone--you know, clearly, the communities impacted.
But, clearly, we have to have an implementable rule. And so we
looked at the pragmatic issues of how can it be implemented in
a realistic way that considered the on-the-ground circumstance
of size of the unit.
So we think it is a protective rule and a rule that is
pragmatic and considers the on-the-ground construction issues.
Mr. Cardenas. So you are not just going into this blindly
without understanding and appreciating what is going on in the
real world and the day-to-day effects of a particular industry?
Mr. Stanislaus. That is right. It is very much data-driven
and scientific-driven and reflecting the comments we have heard
from all stakeholders.
Mr. Cardenas. OK. So commerce is something that is taken
into account, as to the flow and effects of commerce, when
these decisions and/or these processes are discussed?
Mr. Stanislaus. Oh, sure. You know, we want to make sure
that--again, the challenge of closure and the relative size of
that and also kind of avoiding, you know, the billion-dollar
consequence of these catastrophic failures. So all of that goes
into our consideration.
Mr. Cardenas. Uh-huh.
I know there are more examples outside the United States of
incidents, catastrophic incidents, more than in the United
States, so far, as your data and research shows?
Mr. Stanislaus. Ours is based purely on the U.S.
information, so I don't know the answer to that question.
Mr. Cardenas. Well, what I would like to recommend--I don't
think it is beyond your purview to at least understand what is
going on in the rest of the world, because, especially since
the world is getting smaller with all of this international
commerce, I think it is important for us to understand, as
Americans, how having regulations here that don't happen in
other parts of the world, how people are affected when they
don't have that. I think that, as Americans, we are kind of
spoiled by what we don't see and the regulations that do, in
fact, protect us.
And a point of personal privilege. I would like to correct
myself, Mr. Chair. We don't have coal ash in the L.A. Basin or
in California, but I was thinking about the piles of petroleum
coke that we have in the L.A. Basin. So I apologize, and I
wanted to correct myself.
Thank you so much, Mr. Chair. I yield back.
Mr. Shimkus. You are more than welcome. It is great to have
you on the subcommittee. And we could provide you some coal
ash, if you would like some, in the L.A. Basin on some
railcars. How about that?
So we want to thank you for coming. Again, great work. We
will listen to the second panel and see what--I would expect
that we would try to maybe look at some of these tweaks that
you have heard about today.
And, with that, we will dismiss you and we will empanel the
second panel. So thank you very much for coming.
So, as our second panel is being seated, just for the sake
of time, I am going to--I have done this numerous times, and I
always mess up. So I think I will just do the introduction of
each person right before they give the 5-minute opening
statement.
Our panelists all know that their full statement is
submitted for the record. And just based on time, and we don't
know when the votes are, we won't be mean about the 5 minutes,
but we would like for you to adhere to that as best as
possible.
So, with that, I am going to turn to the second panel and,
first, Mr. Thomas Easterly, who is the commissioner of the
Indiana Department of Environmental Management.
We are very happy to have you here. And, sir, you are
recognized for 5 minutes.
STATEMENTS OF THOMAS EASTERLY, COMMISSIONER, INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT; MICHAEL G. FORBECK, ENVIRONMENTAL
PROGRAM MANAGER, BUREAU OF WASTE MANAGEMENT, PENNSYLVANIA
DEPARTMENT OF ENVIRONMENTAL PROTECTION; LISA D. JOHNSON, CHIEF
EXECUTIVE OFFICER AND GENERAL MANAGER, SEMINOLE ELECTRIC
COOPERATIVE, INC.; THOMAS H. ADAMS, EXECUTIVE DIRECTOR,
AMERICAN COAL ASH ASSOCIATION; JAMES R. ROEWER, EXECUTIVE
DIRECTOR, UTILITIES SOLID WASTE ACTIVITIES GROUP; ERIC
SCHAEFFER, DIRECTOR, ENVIRONMENTAL INTEGRITY PROJECT; AND FRANK
HOLLEMAN, SENIOR ATTORNEY, SOUTHERN ENVIRONMENTAL LAW CENTER
STATEMENT OF THOMAS EASTERLY
Mr. Easterly. Thank you, Chairman Shimkus and Ranking
Member Tonko and members of the subcommittee.
Good morning. My name is Thomas Easterly, and I am the
commissioner of the Indiana Department of Environmental
Management, also known as IDEM, and I bring you greetings from
Governor Pence of Indiana also. And we appreciate the
opportunity to share Indiana's views on the EPA's final coal
combustion residuals rule, which we call ``CCR'' on occasion.
I am also representing the Environmental Council of the
States, which we call ``ECOS,'' whose members are the leaders
of the State and territorial environmental protection agencies.
ECOS has worked on the CCR issue for many years, and our
resolution on CCR regulation was first passed in 2008 and has
been reaffirmed as recently as 2013. While EPA's final rule
responds to some of the concerns outlined in ECOS's resolution,
other longtime State concerns remain unaddressed.
As an initial point, I express agreement with EPA's finding
that coal ash is not a hazardous waste and that coal ash can be
safely and beneficially reused. EPA's use of RCRA Subtitle D
for coal ash is consistent with ECOS's resolutions.
As a longtime regulator, I have observed firsthand the
tragic adverse environmental and human health impacts of CCR
surface impoundment failures. These structural engineering
failures devastate people's lives, destroy property, and
contaminate natural resources. The EPA's self-implementing rule
contains robust national structural integrity provisions which
should result in a meaningful reduction in CCR impoundment
failures in the future.
The rule also creates a consistent national set of
requirements, many of which are already in place in various
States, to prevent adverse environmental impacts to our water
and air. Units unable to meet the new criteria will have to
close. So they will be solving the problem.
Most important to IDEM and other States is that EPA's final
rule explicitly recognizes the major role State regulatory
agencies currently have and should continue to maintain in
overseeing CCR. However, by finalizing a self-implementing rule
that can only be enforced through citizen supervisions of RCRA,
the role of State regulation, oversight, and enforcement will
be significantly marginalized.
EPA envisions that the key State role in this program will
be maintained by States amending their solid waste management
plans to incorporate the new Federal requirements. EPA expects
that, once approved by EPA, the amended plans will receive
deference by the courts and citizens.
While the requirements of the rule are self-implementing
for the regulated units, the rule schedules and requires States
to achieve final solid waste management plan amendment, with
EPA approval, on a schedule which cannot be met by many States,
including Indiana.
In order to ensure transparency, Indiana's laws require my
agency, IDEM, to have four public notices, with associated
comment periods, for new regulatory action. This public process
normally takes at least 18 months, yet some of the self-
implementing deadlines in this regulation are as short as 6
months, making it impossible for Indiana to have regulations in
place to implement those portions of the rule.
Yet, after the State plan is amended and approved by EPA,
the new CCR rules will remain independently enforceable through
RCRA citizen suits in Federal district courts. EPA does not
have the legal authority under RCRA Subtitle D to delegate the
new rules to the States.
I would now like to address the need for a legislative
amendment to RCRA on CCR issues.
ECOS testified before this committee in April 2013 in
support of the bipartisan efforts in the House and Senate 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.
Legislation still would be beneficial in several ways to
achieving this goal. First, legislation could codify EPA's
determination that coal ash is nonhazardous and get the going-
back-and-forth concern done forever. Second, State programs
simply cannot operate in place of the Federal program without
legislation. Third, legislation can add certainty to the
process of EPA approving State solid waste management plans by
making clear the criteria EPA would apply to determine whether
a State program meets the Federal CCR standards. And, fourth,
legislation could enhance and clarify enforcement of CCR
requirements.
Mr. Chairman, Mr. Ranking Member, and members of the
subcommittee, I thank you for the opportunity to present my
views and those of ECOS to you today, and I am happy to answer
any questions.
[The statement of Mr. Easterly follows:]
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Mr. Shimkus. Thank you very much.
And I failed to do it and will do it with Mr. Forbeck, but
I would also mention that you are representing the
Environmental Council of the States. And they have been very
helpful in the process. We look forward to working with you.
And now I want to recognize for 5 minutes Mr. Michael
Forbeck, Environmental Program Manager from the Pennsylvania
Department of Environmental Protection, Bureau of Waste
Management, and on behalf of ASTSWMO.
So you are recognized for 5 minutes.
STATEMENT OF MICHAEL G. FORBECK
Mr. Forbeck. Good morning, Chairman Shimkus and Ranking
Member Tonko and members of the subcommittee. My name is
Michael Forbeck, and I am president of the Association of State
and Territorial Solid Waste Management Officials, ASTSWMO, and
I am here on behalf of ASTSWMO to testify.
ASTSWMO's association represents the waste management
remediation programs of 50 States, 5 territories, and the
District of Columbia. Our membership includes State program
experts with the individual responsibility for the regulation
and management of solid and hazardous waste.
Thank you for the opportunity to provide testimony on the
EPA final rule on disposal of coal combustion residuals from
electric utilities. The rulemaking has been of longstanding
importance to ASTSWMO. We were very pleased to see and are in
full agreement with EPA's promulgation of the final rule under
Subtitle D of the Resource Conservation and Recovery Act.
The focus of my testimony is on the issue of dual State and
Federal regulatory authority we see as the result of the final
rule's self-implementing construct. We are not offering
testimony on specific technical requirements in the rule, as
groups with ASTSWMO are looking at these as well as beneficial-
use components, and we will have additional input on the
specific provisions at a later time.
EPA has issued the rule under Subtitle D, part 257, which
is self-implementing. The RCRA statutory basis for part 258,
however, governing municipal solid waste landfills includes
requirements for States to develop and implement a permit
program to incorporate the Federal criteria and for EPA to
determine whether those permit programs are adequate to ensure
compliance with the criteria.
In ASTSWMO's comments to EPA regarding the 2010 proposed
rule, we pointed out that self-implementing standards would set
up a dual State and Federal regulatory regime for owners and
operators that would be problematic for the effective
implementation of the requirements of the CCR facilities.
ASTSWMO recommended that a final rule under part 257 include
explicit language that EPA views compliance with a State
program that meets or exceeds the Federal minimum criteria as
compliance with that Federal criteria.
We appreciate EPA hearing our concerns about dual State and
Federal regulatory authority and their efforts, working within
the bounds of their statutory authorities, to provide a
mechanism through the State solid waste management plans to
address our concerns. However, we see difficulties with the
State plan mechanism, which are as follows:
One is timing. In order for States to adopt these minimum
standards by amending their solid waste management plans,
thereby avoiding dual regulatory authority in theory, the
process would have to be completed within 6 months of the date
of publication of the final rule in the Federal Register. This
is insufficient time, since the potential lengthy public
participation process involved in the submission of State plans
under 40 CFR, part 256, could preclude a timely approval even
if it went smoothly. So there would still be dual State and
Federal implementation for a time period past 6 months.
Solid waste management plans also fall short on full State
implementation because, even after passage and approval of the
plans, as stated in the preamble of the rule, EPA approval of a
State solid waste management plan does not mean that the State
program operates in lieu of the Federal program. Thus, the
plans would not fully alleviate dual implementation of State
and Federal standards.
In the preamble, the EPA states that a facility that
operates in accordance with an approved solid waste management
plan will be able to beneficially use that fact in a citizen
suit brought to enforce the Federal criteria. This is
subjective and speculative, as no one with absolute certainty
can predict a court's decision. Further, citizen suits filed in
different jurisdictions can result in individual courts
interpreting the plan and rule differently, thus rendering
different decisions that lead to inconsistent implementation of
the rule.
There is also a concern that more sections of the solid
waste management plan than the narrow reopening of the plan to
incorporate CCR rule would be reviewed by EPA and potentially
require additional revisions to the State plans that may be
beyond the scope of CCRs.
ASTSWMO believes that legislation such as H.R. 2218 that
was passed by the House in the last Congress would provide for
the certainty of State primacy in implementation through State
permit programs for CCR, enforceable by the State, and provide
a clearer and consistent understanding of the permitting and
enforcement rules of the State. State permit programs for CCR
would have the additional benefit of allowing flexibility for
States to have regionally appropriate State standards.
In conclusion, we appreciate EPA's decision to regulate
CCRs under Subtitle D and providing a mechanism within the
confines of part 257 for implementation of the rule by the
States. However, the revision of the solid waste management
plan does not fully eliminate dual implementation of CCR
regulatory programs. ASTSWMO looks forward to working closely
with the EPA and Congress regarding the CCR rule
implementation.
Thank you again for the opportunity to provide this
testimony, and I will be here for questions.
[The statement of Mr. Forbeck follows:]
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Mr. Shimkus. Thank you very much.
Next, we would like to recognize Ms. Lisa Johnson, chief
executive officer and general manager of Seminole Electric
Cooperative, Incorporated.
And just for your information, I have a lot of cooperatives
in my district, and we appreciate the work you all do.
STATEMENT OF LISA D. JOHNSON
Ms. Johnson. Thank you, Mr. Chairman. And good afternoon.
My name is Lisa Johnson, and I am the CEO and general manager
at Seminole Electric Cooperative, headquartered in Tampa,
Florida.
Seminole is one of the largest not-for-profit generation
and transmission cooperatives in the country. Seminole is owned
by nine not-for-profit consumer-owned electric cooperatives,
and, collectively, we provide safe, reliable, competitively
priced electricity to more than 1 million consumers and
businesses in parts of 42 Florida counties.
On behalf of Seminole and the National Rural Electric
Cooperative Association, I would like to thank you for your
time this morning as I present our testimony on this important
issue.
Seminole would like to acknowledge that we support the
Environmental Protection Agency's decision to designate coal
combustion residuals, or CCRs, as nonhazardous. The EPA's
approach, supported by data from its own investigations,
balances the need to protect public health and the environment
without creating an undue burden on affected facilities.
Even with a nonhazardous final rule, we are seeking your
support to provide additional legislative certainty.
Seminole owns and operates Seminole Generating Station, or
SGS, a 1,300-megawatt coal-fired power plant in Putnam County,
Florida, employing nearly 300 hardworking, skilled Floridians.
SGS has more than $530 million of environmental control
equipment, making it one of the cleanest coal-based power
plants in the U.S.
Seminole generates approximately 800,000 tons of CCRs per
year. However, Seminole recycles more than two-thirds or
roughly 530,000 tons per year of our CCRs to produce wallboard,
cement, and concrete block.
At SGS, one CCR material is converted into synthetic gypsum
and sold to Continental Building Products. Continental is a
wallboard production facility specifically constructed in 2000
to utilize the synthetic gypsum from SGS.
Since 2000, more than 7 million tons of this CCR material
have been converted into wallboard--wallboard used to build
homes and businesses throughout Florida and the country.
Seminole also recycles all of the facility's bottom ash to
manufacture cement and stronger, lighter concrete block. If not
used beneficially, these byproducts would have been placed in a
landfill.
In 2009, Seminole received a sustainable leadership award
from the Council for Sustainable Florida for our beneficial
reuse of CCRs. And SGS was named one of the top six coal plants
in the world by Power Magazine for our recycling practices and
environmental accomplishments.
One of Seminole's most important goals is to operate our
power plants in a safe, environmentally responsible manner and
in full compliance with all permits issued by the Florida
Department of Environmental Protection and the EPA, bringing us
to one of our concerns with the new rule.
While EPA will now regulate CCRs as nonhazardous, the rule
is self-implementing, which means facilities covered by the
rule must comply with the Federal rule regardless of adoption
by the State. For example, should Florida adopt the EPA's final
rule, the Federal rule also remains in place, creating dueling
regulatory regimes.
As a self-implementing final rule, the typical method for a
State or citizen group to check compliance at a facility that
may or may not be adhering to the rule is to file suit against
the facility. This could result in frivolous and costly legal
disputes in Federal district courts, where the resulting
interpretations and penalties could vary significantly. For
not-for-profit electric cooperatives, this is especially
troublesome, as any costs incurred must be passed on to the
consumer-owners at the end of the line.
We ask that you eliminate the legal double-jeopardy aspect
of this rule if a State fully adopts the EPA's new final rule.
The next major concern we have with the rule is the
complete lack of certainty that CCRs will continue to be
regulated as nonhazardous. For Seminole, this is extremely
problematic, as a major component of SGS design is based on our
environmental control systems and our recycling practices.
Should EPA decide to regulate CCRs as hazardous at a later
time, Seminole would be forced to dispose of CCRs, turning a
beneficially used product into an expensive landfilled waste
stream, driving up the cost of electricity for our cooperative
consumers.
On numerous occasions, the EPA has determined that CCRs are
not hazardous, and there are no new findings to justify a
change in EPA's determination. We ask that you end the
continuous reevaluation process and confirm that CCRs are and
will continue to be regulated as nonhazardous.
For Seminole and other affected facilities, we are seeking
regulatory certainty so that we can continue to provide safe,
reliable, and affordable electricity while fully complying with
all applicable rules, regulations, and laws.
On behalf of Seminole and NRECA, I thank you for the
opportunity to meet with you today and share our views on this
very important rule.
[The statement of Ms. Johnson follows:]
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Mr. Shimkus. Thank you very much.
Now I would like to turn to Mr. Thomas Adams, executive
director of American Coal Ash Association.
You are recognized for 5 minutes, sir.
STATEMENT OF THOMAS H. ADAMS
Mr. Adams. Mr. Chairman, my name is Thomas Adams. I am the
executive director of the American Coal Ash Association. I
would like to thank you for the opportunity to come and speak
to you and the subcommittee today about one of America's
greatest recycling success stories and how that continued
success depends on regulatory certainty.
The ACAA was established almost 50 years ago to advance the
beneficial use of coal combustion products in ways that are
environmentally responsible, technically sound, commercially
competitive, and supportive of a sustainable global community.
We are not a large trade association. We are not based in
Washington, DC. We are headquartered in Farmington Hills,
Michigan, and have a staff of two full-time employees. We rely
on volunteer members to accomplish our work, which is mostly
technical.
I would like to emphasize that, while we have some of the
largest utilities in the country as members, most of our
members are small businesses, comprised of people who have
dedicated their entire career to the cause of beneficial use
and improving our environment. It is these small businesses
that were hurt most by the regulatory uncertainty EPA created
in 2009 when it suggested the possibility of ``hazardous
waste'' designation for coal-ash management.
There are many good reasons to view coal ash as a resource
rather than a waste. Using it conserves natural resources,
saves energy, and significantly reduces greenhouse gas
emissions from the manufacturing of products that it replaces.
In many cases, products manufactured with coal ash perform
better than products made without it. For example, the American
Road and Transportation Builders Association determined that
the use of coal ash in concrete roads and bridges saves
departments of transportation across the country over $5
billion per year.
It is important to remember in this conversation that coal
ash has never qualified as hazardous waste based on its
toxicity. It does contain trace amounts of metals, and those
metals are found at similar levels in soils and hundreds of
household items. An ACAA study released in 2012 analyzed data
from the U.S. Geological Survey which showed that concentration
of metals and coal ash, with very few exceptions, are below
environmental screening levels for residential soils and are
similar to the concentrations found in common dirt. Despite a
drumbeat of publicity by anti-coal environmental groups, coal
ash is no more toxic than the manufactured materials it
replaces.
Unfortunately, this discussion has had real-world negative
consequences for the beneficial use of coal ash. When EPA began
discussing a potential ``hazardous waste'' designation for coal
ash in 2009, the Agency cast a cloud over beneficial use that
caused coal-ash users across the Nation to decrease beneficial-
use activities. The volume of coal ash used since 2008 has
declined every year since that year.
The decline of beneficial use stands in stark contrast to
the previous decade's trend, when in the year 2000 the
recycling volume was 32.1 million tons at the time when the EPA
issued its final regulatory determination that the regulation
of coal-ash management as hazardous waste was not warranted.
Over the next 8 years, with EPA encouragement, coal-ash
beneficial use skyrocketed to 60.6 million tons and almost a
100 percent increase in the use. According to the most recently
released data from 2013, 51.4 million tons of CCPs were
beneficially used, down from 51.9 million in 2012 and well
below the 2008 peak.
The great irony of this lengthy debate over coal-ash
disposal regulations is that the debate caused more ash to be
disposed. If the past 5 years had simply remained equal to
2008's utilization, we would have seen 26.4 million tons less
coal ash put into landfills and impoundments.
The ACAA appreciates EPA's final decision to regulate coal
ash as nonhazardous. We believe this decision puts science
ahead of politics and clears the way for the beneficial use of
coal ash to begin growing again, thereby keeping millions of
tons out of landfills and ponds in the first place.
We are also painfully aware, however, that EPA has made
final decisions before, only to reverse course in the future. A
hazardous-versus-nonhazardous debate occurred prior to the
Agency's 2000 final determination, which 8 years later turned
out to be not so final.
Additionally, the final rule's preamble states that the
rule defers final double regulatory determination with respect
to CCR that is disposed in landfills and CCR surface
impoundments until additional information is available on a
number of key technical and policy questions. Apparently, 34
years of study, 2 reports to Congress, 2 formal regulatory
determinations, and a final rule issued after a 6-year
rulemaking process may not be enough for EPA to make a truly
final final determination.
Bills previously passed by the House would resolve these
issues permanently. The bills would put enforcement
responsibility authority in the hands of professional State
environmental regulators and expand EPA's authority to step in
if States don't do the job. ACAA supports this approach as
better public policy.
We would like to thank you, Mr. Chairman, for this
committee's diligence in addressing this issue. We believe it
is important to keep beneficial use at the forefront of U.S.
coal management policy. The best solution to disposal problems
is not to dispose.
[The prepared statement of Mr. Adams follows:]
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Mr. Shimkus. Thank you very much.
The Chair now recognizes Mr. James Roewer, executive
director of Utilities Solid Waste Activities Group, on behalf
of the Edison Electric Institute.
Welcome, sir. You have got 5 minutes.
STATEMENT OF JAMES R. ROEWER
Mr. Roewer. Good morning, Chairman Shimkus, Ranking Member
Tonko, members of the committee. I am Jim Roewer, executive
director of the Utility Solid Waste Activities Group, or USWAG.
I am pleased to present this statement on beside of USWAG, the
Edison Electric Institute, and the American Public Power
Association.
We support EPA's decision to regulate coal ash as a
nonhazardous waste, a decision which is consistent with the
rulemaking record and with the EPA's previous regulatory
determinations that coal ash does not warrant regulation as a
hazardous waste.
Our longstanding position is that EPA should develop a
regulatory program for coal ash patterned after the Federal
regulations in place for municipal solid waste landfills. They
would include design standards, location restrictions, dust
controls, groundwater monitoring and corrective action, as well
as structural stability controls for coal ash surface
impoundments.
However, while we support EPA's regulation of coal ash as a
nonhazardous waste, there are serious flaws in the new rule due
to statutory limitations. The problem is that RCRA's subtitle D
program does not authorize the implementation of Federal rules
through State permit programs, nor does it allow EPA
enforcement of those rules. The only exceptions are the
provisions under which EPA issued municipal solid waste
landfill rules, which are enforceable through State permit
programs with backup EPA enforcement authority.
USWAG urged EPA to use that authority in issuing this rule,
but EPA determined it could not. We are therefore left with a
rule that cannot be delegated to States and in which EPA has no
enforcement role. Because the rule cannot be delegated to the
States, it is self-implementing. And relegated new facilities
must comply with the rules requirement irrespective of whether
it is adopted by the States. Even if adopted by a State, the
Federal rule remains in place as an independent set of criteria
that must be met. EPA is clear on this point. It cannot, this
rule--the State program cannot operate in lieu of a Federal
program. This will result in dual and potentially inconsistent
Federal and State requirements. Most troubling, we are hearing
that some States might not even attempt to adopt the new rule,
which will guarantee new regulation.
In addition, the rule's only compliance mechanism is for a
State or citizen group to bring a RCRA citizen suit in Federal
district court. In fact, we believe this is the only Federal
environmental law that is implemented in that and enforced in
that way. This means legal disputes regarding compliance with
any aspect of the rule will be determined on a case-by-case
basis by different Federal district courts around the country.
Federal judges will be making complex technical decisions
regarding regulatory compliance, instead of allowing these
issues to be resolved by regulatory agencies that have the
technical expertise and experience necessary to answer such
questions. This is likely to produce differing and inconsistent
decisions regarding the scope and applicability of the rule,
depending on where a citizen suit is brought, and will
undermine the uniform application of the rule. This is not a
sound strategy for implementing a complex Federal environmental
program that has such significant implications for the power
generation industry.
Because the rule is self-implementing, EPA dropped risk-
based options for implementing elements of the groundwater
monitoring program and for conducting cleanups, reasoning that
such risk-based decisions require regulatory oversight. As a
result, the Federal rule effectively overrides existing State
risk-based regulatory programs for coal ash that have been
proven protective of human health and the environment.
Some of our members are in the middle of implementing long-
term site specific closures or cleanups for coal ash
facilities. We are concerned that the Federal rule's lack of
recognition of State risk-based closure or cleanup programs may
effectively negate these efforts.
The rule also regulates inactive impoundments, impoundments
no longer receiving coal ash but which contain water and have
not closed. We fully appreciate such inactive sites may pose
risks and steps should be taken to address those risks.
However, we do not believe the EPA has the authority to subject
past disposal practices to regulations for active--designed for
active units, as the agency has done in this rule.
Congress has authorized EPA to address risk from past
disposal under Superfund and by issuing site-specific remedial
orders if past disposal poses an imminent and substantial
endangerment. If EPA wants additional authority, we believe the
statute must be amended to grant EPA such authority.
Finally, the rule does not provide the desired certainty
that coal ash will not be regulated as a hazardous waste. EPA
makes clear that it will, at some point in the future, issue a
now regulatory determination regarding whether coal ash
warrants hazardous waste regulation. While EPA has for now
settled on the nonhazardous waste option, the Agency leaves the
door open to revising the rules and regulating coal ash as a
hazardous waste. This raises serious concerns.
Companies across the country will be investing huge
resources to come into compliance with the new rule, even as
EPA contemplates establishing a whole new regulatory program
that could effectively negate these huge capital expenditures.
We need regulatory certainty regarding the status of coal ash
under RCRA. This rule does not provide that.
I would like to thank the opportunity--I would like to
thank the subcommittee for the opportunity to present these
views and would be happy to answer any questions.
[The prepared statement of Mr. Roewer follows:]
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Mr. Shimkus. Thank you very much.
The Chair now recognizes Mr. Schaeffer, director of
Environmental Integrity Projects.
Sir, you are recognized for 5 minutes.
STATEMENT OF ERIC SCHAEFFER
Mr. Schaeffer. Thank you, Mr. Chairman, and members of the
committee. Thank you for the opportunity to testify. I am Eric
Schaeffer, director of the Environmental Integrity Project. We
work with citizens who live and work around coal ash sites. And
as certainty seems to be the theme for the hearing, I would
like the speak to what certainty might mean to those good
people, some of whom have been living with this problem for a
very long time.
First, I really don't think the folks in these communities
care whether you call it hazardous or whether you call it
peanut butter. They want coal ash out of their groundwater.
They don't want it in their lungs, and they would rather not
have 39 million tons of it dumped in their river as Duke Energy
did to the good people of North Carolina less than a year ago.
We hear that those kinds of problems are things of the past;
they aren't going to happen again. I will return to that, but,
obviously, they did happen.
So really the question is whether EPA's rule or anything
Congress does gives people most affected by coal ash pollution
the kind of certainty they are looking for. I just want to
point out that this issue has been bumped around for about 30
years. In that time, a lot of these disposal sites, which are
nothing more than holes in the ground, have deteriorated. The
cost of responding to spills and the resulting contamination
from just six companies now exceeds $10 billion. That is based
on Securities and Exchange Commission disclosures. That number
is going to climb, whatever happens; 30 years of no regulation,
a bill comes with that, and that bill is coming due.
Touching briefly on the rule, like everybody here, we like
some parts, we don't like others, not too unusual for an EPA
outcome. The siting and structural stability requirements could
be helpful and could prevent the kind of catastrophic spills we
have seen. Monitoring requirements are a good start, especially
if the data is put online and you don't have to pay hundreds of
dollars to obtain it, which you do in many States today.
I do have to say, though, it has some big loopholes. There
is no cleanup standard for boron. That is one of the most
pervasive pollutants, and it is found at levels far above
health standards at many coal ash sites.
Also, it is important to understand nobody is going to get
wind burn complying with the deadlines in EPA's rule, some of
which stretch literally from here to eternity. This is not a
fast-paced set of standards, and I encourage you to look at
those deadlines.
Before moving forward, I would respectfully ask that you
consider two things, two actions. First, I think you should
invite Duke Energy to appear before this subcommittee to talk
about the spill that happened less than a year ago because it
is important to get an understanding of the problem before
turning to a solution. You can then, with that information,
decide whether EPA has addressed the problem.
Here is what Duke said in 2009: We are confident, based on
our ongoing monitoring, maintenance, and inspections, that each
of our ash basins has the structural integrity necessary to
protect the environment.
So if you called in Duke Energy, you could ask them about
Dan River--because the statement was made about Dan River--so
what the heck happened? Is it going to happen again? Are you
certain it is not going to happen again, and how are you
certain?
North Carolina passed a law in the wake of that spill that
requires shutdown of active ash impoundments at active plants
in less than 4 years, a lot faster than EPA requires. Duke
Energy supported that bill. You might ask them why they
supported it and why those requirements wouldn't apply in a
place like Indiana where Duke also has plants. That is
certainty. They have to close by date certain. Couldn't be
clearer.
I would also hope that you consider giving citizens who
were affected by the coal ash pollution a chance to speak to
you directly without interpreters, without lobbyists. I would
gladly give my seat up so you could hear from them. I am sure
Jim would do the same thing. You can hear from them directly
about what it has been like and ask them what kind of certainty
they are looking for.
I think you will hear they would the certainty that leaking
dumps will be closed and cleaned up sometime in their lifetime.
I think you will hear that many of them have been waiting a
long time. I think they will want the certainty they won't get
stuck with the bill for that cleanup. They would like the
certainty that their ash pond is not going to collapse and fall
on top of them and dump ash into the river. I think they would
like the certainty they can bring their own legal action if the
State doesn't do anything. I think you will hear that, but let
them tell you directly.
I will just say, in closing, the citizens have worked on
these issues for a long time. They really do deserve to be
heard from. I hope you will give them that chance.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Schaeffer follows:]
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Mr. Shimkus. Thank you very much.
You all have done a great job. We have gotten through the
opening statements.
Last but not least, Mr. Holleman, senior attorney for the
Southern Environmental Law Center.
Sir, welcome, and you have 5 minutes.
STATEMENT OF FRANK HOLLEMAN
Mr. Holleman. Well, thank you, Mr. Chairman and Mr. Tonko
and other members of the committee for the opportunity to be
here.
My name is Frank Holleman, and I live in Greenville, South
Carolina. I am at the Southern Environmental Law Center, and we
work with local citizens in the South concerned about their
natural resources. A committee like this in Washington usually
hears from representatives of Government agencies and trade
associations. Today, I want to convey to you all the concerns
of local people who want to see their communities prosper and
their local rivers protected.
Let's look for a minute what we are facing in the
Southeast. The utilities have dug unlined pits in wetlands and
right beside our drinking water resources. They have put
millions of tons of industrial waste containing toxics, like
arsenic and lead, into these unlined pits, and they have filled
them full of water. These millions of wet tons of waste are
contained only by earthen dikes that leak. The toxic substances
in this industrial waste leach into the groundwater, which then
flows into the rivers and towards neighborhoods. This situation
is made worse because most of these pits are decades old and
their infrastructure is rotting.
We have had two catastrophic failures from this coal ash
storage in the south, by TVA at Kingston, Tennessee, and by
Duke Energy in the Dan River in North Carolina and Virginia.
One local water system is being forced to abandon public
drinking water wells. Fish have been killed in the hundreds of
thousands. Property values of nearby landowners have been
affected, and groundwater has been contaminated with substances
like arsenic.
My main point is this today, that Congress should not take
away from the--should not take away the rights of the local
communities to protect themselves from this dangerous coal ash
storage. The Congress should not leave the future of these
people to Government bureaucracies alone. The citizen's right
to enforce a new EPA rule is essential. Now what we have seen
in the Southeast is clear: The State agencies have not
effectively enforced the law against these politically powerful
entities. Let me give you examples.
In South Carolina, where I spent virtually all of my life,
it has been clear for years that unlined coal ash storage by
our three utilities violate antipollution laws, yet no
Government agency has taken action to force a cleanup. Local
organizations instead enforce the law with the result today
that all three utilities in our State are cleaning up every
water-filled riverfront coal ash lagoon they operate in the
State. And they are creating jobs. They are promoting
recycling. And one of our utilities calls these cleanups a win-
win for all concerned.
In North Carolina, nothing was happening to force Duke
Energy, which has a statewide monopoly to clean up its coal ash
lagoons. Local community organizations, not the State, had to
take the initiative to enforce clean water laws. For the first
time, North Carolina was forced to take action and confirmed
under oath that Duke Energy is violating State or Federal clean
water laws or both everywhere it stores coal ash in the State
and, under oath, that this polluting storage is a serious
threat to the public health, safety, and welfare.
Now a Federal criminal grand jury is investigating both
Duke Energy and the State environmental agency. And as a
result, Duke has pledged to clean up 4 of its 14 sites and to
look at all the rest.
In Tennessee, TVA continues, after Kingston, to store coal
ash in unlined polluting pits. Local citizens groups enforce
the Clean Water Act and only in response to that pressure, the
State of Tennessee has now confirmed, under oath, that TVA has
been and is violating Tennessee environmental laws by its coal
ash storage on the Cumberland River near Nashville.
In the South, we have seen that the people must have the
power to protect themselves and to enforce the law. The
citizen's right to enforce a new EPA rule is a principal reason
to have hope that these minimum Federal criteria will play a
role in cleaning up a legacy of dangerous coal ash storage in
our Southeast. Thank you.
[The prepared statement of Mr. Holleman follows:]
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Mr. Shimkus. Thank you, sir.
I will now recognize myself for 5 minutes for the first
round of questioning.
The first question is for Ms. Johnson.
How would your company make compliance decisions if the
Florida Department of Environmental Protection sets
requirements that are not exactly the same even if they are
more stringent than the final rule?
Ms. Johnson. Thank you, Mr. Chairman.
It would be a challenge. Clearly, we would have to comply
with both sets of rules and whatever the requirements would be.
If one was more stringent than the other, we would look to
comply with the stringent rule, except in this case, we would
know that there would be the potential of having both
regulatory regimes competing with each other for our
compliance, not to mention the fact that I think that makes us
vulnerable as an operator of a facility to third-party lawsuits
that may question which actual regulation is the leading one.
So it would be very challenging.
Mr. Shimkus. And for Mr. Roewer, in the final rule, because
it is quote/unquote ``self-implementing,'' EPA eliminated much
of the flexibility of corrective action program as exists under
all subtitle D programs. Could you please walk us through what
flexibilities were eliminated and what that would mean for
closure and corrective action?
Mr. Roewer. Thank you. There are a few instances where the
Agency is contemplating a different approach to allow for a
potentially risk-based decision to establish a point of
compliance, to establish an alternative groundwater protection
standard.
For unlined units to even engage in corrective action and
not have to shut down summarily, the Agency recognized that the
regulatory oversight from a regulatory agency wouldn't be there
under a self-implementing rule--regulatory oversight to ensure
that that risk-based decisionmaking is appropriately applied--
and backed away from that. And instead we are faced with this
self-implementing rule. So they take away a lot of the tools
that State regulatory agencies have in prescribing cleanups, in
prescribing corrective actions.
Mr. Shimkus. Yes, and go back and briefly explain this
risk-based decisionmaking, what it is, and how it may be
incorporated into a State coal ash program.
Mr. Roewer. Well, a State could take into account whether
there is a receptor downgrading it from the facility. You are
seeing a release, but is it in fact presenting a risk to human
health and the environment? And they can take that into account
when they are making a decision about whether corrective action
is needed or what type of correction action--corrective
measures must be implemented by the utility.
Mr. Shimkus. In your opinion, would EPA be able to approve
a State program that incorporated any of the flexibility for
corrective action, including a risk-based decisionmaking
process?
Mr. Roewer. The rule is rather clear about what you have to
achieve in corrective action. You must meet that standard. If
you don't meet that standard, you can, so I would have to
answer no. I couldn't see how EPA could say that a State
program that incorporates that sort of risk-based
decisionmaking is the equivalent of the Federal rule.
Mr. Shimkus. Thank you.
Mr. Forbeck, as an experienced State regulator yourself, I
presume you have spoken with your counterparts in other States.
Can you share your initial thoughts on the final rule, in
particular the implementation?
Mr. Forbeck. Well, as I testified, we have a real issue
with the implementation because we feel it still would be a
dual process. And it would be very confusing for the States.
They have to decide whether or not, one, they are going to even
open up their solid waste management plan, and even if they do,
will that really even alleviate the dual regulatory regime? We
do not think it will.
Mr. Shimkus. And who testified in their opening statement--
because we have a big panel--about the 6 months required under
the EPA?
Mr. Forbeck. That was ours.
Mr. Shimkus. That was yours.
Mr. Forbeck. Right.
Mr. Shimkus. And then some States might take 18 months to
do their solid waste plan based upon the laws in the States
about hearings and notifications and the like.
Mr. Forbeck. That is correct. The issue is it is not just a
simple fix, that we open the plan and it is approved. It is a
public participation process, which is fine, but that will take
some extra time.
Mr. Shimkus. And, finally, my last question is for Mr.
Easterly. Your written testimony states that the opening and
approval of a State solid waste management plan must be
completed on an aggressive schedule that Indiana cannot meet.
Can you explain why that is and whether you expect that would
be a problem other States might have as well? And tell Governor
Pence ``hi'' for us.
Mr. Easterly. OK. Yes, other States will have that problem.
Some States may or may not have the right authority. Some
States, the rules have to go through the legislature before
they can actually go into effect.
In my State, I have to publish a first notice with a 30-day
comment period that I am going to do a rule; a second notice
with the words of the rule in it with another 30-day comment
period. Then I have to publish a notice of a hearing in front
of the environmental rules board for preliminary adoption; then
one for final adoption. Then the attorney general gets days to
review it, the Governor gets days to review it, and the
secretary of state publishes it. And it takes 18 months.
Mr. Shimkus. And I thought we were bad.
So now the Chair recognizes the gentleman from New York,
Mr. Tonko, for 5 minutes.
Mr. Tonko. Thank you, Mr. Chair.
And welcome, everyone. Unsafe disposal of coal ash poses
very serious risks to human health and to the environment. A
number of damage cases cited by EPA in the final rule is more
than ample proof that current regulation isn't working for many
communities.
In 2009, this subcommittee held a hearing on damage from
coal ash disposal. We heard from victims who lost their homes,
their businesses, and their health to coal ash contamination.
In the time since that hearing, problems have continued.
Hopefully, the implementation of this rule will reduce these
events and their costs going forward.
For today, I would like to focus on a recent high-profile
damage case and what it can teach us about compliance and about
enforcement.
Mr. Holleman, can you tell us a little bit about the Dan
River spill?
Mr. Holleman. Yes, Mr. Tonko. It has been a real tragedy,
and how it happened illustrates how State enforcement and
utility oversight by itself has not worked. And let me tell you
why I say that.
The basic cause is the Dan River site is an old site. Like
virtually everyone in North Carolina, you have these old pits.
And somebody, in the course of constructing that site, had the
bright idea of putting a storm water pipe under one of these
coal ash lagoons. Back in the 1980s, Duke had received in its
own files--and the State had this--a dam safety report warning
them about this problem of having a corrugated metal pipe under
a coal ash lagoon. And in subsequent reports, there were
constant references to be sure you check this pipe, be sure you
check this pipe, be sure you watch what is coming out of this
pipe.
Well, instead, this old site, which, unfortunately, was
built right on the banks of the Dan River, which is true of all
these--most all these facilities, they are right on the banks
of rivers, right upstream from a drinking water source--that
pipe on Super Bowl Sunday, a year ago, broke, corroded, finally
gave way and spewed coal ash and also 24 million gallons of
coal ash polluted water into the Dan River.
Subsequently, Duke has said it has done all it can do, and
it has removed less than 10 percent of the ash in that river,
thereby declaring defeat. In other words, once one of these
spills occur, they cannot clean it up.
Now, why were we even in a position that this should
happen? Because we were engaging in the foolhardy practice of
storing this industrial waste in a riverside lagoon, filled
with water, held back by earth that leaked--earthen dikes that
leaked with rotting infrastructure. Had that ash, as is
happening in South Carolina today as we speak, had that ash
instead been stored in a dry state, in a lined landfill like we
require for simple municipal garbage, away from the river, this
would never have happened.
In other words, these sites are engineered or not
engineered to be as dangerous as possible. The shocking thing
is, the Dan River site is the smallest coal ash site that Duke
has in the State of North Carolina. In that sense, in some odd
way, we were fortunate.
Mr. Tonko. Thank you. We have heard from other witnesses on
your panel that States are best positioned to enforce coal ash
disposal requirements. Do you think States have proven their
ability to effectively enforce coal ash rules?
Mr. Holleman. Well, just take the Dan River for example.
The State had never required a cleanup. In fact, believe it or
not, 6 months before the spill, in response to a notice a
citizen sent, the State was forced to file a lawsuit. Six
months beforehand, it stated in writing in a public must filing
under oath that Duke was violating State and Federal clean
water laws at that site and that if those things were not
corrected, it was a serious threat to public health, safety,
and welfare. And not one thing was done in the ensuing 6 months
to get the ash moved out of that site. That is one
illustration.
Mr. Tonko. Mr. Schaeffer, do you agree with that
assessment?
Mr. Schaeffer. I do. We have had similar experiences in
Pennsylvania. To take an example, the citizens around the
Little Blue Run impoundment felt like they couldn't get the
time of day----
Mr. Shimkus. Turn the microphone on, please.
Mr. Schaeffer. They felt like they weren't getting a
response from the State and response to their repeated
complaints. We filed notice of intent on their behalf to bring
a suit. The State turned around, decided the site presented an
imminent and substantial endangerment, required its closure and
required, we think, a pretty aggressive cleanup and the State
did credit citizens for getting that resolved.
Mr. Tonko. Thank you.
Mr. Shimkus. The gentleman's time is expired.
The Chair now recognizes Mr. Harper from Mississippi.
Mr. Harper. Thank you, Mr. Chairman.
I am going to yield my time to the gentleman from West
Virginia, Mr. McKinley.
Mr. McKinley. Thank you, Mr. Harper.
I appreciate that. A whole host of subjects here with this
panel that we have before us, and one of them, one of the
issues that has been dear to us in the panhandle of West
Virginia has been the Little Blue Run. We have done--Mr.
Schaeffer, despite your comments, we had that, we had the
Havens here. We have had people that have experienced that. We
want to hear that. We want to make sure that we are sensitive
to that. So this panel, this committee had done that and maybe
should continue to do that even more, but they were here to
testify about what the situations were like, and I thought it
was a very moving testimony from their part.
But Little Blue Run is now under your group, Mr. Holleman,
I guess the Environmental Integrity Project, or--that is yours?
OK. You put out a report that was called, ``In Harm's Way: Lack
of Federal Coal Ash Regulations Endanger Americans and Their
Environment,'' and that was given to the Pennsylvania because
they are the ones primarily responsible for the Little Blue
Run. And they did a very exhaustive study because they want to
respond.
You know, these allegations of people, these threats going
on, they came back and they said, based on the review of the
information in this report for this particular facility, DEP of
Pennsylvania concludes that the allegations regarding
groundwater and surface water contamination are unfounded.
So I want us to be careful that we can come here and make
these--you testify to these. There are adequate responses, and
there are recourses for it and DEP looked into it. I have
pursued this because I think it is said, we need to be careful
about that.
I have been in touch with Pennsylvania about their--how
they monitored Little Blue, and West Virginia as well, and we
see that they levied fines. They have indeed done what they
said they were going to do, and that was to enforce the law and
the requirements with it. So I think that it appears to me from
their reports and their letters and their correspondence, they
are trying to be good stewards of the environment. And they are
enforcing that.
So I am just--so I am curious. We passed legislation in the
112th, 113th that dealt with the existing and future
impoundments. Lined, unlined, addressing those issues, we
included in that language, because I have heard you say it
several times here, about siting restrictions or in that
language but didn't your group oppose the bill? Either one of
you.
Mr. Schaeffer. We certainly did and would continue to do
that. The siting restrictions in that legislation we don't
think were comparable to the rule the EPA adopted.
Mr. McKinley. If I can recover my time. The reason that I
raise these issues to you is that----
Mr. Schaeffer. I could answer your question if I could get
that----
Mr. McKinley. If I could recover my time, please, on it.
Mr. Schaeffer. OK.
Mr. McKinley. Is that if we don't pass the legislation,
then we stay the way we have been since the 1960s, and that
hasn't worked. That is what has caused a lot of these issues.
We are trying to find a way to get a resolution, and we are
trying to find a solution. Here is a bill. If we have to tweak
it or so, but to defeat it, as they did over in the Senate,
that wasn't productive. We had a bill. We are going to do it
again this year, and we are going to see it, and I hope that
people have some concerns about it work with us because we have
got to reach certainty.
I heard all the testimony. We have got to find a way to
close the door so the people that are making the investment in
their respective facilities know that tomorrow they will be
able to continue to operate. So it is very important that we
pass the legislation to close up these loopholes, close up so
many issues that have defined us and made it a negative.
So, with that, I thank you for your testimony. I hope that
you will continue to work with us, all of you, the entire panel
as we perfect this, if we need to go even further with it. So,
with that, I yield back the balance of my time.
Mr. Shimkus. The gentleman yields back his time.
Without objection, I ask unanimous consent to allow Mr.
Schaeffer to respond for a minute to----
Mr. Schaeffer. Thank you.
Mr. Shimkus. We kind of abide by rules.
Mr. McKinley gets another 5 more minutes, so we are going
to let you interject here before he goes next again.
Mr. Schaeffer. I very much appreciate that, Mr. Chairman. I
will be quick.
It really is useful to compare what Pennsylvania said in
its complaint in 2012 about the condition of that site to what
they told EPA the condition of that site was during the
rulemaking process. It is really kind of different. You will
see very different statements. You will the State saying the
sites leaked. You will see them saying that the company has--
their practice has presented imminent and substantial danger to
the environment. You don't see any of that coming through in
the testimony to EPA.
The enforcement action the State took--and I just don't
want this point to get lost--came after the citizens filed a
notice of their intent to sue the company for those violations,
not before. It came after. Now, Pennsylvania, if they would
like to tell you they were going to do it anyway, I would be
happy to hear that. That is great, but we didn't get that
feeling.
Mr. Shimkus. Yes,fortunately, you have got 17 seconds left.
We will allow Mr. Forbeck from the great State, the
Commonwealth of Pennsylvania, to respond.
Mr. Forbeck. Yes. Actually, I am very family with the
Little Blue Run. This is for me--for Pennsylvania. I actually
signed the consent decree going through the procedures to close
this facility.
We actually had been looking at that site long before the
suit was filed. And if anything, that is what is the beauty of
the system that we have in place is that we have groundwater
monitoring; we have air monitoring; we have all these factors
that are in place that we are constantly looking at a facility.
We are constantly looking at the compliance of that, and,
therefore, it is a moving target. At one point, it may be one
thing; at another in the future, it may be another. But we have
those monitoring points in place that can tell that.
So, yes, we actually had started enforcement procedures
before that, and because of this and the issues that we found,
we are--they are actually closing the largest coal combustion
impoundment in the United States in an environmentally safe
manner.
Mr. Shimkus. Thank you very much.
Now, because of the magic of our rules, the Chair recognize
the gentleman from West Virginia.
Are you done?
Mr. McKinley. I am done. Thank you.
Mr. Shimkus. OK. Thank you.
The Chair now recognizes the gentleman from North Dakota,
Mr. Cramer for 5 minutes.
Mr. Cramer. Thank you, Mr. Chairman.
And thank you all of the panelists. I just want to--I want
to get to one very specific point. To me, it is obvious that
the patchwork, the inconsistency potential, the uncertainty
that would be created by self-implementation and enforcement by
courts, that is a problem. That is a problem for me on lots of
fronts. But I would like at least the two regulators to speak
to the issue.
If we were to tighten that up, put State primacy in place,
as it is in so many areas like this, and codify, you know,
codify the language in the EPA and certainly the definition of
nonhazardous, do the citizens of your States or any of our
States lose their ability to appeal, to attend the hearings, to
complain? I mean, it is sort of like we are talking about
either citizens have rights or the bureaucracy has rights and
the two can't go hand in hand because, as a former regulator
myself, frankly, we heard more from citizens in these hearings
than we heard from any other person. To me, the local and State
level is where you get more citizen interaction, not less, so
could you--somebody elaborate on that for me, and then if there
is time left, I certainly would welcome you as well to comment
on that.
Mr. Forbeck. As far as ASTSWMO and our members, we feel--we
are all in favor of minimum Federal standards. We feel that the
codification of it and the certainty of it is the key point
that was missing in all this. No, we do not think that citizens
will lose their ability to have public forum or further
appealing of decisions. No, we feel that will continue.
Mr. Easterly. And the thing that would help by having a
Federal law--and certainly the EPA rules will help--is that
there are a number of States, luckily not including my own,
where it is not allowed to have a more stringent than the
regulation in the Federal Government, so having this Federal
rule and then having a law that says ``you must do this,'' I
think, will help a lot so that those States will have this
program implemented at the State level.
And you are right, at the State level, we have people on
the ground, in the field for the citizens to talk to, and they
certainly can come, in our case, to Indianapolis, and they have
legislators out there, and they do have a lot of input.
Mr. Cramer. So, Mr. Schaeffer and Mr. Holleman, same
question, because it is a concern to me----
Mr. Holleman. Right.
Mr. Cramer [continuing]. Frankly, what you raise. I just
want to ensure that what we are doing would not in any way
negate citizens access.
Mr. Holleman. It is a good--is my microphone on? It is a
good question, but we are really talking about two entirely
different things. Citizens have a right--have the right under
Federal and State statutes to comment on, to be present at
hearings, as you saw as a State commissioner, in determining
whether a permit is put in place or what regulation is adopted.
That is true. That is not what we are talking about.
We are talking about once your commission, or in our State
environmental commissions, put in place a permit or regulation
and then the utility violates it. After the public has had
input, they just violate it; they don't comply. And then the
State agency, for whatever reason, which we have seen
repeatedly, refuses to enforce the very permits, laws, and
regulations that had been produced through this public comment
period. So it makes it pointless.
You go comment. You go through this process, which is
important, as you say, but then the very State government that
put this in place refuses to enforce what the citizens
participated in creating.
In fact, in our State, our public service commission, which
held hearings on this topic, one of the commissioners expressed
shock that Duke had not yet moved its ash from one of the sites
that was present there and was not complying with the permit
and regs that our State regulatory agency put in place.
Mr. Cramer. So did this shocked commissioner have any
opportunity to do something about it? In other words----
Mr. Holleman. No, he did not.
Mr. Cramer [continuing]. We have State legislators, I
assume they are elected. Governors are elected. In the case of
North Dakota, the public service commission is elected. So I am
just seeing that these things, including enforcement, being
closer to the people, seems to me to be better for the people
than removing it from the people.
Mr. Holleman. Well, no, it is in the hands of the people.
The people who are taking this enforcement action are local
community people going to their local State or local Federal
courthouse. These are people that live next door to you and me.
These are people in the community. They have to be to even
bring this suit.
Mr. Cramer. I don't see this law--or this principle being--
violating that----
Mr. Holleman. As long as you all don't fool with or mess
with the citizen's right to sue under RCRA, we still have that
right to sue. And the citizens have the right to go forward and
see that the law is enforced, but if you were to affect that,
you are taking rights away from the people and saying they
belong only to a bureaucracy which may or may not act for
political----
Mr. Shimkus. And the gentleman's time is expired.
I just want to assure people that there is no discussion
even in the last bill of alleviating or taking the citizen's
right to sue out of RCRA, so you could rest comfortably in
that.
Votes are being called. We still have one Member who wants
to ask some questions, so the Chair will----
Mr. Latta. Well----
Mr. Shimkus [continuing]. Recognize Mr. Latta for 5
minutes.
Mr. Latta. I will be brief, but, again, thanks for the
panel and your patience, especially when we have a different
series of votes today.
If I could just kind of go down the line real quickly with
a few of you. You know, there has been some discredited
discussion here today as to the implementation, the uncertainty
as to certain things that have to be done. I am just kind of
curious, starting with Mr. Easterly. How much input did you
have with the EPA when they were implementing the rule?
Mr. Easterly. They are not implementing yet, but when
they----
Mr. Latta. I am sorry. When they were formulating.
Mr. Easterly. We sent in comments. Certainly, at ECOS, we
had a number of discussions with them of what we would like to
see. And some of it is in, and some of it is not.
Mr. Latta. OK. When you say ``some of it is in and some of
it is not,'' what percentage would that be? Just kind of
ballpark.
Mr. Easterly. Well, we would like to have subtitle D. We,
along with other people, are disappointed at the way it is
being implemented.
Mr. Latta. OK.
Mr. Forbeck. Well, at ASTSWMO, we shared very similar
feelings. We were involved heavily with the correspondence and
comments to EPA about the rule, and as was just said, we do
appreciate B and D. It is the implementation under the solid
waste management plan that was our concern. It does not have
certainty that we wanted to see.
Mr. Latta. OK. Just switching gears real quick. The
question again that I had asked the administrator before he
finished up his testimony today, on the certainty, especially
on the beneficial use, Ms. Johnson, especially you in your
testimony, especially with the company that is really located
near you to make the board, do you think there is certainty out
there right now, and do you think that there could be changes
in the future from the EPA?
Ms. Johnson. I believe, based on what EPA has stated, that
they clearly have the opportunity to revisit their
determination on nonhazardous versus hazardous for CCRs, and
that creates uncertainty. And I will tell you, in my
experience, that for the beneficial use community, for our
plant that provides a significant portion of our CCRs to the
beneficial use community, that uncertainty is a problem, and a
later designation or determination of hazardous is going to put
that beneficial use process at risk.
Mr. Latta. Mr. Adams.
Mr. Adams. I think in terms of the effect on the market so
far, it is too early to tell if there has been a positive
effect. We have heard many comments that people are happy that
EPA has gone with subtitle D, but it is troubling to have that
language in the preamble that they may want to go back and
revisit the Bevill exemption. Again, they said it in 1993; they
said it in the year 2000; they now said it again that coal ash
didn't warrant hazardous waste management. But then they come
back and say, well, we might need to revisit again. We need
action by Congress to put an end to that chain of events.
Mr. Latta. Mr. Easterly, how about you on the whole issue
of the beneficial use and the certainty?
Mr. Easterly. I personally don't think it is certain when
you say that you are going to reopen it. In history, EPA has
changed, for example, the maximum contaminant levels in
drinking water, which since the hazardous waste leachate test
is 100 times that standard, suddenly makes something that used
to be nonhazardous into hazardous. And I think that can change
at any time in the future, and all businesses have to asses
that risk and what could happen to them.
Mr. Latta. And just a little off topic, Mr. Easterly--
because I border Indiana, I have about halfway down--what is
Indiana's percentage of coal for your electricity?
Mr. Easterly. It is going down, but I think it is still
over 85 percent. It might be over 90.
Mr. Latta. I remember it used to be around 90 percent in
Ohio, especially in my area, it is around 73 percent.
And, with that, Mr. Chairman, in the interest of time, I
yield back.
Mr. Shimkus. I thank the gentleman.
And before I adjourn, I need to ask unanimous consent to
accept a letter by the Prairie River Network, located in
Champaign, Illinois, and accompanying attachments from local
communities and resolutions.
Without objection, so ordered.
[The information appears at the conclusion of the hearing.]
Mr. Shimkus. And I want to thank you all for coming. Great
hearing. Look forward to working with you as we move forward,
and this hearing is adjourned.
[Whereupon, at 12:54 p.m., the subcommittee was adjourned.]
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