[Senate Hearing 114-57]
[From the U.S. Government Publishing Office]


                                                         S. Hrg. 114-57
 
                     OVERSIGHT OF THE ENVIRONMENTAL
                   PROTECTION AGENCY'S FINAL RULE TO
                  REGULATE DISPOSAL OF COAL COMBUSTION
                   RESIDUALS FROM ELECTRIC UTILITIES

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

                                HEARING

                               BEFORE THE

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                    ONE HUNDRED FOURTEENTH CONGRESS

                             FIRST SESSION

                               __________

                              JUNE 17, 2015

                               __________

  Printed for the use of the Committee on Environment and Public Works
  
  
  
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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                    ONE HUNDRED FOURTEENTH CONGRESS
                             FIRST 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

                        WEDNESDAY, JUNE 17, 2015
                           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...     4

                               WITNESSES

Holleman, Frank S. III, Senior Attorney, Southern Environmental 
  Law Center.....................................................     6
    Prepared statement...........................................     9
Cave, Nancy, North Coast Director, Coastal Conservation League...    24
    Prepared statement...........................................    26
Dunn, Alexandra, Executive Director and General Counsel, 
  Environmental Council of the States............................    29
    Prepared statement...........................................    31
Kezar, Mike, General Manager, South Texas Electric Cooperative, 
  on Behalf of National Rural Electric Cooperative Association...    40
    Prepared statement...........................................    42
Gray, Danny, Executive Vice President, Charah Inc. on Behalf of 
  the American Coal Ash Association..............................   128
    Prepared statement...........................................   130

                          ADDITIONAL MATERIAL

Letters:
    Association of State and Territorial Solid Waste Management 
      Officials (ASTSWMO)........................................   203
    Colorado Department of Public Health & Environment...........   207
    State of Nebraska, Department of Environmental Quality.......   208
    American Society of Concrete Contractors (ASCC)..............   209
    Santee Cooper................................................   211
    Indiana Department of Environmental Management...............   213
    State of Wisconsin Department of Natural Resources...........   215


   OVERSIGHT OF THE ENVIRONMENTAL PROTECTION AGENCY'S FINAL RULE TO 
 REGULATE DISPOSAL OF COAL COMBUSTION RESIDUALS FROM ELECTRIC UTILITIES

                              ----------                              


                        WEDNESDAY, JUNE 17, 2015

                                       U.S. Senate,
                 Committee on Environment and Public Works,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:31 a.m. in room 
406, Dirksen Senate Building, Hon. James Inhofe (chairman of 
the committee) presiding.
    Present: Senators Inhofe, Barrasso, Capito, Boozman, 
Sessions, Fischer. Rounds, Boxer, Carper, Booker and Markey.

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

    Senator Inhofe. Our meeting will come to order.
    Today's hearing is on the EPA's final rule regulating the 
disposal of coal ash under the Resource and Conservation 
Recovery Act. This is an important issue that cuts across the 
committee's areas of jurisdiction from the regulation of waste 
to the impact of EPA's other rules on electric utilities and to 
the importance of coal ash to highways and infrastructure 
projects.
    EPA has extensively studied the safety of coal ash. For 
decades, coal ash has been regulated by States as non-hazardous 
waste. It is also worth noting that coal ash is an important 
ingredient in concrete and helps extend the life span of and 
control costs of the concrete used in roads and bridges. In 
fact, many State Departments of Transportation require the use 
of coal ash in their road projects.
    In 2010, in response to a coal ash spill at the TVA's 
Kingston, Tennessee power plant, EPA issued a proposed rule 
containing two options for regulating coal ash, either 
regulating as a hazardous waste, which would have imposed 
unnecessary and burdensome cradle to grave requirements on the 
generation, transportation and disposal of coal ash, or 
continue to regulate it as a non-hazardous waste.
    The EPA rule, finalized last December, correctly determined 
that coal ash should continue to be regulated as non-hazardous 
waste. It also established minimum, one size fits all standards 
for the management and disposal of coal ash in landfills and 
surface impoundments.
    EPA's authority to regulate non-hazardous waste under RCRA 
is limited. EPA's rule encourages States to incorporate the 
minimum standards into their solid waste management programs.
    EPA does not have the authority, under the current law, to 
improve State permitting programs or to require facilities to 
implement the rule's requirements. Instead, the rule's 
requirements are enforceable only through citizen suits.
    States and the affected utilities have raised significant 
concerns with this approach and the possibility that they would 
pay citizen suits even if they were in compliance with their 
State's requirements.
    Although the final rule agreed that coal ash is non-
hazardous, it left open the possibility that EPA would change 
this determination in the future. This is causing unnecessary 
uncertainty to the electric utilities troubled by this rule and 
to the companies that use and recycle coal ash.
    The House is currently considering legislation that would 
clarify EPA's authority in the status of coal ash as a non-
hazardous waste. Although the coal ash issue has not received 
much attention from the Environment and Public Works Committee 
in recent years, it certainly warrants our attention and we 
should be looking to get it right.
    The EPA rule, which was published in the Federal Register 
in April, goes into effect in October 2015. That is not much 
time for States and affected utilities to fully analyze and 
begin implementing the rule's technical standards.
    [The prepared statement of Senator Inhofe follows:]

            Statement of Hon. James M. Inhofe, U.S. Senator 
                       from the State of Oklahoma

    Today's hearing is on EPA's final rule regulating the 
disposal of coal ash under the Resource Conservation and 
Recovery Act.
    This is an important issue that cuts across the Committee's 
areas of jurisdiction--from the regulation of waste, to the 
impact of EPA's other rules on electric utilities, and to the 
importance of coal ash to highways and infrastructure projects.
    EPA has extensively studied the safety of coal ash. For 
decades, coal ash has been regulated as nonhazardous waste by 
states. It is also worth noting that coal ash is an important 
ingredient in concrete and helps extend the lifespan of and 
control costs for the concrete used in roads and bridges. In 
fact, many State Departments of Transportation require the use 
of coal ash in their road projects.
    In 2010, in response to a coal ash spill at the TVA's 
Kingston, Tennessee power plant, EPA issued a proposed rule 
containing two options for regulating coal ash: either regulate 
it as a hazardous waste, which would have imposed unnecessary 
and burdensome cradle-to-grave requirements on the generation, 
transportation, and disposal of coal ash, or continue to 
regulate it as a nonhazardous waste.
    The EPA rule finalized last December correctly determined 
that coal ash should continue to be regulated as a nonhazardous 
waste. It also established minimum one-size-fits all standards 
for the management and disposal of coal ash in landfills and 
surface impoundments.
    EPA's authority to regulate nonhazardous waste under RCRA 
is limited. EPA's rule encourages states to incorporate the 
minimum standards into their solid waste management programs, 
but EPA does not have authority under current law to approve 
State permitting programs or to require facilities to implement 
the rule's requirements.
    Instead, the rule's requirements are enforceable only 
through citizen suits. States and the affected utilities have 
raised significant concerns with this approach and the 
possibility that they would face citizen suits even if they 
were in compliance with their state's requirements.
    Although the final rule agreed that coal ash is 
nonhazardous, it left open the possibility that EPA will change 
this determination in the future. This is causing unnecessary 
uncertainty to the electric utilities covered by this rule and 
to the companies that use and recycle coal ash.
    The House is currently considering legislation that would 
clarify EPA's authority and the status of coal ash as a 
nonhazardous waste. Although the coal ash issue has not 
received much attention from the EPW Committee in recent years, 
it certainly warrants our attention and we should be looking to 
get it right.
    The EPA rule, which was published in the Federal Register 
only in April, goes into effect in October this year. That is 
not much time for states and affected utilities to fully 
analyze and begin implementing the rule's technical standards.
    We have an excellent panel of witnesses before us 
representing a range of views on the rule's impact on states, 
affected utilities, the public, and the beneficial use 
industry. We have:

    1) Alexandra Dunn is Executive Director and General Counsel 
of the Environmental Council of the States;
    2) Mike Kezar is the General Manager of the South Texas 
Electric Cooperative and he is here on behalf of National Rural 
Electric Cooperative Association;
    3) Danny Gray is Executive Vice President of Charah Inc., a 
coal ash marketer based in Kentucky and he is here on behalf of 
the American Coal Ash Association;
    4) Frank S. Holleman, III, a senior attorney with the 
Southern Environmental Law Center; and
    5) Nancy Cave, the North Coast Director of the Coastal 
Conservation League in South Carolina.

    I am especially interested in hearing their views on the 
challenges in implementing the EPA rule, whether Congress 
should consider legislation to give EPA authority to approve 
State permitting programs, and ways to increase the beneficial 
use of coal ash.

    Senator Inhofe. We have an excellent panel of witnesses 
before us representing a range of views on the rule's impact on 
States, affected utilities, the public and the beneficial use 
of industry.
    We have: Nancy Cave, North Coast Director, Coastal 
Conservation League in South Carolina; Frank S. Holleman, III, 
Senior Attorney, Southern Environmental Law Center; Alexandra 
Dunn, Executive Director and General Counsel, Environmental 
Council of the States; Mike Kezar, General Manager, South Texas 
Electric Cooperative, on behalf of National Rural Electric 
Cooperative Association; and last, Danny Gray, Executive Vice 
President of Charah Inc., a coal ash marketer based in 
Kentucky, on behalf of the American Coal Ash Association.
    I am especially interested in hearing their views. I might 
mention to you, Mr. Kezar, I have had extensive personal 
involvement with south Texas, the area there. I was a developer 
down there for many years, so I know them.
    Senator Boxer.
    Senator Boxer. Mr. Chairman, could I have 15 seconds to 
laud my Golden State Warriors?
    Senator Inhofe. Of course. Yes, you may do that. I want 
equal time for what is going to be happening to the Oklahoma 
City Thunder. It is a surprise. Maybe I should not reveal it 
here.
    Senator Boxer. Mr. Chairman, I wanted to say how proud I am 
of this team. Forty years ago, Stu and I had season tickets to 
the Warriors, 40 years ago, and we saw them win. It took 40 
years. Now I am leaving politics. Then I was just entering 
politics.
    It is a wonderful moment for us, those of us who have 
rooted for the Warriors.
    Senator Inhofe. Your 15 seconds has expired.
    Senator Boxer. That is not fair. It is the Senate. We 
cannot even breathe in 15 seconds.
    I will close with this. I think we all can learn from 
watching this team going against the greatest player in the 
world how important teamwork is and how much can be done when 
you have cooperation, as we do on highways.
    Also, there was one more thing I was particularly proud of. 
That is that short players really are good. I just wanted to 
note that for my Chairman.
    That is it. Congratulations Warriors.

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

    Senator Boxer. In today's hearing, we are examining the 
EPA's first ever national standards for the disposal of coal 
ash. I really believe this rule ought to have a chance to work.
    I personally would have preferred that EPA issue a stronger 
rule. I am on the other side of this. I think they should have 
been tougher and stronger. I think they should have designated 
coal ash as hazardous waste, but I do think the rule is first 
step. Frankly, I am dismayed that there is legislation moving 
through the House that attempts to weaken this rule even 
further, just kind of throw it out if a State did not like it.
    Coal ash is so dangerous because it contains many toxins. 
No one really talks about this: mercury, arsenic and lead. If 
you ask a person on the street, should there be a rule to make 
sure this stuff does not get in front of my house in a spill or 
into my water, I think they would say, isn't there one now? The 
answer is no. Right now, many of these are treated like 
household waste. We know these toxic materials cause cancer and 
harm children's development, including brain development.
    Coal ash is often stored in impoundments that are unlined 
and located adjacent to rivers and lakes, where the toxic 
substances leach into the groundwater and surface waters. In 
the worst case scenario, these impoundments can break, 
spreading toxic waste throughout communities. It is hard to 
believe that it has been more than 6 years since the 
devastating spill at the Tennessee Valley Authority's coal ash 
pond in Kingston, Tennessee. We will show you a chart.
    At 1 a.m. on Monday, December 22, 2008, an earthen wall 
failed on a 40-acre surface impoundment holding coal ash. More 
than one billion gallons of waste rushed down the valley like 
an avalanche. These pictures were shown on the front pages of 
most of the newspapers.
    They covered more than 300 acres, destroying and damaging 
homes, and polluting the Emory River. The volume of ash and 
water was nearly 100 times greater than the amount of oil 
spilled in the Exxon Valdez disaster.
    In January 2009, I chaired an Environment and Public Works 
Committee hearing on the TVA coal ash spill to explore how the 
spill happened and how we can prevent events like this from 
happening again.
    I want to compliment TVA. They have spent over a billion 
dollars cleaning up this spill and made the business decision 
to convert all of their facilities from wet to dry handling of 
coal ash. Good for them.
    In the wake of the TVA coal ash spill, I called on EPA to 
assess the hazards associated with coal ash ponds around the 
Country. EPA identified 44 coal ash ponds in 10 States that 
present a ``high hazard,'' meaning that if the pond were to 
fail, it would pose a threat to human life.
    EPA required facilities to submit corrective action plans 
for those ponds that were found to pose a serious risk of 
failure. Unfortunately, EPA relied solely on the States and the 
utilities to follow through with the corrective action plans. 
That was not enough. We need this rule.
    Duke Energy's Dan River facility in North Carolina is one 
example of a company not following through on a corrective 
action plan. Duke Energy agreed in its corrective action plan 
to monitor a metal stormwater pipe for signs of potential 
failure. In February 2014, that very same pipe rusted out and 
failed, spilling toxic coal ash into the Dan River, a source of 
drinking water for communities in North Carolina and Virginia.
    Since the spill, Duke Energy has pled guilty to criminal 
charges involving its coal ash ponds. We should not have to get 
to this point. We should prevent these things, not parade CEOs 
and members of these utilities in front of the jailhouse.
    A criminal investigation of the North Carolina State agency 
charged with protecting public health and the environment is 
ongoing. This is serious stuff. We are not helping the 
utilities if we turn our backs on this rule. I think we are 
harming these utilities. We ought to have a standard for 
everyone that is good, decent and fair.
    I do not have any coal in my State. Maybe I have a drop, 
but very little. This does not impact me. I am not talking as 
someone who is selfish who says my people are getting hurt. I 
am talking as an American citizen who cares about all of our 
children. While I believe we should have and could have done 
more to address these dangers, this rule will go a long way to 
protecting people from toxic coal ash.
    I ask that the rest of my statement be put in the record.
    Mr. Chairman, thank you for letting me talk about my 
Warriors. Thank you.
    [The prepared statement of Senator Boxer follows:]

             Statement of Hon. Barbara Boxer, U.S. Senator 
                      from the State of California

    Today's hearing will examine the EPA's first ever national 
standards for the disposal of coal ash. I strongly believe that 
the EPA rule must be given a chance to work. While I would have 
preferred that EPA issue a stronger rule--designating coal ash 
as ``hazardous waste''--EPA's new rule is an important step 
toward addressing the dangers of coal ash. I am dismayed that 
there is legislation moving through the House that attempts to 
weaken this rule even further.
    Coal ash is so dangerous because it contains many toxins, 
such as mercury, arsenic, and lead. These toxic materials are 
known to cause cancer and harm children's development, 
including brain development. Coal ash is often stored in 
impoundments that are unlined and located adjacent to rivers 
and lakes, where the toxic substances leach into the 
groundwater and surface waters. In the worst case scenario, 
these impoundments can break, spreading toxic waste throughout 
communities. It is hard to believe that it has been more than 6 
years since the devastating spill at the Tennessee Valley 
Authority's coal ash pond in Kingston, Tennessee. At 1 o'clock 
AM on Monday, December 22, 2008, an earthen wall failed on a 
40-acre surface impoundment holding coal ash. More than one 
billion gallons of waste rushed down the valley like an 
avalanche, covering more than 300 acres, destroying and 
damaging homes, and polluting the Emory River. The volume of 
ash and water was nearly 100 times greater than the amount of 
oil spilled in the Exxon Valdez disaster.
    In January 2009, I chaired an EPW Committee hearing on the 
TVA coal ash spill to explore how the spill happened and how we 
can prevent events like this from happening again. TVA has 
spent over a billion dollars cleaning up this spill and has 
made the business decision to convert all of its facilities 
from wet to dry handling of coal ash. TVA took this responsible 
step to protect communities from future spills, and I commend 
TVA for its actions. In the wake of the TVA coal ash spill, I 
called on EPA to assess the hazards associated with coal ash 
ponds around the country. EPA identified 44 coal ash ponds in 
10 states that present a ``high hazard''--meaning that if the 
pond were to fail, it would pose a threat to human life. EPA 
required facilities to submit corrective action plans for those 
ponds that were found to pose a serious risk of failure. 
Unfortunately, EPA relied solely on the states and the 
utilities to follow through with the corrective action plans, 
which was clearly not enough.
    Duke Energy's Dan River facility in North Carolina is one 
example of a company not following through on a corrective 
action plan. Duke Energy agreed in its corrective action plan 
to monitor a metal stormwater pipe for signs of potential 
failure. In February 2014, that very same pipe rusted out and 
failed, spilling toxic coal ash into the Dan River, a source of 
drinking water for communities in North Carolina and Virginia. 
Since the spill, Duke Energy has pled guilty to criminal 
charges involving its coal ash ponds. A criminal investigation 
of the North Carolina State agency charged with protecting 
public health and the environment is ongoing.
    The EPA rule will provide critical public health 
protections, including groundwater monitoring, cleanup 
requirements, transparency, and preservation of each citizen's 
right to protect their community from coal ash pollution. For 
the first time, utilities will have to test the groundwater 
surrounding their coal ash ponds and post that information 
online. This will allow citizens to know what is in their water 
and help prevent pregnant women and children from drinking 
groundwater that is contaminated with toxins. While I strongly 
believe EPA should have done more to address the dangers of 
coal ash, EPA's rule will go a long way to protecting people 
from toxic coal ash in the future.
    Legislation being considered in the House of 
Representatives would delay many of the rule's new health and 
safety protections, including the rule's mandate to close 
inactive coal ash ponds. It would also eliminate public access 
to information about coal ash ponds and remove the rule's 
national minimum standard for protection of health and the 
environment, allowing State programs to eliminate critical 
safety requirements. It is important that this new rule not be 
diluted by Congress. EPA should be allowed to move forward with 
critical new protections for the safety of our communities.

    Senator Inhofe. Of course, without objection.
    We will now hear from our witnesses. We will start with 
you, Mr. Holleman, and work across the room.
    Try to keep your remarks down to 5 minutes. Your entire 
statement will be made a part of the record.
    Mr. Holleman.

STATEMENT OF FRANK S. HOLLEMAN, III, SENIOR ATTORNEY, SOUTHERN 
                    ENVIRONMENTAL LAW CENTER

    Mr. Holleman. Chairman Inhofe, Senator Boxer and members of 
the committee, thank you for listening to me today and inviting 
me here.
    My name is Frank Holleman. I live in Greenville, South 
Carolina. I am at the Southern Environmental Law Center. We 
work with local citizens in the south who are concerned about 
their communities' futures and about clean water.
    Let me ask you to assume something for a minute. Assume 
that a Washington lobbyist came to your office with this 
request. We have a plan and we want you to support a bill that 
will help us make it easier to do.
    We have property on the banks of drinking water reservoirs 
and rivers across the United States. We want to dig big, 
unlined holes right next to these drinking water reservoirs and 
rivers. We will dump millions of tons of industrial waste into 
these unlined pits next to these water bodies. By the way, you 
should know this waste contains things like arsenic and lead.
    Then we are going to fill these big pits with water and we 
are going to hold these lagoons, industrial waste lagoons, back 
from our rivers and drinking water reservoirs only by dikes 
made of earth that leak. Will you help us?
    I can imagine your reaction, but that is exactly what the 
trade associations are asking you to do by seeking to weaken or 
eliminate the EPA rule.
    As Senator Boxer pointed out, in the south we have seen 
dramatic harm from primitive coal ash disposal. We have had two 
catastrophes, TVA at Kingston and Duke Energy on the Dan River.
    In North Carolina today, the State is testing drinking 
water wells near Duke Energy's coal ash site. Over 90 percent 
of the well owners have been told to stop drinking the water.
    In South Carolina, where I live, groundwater has been 
contaminated with arsenic at hundreds and hundreds of times the 
legal limit. Across the region, unlined pits are leaking into 
rivers and lakes at the rate of millions of gallons per day.
    In adopting this rule, as was pointed out, the EPA accepted 
the key demands of the utility and recycling industries. But 
the rule establishes some uniform, minimum standards, provides 
communities with information about local coal ash pollution, 
and preserves a citizen's right to enforce the law when State 
bureaucracy simply will not do it.
    From what we have seen in the southeast, it is clear State 
agencies have not effectively enforced the law against these 
very politically powerful monopolies. In South Carolina where I 
live, for example, for years unlined coal ash disposal violated 
anti-pollution laws. There was no question about it. Yet the 
government had not taken action to force a cleanup.
    Local organizations like Nancy's collected unpublicized 
information and enforced the law with the result that all three 
utilities in the State are cleaning up every one of their 
unlined riverfront coal ash disposal sites. One utility, Santee 
Cooper, says the cleanup we pushed for is a win-win for 
everyone.
    In North Carolina, no one was forcing Duke Energy, as 
mentioned earlier, to clean up its coal ash. Again, local 
organizations uncovered unpublicized information and took 
action to enforce the law.
    For the first time, the State government was forced to 
confirm that Duke Energy is violating the law everywhere it has 
stored coal ash in the State of North Carolina and confirmed 
that under oath.
    I have been a Duke customer my whole life. Duke Energy is 
the Nation's largest and richest utility. It has now pleaded 
guilty to nine coal ash crimes committed in its home State. Two 
of those crimes led directly to the Dan River spill.
    Despite repeated warnings over almost 30 years that it was 
risky to have a corrugated metal pipe under a coal ash lagoon, 
Duke Energy management turned down requests from its own people 
to spend a few thousand dollars to inspect the pipe that later 
broke. The State never required the inspection.
    Now Duke Energy has pleaded guilty, has to pay $102 
million, is on nationwide criminal probation and is cooperating 
in a continuing investigation of the State agency. They are 
supposed to be enforcing the law.
    In summary, Mr. Chairman, in the south, we need the minimum 
protections of the EPA rule so that we will have clear 
standards for coal ash disposal, the people will have 
information they need about threats to their own communities, 
and the communities themselves will be able to protect 
themselves when bureaucracies will not do it.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Holleman follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    Senator Inhofe. Thank you, Mr. Holleman.
    Ms. Cave.

    STATEMENT OF NANCY CAVE, NORTH COAST DIRECTOR, COASTAL 
                      CONSERVATION LEAGUE

    Ms. Cave. Good Morning. I am Nancy Cave, North Coast Office 
Director of the South Carolina Coastal Conservation League, an 
environmental advocacy organization.
    I want to thank you, Chairman Inhofe, Senator Boxer and 
members of the committee for giving me this opportunity to 
testify today.
    I live and work in South Carolina. South Carolina, like 
other States, has not protected its citizens from the harmful 
impacts of coal ash. South Carolina's regulatory program has 
failed. For years we have not been informed of toxic 
groundwater pollution and illegal activity. The State has 
turned a blind eye to utility violations, and State regulators 
have taken no effective action to clean up these dangerous 
sites.
    The EPA's final rule is a critical first step. The rule 
gives people access to necessary information to decide how best 
to protect their health and well being, and the rule ensures 
citizens the right to enforce the law, even if State regulatory 
safeguards are not enforced, are diminished, or are 
nonexistent.
    In Conway, South Carolina, it was the State's owned 
utility, Santee Cooper, that blatantly endangered the safety of 
its own customers. At the utility's Grainger coal-fired 
electric generation plant, 1.3 million tons of coal ash fills 
two unlined ponds adjacent to the Waccamaw River, which 
provides drinking water to communities up and down its banks.
    Since the 1990's, Grainger's leaking coal ash ponds have 
been releasing arsenic into groundwater at levels as high as 
300 times the State's drinking water standard. The South 
Carolina Department of Health and Environmental Control, the 
agency responsible for public health and safety, has been aware 
of this arsenic pollution for years. Yet they have neither 
informed the public nor done anything to stop it.
    In 2012, Santee Cooper closed the Grainger plant with plans 
to leave the toxic coal ash sitting where it was, in pits next 
to the river. When the Grainger Closure Plan was publicly 
released, I worked quickly to inform people of the coal plant's 
years of health-threatening arsenic pollution.
    Following multiple public meetings and a presentation that 
I gave to the city council, the city of Conway passed a 
resolution calling on Santee Cooper to remove the coal ash. At 
the same time, the Coastal Conservation League and other 
community groups used a State statute that allowed citizen 
enforcement when the State bureaucracies failed to act.
    Santee Cooper asked for dismissal, but the judge refused. 
The State-owned utility agreed to negotiate. Today, Santee 
Cooper is removing and relocating all of Grainger's 1.3 million 
tons of coal ash.
    It was the citizens' actions that forced Santee Cooper to 
take the protective action of removing the coal ash. The State 
did not step in to force protection and the local government 
did not have jurisdiction.
    South Carolinians near Duke Energy's Robinson coal plant in 
Hartsville, face similar threats. The Robinson plant was opened 
in 1959. Its 55-acre open, unlined coal ash pit, dug from 
porous sandy soil, is adjacent to Lake Robinson, one of the 
area's most popular recreational lakes.
    Today, 4.2 million tons of coal ash extends 18 feet into 
the groundwater table. Test well results have shown groundwater 
arsenic levels at 1,000 ppb, over 100 times the legal limit. As 
more information was made public, Hartsville citizens wanted 
action. Duke Energy balked, but on the morning of April 30 
before a public meeting was organized, Duke Energy announced it 
would remove and relocate the coal ash.
    This announcement was the direct result of public pressure 
and possible citizen action. Transparency, information and 
protective action as required by EPA's final rule must not be 
removed or diminished.
    The rule, as written, is our only line of defense against 
utilities that have demonstrated they are unwilling to take 
responsibility and affordable actions to safely dispose of 
their toxic waste. The final rule is our only line of defense 
against States that have demonstrated they are unwilling or 
unable to protect their citizens.
    Thank you.
    [The prepared statement of Ms. Cave follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
           
    Senator Inhofe. Thank you, Ms. Cave.
    Ms. Dunn.

  STATEMENT OF ALEXANDRA DUNN, EXECUTIVE DIRECTOR AND GENERAL 
          COUNSEL, ENVIRONMENTAL COUNCIL OF THE STATES

    Ms. Dunn. Good morning, Chairman Inhofe, Ranking Member 
Boxer, and members of the committee. I am Alexandra Dunn, 
Executive Director and General Counsel of the Environmental 
Council of the States.
    We are the national non-profit association of U.S. State 
and territorial environmental commissioners who have been 
referenced as perhaps not doing the most effective job as 
possible. I would like to give you some thoughts on the State 
role in implementation of CCR regulations.
    There has been so much dialog over so many years on CCR 
management and surface impoundments. What I am able to bring 
you today is something that is unusual in the environmental 
world days, something that all 50 States agree upon and how we 
should regulate.
    You cannot find that in water, you cannot find that in air 
these days, but you can find it in coal combustion residuals. 
We have a position going back to 2008 that is supported by all 
50 States.
    States are well familiar with the cases that you have heard 
about, the devastating environmental property damage and human 
health impacts that coal releases can cause. They do a mission 
to serve the public and protect water supplies and to regulate.
    Because it has taken so long for there to be a Federal 
rule, many States have programs to permit these facilities, to 
oversee them and to regulate them. We have had many 
opportunities where States have been sharing best practices 
with one another, helping each State improve its program by 
learning from its neighbors and States in other parts of the 
Country.
    Now we have a final Federal rule which States do not 
oppose. We actually think the final Federal rule is quite good. 
It reflects a lot of strong research by the agency. However, 
there is an implementation problem with the final rule and a 
lack of flexibility that we would like hopefully this committee 
to help us address.
    First, I should say on the determination that it is non-
hazardous waste coal ash, we support life cycle management of 
waste in this Country. There are tons and tons of coal ash. The 
more coal ash that can be put into wallboard and roads and 
reused means there is less coal ash in the ponds. That is 
important. We do support the finding under Subtitle D.
    Unfortunately, under RCRA, that puts us in a bit of a 
complex situation. It means that we have a self-implementing 
rule. The Federal legislation can help address that. Let me 
give you a bit more context.
    By moving with Rule D under RCRA, we now have a waste that 
is a solid waste, not a hazardous waste. That means that States 
are in the primary role of regulating it.
    Unfortunately, the final rule does not really reflect some 
important State-specific considerations that a State program 
would have like looking at the hydrology, the underground 
soils, the topography, and what types of liners might be 
needed. States have unique elements of their programs that the 
Federal rule is unable to recognize.
    We would like to see a rule that can be delegated to the 
States like many other environmental programs are so that the 
States can implement the most stringent provisions, whether the 
Federal provision or the State provision, but there is a single 
regulatory system.
    Because of RCRA structure, we have a duplicative regulatory 
system. We now have the self-implementing Federal rule and then 
we have all the existing State programs. That is going to put 
the regulated facilities and actually the citizen groups in a 
bit of a complex quandary. They are going to have compare and 
contrast the existing State programs to the Federal rule, 
trying to figure out which ones are more stringent, which 
provisions should be followed and then look at citizen suits as 
an enforcement mechanism.
    We recognize that citizen suits play an important role, but 
we do think that States play an important role in enforcement 
as well. The structure of this rule really puts the States a 
bit on the sidelines. It puts the citizens in a good position 
but maybe not the best position given the expertise at the 
State level that will not be recognized by a citizen-driven 
enforcement mechanism.
    We really think that regulatory clarity is key in all 
environmental programs. Much of the litigation with which we 
are all familiar in the environment is because there is a lack 
of clarity. We need to know who is in the lead. Right now, we 
have a Federal program and State programs and it is not clear 
who is in the lead. We essentially have a duplicative 
structure.
    We feel the best way to move forward is to ask this 
committee to consider legislation to amend RCRA to allow State 
permitting programs to operate in lieu of the Federal program, 
but to incorporate elements of the Federal rule that are 
appropriate.
    Only through legislation can this occur. The House has 
moved forward, as you have heard, with a bill. We think their 
approach is generally workable and time is of the essence. 
There are a variety of approaches and we know this committee 
may be considering alternative approaches to the House.
    We are willing to work with you on that but the goal should 
be to eliminate a duplicative regulatory system. That is an 
important public policy goal. It benefits the communities, 
citizens, States, taxpayers and the public.
    Thank you very much.
    [The prepared statement of Ms. Dunn follows:]
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    Senator Inhofe. Thank you, Ms. Dunn.
    Mr. Kezar.

STATEMENT OF MIKE KEZAR, GENERAL MANAGER, SOUTH TEXAS ELECTRIC 
 COOPERATIVE, ON BEHALF OF NATIONAL RURAL ELECTRIC COOPERATIVE 
                          ASSOCIATION

    Mr. Kezar. Good morning. My name is Mike Kezar. I serve as 
the General Manager of South Texas Electric Cooperative or 
STEC. I appreciate the invitation to appear before the 
committee today on behalf of STEC and the National Rural 
Electric Cooperative Association to discuss the need for 
legislation to supplement EPA's regulation of coal combustion 
residuals, CCRs.
    STEC is a non-profit electric cooperative that serves over 
180,000 rural members in 42 south Texas counties. NRECA is a 
national service organization dedicated to representing the 
national interests of cooperative electric utilities and the 
consumers they serve, including more than 900 not for profit 
rural electric utilities providing electricity to over 42 
million people in 47 States.
    STEC relies on a variety of energy sources, including 
hydroelectric, wind, natural gas, and a lignite power plant 
located in Atascosa County, Texas called the San Miguel Plant. 
I am deeply familiar with the San Miguel lignite plant because 
prior to becoming the general manager of STEC, for 33 years I 
served in various capacities at San Miguel including 6 years as 
its general manager.
    The San Miguel power plant is a well-controlled power plant 
and has been a long and active participant in the development 
of CCR regulations primarily as a member of the Texas Coal 
Combustion Products Coalition. San Miguel has beneficially used 
CCRs for decades and continues to assess expanded use markets 
for CCRs.
    STEC supports the EPA's decision to regulate CCRs as a non-
hazardous waste under Subtitle D of RCRA in its CCR rule. There 
are two things, however, that EPA's final rule did not 
accomplish in the end which warrant legislation as soon as 
possible. Stated another way, EPA's rule needs a couple more 
tools in its CCR toolbox for its regulation of CCRs to be as 
effective and reliable as possible.
    First, regulatory certainty for CCR beneficial use markets 
is needed in the form of a legislative, non-hazardous 
determination to allay concerns that a hazardous determination 
could still be in the cards given that EPA's final rule merely 
defers the question.
    Second, EPA needs the statutory clarity of new legislation 
to give EPA and the States the ability to oversee CCR 
management through federally approved State permit programs. 
Although EPA's decision to regulate CCRs as non-hazardous was 
the right one, its decision to defer until a future date 
whether hazardous regulation might be pursued in the future 
leaves the CCR beneficial use market in a very uncertain 
posture.
    The risk of potential future hazardous regulation makes the 
type of capital investments necessary to maximize the 
beneficial use of CCRs very hard to justify, given the market 
disruption that would result from the stigma associated with 
hazardous waste classification down the road. Legislation that 
would establish as a matter of statutory law that regulation of 
CCRs will occur under nonhazardous authorities and that 
hazardous regulations are not on the horizon would bring 
certainty to the beneficial use market and facilitate greater 
investments in beneficial use projects.
    In addition to the certainty the legislation can bring to 
beneficial use markets, legislation is also needed to fill key 
gaps in EPA's current statutory authority so that it can 
implement a permitting program that will be much more 
comprehensive, science-based and enforceable than the current 
CCR rule.
    In contrast, the unprecedented nature of the current self-
implementing model, a State and Federal permit approach like 
that utilized for municipal solid waste would allow EPA to both 
set the minimum standards and retain direct approval and 
enforcement authority while allowing for States to develop and 
implement risk-based environmental standards that are tailored 
to site-specific environmental conditions.
    Without legislation, facilities like San Miguel are left 
open to regulatory uncertainty and potentially extreme 
litigation costs. Under the current rule, nothing a State or 
even EPA says about a regulatory question that San Miguel might 
have will trump an ad hoc decision by a Federal district court 
judge in the context of a citizen suit.
    In every other environmental compliance program area, San 
Miguel can reliably turn to State or Federal environmental 
agencies to secure permits, work through highly technical risk 
management approaches and assure that it protects human health 
and the environment in a site-specific and reliable fashion.
    Every day that passes is another day closer to October 14, 
2015, the effective date of the CCR rule. Already facilities 
like San Miguel are exposed to regulatory uncertainty for both 
beneficial use investments and compliance costs associated with 
EPA's CCR rule.
    Please act soon so rural electric cooperatives can utilize 
and focus our limited resources on compliance rather than 
litigation defense. Thank you for the opportunity to appear 
before you today and to submit the more detailed comments and 
attachments that have been provided in writing to the 
committee.
    [The prepared statement of Mr. Kezar follows:]
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    Senator Inhofe. Thank you, Mr. Kezar, exactly 5 minutes.
    Mr. Gray.

STATEMENT OF DANNY GRAY, EXECUTIVE VICE PRESIDENT, CHARAH INC. 
         ON BEHALF OF THE AMERICAN COAL ASH ASSOCIATION

    Mr. Gray. Good morning, Chairman Inhofe, Senator Boxer and 
members of the Committee. My name is Danny Gray. I am Executive 
Vice President of Charah, Inc., one of the Nation's leading 
managers of coal combustion byproducts.
    I also represent the American Coal Ash Association, ACAA, 
an organization that champions the beneficial use of coal ash 
as a preferable alternative to disposal.
    Thank you for the opportunity to testify regarding one of 
America's best recycling success stories and how that success 
depends on regulatory certainty. There are few other issues 
where the environmental mission of this committee intersects so 
directly with its public works mission. By encouraging the safe 
and responsible use of coal ash in our Nation's infrastructure, 
we reduce coal ash disposal while creating infrastructure that 
is more durable and environmentally sustainable.
    There are numerous reasons to view coal ash as a resource 
rather than a waste. Beyond the conservation advantages gained 
when using coal ash minerals to manufacture products, the 
products improve the quality of the finished product or goods 
such as highway pavements while reducing production cost.
    The environmental and performance benefits of coal ash 
utilization are most pronounced in the public sector projects. 
This sector consumes approximately one-third of all the 
concrete poured in the United States because coal ash improves 
the strength and durability of concrete. Its use has become 
ubiquitous in the construction of roads, bridges, runways, 
dams, water treatment facilities and a variety of other 
infrastructure projects.
    In 2011, a study by the American Road and Transportation 
Builders Association found without coal ash in the construction 
of transportation projects, the cost to build roads, runways 
and bridges would increase by an estimated $104.6 billion over 
20 years.
    These benefits are not limited to States where coal is 
mined or consumed to generate electricity. For instance, 
California was an early adopter and a leader in the use of coal 
ash in concrete public works projects, despite the fact that no 
concrete specification quality coal ash is produced in the 
State.
    Caltrans requires the addition of coal ash in concrete 
pavement in order to mitigate reactive aggregates and improve 
the long-term durability of the concrete. California's ash is 
supplied by power plants in Arizona, Utah, Wyoming and as far 
away as Texas, all by rail.
    Charah and ACAA appreciate EPA's final decision to regulate 
coal ash as a non-hazardous material. We believe this decision 
puts science ahead of politics and helps clear the way for 
beneficial use to begin growing again.
    However, we are painfully aware that EPA has made the final 
coal ash decision before only to reverse the course in the 
future. A hazardous versus non-hazardous debate occurred prior 
to the agency's 2000 final regulatory determination which 8 
years later turned out to be not so final.
    Additionally, the 2015 rule's preamble states that the rule 
defers to final Bevill determination. We feel that 34 years of 
study, two reports to Congress, two formal regulatory 
determinations and a final rule issued after 6 months in a 
rulemaking process all confirming that coal ash does not 
warrant hazardous waste regulation should be enough to declare 
the issue resolved and make the final rule truly a final 
decision. This would provide the long term certainty to the 
beneficial use industry that science says is warranted.
    Bills previously passed by the House of Representatives and 
H.R. 1734 now under review would resolve this issue 
permanently. These bills would put primary enforcement 
responsibility and authority in the hands of professional State 
regulators and create new authority for EPA to step in if 
States do not do their jobs.
    In conclusion, despite the changing landscape in American 
electricity generation, our Nation will continue to produce 
large volumes of coal ash for the foreseeable future. Decades 
of ash storage represent a future opportunity to reclaim valued 
mineral resources for beneficial use if proper regulations are 
in place.
    Developing the capability to use more coal ash requires 
investment in processing facilities, ash storage and 
distribution facilities and transportation assets. Attracting 
the necessary investment requires real long term final 
regulatory certainty that legislation can provide.
    It is important to keep beneficial use at the forefront of 
U.S. coal ash management policy to ensure we utilize this 
unique mineral resource in building more durable 
infrastructure. The best solution for coal ash disposal 
problems is to quit throwing it away.
    The best roads, bridges, runways and dams are built with 
coal ash as an ingredient. Here we have the opportunity for a 
true win-win for America's environment and public works.
    Thank you.
    [The prepared statement of Mr. Gray follows:]
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    Senator Inhofe. That is an excellent statement. Thank you, 
Mr. Gray.
    I assume you think they made the right call on the 
determination of non-hazardous when they made that 
determination?
    Mr. Gray. Yes.
    Senator Inhofe. You spent a lot of your time talking about 
transportation infrastructure. It could not be more timely here 
and now, because we are now marking up on the 24th, next week, 
the transportation reauthorization bill, a 6-year and very 
extensive bill.
    I look at that and at the statement you just made. You 
already talked about the importance of coal ash in road and 
infrastructure projects. If you are talking right now about 
contracts starting to be let, could this be a problem if this 
changed and they were not able to use the coal ash as it is 
being used today? Could this affect people making 
determinations right now on contracts?
    Mr. Gray. It could. As we all know, coal ash is a 
substitute for cement in the manufacture of ready mix concrete. 
It is exempted under the current rules under Subtitle D.
    However, the State DOTs have a certain amount of 
uncertainty right now in terms of the reliability of supply 
going forward and whether or not sufficient quantities of good 
quality coal ash will be available. They view it as a resource. 
Coal ash was used in the manufacture of concrete for many, many 
years prior to the environmental benefits being recognized.
    Senator Inhofe. You also mentioned some of the discussions 
in the House would rectify that, would take out some of the 
uncertainty, correct?
    Mr. Gray. Yes.
    Senator Inhofe. Tell us the challenges States are expecting 
to have? We are talking about October as a date. Is that going 
to be enough time? What kind of problems will there be because 
you are rushing into something that is unknown at this time?
    Ms. Dunn. Under the final rule, States need kind of a work-
around. Because the program cannot be delegated, they are asked 
to open up and amend their State's solid waste management 
plans, reference the final rule in the State's solid waste 
plans, and get those approved by EPA.
    There is really no process in place for that. We are not 
sure how long it would take the agency to do that. We also do 
not know how long it would take States to actually go through 
the process of updating their State solid waste management 
plans.
    If we follow the process in the rule, we are probably 
looking at a year to 18 months to get to final approval by EPA. 
That is why we believe a program that would allow things to be 
delegated to the States through a permitting program is a more 
effective use of probably the same amount of time.
    It would take States about 18 months to put a new 
permitting program in place, but instead of having this kind of 
shaky foundation of an EPA approved State plan, which has no 
legal standing at all, you would have an actual delegated State 
implemented program which is much more sound.
    Senator Inhofe. Mr. Kezar, under the current law, the EPA 
does not have the authority to approve State permitting 
programs for coal ash disposal and the technical requirements 
in the EPA's rules are enforceable only through citizen suits.
    Do you think this makes sense or would it be better for 
electric utilities and coops if Congress enacted legislation to 
address this? Is this addressed in what is being proposed in 
the House right now?
    Mr. Kezar. To answer your question, yes, it would be very 
desirable for the coops and the utilities to have that 
certainty. It is my understanding that is being addressed in 
the House bill.
    The concern we have is, although as Alexandra said, States 
will submit their solid waste management plan to EPA for review 
and approval, that still does not allow the State to operate a 
permitting program in lieu of the Federal guidelines. It 
creates a situation where you have potentially duplicative and 
possibly conflicting oversight at the Federal and State levels.
    We believe the program that exists under all other 
regulatory environmental schemes whereby the State submits a 
plan, EPA approves it and then the State implements that 
program in lieu of the Federal program, the EPA establishing 
the minimum requirements, is far preferable.
    Senator Inhofe. Last, Mr. Gray, your organization does 
represent interests of the recycling industry. Tell me what 
would happen to the recycling industry in the event they change 
that from non-hazardous to hazardous?
    Mr. Gray. In order to have access to raise money for 
capital to invest in the projects to enhance and grow the 
recycling side of the business, we need certainty and we need 
the material to be labeled properly as a non-hazardous 
material.
    For us, the key is being able to make long-term investments 
in order to get the assets, the processing equipment in order 
to make ash usable in concrete, and process that ash if 
necessary for these long term contracts and long term 
investments.
    Senator Inhofe. We hear the term uncertainty quite a bit up 
here. This is one of the problems out there with a lot of the 
rules and regulations.
    Senator Boxer.
    Senator Boxer. I ask unanimous consent to place in the 
record a letter from 290 public interest groups led by the 
nurses who support the rule who oppose the House bill that a 
lot of you have mentioned.
    Senator Inhofe. Without objection.
    [The referenced information follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]    
    
    Senator Boxer. Thank you.
    Mr. Gray, you are absolutely right. In California, we 
really want to use this coal ash and we use it. What we do not 
want in our State is to see this, we do not want to see the ash 
stored in a way where it can explode and be like a landslide 
and have someone open their front door and this is what they 
see. I know you do not want it either. I know that.
    The question is, how do we assure that this never happens? 
Duke Energy said they would do the right thing. They did not do 
the right thing. It is most unfortunate and now there is a 
criminal probe, am I right, Mr. Holleman?
    Mr. Holleman. That is correct.
    Senator Boxer. I do not want to see that. I would say, Mr. 
Kezar and Ms. Dunn, I do respect your view with the duplicative 
situation. I have asked my staff, this is really not that 
different from so many other laws where we do not have time to 
talk to you about it.
    Whether it is the Clean Water Act or the Safe Drinking 
Water Act, there are minimum Federal standards. We love it if 
the State wants to go further. I would love to work with you. 
If you want to talk about permitting, I would be happy to work 
with you to make that fix if necessary.
    Ms. Cave, in your testimony, you describe how the unlined 
coal ash ponds at the power plant in your community had been 
leaking arsenic into the groundwater and was a threat to the 
Waccamaw River which supplies drinking water to you and your 
neighbors. What was the reaction of your community when they 
found out the coal ash pond was leaking arsenic into your 
drinking water supply? Was the call for the power company to 
remove the coal ash ponds from the river bank supported by the 
entire community?
    Ms. Cave. To say the least, when we learned that the coal 
ash was leaking arsenic, there was great concern. I get my 
drinking water from the Waccamaw River. It was an education. As 
people became educated as to what was happening, they became 
first greatly concerned, and then angry. Why would the State-
owned utility endanger its own customers? Why haven't they done 
anything and why didn't the State do anything to stop this?
    Senator Boxer. I am going to interrupt you because of time. 
I am assuming you support the part of the rule that says there 
has to be public disclosure?
    Ms. Cave. Absolutely.
    Senator Boxer. It is really important for the people who 
are supporting the House bill. They do not allow public 
disclosure. It is very complicated. That is something I would 
hope we could all agree on.
    If my kid is living along a river and arsenic is in there 
or lead and can damage their brains, I would sure like to know.
    Mr. Holleman, during the rulemaking process, EPA confirmed 
157 cases where coal ash disposal has caused damage to peoples' 
health and the environment. EPA expects that additional damage 
cases will be identified in response to the installation of 
groundwater monitoring required under the rule.
    You have looked at a lot of coal ash disposal sites. What 
does monitoring data at coal ash sites show regarding 
contamination?
    Mr. Holleman. It shows shocking levels of contamination 
that the community becomes very concerned about once they learn 
about it. As Nancy pointed out, right in the center of Conway, 
right next to the city marina, the levels of arsenic in the 
groundwater have reached 300 times the legal limit.
    In North Carolina, just recently, the State has begun 
testing all the drinking water wells around these coal ash 
sites. Over 90 percent of the people who have been using these 
wells for years have now been told to stop drinking their 
water.
    Senator Boxer. I am going to stop you there. You believe as 
this monitoring continues, we are going to find more problems 
in these communities?
    Mr. Holleman. Yes, and that is what we have seen over the 
last 4 years.
    Senator Boxer. Any effort to stop that is a strike against 
our families, in my opinion. This is not about Democrats or 
Republicans. This is about our families.
    My last question is to you, Ms. Dunn. As an adjunct law 
professor and an attorney, you have written and taught on the 
subject of environmental justice. In their comments to EPA on 
the proposed coal ash rule, environmental justice organizations 
noted that 70 percent of coal ash dumps are located in low 
income, disadvantaged communities.
    Do you agree these communities deserve to know if coal ash 
ponds are leaking toxic substances into their drinking water? 
Do you think they have the right to know what is in their 
drinking water? Why would you support a House bill that really 
limits the right to know?
    Ms. Dunn. We absolutely support transparency and are 
working very hard with EPA to look at data bases. I believe 
requirements in the rule would have Internet posting of this 
type of information.
    Senator Boxer. The rule is fine. You say you support the 
law in the House.
    Ms. Dunn. Generally.
    Senator Boxer. You generally support. I hope you will go 
after the parts because you have lived your life fighting for 
environmental justice. People need to know.
    Ms. Dunn. State regulators believe in transparency.
    Senator Boxer. I am glad they do but this bill limits the 
right to know. That is outrageous. I do not care who you are or 
what side of the issue you are on.
    Thank you.
    Senator Inhofe. Senator Fischer.
    Senator Fischer. Thank you, Mr. Chairman.
    Ms. Dunn, I certainly agree with you when you talk about 
the States being very diverse and very unique. Even within 
States, there is such diversity that I believe the best 
solutions are made at the local level, at the State level, 
because they understand that uniqueness within their own 
boundaries.
    I also agree with your comment that this now puts States on 
the sidelines because the citizen suits are the only mechanism 
that is provided for enforcement of the rule.
    Could you please go into more detail on the potential 
impact these suits would have for utilities, for agencies, but 
ultimately on American families. What is the impact there?
    Ms. Dunn. I believe that we really need to think about how 
we are spending our resources. We heard from the witnesses that 
citizen groups can bring concerns of the community to 
regulatory agencies' attention. That is fully appropriate.
    Then I think we need to think about what is the best way to 
resolve those concerns. State regulators have the ability to 
work collaboratively with industry, to work in a less 
collaborative way, a more enforcement-oriented way. But this 
rule takes that power sort of away and really puts it in the 
role of pure citizen suit, leaving the State expertise on 
monitoring, on gathering information on the science and on what 
type of technical requirements would make sense for that 
facility to add the protection the citizens want.
    The State becomes a side player as opposed to a primary 
player. We believe if the States could take the technical 
requirements of EPA's rule as the minimum standards, as they 
often do in Federal programs that are delegated, add the State 
specific requirements that are more intense or stringent for 
the special State conditions, we can then have a very good, 
effective program.
    States already have effective programs. Now what we have is 
an overlaying Federal program with the only enforcement in 
EPA's own words being by citizen suits. It is an odd structure.
    Senator Fischer. I think there would be more accountability 
and more transparency at the State level as well. When you have 
a government that is closer to the people and to be able to be 
on the ground and be available for citizens, I just think we 
would be able to have more accountability. Do you agree with 
that?
    Ms. Dunn. I do, and we can always find the egregious cases, 
those who work in environment. There are always going to be 
those cases that surprise us, that show a lack of effectiveness 
of the existing regulatory system.
    The majority of the facilities in the Country, there are 
over 200 of them in 33 States, are not having the catastrophic 
incidents we have heard a little bit about today. There will 
always be those that take us by surprise.
    Senator Fischer. We need to address those.
    Ms. Dunn. We do need to address them. I do not think we are 
saying that we should not. It is a failure on all parts, 
Federal, State and the citizens to have those incidents occur. 
I do not think that means that States are incapable of 
effectively regulating these facilities well and at the ground 
level.
    Senator Fischer. Thank you.
    Mr. Gray, you talked about recycling of coal ash. Can you 
explain the effects on the willingness of customers to use that 
coal ash in their products if we do not have certainty on how 
the EPA is going to classify it?
    Mr. Gray. Certainly customers that use ash are cognizant of 
whether people refer to it as hazardous or non-hazardous and 
the negative image that would come with using the hazardous.
    We all know using fly ash in concrete is one of the best 
places you could put it, regardless of what label you place on 
it. That is the best place you can put fly ash because it 
improves the quality of the concrete, it saves the customers 
and the citizens of the United States money because concrete is 
less expensive for everyone.
    Senator Fischer. Mr. Kezar, when you talk about the utility 
and the challenges you face there, when we are not seeing that 
certainty with the decision made by the EPA on if this is a 
hazardous or non-hazardous material, what is the economic 
impact of that? How is that going to impact utilities?
    In Nebraska, we happen to be 100 percent public power. As 
citizens of the State, we are affected by the impact on the 
utility. We are also impacted as taxpayers and as citizens, as 
consumers. How are we going to make sure that utilities can 
have reliable and affordable electricity when there is so much 
uncertainty out there?
    Mr. Kezar. As public power, electric coops do not have a 
profit motive, so our concern is providing reliable and 
affordable power to our members, many of whom are below the 
poverty level or on fixed incomes. San Miguel entered into a 
partnership with Boral, one of the members Mr. Gray would 
represent, to install and at Boral's capital cost, facilities 
to classify ash to be used for beneficial road projects 
throughout the State. Boral made that investment based upon 
their understanding of the rules as they went forward.
    The Texas Department of Transportation tested the ash based 
upon their understanding of the rules as they existed and 
entered into use of that ash on road projects. A change in 
classification would put a chill on both of those entities, I 
would think.
    From a personal perspective, as the manager of a facility, 
I would feel very uncomfortable managing a product outside the 
facility that later would be determined to be hazardous. That 
would give me a great deal of concern. It would be a problem. 
The safer course, quite honestly, would be to dispose of it 
locally rather than beneficially reuse it.
    Senator Fischer. Of course the question is, what do you do 
with it? My time is up but that is the looming question out 
there. If we are not able to make good use of a non-hazardous 
product that is beneficial, what happens?
    Thank you.
    Senator Inhofe. Thank you, Senator Fischer. Senator Markey.
    Senator Markey. Thank you, Mr. Chairman.
    The lack of a uniform Federal standard requiring the safe 
disposal of coal ash has resulted in over 200 cases of water 
contamination in addition to major, major spills. For the first 
time, the EPA has issued a Federal rule that would govern the 
disposal of toxic coal ash, after a 5-year long, stakeholder 
process, EPA has issued a rule that would be put in place in 
October of this year. Although the EPA rule is not as robust as 
what I or many others would have liked, it does, for the first 
time, create a Federal standard to protect human health and 
environment.
    Mr. Gray, you testified in support of the House bill that 
would give enforcement responsibility and authority over coal 
ash disposal to the States. Is it not true that under the House 
proposal, household waste could be regulated more stringently 
than coal ash in some or all States, since there is an existing 
Federal floor on how stringently household waste should be 
regulated, but the House bill does not have a Federal floor for 
how stringently coal ash waste should be regulated? Is that not 
accurate?
    Mr. Gray. The House bill incorporates the EPA minimum 
standards and would basically establish the same sets of 
national guidelines for managing coal ash. Those standards 
would apply as a part of the House bill if it were passed.
    Senator Markey. But there is no uniform enforcement, Mr. 
Gray.
    Mr. Gray. The bill we are supporting would give the 
enforcement to the States and would give EPA the right to step 
in, which is not there under Subtitle D as of today. It would 
give the EPA additional power to step in and take over if the 
States did not enforce. We feel the enforcement is sufficient.
    Senator Markey. Mr. Holleman, do you agree with that?
    Mr. Holleman. No, Senator, of course I do not agree with 
that.
    Senator Markey. Make the case, Mr. Holleman.
    Mr. Holleman. The whole point of the House bill from the 
industry viewpoint is to eliminate or weaken those national 
standards and leave it to the States who have in the past 
simply refused and failed to effectively enforce the law to the 
extent that one of the State agencies has been investigated by 
a Federal criminal grand jury.
    As you say, the new rule does not go as far as it might 
have, but at least it puts in place some minimum national 
standards which we are familiar with in virtually every area of 
the economy. This would not be unique or anything different.
    The States then are free to expand on it, as Senator Boxer 
said, and enforce their own rules that are in excess of these 
rules if they want to.
    Senator Markey. A company in central Illinois used coal ash 
to fill a ravine for a decade ending in 2005. Runoff draining 
and leaching from the ash-filled ravine contaminated nearby 
drinking water wells with arsenic, chromium, lead and other 
toxic chemicals. Is it not true that there is nothing in the 
House bill that would prohibit disposal of coal ash directly 
into drinking water aquifers?
    Mr. Holleman. Yes, it is my understanding in the last 
version of the House bill, prohibition in the EPA rule was 
taken out. In South Carolina, as Nancy Cave pointed out, we had 
one situation where the coal ash is 18 feet into the 
groundwater.
    Senator Markey. For each witness, do any of you disagree 
that coal ash should be prohibited from being dumped into 
drinking water sources? Do any of you disagree with that? Let 
the record show that no one does disagree.
    Ms. Dunn, your testimony states that the EPA rule will 
result in a duplicative program because States already have 
effective programs for managing coal ash residuals. However, 
EPA found in its 2015 regulatory impact analysis for this rule 
that 18 of the top 34 coal ash-generating States have none of 
the basic pollution control requirements for coal ash ponds 
contained in EPA's rule. Do you disagree with this EPA finding?
    Ms. Dunn. I would assume that EPA's finding is accurate. We 
support the setting where States would fold the Federal 
standards into a State program. We are supporting the States 
upgrading their existing programs. Some State programs exceed 
the technical requirements.
    Senator Markey. Is it true that the State of Tennessee, 
home of the legendary breach of coal ash disposal pond that 
released 1.1 billion gallons of toxic coal ash sludge that 
literally buried more than 300 acres and filled nearby 
waterways, still does not regulate coal ash ponds?
    Ms. Dunn. I am not able to talk exactly to the State of 
Tennessee's regulations but I would be happy to get back to you 
on those.
    Senator Markey. Mr. Holleman, do they regulate, Tennessee?
    Mr. Holleman. Tennessee did not put in place any new rules 
for its coal ash lagoons. In fact, we just have had a 
proceeding ourselves in Tennessee where, after we sent a 60-day 
notice on the Clean Water Act, the Tennessee agency had to 
admit that TVA is now and has been for years violating other 
Tennessee laws at Gallatin, and the State agency has not done 
anything to stop it.
    Senator Markey. In the town of Pines of northern Indiana, 
hundreds of thousands of tons of coal ash was used to landscape 
peoples' backyards. EPA found that the coal ash leached arsenic 
and other heavy metals into drinking water wells.
    Mr. Holleman, if we eliminated EPA's rule, would States be 
required to ensure that coal ash could not be used to landscape 
peoples' backyards in ways that threaten drinking water?
    Mr. Holleman. No, sir, that is another problem. As some of 
the witnesses have pointed out, it can be a good thing to use 
coal ash in concrete, but you do not want it scattered across 
the landscape in unlined fill.
    That is what we have seen threatened around the Country and 
actually occur in places like the instance you point out. There 
is a golf course in Virginia where there was a catastrophe as 
well.
    Senator Markey. Thank you.
    Mr. Chairman, I thank you.
    Senator Inhofe. Thank you, Senator Markey. Senator Capito.
    Senator Capito. Thank you.
    I thank the witnesses for being here. I thank the Chair and 
Ranking Member as well.
    Mr. Kezar, if you are a rural electric utility, I am 
assuming you have sited or at least some of the members of the 
national have sited coal ash impoundments or lagoons or 
whatever before. That is the usual process for a coal-fired 
power plant, correct?
    Mr. Kezar. Depending on the type of facility, we do not 
have lagoons as they have been discussed today. We do not.
    Senator Capito. But your other members would?
    Mr. Kezar. Other members would, yes.
    Senator Capito. I would imagine that the intent of siting 
one of these lagoons is not to leach arsenic into drinking 
water. I do not think anybody has that as a goal or certainly 
as a result.
    Mr. Kezar. No, ma'am.
    Senator Capito. Maybe I should direct this question to Ms. 
Dunn since she is overseeing and working with all the different 
State regulators. What other processes or other regulators 
would come into play?
    I am from a coal State. We have coal ash lagoons, I am 
sure. I think there are 404 permits, the EPA, the DEP State 
regulator and the Corps of Engineers who are in on all this. Do 
all these other agencies interplay as you are looking to site a 
coal ash impoundment? Am I correct in assuming that?
    Ms. Dunn. You are correct. There would be a lot of 
interaction between different agencies on siting a new 
facility. The EPA rule has now requirements for where those 
facilities can be sited that will make future sitings much more 
selective than they were in the past. That is part of the 
evolution of our environmental regulatory system. We will be 
making better decisions in the future.
    Senator Capito. Based on the rule that was just moved 
forward?
    Ms. Dunn. Yes.
    Senator Capito. Would that change under the House bill, in 
your opinion?
    Ms. Dunn. In our opinion, the House attempted to take the 
good technical work of the EPA rule and allow States to have it 
delegated to operate as a State program in lieu of the Federal 
program. As EPA's own fact sheet says, no matter what they can 
do under the existing law, they do not have the statutory 
authority to let the State program operate in lieu of the 
Federal program. We are going to have two programs.
    You all work on a lot of environmental programs and that is 
something we generally try to avoid, overlapping and 
duplicative regulation, given the lack of resources at the 
Federal level and the State level.
    Senator Capito. Mr. Gray, we go to all kinds of 
celebrations, so I was celebrating the 50 year birthday of a 
dam in West Virginia. I was really amazed to find many, many 
years ago it was constructed with coal ash. It is still very 
fortified and has the beneficial uses that I think we have all 
acknowledged, whether transportation, dams or new construction 
and those kinds of things.
    If this were to move forward and coal ash could not be 
recycled, what would we do with the 50 percent of the coal ash 
that is recycled? Is that an accurate figure? What would we do? 
This would increase the size of these ponds and maybe could 
hazard more danger, I would imagine.
    Mr. Gray. Yes, if you are not utilizing it, you are going 
to be disposing of it, so it is going to end up in landfills, 
is where it will end up. The case that you cite of using ash in 
a dam, concrete that goes into dams needs to utilize coal ash 
because it gives it unique characteristics. It slows down the 
set of hydration as an example.
    When you talk about mass pours in dams, a common structure, 
you actually need the value of the fly ash specifically for 
that purpose, to avoid cracking of the concrete. As we all 
know, cracks in dams are not good to have, so it has a unique 
performance additive for that reason. We would need that 
product going forward or we would have to manufacture some 
product to take its place. It is one of those cases where the 
byproduct actually serves an excellent performance method.
    Senator Capito. Let me ask one final question, a chemistry 
sort of question. We have thermal coal, we have metallurgical 
coal. Is all fly ash created equal or are there more that maybe 
have arsenic properties or other properties? Do you know the 
answer to that?
    Mr. Gray. Any chemicals or trace elements that happen to be 
in the coal usually transition into the ash. In general, that 
is a true statement, so slightly different.
    Senator Capito. It would be according to where the coal is 
coming from, is it lignite or something else that would have 
different characteristics?
    Mr. Gray. That is correct.
    Senator Capito. Some more hazardous than others?
    Mr. Gray. Correct.
    Senator Capito. Thank you.
    Senator Inhofe. Thank you, Senator Capito. Senator Carper?
    Senator Carper. Welcome. I am a native of West Virginia who 
learned to fish at Bluestone Dam right on the New River.
    One of the things I think is attractive about the 
regulation the EPA is proposing is they chose not to classify 
this substance as a toxic substance. Rather, the idea is to 
make it non-hazardous so that we can actually use it for 
recycling purposes. I co-chair with Senator Boozman the Senate 
Caucus on Recycling, so we are excited about the idea to 
continue being able to recycle whether it is dams in West 
Virginia or projects in other States.
    I have a question for Mr. Holleman and Ms. Cave. Ms. Dunn 
mentioned in her testimony that States are ``familiar with the 
devastating environmental property and human health impacts 
coal impoundment releases can cause. However, in the past 
decade we have seen devastating coal ash spills such as the 
Duke spill in North Carolina and the TVA spill in Kingston, 
Tennessee, partly because the States were not doing their part 
to protect public health.''
    I speak as a recovering Governor for the State of Delaware, 
a former chairman of the National Governors Association and 
have huge respect for the States, Governors and others.
    How does the EPA regulation ensure States do the minimum to 
ensure that coal ash impoundments are safe? If this regulation 
were to be voluntary for States or removed altogether, how 
would that be different than before the final rule where we saw 
some of the devastating spills I alluded to?
    Mr. Holleman. First of all, let me say about recycling, 
there is not one word in this EPA rule that prevents or hinders 
in any way the recycling of ash for concrete.
    Senator Carper. That is good.
    Mr. Holleman. In all the cases we worked on, we have 
reached agreements that encourage, allow and foster that. That 
is a total red herring issue.
    On the question you asked, I am from South Carolina. I 
understand the issue of States' rights. We once had an official 
name, States' Rights, in our State, so I understand that 
concept.
    I also have to live in the real world of communities and 
people and neighborhoods of all types. The reality is that the 
State agencies are very reluctant and will not enforce the law 
we have seen by themselves against the most politically 
powerful and wealthy institutions in the State legislative 
capitals, which are these utility monopolies.
    Senator Carper. Hold it right there. Thank you, sir.
    Ms. Cave.
    Ms. Cave. I think what is so important about the EPA rule 
for an organization like mine is the absolute necessity of 
information, because it is the people who must be able to make 
the decision as to what they want the utility to do with the 
coal ash that is sitting in lagoons.
    I think information and protective action are important. 
South Carolina is in the process of trying to get rid of the 
law that allows the right of personal action. If we do not have 
that in EPA law, then we cannot get that coal ash out of the 
lagoons.
    Senator Carper. Thank you.
    I have another question for Mr. Holleman and Ms. Cave, a 
brief answer as well. Do you feel that the EPA rule is a 
compromise between industry and the environment and health 
community?
    Mr. Holleman. Yes, it is definitely a compromise. It did 
not have everything we wanted in it, but at least it gives 
every community, that does not have a nonprofit group fighting 
for them, some basic protection for their clean water in their 
community.
    Senator Carper. Thanks.
    Ms. Cave.
    Ms. Cave. I would agree. I feel this final rule is 
something that must be maintained and not diminished. It is a 
tool which we can use to keep our citizens safe. I personally 
cannot trust my State to do that for us.
    Senator Carper. Thank you.
    Ms. Dunn, in your testimony, you expressed concerns about 
coal ash being regulated as a non-hazardous substance under 
Subpart D of RCRA. Do you have the same concerns for other non-
hazardous substances? Do States have trouble implementing 
Subpart D of RCRA as a whole? If not, why is coal ash different 
than other non-hazardous substances? Please be brief.
    Ms. Dunn. Briefly, States are very capable of regulating 
non-hazardous wastes. They do so under many programs, so I do 
not think we have a problem managing the coal ash facilities. 
We are willing to step up to the plate; we are willing to raise 
our game to include these Federal requirements.
    I think the most important thing is EPA's own statement 
where it says under RCRA as currently drafted, EPA has no 
formal role in implementation nor can it enforce the 
requirements. When have we heard a Federal agency put out a 
final rule that states in black and white that it cannot 
enforce or implement?
    It is a creature of the statute right now. That is why we 
are before you hoping that we can reconcile the fact that EPA 
and the States are somewhat left ineffective because we made 
the non-hazardous determination which was the right 
determination.
    Senator Carper. Thank you.
    We have another hearing going on in the Homeland Security 
Committee and I am bouncing back and forth, so I cannot stay 
for long. I very much appreciate your being here. This is an 
important issue. We appreciate your input.
    Thank you, Mr. Chairman.
    Senator Inhofe. Thank you, Senator Carper.
    Senator Rounds.
    Senator Rounds. Thank you, Mr. Chairman.
    Mr. Kezar, in South Dakota, we have one coal-fired plant, 
the Big Stone plant, that disposes of coal ash in South Dakota. 
For more than three decades, this plant and the State of South 
Dakota have responsibly managed the disposal of coal combustion 
residues by recycling most of it while disposing of some CCR in 
a dry tomb landfill.
    However, EPA's rule establishes a minimum, one size fits 
all standard for the operation of coal ash disposal and 
management facilities. I am concerned this approach does not 
take into account the various factors involved in coal ash 
disposal at different facilities across the Country.
    Do you have examples in your area or are you aware of 
examples of any of the standards that do not make sense for 
your coop compared to ones that might operate in other parts of 
the Country? By that, I mean does it make sense to require a 
composite liner for landfills in places like our area where 
compacted clay liners are the norm?
    Mr. Kezar. Yes, I do have some examples. By the way, I am a 
native South Dakotan, so I am familiar with the facility and 
disposal.
    We have heard some discussion about coal ash being placed 
near drinking water aquifers. Just to look at the situation at 
San Miguel, we dispose of ash, ash that we cannot recycle. It 
is placed in pits within the adjacent surface mine.
    The closest drinking water aquifer is over 2,000 feet below 
the surface of the land. We live in an area where the 
hydrology, the shallow aquifers are very saline and are not 
usable. That is a very different situation. The likelihood that 
ash is ever going to get into a drinking water aquifer is 
almost non-existent.
    In addition, the native soil is high clay content. It has 
been tested by the State environmental quality agency and that 
native soil is actually less permeable than the requirements 
for a compacted clay liner.
    As you mentioned, requiring a composite liner in that type 
of setting just would not make any sense. That is why we 
support the EPA setting minimum guidelines that the State then 
would implement in a permitting program.
    The State has the technical expertise and the site specific 
knowledge to work on a permit that takes into account those 
different circumstances for the different areas where the 
permits are being granted.
    Senator Rounds. I will followup with this. In the preamble 
to the final rule, the EPA says its approval of revised State 
solid waste management programs will signal the State program 
meet minimum Federal standards.
    In South Dakota, the State has had a strong solid waste 
program in place for decades. Accordingly, the Big Stone coal 
plant complies with all of the State regulations for CCR 
disposal. I would express concern about the impact citizen 
suits could have on the States' ability to regulate coal ash 
disposal.
    Under the EPA rule, if a facility is operating in 
accordance with the State program, will that protect it from 
citizen suits?
    Mr. Kezar. No, because under the rule, the State program 
will not be able to be implemented in lieu of Federal 
guidelines. The potential Ms. Dunn mentioned is still there.
    Senator Rounds. Thank you.
    Mr. Holleman, you testified about the importance of 
protecting the ability of citizens to file lawsuits to enforce 
EPA's coal ash rule. Does the bill currently under 
consideration in the House, H.R. 1734, contain a savings clause 
that incorporates the RCRA citizen suit provision without any 
change?
    Mr. Holleman. That is true. The original proposal did not. 
We testified over there and they put that provision in. The way 
you gut something like that is you reduce the standards that 
are to be enforced so that the right of enforcement does not 
have much meaning anymore.
    You can still keep the right of enforcement, but if the 
standards are not meaningful to be enforced, then you have just 
played a legislative shell game. That is what we are concerned 
about. We want to have adequate minimum standards that the 
citizens can enforce if the bureaucrats do not. We want the 
combination of the two.
    Senator Rounds. Would you care to comment?
    Ms. Dunn. I think we may in some ways be talking past each 
other because we also agree there are some very good minimum 
standards in the Federal rule. We also agree there needs to be 
some flexibility that Congress can provide, and a little 
flexibility for the States to adapt and maybe change some of 
those liner requirements.
    It could be perceived as a rollback but really it should be 
perceived as a site specific application of a national standard 
to the local conditions. We are not advocating taking away 
elements of EPA's rule in any way.
    Senator Rounds. Thank you.
    Thank you, Mr. Chairman.
    Senator Inhofe. Thank you, Senator Rounds. Senator Boozman?
    Senator Boozman. Thank you, Mr. Chairman.
    I really just have a question for you, Mr. Kezar. Given the 
mission and customer base for rural co-ops and public power 
producers, tell me about the timeline. Do you think the 
timelines in the EPA rule are reasonable as far as being able 
to be met?
    Mr. Kezar. I think Ms. Dunn testified earlier that it is 
going to be very, very difficult. We will have to make our best 
guess, step out. We are already expending funds now in 
anticipation of what is going to be coming, but the timelines 
are very, very challenging.
    Senator Boozman. Can you comment also, Ms. Dunn? Because I 
think this is very important. It does not matter which side of 
the issue you are on, this is a practical thing that has great 
impact to reliable electricity.
    Ms. Dunn. Absolutely, Senator. What States have to do right 
now is operate on two pathways, not knowing what will happen 
with the House and Senate. They are moving forward now to 
assess and opening up their State solid waste management plans, 
going through that process and investing the resources in that.
    That whole process could play out over some time without 
legislative intervention. That same time and State energy could 
be spent working to implement an actual delegable State program 
with EPA. That would be a better use of the time.
    Senator Boozman. Thank you, Mr. Chairman.
    Senator Inhofe. Thank you, Senator Boozman.
    Without any further members here, we are adjourning this 
meeting. I appreciate very much all five of you. It has been 
very enlightening and educational for me and I certainly think 
for the rest of us also. Thank you so much.
    [Whereupon, at 10:53 a.m., the committee was adjourned.]
    [Additional material submitted for the record follows.]
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