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95–633 2016

H.R. lll, THE IMPROVING COAL 

COMBUSTION RESIDUALS REGULATION ACT OF 

2015 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ENVIRONMENT AND THE 

ECONOMY 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

MARCH 18 & 24, 2015 

Serial No. 114–22 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

(II) 

COMMITTEE ON ENERGY AND COMMERCE 

FRED UPTON, Michigan 

Chairman 

JOE BARTON, Texas 

Chairman Emeritus 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

JOSEPH R. PITTS, Pennsylvania 

GREG WALDEN, Oregon 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

Vice Chairman 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

GUS M. BILIRAKIS, Florida 

BILL JOHNSON, Ohio 

BILLY LONG, Missouri 

RENEE L. ELLMERS, North Carolina 

LARRY BUCSHON, Indiana 

BILL FLORES, Texas 

SUSAN W. BROOKS, Indiana 

MARKWAYNE MULLIN, Oklahoma 

RICHARD HUDSON, North Carolina 

CHRIS COLLINS, New York 

KEVIN CRAMER, North Dakota 

FRANK PALLONE, JR., New Jersey 

Ranking Member 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

JANICE D. SCHAKOWSKY, Illinois 

G.K. BUTTERFIELD, North Carolina 

DORIS O. MATSUI, California 

KATHY CASTOR, Florida 

JOHN P. SARBANES, Maryland 

JERRY MCNERNEY, California 

PETER WELCH, Vermont 

BEN RAY LUJA ́ N, New Mexico 

PAUL TONKO, New York 

JOHN A. YARMUTH, Kentucky 

YVETTE D. CLARKE, New York 

DAVID LOEBSACK, Iowa 

KURT SCHRADER, Oregon 

JOSEPH P. KENNEDY, III, Massachusetts 

TONY CA ́ RDENAS, California 

SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY

JOHN SHIMKUS, Illinois 

Chairman 

GREGG HARPER, Vice Chairman 

Vice Chairman 

ED WHITFIELD, Kentucky 

JOSEPH R. PITTS, Pennsylvania 

TIM MURPHY, Pennsylvania 

ROBERT E. LATTA, Ohio 

DAVID B. MCKINLEY, West Virginia 

BILL JOHNSON, Ohio 

LARRY BUCSHON, Indiana 

BILL FLORES, Texas 

RICHARD HUDSON, North Carolina 

KEVIN CRAMER, North Dakota 

FRED UPTON, Michigan (ex officio) 

PAUL TONKO, New York 

Ranking Member 

KURT SCHRADER, Oregon 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

JERRY MCNERNEY, California 

TONY CA ́ RDENAS, California 

FRANK PALLONE, JR., New Jersey (ex 

officio) 

(III) 

C O N T E N T S 

MARCH 18, 2015 

Page 

Hon. John Shimkus, a Representative in Congress from the state of Illinois, 

opening statement ................................................................................................ 1 

Prepared statement .......................................................................................... 3 

Hon. Paul Tonko, a Representative in Congress from the State of New York, 

opening statement ................................................................................................ 4 

Hon. David B. McKinley, a Representative in Congress from the State of 

West Virginia, opening statement ...................................................................... 5 

Hon. Frank Pallone, Jr., a Representative in Congress from the State of 

New Jersey, opening statement .......................................................................... 6 

Hon. Fred Upton, a Representative in Congress from the State of Michigan, 

prepared statement .............................................................................................. 73 

WITNESSES

David Paylor, Director, Virginia Department of Environmental Quality ........... 7 

Prepared statement .......................................................................................... 10 

Michael Forbeck, Environmental Program Manager, Pennsylvania Department of Environmental, Bureau of Waste Management .................................. 18 

Prepared statement .......................................................................................... 20 

James Roewer, Executive Director, Utilities Solid Waste Activities Group ....... 25 

Prepared statement .......................................................................................... 27 

Lisa Evans, Senior Administrative Counsel, Earthjustice ................................... 34 

Prepared statement .......................................................................................... 36 

MARCH 24, 2015 

WITNESSES

Mathy Stanislaus, Assistant Administrator, Office of Solid Waste and Emergency Response, U.S. Environmental Protection Agency ................................. 75 

Prepared statement .......................................................................................... 78 

SUBMITTED MATERIAL

Statement of the Chamber of Commerce, submitted by Mr. Shimkus ............... 98 

Statement of Portland Cement Association, submitted by Mr. Shimkus ........... 100 

Letter of March 6, 2015, from various organizations to Messrs. Shimkus 

and Tonko, submitted by Mr. Tonko .................................................................. 101 

Letter of March 17, 2015, from various organizations from all over the U.S. 

to Messrs. Shimkus and Tonko, submitted by Mr. Tonko ................................ 108 

(1) 

H.R. —————, THE IMPROVING COAL 

COMBUSTION RESIDUALS REGULATION ACT 

OF 2015, DAY 1 

WEDNESDAY, MARCH 18, 2015 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY, 

COMMITTEE ON ENERGY AND COMMERCE

Washington, DC. 

The subcommittee met, pursuant to call, at 10:17 a.m., in room 

2322 of the Rayburn House Office Building, Hon. John Shimkus 

(chairman of the subcommittee) presiding. 

Members present: Representatives Shimkus, Harper, Murphy, 

Latta, McKinley, Johnson, Bucshon, Flores, Hudson, Cramer, 

Tonko, Schrader, Green, McNerney, and Pallone (ex officio). 

Staff present: Nick Abraham, Legislative Clerk; Charlotte Baker, 

Deputy Communications Director; Leighton Brown, Press Assistant; David McCarthy, Chief Counsel, Environment and the Economy; Tina Richards, Counsel, Environment; Chris Sarley, Policy 

Coordinator, Environment and the Economy; Jean Woodrow, Director, Information Technology; Jacqueline Cohen, Democratic Senior 

Counsel; Caitlin Haberman, Democratic Professional Staff Member; 

Rick Kessler, Democratic Senior Advisor and Staff Director, Energy 

and Environment; and Ryan Schmit, Democratic EPA Detailee. 

OPENING STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS 

Mr. SHIMKUS. Oh, my gosh. We are out of control already. Welcome, everybody. I am going to call the hearing to order. The subcommittee will come to order, and the Chair recognizes himself for 

5 minutes. 

Welcome, everyone, back as we continue the discussion regarding 

coal ash. Today we are hearing from our stakeholder panel, and because of some scheduling conflicts, we will convene and hear from 

the EPA next week. 

A couple months ago we heard from EPA and stakeholders about 

the final coal ash rule. We discussed the problems associated with 

the implementation, in particular, the fact that the final rule is 

self-implementing, meaning there will be no regulatory oversight 

and no enforceable permits, the fact that if states implement permit programs, they will not operate in lieu of the Federal rule so 

regulated entities must comply with two sets of requirements, and 

the fact that the only mechanism for enforcement of the final rule 

is through citizen suits which would result in an unpredictable 

2 

array of regulatory interpretations, as Judges throughout the country are forced to make technical compliance decisions that are better left to a regulatory agency. As a result we heard from almost 

all of the stakeholders at our January hearing that a legislative solution is still needed to best regulate coal ash. 

Since our last hearing, we have been working to develop a legislative solution that does two things; one, takes into account all of 

the hard work EPA put into developing sound technical standards 

protective of human health and the environment and second, utilize the framework developed in previous legislation requiring 

states to develop enforceable permit programs that will contain 

minimum Federal standards. 

This brings us here today to discuss the draft legislation we 

think accomplishes both of those goals. We are keeping the bill as 

a discussion draft because this is an open process during which we 

will continue efforts to collaborate with our colleagues in the House 

and our friends in the Senate, work with EPA on technical assistance, and of course, welcome suggestions from all of you to improve 

the bill. 

The basics of the discussion draft are simple. The bill requires 

that every state have a permit program, and every permit program 

will contain minimum requirements based on EPA’s final rule. 

Every permit program will address inactive surface impoundments 

or legacy sites in the same manner as EPA dealt with them in the 

final rule. They will have to decide within 2 months from the date 

of enactment whether they will be closed within 3 years from the 

date of enactment or whether they will be regulated like any other 

active disposal unit. Compliance timeframes are comparable to the 

final rule and for any lag we will gain the benefit of having an enforceable permit program. Furthermore, the discussion draft does 

not in any way impact the ability to bring citizen suits. The draft 

legislation does not require owners and operators to post their operating records on the internet because this is a remnant of a selfimplementing program, but the draft requires states to make information regarding groundwater monitoring data, structural stability, emergency action plans, fugitive dust control plans, certifications regarding closure, and information regarding corrective action remedies available to the public. 

We heard from a number of witnesses at our last hearing that 

a key problem with the self-implementing final rule was that EPA 

was forced to eliminate certain flexibility, in particular with respect 

to groundwater monitoring and corrective action, due to the lack of 

state oversight. Because the requirements will be implemented 

through state permit programs, the draft legislation allows the implementing agency on a site-specific basis to provide flexibility for 

groundwater monitoring or corrective action taking into account 

risk-based factors. 

At our last hearing we also heard about a few other provisions 

in the final rule that were problematic including: the retroactive 

application of the location of siting restrictions, the requirement 

that unlined impoundments that exceed a groundwater protection 

standard close with no opportunity to remedy the problem through 

corrective action, and that surface impoundments that miss a deadline to access structural stability must stop operating and close. 

3 

Forced closure of impoundments with no analysis of whether the 

impoundment is, or can be, operated safely may be appropriate 

under a self-implementing rule with no regulatory involvement, but 

the goal of the draft legislation and the state permit programs is 

to ensure that surface impoundments are operated safely and if 

they are not, then they will be corrected or closed. 

As we work on this draft legislation we acknowledge the amount 

of time and effort that EPA put into drafting a final rule that is 

fully protective of human health and the environment and because 

actions speak louder than words, we did this by directly incorporating the exact provisions and the policy of the final rule into 

the discussion draft. That being said, we still believe that a legislative solution is the best approach to dealing with the regulation of 

coal ash because of the significant limitations of the rule. 

We look forward to hearing from all our witnesses and hope Mr. 

Stanislaus will be able to provide some helpful comments on the 

discussion draft next week. In particular, ECOS and ASTSWMO 

since they will be tasked with creating permit programs that meet 

the minimum standards criteria set out in the legislation. 

I would like again to thank the Administration for all of the cooperation we have received on this issue. EPA has been extremely 

constructive and helpful during the last Congress and recently 

working through the issues with the final rule and the discussion 

draft. I would also like to specifically thank ECOS and ASTSWMO 

for their continued participation and invaluable input on the mechanics of implementation. Last, I would like to express my appreciation to Mr. McKinley for his longstanding leadership on this 

issue as we continue the process of trying to figure out how to effectively regulate coal ash. As always, we appreciate all of our witnesses for being here and look forward to your testimony. 

[The prepared statement of Mr. Shimkus follows:] 

PREPARED STATEMENT OF HON. JOHN SHIMKUS

We welcome everyone back as we continue the discussion regarding coal ash. 

Today we are hearing from our stakeholder panel and because of some scheduling 

conflicts we will reconvene and hear from EPA next week. 

A couple months ago we heard from EPA and stakeholders about the final coal 

ash rule. We discussed the problems associated with implementation—in particular, 

the fact that the final rule is self-implementing meaning there will be no regulatory 

oversight and no enforceable permits, the fact that if states implement permit programs they will not operate in lieu of the federal rule so regulated entities must 

comply with two sets of requirements, and the fact that the only mechanism for enforcement of the final rule is through citizen suits which would result in an unpredictable array of regulatory interpretations, as judges throughout the country are 

forced to make technical compliance decisions that are better left to a regulatory 

agency. As a result we heard from almost all of the stakeholders at our January 

hearing that a legislative solution is still needed to best regulate coal ash. 

Since our last hearing, we have been working to develop a legislative solution that 

does two things—takes into account all of the hard work EPA put into developing 

sound technical standards protective of human health and the environment and second, utilize the framework developed in previous legislation requiring states to develop enforceable permit programs that will contain minimum federal standards. 

This brings us here today to discuss the draft legislation we think accomplishes 

both of those goals. We are keeping the bill as a discussion draft because this is 

an open process during which we will continue efforts to collaborate with our colleagues in the House and our friends in the Senate, work with EPA on technical 

assistance, and of course welcome suggestions from all of you to improve the bill. 

The basics of the discussion draft are simple. The bill requires that every state 

have a permit program and every permit program will contain minimum requireVerDate Nov 24 2008 13:25 Jun 06, 2016 Jkt 037690 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 114\114-22FINAL CHRIS
4 

ments based on EPA’s final rule. Every permit program will address inactive surface 

impoundments or ‘‘legacy sites’’ in the same manner as EPA dealt with them in the 

final rule—they will have to decide within 2 months from the date of enactment 

whether they will be closed within 3 years from the date or enactment or whether 

they will be regulated like any other active disposal unit. Compliance timeframes 

are comparable to the final rule and for any lag we will gain the benefit of having 

an enforceable permit program. Furthermore, the discussion draft does not in any 

way impact the ability to bring citizen suits. The draft legislation does not require 

owners and operators to post their operating records on the internet because that 

is a remnant of a self-implementing program, but the draft requires states to make 

information regarding groundwater monitoring data, structural stability, emergency 

action plans, fugitive dust control plans, certifications regarding closure, and information regarding corrective action remedies available to the public. 

We heard from a number of witnesses at our last hearing that a key problem with 

the self-implementing final rule was that EPA was forced to eliminate certain flexibility—in particular with respect to groundwater monitoring and corrective action— 

due to the lack of state oversight. Because the requirements will be implemented 

through state permit programs, the draft legislation allows the implementing agency on a site-specific basis to provide flexibility for groundwater monitoring or corrective action taking into account risk-based factors. 

At our last hearing we also heard about a few other provisions in the final rule 

that were problematic including: the retroactive application of the location or siting 

restrictions; the requirement that unlined impoundments that exceed a groundwater 

protection standard close with no opportunity to remedy the problem through corrective action; and that surface impoundments that miss a deadline to assess structural stability must stop operating and close. Forced closure of impoundments with 

no analysis of whether the impoundment is, or can be, operated safely may be appropriate under a self-implementing rule with no regulatory involvement—but the 

goal of the draft legislation and state permit programs is to ensure that surface impoundments are operated safely and if they are not—then they will be corrected or 

closed. 

As we work on this draft legislation we acknowledge the amount of time and effort that EPA put into drafting a final rule that is fully protective of human health 

and the environment and because actions speak louder than words, we did this by 

directly incorporating the exact provisions and the policy of the final rule into the 

discussion draft. That being said, we still believe that a legislative solution is the 

best approach to dealing with the regulation of coal ash because of the significant 

limitations of the rule. 

We look forward to hearing from all of our witnesses and hope Mr. Stanislaus will 

be able to provide some helpful comments on the discussion draft next week. In particular, ECOS and ASTSWMO since they will be tasked with creating permit programs that meet the minimum federal criteria set out in the legislation. 

I would like to again thank the Administration for all of the cooperation we have 

received on this issue. EPA has been extremely constructive and helpful during the 

last Congress and recently working through the issues with the final rule and the 

discussion draft. I would also like to specifically thank ECOS and ASTSWMO for 

their continued participation and invaluable input on the mechanics of implementation. Last, I would like to express my appreciation to Mr. McKinley for his longstanding leadership on this issue as we continue the process of trying to figure out 

how to effectively regulate coal ash. 

Mr. SHIMKUS. With that I yield 5 minutes to the gentleman from 

New York, Mr. Tonko. 

OPENING STATEMENT OF HON. PAUL TONKO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK 

Mr. TONKO. Thank you, Mr. Chair, and good morning. I thank 

the members of our witness panel for participating in today’s hearing and for offering their thoughts on the discussion draft, the Improving Coal Combustion Residuals Regulation Act. 

In the 35 years since Congress passed the Resource Conservation 

and Recovery Act, or RCRA, the Environmental Protection Agency 

has been studying this issue, and it has been the subject of intense 

debate. During this same time communities and many states have 

5 

experienced problems from inadequate handling and disposal of 

coal ash. It is long past time to resolve these issues and indeed 

move forward. 

Earlier this year we heard from the agency and from other stakeholders about EPA’s final rule on the disposal of coal ash. This rule 

has taken many years and is the result of an extensive public process. The rule represents a compromise amongst the stakeholders in 

this issue, and so it is not surprising that some groups are unhappy with certain provisions of the rule. But I continue to believe 

the rule should move forward. I realize that some of our witnesses 

today prefer the approach taken by this draft legislation. At this 

point, however, I do not see the need for legislation. There is a 

need for consistent, fair, and rigorous oversight of the rule’s implementation. If the rule does not result in appropriate coal ash disposal or if it results in conflicts between state and Federal authorities or it leads to an excess of litigation, it can be revised or Congress can pass legislation to correct any problems that are identified. 

At this point any problems with the rule are speculative, but the 

problems of coal ash disposal across the country are not. Spills, 

windborne ash, and groundwater contamination have caused serious health and environmental problems and continue to require expensive clean-up efforts. Properties and businesses have been severely damaged. This situation should not be allowed to continue. 

The EPA finally has taken appropriate action under the law. We 

should now monitor the rule’s implementation and do that very 

carefully. 

Again, I thank the witnesses for taking time to appear before the 

subcommittee this morning, and with that, Mr. Chair, I thank you 

and yield back the remainder of my time. Is there anyone from the 

panel that would like to use about 2 minutes I think we have left? 

Anyone? If not, I yield back my time. 

Mr. SHIMKUS. The gentleman yields back his time. 

The Chair now recognizes the gentleman from West Virginia, Mr. 

McKinley, for 5 minutes. 

OPENING STATEMENT OF HON. DAVID B. MCKINLEY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WEST 

VIRGINIA 

Mr. MCKINLEY. Thank you, Mr. Chairman. As you have heard 

for 35 years, Congress has been wrestling with how to handle fly 

ash. For 35 years. After countless hearings, meetings, amendments, 

and legislation in the past, we come here with a draft piece of legislation, crafted with the help of the state Environmental and Solid 

Waste officials, committee staff, and with the input of the EPA. 

The regulation may have been finalized in December, but it provided no certainty to those 316,000 hardworking Americans who recycle fly ash. This rule did not provide closure on a number of 

issues. It is simply not acceptable to the status quo. 

However, what is accepted or what is acceptable is the legislation 

before us, this draft piece, ensures that the states have the flexibility they need to make the program work and are able to complete it within a reasonable timeframe. This draft legislation guarantees that every state must, not may, must have a Coal Ash PerVerDate Nov 24 2008 13:25 Jun 06, 2016 Jkt 037690 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 114\114-22FINAL CHRIS
6 

mit Program, and it must contain the minimum Federal standards 

set out under the finalized rule. 

Bottom line, this legislation provides certainty while the December ruling left the industry still scratching their heads. It would be 

responsible for this committee to continue to promote and push this 

draft legislation and work with all the stakeholders and the interest groups around this country to bring closure to this issue and 

end 35 years of unknown. 

I yield back the balance of my time. 

Mr. SHIMKUS. The gentleman would yield back, but before he 

does, I would look to the Republican side to see if anybody would 

like to use the remaining time. Seeing none, even on my colleagues 

on the Democrat side, seeing none, the gentleman yields back his 

time. 

I want to make sure that you all can hear out there, not just 

folks on the panel but the folks who are sitting in the back because 

usually there are some speakers. The feed is working, but the—I 

don’t think the speakers are working. They are working on it. OK. 

So for the panel if you can use your military voice down from the 

diaphragm, use your military voice down from the diaphragm. Before we go to the panel I have neglected to recognize the ranking 

member of the full committee. That is a major faux pas. Congressman Pallone from New Jersey is recognized for 5 minutes. 

OPENING STATEMENT OF HON. FRANK PALLONE, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW JERSEY 

Mr. PALLONE. Thank you, Chairman Shimkus. 

This is the second hearing this Congress on the important topic 

of coal ash. In January this subcommittee heard from EPA and 

stakeholders about the agency’s new final rule. After years of debate at the agency and in Congress over the proper regulation of 

coal ash, the agency had reached a verdict. EPA’s final rule reflects 

a tremendous effort, and it will for the first time provide the framework for addressing this serious environmental problem. This rule 

is the product of a robust public process, including field hearings 

and several rounds of public comment, and it reflects the input of 

over 450,000 consumers, including states, industry groups, environmental groups, and individual concerned citizens. 

In the end EPA finalized a rule that addressed almost all the 

concerns this subcommittee has heard about for years. Those in the 

coal ash recycling industry who make things like concrete and wallboard submitting, substituting coal ash for virgin material, had 

sought a non-hazardous rule under Subtitle D of RCRA, and that 

is what they got. Those in the electric utility industry wanted a 

Subtitle D rule that would not require them to retrofit their existing impoundments with liners, and that is what they got. And 

states wanted a mechanism to set up their own programs to implement Federal standards and to have EPA approve them, and that 

is what they got. The only stakeholders who really did not get what 

they sought in this rule were the environmental and public health 

advocates who wanted a stronger Subtitle C rule with the requirement that the giant unlined pits currently receiving this dangerous 

waste to be retrofitted to protect groundwater. 

7 

Other than those calls to strengthen the rule, the reaction to 

EPA’s rule has been positive. The agency testified that they have 

every confidence in the rule and do not see a need for legislation, 

and members on both sides of the aisle expressed their support. 

So I am surprised that we find ourselves here today considering 

legislation that would replace that rule before it has taken affect 

and undermine the robust public process that went into it. I am 

even more surprised that the stakeholders who are here today expressing support for legislation are the same ones whose concerns 

have been addressed in the rule. I don’t see a need for legislation 

at this time. Instead I think EPA and the states should be allowed 

to move forward and implement the final rule subject to this Committee’s oversight. 

I do want to say a few words about the specific legislation that 

is the subject of today’s hearing. This new proposal retains the 

problems of past proposals which have been discussed extensively 

in this subcommittee. It would create a new model of delegation to 

states with a sharply-curtailed role for EPA. It does not include a 

legal standard of protection, a substantive EPA role in reviewing 

state programs, or EPA backstop enforcement authority. The new 

proposal presents additional concerns as well because necessary 

health protections included in EPA’s final rule are left to state discretion or left out entirely. Groundwater monitoring protection, closure requirements, clean-up requirements all could be weaker 

under this bill than under the final rule. If anything, we should be 

strengthening the protections of the final rule and not weakening 

them. 

So I think this legislation is unnecessary and dangerous for public health and the environment. I applaud EPA for their hard work 

on the coal ash final rule, and I hope the subcommittee can move 

forward in an oversight role as implementation begins. 

Thank you, Mr. Chairman. I yield back. 

Mr. SHIMKUS. The gentleman yields back his time. Now the 

Chair will recognize our panelists one at a time with an introduction and your opening statement. Your full statement is submitted 

for the record. 

So first I would like to welcome and recognize David Paylor, Director of the Virginia Department of Environmental Quality, on behalf of the Environmental Council of the States. Sir, welcome, and 

you are recognized for 5 minutes. 

STATEMENTS OF DAVID PAYLOR, DIRECTOR, VIRGINIA DEPARTMENT OF ENVIRONMENTAL QUALITY; MICHAEL 

FORBECK, ENVIRONMENTAL PROGRAM MANAGER, PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL, BUREAU OF 

WASTE MANAGEMENT; JAMES ROEWER, EXECUTIVE DIRECTOR, UTILITIES SOLID WASTE ACTIVITIES GROUP; AND LISA 

EVANS, SENIOR ADMINISTRATIVE COUNSEL, EARTHJUSTICE 

STATEMENT OF DAVID PAYLOR 

Mr. PAYLOR. Thank you, Chairman Shimkus, Ranking Member 

Tonko, and members of the subcommittee. Good morning. My name 

is David Paylor. I am the Director of the Virginia Department of 

Environmental Quality, and I appreciate the opportunity to share 

8 

with you Virginia’s views on the draft bill. I am also representing 

the Environmental Council of the States, ECOS, whose members 

are leaders of the state and territorial environmental protection 

agencies. 

Many state regulators have first-hand experience with the devastating results of CCR impoundment failures. Breaches and releases destroy property and contaminate natural resources. 

ECOS has worked on the CCR rule issue for many years. ECOS’ 

resolution on CCR regulation was first passed in 2008, and ECOS 

testified in April, 2013, in support of legislation to amend RCRA 

to create a defensible and strong CCR program that could be run 

by the states. After EPA signed a final CCR rule in December, 

ECOS testified before this subcommittee supporting the final rule’s 

technical requirements but stating that legislation to amend RCRA 

was still needed for several reasons. The final rule creates a dual 

Federal and state regulatory system that will be confusing and resource intensive, the final rule’s schedules would require states to 

achieve final Solid Waste Management Plan amendments on an aggressive schedule which could not be met by many states. the final 

rule’s self-implementing approach would make RCRA citizen suits 

the primary enforcement vehicle for CCRs under The final rule’s 

self-implementing approach would make citizen suits the primary 

enforcement vehicle, marginalizing the role of state regulation, 

oversight, and enforcement and thus creating uncertainty for the 

regulated community. 

ECOS has reviewed the draft bill and find that it positively addresses the concerns. The draft bill leverages and codifies the extensive technical work in EPA’s final rule. It provides that states 

may adopt, implement, and enforce CCR programs. The draft bill 

would give state environmental agencies 24 months to certify their 

programs, with a potential for an additional 12 months. This would 

provide most states with existing CCR programs ample time to 

pursue the necessary state legislative and rulemaking processes. 

For example, in Virginia, our regulatory process can take 2 to 3 

years. 

The draft bill provides that the requests for certification to EPA 

be fully described, that the states fully describe their programs and 

how they meet Federal requirements. The draft bill importantly 

provides that state programs can be more stringent or broader in 

scope. For example, Virginia already has authority under the 

Waste Management Act to require solid waste permits for the operation of a coal ash management facility, including activities related 

to post closure and corrective action. 

The draft bill contains an important provision that allows states 

that already have existing programs to begin using it right away. 

A recent survey of states indicated that 36 states, including Virginia, have permitting programs for disposal activities with 94 percent of those requiring groundwater monitoring. 

The draft bill contains an important requirement for states to 

submit as part of their certifications a plan for coordination among 

states in the event of a release that crosses state lines. This type 

of upfront planning is relevant, especially in Virginia, where we recently had a Dan River spill that originated in North Carolina but 

impacted nearly 50 miles of Virginia waterways. 

9 

The Federal bill provides that EPA will operate the CCR Program for a state that cannot demonstrate a sufficient program or 

declines to do so. 

The draft bill includes robust requirements for industry permit 

applications, provides for public information availability, and state 

access to facilities. The bill incorporates the new robust technical, 

siting, financial assurance, run-on and run-off controls and recordkeeping and structural integrity requirements. We value the flexibility the draft bill adds that will allow states to identify alternative points of compliance for monitoring, alternative groundwater 

protection standards, remediation flexibility, and to allow unlined 

impoundments to operate for a period of time providing there are 

no groundwater threats and the structural integrity of the berms 

is maintained. 

The draft bill sets out a 3- to 4-year process for compliance. It 

recognizes implementation realities and still allows action in emergency situations. The legislation supports beneficial uses of coal 

ash, such as in concrete, road bed fill, wallboard, and other uses. 

Beneficial reuse of coal ash is consistent with ECOS’ longstanding 

resolution, which is appended to my testimony. 

Mr. Chairman, Mr. Ranking Member, and members of the subcommittee, I thank you for the opportunity to present my views 

and those of ECOS to you today, and I am happy to answer any 

questions. 

[The prepared statement of Mr. Paylor follows:] 

10 


95633.001
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95633.002
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95633.003
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95633.004
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95633.005
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95633.006
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95633.007
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Mr. SHIMKUS. Thank you very much, sir. 

Now I would like to introduce Mr. Michael Forbeck, Environmental Program Manager for the Pennsylvania Department of Environmental Bureau of Waste Management, on behalf of the Association of state and Territorial Solid Waste Management Officials, 

which is the hard to say, ASTSWMO. 

Sir, you are recognized for 5 minutes. 

STATEMENT OF MICHAEL FORBECK 

Mr. FORBECK. I am President of the Association of state and Territorial Solid Waste Management Officials, ASTSWMO, and I am 

here today to testify on behalf of ASTSWMO. 

ASTSWMO is an association representing the waste management and remediation programs of the 50 states, five Territories 

and the District of Columbia. Our membership includes state program experts with individual responsibility for the regulation and 

management of solid and hazardous wastes. 

Thank you for the opportunity to provide testimony on the discussion draft, ‘‘Improving Coal Combustion Residuals Regulation 

Act of 2015’’. Overall, ASTSWMO believes the discussion draft has 

successfully captured the essential parts of the EPA rule on coal 

combustion residuals management that are germane to the protection of the environment and public health and has modified or 

added those areas that improve the rule. 

We also believe that this discussion draft has addressed the main 

concerns that ASTSWMO expressed regarding EPA’s final rule on 

CCR in our testimony before this subcommittee on January 22, 

2015. While being in full agreement with issuance of the final rule 

under Subtitle D of the Resource Conservation and Recovery Act, 

ASTSWMO’s prior testimony noted state implementation issues 

raised by the self-implementing construct of RCRA Subtitle D, Part 

257. The concerns we voiced are summed up as follows. The rule’s 

self-implementing requirements will set up the situation of dual 

state and Federal regulatory regime, even if the state requirements 

meet or exceed national minimums. The use of EPA-approved state 

Solid Waste Management Plans as a mechanism to deal with the 

issue of dual regulatory authority will not fully alleviate dual implementation of state and Federal standards, since the approved 

Solid Waste Management Plan would not operate in lieu of the 

Federal standards. The ability of states to establish regionally appropriate standards, as allowed under RCRA Subtitle D, Part 258 

for municipal solid waste landfills, is constrained by the rule’s selfimplementing requirements. 

ASTSWMO believes this discussion draft has addressed our main 

concerns regarding EPA’s final rule in the following three ways. 

First, it eliminates dual state and Federal regulatory authority 

resulting from the self-implementing construct of EPA’s rule by giving states the authority to adopt and implement a CCR permit program. Many states already have a very successful permit program. 

For states that choose to adopt and implement the permit program, 

it assures state primacy through a single permit program provision 

that is enforceable by the state. This results in a clear and consistent understanding of the permitting and enforcement roles of 

the states. We also agree with the additional level of review by 

19 

EPA to determine whether state permit programs are adequate to 

ensure compliance with the criteria as described in the discussion 

draft. 

Second, by directly giving states the authority to implement a 

CCR role or program, the discussion draft eliminates the uncertainty of state-only implementation the Solid Waste Management 

Plan as the mechanism. The certification process under the draft 

legislation could allow for expedited implementation of the technical requirements. 

Third, we appreciate that the draft legislation allows the flexibility for states to have regionally appropriate state standards for 

groundwater monitoring and corrective action. 

In addition to the draft legislation addressing the concerns expressed in our previous testimony, ASTSWMO is pleased that the 

legislation requires financial assurance for post-closure care of inactive surface impoundments to ensure long-term compliance with 

environmental and public health requirements. Financial assurance is an important component in state waste programs, and 

ASTSWMO has supported the inclusion of financial assurance as 

a key program element in a final EPA CCR rule under Subtitle D. 

We would like to offer to the subcommittee’s consideration one 

modification to the draft legislation at this time. Under the Agency 

Authority for inspections we ask that the subcommittee consider 

not limiting an implementing agency’s authority to enter a site for 

purposes of inspection to only ‘‘at reasonable times.’’ This could be 

construed to mean during normal working hours. The timing of inspections should be at the discretion of the state to allow for afterhour inspections. 

Thank you again for providing me the opportunity to testify on 

this draft legislation, and I would be happy to answer any questions. 

[The prepared statement of Mr. Forbeck follows:] 

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Mr. SHIMKUS. Thank you very much. 

The Chair now recognizes Jim Roewer, the Executive Director of 

the Utilities Solid Waste Activities Group on behalf of USWAG 

Edison Electric Institute, National Rural Electric Cooperative Association, and the American Public Power Association. 

Thank you and recognize you for 5 minutes. 

STATEMENT OF JAMES ROEWER 

Mr. ROEWER. Chairman Shimkus, Ranking Member Tonko—excuse me, he left—members of the subcommittee, good morning. I 

am pleased to present the views of the utility industry; USWAG, 

APPA, EEI, and NRECA on the ‘‘Improving Coal Combustion Residuals Regulation Act of 2015.’’ 

When I testified at the Oversight Hearing before the committee 

on EPA’s CCR, I made clear that while we supported EPA’s decision to regulate coal ash as a non-hazardous waste, there were significant flaws in the rule because the rule can’t be delegated to the 

states, it is self-implementing, and regulated facilities must comply 

with the rules requirements irrespective of whether it is adopted 

by the states. 

Since state coal ash regulations cannot operate in lieu of Federal 

regulations, we must comply with dual and potentially-inconsistent 

Federal and state regs. This is unlike other Federal environmental 

regulatory regimes, including EPA’s Subtitle C Hazardous Waste 

Program where Congress views the states as key partners in implementing and enforcing Federal regulation and expressly authorizes 

the states to adopt and implement the Federal regime in lieu of 

EPA. 

The rule’s only compliance mechanism is for a state or citizen 

group to bring suit in a Federal District Court, so an excess of litigation is guaranteed. Legal disputes regarding compliance can only 

be determined on a case-by-case basis by different Federal District 

Courts across the country. Federal Judges will be forced to make 

complex technical decisions regarding compliance instead of regulatory agencies that have the technical expertise and experience to 

better address those issues. 

Because of these fundamental flaws in the statutory structure 

under which the rule was issued, legislation amending RCRA is 

necessary for EPA’s rule to be implemented in an effective and 

practical manner. The discussion draft would do this. 

The bill would establish a permit program for implementation of 

the regulations issued by EPA, eliminate the problems associated 

with the self-implementing nature of the rule. Under the bill, virtually all aspects of the rule would be implemented solely through 

state CCR permit programs or by EPA if the states do not adequately adopt and implement the rule. This structure is similar to 

the manner in which Congress previously amended RCRA to allow 

EPA’s Subtitle D municipal solid waste landfill rules to be implemented through state permit programs. 

The bill would also require coal ash permits to include conditions 

not included in EPA’s final rule, including financial assurance requirements and would preserve the ability of the states to regulate 

more stringently than the Federal rule. 

26 

Authorizing the states to implement the rule through permit programs would eliminate the problem of dual and inconsistent Federal and state regulation. Equally important, having EPA’s rule implemented by a state Regulatory Agency eliminates the compliance 

dilemma where our members and the public at large are left to own 

their devices to determine what is required to come into compliance. The utility industry will be investing huge capital resources 

to comply with the rule. The bill will provide the regulatory certainty for those investment decisions since compliance will be specified by a regulatory agency and spelled out in a permit. 

The bill would establish a rational and efficient enforcement 

scheme by enabling state Regulatory Agencies to enforce the rules 

as opposed to having enforcement borne solely on the back of citizen suits as it is under EPA’s rule. EPA currently has no role in 

administering or enforcing its rule. The bill would increase EPA’s 

authority by directing it to review the adequacy of state permit programs, where to implement those programs where the states 

choose not to, or the state’s program is inadequate. 

In addition, and importantly, the bill does not limit in any way 

the ability of a citizen group to bring enforcement actions under 

RCRA’s citizen suit provision. The bill eliminates reliance on Federal District Courts for interpreting and enforcing the rule, avoiding the specter of differing and potentially inconsistent application 

of the rule between or even within states. 

EPA dropped from the final rule certain site-specific, risk-based 

options for applying elements of the regulations that were in its 

proposal, reasoning that those risk-based decisions require regulatory oversight. Thus, state programs that enable regulators to 

issue tailored, site-specific, risk-based options for coal ask management are superseded by the one-size-fits-all approach in EPA’s 

rule. 

The bill establishes regulatory agency oversight in implementing 

the rule, and therefore, appropriately restores the ability of the implementing agency to tailor aspects of the rule to accommodate 

site-specific factors, consistent with the approach of EPA’s proposed 

rule as well as the Federal Municipal Solid Waste Program. 

For example, the proposed rule would have allowed a facility to 

establish an alternative risk-based groundwater protection standard. EPA removed that option precisely because there was no regulatory oversight or approval regarding the establishment by an 

owner and operator of that alternative standard. The bill allows 

the permitting agency to establish, where appropriate, an alternative risk-based groundwater protection standard, the same option provided to permit writers under EPA’s municipal solid waste 

landfill rule. 

I thank the subcommittee for the opportunity to present the 

views of the utility industry on the discussion draft which we believe will allow EPA’s new coal ash rule to be implemented in an 

effective and practical manner. Thank you. 

[The prepared statement of Mr. Roewer follows:] 

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Mr. SHIMKUS. Thank you. 

The Chair now recognizes Lisa Evans, Senior Administrative 

Counsel, from EarthJustice. 

You are recognized for 5 minutes. Welcome. 

STATEMENT OF LISA EVANS 

Ms. EVANS. Thank you very much. Chairman Shimkus, Ranking 

Member Tonko, and members of the subcommittee, thank you for 

the opportunity today to discuss the bill offered by Representative 

McKinley. I am Lisa Evans, Senior Administrative Counsel for 

EarthJustice. I have had the privilege of testifying previously before this subcommittee concerning the serious harm caused by coal 

ash to our health, economy, and environment. I have spoken about 

the hundreds of sites where coal ash has harmed Americans nationwide by poisoning water, air, and threatening the very existence of communities near large coal ash dams. Today we stand at 

a crossroads. 

In December, EPA’s first-ever coal ash rule finally put the Nation 

on the road to safer toxic waste disposal which will help prevent 

water pollution, avoid catastrophic spills, promote cleaner air, and 

encourage robust public engagement by communities living near 

coal ash dumps. Yet the bill proposed by Representative McKinley 

would run us off this road and drag us into a dark and dangerous 

detour where almost none of the protections of the new EPA rule 

would survive intact. 

Worst of all, it is a one-way trip that permanently deprives citizens of consistent nation-wide protection from the second largest 

industrial waste strain in the country. Make no mistake, this bill 

is an unwarranted and dangerous detour that guts the new EPA 

rule and permanently removes critical public health safeguards. 

Let me be very specific. The requirements in Representative 

McKinley’s bill are not the same, not nearly the same, as the requirements in the EPA rule. Today’s bill eliminates many requirements entirely, weakens others, and delays all. 

The following are some examples. First, the bill will eliminate 

the guarantee of public access to information concerning contaminated sites and dangerous dams. Communities will likely be unable 

to find out if there are toxic chemicals in their water, spills in their 

neighborhood, or unstable dams above their homes. Second, the bill 

will eliminate the rules ban on storing and dumping coal ash directly in drinking water. Unlike the EPA rule, there is no ban on 

operating a coal ash pond directly in an aquifer. Ponds that are located there now, and there are many, can continue to dump toxic 

waste and new dumps can be built on top of drinking water 

sources. 

Third, the bill will eliminate the rule’s national standard for 

drinking water protection and clean-ups. According to this bill, a 

state can choose to allow more arsenic, more lead, more mercury, 

more thallium in the groundwater and not be bound by Federal 

health standards. Fourth, the bill will eliminate the requirement to 

quickly close legacy ponds. The bill will likely delay cleanup of legacy sites for years and allow contaminated and abandoned ponds, 

like the Dan River Dam that burst last February, to escape all 

safety requirements, including inspections, for up to 7 years. 

35 

The bill also contains a loophole that could allow inactive ponds 

to escape all closure requirements entirely. Fifth, the bill will eliminate the polluter’s responsibility to respond and notify the public 

of toxic spills. Sixth, the bill will eliminate the state’s duty to require cleanup of such toxic spills. According to the bill, the utility 

industry need not cleanup spills if states don’t want to require it. 

Lastly, the bill will permanently establish an inconsistent patchwork of state programs which need not meet any standard of protection for health and the environment and which will cause uncertainty nationwide. 

Undoubtedly this bill will harm the health, economy, and environment of communities near more than 1,000 coal ash dumpsites. 

Yet last December the EPA bent over backwards to satisfy the concerns of industry, recyclers, and states. It delivered a rule that 

characterized coal ash as non-hazardous, fails to banned continued 

use of unlined ponds, exempts beneficial use, establishes extended 

and flexible timeframes for compliance and closure, and regulates 

coal ash under the weakest of the three options proposed in 2010. 

In closing, I want to reiterate that I appreciate the opportunity 

to address the subcommittee. However, there are other voices that 

must be heard. Last week 143 individuals and groups personally 

impacted by coal ash dumping sent a letter to this subcommittee 

requesting the opportunity to speak. The words of those actually 

harmed by toxic dumping are sorely missing today. If impacted 

community members were here today, citizens from Illinois, West 

Virginia, Pennsylvania, and Missouri who live near leaking coal 

ash ponds, citizens from North Carolina and Virginia who live 

along the Moapa Reservation in Nevada and the Nevada, the Navajo Reservation in New Mexico whose air is thick with ash, these 

citizens and many others would ask this committee not to throw 

away this limited coal ash rule for essentially no rule at all. They 

would ask the committee not to delay and not to remove critical 

health protections for their families and communities. Today I respectfully echo their plea. 

Thank you for your time, and I would be happy to answer any 

questions. 

[The prepared statement of Ms. Evans follows:] 

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Mr. SHIMKUS. Thank you very much. 

I now recognize myself for the first round of questioning, and I 

would just like to start, the intent was to take the rule and codify 

it, and I think that is what we have been able to do. It makes it 

easier to comply with and understandable when it does create consistency across the country, and that was the intent. We specifically took EPA language in the rule on, the exact language on design requirements, post-closure, air criteria, record keeping, runoff, run-on and run-off controls, hydrologic and hydrologic capacity 

requirements, and inspections. Those are aspects that we took the 

exact language in the rule. 

So, I just appreciate the work that we have done to try to move 

in a direction where we are working with the EPA, take their rule, 

and make it stronger, and that is really the position of the majority 

of the subcommittee. 

Mr. Paylor, does ECOS support the approach taken in this draft 

legislation? 

Mr. PAYLOR. Yes, I believe that ECOS does support it, and it is 

for the reasons that you mentioned, that it takes the EPA Federal 

rule, which we believe was a positive step forward, and addresses 

some of those additional concerns like dual oversight and financial 

assurance. 

Mr. SHIMKUS. In your opinion does the draft legislation address 

the implementation issues associated with the final rule, including, 

as you just mentioned, dual regulation systems and the enforcement only through citizen suits? 

Mr. PAYLOR. Yes, I believe it does address those. 

Mr. SHIMKUS. And that is part of the debate on this legislation. 

The way the rule comes out is the only way you really can get enforcement is through the Courts, and every Federal District Court 

around this country, which are in the hundreds, could then enforce 

a different standard than what a national standard or a standard 

working through the states. Is that your understanding, Mr. 

Paylor? 

Mr. PAYLOR. I believe that this would create a uniform standard 

across the country, and that is one of the strengths that it provides. 

Yes. 

Mr. SHIMKUS. Mr. Forbeck, do you agree with that? 

Mr. FORBECK. Yes, I do. I believe it eliminates the confusion that 

the Solid Waste Management Plan had provided and would provide 

a single point of determining—— 

Mr. SHIMKUS. So ASTSWMO supports this legislation? 

Mr. FORBECK. We do support. We are very pleased that it incorporates the EPA rule and also added the financial assurances that 

we requested and has a single permit. 

Mr. SHIMKUS. Let me just follow up. Do you read the legislation 

as allowing states the ability to pick and choose which requirements to include in the state Permit Program? 

Mr. FORBECK. No, I do not. There are minimum standards or 

permit requirements that the states would—— 

Mr. SHIMKUS. And the minimum of standards as you evaluate 

this draft legislation comes from where? 

Mr. FORBECK. From the EPA rule. From the legislation. 

56 

Mr. SHIMKUS. So just for the record, the minimum standards you 

interpret as coming from where? 

Mr. FORBECK. Well, it comes from the, originally from the EPA 

rule as it was incorporated. 

Mr. SHIMKUS. Great. Thank you. Mr. Roewer, the legislation incorporates requirements of the final rule as minimum requirements 

for state Permit Programs. Many of the requirements are incorporated directly with no revisions as I read earlier. There are, however, a few places where the legislation allows the implementing 

agency to tailor the requirements based on onsite specific riskbased decisions, in particular with respect to groundwater monitoring and corrective action. Can you explain why this is important? 

Mr. ROEWER. Yes. Thank you. EPA recognizes the legitimacy of 

tailoring those regulations. There is extensive discussion of that 

fact in the preamble but then backed away from that recognizing 

there was no Federal or no regulatory agency oversight of that 

process. The legislation would allow the state Regulatory Agencies 

to tailor the regulations to address site-specific concerns associated 

with coal ash management. 

Mr. SHIMKUS. What could be different? 

Mr. ROEWER. Well, one of the things would be a groundwater 

protection standard for instance. EPA would default to the background of the groundwater protection standard under their self-implementing rule. Where there is another state or Federal healthbased standard, the state Regulatory Agency can apply that in lieu, 

if there is no MCL, to establish an alternative groundwater protection standard. Not leaving, EPA couldn’t leave that to the owner 

and operator. That does need regulatory agency oversight, and the 

bill appropriately sets up a mechanism for the states to take that 

approach. 

Mr. SHIMKUS. Great. My time is close to expiring. Thank you 

very much, and I recognize Mr. Tonko for 5 minutes. 

Mr. TONKO. Thank you, Mr. Chair. 

For far too long communities have been subject to the serious 

risks associated with inadequate coal ash disposal. Coal ash releases have polluted our air and water supplies, and structural failures have devastated communities and resulted in very expensive 

and very complicated clean-up efforts. 

EPA’s final rule will go a long way, I believe, to address these 

concerns. This bill up here is to reverse this course, eliminating 

some of EPA’s minimum requirements and weakening or delaying 

others. 

Ms. Evans, how did the bill’s location requirements measure up 

to those in the final rule, and if they are not the same, why is that 

difference important? 

Ms. EVANS. Thank you, Representative Tonko. The location 

standards differ radically from the location standards in the EPA 

rule. One of the most important restrictions is the placement, the 

prohibition against the placement of ash within 5 feet of the 

groundwater table. In other words, you can’t place ash any longer 

within 5 feet of a potential drinking water source. The proposed 

legislation does not incorporate that location standard. So what you 

have is—you do not have the prohibition of ponds that are curVerDate Nov 24 2008 13:25 Jun 06, 2016 Jkt 037690 PO 00000 Frm 00060 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 114\114-22FINAL CHRIS
57 

rently located in a drinking water aquifer. They will not have to 

close. That is a radical change in the requirements because we 

know for sure that there are many ponds that are currently in contact with a groundwater. 

The bill also does not incorporate restrictions for wetlands, for 

seismic areas, and for fault areas. 

Mr. TONKO. Thank you, and the bill differs from the EPA rule’s 

closure requirements for disposal units that don’t meet important 

criteria like liner designs, structural integrity, or location restrictions. The bill keeps these facilities open, allowing deficient structures to continue to receive waste for years. 

Ms. Evans, how do the closure requirements of the bill compare 

to those in the EPA rule? 

Ms. EVANS. The closure requirements in the bill are much more 

lenient and will allow ponds that are contaminating groundwater 

to continue to operate and continue to accept waste for 8.5 years 

in the case of an unlined surface impoundment. And this, of course, 

endangers those communities near those impoundments that are 

reliant on drinking groundwater. EPA has identified unlined ponds 

as being the most dangerous way to dispose of waste, and when 

you allow unlined ponds that are leaking above a health standard 

into groundwater to continue to operate for 8.5 years, that certainly 

is not the same requirements as you had in the EPA rule. The EPA 

rule would require the ponds to cease accepting waste within 6 

months and close. 

Mr. TONKO. And so the requirements under EPA’s rule as indicated will take effect much more quickly than those under the bill? 

Ms. EVANS. Absolutely. Communities are looking forward to the 

application of the requirements as early as September. Many requirements are in effect 6 months from the date of publication. If 

that is at the end of this month, we are going to see relief for contaminated air quality from dust, we are going to see public information posted on utility Web sites, we will see the initiation of inspection at high and significant hazard ponds on a weekly basis 

and a monthly basis. So communities will get immediate relief from 

the EPA rule, and under the bill this relief is going to be delayed 

at least 2 to 3 years and probably in most cases much longer. 

Mr. TONKO. And the requirement that, as you indicate, facilities 

can post operational and compliance data on a publicly-available 

internet site without exception, this both incentivizes industry compliance up front and empowers local citizens with information they 

need to keep an eye on what is happening in their communities. 

How important are these public disclosure provisions in EPA’s 

rule? 

Ms. EVANS. The public disclosure provisions are critical to EPA’s 

rule, and EPA rule is explicit as to what has to be posted. The difference in the bill is that there are general public participation or 

public notice provisions, but it gives states discretion on how they 

require that information to be made public. Currently information 

in many states is made public, but it is at state agencies where citizens at great difficulty and great expense must request a file review, often wait a substantial amount of time, and spend a significant amount of money obtaining that data. So often this data is in 

the real world not available to citizens, but actual groundwater 

58 

monitoring data, dust control plans, inspections, assessments of 

structural stability, all those would be posted according to the EPA 

rule in a publicly-accessible Web site free of charge to all communities impacted by the dumpsites in their communities. 

Mr. TONKO. I have exhausted my time, so I yield back. 

Mr. SHIMKUS. The gentleman yields back time. 

The Chair now recognizes the gentleman from Mississippi, Mr. 

Harper, for 5 minutes. 

Mr. HARPER. Thank you, Mr. Chairman. Thanks to each of you 

for being here. 

Mr. Paylor, the draft legislation directly incorporates the technical requirements in EPA’s final coal ash rule and establishes a 

baseline for coal ash management across the country. Do you believe that the minimum requirements set forth in the legislation 

will ensure that states develop effective and environmentally-protected permit programs for coal ash management, and if so, why? 

Mr. PAYLOR. We do believe that it would provide a Federal baseline and then states would also be able to go beyond that with their 

own site-specific needs as well. 

Mr. HARPER. The bill contains a provision requiring states to develop plans for coordination among states in the event of a release 

that goes across state lines. Why is that important? 

Mr. PAYLOR. Well, it is important to Virginians because we recently this year had an experience where there was a release in 

North Carolina. The majority of the stream impact was in Virginia, 

and so the ability for states to have some upfront planning and coordination would just streamline the process should we have another unfortunate incident like that. 

Mr. SHIMKUS. Would the gentleman yield on that? 

Mr. HARPER. Yes, I will yield. 

Mr. SHIMKUS. Is that in the current EPA rule? 

Mr. PAYLOR. Not to my knowledge. 

Mr. SHIMKUS. Does anyone know? I don’t think it is. Thank you. 

I yield back. 

Mr. HARPER. Thank you, Mr. Chairman. 

Mr. Paylor, your written testimony notes that the draft bill includes the new robust technical siting, financial assurance, run-on 

and run-off controls, record keeping, and structural integrity requirements published by EPA in the final CCR rule and that EPA 

did a very good job developing the technical requirements of the 

final CCR rule. Your written testimony also states that you value 

the flexibility the draft bill adds. Can you explain why the added 

flexibility is a good thing? 

Mr. PAYLOR. The added flexibility is important primarily because 

of being able to deal with site-specific issues, especially when you 

are looking at groundwater contamination, issues of groundwater 

flow, and nearby receptors and everything are very important, allows you to tailor your response to the site rather than a one-sizefits-all approach. 

Mr. HARPER. OK, and your written testimony also states that the 

draft legislation provides a Federal backstop. Would you please explain to us what that means? 

Mr. PAYLOR. Well, the Federal backstop means that there is enforcement authority at the Federal level should the state not meet 

59 

those standards, and so, therefore, you have got the state authority 

but if that fails, the Federal Government can come in and take action. 

Mr. HARPER. Why is it important that the draft legislation allows 

for the pre-approval of a state Permitting Program? 

Mr. PAYLOR. Well, a state Permitting Program provides certainty, it provides the ability to have site-specific requirements on 

that particular facility, and it provides more clear enforceability. 

Mr. HARPER. OK. Thank you very much. Mr. Forbeck, states 

have previously demonstrated the ability to implement permit programs very similar to coal ash. So is EPA approval necessary before states begin implementing Coal Ash Permit Programs, and 

wouldn’t EPA program approval unnecessarily delay implementation of Coal Ash Permit Programs? 

Mr. FORBECK. I think the certification program that is within 

this draft would actually expedite implementation of these requirements of the rule. In states that have proven programs, proven permit programs can continue them with CCRs. In Pennsylvania we 

have a very successful program which we have done for many, 

many years. 

Mr. HARPER. Thank you, and I yield back the balance of my time. 

Mr. SHIMKUS. The gentleman yields back his time. 

The Chair now recognizes the gentleman from California, Mr. 

McNerney, for 5 minutes. 

Mr. MCNERNEY. Thank you, Mr. Chairman. I want to thank my 

colleague for his efforts on this issue. 

I believe I heard two concerns consistently from the first three 

witnesses. One of them was that the main enforcement mechanism 

of citizen lawsuits and that that would bring uncertainty and so on, 

and the other one, and I am a little confused about this one, is that 

it would establish inconsistent standards across states while at the 

same time giving states flexibility, which seemed to be something 

that, like you are shaking your head there, Mr. Roewer. Did you 

disagree? 

Mr. ROEWER. The inconsistent application of the rule, Congressman, is due to the interpretation of the rule by the Federal District 

Court Judges, not inconsistent as per application and enforcement 

by the state Regulatory Agencies. At least in my testimony the concern for a potential patchwork of interpretation stems from the 

self-implementing citizen suit enforcement structure of EPA’s rule, 

not of the legislation. The legislation solves that problem. 

Mr. MCNERNEY. How does it solve it? 

Mr. ROEWER. By having the Federal standards prescribed in the 

rule, that are EPA’s rule, implemented by the state Regulatory 

Agencies. There is a Federal floor under which the states cannot 

drop. 

Mr. MCNERNEY. Well, my understanding is that there is a lack 

of a standard of protection in the proposed legislation. Would you 

address that, Ms. Evans? 

Ms. EVANS. Yes. This bill, like the other bills proposed by Representative McKinley, lacks a protective standard of protection, and 

this is pointed out numerous times by CRS. What that means is 

that there really is no Federal floor that Mr. Roewer is describing. 

States are free to interpret the terms that are not defined. They 

60 

can define their own terms, and they can run their programs without oversight that has a standard of protection of human health 

and the environment. The standard protection of human health 

and the environment is a watch word of RCRA. It applies in all of 

RCRA’s programs except if this bill passes it won’t be applied to 

coal ash, and this is a very dangerous omission because EPA essentially will have very narrow oversight as to be completely ineffective because if an agency can’t look at a state program and say 

these programs don’t protect human health and the environment, 

therefore, this is a deficient program, their oversight will be minimized and essentially this is exactly what the bill says. 

If I could talk to the dual enforcement because that argument is 

really nonsense. Under RCRA, the RCRA Citizen Suit Provision, either states or citizens, when, following a citizen suit are in Federal 

Court, they are in Federal Court if it is a hazardous waste violation, they are in Federal Court if it is a municipal solid waste violation. So RCRA has always operated like this, that you have Federal 

Courts interpreting state law. So the problem that is raised by 

USWAG and the states is really a problem, that it is really something that hasn’t been a problem for all the decades that RCRA has 

been, RCRA programs have been in effect for decades. 

Mr. MCNERNEY. So are you concerned about the citizens lawsuits 

being the main enforcement mechanism? 

Ms. EVANS. I am not. Citizen lawsuits include the state lawsuits. 

So it is not, when one says citizen lawsuits, what that means is 

citizens or the states are free to enforce, under the EPA rule, are 

free to enforce the EPA rule. States can go in and enforce those 

provisions as well. So any citizen suit that is filed, it is required 

that there be 60 days’ notice to the state. If the state wants to be 

the main implementing agency and wants to interpret its own regulation and enforce its own regulation, it is 100 percent free to do 

that. A citizen can’t slip in with a lawsuit. They have to give 60 

days, and if the state wants to maintain, be the primary enforcing 

agency and maintain 100 percent control over the program, a state 

can bring that enforcement action, can enter a consent decree, and 

there will not be a citizen lawsuit by a citizen group. 

Mr. MCNERNEY. OK. I don’t know if you will have enough time 

to answer this, but one of the things that you said concerned me 

was that citizens wouldn’t have the ability to determine the quality 

of the water that might have been contaminated, and that, how 

could the bill prevent that from happening? 

Ms. EVANS. Well, the bill doesn’t make mandatory groundwater 

monitoring data. So what that means is a community that is on 

wells next to a coal ash pond or landfill would not necessarily 

under the bill have access to the groundwater monitoring data. So 

they couldn’t go on a Web site and find out what are the levels of 

arsenic, chromium, lead. 

Mr. MCNERNEY. But they could do it themselves? They could do 

the testing themselves or have a laboratory do it if it is in the paperwork? 

Ms. EVANS. Well, that is, well, they wouldn’t have access to the 

industry wells. They could test their own well, but some, the purpose of RCRA is to prevent harm to health and the environment. 

So you want to find out what is in those industry wells, which 

61 

might be ‘‘a mile from your drinking water well’’ before it gets to 

your well and your family. 

Mr. SHIMKUS. The gentleman’s time has expired. 

Before I move to Mr. Murphy, Ms. Evans, you mentioned the 

CRS report. If you have one on this bill, we would like to see it. 

I think you are referring to previous bills of past Congresses. There 

is no CRS report on this bill right now, and there would be public 

disclosure through the state, and with that I yield 5 minutes to Mr. 

Murphy. 

Mr. MURPHY. Thank you, Mr. Chairman. I appreciate the panel 

being here. It is a long-term issue we have to deal with directly. 

I do want to deal with some comments that, Ms. Evans, you 

made and with regard to the bill fails to establish a protective 

standard. I didn’t hear from other panelists if they agree with that. 

Mr. Roewer, do you agree with that? 

Mr. ROEWER. The bill takes EPA’s 257 regulations, their coal ash 

rule, and builds a CCR Permit Program based on those regulations. 

Those regulations, the 257 regulations, are developed by EPA with 

that, to meet that standard of care, so we believe that the bill does 

provide that Federal standard of care in a Federal floor. 

Mr. MURPHY. Mr. Forbeck, do you agree that the bill fails to establish a protective standard, or do you disagree? 

Mr. FORBECK. I disagree. I believe it does establish a protective 

standard. 

Mr. MURPHY. Mr. Paylor? 

Mr. PAYLOR. I would agree with those responses as well. 

Mr. MURPHY. Thank you. I mean, along those lines I look upon 

it that state legislators and regulators have the authority to do 

some things. Ms. Evans, one of the things you are raising question 

with is it may get in the way of people being able to bring up Court 

cases, interfere with that. Am I understanding you correctly there? 

Ms. EVANS. If I understand your question, the state and citizens 

stand in the same legal place in that if an industry under the CCR 

rule is violating any of those requirements, it can bring a suit to 

enforce the EPA rule. There is nothing in the EPA rule that would 

stop states from fully adopting, fully enforcing that rule, and as one 

of, I think it was the gentleman from ECOS, has said that states 

are ready to do this within 2 or 3 years. 

Mr. MURPHY. OK. Mr. Forbeck, so based on your experience will 

this draft legislation being discussed today result in a more effective implementation of requirements of the final rule than the selfimplementing program, and why or why not? 

Mr. FORBECK. I believe as I said in the testimony, it would be 

more effective, one, as a single permit program we have the state 

that will have the jurisdiction and the enforcement capabilities of 

enforcing this rule. In addition, the uncertainty of the Solid Waste 

Management Plan as a mechanism for implementation is no longer 

there. We have this permit program that would be in effect 

and—— 

Mr. MURPHY. Pennsylvania has a very robust coal ash program. 

Am I correct? 

Mr. FORBECK. That is correct. 

62 

Mr. MURPHY. And would you have to develop any new requirements or make changes to existing requirements based upon this 

draft legislation? 

Mr. FORBECK. We believe it would be very minimum requirements that we would have to change. We have been regulating coal 

ash for a number of years. We had liners requirements since the 

early ’90s and groundwater requirements since the ’90s. So I think 

for Pennsylvania it would not be very long. 

Mr. MURPHY. So let me talk about that issue with the liner requirements. I want to make sure we have enough flexibility that 

as new science is developing, new liners, et cetera, that we don’t 

limit anything here. So, and I think that is where this bill tries to 

reflect, but would you support the inclusion of a provision to allow 

more latitude in liner design to capture the flexibility of science develops, as technology develops than is already provided by state 

law, so long as it is protective of the EPA devised standard? 

Mr. FORBECK. If it is as protective, and right, as technology improves—— 

Mr. MURPHY. Yes. 

Mr. FORBECK [continuing]. There could be even better methods 

that could be more protective than the liner systems that we have 

now. So we would support that. 

Mr. MURPHY. Ms. Evans, you said something that called my attention to. You talked about issues with regard to dams. I guess 

coal ash dams or piles or whatever, and what do you consider the 

risk that this bill does not address with regard to dams? 

Ms. EVANS. Well, with regard to dams there are a few. One of 

them is the location restrictions which don’t apply to dams in wetlands, in fault areas, in seismic areas, and the dams that are sitting in the aquifer. Further, it is the delay. This rule wouldn’t— 

the requirements would be at the earliest in effect 2 to 3 years, and 

so the inspections of high-hazard dams would not occur until 2 or 

3 years where it would immediately be applicable. And the other 

thing is, we keep talking about whether this bill is the same as the 

EPA rule, and I would urge the committee members to look at my 

testimony and the long list of definitions that can be defined by a 

state without a protective standard and which could differ from 

EPA’s definitions, and definitions define the applicability, the 

scope, the stringency of a rule. So let us take dams. The—— 

Mr. MURPHY. I am out of time here. 

Ms. EVANS. Oh. Can I just say that the states can define hazard 

potential dams differently, well, as they wish because that is not 

a definition in the bill, so they could exempt some highly-significant hazard dams from those categories, and thereby, those more 

stringent requirements for those more dangerous dams would not 

be applicable. 

Mr. MURPHY. Thank you. 

Mr. SHIMKUS. The gentleman’s time has expired. 

Mr. MURPHY. Could I just ask that we could ask for the record 

the other panelists be able to respond to that question, too? 

Mr. SHIMKUS. Without objection—— 

Mr. MURPHY. Thank you. 

Mr. SHIMKUS [continuing]. So ordered. 

63 

The Chair now recognizes the gentleman from Ohio, Mr. Latta, 

for 5 minutes. 

Mr. LATTA. Thank you, Mr. Chairman, and thanks very much for 

our panel for being here. It is very informative as always. 

If I could go back, Mr. Roewer, if I could ask you because the 

question that Mr. Murphy had just brought up pretty much, the 

basic principle in this bill is that we are taking EPA’s rule and giving more flexibility to states, providing the same protections to the 

environment and particularly the drinking water resources in ways 

other than those narrowly approved by the EPA. And, again, following up, Mr. Forbeck just answered Mr. Murphy. Would you support the minor changes to the bill that would meet the basic principle giving that flexibility to provide the same environmental protection if states have regulations to provide equivalent protection 

in different ways? 

Mr. ROEWER. USWAG has always supported regulation by the 

states of coal ash as a non-hazardous waste with a performancebased approach, protecting the environment, protecting the groundwater resource. So that would be consistent with that view as long 

as it is protective of the groundwater resource. 

Mr. LATTA. Thank you very much. 

Mr. Paylor, if I could ask, I saw in your testimony that 36 states 

have permitting for the disposal activities with 94 percent of those 

requiring groundwater monitoring. Do you believe that most states 

want to implement their own permit program rather than have the 

EPA do it for them? 

Mr. PAYLOR. In general, states do prefer to have oversight. It 

gives more a more direct connection to the facility itself that is 

being regulated. We support the Federal floor that gives consistency across states, and I think most states would very much prefer 

to implement their own permitting program. 

Mr. LATTA. Thank you, and Mr. Forbeck, what do you see as the 

role of states in protecting the environment, and how does the draft 

legislation accomplish that goal? 

Mr. FORBECK. I think the states are the first line of defense and 

the ones that are closer to the issues, and they are the ones that 

should be enforcing the rule, and I think the capability of the proposed legislation will allow states to do that. 

Mr. LATTA. Thank you. Mr. Paylor, in your opinion will the draft 

legislation require every state to have a permit program that contains the minimum Federal requirements? 

Mr. PAYLOR. It does not require every state to do that, however, 

if the state does not have rules that meet the Federal standard or 

opts out on their own, then the Federal Government would step in 

and enforce those rules. 

Mr. LATTA. If I could just follow up, again, Mr. Paylor, in your 

written testimony you note that the draft legislation lays out a 3- 

to 4-year process for compliance by regulated facilities, but you 

note that the bill recognizes implementation realities and still allows for action in emergency situations. Could you explain that? 

Mr. PAYLOR. Each impoundment is going to have its own sitespecific concerns and just the logistics of identifying what it takes 

to comply, and implementing that is going to take some time, plus 

it is going to take a couple of years for the states to get their rules 

64 

in place. And so that just recognizes the realities of the logistics to 

need to do that and also allows for, if, in fact, you do have an emergency situation, you move immediately. 

Mr. LATTA. OK. Thank you, and Mr. Roewer, I know my time is 

running short here, but the rule requires retroactive application of 

the location restrictions to existing surface impoundments. Can you 

walk me through why this is important? 

Mr. ROEWER. We believe it is unfair to apply retroactively location restrictions. We can’t move these impoundments. They are 

where they are. There are other provisions in the legislation that 

would address the concerns that are at the core of those location 

restrictions. We heard there is no prohibition of putting ash directly into an aquifer. The bill contains groundwater protection 

standards, groundwater monitoring requirements. So the goal of 

the location restrictions to keep contaminants out of the aquifer are 

met through other aspects of the legislation, and indeed, the inspections, the safety assessments will all address those same concerns that are being addressed through the location restrictions. 

Other elements in the bill do that. 

Mr. LATTA. Thank you. Mr. Chairman, my time has expired, and 

I yield back. 

Mr. SHIMKUS. The gentleman yields back. 

The Chair now recognizes the gentleman from West Virginia, Mr. 

McKinley, the author of the legislation, for 5 minutes. 

Mr. MCKINLEY. Thank you, Mr. Chairman. It is a draft legislation, draft piece. We are going to be working with this, and we are 

going to make some other modifications, I am sure, to it. It is going 

to continue to evolve in this process. It has to. 

But I am just curious, a lot of the comments—well, the majority 

of the comments that have been made to date have all been about 

location, drinking water, and the like. But we haven’t talked about 

the recycling, and so let us put this all in context again. 

For the crowd that may or may not understand a lot of this 

issue, we generate about 150 million tons of fly ash annually, but 

we recycle 40 percent of that. So all of this last hour-and-a-half or 

2 hours we have been talking about is the water. What about the 

recycling provision? What are we going to do, because the preamble 

to the rule is troubling to me, and it should be troubling to everyone because the preamble says this rule defers a final determination until additional information is available. That means that it 

could rule back to a C. They are D now. It could be a C in the future. It could be 2 weeks from now, it could be a year from now 

or 2 years from now. What we are trying to do is codify that provision so that we remove the uncertainty for the recyclers. Threehundred and 16 thousand jobs are at risk. If they make that flip 

that they have just—in the rule and because it is an executive rule 

they can do another executive rule or through the EPA rule to say 

that it is a hazardous material, what happens to the recyclable material? 316,000 jobs could be at risk. Who is going to put in their 

house if—and remember, the science has already been determined 

it is not a hazardous material. This was done in 1993, and the year 

2000. It said it is not a hazardous material. It wasn’t until this Administration said I don’t care what the science says, I want to treat 

it as a hazardous material, and as a result we got uncertainty. I 

65 

don’t think any of us would put drywall in our house or concrete 

in our floors or in our concrete block or in our bricks if we thought 

it was a hazardous material. So, therefore, the EPA did their study 

and came back two times and said it is unhazardous. I am concerned about this portion, the 40 percent. Certainly we are concerned about the other 60 percent when it goes to a landfill, and 

we will address that, and there is a lot of provisions that have been 

in there, but let us make sure we have some debate here today 

about the 40 percent that we are trying to recycle. 

So go back if we could get our panel, is that a concern, that they 

could switch back because they say in the preamble they defer a 

final determination until further information is available? Is that 

a reasonable determination? Does that cause certainty? 

Mr. Paylor? 

Mr. PAYLOR. Thank you. We support beneficial reuse, which by 

definition tells you we think it is a Subtitle D material. Whether 

that creates uncertainty is a great question, but the ECOS states 

have uniformly supported beneficial reuse of this material. 

Mr. MCKINLEY. Mr. Forbeck, do you think it should be recycled? 

Mr. FORBECK. Absolutely and—— 

Mr. MCKINLEY. Would you recycle it if it were hazardous material? 

Mr. FORBECK. It would be a concern if it was a hazardous material. 

Mr. MCKINLEY. Concern. 

Mr. FORBECK. ASTSWMO has supported the beneficial use, and 

that has been a concern in our past documentation of this being labeled as a hazardous waste. 

Mr. MCKINLEY. OK. Mr. Roewer? Again, my question is is this 

issue of uncertainty by virtue of them being able to switch back to 

a C from a D? 

Mr. ROEWER. Congressman, the language in the preamble is very 

troubling. 

Mr. MCKINLEY. Thank you. 

Mr. ROEWER. The legislation would bring regulatory certainty in 

this manner. Congress would be amending the statute to establish 

a permit program to regulate, under which the states would be regulating CCRs under Subtitle D, the non-hazardous waste title of 

RCRA. That would provide the certainty. EPA certainly could revise those 257 criteria in the future, but the regulatory program is 

within Subtitle D non-hazardous waste program. It does bring the 

certainty that the recycling market needs. 

Mr. MCKINLEY. OK. Ms. Evans, would you support recycling of 

the fly ash? 

Ms. EVANS. Absolutely. Safe recycling of fly ash—— 

Mr. MCKINLEY. I am sorry. I have had a hard time hearing you 

all day today. 

Ms. EVANS. Oh, I am sorry. 

Mr. MCKINLEY. Much better. 

Ms. EVANS. I am sorry about that. 

Mr. MCKINLEY. Keep it in front of you. 

Ms. EVANS. We do support safe recycling of coal ash, and I would 

say that—— 

66 

Mr. MCKINLEY. Do you think this preamble should be tightened 

up a little bit, to codify, so that it is not set up by the Administration or the EPA can just change that at their whim? 

Ms. EVANS. Well, I have two responses to that. One is that it is 

impossible to ‘‘flip’’. The EPA, if they were going to make a change, 

it is a long process full of public participation, proposed rules. You 

can’t see EPA making a unilateral decision without your involvement, the involvement of industry and public interest groups. So it 

is impossible to flip. Whether EPA could change its mind, which I 

don’t think it will in the future, you know, is certainly inherent in 

environmental regulation. 

But if we are talking about certainty, what I would point to is 

the gross uncertainty that is created by the bill—— 

Mr. MCKINLEY. I am sorry. 

Ms. EVANS [continuing]. To communities because there is no Federal floor under the bill for safeguards. 

Mr. MCKINLEY. Thank you very much. 

Mr. SHIMKUS. The gentleman’s time has expired. 

The Chair now recognizes the gentleman from Indiana, Mr. 

Bucshon, for 5 minutes. 

Mr. BUCSHON. Thank you, Mr. Chairman. 

Ms. Evans, do you believe we should burn coal to generate electrical power? 

Ms. EVANS. I believe that there are safer sources of energy. 

Mr. BUCSHON. That is a yes or no. Yes, you do believe we should 

continue to use coal, or no, you think we should just eliminate coal 

as a source of energy generation. 

Ms. EVANS. Well, I think it is a more nuance question. I support 

the transition to safer and more environmentally-friendly sources 

of energy. 

Mr. BUCSHON. OK. Fair enough. And do you believe, Ms. Evans, 

that state regulatory agencies, because just through the tone of 

this, it is a Federal versus state issue here, that do you believe that 

state regulatory agencies and the citizens in individual states care 

about the health and wellbeing of their citizens at the state level? 

Ms. EVANS. I do. I believe state agencies care on the whole. 

Mr. BUCSHON. Yes. 

Ms. EVANS. I think they do, but I think the record of state agencies has not been good and—— 

Mr. BUCSHON. And the record, in fairness, the record of the Federal Government has been better? 

Ms. EVANS. The record of both agencies on coal ash has been bad, 

but what we have seen in terms of—— 

Mr. BUCSHON. Not specifically the coal ash, just this is a generalized question about state, I mean, it is a Federalism issue. Basically the question that I have is a state—because the implication 

that states and their agencies and citizens in their states have to 

have the Federal Government tell them specifically what to do or 

they will violate, they will damage the environment, and they won’t 

properly regulate things at the state level I think is something that 

has been implied, which I disagree with. 

So the question is, as you know, at the state level there is legislative pressure, there is citizen pressure on the governors, the state 

legislators, the regulators just as there is at the Federal level. So 

67 

the question I have basically is why do you feel that, you know, 

that the Federal regulators would necessarily do a better job than 

people are doing already at the states like Pennsylvania has described, for example? 

Ms. EVANS. All right. Well, what we see, and I think the proof 

is in the evidence on the ground, EPA identified 157 cases of contamination from coal ash sites, sites which are wholly under the 

authority of state agencies. We have had three major spills since 

2008, two of which were horrendous in terms of their damage and 

their cost, and it is lucky that no lives were taken. That record indicates that state agencies are not doing their job as far as coal ash 

is concerned. 

Mr. BUCSHON. Why would this be because—— 

Ms. EVANS. And then—— 

Mr. BUCSHON. Wait. I am reclaiming my time because I was a 

healthcare provider before, you probably don’t know that, and there 

is no system in healthcare that we, when we provide healthcare to 

patients that is perfect and every once in a while if you understand 

statistics, things do occur. So I think the overall implication that 

because there have been some disastrous spills, in total agreement 

with you on that, that that means that state regulators are not 

doing their job I think is an unfair assessment and that—so the 

question is, again, compared to this draft legislation, and what the 

EPA has done, do you think that the Federal Government will be 

able to eliminate all the spills and other problems that you have? 

Because statistically, right, no matter what industry you are in, 

there is nothing that is 100 percent. 

Ms. EVANS. Right, but the damage does indicate that on their 

watch the state agencies have failed. If you compare the municipal 

solid waste arena where the state agencies have an authorized program that has a Federal floor and has a Federal standard of protection, you are not seeing the same kind of contaminated groundwater near municipal solid waste landfills as you are near coal ash 

sites. 

So, yes, when there is a Federally-approved program, when it 

has got specific standards, and when states have to be authorized 

to have standards as stringent as the Federal standards—— 

Mr. BUCSHON. OK. 

Ms. EVANS [continuing]. That can—— 

Mr. BUCSHON. Reclaiming my time, Mr. Roewer, can you respond 

to what she just said? 

Mr. ROEWER. Congressman, I think comparing a situation prior 

to a Federal standard that would be implemented through this legislation is inherently unfair. If you are comparing previous performance by the state regulatory agencies when there isn’t a Federal regulation, which is what this bill would do, just is not appropriate. 

Mr. BUCSHON. Thank you. I yield back my time, Mr. Chairman. 

Mr. SHIMKUS. The gentleman yields back his time. 

The Chair now recognizes the gentleman from Texas, Mr. Flores, 

for 5 minutes. 

Mr. FLORES. Thank you, Mr. Chairman. I thank the panel for 

joining us today. 

68 

Mr. Roewer, the draft legislation treats legacy sites in the same 

way that the EPA did under the final rule, and that is that inactive 

impoundments must either close within 3 years or become subject 

to all of the requirements to an active disposal unit. In your opinion is 3 years already enough time to close a surfaced impoundment? 

Mr. ROEWER. Not in all cases. It is a rather complicated process 

of dewatering the facility to ensure the structural integrity of the 

unit to minimize impacts of contaminants to groundwater, to ensure that you can place and then place a cap on top of that unit. 

There may be climate and permitting complications that would 

cause that period to be longer. EPA recognized this in their rule 

when they established a 5-year timeframe for closure of impoundments with the possibility of extending that. 

Mr. FLORES. Yes. That building on that then the legislation that 

Mr. McKinley drafted give the implementing agency the authority 

to grant a 2-year extension. Why is that extension there, sir? I 

think you already answered that. Sometimes you can’t—— 

Mr. ROEWER. Absolutely, and, again, I will point to the fact that 

the agency for active impoundments provided for a 5-year timeframe with the ability to extend that closure time period by up to 

10 additional years. The closure process for inactive units and active units can be quite similar. So we do need additional time. 

Mr. FLORES. Let us go ahead and drill into that. I think you had, 

you said something to the extent that you would have to demonstrate, your agency would have to demonstrate why that was 

needed. Give me an example of the demonstration. 

Mr. ROEWER. Again, it is not a guarantee that we get that extension. It is something that the owner and operator would have to petition the implementing agency to get. You would have to demonstrate that the factors are beyond control, the extension would 

be the same factors in EPA’s rule to extend the time period: climate, weather, permitting conditions, permitting situations that require additional time. 

Mr. FLORES. OK. 

Mr. ROEWER. And you also have to demonstrate that the facility 

you are closing isn’t a threat for release or a spill. 

Mr. FLORES. Yes. In some cases, I mean, going to an inactive facility and starting the process to seal it could be more disruptive 

to the environment than to take your time and do it the right way. 

Mr. ROEWER. We certainly need to make sure that all facilities, 

whether they are active facilities we are capping or active facilities 

are closed in a safe and environmentally-sound manner. 

Mr. FLORES. OK, and Mr. Forbeck, to follow up on that, in your 

opinion does the draft legislation deal with inactive impoundments 

in the same manner as the final rule? 

Mr. FORBECK. It does deal with it very similar, but it does allow 

some extensions based on the conditions that Mr. Roewer expressed. 

Mr. FLORES. And those are important conditions. I mean—— 

Mr. FORBECK. Yes, they are. 

Mr. FLORES [continuing]. Disrupting an inactive facility prematurely without adequate planning could be more harmful for the 

environment. Mr. Forbeck, did the final rule require regulated entiVerDate Nov 24 2008 13:25 Jun 06, 2016 Jkt 037690 PO 00000 Frm 00072 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 114\114-22FINAL CHRIS
69 

ties to provide financial assurance for corrective action, closure, 

and post-closure of coal ash disposal units? 

Mr. FORBECK. The EPA rule did not. 

Mr. FLORES. OK, and so doesn’t this legislation actually go further than the final rule by requiring financial assurance not just 

for active disposal units but also for inactive surface impoundments? 

Mr. FORBECK. Yes, it does, and we feel that is a very important 

component of this—— 

Mr. FLORES. OK. 

Mr. FORBECK [continuing]. Legislation. 

Mr. FLORES. Thank you for joining us today. I yield to any other 

Republican member the balance of my time, or I will yield back. 

OK. I yield back. 

Mr. SHIMKUS. The gentleman yields back. 

The Chair now recognizes the Ranking Member of the full committee, Mr. Pallone, for 5 minutes. 

Mr. PALLONE. Thank you, Mr. Chairman. 

I wanted to first ask Mr. Paylor, you mentioned earlier, I wasn’t 

here, I was at the other hearing, but you mentioned earlier that 

citizen suits would be the sole method of enforcement under the 

EPA rule, but EPA strongly encouraged states to incorporate the 

new Federal criteria into their own state Solid Waste Management 

Plans. So do you expect at least some states will incorporate the 

new Federal standards into state programs, and if states adopt 

these requirements, do you expect them to enforce the requirements? 

Mr. PAYLOR. It is certainly possible that some states would adopt 

those. There would not be a permitting mechanism, however, and 

it would be subject to a one-size-fits-all situation. So there might 

be some spotty enforcement by states, but as a whole the one-sizefits-all approach to Federal regulation would, in fact, leave citizen 

suits as the primary mechanism. 

Mr. PALLONE. Did you want to comment on that, Ms. Evans? 

Ms. EVANS. Well, I have read testimony from ASTSWMO that indicates that states following the EPA rule signing, that states were 

ready and willing to implement those programs within the states, 

and states certainly can implement permit programs. The requirements have to be consistent with the EPA rule, but they certainly 

can tailor permits and use their authority to run coal ash permit 

programs subsequent to the EPA rule. 

Mr. PALLONE. All right, and then I want to continue with you, 

Ms. Evans. EPA’s final rule published online in December set Federal floor standards for the safe disposal of coal ash for the first 

time, and the rule has been decades in the making. The final product was a result of a transparent public process and input from 

stakeholders including significant input from the groups represented on today’s panel. The rule advances public health protection and protects beneficiary use. 

But this bill before us would undermine that Federal floor in 

alarming ways in my opinion by leaving out important requirements and allowing states to enforce alternative requirements that 

might be less productive. 

70 

So do you agree that this bill would undermine the Federal floor 

established by the final rule? 

Ms. EVANS. This bill absolutely undermines the Federal floor and 

does not, and I have to repeat, does not incorporate the standards 

in EPA’s rule. It incorporates some of the standards but, again, 

leaves definitions up to the states, which can radically alter the implementation and the scope and the stringency of the program. 

Mr. PALLONE. And what are the most important requirements 

that would be left to state discretion? 

Ms. EVANS. Well, you have eliminated, as I have said before, you 

have eliminated the requirement to make data publicly accessible 

in a way that is meaningful for the public. This includes data about 

the quality of their drinking water, the assessment of wells, and 

you also have eliminated the requirement for keeping coal ash 

away from aquifers. You have taken away the responsibility, the 

requirement for states to address spills, you have taken away the 

requirement for industry to address releases of hazardous substances. The important considerations are almost too numerous to 

name. 

I do want to flag one, though, because it is so important after the 

collapse of the Dan River pond. These inactive sites which have not 

been attended to sometimes for over a decade, that are sitting often 

close to rivers or to sources of drinking water, the requirements 

that pertaining to the closure of inactive sites are not equivalent. 

I am hearing again and again that people think that they are, but 

there are important differences in the closure of legacy sites, not 

only the extension of time in which to close them but what regulations apply after 3 years. None according to the bill. Everything according to EPA. 

And furthermore, utilities can very easily get out of all the closure requirements simply by using that old abandoned pond for 

disposal of anything. If you dispose of any non-coal ash waste in 

a legacy pond, it is not subject to the closure requirements, and 

that could be a really important and dangerous loophole for the inactive sites. 

Mr. PALLONE. Let me just ask one last question, whether in your 

experience state regulation of coal ash has been effective or protective of public health. 

Ms. EVANS. Absolutely not and CRS came to that same conclusion when they looked at this. It was EPA’s conclusion the holes 

were immense in terms of failure to require inspections of highhazard dams, failure to require even monitoring of landfills and 

ponds, failure to require liners for these ponds, and the failure to 

require these basic, basic safeguard for waste disposal is what has 

resulted in the spills and the releases and all the damage cases 

throughout the United states. 

Mr. SHIMKUS. The gentleman’s time—— 

Mr. PALLONE. Thank you. Thank you, Mr. Chairman. 

Mr. SHIMKUS. And I would, again, make the point that there is 

no CRS report on this bill. You are talking about previous CRS reports and previous Congresses with a different implication. So to 

compare those is not proper. 

The Chair recognizes the gentleman from North Carolina, Mr. 

Hudson, for 5 minutes. 

71 

Mr. HUDSON. Thank you, Mr. Chairman, and thank you to the 

panelists for being here today. This is an issue the people of North 

Carolina are following very closely. There has been a lot of news 

reports out of North Carolina dealing with coal ash, and it is important that we get this right. 

First of all, first and foremost, we’ve got to protect our environment, but secondly we have got to get the balance right when it 

comes to certainty of the regulations, and so I would like to go back 

and revisit that issue with Mr. Roewer. 

Does the draft legislation provide regulatory certainty for your 

member companies regarding whether EPA can revisit the determination in the future and regulate coal ash under Subtitle C? 

Mr. ROEWER. The legislation provides certainly by establishing 

that permit program under Subtitle D. 

Mr. HUDSON. OK, and if an owner, operator misses the deadline 

to complete a safety factor assessment or fails to meet the initial 

safety factor assessment criteria, the final rule requires that the 

impoundment cease receipt of coal ash within 6 months and close 

within 5 years. Can you please explain why that is a problem, and 

does the draft legislation address this issue? 

Mr. ROEWER. In some cases the design and implementation of an 

engineering solution to allow a facility to meet that safety factor 

assessment may take longer than the 18 months EPA has provided 

in this rule. We support the application of structural integrity criteria to these units. We need in some cases additional time. We 

want to make sure these units can continue to operate. We are not 

asking that unsafe units be allowed to continue to operate but that 

we be given time to ensure that these units meet the safety factors. 

Mr. HUDSON. I think you have addressed that maybe with one 

of my other colleagues, but what are some of the factors that make 

one situation take longer than another, for example? 

Mr. ROEWER. One of the complicating factors is these facilities 

are subject to permits by state regulatory agencies, and you got to 

get the approval from the state regulatory agency before you can 

do any work on that facility, and that can be a lengthy process. 

Mr. HUDSON. So in your testimony you need that flexibility? 

Mr. ROEWER. Absolutely. The legislation provides additional time 

for us to come into compliance with the safety factors, and it is 

very important the legislation does that. 

Mr. HUDSON. All right. Thank you for that. 

Mr. Chairman, I would be happy to yield to you if you would like 

to use the rest of this time. 

Mr. SHIMKUS. No. I want you to yield back, and we will go to Mr. 

Johnson. 

Mr. HUDSON. All right. Thank you. 

Mr. SHIMKUS. The gentleman yields back his time. 

The Chair recognizes the gentleman from Ohio, Mr. Johnson, for 

5 minutes. 

Mr. JOHNSON. Thank you, Mr. Chairman, and I thank the panel 

for being here today, too. I associate myself with the comments of 

my colleague from North Carolina. This is an issue that the people 

of the great state of Ohio are monitoring very, very closely. We 

have a tremendous number of families that work in the coal industry that are dependent upon the coal industry for their livelihoods 

72 

to support their families, and Ohio still gets in excess of 60 percent 

of its energy from coal. So it is a very, very important issue for people in my district. 

Mr. Forbeck, the draft legislation incorporates the definitions 

from the final rule but allows the states to make changes that may 

be necessary to tailor the requirements to the needs of the states 

but only if the state demonstrates that it has a reasonable basis 

for making the change. In your opinion will the states be able to 

arbitrarily change the definitions, and does this minimize the protectiveness of a state Permit Program? 

Mr. FORBECK. No. I do not think the states can arbitrarily 

change the definitions. It says it has to have a reasonable basis for 

those changes. An example under Pennsylvania, for example, 

where coal ash is defined differently than what is under the proposed legislation, doesn’t include flue gas desulphurization sludge, 

however, that FGD and the coal ash is included under our term, 

residual waste. That residual waste is governed in the same manner as the coal ash is with the protective standards. 

Mr. JOHNSON. So is it important then in your opinion that states 

be able to adjust the definitions if necessary? 

Mr. FORBECK. In my opinion, yes. 

Mr. JOHNSON. OK. Mr. Forbeck, also, will the draft that you have 

read, the draft legislation, would that require states to make information like groundwater monitoring data, emergency action plans, 

fugitive dust control plans, and the results of structural stability 

assessments available to the public? 

Mr. FORBECK. Yes, it will. 

Mr. JOHNSON. OK. We had heard some concerns about that. I 

wanted to clarify that. So all this data is going to be made available to the public? 

Mr. FORBECK. That is correct, sir. 

Mr. JOHNSON. Right. In your opinion as an experienced state regulator, do you think location restrictions should be imposed retroactively? 

Mr. FORBECK. I think it is important that the location restrictions are looked at at all facilities, however, there should be availability for corrective action and for enclosure if issues do occur. It 

is not possible, as I said, I think, earlier to simply move a facility 

out from a location standard. If there is reason to or there are 

issues that has been, that has come up from these, then maybe 

that is corrective action. If there isn’t, which we have seen in sites 

in our region, we have had groundwater monitoring, et cetera, 

around a lot of these impoundments, that they are operating safely, 

even though they might not meet the location standards and have 

been grandfathered. 

Mr. JOHNSON. OK. Thank you. 

Mr. Roewer, the draft legislation also treats legacy sites in the 

same way EPA did under the final rule. Inactive impoundments 

must either close within 3 years or become subject to all of the requirements applicable to an active disposal unit. 

In your opinion is 3 years always enough time to safely close a 

surface impoundment? 

Mr. ROEWER. No, it is not. It is a very complicated process, and 

we need to make sure that that closure is environmentally sound 

73 

and safe. It can take longer than 3 years given the size of the unit, 

the requirements of dewatering it, and then constructing the cap 

in place. 

Mr. JOHNSON. OK. The draft legislation gives the implementing 

agency the authority to grant an extension of up to 2 more years 

to complete closure. Why is the extension necessary? You just—— 

Mr. ROEWER. That extension is necessary because we can’t always get it done within that 3-year time period. We want to close 

these facilities safely, and that extension would allow us the time 

necessary to do that. 

Mr. JOHNSON. OK, but certainly we are not going to do these extensions willy-nilly. What would your members have to demonstrate in order to request an extension from the implementing 

agency, and specifically, if you could focus on the requirement that 

your members demonstrate that there is no immediate threat of release? 

Mr. ROEWER. The EPA in their rule has established the ability 

to extend the closure process for active units, and we would have 

to show the same reasons because of climate, size, et cetera, that 

we are required under the provisions to allow an extension of the 

closure timeframe for active units for inactive units. 

In addition, we would have to show that the facility is not a 

threat of immediate release. So we are not talking about allowing 

unsafe facilities to continue to stay there. We are asking additional 

time to safely close these facilities. 

Mr. JOHNSON. OK. Thank you very much. 

Mr. Chairman, I yield back. Thank you. 

Mr. SHIMKUS. The gentleman’s time has expired. 

Just a reminder, this is a legislative hearing on draft legislation, 

and so as Mr. McKinley said, people who have comments or concerns can still address myself, Mr. McKinley, and members of this 

committee as we move forward. 

The hearing is recessed until Tuesday, March 24, at 2:00 p.m. in 

Room 2123. The witness will be EPA Assistant Administrator, Matthew Stanislaus, a good friend of the committee who has been here 

numerous times. 

With that I recess this hearing. 

[Whereupon, at 11:55 a.m., the subcommittee recessed, to reconvene at 2:00 p.m., March 24, 2015.] 

[Material submitted for inclusion in the record follows:] 

PREPARED STATEMENT OF HON. FRED UPTON

Today’s hearing continues our multi-year and multi-Congress effort to finalize a 

thoughtful, bipartisan solution for coal ash. This has been a collaborative effort 

every step of the way, and I commend Mr. Shimkus and Mr. McKinley for their 

leadership. With this discussion draft I am confident that we have the right policy 

in place that will get us across the finish line. 

The draft is designed much like the legislation we nearly enacted in the last Congress: 

• It appropriately treats coal ash as though it’s a non-hazardous waste. 

• It includes minimum federal standards for managing the post-combustion materials. 

• And it allows states to develop permit programs that will implement the minimum standards. 

What’s different this time around? Instead of keying the minimum national standards off the old EPA regulations issued for Municipal Solid Waste—with a few 

74 

tweaks for coal ash—we set the national standard by incorporating EPA’s new coal 

ash rule that came out last December. 

We acknowledge all of EPA’s work to develop sound technical requirements for 

regulating coal ash in a way that protects human health and the environment and 

we put the agency’s efforts to good use. We allow the states—the natural choice to 

carry out permit programs—to implement the standards from the final rule through 

enforceable permits. This commonsense approach alleviates the implementation 

issues with the final rule and means state environmental protection authorities, 

some of whom are here for this hearing, will work on a daily basis with the regulated community to make sure the permit programs are on track. This kind of discipline should avoid unnecessary litigation and protect our environment at the same 

time. 

I appreciate the testimony of our witnesses, especially those who will be on the 

front line when this bill becomes law: the state officials and the regulated community. This bill is good for states like Michigan that rely on coal for electricity. This 

bill is good for jobs. Let’s continue the momentum and get this bill moving through 

committee and the House, and through the Senate, so that the president can sign 

it into law and the issue will be settled once and for all. 

(75) 

H.R. —————, THE IMPROVING COAL COMBUSTION RESIDUALS REGULATION ACT OF 

2015, DAY 2 

WEDNESDAY, MARCH 24, 2015 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY, 

COMMITTEE ON ENERGY AND COMMERCE

Washington, DC. 

The subcommittee met, pursuant to call, at 2:34 p.m., in room 

2123 of the Rayburn House Office Building, Hon. John Shimkus 

(chairman of the subcommittee) presiding. 

Members present: Representatives Shimkus, Harper, Murphy, 

Latta, McKinley, Johnson, Bucshon, Flores, Hudson, Cramer, and 

Tonko. 

Staff present: Nick Abraham, Legislative Clerk; Charlotte Baker, 

Deputy Communications Director; David McCarthy, Chief Counsel, 

Environment and the Economy; Tina Richards, Counsel, Environment and the Economy; Chris Sarley, Policy Coordinator, Environment and the Economy; Jacqueline Cohen, Democratic Senior 

Counsel; Michael Goo, Democratic Senior Counsel, Energy and Environment; Caitlin Haberman, Democratic Professional Staff Member; Rick Kessler, Democratic Senior Advisor and Staff Director, 

Energy and Environment; and Ryan Schmit, Democratic EPA 

Detailee. 

Mr. SHIMKUS. We want to call the hearing back to order and welcome the Undersecretary Mathy Stanislaus from the EPA to testify 

on the coal ash bill. And my colleagues are here, and some will 

come back. We just came from votes. 

Just for information, Mathy has to leave at 3:30, so we will try 

to expedite this as much as possible. And with that, your full statement is submitted for the record. You have 5 minutes, and welcome. 

STATEMENT OF MATHY STANISLAUS, ASSISTANT ADMINISTRATOR, OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, U.S. ENVIRONMENTAL PROTECTION AGENCY 

Mr. STANISLAUS. OK. Thank you. Good afternoon Chairman 

Shimkus, Ranking Member Tonko, and members of the subcommittee. I am Mathy Stanislaus, Assistant Administrator for the 

Office of Solid Waste and Emergency Response. Thank you for the 

opportunity to testify on EPA’s efforts on coal ash residuals as well 

as the subcommittee’s discussion draft. I was also looking for a frequent witness card after I am done here today. 

76 

Mr. SHIMKUS. We will see how your testimony goes. 

Mr. STANISLAUS. So as you all know, on December 19, the EPA 

Administrator signed the coal ash rule. The rule establishes the 

first-ever nationally applicable minimum criteria for the safe disposal of coal combustion residuals in landfills and surface impoundments. The agency is pleased that there continues to be wide agreement on the importance of ensuring the safe disposal of coal ash 

residuals. As noted in my testimony before the subcommittee on 

January 22 of this year, EPA believes that the agency’s rulemaking 

appropriately addresses the risks posed by the mismanagement of 

coal ash residual disposal. The EPA believes that the coal ash rule 

is a strong, effective, approach that provides critical protection to 

communities across the Nation by helping to protect our water, 

land, and air. The rule provides states and local communities the 

information they need to fully engage in the rule’s implementation, 

thereby helping to ensure that facilities safely manage and dispose 

of coal ash residuals. To address the risk posed by mismanagement 

of coal ash residuals, the rule requires utilities to conduct groundwater monitoring, installing liners for new surface impoundments 

and landfills, control fugitive dust, and properly close surface impoundments and landfills no longer receiving coal ash. 

The CCR rule is designed to provide electric utilities and independent power producers generating coal ash with a practical approach for addressing the issue of coal ash disposal and has established varying implementation timelines for the technical requirements that take into account, among other things, upcoming regulatory actions affecting electric utilities and site-specific practical 

realities. This rule also sets out recordkeeping and reporting requirements, including requirements to post information on a publicly available Web site to ensure transparency. We are committed 

to working closely with our state partners on rule implementation, 

and as a major component of this, we are encouraging states to revise their Solid Waste Management Plans and submit the revisions 

to the EPA for approval. 

Just last week I briefed state commissioners on the rule’s implementation process, and we agreed to continue to work together on 

expediting a streamlined process for developing and improving 

states’ solid waste management plans. EPA has been working extensively with stakeholders before the rule and subsequently, and 

just recently we had a webinar in which 800 participants participated in discussing the rule. 

EPA expects that the states will use the solid waste management 

planning process to help align state programs with the EPA rule 

and revise the state Solid Waste Management Plans to demonstrate how the state intends to regulate coal ash landfills and 

surface impoundments. We believe states will have sufficient time 

to prepare the solid waste management plans for approval. We believe we built in adequate time, up to 18 months, to revise the 

Solid Waste Management Plans before key provisions of the rule 

take effect. The agency expects that the solid waste management 

plan process can accommodate state program variability as states 

demonstrate regulatory requirements that are equivalent or more 

stringent than the requirements in the EPA rule. Most importantly, states’ concerns of having state oversight and permit proVerDate Nov 24 2008 13:25 Jun 06, 2016 Jkt 037690 PO 00000 Frm 00080 Fmt 6601 Sfmt 6601 F:\MY DOCS\HEARINGS 114\114-22FINAL CHRIS
77 

gram that is aligned with the coal ash rule will be achieved with 

an approved solid waste management plan, and utilities will have 

a single point of compliance. 

EPA is currently reviewing the subcommittee’s draft, and we remain open to providing technical comments to the committee. We 

believe that legislation should provide for a national uniform minimum standard that is protective of public health and the environment as we have set forth in the rule, and we appreciate the provisions of the discussion draft that incorporates components of the 

EPA’s CCR rule. 

However, the coal ash rule contains very specific detail regarding 

elements of transparency, prevention, and response, these elements 

were developed by reviewing extensive information from utilities, 

states, and citizens, augmented by in-the-field inspections of coal 

ash impoundments. The rule provides specific timelines that reflect 

the balance of immediately addressing risk to communities as soon 

as possible such as structural integrity to prevent catastrophic failure and ongoing risk to drinking water, while providing a reasonable amount of time for utilities to take actions given the variability of circumstance of CCR units. These components include a requirement that facility compliance data and information be posted 

on the internet for public access, criteria for addressing coal ash 

unit closure, comprehensive structural stability requirements, and 

requirements for all releases. Now we believe these are critically 

important components for a protective national program for coal 

ash disposal. 

With that, Mr. Chairman, I look forward to your questions. 

[The prepared statement of Mr. Stanislaus follows:] 

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95633.040
79 


95633.041
80 


95633.042
81 


95633.043
82 


95633.044
83 

Mr. SHIMKUS. Thank you very much. I would like to recognize 

myself for the first 5 minutes, and Mr. Stanislaus, I would like to 

walk you through some of the specific provisions in the legislation 

and compare them to the final rule. We are going to try the yes 

or no because of our time comparing the rule to the language of the 

bill. So if we can get to a yes and no on some of these first ones, 

we would appreciate it. 

Do you agree the bill requires states to use the exact design requirements as in 257.70 and 257.72? 

Mr. STANISLAUS. Well, I know you want yes and no answers, but 

I think the best way to kind of address those specific detailed questions is to—— 

Mr. SHIMKUS. But the real question is—— 

Mr. STANISLAUS. Yes. 

Mr. SHIMKUS [continuing]. Did we take the language from the 

reg—— 

Mr. STANISLAUS. Yes. 

Mr. SHIMKUS [continuing]. And place that in the language of the 

bill? 

Mr. STANISLAUS. Well, I guess I will have to get back to you on 

that. 

Mr. SHIMKUS. Yes, I think you know the answer. It does. 

Mr. STANISLAUS. OK. 

Mr. SHIMKUS. Do you agree that the bill requires the states to 

incorporate the groundwater monitoring and corrective action provisions in 257.90 to 257.98? 

Mr. STANISLAUS. Yes, I believe the draft does contain those kind 

of requirements as I said in my testimony. Some of the details having set forth in the rule is where we would like to work with you. 

Mr. SHIMKUS. Do you agree that the bill has a deadline of no 

more than 36 months for the installation of groundwater monitoring? 

Mr. STANISLAUS. Again—— 

Mr. SHIMKUS. It does. 

Mr. STANISLAUS. OK. 

Mr. SHIMKUS. Does the final rule require installation of groundwater monitoring within 30 months of the effective date? 

Mr. STANISLAUS. Are you talking about the draft or the rule? 

Mr. SHIMKUS. You are testifying on the bill. 

Mr. STANISLAUS. OK. 

Mr. SHIMKUS. We are comparing the bill’s language to the rule. 

Mr. STANISLAUS. OK. 

Mr. SHIMKUS. Which we looked at very closely. 

Mr. STANISLAUS. OK. Well, again, in terms of a direct comparison, we can get back to you on that, so—— 

Mr. SHIMKUS. OK. We believe it does. 

Mr. STANISLAUS. OK. 

Mr. SHIMKUS. Do you agree the bill includes all the same constituents identified by EPA as being of concern for coal ash? 

Mr. STANISLAUS. Again, I believe it does, but we will have to do 

a direct comparison. 

Mr. SHIMKUS. Yes. 

Mr. STANISLAUS. OK. 

84 

Mr. SHIMKUS. Do you agree the bill requires states to include the 

post-closure requirements in 257.104? I am just going to keep reading these. 

Mr. STANISLAUS. OK. 

Mr. SHIMKUS. OK. So the answer that we are trying to get to is, 

and there may be when we go through the markup, there may be 

some issues of debate, but our intent was as much as we could 

grabbing the regulation language and putting it in the bill. 

Mr. STANISLAUS. Yes. 

Mr. SHIMKUS. And this line of questioning is to confirm that. 

Mr. STANISLAUS. Yes. 

Mr. SHIMKUS. Do you agree that the bill requires the states to 

include the exact air criteria in 257.80? You probably don’t know. 

We think it does. Does the final rule require financial assurance? 

Does our draft bill include financial—does the final rule, excuse 

me, your rule, does it include financial assurance? 

Mr. STANISLAUS. The coal ash rule does not include financial assurance, but it does not foreclose existing states who have financial 

assurance for adding that to their administration of coal ash disposal. 

Mr. SHIMKUS. OK. But so you are testifying that the final rule 

doesn’t but they could, based upon state action? 

Mr. STANISLAUS. Yes, states can, in fact—— 

Mr. SHIMKUS. Right. OK. 

Mr. STANISLAUS [continuing]. Add that, yes. 

Mr. SHIMKUS. Do you agree that the bill requires states to include surface water requirements as part of a permit program? 

Mr. STANISLAUS. You are talking about the draft? 

Mr. SHIMKUS. I am on the same line of questioning—— 

Mr. STANISLAUS. OK. 

Mr. SHIMKUS [continuing]. Is the regulation comparing it to the 

draft. So the question is do you agree that the bill, the draft bill, 

requires states to include surface water requirements as part of a 

permit program? 

Mr. STANISLAUS. Again, we would be more than willing to compare it back to—— 

Mr. SHIMKUS. I think what we will do, we will just submit—— 

Mr. STANISLAUS. Sure. 

Mr. SHIMKUS [continuing]. These questions for the record, although we are going to be—as we mentioned before the hearing, a 

bill moves through the process. We will have a subcommittee mark. 

Through that process, if you can confirm or deny these questions, 

then we go to Full Committee mark, then we go to the floor. So 

there are other times for this process to move forward. But we 

think we have drafted the bill to, for the most part, address the 

regulatory issues that you have. Our intent was to, as I said in the 

earlier part of the hearing 2 days ago, is to be helpful, codifying 

versus what we are concerned about is litigation, citizen suits and 

different rules throughout the Federal District Court jurisdictions 

and then giving states the permitting authority with federal standards and to comply. So I will submit these questions, and if you can 

as quickly as possible, respond to those. I didn’t get to the other 

ones, but my time is expired. And I will yield to Mr. Tonko for 5 

minutes. 

85 

Mr. TONKO. Thank you, Chair Shimkus, and welcome to Administrator Stanislaus. We can all agree that coal ash can pose serious 

risks when not disposed of properly. Now for the first time we have 

minimum federal requirements that set a floor of public health and 

environmental protections. But we are still hearing from our majority that a bill is needed, that this rule somehow falls short. 

Mr. Stanislaus, do you believe there are gaps in EPA’s final rule? 

Mr. STANISLAUS. Well, we believe that the rule comprehensively 

addressed the risk that we have identified from a technical perspective, and we also believe that the alignment of the federal rule 

with state requirements can occur through the state solid waste 

management planning process. 

Mr. TONKO. And does the rule address the major risks of improper coal ash disposal? 

Mr. STANISLAUS. Yes. 

Mr. TONKO. And do you think there are problems in the rule that 

need to be addressed? 

Mr. STANISLAUS. We believe that we have addressed all the rest 

identified by EPA and by all the stakeholders, and in fact, in last 

week’s testimony, I think the state witnesses had noted that the 

rule reflects the best practices of the states. 

Mr. TONKO. And you know, we have heard from some stakeholders last week, even after all of this, that the rule does not include enough discretion for states to tailor requirements to specific 

sites. In response, this bill gives states significant leeway to apply 

alternative groundwater protection standards, clean-up requirements, and more. But this leeway undermines the federal floor or 

the national minimal criteria that EPA sets in the final rule. 

So my question to you, do you think it is important to have a federal floor of protections for coal ash disposal? 

Mr. STANISLAUS. Well absolutely. What we have done is establish 

a clear federal floor around the major risks but also provided some 

tailored requirements to accommodate site-specific flexibility as 

well as timelines to accommodate the variants of the size of facilities. 

Mr. TONKO. Thank you. And we have also heard some concerns 

about enforcement, that it might rely exclusively on citizen suits or 

that we may see issues of dual enforcement. So do you have confidence that enforcement of the final rule through citizen suits or 

states that have adopted requirements into their existing plans will 

be effective? 

Mr. STANISLAUS. Well, we have confidence that the states going 

through the state solid waste management planning process would 

align the state requirements with the federal requirements and not 

result in dual requirements. And therefore, in any citizen suit as 

courts have done in looking at other kind of citizen suits under 

RCRA would provide substantial weight to EPA’s approval of the 

state’s solid waste management plan. 

Mr. TONKO. And lastly, we have heard from some that the final 

rule does not provide enough certainty to the recycling industry because EPA could, at some time in the future, go through another 

lengthy public process to regulate coal ash as hazardous. By that 

measure, nothing that we do is certain because regulations and 

86 

statutes can always be revised. Mr. Stanislaus, does EPA’s final 

rule label coal ash as hazardous? 

Mr. STANISLAUS. No. 

Mr. TONKO. Does the final rule prevent beneficial reuse? 

Mr. STANISLAUS. No. 

Mr. TONKO. Does EPA have any plans at this time to label coal 

ash as hazardous or restrict beneficial reuse? 

Mr. STANISLAUS. No. 

Mr. TONKO. I thank the chair for calling this hearing and the 

witness for his testimony. Based on this testimony, I do not see a 

need for legislation at this time, and I see serious risks in this particular proposal at a point I believe the public interest would be 

best served by allowing the EPA rule to move forward. The statebased approach on coal ash disposal has been in effect for over 30 

years and has resulted in too many failures. 

So EPA’s proposal deserves I believe a fair test to see if it results 

in better protection for the American people from the risks of coal 

ash. And with that, I will yield back to the chair. 

Mr. SHIMKUS. The gentleman yields back his time. Just a note 

that I appreciate your yes and no answer to my colleague but no 

ability to do yes or no to me. 

So I will now recognize my colleague, Mr. Murphy, for 5 minutes. 

Mr. MURPHY. Thank you. I am over here. Good to see you. Now, 

does this legislation create enforceable permit programs for coal 

ash? 

Mr. STANISLAUS. In my understanding, there is a permit program 

in there. 

Mr. MURPHY. OK. You have read the bill? 

Mr. STANISLAUS. Yes. 

Mr. MURPHY. OK. So you are aware on pages 10 through 18 the 

bill text sets out the minimum requirements for states’ coal ash 

permit programs. Are those direct references to the requirements 

in Part 257 of the EPA’s final rule? 

Mr. STANISLAUS. Yes, I do believe there are references to EPA’s 

final rule, and as I noted in my opening statement, I think that 

there has been a lot of incorporation of the elements of the EPA’s 

final rule. I do think the specificity that we laid out in the coal ash 

rule regarding the major risks are critical enhancements that are 

necessary to provide the kind of protections against catastrophic 

failure among other kinds of risk. 

Mr. MURPHY. And doesn’t the bill then also require state permit 

programs to use the requirements in the final rule as the minimum 

requirements of coal ash permit programs? 

Mr. STANISLAUS. I am sorry. Could you say that again? 

Mr. MURPHY. The bill requires the state permit programs to use 

the requirements in the final rule as the minimum requirements 

of coal ash permits? 

Mr. STANISLAUS. Minimum requirements? Yes, I don’t really 

have that in front of me. 

Mr. MURPHY. OK. We will get back to that. 

Mr. STANISLAUS. OK. 

Mr. MURPHY. I believe it directly incorporates the minimum requirements set forth in your December final rule, but let us know. 

In the fact sheet that accompanied the December 20, 2014, final 

87 

rule, your agency says, ‘‘EPA has no formal role in implementation 

of the rule. EPA does not issue permits nor can EPA enforce the 

requirements of the rule.’’ In order to ensure that the EPA’s coal 

combustion residual standards are met, doesn’t it make more sense 

to enact a statutory guarantee that these standards would be adhered to rather than placing reliance on this rule’s self-implementing mechanism? 

Mr. STANISLAUS. Well yes, we have been really clear that the 

rule is self-implementing, but we believe, you know, based on all 

the comments we have heard from the states that the states want 

to enforce it through their programs. The states have that ability 

right now and that the alignment between state programs and the 

coal ash rule can occur through EPA’s approval of the state’s solid 

waste management plan. 

Mr. MURPHY. When you refer to that states can enforce that, 

isn’t that also referring though to lawsuits states and individuals 

can bring up as far as a means of enforcing the federal standards? 

Mr. STANISLAUS. No. I want to separate the two. So with respect 

to aligning with state permit programs and enforcing it through 

the state authority, they can do that by integrating the coal ash 

rule into their program and then by submitting a solid waste management plan for EPA’s approval separately, the states or citizens 

can enforce the self-implementing requirements through a suit. 

Mr. MURPHY. Right, but won’t enforcement through citizens’ suits 

as called for in the final rule result in this extreme variety of interpretations and a patchwork of compliance and enforcement decisions as made by federal courts and not the EPA, not elected Members of Congress, not EPA and Congress working together? I am 

very concerned about that. Are you concerned as well that that basically means we are going to punt our authority here by relying 

on the courts for enforcement which includes interpretation? It is 

not just making someone do that which they are supposed to be 

doing, but whenever you go to the courts, you are also dealing with 

interpretation issues. Does that concern you? 

Mr. STANISLAUS. Well, precisely because of that concern we have 

heard from utilities, we have heard from the states that very issue. 

That is the reason why we identified this opportunity to align state 

programs using the state’s solid waste management planning process. And we have heard from utilities and states, and we agree that 

there should be a single point of compliance and that—— 

Mr. MURPHY. And what is that point of compliance? Would that 

point of compliance be the permit process itself or letting the states 

go through the enforcement and challenging in courts and individuals challenging courts? Wouldn’t the permit process be the best 

place so you have interpretation and enforcement by the very agency that is working with Congress on this? 

Mr. STANISLAUS. Oh, yes, and we would agree and we think that 

states utilizing the solid waste management planning process 

would enable that to occur. 

Mr. MURPHY. So we want to make sure that the legislation really 

enables that to occur. I appreciate that. That is very important. 

And I yield back the balance of my time. Thank you. 

Mr. SHIMKUS. The gentleman yields back his time. The chair now 

recognizes the gentleman from Ohio, Mr. Latta, for 5 minutes. 

88 

Mr. LATTA. Well, thank you very much, Mr. Chairman, and 

thanks so much for being here again with us. I really appreciate 

it. Let me ask if I could, what do you see as the role of states in 

protecting the environment? Kind of a general question, but do you 

see as the overall role of states out there in protecting the environment? 

Mr. STANISLAUS. What do I see the states—— 

Mr. LATTA. Yes. Right. 

Mr. STANISLAUS. Well, the states are very much a co-regulator, 

in fact they have led responsibility for overseeing and enforcing environmental requirements. That is found within the Resource Conservation Recovery Act and probably many of our other environmental statutes. So we very much believe the states are on the 

front lines and should have primacy over that. 

Mr. LATTA. Because, as you just said, the states are on the front 

line that especially when the states, they know their own backyards much better. And so you think that the states should be out 

there on the front and should be maybe the first line of defense out 

there instead of the Federal Government? 

Mr. STANISLAUS. Yes, I mean, I don’t disagree with that statement, and we spent a lot of time in the rule recognizing that fact 

and to accommodate the states to the greatest extent that we can. 

And even during the development of the rule, we have spent extensive time analyzing the states’ rules and figuring out how we can 

best align the federal rule with state requirements and with the 

states taking the lead. 

Mr. LATTA. Let me follow up on that then. Do you believe that 

most states want to implement their own regulatory or permit program rather than have the U.S. EPA do it? Do you think—— 

Mr. STANISLAUS. Well, yes. I think the states in fact want to 

move forward on either enhancing their permit program, a new 

permit program for the coal ash rules, and in my conversations 

with the states is that we want to move forward taking advantage 

of the requirements in the rule to do that. 

Mr. LATTA. Well, when we are looking at that, then would more 

states be inclined to want to do it themselves or have the U.S. EPA 

do it, to have their own permitting process? 

Mr. STANISLAUS. I am not sure I have that information in front 

of me. I would say that states generally want to administer a permit program for coal ash disposal management. 

Mr. LATTA. OK. Let me just follow up again. Given all the uncertainty that the EPA’s rule has given states in the industry, the fact 

that many states already have permit programs and the fact that 

the EPA has previously determined that coal ash is not a hazardous waste, wouldn’t it be more prudent now to provide that full 

authority to the states to be able to do that on their permitting? 

Mr. STANISLAUS. Well, I actually believe that we have done that 

in the rule that we finalized. We finalized as minimum technical 

requirements and the ability of states with the existing authority 

to incorporate that within their existing permitting program and 

for EPA to approve that, to align those requirements with the state 

requirements which would, we believe, substantially help states 

and utilities in any challenges, any court challenges. 

89 

Mr. LATTA. OK. Let me ask this then. Also, looking at your testimony, you say that we have talked about this in the past in the 

committee, approximately 40 percent of all the CCR generated in 

2012 was beneficially used. Do you believe that this bill that we are 

talking about today would ensure that continued beneficial use of 

that CCR? 

Mr. STANISLAUS. Yes. I am not sure that I have analyzed it from 

a beneficial-use perspective. I mean, I think both, I think the rule 

and the legislation, is focused on the disposal, so I believe both will 

accommodate beneficial reuse of coal ash. 

Mr. LATTA. OK. Well, thank you very much, and Mr. Chairman, 

I yield back the balance of my time. 

Mr. SHIMKUS. The gentleman yields back the balance of his time. 

The chair now recognizes the gentleman from West Virginia, Mr. 

McKinley, who is the author of much of this bill, for 5 minutes. 

Mr. MCKINLEY. Thank you, Mr. Chairman, and welcome again to 

our committee and your help on this. If I can get to three questions, I would like to handle it that way. I am still somewhat troubled by the preamble, about the possibility of a slip, that there 

could be some consideration as a result of that. I am still getting 

phone calls about this and primarily from state highway commissions around the country that they are concerned that their use of 

cinders for providing traction on our highways that they have used 

historically may be not permitted. 

Do you have a sense of where the EPA would come down on 

whether cinders, the bottom ash, could be used on highways for 

safety? 

Mr. STANISLAUS. Yes. So with respect to any issue with respect 

to regulation, I think we are very clear in the rule that all beneficial use would not be subject to the rules on disposal. Separate 

from that, we have established a methodology for safe use of encapsulated use and we are now working on a methodology for the safe 

use of unencapsulated use. That deals with the risk—— 

Mr. MCKINLEY. So where—— 

Mr. STANISLAUS [continuing]. Side of disposal. 

Mr. MCKINLEY [continuing]. Do you think the EPA may come 

down on that issue? Because some of the states, during this past 

winter because of this controversy that has been stirred up by certain people, they are afraid to use cinders. As a result, we have had 

increased accident rate in some areas. 

So can you share? Do you think that they would rule that as 

being a beneficial use or are they going to—how would you finish 

that sentence? 

Mr. STANISLAUS. Well, we are in the midst of evaluating the 

unencapsulated use. All I can say is that the encapsulated use—— 

Mr. MCKINLEY. This wouldn’t be encapsulated, obviously, not the 

cinders spread on the highway. 

Mr. STANISLAUS. Yes. Yes. So to draw the analogy to the methodology, unencapsulated use, what it would do is to lay out the kind 

of techniques and applications so that it can be safely recycled. It 

would not be getting involved in whether that is subject to regulation at all. 

Mr. MCKINLEY. OK. I think we are going to have to have more 

conversation about that. 

90 

Mr. STANISLAUS. OK. 

Mr. MCKINLEY. I am still not clear on that. So again, your testimony said that—in critiquing the legislation, the criteria to address 

when a CCR unit would need to close should be included. Can you 

explain what you mean by that? 

Mr. STANISLAUS. Sure. So we spent a lot of time in the particular 

circumstance and timeline for closure of impoundment. So there 

can be times where a unit has to close for structural stability purposes, and so we lay out a series of requirements for structural stability, for inspection, looking at safety factors, if they don’t pass 

safety factors, the ability to engineer around and fix those safety 

factors. Another circumstance where there could be impact of 

groundwater, where it is an unlined impoundment. So we spent a 

lot of time both in the rule text and in the preamble articulating 

how to do the analysis, under what circumstance it would have to 

close and the particular methods of closure and timeline of closure. 

Mr. MCKINLEY. Very good. I would really like to spend more time 

back in that first because that issue of spreading salt we know is 

doing damage. Any of us that know from engineering that we are 

going to destroy our roads and bridges by use of salt. So I hope that 

your ultimate decision will be that we can continue using cinders 

on our highways. 

Mr. STANISLAUS. And as a follow—— 

Mr. MCKINLEY. Especially given the vegetation, the flora and 

fauna that we are killing along the highways because of the salt 

runoff. So there are some issues with that, and we can have more 

conversation. But in the timeframe, one last question. You talked 

about you wanted comprehensive structural integrity requirements 

you thought were—maybe we need to amplify that a little bit more 

in the bill. But the language in the bill is from the rule over the 

structural integrity requirements. The only thing was just a slight 

modification for utilities. What is not included? What is causing 

you consternation over this? 

Mr. STANISLAUS. Yes, I think let us have our staff get together 

on that. I mean, one of the issues I think we flagged was the timing addressing the structural integrity problems. We didn’t think 

that was identical to what we have laid out in the rule. All right. 

So what our rule says is do these inspections, do these assessments. Have a professional evaluate it. If there are problems with 

it, fix it, but if you can’t fix it, then you’re going to have to close 

because of the real consequence of a catastrophic failure. 

Mr. MCKINLEY. I would agree. I yield back the balance of my 

time. Thank you. 

Mr. SHIMKUS. The gentleman yields back his time. The chair now 

recognizes the gentleman from Ohio, Mr. Johnson, for 5 minutes. 

Mr. JOHNSON. Thank you, Mr. Chairman. I appreciate that. Mr. 

Stanislaus, there are a number of places in the preamble where the 

EPA indicated that certain provisions of the rule would have been 

written differently if the final rule was not self-implementing and 

if there was state oversight. So let us look at some specific issues. 

If the requirements were implemented with state regulatory 

oversight through permits, would the EPA have allowed alternative 

groundwater protection standards to be established? 

91 

Mr. STANISLAUS. I guess I am not sure. What we included in the 

rule was the various technical considerations for evaluating—— 

Mr. JOHNSON. Well, it says right in the preamble yes. I mean, 

you do know your rule, right? 

Mr. STANISLAUS. Yes. 

Mr. JOHNSON. OK. So it says that it—— 

Mr. STANISLAUS. Yes. 

Mr. JOHNSON [continuing]. Would. So would it also allow for alternative points of compliance to be established? 

Mr. STANISLAUS. If there was a permit program? 

Mr. JOHNSON. Yes. 

Mr. STANISLAUS. Yes, let me get back to you. I don’t know at this 

moment. 

Mr. JOHNSON. Would it allow a determination that compliance 

with corrective action requirements cannot be reasonably achieved 

with concurrently available methods, with currently available 

methods? 

Mr. STANISLAUS. I believe that is currently in the rule. 

Mr. JOHNSON. OK. Would it allow a determination that remediation of a release is not necessary? 

Mr. STANISLAUS. If there was a permit program 

Mr. JOHNSON. Yes. The preamble to the rule says that there are 

provisions in the rule that would have been written differently if 

the final rule was not self-implementing and if there was a state 

oversight. So if the requirements were implemented with state regulatory oversight through permits, would the rule have allowed a 

determination that remediation of a release is not necessary? 

Mr. STANISLAUS. I guess I am not sure. If there was a release 

resulting in exceedance, be it a state permit program or minimum 

federal requirements, I think that would both require addressing 

that release. 

Mr. JOHNSON. All right. Well, let us move on. The groundwater 

monitoring and corrective action provisions in the proposed and 

final rule are based on the municipal solid waste regulations in 

part 258. Would you disagree that the flexibility afforded states in 

making regulatory decisions under part 258 would also be appropriate for a state to incorporate as part of a coal ash permit program? 

Mr. STANISLAUS. Well, I mean—— 

Mr. JOHNSON. Why would they be different? 

Mr. STANISLAUS. I am sorry? 

Mr. JOHNSON. Why would they be different? 

Mr. STANISLAUS. Well, I mean, I think—— 

Mr. JOHNSON. If they are both based on part 258? 

Mr. STANISLAUS. Yes. 

Mr. JOHNSON. Why would they be different? 

Mr. STANISLAUS. Well, yes, you know the rule, it does borrow 

from the provision that you noted. 

Mr. JOHNSON. Yes. So the question is would it also be appropriate then under Part 258 for a state to incorporate as part of a 

coal ash permit program? 

Mr. STANISLAUS. Well, I guess what I would say is the rule provides specific requirements regarding groundwater that we think 

92 

should be followed, and we believe states should adopt those 

groundwater requirements in the state programs to be protected. 

Mr. JOHNSON. Mr. Stanislaus, we would like to compare how the 

final rule addresses inactive surface impoundments with how the 

legislation addresses them. So doesn’t the bill require that inactive 

impoundments notify EPA and the state within two months of enactment regarding whether they intend to close? You have read the 

bill, right? 

Mr. STANISLAUS. Yes. Yes. Yes, I am not sure of the time period 

in front of me but—— 

Mr. JOHNSON. OK. Well, it does. Do you know what the rule requires? 

Mr. STANISLAUS. Yes. The rule permits subjects’ inactive units 

that don’t close within 3 years of the effective date to do the requirements of the rule. Within those 3 years, a unit can dewater 

and close. 

Mr. JOHNSON. Doesn’t the bill require that an inactive impoundment close within 3 years or 5 years or become subject to all of the 

requirements of a permit program? 

Mr. STANISLAUS. Yes. I believe that is the case. 

Mr. JOHNSON. OK. What does the rule require? 

Mr. STANISLAUS. Again, the rule requires the 3-year timeframe. 

Mr. JOHNSON. OK. 

Mr. SHIMKUS. The gentleman’s time has expired. 

Mr. JOHNSON. Mr. Chairman, I yield back. 

Mr. SHIMKUS. The chair recognizes the gentleman from Texas, 

Mr. Flores, for 5 minutes. 

Mr. FLORES. Thank you, Mr. Chairman. Mr. Stanislaus, quick 

question for you. Once the file rule is effective, what will the EPA’s 

role be with respect to enforcing the requirements in the rule? 

Mr. STANISLAUS. The rule again is self-implementing so it would 

be enforced either by the states or citizens. 

Mr. FLORES. Means the EPA has no role in enforcement essentially, right? 

Mr. STANISLAUS. Well, with the exception of an imminent and 

substantial endangerment where we reserve that opportunity. 

Mr. FLORES. In the legislation on the other hand that we are proposing gives the EPA a continuing oversight rule to ensure that the 

state permit programs meet the minimum federal requirements, 

and it allows the EPA to implement a permit program if the states 

decide not to. And the EPA could take over a state permit program 

if the state fails to correct the deficiencies. Doesn’t the EPA have 

a more substantial role with respect to the regulation of coal ash 

and with the legislation than it does under the rule that you proposed? 

Mr. STANISLAUS. Yes, actually we are not sure because I think 

we have questions about—— 

Mr. FLORES. It does. I don’t think this has been asked already. 

When does the EPA plan to publish the final rule in the Federal 

Register? 

Mr. STANISLAUS. Well, it has been sent to the Federal Register 

Office, so expect it very shortly. 

Mr. FLORES. OK. What changes are you proposing from the initial rule? 

93 

Mr. STANISLAUS. There are no real changes. It is technical corrections. 

Mr. FLORES. OK. So no substantive changes? 

Mr. STANISLAUS. No substantive. 

Mr. FLORES. No substantive changes? 

Mr. STANISLAUS. No. 

Mr. FLORES. OK. Will there be a document that describes all the 

changes between the December 19 publication and—the pre-publication and the version in the Federal Register? 

Mr. STANISLAUS. Yes, let me get back to you on that. 

Mr. FLORES. OK. Does the EPA have the legal authority to publish the rule in the Federal Register that varies from the December 

19 prepublication version? 

Mr. STANISLAUS. Sure. I mean, the standard process, I mean, basically is a cleaning up of the rule. 

Mr. FLORES. And that is based on your representation that there 

are no substantive changes? 

Mr. STANISLAUS. That is right. 

Mr. FLORES. OK. This is more a rhetorical question. You don’t 

have to answer, but isn’t it preferable that the EPA issue rules 

based on statutory guidance from Congress instead of doing it on 

its own? I mean, this hearing was about the legislation we are proposing, and you have said you read it. But yet, many of the questions that have been asked by members, it doesn’t feel like you 

have had your arms around it. So I would say that it makes more 

sense I think for the EPA to have statutory authority to do something than do it on its own and not have it work as well as it could. 

I yield back. 

Mr. SHIMKUS. The gentleman yields back his time. The chair now 

recognizes the gentleman from North Carolina, Mr. Hudson, for 5 

minutes. 

Mr. HUDSON. Thank you, Mr. Chairman, and thank you, sir, for 

being here with us today. Mr. Stanislaus, on the first day of our 

hearing last week from one of our witnesses, we heard a lot of distrust of the states and their ability to implement permit programs 

that are protective of human health and the environment. Do you 

believe the states would develop coal ash permit programs that did 

not protect human health and the environment? 

Mr. STANISLAUS. Well, I have a large degree of confidence that 

the states will—and we are working with them—the states will develop a coal ash disposal program in alignment with the rule, yes. 

Mr. HUDSON. So do you agree the states have an established 

standard of protection that they are required to meet and establish 

environmental statutes and regulations? 

Mr. STANISLAUS. Well, I think that is the goal to have states incorporate the minimum federal requirements set forth in the coal 

ash rule. 

Mr. HUDSON. OK. The agency in proposing that the location restrictions apply retroactively to existing service impoundments acknowledge that this would force a majority of those impoundments 

to close. Do you have an estimate of how many we would be talking 

about would close and what the potential impacts would be on grid 

reliability? 

94 

Mr. STANISLAUS. I don’t have an estimate in front of me. I can 

get that to you. But I don’t believe that a majority would close because of location requirements. Now, we built in, per information 

that we received from utilities and states, the ability to examine 

these particular location requirements and conduct retrofits to continue operation. But I can provide to you the estimate that we 

have. 

Mr. HUDSON. I would appreciate that because I think it is important, and we have heard a lot of concern about the fact that it can 

be retroactively applied but we are looking at a significant amount 

of closure. And again, that has really raised a lot of concern in my 

mind about the grid reliability and what the impact on that will 

be. 

In your written testimony you state that the requirement that facility compliance data and information be posted on the internet for 

public access is critical to establishing a framework to help ensure 

proper management of CCR disposal. Why is it critical that regulated agencies directly post compliance data instead of the states 

posting the information or otherwise making the information publically available as is required by our legislation? 

Mr. STANISLAUS. Well, I mean, we believe that the public posting 

of critical data in terms of, for example, how a utility is or is not 

exceeding groundwater protection standards, how a utility is moving forward on corrective action helps, the community living next 

to a facility to understand how a utility is addressing the coal ash 

impoundments. 

Mr. HUDSON. Well, sure, but our legislation expressly requires 

that states make information such as groundwater monitoring 

data, structural stability assessments, fugitive dust control plans, 

emergency action plans, and corrective action remedies be made 

available to the public. Why is this not an acceptable alternative 

to having the facilities directly post this information? It is going to 

be out there for the public consumption. 

Mr. STANISLAUS. Yes, I think having—whether this talks about 

the utilities or the states, I think they are both adequate enough 

so, yes. 

Mr. HUDSON. Right. Thank you, Mr. Chairman. I yield back. 

Mr. SHIMKUS. The gentleman yields back his time. The chair now 

recognizes the gentleman from Mississippi, Mr. Harper, for 5 minutes. 

Mr. HARPER. Thank you, Mr. Chairman. Thank you for being 

here, and I wanted to just let you know a few things in case you 

didn’t get a chance to look at it when we had this beginning of the 

hearing last week on the 18th. I just wanted to point out some testimony from a couple of the witnesses that were here. David 

Paylor, who is with the Virginia DEQ and Past-President of ECOS, 

he said in his testimony that the draft bill amended Subtitle D of 

RCRA by allowing the states to implement and enforce the EPA’s 

coal ash management rule through a state permit program instead 

of having the rule be self-implementing. He said this recognizes 

that the states are in the best position to implement the rule and 

to regulate CCR units but also properly empowers the EPA to serve 

as a backstop and administrate the new rule and circumstances 

where a state decides not to do so or fails to do so properly. FurVerDate Nov 24 2008 13:25 Jun 06, 2016 Jkt 037690 PO 00000 Frm 00098 Fmt 6601 Sfmt 6601 F:\MY DOCS\HEARINGS 114\114-22FINAL CHRIS
95 

ther, he pointed out that ECOS testified before this subcommittee 

in January, supporting the final rules’ technical requirements but 

stating that legislation to amend RCRA was still needed to address 

limitations in weaknesses in the final rule. Further ECOS has reviewed the draft bill and finds that it positively addresses the concerns identified by ECOS in our January testimony. The draft bill 

leverages and codifies the extensive technical work in EPA’s final 

rule. 

So I could go on with what he said, but I also want to point out 

Michael Forbeck who is on behalf of the Association of state and 

Territorial Solid Waste Management Officials. And their testimony 

was pretty clear that the discussion draft has addressed the main 

concerns that they have expressed regarding EPA’s final rule on 

CCR, and they believe that this discussion draft addresses the 

main concerns that they have in that this is necessary. And they 

are pleased that the legislation requires financial assurance for 

post-closure care of inactive surface impoundments and I could go 

on and on. 

But this is something we believe is necessary. And I have got a 

few questions as I follow up. The legislation allows states to use 

their discretion to establish alternative groundwater protection 

standards, alternative points of compliance, and determine that 

corrective action is not necessary or technically feasible. But the 

bill limits the discretion to what the state could do under the municipal solid waste regulations in Part 258. Do you feel that this 

significantly weakens the protections in the final rule? 

Mr. STANISLAUS. Well, I guess our view is that the level of detail 

to ensure equivalency between what we put in the coal ash rule 

and what is contained in the bill, we are not sure it has the same 

level of equivalency. 

Mr. HARPER. OK. Did EPA promulgate the final rule to be protective of human health in the environment? 

Mr. STANISLAUS. Yes. 

Mr. HARPER. Why is a general standard of protection necessary 

in the bill to ensure that states develop permit programs that are 

protective of human health and the environment? 

Mr. STANISLAUS. Well, we established very specific requirements 

based on the risk to groundwater, the risk of catastrophic failure. 

So we believe that level of specificity is necessary to ensure an adequate level of protection. 

Mr. HARPER. Some of the environmental groups are saying that 

EPA finalized the weakest regulatory option. Do you agree that the 

final rule contains weak regulatory standards? 

Mr. STANISLAUS. No. 

Mr. HARPER. The agency in proposing that the location restrictions apply retroactively to existing surface impoundments acknowledged that this would force the majority of these impoundments to close. Do you have an estimate of how many will close 

and what the potential impacts will be on grid reliability? 

Mr. STANISLAUS. Sure. Yes. I can get back to you with those 

numbers. 

Mr. HARPER. OK. We really would—— 

Mr. STANISLAUS. Sure. 

Mr. HARPER [continuing]. Like to see that. 

96 

Mr. STANISLAUS. OK. 

Mr. HARPER. And do you know if those estimates exist? Are they 

already part of your file? Do you already have that and you just 

have to get it to us or does it have to be compiled? 

Mr. STANISLAUS. Yes, we have analyzed it. We can get you information on that. I mean, just to be clear, because of the concern 

that you raised, you know, the location requirements permit one, 

the analysis of those various requirements but also the ability to 

implement engineering solutions to provide the necessary safety 

net—— 

Mr. HARPER. Thank you for being willing to provide that. 

Mr. STANISLAUS. OK. 

Mr. HARPER. We look forward to seeing that. I yield back. 

Mr. SHIMKUS. The gentleman yields back his time. Last but not 

least, the gentleman from North Dakota, Mr. Cramer, for 5 minutes. 

Mr. CRAMER. Yes. Thank you, Mr. Chairman, and thank you as 

well. I am just going to—I want to maybe focus in just a little more 

on one topic, and I know Mr. Johnson raised it a little bit ago. But 

I felt like we left it a little early. And just as a background, I am 

a former state regulator. I was in the Public Service Commission, 

and we, in North Dakota, had the surface mining, the SMCRA 

rules, and carried them out as a state on behalf of the Federal Government as well as our own reclamation rules. And realizing that 

coal ash is RCRA and solid waste, and what I am struggling with, 

and I am hoping you can help me, is if a state opens up its solid 

waste regulations as you suggest and if they adopt, you know, 

these rules, your rules, they then become part of their—258 rules, 

they then become part of their enforcement regime. But as I understand it, that is not the end of it. In other words, they still have 

the EPA rule over here, and the state doesn’t enforce in lieu of the 

federal rule. Is that right? And I have to tell you, if that is right, 

that is concerning to me because it seems if I was the state regulator that I used to be, that would be problematic for me. That 

would be confusing I think certainly to the stakeholders, and I 

think it would be confusing to the regulators with regard to who 

has got enforcement over what. 

I pose it in that statement in hopes that you can help clarify it 

for me. 

Mr. STANISLAUS. Sure. Because of this concern that the states 

can’t act in lieu of EPA in the way that other programs can is the 

reason why we believe the state’s solid waste management planning process would allow that alignment. So once a state submits 

a plan to us that demonstrates that the minimum federal requirements are contained in a state program, ideally a permit program, 

EPA would then approve that and I believe the major concern that 

we heard from the states and utilities was a court could view this 

as different requirements between the states and the coal ash rule. 

And we do believe that should there be litigation around that, that 

our experience has been, it is going to provide substantial weight 

of EPA’s conclusion that a state program is consistent with the federal rule. Does that answer your question? 

Mr. CRAMER. I think it does, but it doesn’t alleviate my concern 

because with your court example, wouldn’t it be easier if we just 

97 

had the states permitting as part of the enforcement mechanism 

rather than have a court, what I think you are talking about, a 

court sort of recognize that the state adopted this and therefore 

they will consider that as part of this citizen suit enforcement 

mechanism that I think is the highlight of the rule, which I think 

is quite problematic. Obviously, I mean, it is pretty clear by the 

legislation and certainly by the majority that that is a fairly major 

concern for us. 

So yes, I think I understand your answer. I just am not sure that 

I can agree with it as a conclusion. With that, I have nothing further, but I would yield back, Mr. Chairman. 

Mr. SHIMKUS. The gentleman yields back his time. I have four 

letters to ask unanimous consent to submit into the record. One 

references the opposition to the draft, and it is signed by a lot of 

organizations from all over the country. So people can check the 

record for that. Another one, another letter requests for the subcommittee to convene a hearing to address this and concerns, and 

it is signed by a lot of citizens from across the country. And people 

can find out who they are if we accept this into the record. 

We also have a letter by the Chamber of Commerce in support 

of the legislation and a letter from the Portland Cement in support 

of the legislation. 

Without objection, I would like to submit these to the record. 

Without objection, so ordered. 

[The information appears at the conclusion of the hearing.] 

Mr. SHIMKUS. We want to thank you for testifying for us as part 

of the process of looking at the bill. We look forward to some responses to the many questions that members put forth, and with 

that, this hearing is adjourned. 

[Whereupon, at 3:27 p.m., the subcommittee was adjourned.] 

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