[House Hearing, 113 Congress] [From the U.S. Government Publishing Office] H.R. ___, THE COAL ASH RECYCLING AND OVERSIGHT ACT OF 2013 ======================================================================= HEARING BEFORE THE SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY OF THE COMMITTEE ON ENERGY AND COMMERCE HOUSE OF REPRESENTATIVES ONE HUNDRED THIRTEENTH CONGRESS FIRST SESSION __________ APRIL 11, 2013 __________ Serial No. 113-29 [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Printed for the use of the Committee on Energy and Commerce energycommerce.house.gov _____ U.S. GOVERNMENT PRINTING OFFICE 82-182 WASHINGTON : 2013 ----------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001 COMMITTEE ON ENERGY AND COMMERCE FRED UPTON, Michigan Chairman RALPH M. HALL, Texas HENRY A. WAXMAN, California JOE BARTON, Texas Ranking Member Chairman Emeritus JOHN D. DINGELL, Michigan ED WHITFIELD, Kentucky Chairman Emeritus JOHN SHIMKUS, Illinois EDWARD J. MARKEY, Massachusetts JOSEPH R. PITTS, Pennsylvania FRANK PALLONE, Jr., New Jersey GREG WALDEN, Oregon BOBBY L. RUSH, Illinois LEE TERRY, Nebraska ANNA G. ESHOO, California MIKE ROGERS, Michigan ELIOT L. ENGEL, New York TIM MURPHY, Pennsylvania GENE GREEN, Texas MICHAEL C. BURGESS, Texas DIANA DeGETTE, Colorado MARSHA BLACKBURN, Tennessee LOIS CAPPS, California Vice Chairman MICHAEL F. DOYLE, Pennsylvania PHIL GINGREY, Georgia JANICE D. SCHAKOWSKY, Illinois STEVE SCALISE, Louisiana JIM MATHESON, Utah ROBERT E. LATTA, Ohio G.K. BUTTERFIELD, North Carolina CATHY McMORRIS RODGERS, Washington JOHN BARROW, Georgia GREGG HARPER, Mississippi DORIS O. MATSUI, California LEONARD LANCE, New Jersey DONNA M. CHRISTENSEN, Virgin BILL CASSIDY, Louisiana Islands BRETT GUTHRIE, Kentucky KATHY CASTOR, Florida PETE OLSON, Texas JOHN P. SARBANES, Maryland DAVID B. McKINLEY, West Virginia JERRY McNERNEY, California CORY GARDNER, Colorado BRUCE L. BRALEY, Iowa MIKE POMPEO, Kansas PETER WELCH, Vermont ADAM KINZINGER, Illinois BEN RAY LUJAN, New Mexico H. MORGAN GRIFFITH, Virginia PAUL TONKO, New York GUS M. BILIRAKIS, Florida BILL JOHNSON, Missouri BILLY LONG, Missouri RENEE L. ELLMERS, North Carolina Subcommittee on Environment and the Economy JOHN SHIMKUS, Illinois Chairman PHIL GINGREY, Georgia PAUL TONKO, New York Vice Chairman Ranking Member RALPH M. HALL, Texas FRANK PALLONE, Jr., New Jersey ED WHITFIELD, Kentucky GENE GREEN, Texas JOSEPH R. PITTS, Pennsylvania DIANA DeGETTE, Colorado TIM MURPHY, Pennsylvania LOIS CAPPS, California ROBERT E. LATTA, Ohio JERRY McNERNEY, California GREGG HARPER, Mississippi JOHN D. DINGELL, Michigan BILL CASSIDY, Louisiana JANICE D. SCHAKOWSKY, Illinois DAVID B. McKINLEY, West Virginia JOHN BARROW, Georgia GUS M. BILIRAKIS, Florida DORIS O. MATSUI, California BILL JOHNSON, Missouri HENRY A. WAXMAN, California, ex JOE BARTON, Texas officio FRED UPTON, Michigan, ex officio C O N T E N T S ---------- Page Hon. John Shimkus, a Representative in Congress from the State of Illinois, opening statement.................................... 1 Prepared statement........................................... 3 Hon. Paul Tonko, a Representative in Congress from the State of New York, opening statement.................................... 47 Hon. Fred Upton, a Representative in Congress from the State of Michigan, opening statement.................................... 47 Prepared statement........................................... 48 Hon. Henry A. Waxman, a Representative in Congress from the State of California, opening statement............................... 50 Prepared statement........................................... 51 Witnesses Mathy Stanislaus, Assistant Administrator for Office of Solid Waste and Emergency Response, U.S. Environmental Protection Agency (EPA)................................................... 52 Prepared statement........................................... 55 Answers to submitted questions............................... 169 Robert J. Martineau, Jr., Commissioner, Tennessee Department of Environment and Conservation................................... 76 Prepared statement........................................... 79 Answers to submitted questions............................... 188 Stephen A. Cobb, P.E., Chief, Governmental Hazardous Waste Branch Land Division, Alabama Department of Environmental Management.. 88 Prepared statement........................................... 90 Answers to submitted questions............................... 199 Susan Parker Bodine, Partner, Barnes & Thornburg, LLP............ 100 Prepared statement........................................... 102 Answers to submitted questions............................... 211 Lisa Evans, Senior Administrative Counsel, Earthjustice.......... 113 Prepared statement........................................... 115 Answers to submitted questions............................... 214 Jack Spadaro, Mine Safety & Health and Environmental Consultant.. 134 Prepared statement........................................... 136 Answers to submitted questions............................... 247 Submitted Material Discussion draft................................................. 4 Statement of Kevin Cramer, submitted by Mr. Shimkus.............. 151 Statement of the Portland Cement Association, submitted by Mr. Shimkus........................................................ 163 Letter of April 11, 2013, from Geosyntec Consultants to Mr. Shimkus........................................................ 164 Letter of April 11, 2013, from Civil & Engineering Consultants, Inc. to Mr. Shimkus............................................ 167 H.R. --------, THE COAL ASH RECYCLING AND OVERSIGHT ACT OF 2013 ---------- THURSDAY, APRIL 11, 2013 House of Representatives, Subcommittee on Environment and the Economy, Committee on Energy and Commerce Washington, DC. The subcommittee met, pursuant to call, at 10:34 a.m., in room 2123 of the Rayburn House Office Building, Hon. John Shimkus (chairman of the subcommittee) presiding. Members present: Representatives Shimkus, Gingrey, Hall, Murphy, Latta, Harper, Cassidy, McKinley, Bilirakis, Johnson, Barton, Upton (ex officio), Tonko, Green, Capps, McNerney, Dingell, Barrow, and Waxman (ex officio). Staff present: Nick Abraham, Legislative Clerk; Charlotte Baker, Press Secretary; Matt Bravo, Professional Staff Member; Karen Christian, Chief Counsel, Oversight; Jerry Couri, Senior Environmental Policy Advisor; David McCarthy, Chief Counsel, Environment and the Economy; Brandon Mooney, Professional Staff Member; Andrew Powaleny, Deputy Press Secretary; Tina Richards, Counsel, Environment and the Economy; Chris Sarley, Policy Coordinator, Environment and the Economy; Jacqueline Cohen, Democratic Senior Counsel; Greg Dotson, Democratic Staff Director, Environment and the Economy; Caitlin Haberman, Democratic Policy Analyst; and Elizabeth Letter, Democratic Assistant Press Secretary. OPENING STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS Mr. Shimkus. I would like to call the hearing to order, and ask folks to maybe get the anteroom doors, so that we can start. We want to welcome you here to this legislative hearing, and I would like to recognize myself for a 5-minute opening statement. In our first hearing this Congress, we heard about the great work states are doing when it comes to environmental regulation and how well equipped and qualified they are to take on that mission. Today we will focus directly on coal ash and legislation designed to give states the framework to build off their successes in the past handling waste streams under the Resource Conservation Recovery Act, commonly known as RCRA. Most people think of federal law when it comes to environmental protection and we have passed many important environmental laws over the years. However, states also pass environmental laws. States have the same concerns about protecting the environment and contrary to some of the things you might hear today, states establish and carry out a standard of protection through their environmental permitting programs. In fact, in our last hearing we kind of highlighted that most of the inspections are done through the state agencies, and my example, the state IEPA, Illinois Environmental Protection Agency, do a lot of the legwork, and it is obviously a partnership that is very important. That is actually what my notes say, too. Regulators are directed to establish programs to restore, protect and enhance the quality of the environment, and to assure that adverse effects upon the environment are fully considered and borne by those who cause them, and that is in my home State of Illinois. While it may not use the same words Congress has used to direct EPA, the effect is exactly the same. The legislation we consider today sets out a new approach. It does not follow the same path as we have traveled with the RCRA before, which is for Congress to set a subjective standard that EPA must interpret and implement through regulations and enforcement. Instead, we are setting the standard in statute and charging the states with implementation. Just because it is different does not mean ineffective or not protective of human health and the environment. We heard the comments and concerns about the bill we passed in the last Congress and we worked both across the aisle and across the Capitol to develop the text of this discussion draft. The legislation makes several key improvements. In particular, it establishes additional requirements for surface impoundments that aren't meeting a groundwater protection standard and requires impoundments that can't meet the standards within a certain time period to close. The discussion draft requires groundwater monitoring for all disposal units that are receiving coal ash and tightens the dust requirements. The bill also improves on the dam stability standards by requiring an annual inspection of the design, construction, and maintenance of the structures by an independent professional engineer. The long and short of it is Congress is perfectly capable of establishing a standard of protection for coal ash. The states are perfectly capable, and in the best position, to implement robust permit programs for coal ash. I have brought with me, as I have in different hearings, actually coal ash as we have talked before, beneficial reuse, which is in concrete, which is in kind of a brick-like material. Obviously, we have drywall as part of the production. We have countertops. We have shingles. And part of this debate for us for a long time is ensuring that we properly define this waste that is part of this debate so that this stuff that has beneficial uses is not eventually labeled as toxic and then we can't use it in the building of roads and bridges and schools and the like, which is what we have been doing now for many, many years. So that is part of the concern in which we bring this legislation forward, and we are excited at the opportunity to--as a former teacher in high school, you know, the whole debate of how a bill becomes a law sometimes gets lost here because we, you know, we push things through. We had a bill, as I said in the opening statement. There were concerns. The Senate started moving legislation. We have taken a lesson from both of those processes. We are adjusting and amending those opportunities. There is some optimism, I think, that there is some common ground that can be found, and we look forward to moving this process forward and this is just the first start of, I think, a couple different opportunities of negotiations in this process, which I hope will end in a successful conclusion. [The prepared statement of Mr. Shimkus follows:] Prepared statement of Hon. John Shimkus In our first hearing this Congress we heard about the great work states are doing when it comes to environmental regulation and how well equipped and qualified they are to take on that mission. Today we will focus directly on coal ash and legislation designed to give states the framework to build off their successes in the past handling waste streams under the Resource Conservation Recovery Act (RCRA). Most people think of federal law when it comes to environmental protection and we have passed many important environmental laws over the years. However, states also pass environmental laws. States have the same concerns about protecting the environment and contrary to some of the things you might hear today, states establish and carry out a standard of protection through their environmental permitting programs. For example, in my home state of Illinois, regulators are directed to establish programs to restore, protect and enhance the quality of the environment, and to assure that adverse effects upon the environment are fully considered and borne by those who cause them. While it may not use the same words Congress has used to direct EPA, the effect is exactly the same. The legislation we consider today sets out a new approach. It does not follow the same path as we have traveled with the RCRA before which is for Congress to set a subjective standard that EPA must interpret and implement through regulations and enforcement. Instead, we are setting the standard in statute and charging the states with implementation. Just because it's different does not mean ineffective or not protective of human health and the environment. We heard the comments and concerns about the bill we passed in the last Congress and we worked both across the aisle and across the Capitol to develop the text of this discussion draft. The legislation makes several key improvements. In particular, it establishes additional requirements for surface impoundments that aren't meeting a groundwater protection standard and requires impoundments that can't meet the standards within a certain time period, to close. The discussion draft requires groundwater monitoring for all disposal units that are receiving coal ash and tightens the dust requirements. The bill also improves on the dam stability standards by requiring an annual inspection of the design, construction, and maintenance of structures by an independent professional engineer. The long and short of it is--Congress is perfectly capable of establishing a standard of protection for coal ash. The states are perfectly capable--and in the best position--to implement robust permit programs for coal ash. # # # [The discussion draft follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Mr. Shimkus. So with that, I want to thank all our witnesses for being with us today, and I will recognize Ranking Member Tonko for 5 minutes for the purposes of an opening statement. OPENING STATEMENT OF HON. PAUL TONKO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK Mr. Tonko. Thank you, Mr. Chair. Good morning, everyone, and I thank our chair for holding this hearing on the discussion draft of the Coal Ash Recycling and Oversight Act. Thank you to our witnesses for participating in the hearing, and offering your thoughts on this legislation today. We have dealt with coal ash as long as we have been burning coal, a very long time. Coal ash can be beneficially reused. Recycling of coal ash is a well-established practice, but not all coal ash can be safely recycled, and when it is improperly used or disposed of, coal ash creates significant problems. The Environmental Protection Agency, the EPA, was charged with studying coal combustion residuals back in 1980 when the Resource, Reuse, and Recovery Act, RCRA, became law. It has been over 30 years, and communities in many states have experienced many problems from improper handling and disposal of coal ash. Spills from wet impoundments, windborne ash, and groundwater contamination have caused serious health and environmental problems, and required expensive clean up efforts. Five years after the catastrophic spill in Tennessee, we are still without reasonable regulations to safeguard communities and ensure proper treatment of this waste. It is long past time to resolve these issues and indeed move forward. We need a policy that ensures safe disposal of coal ash, provides clear guidance to state agencies, and the regulated industry, and an appropriate federal oversight role. Perhaps EPA can achieve that with regulation under the current law. If not, I believe we can develop a law that balances the concerns of all involved. The discussion draft does not meet these goals in its current form, so we have more work to do. I look forward to the testimony of our witnesses today, and their thoughts on this issue. I am willing to work with you, Mr. Chair, and our other colleagues to improve this legislation. Working together, I am convinced that we can move a bill forward that finally can provide a sound policy to deal with coal ash. And with that, I yield back. Mr. Shimkus. Gentleman yields back his time. Chair now recognizes the chairman of the full committee, Mr. Upton, for 5 minutes. OPENING STATEMENT OF HON. FRED UPTON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN Mr. Upton. Well thank you. You know, our efforts to solve the coal ash certainly do continue with this hearing. We began the last Congress by asking should we allow EPA to write rules that would bind every state regardless of geography, hydrology, history, and economics, or should we allow the states to build and operate their own permitting systems? The answer that this committee reported, and which the House passed, both with bipartisan support, was a compromise. It gave the choice to the states to apply minimum federal standards specified in the legislation itself, or a state could vacate the field and let EPA step in and run that state's program directly. Mr. McKinley's bill, H.R. 2273 passed the House with bipartisan support in October 2011. Building on the House- passed bill, Senators Hoeven and Baucus and a bi-partisan Senate group wrote S. 3512. It preserved the approach of our House bill, but added more detail to the minimum federal standards. For example, it added a requirement that leaking surface impoundments meet a groundwater protection standard within a certain time period or they are required to close. That bill also included a requirement that all structures that receive coal ash after enactment install groundwater monitoring within one year after a state certifies its program. The bill was introduced on August 2 of last year with Senators Hoeven and Baucus and 12 Republicans and 12 Democrats as original co- sponsors, and the text of today's discussion draft is actually the text of that bill, S. 3512. Now, we are eager to hear from our witnesses today as they focus on the details of the legislation before us. We welcome suggestions to improve the text for sure, however, we do prefer to preserve the signature approach of the bill: minimum statutory standards implemented by the states. We welcome our first witness, Mr. Stanislaus, and thank him for sure for testimony that is quite useful as it directly addresses the legislation. That is what this legislative hearing is intended to do. We know that he would like to resolve the coal ash issue as well, and we appreciate that good will. The dispute about how to regulate coal ash ties up EPA in court and prevents all parties from moving forward. This legislation aims to help settle that litigation. We also welcome our state environmental officials. We look forward to learning from them how they will develop certified programs that EPA can approve, and whether the nuts and bolts of the bill are tight enough to make the vehicle work in the real world. I also expect the witnesses to answer questions about details of the legislation. Are the minimum federal standards the right ones? How do they compare with what the EPA proposed? Should we consider some type of timeline for state implementation? Do the states welcome the approach set out in the discussion draft? [The prepared statement of Mr. Upton follows:] Prepared statement of Hon. Fred Upton Our efforts to solve the coal ash issue continue. We began the last Congress by asking: Should we allow EPA to write rules that would bind every state regardless of geography, hydrology, history, and economics, or should we allow the states to build and operate their own permitting systems? The answer that this committee reported, and which the House passed, both with bipartisan support, was a compromise. It gave the choice to the states to apply minimum federal standards specified in the legislation itself, or a state could vacate the field and let EPA step in and run that state's program directly. Mr. McKinley's bill, H.R. 2273 passed the House with bipartisan support in October 2011. Building on the House-passed bill, Senators Hoeven and Baucus and a bi-partisan Senate group wrote S. 3512. It preserved the approach of our House bill, but added more detail to the minimum federal standards. For example, S. 3512 added a requirement that leaking surface impoundments meet a groundwater protection standard within a certain time period or they are required to close. S. 3512 also included a requirement that all structures that receive coal ash after enactment install groundwater monitoring within one year after a state certifies its program. S. 3512 was introduced on August 2, 2012, with by Senators Hoeven and Baucus and 12 Republicans and 12 Democrats as original co-sponsors. The text of today's discussion draft is actually the text of S. 3512. We are eager to hear from our witnesses today as they focus on the details of the legislation before us. We welcome witnesses' suggestions to improve the text. However, we do prefer to preserve the signature approach of the bill: minimum statutory standards implemented by the states. We welcome Mr. Stanislaus and thank him for testimony that is quite useful as it directly addresses the legislation. That's what a legislative hearing is for. We know that he would like to resolve the coal ash issue. The dispute about how to regulate coal ash ties up EPA in court and prevents all parties from moving forward. This legislation aims to help settle that litigation. We also welcome our state environmental officials. We look forward to learning from them:how they will develop certified programs that EPA can approve; and whether the nuts and bolts of the bill are tight enough to make the vehicle work in the real world. I also expect the witnesses to answer questions about details of the legislation--Are the minimum federal standards the right ones? How do they compare with what EPA proposed? Should we consider some type of timeline for state implementation? Do the states welcome the approach set out in the Discussion Draft? Thank you to all our experts for joining us today as we work to resolve this important issue. # # # Mr. Upton. I appreciate the good work by Chairman Shimkus, and yield the balance of my time to Mr. McKinley from West Virginia. Mr. McKinley. Thank you, Mr. Chairman, for the time that you have given me on this. Let me just kind of paraphrase again much of what you have heard so far on this, is that the creation of fly ash, it is an unavoidable byproduct of burning coal. You get this product, this little dust. It is just an unavoidable byproduct. So I guess the fight here would be if we don't want to have this product, then we don't burn coal, but that is not realistic. So what has happened over here is we have developed about 140 million tons of this fly ash annually. Forty percent of it is recycled, and 60 percent goes to landfills. But the 40 percent that has been recycled, it has been blessed by the EPA as a nonhazardous material and should be used. As a matter of fact, under Bill Clinton, the '93 and the 2000 reports both came out and supported it. So the 40 percent issue should be moot. The real issue, then, is the disposal. How do you dispose of this product? Perhaps the argument, when it really comes down to it, do we want to have the Federal Government have primacy or should the states have primacy? The groups that recycle, labor unions, utilities, coal operators, state environmental groups, all the stakeholders in this think that the best way to do it is to have the state have primacy, but what I like about in this bill is that we actually begin with the federal standard. There is a minimum standard that is going to be set forth, and the states have to apply that. If they don't adhere to that, then the Federal Government does take primacy. So let's make sure that we understand that if this bill doesn't pass, then what we are going to do is we are going to be back to, once again, what has been talked about for the last 30-some years, arguing over this while we have fly ash that is created every day all across America, is going to landfills that are not approved. Some of them, some states have no certified landfill requirements. Do we want to continue that or not? It is time this bill gets passed, and I am particularly pleased, from what I am hearing from the other side and from the EPA is that this may very well be the year to do it, that we can find a compromise, and I appreciate very much the testimony that you are about to give and how we can work together to make this resolve, because this is not right for people to fear this is being disposed of in their backyard and they don't--there are no standards. It is time that we have standards and adhere to them, and we can do that. So this legislation is important and I think it is going to resolve. I hope, after 30-some years, we are finally going to resolve this problem. So with that, Mr. Chairman, I yield back my time. Mr. Shimkus. Gentleman's time is expired. Chair now recognizes the ranking member of the full committee, Mr. Waxman, for 5 minutes. OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA Mr. Waxman. Thank you, Mr. Chairman. Today, the subcommittee examines the discussion draft that would govern the disposal of coal ash, the toxic-laden residual waste from burning coal. The language isn't new. It is almost identical to the bill reported by this committee in the last Congress without ever being examined in a legislative hearing. It is identical to the language that 90 percent of Democrats opposed when it was considered on the House Floor in September of last year. It is the same language that has been exhaustively analyzed by the Congressional Research Service and found severely wanting. And it is the same language that has failed to get sufficient support in the United States Senate. Over the years, Congress and the states have developed a proven model for environmental protection that has successfully reduced pollution and enhanced the protection of the public health. We had a hearing on that model of environmental federalism just 2 months ago, and heard from stakeholders that it continues to work well. States have received delegation for just over 96 percent of the environmental programs that can be delegated. This is an impressive track record that has protected the American people from pollution-induced respiratory diseases, from contaminates in their drinking water, from toxic environmental exposures that can cause cancers and other diseases. Despite these successes, the discussion draft we consider today would abandon the proven models of environmental protection and adopt an approach that we have every reason to believe would fail if enacted. This proposal will not ensure the safe disposal of coal ash. It will not prevent groundwater contamination from unlined ash ponds or prevent coal ash impoundments from failing catastrophically. It will not allow EPA to complete its rulemaking to identify the disposal criteria necessary to protect human health and the environment. I continue to oppose such an approach and believe that there is simply not the support for this proposal to become law. But as I have said for 2 years now, I am willing to work with the Majority on this issue to get a law, if the chairman wants a law. That would require rethinking this legislation and listening to the expert views available to us. EPA, and the Congressional Budget Office, the Congressional Research Service all have relevant expertise on this legislation. Their views must not be dismissed and, in fact, relying on their expertise will only help us craft a much better piece of legislation. I believe this is an issue we should be able to resolve. We can provide certainty and reasonable standards that would work for industry. And at the same time, we can ensure that health and the environment are protected. But what we should avoid is remaining gridlocked on a stale proposal. That won't stop dangerous coal ash dumping. It won't prevent toxic contamination from leaking into the groundwater and surface water. And it won't promote beneficial reuse of coal ash. Whether it is by administrative or legislative action, it is time to resolve this issue and ensure the safe disposal of coal ash. Environmental groups and the biggest recycler of coal ash in the country have sued EPA to complete their regulatory process and get a rule finalized. Mr. Chairman, I hope we can work together on this issue. And if not, I hope EPA will move expeditiously to establish strong standards that ensure the safe disposal of coal ash. I yield back my time. [The prepared statement of Mr. Waxman follows:] Prepared statement of Hon. Henry A. Waxman Today, the Subcommittee examines a discussion draft that would govern the disposal of coal ash--the toxic-laden residual waste from burning coal. This language isn't new. It is almost identical to the bill reported by this Committee in the last Congress without ever being examined in a legislative hearing. It is identical to the language that 90% of Democrats opposed when it was considered on the House floor in September of last year. It's the same language that has been exhaustively analyzed by the Congressional Research Service (CRS) and found severely wanting. And it's the same language that has failed to get sufficient support in the U.S. Senate. Over the years, Congress and the states have developed a proven model for environmental protection that has successfully reduced pollution and enhanced the protection of the public health. We had a hearing on that model of environmental federalism just two months ago and heard from stakeholders that it continues to work well. States have received delegation for just over 96% of the environmental programs that can be delegated. This is an impressive track record that has protected the American people from pollution-induced respiratory diseases, from contaminants in their drinking water, and from toxic environmental exposures that can cause cancers and other diseases. Despite these successes, the discussion draft we consider today would abandon the proven models of environmental protection and adopt an approach that we have every reason to believe would fail if enacted. This proposal will not ensure the safe disposal of coal ash. It will not prevent groundwater contamination from unlined ash ponds or prevent coal ash impoundments from failing catastrophically. It will not allow EPA to complete its rulemaking to identify the disposal criteria necessary to protect human health and the environment. I continue to oppose such an approach and believe that there is simply not the support for this proposal to be become law. But as I have said for 2 years now, I am willing to work with the majority on this issue to get a law if the Chairman wants a law. That would require rethinking this legislation and listening to the expert views available to us. EPA, the Congressional Budget Office, and CRS all have relevant expertise on this legislation. Their views must not be dismissed and in fact relying on their expertise will only help us craft a much better piece of legislation. I believe this is an issue we should be able to resolve. We can provide certainty and reasonable standards that work for industry. And at the same time, we can ensure that health and the environment are protected. What we should avoid is remaining gridlocked on a stale proposal. That won't stop dangerous coal ash dumping. It won't prevent toxic contamination from leaking into the ground water and surface water. And it won't promote beneficial reuse of coal ash. Whether it's by administrative or legislative action, it is time to resolve this issue and ensure the safe disposal of coal ash. Environmental groups and the biggest recycler of coal ash in the country have sued EPA to complete their regulatory process and get a rule finalized. Mr. Chairman, I hope we can work together on this issue. And if not, I hope EPA will move expeditiously to establish strong standards that ensure the safe disposal of coal ash. Mr. Shimkus. Gentleman yields back his time. Now we would like to welcome our first witness, the Honorable Mathy Stanislaus, who is the Assistant Administrator for the Office of Solid Waste and Emergency Response with the U.S. EPA. Sir, welcome. Your full statement is in the record. You will have 5 minutes. We have, obviously, a newer time system there with the green, the yellow, and the red, and--but we are going to be very generous, and based upon the comments in the opening statements, we really look forward to hearing your opening statement because we are going to get input from the EPA here. You are recognized. STATEMENT OF THE HONORABLE MATHY STANISLAUS, ASSISTANT ADMINISTRATOR FOR OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, U.S. ENVIRONMENTAL PROTECTION AGENCY (EPA) Mr. Stanislaus. Good morning, Mr. Chairman and members of the subcommittee. I am Mathy Stanislaus, Assistant Administrator for the Office of Solid Waste and Emergency Response at the United States Environmental Protection Agency. Thank you for the opportunity to testify today on the committee's legislative discussion draft, the Coal Ash Recycling and Oversight Act. Coal combustion residuals, or CCRs, are one of the largest waste streams generated in the United States, with approximately 136 million tons generated in 2008. CCRs contain constituents, such as arsenic, cadmium, and mercury, which can pose threats to public health and the environment, if improperly managed. At the time, EPA issued its proposed coal ash rule, EPA had documented evidence of damages to groundwater or surface water in 27 cases, 17 cases of damage to groundwater, and ten cases of damage to surface water. In addition, EPA identified 40 cases of potential damage to groundwater or surface water. In the majority of cases, damages to groundwater or surface water were associated with the lack of standards necessary to protect the environment, particularly the use of unlined impoundments and units and the failure to monitor these impoundments and other associated units. EPA also had documented evidence of a number of damage cases due to the catastrophic structural failure of coal ash impoundments, such as at the Martins Creek Power Plant in Pennsylvania, and the TVA Kingston facility in Harriman, Tennessee. The sudden failure of a surface impoundment retaining wall at the TVA Kingston facility in December 2008, and the resulting catastrophic spill of coal ash and their impacts on the community highlight the issue of impoundment stability. Since EPA's proposed rule was issued, a number of additional reports have been submitted to EPA by several organizations that identified dozens of additional damage cases. In addition, for states that have begun to require groundwater monitoring of surface impoundments, in almost all cases, groundwater contamination has been identified. Thus, it appears, based on all of EPA's information, improper management of coal ash in landfills and surface impoundments will continue to pose a threat to human health and the environment. Regarding beneficial use, coal ash can provide environmental benefits and new applications may provide even greater benefits, based on current studies. Some of the information confirms or strengthens EPA's views on the benefits of coal ash reuse. However, some information indicates that certain uses may raise concerns and merit additional attention. Some beneficial uses are in an encapsulated form, while other are in an unencapsulated form. EPA believes that the great bulk of beneficial uses, particularly in an encapsulated form, such as concrete and wallboard, do not raise concerns and offer important environmental benefits. However, some questions have been raised regarding the lack of clear methodology to evaluate reuse of coal ash. Thus, EPA's proposal sought additional information and requested specific comment on certain aspects of beneficial use of coal ash. To help resolve questions regarding the environmental consequences of beneficially using coal ash, EPA has developed a draft methodology, which can be used to determine whether encapsulated products containing coal ash are comparable to analogous non-coal combustion residual products. It will also develop a draft application report for the use of coal fly ash in concrete and the use of FGD gypsum in wallboard as replacement materials. The draft application report is currently undergoing formal internal peer review. EPA is also developing a draft methodology for evaluating current unencapsulated beneficial uses of coal ash. We expect to issue both of them in the fall. Now turning to the committee's legislative discussion draft, it establishes a framework for the management of coal ash, recognizing the documented damages associated with the mismanagement of coal ash support the need for action to address those risks. EPA believes that the proper management of coal ash requires nationally consistent standards necessary to protect human health and the environment. These standards should address the installation and use of liners for new units and allow expansions of existing units, provide standards that control airborne dust and particulate matter, address the phase out of unlined surface impoundments within a reasonable period of time, require groundwater monitoring for new and existing facilities, include location criteria, provide for corrective action where contamination or releases to the environment have been identified, including criteria for maintenance and structura stability of dams, address standards for closure and post-closure, and address the issues of financial assurance. The discussion draft addresses many of the areas I have just discussed. However, the discussion draft could be clarified in some important areas, including timelines for the development and implementation of state programs, criteria to help EPA determine when a state program is deficient, criteria for coal ash unit structural stability, deadlines for closure of unlined or leaking units, including inactive or abandoned units, and the universe of units subject to the permit program. Mr. Chairman, should Congress decide to address the regulation of coal ash through legislation, EPA stands ready to assist in that effort to help ensure that legislation establishes a regulatory framework to regulate the management of coal ash in a nationally consistent manner that fully protects human health and the environment. Thank you, and this concludes my prepared remarks. [The prepared statement of Mr. Stanislaus follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Mr. Shimkus. Thank you very much, and I think your opening statement and your submission is very helpful in us moving forward, and I appreciate that. So I will recognize myself for the first 5 minutes of opening questions. Mr. Stanislaus, doesn't the legislation in the discussion draft give EPA continuing watchdog role to ensure that state permit programs meet the minimum federal requirements? Mr. Stanislaus. Thank you, Congressman. As I noted in my oral statement, there is a role for EPA to oversee the implementation of a state program, and in my oral statement I noted that for the clarity as to how EPA would execute that function is something that we could provide technical assistance regarding that. Mr. Shimkus. Great, thank you. And you could, based upon the discussion draft, take over a state permit program if the state fails to correct identified deficiencies, based upon the discussion draft, is that correct? Mr. Stanislaus. Yes, and thank you, Congressman. Again, referring back to my oral statement, there is a provision, as I understand the intent of that, for EPA to review and take over in certain circumstances. As noted in my oral statement, clarity as to those circumstances for EPA to conduct that function would be beneficial. Mr. Shimkus. Yes, and I think the discussion draft basically identifies a base standard, and I think it is pretty clear, and I think you are alluding to that cautiously that based upon that language, as presented, if passed and signed into law, if it is deficient in those base standards, you would have the authority. So let me go to didn't the EPA state in the proposed rule that 40 C.F.R. part 258, the revised criteria for municipal solid waste landfills would be a framework for regulating coal ash? Mr. Stanislaus. In the proposed rule? Mr. Shimkus. That the revised criteria that you all have are proposed that using the municipal solid waste as a guideline would be a proper way of evaluating and moving CCR materials into, obviously, sites? Mr. Stanislaus. Congressman, I am not familiar with the specific reference. Let me check that and---- \*\ --------------------------------------------------------------------------- \*\ As indicated in the Preamble of EPA's coal combustion residuals proposal, the Agency's RCRA Subtitle D option references criteria for solid waste disposal facilities and practices found in 40 CFR Part 257. EPA's proposal can be found on the Agency's web site at: http:// www.epa.gov/wastes/nonhazlindustrial/special/fossil/ccr-rule/ --------------------------------------------------------------------------- Mr. Shimkus. Well, and I would just obviously--the preamble of the proposed rule basically says that, does it not? Mr. Stanislaus. Again, I don't have that in front of me but I will check and put that into the record. Mr. Shimkus. I think if you read the preamble, the answer will be yes, it does. And so our point is, this is not new. We are pretty close on how we need to get to where we need to get to, and we just want to continue to work with you and clean up some stuff. But EPA is pretty much on the record on at least four provisions of this legislation and the ability to have a guideline, the ability of you all to preempt if the states don't meet the guidelines, but the ability of the states to actually--to operate this, and that is what the legislation intends on doing. Consensus seems to be emerging in support of coal combustion residuals being dealt with under a nonhazardous regulatory framework. Do you agree? Mr. Stanislaus. Well, again I mean with respect to-- regarding the legislation, I mean, so again, I think there are areas of further clarification regarding how the coal ash management should be executed. Mr. Shimkus. Are you prepared to give us any--in this legislative hearing any words and clarifications that might be acceptable, or are we prepared to do this after the hearing and in discussions with you all and committee staff? I mean, how-- if we are not asking these questions and not going to glean from you what areas and language that would be helpful in perfecting the language, when do we have a chance to do that, especially in an open forum? Mr. Stanislaus. Sure. Well again, we will provide specific details in our technical assistance role, and so there are areas, as I noted in my oral statement, that could be improved and so I think it will be helpful for me and my staff to work with your staff providing details regarding potential areas of---- Mr. Shimkus. OK, let me--my time is running out. EPA cannot issue enforceable permits under Subtitle D, is that correct? Mr. Stanislaus. That is right. Mr. Shimkus. And from an enforcement standpoint, isn't it better for facilities to operate under an enforceable permit instead of a self-implementing regulation or regulations that are only enforceable through citizen suits? Mr. Stanislaus. Well as I understand the legislation, it does provide that the states would issue a permit and oversee that, and---- Mr. Shimkus. Isn't that preferable than fighting through the courts and having citizen suits across the country trying to delineate this, clearing this up, and putting a responsible party involved? And this, as we will hear from the state regulators, they are willing, ready, and capable, and do, in fact, all states except for Florida and South Dakota, are part of ECOS, even New York and California and Massachusetts, and they all agree with this approach. Mr. Stanislaus. Yes, EPA, under Subtitle D, the states do, in fact, go forward and implement in sum through a permit program. Even under the other titles, EPA delegates that authority, so there are many circumstances where states do--in fact, we rely on the states to implement the solid waste programs. In many cases, that is done through a permit program and enforced by the states. Mr. Shimkus. Perfect. Thank you. Now I would like to yield to the ranking member, Mr. Tonko, for 5 minutes. Mr. Tonko. Thank you, Mr. Chair, and thank you, Assistant Administrator Stanislaus for testifying today. EPA has proposed two alternative regulatory approaches to address the risks posed by unsafe disposal of coal ash. Both approaches include requirements to address failures of wet impoundments, dust from ash landfills, groundwater contamination, and other potential risks. The Subtitle D proposed rule includes detailed technical criteria developed by EPA to protect human health and the environment from the risks associated with CCR disposal. Getting these technical criteria right is critically important because they ensure that coal ash disposal sites are structurally sound and don't pollute the air or pollute the water. Proponents of the discussion draft that we are considering today have said that the draft contains many of the appropriate criteria, but I have concerns that significant safeguards are missing. In the last Congress, EPA provided this committee with technical assistance on whether legislation similar to the draft we are considering today included all of the elements necessary to protect human health and the environment. So I would like to ask a few questions to understand whether the new draft addresses those concerns. First, EPA's technical assistance states that under the language we considered in the last Congress, EPA would not be authorized to develop criteria tailored to the specific risks of coal ash disposal. Does the discussion draft we are considering today address that shortcoming? Mr. Stanislaus. So are you referring to the technical assistance for last year's House bill or the Senate bill? Mr. Tonko. The House bill. Mr. Stanislaus. My understanding is the draft discussion is based on the Senate bill. Is that not correct? So let me get back to you in terms--I mean, if you are asking a comparison of technical assistance on the Senate bill I can get back to you regarding what we provided on the Senate bill. I can provide that to you, but generally as noted in my oral statement, there are areas that we are willing to work with you and the committee in terms of areas of further clarification in the areas I have articulated. Mr. Tonko. OK, and EPA's technical assistance states that the structural integrity requirements in the previous language were deficient because they did not address the full volume of liquid to be stored? Did the changes in this discussion draft address those deficiencies? Mr. Stanislaus. Yes, speaking to the discussion draft, it does address liquids and what we have said is that--further clarification as to the standard for which structural integrity would be judged against. The further clarification would be beneficial. Mr. Tonko. And EPA's technical assistance states that the previous language did not include the longstanding operating criteria for wet impoundments developed by the Mine Safety and Health Administration. Does this discussion draft apply these criteria? Mr. Stanislaus. My understanding is that it does not, that there is a provision requiring good engineering practices as the basis of structural integrity. Mr. Tonko. And EPA's technical assistance states that under the previous language, dry landfills would not be required to comply with many of the operating criteria that currently apply to municipal solid waste and would be applied to coal ash under EPA's proposed rule. Does this discussion draft fix that flaw with the previous proposal? Mr. Stanislaus. I am not sure about that. Mr. Tonko. OK, is there a way that you can get back to us? Mr. Stanislaus. Yes, I can review that and get back to you. Mr. Tonko. OK. That would be most appreciated. Thank you for your response, Mr. Stanislaus. Let me just indicate, this proposal eliminates EPA's rulemaking authority and replace's the agency's expertise with that of this panel, so it is essential that we get these disposal criteria correct. I hope that the committee will engage with you as we move forward to address these and other deficiencies in this legislation. I believe it is absolutely critical that as we assist those in the industries involved with the guidelines, with the certainty, and with the policy initiated here that we can get things done to work in the best order possible. So with that, I see my time is almost expired and I yield back. Thank you, Mr. Chair. Mr. Shimkus. Gentleman yields back his time. Chair now recognizes the gentleman from Texas, Mr. Barton, for 5 minutes. Mr. Barton. I am not going to use 5 minutes. I am going to ask one question and then I will yield to Mr. McKinley or Mr. Johnson or back to the chairman. I missed most of your verbal statement, but my question is pretty straightforward. Does the EPA have an official position on the discussion draft, and if they do, what is it? Mr. Stanislaus. We do not have an official position. In my oral statement, I have noted there are areas that the bill does, in fact, advance the basic requirements we believe are necessary for safe coal ash disposal and areas of further clarification that we are willing to work with the committee to expand upon. Mr. Barton. Could you characterize the EPA's position is wishing to cooperate with the committee on this bill, or wanting to be confrontational? Mr. Stanislaus. We are absolutely willing to cooperate. Mr. Barton. All right. Thank you, sir, and I would yield to whoever you want me to. Mr. Shimkus. I would claim your time. Mr. Barton. OK, I yield back to the chairman. Mr. Shimkus. Thank you, and I would just like to follow up in that question. So EPA is not taking a position of opposition to the language--to the bill? Mr. Stanislaus. That is right. Mr. Shimkus. OK, and I think that is important. I will just continue. Let me ask, on the legislation, doesn't the legislation require issuance of enforceable permits to all coal ash disposal facilities? Mr. Stanislaus. My understanding of the legislation is that the states would be--would implement the program to issue permits, so the area of further clarification is kind of-- clarification regarding timeline of that. Mr. Shimkus. And I think that is something we could--I mean, my understanding of your testimony is that there are four things you kind of like. There are six provisions that you think we could--we need to look at, one of those being establishing a timeline. But--and so I think that is something I think we can be helpful and work on, but it is my understanding on the issue of the question that it--the way the language is drafted is that we do require enforced--now you might question the standard of enforcement--not even standards, because we believe the states can enforce it. We may have a question of what are the standards, right? Mr. Stanislaus. Yes. Mr. Shimkus. But I don't think there is any dispute in the language that there would be--and I am just making sure I say it properly--that there is an issuance requirement and enforceable permits that--in this draft language. Mr. Stanislaus. I believe the language or the intended language is to put in place a permit program, an implemented permit program, and again, assuming we could address the timing question is also the--what universe it would apply to, so-- people are giving me notes. Mr. Shimkus. Me too. Mr. Stanislaus. I think one of the areas is the definition of what is covered, yes. Mr. Shimkus. OK. Let me ask, is a Subtitle C rule still on the table? Mr. Stanislaus. Well again, Congressman, we have noted in my testimony, we are evaluating a number of comments, about 430,000 comments and data, and also there is additional data which will inform the risk and the management--the preferred management mechanism to address that. So the additional data which we would want the public to review before we make a decision, we want to get that out to the public and then that will inform which is the best technique, given all the considerations. Mr. Shimkus. So for the public, moving on legislation could actually create a quicker standard of protection versus waiting for a process going through your due diligence? Mr. Stanislaus. It could. Mr. Shimkus. All right. What is the agency's--do you have any timing? I guess that is a follow-up to legislation could be quicker when you have timing? Mr. Stanislaus. I don't have a specific timeframe in mind, and we have laid out in filings that we will have some idea in about 6 months in terms of--based on the ability to get public input on this data, but we will--it is not that we will be able to act in 6 months, but in 6 months, based on the data being submitted to the public for review and comment. Mr. Shimkus. So I guess--again, let me just follow up. We believe that legislation would help you all deal with the pending CCR deadline. You are currently in litigation. You are involving--and I can answer that question, but I think that is a thing that we can debate and discuss. So with that, Mr. Barton's time is expired, which I was able to use, and I now yield to the chairman emeritus of the full committee, Mr. Dingell for 5 minutes. Mr. Dingell. Mr. Chairman, I thank you for your courtesy. This is a very useful hearing. It reminds me, however, of a Greek tragedy. I see us sitting here like the chorus and anticipating that terrible calamities are about to come and we don't know what to do about it. Well, there is a way out of this thicket, and I want to commend you for having the hearing, because I think this might just be a beginning. Having said this, I have got a bunch of yes or no questions and I hope that you will respond, referring to the witness. On other waste issues, states create their plans within a certain timeframe and with certain federal requirements that they are obligated to meet, is that right? Mr. Stanislaus. I am sorry, could you repeat that question? Mr. Dingell. I will dispense with that question. Do you believe this draft bill has the timelines and minimum legal standards of protection to ensure that proper program plans are implemented in the states? Yes or no. Mr. Stanislaus. Well, that is one of the areas that I noted in my oral statement---- Mr. Dingell. Yes or no. Mr. Stanislaus. --that could be clarified. Mr. Dingell. OK. Could you submit additional records or information for the record? Mr. Stanislaus. Sure. Mr. Dingell. And I don't want to see you toe dancing around. Take a firm stance here, because the situation stinks and quite honestly, the legislation is not good. This bill would legislatively create regulatory requirements. Under a normal regulatory process, if these requirements such as a legal standard for protection, needed to be updated or to better address the issue, there would be a comment period to obtain input from industry, stakeholders, and the public, isn't that right? Mr. Stanislaus. Yes, my understanding of the draft legislation---- Mr. Dingell. Yes or no. Mr. Stanislaus. My understanding of the draft legislation is that the---- Mr. Dingell. I have limited time. Please say yes or no. There is no requirement in this bill that any future changes should go through a public comment process, is that right? Mr. Stanislaus. Again, my understanding of the legislation is that in implementing the program by the state, it is subject to public input and comment. However---- Mr. Dingell. You are not being helpful, sir. Under EPA's proposed rule to establish requirements to address this issue, in your testimony you said that EPA received nearly a half million public comments, solicited public data, started drafting a methodology to evaluate the beneficial uses. Under the legislative proposal before us, would EPA have the authority to gather public comments, technical data, or develop methodologies in the future to improve the implementation of the program proposed in the bill? Yes or no? Mr. Stanislaus. My understanding of the legislation is that the legislation would prescribe to the states to implement a program and a permit thereafter. Mr. Dingell. All right. Submit additional information for the record. What four or five national standards do you believe should be specifically addressed and added to this legislation to ensure that there is national conformity amongst several states? Mr. Stanislaus. Yes, as I noted in my---- Mr. Dingell. Would you submit that for the record? Mr. Stanislaus. Sure, absolutely. Mr. Dingell. Now do you believe this legislation as currently written would require these standards to be included in state program plans? Yes or no? Would you please submit that for the record? Mr. Stanislaus. Sure. Mr. Dingell. Mr. Chairman, from what I am seeing today it appears there is much we need to do to prevent spills like that experienced in Tennessee and more recently in Wisconsin when we had a tremendous--of nastiness flowing into Lake Michigan. I am just a poor Polish lawyer from Detroit, but I would remind members of the subcommittee that we are not engineers and we must give EPA the flexibility to implement appropriate performance standards without having to come back to Congress for approval. Traditionally, Congress and this committee have given EPA authority to develop regulations and to address particular issues, but this bill jumps straight to the regulations without knowing whether the regulations are sound or not. And I am concerned that we may be setting, quite frankly, a most disturbing precedent, one which is inconsistent with the Administrative Procedures Act, and it allows regulations to be set without the extensive public comments and technical data that are needed from industry and from stakeholders. I hope my friends on the other side will recognize that we are imposing a congressional straight jacket on the EPA and the administrators of this program. The end result will be, if we are right, it might be fine. That is most unlikely. The probabilities are we are going to find we are wrong. We have no flexibility here that I can discern. EPA can't find any, and we are not getting much help from the witness, but it is urgently necessary that we consider these facts and that we do these things intelligently. The industry has got a legitimate complaint. We ought to hear it. We ought to do something about it. But we ought not jump blindly in and set a bunch of standards about which we know nothing and simply prolong the problem and increase litigation that is going to curse us if we pass the bill as it now is. I look forward to working with you, and I hope you will cooperate with me in trying to get a bill that makes some sense. Thank you. Mr. Shimkus. I thank my colleague. Every time I hear from the poor Polish lawyer, I check my wallet. So with that, I would like to recognize the author of last Congress' legislation, and the member who is intimately involved with this, Mr. McKinley for 5 minutes. Mr. McKinley. Thank you, Mr. Chairman, and again, thank you for appearing before the committee. You are right. This thing has been hanging for 30-some years, and we passed a bill 2 years ago, we passed a bill a year ago, we are back at it again. If we continue with this, with being stonewalled, I guess, that argument of making perfect the enemy of good and we do not pass a bill, can you help paint the picture of what happens? Won't we continue to be disposing of fly ash in the way they did it in the '40s and the '50s, because there are some states that have no regulations whatsoever on this? So if we don't do something, aren't we really challenging people as a result? Mr. Stanislaus. I agree, Congressman. As I noted in my oral statement, the ongoing damages that are occurring and past damages from, particularly, the unlined impoundment kind of scenario and the particular--the requirements that I have articulated in my oral statement, things like lining, things like monitoring are things that will be necessary to protect against those risks. So I think we do need some action. Mr. McKinley. What about the--are you--I think I heard you make some remarks earlier in your opening statement that the 40 percent that we recycle, the beneficial recycling, you are still of an opinion that we should be able to continue to beneficially recycle about 40 percent of the product? Mr. Stanislaus. Yes, I believe it is 37, but yes, close to 40. Mr. McKinley. So if this legislation doesn't go through-- and I want to paint probably the worst picture would be--I believe isn't there litigation now? Mr. Stanislaus. There is litigation now. Mr. McKinley. OK, and that litigation wants you to call this a hazardous material? Mr. Stanislaus. My understanding of the litigation is to-- for EPA to move forward on a timeline for regulating the disposal of coal ash, yes. Mr. McKinley. Under a hazardous waste landfill? Mr. Stanislaus. Let me get back to you. I don't believe it is prescriptive in that way. Mr. McKinley. I thought there was something to that effect that would label it, and I just know that if something were hazardous, then none of us should be using that. We shouldn't use it in drywall; we shouldn't use it in concrete if it is hazardous. We do? Mr. Stanislaus. If it is hazardous, no. Mr. McKinley. But I think EPA has already determined that it is not a hazardous material. We just need to make sure that we dispose of it and recycle it in a way that is appropriate. So I have watched now over 2 years--it is my second term here-- how it has matured in this conversation with the EPA a relationship that we can probably work this thing through, because it does us no good if we continue with the other side, I suppose it would be, not to work with us to come up with a piece of legislation because that was my earlier comment. If we don't do it, we are going to have areas that people could feel threatened. Their homes could be challenged, I suppose, a whole series of things, unless we get something approved. I am hoping that we get some good cooperation and compromise and work together to come up with a piece of legislation. I am very encouraged from your remarks earlier today and what we have heard over the last few months, that there is some chance we are going to get something accomplished this year, and we won't continue this 30 years of uncertainty. So you are telling me that you think we will be able to come up with something this year? Mr. Stanislaus. I am not in the prediction business, but my commitment is that we will work with you, Congressman and the committee, in terms of the areas that I have articulated in my oral statement. Mr. McKinley. Some of the recommendations I hope that we will take into consideration. That is what we did last time. We had a hearing like this on the original bill and then we modified it after we heard from people. I don't think any of us are afraid to make changes to a piece of legislation. We are trying to get it right. I want to get this resolved, and I like the history and the ideology that people are putting out there about that they would rather have nothing than have something that moves in the right direction. So I thank you very much and I yield back the balance of my time. Mr. Shimkus. Gentleman yields back his time. Chair now recognizes the gentlelady from California, Ms. Capps, for 5 minutes. Mrs. Capps. Thank you, Mr. Chairman, for calling this hearing. I thank you, Mr. Stanislaus, for your testimony. As you know, this proposal passed the House in the last Congress, despite serious concerns about whether it would sufficiently protect the health of people living near coal ash disposal sites. In technical assistance you provided to the committee last Congress, you identified multiple principal contaminants of concern in coal ash, including arsenic, cadmium, lead, mercury, and many others. These heavy metals pose very serious threats to human health. Would you, for our hearing today, please identify briefly some of the health effects of these contaminants? Mr. Stanislaus. Well, let me commit to get back to you on the record in terms of all the contaminants we have identified in the bill in terms of the specific health impacts. Mrs. Capps. Just generally, the ones that I have mentioned came from the list you provided last time, arsenic, cadmium, lead, mercury. Can you just identify a few of those health---- Mr. Stanislaus. Well, not getting into the specifics of each of the contaminants, so---- Mrs. Capps. Right. Mr. Stanislaus. --generally, you could have--depending on the contaminant and the contaminant level, you could have some developmental issues, sometimes non-cancerous and cancerous. It all depends on the particular contaminant you are talking about. So what I can do is after the hearing provide a breakdown of each of the contaminants and the various health impacts, based on the level of exposure. Mrs. Capps. I would appreciate that for the record, but I think that there is a sense of urgency that we get something done, because these are very serious health threats. We need to address them in a good piece of legislation because the lives of people in the area--surrounding areas depend on it. I will just turn to a little bit different way of asking a similar question. In your proposed rule for coal ash disposal, EPA identified three main pathways of exposure to these contaminants. First, leaching from unlined units, second, direct uncontrolled discharges in the case of a structural failure of an impoundment, and third, fugitive dust emissions. So, to further the record, would you discuss, please, some of the primary public health and environmental impacts that these three types of coal ash exposure can create? Mr. Stanislaus. Well, those are the exposure pathways, so those are--those identify how a person would be exposed. Mrs. Capps. Right. Mr. Stanislaus. And so the various categories of health consequence would occur from that exposure, be it developmental, non-cancer, or cancer. So you can have different kinds of health impacts, depending on whether it is inhalation, whether it is ingestion. Mrs. Capps. Right. Mr. Stanislaus. So I don't have that breakdown, but I can provide it. Depending on the pathway of exposure, the particular contaminant and the kinds of health impacts, I can provide that for the record. Mrs. Capps. So am I right then in drawing the conclusion that there are multiple kinds of exposure with kinds of multiple serious health effects, because some of it is from the dust, some of it is from the discharge, some of it is from leaching. I mean, different ways that it can enter the environment that a person's health can be directly affected by it, would that be a fair assessment? Mr. Stanislaus. That is correct. If it is improperly managed, you can be exposed in multiple different ways, so if you don't have effective controls of dust, you could inhale it. If you don't have effective controls of leaching, it could get into the groundwater and you could drink that. So it could be multiple and different, depending on whether it is managed well or not. Mrs. Capps. Thank you. And finally, I want to follow up on the storage liners issue. My question is, will any kind of liner work to prevent leaching, or are there certain technical specifications that must be met? Mr. Stanislaus. Well clearly, it depends on the type of liner and then also ensuring that the liner is within a management framework, meaning a monitoring program and oversight program. Mrs. Capps. So it is not--and first of all, not any kind of liner will work, it has got to be some specified kind of liner. You don't have to go into the details here if you don't have that information, but there has been work to uncover and figure out what that kind of liner is? Am I correct? Mr. Stanislaus. There are industry standards in terms of-- -- Mrs. Capps. There are industry standards. Mr. Stanislaus. Yes, the nature and particular materials for that liner. Mrs. Capps. OK, so there has already been research done? Mr. Stanislaus. And implemented in certain parts of the country. Mrs. Capps. And implemented already, and studied to see if it is effective? Mr. Stanislaus. Yes, yes. Mrs. Capps. OK. Well, the conclusion that I draw is that there are some robust specifications already and I am led to conclude that these are very serious concerns, and I hope that my colleagues will work with these technical experts at EPA--I hope we all will--to ensure that we address each of these exposure pathways appropriately and sufficiently and have that be part of the legislation that comes so that the bill will have some teeth in it and it will be effective in finally addressing this particular challenge. And I am looking across the aisle, because this is going to take the efforts of all of us to make sure that these standards are met. I yield back the balance of my time. Mr. Shimkus. Gentlelady's time is expired. I would just say that in this draft is really the Senate bill from last year, which is changed from ours, so it does have the groundwater, it does have the dust, it does have the levy issues and standards. It also--and Mr. Stanislaus mentioned previously that the technical considerations--this is part of the Senate bill, so some of the observations is based on the old house bill, not this draft bill which is part of the Senate language. That is safe to say, I think. So I would like to yield, and I apologize to the gentleman from Ohio. He should have went previous to the gentleman from West Virginia, but I am just scared of the guy from West Virginia, so to recognize Mr. Latta for 5 minutes. Mr. Latta. Thank you very much, Mr. Chairman. I appreciate it, and I greatly appreciate your testimony today and welcome you before the committee. You know, having served in the Ohio General Assembly, I truly believe that the states really know their citizens need better than the Federal Government, and also the states also believe that we have got to protect not only our citizens' health, but also the environment, while at the same time ensuring job creation and growth, not only in Ohio, but across the country. Ohio currently requires permits for both coal ash landfills and surface impoundments, and have continuously worked to improve the requirements, including those for liners and groundwater monitoring. Additionally, the Ohio Department of Natural Resources has its own program to monitor and prevent impoundment failure. Because of the quality of the program, Ohio EPA considers the risk of catastrophic failure of Ohio coal ash surface impoundments to be low. As you can see, Ohio, like many other states, has quality coal ash management measures already in place, and I believe that the Coal Ash Recycling and Oversight Act of 2013 will allow them to continue this ability. If I could ask you this first question, given the measures that Ohio and other states have or are working on right now and are currently putting into place, do you believe the states have that ability to ensure proper management and disposal of coal ash under the proposed legislation? Mr. Stanislaus. Oh, absolutely. I mean, there are many examples. I don't know-- I can't tell you at this moment specifically about Ohio's program. There are many examples of states doing a really good job on coal ash management. There are also other situations where even the states would acknowledge that there are places where it has not been effectively managed. Even a state survey among state waste managers has concluded that there are areas that are not managed well. I can't talk specifically about Ohio's program. Mr. Latta. OK, well thank you. And to ask kind of a follow-up and as to other questions that the gentlelady from California was mentioning a little bit earlier about liners, and if I could ask a couple questions in regards of the EPA would like to discuss. Do you agree that the bill contains a provision for requiring liners? Mr. Stanislaus. Yes, my understanding that the bill does require a provision for liners, and again, my oral statement is that there are particular--one of them is where additional clarity as to how that will be implemented would be helpful. Mr. Latta. OK, and do you also agree that the bill contains a provision requiring groundwater monitoring? Mr. Stanislaus. Congressman, my understanding is that the bill would require groundwater monitoring. Mr. Latta. OK. Do you agree that the bill has a deadline for the installation of the groundwater monitoring? Mr. Stanislaus. Congressman, my understanding that there is a deadline for installing groundwater monitoring. Mr. Latta. OK, thank you. Do you agree that the bill includes all of the constituents identified by the EPA as being of concern for coal ash? Mr. Stanislaus. I believe that is correct. Let me verify, but I believe that is correct. Let me verify it and place a statement on the record. Mr. Latta. OK, thank you. Doesn't the bill set a timeline for meeting the groundwater protection standards for surface impoundments that are incorrective? Mr. Stanislaus. That is something I am not sure is clear, but let me---- Mr. Latta. If you could get with us on that, it would be great. Mr. Stanislaus. Yes. Mr. Latta. Do you agree that the bill requires control of fugitive dust? Mr. Stanislaus. It does have a provision for fugitive dust control, and again, it could be another area where further clarification of how it would be implemented could be beneficial. Mr. Latta. OK. Does the bill require financial assurance? Mr. Stanislaus. That is something I am not sure. Mr. Latta. OK, if you want to get back with us on that, we would appreciate it. And doesn't the bill contain location restriction for coal ash management and disposal units? Mr. Stanislaus. I think that is another area where I think it could be further clarified. It is a bit ambiguous to us. Mr. Latta. OK, and then with my remaining time, in your opinion, has the EPA developed a risk assessment that supports a determination that coal ash should be regulated under Subchapter C or Subtitle D--excuse me, Subtitle C or Subtitle D? Mr. Stanislaus. Yes, as noted earlier, there is substantial additional data that has been provided to us by multiple stakeholders that will inform our risk assessment, and so we are now in a position to move soon--will be, hopefully, to make that judgment. So based on that, it will inform the best management regime to safely address the risks that we have identified. Mr. Latta. Well thank you very much, and Mr. Chairman, I will yield back the balance of my time. If the witness could provide us with those answers, I would appreciate it. Mr. Stanislaus. Sure. Mr. Shimkus. Gentleman yields back his time. The chair now recognizes the gentleman from California, Mr. McNerney, for 5 minutes. Mr. McNerney. Thank you, Mr. Chairman. I certainly wouldn't want to live downstream of a coal ash waste disposal site, but the conflict seems to be between federal authority and state authority, and the question I have is some states are going to do a good job. Some states may not do as good a job. If a site is leaking and poses a danger to the people in the groundwater, et cetera, does the EPA have sufficient authority in this bill to go in and take steps to remediate the situation? Mr. Stanislaus. Well as I understand, the program would require the states to set forth a permit program and then implement the permit program to oversee that. In terms of EPA as well, that is one of the areas I noted earlier that can be further clarified as to under what circumstances it could play a role in the oversight. Mr. McNerney. So basically you are saying that there is not--it is not sufficiently clear in the proposal what is--when the EPA should and can step in? Mr. Stanislaus. Yes, it can be further clarified, and we are willing to provide technical assistance on potential areas of clarification and some analogies to other programs that we have had that role and where we work in partnership with the states to do that. Mr. McNerney. Is that something that the EPA is working with this committee to try and clarify the language? Mr. Stanislaus. We can, absolutely. Mr. McNerney. Mr. Chairman, is that something that you are looking forward to doing? Mr. Shimkus. If the gentleman would yield, I would say that the discussion draft addresses ponds that are unlined and leaking, and the bill requires unlined leaking impoundments to meet groundwater protection standards within a certain time period, or close. Is that correct? Mr. Stanislaus. Yes, there are closure requirements, and again, they could be further clarified as to the timeline and what is the trigger for closure. Mr. McNerney. So regaining my time then, in an emergency situation, would the EPA have the authority to go in and take the steps that are necessary to remediate the danger? Mr. Stanislaus. Yes, again, under the legislation that is an area that could be further clarified in terms of EPA's role, and clearly, there are situations where there is imminent substantial endangerment, under our authorities, we can and we have gotten involved to address those emergencies. Mr. Shimkus. So the answer is yes is what he is saying. Mr. McNerney. It didn't sound like yes to me, Mr. Chairman. Now, the EPA doesn't have the authority--moving to the planning and design stage, to impose design standards, is that correct? Mr. Stanislaus. My understanding of the draft framework is that it will be up to the states to determine the details regarding that through their permit program. Mr. McNerney. Do you--you used the word ``encapsulated'' several times in your oral testimony. Could you explain what that means? Mr. Stanislaus. Sure. It simply means in the beneficial use world, coal ash can be beneficially used in circumstances where essentially it is fixed, like in wall board, like in concrete, and there are other areas where it is not fixed, fill operations as an example, agricultural use. So there are a variety of areas of its utilization, so in terms of developing methodology, addressing how it is safely used, we have to look at how it is used and not just the methodology currently developed, and with the first set of methodologies to be encapsulated, and we anticipate that to be issued in the fall. Mr. McNerney. Well then encapsulated means commercially viable encapsulation. It doesn't mean encapsulated specifically for the purpose of disposing it safely? Mr. Stanislaus. Yes, I use that terminology not relating to the disposal regime, as it relates to just beneficial use. Mr. McNerney. Now some toxic wastes are encapsulated, say, in a glass container that won't leak for many thousands of years. Is that prohibitive in this case for coal ash because the volume is too big, or is there some way to encapsulate it so that it can be disposed of safely for generations? Mr. Stanislaus. Well, the framework for safe disposal is a combination of a lining system and a monitoring program, and we believe that can effectively address the risks that we have identified. Obviously, you have to look at also addressing fugitive dust or fugitive dust control systems as well. Mr. McNerney. So is that what you described, the lining, the groundwater monitoring, was that the 2000 proposal with the EPA? Was that included in that 2000 proposal? Mr. Stanislaus. Those elements were included in that. Mr. McNerney. OK. Thank you, Mr. Chairman. Mr. Shimkus. Thank you. Chair now recognizes the gentleman from Ohio, Mr. Johnson, for 5 minutes. Mr. Johnson. Thank you, Mr. Chairman. Mr. Stanislaus, thanks for being with us today. Does CRCLA give EPA's authority the authority to address inactive or abandoned impoundments or units? Mr. Stanislaus. Generally CERCLA provides that if there's a threat from hazardous waste, its authorities can be used. I am not sure specifically where we used that in an impoundment scenario, but I can check and get back to you. Mr. Johnson. Inactive or abandoned? Not active ones, but inactive or abandoned. Mr. Stanislaus. Yes, let me check and determine whether we used that and whether we can use that. Mr. Johnson. If you could respond back in writing, that would be great. Mr. Stanislaus. Sure. Mr. Johnson. Also, Mr. Stanislaus, following Kingston, EPA inspected coal ash impoundments, some 600 of them, in fact, to make sure that they are structurally sound. You hired independent contractors who in the agency's own words are experts in the area of dam integrity. Do you agree with the findings of your staff that not a single coal ash impoundment was rated unsatisfactory and poses an immediate safety threat? Mr. Stanislaus. You know, I have to go back and look cumulatively of our postings, but we have done an assessment and we didn't believe there was a scenario where there was a threat of imminent failure, and it is a combination of looking at how it is designed, an inspection, and there was some recommendation to do some additional enhancements to prevent risk. Mr. Johnson. But none was rated unsatisfactory and none posed an immediate safety threat? Do you agree? Mr. Stanislaus. Let me check and put it on the record. Mr. Johnson. OK, if you could check and get back to us on that also. Do you agree with the findings of your professional staff as well that the owners and operators of impoundments with identified deficiencies have responded responsibly by submitting response action plans? Mr. Stanislaus. Yes, I will go verify that and place it on the record. Mr. Johnson. OK, so you can get back to us with all of that? Mr. Stanislaus. Sure. Mr. Johnson. Mr. Chairman, with that, that is all my questions. I yield back. Mr. Shimkus. Gentleman yields back his time. Chair now recognizes gentleman from Mississippi, Mr. Harper, for 5 minutes. Mr. Harper. Thank you, Mr. Chairman, and thank you for being here. I know this always fun, but we appreciate your time and expertise. These are important issues and we need to make sure we stay on top of this. You know, EPA has direct enforcement authority for municipal solid waste only when the agency determines that a state program is inadequate. The bill adopts essentially the same approach. Why is the approach not acceptable for coal ash? Mr. Stanislaus. Well, as I noted earlier, there is--there are provisions for EPA to review a state program, the state's implementation program. Further clarity as to how it will conduct its review and under what circumstance it could engage a state's improvement of that or take it over, that is where there is some ambiguity. Mr. Harper. OK. You know, EPA has suggested that it would measure the adequacy of existing state programs based on whether groundwater monitoring was required. The bill requires groundwater monitoring, as you were asked and affirmed earlier, for all structures that receive coal ash. That is correct, isn't it? Mr. Stanislaus. Well, I think what the bill states that it requires groundwater monitoring for facilities that receive coal ash after the effective date of the legislation. So one of the areas of clarification as to what are the universe that will be subject to the groundwater requirements? Mr. Harper. You know, EPA's proposed rule suggests the importance of having state coal ash permit programs address surface impoundments and require liners. The bill requires regulation of surface impoundments and liners for all new and expanded land disposal units, doesn't it? Mr. Stanislaus. I believe for those units that receive waste after the enactment date. Mr. Harper. OK. Mr. Stanislaus. That is correct. Mr. Harper. All right. Mr. Chairman, I yield back the balance of my time. Mr. Shimkus. Chair thanks the gentleman, and then the chair recognizes the gentleman from Louisiana, Mr. Cassidy, for 5 minutes. Mr. Cassidy. I yield back. Mr. Shimkus. That is the quickest 5 minutes I have ever had as chairman, and the chair thanks you. Seeing no other members, Mr. Stanislaus, thank you for your testimony. We are going to try to get you to yes a little bit clearer. I think we have made great progress since the last Congress, and we look forward to working with you and we thank you for your time. I would like to ask the second panel to join us. Mr. Stanislaus. Thank you, Mr. Chairman, and thank you, members. Mr. Shimkus. We would like to get started as promptly as possible, so we would like to thank the second panel for joining us. Many of you have been here before and seen the process. I will recognize you in order from left to right. I will do it, you will be given 5 minutes for an opening statement, and your full statement has been submitted for the record. We will begin. First I would like to recognize Mr. Robert Martineau, Jr., Commissioner from the Tennessee Department of Environment and Conservation. Sir, you are recognized for 5 minutes, and welcome. STATEMENTS OF ROBERT J. MARTINEAU, JR., COMMISSIONER, TENNESSEE DEPARTMENT OF ENVIRONMENT AND CONSERVATION; STEPHEN A. COBB, P.E., CHIEF, GOVERNMENTAL HAZARDOUS WASTE BRANCH LAND DIVISION, ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT; SUSAN PARKER BODINE, PARTNER, BARNES & THORNBURG, LLP; LISA EVANS, SENIOR ADMINISTRATIVE COUNSEL, EARTHJUSTICE; AND JACK SPADARO, MINE SAFETY & HEALTH AND ENVIRONMENTAL CONSULTANT STATEMENT OF ROBERT J. MARTINEAU, JR. Mr. Martineau. Thank you, Mr. Chairman, and thank you to the committee for the invitation to be here today to discuss the issues about coal ash combustion and the legislation. I am here today representing the Environmental Council of State, or ECOS, whose members are the leaders of state and territorial environmental protection agencies, and my own State of Tennessee. Currently I serve as the--on the executive council of ECOS as secretary/treasurer. The incident that occurred in Kingston, Tennessee, in 2008 obviously made coal ash management an issue of national attention. I am here today to talk about the position that the states have on collectively--on how to best move forward with regulation of coal ash. ECOS adopted a formal resolution on this issue, first passed in 2008, and reaffirmed last month at our spring meeting. I have attached that to my written testimony and ask that it be made part of the record. In short, our ECOS resolution agrees with the multiple studies that EPA has conducted over many years and three administrations, that coal ash is not a hazardous waste and should not be regulated as such. ECOS also agrees with EPA's 2005 finding that the states should continue to be the principal regulatory authority for regulation of coal ash. We recognize that there are some significant beneficial reuses for coal ash, and we support those. While some may suggest otherwise, regulation of coal ash as a hazardous waste would have an extreme chilling effect on the beneficial reuse of coal ash in concrete road bed material and other uses. While we believe the states are the appropriate regulatory authority for coal ash, we also recognize there is some benefit for a national consistency approach. Therefore, ECOS has supported the bipartisan efforts of the House and Senate in the last Congress to create a federal program that allows states to regulate coal ash management and disposal under a set of federal standards created directly by Congress and implemented by the states. This is a new and thoughtful approach in regulation. ECOS sees this approach in this bill as a new path forward for federal involvement in some of the environmental challenges we face. We live in an era of constrained resources in government at both the federal, state, and local level. Challenges like coal ash would benefit from a new partnership model between the state and the Federal Government. The discussion bill today sets standards that protect human health and the environment, and provides the states the opportunity to implement, enforce, and supplement the standards that are most applicable for each state. If a state chooses not to implement the CCR program, then EPA can and will. States can ask for technical assistance from EPA, should they need it, and EPA is required periodically to assess and evaluate the states' implementation of those programs. If necessary, EPA can assume control of any state program if the state is unsuccessful in implementing those standards. Because the bill does not require EPA to promulgate the rules, but creates the standards directly in the legislation, there are fewer delays in the program's startup, and there is an additional savings to the Federal Government. Obviously, any new proposed partnership in management of coal ash is subject to constructive criticism. I would like to briefly address a couple of the criticisms identified in the Congressional Research Service report. First, the report noted that last year's bill lacked a time table for implementation and other deadlines. While there are a number of time tables for closure and groundwater monitoring upgrades in the statute, there are a reasonable well-defined schedule for the states to actually adopt the rules as necessary and develop the permit programs. It would certainly be reasonable. States are used to dealing with that as they implement other federal programs. This time table would allow states to pass state rules, set up their regulatory programs, or supplement the ones they already have to get the permit program up and running to the extent they don't have one. Second, the CRS report also implied that a lack of direct EPA enforcement authority would make it less likely for the states to implement a program. I think that is simply contradicted by the record. ECOS has gone on record saying that they desire to run the--regulate coal ash at the state level. It is certainly not the case for Tennessee, and I don't think it would be the case for any other states. A third criticism in the standards is that you can only set these kinds of standards through promulgation of rules. We believe Congress can create the basic standards for coal residual management, and the references to some of the existing regulatory requirements under part 258 are already set forth in the standard and would be encompassed in setting forth the basic criteria that states would have to implement. Obviously, states can choose to do more if they need to do so to address particular geographic or other conditions in the state. Lastly, there is skepticism that EPA will be able to judge the states' performance on coal ash programs that would be created by this bill. EPA has been judging state air, water, and waste programs for 40 years through the delegation of programs. ECOS continues and the state agencies continue to interact with EPA every single day on the adequacy of their programs, and I don't think this program would be any different. The key is not to judge whether a state would implement the program exactly as EPA would, but whether the state has created an effective program for regulation that is consistent with the statute. A state must certify in detail to EPA that it has the equivalent statutory and regulatory authority to operate its CCR management and disposal program, including permitting, inspections, monitoring, review of site data, and enforcement. If the state falters, EPA can warn it. If the state fails, then EPA can take the program. This is the same authority that EPA has with all other delegated state programs. I will close with a quotation from the March CRS report that I think is accurate and appropriate here. ``That a coal ash regulatory program would be created using a new approach does not mean that it cannot achieve its intended purpose. The bills would establish a framework that could be used to create programs to regulate CCR disposal, allow states flexibility to develop and implement the CCR management and disposal programs, and specify some level of EPA oversight after states are implementing the program.'' We concur with that view, that this is a new approach, and that we think will work well to serve the public. Thank you. [The prepared statement of Mr. Martineau follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Mr. Shimkus. Gentleman yields back his time. I want to thank you for your testimony. Now I would like to recognize Mr. Stephen A. Cobb, Professional Engineer, Chief, Governmental Hazardous Waste Branch Land Division of the Alabama Department of Environmental Management. Sir, welcome, and you have 5 minutes. STATEMENT OF STEPHEN A. COBB Mr. Cobb. Thank you, Mr. Chairman. Chairman Shimkus, Ranking Member Tonko, honorable subcommittee members, my name is Stephen Cobb and I represent the Alabama Department of Environmental Management, or ADEM, which is the environmental regulatory agency in the State of Alabama. Thank you for the opportunity to address the subcommittee this morning. My remarks are based on ADEM's more than 30 years of implementing programs for the management of solid and hazardous waste in the state, including my personal experience in this area over the last 25 years. I have also submitted a more detailed statement for the committee's consideration. Alabama is home to one of the largest hazardous waste disposal facilities in the Nation, and we have extensive experience managing higher risk waste. We clearly understand that a massive influx of lower risk solid waste such as coal combustion residuals into the hazardous waste classification would pose a threat to the level of attention needed for the safe management of all materials classified as hazardous waste, and also understand the challenges and resources required to permit and inspect such facilities. Alabama is also home to 29 medium to large municipal solid waste, or MSW, landfills, so we also have a very good understanding of the protections that are provided by the MSW landfills under 40 C.F.R. part 258, to ensure safe waste management, to prevent future releases, and to require corrective action to address past releases where needed. As a result of having both types of facilities, we have a unique perspective on the issues which should be taken into account in considering how best to regulate materials such as CCRs. EPA has attempted to resolve the regulatory status of CCRs since the early '80s, but its difficulty in doing so may be attributed to two facts. First, CCRs generally do not meet the established criteria for classification of hazardous waste under Subtitle C, and second, there is no provision under Subtitle D for a national permitting program for these materials as nonhazardous solid wastes. The enactment of new Section 4011 as described in the discussion draft will solve this problem by requiring the CCR structures be designed and permitted pursuant to national standards under Subtitle D, the same standards used for MSW facilities. We must be aware of the tiered method by which waste has been regulated and controlled for the last 5 decades, which imposes restrictions commensurate with the risk of permanent harm to human health and the environment posed by mismanagement. Looking at this system from the highest risk materials down, we see nuclear rated electrical waste at the top, followed by hazardous waste, municipal solid waste, industrial waste, construction demolition, and other wastes such as yard trimmings at the bottom. Of these categories, only municipal, hazardous, and nuclear radiological waste are currently subject to federally mandating permitting and management requirements, with the remainder addressed effectively through the jurisdiction and authority of the individual states. To include CCRs in the hazardous waste category would pose a risk of neglecting the wastes that are currently classified as hazardous, due to the massive expansion of waste quantities caused by including CCRs in the category. For example, about 120,000 tons of hazardous waste are land disposed in Alabama each year, compared to approximately 4 million tons of CCRs that are generated within our state annually. Congress can look to the fact that Alabama and other states have routinely adopted and implemented those programs that are required and authorized by federal law as clear evidence that we will appropriately implement the national CCR program. In fact, in anticipation of first national standards for these materials, our legislature in 2011 authorized our agency to develop and adopt rules as necessary to implement a state regulatory program consistent with the federal requirements. As a safeguard, there is a role for EPA to evaluate our implementation of the permitting program, and to demand changes if the state program is not meeting the national requirements, as well as for EPA to take over implementation of the permitting program if the state does not do so. In conclusion, Mr. Chairman, ADEM stands ready to implement a comprehensive permitting program for CCRs in Alabama, based on national standards, so as to ensure that these materials are properly managed now and into the future, but we must do so in a manner that provides the needed protections, can be implemented quickly and efficiently by the states, does not disrupt the established tiered system of waste management in this country, and does not result in needless duplication and proliferation of regulations and regulatory programs. Thank you again for the opportunity to address the committee this morning. I will be glad to answer any questions you might have. [The prepared statement of Mr. Cobb follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Mr. Shimkus. Thank you, Mr. Cobb, and I would like to recognize Ms. Susan Parker Bodine, who is a partner with the law firm of Barnes & Thornburg. You are recognized for 5 minutes. Your full statement is in the record. STATEMENT OF SUSAN PARKER BODINE Ms. Bodine. Thank you, Chairman Shimkus---- Mr. Shimkus. I think there should be a button underneath-- there you go. Ms. Bodine. I think I would remember that. Chairman Shimkus, Ranking Member Tonko, members of the subcommittee, thank you for inviting me here today to testify on the Coal Ash Recycling and Oversight Act of 2013. As the chairman said, I am a partner in the firm Barnes & Thornburg. I am here to testify based on my understanding of RCRA, Research Conservation Recovery Act, and its implementation, and that is from my past experience as being the Assistant Administrator for the Office of Solid Waste and Emergency Response from January, 2006 to January, 2009. So I can understand the situation that the agency is in, but I also understand the prerogatives of Congress and certainly the role of Congress in developing regulatory programs, because before I was at EPA, I was working in this building for 11 years over on the Transportation and Infrastructure Committee staff. So I can bring both perspectives to bear here. But first, I want to talk about EPA and development of regulations. As I think some have already noted, EPA has been looking at coal ash management issues, and any risks that might be associated with that for, you know, let's just say 30 years, a long time. And in that time period, EPA has not developed a record that supports federal regulation of coal ash. I will go into--that is not the agency's fault, but they simply have not developed a risk assessment and the record to support it. They have acknowledged that back in 1998. This risk assessment was done before the report to Congress in 1999 and the 2000 regulatory determination. EPA said that--this is a quote--``EPA found that modeling uncertainty and error may have led to substantial overestimation of risks.'' That was in the '98 risk assessment. Again, if they didn't stop work on this issue, and continued to work on the risk assessment, continued to make changes to it, sent it out for peer review in 2008. Again, didn't--the agency still did not fix the problems that had been identified, and the peer reviewers pointed out many of the same problems and EPA acknowledged those issues. And there is a 2009 response to the peer review that is in the docket for the rulemaking that is pending, and that 2009 response says--and this is a quote--''EPA acknowledges that the leaching profile described by Dr. Basta may be more realistic, however, the agency does not have the data to use time variant leaching concentrations.'' And what that means is that EPA assumed that whatever--that there is no attenuation of any hazardous constituents if anything leaches out of a landfill. One hundred percent of the constituents they say would leak out at 100 percent level. Same issue, again, a quote from the peer review, ``EPA acknowledges there may be insoluble or otherwise unleachable contaminant mass that remains in a waste management unit, however, EPA has no data available, again, to support a different approach.'' They are assuming 100 percent moves out of a landfill or a surface impoundment, because they have no data to assume otherwise. The agency is now--they are saying that they still want to fix the risk assessment. We do have a proposal out there, but the agency is saying they do still want to fix it. They are now pointing to data that was collected by the Office of Water when they were looking at revising Clean Water Act regulations, and in filings before the District Court for the District of Columbia, the agency has said that this new data may change the assessment of risk by an order of magnitude. You heard Mr. Stanislaus say just a few minutes ago that they are not in a position to make a judgment on risk, and yes, that is right. The risk assessment hasn't changed and has the assumptions that are very conservative. The bill takes an approach that takes the EPA out of its box. They are in a box. They don't have a record to support regulation. By prescribing the standards in the legislation directly, they don't have to justify a rule, they don't have to justify standards based on risk. I heard Mr. Stanislaus say to you that they would like to provide technical assistance for criteria tailored to specific risks. Again, they don't have a risk assessment that can do that kind of tailoring, but the bill allows them to then go ahead and implement the program without creating those justifications. As I think you pointed out, Mr. Chairman, the provisions of the legislation are based on provisions that the agency has already said are protective. You were asking Mr. Stanislaus to quote from his Federal Register preamble, and it does say that the part 258 criteria present a reasonable balance between ensuring protection of the human health and the environment, and the practical realities of facilities' ability to implement the criteria. So they have endorsed that and you have also picked up the structural integrity issues and the fugitive dust issues. So what my message to you is that--and actually, my message to the agency is they should embrace this because it gets them out of a regulatory box and allows you to move forward, which we have heard from other members saying let's move forward and address these issues, and let's do it. Thank you. [The prepared statement of Ms. Parker Bodine follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Mr. Shimkus. Thank you very much. Time is expired. Now I would like to recognize Ms. Lisa Evans, Senior Administrative Counsel from EarthJustice. Thank you, and your full statement is in the record. You are recognized for 5 minutes. STATEMENT OF LISA EVANS Ms. Evans. Thank you very much. Chairman Shimkus and members of the committee, I thank you for having me here to testify on this very important and very controversial draft discussion bill from Representative McKinley. I am Lisa Evans, Senior Administrative Counsel for EarthJustice, a national nonprofit public interest law firm dedicated to defending the right of all people to a healthy environment. On behalf of many public interest groups, thank you for holding the first legislative hearing on this complex bill. I am hopeful that his hearing will clarify the discussion draft's contents, including the very significant criticisms and questions by two recent CRS reports. I am also hopeful that we can find common ground on this critical public health issue, as well as common ground on the objectives of any coal ash legislation. Without a doubt, when mismanaged, coal ash harms Americans nationwide by poisoning water and air and by threatening the very existence of communities living near high hazard dams. We must work together to establish regulations that, foremost, prevent injury to health, and ensure the safety of all communities, but which also allow for safer use of coal ash that improves our economy, environment, and again, our health. I trust that all in this room share this goal. In that spirit, I offer these comments. While the bill at issue raises many important questions, the following four are among the most critical to understanding the problems with the bill. First, does the bill establish a national protective standard and federal minimum requirements? In other words, will the bill require every state to implement coal ash programs that protect the health of all the residents? The CRS report twice says no. The bill cannot guarantee consistent national protection, and we agree. CRS points to the absence of a national protective standard, which is unique among federal environmental laws. This approach is not just new and unprecedented, it is inadequate. According to CRS, the failure of the bill to require the protection of human health and the environment, and to define key terms renders it impossible for the bill to guarantee that all states will implement consistent and health protective programs. Why is this so important? Currently, our Nation is a patchwork of widely different state programs, as Representative McKinley has pointed out. Tennessee and Alabama, for example, lack many basic and needed safeguards for the management of coal ash dams. To ensure full protection for the citizens of those states where there is considerable disproportionate impact on communities of color and low income communities, the bill must contain a national protective standard and minimum federal requirements. We agree with CRS that this bill has neither. Secondly, does the bill provide EPA with backstop authority? In other words, does the bill provide EPA with clear and effective oversight to ensure that all state programs protect Americans from mismanaged coal ash? Again, the CRS reports twice say no, and we agree. According to CRS, the bill contains no backstop authority as that term is commonly understood. Pursuant to this bill, backstop authority can only be exercised when states fail to implement the co-called minimum requirements, but as CRS pointed out in two reports, the bill's requirements are so vague that there are, in fact, no minimum federal standards. In other words, backstop authority is meaningless without a clear set of standards and deadlines that EPA can use to determine whether a state program is deficient. The CRS reports clearly say that the bill doesn't provide that criteria. Further, this bill deliberately and effectively removes most of EPA's authority over coal ash. EPA cannot take immediate enforcement action if a state fails to act. EPA cannot evaluate the adequacy of state programs before their implementation, and EPA cannot promulgate regulations where they are needed to protect health and the environment to reflect the increasing toxicity and changing nature of ash. Third, will the bill protect the Nation's drinking water? No, it will not. The bill's failure to phase out unlined ponds, its failure to set deadline for the permitting of dumps, its failure to require closure of polluting sites by a date certain, and its failure to ensure that all dangerous dumps are monitored will leave our water at risk of continued poisoning by arsenic, hexavalent chromium, lead, mercury, and more. Fourth and finally, will the bill prevent another catastrophic disaster? No, and yet I think all would agree that any bill must ensure that the earth and dams holding back millions of tons of toxic waste be made safe for all the communities unfortunate enough to live beneath them. I speak for many in the public interest community when I say that we, too, want an immediate end to the delay of the EPA's rulemaking, but any rule or any bill foremost must protect public health and safety. Together, we can and must end the longstanding serious threat thousands of communities living near unsafe, unstable, and leaking coal ash dumps, because every person in this room, every family in your districts, every citizen in this country deserves water free from ash contamination, air free of dust, and a safe and secure community. I appreciate the opportunity to comment, and I look forward to questions. Thank you. [The prepared statement of Ms. Evans follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Mr. Shimkus. Thank you. The last testimony we will receive is from Mr. Spadaro, who is a mine safety and health environmental consultant. Mr. Spadaro, I understand you are going to show some slides in your testimony, is that correct? Mr. Spadaro. Yes, I am. Mr. Shimkus. We would just on the record, as we have submissions, you know, in a certain amount of time, when you have slides if we could see those in the same timely manner on the submission, that just makes it easier for us, too. So that is actually part of your testimony and we should have received that 48 hours in advance, too, but we are happy to, with asking for unanimous consent, to allow you to have the slides shown. So with that, I recognize you for 5 minutes. STATEMENT OF JACK SPADARO Mr. Spadaro. Thank you. I will try to show these as I go so we will save time. I just want to thank you for inviting me here today, and for allowing me to make these comments. I have been involved in the regulation of dams related to coal mine waste since 1972, when I went down to southern West Virginia as a young engineer to investigate the Buffalo Creek dam failure, where 125 people died and about 4,000 people ended up having their homes destroyed by the failure of a dam that had not been engineered properly. Then after that time, I have worked for really in the past 40 years in regulating both the environmental effects of mining, and the mine health and safety regulations at both the federal and state levels. The management and disposal of coal ash is an issue with serious health and safety implications that warrant federal action to protect the communities living with this waste, particularly to ensure the structural integrity of more than 1,000 coal ash dams across the country. In the draft discussion, there is just a mere mention, really, of the standards necessary to address these threats. The language is something vague, like good engineering practices. Well--and I am going to show here in a minute the after-effects of the dam failure at Buffalo Creek, and several others. So when I went to Buffalo Creek and spent almost a year there, I was there--I went in about a week after the dam failed and then I worked with a committee that was appointed by the governor of West Virginia and their very first conclusion read this way, ``The lack of definitive, clear-cut, and enforceable laws with regard to the safety of mine refuse banks and impounding structures, both at the federal and state levels, was a major shortcoming that contributed to the disaster.'' Now I want to show, if we can, the first photographs of the Buffalo Creek dam failure. [Slide shown.] This is how destructive one dam failure can be. In this failure, the structure was about 60 feet high, contained 125 million gallons of coal slurry, and it failed in a matter of 15 minutes because there were no engineering standards in place. So after that, I was honored to work with the--we can go on to the next slides. [Slide shown.] I was honored to work both at the state and federal level in writing regulations that could govern these structures, and so we, over time, developed under the Code of Federal Regulations under the Surface Lining Act, under 30 C.F.R. 816.49, 816.81, 816.83, and 816.84 standards that have been in place since 1977. That was for the Federal Office of Surface Mining, and states then implemented those regulations. We also have, since 1977, federal standards that are enforced by the Mine Safety and Health Administration, and that is under 30 C.F.R. 77.214 through 77.216. Unlike the discussion draft, the OSM and MSHA regulations require specific recognized engineering standards to be applied to the planning, construction, and maintenance of coal refuse dams and do not merely leave the design and maintenance criteria to an independent contractor. [Slide shown.] The failure that you see now on the screen was the Martin County dam failure that occurred in October, 2000. That was a failure where a dam had been repeatedly certified by an engineer who was a contract engineer for the company who owned the dam, and then there is a similar failure that occurred as recently as past December, 2012. The engineer who had repeatedly certified that dam was safe was standing on top of the dam when it failed. So the EPA's studies have shown that there are--the structures study, there are at least 25 percent of them were in poor conditions. They did recommend urgent action to stabilize those dams. Fifty-four of the significant hazard dams were rated poor, and less than half of all the dams received a satisfactory rating. I want to say to you, I have seen, as you have seen here, the result of inadequate and irresponsible regulation of coal refuse dams, and these catastrophes that I hope never to see again, and I shall never forget the bodies of the people that I saw wrapped in the coal slurry in the weeks following the Buffalo Creek dam failure, and hearing the voices of the survivors who had lost their families forever. Thank you. [The prepared statement of Mr. Spadaro follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Mr. Shimkus. Thank you, sir, for your testimony. I am going to ask unanimous consent that Mr. Hall be recognized for the first 5 minutes. Mr. Hall. Thank you, Mr. Chairman. Mr. Shimkus. Without objection, the gentleman is recognized. Mr. Hall. Thank you very much, and it is very important to take--I thank you for it. It is--you make your usual request that we can submit letters in the future? Mr. Shimkus. I have not made that statement yet, but without--with unanimous consent, people are--we will keep the record open for 5 days to receive questions and responses as per--10 days? Ten days. Without objection, so ordered. Mr. Hall. Thank you. I yield back. Mr. Shimkus. Shoot, I could have done that, Ralph. Now I would like to recognize Mr. Tonko for 5 minutes. Mr. Tonko. Thank you, Mr. Chair, and let me thank the witnesses for their testimony. The proposal before us would establish an unprecedented regulatory structure wherein the specific technical requirements for coal ash disposal would be set in statute. I have serious concerns about that approach, not the least of which is the burden it puts on this committee to determine the appropriate technical specs for safe disposal. In order to better inform the subcommittee, I would now like to ask some of the same questions of this panel. Mr. Spadaro, you are an engineer with very compelling evidence that you offered with the photos that you have displayed. Your experience in determining what criteria are necessary to assure the structural integrity of waste impoundments is telling, I am concerned that this proposal will not require impoundments to be designed for the full volume of liquid they will hold, and will not require the operating criteria currently applied to coal waste impoundments. So are those concerns justified? Mr. Spadaro. Yes, sir. Mr. Tonko. And do you agree that the proposal before us is deficient on structural integrity? Mr. Spadaro. Yes, it is remarkably deficient. I can't believe that 40 years after the Buffalo Creek dam I am reading legislation that basically foregoes standard geotechnical practice that has been applied to dam construction for the past, really, 50 years. And so this bill is deficient in applying those standards. Mr. Tonko. Now you have shared some very telling photos, but can you give a few brief examples of those deficiencies? Mr. Spadaro. Yes. As I said, the rate--both the Surface Mining Control and Reclamation Act, and the Mine Safety and Health Act of 1977 were very specific in stating that standards should be established in the federal regulations through the regulation process, so I, as I said, I worked on the team of engineers and hydrologists who put together those regulations. We had input from the Corps of Engineers, the Soil Conservation Service, the engineers from within the specific agencies, and those people had the knowledge to determine what needed to be put into the regulations. One of the main things is the requirements for foundation investigation, engineering analysis of the foundationaries of dams, engineering analysis of the seepage patterns that the dams might create, and the geologic conditions in the areas where the dams are being constructed. Also, standards for compaction of the material, and daily inspection standards under the MSHA standards, and quarterly inspections by federal inspectors, as well as the certification by the corporate engineer. So you have a checks and balance system where not just one person is saying the dam is safe. And that has worked by and large very successfully. There are 650 coal refuse dams in the United States. We know of several failures, but I can assure you, without these standards, there would have been many more. Mr. Tonko. Well, I think this is something that could be addressed by delegating rulemaking authority to the EPA to establish criteria that would meet a standard of protection, and rather than rescuing EPA as an agency, as has been suggested, it seems as though the concern should be with individuals, families, and communities that could be severely impacted. Mr. Spadaro, if we had to lay it out in statutory terms, what are the minimum requirements in your view that should be included here to prevent another spill like that which happened in Kingston? Mr. Spadaro. Well, I do recommend that the regulations be developed by EPA, and not just EPA, but a team of agencies with the expertise, as well as with input from industry. So I think the minimum standard would be that the dams be built using initially, and requiring initially, an evaluation of the stability of the foundation, the stability of the dam as it is being constructed, instrumentation of the dam with pisometers and slope inclinometers that can detect movement, minimum standards for compaction material, and minimum hydrologic standards, for instance, establishing design storms. We found in West Virginia we had to design many of the dams for the probable hydrologic consequences, the probable maximum storm, because there were large populated areas downstream. So you have to account for very large storms, as well as the structural integrity of the dams. Those things, at a minimum, should be included in any proposed regulations or legislation. Mr. Tonko. Thank you, Mr. Spadaro. Thank you, Mr. Chair. I yield back. Mr. Shimkus. Gentleman yields back his time. Mr. Spadaro, not a question, but a comment. I was 12 in 1972, and I would hope engineering qualifications and standards have improved so much in the multiple decades, and that is why we trust the states to be able to figure that out. The other issue was, you are talking about a coal waste dam. We are talking about coal ash impoundments. They are two different issues, and I just want to put that on the record. I want to start with Mr. Martineau. ECOS is who? Mr. Martineau. ECOS is the Environmental Council of State. We are essentially an organization of all my counterpart agencies. I am the commissioner of the Department of Environment and Conservation for Tennessee. The titles vary slightly, but we have 48 of the 50 States are members---- Mr. Shimkus. And the two who aren't, was I correct, Florida and South Dakota? Mr. Martineau. Florida and South Dakota. Mr. Shimkus. So New York and Massachusetts---- Mr. Martineau. Are all members. Mr. Shimkus. --California, and they all went on record with this resolution twice, is that correct? Mr. Martineau. Yes. Mr. Shimkus. Without objection? Mr. Martineau. I believe it was unanimous. Yes, it was unanimous. Mr. Shimkus. Unanimous? California, Massachusetts, which I think is telling, and I think that is the importance of your organization, and I just wanted to make sure we have that on record. The other thing--and I am--what is important, part of this whole debate came about because of this, beneficial reuse. And in the state of California, there were adds about concrete use that had fly ash, and they were targeting that reuse, and the whole reclassification. And for my colleagues, some of whom are new on this subcommittee, the importance is if we then turn this all into a toxic waste dump, you have got--and Mr. Cobb, I think your testimony talks about where do we put it and how do you manage it? So I just want to tie that into this debate, because we are now getting into the nitty gritty, but there are some macro parts of this debate, and that is why many of us think this is a great, actually, environmental response to get beneficial reuse and ensure that that occurs, which keeps our ability to place things in landfills in a limited amount. Mr. Martineau, as an experience state regulator, do you think states are able to interpret the minimum program requirements in the bill to provide a permit program that is protective of human health and the environment? Mr. Martineau. Yes, I do. Mr. Shimkus. What about this dam debate that we just had? Mr. Martineau. I think dams are obviously in context well beyond coal ash disposal sites, but the structural integrity of dams, I am not a dam expert--d-a-m--but those things are evaluated by states. I mean, EPA you heard earlier, they themselves went and looked at the 300 coal ash disposal sites and saw no immediate hazard, so I think---- Mr. Shimkus. No immediate hazard, and the EPA went on record as saying that? Mr. Martineau. Yes, I believe that was---- Mr. Shimkus. That was the testimony, yes, sir. Mr. Cobb, as an experienced--I mean, back to you, Mr. Martineau. The draft legislation sets forth detailed federal requirements that would establish a baseline for coal ash management across the country. Do you believe the requirements set forth in the legislation will ensure that states develop effective environmental protective permit programs for coal ash management? Mr. Martineau. Yes, I believe they do. I think the discussion draft, the Senate version from last year covers the key elements of program for groundwater protection, for closure requirements, for structural integrity, and other requirements. And the thing it adds, which the Subtitle D program does not have, is that permitting program, and then it provides that states have to certify the completion of those requirements to EPA, and they can evaluate those. Mr. Shimkus. Thank you, and Mr. Cobb, I wanted to ask, as another experienced state regulator, do you think states are able to interpret the minimum program requirements in the bill to develop a permit program that is protective of human health and the environment? Mr. Cobb. Absolutely, Mr. Chairman. Quite frankly, that is what we do. We implement regulatory programs. We interpret---- Mr. Shimkus. You mean, you can do it without the EPA coming in? Mr. Cobb. I have confidence that we can, yes. Mr. Shimkus. You are not so diligent--I mean, you are concerned about your state's citizens, and that is the job that you have, is that correct? Mr. Cobb. That is correct, because in addition to having the job of protecting human health and the environment, we also have the added incentive that we and or families and our friends live in these communities, so we have a vested interest. Mr. Shimkus. And if there is, obviously, abuse, which I think some people fear, don't you think that the public would be aghast and may want to take retribution on politicians and those who have been appointed as commissioners of the environmental activities and throw them out of office? That is a political question. The answer is I would hope that response would be much better and the public would be outraged. Ms. Bodine, when you were at the EPA, what was the prevailing view about coal ash regulation? Ms. Bodine. As I talked about in my testimony, EPA didn't stop looking at coal ash with the 2000 regulatory determination, because, in fact, the determination said that Subtitle D regulations were warranted. But as I pointed out in my written and in my oral statement, the agency didn't have a risk assessment to support regulation. So the agency--we continued to work on the risk assessment and we continue to gather information, and did a report, an updated report on practices in the industry with Department of Energy, and also received a petition from environmental groups, received a voluntary plan from the industry. And we had a lot of information and so we put out a notice of date availability in 2007 to make sure that the public and everyone knew what information the agency had. In preparing to release that, the staff briefed me on all the information that we had and that the agency had, and recommending that it all be put into the public record, which is what we did. But in that briefing, the consensus of the staff was that certainly not Subtitle C regulation was warranted, and the question being raised was given, you know, the information that was being developed, whether even Subtitle D regulation was warranted. Mr. Shimkus. Great, thank you. Now I am going to get this correct. I would like to recognize the new vice chairman sitting in, Mr. Green, for 5 minutes. Mr. Green. Thank you, Mr. Chairman. I am not vice chairman, in fact, this year--well, I am now because for the first time I can run the Democratic side. But last year I was ranking member on the subcommittee and learned much more about coal ash than I ever thought I would ever know. One of the--we drafted a similar bill that--and we got bipartisan support out of the House for--that said something similar to what this bill does, and I am hoping to be able to support it again, but I have some questions of each of you. For our state regulators, Mr. Cobb and Mr. Martineau, given your position, what do you think would be the consequences of having CCR program run through the EPA instead of the state-led program designed in the Majority discussion draft? Mr. Martineau. Well one, I think as Ms. Bodine has said, EPA has grappled with this for 30 years and not come up with any solution, and they are still grappling with it. They don't know if it belongs in Subtitle D. If it is a Subtitle C regulation, that would be a disaster. We will have chaos. We think the appropriate mechanism is, as the statute sets up for, that the states control, much like they do regulating landfills under Subtitle D. And the thing about the legislation is, we can move forward once it is passed, just begin that implementation at the state level. Mr. Green. Mr. Cobb? Mr. Cobb. Yes, and I would agree with Mr. Martineau's assessment there that one of the key differences is with the legislation, it addresses the policy issues, the other issues that have balled this whole issue up for 30 years. It charges the states with going forward with implementing a program, based on experience programs, so we get it implemented faster, we get the protections in place faster. It was mentioned earlier that it has been almost 5 years since Kingston. We still don't have a program in place. Mr. Green. Yes. I think, you know, one of my concerns is that--and again, I realize we had testimony last Congress that, for example, Wisconsin recycles 97 percent of their coal ash, and now-Senator Tammy Baldwin actually supported the bill in the subcommittee and the full committee and on the floor because of that, but we know we have some problems with coal ash. The issue of an old permit disposal in the Great Lakes I think needs to be dealt with, and the--but Mr. Martineau, one of the issues that brought coal ash up originally was the issue of the wet storage, and Tennessee had that disaster. Has there been anything Tennessee has done under current Tennessee law that would deal with the problems of the weak dams and so we wouldn't see that? Now we don't have that in Texas, but I know a lot of states still do have wet storage. Mr. Martineau. Well yes, and I think first to put it in context, that surface impoundment that was the main part of the issue at Kingston, you know, had been storing coal ash since the 1950s, so you know, there were no regulations, federal, state, local, any of those environmental statutes across the board, so there was a landfill. And we have gone back, obviously, after Kingston, and that was before my term as commissioner, but the regulations were upgraded after that to basically design would require new landfills to meet basically the Class II industrial landfill sites, which require-- collection, closure--cap closure like a traditional landfill. So yes, we definitely have upgraded the requirements---- Mr. Green. So Tennessee has done that since that disaster? Mr. Martineau. Yes. Mr. Green. Were you able to deal with any of the previously impoundments? Do you have any authority to deal with, you know, a dam that may end up being weak and you get folks downstream to be concerned about it? Do you have the authority to be able to deal with that? Mr. Martineau. Yes, we did, and we ordered TVA to do assessments of all the other coal ash disposal sites at their various power plants, and with EPA we looked at those and certainly would have the authority to upgrade those. And as you said, now going forward, for the landfill they basically have to meet the Class II industrial landfill closure standards. Mr. Green. Ms. Evans, I know you may have an opinion on that. You know, I would like to see--you know, coming from Texas it seems like it is in our blood that the states ought to deal with it, but if we are not dealing with it, then you know, it becomes a national issue and in this case, EPA I think has the authority, unless we set up a different structure, and that is what this legislation is about. What is your opinion? Ms. Evans. Well, I think the states have the ability to deal with this, but they don't always have the will. I think Tennessee and Alabama are lessons to us. Of course, we had the disaster in Tennessee in 2008, but following that, the Tennessee legislature did not change their statutes to address the structural stability of dams, and so it remains that structural stability requirements are not specifically applied to coal ash dams. And this is after the biggest toxic waste spill in the Nation. Also, I would like to correct the record regarding the inspection of dams, specifically in Tennessee with TVA. When TVA inspected its dams, it found that half of them required repairs to ensure structural stability, and those repairs are underway or completed now. As far as the EPA inspections, there were urgent repairs that were noted in the inspection records. And in West Virginia, the West Virginia DEP inspected one dam where it was deemed unsatisfactory and needed urgent repair. So the longer I sit next to Mr. Spadaro and hear him talk about his experience and what is needed, and knowing what is not out there regarding coal ash dams, it certainly scares me about what the states have not done. Lastly, in the case of Alabama, Alabama did--the legislature did address coal ash in 2011; however, they did not institute any regulations for coal ash ponds. Most of the waste in Alabama, I believe, is disposed in coal ash ponds, not landfills. Alabama legislature made their landfill regulations stronger. They did not change regulations applicable to dams. So what we have got here are states that are not ready to jump on this problem, solve the issue of disposal, and we may have a delay at EPA, but I am convinced that we are going to have a delay in state legislatures. And being from the very liberal State of Massachusetts, we can't even get our gaps closed in the State of Massachusetts, which we have been trying literally for 10 years with the bill and the legislature. Mr. Green. I have to talk to our colleague, Mr. Markey, about that. Mr. Shimkus. That is right. Mr. Green. Thank you. Mr. Shimkus. And I would just note, Massachusetts is a member of ECOS. I would like to recognize Mr. Latta for 5 minutes. Mr. Latta. Thank you very much, Mr. Chairman, and again, thanks to our panel for coming in today. We appreciate your testimony. If I could start with Ms. Bodine. Could I ask this question first? In your experience, what constitutes a standard of protection? Ms. Bodine. Thank you. This is a question that has been raised by CRS in the evaluation of legislation, and the CRS analyst appears to be saying that the only standard of protection that Congress can put forth is something like protection of human health and the environment. And that is simply not accurate. Congress can establish performance standards that are, in fact, standards of protection. And I also have to note that while many of the earliest environmental statutes did say to EPA go and protect human health and the environment, Congress hasn't passed legislation that is that open-ended in a very long time. And that spurs concerns on both sides of the issue. You have had people worried that the agency would go too far in that, and then people worry that the agency--giving the agency discretion to decide what is protecting human health and the environment, that they wouldn't go far enough. And so you have seen statutes that have prescriptive language, prescriptive standards. I would just point out the hazardous and solid waste amendments of 1984, Congress, at that time, decided they didn't like what the agency was doing to protect human health and the environment from hazardous wastes, and put in, you know, very prescriptive technical requirements into the statute. So yes, you can have technical criteria that are performance criteria, and that is a standard of protection. And that is in the draft legislation. Mr. Latta. Let me follow up with that. Do states also establish standard of protections for statutes, regulations, and programs that they implement? Ms. Bodine. So the answer to that is, of course, yes. I could defer to my state colleagues here, but I would just point out that they have been doing this for years. The states regulate far more than the Federal Government regulates. They have state solid waste management programs, beneficial use programs. They regulate more waste as hazardous than the Federal Government has, and of course, there is also regulation of coal ash. So in many areas, in many programs, states are establishing and implementing their own protective standards. Mr. Latta. Thank you. Mr. Martineau, let me ask this question. Mr. Stanislaus stated in his written testimony the timelines for development and implementation of state programs are necessary. Would the states be open to a reasonable implementation schedule? Mr. Martineau. Yes, I think that certainly makes sense to provide time for the states to pass legislation, adopt rules, whatever they need at the state level to get that permit program up and running or anything like that would make sense, and then the statute already had certain timelines in there for when you do the groundwater monitoring requirements or when the thing has to be upgraded by a certain date or closed by a certain date. So those kinds of schedules all make sense. Mr. Latta. Thank you. Mr. Cobb, same question. Mr. Cobb. Yes, I believe that we would be very amenable to that kind of thing, particularly for the operational requirements which can be implemented almost immediately or on an accelerated schedule and get the protections in place earlier. The more design-related considerations, in my opinion, would need to wait on the permits because that is changing the very fabric of how the units are built, and we need to make sure those standards are right before a facility begins constructing, so that they construct it properly. Mr. Latta. Let me ask a follow-up on that then. What would, you know, a timeframe could the states live with if there were a deadline for issuance of permits? Mr. Cobb? Mr. Cobb. Based on our evaluation of the universe that we have in Alabama where we know we have at least nine large facilities that will require permitting, looking at our current workloads and everything, we believe that 3 to 4 years after applications are submitted we will be able to have all of our permits in place. Mr. Latta. And Mr. Martineau, can I ask you the same question? Mr. Martineau. Yes, and I certainly can't speak for all the states on that, but I would think 2 years to set up the permit program, adopt any state rules that are needed through the state rulemaking process or legislative approvals, and then some period of time, 2 to 4 years, to get the permits in place probably makes sense, would be about right. Mr. Latta. Thank you. Mr. Chairman, I yield back the balance of my time. Mr. Shimkus. Gentleman yields back his time. Chair now recognizes the gentleman from West Virginia, Mr. McKinley, for 5 minutes. Mr. McKinley. Thank you, Mr. Chairman. I have a whole host of questions here, but I think if we can focus in on Mr. Spadaro, please, if we could. I wonder if I didn't--maybe because of my hearing problem, maybe you misspoke or I misheard, because in your opening statement you made something about challenging the structural integrity, you thought that it was only to meet good community standards. Do you remember saying that? Mr. Spadaro. I think--can you hear me now? Mr. McKinley. Yes. Mr. Spadaro. In the---- Mr. McKinley. Is that a yes or a no? Did you say--I think you said good community standards. Mr. Spadaro. I said good engineering standards. Mr. McKinley. Yes, good engineering standards, and that is fairly typical with the industry. If you are--you understand that, I mean, that people use good engineering practices because it falls under--but let me go back to more--you are a licensed engineer? Mr. Spadaro. No, I worked at the Federal Government for 30 years, but I ran the Dam Control Division---- Mr. McKinley. That is oK, so you are not a licensed engineer. A couple things in your testimony that--in your written testimony I found curious. You made a couple statements, and just for the record, I would like to make sure that they are correct, because you are testifying before Congress. You said that the Robinson Run mine was utilized as a disposal for coal ash. You know that is false? Mr. Spadaro. No, that is not false. There are--I am sorry, sir. It was used for disposal from both the power plant and the coal preparation---- Mr. McKinley. For slurry. Not coal ash, slurry. Mr. Spadaro. For slurry, and that is coal ash that is delivered to the reservoir on the form of slurry, sir. Mr. McKinley. I hope that you will be--apparently you will be under oath when---- Mr. Spadaro. Yes, I am under oath, and I understand that it was delivered in the form of slur. Mr. McKinley. They are not--it was not used for coal ash. Secondly---- Mr. Spadaro. I am sorry, but it was a coal ash---- Mr. Shimkus. Would the gentleman suspend? The time is the gentleman from West Virginia. Mr. McKinley. You also said that--by implying, you said that 25 percent of the dams were in poor condition, but the reality in conversation with EPA that the EPA said that just because they are classified as poor does not mean that they are unsafe. It just means that they are not meeting certain guidelines in terms of studies of paper evaluation. So let's just make sure we understand, the 25 percent that are labeled as poor are not unsafe, they just have not met all the criteria. Mr. Spadaro. I disagree with that statement. Mr. McKinley. Well, you can, and you are disagreeing with the EPA then. Mr. Spadaro. Yes. Mr. McKinley. So also in regards to--you are aware that the Federal Government inspects dams. If they have any concern, they inspect them every 7 days, according to the federal regulations. Are you aware of that? Mr. Spadaro. They are required--the dams are required to be inspected by the mine operator every 7 days. Mr. McKinley. And the--in West Virginia, you have all our coal impoundments, they fall under the Office of Surface Mining, MSHA, that you were involved with, and also the state DEP have inspections. It is done monthly, those inspections, so I do appreciate the fact that you were involved once as an engineer. I think you are out of touch---- Mr. Spadaro. No, sir, I have been regulating dams my whole career, and when I worked with the Office of Surface Mining, I wrote the federal regulations that are in this book. I wrote them in 1978. They are still in effect, and I have been enforcing those regulations---- Mr. McKinley. You list yourself, sir, as--on your resume as the Engineer of the Year in 1993. Mr. Spadaro. I was by the National Society of Professional Engineers. Mr. McKinley. We talked to them today and they said they have no record of that. Mr. Spadaro. Well I am sorry, but I did receive it and I have the certificate to prove it. Mr. McKinley. If you could, I would like to see that if you could submit that for the record, because in 1993, there is no such thing, first, as the Engineer of the Year. Mr. Spadaro. I was with the Federal Government---- Mr. McKinley. Federal engineer, but that wasn't awarded to you unless you were the engineer--were you in the Air Force at the time? Mr. Spadaro. No, I was working---- Mr. McKinley. Because that is where it went in 1993. The Federal Engineer of the Year was an engineer in the Air Force, so---- Mr. Spadaro. Listen. I was awarded that award as an employee of the Federal Department of the Interior in 1993 by the National Society of Professional Engineers, and there was an award ceremony, sir. Mr. McKinley. If you would send that certificate in, I would like to see that and share it with the NSPE, because they have no record of you. You are not licensed in West Virginia, you are not licensed in Kentucky, but you are acting as though you are an engineer. Mr. Spadaro. I have been qualified as an expert on dam safety in six federal courts in the past 30 years, and I am qualified every day in federal and state courts as an expert in dam---- Mr. McKinley. I think the record shows that you are not a licensed engineer, and secondly, I agree with everything that has been said about the concern about the dam safety, and I think people have moved--what you discovered in '72 or '75, that is yesterday. Mr. Spadaro. I investigated---- Mr. McKinley. Actually moving in a way that we go ahead, and I am really glad to hear that there are other people--that we are moving on it, that there have been improvements with those standards and we can continue to do that. But some of the record that you are testifying to, that you are representing, is just factually incorrect. Mr. Spadaro. That is not true. Everything I have said in my testimony is factually correct, and I have done dam safety investigations as recently as last year. Mr. McKinley. I look forward to your testimony on the Robinson Run when they determine that it did not include fly ash. Apparently my time has run out, so I have to end at that. I yield back my time. Mr. Shimkus. Gentleman's time is expired. Chair now recognizes the gentleman from Mississippi, Mr. Harper, for 5 minutes. Mr. Harper. Thank you, Mr. Chairman, and thank each of you for being here and sharing your views on this very important issue to us, and if I may, is it Ms. Bodine or Bodine? Ms. Bodine. Bodine, thank you. Mr. Harper. Bodine, thank you very much. Ms. Bodine, would you consider authority in the legislation for EPA to analyze at any time state permit programs and find programs deficient if they do not meet the minimum requirements of the federal backstop? Ms. Bodine. Yes, I would consider that to be backstop authority. The way the proposed legislation, the draft legislation works is that EPA has the authority to evaluate the state programs and then if they are deficient, has the authority to then implement a federal permitting program in lieu of the state program, and that is a backstop. Mr. Harper. OK. The legislation sets out a detailed list of criteria that states must include in their permit programs. Is this approach completely unprecedented, or when has it been done before? Ms. Bodine. So--and I talked a little about this earlier. The fact that Congress can set up in federal law specific criteria is not unprecedented, and again, has been done with very detailed statutory language in the hazardous waste context where Congress was setting out minimum technology requirements, indeed specifying the number of liners, for example, that would be--and that is all in federal statute, so the fact that you would have federal criteria established in federal law is not unprecedented. Mr. Harper. OK, thank you. Mr. Cobb, how long have you been regulating solid and hazardous waste? Mr. Cobb. For 25 years. Mr. Harper. Based on that experience, those 25 years, does the legislation contain all of the necessary technical elements needed to establish a protective permit program? Mr. Cobb. Yes, sir, I believe it does because based on my experience both in hazardous waste and in solid waste, primarily in hazardous waste, going through the legislation, it appears to contain the things that we would need to be able to have a protective regulatory program. Mr. Harper. OK. Do you believe that the legislation allows states the latitude to go beyond the federal standards? Mr. Cobb. Absolutely. As I read the legislation, there is clearly the provision that allows states to go beyond the minimum national requirements. Mr. Harper. Now, would the legislation result in states developing or revising requirements for CCR management that would go beyond current waste management requirements? Mr. Cobb. Well, I can only speak for Alabama, but certainly, because as has been pointed out, we have only recently been able to regulate CCRs, so what we will be putting in place as a result of this legislation or EPA rules or whatever comes out, will certainly go far beyond what we have done in the past, and I would be very surprised, based on my experience in discussions with other states, if there would be any state that would not have to do some expansion of their programs beyond the current status. Mr. Harper. And I think you have answered it, but just so that I am sure, so would Alabama have to develop new requirements or make changes to existing requirements that may apply to coal ash? Mr. Cobb. Yes, sir. We have already incorporated coal ash into our landfill program, but we will have to add requirements, particularly for surface impoundments, for structural integrity, for any other units, and that is what we are ready to do. We are waiting on to see what the national requirement is to know how to put those in place so that we can do it, and we are ready to do it now. Mr. Harper. I yield back. Mr. Shimkus. Gentleman yields back his time. Chair now recognizes the gentleman from Florida, Mr. Bilirakis, for 5 minutes. Mr. Bilirakis. Thank you, Mr. Chairman. I appreciate it. Mr. Cobb, a criticism of the legislation is that the flexibility in the bill would allow states to define what constitutes CCR landfill, surface impoundment, or other land- based unit to define what specific CCR structures state program conditions would be applied to. Why is it a good approach? Mr. Cobb. Sir, I believe that this is a good approach because it allows states the flexibility to tailor the regulations to what exists in their state. It allows us to make sure that the regulations are better responsive to individual state conditions, to state geology, to state climate in a way that often cannot be done with strictly rigid, uniform national requirements. It goes to the part of states being more stringent, of states having additional requirements. We need that ability to tailor the regs to make sure we can address what is in our state. Mr. Bilirakis. Thank you. Ms. Bodine suggests that these terms are well understood as the RCRA regulation content. Do you agree? Mr. Cobb. Yes, I would definitely agree with that. The terms such as landfill surface impoundment, land disposal unit, are used in all of the waste programs and regulations, and one of the things that you can take comfort in is we are regulators. As regulators, we like to have consistent definitions. We like to have consistency, because it enables us to regulate better and more consistently across programs. So yes, I believe that these terms are well understood and will be well represented. Mr. Bilirakis. Thank you very much. Ms. Bodine, based on your experience, would the approach set out in the discussion be successful at creating state permit programs that protect human health and the environment? Ms. Bodine. I believe so, yes. Mr. Bilirakis. Do you want to elaborate a little bit on it? Ms. Bodine. I think that this may be the only way that we are going to get, you know, standards for coal ash across the country is through legislation, and that this is the--not only will it be successful, it may be the only avenue for success, and that goes back to my earlier discussion about the fact that EPA has not been able to create the record and have a risk assessment that justifies regulation, and so Congress can step in and say as a matter of policy and as a matter of congressional prerogatives, that they are going to set up a federal program. The legislation does that. We have heard from the state regulators saying yes, it has all the elements. Yes, we can implement it. And so now it is just a matter of getting it done, of having Congress act. Mr. Bilirakis. Very good. Thank you very much. I yield back, Mr. Chairman. Mr. Shimkus. Gentleman yields back his time. We want to thank this panel for coming and giving their testimony. I would like unanimous consent to submit three letters into the record--actually, four statements. Two letters from professional engineering firms regarding the appropriate dam safety standards for coal ash impoundments, one letter from a beneficial user, the Portland Cement Association, and a submission for testimony from the representative from North Dakota, Congressman Cramer. [The information apears at the conclusion of the hearing.] Mr. Shimkus. Without objection, so ordered, and the hearing is now adjourned. [Whereupon, at 12:58 p.m., the subcommittee was adjourned.] [Material submitted for inclusion in the record follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]