[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]


                      H.R. ___, THE IMPROVING COAL
              COMBUSTION RESIDUALS REGULATION ACT OF 2015

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

                                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

                               __________

                          MARCH 18 & 24, 2015

                               __________

                           Serial No. 114-22
                           
                           
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]                           


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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

              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 (ex 
RICHARD HUDSON, North Carolina           officio)
KEVIN CRAMER, North Dakota
FRED UPTON, Michigan (ex officio)
  
                             C O N T E N T S

                              ----------                              

                             MARCH 18, 2015

                                                                   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
Hon. David B. McKinley, a Representative in Congress from the 
  State of West Virginia, opening statement......................     5
Hon. Frank Pallone, Jr., a Representative in Congress from the 
  State of New Jersey, opening statement.........................     6
Hon. Fred Upton, a Representative in Congress from the State of 
  Michigan, prepared statement...................................    73

                               Witnesses

David Paylor, Director, Virginia Department of Environmental 
  Quality........................................................     7
    Prepared statement...........................................    10
Michael Forbeck, Environmental Program Manager, Pennsylvania 
  Department of Environmental, Bureau of Waste Management........    18
    Prepared statement...........................................    20
James Roewer, Executive Director, Utilities Solid Waste 
  Activities Group...............................................    25
    Prepared statement...........................................    27
Lisa Evans, Senior Administrative Counsel, Earthjustice..........    34
    Prepared statement...........................................    36

                             MARCH 24, 2015
                               Witnesses

Mathy Stanislaus, Assistant Administrator, Office of Solid Waste 
  and Emergency Response, U.S. Environmental Protection Agency...    75
    Prepared statement...........................................    78

                           Submitted Material

Statement of the Chamber of Commerce, submitted by Mr. Shimkus...    98
Statement of Portland Cement Association, submitted by Mr. 
  Shimkus........................................................   100
Letter of March 6, 2015, from various organizations to Messrs. 
  Shimkus and Tonko, submitted by Mr. Tonko......................   101
Letter of March 17, 2015, from various organizations from all 
  over the U.S. to Messrs. Shimkus and Tonko, submitted by Mr. 
  Tonko..........................................................   108

 
                  H.R. ----------, THE IMPROVING COAL
           COMBUSTION RESIDUALS REGULATION ACT OF 2015, DAY 1

                              ----------                              


                       WEDNESDAY, MARCH 18, 2015

                  House of Representatives,
       Subcommittee on Environment and the Economy,
                           Committee on Energy and Commerce
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 10:17 a.m., in 
room 2322 of the 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, 
Tonko, Schrader, Green, McNerney, and Pallone (ex officio).
    Staff present: Nick Abraham, Legislative Clerk; Charlotte 
Baker, Deputy Communications Director; Leighton Brown, Press 
Assistant; David McCarthy, Chief Counsel, Environment and the 
Economy; Tina Richards, Counsel, Environment; Chris Sarley, 
Policy Coordinator, Environment and the Economy; Jean Woodrow, 
Director, Information Technology; Jacqueline Cohen, Democratic 
Senior Counsel; Caitlin Haberman, Democratic Professional Staff 
Member; Rick Kessler, Democratic Senior Advisor and Staff 
Director, Energy and Environment; and Ryan Schmit, Democratic 
EPA Detailee.

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

    Mr. Shimkus. Oh, my gosh. We are out of control already. 
Welcome, everybody. I am going to call the hearing to order. 
The subcommittee will come to order, and the Chair recognizes 
himself for 5 minutes.
    Welcome, everyone, back as we continue the discussion 
regarding coal ash. Today we are hearing from our stakeholder 
panel, and because of some scheduling conflicts, we will 
convene and hear from the EPA next week.
    A couple months ago we heard from EPA and stakeholders 
about the final coal ash rule. We discussed the problems 
associated with the implementation, in particular, the fact 
that the final rule is self-implementing, meaning there will be 
no regulatory oversight and no enforceable permits, the fact 
that if states implement permit programs, they will not operate 
in lieu of the Federal rule so regulated entities must comply 
with two sets of requirements, and the fact that the only 
mechanism for enforcement of the final rule is through citizen 
suits which would result in an unpredictable array of 
regulatory interpretations, as Judges throughout the country 
are forced to make technical compliance decisions that are 
better left to a regulatory agency. As a result we heard from 
almost all of the stakeholders at our January hearing that a 
legislative solution is still needed to best regulate coal ash.
    Since our last hearing, we have been working to develop a 
legislative solution that does two things; one, takes into 
account all of the hard work EPA put into developing sound 
technical standards protective of human health and the 
environment and second, utilize the framework developed in 
previous legislation requiring states to develop enforceable 
permit programs that will contain minimum Federal standards.
    This brings us here today to discuss the draft legislation 
we think accomplishes both of those goals. We are keeping the 
bill as a discussion draft because this is an open process 
during which we will continue efforts to collaborate with our 
colleagues in the House and our friends in the Senate, work 
with EPA on technical assistance, and of course, welcome 
suggestions from all of you to improve the bill.
    The basics of the discussion draft are simple. The bill 
requires that every state have a permit program, and every 
permit program will contain minimum requirements based on EPA's 
final rule. Every permit program will address inactive surface 
impoundments or legacy sites in the same manner as EPA dealt 
with them in the final rule. They will have to decide within 2 
months from the date of enactment whether they will be closed 
within 3 years from the date of enactment or whether they will 
be regulated like any other active disposal unit. Compliance 
timeframes are comparable to the final rule and for any lag we 
will gain the benefit of having an enforceable permit program. 
Furthermore, the discussion draft does not in any way impact 
the ability to bring citizen suits. The draft legislation does 
not require owners and operators to post their operating 
records on the internet because this is a remnant of a self-
implementing program, but the draft requires states to make 
information regarding groundwater monitoring data, structural 
stability, emergency action plans, fugitive dust control plans, 
certifications regarding closure, and information regarding 
corrective action remedies available to the public.
    We heard from a number of witnesses at our last hearing 
that a key problem with the self-implementing final rule was 
that EPA was forced to eliminate certain flexibility, in 
particular with respect to groundwater monitoring and 
corrective action, due to the lack of state oversight. Because 
the requirements will be implemented through state permit 
programs, the draft legislation allows the implementing agency 
on a site-specific basis to provide flexibility for groundwater 
monitoring or corrective action taking into account risk-based 
factors.
    At our last hearing we also heard about a few other 
provisions in the final rule that were problematic including: 
the retroactive application of the location of siting 
restrictions, the requirement that unlined impoundments that 
exceed a groundwater protection standard close with no 
opportunity to remedy the problem through corrective action, 
and that surface impoundments that miss a deadline to access 
structural stability must stop operating and close. Forced 
closure of impoundments with no analysis of whether the 
impoundment is, or can be, operated safely may be appropriate 
under a self-implementing rule with no regulatory involvement, 
but the goal of the draft legislation and the state permit 
programs is to ensure that surface impoundments are operated 
safely and if they are not, then they will be corrected or 
closed.
    As we work on this draft legislation we acknowledge the 
amount of time and effort that EPA put into drafting a final 
rule that is fully protective of human health and the 
environment and because actions speak louder than words, we did 
this by directly incorporating the exact provisions and the 
policy of the final rule into the discussion draft. That being 
said, we still believe that a legislative solution is the best 
approach to dealing with the regulation of coal ash because of 
the significant limitations of the rule.
    We look forward to hearing from all our witnesses and hope 
Mr. Stanislaus will be able to provide some helpful comments on 
the discussion draft next week. In particular, ECOS and ASTSWMO 
since they will be tasked with creating permit programs that 
meet the minimum standards criteria set out in the legislation.
    I would like again to thank the Administration for all of 
the cooperation we have received on this issue. EPA has been 
extremely constructive and helpful during the last Congress and 
recently working through the issues with the final rule and the 
discussion draft. I would also like to specifically thank ECOS 
and ASTSWMO for their continued participation and invaluable 
input on the mechanics of implementation. Last, I would like to 
express my appreciation to Mr. McKinley for his longstanding 
leadership on this issue as we continue the process of trying 
to figure out how to effectively regulate coal ash. As always, 
we appreciate all of our witnesses for being here and look 
forward to your testimony.
    [The prepared statement of Mr. Shimkus follows:]

                Prepared statement of Hon. John Shimkus

    We welcome everyone back as we continue the discussion 
regarding coal ash. Today we are hearing from our stakeholder 
panel and because of some scheduling conflicts we will 
reconvene and hear from EPA next week.
    A couple months ago we heard from EPA and stakeholders 
about the final coal ash rule. We discussed the problems 
associated with implementation--in particular, the fact that 
the final rule is self-implementing meaning there will be no 
regulatory oversight and no enforceable permits, the fact that 
if states implement permit programs they will not operate in 
lieu of the federal rule so regulated entities must comply with 
two sets of requirements, and the fact that the only mechanism 
for enforcement of the final rule is through citizen suits 
which would result in an unpredictable array of regulatory 
interpretations, as judges throughout the country are forced to 
make technical compliance decisions that are better left to a 
regulatory agency. As a result we heard from almost all of the 
stakeholders at our January hearing that a legislative solution 
is still needed to best regulate coal ash.
    Since our last hearing, we have been working to develop a 
legislative solution that does two things--takes into account 
all of the hard work EPA put into developing sound technical 
standards protective of human health and the environment and 
second, utilize the framework developed in previous legislation 
requiring states to develop enforceable permit programs that 
will contain minimum federal standards.
    This brings us here today to discuss the draft legislation 
we think accomplishes both of those goals. We are keeping the 
bill as a discussion draft because this is an open process 
during which we will continue efforts to collaborate with our 
colleagues in the House and our friends in the Senate, work 
with EPA on technical assistance, and of course welcome 
suggestions from all of you to improve the bill.
    The basics of the discussion draft are simple. The bill 
requires that every state have a permit program and every 
permit program will contain minimum requirements based on EPA's 
final rule. Every permit program will address inactive surface 
impoundments or ``legacy sites'' in the same manner as EPA 
dealt with them in the final rule--they will have to decide 
within 2 months from the date of enactment whether they will be 
closed within 3 years from the date or enactment or whether 
they will be regulated like any other active disposal unit. 
Compliance timeframes are comparable to the final rule and for 
any lag we will gain the benefit of having an enforceable 
permit program. Furthermore, the discussion draft does not in 
any way impact the ability to bring citizen suits. The draft 
legislation does not require owners and operators to post their 
operating records on the internet because that is a remnant of 
a self-implementing program, but the draft requires states to 
make information regarding groundwater monitoring data, 
structural stability, emergency action plans, fugitive dust 
control plans, certifications regarding closure, and 
information regarding corrective action remedies available to 
the public.
    We heard from a number of witnesses at our last hearing 
that a key problem with the self-implementing final rule was 
that EPA was forced to eliminate certain flexibility--in 
particular with respect to groundwater monitoring and 
corrective action--due to the lack of state oversight. Because 
the requirements will be implemented through state permit 
programs, the draft legislation allows the implementing agency 
on a site-specific basis to provide flexibility for groundwater 
monitoring or corrective action taking into account risk-based 
factors.
    At our last hearing we also heard about a few other 
provisions in the final rule that were problematic including: 
the retroactive application of the location or siting 
restrictions; the requirement that unlined impoundments that 
exceed a groundwater protection standard close with no 
opportunity to remedy the problem through corrective action; 
and that surface impoundments that miss a deadline to assess 
structural stability must stop operating and close. Forced 
closure of impoundments with no analysis of whether the 
impoundment is, or can be, operated safely may be appropriate 
under a self-implementing rule with no regulatory involvement--
but the goal of the draft legislation and state permit programs 
is to ensure that surface impoundments are operated safely and 
if they are not--then they will be corrected or closed.
    As we work on this draft legislation we acknowledge the 
amount of time and effort that EPA put into drafting a final 
rule that is fully protective of human health and the 
environment and because actions speak louder than words, we did 
this by directly incorporating the exact provisions and the 
policy of the final rule into the discussion draft. That being 
said, we still believe that a legislative solution is the best 
approach to dealing with the regulation of coal ash because of 
the significant limitations of the rule.
    We look forward to hearing from all of our witnesses and 
hope Mr. Stanislaus will be able to provide some helpful 
comments on the discussion draft next week. In particular, ECOS 
and ASTSWMO since they will be tasked with creating permit 
programs that meet the minimum federal criteria set out in the 
legislation.
    I would like to again thank the Administration for all of 
the cooperation we have received on this issue. EPA has been 
extremely constructive and helpful during the last Congress and 
recently working through the issues with the final rule and the 
discussion draft. I would also like to specifically thank ECOS 
and ASTSWMO for their continued participation and invaluable 
input on the mechanics of implementation. Last, I would like to 
express my appreciation to Mr. McKinley for his longstanding 
leadership on this issue as we continue the process of trying 
to figure out how to effectively regulate coal ash.

    Mr. Shimkus. With that I yield 5 minutes to the gentleman 
from New York, Mr. Tonko.

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

    Mr. Tonko. Thank you, Mr. Chair, and good morning. I thank 
the members of our witness panel for participating in today's 
hearing and for offering their thoughts on the discussion 
draft, the Improving Coal Combustion Residuals Regulation Act.
    In the 35 years since Congress passed the Resource 
Conservation and Recovery Act, or RCRA, the Environmental 
Protection Agency has been studying this issue, and it has been 
the subject of intense debate. During this same time 
communities and many states have experienced problems from 
inadequate handling and disposal of coal ash. It is long past 
time to resolve these issues and indeed move forward.
    Earlier this year we heard from the agency and from other 
stakeholders about EPA's final rule on the disposal of coal 
ash. This rule has taken many years and is the result of an 
extensive public process. The rule represents a compromise 
amongst the stakeholders in this issue, and so it is not 
surprising that some groups are unhappy with certain provisions 
of the rule. But I continue to believe the rule should move 
forward. I realize that some of our witnesses today prefer the 
approach taken by this draft legislation. At this point, 
however, I do not see the need for legislation. There is a need 
for consistent, fair, and rigorous oversight of the rule's 
implementation. If the rule does not result in appropriate coal 
ash disposal or if it results in conflicts between state and 
Federal authorities or it leads to an excess of litigation, it 
can be revised or Congress can pass legislation to correct any 
problems that are identified.
    At this point any problems with the rule are speculative, 
but the problems of coal ash disposal across the country are 
not. Spills, windborne ash, and groundwater contamination have 
caused serious health and environmental problems and continue 
to require expensive clean-up efforts. Properties and 
businesses have been severely damaged. This situation should 
not be allowed to continue.
    The EPA finally has taken appropriate action under the law. 
We should now monitor the rule's implementation and do that 
very carefully.
    Again, I thank the witnesses for taking time to appear 
before the subcommittee this morning, and with that, Mr. Chair, 
I thank you and yield back the remainder of my time. Is there 
anyone from the panel that would like to use about 2 minutes I 
think we have left? Anyone? If not, I yield back my time.
    Mr. Shimkus. The gentleman yields back his time.
    The Chair now recognizes the gentleman from West Virginia, 
Mr. McKinley, for 5 minutes.

 OPENING STATEMENT OF HON. DAVID B. MCKINLEY, A REPRESENTATIVE 
          IN CONGRESS FROM THE STATE OF WEST VIRGINIA

    Mr. McKinley. Thank you, Mr. Chairman. As you have heard 
for 35 years, Congress has been wrestling with how to handle 
fly ash. For 35 years. After countless hearings, meetings, 
amendments, and legislation in the past, we come here with a 
draft piece of legislation, crafted with the help of the state 
Environmental and Solid Waste officials, committee staff, and 
with the input of the EPA.
    The regulation may have been finalized in December, but it 
provided no certainty to those 316,000 hardworking Americans 
who recycle fly ash. This rule did not provide closure on a 
number of issues. It is simply not acceptable to the status 
quo.
    However, what is accepted or what is acceptable is the 
legislation before us, this draft piece, ensures that the 
states have the flexibility they need to make the program work 
and are able to complete it within a reasonable timeframe. This 
draft legislation guarantees that every state must, not may, 
must have a Coal Ash Permit Program, and it must contain the 
minimum Federal standards set out under the finalized rule.
    Bottom line, this legislation provides certainty while the 
December ruling left the industry still scratching their heads. 
It would be responsible for this committee to continue to 
promote and push this draft legislation and work with all the 
stakeholders and the interest groups around this country to 
bring closure to this issue and end 35 years of unknown.
    I yield back the balance of my time.
    Mr. Shimkus. The gentleman would yield back, but before he 
does, I would look to the Republican side to see if anybody 
would like to use the remaining time. Seeing none, even on my 
colleagues on the Democrat side, seeing none, the gentleman 
yields back his time.
    I want to make sure that you all can hear out there, not 
just folks on the panel but the folks who are sitting in the 
back because usually there are some speakers. The feed is 
working, but the--I don't think the speakers are working. They 
are working on it. OK.
    So for the panel if you can use your military voice down 
from the diaphragm, use your military voice down from the 
diaphragm. Before we go to the panel I have neglected to 
recognize the ranking member of the full committee. That is a 
major faux pas. Congressman Pallone from New Jersey is 
recognized for 5 minutes.

OPENING STATEMENT OF HON. FRANK PALLONE, JR., A REPRESENTATIVE 
            IN CONGRESS FROM THE STATE OF NEW JERSEY

    Mr. Pallone. Thank you, Chairman Shimkus.
    This is the second hearing this Congress on the important 
topic of coal ash. In January this subcommittee heard from EPA 
and stakeholders about the agency's new final rule. After years 
of debate at the agency and in Congress over the proper 
regulation of coal ash, the agency had reached a verdict. EPA's 
final rule reflects a tremendous effort, and it will for the 
first time provide the framework for addressing this serious 
environmental problem. This rule is the product of a robust 
public process, including field hearings and several rounds of 
public comment, and it reflects the input of over 450,000 
consumers, including states, industry groups, environmental 
groups, and individual concerned citizens.
    In the end EPA finalized a rule that addressed almost all 
the concerns this subcommittee has heard about for years. Those 
in the coal ash recycling industry who make things like 
concrete and wallboard submitting, substituting coal ash for 
virgin material, had sought a non-hazardous rule under Subtitle 
D of RCRA, and that is what they got. Those in the electric 
utility industry wanted a Subtitle D rule that would not 
require them to retrofit their existing impoundments with 
liners, and that is what they got. And states wanted a 
mechanism to set up their own programs to implement Federal 
standards and to have EPA approve them, and that is what they 
got. The only stakeholders who really did not get what they 
sought in this rule were the environmental and public health 
advocates who wanted a stronger Subtitle C rule with the 
requirement that the giant unlined pits currently receiving 
this dangerous waste to be retrofitted to protect groundwater.
    Other than those calls to strengthen the rule, the reaction 
to EPA's rule has been positive. The agency testified that they 
have every confidence in the rule and do not see a need for 
legislation, and members on both sides of the aisle expressed 
their support.
    So I am surprised that we find ourselves here today 
considering legislation that would replace that rule before it 
has taken affect and undermine the robust public process that 
went into it. I am even more surprised that the stakeholders 
who are here today expressing support for legislation are the 
same ones whose concerns have been addressed in the rule. I 
don't see a need for legislation at this time. Instead I think 
EPA and the states should be allowed to move forward and 
implement the final rule subject to this Committee's oversight.
    I do want to say a few words about the specific legislation 
that is the subject of today's hearing. This new proposal 
retains the problems of past proposals which have been 
discussed extensively in this subcommittee. It would create a 
new model of delegation to states with a sharply-curtailed role 
for EPA. It does not include a legal standard of protection, a 
substantive EPA role in reviewing state programs, or EPA 
backstop enforcement authority. The new proposal presents 
additional concerns as well because necessary health 
protections included in EPA's final rule are left to state 
discretion or left out entirely. Groundwater monitoring 
protection, closure requirements, clean-up requirements all 
could be weaker under this bill than under the final rule. If 
anything, we should be strengthening the protections of the 
final rule and not weakening them.
    So I think this legislation is unnecessary and dangerous 
for public health and the environment. I applaud EPA for their 
hard work on the coal ash final rule, and I hope the 
subcommittee can move forward in an oversight role as 
implementation begins.
    Thank you, Mr. Chairman. I yield back.
    Mr. Shimkus. The gentleman yields back his time. Now the 
Chair will recognize our panelists one at a time with an 
introduction and your opening statement. Your full statement is 
submitted for the record.
    So first I would like to welcome and recognize David 
Paylor, Director of the Virginia Department of Environmental 
Quality, on behalf of the Environmental Council of the States. 
Sir, welcome, and you are recognized for 5 minutes.

 STATEMENTS OF DAVID PAYLOR, DIRECTOR, VIRGINIA DEPARTMENT OF 
 ENVIRONMENTAL QUALITY; MICHAEL FORBECK, ENVIRONMENTAL PROGRAM 
 MANAGER, PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL, BUREAU OF 
 WASTE MANAGEMENT; JAMES ROEWER, EXECUTIVE DIRECTOR, UTILITIES 
     SOLID WASTE ACTIVITIES GROUP; AND LISA EVANS, SENIOR 
              ADMINISTRATIVE COUNSEL, EARTHJUSTICE

                   STATEMENT OF DAVID PAYLOR

    Mr. Paylor. Thank you, Chairman Shimkus, Ranking Member 
Tonko, and members of the subcommittee. Good morning. My name 
is David Paylor. I am the Director of the Virginia Department 
of Environmental Quality, and I appreciate the opportunity to 
share with you Virginia's views on the draft bill. I am also 
representing the Environmental Council of the States, ECOS, 
whose members are leaders of the state and territorial 
environmental protection agencies.
    Many state regulators have first-hand experience with the 
devastating results of CCR impoundment failures. Breaches and 
releases destroy property and contaminate natural resources.
    ECOS has worked on the CCR rule issue for many years. ECOS' 
resolution on CCR regulation was first passed in 2008, and ECOS 
testified in April, 2013, in support of legislation to amend 
RCRA to create a defensible and strong CCR program that could 
be run by the states. After EPA signed a final CCR rule in 
December, ECOS testified before this subcommittee supporting 
the final rule's technical requirements but stating that 
legislation to amend RCRA was still needed for several reasons. 
The final rule creates a dual Federal and state regulatory 
system that will be confusing and resource intensive, the final 
rule's schedules would require states to achieve final Solid 
Waste Management Plan amendments on an aggressive schedule 
which could not be met by many states. the final rule's self-
implementing approach would make RCRA citizen suits the primary 
enforcement vehicle for CCRs under The final rule's self-
implementing approach would make citizen suits the primary 
enforcement vehicle, marginalizing the role of state 
regulation, oversight, and enforcement and thus creating 
uncertainty for the regulated community.
    ECOS has reviewed the draft bill and find that it 
positively addresses the concerns. The draft bill leverages and 
codifies the extensive technical work in EPA's final rule. It 
provides that states may adopt, implement, and enforce CCR 
programs. The draft bill would give state environmental 
agencies 24 months to certify their programs, with a potential 
for an additional 12 months. This would provide most states 
with existing CCR programs ample time to pursue the necessary 
state legislative and rulemaking processes. For example, in 
Virginia, our regulatory process can take 2 to 3 years.
    The draft bill provides that the requests for certification 
to EPA be fully described, that the states fully describe their 
programs and how they meet Federal requirements. The draft bill 
importantly provides that state programs can be more stringent 
or broader in scope. For example, Virginia already has 
authority under the Waste Management Act to require solid waste 
permits for the operation of a coal ash management facility, 
including activities related to post closure and corrective 
action.
    The draft bill contains an important provision that allows 
states that already have existing programs to begin using it 
right away. A recent survey of states indicated that 36 states, 
including Virginia, have permitting programs for disposal 
activities with 94 percent of those requiring groundwater 
monitoring.
    The draft bill contains an important requirement for states 
to submit as part of their certifications a plan for 
coordination among states in the event of a release that 
crosses state lines. This type of upfront planning is relevant, 
especially in Virginia, where we recently had a Dan River spill 
that originated in North Carolina but impacted nearly 50 miles 
of Virginia waterways.
    The Federal bill provides that EPA will operate the CCR 
Program for a state that cannot demonstrate a sufficient 
program or declines to do so.
    The draft bill includes robust requirements for industry 
permit applications, provides for public information 
availability, and state access to facilities. The bill 
incorporates the new robust technical, siting, financial 
assurance, run-on and run-off controls and recordkeeping and 
structural integrity requirements. We value the flexibility the 
draft bill adds that will allow states to identify alternative 
points of compliance for monitoring, alternative groundwater 
protection standards, remediation flexibility, and to allow 
unlined impoundments to operate for a period of time providing 
there are no groundwater threats and the structural integrity 
of the berms is maintained.
    The draft bill sets out a 3- to 4-year process for 
compliance. It recognizes implementation realities and still 
allows action in emergency situations. The legislation supports 
beneficial uses of coal ash, such as in concrete, road bed 
fill, wallboard, and other uses. Beneficial reuse of coal ash 
is consistent with ECOS' longstanding resolution, which is 
appended to my testimony.
    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 prepared statement of Mr. Paylor follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FOMRAT] 
    
    Mr. Shimkus. Thank you very much, sir.
    Now I would like to introduce Mr. Michael Forbeck, 
Environmental Program Manager for the Pennsylvania Department 
of Environmental Bureau of Waste Management, on behalf of the 
Association of state and Territorial Solid Waste Management 
Officials, which is the hard to say, ASTSWMO.
    Sir, you are recognized for 5 minutes.

                  STATEMENT OF MICHAEL FORBECK

    Mr. Forbeck. I am President of the Association of state and 
Territorial Solid Waste Management Officials, ASTSWMO, and I am 
here today to testify on behalf of ASTSWMO.
    ASTSWMO is an association representing the waste management 
and remediation programs of the 50 states, five Territories and 
the District of Columbia. Our membership includes state program 
experts with individual responsibility for the regulation and 
management of solid and hazardous wastes.
    Thank you for the opportunity to provide testimony on the 
discussion draft, ``Improving Coal Combustion Residuals 
Regulation Act of 2015''. Overall, ASTSWMO believes the 
discussion draft has successfully captured the essential parts 
of the EPA rule on coal combustion residuals management that 
are germane to the protection of the environment and public 
health and has modified or added those areas that improve the 
rule.
    We also believe that this discussion draft has addressed 
the main concerns that ASTSWMO expressed regarding EPA's final 
rule on CCR in our testimony before this subcommittee on 
January 22, 2015. While being in full agreement with issuance 
of the final rule under Subtitle D of the Resource Conservation 
and Recovery Act, ASTSWMO's prior testimony noted state 
implementation issues raised by the self-implementing construct 
of RCRA Subtitle D, Part 257. The concerns we voiced are summed 
up as follows. The rule's self-implementing requirements will 
set up the situation of dual state and Federal regulatory 
regime, even if the state requirements meet or exceed national 
minimums. The use of EPA-approved state Solid Waste Management 
Plans as a mechanism to deal with the issue of dual regulatory 
authority will not fully alleviate dual implementation of state 
and Federal standards, since the approved Solid Waste 
Management Plan would not operate in lieu of the Federal 
standards. The ability of states to establish regionally 
appropriate standards, as allowed under RCRA Subtitle D, Part 
258 for municipal solid waste landfills, is constrained by the 
rule's self-implementing requirements.
    ASTSWMO believes this discussion draft has addressed our 
main concerns regarding EPA's final rule in the following three 
ways.
    First, it eliminates dual state and Federal regulatory 
authority resulting from the self-implementing construct of 
EPA's rule by giving states the authority to adopt and 
implement a CCR permit program. Many states already have a very 
successful permit program. For states that choose to adopt and 
implement the permit program, it assures state primacy through 
a single permit program provision that is enforceable by the 
state. This results in a clear and consistent understanding of 
the permitting and enforcement roles of the states. We also 
agree with the additional level of review by EPA to determine 
whether state permit programs are adequate to ensure compliance 
with the criteria as described in the discussion draft.
    Second, by directly giving states the authority to 
implement a CCR role or program, the discussion draft 
eliminates the uncertainty of state-only implementation the 
Solid Waste Management Plan as the mechanism. The certification 
process under the draft legislation could allow for expedited 
implementation of the technical requirements.
    Third, we appreciate that the draft legislation allows the 
flexibility for states to have regionally appropriate state 
standards for groundwater monitoring and corrective action.
    In addition to the draft legislation addressing the 
concerns expressed in our previous testimony, ASTSWMO is 
pleased that the legislation requires financial assurance for 
post-closure care of inactive surface impoundments to ensure 
long-term compliance with environmental and public health 
requirements. Financial assurance is an important component in 
state waste programs, and ASTSWMO has supported the inclusion 
of financial assurance as a key program element in a final EPA 
CCR rule under Subtitle D.
    We would like to offer to the subcommittee's consideration 
one modification to the draft legislation at this time. Under 
the Agency Authority for inspections we ask that the 
subcommittee consider not limiting an implementing agency's 
authority to enter a site for purposes of inspection to only 
``at reasonable times.'' This could be construed to mean during 
normal working hours. The timing of inspections should be at 
the discretion of the state to allow for after-hour 
inspections.
    Thank you again for providing me the opportunity to testify 
on this draft legislation, and I would be happy to answer any 
questions.
    [The prepared statement of Mr. Forbeck follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    Mr. Shimkus. Thank you very much.
    The Chair now recognizes Jim Roewer, the Executive Director 
of the Utilities Solid Waste Activities Group on behalf of 
USWAG Edison Electric Institute, National Rural Electric 
Cooperative Association, and the American Public Power 
Association.
    Thank you and recognize you for 5 minutes.

                   STATEMENT OF JAMES ROEWER

    Mr. Roewer. Chairman Shimkus, Ranking Member Tonko--excuse 
me, he left--members of the subcommittee, good morning. I am 
pleased to present the views of the utility industry; USWAG, 
APPA, EEI, and NRECA on the ``Improving Coal Combustion 
Residuals Regulation Act of 2015.''
    When I testified at the Oversight Hearing before the 
committee on EPA's CCR, I made clear that while we supported 
EPA's decision to regulate coal ash as a non-hazardous waste, 
there were significant flaws in the rule because the rule can't 
be delegated to the states, it is self-implementing, and 
regulated facilities must comply with the rules requirements 
irrespective of whether it is adopted by the states.
    Since state coal ash regulations cannot operate in lieu of 
Federal regulations, we must comply with dual and potentially-
inconsistent Federal and state regs. This is unlike other 
Federal environmental regulatory regimes, including EPA's 
Subtitle C Hazardous Waste Program where Congress views the 
states as key partners in implementing and enforcing Federal 
regulation and expressly authorizes the states to adopt and 
implement the Federal regime in lieu of EPA.
    The rule's only compliance mechanism is for a state or 
citizen group to bring suit in a Federal District Court, so an 
excess of litigation is guaranteed. Legal disputes regarding 
compliance can only be determined on a case-by-case basis by 
different Federal District Courts across the country. Federal 
Judges will be forced to make complex technical decisions 
regarding compliance instead of regulatory agencies that have 
the technical expertise and experience to better address those 
issues.
    Because of these fundamental flaws in the statutory 
structure under which the rule was issued, legislation amending 
RCRA is necessary for EPA's rule to be implemented in an 
effective and practical manner. The discussion draft would do 
this.
    The bill would establish a permit program for 
implementation of the regulations issued by EPA, eliminate the 
problems associated with the self-implementing nature of the 
rule. Under the bill, virtually all aspects of the rule would 
be implemented solely through state CCR permit programs or by 
EPA if the states do not adequately adopt and implement the 
rule. This structure is similar to the manner in which Congress 
previously amended RCRA to allow EPA's Subtitle D municipal 
solid waste landfill rules to be implemented through state 
permit programs.
    The bill would also require coal ash permits to include 
conditions not included in EPA's final rule, including 
financial assurance requirements and would preserve the ability 
of the states to regulate more stringently than the Federal 
rule.
    Authorizing the states to implement the rule through permit 
programs would eliminate the problem of dual and inconsistent 
Federal and state regulation. Equally important, having EPA's 
rule implemented by a state Regulatory Agency eliminates the 
compliance dilemma where our members and the public at large 
are left to own their devices to determine what is required to 
come into compliance. The utility industry will be investing 
huge capital resources to comply with the rule. The bill will 
provide the regulatory certainty for those investment decisions 
since compliance will be specified by a regulatory agency and 
spelled out in a permit.
    The bill would establish a rational and efficient 
enforcement scheme by enabling state Regulatory Agencies to 
enforce the rules as opposed to having enforcement borne solely 
on the back of citizen suits as it is under EPA's rule. EPA 
currently has no role in administering or enforcing its rule. 
The bill would increase EPA's authority by directing it to 
review the adequacy of state permit programs, where to 
implement those programs where the states choose not to, or the 
state's program is inadequate.
    In addition, and importantly, the bill does not limit in 
any way the ability of a citizen group to bring enforcement 
actions under RCRA's citizen suit provision. The bill 
eliminates reliance on Federal District Courts for interpreting 
and enforcing the rule, avoiding the specter of differing and 
potentially inconsistent application of the rule between or 
even within states.
    EPA dropped from the final rule certain site-specific, 
risk-based options for applying elements of the regulations 
that were in its proposal, reasoning that those risk-based 
decisions require regulatory oversight. Thus, state programs 
that enable regulators to issue tailored, site-specific, risk-
based options for coal ask management are superseded by the 
one-size-fits-all approach in EPA's rule.
    The bill establishes regulatory agency oversight in 
implementing the rule, and therefore, appropriately restores 
the ability of the implementing agency to tailor aspects of the 
rule to accommodate site-specific factors, consistent with the 
approach of EPA's proposed rule as well as the Federal 
Municipal Solid Waste Program.
    For example, the proposed rule would have allowed a 
facility to establish an alternative risk-based groundwater 
protection standard. EPA removed that option precisely because 
there was no regulatory oversight or approval regarding the 
establishment by an owner and operator of that alternative 
standard. The bill allows the permitting agency to establish, 
where appropriate, an alternative risk-based groundwater 
protection standard, the same option provided to permit writers 
under EPA's municipal solid waste landfill rule.
    I thank the subcommittee for the opportunity to present the 
views of the utility industry on the discussion draft which we 
believe will allow EPA's new coal ash rule to be implemented in 
an effective and practical manner. Thank you.
    [The prepared statement of Mr. Roewer follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    Mr. Shimkus. Thank you.
    The Chair now recognizes Lisa Evans, Senior Administrative 
Counsel, from EarthJustice.
    You are recognized for 5 minutes. Welcome.

                    STATEMENT OF LISA EVANS

    Ms. Evans. Thank you very much. Chairman Shimkus, Ranking 
Member Tonko, and members of the subcommittee, thank you for 
the opportunity today to discuss the bill offered by 
Representative McKinley. I am Lisa Evans, Senior Administrative 
Counsel for EarthJustice. I have had the privilege of 
testifying previously before this subcommittee concerning the 
serious harm caused by coal ash to our health, economy, and 
environment. I have spoken about the hundreds of sites where 
coal ash has harmed Americans nationwide by poisoning water, 
air, and threatening the very existence of communities near 
large coal ash dams. Today we stand at a crossroads.
    In December, EPA's first-ever coal ash rule finally put the 
Nation on the road to safer toxic waste disposal which will 
help prevent water pollution, avoid catastrophic spills, 
promote cleaner air, and encourage robust public engagement by 
communities living near coal ash dumps. Yet the bill proposed 
by Representative McKinley would run us off this road and drag 
us into a dark and dangerous detour where almost none of the 
protections of the new EPA rule would survive intact.
    Worst of all, it is a one-way trip that permanently 
deprives citizens of consistent nation-wide protection from the 
second largest industrial waste strain in the country. Make no 
mistake, this bill is an unwarranted and dangerous detour that 
guts the new EPA rule and permanently removes critical public 
health safeguards.
    Let me be very specific. The requirements in Representative 
McKinley's bill are not the same, not nearly the same, as the 
requirements in the EPA rule. Today's bill eliminates many 
requirements entirely, weakens others, and delays all.
    The following are some examples. First, the bill will 
eliminate the guarantee of public access to information 
concerning contaminated sites and dangerous dams. Communities 
will likely be unable to find out if there are toxic chemicals 
in their water, spills in their neighborhood, or unstable dams 
above their homes. Second, the bill will eliminate the rules 
ban on storing and dumping coal ash directly in drinking water. 
Unlike the EPA rule, there is no ban on operating a coal ash 
pond directly in an aquifer. Ponds that are located there now, 
and there are many, can continue to dump toxic waste and new 
dumps can be built on top of drinking water sources.
    Third, the bill will eliminate the rule's national standard 
for drinking water protection and clean-ups. According to this 
bill, a state can choose to allow more arsenic, more lead, more 
mercury, more thallium in the groundwater and not be bound by 
Federal health standards. Fourth, the bill will eliminate the 
requirement to quickly close legacy ponds. The bill will likely 
delay cleanup of legacy sites for years and allow contaminated 
and abandoned ponds, like the Dan River Dam that burst last 
February, to escape all safety requirements, including 
inspections, for up to 7 years.
    The bill also contains a loophole that could allow inactive 
ponds to escape all closure requirements entirely. Fifth, the 
bill will eliminate the polluter's responsibility to respond 
and notify the public of toxic spills. Sixth, the bill will 
eliminate the state's duty to require cleanup of such toxic 
spills. According to the bill, the utility industry need not 
cleanup spills if states don't want to require it.
    Lastly, the bill will permanently establish an inconsistent 
patchwork of state programs which need not meet any standard of 
protection for health and the environment and which will cause 
uncertainty nationwide.
    Undoubtedly this bill will harm the health, economy, and 
environment of communities near more than 1,000 coal ash 
dumpsites. Yet last December the EPA bent over backwards to 
satisfy the concerns of industry, recyclers, and states. It 
delivered a rule that characterized coal ash as non-hazardous, 
fails to banned continued use of unlined ponds, exempts 
beneficial use, establishes extended and flexible timeframes 
for compliance and closure, and regulates coal ash under the 
weakest of the three options proposed in 2010.
    In closing, I want to reiterate that I appreciate the 
opportunity to address the subcommittee. However, there are 
other voices that must be heard. Last week 143 individuals and 
groups personally impacted by coal ash dumping sent a letter to 
this subcommittee requesting the opportunity to speak. The 
words of those actually harmed by toxic dumping are sorely 
missing today. If impacted community members were here today, 
citizens from Illinois, West Virginia, Pennsylvania, and 
Missouri who live near leaking coal ash ponds, citizens from 
North Carolina and Virginia who live along the Moapa 
Reservation in Nevada and the Nevada, the Navajo Reservation in 
New Mexico whose air is thick with ash, these citizens and many 
others would ask this committee not to throw away this limited 
coal ash rule for essentially no rule at all. They would ask 
the committee not to delay and not to remove critical health 
protections for their families and communities. Today I 
respectfully echo their plea.
    Thank you for your time, and I would be happy to answer any 
questions.
    [The prepared statement of Ms. Evans follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    Mr. Shimkus. Thank you very much.
    I now recognize myself for the first round of questioning, 
and I would just like to start, the intent was to take the rule 
and codify it, and I think that is what we have been able to 
do. It makes it easier to comply with and understandable when 
it does create consistency across the country, and that was the 
intent. We specifically took EPA language in the rule on, the 
exact language on design requirements, post-closure, air 
criteria, record keeping, run-off, run-on and run-off controls, 
hydrologic and hydrologic capacity requirements, and 
inspections. Those are aspects that we took the exact language 
in the rule.
    So, I just appreciate the work that we have done to try to 
move in a direction where we are working with the EPA, take 
their rule, and make it stronger, and that is really the 
position of the majority of the subcommittee.
    Mr. Paylor, does ECOS support the approach taken in this 
draft legislation?
    Mr. Paylor. Yes, I believe that ECOS does support it, and 
it is for the reasons that you mentioned, that it takes the EPA 
Federal rule, which we believe was a positive step forward, and 
addresses some of those additional concerns like dual oversight 
and financial assurance.
    Mr. Shimkus. In your opinion does the draft legislation 
address the implementation issues associated with the final 
rule, including, as you just mentioned, dual regulation systems 
and the enforcement only through citizen suits?
    Mr. Paylor. Yes, I believe it does address those.
    Mr. Shimkus. And that is part of the debate on this 
legislation. The way the rule comes out is the only way you 
really can get enforcement is through the Courts, and every 
Federal District Court around this country, which are in the 
hundreds, could then enforce a different standard than what a 
national standard or a standard working through the states. Is 
that your understanding, Mr. Paylor?
    Mr. Paylor. I believe that this would create a uniform 
standard across the country, and that is one of the strengths 
that it provides. Yes.
    Mr. Shimkus. Mr. Forbeck, do you agree with that?
    Mr. Forbeck. Yes, I do. I believe it eliminates the 
confusion that the Solid Waste Management Plan had provided and 
would provide a single point of determining----
    Mr. Shimkus. So ASTSWMO supports this legislation?
    Mr. Forbeck. We do support. We are very pleased that it 
incorporates the EPA rule and also added the financial 
assurances that we requested and has a single permit.
    Mr. Shimkus. Let me just follow up. Do you read the 
legislation as allowing states the ability to pick and choose 
which requirements to include in the state Permit Program?
    Mr. Forbeck. No, I do not. There are minimum standards or 
permit requirements that the states would----
    Mr. Shimkus. And the minimum of standards as you evaluate 
this draft legislation comes from where?
    Mr. Forbeck. From the EPA rule. From the legislation.
    Mr. Shimkus. So just for the record, the minimum standards 
you interpret as coming from where?
    Mr. Forbeck. Well, it comes from the, originally from the 
EPA rule as it was incorporated.
    Mr. Shimkus. Great. Thank you. Mr. Roewer, the legislation 
incorporates requirements of the final rule as minimum 
requirements for state Permit Programs. Many of the 
requirements are incorporated directly with no revisions as I 
read earlier. There are, however, a few places where the 
legislation allows the implementing agency to tailor the 
requirements based on onsite specific risk-based decisions, in 
particular with respect to groundwater monitoring and 
corrective action. Can you explain why this is important?
    Mr. Roewer. Yes. Thank you. EPA recognizes the legitimacy 
of tailoring those regulations. There is extensive discussion 
of that fact in the preamble but then backed away from that 
recognizing there was no Federal or no regulatory agency 
oversight of that process. The legislation would allow the 
state Regulatory Agencies to tailor the regulations to address 
site-specific concerns associated with coal ash management.
    Mr. Shimkus. What could be different?
    Mr. Roewer. Well, one of the things would be a groundwater 
protection standard for instance. EPA would default to the 
background of the groundwater protection standard under their 
self-implementing rule. Where there is another state or Federal 
health-based standard, the state Regulatory Agency can apply 
that in lieu, if there is no MCL, to establish an alternative 
groundwater protection standard. Not leaving, EPA couldn't 
leave that to the owner and operator. That does need regulatory 
agency oversight, and the bill appropriately sets up a 
mechanism for the states to take that approach.
    Mr. Shimkus. Great. My time is close to expiring. Thank you 
very much, and I recognize Mr. Tonko for 5 minutes.
    Mr. Tonko. Thank you, Mr. Chair.
    For far too long communities have been subject to the 
serious risks associated with inadequate coal ash disposal. 
Coal ash releases have polluted our air and water supplies, and 
structural failures have devastated communities and resulted in 
very expensive and very complicated clean-up efforts.
    EPA's final rule will go a long way, I believe, to address 
these concerns. This bill up here is to reverse this course, 
eliminating some of EPA's minimum requirements and weakening or 
delaying others.
    Ms. Evans, how did the bill's location requirements measure 
up to those in the final rule, and if they are not the same, 
why is that difference important?
    Ms. Evans. Thank you, Representative Tonko. The location 
standards differ radically from the location standards in the 
EPA rule. One of the most important restrictions is the 
placement, the prohibition against the placement of ash within 
5 feet of the groundwater table. In other words, you can't 
place ash any longer within 5 feet of a potential drinking 
water source. The proposed legislation does not incorporate 
that location standard. So what you have is--you do not have 
the prohibition of ponds that are currently located in a 
drinking water aquifer. They will not have to close. That is a 
radical change in the requirements because we know for sure 
that there are many ponds that are currently in contact with a 
groundwater.
    The bill also does not incorporate restrictions for 
wetlands, for seismic areas, and for fault areas.
    Mr. Tonko. Thank you, and the bill differs from the EPA 
rule's closure requirements for disposal units that don't meet 
important criteria like liner designs, structural integrity, or 
location restrictions. The bill keeps these facilities open, 
allowing deficient structures to continue to receive waste for 
years.
    Ms. Evans, how do the closure requirements of the bill 
compare to those in the EPA rule?
    Ms. Evans. The closure requirements in the bill are much 
more lenient and will allow ponds that are contaminating 
groundwater to continue to operate and continue to accept waste 
for 8.5 years in the case of an unlined surface impoundment. 
And this, of course, endangers those communities near those 
impoundments that are reliant on drinking groundwater. EPA has 
identified unlined ponds as being the most dangerous way to 
dispose of waste, and when you allow unlined ponds that are 
leaking above a health standard into groundwater to continue to 
operate for 8.5 years, that certainly is not the same 
requirements as you had in the EPA rule. The EPA rule would 
require the ponds to cease accepting waste within 6 months and 
close.
    Mr. Tonko. And so the requirements under EPA's rule as 
indicated will take effect much more quickly than those under 
the bill?
    Ms. Evans. Absolutely. Communities are looking forward to 
the application of the requirements as early as September. Many 
requirements are in effect 6 months from the date of 
publication. If that is at the end of this month, we are going 
to see relief for contaminated air quality from dust, we are 
going to see public information posted on utility Web sites, we 
will see the initiation of inspection at high and significant 
hazard ponds on a weekly basis and a monthly basis. So 
communities will get immediate relief from the EPA rule, and 
under the bill this relief is going to be delayed at least 2 to 
3 years and probably in most cases much longer.
    Mr. Tonko. And the requirement that, as you indicate, 
facilities can post operational and compliance data on a 
publicly-available internet site without exception, this both 
incentivizes industry compliance up front and empowers local 
citizens with information they need to keep an eye on what is 
happening in their communities. How important are these public 
disclosure provisions in EPA's rule?
    Ms. Evans. The public disclosure provisions are critical to 
EPA's rule, and EPA rule is explicit as to what has to be 
posted. The difference in the bill is that there are general 
public participation or public notice provisions, but it gives 
states discretion on how they require that information to be 
made public. Currently information in many states is made 
public, but it is at state agencies where citizens at great 
difficulty and great expense must request a file review, often 
wait a substantial amount of time, and spend a significant 
amount of money obtaining that data. So often this data is in 
the real world not available to citizens, but actual 
groundwater monitoring data, dust control plans, inspections, 
assessments of structural stability, all those would be posted 
according to the EPA rule in a publicly-accessible Web site 
free of charge to all communities impacted by the dumpsites in 
their communities.
    Mr. Tonko. I have exhausted my time, so I yield back.
    Mr. Shimkus. The gentleman yields back time.
    The Chair now recognizes the gentleman from Mississippi, 
Mr. Harper, for 5 minutes.
    Mr. Harper. Thank you, Mr. Chairman. Thanks to each of you 
for being here.
    Mr. Paylor, the draft legislation directly incorporates the 
technical requirements in EPA's final coal ash rule and 
establishes a baseline for coal ash management across the 
country. Do you believe that the minimum requirements set forth 
in the legislation will ensure that states develop effective 
and environmentally-protected permit programs for coal ash 
management, and if so, why?
    Mr. Paylor. We do believe that it would provide a Federal 
baseline and then states would also be able to go beyond that 
with their own site-specific needs as well.
    Mr. Harper. The bill contains a provision requiring states 
to develop plans for coordination among states in the event of 
a release that goes across state lines. Why is that important?
    Mr. Paylor. Well, it is important to Virginians because we 
recently this year had an experience where there was a release 
in North Carolina. The majority of the stream impact was in 
Virginia, and so the ability for states to have some upfront 
planning and coordination would just streamline the process 
should we have another unfortunate incident like that.
    Mr. Shimkus. Would the gentleman yield on that?
    Mr. Harper. Yes, I will yield.
    Mr. Shimkus. Is that in the current EPA rule?
    Mr. Paylor. Not to my knowledge.
    Mr. Shimkus. Does anyone know? I don't think it is. Thank 
you. I yield back.
    Mr. Harper. Thank you, Mr. Chairman.
    Mr. Paylor, your written testimony notes that the draft 
bill includes the new robust technical siting, financial 
assurance, run-on and run-off controls, record keeping, and 
structural integrity requirements published by EPA in the final 
CCR rule and that EPA did a very good job developing the 
technical requirements of the final CCR rule. Your written 
testimony also states that you value the flexibility the draft 
bill adds. Can you explain why the added flexibility is a good 
thing?
    Mr. Paylor. The added flexibility is important primarily 
because of being able to deal with site-specific issues, 
especially when you are looking at groundwater contamination, 
issues of groundwater flow, and nearby receptors and everything 
are very important, allows you to tailor your response to the 
site rather than a one-size-fits-all approach.
    Mr. Harper. OK, and your written testimony also states that 
the draft legislation provides a Federal backstop. Would you 
please explain to us what that means?
    Mr. Paylor. Well, the Federal backstop means that there is 
enforcement authority at the Federal level should the state not 
meet those standards, and so, therefore, you have got the state 
authority but if that fails, the Federal Government can come in 
and take action.
    Mr. Harper. Why is it important that the draft legislation 
allows for the pre-approval of a state Permitting Program?
    Mr. Paylor. Well, a state Permitting Program provides 
certainty, it provides the ability to have site-specific 
requirements on that particular facility, and it provides more 
clear enforceability.
    Mr. Harper. OK. Thank you very much. Mr. Forbeck, states 
have previously demonstrated the ability to implement permit 
programs very similar to coal ash. So is EPA approval necessary 
before states begin implementing Coal Ash Permit Programs, and 
wouldn't EPA program approval unnecessarily delay 
implementation of Coal Ash Permit Programs?
    Mr. Forbeck. I think the certification program that is 
within this draft would actually expedite implementation of 
these requirements of the rule. In states that have proven 
programs, proven permit programs can continue them with CCRs. 
In Pennsylvania we have a very successful program which we have 
done for many, many years.
    Mr. Harper. Thank you, and I yield back the balance of my 
time.
    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. I want to thank my 
colleague for his efforts on this issue.
    I believe I heard two concerns consistently from the first 
three witnesses. One of them was that the main enforcement 
mechanism of citizen lawsuits and that that would bring 
uncertainty and so on, and the other one, and I am a little 
confused about this one, is that it would establish 
inconsistent standards across states while at the same time 
giving states flexibility, which seemed to be something that, 
like you are shaking your head there, Mr. Roewer. Did you 
disagree?
    Mr. Roewer. The inconsistent application of the rule, 
Congressman, is due to the interpretation of the rule by the 
Federal District Court Judges, not inconsistent as per 
application and enforcement by the state Regulatory Agencies. 
At least in my testimony the concern for a potential patchwork 
of interpretation stems from the self-implementing citizen suit 
enforcement structure of EPA's rule, not of the legislation. 
The legislation solves that problem.
    Mr. McNerney. How does it solve it?
    Mr. Roewer. By having the Federal standards prescribed in 
the rule, that are EPA's rule, implemented by the state 
Regulatory Agencies. There is a Federal floor under which the 
states cannot drop.
    Mr. McNerney. Well, my understanding is that there is a 
lack of a standard of protection in the proposed legislation. 
Would you address that, Ms. Evans?
    Ms. Evans. Yes. This bill, like the other bills proposed by 
Representative McKinley, lacks a protective standard of 
protection, and this is pointed out numerous times by CRS. What 
that means is that there really is no Federal floor that Mr. 
Roewer is describing. States are free to interpret the terms 
that are not defined. They can define their own terms, and they 
can run their programs without oversight that has a standard of 
protection of human health and the environment. The standard 
protection of human health and the environment is a watch word 
of RCRA. It applies in all of RCRA's programs except if this 
bill passes it won't be applied to coal ash, and this is a very 
dangerous omission because EPA essentially will have very 
narrow oversight as to be completely ineffective because if an 
agency can't look at a state program and say these programs 
don't protect human health and the environment, therefore, this 
is a deficient program, their oversight will be minimized and 
essentially this is exactly what the bill says.
    If I could talk to the dual enforcement because that 
argument is really nonsense. Under RCRA, the RCRA Citizen Suit 
Provision, either states or citizens, when, following a citizen 
suit are in Federal Court, they are in Federal Court if it is a 
hazardous waste violation, they are in Federal Court if it is a 
municipal solid waste violation. So RCRA has always operated 
like this, that you have Federal Courts interpreting state law. 
So the problem that is raised by USWAG and the states is really 
a problem, that it is really something that hasn't been a 
problem for all the decades that RCRA has been, RCRA programs 
have been in effect for decades.
    Mr. McNerney. So are you concerned about the citizens 
lawsuits being the main enforcement mechanism?
    Ms. Evans. I am not. Citizen lawsuits include the state 
lawsuits. So it is not, when one says citizen lawsuits, what 
that means is citizens or the states are free to enforce, under 
the EPA rule, are free to enforce the EPA rule. States can go 
in and enforce those provisions as well. So any citizen suit 
that is filed, it is required that there be 60 days' notice to 
the state. If the state wants to be the main implementing 
agency and wants to interpret its own regulation and enforce 
its own regulation, it is 100 percent free to do that. A 
citizen can't slip in with a lawsuit. They have to give 60 
days, and if the state wants to maintain, be the primary 
enforcing agency and maintain 100 percent control over the 
program, a state can bring that enforcement action, can enter a 
consent decree, and there will not be a citizen lawsuit by a 
citizen group.
    Mr. McNerney. OK. I don't know if you will have enough time 
to answer this, but one of the things that you said concerned 
me was that citizens wouldn't have the ability to determine the 
quality of the water that might have been contaminated, and 
that, how could the bill prevent that from happening?
    Ms. Evans. Well, the bill doesn't make mandatory 
groundwater monitoring data. So what that means is a community 
that is on wells next to a coal ash pond or landfill would not 
necessarily under the bill have access to the groundwater 
monitoring data. So they couldn't go on a Web site and find out 
what are the levels of arsenic, chromium, lead.
    Mr. McNerney. But they could do it themselves? They could 
do the testing themselves or have a laboratory do it if it is 
in the paperwork?
    Ms. Evans. Well, that is, well, they wouldn't have access 
to the industry wells. They could test their own well, but 
some, the purpose of RCRA is to prevent harm to health and the 
environment. So you want to find out what is in those industry 
wells, which might be ``a mile from your drinking water well'' 
before it gets to your well and your family.
    Mr. Shimkus. The gentleman's time has expired.
    Before I move to Mr. Murphy, Ms. Evans, you mentioned the 
CRS report. If you have one on this bill, we would like to see 
it. I think you are referring to previous bills of past 
Congresses. There is no CRS report on this bill right now, and 
there would be public disclosure through the state, and with 
that I yield 5 minutes to Mr. Murphy.
    Mr. Murphy. Thank you, Mr. Chairman. I appreciate the panel 
being here. It is a long-term issue we have to deal with 
directly.
    I do want to deal with some comments that, Ms. Evans, you 
made and with regard to the bill fails to establish a 
protective standard. I didn't hear from other panelists if they 
agree with that. Mr. Roewer, do you agree with that?
    Mr. Roewer. The bill takes EPA's 257 regulations, their 
coal ash rule, and builds a CCR Permit Program based on those 
regulations. Those regulations, the 257 regulations, are 
developed by EPA with that, to meet that standard of care, so 
we believe that the bill does provide that Federal standard of 
care in a Federal floor.
    Mr. Murphy. Mr. Forbeck, do you agree that the bill fails 
to establish a protective standard, or do you disagree?
    Mr. Forbeck. I disagree. I believe it does establish a 
protective standard.
    Mr. Murphy. Mr. Paylor?
    Mr. Paylor. I would agree with those responses as well.
    Mr. Murphy. Thank you. I mean, along those lines I look 
upon it that state legislators and regulators have the 
authority to do some things. Ms. Evans, one of the things you 
are raising question with is it may get in the way of people 
being able to bring up Court cases, interfere with that. Am I 
understanding you correctly there?
    Ms. Evans. If I understand your question, the state and 
citizens stand in the same legal place in that if an industry 
under the CCR rule is violating any of those requirements, it 
can bring a suit to enforce the EPA rule. There is nothing in 
the EPA rule that would stop states from fully adopting, fully 
enforcing that rule, and as one of, I think it was the 
gentleman from ECOS, has said that states are ready to do this 
within 2 or 3 years.
    Mr. Murphy. OK. Mr. Forbeck, so based on your experience 
will this draft legislation being discussed today result in a 
more effective implementation of requirements of the final rule 
than the self-implementing program, and why or why not?
    Mr. Forbeck. I believe as I said in the testimony, it would 
be more effective, one, as a single permit program we have the 
state that will have the jurisdiction and the enforcement 
capabilities of enforcing this rule. In addition, the 
uncertainty of the Solid Waste Management Plan as a mechanism 
for implementation is no longer there. We have this permit 
program that would be in effect and----
    Mr. Murphy. Pennsylvania has a very robust coal ash 
program. Am I correct?
    Mr. Forbeck. That is correct.
    Mr. Murphy. And would you have to develop any new 
requirements or make changes to existing requirements based 
upon this draft legislation?
    Mr. Forbeck. We believe it would be very minimum 
requirements that we would have to change. We have been 
regulating coal ash for a number of years. We had liners 
requirements since the early '90s and groundwater requirements 
since the '90s. So I think for Pennsylvania it would not be 
very long.
    Mr. Murphy. So let me talk about that issue with the liner 
requirements. I want to make sure we have enough flexibility 
that as new science is developing, new liners, et cetera, that 
we don't limit anything here. So, and I think that is where 
this bill tries to reflect, but would you support the inclusion 
of a provision to allow more latitude in liner design to 
capture the flexibility of science develops, as technology 
develops than is already provided by state law, so long as it 
is protective of the EPA devised standard?
    Mr. Forbeck. If it is as protective, and right, as 
technology improves----
    Mr. Murphy. Yes.
    Mr. Forbeck [continuing]. There could be even better 
methods that could be more protective than the liner systems 
that we have now. So we would support that.
    Mr. Murphy. Ms. Evans, you said something that called my 
attention to. You talked about issues with regard to dams. I 
guess coal ash dams or piles or whatever, and what do you 
consider the risk that this bill does not address with regard 
to dams?
    Ms. Evans. Well, with regard to dams there are a few. One 
of them is the location restrictions which don't apply to dams 
in wetlands, in fault areas, in seismic areas, and the dams 
that are sitting in the aquifer. Further, it is the delay. This 
rule wouldn't--the requirements would be at the earliest in 
effect 2 to 3 years, and so the inspections of high-hazard dams 
would not occur until 2 or 3 years where it would immediately 
be applicable. And the other thing is, we keep talking about 
whether this bill is the same as the EPA rule, and I would urge 
the committee members to look at my testimony and the long list 
of definitions that can be defined by a state without a 
protective standard and which could differ from EPA's 
definitions, and definitions define the applicability, the 
scope, the stringency of a rule. So let us take dams. The----
    Mr. Murphy. I am out of time here.
    Ms. Evans. Oh. Can I just say that the states can define 
hazard potential dams differently, well, as they wish because 
that is not a definition in the bill, so they could exempt some 
highly-significant hazard dams from those categories, and 
thereby, those more stringent requirements for those more 
dangerous dams would not be applicable.
    Mr. Murphy. Thank you.
    Mr. Shimkus. The gentleman's time has expired.
    Mr. Murphy. Could I just ask that we could ask for the 
record the other panelists be able to respond to that question, 
too?
    Mr. Shimkus. Without objection----
    Mr. Murphy. Thank you.
    Mr. Shimkus [continuing]. So ordered.
    The Chair now recognizes the gentleman from Ohio, Mr. 
Latta, for 5 minutes.
    Mr. Latta. Thank you, Mr. Chairman, and thanks very much 
for our panel for being here. It is very informative as always.
    If I could go back, Mr. Roewer, if I could ask you because 
the question that Mr. Murphy had just brought up pretty much, 
the basic principle in this bill is that we are taking EPA's 
rule and giving more flexibility to states, providing the same 
protections to the environment and particularly the drinking 
water resources in ways other than those narrowly approved by 
the EPA. And, again, following up, Mr. Forbeck just answered 
Mr. Murphy. Would you support the minor changes to the bill 
that would meet the basic principle giving that flexibility to 
provide the same environmental protection if states have 
regulations to provide equivalent protection in different ways?
    Mr. Roewer. USWAG has always supported regulation by the 
states of coal ash as a non-hazardous waste with a performance-
based approach, protecting the environment, protecting the 
groundwater resource. So that would be consistent with that 
view as long as it is protective of the groundwater resource.
    Mr. Latta. Thank you very much.
    Mr. Paylor, if I could ask, I saw in your testimony that 36 
states have permitting for the disposal activities with 94 
percent of those requiring groundwater monitoring. Do you 
believe that most states want to implement their own permit 
program rather than have the EPA do it for them?
    Mr. Paylor. In general, states do prefer to have oversight. 
It gives more a more direct connection to the facility itself 
that is being regulated. We support the Federal floor that 
gives consistency across states, and I think most states would 
very much prefer to implement their own permitting program.
    Mr. Latta. Thank you, and Mr. Forbeck, what do you see as 
the role of states in protecting the environment, and how does 
the draft legislation accomplish that goal?
    Mr. Forbeck. I think the states are the first line of 
defense and the ones that are closer to the issues, and they 
are the ones that should be enforcing the rule, and I think the 
capability of the proposed legislation will allow states to do 
that.
    Mr. Latta. Thank you. Mr. Paylor, in your opinion will the 
draft legislation require every state to have a permit program 
that contains the minimum Federal requirements?
    Mr. Paylor. It does not require every state to do that, 
however, if the state does not have rules that meet the Federal 
standard or opts out on their own, then the Federal Government 
would step in and enforce those rules.
    Mr. Latta. If I could just follow up, again, Mr. Paylor, in 
your written testimony you note that the draft legislation lays 
out a 3- to 4-year process for compliance by regulated 
facilities, but you note that the bill recognizes 
implementation realities and still allows for action in 
emergency situations. Could you explain that?
    Mr. Paylor. Each impoundment is going to have its own site-
specific concerns and just the logistics of identifying what it 
takes to comply, and implementing that is going to take some 
time, plus it is going to take a couple of years for the states 
to get their rules in place. And so that just recognizes the 
realities of the logistics to need to do that and also allows 
for, if, in fact, you do have an emergency situation, you move 
immediately.
    Mr. Latta. OK. Thank you, and Mr. Roewer, I know my time is 
running short here, but the rule requires retroactive 
application of the location restrictions to existing surface 
impoundments. Can you walk me through why this is important?
    Mr. Roewer. We believe it is unfair to apply retroactively 
location restrictions. We can't move these impoundments. They 
are where they are. There are other provisions in the 
legislation that would address the concerns that are at the 
core of those location restrictions. We heard there is no 
prohibition of putting ash directly into an aquifer. The bill 
contains groundwater protection standards, groundwater 
monitoring requirements. So the goal of the location 
restrictions to keep contaminants out of the aquifer are met 
through other aspects of the legislation, and indeed, the 
inspections, the safety assessments will all address those same 
concerns that are being addressed through the location 
restrictions. Other elements in the bill do that.
    Mr. Latta. Thank you. Mr. Chairman, my time has expired, 
and I yield back.
    Mr. Shimkus. The gentleman yields back.
    The Chair now recognizes the gentleman from West Virginia, 
Mr. McKinley, the author of the legislation, for 5 minutes.
    Mr. McKinley. Thank you, Mr. Chairman. It is a draft 
legislation, draft piece. We are going to be working with this, 
and we are going to make some other modifications, I am sure, 
to it. It is going to continue to evolve in this process. It 
has to.
    But I am just curious, a lot of the comments--well, the 
majority of the comments that have been made to date have all 
been about location, drinking water, and the like. But we 
haven't talked about the recycling, and so let us put this all 
in context again.
    For the crowd that may or may not understand a lot of this 
issue, we generate about 150 million tons of fly ash annually, 
but we recycle 40 percent of that. So all of this last hour-
and-a-half or 2 hours we have been talking about is the water. 
What about the recycling provision? What are we going to do, 
because the preamble to the rule is troubling to me, and it 
should be troubling to everyone because the preamble says this 
rule defers a final determination until additional information 
is available. That means that it could rule back to a C. They 
are D now. It could be a C in the future. It could be 2 weeks 
from now, it could be a year from now or 2 years from now. What 
we are trying to do is codify that provision so that we remove 
the uncertainty for the recyclers. Three-hundred and 16 
thousand jobs are at risk. If they make that flip that they 
have just--in the rule and because it is an executive rule they 
can do another executive rule or through the EPA rule to say 
that it is a hazardous material, what happens to the recyclable 
material? 316,000 jobs could be at risk. Who is going to put in 
their house if--and remember, the science has already been 
determined it is not a hazardous material. This was done in 
1993, and the year 2000. It said it is not a hazardous 
material. It wasn't until this Administration said I don't care 
what the science says, I want to treat it as a hazardous 
material, and as a result we got uncertainty. I don't think any 
of us would put drywall in our house or concrete in our floors 
or in our concrete block or in our bricks if we thought it was 
a hazardous material. So, therefore, the EPA did their study 
and came back two times and said it is unhazardous. I am 
concerned about this portion, the 40 percent. Certainly we are 
concerned about the other 60 percent when it goes to a 
landfill, and we will address that, and there is a lot of 
provisions that have been in there, but let us make sure we 
have some debate here today about the 40 percent that we are 
trying to recycle.
    So go back if we could get our panel, is that a concern, 
that they could switch back because they say in the preamble 
they defer a final determination until further information is 
available? Is that a reasonable determination? Does that cause 
certainty?
    Mr. Paylor?
    Mr. Paylor. Thank you. We support beneficial reuse, which 
by definition tells you we think it is a Subtitle D material. 
Whether that creates uncertainty is a great question, but the 
ECOS states have uniformly supported beneficial reuse of this 
material.
    Mr. McKinley. Mr. Forbeck, do you think it should be 
recycled?
    Mr. Forbeck. Absolutely and----
    Mr. McKinley. Would you recycle it if it were hazardous 
material?
    Mr. Forbeck. It would be a concern if it was a hazardous 
material.
    Mr. McKinley. Concern.
    Mr. Forbeck. ASTSWMO has supported the beneficial use, and 
that has been a concern in our past documentation of this being 
labeled as a hazardous waste.
    Mr. McKinley. OK. Mr. Roewer? Again, my question is is this 
issue of uncertainty by virtue of them being able to switch 
back to a C from a D?
    Mr. Roewer. Congressman, the language in the preamble is 
very troubling.
    Mr. McKinley. Thank you.
    Mr. Roewer. The legislation would bring regulatory 
certainty in this manner. Congress would be amending the 
statute to establish a permit program to regulate, under which 
the states would be regulating CCRs under Subtitle D, the non-
hazardous waste title of RCRA. That would provide the 
certainty. EPA certainly could revise those 257 criteria in the 
future, but the regulatory program is within Subtitle D non-
hazardous waste program. It does bring the certainty that the 
recycling market needs.
    Mr. McKinley. OK. Ms. Evans, would you support recycling of 
the fly ash?
    Ms. Evans. Absolutely. Safe recycling of fly ash----
    Mr. McKinley. I am sorry. I have had a hard time hearing 
you all day today.
    Ms. Evans. Oh, I am sorry.
    Mr. McKinley. Much better.
    Ms. Evans. I am sorry about that.
    Mr. McKinley. Keep it in front of you.
    Ms. Evans. We do support safe recycling of coal ash, and I 
would say that----
    Mr. McKinley. Do you think this preamble should be 
tightened up a little bit, to codify, so that it is not set up 
by the Administration or the EPA can just change that at their 
whim?
    Ms. Evans. Well, I have two responses to that. One is that 
it is impossible to ``flip''. The EPA, if they were going to 
make a change, it is a long process full of public 
participation, proposed rules. You can't see EPA making a 
unilateral decision without your involvement, the involvement 
of industry and public interest groups. So it is impossible to 
flip. Whether EPA could change its mind, which I don't think it 
will in the future, you know, is certainly inherent in 
environmental regulation.
    But if we are talking about certainty, what I would point 
to is the gross uncertainty that is created by the bill----
    Mr. McKinley. I am sorry.
    Ms. Evans [continuing]. To communities because there is no 
Federal floor under the bill for safeguards.
    Mr. McKinley. Thank you very much.
    Mr. Shimkus. The gentleman's time has expired.
    The Chair now recognizes the gentleman from Indiana, Mr. 
Bucshon, for 5 minutes.
    Mr. Bucshon. Thank you, Mr. Chairman.
    Ms. Evans, do you believe we should burn coal to generate 
electrical power?
    Ms. Evans. I believe that there are safer sources of 
energy.
    Mr. Bucshon. That is a yes or no. Yes, you do believe we 
should continue to use coal, or no, you think we should just 
eliminate coal as a source of energy generation.
    Ms. Evans. Well, I think it is a more nuance question. I 
support the transition to safer and more environmentally-
friendly sources of energy.
    Mr. Bucshon. OK. Fair enough. And do you believe, Ms. 
Evans, that state regulatory agencies, because just through the 
tone of this, it is a Federal versus state issue here, that do 
you believe that state regulatory agencies and the citizens in 
individual states care about the health and wellbeing of their 
citizens at the state level?
    Ms. Evans. I do. I believe state agencies care on the 
whole.
    Mr. Bucshon. Yes.
    Ms. Evans. I think they do, but I think the record of state 
agencies has not been good and----
    Mr. Bucshon. And the record, in fairness, the record of the 
Federal Government has been better?
    Ms. Evans. The record of both agencies on coal ash has been 
bad, but what we have seen in terms of----
    Mr. Bucshon. Not specifically the coal ash, just this is a 
generalized question about state, I mean, it is a Federalism 
issue. Basically the question that I have is a state--because 
the implication that states and their agencies and citizens in 
their states have to have the Federal Government tell them 
specifically what to do or they will violate, they will damage 
the environment, and they won't properly regulate things at the 
state level I think is something that has been implied, which I 
disagree with.
    So the question is, as you know, at the state level there 
is legislative pressure, there is citizen pressure on the 
governors, the state legislators, the regulators just as there 
is at the Federal level. So the question I have basically is 
why do you feel that, you know, that the Federal regulators 
would necessarily do a better job than people are doing already 
at the states like Pennsylvania has described, for example?
    Ms. Evans. All right. Well, what we see, and I think the 
proof is in the evidence on the ground, EPA identified 157 
cases of contamination from coal ash sites, sites which are 
wholly under the authority of state agencies. We have had three 
major spills since 2008, two of which were horrendous in terms 
of their damage and their cost, and it is lucky that no lives 
were taken. That record indicates that state agencies are not 
doing their job as far as coal ash is concerned.
    Mr. Bucshon. Why would this be because----
    Ms. Evans. And then----
    Mr. Bucshon. Wait. I am reclaiming my time because I was a 
healthcare provider before, you probably don't know that, and 
there is no system in healthcare that we, when we provide 
healthcare to patients that is perfect and every once in a 
while if you understand statistics, things do occur. So I think 
the overall implication that because there have been some 
disastrous spills, in total agreement with you on that, that 
that means that state regulators are not doing their job I 
think is an unfair assessment and that--so the question is, 
again, compared to this draft legislation, and what the EPA has 
done, do you think that the Federal Government will be able to 
eliminate all the spills and other problems that you have? 
Because statistically, right, no matter what industry you are 
in, there is nothing that is 100 percent.
    Ms. Evans. Right, but the damage does indicate that on 
their watch the state agencies have failed. If you compare the 
municipal solid waste arena where the state agencies have an 
authorized program that has a Federal floor and has a Federal 
standard of protection, you are not seeing the same kind of 
contaminated groundwater near municipal solid waste landfills 
as you are near coal ash sites.
    So, yes, when there is a Federally-approved program, when 
it has got specific standards, and when states have to be 
authorized to have standards as stringent as the Federal 
standards----
    Mr. Bucshon. OK.
    Ms. Evans [continuing]. That can----
    Mr. Bucshon. Reclaiming my time, Mr. Roewer, can you 
respond to what she just said?
    Mr. Roewer. Congressman, I think comparing a situation 
prior to a Federal standard that would be implemented through 
this legislation is inherently unfair. If you are comparing 
previous performance by the state regulatory agencies when 
there isn't a Federal regulation, which is what this bill would 
do, just is not appropriate.
    Mr. Bucshon. Thank you. I yield back my time, Mr. Chairman.
    Mr. Shimkus. The gentleman yields back his time.
    The Chair now recognizes the gentleman from Texas, Mr. 
Flores, for 5 minutes.
    Mr. Flores. Thank you, Mr. Chairman. I thank the panel for 
joining us today.
    Mr. Roewer, the draft legislation treats legacy sites in 
the same way that the EPA did under the final rule, and that is 
that inactive impoundments must either close within 3 years or 
become subject to all of the requirements to an active disposal 
unit. In your opinion is 3 years already enough time to close a 
surfaced impoundment?
    Mr. Roewer. Not in all cases. It is a rather complicated 
process of dewatering the facility to ensure the structural 
integrity of the unit to minimize impacts of contaminants to 
groundwater, to ensure that you can place and then place a cap 
on top of that unit. There may be climate and permitting 
complications that would cause that period to be longer. EPA 
recognized this in their rule when they established a 5-year 
timeframe for closure of impoundments with the possibility of 
extending that.
    Mr. Flores. Yes. That building on that then the legislation 
that Mr. McKinley drafted give the implementing agency the 
authority to grant a 2-year extension. Why is that extension 
there, sir? I think you already answered that. Sometimes you 
can't----
    Mr. Roewer. Absolutely, and, again, I will point to the 
fact that the agency for active impoundments provided for a 5-
year timeframe with the ability to extend that closure time 
period by up to 10 additional years. The closure process for 
inactive units and active units can be quite similar. So we do 
need additional time.
    Mr. Flores. Let us go ahead and drill into that. I think 
you had, you said something to the extent that you would have 
to demonstrate, your agency would have to demonstrate why that 
was needed. Give me an example of the demonstration.
    Mr. Roewer. Again, it is not a guarantee that we get that 
extension. It is something that the owner and operator would 
have to petition the implementing agency to get. You would have 
to demonstrate that the factors are beyond control, the 
extension would be the same factors in EPA's rule to extend the 
time period: climate, weather, permitting conditions, 
permitting situations that require additional time.
    Mr. Flores. OK.
    Mr. Roewer. And you also have to demonstrate that the 
facility you are closing isn't a threat for release or a spill.
    Mr. Flores. Yes. In some cases, I mean, going to an 
inactive facility and starting the process to seal it could be 
more disruptive to the environment than to take your time and 
do it the right way.
    Mr. Roewer. We certainly need to make sure that all 
facilities, whether they are active facilities we are capping 
or active facilities are closed in a safe and environmentally-
sound manner.
    Mr. Flores. OK, and Mr. Forbeck, to follow up on that, in 
your opinion does the draft legislation deal with inactive 
impoundments in the same manner as the final rule?
    Mr. Forbeck. It does deal with it very similar, but it does 
allow some extensions based on the conditions that Mr. Roewer 
expressed.
    Mr. Flores. And those are important conditions. I mean----
    Mr. Forbeck. Yes, they are.
    Mr. Flores [continuing]. Disrupting an inactive facility 
prematurely without adequate planning could be more harmful for 
the environment. Mr. Forbeck, did the final rule require 
regulated entities to provide financial assurance for 
corrective action, closure, and post-closure of coal ash 
disposal units?
    Mr. Forbeck. The EPA rule did not.
    Mr. Flores. OK, and so doesn't this legislation actually go 
further than the final rule by requiring financial assurance 
not just for active disposal units but also for inactive 
surface impoundments?
    Mr. Forbeck. Yes, it does, and we feel that is a very 
important component of this----
    Mr. Flores. OK.
    Mr. Forbeck [continuing]. Legislation.
    Mr. Flores. Thank you for joining us today. I yield to any 
other Republican member the balance of my time, or I will yield 
back. OK. I 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.
    I wanted to first ask Mr. Paylor, you mentioned earlier, I 
wasn't here, I was at the other hearing, but you mentioned 
earlier that citizen suits would be the sole method of 
enforcement under the EPA rule, but EPA strongly encouraged 
states to incorporate the new Federal criteria into their own 
state Solid Waste Management Plans. So do you expect at least 
some states will incorporate the new Federal standards into 
state programs, and if states adopt these requirements, do you 
expect them to enforce the requirements?
    Mr. Paylor. It is certainly possible that some states would 
adopt those. There would not be a permitting mechanism, 
however, and it would be subject to a one-size-fits-all 
situation. So there might be some spotty enforcement by states, 
but as a whole the one-size-fits-all approach to Federal 
regulation would, in fact, leave citizen suits as the primary 
mechanism.
    Mr. Pallone. Did you want to comment on that, Ms. Evans?
    Ms. Evans. Well, I have read testimony from ASTSWMO that 
indicates that states following the EPA rule signing, that 
states were ready and willing to implement those programs 
within the states, and states certainly can implement permit 
programs. The requirements have to be consistent with the EPA 
rule, but they certainly can tailor permits and use their 
authority to run coal ash permit programs subsequent to the EPA 
rule.
    Mr. Pallone. All right, and then I want to continue with 
you, Ms. Evans. EPA's final rule published online in December 
set Federal floor standards for the safe disposal of coal ash 
for the first time, and the rule has been decades in the 
making. The final product was a result of a transparent public 
process and input from stakeholders including significant input 
from the groups represented on today's panel. The rule advances 
public health protection and protects beneficiary use.
    But this bill before us would undermine that Federal floor 
in alarming ways in my opinion by leaving out important 
requirements and allowing states to enforce alternative 
requirements that might be less productive.
    So do you agree that this bill would undermine the Federal 
floor established by the final rule?
    Ms. Evans. This bill absolutely undermines the Federal 
floor and does not, and I have to repeat, does not incorporate 
the standards in EPA's rule. It incorporates some of the 
standards but, again, leaves definitions up to the states, 
which can radically alter the implementation and the scope and 
the stringency of the program.
    Mr. Pallone. And what are the most important requirements 
that would be left to state discretion?
    Ms. Evans. Well, you have eliminated, as I have said 
before, you have eliminated the requirement to make data 
publicly accessible in a way that is meaningful for the public. 
This includes data about the quality of their drinking water, 
the assessment of wells, and you also have eliminated the 
requirement for keeping coal ash away from aquifers. You have 
taken away the responsibility, the requirement for states to 
address spills, you have taken away the requirement for 
industry to address releases of hazardous substances. The 
important considerations are almost too numerous to name.
    I do want to flag one, though, because it is so important 
after the collapse of the Dan River pond. These inactive sites 
which have not been attended to sometimes for over a decade, 
that are sitting often close to rivers or to sources of 
drinking water, the requirements that pertaining to the closure 
of inactive sites are not equivalent. I am hearing again and 
again that people think that they are, but there are important 
differences in the closure of legacy sites, not only the 
extension of time in which to close them but what regulations 
apply after 3 years. None according to the bill. Everything 
according to EPA.
    And furthermore, utilities can very easily get out of all 
the closure requirements simply by using that old abandoned 
pond for disposal of anything. If you dispose of any non-coal 
ash waste in a legacy pond, it is not subject to the closure 
requirements, and that could be a really important and 
dangerous loophole for the inactive sites.
    Mr. Pallone. Let me just ask one last question, whether in 
your experience state regulation of coal ash has been effective 
or protective of public health.
    Ms. Evans. Absolutely not and CRS came to that same 
conclusion when they looked at this. It was EPA's conclusion 
the holes were immense in terms of failure to require 
inspections of high-hazard dams, failure to require even 
monitoring of landfills and ponds, failure to require liners 
for these ponds, and the failure to require these basic, basic 
safeguard for waste disposal is what has resulted in the spills 
and the releases and all the damage cases throughout the United 
states.
    Mr. Shimkus. The gentleman's time----
    Mr. Pallone. Thank you. Thank you, Mr. Chairman.
    Mr. Shimkus. And I would, again, make the point that there 
is no CRS report on this bill. You are talking about previous 
CRS reports and previous Congresses with a different 
implication. So to compare those is not proper.
    The Chair recognizes the gentleman from North Carolina, Mr. 
Hudson, for 5 minutes.
    Mr. Hudson. Thank you, Mr. Chairman, and thank you to the 
panelists for being here today. This is an issue the people of 
North Carolina are following very closely. There has been a lot 
of news reports out of North Carolina dealing with coal ash, 
and it is important that we get this right.
    First of all, first and foremost, we've got to protect our 
environment, but secondly we have got to get the balance right 
when it comes to certainty of the regulations, and so I would 
like to go back and revisit that issue with Mr. Roewer.
    Does the draft legislation provide regulatory certainty for 
your member companies regarding whether EPA can revisit the 
determination in the future and regulate coal ash under 
Subtitle C?
    Mr. Roewer. The legislation provides certainly by 
establishing that permit program under Subtitle D.
    Mr. Hudson. OK, and if an owner, operator misses the 
deadline to complete a safety factor assessment or fails to 
meet the initial safety factor assessment criteria, the final 
rule requires that the impoundment cease receipt of coal ash 
within 6 months and close within 5 years. Can you please 
explain why that is a problem, and does the draft legislation 
address this issue?
    Mr. Roewer. In some cases the design and implementation of 
an engineering solution to allow a facility to meet that safety 
factor assessment may take longer than the 18 months EPA has 
provided in this rule. We support the application of structural 
integrity criteria to these units. We need in some cases 
additional time. We want to make sure these units can continue 
to operate. We are not asking that unsafe units be allowed to 
continue to operate but that we be given time to ensure that 
these units meet the safety factors.
    Mr. Hudson. I think you have addressed that maybe with one 
of my other colleagues, but what are some of the factors that 
make one situation take longer than another, for example?
    Mr. Roewer. One of the complicating factors is these 
facilities are subject to permits by state regulatory agencies, 
and you got to get the approval from the state regulatory 
agency before you can do any work on that facility, and that 
can be a lengthy process.
    Mr. Hudson. So in your testimony you need that flexibility?
    Mr. Roewer. Absolutely. The legislation provides additional 
time for us to come into compliance with the safety factors, 
and it is very important the legislation does that.
    Mr. Hudson. All right. Thank you for that.
    Mr. Chairman, I would be happy to yield to you if you would 
like to use the rest of this time.
    Mr. Shimkus. No. I want you to yield back, and we will go 
to Mr. Johnson.
    Mr. Hudson. All right. Thank you.
    Mr. Shimkus. The gentleman yields back his time.
    The Chair recognizes the gentleman from Ohio, Mr. Johnson, 
for 5 minutes.
    Mr. Johnson. Thank you, Mr. Chairman, and I thank the panel 
for being here today, too. I associate myself with the comments 
of my colleague from North Carolina. This is an issue that the 
people of the great state of Ohio are monitoring very, very 
closely. We have a tremendous number of families that work in 
the coal industry that are dependent upon the coal industry for 
their livelihoods to support their families, and Ohio still 
gets in excess of 60 percent of its energy from coal. So it is 
a very, very important issue for people in my district.
    Mr. Forbeck, the draft legislation incorporates the 
definitions from the final rule but allows the states to make 
changes that may be necessary to tailor the requirements to the 
needs of the states but only if the state demonstrates that it 
has a reasonable basis for making the change. In your opinion 
will the states be able to arbitrarily change the definitions, 
and does this minimize the protectiveness of a state Permit 
Program?
    Mr. Forbeck. No. I do not think the states can arbitrarily 
change the definitions. It says it has to have a reasonable 
basis for those changes. An example under Pennsylvania, for 
example, where coal ash is defined differently than what is 
under the proposed legislation, doesn't include flue gas 
desulphurization sludge, however, that FGD and the coal ash is 
included under our term, residual waste. That residual waste is 
governed in the same manner as the coal ash is with the 
protective standards.
    Mr. Johnson. So is it important then in your opinion that 
states be able to adjust the definitions if necessary?
    Mr. Forbeck. In my opinion, yes.
    Mr. Johnson. OK. Mr. Forbeck, also, will the draft that you 
have read, the draft legislation, would that require states to 
make information like groundwater monitoring data, emergency 
action plans, fugitive dust control plans, and the results of 
structural stability assessments available to the public?
    Mr. Forbeck. Yes, it will.
    Mr. Johnson. OK. We had heard some concerns about that. I 
wanted to clarify that. So all this data is going to be made 
available to the public?
    Mr. Forbeck. That is correct, sir.
    Mr. Johnson. Right. In your opinion as an experienced state 
regulator, do you think location restrictions should be imposed 
retroactively?
    Mr. Forbeck. I think it is important that the location 
restrictions are looked at at all facilities, however, there 
should be availability for corrective action and for enclosure 
if issues do occur. It is not possible, as I said, I think, 
earlier to simply move a facility out from a location standard. 
If there is reason to or there are issues that has been, that 
has come up from these, then maybe that is corrective action. 
If there isn't, which we have seen in sites in our region, we 
have had groundwater monitoring, et cetera, around a lot of 
these impoundments, that they are operating safely, even though 
they might not meet the location standards and have been 
grandfathered.
    Mr. Johnson. OK. Thank you.
    Mr. Roewer, the draft legislation also treats legacy sites 
in the same way EPA did under the final rule. Inactive 
impoundments must either close within 3 years or become subject 
to all of the requirements applicable to an active disposal 
unit.
    In your opinion is 3 years always enough time to safely 
close a surface impoundment?
    Mr. Roewer. No, it is not. It is a very complicated 
process, and we need to make sure that that closure is 
environmentally sound and safe. It can take longer than 3 years 
given the size of the unit, the requirements of dewatering it, 
and then constructing the cap in place.
    Mr. Johnson. OK. The draft legislation gives the 
implementing agency the authority to grant an extension of up 
to 2 more years to complete closure. Why is the extension 
necessary? You just----
    Mr. Roewer. That extension is necessary because we can't 
always get it done within that 3-year time period. We want to 
close these facilities safely, and that extension would allow 
us the time necessary to do that.
    Mr. Johnson. OK, but certainly we are not going to do these 
extensions willy-nilly. What would your members have to 
demonstrate in order to request an extension from the 
implementing agency, and specifically, if you could focus on 
the requirement that your members demonstrate that there is no 
immediate threat of release?
    Mr. Roewer. The EPA in their rule has established the 
ability to extend the closure process for active units, and we 
would have to show the same reasons because of climate, size, 
et cetera, that we are required under the provisions to allow 
an extension of the closure timeframe for active units for 
inactive units.
    In addition, we would have to show that the facility is not 
a threat of immediate release. So we are not talking about 
allowing unsafe facilities to continue to stay there. We are 
asking additional time to safely close these facilities.
    Mr. Johnson. OK. Thank you very much.
    Mr. Chairman, I yield back. Thank you.
    Mr. Shimkus. The gentleman's time has expired.
    Just a reminder, this is a legislative hearing on draft 
legislation, and so as Mr. McKinley said, people who have 
comments or concerns can still address myself, Mr. McKinley, 
and members of this committee as we move forward.
    The hearing is recessed until Tuesday, March 24, at 2:00 
p.m. in Room 2123. The witness will be EPA Assistant 
Administrator, Matthew Stanislaus, a good friend of the 
committee who has been here numerous times.
    With that I recess this hearing.
    [Whereupon, at 11:55 a.m., the subcommittee recessed, to 
reconvene at 2:00 p.m., March 24, 2015.]
    [Material submitted for inclusion in the record follows:]

                 Prepared statement of Hon. Fred Upton

    Today's hearing continues our multi-year and multi-Congress 
effort to finalize a thoughtful, bipartisan solution for coal 
ash. This has been a collaborative effort every step of the 
way, and I commend Mr. Shimkus and Mr. McKinley for their 
leadership. With this discussion draft I am confident that we 
have the right policy in place that will get us across the 
finish line.
    The draft is designed much like the legislation we nearly 
enacted in the last Congress:
     It appropriately treats coal ash as though it's a 
non-hazardous waste.
     It includes minimum federal standards for managing 
the post-combustion materials.
     And it allows states to develop permit programs 
that will implement the minimum standards.
    What's different this time around? Instead of keying the 
minimum national standards off the old EPA regulations issued 
for Municipal Solid Waste--with a few tweaks for coal ash--we 
set the national standard by incorporating EPA's new coal ash 
rule that came out last December.
    We acknowledge all of EPA's work to develop sound technical 
requirements for regulating coal ash in a way that protects 
human health and the environment and we put the agency's 
efforts to good use. We allow the states--the natural choice to 
carry out permit programs--to implement the standards from the 
final rule through enforceable permits. This commonsense 
approach alleviates the implementation issues with the final 
rule and means state environmental protection authorities, some 
of whom are here for this hearing, will work on a daily basis 
with the regulated community to make sure the permit programs 
are on track. This kind of discipline should avoid unnecessary 
litigation and protect our environment at the same time.
    I appreciate the testimony of our witnesses, especially 
those who will be on the front line when this bill becomes law: 
the state officials and the regulated community. This bill is 
good for states like Michigan that rely on coal for 
electricity. This bill is good for jobs. Let's continue the 
momentum and get this bill moving through committee and the 
House, and through the Senate, so that the president can sign 
it into law and the issue will be settled once and for all.
                              ----------                              

H.R. ----------, THE IMPROVING COAL COMBUSTION RESIDUALS REGULATION ACT 
                             OF 2015, DAY 2

                              ----------                              


                       WEDNESDAY, MARCH 24, 2015

                  House of Representatives,
       Subcommittee on Environment and the Economy,
                           Committee on Energy and Commerce
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 2:34 p.m., in 
room 2123 of the 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, and 
Tonko.
    Staff present: Nick Abraham, Legislative Clerk; Charlotte 
Baker, Deputy Communications Director; David McCarthy, Chief 
Counsel, Environment and the Economy; Tina Richards, Counsel, 
Environment and the Economy; Chris Sarley, Policy Coordinator, 
Environment and the Economy; Jacqueline Cohen, Democratic 
Senior Counsel; Michael Goo, Democratic Senior Counsel, Energy 
and Environment; Caitlin Haberman, Democratic Professional 
Staff Member; Rick Kessler, Democratic Senior Advisor and Staff 
Director, Energy and Environment; and Ryan Schmit, Democratic 
EPA Detailee.
    Mr. Shimkus. We want to call the hearing back to order and 
welcome the Undersecretary Mathy Stanislaus from the EPA to 
testify on the coal ash bill. And my colleagues are here, and 
some will come back. We just came from votes.
    Just for information, Mathy has to leave at 3:30, so we 
will try to expedite this as much as possible. And with that, 
your full statement is submitted for the record. You have 5 
minutes, and welcome.

STATEMENT OF MATHY STANISLAUS, ASSISTANT ADMINISTRATOR, OFFICE 
   OF SOLID WASTE AND EMERGENCY RESPONSE, U.S. ENVIRONMENTAL 
                       PROTECTION AGENCY

    Mr. Stanislaus. OK. Thank you. Good afternoon Chairman 
Shimkus, Ranking Member Tonko, and members of the subcommittee. 
I am Mathy Stanislaus, Assistant Administrator for the Office 
of Solid Waste and Emergency Response. Thank you for the 
opportunity to testify on EPA's efforts on coal ash residuals 
as well as the subcommittee's discussion draft. I was also 
looking for a frequent witness card after I am done here today.
    Mr. Shimkus. We will see how your testimony goes.
    Mr. Stanislaus. So as you all know, on December 19, the EPA 
Administrator signed the coal ash rule. The rule establishes 
the first-ever nationally applicable minimum criteria for the 
safe disposal of coal combustion residuals in landfills and 
surface impoundments. The agency is pleased that there 
continues to be wide agreement on the importance of ensuring 
the safe disposal of coal ash residuals. As noted in my 
testimony before the subcommittee on January 22 of this year, 
EPA believes that the agency's rulemaking appropriately 
addresses the risks posed by the mismanagement of coal ash 
residual disposal. The EPA believes that the coal ash 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 provides states and local 
communities the information they need to fully engage in the 
rule's implementation, thereby helping to ensure that 
facilities safely manage and dispose of coal ash residuals. To 
address the risk posed by mismanagement of coal ash residuals, 
the rule requires utilities to conduct groundwater monitoring, 
installing liners for new surface impoundments and landfills, 
control fugitive dust, and properly close surface impoundments 
and landfills no longer receiving coal ash.
    The CCR rule is designed to provide electric utilities and 
independent power producers generating coal ash with a 
practical approach for addressing the issue of coal ash 
disposal and has established varying implementation timelines 
for the technical requirements that take into account, among 
other things, upcoming regulatory actions affecting electric 
utilities and site-specific practical realities. This rule also 
sets out recordkeeping and reporting requirements, including 
requirements to post information on a publicly available Web 
site to ensure transparency. We are committed to working 
closely with our state partners on rule implementation, and as 
a major component of this, we are encouraging states to revise 
their Solid Waste Management Plans and submit the revisions to 
the EPA for approval.
    Just last week I briefed state commissioners on the rule's 
implementation process, and we agreed to continue to work 
together on expediting a streamlined process for developing and 
improving states' solid waste management plans. EPA has been 
working extensively with stakeholders before the rule and 
subsequently, and just recently we had a webinar in which 800 
participants participated in discussing the rule.
    EPA expects that the states will use the solid waste 
management planning process to help align state programs with 
the EPA rule and revise the state Solid Waste Management Plans 
to demonstrate how the state intends to regulate coal ash 
landfills and surface impoundments. We believe states will have 
sufficient time to prepare the solid waste management plans for 
approval. We believe we built in adequate time, up to 18 
months, to revise the Solid Waste Management Plans before key 
provisions of the rule take effect. The agency expects that the 
solid waste management plan process can accommodate state 
program variability as states demonstrate regulatory 
requirements that are equivalent or more stringent than the 
requirements in the EPA rule. Most importantly, states' 
concerns of having state oversight and permit program that is 
aligned with the coal ash rule will be achieved with an 
approved solid waste management plan, and utilities will have a 
single point of compliance.
    EPA is currently reviewing the subcommittee's draft, and we 
remain open to providing technical comments to the committee. 
We believe that legislation should provide for a national 
uniform minimum standard that is protective of public health 
and the environment as we have set forth in the rule, and we 
appreciate the provisions of the discussion draft that 
incorporates components of the EPA's CCR rule.
    However, the coal ash rule contains very specific detail 
regarding elements of transparency, prevention, and response, 
these elements were developed by reviewing extensive 
information from utilities, states, and citizens, augmented by 
in-the-field inspections of coal ash impoundments. The rule 
provides specific timelines that reflect the balance of 
immediately addressing risk to communities as soon as possible 
such as structural integrity to prevent catastrophic failure 
and ongoing risk to drinking water, while providing a 
reasonable amount of time for utilities to take actions given 
the variability of circumstance of CCR units. These components 
include a requirement that facility compliance data and 
information be posted on the internet for public access, 
criteria for addressing coal ash unit closure, comprehensive 
structural stability requirements, and requirements for all 
releases. Now we believe these are critically important 
components for a protective national program for coal ash 
disposal.
    With that, Mr. Chairman, 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. I would like to recognize 
myself for the first 5 minutes, and Mr. Stanislaus, I would 
like to walk you through some of the specific provisions in the 
legislation and compare them to the final rule. We are going to 
try the yes or no because of our time comparing the rule to the 
language of the bill. So if we can get to a yes and no on some 
of these first ones, we would appreciate it.
    Do you agree the bill requires states to use the exact 
design requirements as in 257.70 and 257.72?
    Mr. Stanislaus. Well, I know you want yes and no answers, 
but I think the best way to kind of address those specific 
detailed questions is to----
    Mr. Shimkus. But the real question is----
    Mr. Stanislaus. Yes.
    Mr. Shimkus [continuing]. Did we take the language from the 
reg----
    Mr. Stanislaus. Yes.
    Mr. Shimkus [continuing]. And place that in the language of 
the bill?
    Mr. Stanislaus. Well, I guess I will have to get back to 
you on that.
    Mr. Shimkus. Yes, I think you know the answer. It does.
    Mr. Stanislaus. OK.
    Mr. Shimkus. Do you agree that the bill requires the states 
to incorporate the groundwater monitoring and corrective action 
provisions in 257.90 to 257.98?
    Mr. Stanislaus. Yes, I believe the draft does contain those 
kind of requirements as I said in my testimony. Some of the 
details having set forth in the rule is where we would like to 
work with you.
    Mr. Shimkus. Do you agree that the bill has a deadline of 
no more than 36 months for the installation of groundwater 
monitoring?
    Mr. Stanislaus. Again----
    Mr. Shimkus. It does.
    Mr. Stanislaus. OK.
    Mr. Shimkus. Does the final rule require installation of 
groundwater monitoring within 30 months of the effective date?
    Mr. Stanislaus. Are you talking about the draft or the 
rule?
    Mr. Shimkus. You are testifying on the bill.
    Mr. Stanislaus. OK.
    Mr. Shimkus. We are comparing the bill's language to the 
rule.
    Mr. Stanislaus. OK.
    Mr. Shimkus. Which we looked at very closely.
    Mr. Stanislaus. OK. Well, again, in terms of a direct 
comparison, we can get back to you on that, so----
    Mr. Shimkus. OK. We believe it does.
    Mr. Stanislaus. OK.
    Mr. Shimkus. Do you agree the bill includes all the same 
constituents identified by EPA as being of concern for coal 
ash?
    Mr. Stanislaus. Again, I believe it does, but we will have 
to do a direct comparison.
    Mr. Shimkus. Yes.
    Mr. Stanislaus. OK.
    Mr. Shimkus. Do you agree the bill requires states to 
include the post-closure requirements in 257.104? I am just 
going to keep reading these.
    Mr. Stanislaus. OK.
    Mr. Shimkus. OK. So the answer that we are trying to get to 
is, and there may be when we go through the markup, there may 
be some issues of debate, but our intent was as much as we 
could grabbing the regulation language and putting it in the 
bill.
    Mr. Stanislaus. Yes.
    Mr. Shimkus. And this line of questioning is to confirm 
that.
    Mr. Stanislaus. Yes.
    Mr. Shimkus. Do you agree that the bill requires the states 
to include the exact air criteria in 257.80? You probably don't 
know. We think it does. Does the final rule require financial 
assurance? Does our draft bill include financial--does the 
final rule, excuse me, your rule, does it include financial 
assurance?
    Mr. Stanislaus. The coal ash rule does not include 
financial assurance, but it does not foreclose existing states 
who have financial assurance for adding that to their 
administration of coal ash disposal.
    Mr. Shimkus. OK. But so you are testifying that the final 
rule doesn't but they could, based upon state action?
    Mr. Stanislaus. Yes, states can, in fact----
    Mr. Shimkus. Right. OK.
    Mr. Stanislaus [continuing]. Add that, yes.
    Mr. Shimkus. Do you agree that the bill requires states to 
include surface water requirements as part of a permit program?
    Mr. Stanislaus. You are talking about the draft?
    Mr. Shimkus. I am on the same line of questioning----
    Mr. Stanislaus. OK.
    Mr. Shimkus [continuing]. Is the regulation comparing it to 
the draft. So the question is do you agree that the bill, the 
draft bill, requires states to include surface water 
requirements as part of a permit program?
    Mr. Stanislaus. Again, we would be more than willing to 
compare it back to----
    Mr. Shimkus. I think what we will do, we will just submit--
--
    Mr. Stanislaus. Sure.
    Mr. Shimkus [continuing]. These questions for the record, 
although we are going to be--as we mentioned before the 
hearing, a bill moves through the process. We will have a 
subcommittee mark. Through that process, if you can confirm or 
deny these questions, then we go to Full Committee mark, then 
we go to the floor. So there are other times for this process 
to move forward. But we think we have drafted the bill to, for 
the most part, address the regulatory issues that you have. Our 
intent was to, as I said in the earlier part of the hearing 2 
days ago, is to be helpful, codifying versus what we are 
concerned about is litigation, citizen suits and different 
rules throughout the Federal District Court jurisdictions and 
then giving states the permitting authority with federal 
standards and to comply. So I will submit these questions, and 
if you can as quickly as possible, respond to those. I didn't 
get to the other ones, but my time is expired. And I will yield 
to Mr. Tonko for 5 minutes.
    Mr. Tonko. Thank you, Chair Shimkus, and welcome to 
Administrator Stanislaus. We can all agree that coal ash can 
pose serious risks when not disposed of properly. Now for the 
first time we have minimum federal requirements that set a 
floor of public health and environmental protections. But we 
are still hearing from our majority that a bill is needed, that 
this rule somehow falls short.
    Mr. Stanislaus, do you believe there are gaps in EPA's 
final rule?
    Mr. Stanislaus. Well, we believe that the rule 
comprehensively addressed the risk that we have identified from 
a technical perspective, and we also believe that the alignment 
of the federal rule with state requirements can occur through 
the state solid waste management planning process.
    Mr. Tonko. And does the rule address the major risks of 
improper coal ash disposal?
    Mr. Stanislaus. Yes.
    Mr. Tonko. And do you think there are problems in the rule 
that need to be addressed?
    Mr. Stanislaus. We believe that we have addressed all the 
rest identified by EPA and by all the stakeholders, and in 
fact, in last week's testimony, I think the state witnesses had 
noted that the rule reflects the best practices of the states.
    Mr. Tonko. And you know, we have heard from some 
stakeholders last week, even after all of this, that the rule 
does not include enough discretion for states to tailor 
requirements to specific sites. In response, this bill gives 
states significant leeway to apply alternative groundwater 
protection standards, clean-up requirements, and more. But this 
leeway undermines the federal floor or the national minimal 
criteria that EPA sets in the final rule.
    So my question to you, do you think it is important to have 
a federal floor of protections for coal ash disposal?
    Mr. Stanislaus. Well absolutely. What we have done is 
establish a clear federal floor around the major risks but also 
provided some tailored requirements to accommodate site-
specific flexibility as well as timelines to accommodate the 
variants of the size of facilities.
    Mr. Tonko. Thank you. And we have also heard some concerns 
about enforcement, that it might rely exclusively on citizen 
suits or that we may see issues of dual enforcement. So do you 
have confidence that enforcement of the final rule through 
citizen suits or states that have adopted requirements into 
their existing plans will be effective?
    Mr. Stanislaus. Well, we have confidence that the states 
going through the state solid waste management planning process 
would align the state requirements with the federal 
requirements and not result in dual requirements. And 
therefore, in any citizen suit as courts have done in looking 
at other kind of citizen suits under RCRA would provide 
substantial weight to EPA's approval of the state's solid waste 
management plan.
    Mr. Tonko. And lastly, we have heard from some that the 
final rule does not provide enough certainty to the recycling 
industry because EPA could, at some time in the future, go 
through another lengthy public process to regulate coal ash as 
hazardous. By that measure, nothing that we do is certain 
because regulations and statutes can always be revised. Mr. 
Stanislaus, does EPA's final rule label coal ash as hazardous?
    Mr. Stanislaus. No.
    Mr. Tonko. Does the final rule prevent beneficial reuse?
    Mr. Stanislaus. No.
    Mr. Tonko. Does EPA have any plans at this time to label 
coal ash as hazardous or restrict beneficial reuse?
    Mr. Stanislaus. No.
    Mr. Tonko. I thank the chair for calling this hearing and 
the witness for his testimony. Based on this testimony, I do 
not see a need for legislation at this time, and I see serious 
risks in this particular proposal at a point I believe the 
public interest would be best served by allowing the EPA rule 
to move forward. The state-based approach on coal ash disposal 
has been in effect for over 30 years and has resulted in too 
many failures.
    So EPA's proposal deserves I believe a fair test to see if 
it results in better protection for the American people from 
the risks of coal ash. And with that, I will yield back to the 
chair.
    Mr. Shimkus. The gentleman yields back his time. Just a 
note that I appreciate your yes and no answer to my colleague 
but no ability to do yes or no to me.
    So I will now recognize my colleague, Mr. Murphy, for 5 
minutes.
    Mr. Murphy. Thank you. I am over here. Good to see you. 
Now, does this legislation create enforceable permit programs 
for coal ash?
    Mr. Stanislaus. In my understanding, there is a permit 
program in there.
    Mr. Murphy. OK. You have read the bill?
    Mr. Stanislaus. Yes.
    Mr. Murphy. OK. So you are aware on pages 10 through 18 the 
bill text sets out the minimum requirements for states' coal 
ash permit programs. Are those direct references to the 
requirements in Part 257 of the EPA's final rule?
    Mr. Stanislaus. Yes, I do believe there are references to 
EPA's final rule, and as I noted in my opening statement, I 
think that there has been a lot of incorporation of the 
elements of the EPA's final rule. I do think the specificity 
that we laid out in the coal ash rule regarding the major risks 
are critical enhancements that are necessary to provide the 
kind of protections against catastrophic failure among other 
kinds of risk.
    Mr. Murphy. And doesn't the bill then also require state 
permit programs to use the requirements in the final rule as 
the minimum requirements of coal ash permit programs?
    Mr. Stanislaus. I am sorry. Could you say that again?
    Mr. Murphy. The bill requires the state permit programs to 
use the requirements in the final rule as the minimum 
requirements of coal ash permits?
    Mr. Stanislaus. Minimum requirements? Yes, I don't really 
have that in front of me.
    Mr. Murphy. OK. We will get back to that.
    Mr. Stanislaus. OK.
    Mr. Murphy. I believe it directly incorporates the minimum 
requirements set forth in your December final rule, but let us 
know. In the fact sheet that accompanied the December 20, 2014, 
final rule, your agency says, ``EPA has no formal role in 
implementation of the rule. EPA does not issue permits nor can 
EPA enforce the requirements of the rule.'' In order to ensure 
that the EPA's coal combustion residual standards are met, 
doesn't it make more sense to enact a statutory guarantee that 
these standards would be adhered to rather than placing 
reliance on this rule's self-implementing mechanism?
    Mr. Stanislaus. Well yes, we have been really clear that 
the rule is self-implementing, but we believe, you know, based 
on all the comments we have heard from the states that the 
states want to enforce it through their programs. The states 
have that ability right now and that the alignment between 
state programs and the coal ash rule can occur through EPA's 
approval of the state's solid waste management plan.
    Mr. Murphy. When you refer to that states can enforce that, 
isn't that also referring though to lawsuits states and 
individuals can bring up as far as a means of enforcing the 
federal standards?
    Mr. Stanislaus. No. I want to separate the two. So with 
respect to aligning with state permit programs and enforcing it 
through the state authority, they can do that by integrating 
the coal ash rule into their program and then by submitting a 
solid waste management plan for EPA's approval separately, the 
states or citizens can enforce the self-implementing 
requirements through a suit.
    Mr. Murphy. Right, but won't enforcement through citizens' 
suits as called for in the final rule result in this extreme 
variety of interpretations and a patchwork of compliance and 
enforcement decisions as made by federal courts and not the 
EPA, not elected Members of Congress, not EPA and Congress 
working together? I am very concerned about that. Are you 
concerned as well that that basically means we are going to 
punt our authority here by relying on the courts for 
enforcement which includes interpretation? It is not just 
making someone do that which they are supposed to be doing, but 
whenever you go to the courts, you are also dealing with 
interpretation issues. Does that concern you?
    Mr. Stanislaus. Well, precisely because of that concern we 
have heard from utilities, we have heard from the states that 
very issue. That is the reason why we identified this 
opportunity to align state programs using the state's solid 
waste management planning process. And we have heard from 
utilities and states, and we agree that there should be a 
single point of compliance and that----
    Mr. Murphy. And what is that point of compliance? Would 
that point of compliance be the permit process itself or 
letting the states go through the enforcement and challenging 
in courts and individuals challenging courts? Wouldn't the 
permit process be the best place so you have interpretation and 
enforcement by the very agency that is working with Congress on 
this?
    Mr. Stanislaus. Oh, yes, and we would agree and we think 
that states utilizing the solid waste management planning 
process would enable that to occur.
    Mr. Murphy. So we want to make sure that the legislation 
really enables that to occur. I appreciate that. That is very 
important. And I yield back the balance of my time. Thank you.
    Mr. Shimkus. The gentleman yields back his time. The chair 
now recognizes the gentleman from Ohio, Mr. Latta, for 5 
minutes.
    Mr. Latta. Well, thank you very much, Mr. Chairman, and 
thanks so much for being here again with us. I really 
appreciate it. Let me ask if I could, what do you see as the 
role of states in protecting the environment? Kind of a general 
question, but do you see as the overall role of states out 
there in protecting the environment?
    Mr. Stanislaus. What do I see the states----
    Mr. Latta. Yes. Right.
    Mr. Stanislaus. Well, the states are very much a co-
regulator, in fact they have led responsibility for overseeing 
and enforcing environmental requirements. That is found within 
the Resource Conservation Recovery Act and probably many of our 
other environmental statutes. So we very much believe the 
states are on the front lines and should have primacy over 
that.
    Mr. Latta. Because, as you just said, the states are on the 
front line that especially when the states, they know their own 
backyards much better. And so you think that the states should 
be out there on the front and should be maybe the first line of 
defense out there instead of the Federal Government?
    Mr. Stanislaus. Yes, I mean, I don't disagree with that 
statement, and we spent a lot of time in the rule recognizing 
that fact and to accommodate the states to the greatest extent 
that we can. And even during the development of the rule, we 
have spent extensive time analyzing the states' rules and 
figuring out how we can best align the federal rule with state 
requirements and with the states taking the lead.
    Mr. Latta. Let me follow up on that then. Do you believe 
that most states want to implement their own regulatory or 
permit program rather than have the U.S. EPA do it? Do you 
think----
    Mr. Stanislaus. Well, yes. I think the states in fact want 
to move forward on either enhancing their permit program, a new 
permit program for the coal ash rules, and in my conversations 
with the states is that we want to move forward taking 
advantage of the requirements in the rule to do that.
    Mr. Latta. Well, when we are looking at that, then would 
more states be inclined to want to do it themselves or have the 
U.S. EPA do it, to have their own permitting process?
    Mr. Stanislaus. I am not sure I have that information in 
front of me. I would say that states generally want to 
administer a permit program for coal ash disposal management.
    Mr. Latta. OK. Let me just follow up again. Given all the 
uncertainty that the EPA's rule has given states in the 
industry, the fact that many states already have permit 
programs and the fact that the EPA has previously determined 
that coal ash is not a hazardous waste, wouldn't it be more 
prudent now to provide that full authority to the states to be 
able to do that on their permitting?
    Mr. Stanislaus. Well, I actually believe that we have done 
that in the rule that we finalized. We finalized as minimum 
technical requirements and the ability of states with the 
existing authority to incorporate that within their existing 
permitting program and for EPA to approve that, to align those 
requirements with the state requirements which would, we 
believe, substantially help states and utilities in any 
challenges, any court challenges.
    Mr. Latta. OK. Let me ask this then. Also, looking at your 
testimony, you say that we have talked about this in the past 
in the committee, approximately 40 percent of all the CCR 
generated in 2012 was beneficially used. Do you believe that 
this bill that we are talking about today would ensure that 
continued beneficial use of that CCR?
    Mr. Stanislaus. Yes. I am not sure that I have analyzed it 
from a beneficial-use perspective. I mean, I think both, I 
think the rule and the legislation, is focused on the disposal, 
so I believe both will accommodate beneficial reuse of coal 
ash.
    Mr. Latta. OK. Well, thank you very much, and Mr. Chairman, 
I yield back the balance of my time.
    Mr. Shimkus. The gentleman yields back the balance of his 
time. The chair now recognizes the gentleman from West 
Virginia, Mr. McKinley, who is the author of much of this bill, 
for 5 minutes.
    Mr. McKinley. Thank you, Mr. Chairman, and welcome again to 
our committee and your help on this. If I can get to three 
questions, I would like to handle it that way. I am still 
somewhat troubled by the preamble, about the possibility of a 
slip, that there could be some consideration as a result of 
that. I am still getting phone calls about this and primarily 
from state highway commissions around the country that they are 
concerned that their use of cinders for providing traction on 
our highways that they have used historically may be not 
permitted.
    Do you have a sense of where the EPA would come down on 
whether cinders, the bottom ash, could be used on highways for 
safety?
    Mr. Stanislaus. Yes. So with respect to any issue with 
respect to regulation, I think we are very clear in the rule 
that all beneficial use would not be subject to the rules on 
disposal. Separate from that, we have established a methodology 
for safe use of encapsulated use and we are now working on a 
methodology for the safe use of unencapsulated use. That deals 
with the risk----
    Mr. McKinley. So where----
    Mr. Stanislaus [continuing]. Side of disposal.
    Mr. McKinley [continuing]. Do you think the EPA may come 
down on that issue? Because some of the states, during this 
past winter because of this controversy that has been stirred 
up by certain people, they are afraid to use cinders. As a 
result, we have had increased accident rate in some areas.
    So can you share? Do you think that they would rule that as 
being a beneficial use or are they going to--how would you 
finish that sentence?
    Mr. Stanislaus. Well, we are in the midst of evaluating the 
unencapsulated use. All I can say is that the encapsulated 
use----
    Mr. McKinley. This wouldn't be encapsulated, obviously, not 
the cinders spread on the highway.
    Mr. Stanislaus. Yes. Yes. So to draw the analogy to the 
methodology, unencapsulated use, what it would do is to lay out 
the kind of techniques and applications so that it can be 
safely recycled. It would not be getting involved in whether 
that is subject to regulation at all.
    Mr. McKinley. OK. I think we are going to have to have more 
conversation about that.
    Mr. Stanislaus. OK.
    Mr. McKinley. I am still not clear on that. So again, your 
testimony said that--in critiquing the legislation, the 
criteria to address when a CCR unit would need to close should 
be included. Can you explain what you mean by that?
    Mr. Stanislaus. Sure. So we spent a lot of time in the 
particular circumstance and timeline for closure of 
impoundment. So there can be times where a unit has to close 
for structural stability purposes, and so we lay out a series 
of requirements for structural stability, for inspection, 
looking at safety factors, if they don't pass safety factors, 
the ability to engineer around and fix those safety factors. 
Another circumstance where there could be impact of 
groundwater, where it is an unlined impoundment. So we spent a 
lot of time both in the rule text and in the preamble 
articulating how to do the analysis, under what circumstance it 
would have to close and the particular methods of closure and 
timeline of closure.
    Mr. McKinley. Very good. I would really like to spend more 
time back in that first because that issue of spreading salt we 
know is doing damage. Any of us that know from engineering that 
we are going to destroy our roads and bridges by use of salt. 
So I hope that your ultimate decision will be that we can 
continue using cinders on our highways.
    Mr. Stanislaus. And as a follow----
    Mr. McKinley. Especially given the vegetation, the flora 
and fauna that we are killing along the highways because of the 
salt runoff. So there are some issues with that, and we can 
have more conversation. But in the timeframe, one last 
question. You talked about you wanted comprehensive structural 
integrity requirements you thought were--maybe we need to 
amplify that a little bit more in the bill. But the language in 
the bill is from the rule over the structural integrity 
requirements. The only thing was just a slight modification for 
utilities. What is not included? What is causing you 
consternation over this?
    Mr. Stanislaus. Yes, I think let us have our staff get 
together on that. I mean, one of the issues I think we flagged 
was the timing addressing the structural integrity problems. We 
didn't think that was identical to what we have laid out in the 
rule. All right. So what our rule says is do these inspections, 
do these assessments. Have a professional evaluate it. If there 
are problems with it, fix it, but if you can't fix it, then 
you're going to have to close because of the real consequence 
of a catastrophic failure.
    Mr. McKinley. I would agree. I yield back the balance of my 
time. Thank you.
    Mr. Shimkus. The gentleman yields back his time. The chair 
now recognizes the gentleman from Ohio, Mr. Johnson, for 5 
minutes.
    Mr. Johnson. Thank you, Mr. Chairman. I appreciate that. 
Mr. Stanislaus, there are a number of places in the preamble 
where the EPA indicated that certain provisions of the rule 
would have been written differently if the final rule was not 
self-implementing and if there was state oversight. So let us 
look at some specific issues.
    If the requirements were implemented with state regulatory 
oversight through permits, would the EPA have allowed 
alternative groundwater protection standards to be established?
    Mr. Stanislaus. I guess I am not sure. What we included in 
the rule was the various technical considerations for 
evaluating----
    Mr. Johnson. Well, it says right in the preamble yes. I 
mean, you do know your rule, right?
    Mr. Stanislaus. Yes.
    Mr. Johnson. OK. So it says that it----
    Mr. Stanislaus. Yes.
    Mr. Johnson [continuing]. Would. So would it also allow for 
alternative points of compliance to be established?
    Mr. Stanislaus. If there was a permit program?
    Mr. Johnson. Yes.
    Mr. Stanislaus. Yes, let me get back to you. I don't know 
at this moment.
    Mr. Johnson. Would it allow a determination that compliance 
with corrective action requirements cannot be reasonably 
achieved with concurrently available methods, with currently 
available methods?
    Mr. Stanislaus. I believe that is currently in the rule.
    Mr. Johnson. OK. Would it allow a determination that 
remediation of a release is not necessary?
    Mr. Stanislaus. If there was a permit program
    Mr. Johnson. Yes. The preamble to the rule says that there 
are provisions in the rule that would have been written 
differently if the final rule was not self-implementing and if 
there was a state oversight. So if the requirements were 
implemented with state regulatory oversight through permits, 
would the rule have allowed a determination that remediation of 
a release is not necessary?
    Mr. Stanislaus. I guess I am not sure. If there was a 
release resulting in exceedance, be it a state permit program 
or minimum federal requirements, I think that would both 
require addressing that release.
    Mr. Johnson. All right. Well, let us move on. The 
groundwater monitoring and corrective action provisions in the 
proposed and final rule are based on the municipal solid waste 
regulations in part 258. Would you disagree that the 
flexibility afforded states in making regulatory decisions 
under part 258 would also be appropriate for a state to 
incorporate as part of a coal ash permit program?
    Mr. Stanislaus. Well, I mean----
    Mr. Johnson. Why would they be different?
    Mr. Stanislaus. I am sorry?
    Mr. Johnson. Why would they be different?
    Mr. Stanislaus. Well, I mean, I think----
    Mr. Johnson. If they are both based on part 258?
    Mr. Stanislaus. Yes.
    Mr. Johnson. Why would they be different?
    Mr. Stanislaus. Well, yes, you know the rule, it does 
borrow from the provision that you noted.
    Mr. Johnson. Yes. So the question is would it also be 
appropriate then under Part 258 for a state to incorporate as 
part of a coal ash permit program?
    Mr. Stanislaus. Well, I guess what I would say is the rule 
provides specific requirements regarding groundwater that we 
think should be followed, and we believe states should adopt 
those groundwater requirements in the state programs to be 
protected.
    Mr. Johnson. Mr. Stanislaus, we would like to compare how 
the final rule addresses inactive surface impoundments with how 
the legislation addresses them. So doesn't the bill require 
that inactive impoundments notify EPA and the state within two 
months of enactment regarding whether they intend to close? You 
have read the bill, right?
    Mr. Stanislaus. Yes. Yes. Yes, I am not sure of the time 
period in front of me but----
    Mr. Johnson. OK. Well, it does. Do you know what the rule 
requires?
    Mr. Stanislaus. Yes. The rule permits subjects' inactive 
units that don't close within 3 years of the effective date to 
do the requirements of the rule. Within those 3 years, a unit 
can dewater and close.
    Mr. Johnson. Doesn't the bill require that an inactive 
impoundment close within 3 years or 5 years or become subject 
to all of the requirements of a permit program?
    Mr. Stanislaus. Yes. I believe that is the case.
    Mr. Johnson. OK. What does the rule require?
    Mr. Stanislaus. Again, the rule requires the 3-year 
timeframe.
    Mr. Johnson. OK.
    Mr. Shimkus. The gentleman's time has expired.
    Mr. Johnson. Mr. Chairman, I yield back.
    Mr. Shimkus. The chair recognizes the gentleman from Texas, 
Mr. Flores, for 5 minutes.
    Mr. Flores. Thank you, Mr. Chairman. Mr. Stanislaus, quick 
question for you. Once the file rule is effective, what will 
the EPA's role be with respect to enforcing the requirements in 
the rule?
    Mr. Stanislaus. The rule again is self-implementing so it 
would be enforced either by the states or citizens.
    Mr. Flores. Means the EPA has no role in enforcement 
essentially, right?
    Mr. Stanislaus. Well, with the exception of an imminent and 
substantial endangerment where we reserve that opportunity.
    Mr. Flores. In the legislation on the other hand that we 
are proposing gives the EPA a continuing oversight rule to 
ensure that the state permit programs meet the minimum federal 
requirements, and it allows the EPA to implement a permit 
program if the states decide not to. And the EPA could take 
over a state permit program if the state fails to correct the 
deficiencies. Doesn't the EPA have a more substantial role with 
respect to the regulation of coal ash and with the legislation 
than it does under the rule that you proposed?
    Mr. Stanislaus. Yes, actually we are not sure because I 
think we have questions about----
    Mr. Flores. It does. I don't think this has been asked 
already. When does the EPA plan to publish the final rule in 
the Federal Register?
    Mr. Stanislaus. Well, it has been sent to the Federal 
Register Office, so expect it very shortly.
    Mr. Flores. OK. What changes are you proposing from the 
initial rule?
    Mr. Stanislaus. There are no real changes. It is technical 
corrections.
    Mr. Flores. OK. So no substantive changes?
    Mr. Stanislaus. No substantive.
    Mr. Flores. No substantive changes?
    Mr. Stanislaus. No.
    Mr. Flores. OK. Will there be a document that describes all 
the changes between the December 19 publication and--the pre-
publication and the version in the Federal Register?
    Mr. Stanislaus. Yes, let me get back to you on that.
    Mr. Flores. OK. Does the EPA have the legal authority to 
publish the rule in the Federal Register that varies from the 
December 19 prepublication version?
    Mr. Stanislaus. Sure. I mean, the standard process, I mean, 
basically is a cleaning up of the rule.
    Mr. Flores. And that is based on your representation that 
there are no substantive changes?
    Mr. Stanislaus. That is right.
    Mr. Flores. OK. This is more a rhetorical question. You 
don't have to answer, but isn't it preferable that the EPA 
issue rules based on statutory guidance from Congress instead 
of doing it on its own? I mean, this hearing was about the 
legislation we are proposing, and you have said you read it. 
But yet, many of the questions that have been asked by members, 
it doesn't feel like you have had your arms around it. So I 
would say that it makes more sense I think for the EPA to have 
statutory authority to do something than do it on its own and 
not have it work as well as it could. I yield back.
    Mr. Shimkus. The gentleman yields back his time. The chair 
now recognizes the gentleman from North Carolina, Mr. Hudson, 
for 5 minutes.
    Mr. Hudson. Thank you, Mr. Chairman, and thank you, sir, 
for being here with us today. Mr. Stanislaus, on the first day 
of our hearing last week from one of our witnesses, we heard a 
lot of distrust of the states and their ability to implement 
permit programs that are protective of human health and the 
environment. Do you believe the states would develop coal ash 
permit programs that did not protect human health and the 
environment?
    Mr. Stanislaus. Well, I have a large degree of confidence 
that the states will--and we are working with them--the states 
will develop a coal ash disposal program in alignment with the 
rule, yes.
    Mr. Hudson. So do you agree the states have an established 
standard of protection that they are required to meet and 
establish environmental statutes and regulations?
    Mr. Stanislaus. Well, I think that is the goal to have 
states incorporate the minimum federal requirements set forth 
in the coal ash rule.
    Mr. Hudson. OK. The agency in proposing that the location 
restrictions apply retroactively to existing service 
impoundments acknowledge that this would force a majority of 
those impoundments to close. Do you have an estimate of how 
many we would be talking about would close and what the 
potential impacts would be on grid reliability?
    Mr. Stanislaus. I don't have an estimate in front of me. I 
can get that to you. But I don't believe that a majority would 
close because of location requirements. Now, we built in, per 
information that we received from utilities and states, the 
ability to examine these particular location requirements and 
conduct retrofits to continue operation. But I can provide to 
you the estimate that we have.
    Mr. Hudson. I would appreciate that because I think it is 
important, and we have heard a lot of concern about the fact 
that it can be retroactively applied but we are looking at a 
significant amount of closure. And again, that has really 
raised a lot of concern in my mind about the grid reliability 
and what the impact on that will be.
    In your written testimony you state that the requirement 
that facility compliance data and information be posted on the 
internet for public access is critical to establishing a 
framework to help ensure proper management of CCR disposal. Why 
is it critical that regulated agencies directly post compliance 
data instead of the states posting the information or otherwise 
making the information publically available as is required by 
our legislation?
    Mr. Stanislaus. Well, I mean, we believe that the public 
posting of critical data in terms of, for example, how a 
utility is or is not exceeding groundwater protection 
standards, how a utility is moving forward on corrective action 
helps, the community living next to a facility to understand 
how a utility is addressing the coal ash impoundments.
    Mr. Hudson. Well, sure, but our legislation expressly 
requires that states make information such as groundwater 
monitoring data, structural stability assessments, fugitive 
dust control plans, emergency action plans, and corrective 
action remedies be made available to the public. Why is this 
not an acceptable alternative to having the facilities directly 
post this information? It is going to be out there for the 
public consumption.
    Mr. Stanislaus. Yes, I think having--whether this talks 
about the utilities or the states, I think they are both 
adequate enough so, yes.
    Mr. Hudson. Right. Thank you, Mr. Chairman. I yield back.
    Mr. Shimkus. The gentleman yields back his time. The chair 
now recognizes the gentleman from Mississippi, Mr. Harper, for 
5 minutes.
    Mr. Harper. Thank you, Mr. Chairman. Thank you for being 
here, and I wanted to just let you know a few things in case 
you didn't get a chance to look at it when we had this 
beginning of the hearing last week on the 18th. I just wanted 
to point out some testimony from a couple of the witnesses that 
were here. David Paylor, who is with the Virginia DEQ and Past-
President of ECOS, he said in his testimony that the draft bill 
amended Subtitle D of RCRA by allowing the states to implement 
and enforce the EPA's coal ash management rule through a state 
permit program instead of having the rule be self-implementing. 
He said this recognizes that the states are in the best 
position to implement the rule and to regulate CCR units but 
also properly empowers the EPA to serve as a backstop and 
administrate the new rule and circumstances where a state 
decides not to do so or fails to do so properly. Further, he 
pointed out that ECOS testified before this subcommittee in 
January, supporting the final rules' technical requirements but 
stating that legislation to amend RCRA was still needed to 
address limitations in weaknesses in the final rule. Further 
ECOS has reviewed the draft bill and finds that it positively 
addresses the concerns identified by ECOS in our January 
testimony. The draft bill leverages and codifies the extensive 
technical work in EPA's final rule.
    So I could go on with what he said, but I also want to 
point out Michael Forbeck who is on behalf of the Association 
of state and Territorial Solid Waste Management Officials. And 
their testimony was pretty clear that the discussion draft has 
addressed the main concerns that they have expressed regarding 
EPA's final rule on CCR, and they believe that this discussion 
draft addresses the main concerns that they have in that this 
is necessary. And they are pleased that the legislation 
requires financial assurance for post-closure care of inactive 
surface impoundments and I could go on and on.
    But this is something we believe is necessary. And I have 
got a few questions as I follow up. The legislation allows 
states to use their discretion to establish alternative 
groundwater protection standards, alternative points of 
compliance, and determine that corrective action is not 
necessary or technically feasible. But the bill limits the 
discretion to what the state could do under the municipal solid 
waste regulations in Part 258. Do you feel that this 
significantly weakens the protections in the final rule?
    Mr. Stanislaus. Well, I guess our view is that the level of 
detail to ensure equivalency between what we put in the coal 
ash rule and what is contained in the bill, we are not sure it 
has the same level of equivalency.
    Mr. Harper. OK. Did EPA promulgate the final rule to be 
protective of human health in the environment?
    Mr. Stanislaus. Yes.
    Mr. Harper. Why is a general standard of protection 
necessary in the bill to ensure that states develop permit 
programs that are protective of human health and the 
environment?
    Mr. Stanislaus. Well, we established very specific 
requirements based on the risk to groundwater, the risk of 
catastrophic failure. So we believe that level of specificity 
is necessary to ensure an adequate level of protection.
    Mr. Harper. Some of the environmental groups are saying 
that EPA finalized the weakest regulatory option. Do you agree 
that the final rule contains weak regulatory standards?
    Mr. Stanislaus. No.
    Mr. Harper. The agency in proposing that the location 
restrictions apply retroactively to existing surface 
impoundments acknowledged that this would force the majority of 
these impoundments to close. Do you have an estimate of how 
many will close and what the potential impacts will be on grid 
reliability?
    Mr. Stanislaus. Sure. Yes. I can get back to you with those 
numbers.
    Mr. Harper. OK. We really would----
    Mr. Stanislaus. Sure.
    Mr. Harper [continuing]. Like to see that.
    Mr. Stanislaus. OK.
    Mr. Harper. And do you know if those estimates exist? Are 
they already part of your file? Do you already have that and 
you just have to get it to us or does it have to be compiled?
    Mr. Stanislaus. Yes, we have analyzed it. We can get you 
information on that. I mean, just to be clear, because of the 
concern that you raised, you know, the location requirements 
permit one, the analysis of those various requirements but also 
the ability to implement engineering solutions to provide the 
necessary safety net----
    Mr. Harper. Thank you for being willing to provide that.
    Mr. Stanislaus. OK.
    Mr. Harper. We look forward to seeing that. I yield back.
    Mr. Shimkus. The gentleman yields back his time. Last but 
not least, the gentleman from North Dakota, Mr. Cramer, for 5 
minutes.
    Mr. Cramer. Yes. Thank you, Mr. Chairman, and thank you as 
well. I am just going to--I want to maybe focus in just a 
little more on one topic, and I know Mr. Johnson raised it a 
little bit ago. But I felt like we left it a little early. And 
just as a background, I am a former state regulator. I was in 
the Public Service Commission, and we, in North Dakota, had the 
surface mining, the SMCRA rules, and carried them out as a 
state on behalf of the Federal Government as well as our own 
reclamation rules. And realizing that coal ash is RCRA and 
solid waste, and what I am struggling with, and I am hoping you 
can help me, is if a state opens up its solid waste regulations 
as you suggest and if they adopt, you know, these rules, your 
rules, they then become part of their--258 rules, they then 
become part of their enforcement regime. But as I understand 
it, that is not the end of it. In other words, they still have 
the EPA rule over here, and the state doesn't enforce in lieu 
of the federal rule. Is that right? And I have to tell you, if 
that is right, that is concerning to me because it seems if I 
was the state regulator that I used to be, that would be 
problematic for me. That would be confusing I think certainly 
to the stakeholders, and I think it would be confusing to the 
regulators with regard to who has got enforcement over what.
    I pose it in that statement in hopes that you can help 
clarify it for me.
    Mr. Stanislaus. Sure. Because of this concern that the 
states can't act in lieu of EPA in the way that other programs 
can is the reason why we believe the state's solid waste 
management planning process would allow that alignment. So once 
a state submits a plan to us that demonstrates that the minimum 
federal requirements are contained in a state program, ideally 
a permit program, EPA would then approve that and I believe the 
major concern that we heard from the states and utilities was a 
court could view this as different requirements between the 
states and the coal ash rule. And we do believe that should 
there be litigation around that, that our experience has been, 
it is going to provide substantial weight of EPA's conclusion 
that a state program is consistent with the federal rule. Does 
that answer your question?
    Mr. Cramer. I think it does, but it doesn't alleviate my 
concern because with your court example, wouldn't it be easier 
if we just had the states permitting as part of the enforcement 
mechanism rather than have a court, what I think you are 
talking about, a court sort of recognize that the state adopted 
this and therefore they will consider that as part of this 
citizen suit enforcement mechanism that I think is the 
highlight of the rule, which I think is quite problematic. 
Obviously, I mean, it is pretty clear by the legislation and 
certainly by the majority that that is a fairly major concern 
for us.
    So yes, I think I understand your answer. I just am not 
sure that I can agree with it as a conclusion. With that, I 
have nothing further, but I would yield back, Mr. Chairman.
    Mr. Shimkus. The gentleman yields back his time. I have 
four letters to ask unanimous consent to submit into the 
record. One references the opposition to the draft, and it is 
signed by a lot of organizations from all over the country. So 
people can check the record for that. Another one, another 
letter requests for the subcommittee to convene a hearing to 
address this and concerns, and it is signed by a lot of 
citizens from across the country. And people can find out who 
they are if we accept this into the record.
    We also have a letter by the Chamber of Commerce in support 
of the legislation and a letter from the Portland Cement in 
support of the legislation.
    Without objection, I would like to submit these to the 
record. Without objection, so ordered.
    [The information appears at the conclusion of the hearing.]
    Mr. Shimkus. We want to thank you for testifying for us as 
part of the process of looking at the bill. We look forward to 
some responses to the many questions that members put forth, 
and with that, this hearing is adjourned.
    [Whereupon, at 3:27 p.m., the subcommittee was adjourned.]
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