[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
                            
                            
                            
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      Printed for the use of the Committee on Energy and Commerce

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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:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
            
    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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