[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]


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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:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    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.]
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