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20–939 PDF 2016

S. HRG. 114–349 

ECONOMIC OPPORTUNITIES FROM LAND CLEANUP 

PROGRAMS AND LEGISLATIVE HEARING ON 

S. 1479, BROWNFIELDS UTILIZATION, INVESTMENT, AND LOCAL DEVELOPMENT ACT OF 

2015, S. 2446, IMPROVING COAL COMBUSTION 

RESIDUALS REGULATION ACT OF 2016 AND 

DISCUSSION DRAFT OF GOOD SAMARITAN 

CLEANUP OF ORPHAN MINES ACT OF 2016 

HEARING 

BEFORE THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

MARCH 2, 2016 

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

( 

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

(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

JAMES M. INHOFE, Oklahoma, Chairman 

DAVID VITTER, Louisiana 

JOHN BARRASSO, Wyoming 

SHELLEY MOORE CAPITO, West Virginia 

MIKE CRAPO, Idaho 

JOHN BOOZMAN, Arkansas 

JEFF SESSIONS, Alabama 

ROGER WICKER, Mississippi 

DEB FISCHER, Nebraska 

MIKE ROUNDS, South Dakota 

DAN SULLIVAN, Alaska 

BARBARA BOXER, California 

THOMAS R. CARPER, Delaware 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

SHELDON WHITEHOUSE, Rhode Island 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER, New Jersey 

EDWARD J. MARKEY, Massachusetts 

RYAN JACKSON, Majority Staff Director 

BETTINA POIRIER, Democratic Staff Director 

(III) 

C O N T E N T S 

Page 

MARCH 2, 2016 

OPENING STATEMENTS 

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma .................... 1 

Boxer, Hon. Barbara, U.S. Senator from the State of California ........................ 7 

Gardner, Hon. Cory , U.S. Senator from the State of Colorado ........................... 8 

Bennet, Hon. Michael F., U.S. Senator from the State of Colorado .................... 39 

Hoeven, Hon. John, U.S. Senator from the State of North Dakota ..................... 40 

Manchin, Hon. Joe III, U.S. Senator from the State of West Virginia ............... 42 

WITNESSES 

Krill, Jennifer, Executive Director, Earthworks ................................................... 46 

Prepared statement .......................................................................................... 49 

Holleman, Frank, Senior Attorney, Southern Environmental Law Center ........ 56 

Prepared statement .......................................................................................... 58 

Moyer, Steve, Vice President for Government Affairs, Trout Unlimited ............ 75 

Prepared statement .......................................................................................... 77 

Merriam, Chip, Vice President, Legislative, Regulatory & Compliance, Orlando Utilities Commission, on Behalf of the American Public Power Association .................................................................................................................... 89 

Prepared statement .......................................................................................... 91 

Kirby, Patrick, Director, Northern West Virginia Brownfields Assistance Center .......................................................................................................................... 96 

Prepared statement .......................................................................................... 98 

ADDITIONAL MATERIAL 

Opposition to S. 2446, the ‘‘Improving Coal Combustion Residuals Regulation 

Act of 2016’’ .......................................................................................................... 114 

Discussion Draft; ‘‘Good Samaritan Cleanup of Orphan Mines Act of 201’’ ....... 123 

(1) 

ECONOMIC OPPORTUNITIES FROM LAND 

CLEANUP PROGRAMS AND LEGISLATIVE 

HEARING ON S. 1479, BROWNFIELDS UTILIZATION, INVESTMENT, AND LOCAL DEVELOPMENT ACT OF 2015, S. 2446, IMPROVING 

COAL COMBUSTION RESIDUALS REGULATION ACT OF 2016 AND DISCUSSION DRAFT 

OF GOOD SAMARITAN CLEANUP OF ORPHAN MINES ACT OF 2016 

WEDNESDAY, MARCH 2, 2016 

U.S. SENATE, 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, 

Washington, DC. 

The committee met, pursuant to notice, at 10:32 a.m. in room 

406, Dirksen Senate Office Building, Hon. James Inhofe (chairman 

of the committee) presiding. 

Present: Senators Inhofe, Boxer, Barrasso, Capito, Crapo, Wicker, Fischer, Rounds, Cardin and Markey. 

OPENING STATEMENT OF HON. JAMES M. INHOFE, 

U.S. SENATOR FROM THE STATE OF OKLAHOMA 

Senator INHOFE. OK, our meeting will come to order. What we 

are going to do today is, Barbara and I will each give our opening 

statement, then we will hear from the Senators who are sponsors 

of the legislation that we are going to be looking at today, any comments that they want to make so that they can then get up and 

leave if they so desire. 

In my years as chairman and ranking member of this Environment and Public Works Committee, I have worked to promote common sense solutions to clean up the environment, while also promoting economic development and jobs in our States and local communities. The topic of today’s hearing will examine three pieces of 

bipartisan legislation that fit this description and address longstanding priorities of mine. 

The first bill on the agenda is S. 1479, the Brownfields Utilization, Investment, and Local Development Act, known as the BUILD 

Act. The original brownfields law was enacted in 2002 to address 

liability concerns and to provide grant money to clean up abandoned and contaminated properties. The brownfields program is a 

conservative program. EPA estimates that for every $1 of Federal 

2 

grant money awarded, almost $18 in additional funding is leveraged from local and private sources. 

This reauthorization draws from our experience and will make 

an already successful brownfields program even better for small 

rural communities and urban areas alike. An earlier version passed 

out of the committee in the 113th Congress on a voice vote. This 

bill was introduced last summer by Senator Markey and myself, 

along with Ranking Members Boxer, Rounds, Crapo, and Booker as 

original cosponsors. You can’t get more bipartisan than that. 

Although the BUILD Act was recently added by voice vote as an 

amendment to the Senate energy bill, it is unclear just what is 

going to happen to that bill, so we are going to go ahead and move 

as a standalone bill. 

The second bill is a discussion draft of Good Samaritan legislation released in January by Senator Gardner and Senator Bennet, 

both from Colorado. There are hundreds of thousands of abandoned 

mine sites across the Country, many of which date back to the 

1800’s. Local watershed groups and other Good Samaritans want 

to clean up these sites but are afraid of taking on Superfund and 

Clean Water Act liability. 

It is interesting that modern environmental laws are hindering 

the restoration of these waterways. This was certainly never the intent. Good Samaritan legislation is not a rollback of these laws or 

a violation of the polluter pays principle, as some suggest. Opponents of the Good Samaritan legislation also argue the EPA simply 

needs more money to do these cleanups. As the recent blowout at 

Gold King Mine caused by the EPA shows, that is not the answer. 

In 2006, when I was chairman of the EPW Committee, we held 

an oversight hearing on this problem and approved a bill based in 

part on bipartisan legislation by Senators Allard and Salazar that 

would have addressed liability concerns through the State Good Samaritan permitting programs. I am encouraged that the current 

Senators from Colorado are trying to find a common ground as 

well. 

As a veteran of the earlier efforts, I think it is important that 

we not allow the perfect to be the enemy of the good. Good Samaritan legislation should encourage cleanups in a responsible way, but 

not impose unnecessary burdens that would deter anyone from 

stepping forward. Good Samaritans are, like brownfields, redevelopers; they did not cause the environmental problems they are trying to address, so it is appropriate to protect them from environmental liability when they are trying to improve the environment 

and create economic opportunity. 

The third and final bill on the agenda is S. 2446, the Improving 

Coal Combustion Residuals Regulation Act, which is sponsored by 

Senators Hoeven and Manchin. EPA has extensively studied the 

safety of coal ash, which is a critical ingredient in concrete used for 

roads and bridges. 

In a final rule issued in December 2014, EPA correctly determined that coal ash should be regarded as a non-hazardous waste 

under RCRA. However, as the EPW Committee heard at a June 

2015 oversight hearing, EPA has limited authority under RCRA 

and there are significant concerns by States and regulatory entities 

3 

with how that rule would be implemented, so we are attempting to 

correct that problem. 

[The prepared statement of Senator Inhofe follows:] 

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Senator Boxer. 

OPENING STATEMENT OF HON. BARBARA BOXER, 

U.S. SENATOR FROM THE STATE OF CALIFORNIA 

Senator BOXER. Thank you, my friend. 

Today the Committee will be discussing three bills, a brownfields 

bill, a coal ash bill, and a Good Samaritan bill. I believe the 

brownfields bill is certainly ready to move forward, I believe the 

coal ash bill weakens protections and should not move forward, and 

I believe we can work together to get that Good Samaritan bill into 

a very good place, and I am really excited about doing that. 

The BUILD Act, which is the reauthorization of EPA’s 

brownfields program, is so important because here we have these 

polluted sites, they are certainly not Superfund sites; they can be 

cleaned up ‘‘pretty easily’’ and then those acres can remain in productive use. Very important for our communities, and I am excited 

to say that we are in full agreement on that one. 

The second bill, S. 2446, would significantly weaken the protections in EPA’s recently finalized coal ash rule. The new rule contains important protections for communities near coal ash disposal 

sites, and we are going to get our hands on a photo just to remind 

us of what happens to communities. This one was in Tennessee, 

where the coal ash just slid right into the waterways and destroyed 

communities. So I don’t want to see us weaken the coal ash rule. 

Coal ash is dangerous. It contains many toxins such as mercury, 

arsenic, and lead. When you hear the words mercury, arsenic, and 

lead, you know that these are cancer-causing elements and toxins, 

and they harm particularly children. Coal ash is often stored in impoundments that are unlined; they are located adjacent to rivers 

and lakes, where the toxics leach into the groundwater and surface 

water. So in Kingston, Tennessee and in the Dan River in North 

Carolina, these impoundments could fail, spreading toxic waste 

through communities and waterways. 

We always look at what is happening in Flint to underscore the 

importance of being wise about these things. We have heard disturbing reports of children poisoned by contaminated drinking 

water, so Congress should be doing more to protect the American 

people from polluted water, not less. And this is the Environment 

Committee. It is so important to remember this is the community 

that has that sacred responsibility to protect our people from lead, 

from arsenic, from other poisons. 

So I think it is disappointing but, frankly, not surprising given 

the differences the chairman and I have on the issue of the environment, that this Committee is actually considering a bill that 

would in fact overturn this rule, amend this rule; and I believe we 

should implement the rule quickly so we can cleanup millions of 

tons of coal ash around the Country. 

So the third bill is a discussion draft proposed by our Colorado 

Senators Bennet and Gardner. I am very pleased to see them here, 

my friends. It would encourage Good Samaritan cleanups of abandoned hardrock mines. The bill would allow individuals who are 

not responsible for the contamination at a mine site to conduct a 

voluntary cleanup of an abandoned mine and be shielded from liability under the Clean Water Act and Superfund. 

8 

Abandoned hardrock mines pose a serious threat to the waterways that people use for recreation and that provide drinking 

water, again, to our children, to our families. Mine waste frequently contains high levels of those heavy metals, including, 

again, mercury, lead and arsenic. 

So I want to encourage these cleanups, but what we learned from 

the failed EPA cleanup, where a long-term contractor in the private 

sector hired by the EPA caused a major and terrible leak, we know 

about that, we have had testimony about that, from an abandoned 

mine. So we know these are difficult to clean up. 

But I do think, even though it does raise other issues, we don’t 

want the polluter to get off the hook, that is No. 1. So we want to 

make sure whatever bill we pass doesn’t get the original polluter 

off the hook if there is a way to get into a polluter’s pockets who 

caused the problem. We know cleanup costs could be as high as $50 

billion, so that is why it is great if we can come up with a Good 

Samaritan plan here that works out that doesn’t put taxpayers on 

the hook. 

I do comment the Colorado Senators and I am working with both 

of them, and I hope before we get to the markup we will have an 

agreement. 

In closing, I will show you this photo of that coal ash spill. You 

can see that coal ash just contaminating the whole area. And this 

is what happened to people because of the coal ash spill. We can’t 

fool around with this, folks, these are real problems, especially in 

the south of our Country, where we have so much of this coal ash 

just stored in unlined containers. Craziness. We can’t have it. 

So we have work to do, but I am ever optimistic, Mr. Chairman. 

Senator INHOFE. Yes. You have come to the right place. 

Gentlemen, if it is all right with you, we will go ahead and start 

with Colorado in the hopes that Senator Manchin will be here so 

you can do that all right, is that all right? All right, Senator Gardner. 

OPENING STATEMENT OF HON. CORY GARDNER, 

U.S. SENATOR FROM THE STATE OF COLORADO 

Senator GARDNER. Thank you, Mr. Chairman, and thank you, 

Ranking Member Boxer, for your words of encouragement on this 

legislation, and thanks to all of you for holding this hearing today 

on the Good Samaritan Cleanup of Orphan Mines Act of 2016. 

Senator Bennet and I, along with Congressman Scott Tipton 

from Colorado, have been working for years together on this issue. 

The mine was located in Scott Tipton’s congressional district, which 

is on the western slope of Colorado, which is the location of many 

abandoned hardrock mines with acid mine drainage. 

We have also received a significant amount of stakeholder feedback, and I think that is what is remarkable about this draft discussion, the ability to hear back from the Colorado Governor, our 

attorney general’s office, and many of the private sector and publicprivate partners that have been participants in this discussion is 

truly appreciated. Our goal is to introduce a bill that works on the 

ground for our State and constituents and betters the environment. 

9 

So, Mr. Chairman, I do appreciate the chance to make a statement here and to talk about what we can do to get this not just 

talked about in the future, but enacted into law. 

Last fall, this Committee, and I am grateful for your actions, had 

an oversight hearing to examine the spill that took place at the 

Gold King Mine in Southwest Colorado. A bipartisan group of colleagues and I testified then on the impact the spill had on our constituencies, including Senator Heinrich from New Mexico. 

We are all still feeling the effects of the spill, including lost property, lost economic opportunity, lost business opportunity, and 

monitoring the EPA’s reimbursement process. In fact, just 2 weeks 

ago I was meeting with council members of the Mountain Ute and 

the Southern Ute Tribes to discuss the Good Samaritan legislation 

and the impact that this bill had on their livelihoods and their 

properties. 

Today I come before the Committee to advocate the need to move 

forward with this legislation that would allow Good Samaritans 

like the mining industry, State agencies, local governments, nonprofits, and other groups and organizations the ability to clean up 

the environment and improve water quality conditions in and 

around abandoned mines. 

The Government Accountability Office estimates that more than 

160,000 abandoned hardrock mines exist in the United States 

today, and at least 33,000, 33,000 of these mines pose environmental or safety concerns. We have hundreds, if not thousands, of 

them in Colorado. One of the immediate actions we can do in Congress to address abandoned mines is to pass Good Samaritan legislation. It is a concept that has been around for decades, with nearly 

every stakeholder over time advocating and remaining true to their 

opinions on the concept. I respect all stakeholder positions, but it 

is time that we take a small step toward facilitating cleanup to 

prove that this idea will actually work. 

And when the legislation sunsets in 10 years, I fully support a 

comprehensive review of what concepts worked and what could be 

done better in terms of the Good Samaritan cleanup. If we can 

move this bill forward now, we will have the knowledge and the 

facts necessary to make the Good Samaritan program even stronger in the future. 

The Gold King Mine spill, as terrible as it was, helped shine a 

light on the need for remediation of abandoned hardrock mines. As 

the situation currently stands regarding cleanup of abandoned 

mines, there aren’t enough Federal or State resources to properly 

remediate these mines. During the Gold King Mine remediation, 

the Federal Government also demonstrated a lack of expertise in 

the remediation process. Further, while the EPA has guidance on 

the remediation of mines by Good Samaritans, this guidance has 

done little to incentivize Good Samaritans to enter these sites and 

to begin the cleanup. 

There are willing and able Good Samaritans that wish to address 

safety concerns and improve water quality at abandoned mines, as 

you will hear this morning, you will hear from Trout Unlimited. 

But the fear of incurring liability for meeting all Federal standards 

during cleanup is too great, and these sites continue polluting the 

environment and our waters as we wait and debate. 

10 

There has been broad bipartisan support for passing Good Samaritan legislation in the past. Mr. Chairman, under your leadership, the Committee, as you stated, in 2006, reported out a bipartisan bill from Colorado Senators Ken Salazar and Wayne Allard. 

Ten years later my Democratic colleague, Senator Bennet, and I 

are advocating for the same type of approach of Good Samaritan. 

The time has come for Congress to move forward with this legislation to get this done for Colorado and any other State or Tribe that 

wishes to participate in a Good Samaritan program. We must improve the environmental and safety issues related to these abandoned mines. 

The draft legislation before the Committee is designed to allow 

Good Samaritans the opportunity to apply for a permit under a 

State or Indian Tribe program or EPA’s program to assist in the 

environmental cleanup of abandoned mines. The State or Indian 

Tribe or the EPA, as the permitting agency that approves or denies 

the Good Samaritan permit, monitors the cleanup for the duration 

of the permit. The approved permit allows the Good Samaritan to 

improve the environment and water quality while receiving limited 

liability relief from only those provisions necessary under the Acts, 

the Clean Water Act and Comprehensive Environmental Response 

Compensation and Liability Act of 1980. 

A criticism of the past bills was that liability relief was too 

broad. So we have tailored this bill to only include those provisions 

that we believe are necessary to facilitate the cleanup. This draft 

holds Good Samaritans liable if they fail to comply with the terms 

of the Act, but it provides an exemption if the failure results in 

only minor impacts. 

The draft includes that any action done by a Good Samaritan 

must improve the environment and improve the water quality 

standards to the maximum extent practical under the circumstances. In a final note, the draft sunsets in 10 years, giving 

us a chance to make sure that the process worked. 

Mr. Chairman, I have a letter from Colorado Governor John 

Hickenlooper expressing support for the bipartisan effort we have 

undertaken in the Colorado delegation, and I would respectfully request that the letter be included as part of my testimony for today’s 

hearing, along with Colorado Senate Joint Memorial 16, which is 

a resolution from our State legislature in support of this legislation. 

Senator INHOFE. Without objection. 

[The referenced information was not received at time of print.] 

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Senator GARDNER. Mr. Chairman, we have talked about this for 

decades, Senator Domenici, Senator Campbell, Congressman 

Heffley, Senator Allard, Senator Salazar, but I think what is important about this legislation is simply this, that under the Acts of 

this legislation the environment will be better than it is today, and 

that is an important step that we can make for Colorado, the West, 

and this Country. 

Mr. Chairman, I thank you so much for this opportunity. 

Senator INHOFE. Thank you, Senator Gardner. 

Senator BENNET. 

OPENING STATEMENT OF HON. MICHAEL F. BENNET, 

U.S. SENATOR FROM THE STATE OF COLORADO 

Senator BENNET. Thank you, Mr. Chairman. I want to thank you 

and the Ranking Member for allowing Senator Gardner and I to 

speak this morning. 

And I want to thank Senator Gardner for his leadership and for 

his partnership. As he said, this issue has been before us for decades, and I think this bill represents the broadest coalition that 

there has ever been because of the urgent need that is out there, 

and we appreciate very much, on behalf of the citizens of Colorado 

and the West, the bipartisan approach that you are taking on this 

bill, and whatever it is we can do to help, we will do. So please call 

on us. 

As Senator Gardner said, the blowout at the Gold King was an 

environmental and economic disaster for communities throughout 

Southwest Colorado, and it was a stark reminder to all of us that 

abandoned mines are a constant source of pollution and threat to 

watersheds across the West. The Gold King Ming blowout released 

3 million gallons of acid mine drainage all at once. But this same 

amount of polluted water was already being released from the Gold 

King Mine every single week, and there are thousands of other 

abandoned mines in Colorado and across the West. 

We need solutions to address the acid mine drainage coming 

from all these old abandoned mines. That is why I introduced a 

separate bill with my colleagues from New Mexico to reform the 

1872 mining law. But it is also why Senator Gardner and I have 

come together, along with Representative Tipton, to release the 

draft Good Samaritan bill that the Committee will consider today. 

This draft represents the hard work of many people across our 

State, including the State of Colorado, elected officials, local Tribes, 

mining companies, nonprofits, and environmental groups. We 

would not have been able to craft this draft without people like today’s witnesses, Steve Moyer from Trout Unlimited and Jennifer 

Krill from Earthworks. 

I am the first to admit that there are still things we need to work 

on in this draft bill, but I think it represents a very important step 

forward and a positive compromise. The bill will encourage States, 

local governments, nonprofits, and companies to clean up abandoned mines. 

As Senator Gardner said, it gives Good Samaritans who had no 

part in the creation of mine pollution the opportunity to apply for 

a permit to improve water quality. This bill exempts Good Samaritans from liability only under the necessary provisions of the Clean 

40 

Water Act and CERCLA, and it ensures that Good Samaritans will 

be held liable if they fail to comply with the terms of the permit. 

Although it is extremely unlikely that a Good Samaritan would 

cause a disaster like the Gold King spill, this bill makes sure that 

communities are protected if an accident does occur. 

I remain hopeful that we can reach a consensus on outstanding 

issues, including citizen enforcement language; and we are still getting input from Colorado that will help improve the draft. 

Thank you again to all of the Coloradans who worked with us on 

this effort, today’s witnesses for their input, and to the Committee 

for holding this hearing. As Senator Gardner said, there is no time 

like the present to get this legislation moving, and we are very optimistic that we will be able to do it. Thank you, Mr. Chairman. 

Senator INHOFE. Excellent statements. You may be excused, but 

if you would like to stay, of course, feel free to do so. 

Senator BOXER. I am sure you would love to stay. 

[Laughter.] 

Senator INHOFE. All right, Senator Hoeven, you were the first 

one here. I am sorry we didn’t get to you first, but you are recognized. 

OPENING STATEMENT OF HON. JOHN HOEVEN, 

U.S. SENATOR FROM THE STATE OF NORTH DAKOTA 

Senator HOEVEN. Thank you, Mr. Chairman. Thanks to both you 

and to the Ranking Member. It is good to be with you. Appreciate 

you holding a hearing on a bill recently introduced by myself and 

Senator Manchin, the Improving Coal Combustion Residuals Regulation Act of 2016. 

This legislation, which builds on our past efforts to find a bicameral, bipartisan approach to coal ash, both ensures there is safe 

disposal of coal ash and provides greater certainty for its recycling. 

Coal ash is a byproduct of coal-based electric generation, and it has 

been safely recycled for buildings, for roads, for bridges, and other 

infrastructure for years. 

In fact, I would like to invite the Ranking Member to come to 

Bismarck, North Dakota, where we have recently built a new heritage center for somewhere between $50 billion and $60 million out 

of recycled coal ash, a non-hazardous, non-toxic substance. I think 

she would find it a remarkably beautiful heritage center on our 

State capitol grounds. I would also take her over to Bismarck State 

University where we have a national energy center of excellence 

that was also built out of non-hazardous, recycled coal ash on our 

campus, and it is a tremendous resource for our students. I would 

certainly like to show her both beautiful buildings made from recycled coal ash. 

In fact, I think it is important to take note of the environmental 

and fiscal benefits of coal ash recycling. Over 60 million tons of coal 

ash were beneficially used in 2014, including over 14 million tons 

in concrete. It has been calculated that taxpayers save $5.2 billion 

per year thanks to the use of coal ash in federally funded roads and 

bridge construction. 

Products made with coal ash are often stronger and more durable, and coal ash reduces the need to manufacture cement, resulting in greenhouse gas emission reductions of 13 million tons in 

41 

2014. So I would also want to make sure that the Ranking Member 

is aware that recycling coal ash and using it actually reduces 

greenhouse gas emissions. 

So coal ash is an important resource for our economy, and it is 

imperative that coal ash that isn’t recycled is disposed of and 

stored responsibly and safely. That is the other thing this legislation does, it makes sure that we do impoundment safely, something 

that I know is a concern for the Ranking Member, as well. As a 

matter of fact, looking at those pictures, this legislation will make 

sure that exactly is what we prevent from happening. So I appreciate her showing those pictures so that we can make the very 

strong point that this is the legislation that will actually make sure 

that we don’t have an accident like she showed in those pictures. 

In December 2014, the EPA put forth new legislation for the 

management of coal ash. The regulation made clear, at least for the 

time being, that coal ash would continue to be regulated as a nonhazardous waste, so again EPA coming back and saying non-hazardous waste, consistent with EPA’s earlier findings. 

But the regulation has major flaws. It relies solely on citizen 

suits for enforcement. What this means is that neither the EPA nor 

the States, neither the EPA nor the States can directly enforce the 

rule through a permit program with which owners and operators 

of coal ash disposal sites must comply. It means that the regulation 

does not create the constructive regulatory guidance and oversight 

necessary to ensure the proper management of coal ash. 

Instead, the EPA regulation has created a situation where the 

only enforcement mechanism for the rule is that an operator of a 

coal ash site can be sued for not meeting EPA’s new Federal regulatory standards. Those subject to this regulation, those responsible 

for keeping the lights on for families, for farmers, and job creators 

are themselves left in the dark about how EPA’s standards will be 

defined in various court cases across the Nation. Instead of direct 

oversight, we will have lawsuits brought by those who want to shut 

down coal production. 

Now, here is the analogy I want to make, and I hope that the 

Committee would consider. This is what we are dealing with under 

this regulation and why this law provides better certainty and better protection both for recycling and for impoundment. But here is 

how the regulation works. Imagine building an addition to your 

house and there being no building permit process to go through 

with your local government. You call the city or the county and 

they say that you should just read the rules, and if you violate 

those rules, just know that you can be sued at any time by anyone 

who thinks you didn’t build that addition according to the law. 

This process would leave you without any sort of assurance that 

you are complying with the law. You would get no inspection, no 

guidance, nothing. And, worse, you would have the threat of litigation hanging over your head. Doesn’t make any sense, right? Sound 

terrible. We would never do that to people trying to build buildings 

or build houses. 

Well, that is how the EPA coal ash regulations would be implemented and enforced, and that is why this Committee needs to consider this legislation and do something that makes sense. You 

would never do that to somebody building a house or building a 

42 

building or doing any kind of construction. Why in the world would 

you do it to somebody who is trying to safely recycle coal ash or 

impound it safely so that we don’t have accidents? 

Our bill would directly address this problem by taking the EPA’s 

rule standards for coal ash disposal and incorporating all of them 

in EPA-approved State permit programs. The State would have direct oversight over disposal sites design and operation, including 

inspections, air criteria, run-on and run-off control, closure and 

post-closure care, and a requirement not in EPA’s rule, financial 

assurance. We add financial assurance. 

Meanwhile, we offer State regulators the same flexibility for implementing the groundwater monitoring and corrective action 

standards that are currently provided under both existing municipal solid waste and hazardous waste regulation, allowing State 

regulators to make tailored site-specific adjustments. 

And we have been listening to issues the EPA has brought up 

about our previous versions of the legislation. In fact, we have updated the bill to include a more traditional EPA application process 

for the State permit programs. If the EPA finds a State’s permit 

program deficient, then the EPA can take direct control over that 

State’s permit program. And if a State doesn’t want to have its own 

permit program, then the EPA steps in to run that State’s permit 

program. That is a pretty important point when we are talking 

about the kind of protection that I know the Ranking Member 

wants to see. So we have made modifications to this law that greatly strengthens it. 

Mr. Chairman, some groups have claimed that our bill undermines the EPA’s coal ash rule, when in fact the truth is this legislation utilizes the expertise in State government to add real oversight and enforcement to the EPA’s coal ash disposal standards. 

This bill is about responsible regulation. It is about certainty for 

recyclers and for the American public who will know that State and 

Federal regulators are proactively overseeing and working with energy producers to ensure safe disposal of coal ash. And I hope my 

colleagues will take a good hard look at this common sense legislation and work with us to pass it. 

Thank you. 

Senator INHOFE. We will do that. Thank you very much, Senator 

Hoeven. 

Senator MANCHIN. 

OPENING STATEMENT OF HON. JOE MANCHIN III, 

U.S. SENATOR FROM THE STATE OF WEST VIRGINIA 

Senator MANCHIN. Mr. Chairman, Ranking Member, and my fellow colleague from West Virginia, Senator Capito, it is good to be 

with you all and I really appreciate you all allowing us to come 

present before you. 

Senator Bill 2446, the Improving Coal Combustion Residuals 

Regulation Act of 2016, Senator Hoeven and I introduced this legislation in January, continuing our efforts to find a common sense 

approach to ensuring safe disposal of coal ash, while also preserving the economic opportunities and benefits associated with the 

reuse of coal ash. The American Coal Council notes that beneficial 

use and reuse of this material is a means of ensuring billions of 

43 

dollars of economic benefits, supporting the creating and maintenance of hundreds of thousands of jobs across many industries, and 

multiple environmental benefits including GHG, greenhouse gas, 

reductions, reduce water use, and improve energy efficiency. 

Coal ash and other combustion byproducts are used for a wide 

range of economically beneficial activities, including the manufacturing of materials such as wallboard, concrete, roofing materials 

and bricks. I think Senator Hoeven went over some of the things 

we are using it for now. The coal ash is actually bound into these 

products. 

I want to offer an example in my State and Senator Capito’s, our 

State of West Virginia. We have a gypsum wallboard plan in 

Moundsville, West Virginia. When I was Governor, I cut the ribbon 

on it, and it is her home where she was born and raised, her home 

area. Anyway, in 2008, CertainTeed, a large manufacturer of building products such as vinyl siding, roofing, and insulation, opened 

a plan in Marshall County, West Virginia. The plant would have 

never been opened if it had not been for the Mitchell Power Plant. 

Mitchell Power Plant basically went to scrubbers. Scrubbers are 

meant to take SO2 out of the air, no emissions of SO2, which it 

does. The way it takes it out is using an injection of limestone with 

water that basically is sprayed in as coal is being burned, and it 

knocks out the sulfur. It creates a limestone base and that base basically is taken over across the road to the gypsum board plant. 

They compress this and make wallboard that you have drywall 

used in your homes. It is a tremendous product and it is a better 

recycled product and it is an added value product, and we are very 

proud of that. Flue-gas desulphurization scrubbers were installed 

on power plants allowing synthetic gypsum to be produced. The project was $150 million. In some States that might not be 

a big investment. In the State of West Virginia that is a tremendous investment; it really helps a lot of people have a good job, and 

that is really what it has done. It was a product that was known 

as a waste product before and, as John had mentioned, there is so 

much being used for this product. We build blocks, we have block 

factories that use it. We have road manufacturers, road builders 

that use this product. So it is a tremendous byproduct with added 

value. 

The other thing that is not talked about much is basically when 

you have a scrubbed utility plant, you have a high alkalinity of 

ash. That is used in backfilling and mining that basically mitigated 

the water problems that we have, and that is a tremendous, tremendous asset for us, to be used in mining States. 

Other innovative uses of coal ash continue to be developed, such 

as wastewater treatment, wastewater treatment because of coal 

ash. Basically, when you think about it, carbon filters, what do you 

think carbon filters are? Carbon filters are basically coal. And it is 

used for so many other different benefits. 

It is calculated that taxpayers save $5.2 billion per year thanks 

to the use of coal as in federally funded infrastructure projects. 

And although the EPA appropriately designated coal ash as nonhazardous, they had a ruling on that, we waited for quite some 

time to get their ruling, it is non-hazardous, but its rule misses the 

mark on two fronts: it does not provide certainty to recycles of coal 

44 

ash and it does not establish an effective enforcement mechanism 

for the disposal of coal ash. And I think Senator Hoeven went into 

that in detail of why we need certainty in this. 

Our bill seeks to resolve these issues by establishing a State permitting program. The State permitting program in West Virginia, 

anybody that basically disposes of coal ash has to have water monitoring first. Their sites are inspected regularly, routinely by the 

DEP. And if the State fails to do that, this piece of legislation puts 

the EPA back in control. If we don’t have a plan that is approved, 

then the EPA steps in. But at least they have to acknowledge the 

Tenth Amendment to the Constitution. Let us do our job in the 

States. That is all we ask for. 

Senate bill 2446 also offers the States first approach to recycling 

of coal ash that prevents harmful effects of EPA over regulation, 

which would threaten vital industries and nearly cost my home 

State of West Virginia and the Nation more jobs. All we are saying 

is there should be a proper use, and if you have a disposal and you 

can use this as added value, that should be the plan the States put 

in place. If not, then it is basically disposal. Disposal has to be regulated, and if the States don’t do it, again, the Feds step in. 

It allows each State to use existing EPA health and environmental regulations to set up their own permitting programs. These 

programs will allow industry to continue to recycle and reuse coal 

ash. This approach protects jobs and our economy while giving families and businesses the certainty they need and be able to continue 

to produce the products that we use. 

I encourage you to support and pass this legislation. I think it 

is most needed. It gives us certainty of how we move forward and 

it basically creates a protective environment that we all desire. So 

I want to thank you, Mr. Chairman, and thank Ranking Member 

Senator Boxer, my colleague, Senator Capito. She knows this issue 

as well as I know it. Thank you. 

Senator INHOFE. Both are excellent statements. I appreciate it 

very much. 

Senator Boxer has requested to respond to a couple of things and 

get a little bit of a dialog going. I think that is very appropriate. 

Senator Boxer. 

Senator BOXER. Thanks, Senator. 

First of all, thanks, my friends. I know you are trying hard to 

get that balance between protecting the people and protecting coal 

ash and using it. I want to make a couple of points. I am going to 

put something in the record and hope that you will respond to it; 

not now, but when you get a chance, because it is a complicated, 

long letter. 

First of all, as you know, people like me were hoping that this 

coal ash would be classified as a hazardous, so you know that I already think what the EPA did was not strong enough to protect the 

people who suffered this kind of a terrible nightmare in their 

homes from this coal ash. So you know where I am coming from. 

Senator MANCHIN. Madam Chairman, was that the TVA? 

Senator BOXER. That was Tennessee. 

Senator MANCHIN. And that was Government controlled. 

Senator BOXER. Yes. The way we store the coal ash??????? 

45 

Senator MANCHIN. The Government doesn’t do its job as well as 

it should. 

Senator BOXER. Well, that is exactly why we have the rule, because you are absolutely right, these are terrible. And for years 40 

of these ponds were listed as hazardous. 

I don’t have any skin in the game in California because we don’t 

have coal ash stored, but we had people from your States, from 

particularly your southern States come before us. Let me go because I know my colleague wants to move on. 

So, first of all, I think there is a misunderstanding because recycling of coal ash is absolutely allowed under the EPA rule. So if you 

and I could talk about why you feel the rule is too restrictive, and 

maybe we can find some common ground on that. 

Also, what I really want you to do is we have received a letter 

from 38 organizations and 38 States, and they come up with 15 

reasons as to why this bill is very, very dangerous, your bill. So 

rather than go through what they said and give you the list, some 

of them are very surprising like Girl Scout troops and others, unusual, send a letter. I want to get this to you, and if we could talk 

together about whether you agree that this criticism is in any way 

right, if you could fix your bill to respond to it, or if you just think 

this criticism is off the mark, I would love to know. 

But I am very fond of both of you. I want to find some common 

ground. I don’t know if we can with coal ash, but we will try. We 

will try. 

Senator INHOFE. Thank you, Senator Boxer. I would comment 

that Senator Hoeven made the comment that those pictures that 

were used, that is the whole purpose of doing this, so that won’t 

happen again. 

Senator BOXER. That is the purpose of the rule that you are 

weakening with this bill. 

Senator MANCHIN. If I could respond. 

Senator INHOFE. OK, just very shortly. 

Senator MANCHIN. Very shortly on that. I really respect and Senator Boxer and I have spoken about this before. Basically, it gets 

back to the people who don’t want any fossil burnt whatsoever, because the residual of fossil is coal ash, depending on what type and 

how you burn it, whether you have alkaline based for sulfur, taking 

SO2 out of the atmosphere, and then you have a byproduct. 

We are trying to find ways to use all of these products because 

they get impounded. The impoundment, the Federal Government 

did a poor job in monitoring that, and we have had this, as well 

as our colleagues from Colorado talked about just the blowout that 

they had. These things can be prevented and they should be prevented if they could. This bill will give us more certainty. 

If the States aren’t doing their job, the Feds have all the oversight and control of it. That is all we are saying. But it gives us 

some certainty to try to use a product in a valued way. 

Senator INHOFE. Thank you, Senator Manchin. 

Any brief response, Senator Hoeven? Then we are going to have 

to get to our panel. 

Senator HOEVEN. Well, I would like to respond directly to the 

points that the Ranking Member brought up. We have actually, 

46 

and I will enter into the record, a response to the letter that you 

brought up. 

Senator BOXER. Get it to me. 

Senator HOEVEN. We will. We have it. And if you want additional 

information, we will provide that as well. We would like to work 

with you and we have worked with the EPA on this. 

The only other point that I would like to make is that we don’t 

weaken the rule; we create certainty for the rule. In the same way 

we regulate other energy and other emissions where you have a 

State implemented program pursuant to EPA requirements, and as 

Senator Manchin said, the EPA still has oversight. So we are not 

weakening the rule; we are providing certainty so that the companies know what they have to do, rather than trying to guess on the 

basis of a potential lawsuit. 

Senator BOXER. Well, that is what happened in Flint; they let the 

State do it, and look what happened. 

Senator INHOFE. All right. Well, we will excuse the two of you 

and ask the panel to come forward. 

[Pause.] 

Senator INHOFE. Let me welcome our panel. I am sorry that we 

are a little bit late getting started with you guys, but we will make 

up for it. I would like to have the opening statement from each one. 

We will start with this side, with you, Ms. Krill, and ask you to 

try to keep it within the time that you were told, the 5-minutes, 

if you don’t mind. Ms. Krill. 

STATEMENT OF JENNIFER KRILL, 

EXECUTIVE DIRECTOR, EARTHWORKS 

Ms. KRILL. Thank you, Chairman Inhofe, Ranking Member Senator Boxer from my home State of California, and members of the 

Committee. Thank you for the opportunity to testify before you on 

the discussion draft of the Good Samaritan Cleanup of Orphan 

Mines Act of 2016. My name is Jennifer Krill. I am the Executive 

Director of Earthworks. 

For over a quarter century, Earthworks has worked closely with 

a broad coalition of local governments, Native American citizen 

groups, and other conservation organizations to improve the policies governing hardrock mining, including abandoned mine reclamation. In the wake of the August 5th, Gold King Mine disaster 

that the Senators from Colorado were discussing earlier that 

spilled millions of gallons of acid mine drainage into a tributary of 

Colorado’s Animas River, communities who live with the threat of 

old mines have demanded solutions. 

Sadly, this pollution problem is not limited to the Gold King 

Mine; it is nationwide and it is focused on the West. This pollution 

harms western waters and the communities that rely on them for 

agriculture, recreation, tourism, and drinking water. 

The Animas River running orange is a stark reminder, but does 

not adequately represent the hundreds of thousands of abandoned 

mines that litter the West, polluting water in more subtle, yet no 

less destructive, ways. There are many other ticking time bombs 

like the Gold King Mine, messy, complicated, and incredibly expensive to clean up, that cannot be solved by Good Samaritans alone. 

47 

According to the EPA, the estimated cleanup cost for abandoned hardrock mines total approximately $50 billion. Tackling this 

largescale problem requires a largescale solution: 1872 Mining Law 

reform. If the hardrock mining industry had been subject to a less 

antiquated law similar to the surfacing mining law that governs 

the coal industry, the Gold King Mine spill likely would not have 

happened. An independent, dedicated funding source for hardrock 

abandoned mine cleanup similar to the SMCRA program for coal 

cleanup is long overdue, and communities are suffering for it. 

Incentivizing the work of Good Samaritans can be one part of our 

Nation’s response to the problem of old hardrock mines, but, frankly, it is nowhere near enough. Earthworks has supported several 

legislative proposals in past Congresses that create narrow exemptions from Clean Water Act liability. Given the scope and scale of 

the problem and the technical complications at many old and inactive mines sites, it is important to carefully word any Good Samaritan legislation to adequately protect communities and water supplies. 

Good Samaritan permits must be reserved for true Good Samaritans, those entities that did not contribute to the pollution and are 

not interested in profiting from the reclamation. Any moneys from 

reprocessing of tailings at cleanup sites must be used only to offset 

the cost of the project. True Good Samaritans are not concerned 

about monetary gain, and Earthworks opposes any legislation that 

includes re-mining for profit. 

This legislation must include provisions to hold Good Samaritans 

accountable for mistakes where water quality onsite becomes worse 

than before reclamation began. 

Citizen suits provide accountability and ensure that agencies and 

permittees follow the intent and letter of the law. If something goes 

wrong, as had happened with the Gold King Mine, nearby communities must have access to the courts to adequately enforce all of 

our most important environmental laws. 

Earthworks applauds Senator Bennet and Senator Gardner for 

their work on the discussion draft this far, and we are happy to 

see some of our key issues have been addressed. Our written testimony includes more detail regarding key improvements to protect 

communities and the water resources that they depend on. 

We also look forward to moving beyond the Good Samaritan debate to get to the heart of the problem: a lack of funding for cleanup of these abandoned mines across the West. Good Samaritan initiatives that do not include a dedicated and significant funding 

source cannot solve the problem facing western communities and 

water resources. If this discussion draft becomes law, Good Samaritans will tackle a few reclamation projects, but the scope of the 

problem will dwarf their best efforts. 

Several legislative proposals have been introduced to update the 

1872 mining law, including S. 2275, the Hardrock Mining and Reclamation Act of 2015. Senators Udall, Bennet, Heinrich, Markey, 

and Widens’ legislation would bring us closer to ensuring that the 

Animas mine disaster does not happen again. This legislation 

would facilitate the cleanup of abandoned hardrock mines while 

creating tens of thousands of reclamation jobs across the West far 

into the future. 

48 

Thank you for the opportunity to present the views of 

Earthworks on this discussion draft, and we look forward to working closer with the co-sponsors and the Committee to solve the 

problem that abandoned mine sites pose to air, water, farmland, 

and public safety in western States. 

[The prepared statement of Ms. Krill follows:] 

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Senator INHOFE. Thank you, Ms. Krill. 

Mr. Holleman, you are recognized. 

STATEMENT OF FRANK HOLLEMAN, SENIOR ATTORNEY, 

SOUTHERN ENVIRONMENTAL LAW CENTER 

Mr. HOLLEMAN. Thank you, Mr. Chairman and Senator Boxer, 

for having me here. My name is Frank Holleman. I live in Greenville, South Carolina and I now work at the Southern Environmental Law Center. 

I am here on behalf of the communities of the Southeast to ask 

you please protect us from coal ash pollution by upholding the EPA 

coal ash rule and not adopting the proposed Senate legislation. 

The proposed Senate bill would gut minimum standard protections for our drinking water supplies that were put in place, at long 

last, by the EPA coal ash rule. Right at the beginning I would like 

to address two points. 

The EPA rule and strong coal ash regulation promotes recycling 

because it encourages the utilities to get this ash out of these unlined pits and do something with it. In fact, the recyclers have 

come to us to get us to help them get the recalcitrant utilities to 

act. That is one point. 

The second point is the EPA and strong coal ash regulation promotes jobs and economic development, and coal ash pollution hurts 

it. Let me give you specific examples. In South Carolina we have 

a new $40 million coal ash recycling plant purely because we forced 

Sandy Cooper to remove the ash from a coal ash lagoon. In North 

Carolina we produce jobs for everybody from the day laborer to the 

truck driver to the PAG geohydrologist in cleaning up coal ash. 

On the other side of the coin, I met the other evening with over 

100 families whose houses are around a coal ash site, and they 

can’t sell the house, they are not allowed to drink their water, and 

the real eState market in that area is dead. 

So if you want to promote economic development and you want 

to promote coal ash recycling, the EPA rule and strong enforcement 

is the way to go. 

Here is the problem: Our utilities, and others, I believe, have 

stored millions of tons of industrial waste containing arsenic and 

lead in unlined pits next to drinking water supplies, held back by 

dikes made of earth that leak. It is hard to believe, but it is true. 

Our groundwater has been contaminated. You have seen the pictures about how sites have collapsed into our rivers, and we have 

had river pollution, as well as damage to drinking water supplies. 

We have seen catastrophes in Kingston and on the Dan River in 

both North Carolina and Virginia, and we in the Southeast, Mr. 

Chairman, we have learned some hard lessons, and I have learned 

them. I didn’t know these lessons a few years ago. First, and this 

is a true statement, we cannot count on our State agencies and our 

utilities to protect us. I wouldn’t have believed this, but I will tell 

you why it is true. In North Carolina, Duke Energy refused to 

spend a few thousand dollars to inspect the pipe that broke at Dan 

River, even though its own staff asked for the money to do it and 

dam inspectors had warned them, and the State agency never 

made them do it. 

57 

In North Carolina, while Duke Energy’s companies pleaded 

guilty 18 times to 9 Federal coal ash crimes, a United States District Court found that the State agency, which this bill would leave 

us at the mercy of, had done ‘‘little, if anything’’ to pursue a State 

enforcement action against Duke. In fact, and this is hard to believe, too, but it also is true, just 17 days after the Duke Energy 

companies pleaded guilty to coal ash crimes and were placed on 

criminal probation, their executives were hosted at a private dinner 

at the Governor’s mansion with the State’s chief environmental law 

enforcement officer. 

In Virginia, the State agency refuses to adopt protections that 

are even in place in South Carolina, and even the State of Maryland is litigating with the State of Virginia in Virginia’s own State 

courts. 

In Tennessee, the State administrator said he brought suit 

against TVA when the citizens wanted to pursue enforcement because he thought ‘‘TVA would rather be dealing with us than a 

Federal judge.’’ 

The bottom line is this: This Senate bill would take power from 

the people and give it to State bureaucracies, and these are State 

bureaucracies which have failed us over and over and over again. 

The beauty of the EPA rule is that it gives us, the people in these 

communities, in Anderson County, South Carolina, in Pickens 

County, South Carolina, in Wilmington, North Carolina, the ability 

to protect ourselves. 

Your Honor, Mr. Chairman, Senator Boxer pointed out the problem in Flint, and we have learned from Flint what happens when 

government does not take effective action to protect our water supplies. I can tell you I traveled all over the Southeast. There is not 

one person in the Southeast and the Carolinas who is asking this 

Congress give us less protection from coal ash pollution. And this 

is everybody from the Tea Party to no party. 

Thank you. 

[The prepared statement of Mr. Holleman follows:] 

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Senator INHOFE. Thank you, Mr. Holleman. You don’t very often 

hear people say that they are more concerned about the big bureaucracy at the State level than at the Federal level. 

Mr. Moyer. 

STATEMENT OF STEVE MOYER, VICE PRESIDENT FOR 

GOVERNMENT AFFAIRS, TROUT UNLIMITED 

Mr. MOYER. Mr. Chairman, Ms. Boxer, thank you very much for 

the opportunity to testify today on the Good Samaritan draft bill. 

We deeply appreciate the honor to be before the Committee and do 

that. 

I am here on behalf of Trout Unlimited and its 150,000 members 

nationwide. Our members hunt and fish and recreate and live in 

communities across the Country that are affected adversely by 

abandoned mines, so we have seen firsthand the devastation that 

abandoned mine pollution can cause to watersheds and communities. But, as a Good Samaritan, we have also experienced firsthand the opportunity for recovery at these same locations. 

TU has been a good Sam and has worked to restore streams and 

rivers damaged by abandoned mine pollution from the Appalachian 

coalfields in Pennsylvania to the hardrock mines in the Rocky 

Mountain States, so we are informed by these experiences and our 

message today is really simple: abandoned mine pollution is a 

widespread problem and we need to be more aggressive in addressing it. But the good news is that much of the problem is fixable, 

and this draft bill is a good step toward solving some of these problems. 

We are grateful for the impressive draft bill accomplished 

through the hard work of its authors. It is a thoughtful blending 

of the past legislative approaches into a workable new model. 

There may be room for improvement in some areas, but we regard 

the overall draft as a significant bipartisan breakthrough, and we 

urge the Committee to give the draft strong consideration and 

eventual approval. 

We face some daunting challenges on abandoned mine cleanup. 

The Gold King accident, which has been mentioned several times 

already, last August reminded us of those challenges. But while 

Gold King received extensive media coverage, what is less well 

known is that there are thousands of similar, smaller scale abandoned mines that pollute our rivers and streams every single day. 

Cleaning up abandoned mines is challenging and expensive, we 

agree with that, but that does not make it any less imperative. 

According to the EPA, abandoned hardrock mines affect about 40 

percent of the headwaters in the Western United States. But also 

in the East pollution from abandoned coal mines continues to damage thousands of miles of streams and rivers, over 10,000 miles 

just within Pennsylvania and West Virginia alone. 

We and others have developed a number of model abandoned 

mine cleanup projects that can be easily replicated. In Pennsylvania, aided by sound State-based Good Sam policy, watershed 

groups, including Trout Unlimited, are working with State agencies, communities, and other partners to conduct more than 250 

abandoned coal mine pollution control projects. Kettle Creek Watershed, in north central Pennsylvania, being just one example, has 

76 

seen dramatic water quality and fisheries restoration through this 

work. 

In Colorado, the western leader in abandoned mine cleanup 

work, TU, again in partnership with State and Federal agencies 

and private landowners, has used the limited Good Samaritan tools 

afforded by EPA under current law to good effect in restoring 

Kerber Creek in Colorado. 

Both these projects are described more fully in my written testimony. 

Despite this progress, the lack of dedicated funding sources and 

burdensome liability risks for would-be Good Sams has hindered 

abandoned hardrock mine cleanups. In particular, as I mentioned, 

two of our best environmental laws, CERCLA and the Clean Water 

Act, produce barriers to this work. 

So that is why we are here. We need the legislation to support 

Good Sam cleanup, and it is really needed today to allow some good 

projects to go forward. 

Just a few words about the draft bill. It deals narrowly and appropriately with CERCLA and the Clean Water Act; it would allow 

Good Sam projects to be eligible for Clean Water Act Section 319 

funding; it would allow approved States and Tribes to run the program; it provides protection from future liability from the two laws 

once Good Sams have successfully completed their permitted work 

activities; and just last, another consideration as the bill goes 

through the legislative process, we urge the Committee to consider 

fine-tuning enhancements to the permit mechanism in the bill that 

might diminish the permit burden for some low environmental risk, 

low complexity projects. 

The draft does not address Good Sam policies for abandoned coal 

mine pollution, and we fully understand the reasons for not including coal Good Sam provisions, but coal Good Sam legislation is 

needed, but we really urge all stakeholders to seek ways to address 

coal Good Sam policy without undermining this really promising effort that we are talking about today. 

So just to conclude, we really appreciate the Committee’s focus 

on these issues and we urge the Committee to continue to work 

with us and the States and EPA and other stakeholders to help 

provide a really badly needed tool to facilitate these cleanups. 

Thank you very much again for the opportunity. 

[The prepared statement of Mr. Moyer follows:] 

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Senator INHOFE. Thank you, Mr. Moyer. 

Mr. MERRIAM. 

STATEMENT OF CHIP MERRIAM, VICE PRESIDENT, LEGISLATIVE, REGULATORY & COMPLIANCE, ORLANDO UTILITIES 

COMMISSION, ON BEHALF OF THE AMERICAN PUBLIC 

POWER ASSOCIATION 

Mr. MERRIAM. Mr. Chairman and Ranking Member Boxer, 

thanks very much for allowing me to speak today. My name is Chip 

Merriam. I am the Vice President of the Legislative and Regulatory 

Compliance area of the Orlando Utilities Commission. We call ourselves OUC, the Reliable One. 

We are the second largest municipal utility in Florida and the 

fourteenth largest in the Nation. We provide affordable, reliable, 

and sustainable energy to more than 234,000 meters in the city of 

Orlando, the city of St. Cloud, and in unincorporated areas Orange 

and Osceola Counties. 

One of the things we wrestle with, we are now again at the recession of a growing area. But 40 percent of our ratepayers still 

today earn less than $35,000 annually. So the cost of implementing 

regulatory programs and meeting those requirements is something 

that is very important to us. 

OUC is a member of, and today testifying on behalf of, the American Public Power Association, a national service organization representing the interests of over 2,000 community-owned, not-forprofit electric utilities that actually provide electricity to over 48 

million Americans. We are your neighborhood utilities. 

OUC operates two coal plants and we are currently constructing 

a solar farm right now on the footprint of a 90-acre coal ash landfill. We do not impound coal ash; we actually do a landfill process, 

similar to a municipal storage waste system. 

And had the Environmental Protection Agency not classified into 

this river rule that CCRs are hazardous, we may not have been 

able to do what we are doing today, which is actually on the top 

of this closed landfill installing many megawatts of solar energy. 

Additionally, we understand the impact of a carbon-constrained 

environment at this point in time. We are looking at an additional 

expansion for a coal pile which we are turning into another solar 

field at this particular point in time as we look to the future. Our 

industry is changing. We recognize that. 

However, constructing in Florida coal residual landfills is very 

complex. Because the facilities are going to be operated and used 

for many decades, one of the things we actually like to see in the 

State regulations, which our State does a very good job at, is governing the construction, the operation, the monitoring, and even 

the closures, and they do it on the engineering basis and on a 

science basis to make sure that these are protective of the environment. Having rules that are conflicting, like this particular rule 

will provide for our organization to deal with, gets us into a position of a very impossible to meet compliance requirement. 

We just provided a 30-acre expansion of our landfill. It is lined. 

It is overbuilt. It goes beyond the requirements of municipal waste 

storage. For the 30-acre expansion it was $15 million for these 

same people that I just described as our ratepayers. My written 

90 

testimony actually describes what was required by our State in 

order to do this. 

Our ratepayers and our governing body insist that we manage all 

the surrounding resources in a manner that are responsible, visionary, and affordable. In fact, when we built our power plant in the 

1980’s, it was a long way outside of town. Today we are surrounded 

on one side by a county landfill, but on the other side by golf course 

communities. So that is the type of infill that has been created 

near our particular power plant. 

As Senator Hoeven and Senator Manchin described, Subtitle D 

is self-implementing. One of the difficulties for us in this industry 

is trying to read between the lines of what the risk is and what 

it looks like, and trying to make sure we are building something 

that is compliant and we are not going to be spending time in court 

defending what we believe was the correct thing to do. 

We actually believe in the State’s regulatory program and we 

think that it is very thorough. Our facilities, when these types of 

rules come forward, are confronted with conflicting Federal and 

State requirements. We believe, as we read this particular bill, bill 

2446, that this actually takes away the conflict we have to deal 

with; it does make, as the two Senators said, give us more direction 

and even raise the power a little bit on the regulatory process. 

We do not see a loss in our particular State, as an example, of 

citizens’ input; we actually see an addition. In our State process 

there is an administrative procedure process that is actually part 

of your permit. You can challenge my permit any time I make a 

change in it. Further, you can go forward and you can challenge 

it civilly if you don’t get the answer you want from the State, and 

you can challenge these in the process on the EPA side. 

I was a former regulator for 20 years. I was also responsible for 

water quality and most of the Everglades restoration projects. 

There is no value in destroying the environment that surrounds the 

product that you are dealing with, trying to provide benefit for this, 

your ratepayers. I took great pride in every regulation I made, 

every rule I made, and every permit I issued that it was balanced, 

it protected the unique environment of Florida, and that I stood by 

the decisions I made and made sure that those were implemented 

correctly and there was no risk to the environment or those who 

were complying with the rules. 

Mr. Chairman, I will end at that point in time. 

[The prepared statement of Mr. Merriam follows:] 

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Senator INHOFE. All right, right on 5 minutes. Thank you. 

Mr. KIRBY. 

STATEMENT OF PATRICK KIRBY, DIRECTOR, NORTHERN WEST 

VIRGINIA BROWNFIELDS ASSISTANCE CENTER 

Mr. KIRBY. Thank you, Mr. Chairman and Ranking Member 

Boxer and the Committee members for the opportunity to be here 

today. I am Patrick Kirby. I am the Director of the Brownfields Assistant Center at West Virginia University. I am here to talk about 

how the funding and support provided by the U.S. EPA brownfields 

program would be enhanced through the BUILD Act. 

Brownfield projects across rural West Virginia and the thousands 

more across the Country would benefit from the expanded 

brownfield assistance provided in the BUILD Act. In terms of an 

example to begin the process of how that would happen would be 

the kind of project that could benefit would be the Taylor, Smith 

& Taylor site in Chester, West Virginia, which is home to the 

world’s largest teapot. If you haven’t been there, you should; it is 

quite the site to see. 

The TS&T site is an 8.65 acre former pottery manufacturing site 

closed in 1982 after 80 years of manufacturing the famous Taylor, 

Smith & Taylor ceramics and fine pottery. 

This brownfield site is still the first image travelers see when 

crossing from the Ohio River into West Virginia. The site sat vacant for more than 30 years, until it was purchased by a local economic development authority in 2011. Now, that was a challenging 

process, just structuring the deal with Federal regulators, State 

regulators, a private property owner. It was a massive undertaking 

that also involved specifically the community. There was a project 

task force put together where the community met every month for 

over 5 years; they are still meeting now. 

The site was assessed and cleaned up using EPA brownfield 

grants, and the economic development authority is still currently 

working with the task force completing remediation of the river 

bank as the last phase of the cleanup to prepare building a $2 million building that is going to be leased by a job-creating prospect, 

which is actually funded privately. 

The BUILD Act would have helped this project in three distinct 

ways: a multipurpose brownfield grant, which is proposed in the 

BUILD Act, would have reduced the project time by as much as 3 

years, which would have brought jobs and public health benefits to 

the community sooner, while maintaining the same high environmental safety standard. The project would have also significantly 

benefited from a higher maximum cleanup grant proposed by the 

BUILD Act. Currently, the remediation grants are topped at 

$200,000 and would be expanded under the BUILD Act. 

While this is also a highly visible project being viewed by motorists both within West Virginia, coming from Ohio through West 

Virginia to Pennsylvania and vice versa, the village of Chester is 

a rural community of 2,551 people, and they could have really utilized the proposed technical assistance grants that are in the 

BUILD Act, as well as the removal of the prohibition of administrative costs that are currently in the grant. 

97 

While that seems like a small change, as we have all heard 

today, the process of going through managing Federal grants and 

managing Federal programs is challenging, especially for the rural 

communities. 

So the projects that will be impacted by the BUILD Act are not 

hypothetical. There are major opportunities for environmental remediation and economic redevelopment that exist in communities 

across all of rural America, and they are in need of additional assistance the legislation would provide. 

The Brownfields Assistance Center at West Virginia University 

partners with the West Virginia Department of Environmental Protection and the West Virginia Development Office to help communities access these Federal resources and help with revitalization 

efforts to move forward for appropriate site reuses. We have 

worked on over 150 brownfield projects since our creation in the 

last 10 years from former glass, pottery, and steel factories to 

former gas stations, foundries, and maintenance facilities, creating 

community assets and sites ready for job-creating facilities. 

We are currently working on over 60 specific projects in 32 West 

Virginia communities spanning 23 countries. Through our work 

with communities and through the EPA brownfields program, we 

have used $13 million in brownfield grants to leverage over $62 

million in private and local investment. 

With 7.4 jobs being leveraged for every 100,000 of EPA’s investment in West Virginia, we safely estimated the creation or retention of 1,000 jobs due to brownfield redevelopment. That is 

progress, but there are more sites to reclaim, there are more jobs 

to create, and there are more communities to revitalize. With 391 

communities with less than 15,000 in West Virginia alone, there 

are many more potential projects for the BUILD Act to impact and 

improve the rural landscape across the Country. 

In conclusion, brownfields redevelopment improves local economies, increased municipal budgets, creates jobs, spurs private investment, and protects public health and the environment. 

I thank you for the opportunity to be at this hearing and to share 

the positive impacts the BUILD Act would have on rural West Virginia and all over the Country. 

[The prepared statement of Mr. Kirby follows:] 

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Senator INHOFE. Thank you, Mr. Kirby. Excellent statement. 

I agree with the EPA’s decision that coal ash is a non-hazardous 

waste, and I can assure you, in case you are wondering, that there 

are not 60 votes in the U.S. Senate that would change that ruling, 

so Congress should amend RCRA to authorize the State permitting 

programs for coal ash. The President supports it. 

As Ranking Member Boxer noted at last year’s hearing on EPA’s 

coal ash regulation, authorizing State permitting programs ‘‘is really not that different from so many other laws. If you want to talk 

about permitting, I would be happy to work with you to make that 

fix, if necessary.’’ Now, I agree. I see no reason why coal ash should 

not be regulated through the EPA’s approved State permitting programs, just like air, water, and hazardous waste. 

I have served in different capacities, Mr. Holleman. I have served 

as mayor of a major city; I have served in the State legislature; I 

have served in Congress; and I have served in the Senate. It has 

been my experience that the closer you get to the people, the more 

local, the more responsible the decisions are, because they can find 

you. You can hide up here; you can’t hide when you’re in a city 

council. So I reject the idea that you can’t count on, and I am 

quoting now, I think, Mr. Holleman, you can’t count on States to 

protect us. I don’t agree with that at all. 

Mr. Merriam, the President supports Congress amending RCRA 

to establish State permitting programs. S. 2446 establishes State 

permitting programs. Now, if we don’t pass it, what enforces regulation for coal ash? What enforcement is out there if we do not pass 

this? 

Mr. MERRIAM. Well, my belief, Mr. Chairman, is that we would 

be subject to the citizen lawsuits, and then we would actually be 

taken into a Federal court in order to determine the remedial action or the remedy for what is believed to have been an impact. 

Senator INHOFE. And who benefits from the increase in lawsuits? 

Mr. MERRIAM. Pardon me? I couldn’t hear you. 

Senator INHOFE. I will give you the answer: trial lawyers. 

Mr. MERRIAM. OK. 

[Laughter.] 

Senator INHOFE. What other environmental regulations are solely enforced by outside lawsuits by trial lawyers? 

Mr. MERRIAM. Mr. Chairman, I have to tell you I have done this 

for a long time and, again, I was a regulator and dealt with some 

fairly significant laws. 

Senator INHOFE. You mentioned you were a regulator for 20 

years? 

Mr. MERRIAM. For almost 20 years, 19 and a half years, yes, with 

the South Florida Water Management District. And in that I had 

never seen a rule that was self-implementing in this way from the 

Federal Government that actually had an outcome that I would be 

taken to a process that was in Federal court. 

Now, I will also admit to you that it had happened under our numeric nutrient criteria on the clean water side. There was a citizens group that did challenge the State of Florida. We passed legislation in the State in order to make that still a State-owned product and work with EPA in that process. 

102 

Senator INHOFE. Mr. Holleman, is your opposition to setting up 

State regulatory programs for coal ash because it would undermine 

your business model for filing lawsuits and collecting attorney’s 

fees? 

Mr. HOLLEMAN. Certainly not, Mr. Chairman, as you must know 

by asking that question. I should tell you that until 5 years ago I 

was in a private law firm in Greenville, South Carolina that was 

probably one of the State’s leading corporate law firms, until I decided to spend full time working to try to protect the environment. 

You should know we aren’t trial lawyers; we don’t sue for money; 

we don’t sue for attorney’s fees. We sue to protect communities and 

get them to clean up. 

Senator INHOFE. I see. 

Mr. HOLLEMAN. If I could respond to your statement to me. And 

I would emphasize this, Mr. Chairman. What is at stake are not 

lawyers. There hasn’t been a lawsuit yet that I am aware of under 

this Act. In North Carolina, Duke Energy has already built a coal 

ash landfill and complied with the law. And I would expect they 

will, and we haven’t challenged those. This is not about lawyers. 

We need to be clear about this. 

Senator INHOFE. Well, OK. 

Mr. HOLLEMAN. This is about the people I saw with my own eyes 

in Salisbury, North Carolina who cannot sell their homes, who are 

concerned about their families. 

Senator INHOFE. OK, you already had your opening statement. 

Mr. Merriam, I am running out of time here. Would you like to 

respond to that? Mr. Holleman’s testimony claims EPA’s rule would 

limit citizen suits and gut groundwaters for coal ash facilities. You 

want to clear the record in your opinion? 

Mr. MERRIAM. The way I read the rule, as Senator Hoeven and 

Senator Manchin had brought into their discussion, it actually 

brings in the rule for the groundwater monitoring and those requirements into the Act. I have many on our site monitoring wells. 

We have to protect the groundwater in our systems and we have 

to protect it. Again, it is our backyard; we drink the water also. 

Senator INHOFE. Do you agree with my statement that, from my 

personal experience, the closer you get to the people, whether at 

the city level, the State level, as opposed to Federal level, the more 

responsible and responsive to the citizens results? 

Mr. MERRIAM. Absolutely, Mr. Chairman. Like I said, I drink the 

same water we manufacture for potable water, I use the same energy and I live in the same neighborhoods as those people who pay 

salary. 

Senator INHOFE. That makes a difference, doesn’t it? 

Senator Boxer. 

Senator BOXER. Thanks. 

I want to say, Mr. Merriam, it is good that you live in a State 

that cares. Unfortunately, not every State is as good as your State 

or my State. So you can’t really be here and speak for the whole 

Country as much as you are trying to. 

I learned from my dad, who was a lawyer, never ask a question 

you don’t know the answer to. So, Mr. Holleman, that was a great 

question my colleague asked you, and you had a great response; 

and it says it all. It says it all. This isn’t about lawyers. 

103 

What I love about my Republican friends, and I do love a lot 

about them, they attack lawyers all the time. But when they need 

one, boy, they get the best one. We all do. So it depends what side 

of the fence you are on. And when you worked for corporations, I 

am sure my colleague was rah-rahing you all the way. 

The bottom line is what happens to people. Now, my colleague 

quoted me saying I am happy to work about State permits. That 

is fine. But I want to say two things about that. There has to be 

Federal minimum standards. And the problem with the bill that 

Senators Hoeven and Manchin have, there is no Federal standard. 

So people aren’t protected. 

So I am not going to deal with that issue unless we have minimum protections. That is essential. Whether it is a TOSCA law or 

anything else, we have to make sure people are protected; there is 

some kind of floor. And then if the States want to do more, that 

is fine with me. The more the better to protect clean air and water. 

As I often say, no one has ever asked me, as you pointed out, 

please weaken our clean water rules; I really don’t want to have 

sure pure air or water. Baloney. They want it better. 

And the other thing that has shaken my view, I say to my friend, 

is the Flint story. Because I did say I am very willing to work with 

a bill that has minimum standards and then the States permit. But 

after seeing the corruption in Flint, the out-and-out corruption, and 

the corruption, Mr. Holleman, you talked about. I am going to ask 

you to expand on that one more time. You pointed out not that you 

favor bureaucracy. I never heard you say that. That is what my colleague sort of put words in your mouth. You never even used the 

word bureaucracy. You said what you saw at the State level was 

out-and-out cronyism, to put it in the mildest form. 

Would you repeat that you said about that? 

Mr. HOLLEMAN. Well, what we saw, and I wouldn’t have believed 

this, Mr. Chairman, I didn’t expect this from my past life, frankly, 

but as soon as we began to enforce the law in North Carolina on 

behalf of local citizens, and I agree with you local communities 

need to maintain their ability to defend themselves. That is where 

the authority needs to be, in the people, not just in the government. 

But as soon as we started enforcing the law, in my experience, 

when I grew up in Oconee County, South Carolina, when law-abiding people report law breaking to the law enforcement authorities, 

I expect the law enforcement authorities to communicate and work 

with the law-abiding people who reported it. 

But what we discovered in official documents, almost as soon as 

these events were reported to the State and the utility, the utility’s 

lobbyist and its lawyers immediately began meeting with the State 

law enforcement authorities. They weren’t meeting with us, they 

were meeting with them to come up with the strategy to do us in. 

And the very things we reported later formed the basis of the 

criminal guilty pleas to Federal crimes in response to charges 

brought by the United States Department of Justice. 

And as I said before, 17 days after those Duke Energy companies 

pleaded guilty 18 times to 9 crimes, and were placed on Federal nationwide criminal probation, their executives were hosted at a private dinner at the Governor’s mansion with the State’s chief enviVerDate Aug 31 2005 11:39 Sep 07, 2016 Jkt 000000 PO 00000 Frm 00107 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\20939.TXT VERN
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ronmental law enforcement officer, which had pending at that time 

a number of charges against Duke Energy. 

Senator BOXER. Well, Mr. Holleman, I just want to say you are 

the best witness that I have ever had on my side of an issue, for 

many reasons. You are very articulate; you worked for the busy 

side of it; you see the picture; and you are motivated by doing what 

is right. And I hope that we will keep that in mind before we pass 

weakening amendments to the coal ash rule that would, without 

minimum standards, minimum standards, allow these State people, 

with all their cronyism, to move forward. 

And, by the way, Federal agencies are not protected completely 

from this type of cronyism, but it is a little bit easier to monitor 

them from here. 

Thank you. 

Senator INHOFE. Senator Capito. 

Senator CAPITO. Thank you, Mr. Chairman. 

I want to thank all of our witnesses here today. I particularly 

want to thank Mr. Kirby from WVU for being here, and I want to 

recognize his two children who are in the audience, Wyatt and 

Katherine. If you all would stand up so we can say hello. There 

they are. Thank you. They are learning that government gets 

along, doesn’t always agree, and it can be quite interesting at the 

same time. So thank you all and thanks for coming. 

Mr. Kirby, you are doing great work on the brownfields issue in 

West Virginia, and I am glad to know that you agree that the 

BUILD Act will help you with that. I would like to know, in your 

experience, what are the challenges faced by small communities? 

You sort of addressed this in your opening statement, in competing 

for the brownfield grants. 

For example, do they have the same experience and access to 

technical expertise? I am sure this is where you aid those local 

communities like Chester. What can we do to make sure that our 

local communities, rural communities, small communities, are able 

to get the technical expertise they need to access these grants? 

Mr. KIRBY. This is being seen in the BUILD Act with some technical assistance grants that were put in, but also we work a lot 

with private foundations now, and they are recognizing the need 

for communities to have access to technical assistance even to 

apply for grants that everybody gets a fair shake, but when you 

walk into a city manager’s office and you say here is an opportunity, it is a $200,000 grant, it has a 56-page guideline. They already had their plate full that day and it is hard enough to understand what a brownfield is. So then they look at their projects and 

they say this is going to be a little overwhelming. 

So with us able to work on 60 projects, when there are 10 times 

that many that we could be working on in the State, so the technical assistance grant within the BUILD Act, as well as building 

that local capacity, which we have been doing through some programs funded through private foundations. 

Senator CAPITO. Great. Well, I want to thank you, too, I know 

you are working with the Town of Shepherdstown on their new 

public library brownfields project, so we look forward to that. I 

think the Ranking Member and the Chair, we could get them over 

there because that is a pretty close part of West Virginia to see. 

105 

And also in the city of Charlestown, one of the first brownfields 

that I worked on was American Public University, which was an 

old Maytag, I think, factory and now I think there is 60 solar panels out there along with other wonderful educational opportunities. 

So I know we are doing good things there and I appreciate that. 

I would like to say, since Senator Manchin has left, he is obviously my colleague, I have been on Capitol Hill for several years. 

We haven’t quite found the answer to this. I went to a dam that 

was celebrating its 50 year anniversary of construction. We will go 

to just about anything at certain times of the year. And I was just 

amazed to realize that this dam, 50 years old, was built with coal 

ash. So it is a very durable product when it is recycled and used 

in construction. So I think we want to try to make sure that we 

retain that ability while maintaining the safety and security of our 

water supplies and all those issues. 

So what I hear you saying, Mr. Merriam, is that you are not conflicted, but you feel like there are conflicts that exist in the law 

now that this coal ash bill would help to mediate. But at the same 

time you keep talking about the rule being self-implementing. So 

for people who don’t really understand what a self-implementing 

regulation is, could you kind of explain that what means from your 

perspective? 

Mr. MERRIAM. Thank you, Senator. From my perspective, typically, rules come and go through a very vetted process, public process, lots of comments. Rules go through periods of challenge and 

actually you have the ability to work with the agencies and the 

public gets to be active within that process also. We don’t see that 

same level of activity when you have a self-implementing rule, especially one that has limited access even for us to make further 

comments on. 

We don’t disagree with Ranking member Boxer that there needs 

to be minimums. We also agree that the State should strive and 

exist the minimums; however, we believe that the bill today does 

have minimums in there that is cited in the code of Federal requirements and so forth. So it is an unusual process having this 

type of process move forward. It is not one we had a lot of comment 

period in order to put our concerns online, and to build these 

things and to do them correctly. It is nice to know what the floor 

is so if we choose to go to the ceiling in meeting the regulations, 

we can do that without risk of additional lawsuits that may be because the Federal requirements are different than the State requirements and different from how we interpret the actual requirements in the rule. 

Senator CAPITO. All right, thank you. 

Thank you, Mr. Chairman. 

Senator INHOFE. Thank you, Senator Capito. 

Senator Barrasso. 

Senator BARRASSO. Thank you very much, Mr. Chairman. 

I would first like to take a moment to speak on S. 2446, introduced by Senators Hoeven and Manchin. My home State of Wyoming is a coal State. The issue of regulating the byproduct of burning coal is a very important issue to my constituents. The EPA decided, after public comment, that regulating this byproduct as hazardous was the wrong approach to storing coal ash. The EPA deVerDate Aug 31 2005 11:39 Sep 07, 2016 Jkt 000000 PO 00000 Frm 00109 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\20939.TXT VERN
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cided it was better to regulate it as a solid waste, and I agree. 

There is clearly need for legislation on this issue. 

As written testimony before us today spells out, without legislation, there would likely be conflicts between State programs and 

the EPA rule. So I commend Senators Hoeven and Manchin for trying to solve this issue. As the bill continues to move forward, I 

want to ensure that States have the certainty that they need that 

the EPA won’t move the goalposts or impose unnecessary criteria 

in the face of legitimate State plans that are based on sound 

science. So I am going to work with the bill sponsors, members of 

the Committee, and you, Mr. Chairman, to ensure that the States 

are adequately protected in this legislation. 

Which leads me to my question for Mr. Merriam. In written testimony by some other witnesses here today and by outside groups 

who oppose the legislation, there is a constant theme that seems 

to be appearing. The theme is that somehow States aren’t up to the 

task of protecting communities, and that by giving States more 

control over addressing coal ash storage we are somehow taking 

power away from local communities. I believe it was Mr. Holleman, 

who is shaking his head yes, who said in his written testimony that 

this takes power away from local communities and gives it to State 

bureaucracies. 

So my question is if we give EPA all the power to address coal 

ash, how does that not take power away from local communities 

and simply just give it to Washington? 

Mr. MERRIAM. And I think the Chairman actually brought that 

point up, too, Senator. It is, in our particular situation, nice that 

we are responsible to the community that we serve. It is also important that we work with the State. It is a lot easier for the taxpayers and the citizens of Florida, as an example, to come to Downtown Orlando than it is to go to Tallahassee for public hearings 

and for some requirements, or to get to the Washington offices in 

order to make these, or even Atlanta for our Region 4. We very 

much listen to our citizens in our communities and it is a very important part of how we do business. 

We also work very closely with the State as they do regulations 

so that there is not just consistency, but there is flexibility, which 

is a part of the preamble of this particular rule, but we work with 

the flexibility in that to make sure that those rules are applied 

with the flexibility on a site-by-site basis. Hydrology is not the 

same in every State, not within every State, and this allows us to 

write almost a prescriptive way to do the best we can to protect our 

resources. 

Senator BARRASSO. Thank you, Mr. Merriam. 

Ms. Krill, I want to talk about the record of this Administration’s 

EPA for a moment, especially as it relates to addressing the needs 

of local communities impacted by the Gold King Mine Animas 

River spill. Yesterday there was an opinion piece in a national 

paper written by Ryan Flynn, who is New Mexico’s Secretary of the 

Environment, and he wrote about the EPA’s response to the spill. 

The piece was entitled Downstream From a Slippery EPA. This is 

from the New Mexico Secretary of Environment, and he states, 

‘‘About 2 weeks after the spill, the EPA released an environmental 

107 

standard for the Gold King Mine sediment that was in order of 

magnitude weaker than those applied to other polluters.’’ 

So the EPA sets a standard for itself weaker than those applied 

to other polluters. He went on to say, ‘‘Even months later, although 

the EPA yellow water has passed, the EPA’s data shows that 

storms have disturbed contaminated sediment, have pushed lead 

levels back above the tolerance for safe drinking water.’’ 

So as the Secretary of Environment of New Mexico points out, 

EPA persisted in claiming, in spite of that, that the watershed had 

returned to pre-spill conditions, and he said, look, ‘‘this has been 

a campaign of minimization and misdirection by the EPA.’’ This is 

the Secretary of Environment for New Mexico. 

So as you mentioned in your written testimony, the EPA is responsible for the spill, and it appears that they are not protecting 

the local communities and the Tribes dependent on this water but 

are, instead, misinforming the public about the health hazards to 

protect themselves. 

So my question is, what is your opinion of EPA’s record with regard to this spill, and do you support empowering the States and 

others with the tools necessary to solve these and other environmental problems, rather than empowering the EPA that has this 

level, which to me seems irresponsible? That is the question regarding how they run things versus what they make others do. 

Ms. KRILL. Well, thank you for the question. I have not read the 

op-ed that you mentioned, so I can go back and review that later. 

We do support empowering the States through reforming the mining law of 1872, which would create a reclamation fee and a fund 

that would then be distributed by the States in order to manage 

cleanups of these technically complicated sites. If 1872 mining law 

reform had passed when it was first introduced in 1993, or any 

time subsequent from then, then the EPA wouldn’t have been onsite doing the job that it was doing in the headwaters of the 

Animas River. 

Senator BARRASSO. Thank you, Mr. Chairman. 

Senator INHOFE. Thank you, Senator Barrasso. 

I want to thank the panel. It is a very good panel. I do apologize 

you had to wait quite a while because we had members that were 

in here and, you know, Senators do sometimes talk a little bit 

longer than other people. But thank you very much for being here. 

Senator BOXER. Speaking of that, could I make a closing statement of a minute? 

Senator INHOFE. One minute. There we go. 

Senator BOXER. I thank you. 

Senator INHOFE. All right. 

Senator BOXER. To the issue of minimum standards, Mr. 

Merriam, because I think we can work together here, the problem 

that we have in the bill that was introduced by my friends, Senators Hoeven and Manchin, is that it eliminates one, two, three, 

four, five, six, seven of the minimum standards in the rule, and it 

significantly delays one, two, three, four, five, six others, and it prohibits the EPA from enforcing in three circumstances. So, yes, 

there are some minimum requirements on process, but on protection of the people they are just not there. 

108 

I do think we can work together to try to get something accomplished, but I am with Mr. Holleman and Ms. Krill, and all of you 

who I know want to protect the people. Let’s make sure what we 

do doesn’t lead to another Flint, Michigan. If there ever was a poster child for walking away from responsibilities and leaving it to 

folks and letting them decide what to do, that is the example. 

And, Mr. Kirby, thank you. I think that this bill that my colleague, Senator Capito, lauded, I laud it as well. I think it is an 

occasion where we can all work together. Thank you very much. 

Senator INHOFE. I would agree with that. 

Without objection, I am going to make as part of the record the 

article that Senator Barrasso referred to. 

[The referenced information follows:] 

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Senator INHOFE. Thank you very much. We are adjourned. 

[Whereupon, at 11:03 a.m. the committee was adjourned.] 

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Æ