    [Senate Hearing 114-349]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 114-349

       ECONOMIC OPPORTUNITIES FROM LAND CLEANUP PROGRAMS AND LEGISLATIVE
      HEARING ON S. 1479, BROWNFIELDS UTILIZATION, INVESTMENT, AND LOCAL
     DEVELOPMENT ACT OF 2015, S. 2446, IMPROVING COAL COMBUSTION RESIDUALS
     REGULATION ACT OF 2016 AND DISCUSSION DRAFT OF GOOD SAMARITAN CLEANUP
                          OF ORPHAN MINES ACT OF 2016

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

                                    HEARING

                                   BEFORE THE

                                  COMMITTEE ON
                          ENVIRONMENT AND PUBLIC WORKS
                              UNITED STATES SENATE

                        ONE HUNDRED FOURTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                                 MARCH 2, 2016

                                   __________

      Printed for the use of the Committee on Environment and Public Works

      [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

           Available via the World Wide Web: http://www.gpo.gov/fdsys

                                   ____________

                            U.S. GOVERNMENT PUBLISHING OFFICE
    20-939 PDF                     WASHINGTON : 2016

    ________________________________________________________________________________________
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                  COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                        ONE HUNDRED FOURTEENTH CONGRESS
                                 SECOND SESSION

                      JAMES M. INHOFE, Oklahoma, Chairman
    DAVID VITTER, Louisiana              BARBARA BOXER, California
    JOHN BARRASSO, Wyoming               THOMAS R. CARPER, Delaware
    SHELLEY MOORE CAPITO, West Virginia  BENJAMIN L. CARDIN, Maryland
    MIKE CRAPO, Idaho                    BERNARD SANDERS, Vermont
    JOHN BOOZMAN, Arkansas               SHELDON WHITEHOUSE, Rhode Island
    JEFF SESSIONS, Alabama               JEFF MERKLEY, Oregon
    ROGER WICKER, Mississippi            KIRSTEN GILLIBRAND, New York
    DEB FISCHER, Nebraska                CORY A. BOOKER, New Jersey
    MIKE ROUNDS, South Dakota            EDWARD J. MARKEY, Massachusetts
    DAN SULLIVAN, Alaska

                     Ryan Jackson, Majority Staff Director
                   Bettina Poirier, Democratic Staff Director

                                C O N T E N T S

                                  ----------
                                                                       Page

                                 MARCH 2, 2016
                               OPENING STATEMENTS

    Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma...     1
    Boxer, Hon. Barbara, U.S. Senator from the State of California...     7
    Gardner, Hon. Cory , U.S. Senator from the State of Colorado.....     8
    Bennet, Hon. Michael F., U.S. Senator from the State of Colorado.    39
    Hoeven, Hon. John, U.S. Senator from the State of North Dakota...    40
    Manchin, Hon. Joe III, U.S. Senator from the State of West
      Virginia.......................................................    42

                                   WITNESSES

    Krill, Jennifer, Executive Director, Earthworks..................    46
        Prepared statement...........................................    49
    Holleman, Frank, Senior Attorney, Southern Environmental Law
      Center.........................................................    56
        Prepared statement...........................................    58
    Moyer, Steve, Vice President for Government Affairs, Trout
      Unlimited......................................................    75
        Prepared statement...........................................    77
    Merriam, Chip, Vice President, Legislative, Regulatory &
      Compliance, Orlando Utilities Commission, on Behalf of the
      American Public Power Association..............................    89
        Prepared statement...........................................    91
    Kirby, Patrick, Director, Northern West Virginia Brownfields
      Assistance Center..............................................    96
        Prepared statement...........................................    98

                              ADDITIONAL MATERIAL

    Opposition to S. 2446, the ``Improving Coal Combustion Residuals
      Regulation Act of 2016''.......................................   114
    Discussion Draft; ``Good Samaritan Cleanup of Orphan Mines Act of
      201''..........................................................   123

       ECONOMIC OPPORTUNITIES FROM LAND CLEANUP PROGRAMS AND LEGISLATIVE
      HEARING ON S. 1479, BROWNFIELDS UTILIZATION, INVESTMENT, AND LOCAL
     DEVELOPMENT ACT OF 2015, S. 2446, IMPROVING COAL COMBUSTION RESIDUALS
     REGULATION ACT OF 2016 AND DISCUSSION DRAFT OF GOOD SAMARITAN CLEANUP
                          OF ORPHAN MINES ACT OF 2016

                                  ----------

                            WEDNESDAY, MARCH 2, 2016

                                           U.S. Senate,
                     Committee on Environment and Public Works,
                                                        Washington, DC.
        The committee met, pursuant to notice, at 10:32 a.m. in
    room 406, Dirksen Senate Office Building, Hon. James Inhofe
    (chairman of the committee) presiding.
        Present: Senators Inhofe, Boxer, Barrasso, Capito, Crapo,
    Wicker, Fischer, Rounds, Cardin and Markey.

              OPENING STATEMENT OF HON. JAMES M. INHOFE,
                U.S. SENATOR FROM THE STATE OF OKLAHOMA

        Senator Inhofe. OK, our meeting will come to order. What we
    are going to do today is, Barbara and I will each give our
    opening statement, then we will hear from the Senators who are
    sponsors of the legislation that we are going to be looking at
    today, any comments that they want to make so that they can
    then get up and leave if they so desire.
        In my years as chairman and ranking member of this
    Environment and Public Works Committee, I have worked to
    promote common sense solutions to clean up the environment,
    while also promoting economic development and jobs in our
    States and local communities. The topic of today's hearing will
    examine three pieces of bipartisan legislation that fit this
    description and address longstanding priorities of mine.
        The first bill on the agenda is S. 1479, the Brownfields
    Utilization, Investment, and Local Development Act, known as
    the BUILD Act. The original brownfields law was enacted in 2002
    to address liability concerns and to provide grant money to
    clean up abandoned and contaminated properties. The brownfields
    program is a conservative program. EPA estimates that for every
    $1 of Federal grant money awarded, almost $18 in additional
    funding is leveraged from local and private sources.
        This reauthorization draws from our experience and will
    make an already successful brownfields program even better for
    small rural communities and urban areas alike. An earlier
    version passed out of the committee in the 113th Congress on a
    voice vote. This bill was introduced last summer by Senator
    Markey and myself, along with Ranking Members Boxer, Rounds,
    Crapo, and Booker as original cosponsors. You can't get more
    bipartisan than that.
        Although the BUILD Act was recently added by voice vote as
    an amendment to the Senate energy bill, it is unclear just what
    is going to happen to that bill, so we are going to go ahead
    and move as a standalone bill.
        The second bill is a discussion draft of Good Samaritan
    legislation released in January by Senator Gardner and Senator
    Bennet, both from Colorado. There are hundreds of thousands of
    abandoned mine sites across the Country, many of which date
    back to the 1800's. Local watershed groups and other Good
    Samaritans want to clean up these sites but are afraid of
    taking on Superfund and Clean Water Act liability.
        It is interesting that modern environmental laws are
    hindering the restoration of these waterways. This was
    certainly never the intent. Good Samaritan legislation is not a
    rollback of these laws or a violation of the polluter pays
    principle, as some suggest. Opponents of the Good Samaritan
    legislation also argue the EPA simply needs more money to do
    these cleanups. As the recent blowout at Gold King Mine caused
    by the EPA shows, that is not the answer.
        In 2006, when I was chairman of the EPW Committee, we held
    an oversight hearing on this problem and approved a bill based
    in part on bipartisan legislation by Senators Allard and
    Salazar that would have addressed liability concerns through
    the State Good Samaritan permitting programs. I am encouraged
    that the current Senators from Colorado are trying to find a
    common ground as well.
        As a veteran of the earlier efforts, I think it is
    important that we not allow the perfect to be the enemy of the
    good. Good Samaritan legislation should encourage cleanups in a
    responsible way, but not impose unnecessary burdens that would
    deter anyone from stepping forward. Good Samaritans are, like
    brownfields, redevelopers; they did not cause the environmental
    problems they are trying to address, so it is appropriate to
    protect them from environmental liability when they are trying
    to improve the environment and create economic opportunity.
        The third and final bill on the agenda is S. 2446, the
    Improving Coal Combustion Residuals Regulation Act, which is
    sponsored by Senators Hoeven and Manchin. EPA has extensively
    studied the safety of coal ash, which is a critical ingredient
    in concrete used for roads and bridges.
        In a final rule issued in December 2014, EPA correctly
    determined that coal ash should be regarded as a non-hazardous
    waste under RCRA. However, as the EPW Committee heard at a June
    2015 oversight hearing, EPA has limited authority under RCRA
    and there are significant concerns by States and regulatory
    entities with how that rule would be implemented, so we are
    attempting to correct that problem.
        [The prepared statement of Senator Inhofe follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Senator Boxer.

               OPENING STATEMENT OF HON. BARBARA BOXER,
               U.S. SENATOR FROM THE STATE OF CALIFORNIA

        Senator Boxer. Thank you, my friend.
        Today the Committee will be discussing three bills, a
    brownfields bill, a coal ash bill, and a Good Samaritan bill. I
    believe the brownfields bill is certainly ready to move
    forward, I believe the coal ash bill weakens protections and
    should not move forward, and I believe we can work together to
    get that Good Samaritan bill into a very good place, and I am
    really excited about doing that.
        The BUILD Act, which is the reauthorization of EPA's
    brownfields program, is so important because here we have these
    polluted sites, they are certainly not Superfund sites; they
    can be cleaned up ``pretty easily'' and then those acres can
    remain in productive use. Very important for our communities,
    and I am excited to say that we are in full agreement on that
    one.
        The second bill, S. 2446, would significantly weaken the
    protections in EPA's recently finalized coal ash rule. The new
    rule contains important protections for communities near coal
    ash disposal sites, and we are going to get our hands on a
    photo just to remind us of what happens to communities. This
    one was in Tennessee, where the coal ash just slid right into
    the waterways and destroyed communities. So I don't want to see
    us weaken the coal ash rule.
        Coal ash is dangerous. It contains many toxins such as
    mercury, arsenic, and lead. When you hear the words mercury,
    arsenic, and lead, you know that these are cancer-causing
    elements and toxins, and they harm particularly children. Coal
    ash is often stored in impoundments that are unlined; they are
    located adjacent to rivers and lakes, where the toxics leach
    into the groundwater and surface water. So in Kingston,
    Tennessee and in the Dan River in North Carolina, these
    impoundments could fail, spreading toxic waste through
    communities and waterways.
        We always look at what is happening in Flint to underscore
    the importance of being wise about these things. We have heard
    disturbing reports of children poisoned by contaminated
    drinking water, so Congress should be doing more to protect the
    American people from polluted water, not less. And this is the
    Environment Committee. It is so important to remember this is
    the community that has that sacred responsibility to protect
    our people from lead, from arsenic, from other poisons.
        So I think it is disappointing but, frankly, not surprising
    given the differences the chairman and I have on the issue of
    the environment, that this Committee is actually considering a
    bill that would in fact overturn this rule, amend this rule;
    and I believe we should implement the rule quickly so we can
    cleanup millions of tons of coal ash around the Country.
        So the third bill is a discussion draft proposed by our
    Colorado Senators Bennet and Gardner. I am very pleased to see
    them here, my friends. It would encourage Good Samaritan
    cleanups of abandoned hardrock mines. The bill would allow
    individuals who are not responsible for the contamination at a
    mine site to conduct a voluntary cleanup of an abandoned mine
    and be shielded from liability under the Clean Water Act and
    Superfund.
        Abandoned hardrock mines pose a serious threat to the
    waterways that people use for recreation and that provide
    drinking water, again, to our children, to our families. Mine
    waste frequently contains high levels of those heavy metals,
    including, again, mercury, lead and arsenic.
        So I want to encourage these cleanups, but what we learned
    from the failed EPA cleanup, where a long-term contractor in
    the private sector hired by the EPA caused a major and terrible
    leak, we know about that, we have had testimony about that,
    from an abandoned mine. So we know these are difficult to clean
    up.
        But I do think, even though it does raise other issues, we
    don't want the polluter to get off the hook, that is No. 1. So
    we want to make sure whatever bill we pass doesn't get the
    original polluter off the hook if there is a way to get into a
    polluter's pockets who caused the problem. We know cleanup
    costs could be as high as $50 billion, so that is why it is
    great if we can come up with a Good Samaritan plan here that
    works out that doesn't put taxpayers on the hook.
        I do comment the Colorado Senators and I am working with
    both of them, and I hope before we get to the markup we will
    have an agreement.
        In closing, I will show you this photo of that coal ash
    spill. You can see that coal ash just contaminating the whole
    area. And this is what happened to people because of the coal
    ash spill. We can't fool around with this, folks, these are
    real problems, especially in the south of our Country, where we
    have so much of this coal ash just stored in unlined
    containers. Craziness. We can't have it.
        So we have work to do, but I am ever optimistic, Mr.
    Chairman.
        Senator Inhofe. Yes. You have come to the right place.
        Gentlemen, if it is all right with you, we will go ahead
    and start with Colorado in the hopes that Senator Manchin will
    be here so you can do that all right, is that all right? All
    right, Senator Gardner.

                OPENING STATEMENT OF HON. CORY GARDNER,
                U.S. SENATOR FROM THE STATE OF COLORADO

        Senator Gardner. Thank you, Mr. Chairman, and thank you,
    Ranking Member Boxer, for your words of encouragement on this
    legislation, and thanks to all of you for holding this hearing
    today on the Good Samaritan Cleanup of Orphan Mines Act of
    2016.
        Senator Bennet and I, along with Congressman Scott Tipton
    from Colorado, have been working for years together on this
    issue. The mine was located in Scott Tipton's congressional
    district, which is on the western slope of Colorado, which is
    the location of many abandoned hardrock mines with acid mine
    drainage.
        We have also received a significant amount of stakeholder
    feedback, and I think that is what is remarkable about this
    draft discussion, the ability to hear back from the Colorado
    Governor, our attorney general's office, and many of the
    private sector and public-private partners that have been
    participants in this discussion is truly appreciated. Our goal
    is to introduce a bill that works on the ground for our State
    and constituents and betters the environment.
        So, Mr. Chairman, I do appreciate the chance to make a
    statement here and to talk about what we can do to get this not
    just talked about in the future, but enacted into law.
        Last fall, this Committee, and I am grateful for your
    actions, had an oversight hearing to examine the spill that
    took place at the Gold King Mine in Southwest Colorado. A
    bipartisan group of colleagues and I testified then on the
    impact the spill had on our constituencies, including Senator
    Heinrich from New Mexico.
        We are all still feeling the effects of the spill,
    including lost property, lost economic opportunity, lost
    business opportunity, and monitoring the EPA's reimbursement
    process. In fact, just 2 weeks ago I was meeting with council
    members of the Mountain Ute and the Southern Ute Tribes to
    discuss the Good Samaritan legislation and the impact that this
    bill had on their livelihoods and their properties.
        Today I come before the Committee to advocate the need to
    move forward with this legislation that would allow Good
    Samaritans like the mining industry, State agencies, local
    governments, nonprofits, and other groups and organizations the
    ability to clean up the environment and improve water quality
    conditions in and around abandoned mines.
        The Government Accountability Office estimates that more
    than 160,000 abandoned hardrock mines exist in the United
    States today, and at least 33,000, 33,000 of these mines pose
    environmental or safety concerns. We have hundreds, if not
    thousands, of them in Colorado. One of the immediate actions we
    can do in Congress to address abandoned mines is to pass Good
    Samaritan legislation. It is a concept that has been around for
    decades, with nearly every stakeholder over time advocating and
    remaining true to their opinions on the concept. I respect all
    stakeholder positions, but it is time that we take a small step
    toward facilitating cleanup to prove that this idea will
    actually work.
        And when the legislation sunsets in 10 years, I fully
    support a comprehensive review of what concepts worked and what
    could be done better in terms of the Good Samaritan cleanup. If
    we can move this bill forward now, we will have the knowledge
    and the facts necessary to make the Good Samaritan program even
    stronger in the future.
        The Gold King Mine spill, as terrible as it was, helped
    shine a light on the need for remediation of abandoned hardrock
    mines. As the situation currently stands regarding cleanup of
    abandoned mines, there aren't enough Federal or State resources
    to properly remediate these mines. During the Gold King Mine
    remediation, the Federal Government also demonstrated a lack of
    expertise in the remediation process. Further, while the EPA
    has guidance on the remediation of mines by Good Samaritans,
    this guidance has done little to incentivize Good Samaritans to
    enter these sites and to begin the cleanup.
        There are willing and able Good Samaritans that wish to
    address safety concerns and improve water quality at abandoned
    mines, as you will hear this morning, you will hear from Trout
    Unlimited. But the fear of incurring liability for meeting all
    Federal standards during cleanup is too great, and these sites
    continue polluting the environment and our waters as we wait
    and debate.
        There has been broad bipartisan support for passing Good
    Samaritan legislation in the past. Mr. Chairman, under your
    leadership, the Committee, as you stated, in 2006, reported out
    a bipartisan bill from Colorado Senators Ken Salazar and Wayne
    Allard. Ten years later my Democratic colleague, Senator
    Bennet, and I are advocating for the same type of approach of
    Good Samaritan. The time has come for Congress to move forward
    with this legislation to get this done for Colorado and any
    other State or Tribe that wishes to participate in a Good
    Samaritan program. We must improve the environmental and safety
    issues related to these abandoned mines.
        The draft legislation before the Committee is designed to
    allow Good Samaritans the opportunity to apply for a permit
    under a State or Indian Tribe program or EPA's program to
    assist in the environmental cleanup of abandoned mines. The
    State or Indian Tribe or the EPA, as the permitting agency that
    approves or denies the Good Samaritan permit, monitors the
    cleanup for the duration of the permit. The approved permit
    allows the Good Samaritan to improve the environment and water
    quality while receiving limited liability relief from only
    those provisions necessary under the Acts, the Clean Water Act
    and Comprehensive Environmental Response Compensation and
    Liability Act of 1980.
        A criticism of the past bills was that liability relief was
    too broad. So we have tailored this bill to only include those
    provisions that we believe are necessary to facilitate the
    cleanup. This draft holds Good Samaritans liable if they fail
    to comply with the terms of the Act, but it provides an
    exemption if the failure results in only minor impacts.
        The draft includes that any action done by a Good Samaritan
    must improve the environment and improve the water quality
    standards to the maximum extent practical under the
    circumstances. In a final note, the draft sunsets in 10 years,
    giving us a chance to make sure that the process worked.
        Mr. Chairman, I have a letter from Colorado Governor John
    Hickenlooper expressing support for the bipartisan effort we
    have undertaken in the Colorado delegation, and I would
    respectfully request that the letter be included as part of my
    testimony for today's hearing, along with Colorado Senate Joint
    Memorial 16, which is a resolution from our State legislature
    in support of this legislation.
        Senator Inhofe. Without objection.
        [The referenced information was not received at time of
    print.]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Senator Gardner. Mr. Chairman, we have talked about this
    for decades, Senator Domenici, Senator Campbell, Congressman
    Heffley, Senator Allard, Senator Salazar, but I think what is
    important about this legislation is simply this, that under the
    Acts of this legislation the environment will be better than it
    is today, and that is an important step that we can make for
    Colorado, the West, and this Country.
        Mr. Chairman, I thank you so much for this opportunity.
        Senator Inhofe. Thank you, Senator Gardner.
        Senator Bennet.

             OPENING STATEMENT OF HON. MICHAEL F. BENNET,
                U.S. SENATOR FROM THE STATE OF COLORADO

        Senator Bennet. Thank you, Mr. Chairman. I want to thank
    you and the Ranking Member for allowing Senator Gardner and I
    to speak this morning.
        And I want to thank Senator Gardner for his leadership and
    for his partnership. As he said, this issue has been before us
    for decades, and I think this bill represents the broadest
    coalition that there has ever been because of the urgent need
    that is out there, and we appreciate very much, on behalf of
    the citizens of Colorado and the West, the bipartisan approach
    that you are taking on this bill, and whatever it is we can do
    to help, we will do. So please call on us.
        As Senator Gardner said, the blowout at the Gold King was
    an environmental and economic disaster for communities
    throughout Southwest Colorado, and it was a stark reminder to
    all of us that abandoned mines are a constant source of
    pollution and threat to watersheds across the West. The Gold
    King Ming blowout released 3 million gallons of acid mine
    drainage all at once. But this same amount of polluted water
    was already being released from the Gold King Mine every single
    week, and there are thousands of other abandoned mines in
    Colorado and across the West.
        We need solutions to address the acid mine drainage coming
    from all these old abandoned mines. That is why I introduced a
    separate bill with my colleagues from New Mexico to reform the
    1872 mining law. But it is also why Senator Gardner and I have
    come together, along with Representative Tipton, to release the
    draft Good Samaritan bill that the Committee will consider
    today.
        This draft represents the hard work of many people across
    our State, including the State of Colorado, elected officials,
    local Tribes, mining companies, nonprofits, and environmental
    groups. We would not have been able to craft this draft without
    people like today's witnesses, Steve Moyer from Trout Unlimited
    and Jennifer Krill from Earthworks.
        I am the first to admit that there are still things we need
    to work on in this draft bill, but I think it represents a very
    important step forward and a positive compromise. The bill will
    encourage States, local governments, nonprofits, and companies
    to clean up abandoned mines.
        As Senator Gardner said, it gives Good Samaritans who had
    no part in the creation of mine pollution the opportunity to
    apply for a permit to improve water quality. This bill exempts
    Good Samaritans from liability only under the necessary
    provisions of the Clean Water Act and CERCLA, and it ensures
    that Good Samaritans will be held liable if they fail to comply
    with the terms of the permit. Although it is extremely unlikely
    that a Good Samaritan would cause a disaster like the Gold King
    spill, this bill makes sure that communities are protected if
    an accident does occur.
        I remain hopeful that we can reach a consensus on
    outstanding issues, including citizen enforcement language; and
    we are still getting input from Colorado that will help improve
    the draft.
        Thank you again to all of the Coloradans who worked with us
    on this effort, today's witnesses for their input, and to the
    Committee for holding this hearing. As Senator Gardner said,
    there is no time like the present to get this legislation
    moving, and we are very optimistic that we will be able to do
    it. Thank you, Mr. Chairman.
        Senator Inhofe. Excellent statements. You may be excused,
    but if you would like to stay, of course, feel free to do so.
        Senator Boxer. I am sure you would love to stay.
        [Laughter.]
        Senator Inhofe. All right, Senator Hoeven, you were the
    first one here. I am sorry we didn't get to you first, but you
    are recognized.

                OPENING STATEMENT OF HON. JOHN HOEVEN,
              U.S. SENATOR FROM THE STATE OF NORTH DAKOTA

        Senator Hoeven. Thank you, Mr. Chairman. Thanks to both you
    and to the Ranking Member. It is good to be with you.
    Appreciate you holding a hearing on a bill recently introduced
    by myself and Senator Manchin, the Improving Coal Combustion
    Residuals Regulation Act of 2016.
        This legislation, which builds on our past efforts to find
    a bicameral, bipartisan approach to coal ash, both ensures
    there is safe disposal of coal ash and provides greater
    certainty for its recycling. Coal ash is a byproduct of coal-
    based electric generation, and it has been safely recycled for
    buildings, for roads, for bridges, and other infrastructure for
    years.
        In fact, I would like to invite the Ranking Member to come
    to Bismarck, North Dakota, where we have recently built a new
    heritage center for somewhere between $50 billion and $60
    million out of recycled coal ash, a non-hazardous, non-toxic
    substance. I think she would find it a remarkably beautiful
    heritage center on our State capitol grounds. I would also take
    her over to Bismarck State University where we have a national
    energy center of excellence that was also built out of non-
    hazardous, recycled coal ash on our campus, and it is a
    tremendous resource for our students. I would certainly like to
    show her both beautiful buildings made from recycled coal ash.
        In fact, I think it is important to take note of the
    environmental and fiscal benefits of coal ash recycling. Over
    60 million tons of coal ash were beneficially used in 2014,
    including over 14 million tons in concrete. It has been
    calculated that taxpayers save $5.2 billion per year thanks to
    the use of coal ash in federally funded roads and bridge
    construction.
        Products made with coal ash are often stronger and more
    durable, and coal ash reduces the need to manufacture cement,
    resulting in greenhouse gas emission reductions of 13 million
    tons in 2014. So I would also want to make sure that the
    Ranking Member is aware that recycling coal ash and using it
    actually reduces greenhouse gas emissions.
        So coal ash is an important resource for our economy, and
    it is imperative that coal ash that isn't recycled is disposed
    of and stored responsibly and safely. That is the other thing
    this legislation does, it makes sure that we do impoundment
    safely, something that I know is a concern for the Ranking
    Member, as well. As a matter of fact, looking at those
    pictures, this legislation will make sure that exactly is what
    we prevent from happening. So I appreciate her showing those
    pictures so that we can make the very strong point that this is
    the legislation that will actually make sure that we don't have
    an accident like she showed in those pictures.
        In December 2014, the EPA put forth new legislation for the
    management of coal ash. The regulation made clear, at least for
    the time being, that coal ash would continue to be regulated as
    a non-hazardous waste, so again EPA coming back and saying non-
    hazardous waste, consistent with EPA's earlier findings.
        But the regulation has major flaws. It relies solely on
    citizen suits for enforcement. What this means is that neither
    the EPA nor the States, neither the EPA nor the States can
    directly enforce the rule through a permit program with which
    owners and operators of coal ash disposal sites must comply. It
    means that the regulation does not create the constructive
    regulatory guidance and oversight necessary to ensure the
    proper management of coal ash.
        Instead, the EPA regulation has created a situation where
    the only enforcement mechanism for the rule is that an operator
    of a coal ash site can be sued for not meeting EPA's new
    Federal regulatory standards. Those subject to this regulation,
    those responsible for keeping the lights on for families, for
    farmers, and job creators are themselves left in the dark about
    how EPA's standards will be defined in various court cases
    across the Nation. Instead of direct oversight, we will have
    lawsuits brought by those who want to shut down coal
    production.
        Now, here is the analogy I want to make, and I hope that
    the Committee would consider. This is what we are dealing with
    under this regulation and why this law provides better
    certainty and better protection both for recycling and for
    impoundment. But here is how the regulation works. Imagine
    building an addition to your house and there being no building
    permit process to go through with your local government. You
    call the city or the county and they say that you should just
    read the rules, and if you violate those rules, just know that
    you can be sued at any time by anyone who thinks you didn't
    build that addition according to the law.
        This process would leave you without any sort of assurance
    that you are complying with the law. You would get no
    inspection, no guidance, nothing. And, worse, you would have
    the threat of litigation hanging over your head. Doesn't make
    any sense, right? Sound terrible. We would never do that to
    people trying to build buildings or build houses.
        Well, that is how the EPA coal ash regulations would be
    implemented and enforced, and that is why this Committee needs
    to consider this legislation and do something that makes sense.
    You would never do that to somebody building a house or
    building a building or doing any kind of construction. Why in
    the world would you do it to somebody who is trying to safely
    recycle coal ash or impound it safely so that we don't have
    accidents?
        Our bill would directly address this problem by taking the
    EPA's rule standards for coal ash disposal and incorporating
    all of them in EPA-approved State permit programs. The State
    would have direct oversight over disposal sites design and
    operation, including inspections, air criteria, run-on and run-
    off control, closure and post-closure care, and a requirement
    not in EPA's rule, financial assurance. We add financial
    assurance.
        Meanwhile, we offer State regulators the same flexibility
    for implementing the groundwater monitoring and corrective
    action standards that are currently provided under both
    existing municipal solid waste and hazardous waste regulation,
    allowing State regulators to make tailored site-specific
    adjustments.
        And we have been listening to issues the EPA has brought up
    about our previous versions of the legislation. In fact, we
    have updated the bill to include a more traditional EPA
    application process for the State permit programs. If the EPA
    finds a State's permit program deficient, then the EPA can take
    direct control over that State's permit program. And if a State
    doesn't want to have its own permit program, then the EPA steps
    in to run that State's permit program. That is a pretty
    important point when we are talking about the kind of
    protection that I know the Ranking Member wants to see. So we
    have made modifications to this law that greatly strengthens
    it.
        Mr. Chairman, some groups have claimed that our bill
    undermines the EPA's coal ash rule, when in fact the truth is
    this legislation utilizes the expertise in State government to
    add real oversight and enforcement to the EPA's coal ash
    disposal standards. This bill is about responsible regulation.
    It is about certainty for recyclers and for the American public
    who will know that State and Federal regulators are proactively
    overseeing and working with energy producers to ensure safe
    disposal of coal ash. And I hope my colleagues will take a good
    hard look at this common sense legislation and work with us to
    pass it.
        Thank you.
        Senator Inhofe. We will do that. Thank you very much,
    Senator Hoeven.
        Senator Manchin.

              OPENING STATEMENT OF HON. JOE MANCHIN III,
              U.S. SENATOR FROM THE STATE OF WEST VIRGINIA

        Senator Manchin. Mr. Chairman, Ranking Member, and my
    fellow colleague from West Virginia, Senator Capito, it is good
    to be with you all and I really appreciate you all allowing us
    to come present before you.
        Senator Bill 2446, the Improving Coal Combustion Residuals
    Regulation Act of 2016, Senator Hoeven and I introduced this
    legislation in January, continuing our efforts to find a common
    sense approach to ensuring safe disposal of coal ash, while
    also preserving the economic opportunities and benefits
    associated with the reuse of coal ash. The American Coal
    Council notes that beneficial use and reuse of this material is
    a means of ensuring billions of dollars of economic benefits,
    supporting the creating and maintenance of hundreds of
    thousands of jobs across many industries, and multiple
    environmental benefits including GHG, greenhouse gas,
    reductions, reduce water use, and improve energy efficiency.
        Coal ash and other combustion byproducts are used for a
    wide range of economically beneficial activities, including the
    manufacturing of materials such as wallboard, concrete, roofing
    materials and bricks. I think Senator Hoeven went over some of
    the things we are using it for now. The coal ash is actually
    bound into these products.
        I want to offer an example in my State and Senator
    Capito's, our State of West Virginia. We have a gypsum
    wallboard plan in Moundsville, West Virginia. When I was
    Governor, I cut the ribbon on it, and it is her home where she
    was born and raised, her home area. Anyway, in 2008,
    CertainTeed, a large manufacturer of building products such as
    vinyl siding, roofing, and insulation, opened a plan in
    Marshall County, West Virginia. The plant would have never been
    opened if it had not been for the Mitchell Power Plant.
        Mitchell Power Plant basically went to scrubbers. Scrubbers
    are meant to take SO2 out of the air, no emissions of SO2,
    which it does. The way it takes it out is using an injection of
    limestone with water that basically is sprayed in as coal is
    being burned, and it knocks out the sulfur. It creates a
    limestone base and that base basically is taken over across the
    road to the gypsum board plant. They compress this and make
    wallboard that you have drywall used in your homes. It is a
    tremendous product and it is a better recycled product and it
    is an added value product, and we are very proud of that. Flue-
    gas desulphurization scrubbers were installed on power plants
    allowing synthetic gypsum to be produced.
        The project was $150 million. In some States that might not
    be a big investment. In the State of West Virginia that is a
    tremendous investment; it really helps a lot of people have a
    good job, and that is really what it has done. It was a product
    that was known as a waste product before and, as John had
    mentioned, there is so much being used for this product. We
    build blocks, we have block factories that use it. We have road
    manufacturers, road builders that use this product. So it is a
    tremendous byproduct with added value.
        The other thing that is not talked about much is basically
    when you have a scrubbed utility plant, you have a high
    alkalinity of ash. That is used in backfilling and mining that
    basically mitigated the water problems that we have, and that
    is a tremendous, tremendous asset for us, to be used in mining
    States.
        Other innovative uses of coal ash continue to be developed,
    such as wastewater treatment, wastewater treatment because of
    coal ash. Basically, when you think about it, carbon filters,
    what do you think carbon filters are? Carbon filters are
    basically coal. And it is used for so many other different
    benefits.
        It is calculated that taxpayers save $5.2 billion per year
    thanks to the use of coal as in federally funded infrastructure
    projects. And although the EPA appropriately designated coal
    ash as non-hazardous, they had a ruling on that, we waited for
    quite some time to get their ruling, it is non-hazardous, but
    its rule misses the mark on two fronts: it does not provide
    certainty to recycles of coal ash and it does not establish an
    effective enforcement mechanism for the disposal of coal ash.
    And I think Senator Hoeven went into that in detail of why we
    need certainty in this.
        Our bill seeks to resolve these issues by establishing a
    State permitting program. The State permitting program in West
    Virginia, anybody that basically disposes of coal ash has to
    have water monitoring first. Their sites are inspected
    regularly, routinely by the DEP. And if the State fails to do
    that, this piece of legislation puts the EPA back in control.
    If we don't have a plan that is approved, then the EPA steps
    in. But at least they have to acknowledge the Tenth Amendment
    to the Constitution. Let us do our job in the States. That is
    all we ask for.
        Senate bill 2446 also offers the States first approach to
    recycling of coal ash that prevents harmful effects of EPA over
    regulation, which would threaten vital industries and nearly
    cost my home State of West Virginia and the Nation more jobs.
    All we are saying is there should be a proper use, and if you
    have a disposal and you can use this as added value, that
    should be the plan the States put in place. If not, then it is
    basically disposal. Disposal has to be regulated, and if the
    States don't do it, again, the Feds step in.
        It allows each State to use existing EPA health and
    environmental regulations to set up their own permitting
    programs. These programs will allow industry to continue to
    recycle and reuse coal ash. This approach protects jobs and our
    economy while giving families and businesses the certainty they
    need and be able to continue to produce the products that we
    use.
        I encourage you to support and pass this legislation. I
    think it is most needed. It gives us certainty of how we move
    forward and it basically creates a protective environment that
    we all desire. So I want to thank you, Mr. Chairman, and thank
    Ranking Member Senator Boxer, my colleague, Senator Capito. She
    knows this issue as well as I know it. Thank you.
        Senator Inhofe. Both are excellent statements. I appreciate
    it very much.
        Senator Boxer has requested to respond to a couple of
    things and get a little bit of a dialog going. I think that is
    very appropriate.
        Senator Boxer.
        Senator Boxer. Thanks, Senator.
        First of all, thanks, my friends. I know you are trying
    hard to get that balance between protecting the people and
    protecting coal ash and using it. I want to make a couple of
    points. I am going to put something in the record and hope that
    you will respond to it; not now, but when you get a chance,
    because it is a complicated, long letter.
        First of all, as you know, people like me were hoping that
    this coal ash would be classified as a hazardous, so you know
    that I already think what the EPA did was not strong enough to
    protect the people who suffered this kind of a terrible
    nightmare in their homes from this coal ash. So you know where
    I am coming from.
        Senator Manchin. Madam Chairman, was that the TVA?
        Senator Boxer. That was Tennessee.
        Senator Manchin. And that was Government controlled.
        Senator Boxer. Yes. The way we store the coal ash???????
        Senator Manchin. The Government doesn't do its job as well
    as it should.
        Senator Boxer. Well, that is exactly why we have the rule,
    because you are absolutely right, these are terrible. And for
    years 40 of these ponds were listed as hazardous.
        I don't have any skin in the game in California because we
    don't have coal ash stored, but we had people from your States,
    from particularly your southern States come before us. Let me
    go because I know my colleague wants to move on.
        So, first of all, I think there is a misunderstanding
    because recycling of coal ash is absolutely allowed under the
    EPA rule. So if you and I could talk about why you feel the
    rule is too restrictive, and maybe we can find some common
    ground on that.
        Also, what I really want you to do is we have received a
    letter from 38 organizations and 38 States, and they come up
    with 15 reasons as to why this bill is very, very dangerous,
    your bill. So rather than go through what they said and give
    you the list, some of them are very surprising like Girl Scout
    troops and others, unusual, send a letter. I want to get this
    to you, and if we could talk together about whether you agree
    that this criticism is in any way right, if you could fix your
    bill to respond to it, or if you just think this criticism is
    off the mark, I would love to know.
        But I am very fond of both of you. I want to find some
    common ground. I don't know if we can with coal ash, but we
    will try. We will try.
        Senator Inhofe. Thank you, Senator Boxer. I would comment
    that Senator Hoeven made the comment that those pictures that
    were used, that is the whole purpose of doing this, so that
    won't happen again.
        Senator Boxer. That is the purpose of the rule that you are
    weakening with this bill.
        Senator Manchin. If I could respond.
        Senator Inhofe. OK, just very shortly.
        Senator Manchin. Very shortly on that. I really respect and
    Senator Boxer and I have spoken about this before. Basically,
    it gets back to the people who don't want any fossil burnt
    whatsoever, because the residual of fossil is coal ash,
    depending on what type and how you burn it, whether you have
    alkaline based for sulfur, taking SO2 out of the atmosphere,
    and then you have a byproduct.
        We are trying to find ways to use all of these products
    because they get impounded. The impoundment, the Federal
    Government did a poor job in monitoring that, and we have had
    this, as well as our colleagues from Colorado talked about just
    the blowout that they had. These things can be prevented and
    they should be prevented if they could. This bill will give us
    more certainty.
        If the States aren't doing their job, the Feds have all the
    oversight and control of it. That is all we are saying. But it
    gives us some certainty to try to use a product in a valued
    way.
        Senator Inhofe. Thank you, Senator Manchin.
        Any brief response, Senator Hoeven? Then we are going to
    have to get to our panel.
        Senator Hoeven. Well, I would like to respond directly to
    the points that the Ranking Member brought up. We have
    actually, and I will enter into the record, a response to the
    letter that you brought up.
        Senator Boxer. Get it to me.
        Senator Hoeven. We will. We have it. And if you want
    additional information, we will provide that as well. We would
    like to work with you and we have worked with the EPA on this.
        The only other point that I would like to make is that we
    don't weaken the rule; we create certainty for the rule. In the
    same way we regulate other energy and other emissions where you
    have a State implemented program pursuant to EPA requirements,
    and as Senator Manchin said, the EPA still has oversight. So we
    are not weakening the rule; we are providing certainty so that
    the companies know what they have to do, rather than trying to
    guess on the basis of a potential lawsuit.
        Senator Boxer. Well, that is what happened in Flint; they
    let the State do it, and look what happened.
        Senator Inhofe. All right. Well, we will excuse the two of
    you and ask the panel to come forward.
        [Pause.]
        Senator Inhofe. Let me welcome our panel. I am sorry that
    we are a little bit late getting started with you guys, but we
    will make up for it. I would like to have the opening statement
    from each one. We will start with this side, with you, Ms.
    Krill, and ask you to try to keep it within the time that you
    were told, the 5-minutes, if you don't mind. Ms. Krill.

                     STATEMENT OF JENNIFER KRILL,
                     EXECUTIVE DIRECTOR, EARTHWORKS

        Ms. Krill. Thank you, Chairman Inhofe, Ranking Member
    Senator Boxer from my home State of California, and members of
    the Committee. Thank you for the opportunity to testify before
    you on the discussion draft of the Good Samaritan Cleanup of
    Orphan Mines Act of 2016. My name is Jennifer Krill. I am the
    Executive Director of Earthworks.
        For over a quarter century, Earthworks has worked closely
    with a broad coalition of local governments, Native American
    citizen groups, and other conservation organizations to improve
    the policies governing hardrock mining, including abandoned
    mine reclamation. In the wake of the August 5th, Gold King Mine
    disaster that the Senators from Colorado were discussing
    earlier that spilled millions of gallons of acid mine drainage
    into a tributary of Colorado's Animas River, communities who
    live with the threat of old mines have demanded solutions.
        Sadly, this pollution problem is not limited to the Gold
    King Mine; it is nationwide and it is focused on the West. This
    pollution harms western waters and the communities that rely on
    them for agriculture, recreation, tourism, and drinking water.
        The Animas River running orange is a stark reminder, but
    does not adequately represent the hundreds of thousands of
    abandoned mines that litter the West, polluting water in more
    subtle, yet no less destructive, ways. There are many other
    ticking time bombs like the Gold King Mine, messy, complicated,
    and incredibly expensive to clean up, that cannot be solved by
    Good Samaritans alone.
        According to the EPA, the estimated cleanup cost for
    abandoned hardrock mines total approximately $50 billion.
    Tackling this largescale problem requires a largescale
    solution: 1872 Mining Law reform. If the hardrock mining
    industry had been subject to a less antiquated law similar to
    the surfacing mining law that governs the coal industry, the
    Gold King Mine spill likely would not have happened. An
    independent, dedicated funding source for hardrock abandoned
    mine cleanup similar to the SMCRA program for coal cleanup is
    long overdue, and communities are suffering for it.
        Incentivizing the work of Good Samaritans can be one part
    of our Nation's response to the problem of old hardrock mines,
    but, frankly, it is nowhere near enough. Earthworks has
    supported several legislative proposals in past Congresses that
    create narrow exemptions from Clean Water Act liability. Given
    the scope and scale of the problem and the technical
    complications at many old and inactive mines sites, it is
    important to carefully word any Good Samaritan legislation to
    adequately protect communities and water supplies.
        Good Samaritan permits must be reserved for true Good
    Samaritans, those entities that did not contribute to the
    pollution and are not interested in profiting from the
    reclamation. Any moneys from reprocessing of tailings at
    cleanup sites must be used only to offset the cost of the
    project. True Good Samaritans are not concerned about monetary
    gain, and Earthworks opposes any legislation that includes re-
    mining for profit.
        This legislation must include provisions to hold Good
    Samaritans accountable for mistakes where water quality onsite
    becomes worse than before reclamation began.
        Citizen suits provide accountability and ensure that
    agencies and permittees follow the intent and letter of the
    law. If something goes wrong, as had happened with the Gold
    King Mine, nearby communities must have access to the courts to
    adequately enforce all of our most important environmental
    laws.
        Earthworks applauds Senator Bennet and Senator Gardner for
    their work on the discussion draft this far, and we are happy
    to see some of our key issues have been addressed. Our written
    testimony includes more detail regarding key improvements to
    protect communities and the water resources that they depend
    on.
        We also look forward to moving beyond the Good Samaritan
    debate to get to the heart of the problem: a lack of funding
    for cleanup of these abandoned mines across the West. Good
    Samaritan initiatives that do not include a dedicated and
    significant funding source cannot solve the problem facing
    western communities and water resources. If this discussion
    draft becomes law, Good Samaritans will tackle a few
    reclamation projects, but the scope of the problem will dwarf
    their best efforts.
        Several legislative proposals have been introduced to
    update the 1872 mining law, including S. 2275, the Hardrock
    Mining and Reclamation Act of 2015. Senators Udall, Bennet,
    Heinrich, Markey, and Widens' legislation would bring us closer
    to ensuring that the Animas mine disaster does not happen
    again. This legislation would facilitate the cleanup of
    abandoned hardrock mines while creating tens of thousands of
    reclamation jobs across the West far into the future.
        Thank you for the opportunity to present the views of
    Earthworks on this discussion draft, and we look forward to
    working closer with the co-sponsors and the Committee to solve
    the problem that abandoned mine sites pose to air, water,
    farmland, and public safety in western States.
        [The prepared statement of Ms. Krill follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Senator Inhofe. Thank you, Ms. Krill.
        Mr. Holleman, you are recognized.

        STATEMENT OF FRANK HOLLEMAN, SENIOR ATTORNEY, SOUTHERN
                        ENVIRONMENTAL LAW CENTER

        Mr. Holleman. Thank you, Mr. Chairman and Senator Boxer,
    for having me here. My name is Frank Holleman. I live in
    Greenville, South Carolina and I now work at the Southern
    Environmental Law Center.
        I am here on behalf of the communities of the Southeast to
    ask you please protect us from coal ash pollution by upholding
    the EPA coal ash rule and not adopting the proposed Senate
    legislation.
        The proposed Senate bill would gut minimum standard
    protections for our drinking water supplies that were put in
    place, at long last, by the EPA coal ash rule. Right at the
    beginning I would like to address two points.
        The EPA rule and strong coal ash regulation promotes
    recycling because it encourages the utilities to get this ash
    out of these unlined pits and do something with it. In fact,
    the recyclers have come to us to get us to help them get the
    recalcitrant utilities to act. That is one point.
        The second point is the EPA and strong coal ash regulation
    promotes jobs and economic development, and coal ash pollution
    hurts it. Let me give you specific examples. In South Carolina
    we have a new $40 million coal ash recycling plant purely
    because we forced Sandy Cooper to remove the ash from a coal
    ash lagoon. In North Carolina we produce jobs for everybody
    from the day laborer to the truck driver to the PAG
    geohydrologist in cleaning up coal ash.
        On the other side of the coin, I met the other evening with
    over 100 families whose houses are around a coal ash site, and
    they can't sell the house, they are not allowed to drink their
    water, and the real eState market in that area is dead.
        So if you want to promote economic development and you want
    to promote coal ash recycling, the EPA rule and strong
    enforcement is the way to go.
        Here is the problem: Our utilities, and others, I believe,
    have stored millions of tons of industrial waste containing
    arsenic and lead in unlined pits next to drinking water
    supplies, held back by dikes made of earth that leak. It is
    hard to believe, but it is true. Our groundwater has been
    contaminated. You have seen the pictures about how sites have
    collapsed into our rivers, and we have had river pollution, as
    well as damage to drinking water supplies.
        We have seen catastrophes in Kingston and on the Dan River
    in both North Carolina and Virginia, and we in the Southeast,
    Mr. Chairman, we have learned some hard lessons, and I have
    learned them. I didn't know these lessons a few years ago.
    First, and this is a true statement, we cannot count on our
    State agencies and our utilities to protect us. I wouldn't have
    believed this, but I will tell you why it is true. In North
    Carolina, Duke Energy refused to spend a few thousand dollars
    to inspect the pipe that broke at Dan River, even though its
    own staff asked for the money to do it and dam inspectors had
    warned them, and the State agency never made them do it.
        In North Carolina, while Duke Energy's companies pleaded
    guilty 18 times to 9 Federal coal ash crimes, a United States
    District Court found that the State agency, which this bill
    would leave us at the mercy of, had done ``little, if
    anything'' to pursue a State enforcement action against Duke.
    In fact, and this is hard to believe, too, but it also is true,
    just 17 days after the Duke Energy companies pleaded guilty to
    coal ash crimes and were placed on criminal probation, their
    executives were hosted at a private dinner at the Governor's
    mansion with the State's chief environmental law enforcement
    officer.
        In Virginia, the State agency refuses to adopt protections
    that are even in place in South Carolina, and even the State of
    Maryland is litigating with the State of Virginia in Virginia's
    own State courts.
        In Tennessee, the State administrator said he brought suit
    against TVA when the citizens wanted to pursue enforcement
    because he thought ``TVA would rather be dealing with us than a
    Federal judge.''
        The bottom line is this: This Senate bill would take power
    from the people and give it to State bureaucracies, and these
    are State bureaucracies which have failed us over and over and
    over again. The beauty of the EPA rule is that it gives us, the
    people in these communities, in Anderson County, South
    Carolina, in Pickens County, South Carolina, in Wilmington,
    North Carolina, the ability to protect ourselves.
        Your Honor, Mr. Chairman, Senator Boxer pointed out the
    problem in Flint, and we have learned from Flint what happens
    when government does not take effective action to protect our
    water supplies. I can tell you I traveled all over the
    Southeast. There is not one person in the Southeast and the
    Carolinas who is asking this Congress give us less protection
    from coal ash pollution. And this is everybody from the Tea
    Party to no party.
        Thank you.
        [The prepared statement of Mr. Holleman follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Senator Inhofe. Thank you, Mr. Holleman. You don't very
    often hear people say that they are more concerned about the
    big bureaucracy at the State level than at the Federal level.
        Mr. Moyer.

        STATEMENT OF STEVE MOYER, VICE PRESIDENT FOR GOVERNMENT
                        AFFAIRS, TROUT UNLIMITED

        Mr. Moyer. Mr. Chairman, Ms. Boxer, thank you very much for
    the opportunity to testify today on the Good Samaritan draft
    bill. We deeply appreciate the honor to be before the Committee
    and do that.
        I am here on behalf of Trout Unlimited and its 150,000
    members nationwide. Our members hunt and fish and recreate and
    live in communities across the Country that are affected
    adversely by abandoned mines, so we have seen firsthand the
    devastation that abandoned mine pollution can cause to
    watersheds and communities. But, as a Good Samaritan, we have
    also experienced firsthand the opportunity for recovery at
    these same locations.
        TU has been a good Sam and has worked to restore streams
    and rivers damaged by abandoned mine pollution from the
    Appalachian coalfields in Pennsylvania to the hardrock mines in
    the Rocky Mountain States, so we are informed by these
    experiences and our message today is really simple: abandoned
    mine pollution is a widespread problem and we need to be more
    aggressive in addressing it. But the good news is that much of
    the problem is fixable, and this draft bill is a good step
    toward solving some of these problems.
        We are grateful for the impressive draft bill accomplished
    through the hard work of its authors. It is a thoughtful
    blending of the past legislative approaches into a workable new
    model. There may be room for improvement in some areas, but we
    regard the overall draft as a significant bipartisan
    breakthrough, and we urge the Committee to give the draft
    strong consideration and eventual approval.
        We face some daunting challenges on abandoned mine cleanup.
    The Gold King accident, which has been mentioned several times
    already, last August reminded us of those challenges. But while
    Gold King received extensive media coverage, what is less well
    known is that there are thousands of similar, smaller scale
    abandoned mines that pollute our rivers and streams every
    single day. Cleaning up abandoned mines is challenging and
    expensive, we agree with that, but that does not make it any
    less imperative.
        According to the EPA, abandoned hardrock mines affect about
    40 percent of the headwaters in the Western United States. But
    also in the East pollution from abandoned coal mines continues
    to damage thousands of miles of streams and rivers, over 10,000
    miles just within Pennsylvania and West Virginia alone.
        We and others have developed a number of model abandoned
    mine cleanup projects that can be easily replicated. In
    Pennsylvania, aided by sound State-based Good Sam policy,
    watershed groups, including Trout Unlimited, are working with
    State agencies, communities, and other partners to conduct more
    than 250 abandoned coal mine pollution control projects. Kettle
    Creek Watershed, in north central Pennsylvania, being just one
    example, has seen dramatic water quality and fisheries
    restoration through this work.
        In Colorado, the western leader in abandoned mine cleanup
    work, TU, again in partnership with State and Federal agencies
    and private landowners, has used the limited Good Samaritan
    tools afforded by EPA under current law to good effect in
    restoring Kerber Creek in Colorado.
        Both these projects are described more fully in my written
    testimony.
        Despite this progress, the lack of dedicated funding
    sources and burdensome liability risks for would-be Good Sams
    has hindered abandoned hardrock mine cleanups. In particular,
    as I mentioned, two of our best environmental laws, CERCLA and
    the Clean Water Act, produce barriers to this work.
        So that is why we are here. We need the legislation to
    support Good Sam cleanup, and it is really needed today to
    allow some good projects to go forward.
        Just a few words about the draft bill. It deals narrowly
    and appropriately with CERCLA and the Clean Water Act; it would
    allow Good Sam projects to be eligible for Clean Water Act
    Section 319 funding; it would allow approved States and Tribes
    to run the program; it provides protection from future
    liability from the two laws once Good Sams have successfully
    completed their permitted work activities; and just last,
    another consideration as the bill goes through the legislative
    process, we urge the Committee to consider fine-tuning
    enhancements to the permit mechanism in the bill that might
    diminish the permit burden for some low environmental risk, low
    complexity projects.
        The draft does not address Good Sam policies for abandoned
    coal mine pollution, and we fully understand the reasons for
    not including coal Good Sam provisions, but coal Good Sam
    legislation is needed, but we really urge all stakeholders to
    seek ways to address coal Good Sam policy without undermining
    this really promising effort that we are talking about today.
        So just to conclude, we really appreciate the Committee's
    focus on these issues and we urge the Committee to continue to
    work with us and the States and EPA and other stakeholders to
    help provide a really badly needed tool to facilitate these
    cleanups.
        Thank you very much again for the opportunity.
        [The prepared statement of Mr. Moyer follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Senator Inhofe. Thank you, Mr. Moyer.
        Mr. Merriam.

        STATEMENT OF CHIP MERRIAM, VICE PRESIDENT, LEGISLATIVE,
       REGULATORY & COMPLIANCE, ORLANDO UTILITIES COMMISSION, ON
            BEHALF OF THE AMERICAN PUBLIC POWER ASSOCIATION

        Mr. Merriam. Mr. Chairman and Ranking Member Boxer, thanks
    very much for allowing me to speak today. My name is Chip
    Merriam. I am the Vice President of the Legislative and
    Regulatory Compliance area of the Orlando Utilities Commission.
    We call ourselves OUC, the Reliable One.
        We are the second largest municipal utility in Florida and
    the fourteenth largest in the Nation. We provide affordable,
    reliable, and sustainable energy to more than 234,000 meters in
    the city of Orlando, the city of St. Cloud, and in
    unincorporated areas Orange and Osceola Counties.
        One of the things we wrestle with, we are now again at the
    recession of a growing area. But 40 percent of our ratepayers
    still today earn less than $35,000 annually. So the cost of
    implementing regulatory programs and meeting those requirements
    is something that is very important to us.
        OUC is a member of, and today testifying on behalf of, the
    American Public Power Association, a national service
    organization representing the interests of over 2,000
    community-owned, not-for-profit electric utilities that
    actually provide electricity to over 48 million Americans. We
    are your neighborhood utilities.
        OUC operates two coal plants and we are currently
    constructing a solar farm right now on the footprint of a 90-
    acre coal ash landfill. We do not impound coal ash; we actually
    do a landfill process, similar to a municipal storage waste
    system.
        And had the Environmental Protection Agency not classified
    into this river rule that CCRs are hazardous, we may not have
    been able to do what we are doing today, which is actually on
    the top of this closed landfill installing many megawatts of
    solar energy.
        Additionally, we understand the impact of a carbon-
    constrained environment at this point in time. We are looking
    at an additional expansion for a coal pile which we are turning
    into another solar field at this particular point in time as we
    look to the future. Our industry is changing. We recognize
    that.
        However, constructing in Florida coal residual landfills is
    very complex. Because the facilities are going to be operated
    and used for many decades, one of the things we actually like
    to see in the State regulations, which our State does a very
    good job at, is governing the construction, the operation, the
    monitoring, and even the closures, and they do it on the
    engineering basis and on a science basis to make sure that
    these are protective of the environment. Having rules that are
    conflicting, like this particular rule will provide for our
    organization to deal with, gets us into a position of a very
    impossible to meet compliance requirement.
        We just provided a 30-acre expansion of our landfill. It is
    lined. It is overbuilt. It goes beyond the requirements of
    municipal waste storage. For the 30-acre expansion it was $15
    million for these same people that I just described as our
    ratepayers. My written testimony actually describes what was
    required by our State in order to do this.
        Our ratepayers and our governing body insist that we manage
    all the surrounding resources in a manner that are responsible,
    visionary, and affordable. In fact, when we built our power
    plant in the 1980's, it was a long way outside of town. Today
    we are surrounded on one side by a county landfill, but on the
    other side by golf course communities. So that is the type of
    infill that has been created near our particular power plant.
        As Senator Hoeven and Senator Manchin described, Subtitle D
    is self-implementing. One of the difficulties for us in this
    industry is trying to read between the lines of what the risk
    is and what it looks like, and trying to make sure we are
    building something that is compliant and we are not going to be
    spending time in court defending what we believe was the
    correct thing to do.
        We actually believe in the State's regulatory program and
    we think that it is very thorough. Our facilities, when these
    types of rules come forward, are confronted with conflicting
    Federal and State requirements. We believe, as we read this
    particular bill, bill 2446, that this actually takes away the
    conflict we have to deal with; it does make, as the two
    Senators said, give us more direction and even raise the power
    a little bit on the regulatory process.
        We do not see a loss in our particular State, as an
    example, of citizens' input; we actually see an addition. In
    our State process there is an administrative procedure process
    that is actually part of your permit. You can challenge my
    permit any time I make a change in it. Further, you can go
    forward and you can challenge it civilly if you don't get the
    answer you want from the State, and you can challenge these in
    the process on the EPA side.
        I was a former regulator for 20 years. I was also
    responsible for water quality and most of the Everglades
    restoration projects. There is no value in destroying the
    environment that surrounds the product that you are dealing
    with, trying to provide benefit for this, your ratepayers. I
    took great pride in every regulation I made, every rule I made,
    and every permit I issued that it was balanced, it protected
    the unique environment of Florida, and that I stood by the
    decisions I made and made sure that those were implemented
    correctly and there was no risk to the environment or those who
    were complying with the rules.
        Mr. Chairman, I will end at that point in time.
        [The prepared statement of Mr. Merriam follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Senator Inhofe. All right, right on 5 minutes. Thank you.
        Mr. Kirby.

     STATEMENT OF PATRICK KIRBY, DIRECTOR, NORTHERN WEST VIRGINIA
                     BROWNFIELDS ASSISTANCE CENTER

        Mr. Kirby. Thank you, Mr. Chairman and Ranking Member Boxer
    and the Committee members for the opportunity to be here today.
    I am Patrick Kirby. I am the Director of the Brownfields
    Assistant Center at West Virginia University. I am here to talk
    about how the funding and support provided by the U.S. EPA
    brownfields program would be enhanced through the BUILD Act.
        Brownfield projects across rural West Virginia and the
    thousands more across the Country would benefit from the
    expanded brownfield assistance provided in the BUILD Act. In
    terms of an example to begin the process of how that would
    happen would be the kind of project that could benefit would be
    the Taylor, Smith & Taylor site in Chester, West Virginia,
    which is home to the world's largest teapot. If you haven't
    been there, you should; it is quite the site to see.
        The TS&T site is an 8.65 acre former pottery manufacturing
    site closed in 1982 after 80 years of manufacturing the famous
    Taylor, Smith & Taylor ceramics and fine pottery.
        This brownfield site is still the first image travelers see
    when crossing from the Ohio River into West Virginia. The site
    sat vacant for more than 30 years, until it was purchased by a
    local economic development authority in 2011. Now, that was a
    challenging process, just structuring the deal with Federal
    regulators, State regulators, a private property owner. It was
    a massive undertaking that also involved specifically the
    community. There was a project task force put together where
    the community met every month for over 5 years; they are still
    meeting now.
        The site was assessed and cleaned up using EPA brownfield
    grants, and the economic development authority is still
    currently working with the task force completing remediation of
    the river bank as the last phase of the cleanup to prepare
    building a $2 million building that is going to be leased by a
    job-creating prospect, which is actually funded privately.
        The BUILD Act would have helped this project in three
    distinct ways: a multipurpose brownfield grant, which is
    proposed in the BUILD Act, would have reduced the project time
    by as much as 3 years, which would have brought jobs and public
    health benefits to the community sooner, while maintaining the
    same high environmental safety standard. The project would have
    also significantly benefited from a higher maximum cleanup
    grant proposed by the BUILD Act. Currently, the remediation
    grants are topped at $200,000 and would be expanded under the
    BUILD Act.
        While this is also a highly visible project being viewed by
    motorists both within West Virginia, coming from Ohio through
    West Virginia to Pennsylvania and vice versa, the village of
    Chester is a rural community of 2,551 people, and they could
    have really utilized the proposed technical assistance grants
    that are in the BUILD Act, as well as the removal of the
    prohibition of administrative costs that are currently in the
    grant.
        While that seems like a small change, as we have all heard
    today, the process of going through managing Federal grants and
    managing Federal programs is challenging, especially for the
    rural communities.
        So the projects that will be impacted by the BUILD Act are
    not hypothetical. There are major opportunities for
    environmental remediation and economic redevelopment that exist
    in communities across all of rural America, and they are in
    need of additional assistance the legislation would provide.
        The Brownfields Assistance Center at West Virginia
    University partners with the West Virginia Department of
    Environmental Protection and the West Virginia Development
    Office to help communities access these Federal resources and
    help with revitalization efforts to move forward for
    appropriate site reuses. We have worked on over 150 brownfield
    projects since our creation in the last 10 years from former
    glass, pottery, and steel factories to former gas stations,
    foundries, and maintenance facilities, creating community
    assets and sites ready for job-creating facilities.
        We are currently working on over 60 specific projects in 32
    West Virginia communities spanning 23 countries. Through our
    work with communities and through the EPA brownfields program,
    we have used $13 million in brownfield grants to leverage over
    $62 million in private and local investment.
        With 7.4 jobs being leveraged for every 100,000 of EPA's
    investment in West Virginia, we safely estimated the creation
    or retention of 1,000 jobs due to brownfield redevelopment.
    That is progress, but there are more sites to reclaim, there
    are more jobs to create, and there are more communities to
    revitalize. With 391 communities with less than 15,000 in West
    Virginia alone, there are many more potential projects for the
    BUILD Act to impact and improve the rural landscape across the
    Country.
        In conclusion, brownfields redevelopment improves local
    economies, increased municipal budgets, creates jobs, spurs
    private investment, and protects public health and the
    environment.
        I thank you for the opportunity to be at this hearing and
    to share the positive impacts the BUILD Act would have on rural
    West Virginia and all over the Country.
        [The prepared statement of Mr. Kirby follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Senator Inhofe. Thank you, Mr. Kirby. Excellent statement.
        I agree with the EPA's decision that coal ash is a non-
    hazardous waste, and I can assure you, in case you are
    wondering, that there are not 60 votes in the U.S. Senate that
    would change that ruling, so Congress should amend RCRA to
    authorize the State permitting programs for coal ash. The
    President supports it.
        As Ranking Member Boxer noted at last year's hearing on
    EPA's coal ash regulation, authorizing State permitting
    programs ``is really not that different from so many other
    laws. If you want to talk about permitting, I would be happy to
    work with you to make that fix, if necessary.'' Now, I agree. I
    see no reason why coal ash should not be regulated through the
    EPA's approved State permitting programs, just like air, water,
    and hazardous waste.
        I have served in different capacities, Mr. Holleman. I have
    served as mayor of a major city; I have served in the State
    legislature; I have served in Congress; and I have served in
    the Senate. It has been my experience that the closer you get
    to the people, the more local, the more responsible the
    decisions are, because they can find you. You can hide up here;
    you can't hide when you're in a city council. So I reject the
    idea that you can't count on, and I am quoting now, I think,
    Mr. Holleman, you can't count on States to protect us. I don't
    agree with that at all.
        Mr. Merriam, the President supports Congress amending RCRA
    to establish State permitting programs. S. 2446 establishes
    State permitting programs. Now, if we don't pass it, what
    enforces regulation for coal ash? What enforcement is out there
    if we do not pass this?
        Mr. Merriam. Well, my belief, Mr. Chairman, is that we
    would be subject to the citizen lawsuits, and then we would
    actually be taken into a Federal court in order to determine
    the remedial action or the remedy for what is believed to have
    been an impact.
        Senator Inhofe. And who benefits from the increase in
    lawsuits?
        Mr. Merriam. Pardon me? I couldn't hear you.
        Senator Inhofe. I will give you the answer: trial lawyers.
        Mr. Merriam. OK.
        [Laughter.]
        Senator Inhofe. What other environmental regulations are
    solely enforced by outside lawsuits by trial lawyers?
        Mr. Merriam. Mr. Chairman, I have to tell you I have done
    this for a long time and, again, I was a regulator and dealt
    with some fairly significant laws.
        Senator Inhofe. You mentioned you were a regulator for 20
    years?
        Mr. Merriam. For almost 20 years, 19 and a half years, yes,
    with the South Florida Water Management District. And in that I
    had never seen a rule that was self-implementing in this way
    from the Federal Government that actually had an outcome that I
    would be taken to a process that was in Federal court.
        Now, I will also admit to you that it had happened under
    our numeric nutrient criteria on the clean water side. There
    was a citizens group that did challenge the State of Florida.
    We passed legislation in the State in order to make that still
    a State-owned product and work with EPA in that process.
        Senator Inhofe. Mr. Holleman, is your opposition to setting
    up State regulatory programs for coal ash because it would
    undermine your business model for filing lawsuits and
    collecting attorney's fees?
        Mr. Holleman. Certainly not, Mr. Chairman, as you must know
    by asking that question. I should tell you that until 5 years
    ago I was in a private law firm in Greenville, South Carolina
    that was probably one of the State's leading corporate law
    firms, until I decided to spend full time working to try to
    protect the environment. You should know we aren't trial
    lawyers; we don't sue for money; we don't sue for attorney's
    fees. We sue to protect communities and get them to clean up.
        Senator Inhofe. I see.
        Mr. Holleman. If I could respond to your statement to me.
    And I would emphasize this, Mr. Chairman. What is at stake are
    not lawyers. There hasn't been a lawsuit yet that I am aware of
    under this Act. In North Carolina, Duke Energy has already
    built a coal ash landfill and complied with the law. And I
    would expect they will, and we haven't challenged those. This
    is not about lawyers. We need to be clear about this.
        Senator Inhofe. Well, OK.
        Mr. Holleman. This is about the people I saw with my own
    eyes in Salisbury, North Carolina who cannot sell their homes,
    who are concerned about their families.
        Senator Inhofe. OK, you already had your opening statement.
        Mr. Merriam, I am running out of time here. Would you like
    to respond to that? Mr. Holleman's testimony claims EPA's rule
    would limit citizen suits and gut groundwaters for coal ash
    facilities. You want to clear the record in your opinion?
        Mr. Merriam. The way I read the rule, as Senator Hoeven and
    Senator Manchin had brought into their discussion, it actually
    brings in the rule for the groundwater monitoring and those
    requirements into the Act. I have many on our site monitoring
    wells. We have to protect the groundwater in our systems and we
    have to protect it. Again, it is our backyard; we drink the
    water also.
        Senator Inhofe. Do you agree with my statement that, from
    my personal experience, the closer you get to the people,
    whether at the city level, the State level, as opposed to
    Federal level, the more responsible and responsive to the
    citizens results?
        Mr. Merriam. Absolutely, Mr. Chairman. Like I said, I drink
    the same water we manufacture for potable water, I use the same
    energy and I live in the same neighborhoods as those people who
    pay salary.
        Senator Inhofe. That makes a difference, doesn't it?
        Senator Boxer.
        Senator Boxer. Thanks.
        I want to say, Mr. Merriam, it is good that you live in a
    State that cares. Unfortunately, not every State is as good as
    your State or my State. So you can't really be here and speak
    for the whole Country as much as you are trying to.
        I learned from my dad, who was a lawyer, never ask a
    question you don't know the answer to. So, Mr. Holleman, that
    was a great question my colleague asked you, and you had a
    great response; and it says it all. It says it all. This isn't
    about lawyers.
        What I love about my Republican friends, and I do love a
    lot about them, they attack lawyers all the time. But when they
    need one, boy, they get the best one. We all do. So it depends
    what side of the fence you are on. And when you worked for
    corporations, I am sure my colleague was rah-rahing you all the
    way.
        The bottom line is what happens to people. Now, my
    colleague quoted me saying I am happy to work about State
    permits. That is fine. But I want to say two things about that.
    There has to be Federal minimum standards. And the problem with
    the bill that Senators Hoeven and Manchin have, there is no
    Federal standard. So people aren't protected.
        So I am not going to deal with that issue unless we have
    minimum protections. That is essential. Whether it is a TOSCA
    law or anything else, we have to make sure people are
    protected; there is some kind of floor. And then if the States
    want to do more, that is fine with me. The more the better to
    protect clean air and water. As I often say, no one has ever
    asked me, as you pointed out, please weaken our clean water
    rules; I really don't want to have sure pure air or water.
    Baloney. They want it better.
        And the other thing that has shaken my view, I say to my
    friend, is the Flint story. Because I did say I am very willing
    to work with a bill that has minimum standards and then the
    States permit. But after seeing the corruption in Flint, the
    out-and-out corruption, and the corruption, Mr. Holleman, you
    talked about. I am going to ask you to expand on that one more
    time. You pointed out not that you favor bureaucracy. I never
    heard you say that. That is what my colleague sort of put words
    in your mouth. You never even used the word bureaucracy. You
    said what you saw at the State level was out-and-out cronyism,
    to put it in the mildest form.
        Would you repeat that you said about that?
        Mr. Holleman. Well, what we saw, and I wouldn't have
    believed this, Mr. Chairman, I didn't expect this from my past
    life, frankly, but as soon as we began to enforce the law in
    North Carolina on behalf of local citizens, and I agree with
    you local communities need to maintain their ability to defend
    themselves. That is where the authority needs to be, in the
    people, not just in the government.
        But as soon as we started enforcing the law, in my
    experience, when I grew up in Oconee County, South Carolina,
    when law-abiding people report law breaking to the law
    enforcement authorities, I expect the law enforcement
    authorities to communicate and work with the law-abiding people
    who reported it.
        But what we discovered in official documents, almost as
    soon as these events were reported to the State and the
    utility, the utility's lobbyist and its lawyers immediately
    began meeting with the State law enforcement authorities. They
    weren't meeting with us, they were meeting with them to come up
    with the strategy to do us in. And the very things we reported
    later formed the basis of the criminal guilty pleas to Federal
    crimes in response to charges brought by the United States
    Department of Justice.
        And as I said before, 17 days after those Duke Energy
    companies pleaded guilty 18 times to 9 crimes, and were placed
    on Federal nationwide criminal probation, their executives were
    hosted at a private dinner at the Governor's mansion with the
    State's chief environmental law enforcement officer, which had
    pending at that time a number of charges against Duke Energy.
        Senator Boxer. Well, Mr. Holleman, I just want to say you
    are the best witness that I have ever had on my side of an
    issue, for many reasons. You are very articulate; you worked
    for the busy side of it; you see the picture; and you are
    motivated by doing what is right. And I hope that we will keep
    that in mind before we pass weakening amendments to the coal
    ash rule that would, without minimum standards, minimum
    standards, allow these State people, with all their cronyism,
    to move forward.
        And, by the way, Federal agencies are not protected
    completely from this type of cronyism, but it is a little bit
    easier to monitor them from here.
        Thank you.
        Senator Inhofe. Senator Capito.
        Senator Capito. Thank you, Mr. Chairman.
        I want to thank all of our witnesses here today. I
    particularly want to thank Mr. Kirby from WVU for being here,
    and I want to recognize his two children who are in the
    audience, Wyatt and Katherine. If you all would stand up so we
    can say hello. There they are. Thank you. They are learning
    that government gets along, doesn't always agree, and it can be
    quite interesting at the same time. So thank you all and thanks
    for coming.
        Mr. Kirby, you are doing great work on the brownfields
    issue in West Virginia, and I am glad to know that you agree
    that the BUILD Act will help you with that. I would like to
    know, in your experience, what are the challenges faced by
    small communities? You sort of addressed this in your opening
    statement, in competing for the brownfield grants.
        For example, do they have the same experience and access to
    technical expertise? I am sure this is where you aid those
    local communities like Chester. What can we do to make sure
    that our local communities, rural communities, small
    communities, are able to get the technical expertise they need
    to access these grants?
        Mr. Kirby. This is being seen in the BUILD Act with some
    technical assistance grants that were put in, but also we work
    a lot with private foundations now, and they are recognizing
    the need for communities to have access to technical assistance
    even to apply for grants that everybody gets a fair shake, but
    when you walk into a city manager's office and you say here is
    an opportunity, it is a $200,000 grant, it has a 56-page
    guideline. They already had their plate full that day and it is
    hard enough to understand what a brownfield is. So then they
    look at their projects and they say this is going to be a
    little overwhelming.
        So with us able to work on 60 projects, when there are 10
    times that many that we could be working on in the State, so
    the technical assistance grant within the BUILD Act, as well as
    building that local capacity, which we have been doing through
    some programs funded through private foundations.
        Senator Capito. Great. Well, I want to thank you, too, I
    know you are working with the Town of Shepherdstown on their
    new public library brownfields project, so we look forward to
    that. I think the Ranking Member and the Chair, we could get
    them over there because that is a pretty close part of West
    Virginia to see. And also in the city of Charlestown, one of
    the first brownfields that I worked on was American Public
    University, which was an old Maytag, I think, factory and now I
    think there is 60 solar panels out there along with other
    wonderful educational opportunities. So I know we are doing
    good things there and I appreciate that.
        I would like to say, since Senator Manchin has left, he is
    obviously my colleague, I have been on Capitol Hill for several
    years. We haven't quite found the answer to this. I went to a
    dam that was celebrating its 50 year anniversary of
    construction. We will go to just about anything at certain
    times of the year. And I was just amazed to realize that this
    dam, 50 years old, was built with coal ash. So it is a very
    durable product when it is recycled and used in construction.
    So I think we want to try to make sure that we retain that
    ability while maintaining the safety and security of our water
    supplies and all those issues.
        So what I hear you saying, Mr. Merriam, is that you are not
    conflicted, but you feel like there are conflicts that exist in
    the law now that this coal ash bill would help to mediate. But
    at the same time you keep talking about the rule being self-
    implementing. So for people who don't really understand what a
    self-implementing regulation is, could you kind of explain that
    what means from your perspective?
        Mr. Merriam. Thank you, Senator. From my perspective,
    typically, rules come and go through a very vetted process,
    public process, lots of comments. Rules go through periods of
    challenge and actually you have the ability to work with the
    agencies and the public gets to be active within that process
    also. We don't see that same level of activity when you have a
    self-implementing rule, especially one that has limited access
    even for us to make further comments on.
        We don't disagree with Ranking member Boxer that there
    needs to be minimums. We also agree that the State should
    strive and exist the minimums; however, we believe that the
    bill today does have minimums in there that is cited in the
    code of Federal requirements and so forth. So it is an unusual
    process having this type of process move forward. It is not one
    we had a lot of comment period in order to put our concerns
    online, and to build these things and to do them correctly. It
    is nice to know what the floor is so if we choose to go to the
    ceiling in meeting the regulations, we can do that without risk
    of additional lawsuits that may be because the Federal
    requirements are different than the State requirements and
    different from how we interpret the actual requirements in the
    rule.
        Senator Capito. All right, thank you.
        Thank you, Mr. Chairman.
        Senator Inhofe. Thank you, Senator Capito.
        Senator Barrasso.
        Senator Barrasso. Thank you very much, Mr. Chairman.
        I would first like to take a moment to speak on S. 2446,
    introduced by Senators Hoeven and Manchin. My home State of
    Wyoming is a coal State. The issue of regulating the byproduct
    of burning coal is a very important issue to my constituents.
    The EPA decided, after public comment, that regulating this
    byproduct as hazardous was the wrong approach to storing coal
    ash. The EPA decided it was better to regulate it as a solid
    waste, and I agree. There is clearly need for legislation on
    this issue.
        As written testimony before us today spells out, without
    legislation, there would likely be conflicts between State
    programs and the EPA rule. So I commend Senators Hoeven and
    Manchin for trying to solve this issue. As the bill continues
    to move forward, I want to ensure that States have the
    certainty that they need that the EPA won't move the goalposts
    or impose unnecessary criteria in the face of legitimate State
    plans that are based on sound science. So I am going to work
    with the bill sponsors, members of the Committee, and you, Mr.
    Chairman, to ensure that the States are adequately protected in
    this legislation.
        Which leads me to my question for Mr. Merriam. In written
    testimony by some other witnesses here today and by outside
    groups who oppose the legislation, there is a constant theme
    that seems to be appearing. The theme is that somehow States
    aren't up to the task of protecting communities, and that by
    giving States more control over addressing coal ash storage we
    are somehow taking power away from local communities. I believe
    it was Mr. Holleman, who is shaking his head yes, who said in
    his written testimony that this takes power away from local
    communities and gives it to State bureaucracies.
        So my question is if we give EPA all the power to address
    coal ash, how does that not take power away from local
    communities and simply just give it to Washington?
        Mr. Merriam. And I think the Chairman actually brought that
    point up, too, Senator. It is, in our particular situation,
    nice that we are responsible to the community that we serve. It
    is also important that we work with the State. It is a lot
    easier for the taxpayers and the citizens of Florida, as an
    example, to come to Downtown Orlando than it is to go to
    Tallahassee for public hearings and for some requirements, or
    to get to the Washington offices in order to make these, or
    even Atlanta for our Region 4. We very much listen to our
    citizens in our communities and it is a very important part of
    how we do business.
        We also work very closely with the State as they do
    regulations so that there is not just consistency, but there is
    flexibility, which is a part of the preamble of this particular
    rule, but we work with the flexibility in that to make sure
    that those rules are applied with the flexibility on a site-by-
    site basis. Hydrology is not the same in every State, not
    within every State, and this allows us to write almost a
    prescriptive way to do the best we can to protect our
    resources.
        Senator Barrasso. Thank you, Mr. Merriam.
        Ms. Krill, I want to talk about the record of this
    Administration's EPA for a moment, especially as it relates to
    addressing the needs of local communities impacted by the Gold
    King Mine Animas River spill. Yesterday there was an opinion
    piece in a national paper written by Ryan Flynn, who is New
    Mexico's Secretary of the Environment, and he wrote about the
    EPA's response to the spill. The piece was entitled Downstream
    From a Slippery EPA. This is from the New Mexico Secretary of
    Environment, and he states, ``About 2 weeks after the spill,
    the EPA released an environmental standard for the Gold King
    Mine sediment that was in order of magnitude weaker than those
    applied to other polluters.''
        So the EPA sets a standard for itself weaker than those
    applied to other polluters. He went on to say, ``Even months
    later, although the EPA yellow water has passed, the EPA's data
    shows that storms have disturbed contaminated sediment, have
    pushed lead levels back above the tolerance for safe drinking
    water.''
        So as the Secretary of Environment of New Mexico points
    out, EPA persisted in claiming, in spite of that, that the
    watershed had returned to pre-spill conditions, and he said,
    look, ``this has been a campaign of minimization and
    misdirection by the EPA.'' This is the Secretary of Environment
    for New Mexico.
        So as you mentioned in your written testimony, the EPA is
    responsible for the spill, and it appears that they are not
    protecting the local communities and the Tribes dependent on
    this water but are, instead, misinforming the public about the
    health hazards to protect themselves.
        So my question is, what is your opinion of EPA's record
    with regard to this spill, and do you support empowering the
    States and others with the tools necessary to solve these and
    other environmental problems, rather than empowering the EPA
    that has this level, which to me seems irresponsible? That is
    the question regarding how they run things versus what they
    make others do.
        Ms. Krill. Well, thank you for the question. I have not
    read the op-ed that you mentioned, so I can go back and review
    that later. We do support empowering the States through
    reforming the mining law of 1872, which would create a
    reclamation fee and a fund that would then be distributed by
    the States in order to manage cleanups of these technically
    complicated sites. If 1872 mining law reform had passed when it
    was first introduced in 1993, or any time subsequent from then,
    then the EPA wouldn't have been onsite doing the job that it
    was doing in the headwaters of the Animas River.
        Senator Barrasso. Thank you, Mr. Chairman.
        Senator Inhofe. Thank you, Senator Barrasso.
        I want to thank the panel. It is a very good panel. I do
    apologize you had to wait quite a while because we had members
    that were in here and, you know, Senators do sometimes talk a
    little bit longer than other people. But thank you very much
    for being here.
        Senator Boxer. Speaking of that, could I make a closing
    statement of a minute?
        Senator Inhofe. One minute. There we go.
        Senator Boxer. I thank you.
        Senator Inhofe. All right.
        Senator Boxer. To the issue of minimum standards, Mr.
    Merriam, because I think we can work together here, the problem
    that we have in the bill that was introduced by my friends,
    Senators Hoeven and Manchin, is that it eliminates one, two,
    three, four, five, six, seven of the minimum standards in the
    rule, and it significantly delays one, two, three, four, five,
    six others, and it prohibits the EPA from enforcing in three
    circumstances. So, yes, there are some minimum requirements on
    process, but on protection of the people they are just not
    there.
        I do think we can work together to try to get something
    accomplished, but I am with Mr. Holleman and Ms. Krill, and all
    of you who I know want to protect the people. Let's make sure
    what we do doesn't lead to another Flint, Michigan. If there
    ever was a poster child for walking away from responsibilities
    and leaving it to folks and letting them decide what to do,
    that is the example.
        And, Mr. Kirby, thank you. I think that this bill that my
    colleague, Senator Capito, lauded, I laud it as well. I think
    it is an occasion where we can all work together. Thank you
    very much.
        Senator Inhofe. I would agree with that.
        Without objection, I am going to make as part of the record
    the article that Senator Barrasso referred to.
        [The referenced information follows:]
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        Senator Inhofe. Thank you very much. We are adjourned.
        [Whereupon, at 11:03 a.m. the committee was adjourned.]
        [Additional material submitted for the record follows.]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

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